Friday, November 16, 2012
- Elizabeth F. Emens, Framing Disability, 2012 Ill. L. Rev. 1383 (2012).
- Katherine Greene, Flying into the Future with Boeing: What Should Happen When Legitimate Business Decisions Collide with Union Discrimination, 44 U. Toledo L. Rev. 203 (2012).
- Rockwell Thomas Gust IV, The California Workers' Compensation Act: The Death Knell of NFL Players' "Concussion" Case?, 44 U. Toledo L. Rev. 245 (2012).
Thursday, November 15, 2012
UPDATE #2 (11/19/12): there may be hope for the Twinkie yet. As I mentioned earlier, there was also the chance that Hostess and the union could reach an agreement after the company-imposed deadline. Reports have just come out that the parties, at the urging of the bankruptcy judge, have agreed to enter into mediation. We'll see if anything happens.
UPDATE: the deadline passed without an agreement, and Hostess has now moved to fully wind down operation. Of course, there could always be a last-minute deal that saves the company, but who knows. Even if the company liquidates, Twinkie fans may still have hope and the CEO discussed the sale of the brands. Stay tuned.
Hostess, which has been in Chapter 11 bankruptcy, is in the midst of a strike by employees who are members of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union. The company reached an agreement with the Teamsters, which represent a larger portion of its employees. But the Bakery workers are upset about pay reductions and health and pension concessions sough by Hostess. The company set a deadline for 5pm today (about 10 minutes from now) for the strike to end. If it doesn't, the company says it will ask the bankruptcy court for permission to fully liquidate. I'm guessing that if the deadline passes, there may still be hope for a solution, but things are looking dire for Hostess. Better stock up on Twinkies now (unfortunately, rumors of their multi-year shelf life aren't true).
Check out Mike Maslanka's Work Matters. Here's an excerpt:
[Companies often face the issue of how to handle a manager who has had an affair with an employee.] Does the manager deserve a second chance? It’s human nature to want to provide one, because most people would want one if they messed up. But there are exceptions. Did the executive violate a rule or a norm of conduct to which he expected others to adhere? With Petraeus, the answer is yes. The Times article notes that the intelligence community frowns on extramarital affairs because of the possibility of the employee being blackmailed for information.
Wednesday, November 14, 2012
Thanks to the good folks over at the U.S. Office of Special Counsel (OSC) for bringing to our attention that Congress just passed landmark legislation to strengthen protections for federal employees who blow the whistle on waste, fraud, and abuse in government operations.
The Whistleblower Protection Enhancement Act (WPEA) (S. 743) passed the U.S. Senate last night, and will be presented to the President for his signature soon. The House of Representatives passed identical legislation in September of this year.
Specifically, the WPEA provides OSC with additional tools to protect federal employees from unlawful retaliation. Provisions include:
• Overturning legal precedents that narrowed protections for government whistleblowers;
• Giving whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers;
• Restoring the OSC’s ability to seek disciplinary actions against supervisors who retaliate; and
• Holding agencies accountable for retaliatory investigations.
Like OSC, I commend Congress and the President for promoting government accountability through enactment of this legislation. The hope is that federal employees will now be more willing to become the vanguard of the citizenry when it comes to shedding light on government abuse and waste, thereby ensuring more accountable and transparent government for all of us.
Last week, while I was on the road, the Supreme Court granted the petition for a writ of certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012). At issue is "[w]hether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal law claim.” See generally Jill Gross's post over at ADR Prof Blog.
Recall that in AT&T Mobility v. Concepcion, the Supreme Court enforced an arbitration agreement containing a class-action waiver over a finding that under state law the waiver was unconscionable. In Italian Colors, the Second Circuit has held that a similar waiver is unenforceable because it interferes with the vindication of federal statutory (antitrust) rights.
The Federal Arbitration Act requires enforcement of arbitrtion agreements "save for" generally applicable defenses available under state contract law. The Supreme Court in Concepcion effectively read the "save for" language out of the statute. The one defense left to lopsided arbitration agreements is that they interfere with the vindication of federal statutory rights such as the right to be free from workplace discrimination created by Title VII. In other words, when a lopsided arbitration agreement forces a court to choose between enforcing the FAA on the one hand and vindicating Title VII rights on the other, courts should choose the latter.
I expect the Supreme Court will choose the former, and will advance three grounds for doing so. First, the Court will argue that the either/or proposition of FAA v. statutes such as Title VII is chimerical -- consumers and employees can still pursue their claims individually even if they are barred from pursuing the claims as class actions. The Court will ignore, as it did in Concepcion, the contrary argument that aggregating claims is practically -- albeit not legally -- the only way to bring high-volume low-dollar claims.
Second, the Court will argue that the "plain language" of the FAA should trump the "policies" behind federal statutes such as Title VII. Of course, the really plain language of the FAA creates a state-contract-law defense that the Supreme Court white-outed in Concepcion in favor of the pro-arbitration policy of that statute.
Third, the Court will argue that the "presumption of arbitrability" articulated in Mitsubishi v. Soler Chrysler-Plymouth (1985) means that if the FAA is inconsistent with other federal statutes, the FAA should trump later-enacted statutes because Congress, in enacting those statutes, could have but chose not to write into those statutes provisions saying that those statutes trump the FAA. Never mind that the Congresses that passed both the FAA and the later statutes never dreamed that an activist Supreme Court would apply the FAA to employment and consumer disputes, way beyond the commercial disputes for which the statute was designed.
One final note. When the Supreme Court accepted cert in Concepcion, it did so in an extraordinarily atypical arbitration case in which the defendant had gone way out of its way to ensure that individual rights could be pursued notwithstanding the class-action waiver. This allowed the Court to hand down a pro-arbitration ruling while ignoring the anti-consumer/employee effect the ruling would have on the vast majority of cases to which the FAA now is being applied. In Italian Colors, the Court has done it again. Plantiffs are merchants who have sued American Express over the terms AmEx imposes on merchants who accept AmEx credit cards from consumers. Thus, the Court will have the opportunity to issue yet another pro-arbitration ruling in a context that hides the the anti-consumer/employee effect the ruling will have on the vast majority of cases now subject to the FAA. Maybe the likely outcome of Italian Colors is justified in the context of the commercial cases for which the FAA originally was designed. But it certainly is not justified in the context of the commercial/employment cases to which the Court now is requiring that it be applied.
There have been a slew of terrific articles posted on SSRN over the last several days -- check these out:
- Eugene Volokh (UCLA), Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation, 16 Texas Review of Law & Politics (2012).
- Paul Benjamin Lowry (CityUHK) et al., The Drivers in the Use of Online Whistle-Blowing Reporting Systems, J. of Management Information Systems (2013).
- Henry Drummonds (Lewis & Clark), The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, 49 Willamette Law Rev. (2013).
- Marty Malin (Chicago-Kent), The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements, 27 ABA JLEL 149 (2012).
- Marty Malin (Chicago-Kent), The Arbitration Fairness Act: It Need Not and Should Not Be an All or Nothing Proposition, 87 Indiana L.J. 289 (2012).
- Deborah Thompson Eisenberg (Maryland), Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases, 57 NYLS L. Rev. (2013).
Tuesday, November 13, 2012
Thanks to Nicole Porter (Toledo, Visiting at Denver) for brining to my attention a Symposium Honoring the work of Professor Ann Scales. Although not directly employment-related, this symposium should be of interest to folks whose labor and employment law scholarship overlaps with Feminist Legal Theory.
Ann McGinley (UNLV) will be one of the speakers at the symposium.
The rest of the details on the Scales Symposium can be found here.
Monday, November 12, 2012
Henry Drummonds (Lewis and Clark College - Law School) has posted on SSRN his forthcoming piece in the Willamette Law Review: The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush.
Here is the abstract:
Prompted by a dispute over a labor arbitrator’s controversial reinstatement award in favor of an Oregon police officer who fatally shot a suicidal black man in the back after the man’s family had called the police for help, this article argues for a revitalized public policy exception to arbitral award enforcement. In this view, the public policy exception sometimes suffers from too cribbed an interpretation by both management and union lawyers, arbitrators, and reviewing courts and labor boards. At the same time a revitalized public policy exception must be applied judiciously so as not to undermine the bedrock labor relations policy embodied in the Steelworkers Trilogy favoring final and binding arbitration of workplace disputes in the unionized sector.
Drawing on lessons from a close reading of the three leading public policy decisions of the United States Supreme Court — herein dubbed the “Public Policy Trilogy” — the article shows how reviewing bodies SHOULD review de novo the question whether reinstatement REMEDIES, and not the underlying employee conduct, comply with clearly defined public policies. The Steelworkers Trilogy can be accommodated by confining the public policy review to the question of reinstatement — as distinct from the question whether the arbitral finding of a contract violation draws its “essence” from the collective bargaining agreement — and further, by basing the public policy review on facts found by the arbitrator in accordance with the parties’ agreement to submit their dispute to “final and binding” arbitration. These principles derive from a close reading of the Supreme Court’s holdings and discussion in the Public Policy Trilogy. The article shows how public sector cases in the private sector, and in the public sector in Oregon, Illinois, and Pennsylvania, while largely consistent with this more nuanced view of the Trilogy, have occasionally strayed from these teachings and too narrowly applied the public policy exception.
Very interesting insights into a very important area of labor arbitration law. Check it out!
Proposal 2 would have created constitutional protection for public-sector bargaining in Michigan. Passage in that state seems like it would have been a no-brainer -- except that it didn't pass, and it didn't pass by a relatively wide margin. Dennis Nolan flagged the last Wedensday as one as worth blogging about, but the usual folks I might go to in Michigan to explain what had happened were at a loss.
Here's one possibility, from Detroit Free Press's Brian Dickerson:
We share organized labor's anger at Republicans who want to make unions the scapegoats for decades of municipal mismanagement. But we also understood that, at the end of the day, Proposal 2 was designed to erect a firewall not just against labor's opponents, but against the democratic process itself.
And we reasoned that, in an era when the pie is shrinking for most Michiganders, the notion that anyone's share should be protected by constitutional armor was simply unfair to everyone else.
Barry Goldman suggests that perhaps Proposal 2 was defeated because "(a) No is the default vote, (b) the vote really meant a pox on both your houses."
If you have any insight, please leave a comment.