Tuesday, September 17, 2013
The Department of Labor has just announced a significant change for home-health care workers. As many readers know, these workers have thus far been excluded from the FLSA minimum wage and, more importantly, overtime protections. Under the rule, home care workers will no longer be treated as excluded babysitters and others who provide "companionship services" under the FLSA. However, perhaps recognizing the impact of the change, the rule isn't to take effect until January 1, 2015 (that's not a typo).
This change was propsed in 2011 as part of the rulemaking process. The operative part of the rule, described by Steven Greenhouse in a NY Times article:
Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” — defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance — are limited to the individual, family or household using the services.
If an aide or companion provides “care” that exceeds 20 percent of the total hours er or she works each week, then the worker is to receive minimum wage and overtime protections.
Friday, September 6, 2013
Just a quick note to alert readers that Ross Runkel, over at his new blog, Ross Runkel Reports, has a handy-dandy new page entitled: US Supreme Court Watch.
The page list all labor and employment law cases set for oral argument for this coming October Term, with a brief description of each case. It also identifies a number of cases that our pending consideration by the Supreme Cour that Ross believes has a decent shot of cert being granted. As Ross points out, all cases he lists link to the wonderful SCOTUSblog.com, where one will find all the briefs and lower court opinions from that case.
The 2013 U.S. Supreme Court session opens on October 7 (just over a month away!).
Tuesday, September 3, 2013
Our own Paul Secunda was on NPR's Marketplace yesterday in a story about labor complaints with Obamacare. Washington & Lee's Tim Jost comments as well. An excerpt:
From high-wage construction workers to low-wage restaurant workers, 20 million employees get their health insurance through something known as Taft-Hartley plans. That’s where unions and employers get together and pay in for coverage.
Marquette University Law Professor Paul Secunda says Obamacare makes those plans really expensive for companies. “It might make more sense for employers to stop offering the Taft-Hartley plans, instead allow their employees to go on the state healthcare exchanges,” he says.
Secunda says not only would that mean workers end up with less generous coverage, it threatens the basic value of the unions.
“One of the thing that employees look to unions for -- the ability to get all sorts of employee benefits, but maybe most importantly health insurance benefits -- will no longer be something the unions can no longer offer in this environment,” he says.
Check out the entire story.
Sunday, September 1, 2013
It's that time of year again . . . . Brad Arehart and Jason Bent, Secretaries for the AALS Sections on Labor Relations & Employment Law and Employment Discrimination, respectively write to seek info on career moves, awards, conferences, and other reports of interest. They're also looking for any publications out or forthcoming in 2013 and anyone who would be willing to write a short case brief for the annual section newsletters. From Brad & Jason:
It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure that are not listed in this Workplace Prof Blog post:http://lawprofessors.typepad.com/laborprof_blog/2013/04/workplace-prof-moves-2013-2014-edition.html, please e-mail that news to Jason Bent at firstname.lastname@example.org.
Second, please also e-mail Jason Bent with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2013. Please hold your forthcoming 2014 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2013 publications to Jason Bent.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including either University of Texas Southwestern Med. Ctr. v. Nassar or Vance v. Ball State Univ.), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing about. Please send your submissions to Brad Areheart email@example.com.
Please send all submissions by November 1, 2012.
Thank you very much for your help!
Jason Bent and Brad Areheart
Secretaries for the AALS Sections on Labor Relations & Employment Law and Employment Discrimination
Saturday, August 31, 2013
I've been slow to post on this one, but recently, the Sixth Circuit upheld the NLRB's Specialty Healthcare decision. In Kindred Nursing Centers v. NLRB, the court held that the rule was appropriate under the Board's wide discretion to determine appropriate bargaining units. In particular, the NLRB adequately explained why using its traditional--and repeatedly court-approved--overwhelming "community of interest" standard was appropriate for the non-acute health care centers at issue under Specialty Healthcare.
I'm generally a fan of courts deferring to the NLRB and that's particularly true in representational matters, where the Board is supposed to get especially high deference (can you tell I used to defend Board decisions in court?). It's even nice to see the Sixth Circuit do so, given that court's frequent hostility to Board decisions.
Also check out Ross Runkel's post on the decision.
Hat Tip: Patrick Kavanagh
Friday, August 23, 2013
Like Jeffrey, I too think there is something "fishy" about the Western District of Washington’s conclusion that Acting General Counsel Lafe Solomon’s appointment is contrary to the Federal Vacancies Reform Act (FVRA). The court’s four-page order left me with three immediate thoughts:
First, the court is probably correct that Solomon was not an assistant to out-going General Counsel Meisburg. As far as I know, Solomon was the Executive Director of the Office of Representation Appeals when he was appointed Acting General Counsel. Representation Appeals is on the Board side of the agency and reports to the Chairman of the Board – not the General Counsel. So, if the FVRA applies only to first assistants then the appointment was probably unauthorized.
However, it seems that there is a strong argument that the court simply misread the FVRA. While Section (a)(1) does apply only to first assistants, that section provides for automatic succession without appointment or direction from the President. However, Sections (a)(2) and (a)(3) provide for a larger universe of eligible appointees in cases where the President directs a person to take over in an acting role. Section (a)(2) applies to any person “who serves in an office for which appointment is required and (a)(3) applies to any “officer or employee of such Executive agency.” Neither Section (a)(2) nor Section (a)(3) is limited to first assistants. Not being an expert on this topic, I am not sure those apply but is seems they could. The court could have read “office” broadly to include both GC and Board side “persons.” Or, the court could have certainly found Solomon to be an “employee of such Executive agency.” Whatever the correct result, the court’s one-sentence rejection of those provisions is just unconvincing.
Finally, if the court is correct, this ruling presents a larger issue than the recess appointments issue on the Board side. So much of the Board’s day-to-day operations run through the General Counsel, that paralyzing that half of the agency effectively paralyzes the whole. And, while former-Member and GC nominee Griffin is certainly qualified to be General Counsel, his being named in a racketeering suit and his previous questionable recess appointment makes it unlikely that he will be confirmed by the Senate anytime soon.
- Joe Mastrosimone (Washburn)
I'll admit it: I didn't see this one coming. A federal district court judge in Washington has just denied an NLRB petition for a 10(j) injunction based on the argument that the NLRB Members' at the time recess appointments were invalid and that Acting General Counsel Lafe Solomon's appointment was improper.
The judge explicitly followed New Process in holding the recess appointments (which he mistakenly moved back by a full year) invalid. The NLRB then argued that the Regional Director doesn't need Board approval for a 10(j) injuction; instead, a delegation of authority from the GC will suffice. But the judge rejected that by concluding that Solomon's appointment was also infirm.
The argument with regard to Solomon implicates a different issue that the NLRB member appointments, which are largely constitutional in nature, as the GC is covered by the Federal Vacancies Reform Act. I have not looked closely at that act, but I've always been under the impression that Solomon's appointment fit easily under its requirements. The judge disagreed, based primarily on the argument that an acting GC must have been a "first assistant" to the GC prior to his or her appointment and that Solomon (who was Director of the Representation Unit before his appointment) didn't satisfy that requirement.
That conclusion still sounds fishy to me--I believe that Solomon and other similar section directors reported directly to the GC--but I'll concede that I don't know the FVRA enough to make an informed judgment (and the court also said it was "undisputed" that Solomon was never a first assistant). Moreover, the FVRA make a specific exception for the NLRB GC (which is why I've always thought this was fine), stating that it's not covered by a provision that doesn't allow ratification of actions by officials who were improperly appointed. The judge characterized this as an exception to a "penalty provision" that doesn't allow Solomon to act when his appointment was improper. I'm not sure that's really a "penalty" and the judge's argument seems circular, but again, I'm speaking partially out of ignorance here.
Hat Tip: Patrick Kavanagh & PS
Thursday, August 15, 2013
The civil rights field lost a legend last week with the passing of Julius Chambers. Among too many accomplishments to list, Chambers sucessfully argued Swann, Griggs, and Albemarle Paper before the Supreme Court. He also helped start the first integrated law firm in North Carolina. Chambers was influential in academia as well, serving as chancellor of North Carolina Central University and, later, heading UNC law school's Center for Civil Rights, which continues today. A brief excerpt of UNC's announcement, which is worth a full read:
Chambers was born in 1936 in Mount Gilead, N.C., a small, rural community east of Charlotte. Chambers received his BA degree summa cum laude, from North Carolina Central University (then North Carolina College) and an MA degree in history from the University of Michigan. In 1959 he was admitted to the School of Law at the University of North Carolina at Chapel Hill, which had only recently begun admitting African‑American students. Chambers was elected Editor‑in‑Chief of the North Carolina Law Review in his third year, becoming the first African‑American to hold this title at any historically white law school in the South. He graduated in 1962, ranking first in his class of 100 students. Thereafter, he studied and taught at Columbia University Law School while earning an LL.M. degree.
In 1963, Chambers was tapped as the first intern in a new program of the NAACP Legal Defense and Educational Fund Inc. (LDF), designed to provide promising African-American law graduates with 12 months of training in civil rights litigation. In June 1964, Chambers moved to Charlotte to open a law practice that would eventually became the first integrated law firm in North Carolina history. In its first decade, this law firm did more to influence evolving federal civil rights law than any other private law practice in the United States. Chambers and his founding partners, James E. Ferguson II and Adam Stein, worked with lawyers at LDF to litigate a vast range of civil rights cases that changed the face of the nation.
Chambers and his partners were involved in scores of legal challenges related to school desegregation, employment discrimination, voting rights, health care litigation and related matters. These legal challenges met with fierce resistance in some quarters, resulting in Chambers’ office being firebombed; his home attacked; and his automobile set on fire. Chambers is known for his victories in such high profile cases as the famous Charlotte busing decision Swann v. Charlotte‑Mecklenburg Board of Education (1971), and Griggs v. Duke Power Co. (1971) and Albemarle Paper Co. v. Moody (1974), two of the Supreme Court's most significant cases interpreting Title VII of the Civil Rights Act of 1964, governing employment discrimination.
In 1984, Chambers became Director‑Counsel of the LDF. He was the third LDF director, following ThurgoodMarshall and Jack Greenberg.
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN his paper, "2013 Supreme Court Employment Law Commentary." The abstract:
This article reviews in detail the entire body of employment-related decisions of the 2012 October Term of the Supreme Court of the United States and provides a summary and author's commentary on each case. The article covers not only traditional employment decisions, but also arbitration, class action and other adjective issues relating to how employment disputes are litigated and resolved. The author (who has published this annual review for more than two decades) also offers a number of observations about larger themes, jurisprudential and otherwise, revealed by the Court's oversight of the employment relationship. Finally, the article summarizes the grants of certiorari in employment-related cases for the upcoming term.
Check it out!
Tuesday, August 13, 2013
Temple University James E. Beasley School of Law invites applications from both entry-level and lateral candidates for full-time, tenure-track faculty positions to commence in the Fall Semester 2014. We welcome applications from candidates with a wide variety of interests. Although areas of need are subject to change, priority areas are likely to include health law, business and commercial law, civil procedure, intellectual property, law and technology, trust and estates, torts, and employment law/employment discrimination.
Lateral candidates should contact Professor Gregory Mandel, Lateral Faculty Appointments Subcommittee (firstname.lastname@example.org). Entry level candidates should contact Professor Donald Harris, Faculty Appointments Subcommittee (email@example.com). Temple University is committed to a policy of equal opportunity for all in every aspect of its operations. The University has pledged not to discriminate on the basis of an individual’s age, color, disability, marital status, national or ethnic origin, race, religion, sex (including pregnancy), sexual orientation, gender identity, genetic information or veteran status.
Saturday, August 3, 2013
Laura Cooper (Minnesota) writes to say:
There's an amazing new feature on Bloomberg BNA's Labor and Employment Law Resource Center called the "Labor and Employment Law Chart Builder" for instantly creating 50-state charts of state law issues. The user selects a category such as EEO, benefits, or termination; identifies the subcategory of interest, such as enforcement, whistleblowing, or nondiscrimination; selects the states you want included in the chart (including "all") and the information you want such as citations, and then the feature instantly creates a chart with citations that link to the relevant documents, including statutes and regulations.
Friday, August 2, 2013
The White House has nominated Richard Griffin to be the NLRB General Counsel. Griffin, of course, served as a Board member through a contested recess appointment. It's good to see him land elsewhere at the Board, although current Acting GC Lafe Solomon has done a great job and will hopefully find a good landing.
Hat Tip: Joshua Glick & Patrick Kavanagh
The Department of Labor released the July employment report. There were 162,000 jobs added and the unemployment rate is down a bit to 7.4%. Previous months' number were revised downward: May from 195,000 to 176,000 new jobs and June from 195,000 to 188,000. Basically, more of the same, as the news is good, but not great.
Thursday, August 1, 2013
From the National Jurist:
As you think about upcoming fall hiring, you might want to check out some of the practice areas where there might be more jobs. According to Denney’s “What’s Hot and What’s Not in the Legal Profession,” these practice areas are worth investigating:
Areas that are “Hot” and may be hiring:
1. Intellectual Property Litigation
2. Health Care Law
3. Energy Law
4. Regulatory Law
5. Immigration Law
6. Labor & Employment Law
Tuesday, July 30, 2013
I honestly didn't think I'd be writing those words this early, but it's true: today, the Senate confirmed five members for the NLRB, which is now full strength. Kent Hirowaza and Nancy Schiffer were confirmed 54-44; Chairman Pearce was reconfirmed 59-38; and the two Republicans, Harry Johnson and Phillip Miscimarra were confirmed on a voice vote.
I very pleased to see the Board at full strength--and in a manner that should keep it stable for a few years at least. I'm sure it's a great relief to employees at the Board.
Hat Tip: Patrick Kavanagh
Monday, July 29, 2013
Paul Secunda is back in the news again--this time on Detroit's filing for bankruptcy. In particular, the filing raises the question of what will happen to the city's pension promises, which are guaranteed by Michigan's constitution. Should they have a higher priority or should they be treating like any other creditor? Paul comments on this issue in the Montreal Gazette and ABA Journal:
"There's not a lot of previous case law that tells us what's going to happen here," said Paul Secunda, a Marquette University law professor who specializes in labour and benefits issues.
"It's not just an issue of bankruptcy law and pension law, it's also an issue of federalism," Secunda said. "Can a federal bankruptcy court basically ignore a state constitutional provision and allow a city like Detroit to ignore its previous promises concerning public employee pensions?" . . .
Tuesday, July 23, 2013
Today's Wall Street Journal has a trio of labor/employment related articles worth reading:
- A Backdoor Approach to Union Organizing (using community groups to reach workers).
- More Workers Say Firms Retaliate for Injury Claims (workers' comp and OSHA).
- Genetic Tests Create Pitfalls for Employers (GINA).
A subscription is required, which is why there are no links.
Monday, July 22, 2013
Congratulations to Paul Secunda, who is quoted extensively in this Milwaukee Journal Sentinel article about Governor Scott Walker's evisceration of public sector unions in Wisconsin Here's an excerpt:
Walker rejected any suggestion that he had effectively handicapped the once-powerful labor groups with his legislation.
"People said at the time, 'Oh, you're trying to get rid of the unions,'" Walker recalled. "I said, 'No, I'm trying to have them show value.' Workers are making their value assumptions."
One labor law expert challenged Walker's statement on his motives.
"Absolutely disingenuous," said Paul Secunda, an associate professor at Marquette University Law School.
Secunda, who hasn't given to Democratic or Republican candidates in recent years, said it's clear that Act 10 was part of an orchestrated effort to undermine public employee unions, noting that GOP governors in Indiana, Ohio and Michigan had made similar proposals.
Walker's plan, the professor said, contains such punitive measures as requiring unions to recertify annually and barring employees from paying their union dues through payroll deductions.
Beyond that, the governor reduced the importance of these unions by prohibiting collective bargaining on anything but wage increases — and then only up to the rate of inflation. Secunda said even those public employees who agree with the idea of unions must be asking why they should pay dues to get the same pay raise as everybody else in government.
"It's not about liking or disliking unions," Secunda said.
Wednesday, July 17, 2013
The developments on the NLRB appointments are coming in fast this week. First is the Fourth Circuit joining the D.C. Circuit and Third Circuit to find that the recess appointments were invalid, albeit over a dissent. The case is huge, so I haven't had a chance to read it yet, but it appears to follow the other holdings that only intersession recess appointments are valid.
Of more immediate interest is news on the new NLRB appointments. I've copied the White House bios on Kent Hirowaza and Nancy Schiffer below. According to an earlier announcement, Hirowaza is to get Liebman's old term, which expires in Aug., 2016 and Schiffer is to get Becker's, which expires in 2014. You might be forgiven for raising an eyebrow at that, in expectation of the same process happening next year, but apparently, Republicans have promised not to filibuster the nominee for the new 2014 term. In other words--and, honestly, I didn't think I'd actually be writing this anytime soon--the NLRB should have a full Board in the very near future and stay that way for a couple of years, at least.
Finally, word is out that Richard Griffin will be the new nominee for NLRB General Counsel. No word on the fates of Sharon Block or current Acting GC Lafe Solomon, although both are excellent officials who I strongly believe will land on their feet.
Kent Hirozawa, Nominee for Member, National Labor Relations Board
Kent Hirozawa is currently chief counsel to National Labor Relations Board (NLRB) Chairman Mark Pearce. Before joining the NLRB staff in 2010, Mr. Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP, where he advised clients on a variety of legal and strategic issues, including Federal and state labor and employment law matters. Mr. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986. He was a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D. from New York University School of Law.
Nancy Schiffer, Nominee for Member, National Labor Relations Board
Nancy Schiffer was Associate General Counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) from 2000 to 2012. Prior to working for the AFL-CIO, she was Deputy General Counsel to the United Auto Workers (UAW) from 1998 to 2000. She had previously worked as Associate General Counsel for the UAW from 1982 to 1998. Earlier in her career, Ms. Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice. Ms. Schiffer received her B.A. from Michigan State University and her J.D. from the University of Michigan Law School.
Hat Tips: Joshua Glick, Jonathan Harkavy, & Patrick Kavanagh
Tuesday, July 16, 2013
NEW UPDATE: The two new picks to replace Block and Griffin are to be Nancy Shiffer and Kent Hirozawa. More to come tomorrow it seems.
UPDATE: It looks like the unfortunate deal will happen, as the Senate is nearing a compromise that would put aside Block's and Griffin's nominations and allow new Democratic nominees. Really unfortunate for those two members, as they've done nothing to deserve that outcome, but it's great if the NLRB will finally have an unquestioned quorum. What's not been explicit is the fate of the two Republican NLRB nominees, although I assume they'll get votes too and they simply aren't part of the conversation because they haven't been filibustered.
As anyone who has looked at the news is well aware, the nuclear option is front and center in the Senate, with the NLRB appointments as a major focus of the battle. I won't repost the hundreds of articles on the topic, but will note a couple of particular interest. First in the NY Times piece on why the Board is a central part of the dispute. Second, SCOTUSblog is holding a symposium on Noel Canning; all the pieces aren't up yet, but should be soon (including yours truly), but there's already some good ones.
Bottom line: it's looking like the NLRB will have new members soon. Whether they get there through a deal to stave off the nuclear option or as part of the first nuclear blast remains to be seen. Also unclear is if there is a deal whether Members Block and Griffin will be dropped as part of that deal. I hope not (the argument that they're unqualified because they were once recess appointees is ridiculous), but it's a possibility.
Hat Tip: Patrick Kavanagh