Monday, December 28, 2009
The Washington Post is reporting that Craig Becker's nomination to the NLRB (among five other nominees to different agencies) was "referred back to the White House for reconsideration." It's unclear to me how significant this move is. The Post includes the six under a list of nominees who were "rejected," but it appears that they could be renominated, based on the following quote:
No formal vote was taken, but the six nominees who were "returned to the White House" for reconsideration and possible renomination "ran into opposition," said Jim Manley, a spokesman for Senate Majority Leader Harry Reid (D-Nev.).
If anyone else has a better idea of what's going on or what might happen, please post a comment or e-mail me. Given that the NLRB nominees are usually packaged together you wouldn't expect this to be the end of Becker's nomination, but who knows. If his nomination is gone, it might spell trouble for the rest of the nominees. And if that happened, then the two-member Board issue only gets more relevant.
Thanks to Rebecca Hamburg and Russ Runkel for filling in more info. It seems that the problem is Sen. McCain's hold on Becker's nomination. Under Senate rules, nominations not acted on at the end of a session essentially "die" and can't be acted on again unless they are formally renominated. However, the Senate can adopt a unanimous consent agreement that waives this rule and permits further action without renomination. But the Senate refused to do so with Becker and the others. The upshot is that Becker could get renominated, but unless there's a way to break McCain's hold on him it may not matter.
Hat Tip: Barry Hirsch
Sunday, December 27, 2009
The opening brief in New Process Steel has now been filed and you can click on the following link to Download New Process Employer Brief. This is the case through which the Supreme Court will address whether two-member NLRB decisions are valid. From part of the summary of argument:
This case invokes three cardinal principles of statutory construction: Words and clauses in a statute cannot be ignored; each of them should be accorded its ordinary and natural meaning. Conflicts that arise between words and clauses must be resolved in a way that harmonizes them without diminishing the force or meaning of any of them. And, each word and clause must be considered in its context so that no meaning is lost by unnaturally narrow focus.
Application of these principles to Section 3(b) of the NLRA, as amended by the Taft-Hartley Act, leads to the conclusion that the NLRB is authorized to decide cases so long as at least three members are present in a “group” that has been delegated any or all the powers of the Board by the whole Board. A vacancy on the Board only, as distinct from a delegee group, will not deprive the Board of its authority to decide cases unless the vacancy or vacancies deprive the Board of a quorum of at least three members, because three members must be present “at all times.” In contrast, a delegee group that is duly authorized by the Board may act if two members, i.e., a majority or a two-member quorum, agree. When there are only two members on the Board itself, however, there is no Board, no operative authorized delegee group, and no authority to issue decisions. By this formula, all of the words count and none tyrannizes another. Giving meaning to each of the words and phrases in this setting eliminates any ambiguity and leads to a rational operating construct for the NLRB. . . .
Moreover, since the enactment of Taft-Hartley, the NLRB has abided by the minimum three-member requirement for action by the delegee group. Board members and executives have articulated the point over many years. Unrelated federal boards and commissions similarly have refrained from acting when their membership fell below their statutorily authorized numbers. By contrast, no agency has embraced the view offered by the OLC and Board in this case because the Board and the OLC’s theory defies common sense, as well as the plain language of the Act.
I'll try to post the other briefs as they become available.
Wednesday, December 23, 2009
In line with an increasing consensus among the appellate courts, the Third Circuit found in Smith v. City of Allentown (3rd Cir 12/22/2009), that the Supreme Court's controversial Gross decision does not eliminate the McDonnell Douglas framework in Age Discrimination in Employment Act (ADEA) cases.
Ross Runkel has more:
Smith sued the employer for age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and for violation of his First Amendment political affiliation rights. The trial court granted the employer's motion for summary judgment. The 3rd Circuit affirmed.
The court recognized that Gross v. FBL Financial Services, 129 SCt 2343 (2009), expressed significant doubt about any burden-shifting under the ADEA. The court concluded that the but-for causation standard required by Gross did not conflict with the court's continued application of the McDonnell Douglas paradigm in age discrimination cases. (In accord: 2nd and 6th Circuits). The court evaluated Smith's age discrimination claim under the but-for causation standard pursuant to McDonnell Douglas to see whether he produced sufficient evidence to establish that the employer's proffered rationale of inadequate job performance for his discharge was a pretext for age-based discrimination. The court concluded Smith failed to carry that burden.
Sounds right to me under current law, but I am still hoping that Congress sends the Gross decision the way of Ledbetter, Wards Cove, etc.
This is disappointing. As reported by the Blog of the Legal Times:
The State Department filed its motion to dismiss a case challenging the U.S. Foreign Service's mandatory retirement policy, arguing the age cutoff was a valid piece of Congressional decision making.
Elizabeth Colton, a 64-year-old Foreign Services officer, sued the State Department in September alleging she had been denied an overseas assignment because of her age. Her suit, filed at the U.S. District Court for the District of Columbia, claimed the Foreign Service's requirement that officers retire at 65 violated the Constitution's equal protection clause. Colton also alleged the government violated the Age Discrimination in Employment Act by denying her career opportunities before she turned 65.
The government shot back yesterday, arguing that Colton was trying to upend long-settled law. The U.S. Court of Appeals for the D.C. Circuit has already found that the retirement policy at issue, which is contained in the Foreign Services Act, was was exempt from the ADEA, the government said. It added that the Supreme Court has also ruled that the age cutoff does not violate equal protection.
"Congress viewed the mandatory retirement provision as critical to maintaining the highest level of performance by 'the corps of public servants who hold positions critical to our foreign relations,'" the government's filing states.
Of course, you could make the generalization about older people losing ability in any job after 65, I know many robust and energetic 70-somethings and many 50-somethings who are no longer capable of the "highest levels of performance." Isn't the ADEA suppose to cut against these types of stereotypes, Congress?
Tuesday, December 22, 2009
The score is now 5-1 in favor of the NLRB's authority to issue two-member decisions. Although not a lock by any means, those numbers are certainly helpful to the Board when the issue goes before the Supreme Court. In the latest case, Teamster Local 525 v. NLRB, the Tenth Circuit held that the NLRA gives the Board authority to issue two-member decisions. It's reasoning was similar to the Second Circuit's, in that both relied on Chevron deference to reach their decision.
As I've noted, whether Chevron applies to the NLRB's interpretation of Sec. 3(b) a giving authority to to-member decisions is far from clear. However, this does give the NLRB another argument to defend its decisions. But, I'd bet that the Supreme Court doesn't use this argument; it's worked hard for a long time to avoid spelling out whether Chevron applies to less formal agency actions, especially those that go to procedural or jurisdictional matters as opposed to those at the heart of the agency's power: here, the NLRB's interpretation of the NLRA's substantive provisions like Secs. 8 & 9).
Hat Tip: Patrick Kavanagh
More good news (or less bad news perhaps) on the jobs front. Following last months dip in unemployment, the Department of Labor's Bureau of Labor Statistics has released data showing that the hiring of temp workers increased last month by 52,000. That's better than any other category of workers. It's also likely a good sign for future unemployment rates, as companies will often hire temp workers when business initially picks up and then, if business stays good, ultimately hire permanent workers. Watch for future months to see if the temp hiring stays strong (and numbers of hours worked by all employees)--if they do, expect good news on the unemployment front to follow.
Update (12/23): Inside Higher Ed reports on another Garcetti and higher ed case. This time, the court alarmingly applies Garcetti. This decision is in line with the AAUP recent warning that judges are eroding faculty rights at public colleges.
Thanks to friend of the blog, Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context. Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.
[I]t is heartening to report that a federal court in California has rejected a community college district's attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district's argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the "nature versus nurture" debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the "nurture" side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon's case in 2008.)
In Sheldon's subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college's argument, based on Garcetti, in favor of dismissing Sheldon's First Amendment claims altogether. Crucially, the court observed that "Garcetti by its express terms does not address the context squarely presented here: the First Amendment's application to teaching-related speech. For that reason, defendants' heavy reliance on Garcetti is misplaced." The court opined that the "precise contours" of the First Amendment's reach in this context are "ill-defined and are not easily determined at the motion to dismiss stage."
I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result. First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context. Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.
To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.
Monday, December 21, 2009
Phoebe Taubman, a fellow at Equal Justice Works with A Better Balance: The Work and Family Legal Center has written an issue brief for the American Constitution Society, entitled Free Riding on Families: Why the American Workplace Needs to Change and How to Do It.
From the press release:
Today’s fast-paced economy relies on many different resources, including electricity, fuel, technology, and the labor of our workers, among many others. Ms. Taubman argues, though, that there is one critical resource whose value we do not fully recognize, and without which our economy would founder: the unpaid work of caring for our families. Whether it is the education and care of the next generation or the comfort and care of the elderly, this work produces extensive benefits for society and we could not go on without it. Ms. Taubman, employing a variety of statistics, discusses the staggering costs imposed on unpaid caregivers, most of whom are women, and on their families, companies, and society as a whole. She contends that, “[f]or a country whose politicians tout family values, the United States has done little to confront these costs and support the critical work that families provide.”
In her issue brief, Ms. Taubman compares current U.S. policies with those of other countries around the world, and she argues that the comparison is not flattering with regard to our policies on paid maternity leave, paid paternity leave, paid sick leave, and the treatment of part-time workers. She provides empirical data to demonstrate how our workforce has changed since our current policies were implemented, and contends that “[o]ur workplace norms and laws were developed over 50 years ago when a different workforce model and a different family model prevailed [and] . . . [i]t is time to adapt our laws to reflect and support the way Americans live and work today.” She then discusses several potential changes to our law or policies, some of which “are already being considered and/or implemented in a variety of U.S. cities and states, as well as overseas, and all of [which] . . . would provide meaningful, immediate support to families who are struggling to provide and care for their loved ones, and would set us on a path toward a more family-friendly workplace culture for the future.”
I don't want to spoil the ending for you, but Taubman describes how paid leave, discrimination protection for caregivers, workplace flexibility, and workplace equity would bring our policies up to date with our needs. There's a lot of interesting data here.
Friday, December 18, 2009
Melissa Hart (Colorado) has just posted on SSRN her article (12 Employee Rights & Employment Policy J. 253) Procedural Extremism: The Supreme Court's 2008-2009 Labor and Employment Cases. Here's the abstract:
It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions decisions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five justices in the majority were willing to sidestep or ignore to reach their desired outcomes. In Gross v. FBL Financial Services and 14 Penn Plaza v. Pyett, the Court ignored - and essentially overruled - long-settled precedent. In Ricci v. DeStefano, the Court took upon itself the role of fact-finder, resolving disputed facts in the underlying record as it applied a newly-minted legal standard to the case. And in Ashcroft v. Iqbal, the Court completed what was essentially a revision of the pleading rules, articulating a standard under Federal Rule of Civil Procedure 8 that imposes particular burdens on plaintiffs - like those in employment discrimination disputes - whose claims include an element of intent. Together, these four opinions demonstrate that the Court’s current reputation for incrementalism - at least in this important area of civil rights - is unwarranted.
· If an employee is taking FMLA leave on a holiday, do I count the day against the employee's FMLA allotment?· Do I count FMLA leave against employee during winter or spring break, a brief plant shutdown or furlough period?
· Do I pay employees for holidays occurring during their FMLA leave?
Here is the link.
Michael Fox has an extensive post over at Jottings by an Employer's Lawyer on the Franken Amendment to the Defense Appropriations Bill. The Amendment bans predispute arbitration agreements pertaining to all Title VII claims and to any tort arising out of a claim for sexual harassment. The Amendment has passed the House, Senate, and a conference committee. It applies to both contractors and subcontractors performing work for the federal government.
Wednesday, December 16, 2009
The Journal of Labor Economics has an interesting study in its most recent issue (October 2009) about the patterns of hiring that managers of different races exhibit. According to the study, white, Asian, and Hispanic managers tend to hire more white and fewer black employees than do black managers. The article, Laura Giuliano, David I. Levine, and Jonathan Leonard, Manager Race and the Race of New Hires not only documents the pattern but also offers some explanations:
Using more than two years of personnel data from a large U.S. retail chain, the study found that when a black manager in a typical store is replaced by a white, Asian or Hispanic manager, the share of newly hired blacks falls from 21 to 17 percent, and the share of whites hired rises from 60 to 64 percent. The effect is even stronger for stores located in the South, where the replacement of a black manager causes the share of newly hired blacks to fall from 29 to 21 percent. . . .
How strong is the impact? Consider a typical store with 40 employees located in the Southern U.S. According to the data, replacing a black manager with a non-black manager would result in the replacement of three to four black workers with white workers over the course of one year.
“From the viewpoint of a district manager who is observing just a small sample of stores, this change might go unnoticed or appear insignificant,” Giuliano said. “However, the change may appear more significant from the point of view of job seekers—and especially black job seekers. In fact, the change in non-Southern stores amounts to a proportional decline of 15 percent in the number of blacks employed.”
The data used by Giuliano and her colleagues were especially well suited to sorting out the role race plays in hiring. While previous studies have also suggested that manager race plays a role, those studies have been unable to distinguish that role from other factors such as the demographic makeup of the local labor pool. Giuliano and her colleagues were able to isolate the race factor by tracking individual stores that experienced a change of manager.
“This means we can compare the hiring patterns of consecutive managers of different races in the same store,” she said. “Hence we can isolate the effect of a manager’s race by comparing the hiring patterns of managers when they hire from similar labor pools under similar conditions.”
The study also found that in locations with large Hispanic populations, Hispanic managers hire more Hispanics and fewer whites than do white managers, but that was only true when Hispanics made up 30% or more of the population of the area.
Some of the cause is related to patterns of residential segregation. Managers of all colors tended to hire people who lived close to them, so to the extent that black managers lived in neighborhoods that were predominantly black, Hispanic managers lived in neighborhoods that were predominantly Hispanic, and white managers lived in neighborhoods that were predominantly white, their hiring pools also tended to be primarily of their own race/ethnic background. Another reason that more black employees were hired by black managers may be due to white applicants self-selecting out. When a white manager is replaced by a black manager, the rate at which white workers quit rises by 15%.
So takeaways seem to be both that race of management matters when we think about real equal opportunity and that residential diversity/segregation is inextricably intertwined with employment diversity/segregation.
Many congratulations to Katherine Stone, who has been named the Arjay and Frances Miller Professor of Law at UCLA.
Kathy was awarded a Guggenheim Fellowship Award in 2008 and a Russell Sage Fellowship for 2008-2009 for her work on the changing nature of employment and the regulatory implications. Her forthcoming book, Globalization and Flexibilization: The Remaking of the Employment Relationship in the 21st Century, will examine the changing employment landscape in Japan, Australia, and Europe.
Kathy has been a member of the faculty of the UCLA School of Law since 2004. Previously, she was Professor of Law at Cornell Law School and Anne Evans Estabrook Professor of Dispute Resolution at Cornell School of Industrial and Labor Relations. She has also taught at Yale Law School, Stanford Law School, the University of Chicago Law School, New York University Law School, and the Benjamin N. Cardozo Law School. Professor Stone received her B.A. magna cum laude from Harvard University and her J.D. cum laude from Harvard Law School. She practiced law at Cohen Weiss & Simon and at Rabinowitz Boudin Standard Krinsky & Lieberman in New York City.
New Report from the Center for WorkLife Law: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination
Stephanie Bornstein, Associate Director of the Center for Worklaw Life at Hastings Law, sends us news of a New Report from the Center for WorkLife Law: Caregivers as a Protected Class?: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination by herself & Robert J. Rathmell.
From the report:
You can read the complete press release here and the full report here.
At least 63 local governments in 22 states—including some of the nation’s major urban areas—have passed employment anti-discrimination laws that go beyond federal and state statutes to ensure that those with caregiving responsibilities are not discriminated against at work. Cases filed under these local laws, such as one recent decision in Chicago, have the potential to result in substantial damages, fines, and attorneys fees.The Center for WorkLife Law at the University of California, Hastings College of the Law has released the first comprehensive nationwide survey of state and local laws that prohibit family responsibilities discrimination, or FRD. The laws surveyed specifically include parental status, familial status, or family responsibilities as a protected class in employment protections—similar to sex, race, and religion. Most call for administrative redress, fines, or injunctive relief. Many allow for monetary awards for damages, some including punitive damages and attorneys’ fees.
As this year's Chair of the AALS Section on Labor Relations and Employment, I am delighted to include in this blog post the 2010 AALS Section on Labor Relations and Employment Law Annual Newsletter. Rachel Arnow-Richman (Denver) and Ann McGinley (UNLV) did a wonderful job putting the newsletter together in their capacities as Chair-Elect and Secretary of the Section, respectively.
All of the officers of the section look forward to welcoming you in New Orleans to both the Section Lunch on Thursday (yes, I said Lunch, not Breakfast!) and Section Panel on Saturday which will feature a distinguished panel (including the head of NIOSH) on the Future of OSHA Reform. We hope you will join us!
David Yamada (Suffolk) began yesterday a series of posts, on his blog Minding the Workplace, about workplace bullying in healthcare. The Joint Commission, an independent, non-profit organization that accredits health care organizations and programs, has issued two standards on intimidating and disruptive behaviors at work, citing concerns about patient care. These standards are now part of the Joint Commission’s accreditation provisions. As Michael Fox points out in Jottings by an Employer's Lawyer, these standards are a big deal in the healthcare industry.
Tuesday, December 15, 2009
Dennis Walsh, former member of the NLRB and long a friend of this blog, has been appointed Deputy General Counsel at the Federal Labor Relations Authority. The announcement suggests that he will help spearhead an effort to improve the FLRA's case handling procedures, for which his extensive NLRA experience should be useful. From the announcement:
Mr. Walsh served as a Member of the NLRB on three occasions: January 2006 to December 2007, under a recess appointment by President Bush; December 2002 to December 2004, after being nominated by President Bush and confirmed by the Senate; and December 2000 to December 2001, under a recess appointment by President Clinton. Since December 2007, he has served as a Special Assistant in the Division of Enforcement of the NLRB and a Deputy Assistant General Counsel in the NLRB General Counsel’s Division of Operations. He was Chief Counsel to NLRB Member Wilma B. Liebman from 1997 to 2000 and to former Member Margaret A. Browning from 1994 to 1997. He began his legal career in 1984 as an NLRB attorney in the Office of Representation Appeals, and continued to work for various NLRB offices, including former Member Patricia Diaz Dennis, the Appellate Court Branch, and the Philadelphia, PA Regional Office (Region 4). From 1989 to 1994, he practiced law with Spear, Wilderman, Borish, Endy, Browning & Spear in Philadelphia. Mr. Walsh has been an Adjunct Professor of Labor Law at Howard University School of Law for several years. He is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review, and a 1976 summa cum laude graduate of Hamilton College.
Best of luck and congratulations.
The National Law Journal reports that the EEOC is slated to get $23 million to help it reduce its backlog of 70,000 charges. Some important notes from the article,
The resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination.
Meanwhile, the agency has watched staffing levels shrink 25% in recent years, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators.
The EEOC has struggled with being underfunded pretty much since its inception and pretty much regardless of which party holds the White House or Congress. And according to the article, management side lawyers find the backlog troubling, too. As one attorney quoted said "Having investigators who have more time to actually look into these things and look into them more promptly — it's in the best interest of the party whose position is correct."
Turner on the Authority of the Two-Member NLRB: Statutory Interpretation Approaches and Judicial Choices
Ronald Turner (Houston) has posted on SSRN his forthcoming article in the Hofstra Labor and Employment Law Journal: On the Authority of the Two-Member NLRB: Statutory Interpretation Approaches and Judicial Choices.Here is the abstract:
Is the National Labor Relations Board statutorily empowered by and under Section 3(b) of the National Labor Relations Act to issue decisions and orders when the membership of this five-member agency falls to two active members? This important question, now before the United States Supreme Court, has been considered by several federal courts of appeals in recent rulings addressing challenges to the two-member Board’s adjudicatory power and decision making authority. This essay focuses on the interpretive theories adopted, methodologies employed, and adjudicative choices made by the courts of appeals grappling with the Section 3(b) quorum issue, and argues that the best reading of Section 3(b) and that provision’s requirement that “three members of the Board shall, at all times, constitute a quorum of the Board” is one which terminates the two-member Board’s decisional authority.
I think Ron might be right from a statutory perspective, but I wonder whether the Supreme Court will have mercy on the Board and save its two--member decisions for prudential reasons. Still not sure when the Senate will get around to confirming the three Board nominees, though my understanding is that there might be hold on Craig Becker's nomination.
Professor Ron Brown in China co-sponsored with Peking University Law School a two-day Conference on China’s Social Security Draft Law comparing it with U.S. Law and presented a paper on that topic. Professor Karen Rothenberg, former Dean at the University of Maryland Law School and a recent visitor to UH Law School, also participated, presenting a paper on the U.S. Health System law and the new health law reforms in Congress. It was attended by 50 participants, including from the National People’s Congress’ Law Committee, the State Council’ Legislative Affairs Office, the Ministry of Labor and Social Security, the Academy of Social Sciences, the All China Federation of Trade Unions, lawyers, and academic experts from the leading law schools in China. The papers and proceedings will be published the Peking University Press. Professor Brown will conduct a follow-up Conference later next year.
Ron has established himself as one of the top Chinese scholars in the United States focusing on labor and employment law issues. As someone else who is invested in the future development of the field of international and comparative employee benefits law, I am very excited by these developments.