Thursday, August 21, 2014

Labor Law Roundup

NLRBSome recent news and stories of interest:

  • The Nation reports on attempts by workers of a major packing company to highlight poor working conditions and union busting to improve their plight appeal to the good-employer image of Costco, which stocks many products of the company.  In addition to quotes from Michael Duff, the story provides another example of how hard it is for unions to maintain support in the face of relentless anti-union tactics by employers--highlighting the push for less delay in NLRB elections. 
  • The NLRB's Macy's decision shows the Specialty Healthcare rule in action.  Employers fear the potential for so-called "micro-unions."  Although note that the unit in dispute in Macy's consisted of 41 employees, which is not exactly "micro."
  • The White House recently enacted an Executive Order that requires federal contractors to disclose labor law violations that occurred during the previous three years and order agencies to have compliance advisers to oversee the selection of contractors.  The contractors are not happy.  

Hat Tip:  Patrick Kavanagh

-JH

August 21, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2014

Wisconsin Supreme Court Upholds Act 10

WisconsinIt a 5-2 decision today, the Wisconsin Supreme Court held that the state's Act 10 was constitutional.  As we reported earlier, the statute's validity was in doubt in earlier litigation, so this result wasn't a given.  But unions certainly hadn't been counting on the court overturning the statute.  At base, the decision held that Act 10's significant restrictions on public-sector bargaining did not infringe workers' First Amendment rights.  Not a surprise for those of us in states with no collective bargaining.  The next step for union supporters in Wisconsin, of course, is the upcoming vote on Gov. Walker's reelection.  

Hat Tip: Patrick Kavanagh

-JH

July 31, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

McDonald's Liable for Franchise ULPs?

McDonald'sUPDATE: Harris Freeman and Patrick Kavanagh wrote to remind me that in April, the NLRB invited briefing on whether to alter its current joint-employer standard.  The GC's action in the McDonald's case could be part of the move in Browning-Ferris. (Harris' amicus brief on the case is here.) 

 

Richard Griffin, the NLRB's General Counsel, has decided to pursue unfair labor practice charges against both McDonald's and several of its franchise owners.  The ULPs allege retaliation--such as firings and other punishments--because of employees' labor activities.  But the headline issue is that the GC has determined that McDonald's is a joint employer, along with the franchise owners.  The is a big deal for corporate McDonald's, as the vast majority of restaurants are franchise owned, meaning that McDonald's will have to take more of a central role in monitoring restaurants' workplace practices.  In turn, it would give labor organizations more opportunity to pressure McDonald's for improvements or possibly organize bigger units.

According to the GC's news release:

The National Labor Relations Board Office of the General Counsel has had 181 cases involving McDonald’s filed since November 2012.  Of those cases, 68 were found to have no merit.  64 cases are currently pending investigation and 43 cases have been found to have merit.  In the 43 cases where complaint has been authorized, McDonald’s franchisees and/or McDonald’s, USA, LLC will be named as a respondent if parties are unable to reach settlement. 

Until we see evidence from both sides, it's hard to take a position on the joint employer issue.  But this is an interesting development on the heels of Harris v. Quinn.  I was just noting at a Supreme Court review this morning that the biggest impact of Harris may be the joint employment issue.  In that case, the Supreme Court avoided the union agency clause question by finding a lack of joint employment status.  There were arguments on both sides of that issue, but I expect courts to use Harris to narrow corporate liability under the joint employer classification.  It's possible we'll see this in  McDonald's if the case ends up in court.

Speaking of developments in this case, I feel obligated to make a note for non-labor law readers, especially after all the Boeing craziness a few years ago:  the NLRB has not decided anything here.  All that has happened is that the GC has decided to pursue a case against McDonalg's and some franchise owners (it's comparable to a district attorney filing charges in a criminal case).  If there's no settlement, the case will first go to an administrative law judge and, after the ALJ decision, the case will go to the NLRB.

Hat Tip: Patrick Kavanagh

-JH

 

July 29, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, July 25, 2014

Duff on Harris

DuffMichael Duff (Wyoming) recently posted Beneath the Veneer of Harris v. Quinn in the ClassismExposed blog.  In the post, Duff puts forth what is a fairly controversial view for a union supporter: that reliance on agency fees is a bad idea for labor, which would not be mortally wounded had the Court gone all the way in Harris and declared public-sector agency fees unconstitutional.  

To me, this issues pulls in others questioning the exclusivity principle in labor law.  I'm still of a mixed mind on what would happen if exclusivity fell away, but that may be where we're headed.  Certainly, unions would have more legitimacy if they only represented and collected dues from supporters.  That said, opposition to unions won't be going away.  Moreover, it's unclear to me how widespread members-only bargaining would work in practice.  To my mind, there's still free-rider aspects to that kind of bargaining (e.g., employers are likely to extend union wages across-the-board), although that doesn't mean non-exclusive bargaining isn't superior.  At base, it all really goes to the heart of what we mean by "collective" representation and whether an individualistic America still supports it in its current form. But enough of me--here's a sample of Duff's post:

I, a friend of the labor movement, oppose [agency fees] on strategic grounds.

First, I have never though it looked good even to elements within the working class to require membership or even payment of an agency fee.

Second, in my opinion, any union that relies on government power for support or dues collection is in big trouble in the long run. What the government giveth today it may taketh away tomorrow, and I simply do not trust or seek to rely upon the forces I believe have utterly captured government.

Finally, if a union really believes that ending the practice of requiring payment of dues or agency fees dues will cause members to stop paying dues, or nonmembers not to seek (eventually) membership, what kind of strength can that union actually have? Does anyone believe that such a union could, for example, motivate employees to take the risk inherent in collective action—the kind of risk that built the labor movement (think, for example, of the sit down strikes in Flint, Michigan) and that will soon be required again? You do not have to require working class fire breathers to pay dues and non-members in a workplace in which the union diligently fights for members will want to join. If this is not the state of things unions will lose every big fight since success comes from the working class intensity of the membership, not from the micro-tactics of leadership.

Read the entire thing!

-JH

July 25, 2014 in Labor Law | Permalink | Comments (2) | TrackBack (0)

Friday, July 11, 2014

Block to be Nominated Again for NLRB

NLRBThe White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014.  Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week.  Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.

Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB).  I  think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC).  So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.

One final thought.  As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged.  I've written before that I think it's silly for a political appointee to resign in a situation like that.  However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional.  Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.

Hat Tip: Patrick Kavanagh

-JH

July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

UAW to Open Office in Chattanooga

VWThe UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office.  This makes perfect sense.  Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful.  This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.

One side note:  many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant.  I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems.  It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.

-JH

July 11, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Rosado Brief in Northwestern Case

NorthwesternCesar 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.

You can see Cesar's brief here:   Download Northwestern Draft Brief.  This case is sure to be in the news for a while, so keep up with all the briefing on the Board's case page.

-JH

July 3, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Gender and Race Issues in Harris and Hobby Lobby

ScotusThe analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward.  There were some interesting facets that they did not discuss that I would like to think through a bit more.

One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly

Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.

To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.

The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?

Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.

Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons? 

These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.

MM

 

July 1, 2014 in Beltway Developments, Commentary, Employment Discrimination, Labor Law, Public Employment Law, Religion | Permalink | Comments (5) | TrackBack (0)

Monday, June 30, 2014

Supreme Court's Harris Decision

Supreme CourtThe 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.

-JH

June 30, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (3) | TrackBack (0)

Thursday, June 19, 2014

Call for Papers and Workshops: National Center for the Study of Collective Bargaining in Higher Education and the Professions

HunterThe National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, CUNY invites scholars, practitioners and labor attorneys to submit abstracts for conference papers and proposed workshops for the National Center’s 42nd annual national conference.  The conference will be held  at the CUNY Graduate Center, New York, New York, April 19-21, 2015. The theme of next year’s conference will be: Thinking about Tomorrow: Collective Bargaining and Labor Relations in Higher Education.

The National Center seeks abstracts for conference papers related to the conference theme including the following topics:

  • Leadership in contract negotiations and labor relations
  • Public and private sector negotiations: distinctions and similarities
  • Collective bargaining issues and results for non-tenure track faculty
  • Academic freedom, due process and shared governance issues for adjunct faculty
  • Special issues and challenges in negotiating over graduate assistants
  • Approaches for ensuring faculty diversity and for responding to discrimination, harassment and retaliation issues

The Center also seeks proposals for interactive workshop trainings on the topics listed below.  Workshop proposals should include a description of planned interactive opportunities and learning outcomes.

  • Developing and implementing effective succession plans
  • Collective bargaining skills for new administrators and new union representatives
  • Tools and best practices for ensuring effective contract administration
  • Training, practices, and policies on bullying and harassment

Précis of proposed papers and workshop trainings should be submitted by October 17, 2014 to national.center@hunter.cuny.edu.

rb

June 19, 2014 in Conferences & Colloquia, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Ninth Annual Colloquium Registration

WPBJust a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:

 https//cuboulder.qualtrics.com/SE/?SID=SV_ehPf2AWQ7ihhqfz.

 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).

MM

June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

O'Brien and the NLRB on Social Media

O'brienChristine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (8 Charleston L. Rev. 411 (2014)) The National Labor Relations Board: Perspectives on Social Media. Here's the abstract:

This article provides an update to the NLRB’s viewpoint on employees’ social media posts concerning work-related matters that impact the employment relationship. Work time and private lives are blurring further than ever, as employees post updates and comments on an astonishing range of matters, to sites including Youtube, Google , Facebook, Twitter, Snapchat, Instagram, Linkedin, their Tumblr blogs, and more. For example, in just a log-in moment, typing a mere 140 characters, employees apprise the world of their perspectives on what just transpired at the office, point of view (pov) included. Employees’ social media use has increased workplace pressures. The tensions between employers’ reputational rights, along with efforts to maintain workplace decorum and productivity, are increasingly conflicting with employees’ expressions of workplace frustrations and more in their online activities.

The National Labor Relations Act protects private sector employees’ regardless of union affiliation, to the extent their communications cover protected concerted activity – matters of shared concern relating to: wages, hours and working conditions, or mutual aid and protection. The National Labor Relations Board has taken advantage of the popularity of social media to educate the public about the protections afforded to employees by Section 7 of the National Labor Relations Act, and over the past five years has issued a number of reports, advice memoranda, and decisions to reinforce its role as administrative authority on employee’s employment-related social media use. The NLRB has signaled its readiness to respond to unfair labor practice charges filed by employees or unions against employers to the extent the employers have policies or act unlawfully to interfere with employees’ Section 7 rights. To get a sense of the nuances of these cases and the wide scope of employee communications that trigger NLRB scrutiny, this article summarizes a recent top ten cases and adds to these several recent additions.

The author recommends for employees to more closely manage and edit their posts so as to avoid workplace-related communications that are not protected by the NLRA. Furthermore, employers are advised to conform to the NLRA when reacting to employee posts that raise issues of concern, and further, to understand how the NLRB will construe their responses. To the extent employees reasonably construe employers are prohibiting protected concerted activities, such actions will be found to be unlawful. Finally, employers should create social media policies that provide specific guidance and examples for employees, managers, and even C-level officers, on the types of communications that are covered, and not covered. In this way, employees’ and employers’ interests are both well-served.

rb

May 28, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Welcome to Guest Blogger Joseph Seiner

SeinerPlease welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:

Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.

Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.

Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.

Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract: 

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.

Welcome, Joe!

MM

May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

NLRB Invites Briefs on Joint-Employer Standard

NLRBOn 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.

-JH

 

May 15, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

NLRB Asks for Briefs in Northwestern Players Case

NlrbThe 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

MM

May 13, 2014 in Beltway Developments, Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2014

Jack Getman Retires

Image001When 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

MM

May 6, 2014 in Faculty Moves, Faculty News, Labor and Employment News, Labor Law, Labor/Employment History, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Morris and the Chamber on Members-Only Unions

Blue EagleRecently, 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.

What I don’t appreciate, however, is that in this unsigned report the Chamber disparages and inaccurately describes the process of members-only representation and bargaining and grossly misrepresents and distorts the plain language and law of the NLRA and its legislative history, which are the subjects of this blog.  I invite any Chamber attorney or attorneys with name identification to counter with documented references to specific statutory text, legislative history, and applicable cases—which will be difficult if not impossible in view of what that text, history, and those cases clearly say.  I shall indeed welcome a response.
-JH

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

The End of Register-Guard?

NLRBThe 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.

-JH

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

Friday, April 25, 2014

NLRB Will Review Northwestern Ruling

NorthwesternAnother 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.

-JH

 

April 25, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.

MM

April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)