Monday, December 9, 2013
The Supreme Court just released an order stating that the oral argument time for NLRB v. Noel Canning has been extended by 30 minutes to an hour and a half. According to SCOTUSblog:
The NLRB will now have forty-five minutes, Noel Canning, the business firm involved in the case, will have thirty minutes, and the Senate’s Republican leader, Sen. Mitch McConnell of Kentucky, will have fifteen minutes. McConnell and forty-four other GOP senators are in the case to defend the role of the chamber’s minority in reviewing presidential appointments.
The argument will be on January 13 and it looks to be an exciting one.
Hat Tip: Patrick Kavanagh
Wednesday, November 27, 2013
Those of you you read the post below on the NYU-UAW deal may have noticed in the embedded link some quotes from friend-of-the-blog, Bill Herbert. In doing so, you mave noticed that he has a new affiliation as he's just moved from the NYPERB to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, where he is now serving as Executive Director. He'll also be a Distinguished Lecturer at Hunter College. Here's a press release on the move:
Effective November 21, 2013, Bill Herbert was appointed as a Distinguished Lecturer at Hunter College, City University of New York and as the new Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. Prior to his recent appointment, Bill was Deputy Chair and Counsel at the New York State Public Employment Relations Board.
For over four decades, the National Center for the Study of Collective Bargaining in Higher Education and the Professions has served as a national labor-management center dedicated to studying the use of collective bargaining for advancing higher education and the working conditions of faculty and staff in colleges and universities. The National Center believes that the study of collective bargaining is essential for a knowledge-based dialogue concerning labor-management and educational issues, and is critically important for reasoned societal debate that will lead to social progress. It is comprised of labor and management professionals, practitioners, and scholars interested in studying contemporary and historical labor-management issues, best practices in collective bargaining, legal and legislative developments, and public support for higher education. It provides a clearinghouse and forum for scholarly research and ideas concerning labor relations, collective bargaining and labor law issues related to higher education. The National Center will be holding its 41st annual conference on April 6-8, 2014 at the CUNY Graduate Center: http://www.hunter.cuny.edu/ncscbhep The theme of the conference is Achieving Successful Results in Higher Education through Collective Bargaining.
Tuesday, November 26, 2013
- UPDATE: News was just released news that NYU and the UAW have agreed to an AAA-run election for teaching assistants. As part of the deal, the UAW will drop charges it filed with the NLRB and NYU promised to remain neutral. Also, the deal does not establish an election for research assistants. The election could happen early next year.
- The Supreme Court granted cert. today to determine if for-profit corporations can object to the contraception mandate of the ACA based on religious objections. Sure, it's not directly an employment case, but if the Court sides with the companies here, it will be a big change from what has long been a presumption against for-profit businesses avoiding employment mandates on religious liberty grounds.
- Last week, Boeing workers rejected a proposal by the company to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. That's a big turnaround from what has been a trend as of late in many unionized workplaces.
- Also last week, the Eleventh Circuit sided with the NLRB on the recess appointments issue. This probably doesn't have much of an impact given the Supreme Court's grant of cert. in Noel Canning, but it provides another voice on the Board's side.
Hat Tip: Michael Duff , Patrick Kavanagh, & Bill Herbert
Tuesday, November 19, 2013
It's almost Thanksgiving, so that means more issues over protests at Walmart and other stores over working conditions during Black Friday sales. This time, the NLRB's General Counsel has announced that it has finished its investigation of charges against Walmart for its treatment of employees involved in the protests last year. According to the NLRB:
The Office of the General Counsel found merit to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.
- Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
- Walmart stores in California, Florida, Missouri and Texas unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.
The Office of the General Counsel found no merit, absent appeal, to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- Walmart stores in Illinois and Texas did not interfere with their employees’ right to strike by telling large groups of non-employee protesters to move from Walmart’s property to public property, pursuant to a lawful Solicitation and Distribution policy, where the groups contained only a small number of employees who either did not seek to stay on Walmart’s property or were permitted to remain without non-employee protesters.
- Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights.
This is obviously still early int he process, and it's not as if Walmart will settle, so there's a long way to go on these complaints. But it could be an interesting case to watch, particularly as a high-profile example of nonunion employees being protected by the NLRA.
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Wednesday, November 13, 2013
Today, the Supreme Court heard arguments in Unite Here v. Mulhall, which addresses whether neutrality and card-check agreements, among others, run afoul of Section 302. I haven't had a chance to review the argument transcript, but based on reports of the argument, it seems to be falling along the expected lines. As usual, Justice Kennedy appears to represent the swing vote and his statement that Mulhall's argument "is contrary to years of settled practices and understandings" should give unions some hope. That said, many of the Justices seemed disturbed by part of the deal in which the union said it would contribute $100,000 to promote a referendum that the employer supported. This echoes my previous concern about this case and why the union would seek cert. Although the Court may not hold all neutrality and similar agreements to fall under Section 302, they might well hold that other exchanges--particularly ones involving significant expenditures--do. Jack Goldsmith makes a similar point in his post at On Labor.
Finally, the standing issue (resulting from, among other things, the fact that the case is in a right-to-work state) was clearly on the mind of some Justices. Thomas Frampton (a recent Berkeley grad) may score himself a Supreme Court cite with his recent essay arguing this standing point.
Hat Tip: Patrick Kavangh & James Young (whose colleague at NRTWLDF argued on behalf of Mulhall)
Tuesday, November 5, 2013
After years of no news, it looks like there is suddenly movement on the Employment Non-Discrimination Act. The current version, introduced in both the House (H.R. 1755) and the Senate (S. 815) on April 25th of this year, was voted out of committee in July and then had stalled, when Monday, the Senate overwhelmingly voted to invoke cloture and move forward to a vote. The Senate version is expected to pass as early as this week.
John Boehner has apparently said that he'll oppose the bill in the house, arguing that it will lead to frivolous litigation and hurt small businesses. Another frequent critique of the legislation is that it will interfere with religious freedom, although it does not apply to religious organizations that are allowed to discriminate on the basis of religion under Title VII.
Interestingly, according to polls, most people support a ban on LGBTQ discrimination, and in fact 80% of those polled think this protection already exists. There are certainly arguments that Title VII's ban on sex discrimination prohibits at least some discrimination on the basis of sexual orientation and identity (see here, here, and here for some of the EEOC's views supporting that). But the courts have not always agreed, and according to this infographic, only 21 states (and DC) have a ban on sexual orientation discrimination while 16 states (and DC) ban discrimination on the basis of gender identity.
The oral argument in Sandifer v. US Steel occurred today, with Eric Schnapper (U. Wash.) arguing for the plaintiffs. At issue is the meaning of "clothes" in FLSA donning and doffing cases, in particular, whether certain safety-related attire should be consider "clothes." This is important, because of the rule that donning and doffing "clothes" at the beginning or end of the day is not on-the-clock activity that requires wage payments.
Based on some reports, it looks like the Court may be skeptical of the employees' arguments. But, as we know, you can never sure.
For more background on the case, see the SCOTUSBlog entry.
Hat Tip: Patrick Kavanagh
The oral argument for Noel Canning has been scheduled fro January 13, 2014. It should be quite a lively argument, so stay tuned.
Hat Tip: Patrick Kavanagh
Tuesday, October 29, 2013
Today the Senate voted to confirm Richard Griffin General Counsel for the NLRB, 55-44. This makes it official that the Board--for now at least--has a full complement of confirmed presidential appointees. How long this lasts is anyone's guess, but if any agency deserved some stability, it's the NLRB. It's announcement of the confirmation, including a well-deserved thanks to now-former Acting GC, Lafe Solomon:
“Today’s Senate vote to confirm Richard F. Griffin, Jr. as General Counsel will ensure the NLRB’s ability to enforce the National Labor Relations Act. The Act guarantees the right of private sector workers to organize and bargain collectively with their employers and to participate in concerted activities to improve their pay and working conditions.
“Having served as a staff attorney and as a member of the Board, Mr. Griffin has a wealth of experience in labor law and a deep understanding of the National Labor Relations Act. On behalf of the NLRB, I welcome him back and know that he will play a vital role in ensuring that we continue to provide excellent service to the American people.
“The Agency and the American people owe a debt of gratitude to Lafe E. Solomon, who began his career at the NLRB in 1972 and has served so ably as the Acting General Counsel since June of 2010. His courage and dedication to the mission and to improving the efficiency of the Agency during his term as Acting General Counsel was extraordinary. I know that all the dedicated public servants who work for the Agency in headquarters and regional offices throughout the country appreciate his long record of service and significant accomplishments at the NLRB.”
Hat Tip: Patrick Kavanagh
Thursday, October 24, 2013
SCOTUSblog has links to documents filed earlier this week by the federal government in a number of cases concerning whether corporations have free exercise rights under the First Amendment. Companies like Hobby Lobby have argued that the contraceptive mandate as interpreted by the Executive Branch to enforce the Affordable Care Act's mandate that preventive women's health services be covered without cost sharing substantially burdens the religious rights of either the corporation or its shareholders, and that the mandate thus violates either the First Amendment or the Religious Freedom Restoration Act.
The Tenth Circuit agreed with Hobby Lobby, finding that the mandate likely violates RFRA, and the federal government has filed a writ of certiorari in that case. Hobby Lobby apparently agrees that the Court should take the case. There is a circuit split between the Tenth Circuit and the Third and Sixth Circuit on this issue, and the Seventh and Eighth have issued unpublished decisions, granting stays of orders to comply with the mandate pending appeal of the issues. Finally, the Ninth Circuit, the Second Circuit, and the Minnesota Supreme Court have all found that corporations or their shareholders have some free exercise rights in other contexts. For more on that and another of these cases, see the cert petition in the Third Circuit case: Conestoga Wood Specialties Corp. v. Sebelius.
The circuit split, and the general agreement among the parties that the Court should resolve this issue make it more likely the Court will take one of these cases. The real question is whether the Court will consider only RFRA, and decide just Hobby Lobby or consolidate all of the pending petitions, or will consider both RFRA and the First Amendment.
Tuesday, October 15, 2013
Unlike the other, good blogging on the Supreme Court this week (see here and here), I'm going to do a lazy post on the argument today in Schuette. This is the case in which plaintiffs argued that the Michigan constitutional amendment banning affirmative action in higher education is unconstitutional. That argument relies on cases such as Romer v. Evans, in which the Court struck down a Colorado law prohibiting localties from passing measures forbidding discrimination based on sexual orientation. Michigan, however, argues that this amendment is different because it is prohibiting discrimination, not encouraging discrimination. Not surprisingly, that argument seemed to have a receptive argument in the Court.
The plaintiffs' argument certainly has some merit, but it's very difficult to believe that at least 5 members of the Court won't be swayed by the combination of 1) a voter-approved amendment that 2) enshrines colorblind admissions. We know that 4 Justices would hold that colorblindness is required, so Kennedy is the only additional vote needed. He wrote Romer and isn't fully in the colorblind camp, but but my money is on him being OK with this amendment. That said, I still don't think that this will lead the Court to strike down all diversity-based affirmative action in higher education--Fisher was only a few months ago and the votes weren't there. But stay tuned.
Friday, October 4, 2013
Reuters has a story today on the three union-related cases on the upcoming Supreme Court term, which features Ben Sachs (Harvard) and Paul Secunda (Marquette). Two of the cases, Mulhall and Noel Canning, we've discussed before, but we (really, "I") have been derelict in mentioning the third: Harris v. Quinn.
In Harris, the Court may be reconsidering the Abood decision from 1977, when it permitted a state to require employees who receive union representation to pay for that representation through mandatory dues. Established Supreme Court law, from Abood to several other cases in the public and private sectors, have allowed mandatory dues that do not include political and other extraneous spending. But the recent Knox opinion had dicta suggesting that several Justices question that basic premise. I agree with Paul & Ben that if the Court overturns Abood et al., it will be a huge deal for unions. In effect, it put the entire country under a right-to-work regime. From the article:
Taken together, the two organized labor cases [Mulhall & Harris] raise significant questions about union power, Harvard University Law School Professor Benjamin Sachs said.
"These are not cases about arcane rules of organizing, rules like where on an employer's property can a union talk to employees," he said. "These are cases that go to the heart of the legal regimes that are necessary to enable unionization.". . .
"Knox put into serious question whether Abood is still good law," said Marquette University law professor Paul Secunda. "Harris might be the vehicle for overruling Abood, making it more difficult for public unions to raise dues."
Monday, September 30, 2013
- The study and understanding of grievance procedures, the arbitration process and other forms of labor and employment dispute resolution and the impact of law on these processes.
- The impact of law on grievance and arbitration processes.
- The education and training of persons engaged in the resolution of labor -management and employment disputes. Included are the funding of lecture programs, symposiums, conferences and training seminars.
- The preparation and publication of books, symposium materials, articles, and audio-visual materials (e.g. films; websites; CDs) designed to enhance the competence of persons engaged in the arbitration and mediation of labor-management and employment disputes.
- The preparation of material designed to keep arbitrators, mediators, and students of labor-management and employment arbitration abreast of current research into the arbitration process.
- The development of procedures or techniques for the resolution of labor and employment disputes in this and in other countries.
Detailed information on how to apply for the REF grant can be found on the NAA website.
Questions about these grants can be directed to Allen Ponak, REF President, and firstname.lastname@example.org.
Monday, September 23, 2013
Last week, the Securities and Exchange Commission (SEC) released a rule requiring companies to disclose the CEO-to-worker pay ratio. Despite objections by many corporations, the rule covers all employees including seasonal, international, and part-time workers. The SEC provides companies the option of using the entire workforce or a representative sample in the calculation.
There will now be a 60-day comment period. The SEC voted for the rule 3-2, with the two Republican Commissioners who voted against the proposal calling it a special interest provision and proclaiming “shame on the SEC.”
Proponents of the rule argue that it will give shareholders and other stakeholders a clear line of sight into human capital management and worker pay. For instance, CalPERS, the California State Pension Plan, has issued a release, welcoming the rule as a valuable tool which will “help shareholders to keep management accountable” and “shed light on an element of pay which is currently shrouded from view.” John Liu, the NYC Comptroller, stated that the rule would allow “shareowners to make informed decisions about compensation and may rein in excessive corporate practices.”
From my point of view, and quoting Justice Brandeis, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
Wednesday, September 18, 2013
In spite of some initial doubts about its viability, Richard Griffin's nomination as NLRB General Counsel is looking up. Today, it advanced out of the Senate Labor Committee on a 13-9 vote (only one Republican voted "yes"). But even Sen. Alexander, who voted "no," stated that he had "no doubt" that Griffin's will be confirmed. This seems to indicate that Republicans have no plans to filibuster or otherwise block the nomination. Apparently, there's no timetable on bringing his nomination for a full vote in the Senate.
Hat Tip: Patrick Kavanagh
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 email@example.com.
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 firstname.lastname@example.org.
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