Friday, January 28, 2011

Recently Published Scholarship


  • Shailini Jandial George, Do Sexual Harassment Plaintiffs Get Two Bites of the Apple?: Sexual Harassment Litigation After Fitzgerald v. Barnstable School Committee, 59 Drake L. Rev. 41 (2010).
  • Meredith B. Stewart, Outrage in the Workplace: Using the Tort of Intentional Infliction of Emotional Distress to Combat Employer Abuse of Immigrant Workers, 41 U. Memphis L. Rev. 187 (2010).
  • Debra L. Stegall et al., Survey of Illinois Law: Employment Law, 34 S. Ill. L.J. 903 (2010).
  • Brad A. Elward, Survey of Illinois Law: Workers' Compensation, 34 S. Ill. L.J. 1107 (2010).


January 28, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

States Strike Back Against NLRB Secret-Ballot Preemption Stance

NLRB As we noted earlier, the NLRB's General Counsel informed four states that their secret-ballot union election measures were preempted by the NLRB.  The AGs of those states have now responded and as will probably not be a surprise, have stated in a letter (which you can access here) that they will vigorously defend those laws. 

The sole legal basis for the states' position seems to be that their measures do not require secret-ballot elections in all cases and are, therefore, consistent with the NLRB's interpretation of the NLRA.  The problem with this argument is that it begs the question of why have the measures?  If they apply only where employer's are unwilling to voluntary recognize a union then they're a complete waste of time (save for the opportunity to criticize unions, which may be exactly the point).  The states' interpretation also seem to go against the text of the measures, which appear to give individuals the right to vote on union representations, which suggests that an individual employee can insist on a secret-ballot election even if the employer is willing to voluntarily recognize the union. 

Adding to this issue is a recent move at the federal level to require secret-ballot elections.  We saw this earlier as a reaction to EFCA and it's not likely to go anywhere at this point.

Hat Tip:  Dennis Walsh


January 28, 2011 in Labor Law | Permalink | Comments (4) | TrackBack (0)

Onwuachi-Willig a Finalist for Iowa Supreme Court

Onwuachi-willig Congratulations to Angela Onwuachi-Willig, Professor of Law and the Charles M. and Marion J. Kierscht Scholar at the University of Iowa, who has been named one of nine finalists for three Iowa Supreme Court appointments.  The positions became available after last November’s retention vote ousted three justices who had ruled that same-sex couples could marry.

Angela graduated from Grinnell College and Michigan Law School, where she was a Clarence Darrow Scholar, a Note Editor on the Michigan Law Review, and an Associate Editor of the founding issue of the Michigan Journal of Race and Law. After law school, she clerked for Solomon Oliver, Jr. (N.D. Ohio) and Karen Nelson Moore (6th Circuit).  She practiced as a litigation and employment attorney at Jones Day in Cleveland, and as an employment attorney with Foley Hoag LLP in Boston.  She began teaching at U.C.-Davis, then joined the Iowa faculty in 2006.


January 28, 2011 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

White House Renominates Becker for the NLRB

Becker In what comes as a bit of a surprise (at least to me), the White House today renominated Craig Becker to the NLRB.  If confirmed--a really big "if"--he would serve until Dec. 2014.

Obviously, there will be another fight over Becker's nomination.  It will be interesting whether the tenor of that battle will be influenced by EFCA essentially fading into the night or the Republicans increased numbers in the Senate.  Either way, we'll stay on top of it.


January 27, 2011 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 26, 2011

Secunda on the Future of Multiemployer Pension and Welfare Plans

PaulSecunda Our own Paul Secunda (Marquette) has just posted on SSRN his book chapter, "Future Direction and Challenges for Multiemployer Benefit Plans," which will appear in Trustees Handbook, Kordus ed. (International Foundation, 7th ed. 2011).  The abstract:

Multiemployer (or Taft-Hartley) plans find themselves in much trouble and disarray. Although these plans once represented one of the great triumphs in labor relations in providing pension, welfare, and health benefits to unionized workers, these plans are now under siege because of financial/demographic, legislative, and judicial developments. Although multiemployer plans seem less relevant today than in the past, there are still some 10 million participants nationwide in nearly 1,500 multiemployer plans.

And although many of these workers are limited to industries such as trucking, entertainment, construction, and retail (i.e., industries where employees frequently move between jobs in the same industry), the dignity provided for these workers through receiving employee benefits is no less important, nor is the workforce stability that is engendered in these and other industries as a result of the existence of Taft-Hartley plans.

In all, the future for multiemployer plans is very shaky. The hope, however, is that by exploring the financial, legislative, and judicial challenges addressed in this Chapter, and by suggesting needed reforms, the future direction of these historically-important plans can begin to move again in a sustainable direction.

Check it out.


January 26, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

3rd Cir: Living in a Post-Glenn ERISA World

Erisa Thanks to friend of the blog, Katie Eyer (Penn) for bringing to my attention the interesting ERISA case of Miller v. American Airlines from the 3rd Circuit Court of Appeals.  As Katie points out, this is one of the first major decisions in the Third Circuit to address the post-Glenn world.  Readers might recall that in Metropolitan Life v. Glenn, the Supreme Court reaffirmed the Firestone standard for arbitrary and capricious review of denial of benefit claims under ERISA Section 502(a)(1)(B), but also reiterated the need to weigh conflict of interests when plan administrators are both responsible for claim determinations and claim payments.

I will defer here to some interesting points that Katie makes for readers of this blog and others with ERISA on the brain:

1) Following Met Life v. Glenn all structural and procedural factors have to be weighed as part of the merits analysis on arbitrary and capricious review;

2) Employer-funded plans create a conflict of interest, even where they are actuarially grounded (overruling prior Third Circuit case law on the basis of language in the Supreme Court's decision in Met Life v. Glenn)

3) Finds the employer's decision was arbitrary and capricious based almost exclusively on numerous procedural errors & irregularities;

4) Retroactive reinstatement of benefits is the proper remedy for an arbitrary and capricious termination of benefits.

Interested readers can access the decision here. For my two cents, I am still somewhat skeptical that Glenn will lead to that many more plaintiffs winning ERISA section 502(a)(1)(B) claims.  This is especially true after the abysmal decision by the Supreme Court last year in Conkright v. Frommert, where plan administrators and their sponsors seem to get a never-ending opportunity to give the least generous interpretation of the plan which might not be considered arbitrary and capricious.


January 26, 2011 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Apparently, Someone Isn't a Packers Fan

Packers Just in time for the Super Bowl, this story is just in and provides another example of how the at-will rule really means that employees can be fired for any reason.  In this situation, a Chicago car salesman was fired for wearing a Green Bay Packers tie to work (shortly after the Packers beat the Bears).  It appears that he'll land on his feet, as he's already been offered a job by a different dealership.  Here are some of the facts, courtesy of WGN:

Stone said he wore the tie at Webb Chevrolet on Monday – one day after the Packers beat the Chicago Bears in the NFC championship game at Soldier Field – because he’s been a Packers fan since Ahman Green became a star running back for the Packers in 2000. He also said he wore the tie in honor of his 91-year-old grandmother, a Packers fan who died this month.

Stone said that when he showed up at work, general manager Jerry Roberts called him over to his office and told him he would be fired if he didn’t take off his tie. Stone said he thought Roberts was joking and went back to work.

An hour later, Stone said, Roberts came to the showroom floor and again demanded he take off the tie. When he didn’t, he was fired, Stone said.

“I didn’t know you could get fired for wearing a tie,” Stone said. “I’m supposed to dress up. I’m a car salesman.”

Asked by a WGN-Ch. 9 reporter if he’d fired Stone for wearing a Packer’s tie, Webb Chevrolet general manager Jerry Roberts said, “Correct.”

Roberts said the dealership had previously done promotions involving the Chicago Bears. “I don’t feel that it was appropriate for him to go directly in contrast with an advertising campaign that we spent a lot of money on,” Roberts told WGN reporter Judie Garcia.

But Stone said Roberts’ reasons for firing him were never made clear to him, nor did he get a chance to explain the tie’s emotional significance. Roberts told WGN-Ch. 9 that he didn’t know that Stone’s grandmother was a Packers fan.

I'm guessing that the next person who might need to look for a new job is the general manager, thanks to all the bad publicity this is causing.

Hat Tip:  David Schwartz



January 25, 2011 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

New Standard Proposed for NLRB "Olin" Deferrals

Nlrb On Thursday of last week, National Labor Relations Board Acting General Counsel Lafe Solomon announced (in Memorandum GC 11-05) that he will urge the Board to adopt a new approach for determining whether to defer to arbitration decisions and grievance settlements in unfair labor practice cases brought under the NLRA's prohibitions on employer interference and discrimination.  Solomon said that he has concluded that in such cases, “the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator.”

Finding that the Board's existing deferral standards “tolerate substantive outcomes from arbitrators that differ significantly from those that the Board itself would reach,” Solomon said the Board should require any party urging deferral to demonstrate that (1) a collective bargaining agreement incorporated the statutory right in issue, or the parties presented the statutory issue to an arbitrator, and (2) an arbitrator “correctly enunciated” and applied NLRA principles in deciding the dispute. Solomon also said that he will urge board members not to give effect to a pre-arbitration grievance settlement unless evidence shows that the parties intended to settle unfair labor practice issues as well as alleged contract violations.

Two commentators who would prefer to remain nameless have weighed in on the proposed change.  Says one:

The proposed change, especially the "correctly enunciated" standard, is pretty radical.  Any standard that requires the arbitrator to correctly determine exactly what the Board would do would guarantee post-award challenges and undercut arbitral finality.

Responds another:

I don’t see how the proposed position is radical since it is a return to pre-Olin standards that the Board used for many years.  Also, I wouldn’t say that it “undercut arbitral finality” since the NLRB would not be overturning an arbitrator’s determination of contract rights at all, but rather adjudicating a statutory issue.  What I do find interesting is how broadly both Liebman and Solomon are willing to challenge pretty longstanding pro-Employer Board practices and precedents that survived the Clinton administration--without apparent fear of a backlash from a Republican House in the form of oversight hearings, budget cuts or restrictive riders.

Rejoins the first:

I meant radical only in the sense that it would overturn a 27-year-old precedent and would introduce a fundamentally different regime for review of arbitration awards.  The effect on finality is just as you describe.  I don't suggest that it's improper for the NLRB to adjudicate statutory rights --- the Board never had to defer at all --- just that by doing so it would undercut the arbitral interpretation of  those rights.  That means that the many arbitration decisions on the statutory questions would not be final.  I'm not questioning the wisdom of the proposal, just noting that in our little corner of the legal world, this would be a pretty big development.  (My own preference would be to simply require the arbitrator to address the statutory issues; that's a clear matter of fact, which wouldn't prompt so many Spielberg/Olin challenges.)

Like you, I agree that the most interesting part is Solomon's willingness to tackle a precedent that survived the Clinton administration.  It will be interesting to see what the Board itself does.  The Clinton Board, although clearly pro-union, tried to avoid picking fights with Congress.  If this Board does pick a fight, it's bound to pay for it in just the ways you mention.  That might not matter so much if the NLRB (and NLRA, for that matter) had strong support in the Senate and White House, but I don't see that support.  I haven't gotten the impression that Obama has any interest in labor law, certainly not enough to expend his political capital to protect NLRB funding or the like.  Without that strong support, the NLRB is pretty exposed.

As always, comments are welcome.


January 25, 2011 in Labor Law | Permalink | Comments (3) | TrackBack (0)

Mining Deaths Up in 2010

Msha Carol Furnish (NKU Chase) sends us the following from the Department of Labor Mine Safety & Health Administration:

Mining fatalities in the United States significantly increased in 2010, following a year marked by the fewest deaths in mining history, according to the U.S. Department of Labor's Mine Safety and Health Administration. Seventy-one miners died on the job last year, compared to 34 in 2009. Forty-eight of those deaths occurred in coal mines, and 23 occurred at metal and nonmetal operations. Of the 71 mining fatalities reported, 23 of those victims were killed in surface mining accidents, while 48 miners died in underground mining accidents, 29 of whom were killed in the explosion at the Upper Big Branch mine in April. The leading cause of coal mining deaths was ignition or explosion, followed by powered haulage and roof falls. The leading cause of metal/nonmetal mining deaths was powered haulage, followed by falling or sliding material, and machinery...


January 25, 2011 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Henry L. Chambers, Jr., The Wild West of Supreme Court Employment Discrimination Jurisprudence, 61 S. Carolina L. Rev. 577 (2010).
  • John E. Rumel, Federal Disability Discrimination Law and the Toxic Workplace: A Critique of ADA and Section 504 Case Law Addressing Impairments Caused or Exacerbated by the Work Environment, 51 Santa Clara L. Rev. 515 (2011).
  • Gary Minda & Douglas Klein, The New Arbitral Paradigm in the Law of Work: How the Proposed Employee Free Choice Act Reinforces Supreme Court Arbitration Decisions in Denying Free Choice in the Workplace, 2010 Mich. St. L. Rev. 51.
  • Stephen Plass, Private Dispute Resolution and the Future of Institutional Workplace Discrimination, 54 Howard L. Rev. 45 (2010).
  • Alta M. Ray, The Blame Game: Family and Medical Leave Act Violations and Individual Liability in the Public and Private Sectors, 54 Howard L. Rev. 219 (2010).


January 25, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

Another Unanimous US Supreme Court Decision: Third-Party Retaliation Claims within the "Zone of Interest" Cognizable

4United States Supreme Court 112904 Thanks to Scott Bauries (Kentucky) for bringing to our attention the decision this morning in an important relation case in the employment discrimination context.  You might remember our discussions previously about Thompson v. North American Stainless:

[That case involves] employee, Eric Thompson, who was allegedly fired because his then-fiancée, Miriam Regalado, had filed a charge of sex discrimination with the EEOC over the actions of their shared employer.  In a fractured en banc decision, the Sixth Circuit Court of Appeals held that Thompson did not have a retaliation claim under § 704(a) of Title VII.

The Supreme Court unanimously reversed in an opinion by Justic Scalia, with Justices Ginsburg and Breyer concurring and Justice Kagan taking no part in the decision (I had predicted 8-1 in favor of plaintiff after oral argument). The Court adopted the “zone of interests” standing test from administrative law and held that the Plaintiff, as the fiancé of the employee retaliated against, is within the zone of interests protected by the Title VII retaliation provisions:

[The Court described the] “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”

Ginsburg concurred separately, with Breyer joining her, to emphasize that the "decision accords with the longstanding viewsof the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII."

Kudos to colleague and friend Eric Schnapper (Washington) who successfully argued this case for plaintiff!


January 24, 2011 in Employment Discrimination, Faculty News | Permalink | Comments (2) | TrackBack (0)

Georgia State Wins National Arbitration Competition

057 044 Congratulations to the Georgia State Arbitration Team (left), who defeated the NKU Chase Arbitration Team (right) in the final round of the American Bar Association National Arbitration Competition on Saturday in Chicago.  The problem set for the competition involved an employment arbitration agreement.  Doug Yarn coached the Georgia State team; I coached the NKU Chase team.


January 24, 2011 in Arbitration, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, January 21, 2011

2010 Union Data

BLS The Bureau of Labor Statistics has just released its 2010 figures for union coverage.   Overall union density went down from 12.3% to 11.9%; in the private sector, union density went down from 7.2% to 6.9%, and in the public sector, it went from 37.4% to 36.2%.  Among the other highlights:

   --The union membership rate for public sector workers (36.2  percent) was
     substantially higher than the rate for private sector workers (6.9 percent).

   --Workers in education, training, and library occupations had the highest
     unionization rate at 37.1 percent.

   --Black workers were more likely to be union members than were white, Asian,
     or Hispanic workers.

   --Among states, New York had the highest union membership rate (24.2 percent)
     and North Carolina had the lowest rate (3.2 percent).

For more  detailed compilations of the 2010 union membership figures, as well as historical data, you can see


January 21, 2011 in Government Reports | Permalink | Comments (3) | TrackBack (0)

Thursday, January 20, 2011

DOL Seeks Comments on Nursing Mothers Law

Breastfeeding As we have noted before, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide space and time for nursing mothers to express milk. This summer, the DOL issued a fact sheet explaining the provision and interpreting it. And then on December 21, the DOL asked the public for comments on the interpretation in the fact sheet.

This is just a reminder that the deadline for comments is approaching: it's February 22, just over a month away. Here are the details from the news release:

WHD News Release: [12/21/2010]
Contact Name: Dolline Hatchett
Phone Number: (202) 693-4651
Release Number: 10-1764-NAT

US Labor Department seeks comments on nursing mothers law

WASHINGTON — The U.S. Department of Labor's Wage and Hour Division is requesting public comments on its preliminary interpretations of a new provision of the Fair Labor Standards Act that requires employers to provide nursing mothers with reasonable break time and a private space for expressing breast milk while at work. This new provision — the Break Time for Nursing Mothers Law — became law when the Affordable Care Act was signed by the president in March 2010. The provision responds to a reality that many women face when they return to work after having a baby.

"Many women who want to continue breastfeeding their children simply can't because they do not have the necessary accommodations to do it," said Secretary of Labor Hilda L. Solis. "What the department is seeking to do is to develop guidance for employers that will assist them in complying with this new law and that will support women who choose to continue nursing once they return to work. And with input from the public — including working mothers and employers — we'll be successful in doing that."

The department will accept public comments in response to a request for information on its preliminary interpretations for the next 60 days — with a deadline of Feb. 22, 2011 — via

In order to increase awareness of the new law and provide the public with access to additional resources related to workplace lactation programs, the department has launched a Web page at Employers and employees are encouraged to visit the site. It provides general information and guidance that has been issued by the department on the new break time requirements for nursing mothers in the workplace, as well as a compilation of resources that employers, employees and other interested stakeholders might find useful as they develop workplace lactation programs. Many employers already have successfully implemented lactation programs using these and similar resources.

The Wage and Hour Division is responsible for administering and enforcing a number of federal labor laws, including the FLSA. The act's nursing mothers provision requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk. Employers also are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.

For information on federal laws concerning wage and hour issues, visit or call the Wage and Hour Division's toll-free helpline at 866-4US-WAGE (487-9243).

In my view, the DOL's interpretation is quite reasonable, balancing the valid concerns of employers with the needs of women who are still breastfeeding (and their children). I encourage anyone with an interest to take a look and provide a comment.

I was lucky enough to live in a state that passed similar legislation at the time I was breastfeeding my children, and although there were some transition challenges, the time and space for breaks to express milk made a world of difference for me, for other women working for my employer, and for my employer, too. We didn't have to choose between work and feeding our kids breastmilk, and there was significantly less disruption for our employer, which did not have to cover our work (or temporarily replace us) while we took longer leave. And though my employer was concerned about the practical issues--the space, who could use it, how it could be accessed, how to cover the time of the break--those concerns turned out to be easily dealt with. It was really a win-win, or maybe a win-win-win, if you include the kids, too.

Hat tip: Deborah Widiss


January 20, 2011 in Employment Discrimination, Worklife Issues, Workplace Trends | Permalink | Comments (3) | TrackBack (0)

National Federation of the Blind Jacobus tenBroek Disability Law Sympsosium

Conf Thanks to Mark Weber (DePaul) for bringing to my attention an interesting upcoming Symposium.  The National Federation of the Blind has just announced its 2011 Jacobus tenBroek Disability Law Symposium, which takes place April 14-15. 

Lou Ann Blake at NFB is the contact person. The relevant link is:

Mark comments that this is a truly useful conference for anyone involved in legal issues that pertain to disability.  More importantly, my good friend, Michael Waterstone (Loyola-LA), among others, will be speaking!


January 20, 2011 in Conferences & Colloquia, Disability | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 19, 2011

Unanimous US Supreme Court: Constitutional Right to Informational Privacy Not Violated by NASA Background Check

4United States Supreme Court 112904 Much thanks to Ross Runkel over at Employment Law Memo for posting this quick summary of the NASA v. Nelson informational privacy case that was decided this morning.

Here is Ross' summary:

The US Supreme Court unanimously decided that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.

Current employees of contractors working at NASA's Jet Propulsion Laboratory must complete a standard background check (which has long been used for prospective federal civil servants). The process includes a questionnaire asking whether the employee has "used, possessed, supplied, or manufactured illegal drugs" during the past year; if so, the employee must supply information about "treatment or counseling received." Employees must also sign a release allowing the Government to inquire of references about "any reason to question" the employee's "honesty or trustworthiness."

The Court held that the background checks are similar to those used in the public and private sectors for many years, and are reasonable in light of the Government interests at stake. The Court rejected arguments that the Government must show that the questions are "necessary" or are the least restrictive means of furthering its interests. Any information collected is protected from unwarranted disclosure by the Privacy Act.

What I found most interesting is that the language of the test is similar to that used in the recently decided Quon decision (involving the privacy right of a police officer in his employer-provided textting device) and further connects workplace privacy interests between the public and private sector.

Also, of much importance, the Court (in a majority opinion by Justice Alito) unanimously punted on whether there is a right to informational privacy in the constitution, a right that had not been given much play since Whalen v. Roe and Nixon in the late 1970s (Justices Scalia and Thomas both wrote separate concurring opinions disagreeing with the majority approach and would instead provided a definitive answer to the question of whether there is a constitutional right to informational privacy; that answer would be "no.") 

In any event, the Court "[a]ssum[ed], without deciding, that the Government’s challenged inquiries implicate[d] a privacy interest of constitutional significance," but did not address this important right in any more detail. The employees lost here even if there was such a right.  However, because the Court punted here like it did in Quon look for this constitutional right to be raised again when employers do not act in a reasonable manner in seeking to find out private information from prospective or current employees.


January 19, 2011 in Labor and Employment News, Public Employment Law, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

Duru's Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL

Advancing_the_Ball_jacket Congratulations to Jeremi Duru (Temple) on the publication of his impressive new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (Oxford University Press).
From the press release:

Two days before Super Bowl XLI in 2007, the game’s opposing head coaches posed with the trophy one of them would hoist after the contest. It was a fairly unremarkable event, except that both coaches were African American--a fact that was as much of a story as the game itself.  Head coaching in the NFL had long been a whites-only business, and just a few years earlier such a matchup was unthinkable. In 2002, however, two lawyers, Cyrus Mehri and Johnnie Cochran, together with a few grizzled NFL veterans, began a movement that would expand opportunities for coaching aspirants of color in the NFL and ultimately transform the League’s racial landscape.
Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America’s most popular sport and added an extraordinary new chapter to the civil rights story.

More information on the book is available at I look forward to reading this fascinating book. Everyone should check it out!  


January 18, 2011 in Book Club, Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

And a side of hush puppies with that....

While I was noodling around with my latest preoccupation, the faithless servant rule, I ran across this New Image  nugget from a recent Delaware case:

In conducting independent research, I found South Carolina cases holding that an employee's breach of his duty of loyalty works a forfeiture of the employee's right to claim any compensation under both statutory and common law theories. If this were the case, all of [the employees'] breach of contract claims would be unsustainable. But Hampshire did not rely on this line of cases or this argument. Although I love shrimp and grits, I do not pretend to be an expert in South Carolina employment law and will not rely on an argument an aggressive litigant like Hampshire could have made but did not. Given my lack of familiarity with South Carolina contract law, I choose to address the merits of each of [employee's] counterclaims based on the arguments the parties actually made.

Hampshire Group, Ltd. v. Kuttner, 2010 Del. Ch. LEXIS 144 (Del. Ch. July 12, 2010) (emphasis added; numerous citations omitted). Admittedly, this passage is found in footnote 342 of a 120-page opinion, so Vice Chancellor Strine is perhaps to be forgiven for not exploring further the fascinating question of when an employee can be required to forfeit compensation as a result of various breaches of duty, Further, since it's by no means clear to me that the faithless servant doctrine is a matter of "contract law" (in South Carolina or elsewhere), discretion might have been the better part of valor for the Vice Chancellor.   

January 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Bodie on Requiring Disclosures Prior to Representation Elections

Mbodie Matt Bodie (St. Louis U.) has just posted on SSRN his article (forthcoming FIU L. Rev. symposium issue) Mandatory Disclosure in the Market for Union Representation.  Here's the abstract:

For over sixty years, the National Labor Relations Board has followed the “laboratory conditions” doctrine in its regulation of representation elections. According to the doctrine, the Board must provide workers with an electoral “laboratory” in order to determine the “uninhibited desires” of the employees. Elections are vacated and conducted anew if the winning party violated the laboratory conditions. The laboratory conditions doctrine suggests an active and vigorous role for the Board in providing employees with the proper election environment. However, the Board’s regulation has largely focused on keeping out electoral impurities and has done little to make sure employees have enough information to make the most efficient decision.

In this contribution to the symposium “Whither the Board? The National Labor Relations Board at 75,” I examine how the Board could use a mandatory disclosure regime to provide information to employees when making their representation decision. The essay first examines the extent to which critical information is already disclosed through the NLRA as well as the Labor-Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act) and federal securities laws. The essay then outlines how the Board could pair this information with a limited scheme of information disclosure to provide a base level of election-related information to employees. The base level of disclosure will provide an informational foundation for employees in making their representation decisions.

This is a terrific article -- one that calls on Matt's unique expertise in both labor and corporate law. Matt's mandatory disclosure proposal works both ways -- he suggests, for example, that unions be required to disclose dues and fees, and the union's organization structure; he suggests that employers be required to disclose conflicts of interest with the union, financial information, and the like.


January 18, 2011 in Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Sunday, January 16, 2011

Recently Published Scholarship


  • Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L. Rev. 409 (2011).
  • Todd A. Palo, Minimum Wage, Justifiably Unenforced?, 35 Seton Hall Legis. J. 36 (2010).
  • Grayson Colt Holmes, The New Employment Verification Act: The Functionality and Constitutionality of Biometrics in the Hiring Process, 43 Connecticut L. Rev. 673 (2010).
  • Sue Landsittel, Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 Northwestern U. L. Rev. 1147 (2010).
  • Sara Witt, The Status of Graduate Students and That of Medical Residents Under the National Labor Relations Act As a Starting Point for Crafting a Statutory Definition of "Employee", 59 Case Western Res. L. Rev. 1221 (2009).


January 16, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)