Friday, January 23, 2015
There’s some reason to believe that employers are utilizing liquidated damages clauses in their employment contracts to a greater extent than previously. This makes sense from their perspective because damages from an employee’s breach of a term contract are often hard to prove to a sufficient degree of certainty. Even when some damages can be shown (for example, the increased cost of hiring a replacement), the employer may well feel that other harm remains uncompensated.
Enter the liquidated damages clause. I’ll skip the academic debate as to whether parties should be free to enter into such agreements free of special scrutiny and move right to the law on the subject, which (somewhat contradictorily) generally permits the parties to stipulate to damages from a breach only if they are a reasonable attempt to specify harm that is by its nature difficult or impossible of ascertainment after breach. Courts also differ on whether reasonableness is to be ascertained as of the time of the contract (foresight), at the time of breach (hindsight) or both. See Restatement of Contracts § 356.
One of the latest judicial encounters with a liquidated damages clause was in Kent University v. Ford (a 2-1 decision of the Ohio Court of Appeals) and involved (naturally) a coach. Although Kent State is not a basketball powerhouse, it recovered $1.2 million against its former coach, who in 2011 moved on to Bradley (also not a powerhouse). And, if you’re wondering, the Bradley Braves current record is 6-14. So poor Ford may be looking for another job soon, with a big judgment hanging over his head. Maybe he was smart enough to get Bradley to agree to indemnify him (Bradley was also sued by Kent State for tortious interference but it dismissed that claim once it obtained summary judgment against Ford).
The clause in question required Ford to pay Kent State his stated salary for each year he failed to keep his contractual commitment, which, in the event, was four years. As you might guess from the judgment, he was earning $300,000.
The Bradley offer paid him $700,000 a year, which suggests it was an efficient breach for Ford. Even if he had to pay the $1.2 to Kent State (rather than shift that cost to Bradley), he would net $1.6 million over the next four years rather than the 1.2 he would have earned had he stayed put. By the way Kent State is now 13-5 under the coach who replaced Ford there.
Setting a liquidated damage provision at the level of the employee’s compensation seems, to put it mildly, arbitrary. It is true that, as the court noted, there are a lot of damages that are simply unquantifiable (for example, whether a particular recruited athlete would not go elsewhere once the coach left, the financial significance of which depends both on how well that athlete would have played in a team sport and how such play might affect the gate). In other words, the damages are pretty clearly unascertainable, satisfying that prong of the usual test.
But the “reasonable effort” to estimate those damages seems plainly lacking although the opinion is more than a little confused on this point. One might think that the fact that Kent State did no “financial analysis” of possible harm (although it identified a number of headings where damage might occur) might be dispositive, but nope. The explanation might be a quirk in governing Ohio law, which does not explicitly focus on the reasonableness of the estimate. Instead, the court focused on whether the agreement was unconscionable, and found Ford a sophisticated party who had consulted with an agent and/or attorney. Nevertheless, the court also found the damages reasonable, even if only based on the additional cost of hiring a new coach – and to do so, it looked to Ford’s salary at Bradley. In other words, if Kent State had to hire a replacement for Ford because he left for a better paying job, a suitable replacement would cost more or less what Ford made elsewhere. Maybe true, but it’s still hard to see what that has to do with pegging damages at yearly salary.
There was a strong dissent, which may mean an appeal down the road to the state Supreme Court. That would provide an opportunity to clarify a muddy area. In the meantime the Kent State decision might give greater impetus to employer use of liquidated damages clause. Oh, and a final irony: more or less at the same time it was trying to enforce the basketball coach’s clause, Kent State was trying to invalidate a football defensive coordinator before another Ohio court in Fleming v. Kent State. While it lost on one issue, it may still prevail on others. Speaking of having one’s cake….
P.S. My apologize for not hyperlinking the two cases to a free source, but there's some problem in Ohio. The cites are: Kent State Univ. v. Ford, 2015-Ohio-41 (Ct. App.) and Fleming v. Kent State Univ., 17 N.E.3d 620 (Ohio Ct. App. 2014).
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
What’s the confidential information about a fast-food restaurant franchise that justifies having all its employees sign a non-competition agreement? Jimmy John’s Sandwich Shops is the restaurant chain—stores nationwide—and the lawsuit is Brunner v. Jimmy John’s Enterprises, Inc., No. 1:14-cv-05509 (N.D. Ill., filed July 18, 2014). Although the lawsuit leads with a collective action under the Fair Labor Standards Act, a recent Huffington Post report (followed by the New York Times) points to the plaintiffs’ additional effort to declare void and enjoin enforcement of a Jimmy John’s Employee Confidentiality and Non-Competition Agreement. See First Am. Compl. ¶ 293.
According to that Agreement (¶ 1), under the standard franchise agreement between a franchisee and Jimmy John’s Franchise Inc. (JJF), “all employees” of the franchisee “having access to Confidential Information are required to execute” the Employee Confidentiality and Non-Competition Agreement. The term “Confidential Information” is quite broadly defined (Agreement ¶ 2(a)). The Agreement then provides in relevant part:
Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after . . . he or she will not have any direct or indirect interest in or perform services for (whether as an owner, partner, investor, director, officer, representative, manager, employee, principal, agent, advisor, or consultant) any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located within three (3) miles of either (1) ___________________ [insert address of employment], or (2) any such other JIMMY JOHN’S Sandwich Shop operated by JJF, one of its authorized franchisees, or any of JJF’s affiliates.
Agreement ¶ 3 (emphasis added). The Agreement (¶ 6) also gives the employer-franchisee and JJF the right to seek reimbursement for costs and attorney fees incurred to enforce the Agreement against the employee.
In Brunner, the plaintiffs assert that the above-quoted non-compete clause effectively restricts an employee “from working in an area that is over 6,000 miles large, at innumerable types of business . . . in any capacity, for a period of two years in 44 different states and the District of Columbia. (First Am. Compl. ¶ 185). They also argue that the clause is overly broad, because it bans “any and all employment, association, ownership or consultation with any business that derives more than 10% of its revenue from selling a range of sandwiches, pita, wraps or rolls.” (First Am. Compl. ¶ 187).
The Agreement says it is governed by Illinois law (Agreement ¶ 7). In Illinois, an employee non-complete clause, to be enforceable, has to be “ no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor, and (3) is not injurious to the public.” Reliable Fire Equipment Co. v. Arredondo, 965 N.E.2d 393, 396 (Ill. 2011). A “legitimate business interest” can be at stake when, for example, the employee acquires “confidential information through his employment.” Id. at 403.
So, what’s that confidential information that Jimmy John’s Franchise, Inc. and its employer-franchisees are trying to protect? Is it really worth applying the non-compete clause’s time, subject matter, and geography restrictions to all former employees of a Jimmy John’s Sandwich Shop? Was it reasonable to believe, both when drafted and today, that this non-compete clause would have been enforceable against any former Jimmy John’s Sandwich Shop employee? It is still early days in the Brunner litigation, so stay tuned.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, September 18, 2014
In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.
This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages. Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.
There are two possible incentives that courts have explored. On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization. In this view, denying rights and remedies will reduce undocumented immigration. On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ. In this view, denying rights and remedies will increase undocumented immigration.
Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.
The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”
I think that the Tennessee Appeals Court got it right. Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job. Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.
Now for the side notes:
The oral argument in the Torres case is available on the Appeals Court’s website. At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.” Mr. Wilson answers, “Wales,” and some pleasant conversation ensues. It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.
And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.” (Mr. Torres actually obtained a U visa in February 2013.) At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court. Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.
(Thanks to my colleague Sue Willey for alerting me to the Torres case.)
-- Charlotte Alexander
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 28, 2014
A while ago, I commented on a dispute then before the Kentucky Court of Appeals regarding the intersection of the ministerial exception to contract law. On appeal, the Kentucky Supreme Court has just weighed in, issuing a pair of decisions that take a nuanced approach to who is a "minister" for purposes of the exception and, perhaps more significantly, analyze the role of the exception when it's contract law -- not discrimination -- that is at stake.
The cases, Kirby v. Lexington Theological Seminary and Kant v. Lexington Theological Seminary both arose in the wake of financial problems at the Seminary resulting in the termination of tenured professors. The core claims in both actions were that the Seminary had violated the tenure rights of the professors as set forth in the Faculty Handbook. The Seminary's main response, looking to the Supreme Court's recent endorsement of the doctrine in Hosanna Tabor, was that the "ministerial exception" barred the suits. The application of that doctrine was especially counterintuitive on the case of Professor Kant, who was a Jewish scholar teaching at a Christian seminary.
The Kentucky Supreme Court had little difficulty in deciding that Seminary qualied as a religious institution able to claim the exception, but whether Kirby was a minister within it was "much more complicated." Nevertheless, and despite the fact that Kirby was not ordained, it found a constellation of facts pointing in that direction, including both his traching and participation in worship.
So far, so bad for Kirby, and, consistent with Hosanna Tabor, the court did affirm dismissal of his claim for racial discrimination.
However, it refused to dismiss Kirby's contract claim, reasoning (1) enforcement of contracts does not implicate concerns about government interference with religion and (2) the contract did not involve ecceliastical matters that would bar suit under Kentucky's "eccelesiastical abstention" doctrine. Roughly translated, the first principle recognizes the right of churches and other religious institutions to enter into contracts subject to the second principle, which forbids civil courts from resolving even contract disputes by deciding religious questions.
Given that the Seminary chose to circumscribe its right to discharge professors by granting them tenure, the court saw no question of government control of a church. And given that the Faculty Handbook permitted discharge of tenured professors only for cause related to their character or performance -- not for financial reasons -- there was no reason to abstain: "[W]hen the case merely involves a church, or even a minister, but does not require the interpretation of church doctrine, courts need not" abstain. Presumably, had the discharges been justified in terms of performance that implicated religious issues -- such as departures from orthodoxy in teaching -- the ecclesiastical abstention principle would have barred the suit.
As for Professor Kant, the court found him not to be a ministerial employee to begin with. Rejecting the view that all Seminary professors were necessarily ministers, it found that, unlike Kirby, Kant "did not participate in significant religious functions, proselytize, or espouse the tenets of faith" of his employer. Even though his teaching might have contributed to the overall mission of the Seminary, that was not enough to make him a minister. Further, while Kant's personal belief system -- he was a "practicing Jew" -- did not necessarily mean he was not a minister, the reality remained that his work was chiefly secular.
Despite not falling under the ministerial exception, the court considered whether Kentucky;s ecclesiastical abstention doctrine would nevertheless Kant's bar the suit, finding the analysis in Kirby controlling: essentially, that there was no religious question involved.
Tuesday, May 20, 2014
Please welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:
Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.
Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.
Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.
Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?
Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.
This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.
May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 16, 2014
CALL FOR PROPOSALS
ASSOCIATION OF AMERICAN LAW SCHOOLS (AALS)
SECTION ON CONTRACTS
2015 ANNUAL MEETING
JANUARY 2-5, 2015
MIND THE GAP! – CONTRACTS, TECHNOLOGY AND LEGAL GAPS
The AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, Mind the Gap! - Contracts, Technology and Legal Gaps, to be held in Washington, D.C. on January 2-January 5, 2015.
Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property. Who owns the data collected by embedded medical devices? Can employers wipe departing employees’ phone data? To what extent are companies liable for harms created by their inventions, such as driverless cars? Who owns crowd sourced content?
Courts and legislatures are often slow to respond to these issues. To fill this legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. They limit their liability and allocate rights through contractual provisions. Technology affects the way contracts are used as well. Employers may have employees agree to remote phone wiping policies in their employment agreement or through click wrap agreements that pop up when they connect to the network server. Through contracts, businesses establish norms that can be hard to undo. The norm of licensing instead of selling software, for example, was established through contract and has become entrenched as a business practice. The collection of online personal information through online contracts is another example.
The Section seeks two or three speakers to join our panel of invited experts to discuss how technology has affected the use of contracts. How have parties used contracts to address the risks created by technologies? In what ways have contracts been used to privately legislate in the gap created by technological advancements? What concerns are raised when private ordering is used to fill the legal gap created by technology? What are, or should be, the limits of consent and contracting where emerging technologies are involved?
Drafts and completed papers are welcome though not required, and must be accompanied by an abstract. Preference will be given to proposals that are substantially complete. Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication). There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.
We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section. We will give some preference to those who have not recently participated in the Section’s annual meeting program.
DEADLINE: August 15, 2014. Please e-mail an abstract or proposal to section chair, Nancy Kim (email@example.com) with “AALS Submission” in the title line by 5:00pm (Pacific Time) August 15, 2014. Submissions must be in Word or PDF format.
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to firstname.lastname@example.org no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)
Monday, March 24, 2014
I just posted on SSRN an article I've co-authored with a slew of other folks. My purpose in blogging it, however, is not so much the content of the article, but the process of creating it. The article grew out of a panel presentation I gave last May at a LawAsia Employment conference. At that conference, I and attendees from several other countries learned from each other that although labor outsourcing is prevalent in all of our countries, the approach to legally regulating it varies considerably. We decided that we'd each write a summary of our country's laws; I then collected the summaries, organized them into an article, added a section comparing and contrasting the different approaches, and found a journal to publish it.
What I've particularly enjoyed about this project is the opportunity it's given me to work with labor/employment practitioners throughout the world. I'm looking forward to collaborating with them on future projects, and next time I'm in Istanbul or Jakarta or Melbourne or Beijing, I'll have a new friend there happy to show and introduce me around.
Anyway, the article is A Comparative Analysis of Labor Outsourcing (forthcoming Arizona J. Int'l & Comparative L. (2014 )). Here's the abstract:
This article compares the laws and the practice of labor outsourcing in five countries: Australia, China, Indonesia, Turkey, and the United States. The article finds both significant similarities and differences among the countries. For example, labor outsourcing is globally prolific and seems to be increasing. However, the general legal approach to regulating it varies considerably, with some countries adopting a regulatory model, others a hybrid regulatory-contractual model, and others not regulating it at all. Similarly, the scope of legal regulations varies considerably by country: some focus on protecting existing employees, other focus on curbing exploitation of workers performing outsourced work; some countries regulate the types of work that can be outsourced or subcontracted and others regulate the firms that can provide labor outsourcing services. Thus, a thorough understanding of labor outsourcing can be achieved only from considering the different perspectives and legal regimes in which it operates.
Tuesday, March 11, 2014
Sam Estreicher and I have just had our article, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, published in the North Carolina Law Review. People can (and already have) take issue with our argument that the U.S. approach to unjust dismissal may not, in practice, be as far apart from other countries' as many have assumed. We obviously encourage such comments and look forward to further discussion.
However, I wanted to mention what I believe to be an equally important aspect of the article. As you'll notice if you download it, it's immense and very heavily footnoted. Sam & I worked hard to give as accurate a picture of we could of the studied countries' unjust dismissal laws--both on the books and as they function on the ground. For instance, where available, we provide data on average damage awards and convert those awards to current U.S. Dollars. We also explore various aspects of termination, including rules on unjust dimissals, notice, severance payments, economic dismissals, and unemployment benefits. One of the reasons that we wrote this article was that the many years of wishing that someone else would write it didn't seem to be working. So our hope is that it will serve as a useful research tool for others. While I'm at it, I should give another thanks to the research assistants and law review editors who provided invaluable help with this article. Maybe some day the law review students will stop glaring at me for subjecting them to all the foreign cite checking they had to endure.
Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals.
Although other countries’ cause regimes differ significantly from the United States on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data—particularly claimants’ success rates and average remedies—in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by United States standards. This suggests that the United States, with its at-will default and broader remedies, is actually part of a relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the United States employment dismissal system and the dismissal systems of cause regimes.
Friday, February 21, 2014
Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.
The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:
Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon
Teaching Employment and Labor Law
A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim
Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)
Tuesday, February 11, 2014
Friend of the blog Wendy Greene (Cumberland, Samford U) writes to tell us of an upcoming conference at UCLA that might interest our readers. The topic is Race, Labor, and the Law, the sponsor is the UCLA Institute for Research on Labor and Employment, and the program looks great:
Friday, February 28, 2014
8:00 AM - 8:10 AM
- Chris Tilly, Ph.D. | Director, UCLA Institute for Research on Labor and Employment; Professor of Urban Planning, UC Los Angeles
8:10 AM - 8:55 AM
- Ruben J. Garcia, J.D., LL.M. | Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
- "The Relationship Between Racism and Anti-Union Animus"
9:00 AM - 10:30 AM
Transformation of the Labor Movement
- Héctor Cordero-Guzmán, Ph.D. | Professor of Sociology and Urban Education, School of Public Affairs, Baruch College, City University New York
- "Worker Center, Worker Center Networks, and the Promise of Protections for Low Wage Workers under the FLSA"
- Victor Narro, J.D. | Project Director, Center for Labor Research and Education, Institute for Research on Labor and Employment, UC Los Angeles
- Saru Jayaraman, M.P.P., J.D. | Director, Food Labor Research Center, University of California, Berkeley; Co-Founder & Co-Director, Restaurant Opportunities Center United
- "Racial Segregation in the Restaurant Industry: Challenges & Opportunities"
10:35 AM - 12:05 PM
Panel A: The Politics of Prison and Labor: How Incarceration Affects Reentry, Employment Opportunities, and the Labor Movement as a Whole
- Kelly Lytle Hernandez, Ph.D. | Associate Professor of History, UC Los Angeles; Director, UCLA Department of History's Public History Initiative
- Marta Lopez Garza, Ph.D. | Professor of Gender and Women's Studies and Chicana/o Studies, California State University, Northridge
- "When Will the Punishment End?"
- Heather Ann Thompson, Ph.D | Associate Professor of History and African American Studies, Temple University
- "Making Mass Incarceration Matter to the American Labor Movement"
Panel B: Bringing Workers Into Focus: Worker Cooperatives, Black-Latino Relations in the Workplace, and Racial Alliance Building in the Labor Movement
- Jassmin Poyaoan | J.D. Candidate, UCLA School of Law, UC Los Angeles
- Vanessa Ribas, Ph.D. | Assistant Professor of Sociology, UC San Diego
- "The Value of Being Negro, the Cost of being Hispano: 'Disposability' and Challenges for Cross-Racial Solidarity in the Workplace"
- Alexandra Suh, Ph.D. | Executive Director, Koreatown Immigrant Workers Alliance (KIWA)
12:05 PM - 1:05 PM Lunch
1:05 PM - 2:35 PM Concurrent Panels
Panel A: Intimate Labor
- Mireille Miller Young, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
- "Illicit Eroticism: The Politics of Intimate Labor in Black Women's Porn Work"
- Grace Chang, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
- Elena Shih | Ph.D. Candidate in Sociology, UC Los Angeles
- "Rehabilitating Intimate Labor: Transnational Racial Formations of 'Good Work' in Human Trafficking Rescue"
Panel B: Labor Law Through a Critical Race Theory Lens
- Maureen Carroll, J.D. | Greenberg Law Review Fellow, UCLA School of Law, UC Los Angeles
- "Privilege and Invisibility in Labor Practice"
- Nayla Wren | J.D. Candidate, UCLA School of Law, UC Los Angeles
- Sanjukta Paul, M.A., J.D. | Attorney & Clinical Teaching Fellow, UCLA School of Law, UC Los Angeles
- "Normative Obstacles to Empowerment Lawyering in the Workers Rights Context"
2:40 PM - 4:40 PM Concurrent Panels
Panel A: Intersectional Analysis of Women in Low Wage Labor, Organizing, and Combating Workplace Discrimination
- Sarah Haley, Ph.D. | Assistant Professor of Gender Studies, UC Los Angeles
- Eileen Boris, Ph.D. | Hull Professor and Chair, Department of Feminist Studies, UC Santa Barbara
- "(In)Visibility and the Color of Home Care: Law, Recognition, Justice"
- D. Wendy Greene, J.D., LL.M. | Professor of Law, Cumberland School of Law, Samford University
- Ellen Reese, Ph.D. | Professor of Sociology and Chair of Labor Studies, UC Riverside
- "Intersecting Inequalities Among Latina/o Warehouse Workers in Inland Southern California: Challenges and Prospects for Justice"
Panel B: Safe Jobs, Healthy Jobs, Good Jobs
- Anne E. Fehrenbacher MPH | Ph.D Student in Community Health Sciences, UC Los Angeles
- "Job Insecurity and Quality of Life: Testing a Causal Model of Job Stress Proliferation Moderated by Race, Gender, and Education"
- Kevin Riley, MPH, Ph.D | Director of Research and Evaluation, UCLA Labor Occupational Safety & Health (LOSH), Institute for Research on Labor and Employment, UC Los Angeles
4:45 PM - 5:45 PM Wine and Cheese Reception
Saturday, March 1, 2014
9:20 AM - 9:25 AM
- Pamela A. Izvănariu, J.D., LL.M. | Director of Research & Development, UCLA Institute for Research on Labor and Employment, UC Los Angeles
9:25 AM - 11:15 AM
Labor and Employment Issues Facing Indigenous Peoples in the U.S.
- Matthew L.M. Fletcher, J.D. | Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University
- "On Treaties and Internal Tribal Sovereignty"
- James Kawahara, J.D. | Adjunct Professor in Practice, UCLA School of Law, UC Los Angeles; Attorney, Kawahara Law P.C.
- "Judicial Application of Federal Labor and Employment Laws to Indian Tribes When Congress is Silent: What Fills the Vacuum?"
- Lynn Stephen, Ph.D. | Professor of Anthropology and Director of the Center for Latino/a and Latin American Studies, University of Oregon
- "Indigenous Mexican Workers in the U.S.: Labor Conditions, Health, and Identity"
- David Kamper, Ph.D. | Associate Professor and Chair of American Indian Studies, San Diego State University
- "The Work around Tribal Sovereignty: Negotiating Notions of Labor, Jobs, & Class in Tribal Governmental Gaming and Economic Development"
11:20 AM - 1:10 PM
Race, Labor, and Immigration
- Hiroshi Motomura, J.D. | Professor of Law, UCLA School of Law, UC Los Angeles
- "Race, Labor, and the Making of Immigration Outside the Law"
- Sameer Ashar, J.D. | Clinical Professor of Law, Irvine School of Law, UC Irvine
- "Immigration Enforcement, Race, and Resistance"
- Shannon Gleeson, Ph.D. | Associate Professor of Latin American and Latino Studies, UC Santa Cruz
- "Precarious Labor, Tenuous Rights: Lay v. Legal Conceptions of Justice at the Workplace"
- David Cook-Martin, Ph.D. | Associate Professor of Sociology, Grinnell College
- "A House Divided: Labor and its Contrasting Roles in Shaping Ethnically Selective Immigration Law in the Americas"
1:10 PM - 2:10 PM Lunch
2:10 PM - 4:00 PM Worker Voice, Labor Speech
- Leticia M. Saucedo, J.D. | Professor of Law, UC Davis
- Camille Gear Rich, J.D. | Associate Professor of Law, Gould School of Law, University of Southern California
- "Post-Racial Hydraulics: The Role of the Fair Labor Standards Act in the Repackaging of Race and Gender Discrimination Claims"
- Nicholas Espiritu, J.D. | Staff Attorney, National Immigration Law Center
- Catherine Fisk, J.D. | Chancellor's Professor of Law, Irvine School of Law, UC Irvine
- "Worker Voice and Labor Speech After Harris v. Quinn and Citizens United: Why Unions Should Have the Same Free Speech Rights as Corporations and Why the Supreme Court Thinks They Do Not"
4:00 PM - 4:45 PM
- Ian F. Haney-López, J.D., M.P.A. | John H. Boalt Professor of Law, UC Berkeley
- "Dog Whistle Politics/Dog Whistle Racism"
If you will be in the area, it seems like a great opportunity to hear from a broad mix of subject areas, disciplines, topics, academics, and people in the field. For more information and to register, see here.
Monday, January 27, 2014
Since I've been critical of some of the evolving Restatement on Employment Law, it seems only fair to heap some praise upon the project when I see improvement. And, in my view, section 8.01, the Employee Duty of Loyalty has considerably improved from earlier versions. The reporters are to be commended for their responsiveness to suggestions raised during earlier discussions at the ALI.
The major improvements are twofold.
First, earlier versions imposed a duty of loyalty on all employees. What exactly that meant was contested, but the present version (Council Draft No. 11, Dec. 2013), is narrower. It would provide two flavors. One is that owed by "employees in a position of trust and confidence"; these individuals owe "a fiduciary duty of loyalty." The other "depending on the nature of the employment position" is a "contractual duty of loyalty." §8.01(a).
While the current formulation could be critiqued, I come to throw bouquets not brickbats, and the bottom line is that the current version can no longer be read to impose on all employees fiduciary-like duties. Indeed, the sharp distinction between positions of trust and confidence and those "depending on the nature of the employment condition" will necessarily focus the attention of courts following the new Restatement on what, exactly, the law should expect of the particular employee. The resultant uncertainty is problematic but at least we've avoided the overinclusion of the first efforts.
Not insignificantly, comment a suggests that the "faithless servant" remedies (upon which I've expounded at length) are limited to those breaching a fiduciary duty while those breaching only a contractual duty are subject to only contract remedies. It also suggests that fiduciary duties are not disclaimable by contract while contractual duties are more malleable.
But (OK, here's a small brickbat) Illustration 2 throws some doubt on the distinction between the two flavors of duty. It imagines E, a line worker for a manufacturer X who, by no stretch of the imagination, is a fiduciary but who stumbles across his employer's business plan, helpfully labeled "Trade Secret." According to the Illustration, E "became a fiduciary responsible for maintaining the secrecy of X's trade secret when it came into his possession." It's not that I think that liability shouldn't attach in the circumstances, but it does seem to make the notion of "fiduciary" broader than the blackletter would suggest.
The second major improvement of this draft is replacing protection of "confidential information" with "trade secrets." §8.01(b). This change is less dramatic since earlier drafts seemed to equate the two, but the use of the potentially broader "confidential information" risked an unintended consequences of expanding protection beyond what trade secret law would protect.
Like an earlier version, current §8.01(c) stresses that any duty of loyalty "must be interpreted in a manner consitent with" other employee rights, such as those under the public policy tort, and, more generally with "any privilege or obligation to cooperate with professional or government authorities." See also §8.03(b) (duty of loyalty not breached if "the employee acts under a legal duty, legal protection, or other permission by law in making disclosure or use.") This explicitly recognizes the innate tension between the Restatement's encouragement of whistleblowing and its protection of confidences. It's probably the best that can be done at the blackletter level of generality.
Wednesday, January 15, 2014
Exhibit A: The early drafts not only approved the tort of wrongful discharge in violation of public policy but extended it to "other material adverse action." So, for example, Tentative Draft 2, revised in July 2009, provided that the tort reached
an action that significantly affects compensation or working conditions or other action, short of discharge, that is reasonably likely to deter a similarly situated employee from engaging in protected activity.
I don't recall much controversy about this, and it makes sense, right? The animating concept for the tort is that employers ought not be able to deter employees from public-policy furthering conduct by employment-related sanctions. Permitting suit for wrongful demotion is consistent with that notion. Plus, of course, the framing was essentially the same as the that used by the Supreme Court for Title VII retaliation cases in Burlington Northern v. White.
I was more than a little shocked, therefore, to open Council Draft 11 (December 2013) to find the tort cut back to reach only wrongful discharge. See 5.01. Although constructive discharge remains actionable, cmt. c, wrongful discipline has been eradicated root and branch.
The explanation? The earlier version recognized that few cases had recognized wrongful discipline, but argued that the "better approach" was to allow "claims of wrongful discipline short of discharge to go forward, where such discipline is likely to deter" going forward with protected activity.
The explanation for the change? One is that "the majority view of jurisdictions addressing the issue" refuses to extend the tort beyond discharge. Of course, the ALI is not bound to accept the majority view, but what's even odder is that the Reporter's Notes cite courts in 6 jurisdictions finding wrongful discharge actionable at common law (including two state supreme courts) and 6 (including one supreme court) holding to the contrary (once different decisions from the same jurisdiction are aggregated). And, no there's not a trend: the most recent case, from West Virginia, approved a claim of wrongful withholding of wages).
It's not that I think that nose counting should be outcome determinative, nor have I undertaken my own review of the case law, but it's hard to see, taking the Reporters to be accurate, that the proposed formulation is the majority rule. At worst, the division in authority allows the Institute to do what it is best at -- formulating the most appropriate rule.
So what's the policy explanation for the change? The course originally laid out is objectionable because it "would require courts to scrutinize routine employer action on pay, promotion, and the like without a specific legislative directive to proceed." That's a striking passage because it reflects exactly what the public policy tort does with wrongful discharge -- create a tort without legislative direction.
If there's a difference between the two situations, then, it must be the fear that extending the tort would result in the proverbial flood of litigation. But, if that's such a big risk, why have only 12 jurisdictions even addressed the question? And my recollection is that most commentators think this is a "no problem problem" because of the strong disincentives for suing one's current employer.
Finally, the rejected approach would essentially map on to Title VII retaliation law. Of course, there was "legislative direction" for a retaliation cause of action, but the Burlington Northern Court essentially looked to the logic of the provision to define what qualified as actionable retaliation. The ALI should follow in the Court's footsteps, and revert to the earlier formulation.
Absent that, the whole notion of "protected activity" in the public policy tort arena becomes somewhat chimerical -- maybe we should speak of "partially protected activity."
Monday, January 6, 2014
The New Jersey Appellate Division just handed down a troubling opinion that, if not corrected or at least clarified on appeal, has the potential to provide employers with massively greater leverage in dealings with their employees. What is even more remarkable is that State v. Saavedra was decided in a state that is generally pretty permissive with respect to the actions employees can take in pursuing claims under its antidiscrimination and antiretaliation laws.
As the caption suggests, Saavedra is a criminal prosecution, with the defendant having been indicted for “official misconduct” and theft. Her sin was taking a number of documents from her employer, the North Bergen Board of Education, for possible use in her civil suit for discrimination and for retaliation in violation of the New Jersey Conscientious Employee Protection Act. In a nutshell, defendant took hundreds of documents from the Board; her attorney in her civil case against the Board used some of them during the discovery phase of the suit. When her attorney then turned over the documents to Board attorney in the civil suit, that attorney notified the Board's general counsel “who brought the matter to the attention of the Hudson County Prosecutor, who determined that the matter should be presented to a grand jury.” Indictment followed.
Some of the documents contained sensitive information about students, parents, and Board financial dealings (including a parent’s bank statement and a list of students to be seen by a school psychologist). The opinion suggested that the Board could suffer legal liability from the disclosure of such information. But, unlike, say, Erik Snowden, Ms. Saavedra apparently did not publish the documents and appeared not to share them with anyone but her attorney.
The Appellate Division upheld the indictment, and I confess to lacking the expertise to analyze the criminal aspects of this case, although I remain skeptical that any employee who removes documents from a workplace is guilty of theft and, if it is a public workplace, guilty of criminal “official misconduct.” I note that the plaintiff had a pretty low level position, but “official” for purposes of the statute seems to mean only that the defendant is a public employee. The court also had no difficulty with finding that an intent to use the documents to further her civil litigation satisfies the “personal benefit” element of the offense. These conclusions mean that most, if not all, New Jersey public employees face the risk of criminal charges for similar conduct
It is possible that I’m being too harsh, however. First, the Board apparently had a policy in place and employees were trained regarding appropriate use of such documents, so, contrary to the defense attorney’s claim, this wasn’t exactly like someone taking work home. Second, some documents appear to have been originals, and the court refers to evidence that defendant had purposes other than using the documents in support of her civil suit, including “disrupt[ing] the psychiatric treatment of students with special needs,” and exposing the Board to liability. How persuasive that evidence might be is another question, but the possibility may take Saavedra out of the garden variety claims of employees “purloining” employer documents.
What’s surprising about the case is that New Jersey has been especially protective of employees who engage in self-help to document claims under its Law Against Discrimination or its Conscientious Employee Protection Act. While the federal courts would likely hold that firing an employee for stealing documents is not actionable retaliation under, say the antidiscrimination laws, e.g., g., Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998) (taking documents from supervisor’s desk not protected under Title VII); cf Niswander v. Cincinnati Insurance Co., 529 F.3d 714 (6th Cir. 2008) (balancing employee and employer interests), New Jersey engages in a much more nuanced analysis.
As I’ve blogged before on Workplace Prof, in Quinlan v. Curtiss Wright. the New Jersey Supreme Court there dealt with an employee who copied 1800 pages of documents and provided them to counsel before he filed suit. When the employer learned of the conduct, it fired her for theft, and when she filed a retaliation claim, it argued that her misconduct justified the discharge.The New Jersey Supreme Court split the difference, essentially rejecting the company’s argument that such conduct necessarily justified discharge but in the process producing a multi-factor test for determining whether such conduct is protected, including:
- whether the employee came upon the documents "innocently"
- whether the employee went beyond sharing them with her attorney to evaluate her claim
- the nature of the documents, including the strength of the employer's interest in confidentiality
- whether the disclosure was disruptive
- the strength of the employee's reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).
Saavedra, then, had to confront the significance of Quinlan for a criminal proceeding implicating similar employee “theft,” and it found that decision largely irrelevant. It rejected any need for the trial court to apply a Quinlan analysis in deciding whether to dismiss the indictment (although the trial court had covered its bases by suggesting that such an analysis wouldn’t help defendant).
Accordingly, the Appellate Division rejected defendant's argument that “Quinlan essentially prevents the State from introducing evidence before the grand jury that demonstrates a prima facie showing that defendant ‘unlawfully t[ook], or exercise[d] unlawful control over’ the documents. Quinlan did not establish a bright-line rule that automatically entitled defendant to take the Board's highly confidential original documents.” Saavedra cited language from Quinlan stressing the risks of self-help for an employee since a subsequent court may not find her conduct protected.
The one ray of hope for defendant was the possibility that Quinlan may come in by the backdoor later in the proceedings. Defendant had made an “honest error” argument, which the court said “amounts essentially to a claim of right defense.” Under New Jersey law, a defendant may defeat a charge of theft by asserting a defense that she acted “under an honest claim of right to the property ... that [s]he had a right to acquire or dispose of it as [s]he did.” Presumably Quinlan is the basis for an honest claim of right – regardless of whether she actually satisfied the multi-factor analysis. Such a defense, however, operates at trial, not to justify dismissing an indictment, so defendant has to face a criminal trial to assert this defense.
The prospect of prosecution alone, even if an “honest error” defense is available or conviction is otherwise unlikely, would strike many as enough to chill potential LAD and CEPA plaintiffs. But the Saavedra court showed little patience with this argument. “Defendant implies that prosecuting her for theft and official misconduct is against LAD's public policy of rooting out discrimination in the workplace. This implication amounts to a request that we hold it is against public policy to criminally prosecute employees for taking employer public documents.” So framed, the argument was rejected.
That argument, however, resonated with dissenting Judge Simonelli, who would have dismissed “in the interests of justice” largely because
[i]t is fundamentally unfair to criminally prosecute and imprison an individual for theft, and official misconduct, for taking or copying confidential employer documents while engaged in protected activity pursuant to the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination. The law gives no fair warning the conduct is illegal.
(citations omitted). As the last sentence suggests, the dissent relied on Quinlan to undercut whatever fair warning the New Jersey criminal statute might otherwise have provided of the impermissibly of defendant’s conduct.
It’s easy to dismiss Saavedra as a sport case brought by an overzealous county prosecutor. And, of course, the “official misconduct” charge is limited to public sector employees. But the theft charge is applicable to any employee, and the possibility that a vindictive employer would try to persuade a prosecutor to indict an employee who took company documents would certainly chill such conduct. While there is only a trickle of instances to date, Saavedra is only one of several criminal prosecutions of employees for taking documents to prove discrimination or public policy claims.
Plaintiffs’ counsel in New Jersey may well have to reconsider normal advice to clients to “gather evidence”! And what about the client who arrives at your office with a briefcase full of documents, proud of the information she has amassed? Is the best advice now to tell her not to bring suit – no matter how valid the claim – because of the risk of criminal charges? Of course, the risk that a prosecutor will indict is probably very small, but Saavedra renders it more than a logical possibility.
I also remain confused about exactly what constitutes theft of the documents. The court seemed worried more about the potential use of the information reflected in the documents, not merely about the taking of the physical objects (although its reference to defendant taking originals might suggest an intent to sabotage the operations of the Board, but that would seem to be relevant to the official misconduct charge, not the theft “of moveable property” that was charged).
Suppose the defendant, rather than taking originals or using Board paper to make copies, downloaded a PDF copy or took images with her smartphone? And what about electronic “copies” of electronic communications or files, including emails (say, for example, forwarded from one’s work email address to her personal account or copied into a Word document)? What about taking verbatim notes on the content of the paper or electronic documents? What about simply sharing the content (orally) with one’s attorney? The state’s statutes define theft to include “trade secrets,” N.J. Stat. Ann. § 2C:20-1 (g), but the charged offense was theft of “moveable property,” a strange concept in this situation
The point is that if the crime – that is, the theft -- is the taking of the content, not the paper, and sharing it with one’s attorney when contemplating suit, then this case has truly staggering implications, well beyond the particular facts or even LAD and CEPA. On that, at least, it seems there must be substantially greater clarification. Or am I reading too much into this?
Thanks to Kathleen Boozang and Tim Glynn for helping me think through some of the implications of the case.
Tuesday, December 17, 2013
Here is information about a timely symposium at Berkeley Law on mandatory predispute arbitration in the workplace, a trend that has taken off with all the recent pro-arbitration Supreme Court opinions:
Please join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the Berkeley Journal of Employment and Labor Law (BJELL) on February 27, 2014 for Forced Arbitration In The Workplace: A Symposium at the University of California, Berkeley School of Law (Boalt Hall).
Convened by The Institute in collaboration with the Berkeley Journal of Employment and Labor Law, the Symposium is designed to bring together academics, practitioners, and others in the legal community to engage in a thoughtful dialogue and help raise awareness about forced arbitration of workplace disputes. Articles from the Symposium will be published in BJELL’s Spring 2014 issue.
Program highlights include a keynote address by former Secretary of Labor Robert B. Reich, the Chancellor’s Professor of Public Policy at the University of California, Berkeley.
Monday, December 16, 2013
Over the last several years I frequently have found myself explaining at-will employment to law faculty/students in foreign countries who are incredulous at how little protection American law provides to employees. Now, I'm writing an article for a non-American audience, and I want to make the point that under the at-will rule, employees legally can be fired for bizarre or idiosyncratic reasons. If you have illustrative examples of cases that help illustrate this, please leave a comment. I'd love to collect some good examples to help illustrate the point.