May 16, 2013
Busy Beltway Labor Law Day: NLRB Nominations and DOL Secretary Committee Vote
In addition to the Third Circuit's divided, pro-Noel Canning decision this morning which Jeff has described here in his post from today, Washington has been busy with labor-oriented topics.
To wit, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the five recently nominated members for the National Labor Relations Board (NLRB) (Democrats Mark Gaston Pearce, Richard F. Griffin, and Sharon Block, and Republicans Harry I. Johnson and Philip A. Miscimarra). Surprisingly, the hearing lacked histrionics from either side, and a vote is planned by the Senate commitee next week on May 22nd. My prediction would be to expect a party line vote sending the nominations to the Senate floor, where, of course, a Republican filibuster should be expected. It will be interesting to see how the GOP justifies this filibuster given that its complaints about the Obama administration surround the use of the recess appointment power, and now Obama is given them the nominees they asked for in the first place. There is some urgency here because the Board will lack a quorum as of August 27th, when Chairman Pearce's term expires.
In other news, the Senate HELP committee voted today 12-10 along party lines to forward the nomination of Thomas Perez to be Secretary of Labor. Perez, who is exceptionally qualified to hold this position based on previous positions in federal and state government (he is the assistant attorney general in charge of the Justice Department's Civil Rights Division and he formerly headed Maryland's Department of Labor, Licensing and Regulation), has been under GOP attack for his purported role as assistant AG for civil rights. Not sure what the GOP will do on the Senate floor. They might have a hard time holding together a filibuster on this one, especially since their allegations against Perez appear to have turned out to be all smoke and no fire.
In any event, busy day today in Washington D.C. And I have feeling, the fireworks have just started.
Third Circuit Agrees With Noel Canning
Today, the Third Circuit just issued its decision (2-1) in NLRB v. New Vista Nursing & Rehab [ Download New Vista ]. I've haven't had a chance to really read it (including the dissent, it comes in at a whopping 157 pages), but it basically follows the D.C. Circuit's conclusion in Noel Canning that recess appointments are only allowed for intersession Senate recesses.
A few interesting things in New Vista. First, this case--which substantively involved an employer's technical Section 8(a)(5) election challenge--involved former Member Becker's appointment. This obviously expands the impact of this issue on past Board decisions, although I'm guessing not significantly, as there are probably not a lot of decisions involving Becker that are still pending and include this argument (which the Thrid Circuit held is not waivable). Second, this only brings up the pressure for Supreme Court review, especially given the split with the Eleventh Circuit.
A final point is that, although I don't think it's an accident that courts are using the NLRB for this issue, what we're dealing with is much bigger than the NLRB. This a separation of powers fight, and a big one. Given the Republicans' de facto rule requiring a supermajority for all appointments, these cases severely limit the president's ability to make nominations. The irony is that these decisions could end up giving the president more power if the Democrats finally decide to go nuclear and change the current filibuster rules, which only requires a majority vote. I won't make a prediction on that, as there are a lot of factors at play as this battle plays out. However, although I'm not predicting this either, don't be surprised if the Court ultimately cites its political question doctrine and just lets the elected officials go at it without court interference. I'm not sure the Justices will be able to resist a big issue that brings in questions of textualism and originalism, but there is a reasonable argument that the political question doctrine is justified here.
Hat Tip: Patrick Kavanagh
May 11, 2013
Social Networking and Its Effect on Race
The NY Times Opinionater has a piece from Nancy Dimatso (Rutgers Business) on the effect of social networking on black employees. In it she notes the importance of social networks--no suprise to those of us in the legal field--and how those networks often work for whites, to the exclusion of others. But, as she also emphasizes, this favoritism is generally not prohibited by anti-discrimination laws:
Getting an inside edge by using help from family and friends is a powerful, hidden force driving inequality in the United States. . . . Such favoritism has a strong racial component. Through such seemingly innocuous networking, white Americans tend to help other whites, because social resources are concentrated among whites. If African-Americans are not part of the same networks, they will have a harder time finding decent jobs.
The mechanism that reproduces inequality, in other words, may be inclusion more than exclusion. And while exclusion or discrimination is illegal, inclusion or favoritism is not — meaning it can be more insidious and largely immune to legal challenges.
Check out the whole piece.
Hat Tip: Suja Thomas
May 09, 2013
Labor & Employment Roundup
- ENDA is back. Senators Merkely (D) and Kirk (R) have introduced it in the Senate. I'm not holding my breath on seeing it passed, but it'll be interesting to see what happens given the changing landscape on this issue. And, honestly, it's just a matter of time at this point.
- Another NLRB Facebook case, with a twist. The employer had a conspiracy defense, alleging that the employees intentionally made concerted and protected postings to entrap the employer into firing them. The Board quoted with approval the ALJ's use of the description "nonsensical." Another twist is that the charging party asked for the employer to be ordered to buy copies of a California workers' rights book mentioned in a Facebook posting and give it schools and libraries. That too was rejected.
- Georgetown University adjunts have voted to unionize as part of the SEIU. The downside of moving to more adjuncts: they're definitely not management and while tenure/tenure-track faculty may not always get sympathy, adjuncts usually have plenty of valid grievances.
Hat Tips: Brian Clarke & Michael Duff
May 07, 2013
D.C. Circuit Strikes Down NLRB Notice Rule
Here we go again. You know the saying, "Bad facts makes bad law"--well, for the D.C. Circuit you might replace "bad facts" with "NLRB." I know from my time as an NLRB appellate attorney that a lot of circuit judges don't like the NLRA, but much of the D.C. Circuit seems to go into a frenzy when presented with an important NLRB issue. Recently, we saw the court strike down over 150 years of recess appointment practice in Noel Canning; today, the court expands the First Amendment far beyond what I've seen (in an admittedly narrow area) and strike down the NLRB's long practice of equitable tolling--all in a case involving something as common as a government employee right's notice. The case is NAM v. NLRB (the judges were Randolph, Henderson, and Brown--another reminder that the White House's inability to get nominees on teh D.C. Circuit has a real impact).
Although the court starts with Section 8(c), which prevents the NLRB from using non-threatening speech as evidence of a ULP, the bulk of its holding makes an argument that First Amendment prohibits the government for telling companies to disseminate government information (Judges Henderson and Brown would also hold that Section 6 does not allow the Board to issue prohphylatic rules either). Indeed, based on my quick reading of the opinion, it seems to cast doubt on the ability of the government to require notice postings in most instances, or at least punish any employer for refusing to post notices (it did hold that its opinion didn't oerturn pre-election notice posting requirements, which don't implicate Section 8(c)). In other words, we may see challenges to FLSA, OSHA, and EEOC notices--although I'm guessing that most employers are used to these and don't get as worked up about informing their employees about the right to be paid the minimum wage, not to die at work, and not be discriminated against than they do about informing employees about their right to unionize.
In spite of the broad First Amendment language, the court ultimately holds that the central problem is that the NLRB cannot issue a ULP finding for a failure to post a notice or use that failure as evidence in a ULP case. One might think that the Board would still be able to "require" the notice postings--but be unable to punish an employer for not following the requirement. However, the court killed that option for the time being by refusing to sever the notice requirement from the enforcement provisions because the Board had earlier decided not to issue a voluntary rule. That seems like a weak reed to knock out the entire rule, especially given that the court left open the question whether the NLRB had authority to issue an enforcement-less notice rule. If the Board even gets its quorum question settled, it may try to issue the notice requirement while avoiding the enforcement problems. Issuing a notice requirement without a way to enforce it perhaps seems a wasted effort, but I think there is some force in a government requirement, even one without a penalty. On the other hand, the NLRB may be exhausted by its attempt to merely inform employees of their rights and just give up. I'll also note that the court stressed the Board's failure to list employees' right to decertify in the notice, which--as I've noted before--I thought was bad judgment. That wouldn't have affected the outcome, but it didn't help.
Of perhaps even greater significance was the court's rejection of the NLRB's alternate means of enforcing the rule: by tolling the statute of limitations for a failure to post. But, the court didn't just reject tolling for notice violations. Instead, it when much farther by rejecting the Boad's use of equitable tolling in general.
In many ways, this is the same thing we've seen for a long time from circuit court and the D.C. Circuit in particular. But I do think that this case and Noel Canning illustrates a new level of activism. The court is reaching far beyond what it needs to strike down a NLRB rule without much thought (or at least much care) about the broader ramifications. For instance, the court dismisses the Board's reliance on a decision upholding a Bush-era rule requiring posting of notice of workers' right not to join a union or the right to make dues objections because the challenge to that case did not have a free-standing First Amendment claim. Fair enough, perhaps, but the court didn't seem to grasp the signficance that this ruling might cut different ways. For instance, once unions start attacking restrictions on its speech (seriously, what's been taking so long?!), will the D.C. Circuit be just as committed to its construction of the First Amendment? We'll have to see . . . .
Hat Tip: Patrick Kavanagh
May 01, 2013
Happy May Day!
April 26, 2013
NLRB Files For Cert. in Noel Canning
Yesterday, the NLRB filed a cert. petition with the Supreme Court to overturn the D.C. Circuit's decision in Noel Canning. You can see the petition here. Lyle Dennison at SCOTUSblog has a nice summary of the issue here, including the fact that it's highly unlikely that the Court will hear the issue this term, leaving the NLRB twisting in the wind for a while longer.
Given the delay in resolving the issue, were largely back to where we were before: One settled NLRB member, whose term is expiring later this year and who has been renominated; two recess appointments whose status is up in the air and who have been renominated; and two new nominees. Basically, by the end of the year it's possible the the NLRB will have a full five members, no members, or something in between (how's that for covering all the bases?). The Senate has scheduled hearings on the pending nominations for May, but I don't know how seriously to take that. Stay tuned.
Hat Tip: Patrick Kavanagh
April 25, 2013
ISO Chapters on Foreign Labor and Employment Laws
Oxford University Press is publishing a book titled "Global Labor and Employment Law: Reports From Law Offices Worldwide," which is being edited by Sam Estreicher (NYU), Michael Gray (Jones Day), and myself. It is going to be a comprehensive book, both in the topics covered as well as the number of countries we have chapters for. Thanks to many attorneys at Jones Day and elsewhere, in addition to academics, we've got most of what we need, but there are a few holes. Below are a list of countries that we'd like to have chapters on--if you're knowledge about the labor and employment laws in any of these countries and would like to join what look to be a great book (I'm only a bit biased), please send me an email: firstname.lastname@example.org.
- Czech RepubliC
Hooter's Waitress Alleges That Brain Surgery Resulted In Her Losing To Her Job
A waitress at a Missouri Hooter's restaurant alleges that her post-brain surgery appearance cost her her job. Following the removal of a brain tumor, her bosses at Hooters ordered her to wear a wig to cover up her bald head and surgical scar. She responded that she couldn't afford a wig (Hooter's didn't offer to pay for it) and when she tried to wear a borrowed one, it hurt her healing wound. Then, according the the waitress, her hours were reduced so much that she had to quit. Our own Marcia McCormick was quoted on her ADA suit in the ABC News story:
Marcia McCormick, an associate professor of law at St. Louis University, said Lupo's surgery to remove a brain mass qualifies as a disability, but that Hooters could argue that her appearance was a bona fide qualification for her job.
"In the disability context, if Hooters is to say she's not as attractive now without this wig, if they're selling her attractiveness that might be a real function of her job and mean she isn't qualified by the Americans With Disabilities Act," McCormick said.
"Most companies can't say something like this, but Hooters sells this experience," she said.
There's at least something of a good ending, no matter what happens to the case, as the waitress, who was a nursing student at the time, is now employed as a trauma nurse.
Hat Tip: Joe Seiner
April 22, 2013
Bisom-Rapp on Cert in Another ATC Case
Thanks to Susan Bisom-Rapp (Thomas Jefferson) for sending us this:
This morning the Supreme Court agreed to hear another Alien Tort Statute case, DaimlerChrysler AG v. Bauman. The defendant is a German corporation sued for human rights violations allegedly perpetrated by its Argentine subsidiary. The plaintiffs are former employees and family members of former employees from an auto plant in Argentina, and they allege that during the Argentine dirty war the subsidiary labeled the former employees as subversives. Those employees were subsequently detained by security forces and some “disappeared.” The connection to the U.S. is that DaimlerChrysler sells automobiles in the U.S. via its U.S. subsidiary. Whether that connection will be enough to supply jurisdiction under the ATS is the open question after last week’s decision in Kiobel. Here is a link to a post about the case on SCOTUSblog.
April 16, 2013
House Votes To Freeze NLRB
Late last week, the House voted (219-209) for the Preventing Greater Uncertainty in Labor-Management Relations Act. The bill would require the NLRB members to cease their work, while allowing other functions, such as the regional offices, to continue. The impetus is the D.C. Circuit's Noel Canning decision. According to The Hill:
The House voted Friday to freeze the work of the National Labor Relations Board (NLRB), a reaction to a federal court's finding that two of the NLRB's current three board members were unconstitutionally appointed by President Obama in 2012.
Members narrowly passed the Republican bill, H.R. 1120, in a mostly partisan 219-209 vote. Every Democrat voted against it, and they were joined by 10 Republicans. . . .
[T]he GOP-favored legislation would freeze the work of the NLRB board as it is currently constituted and block the enforcement of the decisions the board has made since Obama's appointments have been in place. Rep. John Kline (R-Minn.) said the court ruling calls into question all of the board's decisions, and that its work should therefore be frozen. . . .
What is more intersting is how the Republican reaction will play out with the recent new NLRB appointees. There could easily still be objections in the Senate to allowing the NLRB to continue, period. That said, the language used in this bill and similar support for Noel Canning stresses the recess appointments more than anything else (and, yes, I know that hostility to the NLRB is a big part of it too). Moreover, would two well-paid law firm partners put themselves through the appointments ringer if they didn't feel like there was a good chance that they would be confirmed? I doubt it, but we'll have to see.
Hat Tip: Patrick Kavanagh
April 09, 2013
White House to Nominate Three NLRB Members
The White House just announced its intent to nominate three members to the NLRB: 1) a re-nomination of Chairman Mark Gaston Pearce (his term ends in August); 2) Harry Johnson; and 3) Phillip Miscimarra. I don't know anything about Johnson or Miscimarra except that they are Republican nominees. As I've noted before, I'm happy that we've finally got nominees for all the Board seats--from an institutional perspective, it's just far better to have all five members. Here's the White House bios, from the announcement:
Mark Gaston Pearce, Nominee for Member, National Labor Relations Board, and upon appointment to be designated Chairman
Mark Gaston Pearce is currently Chairman of the National Labor Relations Board (NLRB), a position he has held since August 2011. He has served as a Member of the NLRB since March 2010. Previously, Mr. Pearce was a founding partner of Creighton, Pearce, Johnsen & Giroux from 2002 to 2010. Before founding the Creighton, Pearce firm, Mr. Pearce worked as an associate and junior partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP from 1994 to 2002. From 1979 to 1994, he was a district trial specialist for the NLRB in Buffalo, NY. He has been a Board Member of the New York State Industrial Board of Appeals, and he has taught labor studies courses at Cornell University’s School of Industrial Labor Relations Extension. Mr. Pearce received a B.A. from Cornell University and a J.D. from State University of New York at Buffalo.
Harry I. Johnson, III, Nominee for Member, National Labor Relations Board
Harry I. Johnson, III is currently partner with Arent Fox LLP, a position he has held since 2010. Previously, Mr. Johnson worked at Jones Day as partner from 2006 to 2010 and as an associate from 1994 to 2005. In 2011, he was recognized by The Daily Journal as one of the “Top Labor & Employment Attorneys in California”. Mr. Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School.
Philip A. Miscimarra, Nominee for Member, National Labor Relations Board
Philip A. Miscimarra is partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP, a position he has held since 2005. Since 1997, Mr. Miscimarra has been a senior fellow at the University of Pennsylvania's Wharton Business School. Mr. Miscimarra worked at Seyfarth Shaw LLP as partner from 1990 to 2005 and associate from 1987 to 1989. Mr. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School.
I don't know whether there's any chance of these nominations, or the other two pending ones, going through the Senate (actually, I have a good guess, but it's too depressing to write). The bigger question is likely to be whether the White House will make any recess appointments and, if so, whether the Republicans will be included. Given that his earlier recess appointments to the Board are already up in the air, there's no real reason not to if the Senate looks like it won't move, but stay tuned.
Hat Tip: Patrick Kavanagh
March 29, 2013
Sick Leave Updates
Earlier this month, Portland, OR became the fourth city to require employers to provide sick leave to workers. Leave is earned on an hourly basis up to five total days in a year. Employers of six or more employees must provide paid leave while smaller employers can provide the leave unpaid.
New York City is poised to become the fifth. The city council approved a bill that would require employers with 20 or more employees to offer paid sick leaves next year. The requirement would extend to employers with 15 or more the following year. All employers would have to provide at least unpaid leave. Mayor Bloomberg has pledged to veto it, stating that it will hurt job growth, but there is enough support on the city counsel to override that veto. This is a particularly important development for workers and employers, coming on the heels of the state legislature having just raised the state minimum wage to $9.
March 19, 2013
EEOC Report on Obstacles Faced by Black Federal Employees
The EEOC has just issued its "African American Workgroup Report," which paints a picture of the many obstacles faced by black federal workers. The report is organized around seven main obstacles, with background information and recommendations for each. The obstacles:
- Unconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.
- African Americans lack adequate mentoring and networking opportunities for higher level and management positions.
- Insufficient training and development assignments perpetuate inequalities in skills and opportunities for African Americans.
- Narrow recruitment methods negatively impact African Americans.
- The perception of widespread inequality among African Americans in the federal workforce hinders their career advancement.
- Educational requirements create obstacles for African Americans in the federal workforce.
- EEO regulations and laws are not adequately followed by agencies and are not effectively enforced.
You can also read the Washington Post's take on the report here.
March 12, 2013
NLRB Seeks Cert. in Noel Canning
The NLRB announced today that, in consultation with the Department of Justice, it would not seek en banc review of Noel Canning before the D.C. Circuit and would, instead, go directly to the Supreme Court with a cert. petition. This is not a surprise at all; no matter what the full D.C. Circuit said, the Supreme Court would likely need to resolve this issue (it's possible that if the full circuit reversed the panel, Supreme Court review might be avoided in this case, but this issue isn't going away). One can't say for sure that the Court will take the case, but I'd be shocked if they didn't given the importance of the issues involved. So stay tuned for what will likely be the NLRB acting as a proxy for a big battle between executive and legislative (via the Senate) power.
March 09, 2013
Perez to be Labor Secretary
Unofficial word is out that the next nominee for Secretary of Labor is Tom Perez, current head of DOJ's Civil Rights Division. The Washington Post has a story detailing some of his bigger issues at DOJ--as well as an early childhood union-related story and his pre-DOJ work. It would've been nice to have our friend, Seth Harris, as the nominee, but Perez looks like he'll be great labor secretary.
Hat Tip: Patrick Kavanagh
March 08, 2013
February Unemployment Data
Today, the Department of Labor released its February employment numbers and (I'm not sure the last time I wrote this) they were quite good. The headline figures: 236,000 new jobs and the unemployment rate down .2 of a percent to 7.7%. Revisions of the previous two months' new jobs' numbers were down by a total of 15,000 jobs, leading to an average monthly job gain over the past three months of 195,000. Average earnings ticked up a few cents this month, with gains over the past year at 2.1%. Also, the construction industry was one of the biggest job gainers, perhaps indicating that the housing industry is finally back.
March 02, 2013
DOJ Comments on Noel Canning
We are now beginning to see how the Justice Department will attack the D.C. Circuit's recent Noel Canning decision. As is appropriate, DOJ views this as a problem that is much bigger than the NLRB. In a recent brief to the Third Circuit, written on behalf of the NLRB, the DOJ strongly criticizes the decision based on its constitutional interpretation and dismissal of the long history of recess appointment. The Legal TImes notes some of the brief's points:
"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, [ . . . ] The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers." [. . .]
That interpretation narrows the scope of when a president can use the recess appointment power. In the papers in the Third Circuit, Brinkmann said the word "the" doesn't carry the specificity the D.C. Circuit assigned to it. [. . . ]
"The real threat to the separation of powers comes from Noel Canning, because it would seemingly allow the Senate to eliminate the President’s recess appointment power" by turning all recesses into intrasession ones, DOJ's legal team said. (The D.C. Circuit ruling limits recess appointment power to intersessions—the time between two sessions of Congress.)
DOJ lawyers said that under Noel Canning every intrasession recess appointment in the country's history—including ten federal trial judges, a CIA director and five appellate judges—would be unconstitutional.
The department also takes issue with the part of the Noel Canning opinion that restricts recess appointment power to vacancies that arise during a recess, not those that existed at the time of a recess.
"By confining the Clause to vacancies that arise during a recess,Noel Canning makes the President’s ability to fill offices turn on the happenstance of when the previous holder left office," Brinkmann wrote. "That approach disserves the purpose of the Clause."
No word yet on whether DOJ will seek a rehearing en banc in the D.C. Circuit (they have until March 8), or will just file a cert. petition. Stay tuned.
Hat Tip: Patrick Kavanagh
February 18, 2013
Herbert on Social Media & Public Sector Labor Law
William A. Herbert just posted on SSRN his article (presented at the NKU Chase Law & Informatics Symposium last week) Can't Escape from the Memory: Social Media and Public Sector Labor Law. Here's the abstract:
The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.
February 13, 2013
NLRB Members Renominated
Today, the White House renominated Sharon Block and Richard Griffin to the NLRB (as well as Richard Cordray to the Bureau of Consumer Financial Protection). Those appointees, of course, were the subject of the D.C. Circuit's recent Noel Canning decision, which held that the President's power to make recess appointments is severely limited. It's good to see an attempt to remove the cloud over those members' appointments, although I'd still like to see nominees for the other two empty seats. I don't know whether the holdup on those is the White House or Republicans (who would normally play a large role in naming the appointees for those two, Republican, seats), but it's ridiculous that a federal agency constantly has to deal with not only being understaffed at its leadership level but having its ability to carry out its most basic functions constantly in doubt.
Speaking of which, the House Republican leadership and related committee chairs have sent the White House a letter urging appointees for all open Board seats, and citing the importance of having a full Board. Although I have some doubts about their sincerity--especially because the main purpose of the letter is to emphasize their support for the Noel Canning limits on the President's appointment power, not to mention that House Republicans haven't shown much support for the NLRB in the past--the language stressing the Board's role in the workplace is nice. Oh, and in case there's any doubt that they are more concerned with the appointments process than anything else, the same leaders also sent a letter to the Board urging them to stop issuing decisions until the Supreme Court decides the issue or the Senate confirms more members. No word on whether the Republicans leaders sent their Senate counterparts a letter urging them to work on getting new members appointed.
Hat Tip: Joshua Glick, Patrick Kavanagh, and others.