Monday, July 7, 2014
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
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 email@example.com by September 1, 2014. Authors of selected abstracts will be notified before October 1, 2014.
Looks like a great opportunity and a good program.
Thursday, July 3, 2014
Cesar 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.
Monday, June 30, 2014
The 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.
Thursday, June 26, 2014
The 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.
Monday, June 23, 2014
Some recent news items:
- The New York Times looks at what me the new Taylorism: the use of workplace surveillance to monitor workers and quantify their effectiveness.
- Serious allegations of illegal actions at popular Kum Gang San restaurant in New York. It's almost like someone wanted to see how many different ways they could violate FLSA.
- Union drive at Bloomberg Law fails. Also brings up possible tension between unions' willingness to press NLRB charges and the allegations of retaliation from employees.
- OSHA and NLRB enter into agreement to share information about charges that pass the OSHA statute of limitations, but may raise NLRA issues.
Hat Tips: Michael Duff, Alan Hyde, Patrick Kanvanagh
Thursday, June 19, 2014
The 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.
Monday, June 16, 2014
Talk 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
Friday, June 6, 2014
The 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.
Thursday, May 15, 2014
On 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.
Tuesday, May 13, 2014
The 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
Tuesday, May 6, 2014
When 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
Thursday, May 1, 2014
Recently, 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.
The 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.
Friday, April 25, 2014
Another 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.
Thursday, April 24, 2014
The 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.
- The lone holdout among major U.S. airlines has now joined the club. Pilots for JetBlue just voted by almost 75% to unionize.
- The case against Apple, Google, and other Silicon Valley employers for their agreement not to recruit each others' employees is proceeding. Some views on the case from the Washington Post.
- The Washington Post editorializes on the Silicon Valley case and other issues involving wage theft.
- An NYU Law trustee's company subpoenas two NYU law students for their actions criticizing the company's labor practices. As an NYU alum, I'm happy to see that the law school is supporting the students, including paying any legal expenses.
- Mitchell Rubinstein at Adjunct Prof Blog reports on a NY Court of Appeal decision to reject a duty of fair representation case against a union for not taking a dismissal case to arbitration. The basis of the holding was a common law rule requiring all union members to ratify a decision before holding the union liable, a matter that Mitchell discusses in a cited article.
- Michael Goldberg submitted an amicus brief to the NLRB for its reconsideration of its arbitration deferral policies.
- An Op-Ed suggesting that the White House should pay its interns. It's an interesting issue. I know the policy reasons for giving government and non-profits employers more leeway with unpaid interns, although I've never been able to reconcile that with the FLSA's coverage of those employers. Although I might be biased because my wife used to be an unpaid White House intern in the 1990s (no, not that one, although they she was there soon after).
Hat Tip: Michael Duff, Patrick Kavanagh, and Lynn Dancy Hirsch
Monday, April 21, 2014
In a bit of a surprise, the UAW announced today that it will drop its challenge against its recent election loss at VW-Chattanooga. The UAW cited the prospect of delay while going through the NLRB challenge process. That's certainly a legitimate concern, but I don't think I'm going on a limb by suggesting the other factors are at play here. As Ken Dau-Schmidt noted in the linked article, by dropping the challenge, the UAW could seek another vote earlier. Moreover, the subject of some of the alleged threats--a new production line--may already be in place soon and will therefore no longer remain as a viable point of pressure.
I will admit that I'm disappointed, if only at the loss of a possible ruling relying heavily on the comments of lawmakers. Some of the government pressure that has come to light, if true, is really quite amazing. Of course, the prospect of such a Board ruling--and the significant backlash that would come with it--was likely an issue in the decision as well.
Hat Tip: Too many to count, so thanks to you all.
Friday, April 11, 2014
Counterbalancing yesterday's news eliminating HR departments is a story about an innovative HR strategy dubbed "Pay to Quit." According to a recent piece in Slate, Amazon is offering up to $5000 to any warehouse worker who quits. Amazon's letter to its shareholders stresses that the idea is to filter out those with little attachment to the company so that only really dedicated workers will remain:
The second program is called Pay to Quit. It was invented by the clever people at Zappos, and the Amazon fulfillment centers have been iterating on it. Pay to Quit is pretty simple. Once a year, we offer to pay our associates to quit. The first year the offer is made, it’s for $2,000. Then it goes up one thousand dollars a year until it reaches $5,000. The headline on the offer is “Please Don’t Take This Offer.” We hope they don’t take the offer; we want them to stay. Why do we make this offer? The goal is to encourage folks to take a moment and think about what they really want. In the long-run, an employee staying somewhere they don’t want to be isn’t healthy for the employee or the company.
Maybe making an offer you can refuse will have that effect. Or maybe those remaining are those without viable alternatives. But who am I to question the wisdom of Amazon?
By the way, this is the second of three "employee empowerment" programs featured in the Amazon letter. The first is Career Choice, "a program where we pre-pay 95% of tuition for our employees to take courses for in-demand fields, such as airplane mechanic or nursing, regardless of whether the skills are relevant to a career at Amazon. The goal is to enable choice." In this case, apparently choice to leave Amazon.
One wonders about the health of employment at a firm when two of the three employee empowerment initiatives are of the don't- let-the-door-hit-you variety. You naturally ask, what's the third? No surprise here -- the Virtual Contact Center, which has "continued to grow with terrific results." Work from home customer service -- it's Amazon's "fastest growing 'site" in the U.S."
H/t to Steve Willborn.
Thursday, April 10, 2014
Thanks to Liz Tippett for alerting me to the WSJ article on firms getting leaner and meaner by eliminating HR. Liz comments that it reminded her of what she would say to grumpy corporate clients – "the only thing worse than calling your employment lawyer is not calling your employment lawyer."
In an era in which "compliance" is increasingly important for more and more employers, it is truly remarkable to discover that a department whose mission includes compliance with complicated labor and employment regulations is being phased out. And, if the article is to be believed, not merely at smaller firms.
I'd say that the article views the trend -- if such it be -- with suspicion. While outsourcing many of the mechanical operations of HR is much easier today with technological advances, it remains true that both managing "human resources" and complying with the law requires a more sophisticated understanding of both than a typical outside firm can provide.
But maybe I shouldn't complain. Savings on the front end with HR departments may generate more lawyers' fees on the back end, which has its advantages for law schools and the legal profession in this market.
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.