Tuesday, January 28, 2014
We are privileged to present as a guest blogger today, Chai R. Feldblum. Chai is a Commissioner on the federal Equal Employment Opportunity Commission (EEOC), but is writing here on a recent 7th Circuit decision for herself only. Her post is entitled: On Mach Mining.
Much attention has been paid to the Seventh Circuit’s opinion in EEOC v. Mach Mining. That is how it should be. Judge David Hamilton’s opinion for the panel is brilliant, concise, and correct. The women at the center of the lawsuit who were seeking jobs in the mining industry will now finally have their day in court.
Instead of following precedents of other courts of appeal that have decided or presumed that courts can review the sufficiency of EEOC’s conciliation process, Judge Hamilton went back to first principles of statutory construction. As his opinion noted:
The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle. An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process as "evidence in a subsequent proceeding." 42 U.S.C. § 2000e-5(b). We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.
While much attention has been paid to the fact that the Seventh Circuit broke from the pack in deciding the legal issue before it, less attention has been paid to the weight the Seventh Circuit placed on the internal "meaningful scrutiny" and oversight that the Commission applies to its conciliation process. As Judge Hamilton explained:
[T]he commissioners who head the agency are appointed by the President with the advice and consent of the Senate. In short, even without the judiciary trying to monitor the EEOC’s efforts at conciliation, those efforts are subject to meaningful scrutiny.
As a former professor of statutory interpretation, I give the Mach Mining decision an A for careful and thoughtful statutory analysis. On a more practical level, as a sitting Commissioner of the EEOC, I welcome the court’s emphasis on the meaningful oversight Commissioners provide with regard to our staff’s conciliation efforts. That is something I have been a strong supporter of since I joined the Commission.
My commitment to those efforts comes directly from the language of Title VII:
If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b).
The five of us who make up the Commission obviously cannot investigate, find cause and conciliate on the thousands of charges we receive each year. Thus, in its regulations, the Commission has delegated authority to its field staff to investigate charges, issue findings of cause, and engage in the conciliation process, 29 CFR §§1601.15(a), .21(d), .24(b).
This is how it should be. Delegation is good governance. But the Commission is ultimately responsible for all actions taken in its name. Thus, our delegation to our field staff is, and must be, accompanied by reporting and accountability back to the Commission. Our Strategic Plan for 2012-2016 and our Strategic Enforcement Plan of 2013-2016 include components that enhance such accountability.
Judge Hamilton was correct that the language of Title VII, which provides no standard for the conciliation process, is not susceptible of judicial review of “whether the EEOC tried hard enough to settle.” Rather, the statutory language provides significant deference to the agency in carrying out its obligation to “endeavor to eliminate” alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.” That deference presumes and is reinforced by active Commission oversight to ensure that the letter and the spirit of the statutory language continue to be carried out.
[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney. The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]
Monday, January 20, 2014
Thanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.
The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel. The Ninth Circuit’s summarizes the case thusly:
[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable.
Here is Lise's commentary:
The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA. The Ninth Circuit cited to a Second Circuit case that had a similar holding:
Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA. Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).
This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.
Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.
Tuesday, January 7, 2014
Friend of the blog, Mitchell Rubinstein of the Adjunct Law Prof Blog has an interesting post concerning the potential formation of attorney labor unions in Ohio.
Here is a taste:
A few years ago I wrote a short article about attorney labor unions. (Attorney Labor Unions article)
The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.
There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.
The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals.
Read more about this interesting case and Mitch's observation in his post. Could be an important development for attorneys looking for more voice in the workplace.
Monday, December 2, 2013
Ed Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise to the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration's Affordable Care Act's (ACA's) contraceptive coverage mandate.
Here's a taste:
This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.
An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.
Personally, I do not see a RFRA or free exercise problem with ACA's mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals, for-profit corporations do not and should have have free exercise rights, and the exemption from the law for for-profit religious employers would permit them to inappropriately interfere with the personal health care decisions of their employees. I also do not know what "religious minorities" Ed is referring to, since corporations like Hobby Lobby seek to impose their very much dominant Christian religious practices on their employees (Christian and non-Christian alike).
All that being said, Ed should be given credit for thinking outside of the box and coming up with a compromise which might satisfy both sides of the debate. The likelihood of this suggestion being taken up in the short-term now that the Supreme Court has granted cert. in the Hobby Lobby case is unlikely. However, if Hobby Lobby and similar religiously-oriented corporations should prevail (a real possibility with the current make up of the court), then this proposal might be a way in which this type of much needed health care coverage could be provided to employees of for-profit religious employers.
Tuesday, October 15, 2013
Update: Thanks to blog reader, Albert Feuer, for bringing to my attention Tejinder Singh’s commentary on the oral argument, Argument analysis: Nobody seems worried about ERISA limitations periods, SCOTUSBLOG (Oct. 17, 2013).
OK, hold onto your seats for some flat out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Company [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.
RossRunkel.com, as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):
Heimeshoff's disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.
That can be tough, given the fact that it's possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it's even possible in some cases that the three years would run out before the claimant got a final denial.
Hartford has a simple response, which is that ERISA plans usually get enforced the way they are written.
There's really no statutory text that's much help.
The petition for certiorari points out that lower court have adopted three conflicting approaches to answer the question of accrual:
(1) A plan’s statute of limitations cannot begin running until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination (Fourth and Ninth Circuits);
(2) A plan’s pre-denial statute of limitations is enforceable if “reasonable,” as determined on a case-by-case basis (Second, Sixth, Seventh, Eighth, and Tenth Circuits);and
(3) The plan must notify the claimant of the time limits for judicial review, in the SPD and adverse determinations, in compliance with ERISA regulations; and if it does not, the court will not allow the plan to assert the plan’s limitations defense or will equitably toll the limitations period (First Circuit and a District Court in Second Circuit).
I don't see any clear path for the Court on this one.
Also see Argument preview: When can an ERISA limitations period start to run? at SCOTUSblog.
I agree wth Ross that this area of ERISA law is a mess. The ERISA written plan requirement rule suggests that the plan administrator follow the terms of the plan as written, but to do so, at least conceivably in some cases, the administrator could drag their feet and wait for the statute of limitations to run before finally deciding the internal appeal and thereby prevent the employee to ever file a benefits denial claim in court.
Equitable tolling might be one way with dealing with the potential unfairness of the rule, but its implementation would also be messy. Also, it is unavailing to say with a straight face that plan administrators and employee should be bound by terms of the plan because if the employee wanted a different type of SOL they could just bargain for it. Everyone knows that employees don't bargain over plan language. They are classic adhesion contracts, presented on a take-it-or-leave-it basis.
To me, the best rule would be to start the SOL to run once the internal administrative process has been finalized and the employee is free to sue in court. This approach has the advantages of both providing a clear point when the SOL starts to run, plus provides incentive for the plan administrators to complete claims processing as quickly as possible.
No predictions on this one, folks, but I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations which will further undermine employee rights under ERISA.
Wednesday, September 25, 2013
Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed
I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications. PS
This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance. At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union. The NLRB rejected the university’s position, and Duquesne has appealed. Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.
The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities. The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.
In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions. In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.
What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.
This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics. In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.
Monday, September 2, 2013
Don't ask me why I was reading (OK, skimming) an SSRN piece entitled Measuring the Complexity of the United States Code, but it had 400+ other downloads, so I wasn't the only one with nothing better to do on a rainy day at the Shore. The authors purport to create a empirical framework for "measuring relative legal complexity;" their approach is called "knowledge acquisition," which "can take into account the structure, language, and interdependence of the law." Got that?
They then apply their measure to the U.S. Code. and it's here where you can one-up those insufferable tax types who claim their specialty is incredibly complicated. According to the authors, Title 42 ranks as "most complex." Admittedly, Title 26 comes in second, but employment scholars also have to deal with Title 29, which comes in 6th.
Indeed, it's worse than that for tax. Those rankings are "normalized"; the authors also report "unnormalized" rankings, with Title 42 still at the top but Title 26 falls all the way to 9th. ("Normalized"rankings account for size of Title).
In case you're wondering, Title 9, arbitration comes in dead last in the normalized category as the simplest of the titles. Which makes the Supreme Court's 317 encounters with the topic even more perplexing. (Empirically speaking, I didn't actually count the case but it sure feels in that vicinity).
I suspect that there will be quibbles from the tax types and als0-rans re the methodolgy (aren't there always?). And some carpers will undoubtedly point out that 42 has a lot of stuff in it other than discrimination. But, really, doesn't this study merely confirm what all Workplace Prof readers already know -- our field is the most challenging?
Wednesday, August 28, 2013
Friend of the blog, Michael Connolly (University of Surrey (UK)), having reading Charlie's post from this past Monday on Battaglia v. UPS on "victimless harassment," brings to our attention a similar case from England.
Here's Michael's summary of that case:
Reading the note on Battaglia v. UPS reminded me of a case held here in England some years’ ago. The issue in English v Sanderson  EWCA 1421 was whether someone could be liable for harassment ‘on the grounds of’ sexual orientation, under the UK’s Regulations outlawing harassment and discrimination on grounds of sexual orientation, when the treatment was unrelated to any particular person’s sexual orientation.
In this case, Mr. English was harassed by colleagues using sexual innuendo suggesting he was homosexual. This conduct was rooted, apparently, in two things: he lived in Brighton (a well known centre of the gay scene) and had attended boarding school. What made this case unusual is that Mr. English was heterosexual, and his tormentors neither assumed nor perceived Mr. English to be gay. Mr. English was aware throughout that his tormentors never mistook him for being homosexual. The Court of Appeal, by a 2-1 majority, found that the mockery amounted to unlawful harassment on the grounds of sexual orientation.
Quite clearly, the phrase ‘on the ground of sexual orientation’ lends itself to cover the scenario where the harassment was unrelated to any person’s sexual orientation. As Sedley LJ observed, the distance between perceived harassment (unlawful) and harassing a man as if he were gay when he is not ‘is barely perceptible’ (). However, policy considerations were prevalent in the speeches. The underlying policy consideration here is to protect homosexual (or bisexual) workers from being ‘outed’ by a systematic campaign of abuse. In such a pernicious scenario, the worker would have to suffer the abuse in silence unless or until he ‘came out’. As such, this decision helps preserve the dignity of workers that discrimination law is supposed to enshrine.
Very interesting indeed, Michael, in light of Battaglia case (and because this case concerns a Mr. English from England!). Thanks for brining a comparative gloss to this timely topic!
Thanks to Chaumtoli Huq (New York Law School) for introducing her Law at the Margins Blog to us. Today's post is entitled: Labor's Renaissance: Bold Organizing and Partnerships Needed in the New Economy.
Here is an excerpt from that post:
How might we structure the inclusion of worker groups into a new labor movement by expanding legal protections without squashing the same radicalism that promises to reinvigorate the labor movement? . . . .
[F]or the labor movement to experience a full renaissance, it must understand the features of the new economy, and restructure our state and federal labor laws such that it maximizes worker participation and allows for innovative organizing techniques long used by worker centers to flourish.
If you are interested in this blog, or labor issues generally, you can follow Chaumtoli on Twitter @lawatmargins or join Law@theMargins Facebook page.
According to Chaumtoli, Law@theMargins uses social media as a dynamic platform from which to highlight the ways laws and legal institutions expand or limit the social justice aspirations of people and communities. Inspired by feminist theorists like bell hooks, the site seeks to make both activist and theoretical interventions to social justice issues in hopes to create a space to inspire alternate discourses on law and social justice.
Once a month, Chaumtoli hopes to feature original guest posts, so if any readers of the Workplace Prof Blog would like to submit a piece, she would welcome such contributions. The criteria is that the post should highlight an area that is not covered in mainstream discourse. Think Critical Legal Studies meets the Labor Law/Social Movement Theory on blogs. Chaumtoli can be reached at email@example.com.
Welcome to the blogosphere, Chaumtoli, and we wish you much success on this worthwhile endeavor!
Wednesday, August 21, 2013
Riffing off Jeff's early post today on the NAA's amicus brief in Mulhall, I want to bring to reader's attention a provocative blog post written by Jack Goldsmith on the On Labor Blog, entitled: Three Problems in Mulhall. In short, the three problems with conservatives on the Court agreeing that a neutrality agreement represents a Section 302 violation concern: (1) the lack of a private cause of action; (2) pleading problems; and (3) mootness.
Jack does an excellent job laying out why conservative Justices set to deliver a death blow to neutrality agreements between employers and union in organizing campaigns will have a hard time doing so consistent with their conservative judicial principles (yes, I know this assumes we live in a judicially-principled world).
Here's Jack's conclusion:
Perhaps the Court will reverse in Mulhall on the basis of one of these three arguments (it is not clear that any of them is properly presented, though the first issue might be included within the general interpretation of the statute, and the third is probably jurisdictional). Or perhaps the Court will reverse after determining that employer concessions are not “things of value” under Section 302. (I think this is hard to do, if the Court gets this far.) Or perhaps it will dismiss the case as improvidently granted. But if (as many people think) the right side of the Court is set to affirm on the Eleventh Circuit’s theory of Section 302, it will have to do so in the face of some pretty important conservative principles, including freedom of contract, a presumption against private rights of action, a commitment to strict pleading rules, and respect for the limited subject matter jurisdiction of federal courts.
An important post by Jack and one that I hope may even (dare I dream?) lead to a certiorari improvidently granted ending.
Wednesday, August 14, 2013
Long-time friend of the Workplace Prof Blog, Ross Runkel (Willamette Emeritus), is blogging at a new location on the internet: Ross Runkel Report: Arbitration, employment law, labor law.
Ross already has up some great posts, characteristically taking on the most interesting labor and employment law cases and topics of the day.
Here's a sample of one of today's posts, entited: Quit Rehab Twice, get fired. No help from ADA or FMLA:
Bryan Shirley had a problem with Vicodin, so he took medical leave to get treatment for addiction. After completing a detox period, he left the treatment program early. Kept using. The boss gave him a second chance. After one day of detox, he checked out of the program.
The employer fired him for violating its drug-free workplace policy which provides that an employee “who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated.”
Shirley sued claiming ADA and FMLA violations. Denied, and denied. Shirley v. Precision Castparts (5th Cir 08/12/2013).
You can't beat Ross's legendary laser-like analysis of recent labor and employment case law. Ross's new blog is a must daily read for all labor and employment law profs and practitioners. Check it out!
Jonathan Feigenbaum and Scott Riemer have published in the ABA TIPS Health and Disability & Life Insurance Law Committee Newsletter (Summer 2013): Did the Supreme Court Flunk Constitutional Law When It Permitted Discretionary Review of Insured ERISA Benefits Cases?
From the Introduction:
Beginning with Firestone Tire & Rubber Co. v. Bruch, and its affirmance in Metropolitan Life Ins. Co. v. Glenn, and most recently in Conkright v. Frommert, the Supreme Court permitted District Courts to treat insured ERISA welfare benefits cases as summary review proceedings. In each case, the court focused on trust law, but never addressed whether the regulatory scheme it set up by these cases satisfies the requirements of Article III of the Constitution. The authors argue that discretionary review, without a full trial on the merits, violates Article III.
In the 1983 comedy Trading Places the amoral Duke brothers conduct an experiment in social Darwinism debating whether genetics or nurturing is the source of success. They make a wager, and then put their theories to the test. They manipulate the life of Louis Winthorp III (Dan Akroyd), a successful commodities trader, by “trading places” with Billy Ray Valentine (Eddie Murphy), a street con artist.
We’ll bet the same amount wagered by the Duke brothers with our readers – identify any litigation in the federal courts between private litigants, other than discussed in this paper, where the Article III Judge must defer to the decision of the defendant without conducting a full trial on the merits. We bet you can’t.
This is an interesting topic that has been explored by Don Bogan (Oklahoma), among others, in the past. The article makes an interesting and provocative point concerning the unique features of ERISA Section 502(a)(1)(B) litigation and the lack of a normal Article III federal court procedure.
Can anyone win the Duke brothers' wager that Feigenbaum and Riemer have put forward? I guess one of the questions is whether there is another area of law that has a statutorily required internal review process (like under ERISA Section 503) which requires exhaustion of internal appeals before a claim can be brought in court (not the same thing as what exists in Title VII scenarios where you can exhaust external administrative procedures by merely waiting out the EEOC)?
Another wrinkle is that ACA provides for the possibility of an alternative mechanism through an independent external medical review by a physician, which is de novo review of the plan administrator's claim denial and which is final and not appealable to court. How does that further complicate the Article III issue?
Friday, August 9, 2013
In this regard, he has posted on his blog, Charles J. Morris on Labor Relations, a warm-up for that prospect. The post is entitled: Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use, and the full version of his post is available on Charlie's blog.
Here's a taste of Charlie's post:
It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future. Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class.
The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations. Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change. Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditions―much less in a consequential bargaining session that might significantly improve those conditions.
They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act), union representation is virtually unavailable to them and to most other American workers. The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation. Many―if not most― nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose. Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.
As Charlie points out, this is the same piece that he submitted to the AFL-CIO in its search for new ways of rebuilding the labor movement and collective bargaining. Charlie is the master on this topic and I highly recommend that those looking for alternatives to increase worker voice in the American workplace give serious consideration to Charlie's proposals.
It is my pleasure to bring to the attention of the readers of this blog the recent launch of a new academic labor law blog, jointly run by Ben Sachs and Jack Goldsmith (both of Harvard Law). It is aptly titled: On Labor.
A little taste of the blog's aspirations from the "About" section:
On Labor is a blog by Benjamin Sachs and Jack Goldsmith devoted to workers, unions, and their politics. We interpret our subject broadly to include the current crisis in the traditional union movement (why union decline is happening and what it means for our society); the new and contested forms of worker organization that are filling the labor union gap; how work ought to be structured and managed; how workers ought to be represented and compensated; and the appropriate role of government – all three branches – in each of these issues.
It looks like there will also be some other contributors to the blog who are students at Harvard Law School.
There are already some very interesting blog posts up, including one on the forthcoming Supreme Court Mulhall case, which Ben says "could be the most significant labor law case in a generation."
Check it out!
Friday, July 12, 2013
At my request, Roy Adams (Ariel F. Sallows Chair of Human Rights (Emeritus), U. of Saskatchewan; Professor of Industrial Relations (Emeritus), McMaster University) has provided an update on the legal status of the right to strike in Canada. This has been a hot area in Canadian labor law and a recent decision by the Saskatchewan Appellate Court has only added flames to that fire. You can read Roy's entire commentary here.
Here is a taste of the piece:
After many years in power Saskatchewan’s moderately leftist New Democratic Party was defeated by the conservative “Saskatchewan Party” in 2007. The new government immediately introduced labor law changes one of which put considerable constraints on the right of public sector workers to strike.
Organized labor immediately went to court, claiming that the legislation offended the Freedom of Association clause in Canada’s Charter of Rights and Freedoms. At the first level (Court of the Queen’s Bench) the judge (Ball) agreed and ordered the government to revise the law (see Saskatchewan v. Saskatchewan Federation of Labour 2012 SKOB 62). Instead, the government appealed and, very recently, Ball’s ruling was reversed (see Saskatchewan v. Saskatchewan Federation of Labour 2013 SKCA 43).
Whereas most Canadian governments, even those controlled by conservative parties, are more cautious than governments in the USA about attacking organized labor, the urge to weaken unions and especially public sector unions – is on the rise. (Private sector unions are already weaker than they have been in decades). But in the Canadian environment there is a counter force to be contended with – international labor law which has grown in importance over the past half-dozen years primarily as a result of the Supreme Court finding it to be a persuasive source in interpreting the Charter’s Freedom of Association Clause (see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; aka BC Health Services).
Read the whole piece when you get the chance. It does a great job explicating the current status of the right to strike in Canada. I remarked to Roy that although Canadian labor proponents may feel that things have been rough for them in recent years, their American colleagues would feel lucky to even have freedom of association in the labor context or the freedom to strike given any form of constitutional consideration. Ditto any legal recognition by US Courts of (gasp!) international labor standards!
Monday, July 8, 2013
Thanks to Mike Zimmer (Loyola-Chicago) for bringing to my attention this post on the Concurring Opinion Blog from Frank Pasquale entitled: From Status to Contract to Fealty.
Here's a taste:
“Consent” can be a near-universal solvent in employment law, eviscerating rights that would be considered basic outside the workplace. Soon after Independence Day, Alana Semuels reported a new twist on the trend: contracts to tie even low-wage employees to a given workplace, on penalty of not working at any competing business for months or a year afterward:
Mazhar Saleem is bound to his employer by a number of contracts that made it hard to earn enough money to live, but also hard to go work anywhere else. He drives a town car for a company in New York as an independent contractor, rather than as a full-time employee. That means he doesn’t get benefits, never gets overtime, and isn’t guaranteed set hours.
But he also signed a non-compete contract when he started working, meaning he can’t drive a car for anyone else in New York. So even if his employer doesn’t give him any work, he’s not allowed to go find it elsewhere. . . .
In a recent case in Worcester, Mass., three women working at a hair salon tried to leave after theirconditions at work deteriorated. All three received cease and desist letters when they started working elsewhere, because they had signed non-compete clauses. They had to wait a year for the clauses to expire before they could work in the area again.
In fact, these exclusivity clauses even extend to the hunt for temporary, no-benefits work, as Fed governor Sarah Bloom Raskin found out at a job fair:
‘So what I need to do is put in my resume and then I’ll be able to get this job?’ And she said ‘yes.’ And I said: ‘while I’m waiting can I go to some other firms and throw my resume into their databases as well?’ And she said ‘oh no, you can’t do that, because you’re going to sign a letter of intent.’ And that letter of intent is basically an exclusivity agreement that says that by putting your resume in here you agree to not put your resume anywhere else.
Corey Robin explains the tricky issues these cases raise for advocates of “freedom of contract.” Libertarians often point out a paradox of democratic theory: a dictatorial party could win an election, then decide “no more elections.” Is not something similar happening when bosses, emboldened by a terrible job market and a near-infinite supply of cheap labor, bind employees like the hair salon did? If workers have neither voice (no union) nor exit (no chance to seek better employment), what’s left but loyalty? Or, to put it feudally, fealty?
I appreciate Frank' post, but wonder whether these covenants for lower paying jobs would be enforceable in most states given the lack of unqiue protectible legitimate business interests (though the hair stylist situation may be a closer situation). I am also skpetical that the letters of intent can keep the employees from applying to other employers in the at-will world in which we live.
Of course, the lack of employee sophistication and lack of access to knowledgeable attorneys who know the employment law in this area makes these developments troubling nonetheless.
Friday, July 5, 2013
Today, we are happy to present a second piece of commentary by Charlie Morris (SMU Emeritus) on another federal appellate court decision, this time the Fourth Circuit Court of Appeals decision in U.S Chamber v. NLRB, striking down the NLRB's notice posting rules. You can downloand the full commentary here and you can also find it as well on Charlie's own blog.
Here is a taste from the introduction of the commentary:
This decision, issued June 14, 2013, holds that in promulgating the NLRA rule requiring employers to post notices advising employees of their rights under the National Labor Relations Act “the Board exceeds its authority” pursuant to step one of the two-step rule of Chevron U.S.A., Inc. v. NRDC, Inc.,467 U.S. 837 (1984), that governs judicial review of an agency’s interpretation of its enabling statute. That holding of an absence of statutory authorization is not only incorrect for a variety of valid reasons, it is directly contrary to the Supreme Court’s recent decision in City of Arlington v. FCC, Nos. 11-1545 & 11-1547, May 20, 2013, which the panel’s opinion (by Judge Duncan) acknowledged but―without explanation―chose not to follow.
The decision in City of Arlington responded to the question of “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the agency’s statutory authority (that is, its jurisdiction).” Justice Scalia’s majority opinion stressed that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretation is a mirage” and noted that “there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” . . . .
Charlie again makes an exceedingly persuasive argument why the Fourth Circuit's decision in U.S. Chamber v. NLRB does not withstand closer scutiny. In the meantime, we all await to see if the en banc 4th Circuit or the U.S. Supreme Court may become enmeshed in this notice posting/compelled employer speech debate.
Monday, July 1, 2013
Lance Compa (Cornell ILR) has brought ot our attention a new paper from the International Trade Union Confederation (ITUC) and the global unions UNI and IndustriALL countering employers' claims that a 2010 decision by the ILO Committee on Freedom of Association endorsed American management-style anti-union campaigns around the world. It is entitled: Freedom of Speech and Freedom of Association: Finding a Balance (June 2013).
The case involved a Delta Airlines campaign against flight attendants' organizing. Lance worked on this along with Jeff Vogt of ITUC and Christy Hoffman of UNI, advised by Fred Feinstein of U. Maryland and Keith Ewing of Kings College London.
The International Organization of Employers, the Littler Mendelson law firm, and T-Mobile have been promoting the idea that the CFA's comments on employers' freedom of expression make NLRA Section 8(c) as interpreted by American courts the new international standard for employers' anti-union campaigns. The ITUC paper argues that the CFA decision did no such thing. On the contrary, the CFA reinforced the long-established standard of non-interference in workers' organizing efforts: that freedom of expression cannot be abused in ways that interfere with freedom of association.
This issue will continue to be sharply debated both in the ILO context and in union organizing campaign efforts that invoke international standards on freedom of association. All comments and thoughts are welcome.
Thanks to Harris Freeman (Western New England School of Law) for passign along how to get a hold of Michael Grabell's excellent piece of journalism on exploitation in the temp staffing industry, titled "The Expendables: How the temps who power corporate giants are getting crushed."
Timely topic given recent posts on temporary employees.
Thursday, June 27, 2013
We are thrilled to welcome as a guest commentator to the Workplace Prof Blog our distinguished colleague, Charlie Morris. As many of you know, Charlie is professor of law emeritus at the Dedman School of Law at SMU. He is an internationally renowned labor law scholar and authority on the NLRA and well-known for his take on members-only bargaining units. He wrote about minority-bargaining in 2005 in The Blue Eagle At Work: Reclaiming Democratic Rights In The American Workplace. More recently, Charlie has started his own blog, Charles J. Morris on Labor Relations, featuring his thoughts on various labor law topics.
Here, Charlie shares with us his thoughts on the recent DC Circuit decision concerning employee-rights posters and employer's free speech. Here is a taste of his commentary (which you can download in full at this link here):
A recent decision by a panel of judges of the District of Columbia Circuit Court of Appeals in National Association of Manufacturers (NAM) v. NLRB, in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB or Board) on August 30, 2011, that requires employers to display a poster that advises employees of their rights under the National Labor Relations Act (NLRA or Act) is unconstitutional because it violates the First Amendment free-speech rights of employers. The New York Times’ characterization of that decision as “outrageous” expresses the natural reaction to a ruling that uses the cover of free speech to suppress free speech. Judge Randolph’s decision raises the critical question of whether by final judicial determination this notice-posting rule will be deemed a violation of the Constitution, for if so, most governmentally required notice postings (both federal and state) that are commonly displayed in millions of American workplaces will no longer be mandatory. Based on established case law, the final answer to that question should be that the rule does not violate the First Amendment; thus the existing familiar notice- postings will safely continue.
This is an excellent piece for both those who are unfamiliar with this area of labor law, as well as those who know much about this decision and are interested in a well-thought out and comprehensive perspective. We look forward to Charlie sharing more of his posts with us as a guest commentator in the days and weeks to come.