Thursday, January 31, 2008
Deborah is visiting Brooklyn Law for the 2007-2008 academic year. This past fall she taught Employment Discrimination and this spring, she is teaching Legal and Statutory Interpretation.
Deborah's research interests include employment law, the legislative process, and the significance of gender and gender stereotypes in the development and application of law and government policy. Her current pieces include:
Domestic Violence and the Workplace: An Analysis of Emerging State Legislation
Florida State University Law Review, Forthcoming
Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence
Harvard Journal of Law and Gender, Vol. 30, 2007 (with Rosenblatt and NeJaime)
beginning to teach, Deborah was Senior Staff Attorney for
Legal Momentum (formerly NOW Legal Defense and Education Fund), and a
Staff Attorney at the Campaign for Fiscal Equity and the Lawyers
Alliance for New York. After law school, she clerked for Judge Allyne
R. Ross of the U.S. District Court for the Eastern District of New York.
We are delighted to have her joining the academy. Welcome, Deborah!
This can't help Hillary Clinton's attempts to win the union vote. ABCNews.com is reporting:
In six years as a member of the Wal-Mart board of directors, between 1986 and 1992, Hillary Clinton remained silent as the world's largest retailer waged a major campaign against labor unions seeking to represent store workers.
Clinton has been endorsed for president by more than a dozen unions, according to her campaign Web site, which omits any reference to her role at Wal-Mart in its detailed biography of her . . . .
An ABC News analysis of the videotapes of at least four stockholder meetings where Clinton appeared shows she never once rose to defend the role of American labor unions.
The tapes, broadcast this morning on "Good Morning America," were provided to ABC News from the archives of Flagler Productions, a Lenexa, Kan., company hired by Wal-Mart to record its meetings and events.
A former board member told ABCNews.com that he had no recollection of Clinton defending unions during more than 20 board meetings held in private.
The tapes show Clinton in the role of a loyal company woman. "I'm always proud of Wal-Mart and what we do and the way we do it better than anybody else," she said at a June 1990 stockholders meeting.
Clinton would not agree to be interviewed on the subject but now says she no longer shares Wal-Mart's values and believes unions "have been essential to our nation's success."
Do you believe Senator Clinton today or is this just another example of her saying what she needed to say in order to be elected to the Wal-Mart Board twenty years ago and then to get union support during this presidential election cycle?
All sounds awfully convenient to me.
Since blogging about the ADA Restoration Act hearing before the House, I have seen two very different views on whether passing different civil rights legislation would be a good idea.
First, pro from a New York Times editorial yesterday regarding the Senate version of the Ledbetter Pay Discrimination bill and the Civil Rights Act of 2008:
Senator Edward Kennedy, Democrat of Massachusetts, has introduced a pair of bills designed to undo the damage done by the court’s badly reasoned decisions. Congress should pass both without delay . . . .
The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo the injustice of the Ledbetter decision by establishing that the 180-day deadline runs from when a worker receives the unequal pay, not when the employer decided to discriminate. It would make clear that each discriminatory paycheck restarts the clock.
Mr. Kennedy’s other bill, the Civil Rights Act of 2008, would reverse more bad decisions. One of these is a 2001 ruling that says that people who are discriminated against in programs using federal funds can sue only for intentional discrimination, not for actions that have a discriminatory effect. This decision dramatically scaled back protections against discrimination of all kinds.
On the con side is our good friend, Michael Fox of Jottings of an Employer's Lawyer, who seems skeptical about the ADA Restoration Act and the Civil Rights Act of 2008:
Clearly the intent of the authors of those and similar bills is to help either employees in general or at least certain groups of employees. But good intentions don't always mean good results. That's the point of the article in the Freakonomics column in last week's NYT, Red-Cockaded Woodpecker - Endangered Species.
The employment law example was the Americans with Disabilities Act:
The economists Daron Acemoglu and Joshua Angrist once asked a similar question: How did the A.D.A. affect employment among the disabled?
Acemoglu and Angrist found that when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.
Clearly not what was intended. The reason -- "employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place. " For more you can check out their paper, Consequences of Employment Protection? the case of the Americans with Disabilities Act.
So I would be interested in hearing readers' views about, not whether these bills are likely to be enacted, but whether such legislation has a detrimental impact on those individuals the law is supposed to help.
Lawrence Rosenthal (Chapman) has just posted on SSRN his article The Emerging First Amendment Law of Managerial Prerogative. Here's an excerpt from the abstract:
In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because "his expressions were made pursuant to his duties..." The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.
This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.
I had the privilege of seeing Lawrence present this article last fall at the Colloquium on Current Scholarship in Labor & Employment Law. As he notes, almost all scholarly discussion of Garcetti has been critical (see, for example, Paul's article The Solomon Amendment, Expressive Associations, and Public Employment; for a complete and very long list of critical citations, see footnote 3 of Lawrence's article), so the stance here is a bold one.
Wednesday, January 30, 2008
David Doorey (York Univ.) has just posted on SSRN his article Can Factory List Disclosure Improve Labor Practices in the Apparel Industry? A Case Study of Nike and Levi-Strauss. Here's the abstract:
How would multinational apparel companies and retailers react to a requirement to disclose the identity and address of the factories in their global supply chain? Could disclosure regulation of this sort cause management changes that could lead to improved labor practices in those factories? Disclosure regulation is a common tool in the arsenal of so-called "decentered" regulatory strategies, which emphasize ways that law can be used to guide and influence the private development of behavioral norms that are consistent with the state's policy objectives. The author traces the history of factory disclosure, and theorizes that mandatory factory list disclosure introduces into the management system a new "risk virus" that companies will seek to manage through systems changes that can ultimately lead to improvements on the factory floors. To explore this theory, the author conducted extensive interviews with senior executives of Nike, Inc. and Levi-Strauss, two companies that recently released their global factory lists "voluntarily". The research indicates that these companies prepared extensively for the moment of disclosure by significantly improving and investing in their global labor practices monitoring and inspection systems. Neither company identified any negative business effects from the factory disclosure, but both emphasized that the disclosure had facilitated greater collaboration within the industry emphasizing shared strategies to improve supply chain labor practices. These outcomes are potentially useful in the struggle to improve labor practices. Therefore, the author proposes factory list disclosure regulation as an attainable and relatively subtle use of law that might nevertheless contribute in meaningful ways to the challenge of improving working conditions around the world.
This sounds like a terrific idea. It shouldn't substitute for substantive regulation of wages and basic working conditions, of course, but it's a good start.
Jessica is a Phi Beta Kappa graduate of the University of Michigan with a B.A. in political science. She received her law degree from Harvard Law School. After law school Fink practiced with the Chicago firm of Sidley Austin LLP as a member of the labor and employment practice group, where she litigated a wide variety of employment-related matters in state and federal court and before administrative tribunals, including discrimination, wrongful termination, ERISA and wage and hour claims.
Jessica's pro bono activities included volunteering at a Chicago high school teaching oral advocacy skills to students and conducting a mock debate program for middle school students in the city. She is co-author of "Defending Age-based Claims after Smith v. Jackson," published by the ABA Section of Labor and Employment Law and the National Conference on Equal Employment Opportunity Law.
She is currently teaching employment law and remedies.
Dan Schwartz over at the Connecticut Labor and Employment Law Blog has a post dealing with soon-to-issue new FMLA regulations proposed by the Bush Department of Labor:
Under the new rules being discussed, employees would have to call in to request FMLA leave before taking it, as opposed to the present situation where employees can take off two days before requesting leave. The regulations will also address the new military leave provisions that I've mentioned previously . . . .
Senator Chris Dodd (D-Conn.), who authored the original FMLA bill, is already concerned about the path being carved out and issued a statement today expressing those concerns.
Put me with Senator Dodd in the "concerned" category. Rather than constricting the Act and making it harder for employees to take protected FMLA leave, the Act should be expanded to cover more employers and to provide more paid-time off for family and medical obligations. This would merely catch us up with what the rest of the developed world is doing in this area.
In any event, if the new regulations are as anti-worker as they appear to be, I don't think there is a very good chance that final regulations will be implemented before the end of this Administration. And even if they are, there is a good chance they will be overturned if there is a Democratic administration coming in.
Off the radar for a while, the House Education and Labor Committee held a hearing yesterday to discuss the ADA Restoration Act (previous post here and here), which would make it easier for disabled individuals to meet the definition of "disability" under the Americans with Disabilities Act (ADA).
Here is a backgrounder by HR.BLR.com:
Currently, a "disability" is defined as a physical or mental impairment that substantially limits one or more of the individual's major life activities when using a mitigating measure, such as glasses, pills for hypertension, a hearing aid (Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999)). The current definition of a disability also includes having a record of such impairment or being regarded as having such an impairment.
The ADA Restoration Act of 2007 (HR 3195) would redefine "disability" as a physical or mental impairment, a record of such an impairment, or being regarded as having such an impairment. In effect, the law would eliminate the requirement for the physical or mental impairment to substantially limit one or more of the individual's major life activities to be covered by the ADA .
The ADA Restoration Act of 2007 would also require that "determination of whether an individual has a physical or mental impairment be made without considering the impact of any mitigating measures the individual may be using or whether any manifestations of an impairment are episodic, in remission, or latent."
Tuesday, January 29, 2008
Continuing with are series of introducing new members of the
labor and employment law professors community, next in line is Wendy Greene of the
Cumberland School of Law of Samford University in Birmingham, Alabama (my next
A native of Columbia, South Carolina, Wendy joined the Cumberland School of Law faculty in 2007. She is a graduate of Xavier University of Louisiana and Tulane University Law School in New Orleans, Louisiana. While at Tulane, she clerked for the South Carolina Department of Social Services Office of the General Counsel, the District of Columbia Office of Human Rights, and the governmental relations firm of R. Duffy Wall & Associates.
Following graduation from Tulane, Wendy was employed with the Capitol Hill Group, a Washington D.C. lobbying firm, and Neel and Hooper, P.C. in Houston, Texas, a boutique labor and employment law firm specializing in the representation of management. Most recently, Wendy completed the General LL.M. program at the George Washington University Law School in Washington D.C. and submitted her masters’ thesis, a comparative analysis of racial determination in Brazil and the United States.
Wendy teaches Equitable Remedies, Race and the Law, and Employment
Discrimination. Her additional teaching and research interests include: civil
rights, constitutional law, property, and comparative slavery and race
Welcome to the academy, Wendy!
American Apparel CEO Dov Charney has denied a former employee's claims that Charney's habit of conducting business in his underwear created a sexually hostile environment.
Former sales department employee Mary Nelson says she was fired after Charney found out she was consulting a lawyer about a possible lawsuit. Her complaint says he operated the company "as a despot wearing nothing but his underpants." . . . .
Among other things, the suit alleges that Nelson went to Charney's home to discuss business and was forced to take part in a meeting in which he essentially was naked, with only his penis covered.
In a pretrial brief the defendants counter that Nelson was not discriminated against based on her sex because everyone at the company was subjected to the same sexually explicit workplace.
Favor part is the defense:
The answer brief says Charney did not dress as he did in Nelson's presence because she is a woman. Rather, he wore his underwear to meetings for many reasons, including "product development, testing product fit, marketing, promotion, sales and even just humor," according to the brief.
Ah, the equal opportunity harasser.
Hat Tip: Jack Sargent
Today's Minneapolis Star Tribune reports that insurance companies are expected to file subrogation claims against the fund that the State of Minnesota is creating to compensate victims of the Interstate 35W bridge collapse. State legislators want to prevent that, but ERISA preeemption may pose a problem. Hat tip: Roger Baron (South Dakota), who has been arguing against subrogation in a variety of contexts for quite awhile now.
University of Virginia School of Law has announced that Rip Verkerke is one of two finalists for the deanship there. The other finalist is Paul Mahoney. Both are internal candidates. Verkerke teaches Employment Law and Employment Discrimination, and has written most recently on the ADA. Wish him luck!
Hat tip: Brian Leiter's Law School Reports.
Monday, January 28, 2008
This week I will be spotlighting some of the new members of our labor and employment law community. Today, we start this series by highlighting Meredith Jeffries, Assistant Professor of Law at the Charlotte School of Law in Charlotte, North Carolina.
Some background from her web bio:
Meredith . . . joined Charlotte School of Law in August 2006 as an Assistant Professor. Professor Jeffries comes to CharlotteLaw with twelve years of practice in commercial litigation and employment law, as well as several years of teaching experience as an adjunct professor. Prior to joining CSL, Professor Jeffries served as the Head of the Labor and Employment Practice Group of Alston & Bird LLP’s Charlotte office where she practiced for six years. Professor Jeffries represented companies nationwide in litigation matters and administrative claims involving employment discrimination, wrongful discharge, sexual harassment, restrictive covenants, and labor issues. She provided clients counseling and training on a variety of labor and employment issues.
Prior to joining Alston & Bird, Professor Jeffries practiced for six years in Moore & Van Allen, PLLC’s commercial litigation practice group, concentrating in employment law and securities litigation. Professor Jeffries taught Business Law for a number of years as an adjunct professor at Queens College (now Queens University).
Professor Jeffries was recently recognized by Business North Carolina magazine for being elected by North Carolina’s lawyers state-wide as one of the 2007 North Carolina Legal Elite in the area of Employment Law. She was previously recognized by the Charlotte Business Journal as one the top “40 under 40” Charlotte professionals "making major strides in their careers and impacting their communities.” She is actively involved in charitable and community causes including chairing the School Leadership Team at her children’s Charlotte Mecklenburg elementary school.
As far as here research and scholarship interests, Meredith intends to focus her scholarship generally on employment law issues. Currently, she is working on an article that examines the extent to which an employer must accommodate the religious practices of employees who deal with the employer’s customers or other public audiences, particularly where such practices might be offensive to the customers and potentially have a negative impact on customer relationships or revenues.
She is also interested in the reach of state and federal employment laws to govern the employment relationships between United States employers and their employees who are illegal aliens -- exploring the tension between the employers’ exercise of employment practices considered illegal, unethical and even inhumane under United States standards, and the reluctance of government to afford cognizable rights to persons in the country illegally.
Welcome aboard, Meredith!
House and Senate Democrats have just introduced the Civil Rights Act of 2008, H.R. 2159 & S. 2554. It's covers a lot of ground and basically looks like an employee discrimination law wishlist. The Act would do the following:
- eliminate the 1991 Civil Rights Act damage caps under Title VII and the Americans with Disabilities Act (ADA),
- amend the Equal Pay Act (EPA) to allow the "bona fide factor other than sex" defense only if an employer shows that the factor was job-related was actually used and further legitimate business purposes,
- adds compensatory and punitive damages to the Fair Labor Standards Act's (FLSA) remedial framework (which includes the EPA),
- amends the Federal Arbitration Act (FAA) to prohibit clauses requiring arbitration of federal constitution or statutory claims, unless parties knowingly and voluntarily consented after the dispute arises, or as part of a collective bargaining agreement,
- allow winning plaintiffs to recover expert fees and expand the definition of prevailing party,
- give the NLRB authority to award backpay to undocumented workers,
- provide individuals the right to sue federally funded programs under Title VI, Title IX, the Rehabilitation Act, and the ADA,
- require that ADEA disparate impact claims be analyzed the same as Title VII claims,
- condition states' receipts of federal funds on states' waiver of sovereign immunity against individual claims for monetary damages under the Age Discrimination in Employment Act (ADEA), the FLSA, and Uniformed Services Employment and Reemployment Rights Act (USERRA).
I guess if you're going to try to make changes, you might as well shoot for the moon. I find the sovereign immunity amendments personally interesting, as it's a relatively easy way to get around the Supreme Court's jurisprudence in this area. The inclusion of USERRA is particularly wise, as this issue may become especially relevant once most of our military personnel leave Iraq and Afghanistan. As I've argued in an earlier article, I think USERRA's abrogration of state immunity--which was pursuant to congressional war powers--is on much firmer ground than other Article I abrogations, but conditional waivers such as the one in this bill are the best way to avoid the issue.
BNA's Daily Labor Report (subscription required) provides more background on the bill. I don't imagine that it'll go anywhere unless there is a President Clinton or Obama, but no doubt it will be campaign fodder until then.
Update: Reports of the bill's death were not exaggerated.
Although the San Francisco health plan won a temporary reprieve from the 9th Circuit, it now looks like Governor Schwarzenegger's plan for universal coverage may be going down in flames.
But for all that, the worst day of the month will probably be Monday, when a Senate health committee is expected to vote against Mr. Schwarzenegger’s widely promoted and potentially legacy-defining bill on universal health care. A “no” vote would effectively kill the bill, which would also need voter approval to become law.
The bill, which would offer coverage to millions of uninsured Californians, passed the State Assembly in December but began to stall in the Senate last week after the state’s legislative analyst raised questions about its financing and two prominent Democrats announced they would vote against it.
Chief among many Democrats’ concerns was the proposal of a so-called individual mandate, a stipulation requiring every Californian to pay for and maintain a minimum level of health insurance, though some residents would be exempt because of low income or financial hardship. A new board would negotiate rates with insurance companies, while employers would be required to spend a minimum amount on health care, though contributions would be capped.
Interestingly, not chief among the legislators' concern is that the measure would likely be found to be preempted by ERISA since it places contribution mandates on employers. Perhaps, the 9th Circuit decision a few weeks ago have given some hope that ERISA isn't a problem anymore.
Yo, I don't think so.
- Christine Neylon O'Brien (left) & Jonathan J. Darrow (second), Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes, 42 Wake Forest L. Rev. 991 (2007).
- Stacy E. Seicshnaydre (third) Is the Road to Disparate Impact Paved with Good Intentions? Stuck on State of Mind in Antidiscrimination Law, 42 Wake Forest L. Rev. 1141 (2007).
- Dan O'Gorman (fourth) Paying for the Sins of Their Clients: The EEOC's Position that Staffing Firms Can Be Liable When Their Clients Terminate an Assigned Employee for a Discriminatory Reason, 112 Penn St. L. Rev. 425 (2007).
- W. Melvin Haas, III et al. (fifth), Annual Survey of Georgia Law: Labor & Employment Law, 59 Mercer L. Rev. 233 (2007).
Comments & Notes
- Rohith A. Parasuraman (right), Unionizing NCAA Division I Athletics: A Viable Solution?, 57 Duke L.J. 727 (2007).
- Lea E. Delossantos, A Tangled Situation of Gender Discrimination: In the Face of an Ineffective Antidiscrimination Rule and Challenges for Women in Law Firms -- What Is the Next Step to Promote Gender Diversity in the Legal Profession?, 44 Calif. Western L. Rev. 295 (2007).
President Bush Friday announced his intent to nominate three individuals to the National Labor Relations Board. Recall that there currently are three vacancies on the five-member Board, and that the Board has announced its intent to proceed with a legally questionable two-member "quorum."
Two of the nominees are re-appointments: Robert Battista (R) and Dennis Walsh (D). The third, Jerry Morales, is a management attorney in Phoenix. Here's his law firm bio; that's his photo above; here's the White House Personnel Announcement. His credentials are quite impressive -- I've no doubt of his intellectual or practice capabilities. But whether Congress will confirm a management lawyer to this tie-breaking position, given the polarizing decisions of the last Board and the current political climate, is anyone's guess.
Sunday, January 27, 2008
- Thomas J. Miles & Cass R. Sunstein, The New Legal Realism (458).
- Paul M. Secunda, Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States (153).
- Jeffrey M. Hirsch, The Law of Termination: Doing More with Less (118).
- Michael S. Lynk, Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada (115).
- Theodore H. Frank, Did the Right Make America a Lawsuit Nation? Thomas Geoghegan's See You in Court (86).
- Paul M. Secunda, Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States (153).
- Jeffrey M. Hirsch, The Law of Termination: Doing More with Less (118).
- Guy Davidov, The (Changing?) Idea of Lanour Law (82).
- Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (43).
- Noah Zatz (photo above), Working Beyond the Reach of Grasp of Employment Law (31).
Saturday, January 26, 2008
Arizona State will host on Tuesday a debate on an Arizona state law that punishes employers for knowingly hiring undocumented workers. At issue is whether the law is an unconstitutional attempt to regulate immigration, such that it would violate the 14th Amendment and/or be preempted by the Immigration Reform and Control Act of 1986. Betsy Grey (photo at left) will moderate.