Thursday, September 30, 2010
Linda Kay Sims & Rick Bales, Much Ado About Nothing: The Future of Manifest Disregard after Hall Street, 62 South Carolina Law Review (2011).
Drew Willis & Rick Bales, The Not so “Perfectly Clear Successor” Exception, __ Seton Hall Circuit Review (forthcoming 2010).
Melanie A. Goff & Rick Bales, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, __ Penn State Law Review (forthcoming 2011).
Diana Link & Rick Bales, Waiving Rights Goodbye: Class Action Waivers in Arbitration Agreements after Stolt-Nielsen V. Animalfeeds International, 11 Pepperdine Dispute Resolution Law Journal (forthcoming 2011).
Congratulations to Rick and his co-authors, and thanks for making the rest of us look bad.
The 11th Circuit recently issued Mulhall v. UNITE HERE, a case addressing whether an anti-union employee has standing to file a Section 302 challenge to a memorandum of understanding between a union and employer. The MOA essentially involved an agreement by the union to support a ballot measure supported by the employer in exchange for the employer's neutrality agreement and promise to voluntarily recognize the union if it obtains a card check majority. The union raised standing objections, which the district agreed with but the 11th Cir. reversed. The court found a "probabilistic harm" to the employees' associational First Amendment interest to work in a nonunion workplace, and rejected the union's objections under the prudential standing doctrine and ripeness.
No matter the standing issue, the employee still has a tough road. Courts have consistently held that these type of agreements are not prohibited by Section 302 (see here and here), so barring some change in that trend, the case is a loser on the merits.
Hat Tip: Dennis Walsh
Marty Malin (Chicago-Kent) writes:
I am pleased to announce the 2010-11 Louis Jackson Memorial National Law Students Writing Competition in Employment and Labor Law. Hard copies of the announcement will be going out in another week or two – as soon as we receive the mailing labels from AALS.
As in prior years, the competition is open to law students who have taken or are taking at least one course in labor or employment law, with that term defined very liberally to include courses in employee benefits, workers’ compensation, etc. There is one first place award of $3,000 and two second place awards of $1,000 each. The competition is sponsored and funded by Jackson Lewis in memory of Mr. Jackson, one of the founders of the firm. All entries are blind judged by a national panel of law professors. (Anyone interested in serving as a judge in future years should contact me.) Neither Jackson Lewis nor Chicago-Kent College of Law play any role in evaluating the entries or selecting the winners.
Here are the competition rules.
Wednesday, September 29, 2010
I can't make this stuff up. From CNN and Anderson Cooper (with video):
For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.
Using the online moniker "Concerned Michigan Alumnus," Shirvell launched his blog in late April.
"Welcome to 'Chris Armstrong Watch,'" Shirvell wrote in his inaugural blog post. "This is a site for concerned University of Michigan alumni, students, and others who oppose the recent election of Chris Armstrong -- a RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR -- as the new head of student government."
Among other things, Shirvell has published blog posts that accuse Armstrong of going back on a campaign promise he made to minority students; engaging in "flagrant sexual promiscuity" with another male member of the student government; sexually seducing and influencing "a previously conservative [male] student" so much so that the student, according to Shirvell, "morphed into a proponent of the radical homosexual agenda;" hosting a gay orgy in his dorm room in October 2009; and trying to recruit incoming first year students "to join the homosexual 'lifestyle.' "
I am thinking these comments are those of a seriously mentally ill person. The question is should Shirvell be continued to be employed as a representative of the State of Michigan?
Shirvell talks of being a Christian citizen exercising his First Amendment rights on his own time, but even off-duty speech or actions can have an impact on someone's public employment. Because he is now identified as Michigan state attorney and his craziness is national news, can't it be said that he is substantially disrupting the Michigan Attorney General office by becoming the news and undermining the impartiality and good judgment of his office. Under a Pickering balance, the analysis would appear to support adverse employment action against Shirvell to protect the effectiveness and efficiency of the government service.
I think if he is fired, which he should be for his asinine condut, the State of Michigan should be free of First Amendment liability, whether he is talking as a private citzen and whether he refuses to discuss his public employment himself.
Hat Tip: Denise Faili
The Tennessee Supreme Court issued an important decision last week, rejecting the use of the McDonnell Douglas test at the summary judgment stage in litigating under Tennessee law. The decision, Gossett v. Tractor Supply Co., was a common law tort action for discharge in violation of public policy, but most of the court's analysis focused on discrimination and retaliatory discharge cases more broadly.
The employee here, Gary Gossett, alleged that his boss asked him to do some "creative" work with the publicly held company's inventory reserves that would artificially inflate the company's quarterly earnings statement in violation of federal securities laws. He refused, and he alleged that he was fired because of that refusal. The company moved for summary judgment, providing some evidence that Gossett was fired because the company wanted to reduce its workforce. The district court denied the motion for summary judgment but granted a second motion on the grounds that Gossett did not report the illegal activity first.
The Supreme Court held, an important issue in its own right, that in public policy discharge cases where the employee alleges that he or she is discharged for failing to participate in illegal conduct, the employee need not report that illegality. The court contrasted this case with a whistleblowing case, where blowing the whistle needs to occur and itself must further an important public policy.
The bulk of the opinion, though, was spent explaining why the McDonnell Douglas framework was inappropriate for the summary judgment stage in Tennessee. As a preliminary note, the Tennessee common law discharge in violation of public policy tort and the employment discrimination statute both allow for mixed motives cases: an employee need only prove that the prohibited motive (conduct or status) was a substantial factor in the employer's decision. Moreover the summary judgment standard in Tennessee requires that the party moving for summary judgment must produce evidence or point to evidence in the redord "that affirmatively negates an essential element of the nonmoving party's claim or shows that a nonmoving party cannot prove an essential element of the claim at trial." In other words, Tennessee requires even a defendant moving for summary judgment to point to evidence that tends to disprove a material factual allegation made by the nonmoving party. Here, the evidence of a legitimate reason did nothing to disprove the evidence that the employee provided from which a reasonable jury could conclude that the employee's refusal to engage in the illegal activity was a substantial factor--the employer didn't attempt to negate or undermine a single allegation of fact that the employee made. In language even more plain, the employer's evidence that one reason for the employee's discharge was to reduce the employer's work force, that evidence did not show that reducing the workforce was the only reason for firing the employee.
In reaching its conclusion, the court explained quite fully how the McDonnell Douglas test tends to lead courts to resolve disputed issues of fact on summary judgment and why it is, therefore, a poor fit at that stage of the litigation. Essentially the court concludes that the function of the test--which as stated in Burdine is designed "to progressively sharpen the inquiry into the elusive factual question of intentional discrimination" or retaliation--is simply incompatible with the function of summary judgment--which is to operate to show that there is no genuine issue of material fact as to an essential element. To sharpen the inquiry toward the ultimate conclusion at the summary judgment stage leads the court to put on blinders and view the evidence too narrowly and improperly resolve factual issues. The court even used one of its own prior cases where summary judgment was affirmed to show how the test led to that conclusion even though now, looking at the evidence as a whole, the court could see that a reasonable jury could conclude that retaliation was a substantial motive.
Two Justices concurred in the holding about reporting the illegal activity but dissented from the court's decision about the McDonnell Douglas test. The dissent wrote that the employer's evidence of a nondiscriminatory reason did show that the employee could not prove that the prohibited reason was a substantial factor. Moreover, the case could have been affirmed here without getting rid of the test because the employee provided evidence to cast doubt on the employer's proferred reason--or at least to cast doubt on how much of a role that reason played in the decision.
In my view, the dissent seems to focus on the matter as if substantial factor meant something like single cause or at least overwhelmingly predominant cause, although that could be because the employee never conceded that the employer may have had any nondiscriminatory motive. The majority's opinion seems to me to get better at what it is that we have to decide at summary judgment given what must be proven and how people actually make decisions. As I've argued before, the test really out to be "whether a rational factfinder would be required to find that the challenged employment decision was taken only for reasons unrelated to discrimination or discriminatory beliefs." Rejecting the McDonnell Douglas test better gets at that question. And all the rejection means is that fewer cases will be improperly disposed of on summary judgment, not that employers are more likely to lose at trial. To win on summary judgment, employers will have to be careful to present evidence that they were not motivated by the improper factor alleged, which evidence of a legal motivation is necessary, but not alone sufficient, to show.
One last note, although the opinion interprets Tennessee's summary judgment standard, most of the legal analysis could just as well have been done for the federal rule, as the court's citations demonstrate.
Corporate types take note. Yesterday's Wall Street Journal reports that the proposed acquisition of Air Tran Holdings by Southwest Airlines hinges on the ability of the carriers to merge their seniority lists:
The merger  could unravel if unionized pilots from Southwest and AirTran fail to reach agreement on how to combine seniority lists, which determine salaries. Southwest pulled out of a bankruptcy-court auction for Frontier Airlines Holdings Inc. last year after pilots couldn't quickly agree to terms.
[The photo, btw, is of a dovetail joint.]
Tuesday, September 28, 2010
78 U. Cincinnati L. Rev. (2010)
- Susan Harthill, The Need for a Revitalized Regulatory Scheme to Adderss Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act, p. 1250.
- Taryn Filo, The New Role of ESOP ERISA Fiduciaries as Guarantors of Financial Success: Johnson v. Couturier, p. 1517.
- Zachary E. Fithian, Say What? Asserting Your Rights Can Cost You Your Job: FLSA and Retaliation in the Workplace: Kasten v. Saint-Gobain Performance Plastics Corp., p. 1541.
The program committee of the National Academy of Arbitrators (NAA) is seeking papers to be presented at the “Invited Papers” session at the Annual NAA Meeting in San Diego, California on May 25-28, 2011. Papers to be submitted may address any topic in labor and employment law and labor and employment arbitration. The invited papers session is tentatively scheduled for May 28.
If you wish to have a paper considered for the invited papers session, please send one of the following as a proposal: (1) a manuscript; or (2) a one-page abstract of the proposed research with a statement indicating the status of research so that the likelihood of completing the research in a timely manner can be determined. Accepted papers will be published in the Proceedings of the Annual Meeting of the National Academy of Arbitrators.
The proposal must be sent by October 31, 2010 to Richard N. Block and Robert G. Bailey.
Authors will be notified of the decision by December 1, 2010.
If the paper is accepted, the NAA asks that a synopsis of the paper for inclusion in the meeting materials be submitted by mid-February, 2011. The final version of the paper for publication in the proceedings will be due after the meeting, the exact date to be determined by the Proceedings editors.
More information on the NAA may be found at the NAA website. As information on the San Diego meeting becomes available, it will be posted on the NAA website.
Susan Carle (American) bring news about the American University Washington College of Law Labor & Employment Law Brief holding its First Annual Labor & Employment Law Lecture on October 28, 2010 from 4:30-6 pm in the 6th Floor J.D. Lounge located at 4801 Massachusetts Avenue, NW, Washington, DC.
The lecture entitled "$0.77 does not equal $1.00: A Perspective on The Ledbetter Fair Pay Act in a Dukes v. Wal-Mart World," will feature Fatima Goss Graves, Vice President for Education & Employment of the National Women's Law Center (www.nwlc.org) and will discuss the Lilly Ledbetter Fair Pay Act of 2009, Ledbetter v. Goodyear Tire & Rubber Co., the pending Paycheck Fairness Act, and Dukes v. Wal-Mart Stores, Inc.
Registration is free and light refreshments will be served.
Please visit the Brief's website for more information: www.aulelb.org
On October 28-29, the National Labor Relations Board and George Washington University Law School will co-sponsor a conference celebrating the 75th anniversary of the National Labor Relations Act. The conference will feature seven panels, a discussion with the audience, and a keynote luncheon address by Ron Bloom, White House Senior Counselor for Manufacturing Policy. The panels will be moderated by current and former members of the NLRB and the agency’s Acting General Counsel, as well as the Director of the Federal Mediation and Conciliation Service. The conference will open with remarks by Frederick M. Lawrence, Dean of the George Washington School of Law, and NLRB Chairman Wilma Liebman.
Monday, September 27, 2010
MSNBC has a recent story on the pressure that employees who need sick leave feel not to exercise their right to such leave in this bad labor market. The squeeze on employers can lead them to pressure their employees not to take leave or punish them for doing so. Our own Marcia McCormick was quoted in the story:
“Everyone is being squeezed for as much productivity as possible,” said Marcia McCormick, an associate professor at St. Louis University School of Law and an editor of the Workplace Prof Blog. Some employers, she continued, may believe they can’t afford to allow people to take the leave they might be entitled to and some intentionally, or unintentionally, put pressure on workers to return to work soon after medical issue, or not take time off at all.
But the nation’s labor laws are pretty clear, she added. Workers are allowed under federal law (and in some cases state law) to take leave for their own medical needs, or those of their family members, although it’s typically unpaid.
Beth Burch (Florida State) has posted on SSRN her introduction to the Dukes v. Wal-Mart class action forthcoming in the Vanderbilt Law Review En Banc as part of a roundtable discussion of the case. Beth is a class action and non-class aggregate litigation expert, and her introduction to the class issues of that case are very helpful for those of us who aren't proceduralists. Here is her abstract:
This introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail—how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.
Beth also has this post at the Mass Tort Litigation Blog describing the roundtable, which includes Melissa Hart (Colorado) and additional impressive folks:
Though I realize that, as an employment discrimination class action, Dukes v. Wal-Mart Stores, Inc. technically falls outside the realm of mass torts, its class action status has most proceduralists watching with interest to see whether the Supreme Court will grant Wal-Mart's petition for a writ of certiorari. Over the next two months, Vanderbilt Law Review En Banc will be hosting a Roundtable discussion on the case that includes Robert Bone, Melissa Hart, the blog's own Alexandra Lahav, Greg Mitchell, Richard Nagareda, and Tobias Wolff. (Richard's essay, Common Answers for Class Certification is already on SSRN.)
It looks to be an excellent discussion.
Thanks to Colin Miller over at the Evidence Prof Blog who has an interesting post up today at Feminist Law Professors about an evidence issue near and dear to my heart in a recent employment gender discrimination class action, E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010) (can't find a non-pay version, sorry). The case involved allegations by the EEOC that the company had engaged in multiple forms of pregnancy and sex discrimination against 58 female employees.
At issue specifically was whether the court should allow in so-called "social framework evidence." As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case. More specifically, in employment discrimination cases, we wrote: "Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately."
The court excluded the evidence in Bloomberg, and I agree with Colin's thoughts on why the court's reasoning was less than persuasive:
Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." The court found that Dr. Borgida's proposed testimony did not meet this standard because, as noted,
“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition,...“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”
Really? So, the average juror watches "Modern Family" and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn't help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn't be helpful! And, I'm sure the average juror watches "Bones," so there should never be any need for testimony by forensic anthropologists.
And while we're at it, I'm certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If "Modern Family" is your go-to source for gender discrimination information, why shouldn't it be your source for how to be a good spouse and parent? Heck, double it up with "The Middle," and you get a full hour of great advice a week.
In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?
You go, Colin. Perhaps other reasons might have existed to keep Dr. Borgida's social framework evidence testimony out, but the court's reasoning here is, well, absurd.
Interesting education and employment law story in the New York Times brought to my attention by one of my employment law students:
A teacher at a Bronx elementary school has been reassigned after writing on a Web site about her past as a sex worker.
Ms. Petro wrote that from October 2006 to January 2007, she “accepted money in exchange for sexual services I provided to men I met online.”
She said that she used Craigslist to meet men and it provided “a simple, familiar forum through which I could do my business with complete anonymity, from the safety and convenience of my own home.”
This is a fairly standard public employee free speech case applying the Pickering framework, probably coming down to whether the online article in question substantially disrupted the teacher's ability to be an effective teacher in the school (by dint of her relationship with her supervisors, colleagues, parents, or students). When you are talking about elementary school, you also have to consider concerns about good role models and the impressionable age of the children.
The interesting part to me and my student was the tenure part. Most tenure protections at the K-12 level provide some type of statutory just cause protection. Did the school district have good cause to terminate her based on exposing herself (pun intended) as a former prostitute? Who knows how an arbitrator might rule, but I think good cause could be found. So as long as the school district here affords the proper procedural protections a la Roth and Sindermann, I do not see a problem with the school district's actions.
Do I condone the firing personally? That's a hard one, especially since I have children currently in elementary school. I can't imagine her past occupation coming up in the classroom or the children finding out (unless a parent shares this information with their children), but really who knows?
Northern Kentucky Law Review
Volume 37 No. 4 (2010)
ADA Amendments Issue
- Paul Harpur & Richard Bales, The Positive Impact of the Convention on the Rights of Persons with Disabilities: A Case Study on the South Pacific and Lessons From the U.S. Experience, p. 363.
- Kathryn M. Smith & Richard Bales, Education for Americans with Disabilities: Reconciling IDEA with the 2008 ADA Amendments, p. 389
- Robert Adair, Monkeys and Ferrets...Oh My! Non-Traditional Service Animals Under the ADA, p. 415.
- Danielle J. Ravencraft, Why the 'New ADA' Requires an Individualized Inquiry as to What Qualifies as a 'Major Life Activity', p. 441.
- MyLinda K. Sims, When Pigs Fly: Does the ADA Cover Individuals with Communicable Diseases such as Novel H1N1 Influenza, 'Swine Flu'? p. 463.
Memphis Law Review
Volume 40, No. 4 (2010)
- Michael Foreman, Gross v. FBL Financial Services--Oh So Gross!, p. 681.
- Barry Goldstein & Patrick O. Patterson, Ricci v. Destefano: Does it Herald and 'Evil Day' or Does it Lack 'Staying Power'?, p. 705.
- Ernest F. Lidge III, A 'Person Aggrieved': Who May Sue Under Title VII?, p. 797.
- Anna Wermuth and Jeremy Glenn, It's No Revolution: Long Standing Legal Principles Mandate the Preemption of State Laws in Conflict with Section 3(o) of the Fair Labor Standards Act, p. 839.
Sunday, September 26, 2010
Stephen Befort (Minnesota) has just posted on SSRN his article (forthcoming Buffalo L. Rev.) Unilateral Alteration of Public Sector Collective Bargaining Agreements and the Contract Clause. Here's the abstract:
As public sector budgets have waxed and waned in response to changes in the economic cycle over the past 30 years, public sector employers increasingly have sought to control personnel costs by resorting to measures such as wage freezes and furloughs. Not infrequently, those measures have pitted the viability of collective bargaining agreements against the ability of government to protect its coffers. This article examines those court decisions that have considered the reach of the contract clause in this setting over the past thirty years. Most of these courts properly have applied the principles established by the Supreme Court in the United States Trust Co. decision so as to restrict the permissible scope of self-serving legislative modifications. A significant minority of decisions, however, have afforded substantial deference to such modifications even though they occur in a context in which the legislative body is hardly a disinterested observer. While the legislative impairment of governmental contract rights is a necessary safety valve in some circumstances, an underlying theme of many of the minority decisions is that public sector collective bargaining agreements are not as worthy of protection as other types of governmental contracts. This article takes issue with that theme as an undesirable vestige of the discredited notion that public employees owe a duty of “extra loyalty” to the state. The article proposes an analytical framework that treats public sector collective bargaining agreements the same as other governmental contracts, rather than as a second-class type of contract. It urges that a governmental body should be sustained in impairing its contract obligations to its employees on the same basis as other self-serving impairments; that is, only when such impairment is reasonable and necessary to serve an important governmental purpose.
Under threat of antitrust prosecution, several high tech companies--Apple, Google, Adobe, Intel, Intuit, and Pixar--have reached an proposed settlement with DOJ (technically, the DOJ filed suit, but only to get the settlement before a court). At issue was an agreement among the companies not to solicit each others' employees to go change jobs. From the DOJ's announcement:
The department said that the agreements eliminated a significant form of competition to attract highly skilled employees, and overall diminished competition to the detriment of affected employees who were likely deprived of competitively important information and access to better job opportunities. . . .
In the high technology sector, there is a strong demand for employees with advanced or specialized skills, the department said. One of the principal means by which high tech companies recruit these types of employees is to solicit them directly from other companies in a process referred to as, “cold calling.” This form of competition, when unrestrained, results in better career opportunities, the department said.
According to the complaint, the companies engaged in a practice of agreeing not to cold call any employee at the other company. The complaint indicates that the agreements were formed and actively managed by senior executives of these companies. The complaint alleges that the companies’ actions reduced their ability to compete for high tech workers and interfered with the proper functioning of the price-setting mechanism that otherwise would have prevailed in competition for employees. None of the agreements was limited by geography, job function, product group or time period. Thus, they were broader than reasonably necessary for any collaboration between the companies, the department said.
The proposed settlement, which if accepted by the court will be in effect for five years, prohibits the companies from engaging in anticompetitive no solicitation agreements. Although the complaint alleges only that the companies agreed to ban cold calling, the proposed settlement more broadly prohibits the companies from entering, maintaining or enforcing any agreement that in any way prevents any person from soliciting, cold calling, recruiting, or otherwise competing for employees. The companies will also implement compliance measures tailored to these practices.
The fact that the companies felt they needed such an agreement speaks volumes about the high tech industry, as companies in most other industries would simply rely on non-compete clauses.
Friday, September 24, 2010
Thanks so much to everyone at the LEL Colloquium for tolerating my luncheon presentation and giving me all the terrific ideas for follow-up! Please please please send those comments to me by email, or add a comment to this post.
Dean Dad posits:
- Student takes class with professor last year.
- After conclusion of class, student and professor have brief affair.
- Affair ends badly.
- Student signs up for another class with professor this year.
- Student demands an ‘A’ or threatens to reveal all.
Any advice for professor?