Thursday, October 24, 2013
SCOTUSblog has links to documents filed earlier this week by the federal government in a number of cases concerning whether corporations have free exercise rights under the First Amendment. Companies like Hobby Lobby have argued that the contraceptive mandate as interpreted by the Executive Branch to enforce the Affordable Care Act's mandate that preventive women's health services be covered without cost sharing substantially burdens the religious rights of either the corporation or its shareholders, and that the mandate thus violates either the First Amendment or the Religious Freedom Restoration Act.
The Tenth Circuit agreed with Hobby Lobby, finding that the mandate likely violates RFRA, and the federal government has filed a writ of certiorari in that case. Hobby Lobby apparently agrees that the Court should take the case. There is a circuit split between the Tenth Circuit and the Third and Sixth Circuit on this issue, and the Seventh and Eighth have issued unpublished decisions, granting stays of orders to comply with the mandate pending appeal of the issues. Finally, the Ninth Circuit, the Second Circuit, and the Minnesota Supreme Court have all found that corporations or their shareholders have some free exercise rights in other contexts. For more on that and another of these cases, see the cert petition in the Third Circuit case: Conestoga Wood Specialties Corp. v. Sebelius.
The circuit split, and the general agreement among the parties that the Court should resolve this issue make it more likely the Court will take one of these cases. The real question is whether the Court will consider only RFRA, and decide just Hobby Lobby or consolidate all of the pending petitions, or will consider both RFRA and the First Amendment.
Wednesday, October 23, 2013
Katie Kennedy (The John Marshall Law School) has asked me to post this Call for Papers concerning the Center for Tax Law and Employee Benefits upcoming symposium on the Affordable Care Act.
Here are some of the details: The Center for Tax Law and Employee Benefits is hosting the 12th Annual Employee Benefits Symposium next April 2014. The topic is “The Implementation of the Affordable Care Act.” W. Thomas Reeder, one of the top officials in Washington’s Affordable Care Act Office, will be the keynote speaker; so the Symposium will also be an opportunity to have the ear of a government representative.
The due date for an abstract is Tuesday, November 5, 2013. The Symposium’s date is Friday, April 4, 2014.
The Act 10 Saga Continues: Wiscosnin Judge Holds WERC Commissioners in Contempt for Enforcing Act's Recertification Provisions
The Wisconsin Act 10 story took another unexpected turn this past Monday. Those of you that have been following this saga know that Act 10 is the anti-public sector collective bargaining law enacted under the leadership of tea party Governor Scott Walker in 2011. There have been all sorts of bizarre twists and turns in now almost three years of political and judicial fighting among the Walker administration and impacted unions.
Although the Wisconsin Supreme Court is due to hear oral arguments on November 11th on a trial judge's ruling from September 2012 that Act 10 violates free speech, association, and equal protection rights of public sector union members under the federal and Wisconsin state constitution, there has been quite a side-show in the meantime.
The Wisconsin Employment Relations Commission (WERC) is tasked with applying Act 10's onerous recertification provisions, which require public sector unions to annually certify through vote than 51% or more of all members (not just voting members) still wish to be represented by the union. In its previous incarnation, WERC did meaningful public sector employment work in the areas of fact-finding, mediation and arbitration. That function is mostly gone under the Act 10 regime.
In any event, the dispute here is whether Judge Colas's decision striking down Act 10 only applied to the unions represented in that case or to all public sector unions in Wisconsin. The initial ruling was less than clear in this regard. Because of the ambiguity, WERC has continued to apply the recertification provisions by decertifying the Kensoha teachers union for not seeking recertification and by planning to hold recertification elections in November for other public sector unions.
Judge Colas ruled on Monday that the two WERC Commissioners were in contempt of court for seeking to still apply Act 10 because his ruling applied to all public state and local employees in Wisconsin. WERC has responded by completely ceasing its efforts to apply these provisions of Act 10 in order to purge their contempt.
It is unclear what happens next. On the one hand, I, and most others, suspect that the 4 to 3 conservative-dominated Wisconsin Supreme Court will strike down Judge Colas's decision invalidating Act 10, which makes all this contempt hoopla eventually moot. But when that decision comes down is anyone's guess, although likely before next summer. On the other hand, the government has indicated that it will seek immediate relief from Judge Colas's conempt order by asking the Wisconsin Court of Appeals to stay or vacate Judge Colas's order.
I am somewhat bummed by all this on a personal level. I published what I thought was a comprehensive law review article detailing the entire Act 10 story in the summer of 2012 (shortly before the unsuccessful recall election of Governor Walker), but now I see I might have to write a second part to this saga. Sigh.
Monday, October 21, 2013
Bill Corbett's (LSU) essay, "Calling on Congress: Take a Page from Parliament's Playbook and Fix Employment Discrimination Law," was recently published in Vanderbilt En Banc. From the introduction:
The Supreme Court rendered two decisions addressing issues of federal employment discrimination law on June 24, 2013: University of Texas Southwestern Medical Center v. Nassar1 and Vance v. Ball State University. The opinions have many similarities: Both deal with analytical frameworks developed to prove and evaluate intentional discrimination claims; both were decided in a way that favors defendant employers over plaintiff employees; both were decided 5-4 with the same majorities and dissenters; both majority opinions stated that the decision was likely to result in fewer trials of discrimination claims; both majority opinions rejected the position of the Equal Employment Opportunity Commission (“EEOC”); and both dissents were authored by Justice Ginsburg and read from the bench. Furthermore, the two cases prompted Justice Ginsburg to conclude the dissenting opinions with a call to Congress to overturn the decisions, as she had done in 2007 in Ledbetter v. Goodyear Tire & Rubber Co. Apparently this strategy worked in Ledbetter, as President Obama signed the Ledbetter Fair Pay Act of 2009, overturning the legal principle articulated in that case. According to commentator Jeffrey Toobin, in Vance and Nassar Justice Ginsburg “ran her Ledbetter play again,” but he predicted it is less likely to succeed this time.
I, too, urge Congress to amend the employment discrimination laws, but not by running “the Ledbetter play” again. Congress should stop patching the employment discrimination laws by enacting statutes to change the law announced in specific cases. Such a nickel-and-dime approach to reform of the law is precisely what led to the sharply divided decision in Nassar. Instead, Congress should take a page from the playbook of the United Kingdom’s Parliament and undertake a comprehensive reform of employment discrimination laws, as Parliament did in the Equality Act of 2010.
An interesting and provocative piece--so check it out.
Sunday, October 20, 2013
In the religion context, what, exactly, triggers the duty to accommodate? Two recent contrasting opinions cast light – or maybe shadows – on the issue. In Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450-51 (7th Cir. 2013), the court held, that, even though plaintiff’s religious beliefs and practices were not as familiar as others closer to the modern American mainstream, plaintiff’s request for leave to attend his father’s funeral gave sufficient notice of the religious nature of the request by referring to a “funeral ceremony,” a “funeral rite,” and animal sacrifice and describing his participation as “compulsory,” with the spiritual consequence of his absence being his own and family members' deaths. That triggered the employer’s duty to accommodate.
In contrast, EEOC v. Abercrombie & Fitch Stores, Inc., 11-5110, 2013 WL 5434809 (10th Cir. Oct. 1, 2013) (2-1), held an employer entitled to summary judgment because an applicant “never informed it prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie's clothing policy.” Even if the court were to adopt a broader view of “notice,” an employer need not guess or surmise from the circumstances that a particular practice is based on religion and that the plaintiff requires an accommodation for it.
The Abercrombie opinion is detailed, complex, and sophisticated – and wrong in major respects.
The facts are pretty clear: Ms. Elauf applied for a “model” (i.e., sales) job at Abercrombie while wearing a headscarf, but was turned down because it was assumed she was Muslim and her need to wear a hijab would conflict with the store’s Look Policy. Pretty straight religious discrimination claim, right? Refusal to hire based on the applicant’s religion; if the Look Policy was a BFOQ, maybe no liability, but not because the employer wasn’t discriminating on the basis of religion.
If the court is to be believed, things went wrong at the outset because the EEOC framed the case not as religious discrimination per se but rather as failure to accommodate. Posing the claim that way shifted the focus from whether Abercrombie discriminated on Elauf’s (assumed and actual) religion to whether she ever notified the store of the fact that she had a religious practice that required accommodation in the form of an exemption from the Look Policy. She didn’t, not explicitly, and the majority requires explicit notice. Case dismissed.
As a fallback position, the court also considered whether some kind of less direct notice might suffice, but, if so, the source of such notice “would need to provide the employer with sufficient information such that the employer would have actual knowledge that the conflicting practice of the particular applicants or employees is based upon their religious beliefs and that they need an accommodation for it.” In this case, the only basis for such knowledge was an Abercrombie manager’s assumption that the applicant wore the headscarf for religious reasons and would need some kind of accommodation. That isn’t the kind of “particularized, actual knowledge” that the applicant in question “and not some hypothetical Muslim female” required an accommodation.
The net result is that the employer could refuse to hire a worker because she appeared to be Muslim and was assumed to require an accommodation (both of which were found to be true by the trial court) with no liability under Title VII, entirely absent a finding of either BFOQ or undue hardship.
If the result can be justified, it’s only because the EEOC framed the case as a failure to accommodate claim rather than a plain vanilla discrimination one.
But looked at solely from an accommodation perspective, the Abercrombie opinion raises interesting issues. In fact, the majority turns the EEOC’s rules against itself. Looking to various EEOC guidances, the court stressed that employer should neither inquire into nor assume religious beliefs of their employees, which suggests that they should normally await requests for accommodation and, even then, conduct only the most minimal inquiry into beliefs necessary to decide whether a reasonable accommodation is possible.
According to the court, this is true even if an employer was “generally aware of the beliefs and observances traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group.” That is because “the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because . . . religion is a uniquely personal and individual matter.” At several points in the opinion, the court referred to expert testimony that “religious” practices sometimes were undertaken for “cultural” reasons, which meant that the wearing of the hijab did not necessarily reflect the applicant’s “religious” beliefs.
Finally, the court adopts a command-and-control view of religious accommodation. Even “particularized, actual knowledge” of the religious nature of “a particular applicant or employee” is not enough to trigger the duty to accommodate:
That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice. If that is the situation, then there actually is no conflict, nor a consequent need for the employer to provide a reasonable accommodation
Abercrombie puts the ball squarely in the applicant’s court: to be entitled to an accommodation, the applicant must notify the employer directly and explicitly that she has a mandatory religious practice that conflicts with a workplace rule and so requires an accommodation. Since the applicant was never hired because she was assumed to need an accommodation, the court seems to think that the only way this action would have been actionable was if she had raised the need for an accommodation at her initial interview. A violation of the first rule of Interviewing 101.
One wonders if the plaintiff in Adeyeye would have satisfied such a standard when he asked for leave to attend his father’s funeral. Did the words “funeral ceremony,” or “funeral rite,” convey a religious, as opposed to a cultural compulsion? But maybe the information that the spiritual consequence of plaintiff’s absence would be his own and family members' deaths would do so, and maybe death would be sufficiently compulsory to satisfy the court’s last requirement.
There is much else in the Abercrombie opinion that is interesting and more than a little reason to believe that the court ruled the way it did because of what it perceived as a fundamental unfairness of the EEOC’s various pronouncements, which it believed put employers in the lose/lose situation: forbidding them from inquiring into employees’ religious beliefs while holding them responsible for accommodating those same beliefs. But the result is extraordinarily harsh and seems to ratify discrimination against Muslims (or at least those assumed to be Muslims).
Hearteningly, Judge Ebel issued a dissent. Although at points he seemed to be focusing on discrimination rather than accommodation, he agreed with the majority that “in the ordinary case” an employee must inform the employer of her need for an accommodation, but argued that that requirement made no sense in this setting. While Abercrombie didn’t hire the applicant in order to avoid the accommodation issue, the applicant was not even sure an accommodation would be necessary so long as any hijab she wore did not have to be black. The dissent particularly objected to the majority’s suggestion “that a job applicant must initiate a general discussion of her religious beliefs during the job interview just in case her religious beliefs and practices might conflict with some unstated policy or work rule of the employer.”
The apparent circuit split on what is necessary to trigger the duty to accommodate needs to be resolved, but one good start would be to stop viewing all religious discrimination cases through an accommodation lens. Had this been litigated as a straightforward case of discrimination against Muslims, the outcome might well have been different – and certainly the analysis would be. In that case, the focus would be how critical the Look Policy was to Abercrombie and whether some exceptions might co-exist with it. Not that such an inquiry might not have its own complications: hijab yes, burka, no?
P.S. Shortly before the 10th Circuit's decision, Abercrombie settled two other EEOC suits raising similar issues. Given that the retailer agreed to reform its policies concerning accommodations of its Look Policy, it may be that the case is more significant for the law that it establishes than for whatever may become of Muslim applicants at the store.
Friday, October 18, 2013
Sandra Sperino (Cincinnati) sends word that on November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.” Here's a description:
Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars.
The symposium is co-hosted by Sandra and Martha Chamallas (OSU), and the cast of speakers is very impressive.
Tuesday, October 15, 2013
Unlike the other, good blogging on the Supreme Court this week (see here and here), I'm going to do a lazy post on the argument today in Schuette. This is the case in which plaintiffs argued that the Michigan constitutional amendment banning affirmative action in higher education is unconstitutional. That argument relies on cases such as Romer v. Evans, in which the Court struck down a Colorado law prohibiting localties from passing measures forbidding discrimination based on sexual orientation. Michigan, however, argues that this amendment is different because it is prohibiting discrimination, not encouraging discrimination. Not surprisingly, that argument seemed to have a receptive argument in the Court.
The plaintiffs' argument certainly has some merit, but it's very difficult to believe that at least 5 members of the Court won't be swayed by the combination of 1) a voter-approved amendment that 2) enshrines colorblind admissions. We know that 4 Justices would hold that colorblindness is required, so Kennedy is the only additional vote needed. He wrote Romer and isn't fully in the colorblind camp, but but my money is on him being OK with this amendment. That said, I still don't think that this will lead the Court to strike down all diversity-based affirmative action in higher education--Fisher was only a few months ago and the votes weren't there. But stay tuned.
The Supreme Court today dismissed Madigan v. Levin, the first case to be argued this year, a case about whether the ADEA supplanted a remedy for unconstitutional age discrimination under 42 U.S.C. § 1983, as improvidently granted. Most people could see this coming from the oral argument, where the Justices focused on the procedural posture of the case and whether the Seventh Circuit had jurisdiction to answer the question accepted for certiorari--and if so, whether that jurisdiction should have been exercised. A group of federal courts professors had filed a brief amici curiae, arguing that the court had jurisdiction, but should not have exercised it for prudential reasons, and as the oral argument transcript shows, the Justices focused on that question and additional issues related to the fact that this was an interlocutory appeal from denial of summary judgment on qualified immunity grounds.
The case will go back to the district court for further procedings on the merits. Because the defendants were found not qualifiedly immune, this may be ripe to settle.
The Supreme Court did not vacate the Seventh Circuit's decision, so, as we noted before, the split seems to remain: the 1st, 4th, 9th, and 10th, have held that the ADEA implicitly forecloses bringing an age discrimination claim directly under the equal protection clause using § 1983 as a vehicle; the 7th has held that it has not.
Update: Thanks to blog reader, Albert Feuer, for bringing to my attention Tejinder Singh’s commentary on the oral argument, Argument analysis: Nobody seems worried about ERISA limitations periods, SCOTUSBLOG (Oct. 17, 2013).
OK, hold onto your seats for some flat out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Company [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.
RossRunkel.com, as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):
Heimeshoff's disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.
That can be tough, given the fact that it's possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it's even possible in some cases that the three years would run out before the claimant got a final denial.
Hartford has a simple response, which is that ERISA plans usually get enforced the way they are written.
There's really no statutory text that's much help.
The petition for certiorari points out that lower court have adopted three conflicting approaches to answer the question of accrual:
(1) A plan’s statute of limitations cannot begin running until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination (Fourth and Ninth Circuits);
(2) A plan’s pre-denial statute of limitations is enforceable if “reasonable,” as determined on a case-by-case basis (Second, Sixth, Seventh, Eighth, and Tenth Circuits);and
(3) The plan must notify the claimant of the time limits for judicial review, in the SPD and adverse determinations, in compliance with ERISA regulations; and if it does not, the court will not allow the plan to assert the plan’s limitations defense or will equitably toll the limitations period (First Circuit and a District Court in Second Circuit).
I don't see any clear path for the Court on this one.
Also see Argument preview: When can an ERISA limitations period start to run? at SCOTUSblog.
I agree wth Ross that this area of ERISA law is a mess. The ERISA written plan requirement rule suggests that the plan administrator follow the terms of the plan as written, but to do so, at least conceivably in some cases, the administrator could drag their feet and wait for the statute of limitations to run before finally deciding the internal appeal and thereby prevent the employee to ever file a benefits denial claim in court.
Equitable tolling might be one way with dealing with the potential unfairness of the rule, but its implementation would also be messy. Also, it is unavailing to say with a straight face that plan administrators and employee should be bound by terms of the plan because if the employee wanted a different type of SOL they could just bargain for it. Everyone knows that employees don't bargain over plan language. They are classic adhesion contracts, presented on a take-it-or-leave-it basis.
To me, the best rule would be to start the SOL to run once the internal administrative process has been finalized and the employee is free to sue in court. This approach has the advantages of both providing a clear point when the SOL starts to run, plus provides incentive for the plan administrators to complete claims processing as quickly as possible.
No predictions on this one, folks, but I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations which will further undermine employee rights under ERISA.
Richard Kaplan (Illinois Law) has posted on SSRN his piece in the Elder Law Journal entitled: Financial Planning for the Non-Retiree.
Here is the abstract:
This article addresses the various options under Social Security, Medicare, and private retirement accounts that should be considered by individuals who are approaching or have reached their “retirement age” but plan to continue working. Specifically, the article considers Social Security’s bonuses for delaying Social Security retirement benefits and the related impact on a surviving spouse’s benefits, enrollment costs and delayed enrollment penalties in Medicare Parts A (hospital coverage), B (physicians’ fees), and D (drugs), and the penalty-free deferral of retirement plan distributions beyond age 70½.
Needless to say, this is a valuable contribution not just for social insurance law scholars, but for anyone who finds themselves confronting these types of decisions in their lives.
Monday, October 14, 2013
David Yamada has just posted on SSRN his article The Legal and Social Movement Against Unpaid Internships, (forthcoming, Northeastern University Law Journal), which emerged from a spring symposium at Northeastern Law. Here's the abstract:
Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in June 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movie “Black Swan” were owed back pay under federal and state wage and hour laws.
This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.
In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.
David's article discusses legal developments as recent as this month. As he points out, there are now over a dozen pending intern lawsuits for unpaid wages, and it looks like this issue will be a lively one. Only two weeks ago a federal district court in New York held that an unpaid intern could not sue her internship provider for sexual harassment under the NYC Human Rights Law because the lack of compensation rendered her unable to meet the definition of an "employee". David wrote it up on his blog here.
Thursday, October 10, 2013
From our friends at ADAPT in Bergamo, Italy:
Internship and Traineeship for Students and Young People: Training, School-to-Work Transition or Exploitation? (Bergamo, 25-26 October 2013)
Dear Colleagues and Readers,
Is it fair to work for free in order to learn a trade after years in education and many sacrifices? What is the role of the internship in the programmes of our schools and universities? Which are the rules that apply following the guidelines laid down in the Monti-Fornero Labour Market Reform? Is there clear and uniform legislation regulating the internship in Italy, at least for companies operating overseas? Is there a mapping system on regional regulations? How is the abuse of the internship dealt with in the other countries, particularly considering its relevance in terms of school-to-work transition?
These and other aspects concerning the proper – and often problematic – recourse to internships will be discussed at the 4th International Conference on Young People and Employment, which will take place in Bergamo on 25 and 26 October 2013. You are all welcome to join us.
The conference will have a very practical approach, especially in the Italian language session of the 25th, where a preliminary assessment of the guidelines contained in the Monti-Fornero Reform will be provided, along with some instances of good practices carried out at a company level (e.g. IKEA, BOSCH, ENEL and SCF) and the position taken by the trade unions.
The afternoon session of the 25th and the morning session of the 26th will be devoted to a more international and comparative approach, which will consider the legal, economic, sociological and industrial relations dimension.
A digital book available for free will be presented during the conference containing a detailed overview of regional regulations on internships, along with a position paper drafted by the students of the International Doctoral School promoted by ADAPT and CQIA. The latter will be submitted to the EU officials who will also attend the event, in order to be considered for the setting-up of a Quality and Regulatory Framework for Traineeships.
The questions at hand on the proper implementation of internships and traineeships are complex and go well beyond hard and fast principles and straight answers. At the end of the conference, we will thus attempt to cope with such complexity by holding a debate among our Doctoral students on competing arguments (e.g. Is it fair to pay an intern? Would that be a mistake in the long-term?), with our international guests who will act as “arbitrators”.
Attendance is free. Please fill in the online form here: http://www.bollettinoadapt.it/site/survey.jsp?node=1358&instance=1&channel=25&idSurvey=35&voteable=true
Given the relevance of the topics discussed, I hope to have your full participation and to share your point of view at the different sessions of the conference.
Sunday, October 6, 2013
Catherine Fisk (University of California, Irvine School of Law) and Ben Sachs (Harvard Law) has recently posted on SSRN their forthcoming article in the U.C. Irvine Law Review entitled: Restoring Equity in Right to Work.
Here is the abstract:
Under United States labor law, when a majority of employees in a bargaining unit chooses union representation, all employees in the unit are represented by the union. Federal law, moreover, requires the union to represent all workers in a bargaining unit equally with respect to both collective bargaining and disciplinary matters. As a general rule, federal law enables unions to require employees to pay for the services that unions are obligated to provide them. Twenty-four states, however, have enacted laws granting union-represented employees the right to refuse to pay the union for the services that federal law requires the union to offer. As such, the intersection of federal labor law and state right to work laws results in a mandate that unions provide services for free to any employee who declines to pay dues.
This paper proposes three approaches to addressing this feature of U.S. labor law. First, the paper argues that under a proper reading of the NLRA states may not prohibit all mandatory payments from workers to unions. In particular, the paper shows that states must permit collective bargaining agreements requiring so-called objectors (or nonmembers) to pay dues and fees lower than those required of members. Second, the paper argues that in right to work states federal law ought to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. This proposal would implement a members-only bargaining regime in right to work states. Third, the paper contends that the NLRB ought to abandon its rule forbidding unions from charging objecting nonmembers a fee for representation services that the union provides directly and individually to them.
Given the recent discussion on this blog and elsewhere concerning the US Supreme Court recently taking cert. in the public sector, non-NLRA Harris case and the fragile continuing existence of Abood, this is a timely and relevant article providing a number of interesting theories on how right-to-work state laws and the NLRA should be interpreted so as to be consistent with one another and on how to provide a more equitable approach in this crucial area of labor law.
Friday, October 4, 2013
Reuters has a story today on the three union-related cases on the upcoming Supreme Court term, which features Ben Sachs (Harvard) and Paul Secunda (Marquette). Two of the cases, Mulhall and Noel Canning, we've discussed before, but we (really, "I") have been derelict in mentioning the third: Harris v. Quinn.
In Harris, the Court may be reconsidering the Abood decision from 1977, when it permitted a state to require employees who receive union representation to pay for that representation through mandatory dues. Established Supreme Court law, from Abood to several other cases in the public and private sectors, have allowed mandatory dues that do not include political and other extraneous spending. But the recent Knox opinion had dicta suggesting that several Justices question that basic premise. I agree with Paul & Ben that if the Court overturns Abood et al., it will be a huge deal for unions. In effect, it put the entire country under a right-to-work regime. From the article:
Taken together, the two organized labor cases [Mulhall & Harris] raise significant questions about union power, Harvard University Law School Professor Benjamin Sachs said.
"These are not cases about arcane rules of organizing, rules like where on an employer's property can a union talk to employees," he said. "These are cases that go to the heart of the legal regimes that are necessary to enable unionization.". . .
"Knox put into serious question whether Abood is still good law," said Marquette University law professor Paul Secunda. "Harris might be the vehicle for overruling Abood, making it more difficult for public unions to raise dues."
Thursday, October 3, 2013
At RossRunkel.com today:
SCOTUS: Can public sector employee skip the ADEA and sue directly under the constitution?
Or should this case even be before the Supreme Court?
Madigan v. Levin [Briefs at SCOTUSblog] is set for argument [this Monday] October 7.
'Harvey Levin, a state employee, claimed he was fired because of his age. He sued his boss under the ADEA and the constitution. The boss claimed qualified immunity.
The trial court threw out the ADEA claim, kept the constitutional claim, and decided the boss did not have immunity.
The boss brought an interlocutory (pre-trial) appeal to the 7th Circuit, which decided (1) no immunity and (2) Levin can go ahead with his constitutional claim.
Primary issue: Whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures. That's the issue everyone is talking about. For a good explanation, see Lyle Denniston's discussion at SCOTUSblog.
Wait, wait, one more issue: Notice that the appeal to the 7th Circuit was interlocutory. Unusual. Allowed here because of the immunity issue. But the 7th Circuit also went forward with the ADEA-vs-constitution issue. I'd like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment. Am I trying to be too orderly here?
FWIW, I think the Court should kick back the case for a trial before deciding the case on appeal. I am very much a proceduralist on such matters.
As far as whether a public employee should be able to bring a constitutional claim based on age discrimination in addition to a claim under the ADEA, I think they should be able to do so. My primary thinking is that you can get individual liability in a Section 1983 case, whereas you cannot under the ADEA. Also, in light of Gross changing the causation standard to "but for" in ADEA cases, there might be an easier cauasation standard under Section 1983. In any event, this analysis is supported by a similar conclusion come to by the Court in the Title IX realm in the Barnstable case a few years ago.
The one difference between this case and Barnstable is that you do not have to exhaust administrative remedies in Title IX cases like you do under the ADEA, so that may be a distinction which might make this case come out differently. Court might place importance on the gatekeeping function the EEOC plays in ADEA cases and this may be seen as an end-around for some public employees (though Madigan brought both claims so must have exhausted administrative remedies).
The National Center for the Study of Collective Bargaining in Higher Education and the Professions housed at Hunter College, the City University of New York (CUNY) is conducting a Call For Papers for its 41st Annual National Conference: Achieving Successful Results in Higher Education through Collective Bargaining set for April 6-8, 2014 at the CUNY Graduate Center.
The National Center’s mission brings together academic managers, unionists, analysts and scholars in all of its activities, which include a national conference and workshops, publications, and training for grievance administration and arbitration. We seek collegial outcomes at our National Conference and in all our activities. An Advisory Board of ten academic administrators and an equal number of union leaders directs the National Center’s work. The annual National Conference is broadly attended by a national audience. Last year there were over 300 attendees.
Wednesday, October 2, 2013
Thanks to Susan Carle (American) for bringing to my attention that The Journal of Gender, Social Policy & the Law at American University Washington College of Law is currently compiling articles for a disability law themed issue, focused on new and cross-cutting developments in the field and how disability law intersects with other areas of law. Here is the Call for Papers which outlines what the Journal is looking for in greater detail.
The submission deadline for this volume is November 25, 2013 and the issue will be published in the late spring/early summer of 2014.
Submissions should be e-mailed to email@example.com. Any questions you have can also be directed to that e-mail.
Monday, September 30, 2013
- The study and understanding of grievance procedures, the arbitration process and other forms of labor and employment dispute resolution and the impact of law on these processes.
- The impact of law on grievance and arbitration processes.
- The education and training of persons engaged in the resolution of labor -management and employment disputes. Included are the funding of lecture programs, symposiums, conferences and training seminars.
- The preparation and publication of books, symposium materials, articles, and audio-visual materials (e.g. films; websites; CDs) designed to enhance the competence of persons engaged in the arbitration and mediation of labor-management and employment disputes.
- The preparation of material designed to keep arbitrators, mediators, and students of labor-management and employment arbitration abreast of current research into the arbitration process.
- The development of procedures or techniques for the resolution of labor and employment disputes in this and in other countries.
Detailed information on how to apply for the REF grant can be found on the NAA website.
Questions about these grants can be directed to Allen Ponak, REF President, and firstname.lastname@example.org.
Sunday, September 29, 2013
The article approaches critically the balancing between freedom of religion and the enforcement of disability anti-discrimination law followed by the Supreme Court in Hosanna-Tabor v. EEOC. Enforcing disability anti-discrimination law is a compelling interest, as it finds a very strong philosophical justification, making thus the result of the case contrary to the philosophical conception of a well-ordered society. Doing away with the social construct of disability is a compelling interest as it is a universalisable interest, an interest upon which there can be an over-lapping consensus independently of a person’s comprehensive, religious or not, vision of the good. Reference to the ministerial exception to justify exempting employers from the disability antiretaliation laws is of doubtful compatibility with Emp’t Div., Dep’t. of Human Resources of Or. v. Smith. Courts can distinguish between a doctrinal and a nondoctrinal issue and abstain from controlling the first while controlling the legality of nondoctrinal issues. If the case of a qualified minister is at stake, whose substantive qualifications the courts cannot control under the First Amendment, then disability anti-discrimination law should be enforced, as it is neutral law of general applicability.
On September 26, 2013, Governor Jerry Brown signed into law AB 241,extending overtime protection for California domestic workers who spend a significant amount of time caring for children, elderly and people with disabilities. Last week, the federal Department of Labor finalized rulesthat significantly extend federal minimum wage and overtime protections to domestic workers who care for the elderly and people with disabilities as well as those hired by third-party agencies.
These two significant changes to federal and state law will end nearly 75 years of exclusion of domestic workers from basic wage and hour protection.
The Women's Employment Rights Clinics of Golden Gate University School of Law has served as legal counsel to the California Domestic Workers Coalition, which sponsored AB 241. It has been a momentous journey for its students and the Clinic to be part of grassroots worker-led movement to redress the unfair and unequal treatment of domestic workers.
Thanks to Hina Shah for letting us know.