Monday, April 22, 2013
Each year a lot of us worklaw people write about constitutional issues and a number of regulars at the Labor & Employment Law Colloquium have also presented at the Con Law one.
Complete details after the break.
Tuesday, March 19, 2013
Adam Shinar (S.J.D. Candidate, Harvard Law School) has just posted on SSRN his forthcoming piece in the Connecticut Law Review entitled: Public Employee Speech and the Privatization of the First Amendment.
Here is the abstract:
Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored.
Against this background, the article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice.
I have had the privilege of commenting on earlier drafts of this paper and it is one of the finest papers on public employment free speech law that I have read in quite a while. It is comprehensive, insightful, and seeks to answer a question concerning why public employee speech is being treated more like (less legally protected) private employee speech in the United States. Adam draws on a wide range of interdiscplinary scholarship for his findings and he concludes by seeking to establish broader First Amendment free speech protections for public employees so that they can speak out freely in the public interest.
Check it out!
Monday, March 18, 2013
The Supreme Court today granted cert in Madigan v. Levin, an ADEA case from the 7th Circuit. Here is the issue:
Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.
Friday, March 1, 2013
Ciara Torres-Spelliscy (Stetson) has just posted on SSRN her article Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights (72 Montana Law Review 101 (2013)). Below is an excerpt from her abstract. Readers interested in this topic should also see Fisk & Chemerinsky's article described here.
This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.
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Monday, February 18, 2013
William A. Herbert just posted on SSRN his article (presented at the NKU Chase Law & Informatics Symposium last week) Can't Escape from the Memory: Social Media and Public Sector Labor Law. Here's the abstract:
The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.
Tuesday, February 5, 2013
Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.
February 5, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 23, 2013
Outgoing Secretary of Defense Leon Panetta and Army General Martin Dempsey, Chairman of the Joint Chiefs of Staff are apparently going to announce tomorrow that they are lifting the ban on women serving in combat positions with a goal towards integration by 2016. In November, four servicemembers represented by the ACLU sued to lift the ban, arguing that women were already serving in most combat roles but just weren't getting recognized for it. Advancement to the highest levels of military service depends on service in combat.
This move comes via a recommendation from the Joint Chiefs of Staff, which earlier this month issued a "Women in Service Implementation Plan" calling for this change; that memo stated in part, "[t]he time has come to rescind the direct combat exclusion rule for women and to eliminate all unnecessary gender-based barriers to service."
For more information see the news stories here, here, here, and here. Mandatory regisration with the Selective Service Administration does not appear to be addressed by the recommendation; perhaps that is not widely enough seen to be a gender-based barrier to service.
This is a big step forward potentially for sex equality in the military, although full implementation will take some time. I hope that part of that implementation involves addressing the serious problem of sexual violence in the military as part of a comprehensive plan. I also think that the effect of this change in policy does a lot to expand women's rights more broadly in this country. To the extent that military service is one of the responsibilities of full citizenship, and I think most people agree that it is in at least some cirumstances, allowing women to serve the same way men do solidifies our claim to citizenship and authority to set national policy.
Tuesday, January 22, 2013
An Analysis of the 7th Circuit's Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision
On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin's decision in the same case.
The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.
That only "most" public sector workers in Wisconsin were covered by Act 10 - most general public sector employees were, but most public safety workers were not - became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.
The Western District of Wisconsin held that Act 10's distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis.
The 7th Circuit in a 2-1 decision Friday upheld the law in its entirety. As an initial matter, the state was found to have a legitmate basis for denying some public employees collective bargaining rights but not public safety officers because of concerns about the public peace and order after the law passed. More interestingly, the Court said the First Amendment was not violated with regard to the anti-dues checkoff provisions because the state was seeking to subsidize some union speech, but not others. In such subsidy cases, the distinctions have to be reasonable and viewpoint neutral. The majority of the 7th Circuit held that it was reasonable because of concerns relating to labor piece and not viewpoint discriminatory because elections have consequences and politicians are permitted to favor one group of employees over another. The 7th Circuti also held that the anti-dues checkoff provisions and recertification provisions were not a pretext for viewpoint discrimination (this is where dissenting Judge Hamilton disagreed and would have found that the dues checkoff provision of Act 10 violated the First Amendment as a pretext for viewpoint discrimintation).
With regard to the equal protection claims, the union dues and recertification provisions were found to meet the low standard of rational basis review because of the labor peace concerns the majority mentioned throughout the opinion.
Couple of thoughts on this long 74-page opinion:
1. It does not in any way put the Act 10 litigation to rest. This case merely decided one set of federal constitutional issues revolving around distinctions made between public safety officials and other public employees in Act 10. It does not have anything to do with Judge Colas decision made in Dane County Circuit Court in September, which is based on different reasoning all together and still at this point finds the law invalid (at least for municipal employees). Additionally, there is other Act 10 litigation pending, including public pension litigation involving constitutional impairment of contract claims and state constitutional home rule charter claims.
2. Given that the whole raison d'etre behind Act 10 when announced was to help trim the budget deficit, it is remarkable that the 7th Circuit barely discusses the State's assertion in this regard and relies primarily for the distinctions in the law based over concerns for labor peace. This may be in fact one of the concerns for collecitve bargaining distinctions, but to completely ignore the asserted budgetary reasoning , which had nothing to do with the dues checkout and recertification provisions, is outlandish.
3. It is also remarkable that two 7th Judges could say with a straight face that the law was not viewpoint discriminatory given that the union dues and recertification provisions were clearly a thinly veiled attempt to punish public unions that did not support Walker's 2010 election. I think the dissenting judge was right when he said this was really a limited public forum case (not just a subsidy case) and that al least the union dues provisions was clearly viewpoint discriminatory under the appropriate First Amendment analysis.
4. There could potentionally be a en banc review or even a petition for cert to the Supreme Court, but I think this decision is largely the last word on these Act 10 issues.
5. I think it is also remarkable that the 7th Circuit ended up basing its decision largely on arguments that were not made before the district court and should have been considered waived on appeal under basic fundamentals of appellate review.
In all, not a very convincing decision from my standpoint and another blow for public unions in Wisconsin. In the end, litigation may lead to some changes in the law, but there really is no substitute for either seeking to amend the Wisconsin constitution to provide for public employee bargaining rights or getting the necessary Democratic majorities in the legislative chamber and a Democratic governor in Madison. Unfortunately, the confluence of those events may be a long way off and public unions are likely to suffer in the meantime.
Thursday, December 6, 2012
It is hard to believe that one of the homes of the labor movement, Michigan, is about to enact "right-to-work" (or right-to-free-ride) legislation. Such legislation will permit workers in both the public and private sectors in Michigan to receive the services of unions (collective bargaining and grievance handling) without paying for any of the expense of such services through agency fees (membership dues).
Needless to say, such laws make it hard for unions financially to maintian their operations and make it also difficult for unions to organize workers in the first place.
Here are the latest details from the Detroit Free Press on the Michigan situation:
There was chaos and high emotion at the Capitol today after Gov. Rick Snyder and GOP legislative leaders announced fast-track plans to make Michigan the nation’s 24th right-to-work state.
At a news conference, Snyder said the Legislature will proceed with right-to-work legislation for public and private employees — which would exclude police and firefighters — and that the bills will be introduced today during the lame-duck session. He said he plans to sign them when they reach his desk.
“The goal isn’t to divide Michigan. It is to bring Michigan together,” the governor said, as hundreds of union protesters stormed the Capitol and the governor’s office, vociferously voicing their opposition to the plan.
Union activists demonstrated outside and inside the Romney Building, which houses Snyder’s offices, and poured into the Capitol across the street. At about 12:30 p.m., State Police said no one was being allowed into the Capitol -- including employees -- because it was at capacity. Even UAW President Bob King and Michigan AFL-CIO head Karla Swift were having trouble attempting to get inside.
If Michigan does enact this legislation, which appears very likely at this point, it will be the 24th state to do so.
Wednesday, November 14, 2012
Thanks to the good folks over at the U.S. Office of Special Counsel (OSC) for bringing to our attention that Congress just passed landmark legislation to strengthen protections for federal employees who blow the whistle on waste, fraud, and abuse in government operations.
The Whistleblower Protection Enhancement Act (WPEA) (S. 743) passed the U.S. Senate last night, and will be presented to the President for his signature soon. The House of Representatives passed identical legislation in September of this year.
Specifically, the WPEA provides OSC with additional tools to protect federal employees from unlawful retaliation. Provisions include:
• Overturning legal precedents that narrowed protections for government whistleblowers;
• Giving whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers;
• Restoring the OSC’s ability to seek disciplinary actions against supervisors who retaliate; and
• Holding agencies accountable for retaliatory investigations.
Like OSC, I commend Congress and the President for promoting government accountability through enactment of this legislation. The hope is that federal employees will now be more willing to become the vanguard of the citizenry when it comes to shedding light on government abuse and waste, thereby ensuring more accountable and transparent government for all of us.
Friday, November 9, 2012
I am happy to report that today saw the publication by the Wisconsin Journal of Law, Gender & Society (WJLGS) four papers from the October 2011 Symposium on The Constitutionalization of Labor and Employment Law, which was held at the University of Wisconsin Law School.
Here are the contents of the WJLGS Summer 2012 Symposium Issue (Vol. 27, No. 2):
Introduction: Symposium on The Constitutionalization of Labor and Employment Law - Carin A. Clauss & Paul M. Secunda
Disparate Impact and Equal Protection After Ricci v. DeStefano - Marcia L. McCormick
A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers - Maria L. Ontiveros
Constitutionalizing Employees' Rights: Lessons from the History of the Thirteenth Amendment - George Rutherglen
First Amendment Protection for Union Appeals to Consumers - Michal C. Harper
Check out the articles in this fine volume when you get a chance!
Thursday, November 8, 2012
As referenced in my last post, the future development of labor and employment law in the United States is not limited to a consideration of federal judicial, legislative, and regulatory developments. Additionally, state and local laws and initiatives also play a very important role in setting up the rules of the game in the workplace.
A number of ballot measures were at issue in different states during election night this past Tuesday, including a number involving public sector unions. Here is a non-exhaustive list and how some of them fared:
1. Voters rejected lmits on public sector teacher unions in Idaho and South Dakota. Idaho had three questions on the ballot regarding teacher unions, and South Dakota had one question about teacher unions. All were defeated. From the Huffington Post:
In Idaho, teachers unions chalked up another victory, using the referendum process to block the implementation of legislation that required teacher evaluations to measure student performance, eliminated tenure, restricted collective bargaining and introduced merit bonuses, among many other changes. One of the bills also gave all students laptops and mandated students take two semester-long online courses to graduate.
It is perhaps possible the Idaho legislature tried to tackle too much in one session. That’s a lot of power-shifting to convince parents to accept. A very similar education reform referendum in South Dakota also failed badly [67%-33%].
2. In Michigan, an emergency manager law, which allowed the state to appoint an emergency manager if a local government was failing financially also vested power in the emergency manager to cancel public employee collective bargaining rights and public employee union contracts. This law was struck down by voters by a margin of 52%-48%.
3. Michigan also had a proposal on the ballot that would have put collective bargaining rights in the state constitution, but voters rejected that provision fairly easily 58%-42%.
4. Another state labor measure, Proposition 32 in California, would have prohibited unions from using payroll deductions for political purposes without specific individual permission from union members. After an expensive battle, the Propostion was soundly rejected by voters by a 56%-44% margin.
There are, of course, other measures that were considered in the labor/employment law area, but this gives a taste of what was on various state ballots and what trends there might be concerning the future of unionism and collective bargaining in various states.
Hat Tip: Joe Slater
Monday, November 5, 2012
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at firstname.lastname@example.org.
Second, please e-mail Angela Onwuachi-Willig at email@example.com with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at firstname.lastname@example.org.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at email@example.com.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Monday, October 29, 2012
It is co-sponsored by New York State Bar Association (NYSBA) Labor and Employment Section’s Technology in the Workplace and Practice Committee and the Hofstra Labor & Employment Law Journal.
More details are included in this announcement.
Thursday, October 25, 2012
You may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.
Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues.
This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.
Wednesday, October 10, 2012
Tiffany Webb, a highly regarded guidance counselor at Murry Bergtraum HS for Business Careers downtown, was fired after 12 years with the [New York] Department of Education because photos of her in lingerie and bikinis from her early career as a model are still floating around the Internet.
* * *
Last Dec. 23, days before Webb was to get tenure as an $84,200-a-year guidance counselor, she was dismissed for “conduct unbecoming” a DOE employee. “The inappropriate photos were accessible to impressionable adolescents,” a three-member chancellor’s committee ruled by 2-1. “That behavior has a potentially adverse influence on her ability to counsel students and be regarded as a role model.”
Webb * * * is now suing the DOE in Brooklyn Supreme Court, charging wrongful termination, sex discrimination and violation of First Amendment rights. She seeks reinstatement, back pay and punitive damages.
Hat tip: Phil Sparkes.
Saturday, September 15, 2012
Very interesting story brought to my attention by friend of the blog, Dennis Nolan. Apparently, according to a story reported by Eugene Volokh at the Volokh Conspiracy blog, the Office of Special Counsel (OSC) concluded that during one speech Health and Human Services (HHS) Secretary Kathleen Sebelius violated proscriptions in the Hatch Act concerning political campaigning in the federal employment sector.
One of the interesting questions is what the penalty should be for such a violation and does the OSC have the ability to enforce any type of penalty, such as a suspension from employment (as the statute requires in some instances for violations), against a high-ranking official in a coordinate branch of the government? The OSC letter itself concludes:
In light of the President’s constitutional authority, Congress has determined that violations of the Hatch Act by such officers be referred to the President “for appropriate action.” See 5 U.S.C. § 1215(b). Accordingly, OSC hereby submits this Report of Prohibited Political Activity, together with a response from Secretary Sebelius, to the President.
It also appears from the OSC report that by Sebelius and her office themselves reclassifying the offending speech as a political one, they may have cured some, or all, of the Hatch Act violation.
I must admit that I really am not familiar enough with this area of federal sector civil service law to hazard a guess of what might happen further, if anything, and would certainly appreciate any insights that readers have in the comments section.
Friday, September 14, 2012
Update (9/15/12): Here are some thoughts by myself and others in the Milwaukee Journal-Sentinel on how an appeal of the court's Act 10 decision might eventually unfold.
In a stunning turn of events, a state trial court in Dane County, Wisconsin (Madison) has declared null and void the anti-collective bargaining provisions, annual recertification provisions, and anti-dues check off provisions of Act 10 (the Wisconsin anti-collective bargaining law) under federal and state constitutional law. The pension contribution provisions for Milwaukee were also struck down. Here is the court's decision in Madison's Teacher Inc. v. Walker.
More specifically, the court found that Act 10 impermissbly burdened public sector union members' associational rights and free speech rights in collective bargaining and was in violation of equal protection under both federal and state constitutions. Additionally, the Court found that provisions requiring public employees to contribute to their pensions violated the Home Rule Amendment to the Wisconsin Constitution and the Impairment of Contracts Clause of both the Wisconsin and federal constitutions.
This decision will certainly be appealed and faces a frosty reception at the Wisconsin Supreme Court which has sided with Governor Walker on a partisan basis (4-3) in prior challenges to Act 10.
Things are about to get real interesting here in Wisconsin again.
Thursday, August 30, 2012
An ABA Journal article quotes Paul Secunda (Marquette) as "speechless" that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee "liking" something or someone on Facebook is not protected First Amendment expression. The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.
[I]t is questionably sound to deny public employees the right to speak about matters of great public concern. "'Government employees are often in the best position to know what ails the agencies for which they work.'" Id. at 429 (Souter, J., dissenting) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). By diminishing the protections available to employee-speakers, Garcetti makes employees “less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.” Paul M. Secunda, Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First. Amend. L.Rev. 117, 118 (2008).
The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, id. at 439–40, such speech often falls outside the narrow confines of whistleblower statutes. See Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees, 7 First. Amend. L.Rev. 22 (2008) (detailing failures of statutory protections for government whistleblowers).