Tuesday, November 20, 2012
without informing the other. But in those states (about a dozen) where it is not legal, issues touching on the employment relationship will continue to arise. Memories of Linda Tripp. Last month, Carroll v. Merrill Lynch, was handed down by the Seventh Circuit involving unauthorized taping under an Illinois statute.
While the backstory is more involved, the case boiled down to the recording of a profanity-laced phone tirade on Thanksgiving by one Merrill Lynch employee to another at his home. The latter’s wife recorded the call, and she and her husband played it back at Merrill the next day before reporting it to the police. Merrill promptly fired the caller, who promptly sued Merrill and the husband and wife.
The claim against the couple was violation of the Illinois law prohibiting recording without consent of all parties. Plaintiff’s claim against Merrill was based on the theory that Merrill violated the statute when its agent requested and listened to the previously recorded conversation. Merrill successfully argued that, because the originally recordation was exempt from the statute, the subsequent playback was also exempt.
Anyhow, the court affirmed summary judgment against the plaintiff because Illinois has a statutory exception allowing recordation when the recording party has a reasonable suspicion that a crime is being, or is about to be, committed. Given the extremeness of the plaintiff’s language, the
court found that the wife fell within that exception.
There are a number of subsidiary issues that might be worth exploring in another setting, but the main take-away from the opinion is that it's dangerous -- even if not necessarily wrongful -- for employees to record threatening conversations from co-workers in a number of states. And it is dangerous -- but not necessarily wrongful -- for employers to act on the basis of such conversations.
From the employer’s standpoint, maybe the safer course would have been not to listen to the recorrding but rather to ask the caller about it. After all, the contents of the call are fair game even if the recording isn’t. That said, it might be too much to ask a manager to forebear listening to this kind of thing while HR and Legal figure out whether it’s appropriate to do so.
As important, some other state eavesropping laws -- Delaware, Florida, Maryland, Massachusetts,
Montana, New Hampshire, Pennsylvania -- all lack an express “fear of crime” exception (although one might be judically added).
Thanks to my RA, Allison Martin, for her help on this.
Monday, November 5, 2012
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at email@example.com.
Second, please e-mail Angela Onwuachi-Willig at firstname.lastname@example.org with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at email@example.com.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at firstname.lastname@example.org.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Thursday, November 1, 2012
Rachel Arnow-Richman (Denver) has just posted on SSRN her chapter From Just Cause to Just Notice in Reforming Employment Termination Law for Wachter & Estlund's Research Handbook on the Economics of Labor and Employment Law (forthcoming February 2013). The chapter is a variation on the theme she developed earlier in her article Just Notice: Re-Reforming Employment At-Will for the 21st Century. Here's an excerpt from the abstract:
For the last quarter century, the discourse surrounding employment termination law has focused almost exclusively on the desirability of changing from an employment at will to a just cause regime. This chapter asserts that such a result is neither inevitable nor desirable. A better approach would be to require employers to provide advance warning of termination or, at the employer’s election, pay separated workers their salary and benefits for a designated period. This “just notice” approach has several advantages. First, as compared to a universal just cause rule, and perhaps even to the current system of “at-will plus exceptions,” a just notice rule is likely to engender fewer administrative costs and protect a wider swath of the workforce. Second, the rule has a clear foundation in American jurisprudence. Outside the employment context, contract law requires a party whose performance is discretionary to act in accordance with principals of good faith and fair dealing, including providing reasonable notice prior to terminating an indefinite contractual relationship. Adopting a just notice rule would bring the law of employment contracts more in line with broader contract doctrine. Finally, a just notice rule would refocus the goal of employment termination law on enabling employee transition rather than constraining employer discretion. A just notice system addresses workers’ most immediate need upon job loss – income continuity -- while preserving employers’ ability to determine whom to terminate and why. Such an approach can be normatively justified as giving force to the contemporary social contract of employment. To the extent that expectations of long-term employment with a single employer have been replaced with expectations of long-term employability in an external market, it makes sense that employers should directly bear at least some of the costs of employee transition in the inevitable event of job loss.
From the Financial Times, via The Faculty Lounge:
Some 100 of [UBS]'s fixed income traders in London discovered at the turnstiles that their passes were no longer working when they tried to get to work on Tuesday morning. Other bankers had been contacted by phone or discovered that they might lose their jobs when their email repeatedly bounced back.
Wednesday, October 24, 2012
Last month we were contacted by the plaintiff in a particularly interesting case involving tenure at a religious institution. While we don't ordinarily want to be a forum for disappointed litigants, the decision in Kant v. Lexington Theological Seminary by the Kentucky Court of Appeals is pretty interesting. Essentially, the issue was the effect of a declaration of financial exigency on tenure rights, with the twist that the tenure-granting institution was a seminary. The outcome was adverse to the plaintiff and, although the issues in the cases are very different, it's interesting that this is the second decision in the last few months that seem to undercut the historic protections of academic tenure. The earlier case was, of course, the Sixth Circuit's decision in Branham v. Thomas Cooley, which basically held that tenure at that law school meant a one-year contract.
Although given the Supreme Court's recent decision in Hosanna-Tabor, one might have expected deference to a religious-oriented employer, particularily a seminary, it's also true that the LTS case was one in which the problems of entanglement were at a minimum -- the issue was whether the tenure contact allowed for financial exigency modification and the ministerial exception was not obviously apposite since a contract right was at stake and Professor Kant was a Jewish faculty member at a Christian school -- not exactly the sort of "minister" involved in Hosanna-Tabor.
Nevertheless, the appellate court had little trouble in concluding that it could not resolve the dispute without intruding too far into church matters. The decision suggests that, despite the Supreme Court's refusal in Hosanna-Tabor to opine as to the effect of the now-established "ministerial exception" on tort or contract cases, the doctrine is likely to continue to expand. Further, Kant suggests the strong possibility of the expansion without regard to traditional concerns about avoiding court entanglement with religion.
Thursday, October 18, 2012
Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."
Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.
* * *
"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.
Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.
Wednesday, September 12, 2012
14 California lifeguards were fired from the city's aquatic center for a parody video they made of the popular 'Gangnam Style' music video.
Several lifeguards in El Monte, CA participated in the video but others were fired just for being in the background while it was shot. The pool manager was also fired even though he doesn't appear in the video.
But the guards claim they did it off the clock, while the pool was closed and no patrons were around.
The lifeguards were at-will, so they don't likely have a legal cause of action. Nonetheless, it's not difficult to imagine how a more enlightened employer might have handled this.
Thursday, August 30, 2012
The Chronicle has a story on yet another development at my university: Faculty Review Proposal at Saint Louis University Would Eviscerate Tenure. The proposed policy would institute a program of post-tenure review for all university faculty which would allow the university to terminate anyone (except administrators, adjuncts, faculty on leave, and faculty in the Medical Group or on our Madrid campus) who does not show "continuing and increasing effectiveness" in teaching, scholarship, and service -- a constant "positive trajectory."
This isn't the first time our president has suggested that faculty tenure or other job security is a bad idea, but it's the most comprehensive push to put that into effect across the university. And given recent and not so recent events, the standard seems all too easily abused to get rid of people with unpopular opinions. We'll have to see what happens.
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.