Friday, March 2, 2012
D.C. District Court Judge Berman issued her opinion today in NAM v. NLRB, the challenge to the NLRB's notice posting rule. She upheld the substance of the rule, conlcuding that it was within the NLRB's powers. However, she rejected the rule's tolling of the statute of limitations against employers who don't post, holding that it was contrary to the NLRA's explicit time period. The opinion suggests that if the NLRB had merely permitted tolling in exceptional cases, it would've been OK, but making tolling the default result was not.
Judge Berman also interpreted the rule as a stating that the failure to post is a per se Section 8(a)(1) violation and held that this exceeded the Board's power. The main reason is that she interprets the rule as finding that the failure to post/inform is always considered interference, which she held is inconsistent with 8(a)(1). That said, she acknowledged that the failure to post can be interference and allows the Board to determine whether the failure to post violates 8(a)(1) on a case-by-case basis.
This qualification really isn't a big deal, as the Board will likely produce some boilerplate language and find an 8(a)(1) in most of time, except for cases with special circumstances--that is, pretty much what it would've done anyway. This brings me to a quibble with the decision. Even if the per se interpretation is correct (I'm not so sure it is given the "may find" language in the actual rule, but it's a reasonable interpretation of the entire regulation), Judge Berman's analysis of Section 8(a)(1) looked like something done by a judge that never sees NLRB cases, which is not surprising from a district court. In particular, she interprets 8(a)(1) almost entirely by using a dictionary to define its terms, without reference to the substantice interpretation by any NLRB cases. As a result, she doesn't acknowledge or recognize that 1. Section 8(a)(1) cases touch on conduct--even unintentional--that is "likely" to infringe employees rights rather than actually infringes; and 2. that the NLRB always balances the parties' interests in Section 8(a)(1) cases, even where there is interference. Neither is crucial to the decision, but as I was reading, I got increasingly alarmed by cites to dictionaries without any reference to NLRB cases on point. One point that was more central to the main question of whether inaction could violate Section 8(a)(1) was her dismissal of the Board's citation to Truitt. She distinguishes that case because the Supreme Court only discusses Section 8(a)(5), even though the Board found "violations of Section 8(a)(1) as well." Of course, what she doesn't seem to realize is the existence of dependent 8(a)(1) violations, which certainly existed in Truitt. A better rejoinder was her comment that in Truitt cases, the Board makes a case-by-case analysis--an analysis that, under her interpretation, would not happened pursuant to this rule.
One question I have is what the NLRB argued about the per se v. case-by-case interpretation. Did it claim that it would automatically find an 8(a)(1) violation if a notice wasn't posted? Any insights on this would be welcome in the comment section.
Hat Tip: Patrick Kavanagh
Tuesday, February 28, 2012
I am cross-posting, with permission, Bill Henderson's post on The Legal Whiteboard (if you haven't checked out the Whiteboard blog, take a look -- it's a great resource on the marketplace for legal education; if you haven't heard Bill speak on the economics of legal education, invite him to speak at your school. His data-driven message is sobering to say the least.).
An interesting study on Facebook as a job predictor is making the rounds on the internet. It is a serious study published in the Journal of Applied Social Psychology. Perhaps its most interesting feature is that it maps the content of participants' Facebook pages onto scales for the Big Five personality traits.
The Big Five are the five very broad but stable personality traits that have emerged from over 50 years of psychological research on personality and job performance. The Big Five are sometimes summarized by the acronym OCEAN: Openness to Experience, Conscientiousness, Extroversion, Agreeableness, and Neuroticism (this last measure is often referred to as Emotional Stability, which has a less clinical ring). Each of the Big Five traits is typically comprised of four of five subconstructs. (Go to this link to take for free the same Big Five assessment used in the study.)
The Big Five are connected to research on lawyers through the landmark Shultz-Zedeck Predicting Lawyer Effectiveness study. One of the personality assessments utilized by Shultz and Zedeck was the Hogan Personality Inventory (HPI), which is seven-scale instrument based on the Big Five. Shultz and Zedeck identified 26 lawyer effectiveness factors and subsequently assembled a sample of peer and supervisor evaluations on over 1,100 graduates of UC Berkeley and UC Hastings. The HPI scales were positively correlated at statistically significant levels with a combined 25 of 26 effectiveness factors. In contrast, academic predictors (UGPA, LSAT and 1st year grades) were correlated with a combined total of 11 effectiveness factors, albeit two of the correlations were negative.
One of the limitations of most personality tests is the self-reported nature of the data. The test-taker is often interested in managing impressions. In contrast, the test adminstrators are trying to measure the respondents' actual attitudes and behaviors. Well, on that count, Facebook reveals quite a bit. In fact, raters with a mere two hours of training obtained Big Five measures of study participants' personalities that were (a) strongly correlated with the self-reported measures but (b) better predictors of subsequent job performance.
The implication? Someday a computer spider may be mining Facebook pages to create employability profiles on job candidates. Such a product may be too cheap and too useful for employers to ignore -- potentially better and faster, and less discriminatory, than the current ubquitious Google search.
The attacks on public sector collective bargaining rights during the past year have arguably been the most important development in U.S. labor and employment law in recent memory. While the most famous and radical moves took place in Wisconsin and Ohio, over a dozen states have enacted significant restrictions on the rights of government employees and their unions. This is important, not least because public sector workers now comprise more than half the total number of union members in the U.S., and because of the broader political implications of “defunding” and otherwise crippling a major constituent of the Democratic Party.
This article, based on a symposium paper, discusses not only these developments but also other key events in public sector labor relations in recent years: the battle for collective bargaining rights at the Transportation Safety Administration; and recent cases interpreting a 2007 decision of the Missouri Supreme Court which held that the Missouri Constitution provided a right to collective bargaining for all public employees in the state (without defining what that right specifically entails).
Monday, February 27, 2012
Congratulations to University of Tennessee College of Law (and Alex Long) on the addition of Brad Areheart to the faculty. I've had the pleasure of knowing Brad for several years -- he's been a regular at the annual Colloquium on Current LEL and at several other conferences -- and I've found that he is as terrific a person as his scholarship is strong. Brad will finish out the semester as a VAP at Stetson before moving to Knoxville.
Here's Brad's bio from bepress:
Professor Bradley A. Areheart is a Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law, where he teaches Contracts, Disability Law, Health Law, and Intellectual Property. His research focuses on civil rights, and thus far has included scholarship on antidiscrimination theory, cyberbullying, disability theory and discrimination, genetic discrimination, privacy, and Title VII. Professor Areheart’s recent articles have appeared or will appear in the Indiana Law Journal, Georgia Law Review, Alabama Law Review, and Yale Law & Policy Review.
Before joining Stetson as an inaugural Bruce R. Jacob Visiting Assistant Professor of Law, Professor Areheart worked as a litigation associate at DLA Piper in Austin, Texas, where his practice included complex commercial and intellectual property litigation. Before that, he was an associate at Jenner & Block in Dallas, Texas. Professor Areheart graduated cum laude from Baylor University with a degree in philosophy. He earned his law degree from the University of Texas School of Law, where he graduated with honors and was a member of the Texas Law Review.
On April 25-27, 2012, the National Symposium on Technology and Labor and Employment Law will be taking place at NYU School of Law. The Symposium is an annual event organized by the ABA Labor and Employment Section's Technology in the Practice and Workplace Committee. The Symposium is being co-sponsored this year by the Center for Labor and Employment Law at NYU School of Law. The Symposium brings together practitioners, academics, judges and technology experts to examine cutting edge technology issues in labor and employment law. Panel discussions at the April conference will include Cyber Crimes and the Workplace, Workplace Technologies and Implications for the Financial Services Industry, Technology-Enabled Representational Elections, Workplace Legal Issues Related to Social Media, and Developments in the Use of Technology for Workplace Accommodations. NYU Professor Stephen Gillers will be headlining a discussion of the legal ethical issues associated with cloud computing, outsourcing and attorney online marketing.
- Sarah Marsden, Assessing the Regulation of Temporary Foreign Workers in Candada, 49 Osgoode Hall L.J. 39 (2011).
- Victoria Schwartz, Title VII: A Shift from Sex to Relationships, 35 Harv. J. L. & Gender 209 (2012).
- Matthew D. Moderson, The NLRB After New Process Steel: The Case for Amending Quorum Requirements Under the NLRA, 80 UMKC L. Rev. 463 (2011).
Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.
First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur.
Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine.
After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.