December 22, 2012
Fisk & Chemerinsky on Political Speech and Association Rights after Knox v. SEIU Local 1000
Catherine Fisk and Erwin Chemerinsky have posted on SSRN a draft of their article, forthcoming in the Cornell Law Review. The article compares the Court’s treatment of union objectors to its treatment of dissidents within other types of associations, uncovering a long list of inconsistencies. (I have previously written about the tension between the Court’s approach to shareholder objectors in Citizens United and its approach to union objectors in cases like Davenport and Ysursa, but Fisk and Chemerinsky cast a broader net, using last Term’s Knox decision as a starting point.) For example, they raise questions about why the Court excludes public employee speech from First Amendment protection altogether in Garcetti, but provides “emphatic protection” to those same employees when they object to paying union dues. Likewise, they note discrepancies in the Court’s compelled speech cases, in which the Court favors objectors in the union context, yet rejects similar objectors’ arguments in cases like University of Wisconsin v Southworth.
The article also discusses some of the possible consequences of Knox’s dicta about the First Amendment rights of union objectors. That dicta signals not only a possible transition from an opt out default (in which public sector bargaining unit members pay the portion of union dues that go to union political speech unless they opt out) to an opt in default, but also a greater skepticism about whether requiring public sector employees to pay for collective bargaining is permissible under the First Amendment. Finally, it proposes a path to reconciling the conflicting cases, favoring an approach that allows associations—including corporations and unions—to spend money on political speech over members’ objections.
The article and the underlying cases it discusses raise a number of interesting questions about the Court’s views about the value and purpose of various types of associations, including unions. It also surfaces some of the Court’s assumptions in these cases, particularly about voluntariness – for example, the Article challenges the Court’s assumption that it is more difficult for employees in unionized workplaces to engage in self-help if they want to avoid paying for union political speech (for example, by going to work at a non-union workplace) than it is for shareholders or even members of other types of groups to avoid funding unwanted political speech.
Finally, I note that this article is especially interesting against the backdrop of the DC Circuit’s decision in Ampersand Publishing v. NLRB. Ampersand’s view of the intersection of employer First Amendment rights and employee Section 7 rights suggests that employees may also lose Section 7 protection when they engage in collective action that involves protest against an employer’s political spending. Thus, not only does Knox provide additional limits on unions’ sources of funding for their own political speech (at least in the public sector), but employees have now potentially lost another avenue through which they might seek to counter corporate political speech.
December 21, 2012
More Big NLRB Decisions
As is often the case when a Board member is set to leave, the NLRB is issuing many big decisions. As an aside, Member Hayes is leaving, which will leave the Board with just three Democratic appointees. Although I'm certainly more sympathetic to their rulings, I do think the lack of a Republican presence on the Board is not a good thing. In addition to appearance issues of having only one side on the Board, a vigorous dissent can often improve majority decisions and provide some needed balance. Yet another negative side-effect of the mess that Board nominations have turned into.
We've posted on a couple of the decisions already (Hispanics United and WKYC-TV), The Board has nicely summarized those decisions and the others, which I'm now going to crib (I have said recently how much I like the Board communications efforts?):
Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express – In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
As Dennis Walsh pointed out to me, the significance of Alan Ritchey is that an employer might violate its duty to bargain by imposing individual discipline on an employee if it doesn't bargain with the union, and the significance of United Nurses is that unions are now able to classify some lobbying expenses. I'm curious to see whether the Board continues to issue similarly significant issues with only three members (e.g, Register-Guard, please!).
Hat Tip: Dennis Walsh
December 20, 2012
Hofstra Labor and Employment Law Journal's 30th Anniversary Symposium
To celebrate thirty years of publication, the Hofstra Labor and Employment Law Journal is holding the Journal’s 30th Anniversary Symposium titled “Past, Present, and Future: Thirty Years of Labor and Employment Law.” The Symposium will be on Friday, February 8, 2013, from 8:30AM - 5:00PM, at Sentry Centers Midtown East, 730 3rd Avenue, New York, NY 10017.
The Symposium will feature a keynote address from the current Chairman of the National Labor Relations Board, Mark Gaston Pearce, and four different panel discussions by leading practitioners and academics in a variety of substantive labor and employment law topics. The specific panels will focus on: a) Arbitration/Mediation in labor and employment law; b) Traditional labor law; c) Employee Benefits/ERISA; and d) Employment discrimination.
Interested parties can register for the Symposium here. Hofstra University School of Law will be offering CLE credit (interested parties can register to receive CLE credit for attending the Symposium at the same website) to attorneys in attendance.
Here is the Symposium schedule:
a) Panel #1: Arbitration and Mediation in LEL: 9:00-10:30AM
Employer Side Perspective: Jonathan Kozak, Partner, Jackson Lewis LLP – White Plains, NY
Employee Side Perspective: Wayne Outten, Managing Partner, Outten & Golden LLP – NY
Neutral Perspective: Robert Douglas, Arbitrator/Mediator – NY
International Law Perspective: Jacquelin Drucker, Arbitrator/Mediator – NY
b) Panel #2: Traditional Labor Law: 10:45AM-12:15PM
Employer Side Perspective: Michael Marino, Partner, Seyfarth Shaw LLP – NY
Employee/Union Side Perspective: Robert Archer, Managing Partner, Archer, Byington, Glennon & Levine, LLP – NY
Neutral Perspective: Michael Fischl, Professor of Law, Univ. of Connecticut School of Law
International Law Perspective: David Doorey, Ph.D, Associate Professor of Labour and Employment Law, York University – Toronto, Canada
c) Panel #3: ERISA/Employee Benefits: 1:30-3:00PM
Employer Side Perspective: Susan Hoffman, Co-Chair, Employee Benefits Litigation Practice Group, Littler Mendelson – Philadelphia, PA
Employee Side Perspective: Daniel Campbell, Professor – St. John’s Univ. School of Law
Neutral Perspective: Andrew Oringer, Senior Attorney, Dechert LLP – NY
International Law Perspective: Kathryn Moore, Professor – Univ. of Kentucky School of Law
d) Panel #4: Employment Discrimination: 3:15-4:45PM
Employer Side Perspective: Allan Bloom, Partner, Paul Hastings – NY
Employee Side Perspective: Adam Klein, Partner, Outten & Golden LLP – NY
Neutral Perspective: Deborah Malamud, AnBryce Professor of Law, NYU School of Law
International Law Perspective: Marjorie Culver, Partner, Seyfarth Shaw, LLP – NY
Injury During Sex is Work-Related and Compensable, Aussie Court Holds
The Australian Federal Court has dismissed an employer's appeal and thus let stand a ruling that a woman who was injured while having sex with her boyfriend in a hotel room while on a business trip was injured "in the course of employment" and therefore is entitled to compensation. The Australian News reports:
The woman who worked for workplace health insurer Comcare, claimed for facial and psychological injuries suffered when a glass light fitting came away from the wall above the bed in her motel room as she was having sex in November 2007.
The woman in her late thirties was required to travel to a country town by her employer when the incident occured. She arranged to meet a male friend there who lived in the town. They went to a restaurant for dinner and at about 10pm or 11pm went back to the woman's motel room where they had sex that resulted in her injury.
The male friend said in his statement at the time that they were "going hard” and he did not know if they bumped the light or it just fell off.
Here's a related story in USA Today.
NLRB Clarifies Social Media Case Analysis
The Board recently released its decision in Hispanic United of Buffalo, in which it clarified the analysis for Facebook and other social media cases. The facts are fairly typical for the increasing number of Facebook cases. One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss. The co-worker posted a message on her Facebook page noting the criticism, saying she had "about had it," and asking her fellow co-workers how they felt. Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers. The employer fired all five for bullying the critical employee on Facebook.
All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations--Meyers Industries--is applicable. There wasn't much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it's newer and cooler than more traditional forms of communication. This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it's obviously a lot more helpful for the Board to make that clear.
There was a dissent by Member Hayes, who did not think that the activity was intended for mutual aid and protection. The dispute largely boiled down to how important was the fact that the coworkers didn't expressly determine that their posts were intended as a defense against possible consequences resulting from the criticism (only the original poster knew that the criticism was going to be provided to the employer). The majority believed that it was enough that the coworkers were acting collectively to defend themselves against criticism that might affect their employment. But, this is really more of a case-specific issue; the takeway from the decision is that the Meyers analysis applies to social media.
Hat Tip: Bill Herbert
December 19, 2012
Dues Check-Off Now Survives Contract Expiration
Today, the NLRB released its decision (3-1) in WKYC-TV, in which reversed the long-standing rule Bethelem Steel that agreements for dues checkoffs will not continue after the contract expires. The new rule will not apply to pending cases. The essence of the majority decision is that because dues checkoffs are mandatory subjects of bargaining, the normal Katz rule for such topics--that they must continue while a new contract is being negotiated--should apply unless there is a reason for an exception; the majority found that there wasn't. In making this conclusion, the majority distinguished clauses that involved the waiver of rights, like no-strike clauses. The majority also criticized Bethelem Steel for treating dues checkoff provisions the same as union security clauses (in part because of its reading of Sections 8(a)(3) and 302(c)).
Member Hayes dissented, arguing that there was no evidence that the old rule wasn't working. Further, he disagreed with the majority's statutory interpretation. He also stressed that limiting dues checkoffs to an active collective-bargaining agreement was more consistent with the concept of voluntary unionism.
This last point of Member Hayes is important and may be what prompted this case. Although I don't know, I wonder whether the Board was at least partially motivated by the Supreme Court's recent dues cases and their more anti-union view of voluntarism (although there had been earlier moves to reverse this precedent, most recently in the split Hacienda case in 2010). Perhaps this case will be part of a larger answer that the Board will try to make. We'll have to see.
First Amendment v. NLRA
The D.C. Circuit just issued a decision, Ampersand Publishing v. NLRB, which significantly limits the ability of newspaper and other media employees to engage in collective activity. The new owner and publisher of the Santa Barbara News-Press began exerting more control over the paper's reporting, among other things. The reporters began protesting in a variety of ways, including pushing for a consumer boycott of the paper and seeking to unionize. As part of their protest, the reporters delivered four demands to the paper: "1. Restore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side. 2. Invite back the six newsroom editors who recently resigned . . . . 3. Negotiate a contract with the newsroom employees governing our hours, wages, benefits and working conditions. 4. Recognize the [union] as our exclusive bargaining representative." The paper responded to these activities by, among other things, firing several pro-union employees; the stated reasons included biased reporting and participation in a public rally against the paper. The Board found that these terminations were unfair labor practices, in addition to other retaliatory acts.
Normally, this case would be a no-brainer. But, the First Amendment's protection of the press gives newspaper publishers (not reporters) additional protection against government regulation. The Board did not dispute this basic principle, but found that the employees were objecting to changes that affected their professional norms and day-to-day duties. The D.C. Circuit disagreed, but this dispute isn't the main issue. What's more important is the court's holding that even if the employees were engaged in both protected (e.g., seeking to unionize) and unprotected (e.g., seeking to change editorial content) activity, the First Amendment allows the employer to retaliate against the employees. The court did not clarify what the limits of this decision is—that is, how much editorial control must be wrapped up with the employees' activities to render them unprotected. The court stressed that editorial control was the "main" issue in the case and also cited pornography cases that suggested the need for a nexus between pornography and socially redeeming speech, stressing that merely throwing a wage request into an unprotected protest isn't enough. This leaves unions or employees—to the extent they have any idea about this—without much guidance on how they can engage in collective activity against their media employers. That, in turn, gives employers a potential free reign to retaliate against collective activity if it touches too close to editorial control.
Henson: T7 Is a Balancing Act
Chuck Henson (Missouri - Columbia) has just posted on SSRN his provocative article (2 University of Miami Race & Social Justice Law Review 41 (2012)) Title VII Works – That's Why We Don't Like it. Here's the abstract:
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article argues that State law provides the best opportunity to seek the eradication of employment discrimination.
Attorney Fees in T7 CasesMichael Maslanka has a nice post over at Work Matters on the split among the federal circuit courts on whether a district court judge, in awarding attorneys fees to a successful Title VII plaintiff, can consider evidence that the plaintiff rejected a pretrial settlement offer that significantly exceeded the jury award.
Italian Colors to be Argued February 27
Thanks to Ian Mitchell for alerting me that the Supreme Court will hear oral arguments on February 27 in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012). At issue is whether "interferes with the vindication of federal statutory rights" survives as a defense to lopsided arbitration agreements.
December 17, 2012
Secunda Named to DOL's ERISA Advisory Council
Congratulations to our own Paul Secunda (Marquette). Today Secretary of Labor Hilda Solis announced his appointment to the 2013 Advisory Council on Employee Welfare and Pension Benefit Plans – known as the ERISA Advisory Council. Here's a description; Paul will be representing the public:
The 15-member council provides advice on policies and regulations affecting employee benefit plans governed by the Employee Retirement Income Security Act. By law, members of the council serve for staggered three-year terms. Three members are representatives of employee organizations (at least one of whom represents an organization whose members are participants in a multiemployer plan). Three members are representatives of employers (at least one of whom represents employers maintaining or contributing to multiemployer plans). Three members are representatives of the general public. There is one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management and accounting.
Zimmer on Antidiscrimination
The thesis of this article is that the national project to redress discrimination, which has waxed and waned through the decades since the enactment of the Civil War Amendments, is now being squeezed toward oblivion by important substantive and procedural decisions of the Roberts Supreme Court. While the procedural restrictions are based on new interpretations of the Federal Rules of Civil Procedure, the substantive restrictions, ironically, are primarily driven by a narrow vision of the purpose of the Constitution’s equal protection clause. Now equal protection law has been turned upside down, with more protection provided the majority against governmental action aimed at redressing the present consequences of historic discrimination while members of groups that have been its victims face increasingly difficult barriers to their attempts to redress the present discrimination they face.
Section I will describe the procedural barriers the Roberts Supreme Court has erected to prevent discrimination claims from being decided on the merits in court. These barriers divert claims from court to arbitration, even if there is no actual consent to arbitrate by the claimant. Arbitration cuts off the right to a jury trial and may prevent bringing a class action. If arbitration is avoided, the Court has imposed a “plausibility” standard at the pleading stage of litigation which allows lawsuits to be dismissed before discovery takes place. Further, the Court has limited the possibility of bringing class actions. Section II will show how the substantive law applied to discrimination claims has been narrowed for claims typically brought by women and people of color, while broadening claims brought by the white majority. Section III will look to the immediate future of the antidiscrimination project in the upcoming decision by the Supreme Court of an affirmative action case, Fisher v. University of Texas. Section IV will conclude.
Labor Department Announces Members of New Whistleblower Protection Advisory Committee
The Labor Department announced this past Thursday, the members of the new Whistleblower Protection Advisory Committee. The Committee wll consult with DOL on ways to improve an array of federal government whistleblower programs.
A number of law professors are members of the Committee, representing the general public. They include: Richard Moberly (Nebraska), Committee Chairwoman Emily Spieler (Northeastern), and Jonathan Brock (retired University of Washington).
For more information about the Whistleblower Protection Advisory Committee, you can read the DOL website page on the Committee (which comes under the jurisdiciton of OSHA).
December 16, 2012
Recently Published Scholarship
- Michael H. LeRoy, An Invisible Union for an Invisible Labor Market: College Football and the Union Subsitution Effect, 2012 Wis. L. Rev. 1077.
- Richard Moberly, Sarbanes-Oxley's Whistleblower Provisions: Ten Years Later, 64 S. Carolina L. Rev. 1 (2012).
- Miriam A. Cherry, The Gamification of Work, 40 Hofstra L. Rev. 851 (2012).
- Zoran Tasic, The Speaker the Court Forgot: Re-Evaluating NLRA Section 8(b)(4)'s Secondary Boycott Restrictions in Light of Citizens United and Sorrell, 90 Wash. U. L. Rev. 237 (2012).
- Charles W. Garrison, Once Is Enough: The Need to Apply the Full Ellerth/Farragher Affirmative Defense in Single Incident and Incipient Hostile Work Environment Sexual Harassment Claims, 61 Catholic U. L. Rev. 1131 (2012).