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.
Thursday, June 19, 2014
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.
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, April 28, 2014
The Supreme Court heard oral argument today in Lane v. Franks (see here and here) today. The oral argument transcript is now available. It's a good read. The justices seemed pretty skeptical that the First Amendment would not protect a public employee testifying about information he learned at work, but at the same time, they were concerned that Eleventh Circuit precedent might be murky enough that the right was not clearly established enough at the time Lane was fired to overcome qualified immunity. For reporting on the argument, see here, here, and here.
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 16, 2014
Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment. It is forthcoming in the Mississippi Law Journal, and here is the abstract:
This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.
The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract:
In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.
Great work, Scott!
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to email@example.com no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)
Sunday, March 16, 2014
Paul Secunda (Marquette), Scott Bauries (Kentucky), and Sheldon Nahmod (Chicago-Kent) have posted on SSRN their amicus brief in Lane v. Franks. Joshua Branson of Kellogg, Huber, Hanson, Todd, Evans & Figel also is an attorney of record on the brief, and more than sixty additional law professors signed on.
The case involves a public employee who was subpoenaed to testify in a fraud prosecution, and who alleged he was fired for truthfully testifying. The matter he testified about was information he had because of his work. The district court granted the defendant summary judgment, reasoning,
Mr. Lane’s testimony did not occur in the workplace, but he learned of the information that he testified about while working as Director at C.I.T.Y. Because he learned the information while performing in his official capacity as Director at C.I.T.Y., the speech can still be considered as part of his official job duties and not made as a citizen on a matter of public concern.
The Eleventh Circuit affirmed. The questions the Court granted cert on are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.
For more on the case, see ScotusBlog here.
Wednesday, February 26, 2014
The EEOC has asked for public comments to its proposed revised management directive in federal sector proceedings. The EEOC acts as an adjudicator for federal sector claims. From the press release,
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the Regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.
These revisions represent the first major changes to MD-110 since 1999; they can be categorized into three areas:
- Implementation of Revised Regulations:
- new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
- revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
- a new compliance section;
- updated retaliation language in the dismissal section;
- notice to complainant when an agency is untimely in completing an investigation; and
- information on digital filings of appeals and complaint files.
- Conflict of Interest:
- addressing EEO director reporting relationship;
- EEO and HR conflicts;
- complaint processing of matters involving EEO officials or high-level agency officials; and
- conflicts between agency legal and EEO programs.
- General Updates & Clarification:
- revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.
These revisions are a part of the EEOC's ongoing efforts to improve the federal sector process. The agency encourages interested parties to review these proposed changes and provide feedback for EEOC consideration. The agency specifically urges stakeholders to provide feedback on the conflict-of-interest section, as this is the EEOC's first attempt to provide clarity in this area, and stakeholder input will be valuable in determining the final approach.
Public comments on revisions to MD-110 should be provided through Regulation.gov (http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001) no later than April 25, 2014 for appropriate consideration.
Further information about EEOC is available on its website www.eeoc.gov. The EEOC's Office of Federal Operations also maintains a Twitter handle @EEOC_OFO for general news and information updates.
Friday, February 21, 2014
Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.
The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:
Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon
Teaching Employment and Labor Law
A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim
Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Wednesday, January 22, 2014
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.
Monday, January 20, 2014
As 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!
Thanks to Ross Runkel at RossRunkel.com 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.
Monday, November 18, 2013
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Wednesday, October 23, 2013
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.
Tuesday, October 15, 2013
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.
Wednesday, September 25, 2013
Fordham Urban Law Journal Cooper-Walsh Symposium on Legacy Liabilities and Municipal Financial Distress
The Fordham Urban Law Journal's Cooper-Walsh Symposium this year is entitled: Legacy Liabilities and Municipal Financial Distress. It will be held on Friday, October 11th from 10:00 am to 4:30 pm at the Fordham Law School, 140 West 62nd Street, Room 430 B/C.
I have the good fortune of being part of this Symposium and will present a paper based on my recent research on how employment claims are treated in insolvency proceedings and guarantee schemes around the world. The hope is the provide U.S. policymakers some international benchmarks for the treatment of pension and wage claims in both corporate and municipal bankruptcy situations.
I will provide more information on my paper in coming weeks once I have posted a draft of the article, but for now here are the particulars for the Cooper-Walsh Symposium from the Journal website (including the program line up):
The sixth annual Cooper-Walsh Colloquium will address the effects of the rising costs of healthcare and pension plans on municipalities and their residents. Every year, the Colloquium is dedicated to bringing attention to the policies and legal frameworks that will shape the future of American cities. The Colloquium is organized in conjunction with Professor Susan Block-Lieb, the Cooper Family Chair in Urban Legal Issues, and Vice Dean Sheila Foster, the Albert A. Walsh Chair of Real Estate, Land Use, and Property Law.
The presenters will introduce their papers, followed by responses from commentators and round table discussions. The Fordham Urban Law Journal will publish the articles and responses in its Spring 2014 Cooper-Walsh Book.
To register, please contact Kristy Eagan, Cooper-Walsh Editor, at firstname.lastname@example.org.
In addition to myself, other presenters include Jack Beerman (BU), Melissa Jacoby (UNC), and Christine Chung (Albany). Opening remarks will be delivered by Richard Ravitch (former Lieutenant Governor of New York).
Thursday, September 19, 2013
Some of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech. I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.
Yesterday, the Fourth Circuti made the world right again by finding that liking a candidate's campaign page on Facebook was in fact protected First Amendment speech.
On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.
Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory: Social Media and Public Sector Labor Law. The article has now been published in North Kentucky Law Review as part of the Law + Informatics Symposium on Labor and Employment Issues. A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.
Monday, September 9, 2013
For those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.
Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor's teaching and writing at school. Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard - no First Amendment speech protection for public employees speaking pursuant to their official duties - also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).
In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which "a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled 'The Ivory Tower of Babel.'” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.
Judge Fletcher, writing for the unanimous panel, came to four important conclusions:
1. Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. ("We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].
2. Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer's right to run an efficient government service. ("We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.").
3. So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee. The court therefore remands on this and a few other related issues.
4. In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law. In short, they enjoy qualified immunity.
This is not the first case finding that there is an exception to Garcetti for teaching and academic writing. The Fourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court. My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.