Friday, July 30, 2010

Denning, McCormick and Lipshaw on Becoming a Law Professor

Books Congratulations to Brannon P. Denning (Cumberland School of Law), our own Marcia McCormick (Saint Louis University - School of Law), and Jeffrey M. Lipshaw (Suffolk University Law School) on the publication of their new book: Becoming a Law Professor: A Candidate's Guide (ABA 2010).

Here is the abstract:    

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.

The book should be available from the ABA later in 2010.

For those of you on both sides of the law professor hiring process, the timing of this publication could not be better with the first distribution of the FAR electronic resumes due out next week. I have the distinct pleasure of counting all three of these wonderful people as good friends and their advice in this area should be especially worthwhile for those ready to consider becoming a law professor.


July 30, 2010 in Book Club, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 28, 2010

Cherry on Virtual Work

Cherry Miriam A. Cherry (McGeorge; visiting St. Louis U. 2010-11) has just posted on SSRN her article (forthcoming Georgia L. Rev.) A Taxonomy of Virtual Work.  Here's the abstract:

Millions of people worldwide entertain themselves or supplement their incomes – or both – by meeting with fellow employees as avatars in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on’s Mechanical Turk. Virtual work has great promise – increasing efficiency by reducing the time and expense involved in gathering workers who live great distances apart, and allowing for efficient use of skills so that the whole is truly greater than the sum of its parts. At the same time, virtual work presents its own unique series of challenges, and regulation is needed to ensure that the end result is not virtual sweatshops. Some of the questions that virtual work raises are: How might the minimum wage laws apply to new forms of work, such as crowdsourcing, where work is broken down to small components? How could virtual worlds help us to test the amount of unconscious bias that exists in hiring? How will unions use virtual worlds, and as happened in the 2007 IBM Italy “virtual strike,” are more virtual industrial actions yet to come? Other issues discussed in the Article include virtual work approaches to whistleblowing, harassment, and disability law. While still nascent, these legal issues are of concern to employees and employers alike, and in light of that fact, it is appropriate to begin formulating well-thought out approaches to address them.

This article is the logical next step from the article Miriam published last year, in Alabama L. Rev., on virtual work and the FLSA.  Nice job, Miriam!


July 28, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 27, 2010

No Mandatory Arbitration of Dodd-Frank Whistleblowing Claims

New Image Congress might not have gotten around to generally barring arbitration as a condition of employment, but the Dodd-Frank Wall Street Reform and Consumer Protection Act is a significant step in that direction. The new law has whistleblower provisions related to the Commodity Future Trading Commission , the SEC, and the new Consumer Financial Protection Bureau . While these provisions are notable in their own right, all three parts of the statute have identical provisions declaring unenforceable waiver of any rights and remedies "by an agreement, policy form, or condition of employment, including by a predispute arbitration agreement." A separate section provides that "No predispute arbitration agreement shall be valid and enforceable, if the agreement requires arbitration of a dispute arising under this section."

Of course, most extant arbitration provisions provide for arbitration of any dispute arising from employment, which would on their face cover claims under the new law. But Dodd-Frank pretty clearly means to render these ineffective, and it seems likely that the courts will apply the statutory provisions even if, in some sense, they would retroactively invalidate pro tanto extant agreements.  (Another argument would be that employees can't knowingly waive rights that didn't exist). I assume, further, that the effect of a statute invalidating an arbitration agreement is for the court to decide, not the arbitrator, adding a new twist to the two Supreme Court decisions this Term supposedly settling most questions of the judge/arbitrator division of authority.  

Interestingly, the same statute that invalidates mandatory arbitration for Consumer Bureau whistleblowing claims both requires the Bureau to study and report back to Congress on the issue of mandatory arbitration of consumer disputes and authorizes the Bureau to "prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties" if the Bureau finds that "is in the public interest and for the protection of consumers."

July 27, 2010 | Permalink | Comments (1) | TrackBack (0)

DOL Issues Fact Sheet on New FLSA Lactation Break Requirement

DolYou might recall that we posted back in March about healthcare reform amendments to the FLSA that require covered employers to provide lactation breaks and space for non-exempt employees who are nursing. The DOL has now issued a fact sheet explaining that obligation.

The fact sheet makes clear:

  • That the FLSA's provisions don't preempt state laws that are more generous
  • That the number and time for breaks will vary based on each woman's needs
  • That a bathroom is not an acceptable location, nor is a space open to intrusion by others
  • That employers with fewer than 50 employees may be exempt from the requirement if based on the size, financial resources, structure, and nature of the employer's business, complying would pose an undue hardship
  • That these breaks need not be compensated, although if the employee gets compensated breaks and wishes to use them for nursing or expressing milk, the employer may not discriminate against this use

See the sheet itself for a more full explanation.


July 27, 2010 in Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Monday, July 26, 2010

Medill Casebook Supplement Updated to Include Health Care Reform Legislation

MedillColleen Medill (Nebraska) writes to let us know that the 2010 supplement to her excellent casebook, Introduction to Employee Benefits Law: Policy and Practice (2d ed.) will be updated to include recent legislation.

She writes:

I've received a number of individual inquiries concerning whether the Fall 2010 Supplement to my casebook will be updated for national health care reform legislation that was enacted in March.  The answer is YES.

I am finalizing the Supplemental Materials and expect to have them posted on the casebook web site at by Wednesday, August 4th (if not earlier).

There is sometimes a delay between the posting of the materials and an e-mail announcement by West, so I wanted to make everyone aware of where they could find the Fall 2010 materials.

The Third Edition of the casebook will be published this fall and available for Spring 2011 adoptions.  The Third Edition has been totally revised for national health care reform and other developments since the Second Edition was published in 2007.

Wow. That's a lot of work in a short period of time, and invaluable.


July 26, 2010 in Books, Pension and Benefits, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, July 24, 2010

Racial Preferences for Caregivers

New Image  The Seventh Circuit's recent decision in Chaney v. Plainfield Healthcare Ctr., 2010 U.S. App. LEXIS 14804 (7th Cir. July 20, 2010), is fascinating on a number of levels. The most obvious is the question of whether a patient in a healthcare setting (in this case a nursing home) can demand that she be treated only by white workers. In Chaney, the defendant had honored a patient's request that no black certified nursing assistants be assigned to her, recording that on its assignment instructions.  This is one of the few cases actually reaching what is essentially a BFOQ defense (although that provision doesn't on its face reach race). Perhaps needless to say, the court found this impermissible under Title VII.

But, hold the champagne. The 7th Circuit was reversing a grant of summary judgment, so the overt racism of the patient assignments wasn't so apparent to the district judge, who thought it reasonable given the home's good faith belief about state laws governing patient rights. Further, a claim challenging the assignment per se is pretty problematic under the adverse employment action doctrine.  If lateral transfers, often to inconvenient workplaces, are not actionable, it seems that not assigning a worker to a particular patient would not be found sufficiently adverse.

So Ms. Chaney linked the racial patient assignment  to other racial incidents in order to make out a claim of contaminated environment harassment. The other incidents included the use of the n word by co-workers, so this wasn't hard to do. But, one wonders whether, absent such comments, the racial segregation claim would have survived summary judgment. The 7th Circuit did put considerable  stress on the harm caused by posted assignment sheet that recorded that the patient's discriminatory preferences, and it also viewed the district court as erroneously separating the patient assignment question from the racial epithets, calling the latter "the principal source of the racial hostility in the workplace."  In any event, if it's an "environment" we're concerned about, it seems odd for the district court not to have approached the case more holistically.

The nursing home's claim (which persuaded the district judge) was that Indiana law required it to honor patient preferences. The 7th Circuit held that, if there were a conflict between Title VII and state law, the former would necessarily trump. But it found no conflict in any event because state law did not require honoring this kind of request. Maybe the district court even agreed --for it, a "good faith" belief that state law so required would suffice to avoid liability. One wonders whether the lower court read Ricci v. DeStefano, where good faith compliance with the law (in that case, federal) was explicitly rejected as a sufficient basis for disparate treatment.  

A final argument for the policy was that it avoided harassment of employees (presumably by patients who might express their racism while being treated). There's actually an interesting line of cases (mostly but not exclusively, prisons) dealing with institutional responses to harassment by inmates, which I'll write about soon, but the 7th Circuit was having none of this since there were various less discriminatory ways to deal with that problem.

By the way, the plaintiff once saw the patient who had refused her services lying on the floor of her room. Following her orders, she reluctantly left her there until she could find a white certified nursing assistant to help.


July 24, 2010 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Friday, July 23, 2010

Barry on Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t Do for Disability Rights

Kevinbarry Kevin Barry (Quinnipiac Law) has posted on SSRN his forthcoming article in the Berkeley Journal of Employment and Labor Law: Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t Do for Disability Rights,

Here is the abstract:    

The social model of disability teaches that it is society’s treatment of impairments, not the impairments themselves, which limit people. But this model permits two different approaches to civil rights coverage: protect only some (the “minority group” approach) and protect all (the “universal” approach). While some scholars suggest that the ADA’s protected class of people with “disabilities” constituted an abandonment of the universal approach to coverage, this Article argues that the ADA’s three-pronged definition of “disability” embodied a tension between the minority group approach (in its first and second prongs) and the universal approach (in its “regarded as” prong). Although the minority group approach ultimately won out in the courts, that victory was not the result of a deliberate decision on the part of disability rights advocates to subordinate the universal approach.

The ADA Amendments Act of 2008 – the product of negotiations between the business community and disability rights advocates – resolves this tension and brings coherence to the ADA’s definition of disability by providing (nearly) universal nondiscrimination protection under the “regarded as” prong, and by extending reasonable accommodations under the first and second prongs to a broader but not unlimited group of people whose impairments are stigmatized.

The resolution of this tension matters for the ADA and for disability rights more generally. The new “regarded as” prong represents a bold step forward for the social model of disability by acknowledging that any one of us may be subjected to discrimination based on an impairment and, for that reason, (nearly) all of us should be protected. Likewise, the ADAAA greatly dilutes the limitation required under the first and second prongs and limits its relevance to reasonable accommodations only, thereby elaborating on what it means to be stigmatized, and ensuring reasonable accommodations to those who are.

The ADAAA is not the cure-all that many disability rights advocates had hoped for. But by reorienting our conception of “disability,” the ADAAA changes how we think about ourselves, and, ultimately, how we treat – and ought to treat – each other.

This is an interesting and insightful article, partly because Kevin had the privilege of working on the ADAAA legislation as a clinical teaching fellow for Chai Feldblum in Georgetown Law’s Federal Legislation Clinic. I have read the piece and believe it offers original insights on how the newly amended ADA could make the disability law more responsive for disabled workers.


July 23, 2010 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

NLRB Wins Combined-Unit Case

Flra The D.C. Circuit has just held, in NLRB v. FLRA, that the FLRA improperly granted the NLRBU's request to combine its Board- and General Counsel-side units.  I haven't had time for more that a glance at the opinion, but the court appears to have fully agreed with the NLRB's argument that Section 3(d)'s grant of independence to the GC made the combined units improper, because the GC and Board would have to negotiate labor relations together.

This comes as a surprise to me, as I thought the NLRB's argument was weak, especially given a long history of joint GC and Board labor negotiations.  But the court seems to have relied more on the argument that no matter the practicalities, requiring such negotiations violates Section 3(d).  Somewhere, former GC Meisburg is smiling given all the criticism he got, including from me, for pursuing this issue.

Hat Tip:  Dennis Walsh


July 23, 2010 in Labor Law | Permalink | Comments (0) | TrackBack (0)

There's Still Time to Register

StlI've gotten a few semi-panicked phone calls in the past few days, so I thought I'd send out this reassurance and general reminder. Although the Fifth Annual Colloquium on Recent Labor and Employment Law Scholarship in St. Louis is just around the corner (September 24-25), registration is still open until mid-August. Let us know if you have a special concern--we'll try to accommodate requests for dates and times on a first-come, first-served basis.

We have reserved a room rate of $113 per night at the Parkway Hotel4550 Forest Park Avenue, St. Louis, MO 63108, conveniently located just over a block from the MetroLink and between Washington University and St. Louis University. The hotel is also close to many restaurants in the Central West End neighborhood and right next to Forest Park. To make your reservation, click here. The rate won't be guaranteed after August 23, although it still might be available, so make reservations early.

If you need more information on how to get to St. Louis, Lambert-St. Louis International Airport is easy to get to from most parts of the country, and you can see how to get to the hotel from the airport here. Amtrak also serves St. Louis, and it's especially convenient if you're coming from Chicago or Kansas City (or someplace that links to one of those cities). Getting around in St. Louis is also pretty easy, either with cabs or, especially between the airport, hotel, and Wash. U., using the light rail system

So, don't forget to register!


July 23, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, July 22, 2010

Secunda Reviews Estlund on Workplace Governance

Secunda Paul yesterday [two days ago?  The time difference is messing with my head!] posted on Cindy Estlund's Return to Governance chapter in the Oxford Handbook of Governance.  Paul noted that chapter is part and parcel of a larger project Cindy has been working on, which includes her new book, Regoverning the Workplace: From Self-Regulation to Co-Regulation.  

Paul has just posted on SSRN his review (forthcoming ILR Rev.) of Cincy's book: The Perils of Procedurally Regulating Self-Regulation (Reviewing Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation.  Here's the abstract of Paul's book review:

In Regoverning the Workplace, Cindy Estlund embraces “regulated self-regulation” in the workplace or “co-regulation.” This is a distinctly proceduralist spin on New Governance theory. By proceduralist, I mean an approach that emphasizes the existence of procedural devices to mitigate employer unfairness in the workplace. Specifically, Estlund argues for a system of workplace governance in which corporate self-governance is tempered through use of two procedural mechanisms: (1) inside, non-union employee representation and (2) independent outside monitors. Through these devices, Estlund hopes to foster employer-employee collaborations outside of traditional unions and bring a substantial employee voice back into the workplace.

History, however, has shown repeatedly that limitless employer power, constrained only by market forces and reputational costs, leads to the worst forms of employer opportunistic behaviors and employee abuse. Although Estlund seeks to apply institutional checks against disingenuous attempts at corporate compliance by employers, I remain unconvinced that employees can either participate meaningfully in employer self-regulation through some form of non-union collective representation or through utilizing independent, outside monitors. Even in these days of limited union density in the private sector, independent unions still remain the best and only effective counterweight against absolute employer domination of the workplace. To hope that employers will see the business, legal, or moral case for co-regulation, and voluntarily reform their sharp practices toward employees, is to believe that employers will start acting ahistorically.

On the issue of whether reputation costs suffice to deter employer misconduct, see Sam Estreicher's recent essay Employer Reputation at Work.


July 22, 2010 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Waiving Arbitration

New Image Numerous Supreme Court decisions make clear that mandatory arbitration will continue to be the norm in many employment settings.  That makes even more important the question of waiver of the right to arbitrate, especially implied waiver by conduct.  A few recent circuit decisions have addressed the question, and one aspect, at least,seems easy: McNamara v. Yellow Transportation, Inc., 570 F.3d 950 (8th Cir. 2009), held that an employer’s failure to move for arbitration during the EEOC investigation that preceded plaintiff’s lawsuit did not constitute waiver of its right to arbitrate.

But when suit is brought, the situation changes. Presumably, the plaintiff waives its right to arbitration, more or less expressly, by filing a complaint.  But when does waiver occur for the defendant if, instead of moving immediately for a stay and to compel arbitration, it proceeds to litigate in court?  In National Union Fire Insurance Co. v. NCR Corp., 2010 U.S. App. LEXIS 9358, at *2-3 (11th Cir. 2010, May 7, 2010), the Second Circuit held that right to arbitrate had been waived. It looked to three factors: (1) the length of time between the start of the litigation and the request for arbitration, (2) the extent of litigation that had already taken place, and (3) prejudice to the other party. In the case itself, the factors yielded an easy answer: a three-year delay; extensive discovery and motion practice, including motions for summary judgment; and prejudice to the plaintiff due to expense, delay, and unfair advantage gained from discovery methods that would not have been available in arbitration proceedings.  "Repeated, intentional invocation of the judicial process” by the petitioner served as a waiver to petitioner’s right to arbitrate.

By contrast, in Hill v. Ricoh Americas Corp., the Tenth Circuit held that an employer had not waived its right to arbitrate, when the litigation continued for merely five months and the discovery was minimal. 603 F.3d 766 (10th Cir. 2010). Hill looked to a set of factors that are more specific than those listed by National Union Fire Insurance but which reflect the same concerns. A scattering of other precedents show variations on the theme. See Khan v. Global Serv., Ltd., 521 F.3d 421, 425 (D.C. Cir. 2008) (no proof of prejudice necessary for waiver).

As in National Union Fire Insurance, motions on the merits by the party seeking arbitration seem to cut heavily in favor of waiver. Hooper v. Advance Am., 589 F.3d 917, 921 (8th Cir. 2009) (12(b)(6) motion  justified finding of waiver even though  the motion to compel arbitration was filed only four and a half months later); Khan, supra (a motion for summary judgment waived the filing party’s right to arbitrate, even though a motion to compel arbitration was filed in the alternative).

And in Nino v. Jewelry Exchange Inc., 2010 U.S. App. LEXIS 12173, at * 41, *45-46 (3d Cir. June 15, 2010), the court found waiver in part because of the strain put on the judicial system, even though no dispositive motion was made and the employer asserted arbitration as an affirmative defense in its answer. During the fifteen months it took the employer to move for arbitration, the employee was forced to file three motions to compel discovery, and the employer participated in ten pretrial conferences without mentioning arbitration. 

By the way, in the light of recent Supreme Court decisions, one might wonder who decides whether there’s been a waiver. In all the cases cited, the court decided, without referring the question to the arbitrator despite the fact that, by hypothesis, there had been an agreement to arbitrate. Perhaps “waiver” is the wrong word. If the question is viewed from a contract perspective, maybe it should be framed as whether an agreement to arbitrate has been superseded by a later (if tacit) agreement to litigate.

Thanks to Temi Kolarova for her help with this.


July 22, 2010 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 21, 2010

NLRB Inspector General Backs Becker's Recusal Decisions

Becker As we noted earlier, new NLRB Member Craig Becker had rejected several motions to recuse himself.  This spurred Republican Rep. Issa to ask for the NLRB Inspector General to review Becker's participation in a similar case.  The IG's report is now in (courtesy of BNA), which finds that Becker acted appropriately.

The IG concluded that Becker violated neither his ethics pledge, government ethics rules, or the President's Ethics Pledge.  This conclusion was based on the distinction that Becker has been making all along:  there is a significant difference between the International SEIU and local SEIUs.  Because Becker never gave assistance to any of the local SEIUs in the cases at issue, his refusal to recuse himself was appropriate.  Not a surprising result, but Becker is no doubt happy to have it official.


July 21, 2010 in Labor Law | Permalink | Comments (5) | TrackBack (0)

Estlund on A Return to Governance in the Law of the Workplace (and the Question of Worker Participation)

Estlund Cynthia L. Estlund (NYU Law) has posted a new piece entitled: Return to Governance in the Law of the Workplace (and the Question of Worker Participation).  It will appear in the OXFORD HANDBOOK OF GOVERNANCE, David Levi-Faur, ed., Oxford University Press, 2011.

Here is the abstract:    

Governance-based strategies of regulation, which seek to channel regulatory resources inside regulated entities, often with the help of non-state actors, toward the accomplishment of public objectives, are supplanting “command-and-control” strategies across many areas of regulation in much of the world. But governance-based regulatory strategies are not especially new in the labor field. Indeed, collective representation and bargaining in the workplace within a publicly administered legal framework – let us call it “Old Governance” – has many features associated with “New Governance.” In the U.S., which is the main focus of this article, the decline of Old Governance has coincided with the rise of new forms of governance-based workplace regulation, or “regulated self-regulation.” But the latter defy key prescriptions of New Governance theory, in which “good governance” means participatory governance; for they have mostly failed to incorporate any organized, collective voice for affected workers. Labor unions might supply that voice for some workers, but are unlikely to do so for the large majority of workers who need representation (for reasons that would be only partly addressed by labor law reform). Yet the labor unions’ attachment to collective bargaining and the goal of labor law reform, coupled with abiding employer resistance to any form of robust worker representation, has inhibited exploration of alternative forms of representation. The institutions and habits of Old Governance may thus be impeding the emergence of participatory forms of New Governance in the workplace.

This Chapter is part and parcel of a larger project Cindy has been working on, which includes her new book, Regoverning the Workplace: From Self-Regulation to Co-Regulation.  I have had the pleasure to the read that book and recently wrote a book review for the Cornell Industrial Labor Relations Review. 

Although I have many concerns about the various new governance approaches to workplace issues, Estlund should be congratulated for writing an important, thought-provoking piece that makes many contributions to the goal of workplace fairness. 


July 21, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 20, 2010

Ee Wins $1M in Sexual Orientation Discrimination Suit

Press_logo The Portland Press Herald (Maine) reports that jury has awarded a local man more than $1 million in damages in his refusal-to-promote sexual orientation discrimination lawsuit. 

Apparently, all the managers in a particular department of Express Jet Airlines were gay men.  A group of women applied for a managerial position but were turned down.  They then complained of sex discrimination -- that only gay men could be promoted to managers.  The next opening went to a "real man" (a company executive's words) who subsequently made disparaging comments about gays.  The plaintiff had applied for the position but did not get it.  He sued on the theory that the company wanted the job to go to anybody but a gay man.  

Hat tips to Jen Clemons and to Jotting by an Employer's Lawyer.


July 20, 2010 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Arthurs on the Globalization of Labor Law

Arthurs Harry W. Arthurs (York - Osgoode Hall) has just posted on SSRN his article (forthcoming Stanford Law & Policy Review) Extraterritoriality by Other Means: How Labor Law Sneaks Across Borders, Conquers Minds, and Controls Workplaces Abroad.  Here's the abstract:

This Article challenges the state-centered description of labor law and impoverished view of extraterritoriality. It suggests that transnational flows of technology and capital, goods and services, and ideas and information have brought in their wake changes in political economy and social relations that have transformed regimes of public and workplace governance in all countries. It proposes that the extraterritoriality doctrine operates, if at all, only in the formal sense of not allowing one state to overtly project its law into the territory of another. But extraterritoriality does little to prevent the rules governing employment relations in one country from taking root elsewhere, from shaping foreign labor market norms, institutions, and practices, and from being reproduced, in their original or mutant forms, in foreign systems of labor law. The result is the extraterritorial projection “by other means” of labor law and policy - a form of extraterritoriality that has the potential to enhance as well as undermine labor standards in global enterprises.

I think Harry is absolutely right.  The globalization of commerce and of legal ideas enables countries to "shop" in a global marketplace for the best labor/employment laws and policies.  On the other hand, it also facilitates a race to the bottom.


July 20, 2010 in International & Comparative L.E.L., Labor/Employment History, Scholarship | Permalink | Comments (1) | TrackBack (0)

McLain: Evidentiary Issues in Employment Discrimination Cases

Mclain Lynn McLain (Baltimore) has just posted on SSRN her paper Selected Salient Evidentiary Issues in Employment Discrimination Cases.  Here's the abstract:

This short paper was prepared as a handout for a presentation given for the ALI-ABA and Georgetown CLS, at Georgetown University Law Center. The major sections of the paper are as follows: Significant Relevance for a Nonhearsay Purpose Avoids the Exclusionary Hearsay Rule; “Me, Too,” “He‟s Done It Before,” “Not Me”: Evidence of Character and of Other Acts; Chart: Character Evidence Rules Road Map; Other Sexual Conduct of Plaintiff; Rulings as to Waiver of Attorney-Client Privilege.

This is a six-page "cheat sheet", in outline form, of evidentiary issues that frequently arise in employment discrimination cases.  It's a nice resource for trial lawyers.


July 20, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)


New Image Poring over comments on a proposed EEOC rule might not seem like the best way to spend a summer vacation, but, fortunately, I have research assistants who actually seem to like this kind of thing. The proposed rule in question is the Commission's draft of a regulation on the meaning of "reasonable factors other than age" in the wake of Meacham. And the comment period has closed, although a final rule is not expected until next year.

As might be expected, many of the comments break down on familiar lines, with the employer-side warning about the end of capitalism as we know it should the rule be adopted and employee-side commentators finding it generally pretty good but susceptible to a bit of tweaking. On the employer's side. the Chamber of Commerce, for example, finds the rule inconsistent with the Supreme Court cases and beyond the EEOC's power.

As for substance, the CoC is beside itself with respect to the EEOC's use of tort standards of reasonableness (it's "an open invitation to the courts to act as 'super-personnel departments'").  But, if you're going to use a tort approach, it seems quite natural to look to what other employers are doing as one factor (although even tort law doesn't find that necessarily outcome determinative).  Oddly enough, some of the employee-side commentators are also concerned about such a thrust for fear that it will entrench current practices.

All of which raises the question of what "reasonable" should mean if industry practice is not a guide. The Chamber seems to think that the question should be whether the employer is pursing its profit-making objectives in a rational way.  This may be on a par with constitutional rational basis review, and we know what that means. In any event, it hardly seems worth passing a statute to impose such a minimal obligation on American workplaces.

As for employee-side objections to reference to industry practice, it's difficult to see why what other employers are doing isn't at least relevant to whether it's "reasonable." And Smith seems to envision RFOA as something less demanding that business necessity (at least the 1991 CRA version of business necessity under Title VII). 

While it's always perilous to predict the ultimate outcome of regulations, I would be surprised if the final version of the RFOA rule varied much from the proposal. But that doesn't mean that reviewing the comments wasn't useful -- it provides a pretty good a roadmap of the litigation strategies that will be employed when the agency rubber meets the court road.

Thanks to Kristin Herrick for her help on this.


July 20, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

California Moscone Act Declared Unconstitutional

Foods Co The California Court of Appeals (Third District) just issued a case that could be somewhat of a blockbuster if it holds up under appeal.  In Ralphs Grocery v. UFCW, the court held that the Moscone Act and a related statute were unconstitutional (the Moscone Act is a "little Norris-LaGuardia Act" that severely limits courts' ability to issue injunctions against labor activity).  Therein lies the rub, according to the court.  In the case, the union picketed and handed out fliers at the entrance of the employer's grocery store asking consumers to boycott the store.  The union refused the employer's demands to leave, after which the employer sought an injunction.  The trial court denied the injunction under state law requiring substantial and irreplaceable injury for an injunction against labor activity.

The court concluded that singling out labor activity for extra protection violated the First and Fourteenth Amendments of the U.S. Constitution.  The central issue was the conclusion that the store entrance was not a public forum under state law.  This took the case out of the Pruneyard line of cases that limits private property owners' ability to exclude speech on their property if it's so open that it's considered a public forum.  This is a key limit to the holding that follows, which only applies where the property in question is not a public forum.

In this circumstance, according to the court, property owners would normally be allowed to restrict speech.  However, the Moscone Act (and Labor Code 1138.1) prevents injunctions of labor speech and picketing in most cases.  The court held that this special treatment for labor speech was content-based speech regulation that should be reviewed under strict scrutiny--scrutiny that resulted in the holding that the statutes were unconstitutional.

The case could easily be overturned on appeal, but if not, it could be a big deal.  It's particularly interesting that the court ruled unconstitutional such an established statute as the Moscone Act, which was based on the even older Norris-LaGuardia Act (although the court noted the D.C. Circuit's similar holding on the Moscone Act in Waremart).  Perhaps not surprisingly, the court made no attempt to seriously address why there was a need to limit labor injunctions in the first place.

Stay tuned.

Hat Tip:  Kevin Kraham


July 19, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Arbitrating LEL Disputes in Cambodia

Pp I just returned to Kuala Lumpur, Malaysia from three days in Phnom Penh, Cambodia, where I spoke at Pannasastra University and met with folks at the Arbitration Council Foundation.  Folks at the Arbitration Council there are exploring the option of "privatizing" the arbitration of labor and employment disputes, much as it is in the U.S.  Their motive is not ideological, but practical.  The Arbitration Council has successfully resolved employment disputes for the last several years (most awards are made within 15 days of the arbitrators receiving the submission!), and is vastly preferable to the court system which is at best slow and is often corrupt.  However, funding for the Council depends entirely on external grants, those grants run dry in 2012, and the government does not have the funds to turn the Arbitration Council into a public entity.  The only way to keep arbitration in the picture is to find a way for the parties to pay for it.

Here's a typical street scene from Phnom Penh, where the motorbike drivers are absolutely nuts.


July 19, 2010 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: ABA JLEL (formerly "The Labor Lawyer")

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ABA Journal of Labor & Employment Law

Volume 25, Number 2 (2010)


  • Kenneth G. Dau-Schmidt & Todd Dvorak, Review of Labor and Employment Decisions from the United States Supreme Court's 2008-2009 Term, p.107.
  • Brendan D. Cummins and Nicole M. Blissenbach, The Law of the Land in Labor Arbitration: The Impact of 14 Penn Plaza LLC v. Pyett, p. 159.
  • Mark S. Mathison & Bryan M. Seiler, What 14 Penn Plaza LLC v. Pyett Means for Employers: Balancing Interests in a Landscape of Uncertainty, p. 173.
  • Michael Subit, A Plaintiffs' Employment Lawyer's Perspective on Ricci v. DeStefano, p. 199.
  • Barbara Jean D'Aquila, A Management Employment Lawyer's Perspective on Ricci v. DeStefano, p. 213.
  • Charles D. Coleman, Is Mandatory Employment Arbitration Living Up to Its Expectations? A View from the Employer's Perspective, p. 227.
  • Jeffrey Sack, U.S. and Canadian Labour Law: Significant Distinctions, p. 241.
  • Carmen R. Parcelli & Elizabeth A. Roma, Permissable, Protected, and Preferable: Intermittent Strikes Under the Railway Labor Act, p. 259.
  • David Aron, 'Internal' Business Practices?: The Limits of Whisteblower Protection for Employees Who Oppose or Expose Fraud in the Private Sector, p. 277.

July 19, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)