Monday, October 16, 2017
As I mentioned recently, the Supreme Court had requested the Solicitor General's view on whether the abrogation of state sovereign immunity under USERRA was valid. The SG's office just submitted its brief, recommending the denial of cert. There are reasonable grounds to argue against cert., most notably the lack of a circuit split, but the SG's brief was, to put in bluntly, lazy. It didn't make any meaningful attempt to address the constitutional or historical reasons why abrogation under the war power should be treated especially carefully; indeed, it went so far as to suggest that the war powers are equivalent to other Article I powers when it come to the balance of federal and state power, which I find disturbing ("But the central problem with petitioner’s argument [that Congress' war powers is exclusive and important] is that all Article I powers could be described as exclusive and important to at least some degree.").
Again, if you're curious about this issue, I've got an older article that delves into it the question in detail. Needless to say, I conclude that the war powers is very much not like other Article I powers when it comes to federal authority supplanting state authority.
Saturday, October 7, 2017
Some recent labor & employment news to catch up on:
- The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
- Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
- The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
- Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.
Thursday, September 28, 2017
Today, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.
Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again.
You can read more at SCOTUSBlog.
Thursday, August 31, 2017
The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:
- Allows small employers to bargain directly with employees;
- Creates bigger bargaining units at a workplace;
- Increases severance pay;
- Lowers cap on wrongful dismissal awards;
- Lowers statute of limitations on wrongful dismissal claims; and
- Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.
I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.
In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.
Monday, August 14, 2017
David Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist? The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.
Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But
[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.
That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.
Tuesday, August 8, 2017
This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.
Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.
All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.
Wednesday, August 2, 2017
Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.
Wednesday, July 12, 2017
It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.
First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.
Tuesday, June 20, 2017
As predicted, Marvin Kaplan will be nominated as a member of the NLRB. At the moment, Kaplan is counsel at the Occupational Safety and Health Review Commission. especially given his previous Capitol Hill experience as counsel for the House Workforce and Education Committee, I would expect his nomination to come relatively quickly, producing a 2-2 political split on the Board (of course, most cases will be heard by a randomly selected 3-member panel).
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Thursday, May 11, 2017
Reports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).
Readers may be interested in a new report from the Center for Progressive Reform: Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. An excerpt from the summary:
Workers and advocacy groups are turning to the states as possible avenues for successful reform, urging local prosecutors to pursue crimes involving worker fatalities and serious injuries under their states’ general criminal laws, as the Massachusetts prosecutor did in the case against Edmund Godin for involuntary manslaughter more than 30 years ago. To date, only a few prosecutors in a handful of states (e.g., California, Illinois, Massachusetts, Michigan, and New York) have actively pursued such cases, but those prosecutors have been remarkably successful. Such advocacy efforts suggest that criminal prosecutions are increasingly important for punishing and deterring employer neglect and malfeasance.
In 2014, Center for Progressive Reform Member Scholars and policy analysts published Winning Safer Workplaces: A Manual for State and Local Policy Reform, which discussed this reform effort, along with a series of workers’ rights campaigns beginning to take hold at the state and local level. Following up on the 2014 manual, this new manual offers more detailed assistance to advocates who want to enhance criminal prosecutions for crimes against workers.
Thursday, April 27, 2017
The Senate has just confirmed Alex Acosta as the Secretary of Labor. The vote was 60-38. As I've said before, I was pleased with this pick given the current administration. Now the rubber meets the road.
Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review. The abstract:
We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.
The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.
Check it out!
Thursday, March 30, 2017
The White House just announced that Ivanka Trump will no longer be a White House volunteer or "informal advisor," but will instead be an "unpaid employee." The move to employee status is a positive development, as it ensures that the usual ethical rules that apply to White House workers will apply to her as well. It's also understandable that, given her personal wealth, she would eschew a salary.
This does raise a question for the labor & employment law geeks among us: what about the FLSA's minimum wage? Normally, the FLSA would apply to federal employees, who can't agree to a salary below the minimum. However, I believe that there is a process for seeking a waiver--in this case, likely from the Office of Personnel Management, which enforces the FLSA for federal employees--but there's no mention of whether a waiver is currently being sought (or whether I'm even right about this).
If any readers have more insight, please add a comment.
Tuesday, March 28, 2017
Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:
This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.
Check it out!
Monday, March 27, 2017
Participation in American labor unions have changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike and in much of the country they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.
This article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with GDP growth. It next reviews the traditional prescriptions that labor scholars have advocated to reverse labor’s decline. Finally, it proposes three new radical fixes: authorizing criminal prosecution for willful violations of labor law, expanding labor protections to on-demand workers, and reversing the legal presumption that workers are not represented by a union unless they affirmatively opt in.
Rick has some interesting recommendations in the article, so definitely worth checking out.
Wednesday, March 22, 2017
Yesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.
The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.
Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office? For instance the certification of elections? Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:
Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.
This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?
Thursday, February 16, 2017
I really like this choice. Although we have substantive differences, I have a great deal of respect for Acosta. We were both at the NLRB during his short time there and it seemed to me that he always took his job and the role of the NLRA seriously; even when I disagreed with his vote, his decisions were thoughtful and reasonable.
Wednesday, February 15, 2017
This just in: Andrew Puzder has withdrawn his name from consideration as Secretary of Labor. It sounds like the writing on the wall showed that he lacked enough Republican support in the Senate. It's interesting that this is the one cabinet nominee that failed. Allegations of domestic abuse was probably a factor, but his hiring of an undocumented domestic worker (and failure to pay her taxes) seemed to play a role for conservatives as well.