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 19, 2014
Call for Papers and Workshops: National Center for the Study of Collective Bargaining in Higher Education and the Professions
The 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 firstname.lastname@example.org.
Thursday, June 12, 2014
Just 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:
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
Christine 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.
Tuesday, May 20, 2014
Please 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.
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
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
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.
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)
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.
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.
Wednesday, April 16, 2014
Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment. It is forthcoming in the Mississippi Law Journal, and here is the abstract:
This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.
The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract:
In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.
Great work, Scott!
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to email@example.com no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Sunday, March 9, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Business) have just posted on SSRN their timely article (forthcoming Am. Bus. L.J.) The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes. Here's the abstract:
When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.
I agree, but am not optomistic.
Friday, March 7, 2014
- The NLRB will hold public meetings on its new election rules proposals. Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11. The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
- Here we go again. Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack. This time a House hearing. The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
- I'm late on this one, but the NLRB is relocating. HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront. At least they'll be able to catch more Nationals games.
- After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past. Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
premises during nonworking hours." See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?
Hat Tip: Patrick Kavanagh.
Sunday, March 2, 2014
Labour Law Research Network Conference
University of Amsterdam
25-27 June 2015
The Labour Law Research Network (LLRN), established in 2011, is comprised of 46 research centres from all over the world dedicated to the study of labour law. One of the objectives of the LLRN is to hold bi-annual international conferences that will be entirely academic (dedicated to the presentation and discussion of original papers); entirely about labour law (broadly conceived); and will allow cutting-edge topics to surface from the participating scholars themselves, in a non-hierarchical way.
Each conference is organised by a different research centre from among the LLRN members. The inaugural LLRN conference was held on June 2013 at Pompeu Fabra University in Barcelona. We are delighted to announce that the second LLRN Conference, to be held on June 25-27, 2015, will be organised by the Hugo Sinzheimer Institute (HSI) at the University of Amsterdam.