Saturday, November 10, 2012
Legal Newsline reports on a recent Virginia Supreme Court decision (4-3), acting on a question certified by the Fourth Circuit, that allows an employee to sue an individual for a termination in violation of public policy, even when the individual is not the official employer. The key is that the individual must have had a participatory role in the termination, such as being a supervisor or manager.
In the case at issue, a nurse sued the doctor who owned her former employer. She alleged that he fired her for rejecting his many sexual advances--which included unwanted physical advances--and demands that she divorce her husband so she could be with him. The Court held that the purposes of the public policy tort are best served by holding individuals accountable. The dissent argued that the tort is limited to the employer-employee relationship.
Hat Tip: ALex Long
Friday, November 9, 2012
I am happy to report that today saw the publication by the Wisconsin Journal of Law, Gender & Society (WJLGS) four papers from the October 2011 Symposium on The Constitutionalization of Labor and Employment Law, which was held at the University of Wisconsin Law School.
Here are the contents of the WJLGS Summer 2012 Symposium Issue (Vol. 27, No. 2):
Introduction: Symposium on The Constitutionalization of Labor and Employment Law - Carin A. Clauss & Paul M. Secunda
Disparate Impact and Equal Protection After Ricci v. DeStefano - Marcia L. McCormick
A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers - Maria L. Ontiveros
Constitutionalizing Employees' Rights: Lessons from the History of the Thirteenth Amendment - George Rutherglen
First Amendment Protection for Union Appeals to Consumers - Michal C. Harper
Check out the articles in this fine volume when you get a chance!
Thursday, November 8, 2012
It is at Canada's newest law school at Thompson Rivers University in Kamloops, B.C. David tells me that it is in a beautiful part of Canada, with wine vineyards and ski mountains, a couple of hours east of Vancouver.
Here is a link to the job posting on David's blog.
As referenced in my last post, the future development of labor and employment law in the United States is not limited to a consideration of federal judicial, legislative, and regulatory developments. Additionally, state and local laws and initiatives also play a very important role in setting up the rules of the game in the workplace.
A number of ballot measures were at issue in different states during election night this past Tuesday, including a number involving public sector unions. Here is a non-exhaustive list and how some of them fared:
1. Voters rejected lmits on public sector teacher unions in Idaho and South Dakota. Idaho had three questions on the ballot regarding teacher unions, and South Dakota had one question about teacher unions. All were defeated. From the Huffington Post:
In Idaho, teachers unions chalked up another victory, using the referendum process to block the implementation of legislation that required teacher evaluations to measure student performance, eliminated tenure, restricted collective bargaining and introduced merit bonuses, among many other changes. One of the bills also gave all students laptops and mandated students take two semester-long online courses to graduate.
It is perhaps possible the Idaho legislature tried to tackle too much in one session. That’s a lot of power-shifting to convince parents to accept. A very similar education reform referendum in South Dakota also failed badly [67%-33%].
2. In Michigan, an emergency manager law, which allowed the state to appoint an emergency manager if a local government was failing financially also vested power in the emergency manager to cancel public employee collective bargaining rights and public employee union contracts. This law was struck down by voters by a margin of 52%-48%.
3. Michigan also had a proposal on the ballot that would have put collective bargaining rights in the state constitution, but voters rejected that provision fairly easily 58%-42%.
4. Another state labor measure, Proposition 32 in California, would have prohibited unions from using payroll deductions for political purposes without specific individual permission from union members. After an expensive battle, the Propostion was soundly rejected by voters by a 56%-44% margin.
There are, of course, other measures that were considered in the labor/employment law area, but this gives a taste of what was on various state ballots and what trends there might be concerning the future of unionism and collective bargaining in various states.
Hat Tip: Joe Slater
This Psychology Today article describes why performance appraisals don't work. The article is sketchier on what should be substituted.
There are some fundamental problems with negative criticism, regardless of whether we clothe it politely as "constructive." First, [Tony] Schwartz contends, criticism "challenges our sense of value. Criticism implies judgment and we all recoil from feeling judged." Indeed, psychologists such as Daniel Goleman contend that threats to self-esteem and sense of self-worth in the form of criticism can feel like threats to our survival.
Part of our resistance to positive reactions to negative feedback is the way our brains work. Neuroscientists have clearly identified that our brains are fundamentally protective, defensive mechanisms. If your ego and sense of self is threatened, your brain unconsciously will act to protect and defend, either actively or passively.
Nowhere does negative or constructive criticism appear more frequently than in performance reviews of employees. The prevailing theory is that criticism, which invariably is part of the performance review, will improve the employee's performance, and in addition the employee will positively welcome it. Nothing can be further from the truth. The reality is that the traditional performance appraisal as practiced in the majority of organizations today is fundamentally flawed, and incongruent with our values-based, vision-driven and collaborative work environments.
Wednesday, November 7, 2012
In light of President Obama's resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in labor and employment law area during a Second Obama administration:
First, I think the verdict is still very much out on whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term. It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.
On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act. I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.
On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains. On the employee benefit law front, I see significant developments concerning the promulgation of a broader definition of fiduciary status under ERISA and the promulgation of regulations regarding life income options under 401K pension plans. There might also be legislation addressing the current funding crisis surrounding multiemployer (Taft-Hartley) pension and welfare benefit plans. Of course, a second Obama administration will also mean further development of regulations under the Affordable Care Act (Obamacare), including those that impact the provision of employer-provided health benefits.
On the traditional labor front, I suspect that there will continue to be controversy over the selection of NLRB members. Nevertheless, expect an Obama Board (members continued to be recessed appointed) to continue to push for new election and posting rules, the development of more social media guidance, and the reconsideration of some important labor law issues (including issues involving the status of graduate assistants under the NLRA, employer captive audience meetings, and the Weingarten rights of non-union employees). The EEOC, for its part, may continue to consider a host of issues involving everything from LGBT rights to the steps necessary to accommodate the disabilities of employees.
So, expect much of the same as far as labor and employment law in a Second Obama term. Not much legislation, with most important developments happening through federal agency adjudications and rulemaking.
I should add two more notes. First, the United States Supreme Court could go through a fundamental change depending on which Justices leave the Court in the next four years. If President Obama is able to appoint a left-leaning bench, you might see many more pro-employee judicial decisions in areas as diverse as the class action treatment of employment discrimination claims, to the extent and nature of relief available under ERISA, to a reconsideration of burden-shifting proof schemes under Title VII and related employment discrimination laws.
Second, my analysis does not touch on the many labor and employment law developments that will likely happen on the state and local level. There was a decidely mixed bag for state-level developments in labor and employment law last night (see California and Michigan, for example). I would suspect that we will see many developments on the non-federal side of things revolving around everything from right-to-work legislation to public pension reform to attempts to restore/take away collective bargaining rights of public sector workers.
In any event, just my two cents and stay tuned!
Tuesday, November 6, 2012
The Southeastern Association of Law Schools (SEALS) annual program will be having a discussion group entitled: “New Voices in Labor and Employment Law.” This is a great opportunity for junior (i.e., five years or fewer teaching experience) labor and employment law scholars to show off their work in a wonderful, nurturing environment at the SEALS conference next August at The Breakers in Palm Beach (Aug. 4-Aug. 10, 2013).
I have been going to the SEALS conference for eight years now and I can tell you it is one of the best run and fun law conferences every year. Of course, it doesn’t hurt that you stay at a very reduced price at one of the best hotels in the country. It is great for those of you who have families too!
Here is the call for papers for the discussion group:
The Southeastern Association of Law Schools (SEALS) is pleased to host the first annual “New Voices in Labor and Employment Law” program during the August 2013 SEALS Annual Meeting in Palm Beach, Florida. The purpose of this works-in-progress program is to bring together junior and senior labor and employment law scholars to help the junior scholars ready papers for the upcoming law review submission cycle.
For this program, we are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2012-13 academic year). Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting in August 2013.
To be considered for participation in the program, please send an email to Professor Michael Green, Texas Wesleyan University School of Law, at email@example.com and to Professor Paul Secunda, Marquette University Law School at firstname.lastname@example.org by 5:00 p.m. Eastern Time, Monday, January 7, 2013. In your email, please include the title of your paper, a short description of the context (e.g., “Employee Privacy in the Digital Age”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2012, will be given a preference in the selection of those contacted to submit final papers.
To ensure an atmosphere conducive to feedback, space will be limited to 15 participants; any additional registrants will be placed on a waiting list and invited to participate on a space available basis only. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. Eastern Time, Friday, May 31, 2013. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria identified in this call of papers. Submissions are limited to a maximum 40,000 word limit (including footnotes). Submitted in-progress papers can be committed for publication prior to their submission, as long as they are not actually scheduled to be printed prior to August 1, 2013. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline, and no one may participate without submitting a draft by the deadline above.
Paper commentators may include Professors Tony Baldwin, Mercer University Law School, Rick Bales, Northern Kentucky Salmon P. Chase College of Law, Matthew Bodie, St. Louis University School of Law, Susan Carle, American University Washington College of Law, Richard Carlson, South Texas College of Law, Miriam Cherry, St. Louis University School of Law, Michael Green, Texas Wesleyan University School of Law, Wendy Greene, Samford University, Cumberland School of Law, Jeff Hirsch, University of North Carolina School of Law, Nancy Levit, University of Missouri-Kansas City School of Law, Anne Lofaso, West Virginia College of Law, Alex Long, University of Tennessee College of Law, Marcia McCormick, St. Louis University School of Law, Elizabeth Pendo, St. Louis University School of Law, Paul Secunda, Marquette University Law School, and others still to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New Voices in Labor and Employment Law Program should be submitted to Professor Michael Green, email@example.com or Professor Paul Secunda, firstname.lastname@example.org.
In any event, I hope many junior Scholars will consider submitting papers. After reading all the details above, please let me or Michael Green (both of our email addresses are directly above) know if you have any questions.
Monday, November 5, 2012
Friend of the blog, Steve Rosenberg, has an interesting post up on his blog, Boston ERISA and Insurance Litigation Blog entitled: Notes of The John Marshall Law Review's Special Edition on "The Past, Present, and Future of Supreme Court Jurisprudence on ERISA.
As Steve notes, "I think it is notable in this regard, and possibly causally related, that several of the authors are practicing lawyers who focus on ERISA litigation." He points to articles dealing with the Moensch presumption (i.e., addressing fiduciary obligations with regards to holding employer stock in a benefit plan), the recent Supreme Court Amara court case concerning the scope of equitable remedies under ERISA, and the role of summary plan descriptions (SPDs) after Amara.
Steve is right that all of these topics are of current importance to ERISA litigation, and like Steve, I look forward to having the opportunity to read all of the John Marshall Law Review Articles in more detail.
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at email@example.com.
Second, please e-mail Angela Onwuachi-Willig at firstname.lastname@example.org with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at email@example.com.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at firstname.lastname@example.org.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)