Sunday, May 31, 2009
Marcia Coyle at the National Law Journal in a recent article explored some pressing legal issues that should--but probably won't--be asked on Judge Sotomayor. These issues include Rule 10b-5 under securities law, legality of TARP, high-tech crime, and--of course--labor and employment law. Paul Secunda (Marquette) commented on what he viewed as some of the more significant questions in the area:
A confirmation hearing, some have said, is a window on the legal debates of the day. The window does not open wide enough, according to others. Key issues affecting businesses, workers, consumers, criminal defendants and others generally are ignored because senators do not earn much political capital by raising them, according to lawyers and scholars. Those issues, however, will have a profound impact on more people than will most of the predictable menu items. And, they add, Sotomayor's views on those issues would be more predictive of her role as a Supreme Court justice. . . .
But that does not mean there are no issues, particularly amid the recession, Secunda said. "To me, the most pressing thing right now is the ability of plaintiffs to get a remedy under ERISA [the Employee Retirement and Income Security Act]," he said. "It sounds arcane, but affects everyone on the economic ladder. There are no consequential damages, no back pay. Lots of employers now are looking to save money on these legacy costs — promises to pay generous health benefits. They're freezing pension benefits left and right."
Senators should ask Sotomayor, he said, where she sees the entitlement to social welfare. "What role does the Supreme Court have in guaranteeing minimum entitlement to social welfare benefits?"
He would also like questions about a constitutional right to bargain collectively. "Does it come under the First Amendment as expressive association or even under the 14th amendment as a privacy right?" he asked. "Do employers have any right to ask who you are married to, who you are sleeping with? And what right does an employer have to know and make decisions about what employees do when they're not at work?"
In the end, he said, "All that should really matter is whether the nominee is competent and has the acumen to be a good judge. But that's not how it is."
The last decade or so have particularly rough for the U.S. auto industry and that pain had been shared directly by autoworkers. Although the UAW has done a good job of getting what they can, while working to maintain the auto companies' business (despite accusations to the contrary), there's no question that the union has become weaker in the U.S. The Detroit Free Press asks whether these troubles may lead the UAW to seek a merger with another union:
That's the opinion of labor relations experts who point to the UAW's declining membership as a spur to a possible merger. From a peak of 1.5 million members in the late 1970s, UAW membership dropped to 431,000 at the end of 2008. With so many job cuts this year, the ranks are likely to get thinner still.
"A responsible union leader would at least have to explore the idea of merger with another union," Richard Block, a professor of labor relations at Michigan State University, said this week.
Merger talk is just one trend facing the UAW in the wake of General Motors' brush with bankruptcy. Just as GM will be a different car company in the future, the UAW will evolve to meet new challenges.
Gary Chaison, professor of industrial relations at Clark University in Worcester, Mass., said one clear trend is that the UAW retirees will gain more of a say within the union. That's because the union-run retiree health care trust fund, known as a VEBA, would own a big chunk of General Motors stock under GM's latest recovery plan. . . . That dual role -- representing active workers and being the fiduciary of the multibillion-dollar VEBA trust fund for retiree health benefits -- could create some tension for the union. . . .
The most recent time the UAW seriously considered a merger with other unions was in 1995, when the UAW, the United Steelworkers, and the International Association of Machinists announced their intention to merge. But the complex issues involved proved too difficult and the link never happened. Leo Gerard, president of the steelworkers union, said this week he would be open to such a deal with the UAW. "I was for it then, and I would be for it now," Gerard said. The UAW did not respond to a request for comment. . . .
If the UAW has taken repeated blows lately, the union still enjoys considerable resources, including a skilled, professional staff and assets totaling more than $1 billion, according to the union's 2008 annual report to the federal government. The union also retains political allies among the Obama administration. That will help soften the most stringent demands of management and bond holders trying to restructure the industry to their liking. And there's one more plus for the UAW. "They also have a membership that understands the reality of the difficulties of the industry," Chaison said. "And that's critically important. You can't claim that concessions are being foisted on them by a company that's really doing well. Those days are over."
Given the current imploding of UNITE HERE among other potential problems, I wonder how seriously the UAW would consider a potential merger, but I guess we'll see soon enough.
Hat TIp: Paul Secunda
Saturday, May 30, 2009
No matter your feelings on Judge Sotomayor's nomination to the Supreme Court, if you're reading this blog, chances are that you're well aware how badly the Ricci case has been portrayed in the press. The plaintiffs "we got denied promotions because of our race" claim has consistently been the headline and more often than not the only side of the case given--with the implication being that any judge voting against them is pushing an aggressive form of affirmative action or, as some have claimed, is simply racist.
What's rarely mentioned is that the city faced a Title VII disparate impact claim from minority applicants if they didn't try to fix the problems that seem to have existed with the test used for promotions. As Marcia has blogged, this case involves some really tough issues that reasonable minds can differ on.
Finally, a major news outlet--the Washington Post--has given this case the focus it deserves in a recent article that does a good job of explaining both sides of the case is layperson terms (and cites to the virtual press conference we posted earlier). If commentators discussing Sotomayor's involvement with Ricci refuse to read up on the case themselves, they should at a minimum read this article.
- Andrew P. Morriss, William T. Bogart, Andrew Dorchak, & Roger E. Meiners, Green Jobs Myths (1121).
- David A. Hyman, Employment-Based Health Insurance and Universal Coverage: Four Things People Know That Aren't So (507).
- Mitchell H. Rubinstein, Obama's Big Deal: The 2009 Federal Stimulus - Labor and Employment Law at the Crossroads (198).
- Hermann J. Stern, Making Bonus Systems Fair and Crisis Proof (167).
- Karen C. Burke (photo above), Fuzzy Math and Carried Interests: Making Two and Twenty Equal 710 (105).
- Scott A. Moss & Peter H. Huang, How the New Economics Can Improve Discrimination Law, and How Economics Can Survive the Demise of the 'Rational Actor' (95).
- Jonathan Barry Forman, Funding Public Pension Plans (95).
- Brian D. Cadman, Mary Ellen Carter, Katerina Semida, Compensation Peer Groups and Their Relation with CEO Compensation (94).
- Ana M. Albuquerque, Gus De Franco, Rodrigo S. Verdi, Peer Choice in CEO Compensation (86).
- Ruth Mason, Tax Expenditures and Global Labor Mobility (80).
Friday, May 29, 2009
As GM's bankruptcy filing rapidly approaches, the UAW membership ratified a set of concessions to help keep the automaker afloat, with 74% of voters approving the package. According to the Washington Post:
UAW leaders agreed to the revised contract last week that freezes wages, ends bonuses, eliminates noncompetitive work rules and requires binding arbitration for the next contract if a deal can't be reached. Gettelfinger said there are some conditions under which the union could still strike. The UAW said the cuts would save GM $1.2 billion to $1.3 billion a year. . . .
The agreement also gives a union-run retiree health care trust 17.5 percent ownership of a post-bankruptcy protection GM, with a warrant to buy another 2.5 percent. The trust will take on the company's retiree health care costs starting next year. The stock will come in exchange for part of the company's $20 billion obligation to the trust. The trust also will get $6.5 billion of preferred shares that pay 9 percent interest, plus a $2.5 billion note.
For those unaware of the "Jon & Kate Plus 8" phenomenon (as I was until recently), it's a reality TV show following the life of a Pennsylvania married couple and their eight children (8-year old twins and 5-year old sextuplets). Apparently, a complaint was made to the state labor department alleging child labor violations. The state is investigating, but has made no findings. The AP story has some interesting background on the possible legal issues involved:
Child actors and other young performers are protected by Pennsylvania labor law, but it's not clear whether the law applies to reality TV. Investigators will have to decide whether the Gosselins' house in southeastern Pennsylvania is essentially a TV set where producers direct much of the action — in which case the law may apply — or if it's a home where the kids aren't really working but are simply living their lives, albeit in front of the cameras. . . .
vary by state. Pennsylvania law permits kids who are at least 7 to work in the entertainment industry, as long as a permit is obtained and certain rules are followed. Kids can't generally work after 11:30 p.m., for example, or perform any place that serves alcohol.
The law allows performers younger than 7 to have "temporary employment ... in the production of a motion picture," and spend up to eight hours a day and 44 hours a week on set as long as their "educational instruction, supervision, health and welfare" needs are being met. In contrast, California has more elaborate rules governing the work of child performers, establishing working hours by age group (20 minutes a day for infants, up to six hours for older kids) and requiring a teacher to be on the set.
"Jon & Kate Plus 8" tapes off and on throughout the year, averaging two to three hours a day, two to three days a week, [a show producer] said.
George Voegele, a labor lawyer at Cozen O'Connor in Philadelphia, said the state Labor Department might well decide it doesn't have jurisdiction over the show, especially if investigators determine the cameras are there to document the kids, not direct them. "The fundamental question I see here is whether or not they're employees, whether they're working, and whether the Pennsylvania child labor law provisions would even apply to this situation," he said.
The Pennsylvania investigation recalls a 2007 controversy surrounding "Screen Actors Guild and others suggested the children were being exploited and one trade magazine said the show was skirting New Mexico labor laws by declaring the production a "summer camp." Producers denied the accusations; the show lasted 13 episodes.," a CBS reality show about 40 children given the task of organizing and running their own lives in New Mexico. The
Jillian Weiss (Ramapo College) at Transgender Workplace Diversity reports on an interview in the Washington Blade with Rep. Barney Frank of Massachusetts in which he discusses the planned re-introduction of ENDA, the Employment Non-Discrimination Act, next month. The article suggests that this version will prohibit discrimination on the basis of sexual orientation and sexual identity, including non-conformity with gendered stereotypes of identity and expression.
Dr. Weiss promises to analyze several issues related to the proposed bill in future posts including,
- How should gender identity be defined?
- Does "gender identity" language protect employees other than transgender people?
- What are the scope of the exemptions from coverage included in the bill?
- Who supports ENDA, and why?
- Who opposes ENDA, and why?
- What education do Members of Congress need?
- What should I tell my Congressperson?
- How will the relationship between transgender advocates and the wider LGBT advocacy community play out in this go-round?
- What has been the experience of organizations in jurisdictions with current gender identity protections?
- What types of issues have come up with transgender workers in the workplace?
- Is ENDA beneficial, detrimental, or neutral for the organizations that it covers?
I look forward to keeping up with this series.
Hat tip: Paul Secunda
Marcy Karin, currently Legislative Counsel for Workplace Flexibility 2010 and an Adjunct Professor of Law at Georgetown University Law Center, will be joining Arizona State this fall, coming on board as Director of a new Work-Life Policy Unit of the Civil Justice Clinic and an Associate Professor who will teaching some labor and employment classes.
Marcy was previously Supervising Attorney and Teaching Fellow at the Federal Legislation and Administrative Clinic at Georgetown and, before that, she an employment associate at Arent Fox PLLC in Washington, DC.
Marcy's research interests include work-life balance issues and domestic violence and its effect on the workplace. Her recent writings include her article in the Brooklyn Law Review, "Changing Federal Statutory Proposals to Address Domestic Violence at Work,"and a symposium piece in the Rutgers Law Record, "Time Off for Military Families: An Emerging Case Study in a Time of War . . . and the Tipping Point for Future Laws Supporting Work-Life Balance?"
Congratulations to both Marcy and ASU!
Rick's post last week on the Supreme Court's decision in Ashcroft v. Iqbal highlighted the concern that many civil procedure and employment law scholars have over what Federal Rule of Civil Procedure 8 requires for a complaint to withstand summary judgment. Mark Herrmann and Jim Beck at Drug and Device Law blog have an extensive post, arguing that the decision is simply an affirmation that the holding in Bell Atlantic Corp. v. Twombly (that conclusory statements of the law are not enough) would apply regardless of the substantive law at issue. They also argue that this result makes good policy because a liberal pleading standard, in combination with the liberal discovery rules adopted after that liberal pleading standard, give plaintiffs with frivolous suits nearly carte blanche to go on extremely expensive fishing expeditions.
They agree that Swierkewicz v. Sorema must have been effectively overruled by Twombly, but conclude that this is a positive thing necessary to weed out frivolous cases. On why this standard will not weed out meritorious ones, they write,
The meritorious case, we think, doesn’t have any Twombly problems to start with – except maybe around the edges should the plaintiff overplead.
A meritorious case is not one where the plaintiff pleads that the product was “defectively designed” and leaves it at that.
It's good food for thought.
Thursday, May 28, 2009
In more developments on the two-member NLRB issue, the Board announced today that it will petition the D.C. Circuit for rehearing and rehearing en banc in Laurel Baye. According the Board's press release:
With great respect for the District of Columbia Circuit Court and the panel that decided Laurel Baye Healthcare, we believe that the panel decision was incorrect. Accordingly, we intend, by the end of May, to petition the panel, and the full Court, to revisit the panel’s ruling.
Our decision not to adhere to the District of Columbia Circuit’s ruling is consistent with the traditional policy of the Board. Historically, the Board, in selected cases, has chosen to adhere to its view of the law, where it respectfully disagrees with an appellate court’s adverse decision. This step enables the Board’s position to be presented to other Circuits and, where appropriate, to the Supreme Court.
If my memory serves me correctly, the D.C. Circuit typically circulates forthcoming decisions to the full court before they're released. If so, that would suggest that it's unlikely that the Board's petition will be successful. If there's going to be further review of this issue, the Supreme Court is the better chance (although far from a certainty).
As it said it would do, the NLRB recently issued two, two-member decisions (dated May 21) following the D.C. Circuit's holding in Laurel Baye that such decisions were invalid. The cases are Regional Emergency Medical Services and Iron Workers, Local 378 and, since their issuance, the issue has been addressed in a cert petition to the Supreme Court. Of note is the NLRB's new "we've got the power" footnote:
As I've been saying quite a lot lately: stay tuned.
Hat Tip: Justin Keith
Scott Moss (Colorado) is becoming the go-to guy on Sotomayor's employment decisions. He participated yesterday in a conference call organized by the White House that brought several scholars and lawyers together for a virtual press conference. The transcript is here. Also participating were Paul Smith, a partner at Jenner & Block, William Marshall (North Carolina), Martha Minow (Harvard), and Kevin Russell, a partner at Howe and Russell and co-author of Scotusblog.
Much of the discussion focused on the per curiam Ricci decision, and Scott pointed out something that I had forgotten, which I think is very important to understanding why it was a summary decision,
The quote from Judge Calabresi, also one of the most respected judges on the 2nd Circuit, was that, quote, "Difficult questions should be decided only when they must be decided, or when they are truly well presented." And that's his view, which Judge Sotomayor seconded, that the court shouldn't reach out and decide a claim that involves unnecessarily reversing precedent, especially when, as here, those claiming that the New Haven test administration was improper had not presented in the lower court the exact claim that might have been the strongest one on appeal.So the view was, we don't reach out and impose a new view of the law where the parties haven't fully presented a claim. It's a modest view of the judicial role . . .
There's more, too, on more subjects. It's a great discussion and the transcript is worth a read.
The Second Circuit reversed a summary judgment in favor of an employer last week in a case presenting a novel argument on sex stereotyping. The case, Sassaman v. Gamache was brought by an employee who alleged he was constructively discharged as a result of sex stereotyping related to allegations that he had sexually harassed a co-worker. The district court had granted summary judgment for the employer, holding that the plaintiff had failed to provide enough evidence to establish a prima facie case of discrimination. The Second Circuit disagreed.
The Second Circuit noted that plaintiff's supervisor stated that the plaintiff probably engaged in the conduct his coworker accused him of "because you're male," which the court said could be interpreted as a stereotype that men are likely to sexually harass women. The Second Circuit also noted that employer also conducted very little investigation before pressuring the plaintiff to resign. The employer had referred the matter to local authorities for a criminal investigation, but did not pursue any internal methods of investigation before pressuring the plaintiff to resign. These two pieces of evidence would support an inference that the employer was motivated by discrimination on the basis of the plaintiff's sex.
This case is really interesting not just because of the rather novel sex stereotyping argument, but also because it seems to have echoes of Ricci. The employer here may have felt in something of a bind, liable to the coworker if the allegations of harassment weren't taken seriously. And this might be thought of as a reverse sexual harassment case, reverse in the sense that the person accused of harassment is alleging that he was injured by sex discrimination. It is also significantly different, though, because of the comment made by the supervisor, which could suggest a belief that all men are likely to harass women.
The action had been brought against the individual supervisor too, and that portion of the summary judgment was upheld on the grounds that individuals are not subject to Title VII liability. I wonder what the result would have been for that portion of the suit had this been brought against the supervisor under section 1983 and the Equal Protection Clause instead.
According to BNA's Daily Labor Report (subscription required; no NLRB link available yet), an NLRB Regional Director recently determined that medical interns and residents at New York City's St. Barnabus Hospital. The RD basically said that the NLRB's earlier Boston Medical case--which held that medical residents were employees--directly applied to the case and that recent circuit cases involving tax law didn't warrant reconsideration of Boston Medical.
I kept think that the Battista Board was going to reverse Boston Medical, as it did for coverage of graduate students, but they never got around to it. If the NLRB does get more members, however, this case could remain in limbo, as I'm guessing that Chairwoman Liebman and Member Schaumber might not be able to come to an agreement on this one.
Hat Tip: Dennis Walsh
For example, the bill could require the National Labor Relations Board to mandate secret ballots whenever there's evidence of unlawful union pressure. It could also require a "supermajority" of 60 percent or 67 percent for certification by card check, and reiterate that a secret ballot would be available when requested by at least a third of workers.
* * *
With or without card check, the next version of the legislation should require something more like Canada's "instant" union elections, which are held five to 10 days after they are scheduled. With that approach, which has been endorsed by former NLRB chairman William Gould, legal disputes related to elections get sorted out afterward, rather than dragging on for months before elections are held.
- Rachel S. Arnow-Richman, Employment as Transaction, 39 Seton Hall Law Review 447 (2009).
- Stephen Lee, Private Immigration Screening in the Workplace, 61 Stanford Law Review 1103 (2009).
- Minna J. Kotkin, Diversity and Discrimination: A Look At Complex Bias, 50 William and Mary Law Review 1439 (2009).
- Bethany C. Suhreptz, Key Employee Retention Plans, Executive Compensation, and BAPCPA: No Rest for Congress, No More for Execs, 35 William Mitchell Law Review 1194 (2009).
- Alison Atwater, When Is a Combat Veteran a Combat Veteran?: The Evidentiary Stumbling Block for Veterans Seeking PTSD Disability Benefits, 41 Ariz. St. L. J. 243 (2009).
- Lesley Manley, Should States Serve as Laboratories for Mine Safety Regulation?, 41 Ariz. St. L. J.379 (2009).
- C.J. Griffin, Workplace Restroom Policies in Light of New Jersey's Gender Identity Protection, 61 Rutgers Law Review 409 (2009).
- David A. Doellman, Statutory Leapfrog: Compensatory and Punitive Damages Under the Retaliatory Provision of the ADA, 74 Missouri Law Review 173 (2009).
- M. Blake Heath, Not Just Another Day at the Office: Why Missouri Should Reform its Workers' Compensation Laws to Better Protect Employees Injured by Violent Crimes in the Workplace, 77 UMKC Law Review 739 (2009).
Wednesday, May 27, 2009
James Boskey ADR Writing Competition
Sponsored by The ABA Section of Dispute Resolution in association with the Saltman Center for Conflict Resolution of UNLV Boyd School of Law and Penn State Dickinson School of Law.
Purpose of the Boskey ADR Writing Competition
The purpose of the competition is to promote greater interest in and understanding of the field of dispute resolution and collaborative decision-making among students enrolled in ABA accredited law schools.
The essay may address any aspect of dispute resolution practice, theory or research that the contestant chooses. Essays are limited to 15-25 typewritten pages, including footnotes or endnotes. The text of the essay must be double-spaced, with twelve-point font and one-inch margins.
First Prize: $1000 to the Competition winner and an invitation to publish in Penn State Dickinson School of Law Yearbook On Arbitration and Mediation. The Competition winner and honorable mention essays will also be posted on the Boskey Competition website.
Entries for the competition must be submitted by Monday, June 15, 2009. One electronic copy of the submission and one entry form must be submitted in order to register for the competition. Electronic entries are to be sent to Josephine Waugh at firstname.lastname@example.org, with the subject header “Attn: Boskey Dispute Resolution Essay Competition.”
Click here to download the Boskey Entry Form.
Register via mail send the completed Entry Form and essay to:
Boskey Dispute Resolution Essay Competition
c/o Jo Waugh
ABA Section of Dispute Resolution
740 15th Street, NW
Washington, DC 20005
Entries must be postmarked by U.S. mail or recognized commercial express service. Entries submitted by fax will be automatically rejected. Contestants will receive confirmation of the entry. The winner(s) will be notified by mail of their selection. The James Boskey Dispute Resolution Essay Competition is sponsored by the American Bar Association Section of Dispute Resolution.
James B. Boskey was an intellectual, humanitarian, law professor, and mediator. Jim Boskey became known and beloved world-over for his publication of The Alternative Newsletter, a resource guide on ADR published quarterly. It was in its tenth year when Jim died in 1999. The publication provided a comprehensive yet very accessible window into the diverse dimensions of the ADR field. In many respects, Jim Boskey-through the alternative newsletter-was the voice of the ADR community.
The first cert petition coming out of the recent circuit split over the validity of two-member NLRB decisions has arrived. In New Process Steel, the Seventh Circuit held that the two-members decisions were valid which, along with an earlier First Circuit decision), created a split with the D.C. Circuit. So, the employer in New Process petitioned the Supreme Court to hear the case (Download Cert petition). According to Law 360 (subscription required):
“Absent resolution from this court, employees, employers and unions throughout the country will face continued uncertainty,” the petition said. The petition claims that the validity of hundreds of decisions by the NLRB was cast into doubt by the “diametrically opposed holdings.” . . .
“There is no clear answer to a question of critical importance to labor law — does the NLRB exist?” the petition asked. . . .
New Process claims the circuit split threatens to stymie labor relations throughout the U.S. "The D.C. Circuit correctly held that the NLRA does not permit the board to function with only two members. We believe that the Seventh Circuit's decision is an incorrect interpretation of the act," said Joseph W. Ambash, one of the attorneys representing New Process.
Congratulations to Jeff Hirsch (Tennessee), Paul Finkelman (Albany), and Howard Wasserman (Florida Int'l) who are on this morning's NPR story Looking Back at Sotomayor's 1995 Baseball Ruling by Ari Shapiro. Here's the beginning of the story:
In 1994, for the first time in 90 years, there was no World Series for the Boys of Summer. The baseball strike went on to last more than seven months.
Tuesday, May 26, 2009
Scott Moss (Colorado) has an op-ed piece in Politico called, "The Case Against The Case Against The Sonia Sotomayor Nomination." Among the topics Moss addresses is Sotomayor's joining in the Ricci case and some of her other employment decisions:
A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).
In the 2001 opinion, Sotomayor led a unanimous appellate panel in
reversing the pretrial dismissal of a female police officer’s claims of
discrimination, retaliation, and a hostile work environment.
Sotomayor’s opinion was meticulous, addressing every one of the trial
judge’s rulings and rationales methodically, with exhaustive citations
to prior judicial decisions from around the country — a more scholarly
effort than typically is necessary for a decision on an individual New
Check out the entire piece.