Monday, January 27, 2014

Elon Law's 2014 Martin Luther King, Jr. Forum Celebrating The Life of Julius Chambers

Chambers_juliusThank you to friend of the blog, Jon Harkavy, who forwarded information about a program in which he participated last week commemorating the life of Julius Chambers. 

Chambers, who passed away last year, was the foremost Title VII advocate in the country for many years and succeeded Thurgood Marshall and Jack Greenberg as the Director-Counsel at the Inc. Fund in New York.  Jon tells us that the program, sponsored by Elon Law School (Eric Fink and Jim Exum), was a spirited, joyful and personal glimpse of Chambers' life.  

Jon regrets, and so do I, that there was so little publicity about this event in advance, but Jon thought readers of this blog might want to know about this tribute to our colleague who played such a big role in what we do as employment lawyers and teachers.

A detailed remembrance of Mr. Chambers is available here.


January 27, 2014 in Conferences & Colloquia, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Greene on Grooming Codes and on Misperception in Employment Discrimination Law

Doris-Wendy-Green-newWendy Greene (Samford) has two new articles up on SSRN. The first, A Multidimensional Analysis of What Not to Wear in the Workplace: Hijabs and Natural Hair, considers grooming codes and the way they limit at least some women's participation in the workplace. Here is the abstract:

This Article challenges a relatively universal judicial and societal assumption that employers’ enactment and enforcement of grooming codes are inconsequential to women’s access to, and inclusion in, American workplaces. Specifically, this Article provides a multidimensional analysis of workplace grooming codes, shedding light on the comparable journeys of discrimination that Black and Muslim women experience when their hair and hair coverings are subject to employer regulation. Further, it illustrates that since Black and Muslim women’s identities are not mutually exclusive, Black women who are Muslim may also suffer a double form of discrimination if an employer bans both hijabs and natural hairstyles in the workplace. Thus, for the first time, this Article specifically contemplates the interconnectivity between the socio-politically constructed identity of Black and Muslim women, the socio-political and personal meaning of Black women’s natural hairstyles and Muslim women’s hijabs and resulting discrimination — under the law and in society. In so doing, this Article illuminates how these women, who are racialized as non-white due to their physical appearance and/or their religious faith and observances, share similar experiences as it relates to workplace inclusion and exclusion vis à vis what adorns their heads. This Article also demonstrates that workplace prohibitions against Black women’s natural hairstyles and Muslim women’s donning of a hijab are closely aligned forms of race and gender-based discrimination, triggering parallel actual as well as perceived stigmatization, vulnerability, and exclusion for these women of color, which civil rights constituencies have not fully exposed and addressed. 

This Article draws upon the works of notable critical race and sexuality theorists in its contention that a “multidimensional” analysis of the discrimination that women of color as a collective experience in the workplace — at the intersection of race, religion, and gender — is vital for a deeper understanding of the civil rights issues at stake, as well as for increased and sustained civil rights advocacy challenging the legality of such grooming codes. Thus, this Article calls for cross-cultural advocacy among civil and workers’ rights constituencies so that antidiscrimination law, doctrine, and advocacy can more meaningfully attend to the deprivation of equal conditions, privileges, dignity, and personhood that Black and Muslim women suffer due to the arbitrary enactment and enforcement of workplace grooming codes banning natural hairstyles and hijabs in the workplace.

The second article, Categorically Black, White, or Wrong: "Misperception Discrimination" and the State of Title VII Protection focuses on situations where employers act because of what they perceive the race, color, national origin, or religion of employees or applicants to be, but are not correct about that perception. Here is that abstract:

This Article exposes an inconspicuous, categorically wrong movement within anti-discrimination law. A band of federal courts have denied Title VII protection to individuals who allege "categorical discrimination": invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of "misperception discrimination" is beyond Title VII’s scope. Accordingly, Title VII protection is only extended to such a plaintiff if she is "actually" Muslim or brings forth allegations of invidious, differential treatment based upon her actual Christian identity. This Article argues that these judicially created prerequisites to Title VII protection are categorically wrong. They impose a new "actuality requirement" on Title VII plaintiffs in intentional discrimination cases that engenders unfathomable results. Plaintiffs who suffer from invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against discrimination if they fail to prove their actual religious, gender, ethnic, racial, or color identity upon defendant-employers’ challenge.

Though this Article primarily examines the imposition of an actuality requirement in misperception discrimination cases, this Article also demonstrates that courts have considered and imposed an actuality requirement in conventionally framed discrimination cases as well. Accordingly, this Article is the first to enumerate the development of, and myriad justifications for, the actuality requirement in cases of categorical discrimination. This Article argues that some courts’ imposition of an actuality requirement in misperception and conventionally framed discrimination cases denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly fifty years after its enactment — an interpretative methodology that this Article is first to describe as "anti-anticlassificationist." 

This Article also highlights a few critical, negative implications of courts’ anti-anticlassificationist interpretation of antidiscrimination law. Namely, it examines the emergence of a minimalist "actuality defense" and resulting identity adjudication, which obfuscates the chief issue in intentional discrimination cases: whether the plaintiff suffered unlawful, invidious, differential treatment. Additionally, this Article illuminates that courts’ anti-anticlassificationist interpretation and attendant actuality requirement have in fact resuscitated age-old trials of racial determination. They have thereby produced an additional destructive consequence by reifying race as a stable, biological construct. 

Consequently, this Article proposes fresh, practical, and theoretical interventions to cease the continued anti-anticlassificationist interpretation of Title VII. In doing so, this Article excavates previously unexplored Title VII statutory provisions, longstanding EEOC directives, Fifth and Third Circuit precedent, and recent Supreme Court precedent. Properly read, these sources will show that a prerequisite showing of actuality in cases of categorical discrimination under Title VII is wrong. Thus, this Article affirms that all categorical discrimination plaintiffs — that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or mistaken religious, gender, ethnic, racial, or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.

Two great reads, for sure.


January 27, 2014 in Employment Discrimination, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

DeBofksy on How Courts Interpret the Meaning of “Civil Action” as Applied to Benefit Disputes Under ERISA

DebofskyMark D. DeBofsky (DeBofsky & Associates, P.C. and John Marshall Law School) has just posted on SSRN his new paper: How Courts Interpret the Meaning of “Civil Action” as Applied to Benefit Disputes Under ERISA.

Here is the abstract:    

Congress authorized claimants seeking employee benefits to bring a “civil action” to recover benefits due or obtain appropriate equitable relief. 29 U.S.C. § 1132(a). The Federal Rules of Civil Procedure contemplate only one form of civil action; and civil actions are to be adjudicated utilizing the procedures specified by the civil procedure Rules and by the Federal Rules of Evidence. Yet federal courts have denied ERISA benefit claimants the right to take discovery normally permitted in civil actions, the right to trial by jury, and even, in most cases, the right to a trial in open court involving the examination and cross-examination of witnesses.

This article explores how the courts developed a quasi-administrative law regime governing ERISA benefit disputes despite Supreme Court rulings defining the contours of what a “civil action” should consist of. The article further examines how ERISA cases are litigated and the scope of ERISA adjudications. Questions as to whether the current regime for litigating ERISA cases violates claimants’ Constitutional due process rights are also raised, along with a discussion as to whether remands of ERISA cases violate the finality rule of Article III of the U.S. Constitution.

Very interesting issue in ERISA law. Many take the current scheme of benefit disputes for granted, but Mark raises some troubling litgation and constitutional issues surrounding the current practice of law in this area of employee benefits law.


January 27, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Subdividing "Loyalty"

New ImageSince I've been critical of some of the evolving Restatement on Employment Law, it seems only fair to heap some praise upon the project when I see improvement.  And, in my view, section 8.01, the Employee Duty of Loyalty has considerably improved from earlier versions.  The reporters are to be commended for their responsiveness to suggestions raised during earlier discussions at the ALI.

The major improvements are twofold.

First, earlier versions imposed a duty of loyalty on all employees. What exactly that meant was contested, but the present version (Council Draft No. 11, Dec. 2013), is narrower. It would provide two flavors.  One is that owed by "employees in a position of trust and confidence";  these individuals owe "a fiduciary duty of loyalty."  The other "depending on the nature of the employment position" is a "contractual duty of loyalty." §8.01(a). 

While the current formulation could be critiqued, I come to throw bouquets not brickbats, and the bottom line is that the current version can no longer be read to impose on all employees fiduciary-like duties. Indeed, the sharp distinction between positions of trust and confidence and those "depending on the nature of the employment condition" will necessarily focus the attention of courts following the new Restatement on what, exactly, the law should expect of the particular employee. The resultant uncertainty is problematic but at least we've avoided the overinclusion of the first efforts.

Not insignificantly, comment a suggests that the "faithless servant" remedies (upon which I've expounded at length) are limited to those breaching a fiduciary duty while those breaching only a contractual duty are subject to  only contract remedies.  It also suggests that fiduciary duties are not disclaimable by contract while contractual duties are more malleable. 

But (OK, here's a small brickbat) Illustration 2 throws some doubt on the distinction between the two flavors of duty. It imagines E, a line worker for a manufacturer X who, by no stretch of the imagination, is a fiduciary but who stumbles across his employer's business plan, helpfully labeled "Trade Secret." According to the Illustration, E "became a fiduciary responsible for maintaining the secrecy of X's trade secret when it came into his possession." It's not that I think that liability shouldn't attach in the circumstances, but it does seem to make the notion of "fiduciary" broader than the blackletter would suggest. 

The second major improvement of this draft is replacing protection of "confidential information" with "trade secrets."  §8.01(b).  This change is less dramatic since earlier drafts seemed to equate the two, but the use of the potentially broader "confidential information"  risked an unintended consequences of expanding protection beyond what trade secret law would protect.

Like an earlier version, current §8.01(c) stresses that any duty of loyalty "must be interpreted in a manner consitent with" other employee rights, such as those under the public policy tort, and, more generally with "any privilege or obligation to cooperate with professional or government authorities."  See also §8.03(b) (duty of loyalty not breached if "the employee acts under a legal duty, legal protection, or other permission by law in making disclosure or use.") This explicitly recognizes the innate tension between the Restatement's encouragement of whistleblowing and its protection of confidences.  It's probably the best that can be done at the blackletter level of generality.



January 27, 2014 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Fourth Circuit Holds Temporary Disabilities May Be Covered by the ADA(AA)

DisabilitiesThe Fourth Circuit issued an opinion yesterday on an issue of first impression under the ADA as it's been amended by the ADAAA. In Summers v. Altarum Institute Corp, the court held that a temporary disability can be a disability for purposes of the Americans with Disabilities Act, reversing a dismissal and remanding the case for further proceedings.

The plaintiff was a government contractor who was assigned to a workplace he had to travel some distance to get to. One day, on the way to work, he fell getting off of his train and seriously injured both legs. Without surgery, pain medication, and physical therapy, it would likely be a year before he would be able to walk, and with that treatment, it would likely be seven months. Almost immediately after the injury, the plaintiff suggested to his employer ways that he could work remotely and then work up to working again on site for the client, but instead of working on a plan, his employer encouraged him to take short term disability and then later terminated him. The plaintiff sued, alleging that he was discharged because of his disability.

The district court dismissed his claim, holding that "a temporary condition, even up to a year, does not fall within the purview of the [A]ct,” so the plaintiff failed to allege that he was disabled within the meaning of the ADA.  The court also suggested that the plaintiff was not disabled because he could have worked with the assistance of a wheelchair.

The court of appeals held that the plaintiff was substantially limited in the major life activity of walking even though he would eventually be able to walk again. The court acknowledged that under pre-ADAAA precedent, namely Toyota v. Williams, 534 U.S. 184 (2002), that temporary disabilities were not covered. In the ADAAA, though, Congress explicitly expanded the definition of disability and explained it was doing so to reverse the effects of narrowing Supreme Court decisions including Toyota.

Moreover, Congress directed the EEOC to revise its regulations to broaden the definition, and the EEOC did so after notice and comment. The revised regulations provide that effects of an impairment lasting even less than six months can be substantially limiting enough to constitute a disability. Duration of the impairment is one factor to consider, but severity of the impairment is also important. The more severe the impairment, the shorter the duration needed for the impairment to substantially limit a major life activity. Finally, the court held that the cause of the impairment was not relevant, at least between whether an impairment was caused by a long-term or permanent disability or an injury because the EEOC's regulations use impairment and injury interchangeably in several places in the regulations. The court gave all of these regulations Chevron deference finding that they were highly reasonable interpretations of the amended statute.

Regarding the possibility that the impairments might last less time with surgery, pain medication, and physical therapy, and that the plaintiff could be mobile enough to get to the workplace with a wheelchair, the court noted that those factors could not be considered in deciding whether the plaintiff had a disability. Doing so may have been appropriate under pre-amendment Supreme Court precedent, namely Sutton v. United Airlines, 527 U.S. 471 (1999), although the court did not cite to that case. Again, Congress specifically abrogated that case along with the other cases that narrowed the definition of disability. The court of appeals noted that the EEOC regulations prohibited considering mitigating measures, and even more importantly, that to consider an accommodation which would allow the plaintiff to work before considering whether he was an individual with a disability turned the proper inquiry on its head in a way that would eviscerate the ADA.

The plaintiff had also raised a failure to accommodate claim at the district court level, but did not raise it on appeal, and so the court of appeals did not analyze that claim. 

This case is a very important one for a number of reasons. It is the first court of appeals case to consider whether a person who suffers a temporary impairment can be considered disabled under the ADA. The decision also confirmed that the disability question is not going to be, in many cases, a big hurdle for a plaintiff, and that the EEOC regulations should be afforded deference. It also provides a context-specific test for determining whether a person is disabled that sticks to the statutory language of whether the impairment at issue substantially limits a major life activity. Substantiality is to be considered both as a question of duration, but also as a question of quantity and quality. 

The case will obviously impact many situations in which worker injuries cause relatively serious and relatively long-lasting impairments, and may impact whether employers can continue to distinguish in accommodations between on-the-job and off-the-job injuries. It also may influence whether at least some limitations caused by pregnancy have to be accommodated. Thus, this is a decision with potentially far-reaching consequences.

h/t Jonathan Harkavy


January 24, 2014 in Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Seyfarth and Littler Publish EEOC Litigation Reports and Analysis

EeoclogoTwo major employer management law firms have published their annual reports on EEOC litigation:

Littler's Annual Report on EEOC Developments - Fiscal Year 2013 and

Seyfarth's EEOC-Initiated Litigation: Case Law Developments In 2013 And Trends To Watch For In 2014.

Both publications seek to "report on significant cases, regulatory developments and other activities involving the Equal Employment Opportunity Commission (EEOC)," and to "provide readers with a detailed executive summary and comprehensive analysis on the unique aspects of court rulings in 2013 in EEOC litigation and the challenges employers face in litigating against the EEOC."

eports on significant cases, regulatory developments and other activities involving the Equal Employment Opportunity Commission (EEOC - See more at:

Hat Tip: Kasia Solon Cristobal


January 24, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 22, 2014

Stetson Law Review Symposium on Citizens United

ConfThanks to Jason Bent (Stetson) for bringing to my attention a wonderful law review symposium that is planned at the Stetson Law School for February 28 on the four-year anniversary of Citizens United.

Jason and his crew have some fantastic speakers lined up, including two of our own in the L&E world - Charlotte Garden (Seattle) and Jason himself.  The keynote speaker is Lawrence Lessig, and they have a great lineup of panelists and moderators.  The event is co-sponsored by the Stetson Law Review, the Corporate Reform Coalition, and the ACS. 

A link to the page with the lineup of panelists is here.  Although the symposium topics are broader than just labor law, that will be a big part of the discussion.  So if you are Tampa way that time of the year, check it out.


January 22, 2014 in Conferences & Colloquia, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 21, 2014

Harris Oral Argument

Supreme CourtThe Supreme Court heard oral arguments to day in Harris v. Quinn.  According to SCOTUSblog, the expected attack by conservatives against  union mandatory dues occurred.  The surprise is the Justice Scalia apparently exhibited less enthusiasm for reversing Abood than his conservative colleagues.  In contrast, the liberal Justices apparently showed real concern that the Court would outlaw public unions ability to seek dues from all employees they represent.

To the extent that there's a silver lining (and I'm not sure there's one at this point), the argument seemed to focus on the uniqueness of public sector collective-bargaining.  In particular, several Justices (with the apparent exception of Scalia) seemed receptive to the argument that public-sector unionism is more about affecting public policy than typical collective bargaining.  I don't buy that argument and, even if I did, I'm not convinced that under the Court's precedent, it would mean that mandatory dues is prohibited by the First Amendment.  But that appears to be where several Justices are headed.  Whether there a 5 of them is the question.  Even if there are, the tenor of this argument suggests that the ruling will not affect the private sector.  For now at least.  Which is not to say that eliminating mandatory dues in the public sector won't be a significant harm to the labor movement.

Hat Tip:  Patrick Kavanagh





January 21, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (8) | TrackBack (0)

Monday, January 20, 2014

Finken & Kochan on Possible VW Works Council

VWWe've been following the talks between the UAW and VW's Chattanooga plant for a while now, especially the possibility that the parties will end up with a works council-style system (e.g., see here and here).  As expected, groups such as the National Right to Work Lega Defense Foundation are already attacking the possible relationship--arguing, among other things, that they would violate Section 8(a)(2).  Matt Finkin (Illinois) and Thomas Kochan (MIT) just published an op-ed in the LA Times, arguing that a works council arrangement would be legal in the U.S.  An excerpt:

For years, labor law, labor economics and labor-management researchers like us have urged experimentation with works councils in the United States. Volkswagen and the United Auto Workers are proposing to do just that at Volkswagen's Tennessee plant. This could be a watershed in American labor relations, one that rejects the outmoded adversarial doctrines that have built up in U.S. labor law and practice. And it signals management and labor support for a new model of cooperation and partnership.

Unfortunately, the National Right to Work Legal Defense Foundation and others are opposing this effort by arguing that such cooperation would violate U.S. labor law's 1935 ban on sham or "company" dominated unions.

A comparison of German and American labor law makes it clear they are dead wrong. . . . 

For what it's worth, I've been researching this and related issues for some time, and completely agree that there is no Section 8(a)(2) issue with a well-designed bargaining relationship.  But before we find that out VW, the UAW, and the employees will have to finally make all this speculation come to fruition.  So stay tuned.

Hat Tip: Wilma Liebman



January 20, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

GelernterThanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.

The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel.  The Ninth Circuit’s summarizes the case thusly:

[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable. 

Here is Lise's commentary:

The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA.  The Ninth Circuit cited to a Second Circuit case that had a similar holding:

Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA.  Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).  

This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.  

Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.


January 20, 2014 in Arbitration, Commentary, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Heymann, Stein & Moreno's New Book: Disability and Equity at Work

BooksMichael Ashley Stein (Executive Director of the Harvard Law School Project on Disability) writes to tell us of the new disability workplace law book he has co-edited with Jody Heymann and Gonzalo Moreno. 

From the  press release by Oxford University Press on Disability and Equity at Work:

Despite international and national guarantees of equal rights, there remains a great deal to be done to achieve global employment equality for individuals with disabilities. In OECD countries, the employment rate of persons with disabilities was just over 40%, compared to 75% for persons without a disability; in many low- and middle-income countries, the employment rates are even lower.

There are numerous reasons why persons with disabilities fare poorly in the labor market; Disability and Equity at Work is the first book to document what can be done to improve this imbalance.

Follow the link above to find this important and timely book on the rights of the disabled in the workplace.  It is sure to be at the center of the conversation of how to improve employment outcomes for the disabled for many years to come.


January 20, 2014 in Book Club, Disability | Permalink | Comments (0) | TrackBack (0)

Shout Out to New Whistleblower Protection Law Blog

ZuckermanAs a firm believer and advocate for employee whistleblower rights, I am pleased to welcome to the blogosphere, Whistleblower Protection Law Blog, run by Zuckerman Law (and in particular, Jason Zuckerman).  The blog  focuses on developments in whistleblower law from a whistleblower advocate’s perspective.

Jason has been around whistleblower law practice in a number of different capacities.  He has litigated whistleblower cases in private practice for about a decade and then served as Senior Legal Advisor the Special Counsel at the U.S. Office of Special Counsel, an independent agency charged with protecting whistleblowers in the federal government.  In addition, he was appointed by former Secretary of Labor Solis to serve on the Whistleblower Protection Advisory Committee, which advises and makes recommendations to the Secretary of Labor to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections.  

You can find Jason's bio and publications on his website.  Check out this great new blog!


January 20, 2014 in Public Employment Law, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

U.S. Supreme Court to Decide Lane Public Employee Free Speech Case

4United States Supreme Court 112904Thanks to Ross Runkel at for bringing to my attention that the U.S. Supreme Court this past Friday accepted cert. in an interesting public employee free speech case: Lane v. Central Alabama Community College (11th Cir 07/24/2013) (unpublished).

In Lane, the public employee claimed that he was fired for testifying truthfully against a state legislator after he had been subpoenaed.   As Ross points out:

It raises an issue left undecided in Garcetti v. Ceballos, 547 US 410 (2006). Garcetti is famous for holding that a public employee who speaks or writes as part of that employee's job duties enjoys no 1st amendment protection. The employer can fire that employee for speaking or writing. The reasoning is that the employee was not speaking or writing as a citizen.

The issue in Lane v. Franks is whether a public employer is free to fire an employee for giving truthful subpoenaed testimony.

Lane, as part of his community college job, uncovered evidence that a legislator was engaged in some corrupt activities. Later, Lane testified under subpoena in a federal criminal trial involving the legislator. When Lane got laid off or terminated from his job, he sued Franks, president of the college, claiming retaliation in violation of the 1st amendment.

Ross is absolutely correct that the crux of the case here is that testifying was not Lane's job duty, but the content of the testimony is all about what Lane discovered as part of his job duties.  I also agree with Ross that this should be an easy case because when an employee is subpoenaed to testify in criminal court, that employee is speaking as a citizen on a matter of public concern and should have the protection of the free speech provisions of the First Amendment.

But we shall see.  I thought Ceballos in the Garcetti case had clear free speech rights in working with the defense attorneys against his superiors, but I turned out to be dead wrong.  The problem is that these fabricated, formalist distinctions between when a public employee acts as a "citizen" or "employee" do not lend themselves to easy definition in various contexts.


January 20, 2014 in Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Labor & Employment Law Roundup

AdobeSome issues that have caught my (and others') eye, recently:

  • Steven Greenhouse (NY Times) has an interesting article today on business groups going after worker groups.  A main thrust of the criticism has got a serious "pot calling the kettle black" side, as the business groups don't seem to like the fact that unions are giving to support to worker groups.  A more serious argument is that these worker groups should be regulated like unions.  In most cases, I don't think there's much to this argument on the substance (much of the activity is pure speech).  A bigger question though is that I still believe that unions should be doing more to fight some of the legal restrictions on their activity.  As the Supreme Court has lowered the "economic speech" bar, unions need to also take advantage.  The business groups may, ironically, force the issue if the keep up these attacks.


  • Also in the NY Times, earlier in the month, was an op-ed from writer Will Blythe (who wrote a fantastic book on the Carolina-Duke basketball rivalry) on his refusal to sign an anti-disparagement agreement in exchange for two weeks severance pay when he was laid off.  As Blythe notes, his role as a writer makes such a clause particularly offensive, but it's nice to see someone bring this out in the open.  The growth of these clauses, as well as non-compete agreements, shows the limits of the neoclassical economic model and its theory that "bad" employers will pay for their behavior because employees will avoid them.  If employees can't say their employee was bad--or even leave to get another job--that economic model falls apart.  Finally, as Michael Duff noted, these clauses raise possible issues under Costco and Flex Fracalthough being part of a severance agreement probably means that they're lawful.


  • Matt Bodie notes the 9th Circuit's recent decision in Hariharan v. Adobe.  The court affirmed class certification for about 60,000 Silicon Valley employees, which allege that Apple, Google, Adobe, and other employers violated antitrust law by conspiring to supress pay by not recruiting each others' workers.  A case worth monitoring.


January 17, 2014 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 15, 2014

Goodbye Wrongful Demotion?

New ImageAs the Restatement of Employment Law heads towards  final approval by the American Law Institute, it seems destined to end as it began -- in considerable controversy.

Exhibit A: The early drafts  not only approved the tort of wrongful discharge in violation of public policy but extended it to "other material adverse action." So, for example, Tentative Draft 2, revised in July 2009, provided that the tort reached

an action that significantly affects compensation or working conditions or other action, short of discharge, that is reasonably likely to deter a similarly situated employee from engaging in protected activity.

I don't recall much controversy about this, and it makes sense, right? The animating concept for the tort is that employers ought not be able to deter employees from public-policy furthering conduct by employment-related sanctions.  Permitting suit for wrongful demotion is consistent with that notion. Plus, of course, the framing was essentially the same as the that used by the Supreme Court for Title VII retaliation cases in Burlington Northern v. White.

I was more than a little shocked, therefore, to open Council Draft 11 (December 2013) to find the tort cut back to reach only wrongful discharge. See 5.01.  Although constructive discharge remains actionable, cmt. c, wrongful discipline has been eradicated root and branch. 

The explanation?  The earlier version recognized that few cases had recognized wrongful discipline, but argued that the "better approach" was to allow "claims of wrongful discipline short of discharge to go forward, where such discipline is likely to deter" going forward with protected activity.

The explanation for the change?  One is that "the majority view of jurisdictions addressing the issue" refuses to extend the tort beyond discharge. Of course, the ALI is not bound to accept the majority view, but what's even odder is that the Reporter's Notes cite courts in 6 jurisdictions finding wrongful discharge actionable at common law (including two state supreme courts) and  6 (including one supreme court)  holding to the contrary  (once different decisions from the same jurisdiction are aggregated).   And, no there's not a trend: the most recent case, from West Virginia, approved a claim of wrongful withholding of wages).

It's not that I think that nose counting should be outcome determinative, nor have I undertaken my own review of the case law,  but it's hard to see, taking the Reporters to be accurate, that the proposed formulation is the majority rule. At worst, the division in authority allows the Institute to do what it is best at -- formulating the most appropriate rule.

So what's the policy explanation for the change? The course originally laid out is objectionable because it "would require courts to scrutinize routine employer action on pay, promotion, and the like without a specific legislative directive to proceed."  That's a striking passage because it reflects exactly what the public policy tort does with wrongful discharge -- create a tort without legislative direction.

If there's a difference between the two situations, then, it must be the fear that extending the tort would result in the proverbial flood of litigation.  But, if that's such a big risk, why have only 12  jurisdictions even addressed the question? And my recollection is that most commentators think this is a "no problem problem" because of the strong disincentives for suing one's current employer.

Finally, the rejected approach would essentially map on to Title VII retaliation law. Of course, there was "legislative direction" for a retaliation cause of action, but the Burlington Northern Court essentially looked to the logic of the provision to define what qualified as actionable retaliation.  The ALI should follow in the Court's footsteps, and revert to the earlier formulation.

Absent that, the whole notion of "protected activity" in the public policy tort arena becomes somewhat chimerical -- maybe we should speak of  "partially protected activity."



January 15, 2014 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 14, 2014

Widiss on Leveling Up After DOMA

DwidisssmallDeborah Widiss (Indiana-Bloomington) has posted on SSRN her new essay, forthcoming in the Indiana Law Journal: Leveling Up After DOMA.

Here is the abstract:

Even though the provision of the Defense of Marriage Act precluding federal recognition of same-sex marriages has been held unconstitutional, more than half of the nation’s same-sex couples remain ineligible for full federal marriage rights because they live in states that do not recognize same-sex marriage. The common response to this problem is to urge Congress to enact a uniform “place of celebration” rule under which any lawful marriage would be recognized as valid for federal purposes, and many federal agencies have adopted this rule in implementing discrete statutes that reference marriage. This approach mitigates the inequity of current policy, but it has significant weaknesses that have not been adequately considered. It requires same-sex couples to travel out-of-state — and often very significant distances — to marry simply to claim federal benefits, imposing an unfair burden on same-sex couples and one which will likely further exacerbate class-based variation in marriage rates. And it increases the risk that some same-sex couples will become trapped in unwanted marriages, because jurisdictional rules typically require couples divorce in their home state and many states refuse to recognize same-sex marriages even to dissolve them.

This invited essay challenges the underlying assumption that state-licensed marriages should continue to be the exclusive mechanism for accessing core federal rights. It advocates instead creation of a federal domestic partner or “marriage” registry available to (at least) same-sex couples wherever they live. This would effectively “level up” federal marriage policy to address the discrimination against same-sex couples left in DOMA’s wake. It also suggests that a federal domestic partner registry could be structured to make at least some federal marriage rights more generally available to unmarried same-sex and different-sex couples who meet specific criteria. Even if, at some point, same-sex couples are permitted to marry in all states and the problem of derivative federal discrimination disappears, broader trends suggest that cohabitation and non-marital childbearing rates will continue to rise. A domestic partner registry could be a vehicle for more fairly and effectively distributing government benefits, rights, and obligations among diverse family forms.

Although not a traditional employment law piece, its premises are very relevant for ERISA, FMLA, and other employment-related issues.  A very thought provoking proposal by Deborah, and one that should be considered seriously by policy-makers.


January 14, 2014 in Scholarship, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

NEA Staff Counsel Opening

NEAMy former colleague at the NLRB, and current National Education Association staff counsel, Jason Walta, let me know that the NEA is hiring for staff counsel.  You can get all the info here  [Download OGC Staff Counsel 2014].  The basics:

NEA seeks an experienced attorney to join the team in the NEA Office of General Counsel. The NEA Office of General Counsel works on a diverse array of legal matters to advance NEA’s overall mission including litigation, regulatory and advocacy matters. . . . Applicants for the NEA Staff Counsel position should be interested in a position involving both substantial litigation and in house advice and counsel work.  . . .  [A]pplicants should be experienced and adept at resolving the array of legal issues that an in house counsel operation must handle, ranging from providing legal advice in ongoing organizing, legislative and coalition efforts, to resolving disputes with vendors and providing advice on contract terms and arrangements.  We are looking for an experienced attorney who is interested in working collaboratively in a congenial environment to craft and pursue creative litigation and advocacy strategies to advance the interests of NEA and its members.



  • J.D. from an accredited law school required.
  • Six or more years of legal practice, including experience as a senior staff counsel, partner, or litigator.
  • Excellent oral and written advocacy skills including public speaking skills and appellate brief writing.
  • Substantive knowledge of, and practice in, federal and state labor and employment law, federal and state constitutional law, and an ability to serve as a generalist providing advice and counsel on general operations matters as needed.
  • Ability to perform complex legal analytical work.
  • Demonstrated ability to work independently as well as within a team.
  • Self-motivated and able to manage a variety of tasks concurrently.
  • Demonstrated creativity in crafting innovative legal strategies to advance the interests of workers and their representatives.
  • Ability to work in a fast-paced environment, managing litigation independently and with expertise.
  • Ability to collaborate and work in a collegial environment.
  • Desire to participate as a key player in developing and litigating cases to move forward the cause of public education and the interests of NEA members and affiliates.
  • Strong analytical, interpersonal, and communication skills.
  • Healthy respect for colleagues, employees, and superiors.
  • A sense of humor.

To Apply:  Please forward a letter of interest in the NEA Staff Counsel position, your salary history or salary requirement, a resume and two recent significant writing samples to Kelli Brown at or Kelli Brown, NEA Office of General Counsel, NEA, 1201 16th  Street NW, Washington DC 20036. References are required of all candidates.

The National Education Association is an equal opportunity/affirmative action employer and encourages women, minorities and persons with disabilities to apply.

January 13, 2014 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Noel Canning Argument

Supreme CourtThe Supreme Court heard arguments in Noel Canning today.  I don't have the transcript yet, but based on several reports, the NLRB recess appointments are looking like they will be struck down.  That's not a big surprise.  What's really in question is how the Court will strike them down.  I still hold out hope that they will limit themselves to the pro forma recess issue, and SCOTUSBlog's summary gives some reasons to think that could happen.  However, it also notes reasons to think that the Court might go further and adopt some or all of the D.C. Circuit's broad, textualist approach.  

One thing I haven't heard being discussed was the possibility of declining jurisdiction under the political question doctrine.  I've raised this as a possibility, but I haven't seen anything suggesting it's gained any traction, much less got any mention today.  Let me know if you've heard otherwise.

Hat Tip: Patrick Kavanagh


January 13, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Santa Clara Law Workshop Series: Law and Labor in the Fields

ConfThanks to Stephen Diamond (Santa Clara) for bringing to my attention an interesting series of upcoming events.   Santa Clara University School of Law's Center for Social Justice and Public Service is sponsoring a series of Spring Workshops entitled: Law and Labor in the Field

The first workshop is January 30th and the last is March 27th.  For the full schedule and program details, see here.  Among the participants are Bill Gould (Stanford), Maria Ontiveros (San Francisco), and Ruben Garcia (UNLV).

The Workshop will be led by Stephen and will examine the relationship between legal institutions and farm labor in California, the United States and globally. Each session begins at 4:05 pm, Bannan 333, SCU School of Law, 500 El Camino Real, Santa Clara, CA 95053. Reception follows. Public welcome.


January 13, 2014 in Conferences & Colloquia, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 8, 2014

Feuer on Questions of Justice and Law Raised When an Employee Benefits Plan Beneficiary Strangles His Grandmother, the Participant, to Death

ErisaOn what might already have won best title of the year for a paper, Albert Feuer has a new piece out entitled:  Questions of Justice and Law Raised When an Employee Benefits Plan Beneficiary Strangles His Grandmother, the Participant, to Death, 32 Tax Management Weekly Report 1756, 12/23/2013. 

The following is a brief summary provided by Albert:

A recent New York Daily News story, “NYC Law Firm Files Suit to Bar Slain Employee's Killer from Collecting on 401(k),” describes a heinous crime, and suggests the crime was compounded by foolish employee benefits law that may permit the slayer to keep the death benefits.  My article responds that the so-called slayer rule that deprives a slayer of a plan participant of the participant’s death benefits may lead to injustice in some cases.  Moreover, I argue that ERISA allows state criminal law to deprive the slayer of such benefits, but does not allow state non-criminal law to deprive the slayer of such benefits, and adherence to the slayer rule may create tax qualification issues for pension plans.

Another interesting, pulled-from-the-headlines piece by Albert involving the intersection of the real world and ERISA. Check it out when you have the chance.


January 8, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)