Friday, January 17, 2014

Labor & Employment Law Roundup

AdobeSome issues that have caught my (and others') eye, recently:

  • Steven Greenhouse (NY Times) has an interesting article today on business groups going after worker groups.  A main thrust of the criticism has got a serious "pot calling the kettle black" side, as the business groups don't seem to like the fact that unions are giving to support to worker groups.  A more serious argument is that these worker groups should be regulated like unions.  In most cases, I don't think there's much to this argument on the substance (much of the activity is pure speech).  A bigger question though is that I still believe that unions should be doing more to fight some of the legal restrictions on their activity.  As the Supreme Court has lowered the "economic speech" bar, unions need to also take advantage.  The business groups may, ironically, force the issue if the keep up these attacks.


  • Also in the NY Times, earlier in the month, was an op-ed from writer Will Blythe (who wrote a fantastic book on the Carolina-Duke basketball rivalry) on his refusal to sign an anti-disparagement agreement in exchange for two weeks severance pay when he was laid off.  As Blythe notes, his role as a writer makes such a clause particularly offensive, but it's nice to see someone bring this out in the open.  The growth of these clauses, as well as non-compete agreements, shows the limits of the neoclassical economic model and its theory that "bad" employers will pay for their behavior because employees will avoid them.  If employees can't say their employee was bad--or even leave to get another job--that economic model falls apart.  Finally, as Michael Duff noted, these clauses raise possible issues under Costco and Flex Fracalthough being part of a severance agreement probably means that they're lawful.


  • Matt Bodie notes the 9th Circuit's recent decision in Hariharan v. Adobe.  The court affirmed class certification for about 60,000 Silicon Valley employees, which allege that Apple, Google, Adobe, and other employers violated antitrust law by conspiring to supress pay by not recruiting each others' workers.  A case worth monitoring.


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The The 9th U.S. Circuit Court's affirmation of District Judge Lucy Koh's class certification in the Hariharan et al v. Adobe Systems a big event for workers' rights. Using antitrust laws in an employment setting is cutting edge.

Posted by: overtimelawyers | Jan 21, 2014 2:10:50 PM

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