Tuesday, July 1, 2014
The 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.
Monday, June 30, 2014
Burwell v. Hobby Lobby Stores, Inc., came down -- as expected -- as the last decision of this Term. And, as is often true of the final decisions of any Term, it was the usual 5-4 split -- albeit with a concurrence by Justice Kennedy that may caution against too broad an application of the majority opinion.
The Religious Freedom Restoration Act, of course, prohibits the federal government from imposing a substantial burden on "a person's exercise of religion" unless the government demonstrates that it has a compelling interest in doing so and that its method is the "least restrictive means" of furthering that compelling interest.
The Affordable Care Act, or at least the regulations promulgated pursuant to it, require most employers to provide comprehensive health insuance for their workers or, in the alternative, to pay a tax. Comprehensive insurance includes contraceptive coverage, which is itself objectionable to some religious observers; but others, while not opposing contraception per se, have religiously-based objections to methods they view as abortion. This was the position of the plaintiffs (two companies and their controlling individuals).
The majority, authored by Justice Alito, found little to argue about in this collision of RFRA and the ACA. Despite reams of ink spilled on the issue, he held that RFRA protects the religious interests of "persons" who direct closely-held corporations, even if the corporations as such are for profit and not explicitly religious. Second, the majority determined that ACA imposed substantial burdens on the plaintiffs since one of the companies would have to pay as much as $475 million per year if it failed to comply with the ACA mandate to provide insurance to its employees. Finally, although assuming -- without deciding -- that providing health insurance with contraceptive coverage furthered a compelling governmental interest, the Court held that the ACA scheme did not employ the least restrictive means of pursuing that objective. For the majority, the government's use of a different approach to "respect the religious liberty of religious nonprofit corporations" pointed the way to how the government could accommodate the religious liberty concerns of the plaintiffs.
The majority went to pains to describe its opinion as "very specific," rejecting the principal dissent (authored by Justice Ginsburg, who was joined in great part by Breyer, Kagan, and Sotomayor) which feared that the Court's construction of RFRA would open the door to for-profit corporations opting out of laws with which they disagree.
The principal dissent found RFRA did not reach the case before the Court: although the for-profit corporations might be "persons" within the meaning of the statute, they could not, as such, "exercise religion." The Court held otherwise, and, although it believed that large, publicly traded corporations are "unlikely" to assert RFRA claims, it did not rule out that possibility.
The majority opinion has a number of subsidiary points well worth considering, but maybe not in this post. For example, it purportedly refused to consider, as not properly raised, the argument that the plaintiffs were not burdened because the tax they would have to pay were they to discontinue insurance would be less than their cost savings. But it nevertheless "would find it unpersuasive" were it considered! And then there's the question of whether the religous objection to the contraceptive methods was "too attenuated." The Court's basic answer was that the judiciary doesn't pass on the plausibility of a religious claim.
Perhaps the most interesting aspect of the majority is its canvassing of less restricitive alternatives, including the government's providing the contraceptives in question to woman who need them. This would be "minor when compared to the overall cost of the ACA"! A true statement, but a bar that almost any alternative would meet. The Court, however, avoided deciding whether that alternative would suffice. Instead, it found sufficient the government's approach to contraceptive coverage for religious nonprofits. When the nonprofit has a religiously-based objection, its insurance company must provide such coverage to employees independently of the policy. In that context, the accommodation was viewed as win-win-win (contraceptivess for employees; no payment by the nonprofit; and the insurance company's costs would be less for contraception than for childbirth). The Court saw no reason that alternative could not be used for for profit corporations as well.
I said at the outset that Justice Kennedy's concurrence might be the most interesting part of the opinion. Although he joined the Alito opinion, thus creating a majority on the issue decided, his concurrence seemed to stress that the majority's opinion did not require the government to "create an additional program." Rather, all HHS needed to do was extend the accommodation already provided religious nonprofits to for profit companies with religious objections. That was a very different matter from a situation "in which it is more difficult and expensive to accommodate a governmental program to countless religious claims."
In short, whether or not the principal dissent is right as to the potential reach of the majority, Justice Kennedy clearly marked out a potential stopping point.
While we all digest today's rulings in Hobby Lobby and Harris v. Quinn, here is a brief look ahead to the next Term. An update on the cert petitions highlighted in my last post:
Cert was granted in EEOC v. Mach Mining. The question presented is "Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit." The Seventh Circuit held that the EEOC's purported failure to conciliate was not judicially reviewable and could not be raised as a defense to a discrimination claim. This conciliation issue has been percolating in the lower courts for years, primarily in systemic cases. Both the employer and the EEOC urged the Court to grant cert in this case. Commissioner Feldblum offered her thoughts on the case in a guest post here.
Cert was denied in Family Dollar Stores v. Scott. We do not yet have a ruling on the cert petition in Young v. United Parcel Service. According to SCOTUSBlog, we can expect an order in that case tomorrow.
UPDATE: This morning the Court granted cert in Young v. UPS. This issue presented is: "Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
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.
Saturday, June 28, 2014
Image from EEOC.gov
The EEOC recently settled an interesting national origin/religion harassment case with an Illinois based GMC/Cadillac car dealership. The complaint had alleged widespread harassment against three Arab Muslim workers. The allegations included that “managers allegedly used offensive slurs, such as 'terrorist,' 'sand n----r' and 'Hezbollah,' and made mocking and insulting references to the Qur'an and the manner in which Muslims pray." From the EEOC's press release:
“The affected employees will share $100,000 in monetary relief, and Rizza Cadillac will be taking affirmative steps to ensure a change in the work environment at the dealership, including providing training to all employees regarding compliance with Title VII; submitting periodic reports to the EEOC about any complaints of national origin or religious discrimination; and posting a notice regarding the outcome of the lawsuit on its employee bulletin board for two years.”
As this case demonstrates, national origin discrimination continues to be a problem and one that is continually monitored by the Commission.
-- Joe Seiner
Friday, June 27, 2014
This term at the Supreme Court has already seen some key labor and employment decisions, including a public employee speech case, Lane v. Franks; an ERISA decision involving the responsibilities of ESOP plan fiduciaries, Fifth Third v. Dudenhoeffer; and yesterday's Noel Canning decision, which invalidated the President's recess appointments to the NLRB made while the Senate was holding pro forma sessions.
Yet, Monday is shaping up to be a big day for labor and employment law at the Court. The Court has only two opinions remaining to be issued: the high-profile Hobby Lobby case involving a corporate employer's assertion of a religious freedom exemption from providing its employees with contraceptive health care coverage, and Harris v. Quinn, a public employee collective bargaining case that has potentially huge ramifications as detailed by Charlotte Garden here. Decisions in both of these cases are expected on Monday.
But, wait, there's more! Two employment discrimination cases await rulings on petitions for certiorari: Mach Mining v. EEOC and Family Dollar Stores v. Scott. The issue in Mach Mining is whether the EEOC's failure to adequately conciliate claims before filing suit can be raised as an affirmative defense. Both the employer and the EEOC have asked the Court to review the 7th Circuit's ruling that failure to conciliate cannot be raised as an affirmative defense, which created a circuit split. The Family Dollar case could, interestingly, involve the review of a Fourth Circuit ruling that denial of leave to amend a complaint was an abuse of discretion. The purported class action involved allegations of nationwide sex discrimination in pay, and the district court believed that Wal-Mart made an amendment futile. That case would raise questions about the reach of Wal-Mart; does it foreclose class certification in cases where discretion is exercised at higher management levels, or is it limited to the store manager level discretion that was at issue in Wal-Mart?
One potentially significant note on these two cases: both were relisted for yesterday's conference at the Court, after being scheduled for the June 19 conference. As SCOTUSBlog has detailed, the Court this term has a streak (or new practice?) of granting cert only for cases that have been relisted at least once. I will hold off on predictions for these cases, save this one: I think the petition in Mach Mining will be granted.
But wait, there's even more: thanks to Sam Bagenstos for noting that another pending cert petition had been relisted for yesterday's conference: Young v. United Parcel Service, a Pregnancy Discrimination Act case raising the issue whether an employer that provides accommodations to nonpregnant employees with work limitations must provide similar accommodations to pregnant employees who are "similar in their ability or inability to work."
A recent article at Fortune.com takes an interesting look at age discrimination in the technological sector. Silicon Valley is certainly one of those areas where youth is perceived as an advantage. One particular practice focused on in the article is the emphasis on hiring "new" college graduates, which can arguably be seen as a proxy for seeking younger workers. From the article:
"Apple..., Facebook, Yahoo, Dropbox, and video game maker Electronic Arts all recently listed openings with “new grad” in the title. Some companies say that recent college graduates will also be considered and then go on to specify which graduating classes—2011 or 2012, for instance—are acceptable. . . 'In our view, it’s illegal,' Raymond Peeler, senior attorney advisor at the Equal Employment Opportunity Commission, the federal agency that enforces workplace discrimination laws said about the use of “new grad” and “recent grad” in job notices. 'We think it deters older applicants from applying.'"
It is interesting how different sectors of the economy have distinct cultures that can raise problems under federal law. This will be an interesting issue to follow …
-- Joe Seiner
Thursday, June 26, 2014
The issue is whether courts should apply a presumption of prudence or reasonableness (sometimes called the Moench presumption based on a similar case by that name in another circuit court) when a company, like Fifth Third, decides to retain investments in its own securities for its ESOP (employee stock ownership plan) when the stock's price dropped 74 percent because of the company's involvement in subprime mortgage lending. The employees in the retirement plan claim they were never alerted to the company's new riskier investment course.
Participants in Fifth Third's ESOP filed an ERISA class action, asserting that the company's actions violated their fiduciary responsibilities to plan participants and beneficiaries by imprudently investing in company stock. Initially, the U.S. District Court for the Southern District of Ohio had determined that Fifth Third did not violate ERISA because plan fiduciaries are entitled to a “presumption of prudence” permitting investment in their own stock and the plaintiffs had not overcome that presumption by showing that the company had plausibly abused their discretion in investing the ESOP money in the company stock.
A unanimous Court reversed the Sixth Circuit and remanded for further proceedings. Justice Breyer wrote the opinion. From the Supreme Court's syllabus:
1. ESOP fiduciaries are not entitled to any special presumption of prudence. Rather, they are subject to the same duty of prudence that applies to ERISA fiduciaries in general, §1104(a)(1)(B), except that they need not diversify the fund’s assets, §1104(a)(2). This conclusion follows from the relevant provisions of ERISA. Section 1104(a)(1)(B) “imposes a ‘prudent person’ standard by which to measure fiduciaries’ investment decisions and disposition of assets.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 143, n. 10. Section 1104(a)(1)(C) requires ERISA fiduciaries to diversify plan assets. And §1104(a)(2) establishes the extent to which those duties are loosened in the ESOP context by providing that “the diversification requirement of [§1104(a)(1)(C)] and the prudence requirement (only to the extent that it requires diversification) of [§1104(a)(1)(B)] [are] not violated by acquisition or holding of [employer stock].” Section1104(a)(2) makes no reference to a special “presumption” in favor of ESOP fiduciaries and does not require plaintiffs to allege that the employer was, e.g., on the “brink of collapse.” It simply modifies the duties imposed by §1104(a)(1) in a precisely delineated way. Thus, aside from the fact that ESOP fiduciaries are not liable for losses that result from a failure to diversify, they are subject to the duty of prudence like other ERISA fiduciaries. Pp. 4–15.
2. On remand, the Sixth Circuit should reconsider whether the complaint states a claim by applying the pleading standard as discussed in Ashcroft v. Iqbal, 556 U. S. 662, 677–680, and Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 554–563, in light of the following considerations. Pp. 15–20.
(a) Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim under Twombly and Iqbal. Pp. 16–18.
(b) To state a claim for breach of the duty of prudence, a complaint must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. Where the complaint alleges that a fiduciary was imprudent in failing to act on the basis of inside information, the analysis is informed by the following points. First, ERISA’s duty of prudence never requires a fiduciary to break the law, and so a fiduciary cannot be imprudent for failing to buy or sell stock in violation of the insider trading laws. Second, where a complaint faults fiduciaries for failing to decide, based on negative inside information, to refrain from making additional stock purchases or for failing to publicly disclose that information so that the stock would no longer be overvalued, courts should consider the extent to which imposing an ERISA-based obligation either to refrain from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements set forth by the federal securities laws or with the objectives of those laws. Third, courts confronted with such claims should consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant’s position could not have concluded that stopping purchases or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund. Pp. 18–20.
692 F. 3d 410, vacated and remanded.
The Supreme Court today affirmed the D.C. Circuit's opinion in Noel Canning (Breyer wrote the unanimous decision, with Scalia writing a concurrence, joined by Roberts, Thomas, and Alito). However, the Court did not limit the President's recess appointment power as much as the appellate court, which had defined "recess" as only a forma inter-session recess and an opening that occured during the recess (not surprisingly, given that it was supported by a strict originalist reading of the recess clause, the concurrence agreed with the D.C. Circuit opinion). Instead, relying on historical practice extending over 150 years, the Court held that both inter- and intra-session recess appointments are valid as long as the recess was of "sufficient length." That length, according to the Court, is presumptively at least ten days. Moreover, the vacancy doesn't have to occur during the recess. The Board ultimately loses in Noel Canning because the pro forma recess at issue was only three days.
In sum, this is about as good as the NLRB could expect. The pro forma recess was always iffy and the NLRB can reconsider the now-invalidated decisions, as it did after New Process Steel (although the earlier invalidated cases were easier because two, ideologically different, members had agreed on them). As for the future, there are a couple of practical considerations. First, the President's recess appointment power is now largely determined by the houses of Congress, which can both control when, or if, there is a sufficient recess for appointment purposes. However, that control isn't absolute; the Court emphasized that if the Senate simply says it is in session isn't enough. That statement is given great deference, but if it "is without the capacity to act, under its own rules, it is not in session even if it so declares." Second, control over recesses doesn't matter as much as it did when the Court granted cert. in Noel Canning. Under the Senate's new filibuster rules, the President's power to appoint depends less on whether there is a recess and more on which party controls the Senate. If it's the President's party, there is no need for a recess appoinment, assuing no defections that change the outcome. If it's the other party, then the appoint is dead without getting agreement between both sides. All in all, this was a very interesting constitutional case that will waste a lot of hours of work at the NLRB, but is unlikely to have a big impact on appointments in the future, as long as the current Senate rules remain--no matter what many reports have been saying.
Wednesday, June 25, 2014
Image from eeoc.gov
The EEOC recently published an interesting news release about a settlement that the agency reached with Chapman University (San Diego) with regard to a race discrimination claim filed by a professor that failed to receive tenure from the business and economics school. The school agreed to pay $75,000 and provide other affirmative relief. From the press release:
"According to the consent decree settling the suit, aside from the monetary relief, Chapman agreed to designate an internal equal employment opportunity officer; train all [Chapman's George L. Argyros School of Business & Economics] employees on their rights and responsibilities on discrimination in the workplace; maintain a centralized system to track complaints by ASBE faculty members about denial of tenure and discrimination; revise its policies on discrimination and retaliation; and post a notice on the matter at ASBE. The EEOC will monitor compliance with the two-year consent decree."
It is very interesting to see the agency pursue these claims in the academic arena.
Tuesday, June 24, 2014
This is not directly a labor and employment law paper, but it should be of interest to those of us who teach these and other classes. Paula Schaefer (Tennessee) has posted on SSRN her article, A Primer on Professionalism for Doctrinal Professors, which be published in the Tennessee Law Review The absract:
Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.
This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.
Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.
Check out the article--it's really useful, especially for folks like me who still get chills thinking about the MPRE.
I recently posted on this blog a recent study of those states that provide paid leave to workers to care for themselves or a family member. As many of you likely saw, President Obama came out yesterday in support of this type of paid leave system on a federal basis. From the AP article:
"The president is touting paid maternity in the midst of a midterm election campaign focused on women voters, without describing the details of how he would fund such a system. 'If France can figure this out, we can figure this out,' Obama said."
It is interesting that this issue is now taking on a political dimension in the struggle to attract voters during the midterm elections. This will be an interesting issue to follow . . .
Monday, June 23, 2014
Some recent news items:
- The New York Times looks at what me the new Taylorism: the use of workplace surveillance to monitor workers and quantify their effectiveness.
- Serious allegations of illegal actions at popular Kum Gang San restaurant in New York. It's almost like someone wanted to see how many different ways they could violate FLSA.
- Union drive at Bloomberg Law fails. Also brings up possible tension between unions' willingness to press NLRB charges and the allegations of retaliation from employees.
- OSHA and NLRB enter into agreement to share information about charges that pass the OSHA statute of limitations, but may raise NLRA issues.
Hat Tips: Michael Duff, Alan Hyde, Patrick Kanvanagh
Congratulations to Katherine V.W. Stone (UCLA) on the publication by Vandeplas Publishing of Globalization and Labor Standards Annotated Bibliography: An Essential Research Tool. Here's the publisher's description:
The Globalization and Labor Standards (GALS) Annotated Bibliography is a compendium of articles about international labor rights, national and transnational labor standards, and comparative labor law that have been published in law journals. All of the articles in the library are abstracted and cross-referenced by subject. Each article is accompanied by an annotation that describes its contents clearly and concisely. The annotations have been written by Professor Katherine V.W. Stone with the help of her students at the Cornell Law School, the Cornell School of Industrial and Labor Relations, and UCLA School of Law. This volume compiles all of the content in the GALS bibliographic library from 2000 to 2014. The purpose of the book is to preserve the wealth of material developed over the past fifteen years and make it available to libraries and researchers.
Dick Kaplan (Illinois) has posted a new paper on SSRN entitled, Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, recently published at 20 Conn. Ins. L.J. 433 (2014). From the abstract:
A retiree’s single largest and most unpredictable expense is paying for health care, and this article explains the various choices and options that a retiree confronts regarding that expense. The article examines the traditional components of Medicare (Parts A and B), prescription drug plans (Medicare Part D), Medigap coverage, and managed care alternatives, as well as long-term care insurance. Each section addresses the financial trade-offs and time-sensitive decisions that are involved.
A great roadmap to help make sense of this complicated system that a growing section of the population has to navigate.
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.
The Supreme Court just announced its decision in Lane v. Franks this morning. In a unanimous decision, the Court held an employee's sworn testimony is not part of his job duties under Garcetti and, therfore, is protected by the First Amendment. According to the decision of the Court,
Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer.
The Court then went on to find that the employee should win under the Pickering/Connick balancing test (although one defendent was held to have qualified immunity).
The three concurring Justices (Thomas, joined by Scalia and Alito), stressed that this case was easy under Garcetti. However, they noted that Lane says nothing about the harder set of cases in which employees regularly testify as part of their job. Another case we can look forward to in the future.
The Supreme Court issued its decision in Lane v. Franks, today, holding unanimously that a public employee is entitled to First Amendment protection for testifying in court where testifying is not a part of that employee's regular job duties. The Court further held that the individual defendant had qualified immunity because circuit court precedent was not clear enough. Here is the syllabus:
1. Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp. 6–13.
(a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing “the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. Pp. 6–8.
(b) Lane’s testimony is speech as a citizen on a matter of public concern. Pp. 8–12.
(1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9–11.
(2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461 U.S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11–12.
(c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erroneous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12–13.
2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. Pp. 13–17.
3. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official capacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17.
523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded
Justice Sotomayor wrote the opinion. Justice Thomas wrote a short concurrence that Justices Scalia and Alito concurred in, explaining that because Lane was not testifying as part of his job duties, the case was a straightforward application of Garcetti v. Ceballos, 547 U.S. 410 (2006). Justice Thomas further wrote,
We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.
I'll admit that I'm a bit relieved by the decision, and I'm not alone--Paul expressed concern when cert was granted. The decision seemed to track my impressions from the oral argument, but that's not always the way it turns out, and the Court has not ruled in favor of public employees lately on this issue.
It will be interesting to see what the Eleventh Circuit does with the claims against the office of the President of the Community College on remand.
Wednesday, June 18, 2014
Those of you that teach in the area of employment law are well aware of the controversy that exists over family and medical leave. Many believe that the leave protections provided by federal law are insufficient, and this country lags far behind many others in this area – – particularly in Western Europe. One criticism of the FMLA which often arises is the lack of any paid leave in the statute. Some states – – notably California and New Jersey – – have acted to help fill this gap with paid leave systems of their own. A recent story at CNN.com looks at how paid leave for family reasons has worked out on a state level. The story provides an interesting look at how the fears raised by opponents of a paid leave system never truly materialized once the system was actually implemented.
Tuesday, June 17, 2014
I'm just back from a great conference -- Future Directions in Psychology, Public Policy, and the Law -- at the University of Nebraska in Lincoln, where I presented on "Microaggression and the Law." And, no, I'm not conceited enough to think that that talk made the conference great. Indeed, the best thing about the conference as a whole was the wide range of subjects, including discrimination, immigration, sexual orientation and gender identity, and educational policy, all with a focus on how empirical research could contribute to the legal debate.
But back to microaggression, a word that has been all the rage in the last few months in the media and on college campuses. The concept -- as framed by Professor Derald Wing Sue -- describes “brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, negative racial slights and insults to the target person of group.” Dr. Sue divides the phenomenon into microassaults, microinsults, and microinvalidations.
The question for me was whether the concept could have much traction in the law. Aside from microassaults, the answer seems to be no. No litigant has successfully deployed the concept, and the only attempt to do so (coincidentally, before the Nebraska Supreme Court) failed pretty miserably. And only a handful of law review articles wrestle with microaggression despite a cottage industry in the psychological literature.
I should probably qualify this conclusion a bit: "microassaults," such as racial epithets, obviously play an important role in discrimination and harassment cases. But this category adds the least to our understanding of human behavior, and, indeed, some question the prefix "micro" when the n-word is used in the workplace or on campus. As a society, we do tend to take this kind of stuff seriously. Ask Donald Sterling.
It's "microinsults" and "microinvalidations" that are more interesting -- probably exactly because they are less visible but still potentially devastating to the victims. The former category, according to Sue, includes behaviors that are insensitive, rude, or inconsiderate of a person's identity, but do not necessarily reflect an intent to harm by the actor. Microinvalidations, in contrast, consist of behavior that minimizes the thoughts, feelings, or experiences of targets.
To get an idea of what this might mean in concrete terms, consider some of Sue's more extreme cases: a microinsult might occur when a white student asks an Asian classmate for help with math, the message being that Asians are all good at the topic. And a microinvalidation might occur when an institution announces a color-blind philosophy, which implicitly denies the lived experience of minorities.
I'm intentionally focusing on the more extreme applications of microaggression theory as it is currently conceived. In those outer reaches, it seems unlikely to have much application in the law and maybe not much more in "softer" settings, like HR training.
But Sue is certainly correct that low-level conduct can be personally and professionally difficult and even devastating-- and maybe torpedo institutional efforts at diversity. The challenge for the psychologists may be to come up with a more rigorous definition of the phenomenon, which can then lead to empirical studies, and perhaps, to deployment in discrimination or harassment suits.
Thanks to Dr. Richard Wiener of the UNL Psychology Department for putting together a great Conference and to Steve Willborn at the College of Law for being fascinating both as tour guide and commentator.