February 1, 2013
Chamber Urges Employers to Appeal Prior Adverse Board Rulings
Jeff discussed in an earlier post the effect of Noel Canning, in which the D.C. Circuit held that recess appointments to the NLRB are unconstitutional. Now Laura Cooper (Minnesota) sends word that the U.S. Chamber of Commerce is urging its members to use Noel Canning to challenge recent -- and even longstanding -- pro-employee Board decisions.
Here's an excerpt from what appears to be a Wall Street Journal article reprinted by the Chamber [but check out the date on the document!]:
The U.S. Chamber of Commerce is advising companies to try to reverse rulings the National Labor Relations Board made against them in the past year, following a court decision that has undermined the federal panel.
The chamber's push, outlined in a memo the business trade group began distributing to its members Wednesday, is the latest fallout from last week's federal court ruling that voided President Barack Obama's three recess appointments to the five-slot labor board.
NLRB General Counsel: NYC Bus Strike Not Unlawful
The NLRB Office of General Counsel has found that a strike by union bus operators against a group of New York school bus companies does not violate the National Labor Relations Act because the union has a primary labor dispute with the employers.
In a charge filed with the NLRB Brooklyn office on January 16, the group of 20 bus companies alleged that a strike called by Local 1181-1061 of the Amalgamated Transit Union was unlawful because the union’s primary dispute was with the New York Department of Education, which contracts with the bus companies for service to area schools. The NLRA prohibits unions from striking secondary employers in order to pressure the employer with whom they have a dispute.
In an Advice Memorandum issued today, however, the Office of General Counsel found that the bus companies, which maintained collective bargaining agreements with the union for many years before they expired in December, are primary employers in the labor dispute, along with the Department of Education. “It is well established that more than one employer may be a primary employer” under the NLRA, the memo explained.
Accordingly, the Regional Office will dismiss the charge alleging an illegal secondary strike.
Good news for the striking drivers, although it's still not clear whether a resolution is in sight.
January Employment Data
The Department of Labor issued its January employment data today. The big numbers: 157,000 jobs added, with the unemployment rate at 7.9% (from 7.8% the previous month). But perhaps the more important figures from the report were revisions in previous months' data, with significant uptick. The DOL revised its November data to show that 247,000 jobs were added in that month and 296,000 jobs in December--an additional 127,000 jobs than initially reported in those two months. Most sectors saw job gains, with one of the exceptions being public-sector jobs, which continues to be a drag on employment. The number of discouraged workers also dropped by 255,000 in a non-seasonally adjusted comparison to last year. All in all, that's not bad, particularly the previous months' revisions.
January 31, 2013
ABA Symposium on Tech in LEL
The ABA has reserved a block of rooms at the Bancroft. Reservations may be made by calling the hotel directly at 800-549-1002 and referring to the "ABA Technology in the Practice and Workplace Meeting."
Josh Eidelson has a really good article at The American Prospect on Alt-Labor. These are groups, like worker centers, that represent workers but do not attempt to engage in collective bargaining on their behalf. The article delves into their history, their rise in numbers, and prospects for the future. An excerpt:
The [Restaurant Opportunities Center] ROC is a labor group. But it’s not a union. It represents a new face of the U.S. labor movement—an often-ignored, little-understood array of groups organizing workers without the union label. As unions face declining membership these workers’ groups—like the mostly union-free job sectors they organize—are on the rise, particularly in New York. Because of their efforts, more restaurant workers in the city get paid sick days, domestic workers receive overtime pay, and taxi drivers will soon have health insurance.
Twenty years ago, when Rutgers labor professor Janice Fine first set out to count the nonunion groups that were organizing and mobilizing workers, she found just five in the entire country. Today, her tally stands at 214. These groups organize farmworkers and fashion models. They go by names like “workers’ centers” and “workers’ alliances.” Some are rooted in the immigrant-rights movement as much as the labor movement. Lacking the ability to engage in collective bargaining or enforce union contracts, these alternative labor groups rely on an overlapping set of other tactics to reform their industries. The ROC teaches workers their rights and also restaurant skills; advises and publicizes model employers; and helps organize protests like the ones at Capital Grille, making customers aware of what goes on behind the dining room. The ROC also lobbies state and local lawmakers for reforms and helps workers take legal action when all else fails. . . .
Bagenstos Justifies Employment Law
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is justified as preventing employers from contributing to or entrenching social status hierarchies — and that it is justifiable even if it imposes meaningful costs on employers.
The paper argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates the point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment-at-will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Constitutionalizing Right to Work
I thought this post by Steven Schwinn over at the Constitutional Law Prof Blog dealing with state constitutional provisions on the "right to work" (i.e., right not to join a union or pay fees in a union shop) might be of interest to some of the readership here:
January 30, 2013
Walsh Named Philadelphia Regional Director
The NLRB announced yesterday that Dennis Walsh has been named Regional Director in Philadelphia From the announcement:
National Labor Relations Board Chairman Mark Gaston Pearce and Acting General Counsel Lafe Solomon announced their selection of Dennis P. Walsh to serve as Regional Director of the Agency’s Region 4 office in Philadelphia, Pennsylvania. Mr. Walsh will be responsible for enforcement of the nation’s primary labor law covering private sector employees in the jurisdiction of Region 4, which serves 22 counties in eastern Pennsylvania, 8 counties in southern New Jersey, and 1 county in Delaware. He replaces Regional Director Dorothy Moore-Duncan, who retired in January 2013.
Mr. Walsh was appointed to serve as the Deputy General Counsel of the Federal Labor Relations Authority in December 2009. Previously, Mr. Walsh had a distinguished career with the Board, during which he performed nearly every aspect of the Board’s work from field attorney to Board member. Mr. Walsh served as a Member of the NLRB on three occasions: January 2006 to December 2007, December 2002 to December 2004, and December 2000 to December 2001. He also served as a Special Assistant in the Division of Enforcement, Deputy Assistant General Counsel in the General Counsel’s Division of Operations, Chief Counsel to both Member Wilma Liebman (1997-2000) and Member Margaret A. Browning (1994-1997), and Counsel to Member Patricia Diaz Dennis. Mr. Walsh began his legal career in 1984 as an NLRB attorney in the Office of Representation Appeals, and continued to work for various NLRB offices, including the Appellate Court Branch and Region 4. From 1989 to 1994, Mr. Walsh engaged in the private practice of law in Philadelphia. He has also served as an Adjunct Professor of Labor Law at Howard University School of Law. Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review, and a 1976 summa cum laude graduate of Hamilton College.
Dennis' labor accomplishments are obviously impressive, and I'm excited to see what he does in Philadelphia. I should also note that, like some other Board members, he also was active in academic circles, both by writing and presenting at conferences. On a more personal note, as readers of my NLRB posts are well aware, Dennis has been a font of information and new developments in labor law. That's been a great help to this blog and me personally, so I wanted to take this opportunity to thank him.
January 29, 2013
Call for Papers: Comparative Sciences
The event I'd like to bring to your attention is the International Symposium on Comparative Sciences organized by the Bulgarian Comparative Education Society. It will be held in Sofia, Bulgaria, 8 - 11 October 2013. In the the Symposium program there are at least two sections that may be of interest to you and/or your colleagues involved in comparative research:
1. Section on Comparative Labour Studies;
2. Section on Comparative Law.
- abstract submission deadline is March 20, 2013.
- abstract acceptance notification is May 30, 2013.
- full paper submission deadline is August 15, 2013 (for those who would like his/her paper to be considered for publication).
Further details and requirements concerning abstracts, registration, accomodation, ect. can be obtained from the Symposium website.
Secunda Named to NASI
Congratulations to Paul Secunda (Marquette) for being named to the National Academy of Social Insurance (NASI). Here's a description of the Academy:
Academy members are recognized experts in Social Security and retirement security, Medicare and health coverage, workers’ compensation, private employee benefits, unemployment insurance, and related social assistance programs. Individuals selected for membership have distinguished themselves by improving the quality of research, administration, or policymaking in one or more of these areas.
“Members are at the heart of NASI,” said NASI President Larry Atkins. “We expect our new members will be engaged – many of them prominently and from a variety of perspectives – on fundamental issues of the role of social insurance programs and their demographic and financial challenges in the next decade. We look forward to recognizing, using, and sustaining their expertise and enthusiasm. It is with great pleasure that we welcome them.”
New members are nominated by current Academy members in recognition of their significant and ongoing professional contributions to the field of social insurance. NASI members volunteer their time in study panels, advisory committees, and conferences. Members make significant contributions to NASI’s research, education, communication, and leadership development initiatives.
January 28, 2013
The EEOC on Transgender Employees and Sex Discrimination
I want to turn at this juncture in my guest blogging to some recent developments (some of which were briefly discussed previously on Workplace Prof Blog here) in the EEOC's position on anti-LGBT discrimination.
Last year, the EEOC issued a decision which is arguably one of the most important developments in transgender equality in recent years. In the decision, Macy v. Holder, the EEOC found in a precedential opinion that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII.” Thus, under Macy, the EEOC’s official position is that anti-transgender discrimination is per se sex discrimination.
(See EEOC Digest of Equal Employment Opportunity Law ("Commission policy is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII."); see also Macy (“When an employer discriminates against someone because the person is transgender, the employer has engaged in [sex discrimination]... This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotpyical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person."))
The implications of Macy are thus potentially tremendous for transgender employees—if widely afforded deference, it would mean that gender identity discrimination is now categorically prohibited under Title VII, without ENDA or any other type of legislative movement at the federal level.
This can be seen in many ways as a radical development. Transgender employees (and indeed Lesbian/Gay/Bisexual/Transgender or "LGBT" employees generally) have long lacked explicit protections at the federal level, being relegated to the patchwork of anti-discrimination protections that exist on the state and local level. (In addition, LGBT employees have long achieved some success raising an array of other legal claims in response to employment discrimination see e.g. here). Thus, providing categorical protections for transgender employees under existing law (Title VII) would mark a truly important development for transgender equality.
On the other hand, from a doctrinal perspective, Macy is less radical than it might initially appear. During the last 15 years, a consensus has slowly been developing in the federal courts of appeals (including the First, Sixth, Ninth and Eleventh Circuits) that discrimination against transgender individuals should, at least in most circumstances, be considered sex discrimination. (A number of district courts, e.g., here, have also arrived at a similar conclusion). As such courts have reasoned, discrimination is against transgender people is, essentially by definition, targeted at such individuals because of their failure to conform to gender stereotypes. And, the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins holds that discrimination based on a failure to conform to stereotypes about how men or women should appear or behave is actionable sex discrimination. Pre-existing case law thus provided a strong foundation for the finding in Macy that anti-transgender discrimination is a per se form of sex discrimination, although it did typically not go so far as Macy in endorsing a per se rule.
So what is the significance of Macy? It remains to be seen whether the federal courts—who have not always been terribly deferential to the positions taken by the EEOC, even in regulations—will defer to Macy. But coupled with the weight of circuit opinions preceding Macy, it seems likely that the decision will only hasten the trend towards treating anti-transgender discrimination as simply a form of sex discrimination. Moreover, Macy is binding on internal adjudications regarding federal employees, and has a number of other important implications as well (although it may also have certain limitations as a guarantor of full transgender equality, see Analysis by NGLTF's Lisa Mottet here for an excellent discussion of both the positive implications and the potential limitations of Macy from the perspective of transgender equality). In short, there are good reasons to think that Macy may be the tipping point for understanding anti-transgender discrimination as a per se form of sex discrimination under federal law, and that we may soon be beyond the day when that proposition is open to reasonable dispute.
In the next post, I will take up the issue of L/G/B plaintiffs, where the EEOC has also recently issued some recent holdings of interest, but where the legal landscape remains considerably more uncertain.