Tuesday, August 31, 2010

The Obama NLRB Starts Flexing Its Muscles

NLRB Some of the last cases in which Member Schaumber took part in are now coming out, and there's some interesting ones.  Here are a few notables:

UGL-UNNICO -- granting review of election decision as means to reconsider successor bar doctrine (i.e., the Board is getting ready to reverse MV Transportation's rebuttable presumption of majority to support and go back to its St. Elizabeth's Manor rule, which had a approximately six-month bar).  The Board also invited briefs on the issue.  Check out Schaumber's scathing dissent, which indicates amnesia affecting his memory of September 2007 among other things.

Independence Residences -- the Board addressed the effect NY State's law against an employer using state funds to encourage or discourage union activity on an election.  Assuming that the state law is preempted, the majority concluded that it did not justify overturning the election.  This was based on the ability to use funds to oppose a union and--the most convincing to my mind--the fact that concluding otherwise would be grounds for invalidating all elections in NY (at least the ones that unions won) as long as the state law was in force.  Here's the Board's news release on the case.

Lamons Gasket -- requesting evidence of parties' experience with Dana Corp. (in which the Bush NLRB restricted the voluntary recognition bar).  The bulk of the opinion is Schaumber and Hayes' defense of Dana on the merits, and Liebman's response in seeking more info (although her opposition to Dana is no secret).

What I find particularly interesting is the degree to which that Schaumber in particular objects to even the potential of reversing Board precedent.  The flip-flopping is a well-known aspect of Board law and both sides have always screamed some about it when they're in the minority.  But in some cases, the Bush Board reversed several decades of unchanged Board law, so his objection to flipping cases only a few years old sounds especially hollow.

Hat Tip:  Patrick Kavanaugh


August 31, 2010 in Labor Law | Permalink | Comments (5) | TrackBack (0)

Monday, August 30, 2010

Aspiring Law Professors Conference at Arizona State Law

Conf Zak Kramer (Arizona State) writes to tell us that Arizona State is once again hosting its Aspiring Law Professors Conference for fellows, VAPs, clerks, and other law professor hopefuls. 

Here are some detail from the conference flyer:

Designed for Visiting Assistant Professors, Fellows and Clerks who plan to go on the academic teaching market, but valuable to anyone considering a move to teaching.

• Learn to succeed in the entry-level law teaching market
• Obtain an insider’s perspective on the appointments process from faculty who’ve been there
• Conduct a mock interview or mock job talk and gain feedback from law professors

Speakers include: featured speaker Dan Filler (Drexel) and Brannon Denning (Samford), Carissa Hessick, and Teneille Brown.


August 30, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Coke Cancels Health Insurance of Striking Workers; Workers Bring ERISA Suit

Coke About 500 Coca-Cola employees went on strike last Monday over charges of employee surveillance, intimidation, and bad faith bargaining. A day later, Coke responded by cutting off the strikers' health care coverage.  Coke's rationale, I assume, is that "benefits, like salary, are what you get for working, and if you're not working, we don't have to pay you."  The strikers, however, are calling foul:

"My wife had a kidney transplant two years ago. When Coke cancelled our health care, they cut off her anti-rejection medication.  This shows me that Coke doesn't care about its employees," said Bill Mauhl, a 34-year Coke employee, who works in the company's production facility in Bellevue.

Five of the strikers have filed a class-action ERISA suit against Coke.

Readers are invited to weigh in with comments.

Hat tip: Carol Furnish.  For more, see Law.com and the Teamsters press release.


August 30, 2010 in Labor and Employment News, Labor Law, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Recently Published Scholarship


  • Meredith M. Render, Gender Rules, 22 Yale J. L. & Feminism 133 (2010).
  • Michael G. Heyman, The Time Has Come for the United States to Ratify the Convention on the Elimination of All Forms of Discrimination Against Women, 9 Wash. U. Global Studies L. Rev. 195 (2010).
  • Paul R. Klein, The ADA Amendments Act of 2008: The Pendulum Swings Back, 60 Case Western Reserve L. Rev. 467 (2010).
  • George Steven Swan, The Law and Economics of ERISA and Fiduciary Duty, 36 Ohio N. U.L.
    Rev. 403 (2010).
  • Allie Robbins, Captive Audience Meetings: Employer Speech v. Employee Choice, 36 Ohio N. U.L.
    Rev. 591 (2010).

August 30, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Head Scratcher

New Image In a recent opinion out of the D.C. Circuit,Aliotta v. Bair,  the court found inadequate the plaintiff’s statistical showing of age impact during a reduction in force by the FDIC.  The plaintiffs argued both systemic disparate treatment and disparate impact, focusing on a series of downsizings. Key to their claim was the employing agency’s actions in 2004-05.  As is typical in large scale reductions in force, the FDIC offered a buy-out prior to any involuntary terminations; a number of employees accepted, in the process waiving their right to sue. When the RIF stage was reached, there were “53 involuntary separations, 7 retirements in lieu of involuntary separation, and 3 resignations in lieu of involuntary separation.” Analyzing this group, the defendant’s expert found the average age of the relevant unit to have actually increased as a result of the RIF. Obviously, without an age impact, neither systemic claim could be made out.

Needless to say, plaintiff’s expert took a different view. Instead of looking merely at the 63 individuals who lost their jobs in the last round, he included employees affected by both the pre-RIF buyouts and the actual RIF. The theory was that this was the group targeted by the agency, and, looking at this group, relevant unit employees above the age of 50 were separated at 139.8% the rate of under-50 employees.  In short, there was an age impact if one group was used, but not if another one was, and the court found that plaintiffs looked to the wrong group.

The opinion is confused in a number of respects, and one might question both the employer’s focus on average age and  the plaintiffs’ focus on only 50+ workers.  But my present concern is with the court’s rejection of plaintiff’s statistical showing:

Both class member [treatment and impact] claims are premised almost entirely upon the statistical findings of their expert, Dr. Seberhagen. In order for class members to show a disparate effect on older workers, they must combine the effects of the involuntary terminations resulting from the 2005 RIF with the effects of the voluntary retirements from the 2004-05 buyout offers. But, as the district court properly concluded, class members cannot include as evidence of discrimination the statistics of a group of employees who, because they voluntarily accepted a buyout, suffered no adverse employment action. Without the inclusion of the voluntary terminations, class members' claims of discrimination collapse. The statistical impact of the involuntary RIF terminations reveals a disparate effect on younger, not older, employees.

(citations omitted).

But surely, this has to be incorrect as to disparate treatment. It is true that the class can’t recover for putative members who have released their claims. But the point of statistical proof for systemic treatment claims is that the employer targeted older workers because of their age. The fact that some members of this group might have accepted a buyout wouldn’t change the reality (if there were one) that older workers were targeted. 

Having said that, I’m not sure the court was ultimately wrong. Most obviously, I don’t assume that a statistically significant disproportionate impact of a downsizing plan necessarily shows intent to discriminate (the employer offered non-age reasons for its program).  But more critically for my present point, the appropriate comparison group from which to infer intent to discriminate consists of those who are targeted by a downsizing plan, not merely those who are formally laid off at the end of the process. After all, if employees were told that those over 50 would be fired if they did not accept retirement, we would not find it much of a defense that most chose a severance package (and thereby waived their right to sue).

Why the court might be right in result, however (if incorrect in focusing on whether there was an adverse employment action) is that the buy-out wasn’t offered merely to those who accepted it. It was offered to a bigger group, but was apparently more attractive to workers over 50. So maybe neither the defendant nor the plaintiffs had the right comparison group for disparate treament. This is all complicated by a number of factors, including the possibility that constructing a scheme that is more attractive to older workers might itself show age bias, but may be shielded by the ADA’s approval of early retirement incentives.

As for disparate impact, the question at first glance seems easier.  Wards Cove (presumably applicable to the ADEA) seems to require that plaintiffs’ identify the part of the process that caused the impact; proof of bottom line impact is not enough.  So viewed, the people affected by the buy-out per se have no claim: their may have been an age-based adverse affect, but they waived their rights. And the people involuntarily laid off can’t show an age impact from that part of the process. Or could it be argued that, since the whole process was designed to result in a smaller workforce, the two parts can't be “separated for analysis” (at least for those riffed)? Under this view, we should look at the bottom line (assuming that the "incapable of separation for analysis" prong of the 1991 CRA were to apply to the ADEA, perhaps as an interpretation of Wards Cove).

Some of these problems can be hypothesized away if we assume that the question arises under Title VII for, say, sex discrimination. In that setting, we would have to address the proper group for both systemic disparate treatment and disparate impact without the ADEA's complications. At least from a disparate treatment perspective, it seems that the effects of the entire scheme on women should be probative of whether there was intent to reduce the number of women (even if, as I suggested above, there might be other explanations for such a sex--skewed results). 

Thanks to Steve Willborn for correcting me on a number of points in a prior version of this although I doubt he fully endorses even this version!


August 30, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Secunda Continues to Search for Pickering Rights

Secunda Our own Paul Secunda (Marquette) has consistently argued (see articles here and here) that the free-speech rights of public employees are being significantly eroded.  In an article just posted on SSRN, Paul puts that argument into a broader constitutional perspective in Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.  Here's the abstract:    

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the nature of the subsidy argument in the government as employment context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and may regulate it willy-nilly. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standards, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to assume the role of the vanguard of the citizenry, protecting fellow citizens from government fraud, waste, and abuse.


August 30, 2010 in Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

A Kolben 2-Fer

Kolben Kevin Kolben (Rutgers Business School), one of the foremost authorities on the effect of labor provisions in trade agreements, has just posted on SSRN a pair of articles.  The first is A Development Approach to Trade and Labor Regimes, forthcoming 45 Wake Forest L. Rev.  Here's the abstract:
While the World Trade Organization has effectively rejected the linkage of labor and trade at the multilateral level, labor provisions have become a standard component of U.S. bilateral and regional free trade agreements. How these provisions ought to be designed, however, continues to be a subject of intense debate.This Article argues that trade and labor regimes should be oriented toward catalyzing and reinforcing the development functions of labor regulation, and toward creating institutions that further labor-development objectives. These objectives include expanding worker capabilities and promoting democracy and citizenship both in the workplace and in the nation-state. My goals in this Article, however, are broader than promoting a particular approach to trade and labor regimes. I also seek to place the subject of labor regulation, both domestic and transnational, more squarely into the development discourse, and conversely place development into the labor regulation discourse.
Kevin's second article is The WTO Distraction, forthcoming Stanford Law & Policy Rev.  Here's the abstract:
This Article argues that the desire and efforts to incorporate labor standards into the WTO framework are misplaced. While this argument has often been made on economic grounds by scholars who oppose linkage more generally, this Article puts forth legal, political, and institutional arguments that suggest that incorporating labor issues into the WTO regime is both unlikely and in fact less desirable than doing so in other trade contexts. A more fruitful and effective locus for linkage, it is thus argued, is bilateral and regionally based trade and labor regimes that a) are grounded in development objectives, and that b) integrate non-state, private regulatory regimes that harness the power of non-state actors to effectively regulate labor along global supply chains.

August 30, 2010 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, August 29, 2010

Call for LEL Papers: Rutgers Law Record

Rutgers The Rutgers Law Record is the Internet Journal of Rutgers School of Law - Newark.  In connection with its goal of facilitating quick dissemination of the legal community's initial impressions of emerging legal issues, the Record publishes online symposiums on a variety of topics each year. This coming Fall, the Rutgers Law Record will be publishing an issue dedicated to emerging and problematic issues in labor and employment law.

Here's the call:

We would like to include articles speaking to issues facing management and labor in the area of, enforcement actions under section 10J of the National Labor Relations Act, the impact of political ideology on the National Labor Relations Board, whether or not the National Labor Relations Act has failed to encourage collective bargaining, the Patient Protection and Affordable Care Act’s impact on management/labor relations, and other pertinent issues affecting the workplace.

For information on Law Record submission guidelines, we invite you to visit our website, www.lawrecord.com. Please note that the Law Record publishes articles that are shorter in length than most other legal journals.  We generally seek articles between 15 and 30 pages double-spaced, but will certainly consider longer articles as well.


August 29, 2010 in Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 27, 2010

Clark on Compound Discrimination Claims After Iqbal and Gross

Clarke Brian Clarke (Washington & Lee) has just posted on SSRN his new article, "Grossly Restricted Pleading: How Twombly/Iqbal, Gross and the Assumption of Truth Rule Could Kill Compound Employment Discrimination Claim," which will appear in the Utah Law Review. The abstract:

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required “but for” causation, meaning that only where “age was the reason” for the adverse employment action could a plaintiff prevail. The lower federal courts quickly began applying Gross to claims under other anti-discrimination statutes, notably the Americans with Disabilities Act and 42 U.S.C. § 1983, that, like the ADEA, prohibit discrimination “because” of a protected characteristic. Other anti-discrimination and anti-retaliation statutes – the Genetic Information Nondiscrimination Act, the Family Medical Leave Act, the Fair Labor Standards Act – also prohibit discrimination “because” of a protected characteristic and are subject to Gross’s requirement of but-for causation.

The combination of the Twombly/Iqbal requirement that a plaintiff plead facts sufficient to render each claim in her complaint facially plausible, Iqbal’s specific requirement that a plaintiff plead facts sufficient to make an inference of discriminatory intent facially plausible, the well established “assumption of truth” rule, and the but-for causation requirement articulated in Gross creates a significant problem in situations where an employment discrimination plaintiff pleads “compound employment discrimination claims.” Compound employment discrimination claims are claims in which the plaintiff alleges that her employer discriminated against her based on two or more protected categories protected by two or more separate employment discrimination statutes, such as age (protected by the ADEA) and race (protected by Title VII of the Civil Rights Act of 1964). In compound employment discrimination claims, the facts pled to satisfy Twombly/Iqbal, accepted as true, likely render any claim requiring but-for causation facially implausible.

This paper analyzes the complex interaction of Twombly/Iqbal, traditional bases for dismissal under Rule 12(b)(6), the “assumption of truth” rule, Rule 8(d), and Gross and the effect of their combination on compound employment discrimination claims. Additionally, in order to correct the iniquitous results of this combination, this paper sets forth a new proposal for amending the Federal Rules of Civil Procedure to ensure that courts construe pleadings in employment discrimination cases in accordance with the Congressional intent embodied in the ADEA and the other anti-discrimination statutes impacted by Gross.

Looks like an interesting take on the intersection of these already interesting cases.


August 27, 2010 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Schaumber Leaves the NLRB

NLRB Member (and former Chairman) Peter Schaumber's term on the NLRB expires today.  According to the NLRB press release, Schaumber will take some time off before returning to work in some unknown (at least to the public) capacity.

This means, of course, that the Board is one again below full strength.  (Although four members is sure a lot better than only two.)  It's unlikely that we'll see a nomination, much less confirmation, of a replacement anytime soon.  The White House has no incentive to add another Republican member given the 3-1 Democratic edge currently on the Board.  What might give it an incentive is if Republicans gave something the White House wants--like, say, a confirmation of Craig Becker.  Because that's no going to happen, I foresee a four-member Board for quite a while.

In the meantime, watch out for a release of previous two-member Board decisions and perhaps some other cases of interest in the next week or so.  We'll try to identify any big ones, but please feel free to email me with any we have posted on yet.

Hat Tip:  Patrick Kavanagh


August 27, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Reverses Summary Judgment in Reasonable Accommodations Case

Sign As anyone who has read more than one or two ADA cases knows, the vast majority of litigation has focused on whether a person is a qualified individual with a disability--and more specifically, whether a major life activity is substantially impaired under the meaning of the statute. That is one reason for the ADA Amendments Act, loosening the definitions the courts had imposed on the ADA. In fact, there are still an awful lot of cases involving conduct engaged in before the amendments went into effect, so we're still in that world to some extent.  

Which is why it's refreshing to see a case that focuses on a different portion of the statute--the duty of reasonable accommodation. In EEOC v. UPS, the Ninth Circuit had to consider when an accommodation that an employer actually provided would be considered reasonable enough that it need not do more. And because reasonableness is usually a question of whether the employer has to provide something that is costly or difficult for the employer, this case is better framed as when a purported accommodation is actually an accommodation.

The employee in this case could not hear and had been born that way. His first and primary language was American Sign Language, which is not co-extensive with English. There are signs we have no English words for and words there are no signs for. As a result of this being his second language and a fundamentally different manner of communicating, the employee had limited capacity to read and write in English; he read and wrote at about a 4th grade level. There was no question that he could perform most of the duties of his job. The dispute arose about things connected to work outside of those primary duties: mandatory weekly and monthly meetings; training; and understanding policies and potential disciplinary actions.

The employee had requested an ASL interpreter to translate all of these thing, but UPS provided one only some of the time. Other times it relied on written communications that were either incomplete, not contemporaneous with the speaking, or written at a level above the employee's competency. When the employee stated that he didn't understand something in writing, UPS generally told him to look it up in a dictionary. When that didn't help, UPS provided nothing further. The Ninth Circuit found that at the very least there were contested facts about whether the attempted accommodations actually accommodated the employee and whether UPS even tried to explore accommodations in good faith. So the court reversed the district court's grant of summary judgment for UPS.

In the court's words, 

In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

Interestingly, UPS does not appear to have provided any reason for not employing an ASL interpreter--not even the obvious, that it was too expensive. It's possible that the company will raise that at trial on remand, but it would likely be better off settling this one.


August 27, 2010 in Disability, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Unionization of Air Freight Ground Employees - NLRA or RLA?

Upslogo FedEx_logo Thanks to Mark Weber (DePaul) for bringing to my attention this interesting piece from PBS's Need to Know program on "The Ground War Between Federal Express and UPS."

The article discusses a provision in pending airline legislation on the unionization of ground employees of UPS & FedEx and whether the National Labor Relations Ac (NLRA) or the Railway Labor Act (RLA) applies. 

A taste:

Last month, Congress passed a funding extension to the Federal Aviation Administration and imposed stricter training mandates on pilots, and required passengers to be notified when a flight was being operated by a smaller commuter carrier on behalf of another airline. These changes were designed to address safety issues that led to the crash of a Colgan Air flight near Buffalo, N.Y., in February 2009 that killed 50 people.

However, the bill that passed was significantly pared down from a larger overhaul that had been stalemated in part by a controversial 250-word provision which has erupted into a confusing public spat between shipping giants UPS and FedEx. The simmering conflict will now be postponed until after the August congressional recess.

The struggle centers on several sentences that would amend the arcanely named Railway Labor Act (RLA), which governs labor relations for airlines. The language essentially forces non-airline employees of FedEx Express, like truck drivers, to be governed by the National Labor Relations Board (NLRB). This would allow them to organize locally instead of nationally, as they can under the RLA. In other words, it would make it easier for employees of FedEx to unionize. (UPS is already heavily unionized and governed by the NLRB) . . . .

In June 2009, FedEx launched Brown Bailout, a website portraying the rule change as a “bailout” for UPS. The site includes testimonials from business that rely on overnight shipping, a blog and videos attempting to explain the issue with a poor man’s doppelganger of the UPS whiteboard guy (and The Postal Service soundtrack).

Ouch. FWIW, I agree with this statement: "It’s a matter of equal protection under the law that people doing the same work should be covered by the same set of labor laws and not one particular company exempted from that law."

Kudos to Mark Weber's son, Sam, who wrote a very clear piece on a very confusing, and not well understood, area of labor law.  Heck, I still can't always figure out when one or the other law applies!


August 27, 2010 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Why is the Public Suddenly So Down on Unions?

Unionyes The Center for American Progress Action Fund's American Worker Project asks this question  in an issue brief from this past month.

Here's a taste:

Americans have expressed generally positive attitudes toward unions for as long as pollsters have been asking, and for decades public approval of labor unions has hovered around 60 percent. But starting in 2009 public opinion toward labor unions dropped precipitously. Why?

Last summer less than half of Americans said they approved of labor unions. This is the first time this happened in the over 70 years the Gallup survey research group has asked. Just one year earlier nearly 60 percent of respondents approved of labor unions. Similarly, a 2010 Pew Center for the People and the Press survey found union favorability was at just 41 percent, while in 2007—the last time they asked the question—favorability was 58 percent. The Pew survey also found that the decline in support was widespread, falling for virtually every demographic and political group.

What happened? And what does this mean for the U.S. labor movement’s future given that membership is already at 30-year lows? The answer is largely that the public is angry about the weak economy and is blaming major economic institutions such as business, government, and organized labor. As a result, support for unions should improve when the economy gets back on track. Moreover, despite the drop in overall approval the public continues to value many of the functions unions perform—such as helping workers.

Granted this a rather rosy prediction by those who unabashedly support workers and the resurgence of the union movement, but I was struck by the simplicity of this take. I think it is much more speculative why more people have come to dislike unions, especially in the private sector. 

Other reasons why support of unions go down when unemployment rates rise include:

    a. Fear of Losing Job: “I will lose my job and not be able to find another one, especially in these difficult economic times.”

    b. The Blame Game:  "It is because of unions and their unreasonable demands for higher wages and benefits that American companies are losing jobs to global competition."

    c. We Need More Safety Nets: "Unions have shot themselves in the foot. Rather than working for safety net legislation like their European peers, unemployment means that those unemployed blame the unions for not helping them negotiate this difficult economic climate."

    d. Resentment of Unions: "When unemployment is high, the non-unionized working class resent unions for giving their members greater job security while they're left out in the cold."

In short, there are many reasons for union unpopularity among the public during hard economic times, but some of these reasons also suggest possible ways to put unions back on the right track.

Hat Tip: Monique Lillard


August 27, 2010 in Labor Law | Permalink | Comments (4) | TrackBack (0)

On Choosing Clients

Bad client Michael Maslanka, an employment law defense attorney in Dallas, writes in Work Matters about choosing clients:

The other night, I was having beers with a Houston plaintiff's lawyer who was in town for depositions. We talk about clients on whose cases we pass. Here is his test. He asks the following two questions, back to back: 1. What did the employer tell you was the reason for your termination (or whatever adverse employment action is at issue? 2. What do you believe the reason or reasons were? These two questions and the consistency (or its lack) in the answers pry out, he tells me, the truth. Here is my system. I recall two quotes before I talk to a potential client: 1. Salespeople say the best sale they make is often the sale they did not make. 2. Mark Twain admonished that it is easier to stay out than to get out. I was talking to a potential client about drafting a noncompete for the employees of his company. He said his employees loved him, so he did not see why he needed one. Sure, he went on, he threw things at them, but they all worked in a creative industry and that was to be expected. Pass on the questionable potential client; life is too short.


August 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Pendo on GINA

Pendo Elizabeth Pendo (Saint Louis U.) has just posted on SSRN her article (forthcoming Houston J. Health L. & Policy) Race, Sex and Genes at Work: Uncovering the Lessons of Norman-Bloodsaw.  Here's an excerpt from the abstract:

... In its legislative findings [of GINA], Congress identified the facts of the 1998 case Norman-Bloodsaw v. Lawrence Berkeley Laboratory as a key example of genetic discrimination in the workplace.  Norman-Bloodsaw was the first class action suit raising privacy and discrimination claims related to medical and genetic testing in the workplace. In this piece, I focus on the story behind the Norman-Bloodsaw case to contextualize some thoughts about the use of genetic information in the workplace after GINA and draw out the troubling connections between genetic information and classifications based on race and sex. Part I provides an overview of GINA, including the significant exceptions to the prohibition against employer acquisition of genetic information. In Part II, I uncover the story behind Norman-Bloodsaw, drawing upon the published opinions and briefs, as well as contemporary reports in the national and local media, and a variety of professional publications. In Part III, I highlight two important points that arise from the rich context of Norman-Bloodsaw that can guide the interpretation of GINA in the future: genetic testing of workers occurs and is likely to continue even after GINA, and the gathering and use of genetic information in the workplace is not neutral and often exacerbates long-standing patterns of discrimination based on race and sex.


August 27, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, August 26, 2010

Recently Published Scholarship: Public Interest Practice & Worker Organizing

Organize .

New York City Law Review

Public Interest Practice Session


  • Shirley Lung, Law & Organizing: An Introduction to the Public Interest Practice Section, p. 171.
  • Sebastian Amar & Guy Johnson, Here Comes the Neighborhood: Attorneys, Organizers, and Immigrants Advancing a Collaborative Vision of Justice, p. 173.
  • Nadia Marin-Molina & Jamie Vargas, Role of Legal Service in Workers' Organizing, p. 195.
  • E. Tammy Kim, Lawyers as Resource Allies in Workers' Struggles for Social Change, p. 213.

August 26, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Weight Discrimination at Hooters

Hooters The WSJ Law Blog has a story on a Michigan weight discrimination claim against a local Hooter's restaurant.  According to the complaint, which a judge has just allowed to proceed:

In a performance evaluation this earlier year, [the plaintiff] claims in her complaint, a restaurant manager advised her “to join a gym in order to lose weight and improve her looks so that she would fit better into the extra small-sized uniform.” She alleged she was put on a 30-day “weight probation” and resigned.

The official uniform for Hooters waitresses, she claims, comes in 3 sizes: extra extra small, extra small, or small.

The case falls under Michigan’s Elliott-Larsen Civil Rights Act, which has prohibited employment discrimination based on height and weight (among other factors) since 1976.  I'll admit that I didn't know that had been around that long.  I also wonder whether anyone has a list of all the states with height and weight discrimination laws--there can't be a lot.

Hat Tip: John Rodgers


August 26, 2010 in Employment Discrimination | Permalink | Comments (3) | TrackBack (0)

Recently Published Scholarship: Arbitration Symposium


Lewis & Clark Law Review
Volume 14, Number 3, Fall 2010

Symposium The Supreme Court and Arbitration

  • Edward Brunet, An Introduction to the Symposium, p. 821.
  • Margaret L. Moses, The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett, p. 825.
  • Sarah Rudolph Cole, Let the Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees' Statutory Discrimination Claims, p. 861.
  • Christopher R. Drahozal, Contracting Around Hall Street, p. 905.
  • Maureen A. Weston, The Other Avenues of Hall Street and Prospects for Judicial Review of Arbitral Awards, p. 929.
  • Aubrey L. Thomas, Nonsignatories in Arbitration: A Good-Faith Analysis, p. 953.


August 26, 2010 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Horton: Arbitration = Unconstitutional Delegation

Horton2 David Horton (Loyola Los Angeles) has just posted his article (forthcoming 86 NYU L. Rev. 2011 -- congrats, David!) Arbitration as Delegation.  Here's the abstract:

Hundreds of millions of consumer and employment contracts include mandatory arbitration clauses, class arbitration waivers, and other terms that modify the rules of litigation. These provisions ride the wake of the Supreme Court’s expansive interpretation of the Federal Arbitration Act (“FAA”). For decades, scholars have criticized the Court’s arbitration jurisprudence for distorting Congress’s wishes and ignoring the fact that companies use fine print dispute resolution provisions as a clandestine way to eliminate substantive rights. This Article claims that the Court’s reading of the statute suffers from a deeper, more fundamental flaw: it transforms the FAA into an unconstitutional delegation of legislative power. Article I, section 1 of the Constitution forbids Congress from conferring the right to make law upon private parties. As construed by the Court, that is exactly what the FAA does. Invoking the statute, firms have created a parallel system of civil procedure for consumer and employment cases.This widespread procedural rulemaking is especially troubling because it establishes a private regulatory regime in an area that Congress has already attempted to regulate. In light of these concerns, the Article proposes several ways that the Court can narrow the statute and thus assuage concerns about its constitutionality. 


August 26, 2010 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 25, 2010

Dukes v. Wal-Mart Cert. Petition

Wal-Mart Wal-Mart has just filed a cert. petition with the U.S. Supreme Court in Dukes v. Wal-Mart.  As we've been reporting on frequently (there's too many posts to link to, but you can search for "Dukes" to the right of this post for the full lineup), this is the largest employment discrimination case in history, covering over 1.5 million current and former women employees.  Recently, the Ninth Circuit, in a 6-5 en banc decision, affirmed certification of this class of plaintiffs, and that certification is the issue being raised before the Supreme Court.  Only if this certification stands will the discrimination issues be resolved.

My prediction?  The Supreme Court will grant cert. and reverse the Ninth Circuit.  There's a solid five justices who have repeatedly shown that they really don't like big plaintiff classes or employment discrimination cases in general.  So this one seems like a natural for reversal.


August 25, 2010 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)