Monday, March 31, 2008
Senator Richard Durbin
Seth Harris announces that the Justice Action Center of New York Law School will host the
Fourth Annual Tony Coelho Lecture in Disability Employment Law & Policy [will be held] on Monday, April 14, 2008. Breakfast will be served at 8:30AM and the Coelho Lecture will begin at 9AM.
We are honored that this year's Coelho Lecturer will be Senator Richard Durbin (D-IL, photo above), the Assistant Majority Leader of the United States Senate and a national co-chair of Senator Barack Obama's presidential campaign. Senator Durbin is one of the disability community's most important allies in the U.S. Congress.... He will address the disability agenda in this session of Congress.
The Coelho Lecture will be held in the Stiefel Room at New York Law School, 234 Church Street, New York, New York. The Lecture is open to the public, but advance registration is required. Please register early since the Coelho Lecture usually sells out quickly.
Visit the Coelho website to register or for more information, or to watch a live webcast of the Lecture.
Donald Lewis, co-founder of Minneapolis law firm Halleland Lewis Nilan & Johnson, has been named Dean of the Hamline University School of Law. Lewis will assume the post on July 1 while remaining Of Counsel with the law firm he helped to launch twelve years ago.
Lewis has been a trial lawyer for nearly thirty years. Prior to entering private practice, Don served for six years as an Assistant U.S. Attorney for the District of Minnesota, working as a federal criminal prosecutor focusing on economic and tax crimes. He was formerly a trial attorney in the Civil Rights Division for the U.S. Department of Justice in Washington, D.C. At Halleland Lewis, his practice has centered on employment litigation and white collar criminal defense. Lewis is a fellow of the American College of Trial Lawyers, a member of the American Law Institute, and a member of the American Bar Association. He is a co-founder of the Minnesota Association of Black Lawyers and has served on the Board of Governors of the National Bar Association. He is a Fellow of the American College of Trial Lawyers, the American Bar Foundation, and the American Law Institute, as well as a member of the American Employment Law Council. Don received his undergraduate journalism degree with distinction from Northwestern University in 1975, and is a 1978 graduate of Harvard Law School. Lewis has taught as an adjunct at Hamline since 2004 and will succeed Jon Garon, who is completing a five-year term as dean.
Congratulations, Dean Lewis, and welcome to the academy!!!
The Supreme Court today denied certiorari in Circuit City Stores, Inc. v. Gentry, a case raising the issue of whether the state contract law doctrine of unconscionability can be used to strike a class-action waiver in an arbitration agreement. Hat tips: Paul, Chris Drahozal; for more, see Daily Developments in EEO Law.
The Supreme Court granted cert in yet another public union security fee/First Amendment case. SCOTUSblog reports:
The . . . granted case, Ysura v. Pocatello Education Association (07-869), tests a Ninth Circuit Court ruling that the First Amendment bars the Idaho legislature from denying payroll deductions by local governments for political activities. The Idaho law at issue barred payroll deductions to pay for political activities by labor unions. The law was challenged by labor unions representing workers for school districts, cities and counties in Idaho.
This is yet another case concerning the ability of public unions to pay for different costs associated with union membership. The Davenport case was decided against the unions in the 2006 Term and there is another union security case pending in Locke v. Karass.
Joe Slater is jumping up and down somewhere about all these public labor law cases.
Guest Commentary: Sullivan on Possible Implications of Snyder v. Louisiana for Employment Discrimination Law
Although beyond the usual ken of us “employment discrimination” types, Snyder v. Louisiana is worth a hard look by anyone interested in individual disparate treatment law. Handed down on March 19th, and written by Justice Alito, it’s a rather remarkable discrimination decision. At issue was a Batson challenge to jury selection in a capital case, and, as the Court framed it, the question was whether the prosecutor’s challenge to a college student, Jeffrey Brooks, was racially premised (The prosecution had excluded five African Americans, with the main focus being on Brooks and a second comparator, Elaine Scott, as to whether any challenges were racially-premised; the Court never got to Scott since the evidence as to Brooks sufficed for reversal).
The prosecutor had proffered two reasons for the Brooks challenge:
I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he's one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He's a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn't be a penalty phase. Those are my two reasons.
The state trial judge had permitted the challenge without indicating whether he accepted one or both non-racial reasons.
This is where it gets interesting: “nervousness” was susceptible of observation but not reflected in the record. Trial court calls on such factors, therefore, are effectively unreviewable. But the judge hadn’t indicated that he bought reason Number 1, so the Court refused to rely on it. Had he done so, maybe the “same decision anyway” notion would have made the Court’s treatment of Number 2 irrelevant. Or maybe not. Maybe a pretextual Reason 2 somehow taints Reason 1.
But Alito didn’t give either the prosecution or the district court the benefit of the doubt on Number 1 (provoking Justice Thomas’s and Scalia’s expected outraged dissent), but moved on to Number 2. The Court found it implausible because – even assuming that Brooks was more than usually eager to finish the trial – “that would not have necessarily led him to reject a finding of first-degree murder.” Only if most or all of the other jurors also favored a lesser verdict would Brooks’ eagerness to leave have mattered (at least to the prosecution). Indeed, although the Court doesn’t say so, empirical evidence indicates that if Brooks alone had wanted the trial to end quickly, he would have been very likely to cave to the other jurors and vote for the more serious crime.
This and other factors made Reason Number 2 “suspicious.” It’s not clear that it was suspicious enough for the Court to find discrimination by itself (maybe), but the “comparators” in the case (my word, not the Court’s, and admittedly I’m seeing them everywhere these days ) sealed the deal. One white juror, Roland Law, had pressing business, a sick wife, and three school-age children, with no family to help. He seemed at least as likely to want to quick end as was Brooks. There was also a second white juror, John Donnes, who seemed as likely as Brooks to want a quick end.
Snyder raises fascinating Criminal Procedure questions, on which I am utterly unqualified to speak but will at least raise: should the trial judge have asked the prosecutor to explain his observations of nervousness and/or why he didn’t excuse other eager-to-be-done jurors? Should the prosecutor have tried to preserve his challenge by explaining why the others weren’t comparators? Would the same decision anyway notion immunize this challenge had the judge agreed that Brooks was nervous? Would the judge have to rule that Brooks was the most nervous?
For us employment types, however, the case is at least a tea leaf suggesting a more robust view of comparators in proving discrimination. Plus, it suggests that Justice Alito may take a less hostile approach to employment discrimination cases than some feared. Admittedly, comparing jurors is a different exercise than comparing employees, but Snyder found unexplained different treatment of a comparator to overturn a capital conviction, which may signal a renewed attention to this kind of evidence.
Ross Runkel summarizes the Fifth Circuit case (the Fifth Circuit!) of Charles v. Grief (5th Cir 03/26/2008):
Charles sued his superior, asserting a 1st Amendment retaliation (free speech) claim under 42 USC Section 1983. The trial court declined to dismiss on grounds of qualified immunity. The 5th Circuit affirmed, concluding that the speech at issue was entitled to 1st Amendment protection. The court rejected the argument that Charles' speech was rendered unprotected under Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). More specifically, the court rejected the proposition that "any employee's speech is not protected merely because it concerns facts that he happened to learn while at work...."
A limitation on the scope of Garcetti. Wonders never cease. What will happen next? Coke will sell its secret formula to Pepsi?
So what if you are a worker who believes he has a viable employment discrimination claim against your employer, but your employer classifies you as an independent contractor rather than an employee? Almost all discrimination statutes would exclude you from coverage.
However, if you have a disability discrimination claim against an employer who is also considered a "public accommodation," you may be able to go the Americans with Disabilities Act (ADA) Title III route. David Loder at Duane Morris explains:
Although hospitals strive to deliver quality patient care, they are increasingly being subjected to lawsuits brought by physicians under the ADA. The definition of "employee" in Title I of the ADA, which was enacted to address employment claims, does not include independent contractors. Thus, the ADA traditionally has not been used by physicians who merely retain privileges at a hospital in order to challenge adverse determinations by hospital credentialing committees. Innovative plaintiffs’ attorneys, however, have expanded the protections of the ADA in recent years. Rather than use Title I, physicians have successfully brought suit under Title III of the Act, which prohibits places of "public accommodation" from discriminating against any individual on the basis of disability "in the full enjoyment of [its] goods, services, facilities, privileges, advantages or accommodations." At least two federal courts have held that Title III may serve as the basis of a physician’s ADA claim because, under this theory, a physician should have the right to the "full enjoyment" of the hospital’s advantages, including the right to contract for staff privileges and use the hospital’s facilities for the benefit of the physician’s practice.
Seems fine to me if the hospital is otherwise engaging in unlawful disability discrimination against doctors who have staff privileges at these hospitals.
A second Union Island User Group meeting will be held 8pm UK Time, 9pm Central Europe Time, 12am Second Life Time in the bar at Union Island. The official launch of the Union Island project will be on May 1 (Virtual May Day).
- Judith S. Kaye (left) & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied?, 76 Fordham L. Rev. 1941 (2008).
- Kenneth T. Lopatka, A Contemporary First Amendment Analysis of the NLRA Section 8(A)(2)-2(5) Anachronism, 2 Charleston L. Rev. 1 (2007).
- Nancy Bloodgood (center) & Leslie M. Whitten (right), The Current Status of Workers’ Compensation Hearing Loss Claims in South Carolina: A Defense Perspective, 2 Charleston L. Rev. 257 (2007).
Sunday, March 30, 2008
We don't get a lot of Section 301 preemption cases, which involve a union member's claim that the employer and/or union violated his rights under a collective bargaining agreement. Generally, an employee in a unionized setting cannot bring a state law breach of contract claim for breach of the CBA because of the complete preemption (Avco preemption) that operates and causes such claims to be brought under the federal common law of CBA breaches (Lincoln Mills) pursuant to Section 301 of the Taft-Hartley Act.
In this case, Cephas v. MVM, Inc. (D.C. Cir. Mar. 28, 2008), the issue was not 301 preemption, but the applicable statute of limitations for bringing such a claim. Disagreeing with the district court, the appellate court found that the appropriate SOL was the analogous state law SOL (breach of contract) rather than the SOL for unfair labor practice claims under Section 10(b) of the NLRA. This finding allowed the plaintiff to continue with his claim because the former is a 3 year SOL, while the latter is a 6 months SOL.
The distinction came down to whether this was a hybrid Section 301 claim for breach of the duty of fair representation (DFR) or a straight breach of contract claim against the employer. Because the court concluded it was the latter, labor policies were not frustrated by applying the analogous state law SOL.
FWIW, and I am not deluded enough (yet) to believe Judge Ginsburg of the D.C. Cir. really cares, but I think they got it right.
Hat Tip: Mark Trapp
Saturday, March 29, 2008
John J. Sweeney, AFL-CIO president, will discuss the state of working families in America and the future of unions in resurging industries such as steel and energy on Tuesday, April 8, in the University of Baltimore's Langsdale Auditorium. The event is free and open to the public.
Sweeney will discuss the current state of organized labor, and consider the prospects of some industries that appearing to be gaining new momentum in a changing global economy, such as steel and energy.
Sweeney's talk will launch the School of Law's newest lecture series, "Leaders in Labor." This annual event will bring a speaker to U. Balt. each spring to discuss issues relevant to the American labor market.
- Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men, and Responsibility (155).
- Samuel Estreicher & Kristina Yost, Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment (69).
- Jonathan Barry Forman, Making Our Work Work (62).
- Alex B. Long (photo above), Retaliatory Discharge and the Ethical Rules Governing Attorneys (62).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (54).
- Eric Tucker (photo above), The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada (83).
- David J. Doorey, Harry and the Steelworker (or Teaching Labor Law to Non-Law Students) (81).
- Jennifer Dillard & Joel F. Dillard, Fetishizing the Electoral Process: The NLRB's Problematic Embrace of Electoral Formalism (71).
- Raja Raghunath, Stacking the Deck: Privileging "Employer Free Choice" over Industrial Democracy in the Card Check Debate (59).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (54).
- Heike Schweitzer (photo above), Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (40).
- Marie-Ange Moreau, European Solidarity and Labour Law: Some Thoughts Stemming from the Question of Restructuring in Europe (13).
- Richard L. Kaplan, Top Ten Myths of Social Security (267).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (137).
- Martin Lipton, Some Thoughts for Boards of Directors in 2008 (106).
- Jesse M. Fried (photo above), Hands-Off Options (105).
- Albert Feuer, Who Is Entitled to Survivor Benefits From ERISA Plans? (88).
Friday, March 28, 2008
From Inside Higher Ed today:
Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .
Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .
As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.
“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”
With that, the crowd broke into a wave of spontaneous applause.
First, I wonder if this applies at the law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I'll leave that to Paul Horwitz's of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?
Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn't even realize.
Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
I don't see where the grade penalty fits in, do you?
whether a suit seeking to enforce an arbitration obligation under state law is within the federal court’s jurisdiction, when the attempt to compel arbitration does not directly raise a federal question. The case involves an attempt by a credit card issuing bank that sought to compel arbitration of a class-action lawsuit in Maryland, growing out of an alleged failure to pay a credit card balance.
The amicus brief will support the "look through" approach, in which federal courts assert jurisdiction by "looking through" the state-law-based motion to compel to an underlying dispute involving federal law. The contrary approach asserts that the look-through approach is inconsistent with the well-pleaded complaint rule. The amicus brief will not address the issue of whether jurisdiction exists under the facts of the Vaden case.
For more on this issue, see Imre's article The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Neg. L. Rev. 319 (2007) and my article (co-authored with Jamie Ireland) Federal Question Jurisdiction and the Federal Arbitration Act (forthcoming Colorado L. Rev).
Anyone interested in helping to draft the brief, or in signing it, should contact Imre.
Paul Caron reported recently at Tax Prof Blog on a Canadian study published in the February issue of the Journal of Vocational Behavior. That survey found women lawyers who had children bill fewer hours than do men lawyers who have children. Part of that disparity was because the women studied more often had partners who also worked, and so were required to take on more domestic responsibilities whereas men with children more often had partners who did not work. Thus, women who had flexible schedules used non-work time for child care or domestic work, while men who used flexible schedules used the time for leisure. Women without children bill more than anyone else--women with children and men with or without children.
The survey authors equate the number of hours billed with how productive the workers are. In response to that conclusion, Caron quotes Carolyn Elefant at Legal Blog Watch who argues that billed time is not a proxy for productivity in terms of client needs met. She argues that the longer the hours, often the less productive the lawyer.
This seems a very good point. The conclusion by the authors about productivity seems to reinforce the stereotypes of women with children as not as serious about work, an issue that Joan Williams has written extensively about, terming the resulting discrimination "maternal wall" discrimination. I would also be interested in knowing more about why women without children bill so much. Perhaps some are trying to work hard enough that they will not be penalized if they do have children and change schedules down the road. Perhaps some are older women who decided not to have children at all and to focus intently on their careers, fearing that they had to work harder to be taken seriously in this male dominated field. This single study probably won't change much about firm behavior, but I wonder if it will legitimize the decision of some firms not to allow for flexible scheduling or if it will chip away at that benefit where it does exist.
Thursday, March 27, 2008
Orgul Ozturk (South Carolina -- Moore School of Business) has just posted on SSRN her article Employment Effects of Minimum Wages in Inflexible Labor Markets. Here's the abstract:
This paper structurally models and estimates the employment effects of minimum wages in inflexible labor markets with fixed employment costs. When there are fixed costs associated with employment, minimum wage regulation not only results in a reduction in employment among low productivity workers but also shifts the distribution of hours for the available jobs in the market, resulting in scarcity of part-time jobs. Thus, for sufficiently high employment costs, a minimum wage makes it less likely for marginal workers to enter and stay in the labor market and has important employment effects. I estimate the model using survey data from Turkey. I find significant reduction in employment due to the loss of part time jobs caused by the national minimum wage policy in this highly inflexible labor market.
Congratulations to my good friend, Mike Zimmer, who is moving next academic year from Seton Hall to Loyola-Chicago full-time.
Mike received his A.B. and J.D. from Marquette University (a very fine school I might add), where he was Editor in Chief of the Marquette Law Review. He also holds an LL.M from Columbia University, where he was named a James Kent Fellow. Following law school, he clerked for the Honorable Thomas E. Fairchild of the United States Court of Appeals for the Seventh Circuit and then served as an associate at Foley & Lardner in Milwaukee (a great city I might add).
He began his law school teaching career at the University of South Carolina and he has taught at a number of law schools, most recently as a visiting professor of law at Northwestern University. He joined the Seton Hall University School of Law in 1978, served as Associate Dean from 1990 to 1994 and has been on the faculty until 2008. He has taught in summer programs to American law students in Italy, France and England and to Chinese law students in Beijing.
A widely recognized scholar in the areas of employment discrimination law, labor and employment law and constitutional law, Mike is co-author of the well-regarded and widely-adopted Cases and Materials on Employment Discrimination (1982; 2d ed. 1988; 3d ed. 1994; 4th ed. 1997, 5th ed. 2000; 6th ed. 2003; 7th ed. 2008), The Global Workplace (2006), Employment Discrimination: Law & Practice (2002), Employment Discrimination (1988), Cases & Materials on Employment Law (1993), Federal Statutory Law of Employment Discrimination (1980) and author of Employment Discrimination Roadmap. He has also published articles in numerous leading law journals.
Mike has taught employment discrimination law, employment law, international and comparative employment law and labor law and has also taught torts, contracts, constitutional law, administrative law and US foreign relations law.
As I told Mike in an email to him a short while ago, I am thrilled to add him to the labor and employment law professor community in the greater Chicago-Milwaukee area. I also expect him to provide me with guided tours of the Milwaukee area!