Saturday, March 2, 2013

DOJ Comments on Noel Canning

NLRBWe are now beginning to see how the Justice Department will attack the D.C. Circuit's recent Noel Canning decision.  As is appropriate, DOJ views this as a problem that is much bigger than the NLRB.  In a recent brief to the Third Circuit, written on behalf of the NLRB, the DOJ strongly criticizes the decision based on its constitutional interpretation and dismissal of the long history of recess appointment.  The Legal TImes notes some of the brief's points:

"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, [ . . . ] The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers." [. . .]

That interpretation narrows the scope of when a president can use the recess appointment power. In the papers in the Third Circuit, Brinkmann said the word "the" doesn't carry the specificity the D.C. Circuit assigned to it. [. . . ]

"The real threat to the separation of powers comes from Noel Canning, because it would seemingly allow the Senate to eliminate the President’s recess appointment power" by turning all recesses into intrasession ones, DOJ's legal team said. (The D.C. Circuit ruling limits recess appointment power to intersessions—the time between two sessions of Congress.)

DOJ lawyers said that under Noel Canning every intrasession recess appointment in the country's history—including ten federal trial judges, a CIA director and five appellate judges—would be unconstitutional.

The department also takes issue with the part of the Noel Canning opinion that restricts recess appointment power to vacancies that arise during a recess, not those that existed at the time of a recess.

"By confining the Clause to vacancies that arise during a recess,Noel Canning makes the President’s ability to fill offices turn on the happenstance of when the previous holder left office," Brinkmann wrote. "That approach disserves the purpose of the Clause."

No word yet on whether DOJ will seek a rehearing en banc in the D.C. Circuit (they have until March 8), or will just file a cert. petition.  Stay tuned.

Hat Tip:  Patrick Kavanagh


March 2, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, March 1, 2013

Soviet Safety Posters

Accident-256Not to make light of workplace safety, but these two collections of Soviet safety posters are humorously graphic (see here and here).  Perhaps OSHA should consider requiring similar postings . . . .


Hat Tip:  Alex Long & Jody Prestia



March 1, 2013 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Torres-Spelliscy on SCOTUS Inconsistency on Union/Corporate Speech

Torres-SpelliscyCiara Torres-Spelliscy (Stetson) has just posted on SSRN her article Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights (72 Montana Law Review 101 (2013)).  Below is an excerpt from her abstract.  Readers interested in this topic should also see Fisk & Chemerinsky's article described here.

This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.

* * *


March 1, 2013 in Labor Law, Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Oral Argument in Italian Colors

ItalianThe Supreme Court Wednesday heard oral arguments in Italian Colors, a consumer arbitration case that has thepotential to nuke one of the few remaining defenses to employment arbitration agreements.  Mark Gerano summarizes oral argument as follows:

On Wednesday, February 27 the Court heard oral arguments in the case American Express v. Italian Colors Restaurant.  (No-12-133).  The majority of the argument centered on whether the plaintiffs would be able to effectively vindicate their statutory rights under the Sherman Act without filing a class-action lawsuit in federal court.  The plaintiffs assert that in order to bring this case, they will have to hire experts at a very high cost – something that would not be cost-effective if they were forced to arbitrate claims individually.  Justice Kagan and Justice Ginsburg seemed concerned with the fact that foreclosing such a class action would effectively make the plaintiffs unable to vindicate their statutory rights under the Sherman Act because of the cost.

Justices Scalia, Kennedy and the Chief Justice did not display the same sympathy for the plaintiffs in this case.  Justice Scalia pointed out that the Sherman Act was created nearly forty years prior to FRCP Rule 23 allowing class actions.  He [suggested that the Sherman Act's enforced without class actions.]  Like Justice Scalia, the Chief Justice seemed skeptical that a class action was the only way for these plaintiffs to effectively vindicate their rights.  He urged that even without a class action, plaintiffs could still work together to share costs of experts and other parts of the litigation, thus significantly reducing their costs.  He repeatedly suggested using trade associations to compile the type of reports needed to show Sherman Act violations.  The [plaintiffs] countered by arguing that the cost sharing might be prevented because often times arbitration agreements contain confidentiality provisions that would prevent this type of sharing.  Nonetheless, the Justices suggested a number of other ways that the cost be kept to a minimum and did not seem persuaded that class action litigation was the only way this group of plaintiffs could effectively vindicate their rights.  Because of this strong push to finding a way other than class action for the plaintiffs to vindicate their rights, I think it is a safe bet that American Express will prevail in its petition.

Given what happened at oral argument, I think the best-case scenario is that the Court rules for American Express on the ground that plaintiffs have not shown an inability to vindicate their statutory rights, but will leave (at least for now) the vindication-of-statutory-rights defense intact.


March 1, 2013 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2013

Volume 30, Issue 1 (Fall 2012) of the Hofstra Labor and Employment Law Journal

Hofstra-law-logoThe Hofstra Labor and Employment Law Journal just put out Issue 1 of Volume 30 (Fall 2012) and there are some really great articles.  Here is the Table of Contents:


North American Border Wars: The Role of Canadian and American Scholarship
in U.S. Labor Law Reform Debates    Michael J. Zimmer, Susan Bisom-Rapp    1

The Labor Law Jurisprudence of Wilma Liebman    David L. Gregory, Ian Hayes, Amanda Jaret    27
                                                                                                                                                                                                                                                                                                                            Beyond the Water Cooler: Speech and the Workplace in an Era of Social Media    Ann C. McGinley, Ryan P. McGinley-Stempel     75

Lactation Breaks in the Workplace: What Employers Need to Know About the
Nursing Mothers Amendment to the FLSA    Sarah Andrews    121

Affirmative Action for LGBT Applicants & Employees: A Proposed Regulatory
Scheme    Ryan H. Nelson    179


The First Prong’s Effect on the Docket: How the Second Circuit Should Modify
The McDonnell Douglas Framework in Title VII Reverse Discrimination Claims    Ryan Mainhardt, William Volet    219
                                                                                                                                                                                                                                                                                                                                  Drawing a Line in the Shifting Sand of Social Media: Attempting to Prevent
Teachers from “Liking” a Student Outside the Classroom    James R. Baez, Kerri E. Caulfield   263 

Enjoy all of these great articles.


February 28, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Labor Relations Internships at ADAPT in Italy


From Michele Tiraboschi, ADAPT Scientific Coordinator:

ADAPT is pleased to announce that it will start the selection procedures for 3-to-6 month internships in Italy in the areas of labour law, industrial relations and HRM, which will be hosted by ADAPT or its partners.

If selected, interns will be provided full accommodation in a cosy apartment in the Upper Town of Bergamo (Italy) plus an allowance amounting to 400 Euros.

ADAPT is a non-profit organization set up by Marco Biagi in 2000 with the aim of promoting research in the field of Industrial and Labour Relations from a comparative and an international perspective. Our purpose is to encourage and implement a new approach to academic research, by establishing long-term relationships with other universities and advanced studies institutes, and promoting academic and scientific exchange programs with enterprises, institutions, foundations and associations.

Those interested in joining the ADAPT community through an internship might send their CV and a cover letter to A Brochure for ADAPT can be found here and the Brochure for International Doctoral School in Human Capital and Labour Relations can be found here.    


February 28, 2013 in International & Comparative L.E.L., International Contacts, Teaching | Permalink | Comments (0) | TrackBack (0)

Zimmer and Bisom-Rapp on The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates

BisomrappzimmerMike Zimmer (Loyola Chicago) and Susan Bisom-Rapp (Thomas Jefferson) have just posted on SSRN page proofs for their article, North American Border Wars: The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates (Hofstra Lab. & Emp. L.J., vol. 30, No. 1, 2012-13). 

Susan reports that the article will also shortly appear in Italian as a book chapter, S. Bisom-Rapp & M. Zimmer, La Guerra di Confine Nordamericana: il Ruolo della Ricerca Canadese e Americana nel Dibattito sulla Riforma del Diritto del Lavoro Statunitense, in REGOLE, POLITICHE E METODO: L’EREDITÀ DI MARCO BIAGI NELLE RELAZIONI DI LAVORO DI OGGI (F. Basenghi, L.E. Golzio (a cura di), con la collaborazione di A. Russo, O. Rymkevich, I. Senatori, C. Serra, Giappichelli, Torino, 2013).  Susan and Mike presented their paper March 19, 2012 at the Tenth Annual Marco Biagi Conference at the University of Modena, Italy. 

Here is the abstract:

The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This article briefly traces the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought his experience and insights with him, rapidly becoming one of the foremost labor law scholars in the United States. His influence in the 1990s, and hence the influence of Canadian ideas, on the ultimately unsuccessful labor law reform proposals of President Clinton’s Dunlop Commission is widely recognized.

Professor Weiler’s proposals were once again the basis for scholarly and policy debate during the Obama Administration. This time, however, Canadian ideas and experience prompted a scholarly border skirmish. Recently, when new legislation – the Employee Free Choice Act – was proposed to Congress to implement a number of reforms of the National Labor Relations Act based on the Canadian experience, several U.S. academics argued that the actual Canadian experience where these reforms were in place resulted in higher unemployment and slower economic growth. Canadian labor scholars, fearing the corrosive effects of such critiques on their own labor relations regime, responded with rejoinders challenging the work of the American scholars. Clearly, and notwithstanding American provincialism, Canadian-influenced labor law scholarship has played a central role in U.S. policy debates, creating a favorable intellectual environment for labor law convergence. Yet the opponents of U.S. labor law reform also deploy scholarship aimed at the Canadian experience in order reinforce the divergent paths of the two systems, as do Canadian scholars acting defensively to forestall greater convergence of the Canadian regime to the U.S. model.

Check it out! Looks very interesting.


February 28, 2013 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Clarke on Causal Coherence In Disparate Treatment Doctrine

ClarkeBrian Clarke (Charlotte) has posted on SSRN his forthcoming piece in the Rutgers Law Review entitled: "A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine."

Here is the abstract:

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across the various individual disparate treatment statutes and theories. In order to implement this new-found causal coherence, this article proposes a better route through the swamp in the form of a unified proof scheme for use in all individual disparate treatment cases regardless of statute or theory that is rooted in this conception of causal necessity based on the ubiquitous McDonnell Douglas proof scheme.

As Brian himself points out, there could hardly be a more relevant topic these days in employment discrimination law.  The issue of cause-in-fact in disparate treatment is again before the Supreme Court in UTSWMC v Nassar.  Brian's pieces touches on some of the broader issues that the Court should be looking at in Nassar – instead of just throwing around terms like “but for causation” without any conception of what that really means.

Check it out!


February 27, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Minding the Gap Conference Friday at FIU


Thanks to Howard Wasserman over at PrawfsBlawg for word that this Friday, FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013. The conference is organized by Kerri Stone. Here is the stellar list of speakers:

  • Ann C. McGinley
  • Sandra F. Sperino
  • Nicole Porter
  • Michael J. Zimmer
  • Nancy Leong
  • Brenda Smith
  • Henry L. Chambers Jr.
  • Joyce Sterling
  • Nancy Reichman
  • Marcia L. McCormick
  • June Carbone
  • Naomi R. Cahn
  • Kingsley Browne
  • Wendy Greene
  • Lauren Sudeall Lucas


February 27, 2013 in Conferences & Colloquia, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)