Monday, February 25, 2008

Anders on Silkwood

Anderskelly Silkwood_2 Kelly Anders (left) has just posted on SSRN her essay (just published in S. Tex. L. Rev.) Reviewing Silkwood at 25: The Reel Impact on Environmental Policy.  Here's the abstract:

The year 2008 will mark the twenty-fifth anniversary of the release of the film Silkwood [Meryl Streep, Kurt Russell], which depicted the events surrounding the apparent plutonium contamination and mysterious death of Kerr-McGee employee Karen Silkwood. The film featured the facts leading up to the case, but many would argue that the resulting lawsuit involved a legal battle worthy of a sequel. The Kerr-McGee Corporation may no longer exist, but the former company continues to impact our concepts of environmental policy, whistleblower protection, and damages awards through case law. This essay provides a comparative analysis of the case and its depiction in film and follows with a summary of how both continue to impact environmental policy.


February 25, 2008 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Not Now: Supreme Court Stays Out of San Francisco ERISA Preemption Battle

California Although there might come a time when the U.S. Supreme Court may weigh in on the issue of ERISA preemption surrounding the implementation of the San Francisco universal health plan, Justice Kennedy ruled this past Thursday that the Court will not intervene now. 

Lyle Denniston over a SCOTUSBlog reports:

Supreme Court Justice Anthony M. Kennedy refused on Thursday afternoon to forbid the city and county of San Francisco to continue enforcing a local ordinance that sets minimum levels of spending by employers for their workers’ health care.  Kennedy acted in a brief order turning aside the application in Golden Gate Restaurant Association v. San Francisco (07A654). A District Court judge barred enforcement of the ordinance, but the Ninth Circuit Court stayed that order, allowing the ordinance to take effect at least temporarily.  The Circuit Court is scheduled to hold an expedited hearing on the dispute on April 17.  No health expenditures need be made under the law until April 30, local officials have said.

I wager that this case will make its way back to the Supreme Court, especially if the Ninth Circuit continues the circuit split with the Fourth Circuit's decision in the Wal-Mart case.

Hat Tip: Marcia McCormick


February 25, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Retaliation and Legal Ethics in the Workplace

Longalex Alex Long (Tennessee) has just posted on SSRN his article (forthcoming in the Colorado Law Review), Retaliatory Discharge and the Ethical Rules Governing Attorneys.  As he explains in his abstract:

In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional conduct governing attorneys as providing additional safeguards for attorneys in situations similar to the plaintiff in Garcetti. This begs an important question: to what extent do the rules governing the practice of law actually provide attorneys with protection from employer retaliation? Based on the case law to date, the answer is decidedly unclear.

Numerous cases attest to the fact that attorneys who report the misconduct of their employers or other attorneys - either internally or externally - face the real possibility of retaliatory discharge. It is not only the act of "blowing the whistle" that potentially exposes an attorney to retaliation. In numerous cases, attorneys have charged that their employers have taken action against them for otherwise complying with their ethical obligations or acting in furtherance of the policies underlying the rules of professional conduct. Courts have taken a variety of approaches to such cases, with some refusing to recognize any kind of breach of contract or retaliatory discharge claim on the part of an attorney and others recognizing such claims, but under limited circumstances. This Article attempts to resolve some of the confusion by offering a comprehensive approach to claims of retaliatory discharge brought by attorneys. The approach that best balances the competing interests in such cases borrows from Title VII retaliation caselaw and draws a distinction between participating in the lawyer disciplinary process and opposing unlawful or unethical conduct, with greater protection being given to conduct in the former category.

In addition to reading an earlier version, I saw Alex present this at the Second Annual Colloquium on Current Scholarship in Labor and Employment Law, and can attest that this is a really interesting piece.


February 25, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship

Hirsch_2 Rosenthall Lofaso_2 Oluwole_3


  • Jeffrey M. Hirsch (left), The Silicon Bullet: Will the Internet Kill the NLRA?, 76 Geo. Wash. L. Rev. 262 (2008).
  • Lawrence D. Rosenthal (second), To Report or Not to Report: The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities Under Title VII’s Anti-Retaliation Provision, 39 Ariz. St. L. Rev. 1127 (2007).
  • Anne Marie Lofaso (third), Toward a Foundational Theory of Workers’ Rights: The Autonomous Dignified Worker, 76 UMKC L. Rev. 1 (2007).
  • Joseph O. Oluwole (right), Eras in Public Employment – Free Speech Jurisprudence, 32 Vermont L. Rev. 317 (2007).
  • Susannah Carr, Invisible Actors: Genetic Testing and Genetic Discrimination in the Workplace, 30 UALR L. Rev. 1 (2007).

Comments & Notes

  • Anik A. Shah, Supplementing State Workers’ Compensation Laws with Causes of Action Under State Common Law Regimes for Employee Third-Party Sexual Harassment Suits Against Employers, 15 American U. J. Gender, Soc. Pol’y, & L. 577 (2007).
  • Heather R. James, If You Are Attractive and You Know It, Please Apply: Appearance-Based Discrimination and Employers’ Discretion, 42 Valparaiso U. L. Rev. 629 (2008).


February 25, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 24, 2008

Political Activity Under the NLRA

Nlrb BNA's Daily Labor Report (subscription required) has reported on General Counsel's Meisburg's preview of a forthcoming memo on whether political activity will be considered protected under the NLRA.  The DLR reports:

Speaking Feb. 20 at an American Bar Association conference, National Labor Relations Board General Counsel Ronald Meisburg said he soon will issue a guideline memorandum to regional office personnel outlining how he wants to handle unfair labor practice cases alleging that employees were disciplined unlawfully for participating in rallies regarding immigration legislation or engaging in other political activity. The primary issue in such cases is whether the political activity constitutes protected concerted activity under the National Labor Relations Act, Meisburg said. He observed that the U.S. Supreme Court has found that employees do not lose NLRA protection when they try to improve their lot as employees through channels other than directly with their employer.

However, political activity that has too attenuated a connection with the worker's employment would not be covered by the act, the general counsel said. He called it "a knotty issue" for NLRB and said he hopes the memo will enable labor law practitioners and their clients to "make reasoned decisions" about situations involving employee political activity. Under the analytical framework to be explained in the upcoming guideline memo, protected activity must involve advocacy for or against a "specific proposal," not a general idea or a candidate or political party, and must have a direct nexus with the interests of the employees as employees, Meisburg said. He explained that if the political activity qualifies as protected concerted activity, regional personnel, guided by the Division of Advice, then must balance the employee's right to engage in such activity with the employer's legitimate business interests in deciding whether to issue an unfair labor practice complaint. 

It's hard to judge without the details, but at first blush, this analysis appears reasonable.  The proof is in its actual application, of course.  It is heartening, therefore, that Meisburg stated that participation in the 2006 "Day Without Immigrant" rallies appears to meet this test.  This issue also has a bit of intersect with the Locke v. Karass currently pending before the Supreme Court.  As Paul posted earlier, Karass addresses the extent to which union can charge employees for extra-unit litigation expenses.  Like Paul, the grant of cert. troubles me, but Meisburg's statement provides a small hope that at least someone is still serious about recognizing that employees might actually care about things that occur outside of their workplace.


February 24, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (1)

Top-5 Employment SSRN Downloads

Top-5 Labor SSRN Downloads