January 25, 2013
Recently Published Scholarship
- Paul M. Secunda, Privatizing Workplace Privacy, 88 Notre Dame L. Rev. 277 (2012).
- Jason R. Bent, An Incentive-Based Approach to Regulating Workplace Chemicals, 73 Ohio St. L.J. 1389 (2013).
- Jessica R. Vartanian, Speaking of Workplace Harassment: A First Amendment Push Toward a Status-Blind Statute Regulating "Workplace Bullying", 65 Maine L. Rev. 175 (2012).
- Taylor Robertson, What Can Brown Do for You? You're Fired: Punitive Damages for Rogue Employee Conduct in Jones v. UPS, 37 Okla. City U. L. Rev. 569 (2012).
D.C. Circuit Holds NLRB Recess Appointments Unconstitutional
UPDATE: Chairman Pearce just released a statement that is in line with my prediction that the NLRB would continue to decide cases despite the ruling (not that my prediction was particularly bold; the Board is just doing what it did during the two-member issue).
The D.C. Circuit just struck down the NLRB recess appointments. I haven't had time to more than glance at the decision, but it obviously has major ramifications, as--like the New Process, two-member Board issue--it holds the prospect of voiding decisions. It also could play a role with the new Consumer Financial Protection Bureau, which also had a recess appointment at the time. I suspect that what we will see next is a reprise of the New Process situation, in which the NLRB uses its nonacquiescence policy and continues to issue decisions and we'll have to wait for the Supreme Court to see what happens to those decisions. I did a rough Westlaw search and came up with 499 cases in which Members Block, Flynn, or Griffin participate, so we're talking about a lot of cases that could be in jeapardy, including subsequent ones if the Board does what I just predicted it will do.
In Noel Canning, the court agreed with the NLRB's substantive findings in the case, but that was mooted by its holding that the NLRB recess appointments were unconstitutional. After holding that it had jurisdiction to decide the matter--no small thing given the separation of power tensions at play--the court essentially held that the Senate really wasn't in recess. They defined recess as when Congress isn't in one of its regular two or three sessions. The decision is a long one and reaches out to other related appointment practices (prompting a concurrence that objected to overreach). Moreover, in a 2004 case, the 11th Cir. held to the contrary, so we might expect a Supreme Court grant of cert. if the D.C. Circuit doesn't take this en banc. On that note, the panel was quite conservative (Sentelle, Henderson, and Griffith--who, coincidentally, filled the slot that a lawyer in the case, Miguel Estrada, was originally nominated for), so it's not impossible that the full court will re-examine this. Stay tuned.
Hat Tip: Michael Lightner
January 24, 2013
Former Law Prof Seth Harris Appointed Acting U.S. Secretary of Labor
Finally some sanity has returned to this insane world and Seth Harris (formerly a labor and employment law prof at New York Law School) and current Deputy Secretary of Labor has been named Acting Secretary of Labor with the departure of Hilda Solis. President Obama has not yet named a successor to Solis, but as far as I am concerned, I would just take the Acting title away from Seth and let him have at it.
You see, my friends, in my ideal world, law professors should run everything - especially the Labor Department. :>)
Henderson: Crisis in Law Schools is a Labor Market Issue
This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.
One of Bill's critical arguments is that the law school crisis is largely a labor market issue: too few law school graduates chasing too few jobs and a mismatch between the skill sets legal employers need and the skill sets that law schools provide.
[T]he financial viability of law schools depends upon three interrelated factors: (a) students wishing to enroll, (b) an ability to pay, and (c) professional employment upon graduation. Of these factors, the professional employment is the most important because, if present, the first two factors will take care of themselves.... If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the gradutes of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement.
If you plan to be involved in legal education for more than the next 3-5 years, I would highly recommend reading this article.
January 23, 2013
2012 Union Density
The Department of Labor released its data on union density for 2012 and the news was not good for unions. Among the highlights (or lowlights, depending on your view): private sector membership dropped from 6.9% to 6.6%; public sector membership dropped from 37% to 35.9%; and the number of union members fell by 400,000, despite a 2.4 million increase in jobs. Moreover, both Wisconsin and Indiana saw huge drops following their anti-union legislation. Steven Greenhouse, at the New York Times, has a good article exploring those state issues as well as the overall trend.
For those of you interested in comparing the historical numbers and other breakouts of the data, I'll put a plug in for unionstats.com (full disclosure: my father is one of the authors), which provides a more user-friendly version of the DOL stats (it obviously hasn't been updated with the new numbers yet).
Ban on Women in Combat Positions To Be Lifted
Outgoing Secretary of Defense Leon Panetta and Army General Martin Dempsey, Chairman of the Joint Chiefs of Staff are apparently going to announce tomorrow that they are lifting the ban on women serving in combat positions with a goal towards integration by 2016. In November, four servicemembers represented by the ACLU sued to lift the ban, arguing that women were already serving in most combat roles but just weren't getting recognized for it. Advancement to the highest levels of military service depends on service in combat.
This move comes via a recommendation from the Joint Chiefs of Staff, which earlier this month issued a "Women in Service Implementation Plan" calling for this change; that memo stated in part, "[t]he time has come to rescind the direct combat exclusion rule for women and to eliminate all unnecessary gender-based barriers to service."
For more information see the news stories here, here, here, and here. Mandatory regisration with the Selective Service Administration does not appear to be addressed by the recommendation; perhaps that is not widely enough seen to be a gender-based barrier to service.
This is a big step forward potentially for sex equality in the military, although full implementation will take some time. I hope that part of that implementation involves addressing the serious problem of sexual violence in the military as part of a comprehensive plan. I also think that the effect of this change in policy does a lot to expand women's rights more broadly in this country. To the extent that military service is one of the responsibilities of full citizenship, and I think most people agree that it is in at least some cirumstances, allowing women to serve the same way men do solidifies our claim to citizenship and authority to set national policy.
Maslanka on Nassar
Mike Maslanka has a nice post at Work Matters on the importance of the retaliation case the Supreme Court has just accepted certiorari on, Nassar v. University of Texas Southwestern Medical Center. Here's an excerpt:
Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action. ... My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive. SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.
Lobel Named One of "The 50 Sharpest Minds of Israel"
Congratulations to Orly Lobel (San Diego) for being named one of "The 50 Sharpest Minds of Israel" by The Marker Magazine, Israel’s leading business journal. Featured in the magazine's January 2013 issue, Orly discusses her career choice, connections to Israel, upcoming book, and current research in the article. Read the article in Hebrew online or see the English translation at USD's press release. Here's a representative excerpt:
In a sunny morning in north Tel-Aviv, she closes our conversation by quoting Confucius: “Choose a job you love, and you will not have to work a day in your life.” This may be the secret to her happiness. Lobel is a professor of law at the University of San Diego, and one of the foremost scholars in her field. She became a professor at young age, published numerous studies, received awards and grants, and this year was one of the five scholars to receive a University Professorship at her university. Recently, she was invited to speak at the United Nations headquarters in Vienna about her research on human capital and the flow of knowledge – a rare honor for Israeli academics.
Recently Published Scholarship: OSJDR Symposium on ADR in Public-Sector Labor Disputes
vol. 28 #1 (2013)
Symposium 2012: The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve, and How We Can Learn from the Private Sector
- Michael Carrell & Richard Bales, Considering Final Offer Arbitration to Resolve Public Sector Impasses in Times of Concession Bargaining, p. 1.
- Howard S. Bellman, The Importance of Impasse Resolution Procedures to Recent Revisions of Wisconsin Public Sector Labor Law, p. 37.
- Charles B. Craver, The Use of Alternative Dispute Resolution Techniques to Resolve Public Sector Bargaining Disputes, p. 45.
- Ariel C. Avgar, J. Ryan Lamare, David B. Lipsky, & Abhishek Gupta, Unions and ADR: The Relationship between Labor Unions and Workplace Dispute Resolution in U.S. Corporations, p. 63.
- Joel Cutcher-Gershenfeld & Saul A. Rubinstein, Innovation and Transformation in Public Sector Employment Relations: Future Prospects on a Contested Terrain, p. 107.
- Martin H. Malin, Two Models of Interest Arbitration, p. 145.
- Lamont E. Stallworth & Daniel J. Kaspar, Employing the Presidential Executive Order and the Law to Provide Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA), p. 171.
Davidov on the Goals of Regulating Work
Guy Davidov (Hebrew U. Jerusalem) has just posted on SSRN his article (forthcoming Toronto L.J.) The Goals of Regulating Work: Between Universalism and Selectivity. Here's the abstract:
What are the goals of labour and employment laws? For purposes of reforming, interpreting and defending such laws, it is important to articulate their goals. This article is concerned with the general goals of regulating work relations (i.e. goals shared by different regulations in this field), at the level of normative justifications. The various goals mentioned in the literature are reviewed and discussed. It is argued that these goals can be classified on a continuum between selective (in the sense of intending to help a specific group – employees) and universal (goals which are seen as advancing the interests of society at large and employers as well). It is argued that a trend can be identified, in recent years, from selective to universal articulations of goals. The difficulties with this trend are then exposed.
January 22, 2013
An Analysis of the 7th Circuit's Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision
On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin's decision in the same case.
The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.
That only "most" public sector workers in Wisconsin were covered by Act 10 - most general public sector employees were, but most public safety workers were not - became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.
The Western District of Wisconsin held that Act 10's distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis.
The 7th Circuit in a 2-1 decision Friday upheld the law in its entirety. As an initial matter, the state was found to have a legitmate basis for denying some public employees collective bargaining rights but not public safety officers because of concerns about the public peace and order after the law passed. More interestingly, the Court said the First Amendment was not violated with regard to the anti-dues checkoff provisions because the state was seeking to subsidize some union speech, but not others. In such subsidy cases, the distinctions have to be reasonable and viewpoint neutral. The majority of the 7th Circuit held that it was reasonable because of concerns relating to labor piece and not viewpoint discriminatory because elections have consequences and politicians are permitted to favor one group of employees over another. The 7th Circuti also held that the anti-dues checkoff provisions and recertification provisions were not a pretext for viewpoint discrimination (this is where dissenting Judge Hamilton disagreed and would have found that the dues checkoff provision of Act 10 violated the First Amendment as a pretext for viewpoint discrimintation).
With regard to the equal protection claims, the union dues and recertification provisions were found to meet the low standard of rational basis review because of the labor peace concerns the majority mentioned throughout the opinion.
Couple of thoughts on this long 74-page opinion:
1. It does not in any way put the Act 10 litigation to rest. This case merely decided one set of federal constitutional issues revolving around distinctions made between public safety officials and other public employees in Act 10. It does not have anything to do with Judge Colas decision made in Dane County Circuit Court in September, which is based on different reasoning all together and still at this point finds the law invalid (at least for municipal employees). Additionally, there is other Act 10 litigation pending, including public pension litigation involving constitutional impairment of contract claims and state constitutional home rule charter claims.
2. Given that the whole raison d'etre behind Act 10 when announced was to help trim the budget deficit, it is remarkable that the 7th Circuit barely discusses the State's assertion in this regard and relies primarily for the distinctions in the law based over concerns for labor peace. This may be in fact one of the concerns for collecitve bargaining distinctions, but to completely ignore the asserted budgetary reasoning , which had nothing to do with the dues checkout and recertification provisions, is outlandish.
3. It is also remarkable that two 7th Judges could say with a straight face that the law was not viewpoint discriminatory given that the union dues and recertification provisions were clearly a thinly veiled attempt to punish public unions that did not support Walker's 2010 election. I think the dissenting judge was right when he said this was really a limited public forum case (not just a subsidy case) and that al least the union dues provisions was clearly viewpoint discriminatory under the appropriate First Amendment analysis.
4. There could potentionally be a en banc review or even a petition for cert to the Supreme Court, but I think this decision is largely the last word on these Act 10 issues.
5. I think it is also remarkable that the 7th Circuit ended up basing its decision largely on arguments that were not made before the district court and should have been considered waived on appeal under basic fundamentals of appellate review.
In all, not a very convincing decision from my standpoint and another blow for public unions in Wisconsin. In the end, litigation may lead to some changes in the law, but there really is no substitute for either seeking to amend the Wisconsin constitution to provide for public employee bargaining rights or getting the necessary Democratic majorities in the legislative chamber and a Democratic governor in Madison. Unfortunately, the confluence of those events may be a long way off and public unions are likely to suffer in the meantime.
SCOTUS grants cert in retaliation mixed motives case
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
The SCOTUSblog file with links to documents is here.
January 21, 2013
From Katharine Brooks at Psychology Today:
The recent story involving Notre Dame football player Manti Te’o’s fake internet girlfriend has brought the term “catfish” to a mainstream audience. The Urban Dictionary defines catfish as “someone who pretends to be someone they're not using Facebook or other social media to create false identities, particularly to pursue deceptive online romances.” But the loathsome practice of catfishing can also be applied to individuals who pretend to be employers and set up false identities to deceive or steal from vulnerable job seekers.
The least damage a catfish job scammer will do is waste your time. The worst is that they will empty your bank account and steal your identity. Catfish jobs are often phishing scams: thinly veiled attempts to get you to part with personal information that can then be used to steal your identity. Therefore, do not send your credit card numbers, social security number, birthdate, etc., unless you are absolutely sure the company and the opportunity are legitimate.