Sunday, October 31, 2010
Marty Malin and Lea Vandervelde pass on the sad news that Clyde Summers passed away late last week. Clyde contributed so much to our field, and although I did not know him personally, I know that he was a great mentor and friend to many of you. He will be greatly missed. I was lucky to work on the Employee Rights & Employment Policy Journal issue commemorating his work and learned a great deal from that experience alone. When I have more details, I will pass them along.
Friday, October 29, 2010
Daniel Schwartz of Connecticut Employment Law Blog posted today a collection of cases illustrating behavior that is inappropriate for a workplace environment. Here's one gem:
In Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. 2002), a supervisor was alleged to have gone out to buy Halloween presents. Allegedly, he gave the employee "a direct penetrating look with lust," and said: "I have a little present for you that you're never going to forget and if you don't do the things I tell you and order you to do I am going to fire you."
Bisom-Rapp, Frazer and Sargeant on Decent Work, Older Workers and Vulnerability in the Economic Recession
Susan Bisom Rapp (Thomas Jefferson), Andrew Frazer (Wollongong (AU)), and Malcolm Sargeant (Middlesex (UK)) have posted on SSRN their forthcoming article in the Employee Rights and Employment Policy Review: Decent Work, Older Workers and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States.
Here is the abstract:
In countries with aging populations, the global recession presents unique challenges for older workers, and compels an assessment of how they are faring. To this end, the International Labour Organization's concept of decent work provides a useful metric or yardstick. Decent work, a multifaceted conception, assists in revealing the interdependence of measures needed to secure human dignity across the course of working lives. With this in mind, in three English-speaking, common law countries (Australia, the United Kingdom, and the United States), this Article considers several decent work principles applicable to older workers and provides evaluations in light of them. Relevant to the analysis is the role workplace law plays in each country in ameliorating or exacerbating older worker vulnerability.
Although the recession affected each country to a different extent, and the response of national employers to the crisis varied significantly, the effects of the financial crisis on older workers are strikingly similar. The recession has affected the quality of work for older workers. For many, employment has become more fragile, inconstant and insecure. In all three nations, the recession also compromised older workers' ability to plan for and secure a key decent work precept, a dignified retirement.
Yet stronger national differences emerge when evaluating labor regulations affecting older workers. While all three countries prohibit age discrimination to varying degrees, such prohibitions by themselves do not greatly contribute to employment security for older workers. General labor standards, such as those restricting termination and layoff or requiring severance pay, and the provision of a robust safety net, are just as important in forestalling older worker vulnerability. By using decent work as a touchstone, and looking broadly at the intersecting factors that contribute to older worker insecurity, the outlines of needed policy reforms become clear.
The use of the decent work rubric looks to be a truly illuminating way for determining proper policy responses to help older workers impacted by the Great Recession of the last few years. Just another a great example of how comparative collaborations and papers can go a long way in helping to alleviate what ails us on the domestic labor and employment law front.
Thursday, October 28, 2010
Marc DeGirolami (St. John's) discusses over on ProfsBlawg an article by Robert Redeker in Le Monde. Redeker argues that the current French outcry over raising the the retirement age should be understood in the context of a general French tendency to mythologize retirement generally, as a Candidian (not Canadian) earthly paradise (70 virgins? in retirement?) where the best of life will be concentrated. Redeker argues that this false vision of retirement renders the populace more docile about social ills such as inequality, exploitation, and submission: the promise of retirement "erodes social progress" because people are holding out for a future that will never come.
DeGirolami takes Redeker to task for idolizing work in the same way that he claims the French masses idolize retirement. For the vast majority of working people,
work is not eminently fulfilling, joyful, or an occasion to seek out grand social improvements. Work is what you do to live and support your family... The fact that work is sometimes (hopefully often) deeply fulfilling and pleasurable for academics -- or that many academics do believe that their work is connected to the search for social improvement -- is ... a luxury of the academic life.
Francis Mootz (UNLV) has just posted on SSRN a forthcoming book chapter (Anti-Discrimination Discourse and Practices, Silvia Niccolai, ed., 2011) In Search of the Reasonable Woman: Anti-Discrimination Rhetoric in the United States. Here's the abstract:
This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.
Wednesday, October 27, 2010
Our own Rick Bales has been busy again, this time posting on SSRN two new co-authored articles. The first is by Rick and Michelle Eviston, titled "Capping the Costs of Consumer and Employment Arbitration,"and will appear in the Toledo Law Review. The abstract:
Arbitration agreements requiring arbitration but imposing costs of thousands of dollars can effectively make it impossible for consumers and employees to bring their disputes in any forum. The Supreme Court has stated that high costs can make an arbitration agreement unenforceable, but has not articulated clear standards. Lower courts are split two ways on the issue: some courts have adopted a per se approach and others a case-by-case approach. This article argues that the Federal Arbitration Act should be amended to take a third approach: arbitration fees paid by consumers or employees should be limited to what consumers or employees would pay if they litigated their claim.
The second, by Rick and James Moore, is titled "Elections, Neutrality Agreements, and Card Checks: The Failure of the Political Model of Industrial Democracy," and will appear in the Indiana Law Journal. The abstract:
The secret-ballot election is the National Labor Relations Board’s preferred method for employees to determine whether they wish to be represented by a union. Employer domination of the election process, however, has led many unions to opt out of elections and instead to demand recognition based on authorization cards signed by a majority of employees. The primary objection to this “card check” process is that it is less democratic than the secret-ballot election. This article places the issue in the context of the theoretical basis for claims of industrial democracy and argues that card checks are more consistent with the basic premises of industrial democracy than are extant Board elections.
Nice job to all in involved!
Tuesday, October 26, 2010
The NLRB just issued an order today stating that it will reconsider its decision in Brown University, which essentially excluded graduate students from the definition of "employee" under the NLRA. The Board, by a [2-1] vote, ordered a hearing in a case involving NYU (a case which classified graduate students as employees, and was reversed by Brown) to gather more facts on the employer's contentions that most graduate students are now classified as employee adjunct professors, other graduate students are funded by outside grants and aren't employees under either NYU or Brown. Member Hayes dissented, arguing that the request for reconsideration is improper (mainly that the only change that has occurred is the Board's membership) and that the ordered assumes that overruling Brown is preordained.
I think we can all agree that Member Hayes is right about at least one thing: Brown is toast.
Hat Tip: Justin Keith
West Publishing has just announced a December publication date for the 4th edition of Ken Dau-Schmidt, Robert Covington, & Matt Finkin, Legal Protection for the Individual Employee (the photo is of the 3d edition). Here's the publisher's description:
This book is intended for courses on the individual rights of workers in the employment relationship, independent of courses on the law governing collective bargaining or employment discrimination. It can be used for one three credit survey course on employment law, or for two related courses on employment law and employee benefits, each of two credits. The book covers the full range of employment law subjects from pre-employment screening, individual employment contracts, the employment at-will doctrine, exceptions to the employment at–will doctrine, obligations of employees, monitoring and control of employees, the regulation of pay and hours of work (FLSA), the regulation of occupational safety and health (OSHA), state and federal regulation of workers compensation, unemployment compensation, and the regulation of employee benefits (ERISA). The book has been substantially updated from the last issue to facilitate teaching and to include such topics as: the Genetic Information Non-discrimination Act (GINA), employee privacy issues in the new information technology, the proposed restatement of employment law, and recent enactments in unemployment compensation and health care. Where appropriate, the book presents interdisciplinary discussions of employment law problems from historical, sociological and economic perspectives. Efforts were also made to include relevant empirical evidence on important employment law questions. A recurring theme in the book, especially in the introductory chapter and the chapters on individual employment contracts, is the historical tension in the United States between legal ideologies of “free labor,” i.e., of the law as conducing toward freedom in the contracting which is indifferent to outcome or of the law as conducing toward outcomes that conduce toward equality and fairness.
Monday, October 25, 2010
In two separate cases, the NLRB modified its approach to unfair labor practice notifications and how it calculates interest on awards. In J. Picicini Flooring, the NLRB stated that employers who custumarily communicate with employees by electronic means must provide electronic ULP notices to those employees. In Kentucky River Medical Center, the Board unanimously determined that it would now use daily compounded interest, like what is used under the Internal Revenue Code. From the NLRB notice:
“Our primary focus must be on making employees whole,” the Board noted in its decision in Kentucky River. “After careful consideration, and based on the Board’s experience in the decades following the initial decision to order interest on backpay awards, we have concluded that compound interest better effectuates the remedial policies of the Act than does the Board’s traditional practice of ordering only simple interest and that, for the same reasons, interest should be compounded on a daily basis, rather than annually or quarterly.”
Also, employers who customarily communicate with their employees electronically, either through e-mail or an Internet or Intranet site, will be required to post remedial notices the same way, in addition to posting a paper notice to a bulletin board. The same will hold true for union respondents who customarily communicate with their members electronically. The decision in J. Picini Flooring, 356 NLRB No. 9, was 3-to-1, with Chairman Wilma Liebman and Members Craig Becker and Mark Pearce in favor and Member Brian Hayes dissenting. “We find that given the increasing prevalence of electronic communications at and away from the workplace, respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members,” the majority wrote in its opinion.
Dissenting, Member Hayes said his colleagues’ decision improperly equates “the traditional notion of ‘where notices are customarily posted,’ with the notion of ‘how employers customarily communicate with employees,’ ” thereby “transform[ing] what has heretofore been an extraordinary remedy into a routine remedy. Further, they have done so without considering practical implementation problems presented by the tremendous variation in the types of electronic media involved.”
Needless to say, the concept of electronic notices for workplaces that customraily use electronic communciations is a no-brainer to me. I'd be sure to see any e-mail sent by my employer, but if it posted a paper notice, the likelihood of my seeing it is extremely low--heck, I wouldn't even know where to look for such a notice.
Hat Tip: Patrick Kavanagh
- Robin C.A. White, Revisiting Free Movement of Workers, 33 Fordham Int'l L.J. 1564 (2010).
- Farhang Heydari, Making Strange Bedfellows: Enlisting the Cooperation of Undocumented Employees in the Enforcement of Employer Sanctions, 110 Columbia L. Rev. 1526 (2010).
Yuval Feldman (Bar-Ilan) and Orly Lobel (San Diego) have just posted on SSRN their article Individuals as Enforcers: The Design of Employee Reporting Systems. Here's the abstract:
This chapter presents a unique perspective on whistleblowing, combining behavioral and organizational perspectives of employee motivation to engage in social enforcement. The chapter is based on a series of experimental studies conducted by the collaborators. In our studies, we analyze the interactions among several types of factors. First, we describe cultural differences and the ways a country’s attitude and history affect decisions to blow the whistle. Second, we systemically show complex motivations in the decision to report misconduct, including both intrinsic and extrinsic factors. Third, our experiments provide unique insights about the design of the law and the various incentives it can offer to support social enforcement. The studies improve our understanding of the costs and benefits of different regulatory systems and the inadvertent counterproductive effects of certain legal incentives. Based on these studies, the chapter explores the comparative advantages of various incentive structures and aim for a better fit between regulatory design and organizational and individual motivation, not only in compliance as many of the other chapters in this volume suggest but also in reporting the incompliance of others.
I haven't posted for a while -- in part because I've been busy reading and thinking about the work of the five young scholars who were the focus on Seton Hall's Fifth Annual Employment & Labor Scholars Forum on Friday and Saturday.
On the commentator side, we were fortunate enough to have Hank Chambers, Bill Corbett, Ann McGinley, Richard Moberly, and Michael Stein, who joined the Seton Hall (or Seton Hall alum) crowd of Tim Glynn, Tristin Green, Steve Willborn (visiting this semester), Mike Zimmer, and myself.
The young scholars offered new perspectives on a range of topics, all of which generated fascinating discussions. While I can't hope to do justice to all of the presenters in one posting, here's an attempt to provide some sense of what's in the works from them:
- Matt Dimick (on the market this year, and a real catch for some perceptive school), on the extent to which "the Ghent System" -- union administering of state-subsidized unemployment insurance -- is responsible for union density in several European countries and whether it might be transplantable to the US
- Kerri Stone (Florida International) on courts' use of "stray comments," "same actor inference," and "temporal nexus" doctrines as judicial shortcuts that are both inconsistent with each other in terms of the models of human psychology they reflect and preclude a holistic assessment of discrimination cases
- Nancy Modesitt (Baltimore) on the increasing threat of a "job duties exclusion" to whistleblower protection, which originated in the Federal Circuit as a judicial gloss on the federal Whistleblowers Protection Act but threatens to have broader application as a result of Garcetti's adoption of that approach in first amendment cases
- Wendy Green (Cumberland), on the courts' problematic treatment of cases in which a plaintiff is the victim of discrimination because she is wrongly perceived as being of a race or ethnicity to which she does not in fact belong.
- Jessica Roberts (Houston), on using GINA's as a lens to explore the more traditional antidiscrimination categories of race, sex, and disability.
Keep an eye peeled for all of these when they're ready for prime time.
Saturday, October 23, 2010
It's no secret that the economy--especially jobs--is the biggest factor in this year election. As further proof, just look at third-party group spending this year. As this Steven Greenhouse article shows, the two 800-pound gorillas are the Chamber of Commerce and organized labor. Just look at some of their spending:
The giant union of government workers, the American Federation of State, County and Municipal Employees is promising to spend a record $66 million this year on get-out-the-vote efforts, voter education and political advertisements. That includes $16 million that the union recently took out of an emergency fund, and it comes on top of $21 million it spent last year, mainly on state and local races. The union says it has spent $17 million on broadcast advertisements so far this year.
Reflecting a growing dispute between unions and the Chamber of Commerce, the public employees’ union is arguing that its campaign spending this year is less than the Chamber’s $75 million, even though the union has spent $87 million over the two-year election cycle.
The A.F.L.-C.I.O. plans to spend about $50 million in this year’s campaign, while the Service Employees International Union, one of the most politically active unions, plans to spend $44 million, including $14 million already spent on advertisements.
Needless to say, the Chamber will be happier on Nov. 2, but there is still a lot at stake for unions trying to minimize the damage. Another reminder of what we all try to tell everyone: employment matters matter!
Friday, October 22, 2010
Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.
The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies. In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. (6th Cir., 10/21/10), a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Reoublican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:
[T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties.
Without doing any legal analysis, just wrap your mind around that statement for a second.
The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?
And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).
But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me. First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern. That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.
Second, and no less troubling, is the fact that public employees will no doubt feel muzzled by this legal rule (and rightfully so). They speak out, they could lose their jobs. That means that the people who are best positioned, and best experienced, to tell us what is going on in our school districts, have now been gagged. We all lose.
Look, this decision was inevitable since Garcetti was decided in razor-thin 5-4 decision by a conservative majority in 2006. As I and many other have predicted, the inevitable result has been a ceaseless cutting back on the constitutional rights of public employees. Helen Norton and others have explained how this has occued through the Roberts' Courts grossly inflated use of the government speech doctrine and it is no surprise that Judge Sutton relied on it here.
So you might say, "Don't worry, Paul, this will surely be legally challenged." Let me point out that the teacher was acting pro se in this case and really never had a chance. I guess we will see if someone steps up and takes her case to the Supreme Court. I almost hope they don't. Given the current make-up of the Supreme Court, such a challenge would just further ensconce this horrible, and not very well supported, piece of constitututional law.
We need to remember that public employment is not a privilege whereby the goverment can force individuals to forego the exercise of their constitutional rights in order to secure government employment. This is true with any government employment, but especially true with a public school teacher who we want to be able to show through example how to engage in criticial thinking and constantly push the contours of knowledge. We want our school teachers to engage in robust debate with their students and expand the spectrum of knowledge.
Never before have I been so concerned that Justice Jackson's admonision in Barnette is no longer being heeded:
And as Justice Blackmun wrote eloquently in his concurring decision in Board of Educ. v. Pico, 457 U.S. 853 (1982) (and to which I firmly subscribe):
Keyishian v. Board of Regents, 385 U.S. 589 (1967) -- a case that involved the State's attempt to remove "subversives" from academic positions at its universities, but that addressed itself more broadly to public education in general -- held that "[t]he classroom is peculiarly the ‘marketplace of ideas"'; the First Amendment therefore "does not tolerate laws that cast a pall of orthodoxy over the classroom." Id. at 603. And Barnette is most clearly applicable here: its holding was based squarely on the view that
[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.
319 U.S. at 637. The Court therefore made it clear that imposition of "ideological discipline" was not a proper undertaking for school authorities. Ibid.
In combination with more generally applicable First Amendment rules, most particularly the central proscription of content-based regulations of speech, see Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the cases outlined above yield a general principle: the State may not suppress exposure to ideas -- for the sole purpose of suppressing exposure to those ideas -- absent sufficiently compelling reasons.
That principle has not been followed today and, as a result, we are all made poorer by the Sixth Circuit's knee-jerk extension of the Garcetti holding to the public school context; it does nothing less than cast a pall of orthodoxy over the classroom and makes an obscene joke of academic freedom in the primary and secondary classroom environment.
Congratulations to Paul, who has posted on SSRN his piece forthcoming in the Indiana Law Journal: The Future of NLRB Doctrine on Captive Audience Speeches. From the abstract,
Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.
If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts or Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards.
A great addition to Paul's impressive efforts to reform the law in this area.
Wednesday, October 20, 2010
Members of the European Parliament have approved, by a narrow margin, a proposal that would extend maternity leave to 20 weeks on full pay and make that mandatory in the EU. Minimum maternity leave in the EU is currently 14 weeks. For more, see this article in BBC News Europe.
The illustration at left obviously applies to the American -- not the European -- policy on maternity leave.
Update: you can leave memories and condolences for Paul's family here (sign up is free and easy). And a new picture, the way I like to remember Paul.
This one really hurts, I'll make no bones about it.
Today, I must unfortunately report the passing of my dear friend and colleague, Paul Steven Miller of the University of Washington School of Law. Many of you no doubt know Paul from his time as an EEOC Commissioner during the Clinton Years and his work with the Obama White House on transition and disability issues more recently.
But that really doesn't tell you who Paul was. He was a man born with limitations that might have stymied some, but he never let them get in his way. He was a forceful advocate and a thoughtful thinker for people with disabilities and for people discriminated against in the workplace in general. In the end when he was slowed by loss of an arm and sickness, he remained hopeful and thoughtful about what his future might hold.
Please leave tributes to Paul in the comments. Thanks to Ani Satz and Mark Weber for supplying everyone with this funeral information and memorial news.
The service will be at Temple De Hirsch Sinai, 1511 E. Pike Street, Seattle, at 5:00 p.m. A memorial service will also be held in DC at a later date. The family will be sitting shiva Wednesday evening and Thursday and Friday until sundown at the Mechem-Miller home, 8451 S.E. 36th Street in Mercer Island. Donations can be made to a college fund for Paul's daughters Naomi and Delia Mechem-Miller. Donations can be given to Jenni Mechem with "girls' college savings" in the check memo line.
Rest in peace, my dear friend.
In a voice mail message left at 7:31 a.m. on Oct. 9, a Saturday, Virginia Thomas asked her husband’s former aide-turned-adversary to make amends. Ms. Hill played the recording, from her voice mail at Brandeis University, for The New York Times.
This story speaks for itself.
Catherine Fisk (UC-Irvine) has just posted on SSRN a trio of articles:
- The Jurisdiction of the Writers Guild to Determine Authorship of Movies and Television Programs.
- The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, But Didn’t, Address in New Process Steel LLC v. NLRB.
- The Modern Author at Work on Madison Avenue.
Tuesday, October 19, 2010
Unfortunately, we have anouther death to report: Betty Murphy, the first female chair of the NLRB. She was nominated by President Ford, serving as chair from 1975-1977 and as a member for two more years According to the NLRB's press release:
Ms. Murphy was a partner in the law firm of Baker & Hostetler from 1980 to her death,
and had tried cases in 29 states, with appearances before nine U.S. Courts of Appeals and the Supreme Court. She was the first woman to hold the position of Chairman at the
NLRB. Prior to being appointed to that role by President Gerald Ford, she served as
administrator of the Department of Labor’s Wage and Hour Division. She had five
additional Presidential appointments to special commissions, including the Commission
on the Bicentennial of the U.S. Constitution and the International Centre for Settlement
of Investment Disputes.
Earlier, she had worked as a reporter for UPI news service. Hoping to eventually cover
the Supreme Court, she enrolled in a few classes at Washington College of Law, at
American University, and became fascinated by the study and practice of law. After
graduating, she decided to pursue a legal career rather than return to journalism.
There's actually interesting interview with her in the DC Bar's "Legends of the Law" series from 1996 that's worth checking out.