Thursday, August 30, 2012
One of my 1L students has asked me to review his facebook page and suggest items to cull to ensure the page does not offend prospective employers. I’m disinclined to review the student’s Facebook account line-by-line, photo-by-photo, and inclined instead to give some general advice. I’ll take my first shot below the jump, but would welcome comments to this post if you have additional advice to add or if you would advise differently.
Friday, August 10, 2012
Kendall Issac (Appalachian) posts on the recent Sixth Circuit Branham case on his Workplace Dignity blog (it includes a link to the decision). The basics are that a tenured Cooley law professor was fired, allegedly without just cause. Kendall provides a good description of the case, as well the procedural and remedial issues at stake (e.g., Cooley didn't hold a required faculty vote on the firing until 3 years after it occurred). But I wanted to address the first part of the decision, in which the Sixth Circuit holds that "tenure" doesn't necessarily mean continuous employment with just cause protection.
The basis of the holding is the usual language that the employment contract rules the day. That contract incorporates the ABA's tenure policies and language stating that "[n]o tenured faculty member shall be dismissed . . . prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure." Others know more about the ABA's policies, although I have doubts whether the ABA would agree with the court's interpretation that the policies only make continuous employment optional for tenured faculty (if I remember correctly, some deans even tried to push language to this effect a few years ago, without success). As for the quoted language, the court seems to rely on the fact that Cooley officially had faculty on one-year terms--hence no continuous employment.
As most readers are well aware, courts bend over backwards to avoid continuous just cause employment contracts all the time. But the court's disregard for the normal meaning of "tenure" still strikes me as troublesome. Before this case, did anyone at Cooley--administration or faculty--really think that tenured faculty could be fired at will at the end of any given academic year? I doubt it, or else what's the purpose of tenure? I know that at-will is king, but I think there's a good argument to be made that any reasonable interpretation of "tenure" means some form of continuous employment.
This brings me to another point: why did Cooley push this argument? In addition to possibly having problems during their next ABA re-accreditation, the school basically just spent a lot of time and money to "detenure" its faculty. I've got to imagine that Cooley will either change the language of its policies to make its tenure sound more like real tenure, or they will be facing a far more disgruntled group faculty.
Perhaps a good reminder to check your school's tenure policies . . . .
Tuesday, June 19, 2012
At the recent ALI meeting in Washington, where the Institute approved the current version of the Restatement of Employment Law's chapter on Privacy, I criticized one of the proposal's formulations of when an employee has a reasonable expecation of privacy. To no effect, I might add. But not being one to forebear from giving a dead horse another lick or two, let me explain my argument.
The structure of the proposed blackletter requires an employee to have a reasonable expectation of privacy before there can be a violation --although such an expectation does not necessarily mean that the employer's intrusion is actionable since the intrusion must also be "wrongful." § 701
In other words, a REP is necessary but not sufficient, and the Restatement deals with such expectations in a variety of ways. The one I was concerned about had to do with when there was a REP in a physical or electronic location provided by the employer Section 703(b) allows an employer to expressly create such an expectation in subparagraph (1) but also provides in § 703(b) that a REP may be created by conduct when
the employer has acted in a manner that treated the workspace as private for employees, the type of location is customarily treated as private for employees, and the employee made reasonable efforts to keep the location private.
I understood the reciprocal requirements of employer and employee treating the location as private, but was confused by what it meant for "the type of location" to be "customarily treated as private." The word "customarily" suggested looking to other employers' conduct, which seemed to me to put a major crimp in the protection that would otherwise be accorded.
I'm probably saying this more coherently here than I did at the Institute, but suppose an employer treats worker e-mails as private and workers zealously guard that privacy through passwords and other conduct. Should the fact that most employers act otherwise foreclose privacy protection in this setting? As I said in DC, perhaps not very elegantly, doesn't this push towards the lowest common denominator for privacy, maybe only regarding bathrooms?
At the time, I hadn't done much spadework in the cases, but more research since the ALI's Meeting has not alleviated my concerns, nor has it clarified where "customarily" comes from. None of the four cases cited by the Restatement for this section speaks of "custom," although one (Hernandez v. Hillsides, 211 P.3d 1063 (Cal. 2009)), does mention "social norms." I don't have any problem with recognizing privacy expectations when social norms push in that direction (we're back to bathrooms), but I'm not so sure why it would matter to the implied agreement concept that seems to underlay the Restatement's position.
Plus, of course, recognizing a reasonable expectation of privacy in this situation would not open any floodgates since, to be actionable, any intrusion would have to be "wrongful," which requires that the intrusion be "highly offensive to a reasonable person" and that in turn takes into account the "employer's legitimate business and public interests" for the intrusion.
Now I do understand that the expectations of both parties might be shaped by social context, and in that sense broader norms may come into play, but the current phrasing seems ill-adapted to protecting actual privacy expecations in the workplace. I also understand there's only so far in advance of the law that a Restatement can go, but it doesn't seem to me that extirpating "customarily treated as private" from the blackletter would contravene any of the cases cited.
Thanks to Nicole Zito for her terrific work in helping me on this.
Tuesday, June 12, 2012
A number of us were startled by the recent Kentucky Supreme Court decision overturning summary judgment granted to the University of Kentucky in an action brought by a former employee fired for possessing a semiautomatic pistol in his locked car, parked on University property.
The opinion generated ideological criticism from Professor Bainbridge ("Cases like this illustrate that both right and left are willing to throw at-will employment under the bus to advance policy goals." In contrast, I think at-will employment . . . is a crucial social policy that deserves better from those of us on the right who respect free enterprise and free markets."), but I find it more interesting as an exercise in applying relatively well-established public policy tort principles to a unusual setting.
In Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), the employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.
Of course, the University of Kentucky is a state institution, which means that state constitutional constraints would apply and there is a right to bear arms in the state constitution. But the court did not approach the case as a straightforward violation of constitutional rights. Rather, it looked to Kentucky’s “narrow public policy exception” to the at-will doctrine, thereby suggesting that its holding was applicable to private employers as well. To the extent that a public policy claim against a private employer could be predicated on constitutional protections designed to constrain the government, the decision would be radical. Indeed, the Sixth Circuit came out the other way on this precise point in 2009 where the right at issue was found in the Ohio’s state constitution instead of statutes. Plona v. United Parcel Service, Inc., 558 F.3d 478 (6th Cir. 2009), upheld summary judgment for UPS, finding that the public policy barring state interference with the right to bear arms was inapplicable to a private employer; in fact, the Ohio legislature had affirmed the right of most private employment to prohibit firearms on their premises or property.
Back to Mitchell. By invoking the canon of avoidance, the Mitchell court looked to Kentucky statutes rather than the state constitution, and that required sorting through a several laws pointing in different directions. A criminal statute barring carrying of a concealed weapon contained exceptions from its prohibitions, one of which stated that no “person or organization shall prohibit a person from keeping a firearm . . . in a glove compartment of a vehicle…,” and authorized an action to enforce it. That would seem to have resolved the case, except for a fact dispute as to whether Mitchell kept the weapon in his armrest. Kentucky’s legislature might have been a tad over-precise to achieve what were apparently its goals.
Not to worry, however. Another statute dealt with concealed carry licenses, and Mitchell possessed such a license. Although still another enactment authorized colleges and universities to control deadly weapons on their property, it was subject to an exception for licensed concealed carriers, and the provision governing such licenses also barred any “person or organization” from prohibiting a licensed person from keeping a firearm “in his or her vehicle.” No picky limitation to glove compartments here! And yet a third statute specifically barred an employer (as opposed to a person or institution) from firing an employee who possesses a firearm in a vehicle on the employer’s premises.
The court did recognize a tension between the provision authorizing universities to control weapons on their property and the other statutes, but, in light of the license law’s command to liberally construe the right to bear arms and the legislature’s policy in favor of safeguarding weapons in vehicles, the court held that the licensed concealed carrier’s rights prevailed. A concurrence reluctantly agreed.
The decision is interesting in a number of respects. First, given the statutory authorizations of a civil action, it’s not so clear why anyone worried about fitting this case within the state’s public policy jurisprudence. We don’t usually view statutes expressly granting rights to employees as generating common law public policy claims.
Second, while it’s hard to disagree, given the various (if not necessarily consistent) enactments, that the Kentucky legislature meant to generally preserve the right of individuals to keep firearms in their cars, there was also a statute that allowed colleges and universities to restrict that very right. The court’s resolution of the tension seems questionable.
Third, Mitchell illustrates that, when a state has not clearly addressed the question of the right of employers (public or private) to control arms in their workplaces, more general statutory approval of the right to bear arms might trigger public policy protection for armed employees.
Thanks to my research assistant, Justine Abrams, for her help on this.
Thursday, May 31, 2012
I've been meaning to post about this for awhile, and teaching the unit on U.S. Employment Law to my summer students gives me the perfect opportunity. Earlier this spring, the employee handbook from Valve, a gaming company, was floating around the blogs and twitter. It's unusual in that it doesn't talk about the kinds of things we're all used to seeing in handbooks--no policies (exactly), description of benefits (in the usual sense), or disciplinary structure. Instead, it's an introduction into a workplace culture that at least portrays itself as flat (no hierarchy), with work driven by each worker and projects developing organically. The handbook is useful for a couple of things--first as a breath of fresh air, it shows alternative work arrangements might look like. Also, I think I have some serious job envy, although in a lot of ways, it describes what our jobs as law profs are like. Second, it would be a great platform to talk about all of those contract issues that employee handbooks usually raise (sort of the anti-Hoffmann-LaRoche handbook that Rachel Arnow-Richman, Denver, uses to teach transactional skills in employment law), or other issues, like the fact that the figures and cartoons of employees show almost no women, and no people of color, male or female. Anyway, here's the pdf version: Download Valve_Handbook_LowRes
Monday, May 21, 2012
Update (5/25): The Membership of the ALI approved all of Chapter 3 and the privacy sections of Chapter 7 (not the autonomy provisions which were not under consideration) on a voice vote. This leaves two chapters left before the Restatement is complete: Chapter 4 (concerning certain tort issues) and Chapter 9 (concerning employment law remedies).
The 89th Annual Meeting of the American Law Institute (ALI) is going on in Washington D.C. over the nex three days. Worklaw profs joining me here include: Cyndi Nance (Arkansas), Miriam Cherry (Saint Louis), Mike Zimmer (Seton Hall), Larry Rosenthal (N. Kentucky), Matt Bodie (Saint Louis/Notre Dame), Alan Hyde (Rutgers-Newark), and Charlie Sullivan (Seton Hall).
Of particular note, tomorrow the ALI membership will take up Chapters 3 and 7 of the Restatement of Employment Law. Chapter 3, penned by Sam Estreicher (NYU), concerns compensation and benefit issues, while Chapter 7 (written by Matt Bodie) concerns privacy and autonomy interests in the workplace (although only the privacy sections will be taken up tomorrow).
Needless to say, for those of us in attendance, it should be a lively and spirited debate tomorrow over these Chapters.
Thursday, May 17, 2012
Catherine Fisk (UC-Irvine) and Adam Patrick Barry (UC-Irvine class of 2013) have just posted on SSRN their article (forthcoming 16 EREPJ 2012) Contingent Loyalty and Restricted Exit: Commentary on the Restatement of Employment Law. Here's the abstract:
Chapter 8 of the American Law Institute’s Restatement of Employment Law proposes bad law in every sense of the word when it restricts job mobility of current and former employees by imposing a general duty of loyalty and providing for enforcement of non-compete agreements. Its rules are vague and confusing on crucial issues where clarity and precision are needed. In allowing employers to prevent current and former employees from engaging in competitive employment, Chapter 8 is out of sync with the assumptions underlying the at will rule articulated in Chapter 2 of the Restatement, which insists that employment is an at will relationship that either side can terminate in order to pursue more lucrative opportunities with other contracting partners. It is also out of sync with the norms of many contemporary employment relationships in which employees are expected to bring their knowledge and skills to every job and to depart, perhaps after a relatively short-term period of employment, with enhanced knowledge and skills. The only legitimate interests employers have in restraining competition by current or former employees are protected by the law of misappropriation of trade secrets, by the torts of interference with contract and interference with prospective business advantage, and by the corporate opportunity doctrine for managerial employees who owe a fiduciary duty to the firm. The duty of loyalty, as stated in the Restatement and as applied by courts, adds no legitimate protection to employers and is simply anticompetitive. More important, in allowing employers to resort to contract and tort liability to restrict labor market mobility, the Restatement ignores a substantial body of empirical research showing that legal restrictions on mobility are bad for employees, bad for firms, and bad for the economy as a whole. Courts should approach provisions of Chapter 8 skeptically. If they do, the Restatement may fail in its aspirations to shape the law, but at least it will not fail in the ALI’s goal of improving the law.
Wednesday, May 9, 2012
Mitch Rubinstein (NYLS, Rutgers, Adjunct Prof Blog) has just posted on SSRN his article (14 U. Pa. J. Bus. L. 605 (2012)) Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship. Here's the abstract:
In most cases, coverage under our nation’s employment laws boils down to the question of whether or not the individuals in question are “employees” and whether or not the entity in question is an “employer.” Significantly, however, there are burgeoning numbers of cases where employer status is found in the absence of a direct relationship to a statutory employer. This Article refers to these entities as quasi-employers because they are not employers in the traditional sense, yet they are subject to the dictates of employment law legislation.
This Article reviews the following theories of quasi-employer responsibility: the Sibley Interference Theory, the Spirt Delegation Theory, the Joint Employer Theory, and the Single Employer Theory. This Article also reviews the issue of individual supervisory liability as employers under the major employment statutes. Individuals are not normally thought of as employers, but they sometimes have a great deal of influence over the terms and conditions of employees’ employment. Therefore, this Article considers them to be a type of quasi-employer.
In order to analyze the definitional status of employers and quasi-employers, it is necessary to examine the definitional status of employees. Significantly, however, the law is in a complete state of disarray with regard to the definition of employee. Therefore, it should come as no surprise that the definition of employer is also often unclear. Nevertheless, there is a significant body of law that supports treating quasi-employers as employers. Unfortunately, there has not been much scholarship focusing on employer status and virtually no academic commentary discussing the status of quasi-employers.
As with employee status, it is important for there to be a clear definition of who is an employer so that both employees and employers know what their rights and responsibilities are. The consequences of not knowing who ones’ employer is can be fatal to any litigation. It is also important to outline clear criteria because future generations will be looking to established case law to determine employer status in work environments that may look very different from work environments of today.
It is hoped that this Article contributes to bringing about certainty to, in Justice Rutledge’s words, “the borderland” between what is an employer-employee relationship and what is not.
Thursday, May 3, 2012
Pauline Kim (Washington U. - St. Louis) has just posted on SSRN her article (forthcoming 2012 Chicago-Kent L. Rev.) Electronic Privacy and Employee Speech. Here's the abstract:
The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former.
Thursday, April 26, 2012
Wednesday, March 21, 2012
Apropos of yesterday's federalism decision in the FMLA/11th Amendment context, Keith Cunningham-Parmeter (Willamette) has a nice piece on federalism in immigration laws: Forced Federalism: States as Laboratories of Immigration Reform. Here's the abstract:
This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation.
Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole.
Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.
Very timely issue and thoughtful piece!
Tuesday, March 13, 2012
Ariana Levinson (Louisville) has just posted on SSRN her article (forthcoming U. Michigan J. Law Reform, 2013) What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims. I'm fairly certain this is the first study of its kind. Here's the abstract:
This article contributes to the debate over mandatory arbitration of employment discrimination claims in the unionized sector, which, in light of the proposed prohibition on union waivers in the Arbitration Fairness Act, has significant practical implications. Fundamentally, the article is about access to justice. The article examines 160 labor arbitration opinions and awards in employment discrimination cases. The author concludes that labor arbitration is a forum in which employment discrimination claims can be and, in some cases, are, successfully resolved. Based upon close examination of the opinions and awards, the article recommends legislative improvements targeting statutes of limitations, compulsory process, remedies, class actions and, in certain cases, discovery, the standard of review, and a union’s duty of fair representation.
Monday, March 5, 2012
Aditi Bagchi (University of Pennsylvania Law School) has recently posted on SSRN her new paper: Parallel Contract.
Here is the Abstract:
This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic model; in particular, the obligations of the repeat contractor should be understood by reference to its most recent practices and communications with any of the other parties in a given setting.
The second part of this paper excavates the deep reasons why some theories of contract resist distinct models of contract. I propose a typology of contract theory that roughly tracks John Rawls’ distinctions between pure, perfect and imperfect theories of procedural justice. Pure and perfect theories of contract will tend to justify the rules by which we identify and enforce contractual obligation based on general features of contract; hence those rules will be deemed appropriate across contractual settings. Theories of contract which regard contract as an imperfect means by which parties manage exchange are more likely to endorse specialized rules, such as those appropriate to parallel contract.
The piece suggests an alternative to the implied contract paradigm in the interpretation of employment contracts. It is a contract theory piece, but Aditi sees employment contacts as the primary context of application.
I think Aditi is correct that her paper will have special relevance for the world of employment contracts and the world of employment-at-will. Check it out!
Tuesday, February 28, 2012
I am cross-posting, with permission, Bill Henderson's post on The Legal Whiteboard (if you haven't checked out the Whiteboard blog, take a look -- it's a great resource on the marketplace for legal education; if you haven't heard Bill speak on the economics of legal education, invite him to speak at your school. His data-driven message is sobering to say the least.).
An interesting study on Facebook as a job predictor is making the rounds on the internet. It is a serious study published in the Journal of Applied Social Psychology. Perhaps its most interesting feature is that it maps the content of participants' Facebook pages onto scales for the Big Five personality traits.
The Big Five are the five very broad but stable personality traits that have emerged from over 50 years of psychological research on personality and job performance. The Big Five are sometimes summarized by the acronym OCEAN: Openness to Experience, Conscientiousness, Extroversion, Agreeableness, and Neuroticism (this last measure is often referred to as Emotional Stability, which has a less clinical ring). Each of the Big Five traits is typically comprised of four of five subconstructs. (Go to this link to take for free the same Big Five assessment used in the study.)
The Big Five are connected to research on lawyers through the landmark Shultz-Zedeck Predicting Lawyer Effectiveness study. One of the personality assessments utilized by Shultz and Zedeck was the Hogan Personality Inventory (HPI), which is seven-scale instrument based on the Big Five. Shultz and Zedeck identified 26 lawyer effectiveness factors and subsequently assembled a sample of peer and supervisor evaluations on over 1,100 graduates of UC Berkeley and UC Hastings. The HPI scales were positively correlated at statistically significant levels with a combined 25 of 26 effectiveness factors. In contrast, academic predictors (UGPA, LSAT and 1st year grades) were correlated with a combined total of 11 effectiveness factors, albeit two of the correlations were negative.
One of the limitations of most personality tests is the self-reported nature of the data. The test-taker is often interested in managing impressions. In contrast, the test adminstrators are trying to measure the respondents' actual attitudes and behaviors. Well, on that count, Facebook reveals quite a bit. In fact, raters with a mere two hours of training obtained Big Five measures of study participants' personalities that were (a) strongly correlated with the self-reported measures but (b) better predictors of subsequent job performance.
The implication? Someday a computer spider may be mining Facebook pages to create employability profiles on job candidates. Such a product may be too cheap and too useful for employers to ignore -- potentially better and faster, and less discriminatory, than the current ubquitious Google search.
Monday, February 27, 2012
Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.
First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur.
Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine.
After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.
Thursday, February 16, 2012
My friend and mentor, Sam Estriecher (NYU) writes to tell the readers of this blog that the American Law Institute (ALI) employment restatement chapters are now available free of charge – go to ali.org/publications.
Friday, January 20, 2012
Eirik Cheverud (8th Cir. Staff Attny's Office) has just posted on SSRN his Note (NYLS L. Rev.) Increased Tax Liability Awards after Eshelman: A Call for Expanded Acceptance Beyond the Realm of Anti-Discrimination Statutes. Here's the abstract:
When an employee suffers an unlawful adverse employment decision, her remedy generally lies in a backpay award. These awards are normally provided in one lump sum, which in turn is taxed as income in the year received. Often, the result is this: the employee would have paid less in taxes if no illegal action had occurred. This law review note details the historical background of this problem (an interesting romp of U.S. tax-policy history), and discusses how courts have begun to address it using increased tax liability awards (ITLAs) -- an additional monetary award increasing a plaintiff's backpay award, intended to offset the negative tax consequences of the backpay award's lump-sum distribution. It next weighs arguments made by courts that have rejected ITLAs, and demonstrates how the reasoning in Eshelman v. Agere Systems, a recent Third Circuit case announcing the availability of ITLAs under anti-discrimination statutes, effectively counters those courts' concerns. The note goes further to suggest that courts could, and should, provide ITLAs under most employment statutes (as opposed to being limited to the anti-discrimination context, which thus far has been the only area where courts, and even most scholars, have addressed ITLA applicability), including the Employee Retirement Income Security Act (ERISA), the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA).
Thursday, January 19, 2012
The UNLV Saltman Center for Conflict Resolution will host a symposium February 23-25, 2012 on Democracy and the Workplace. Here's the weblink; here's the list of stellar panels and speakers; and here's the symposium description:
Collective bargaining has become an issue in the United States, riots have roiled Britain, and the Arab spring continues to change politics in many ways. Protests by people who work and who are out of work are becoming more common. To explore the connection between having a voice at work and a voice in democracy, the Saltman Center will host a symposium at the William S. Boyd School of Law at the University of Nevada, Las Vegas from Thursday, Feb. 23 to Saturday, Feb. 25. Leading scholars and practitioners in labor and employment law, human resource management, dispute resolution, dialogue and deliberation, and democracy will speak on the topic.
Friday, January 13, 2012
Today, begins the start of a series of workplace law professor essays on the Restatement of Employment Law. These essays stem from a meeting of law professors in Chicago in November to discuss the on-going Restatement project. Each of these essays are from individuals who spoke at the conference. In addition, Chief Reporter Sam Estreicher and his Associate Reporters have been invited to submit their own expert essays and may do so in the future.
We begin today with Professor Ken Dau-Schmidt of the Indiana-Bloomington (Maurer) Law School:
On November 18-19, 2011, a group of labor law experts gathered to provide the second critique on the Restatement of Employment Law Project of the American Law Institute.
This conference taking place at the American Bar Foundation in Chicago, follows a previous conference held at Hasting Law School in February 2009.
When the first draft of the proposed restatement came out in 2006, the Labor Law Group sponsored a session on the ALI’s proposal at which both Mike Harper and Matt Finkin spoke. After that session, there was sufficient concern among the experts in the field about the project that the Labor Law Group drafted a petition requesting reconsideration of the project and circulated it among members of the academy. The petition signed by sixty-two members of the legal academy was submitted to the ALI membership at their annual meeting. The petition did not result in a major rethinking of the project; it did result in postponement of the approval of the initial draft by the ALI membership for one year.
The Labor Law Group used that year to plan the Hastings conference and provide a more detailed critique of the ALI drafts up to that date. Working committees addressed the issues raised in Chapters 1, 2, and 4 of the proposed Restatement. The resulting papers were published in 13 Employee Rts & Employment Policy J. (April 2009). The ALI reporters and advisors were all invited to attend the Hastings conference and participate in the discussion. Although none of the reporters attended the Hastings meeting, the meeting was attended by one member of the Council and a number of the projects’ advisers. Later, Timothy Glynn, Mike Zimmer, and Charlie Sullivan put together a panel at Seton Hall where the reporters heard some of the criticisms.
These several critiques yielded criticisms of two general forms.
The first form of criticism was that the project was in some way fundamentally misguided. For example, several commentators argued that the employment relation is evolving so quickly that it is too early to take a meaningful look backward in a Restatement. These critics argued that a restatement at this time could not capture the dynamic changes in the law, or worse might serve to discourage further evolution of the law. Others argued that the restatement project was fundamentally flawed because it had no unifying theme or theory to motivate a restatement of employment law that would be separate and complete. The argument is that, in order to get a restatement of employment law that is internally consistent and consistent with the other related restatements of contract tort and agency, one would have to discuss why employment law is distinct from other areas of law and why a separate restatement would be needed by considering the underlying purpose of employment law. Some went so far as to propose unifying principles around which employment law could be organized. Alan Hyde said that the field could be unified around the idea of protecting employees’ rights. Matt Finkin said that the field could be unified around the principle of protecting employees against exploitation because they typically have less power in the employment relationship. The reporters and membership of the ALI have decided not to follow these advisory opinions and suggestions. Thus there is currently no unifying theory among the various chapters that are proposed.
The second form of criticism has been to consider the project on its own terms, in other words, to assess how well the reporters are doing in drafting a restatement of employment law that accomplishes what the ALI purports to do through restatements.
I went back and looked at the ALI’s Reporters’ handbook which sets for the ALI’s objectives for reporters in drafting a restatement. The general statement of these objectives is that in its restatements, the ALI seeks an authoritative consensus, among academics, practitioners and judges, on what the law is or on what it ought to be that is both internally consistent and consistent with other restatements. In other words the ALI is seeking both a positive statement of what the law currently is, as well as a normative or aspirational statement about what the law should be. Although the reporters should generally follow the doctrine in the majority of states, where it is necessary to make the restatement logical and consistent, both internally and with other restatements, the reporters can choose the “better rule” even where it is the minority rule, or does not yet exist in the common law.
Trying to draft an appropriate positive restatement of the law among 50 odd jurisdictions is difficult enough, let alone figuring out what the law “ought” to be. One narrow view of the normative objective would be to merely simplify or make consistent the common law. In this case the approach would be to make small little changes “hammering out the dents” in the law in order to produce consistency. However there is also a broader view of the normative role that the proposed Restatement can choose the minority rule if it proves to be logically better, and certainly if there is a trend in that direction.
So far the critics have had more luck in critiquing the draft restatement on its own terms. The most visible success is in the area of the doctrine of the “inevitable disclosure” of trade secrets, which is now omitted from the restatement draft. The reporters have also adopted a very limited form of the doctrine of self-publication of defamation in the employment context in response to criticisms that were made at the Seton Hall conference. Also at Seton Hall, a lot of criticisms were focused on privacy concerns and how to make a common law right to privacy real and meaningful when the employer can easily get consent from employees and because the employer can shape the employees’ expectations of privacy. Matt Bodie has now added a section on employee to the privacy draft, so there has been some movement in response to this criticism. Bodie’s draft on employee autonomy has little express basis in existing cases which poses an interesting question of the tension between the positive and the normative purposes of the ALI restatement. Should the critics be happy that Bodie’s draft now makes more sense than the common law on the subject, or criticize it because it does not have adequate support in existing cases?
As Matt Finkin has said, a restatement of employment law will inevitably be a “dog’s lunch” of odds and ends which might not be that appealing, but as Charlie Sullivan has said the question is how to make that lunch as palatable as possible.
Wednesday, November 23, 2011
- Allowing small employers to fire employees without legal oversight, if the employer pays the employee a severance.
- Making people work for two years before they could make a claim for unfair dismissal - up from one year at present.
- Reducing the 90 day consultation period for 100+ layoffs at a single establishment.
- Allowing employers to have frank off-the-record conversations about poor performance.
- Requiring all Tribunal Claims to go to ACAS [Advisory, Conciliation and Arbitration Service] before being allowed to go to Tribunal (at present claims go to Tribunal and ACAS are involved after the claim has been sent to the Tribunal unless the parties ask ACAS to become involved in pre-claim conciliation on their own initiative).
- Creating a rapid resolution scheme to resolve simple cases in less than 3 months.