October 11, 2012
Alberta Labor Relations Board Decision on NHL Lockout
From our friends at the American University Labor and Employment Law Forum comes this insightful analysis on why the Alberta Labor Relations Board declined to take jurisdiction over the NHL Lockout dispute.
Here's a taste of the blog post:
After a hearing on September 21, 2012, the [Alberta Labor Relations] Board determined that because the NHL and the NHLPA have “never established definitively which jurisdiction’s labour laws govern their relationship,” thus “even if the Board has jurisdiction to declare the lockout unlawful, it should not exercise its discretion to do so [in the heat of a strike or lockout.]” And grounding its decision in a public policy argument, refused to make any kind of decision on the issue and dismissed the NHLPA’s application in its entirety.
Alberta's decision is consisent with the decision by the Quebec Labor Relations Board to not intervene in the onoing labor dispute between the NHL and its players (though the Quebec Board indicated that it still might have more to say on the matter and did not dismiss the case). In any event, a read of the whole linked-to blog post is well worth the time. As a die-hard Flyers fan, and like my friends at American, I am also missing the normal beginning of the hockey season today.
New Labor Film
Thanks to Bill Herbert for alerting us to this New York Times review of Sasha Reuther’s new film on the U.A.W.:
Th[is] 1937 photograph is just one of the searing scenes in “Brothers on the Line,” a new documentary about the Reuther brothers: Walter, the future United Auto Workers president standing next to the bloodied organizer, and Victor and Roy. Together they played a pivotal role in transforming the United Auto Workers into what was for decades the nation’s most powerful labor union.
October 10, 2012
Is being a former lingerie model grounds for dismissal?
Tiffany Webb, a highly regarded guidance counselor at Murry Bergtraum HS for Business Careers downtown, was fired after 12 years with the [New York] Department of Education because photos of her in lingerie and bikinis from her early career as a model are still floating around the Internet.
* * *
Last Dec. 23, days before Webb was to get tenure as an $84,200-a-year guidance counselor, she was dismissed for “conduct unbecoming” a DOE employee. “The inappropriate photos were accessible to impressionable adolescents,” a three-member chancellor’s committee ruled by 2-1. “That behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”
Webb * * * is now suing the DOE in Brooklyn Supreme Court, charging wrongful termination, sex discrimination and violation of First Amendment rights. She seeks reinstatement, back pay and punitive damages.
Hat tip: Phil Sparkes.
Corbett on Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself
Bill Corbett (LSU) has just posted on SSRN his forthcoming article in the American University Law Review entitled: Unmasking a Pretext for Res Ipsa Loquitur: a Proposal to Let Employment Discrimination Speak for Itself.
Here is the abstract:
Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment discrimination law is a federal statutory tort, but it was the most express and direct statement. Moreover, the Court’s adoption of proximate cause, one of the most complicated, confusing, and criticized concepts in tort law, to analyze a prevalent issue in employment discrimination law is striking and provocative. Staub reinvigorates the debate about whether the Court and courts have imported too much tort law into employment discrimination law—the debate about the “tortification” of employment discrimination law.
Most discussions of tortification of discrimination law trace the origin to the Supreme Court’s discussion of torts causation standards in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, it actually began much earlier. The ubiquitous pretext analysis, developed by the Court to analyze individual disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is a thinly veiled version of the tort doctrine res ipsa loquitur. Although there have been numerous critiques of the McDonnell Douglas analysis that have called for its abrogation, none have exposed it as the much-maligned tort doctrine. Evaluating McDonnell Douglas as res ipsa helps explain its weaknesses and shortcomings. After almost forty years of the pretext analysis, it is time to expel it from discrimination law. Abrogating the McDonnell Douglas analysis should be a significant first step in reconsidering the tortification of employment discrimination law.
Bill's piece is a timely addition to a growing body of literature on the tortification of employment discrimination law. Both Charlie Sullivan (Seton Hall) and Sandra Sperino (Cincinnati) have their own pieces and takes on this increasingly important area of the law. Bill's piece is an original and novel take in its own right, considering the res ipsa loquitur doctrine in this context, and I very much look forward to reading this piece in more detail.
1 Million Pre-Election Pink Slips?
Stone explains that "[u]nder the Congressional budget compromise last year, if no budget deal is reached by January 2, there will be a mandatory cut in the budgets of all federal agencies, including a 10 percent cut in the Defense Department budget." Republican-leaning business groups and defense company executives are threatening to send out a million WARN Act notices 60 days before January 2 -- i.e., on November 2. This is notwithstanding a DOL letter advising companies not to issue such WARN notices. That letter states that any potential layoffs resulting from sequestration arespeculative and the particular workers who might be affected is unknown.
Stone warns that:
Obama is likely to bear the brunt of the blame if nearly one million workers receive layoff notices. If WARN notices are widely issued, it could provide Romney with concrete evidence of the precariousness of any asserted jobs recovery and the dangers of another Obama term.
Democrats need a strategy to stop this storm. They need to explain the facts to the American people and make it clear that any company that issues a WARNing is engaged in unwarranted scare-mongering and political manipulation.
October 8, 2012
Recently Published Scholarship
- Ryan Walters, Provoking Preemption: Why State Laws Protecting the Right to a Union Secret Ballot Election Are Preempted by the NLRA, 52 Santa Clara L. Rev. 1031 (2012).
- Brian Pakpour, Standardizing Disparate Impact: How Ricci Circumvents Title VII and Why Congress Should Amend It Now, 52 Santa Clara L. Rev. 1111 (2012).
- Alexanre Zucco, Independent Contractors and the Internal Revenue Service's "Twenty Factor" Test: Perspective on the Problems of Today and the Solutions for Tomorrow, 57 Wayne L. Rev. 599 (2011).