Tuesday, July 22, 2014

On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan

Thanks so much to the bloggers at the Workplace Prof Blog for inviting me.  I am excited to join such a great group as a guest blogger.

For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year).  My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.

First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause.  After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion.  The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny.  Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter,  the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point. 

On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented.  To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits.  In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students.  The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations.  In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan.  Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone.  The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system.  In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT. 

This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting.  Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term.  Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.

The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action.  Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce.  As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.  

RKL

July 22, 2014 in Labor and Employment News, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Job Applicants and Criminal History: Recent Legislation in Illinois and the District of Columbia

    Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history.  (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.

    The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment.  The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.

    Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature.  That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction."  Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.

    Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.”  In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action.  Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action.  The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.

     Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act.  For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.  

    The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.

 

 --Sachin Pandya

 

Hat tip: R. Michael Fischl

July 21, 2014 in Employment Discrimination, Labor and Employment News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

Block to be Nominated Again for NLRB

NLRBThe White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014.  Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week.  Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.

Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB).  I  think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC).  So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.

One final thought.  As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged.  I've written before that I think it's silly for a political appointee to resign in a situation like that.  However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional.  Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.

Hat Tip: Patrick Kavanagh

-JH

July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

UAW to Open Office in Chattanooga

VWThe UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office.  This makes perfect sense.  Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful.  This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.

One side note:  many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant.  I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems.  It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.

-JH

July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

Call for Papers

AalsRebecca Lee, Chair of the AALS Section on Labor Relations and Employment Law sends along the following call for papers:

AALS Section on Labor Relations and Employment Law

"Emotions at Work: The Employment Relationship During an Age of Anxiety"

2015 AALS Annual Meeting

January 2-5, 2015

Washington, DC

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.

The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns?

A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.

The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.

Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at rlee@tjsl.edu by September 1, 2014. Authors of selected abstracts will be notified before October 1, 2014.

Looks like a great opportunity and a good program.

MM

July 7, 2014 in Conferences & Colloquia, Faculty Presentations, Labor and Employment News, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Rosado Brief in Northwestern Case

NorthwesternCesar Rosado (Chicago-Kent) writes to let us know that he's writing an amicus brief in the NLRB's Northwestern case.  In case you've been in a cave for the year, that's the case in which a Regional Director concluded that collegiate football players on scholarship at Northwestern were employees under the NLRA and could seek to unionize.

You can see Cesar's brief here:   Download Northwestern Draft Brief.  This case is sure to be in the news for a while, so keep up with all the briefing on the Board's case page.

-JH

July 3, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Supreme Court's Harris Decision

Supreme CourtThe Supreme Court just announced in Harris v. Quinn that it will not apply Abood to the employees  at issue.  In other words, the dissenting employees cannot be required to pay any dues.  Interestingly, although the Court has lots of strong language questioning Abood, it refuses to overrule it.  The key is that the employees here are "partial public employees," to whom Abood doesn't apply.  Very odd distinction.

My guess is that the four Justices couldn't get Kennedy to join in overruling Abood.  In fact, the language attacking Abood sounds a lot like a majority decision that was set to overrule it but was undercut by a change of heart by one Justice.  Of course, it's impossible to know for sure (indeed, no Justices wrote a concurrence to overturn Abood), but it's possible that the ramifications of overruling Abood gave Kennedy (or others) pause.  Among those, think about what would've been raised had Adood been overruled:

  • The holding would liekly have been applied in the private sector. If opt-in was constitutionally required, it would almost certainly have applied to private workplaces, as long as the NLRB's enforcement of union security clauses is considered state action.  However, the majority does briefly note that the issue is more troublesome in the public sector than in the private sector.
  • Would overruling Abood open the door to minority (or "members only") collective-bargaining?  This question goes to the heart of the exclusivity regime that, up to now at least, has been the foundation of modern American labor law.  The NLRB has been reluctant to act on the arguments of Charlie Morris and others that the NLRA imposes on employers a duty to bargain with minority unions.  If opt-in was the new regime, the Board might well have finally acted. 
  • Bye, bye duty of fair representation?  If the Court held that is unconstitutional to require dissenting employees to pay for representation, would it also be unconstitutional to make unions provide services to those employees for free?  Now that unions--like corporations--are basically people for First Amendment purposes (see also Hobby Lobby from today), the logical answer would be that the duty of fair representation to dissenters falls away.
  • Building on the concept of stronger First Amendment protection for unions, there are several limitations on union expressive conduct/speech that would be open to challenge.  The 8(b) restrictions on secondary boycotts and picketing are particularly vulnerable.  Up to now, they have been upheld because they supposedly involve more conduct than speech and have economic impact.  But those arguments seem to have lost their luster over the last few years in other contexts.  Will unions finally be moved to go on the offensive with these arguments? (It would seem they have little to lose.)  If so, will the Court be receptive?

All in all, public-sector (and probably private-sector) unions dodged a huge bullet today.  Honestly, this is as good an outcome as unions could've realistically hoped for.

-JH

June 30, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (3) | TrackBack (0)

Thursday, June 26, 2014

Supreme Court Affirms, but Narrows, D.C. Circuit's Decision in Noel Canning

Supreme CourtThe Supreme Court today affirmed the D.C. Circuit's opinion in Noel Canning (Breyer wrote the unanimous decision, with Scalia writing a concurrence, joined by Roberts, Thomas, and Alito). However, the Court did not limit the President's recess appointment power as much as the appellate court, which had defined "recess" as only a forma inter-session recess and an opening that occured during the recess (not surprisingly, given that it was supported by a strict originalist reading of the recess clause, the concurrence agreed with the D.C. Circuit opinion). Instead, relying on historical practice extending over 150 years, the Court held that both inter- and intra-session recess appointments are valid as long as the recess was of "sufficient length."  That length, according to the Court, is presumptively at least ten days.  Moreover, the vacancy doesn't have to occur during the recess.  The Board ultimately loses in Noel Canning because the pro forma recess at issue was only three days.

In sum, this is about as good as the NLRB could expect. The pro forma recess was always iffy and the NLRB can reconsider the now-invalidated decisions, as it did after New Process Steel (although the earlier invalidated cases were easier because two, ideologically different, members had agreed on them). As for the future, there are a couple of practical considerations.  First, the President's recess appointment power is now largely determined by the houses of Congress, which can both control when, or if, there is a sufficient recess for appointment purposes.  However, that control isn't absolute; the Court emphasized that if the Senate simply says it is in session isn't enough.  That statement is given great deference, but if it "is without the capacity to act, under its own rules, it is not in session even if it so declares."  Second, control over recesses doesn't matter as much as it did when the Court granted cert. in Noel Canning.  Under the Senate's new filibuster rules, the President's power to appoint depends less on whether there is a recess and more on which party controls the Senate.  If it's the President's party, there is no need for a recess appoinment, assuing no defections that change the outcome.  If it's the other party, then the appoint is dead without getting agreement between both sides.  All in all, this was a very interesting constitutional case that will waste a lot of hours of work at the NLRB, but is unlikely to have a big impact on appointments in the future, as long as the current Senate rules remain--no matter what many reports have been saying.

-JH

June 26, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Labor and Employment Roundup

Some recent news items:

Hat Tips: Michael Duff, Alan Hyde, Patrick Kanvanagh

-JH

 

June 23, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

Supreme Court Rules for Employee in Lane v. Franks

Supreme CourtThe Supreme Court just announced its decision in Lane v. Franks this morning.  In a unanimous decision, the Court held an employee's sworn testimony is not part of his job duties under Garcetti and, therfore, is protected by the First Amendment.  According to the decision of the Court,

Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer.  

The Court then went on to find that the employee should win under the Pickering/Connick balancing test (although one defendent was held to have qualified immunity).  

The three concurring Justices (Thomas, joined by Scalia and Alito), stressed that this case was easy under Garcetti.  However, they noted that Lane says nothing about the harder set of cases in which employees regularly testify as part of their job.  Another case we can look forward to in the future.

-JH

June 19, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Monday, June 16, 2014

Obama to Sign Federal Contractor Anti-LGBT Discrimination Order

LGBTTalk has been swirling for months that, while ENDA stalls in Congress, the President would sign an executive order barring LGBT discrimination for federal contractors.  Today, the White House announced that he will  sign the order.  No word on when it will occur.

One interesting aspect of this is that the majority of the biggest federal contractors already ban such discrimination.  Of course, the order is important for workers of the other contractors.  It also has major symbolic significance and, hopefully, is a step towards ENDA's passage.  It seems inevitable that it will pass at some point, but unclear how long it will take.

Hat Tip: Patrick Kavanagh

-JH

June 16, 2014 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

May Employment Data

HiringThe Department of Labor released its May employment data today.  The unemployment rate stayed the same at 6.3%, with 217,000 jobs added last month.  Many of the other measures were stable, with the labor participation rate staying at 62.8%, workweeks at 34.5 hours, and long-term unemployed at 3.4 million (although that number has declined by almost 1 million over the past 12 months).  Average hourly earnings ticked up 5 cents to $24.38/hour.

-JH 

June 6, 2014 in Government Reports, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

NLRB Invites Briefs on Joint-Employer Standard

NLRBOn the heels of its invitation for briefs on electronic communications and college athletes status as employees, the NLRB has also extended an invitation for briefs on its joint-employer standard.  According to the invitation in Leadpoint Business, the Board is considering the following questions:

1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?

2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?

3. If the Board adopts a new standard for determining joint-employer status, whatshould that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

Amicus briefs are due on June 26, 2014.

-JH

 

May 15, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

NLRB Asks for Briefs in Northwestern Players Case

NlrbThe NLRB is asking for amicus briefs on the issues in the Northwestern football players election case by June 26. It would be a great opportunity for those interested to weigh in.

h/t Charlotte Garden

MM

May 13, 2014 in Beltway Developments, Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2014

Jack Getman Retires

Image001When our list of faculty moves went up last month, one item left of the list was the retirement of Julius (Jack) Getman from the University of Texas after 28 years on the faculty. The American Statesman did a nice story on Jack's career. Here's a part:

A sort of Johnny Appleseed of labor law, Getman has through the decades sprinkled proteges all over the country. Many of them followed Getman into academia. Many of them chose their professor’s specialty even if they’d planned on practicing another kind of law before they took Getman’s basic labor law class which, 2011 graduate Elliot Becker recalled, “some of us called ‘Story Time with Grandpa Jack.’”

“I don’t know where I’d be without him,” said Becker, who this fall will go to work in the general counsel’s office of the National Labor Relations Board.

“I didn’t go to law school thinking I wanted to do labor and employment,” said James Brudney, who teaches labor at Fordham Law School. “It was the exposure to him and the subject that converted me. He has a remarkable blend of realism, sardonic humor and remarkably perceptive insights analytically about the real world.”

While Getman may be sympathetic to workers and the labor movement, he’s not a dogmatic radical who has never missed a Pete Seeger concert.

“His perceptions of the struggles that ordinary shop floor workers had to go through made him sensitive to both the positive aspects of (union) leadership and the risks that leadership might separate from the rank and file,” Brudney said. “He’s obviously sympathetic to unions, but that has not restrained him from offering substantial and powerful critiques.”

Jack's book Restoring the Power of Unions was also the subject of the Section on Labor Relations and Employment Law program at the AALS annual meeting in 2011, which coincided with the UNITE HERE boycott of the conference hotel. The presentations were published in volume 15, issue 2 of the Employee Rights & Employment Policy Journal

h/t Michael Murphy and Harris Freeman

MM

May 6, 2014 in Faculty Moves, Faculty News, Labor and Employment News, Labor Law, Labor/Employment History, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Morris and the Chamber on Members-Only Unions

Blue EagleRecently, the U.S. Chamber of Commerce released a report called, The Blue Legal has Landed: The Paradigm Shift from Majority Rule to Members-Only Representation.  The title is somewhat odd because the report attacks a wide variety of issues, from workers centers to D.R. Horton, that don't seem to have much to do with members-only representation.  But, it did accomplish one goal, which was to prompt a reaction from Charles Morris, who book, Blue Eagle at Work, the Chamber's title obviously played off of.

Morris has an extensive post on his Labor Relations Blog.  I'll copy the introduction below, but the entire piece is worth a full read:

The U.S. Chamber of Commerce announces in the title to its recent report on union representation that “The Blue Eagle Has Landed”—referring to the “Blue Eagle At Work” (my book on members-only collective bargaining)—and it concludes that the present system of majority-union representation and collective bargaining is “giving way to a...system that allows for members-only representation.”  I appreciate such prescience in the report’s title and ill-gotten conclusion, for although the Blue Eagle has not yet landed, it is expected to land in the near future, after which American labor relations should vastly improve.  When that occurs, the original and existing purpose of the National Labor Relations Act (NLRA or Act) will certainly be more accurately realized than it has been in recent years, and this will significantly help in the rebuilding of America’s diminishing middle class.

What I don’t appreciate, however, is that in this unsigned report the Chamber disparages and inaccurately describes the process of members-only representation and bargaining and grossly misrepresents and distorts the plain language and law of the NLRA and its legislative history, which are the subjects of this blog.  I invite any Chamber attorney or attorneys with name identification to counter with documented references to specific statutory text, legislative history, and applicable cases—which will be difficult if not impossible in view of what that text, history, and those cases clearly say.  I shall indeed welcome a response.
-JH

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

The End of Register-Guard?

NLRBThe NLRB just announced that it is inviting briefing from the parties and amici on whether to overturn Register-Guard, in a case called Purple Communications.  Among the list of questions the Board raised are: 

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7?

It is no secret that I'm not a fan of Register-Guard (in addition to the link above, see here and here).  So, I'll be watching this case very closely.  One disappointing aspect of the announcement is that the Board did not raise the possibility of reversing Register-Guard's restrictive definition of "discrimination."  Perhaps that's a topic for another day.

-JH

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

Friday, April 25, 2014

NLRB Will Review Northwestern Ruling

NorthwesternAnother update on the Northwestern football case ahead of today's vote.  The NLRB announced that  it will review the ruling and accept amicus briefs on the issue of the players' status as employees.  Details to follow.  The vote today will still happen, but as we noted in yesterday's post, the ballots will not be opened until the NLRB rules.

On a related note, the NY Times has a story today on one of the major reasons for the drive to unionize college football players: better medical care.  Expect to see the NCAA get more serious about this--at least as long as the threat of unionization remains.

-JH

 

April 25, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Northwestern Football Union Vote this Week

NorthwesternThe scholarship players for Northwestern's football team will be voting Friday whether to unionize.  As the NY Times reports, Northwestern has been fighting hard for the players to vote against the union.  Many readers will recognize these anti-union tactics as common during a campaign.  Indeed, the facts, which could easily be the basis for a challenge to the election if the union loses, looks like something I'd write for a Labor Law exam:  for example, the coach engaging in one-one meetings (or "interrogations"?) with players; predictions (or threats?) of negative consequences if there is a union; and giving players new iPads and bowling parties (pre-planned or improper provision of gifts?).  No matter the outcome of the vote, which we likely won't know for a while, this will probably drag on for some time.  One upside is that the publicity given to this case will provide a good example to explain the issues surrounding the NLRB-election process.  Just in time for new election rules from the NLRB!

In addition to issues under the NLRA, I would expect to see claims brought by players under other statutes.  The FLSA (hello minimum wage and overtime), Title VII, OSHA, and other statutes all have definitions of "employee" as broad, or broader, than the NLRA.  And those statutes will pull in public schools as well.  I'd be surprised if we don't see some of these claims soon, especially if the NCAA doesn't make significant changes (e.g., the NCAA just removed restrictions on player meals after Shabazz Napier's "I go to bed starving" comment).  This isn't a novel argument either.  In the 1970s, an Indiana State football player unsuccessfully sought status as an employee to get workers compensation benefits after becoming a parapalegic because of an injury suffered during practice.

-JH

April 24, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Labor & Employment Law Roundup

White houseSome recent labor & employment law issues in the news:

Hat Tip:  Michael Duff, Patrick Kavanagh, and Lynn Dancy Hirsch

-JH

April 24, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)