Monday, February 28, 2011
The Legal Ethics Blog has a post (a re-post of an ABA Journal story) related to an employee's termination following some inflammatory Tweeting. A Deputy Attorney General in Indiana--conversing with a Mother Jones reporter--apparently Tweeted that police in Wisconsin should "use live ammunition" again demonstrators, who he considered "political enemies" and "thugs." He also said "damned right I advocate deadly force." The AG's office subsequently fired the attorney for a failure to maintain civility.
The Legal Ethics Blog has a good discussion on some of the free speech issues, particularly with regard to the limits on claims by public attorneys. The take: the law's a mess in this area
Following the House's proposed budget, the NLRB released a statement warning that the bill's $50 million cut would require a three-month shut down of the agency (although, as we noted earlier, many members consider that a good thing). This attempt to warn of decreased efficiency mirrors a Democratic representative's warning that the cuts would threaten the Board's ability to resolve a possible NFL work stoppage. Apparently, the White House wasn't happy, as the NLRB has since taken the statement off of its website (subscription required).
Hat Tip: Patrick Kavanagh
Friday, February 25, 2011
Matthew Dimick (Georgetown) has just published in Salon his article, "Maybe It's a Relic, But the Union Model is Essential." In the article, Dimick responds to arguments that labor unions have no role in the future of American liberalism. He acknowledges that labor is currently on the ropes--particularly the "old labor" model of unions--but argues that a modernized labor movement can and should play a crucial role in liberals' attempts to achieve their policy goals. An excerpt:
Michael Lind, writing in Salon earlier this week, offered a vision of liberalism without labor. The labor movement has constituted only one strand of the American liberal tradition, he contends, and it has hardly been the most popular or most supportive of its policy vision. . . . According to Lind, "Liberals must ask themselves whether defending archaic 1950s-style employment and benefit arrangements that survive as fossil relics in the public sector fits into a plausible and potentially popular vision of a reformed American social contract in the 21st century." . . .
Lind clearly sees himself as an avatar of American social democracy. Employer-based benefits that labor unions delivered are a relic; universal, contributory social insurance programs are the future of liberalism. I agree. But Lind, unfortunately, gives us absolutely no reason to think this vision can be achieved without a labor movement. I will explain why I think the labor movement is essential, but my argument depends only partly on the fact that unions turn out votes for Democrats -- a fact that, as Lind correctly notes, has no appeal outside liberal circles. . . .
The labor movement faces daunting odds. Lind is right to criticize the narrowness of Old Labor; the labor movement must still make great internal changes if it wants to revive itself. Yet whatever the prospects of a liberalism with labor, a liberalism without labor in a nation of staggering levels of economic inequality is even more unlikely.
Check it out!
Thanks to Bill Herbert for letting us know that the annual ABA National Symposium on Technology in Labor and Employment Law is going to be held at New York University School of Law on April 27-29, 2011.
The event is being organized by the Technology in the Practice and Workplace Committee and it is co-sponsored by the Center for Labor and Employment Law at New York University School of Law.
The media coverage and debate about the protests in Wisconsin over the Governor's plan to remove public sector collective bargaining rights has been extremely engaging. It's been frustrating to see it at times superficial and fascinating when at times it's been quite in depth. I have to admit that watching and reading it all has been both stressful and energizing--and public sector labor law isn't even really my field, although I am mostly a product of public schools, was a government worker for most of my time in practice, my parents have been public workers for much of their working lives (different government), and my grandparents too, were public workers (yet a third government), so I feel connected to the issue.
And so suitable for a Friday, when we all likely need some levity to relieve the stress, enjoy the 100 Best Protest Signs at the Wisconsin Capitol courtesy of Buzzfeed. My favorite, shown above, are the anguished snowpeople.
Hat tip: Dan Marks
The Mail Online (via PJH Law) reports that the government in England anticipates a massive strike over public-sector cutbacks, primarily in the prison sector. Three thousand soldiers are being trained as prison guards as the guards prepare to strike over plans to privatize two prisons. From the Daily Mail:
Officials have conducted ‘war games’ to ensure that strike breakers are available to run vital facilities such as the Tube and energy hotspots such as power stations.
Transport managers and prison bosses have been ordered to organise agency workers and teams of managers to cross picket lines amid fears of a nationwide summer of industrial action.
Ministers believe militant union bosses are planning to bring Britain to a halt with coordinated strikes on roads, railways, and throughout the public services.
The last decades have witnessed a growing concern over labour rights and working conditions in developing country locations supplying for the global market. The Better Work research conference Workers, Firms, and Government: Understanding labour compliance in global supply chains aims at analysing the impact of labour standards compliance in global supply chains on firms and workers, looking at the ‘business case’ as well as at the ‘development case’ for labour standards.
Abstracts should be submitted to [email protected] together with a short CV of the author(s). The email should reference “Better Work research conference” in the subject line.
Here are the deadlines:
- Abstract submission: 31 March 2011
- Communicating acceptance: 10 June 2011
- Full paper submission: 31 August 2011
Hat tip: Marley Weiss.
Thursday, February 24, 2011
The National Employment Law Project just released a report finding that recent job gains have been largely in low-wage work (defined as $9.03 -$12.91 per hour), in contrast to job losses in the recession being centered on mid- ($12.92 -$19.04 per hour) to -high ($19.05 -$31.40 per hour) paying jobs (you can see a fuller summary at the New York Times' Economix). According to NELP:
- Lower-wage industries constituted 23 percent of job loss, but fully 49 percent of recent growth
- Mid-wage industries constituted 36 percent of job loss, and 37 percent of recent growth
- Higher-wage industries constituted 40 percent of job loss, but only 14 percent of recent growth
This ratio, and the slow return of the job market, is also worse than we saw in the 2001 recovery. Not a surprise given the depth of this recession, of course.
Hat tip: Laura Cooper.
Wednesday, February 23, 2011
USA Today/Gallup released a poll today showing that a majority of the public opposes attempts, such as Gov. Walker's bill in Wisconsin, to reduce public workers' collective bargaining rights. The poll, which was conducted on Feb. 21, found that 33% of respondents supported such measure while 61% opposed (Democrats were 18% for/78% against; Republicans 54% for/41% against; Independents 31% for/62% against). Those numbers are pretty surprising given the rhetoric that supporters such as Gov. Walker have been using that suggest that the public is on their side. Obviously, this isn't broken down by state, but it's hard to believe that Wisconsin is less supportive of public collective-bargaining than the nation at large. Moreover, even the Republican numbers are surprising--I would've thought a far higher number supporting restrictions on bargaining (perhaps indicating that more polling is needed).
Another finding in the poll show that when asked whether public unions were helpful or harmful to a state, respondants were split, with 45% saying more helpful and 46% more harmful (Democrats were 65% helpful/27% harmful; Republicans 26% helpful/67% harmful; Independents 42% helpful/49% harmful)
If this poll accurately reflects the public view of this issue, then it might show that politicians pushing these measures--at least in states with similar or greater support for public unions--are placing themselves at risk. It also suggests that unions are right to put a lot of energy in opposing the measures.
Hat Tip: Alex Long
David Foley has a nice post up on LaborRelated about the ways that technological advancements are changing things in labor and employment law. Here's an excerpt:
As more and more employees have smart phones, tablets, and other ways to perpetually be at the beck and call of their employers, the once fairly clear distinction between working hours and personal hours has blurred considerably. The most obvious implications for such blurring involves wage and hour laws: are employees being compensated for the time they spend answering phone calls and emails at home? Additionally, this blurring of work/life is sure to appear in Title VII cases: What happens when an employee gets the 3 a.m. phone call and gives the wrong answer? O.k., but what happens if the employee gave the wrong answer because he was on necessary medication? What happens if all of the other employees answer their phone calls, texts and emails whenever the boss beckons, but a religious employee won't do so on the Sabbath, holy days, or anytime he is volunteering at his local church (which happens to be almost every night)?
Tuesday, February 22, 2011
Alex Colvin (Cornell ILR) has just posted his new groundbreaking empirical study of employment arbitration. The article is An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Leg. Studies 1 (2011). Though one could make the argument (as Estreicher and others have) that comparing arbitration and litigation outcomes is like comparing apples and oranges, it's hard to argue with the numbers on the repeat-player effect. Here's Alex's abstract:
Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate among the cases was 21.4 percent, which is lower than employee win rates reported in employment litigation trials; (2) in cases won by employees, the median award amount was $36,500 and the mean was $109,858, both of which are substantially lower than award amounts reported in employment litigation; (3) mean time to disposition in arbitration was 284.4 days for cases that settled and 361.5 days for cases decided after a hearing, which is substantially shorter than times to disposition in litigation; (4) mean arbitration fees were $6,340 per case overall, $11,070 for cases disposed of by an award following a hearing, and in 97 percent of these cases the employer paid 100 percent of the arbitration fees beyond a small filing fee, pursuant to AAA procedures; (5) in 82.4 percent of the cases, the employees involved made less than $100,000 per year; and (6) the mean amount claimed was $844,814 and 75 percent of all claims were greater than $36,000. The study also analyzes whether there is a repeat player effect in employer arbitration. The results provide strong evidence of a repeat employer effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, which could be explained by various advantages accruing to larger organizations with greater resources and expertise in dispute resolution procedures. The results also indicate the existence of a significant repeat-employer–arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration.
Monday, February 21, 2011
Simon Cremer (right), who runs a flooring firm in Witham (Essex, U.K.) discovered that Mark Gilbert (left) had written out a company check to himself and then cashed it. Cremer then paraded Gilbert through the streets of town before taking him to the police station. Gilbert admitted the crime to police and was let off with a warning. Gilbert then sued Cremer for “humiliation” and two years’ lost earnings in the County Court. Now, the The Telegraph reports (hat tip: PJH Law) that the case settled with Cremer paying Gilbert £5,000 in compensation and £8,000 in court costs.
- Allen R. Kamp, Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable, 39 Capital U. L. Rev. 1 (2011).
- Jill M. Fraley, Finding Possession: Labor, Waste, and teh Evolution of Property, 39 Capital U. L. Rev. 51 (2011).
- Erica E. Hoodhood, The Quintessential Employer's Dilemma: Combating Title VII Litigation by Meeting the Elusive Strong Basis in Evidence Standard, 45 Valparaiso U. L. Rev. 111 (2010).
- Joshua A. Reece, Throwing the Red Flag on the Commissioner: How Independent Arbitrators Can Fit into the NFL's Off-Field Discipline Procedures Under the NFL Collective Bargaining Agreement, 45 Valparaiso U. L. Rev. 359 (2010).
- David B. Torrey, The Commonwealth Court of Pennsylvania and the Workers' Compensation Act: Background and Jurisprudence. Judge Alexander F. Barbieri, and Selected Precedents, 20 Widener L.J. 87 (2010).
- James L. Crawford & Anne E. Covey, Contribution of the Commonwealth Court to Public Employee Labor Law: The First Forty Years, 20 Widener L.J. 143 (2010).
- Daniel R. Schuckers & James K. Bradley, Contribution of Pennsylvania's Commonwealth Court to Unemployment Compensation Law Since 1970, 20 Widener L.J. 173 (2010).
Like many of us, I was pleased with the outcome in Thompson v. North American Stainless, LP holding that Title VII’s antiretaliation principle applies to what has been called third party-retaliation, that is, retaliating against B in response to A’s protected conduct. To be effective, of course, B must be someone who A cares about, and in North American Stainless itself plaintiff claimed that employer retaliated for his fiance’s (Regalado) filing a charge of discrimination against it by firing him (Thompson).
To reach its result, the Court framed the issues as twofold: whether Thompson’s firing in such circumstances would violate Title VII and whether the statute granted Thompson a cause of action.
Dividing the inquiry into two separate questions was scarcely inevitable. I mean, if the firing were illegal but Thompson did not have a claim, the only one who could sue would be Regalado, and it’s not clear what her remedy would be – an injunction in her suit ordering the employer to rehire Thompson? That seems a stretch, and, certainly, normal backpay relief would be inapplicable. It’s conceivable that the Regalado could recover for her emotional distress in causing her finance to be fired, but that’s certainly not the most likely of remedies. In the meantime, under this view, Thompson would suffer loss of backpay and possible other damages and recover nothing.
Of course, that’s not what the Court held – it not only found a violation but also held that Thompson could sue, with Justice Scalia writing for a unanimous Court (Kagen recused and Ginsberg/Breyer, who concurred on deference to the EEOC grounds, also joined the Court’s opinion).
Still, this somewhat labored line of analysis suggested that something else was up, and I have learned to look for the hook when the Court dangles an especially juicy worm. I didn’t have far to seek. For the Court, the “more difficult question” was standing. And Scalia began this portion of the opinion rejecting “dicta” in earlier Fair Housing Act cases suggested that Title VII “person aggrieved” standing reached as far as Article III would permit. Such dictum turns out to be “ill-considered.”
Like Goldilocks, Scalia found Article III standing too broad but limiting standing to the employee who engaged in the protected conduct too narrow. Instead, the "just right" standard was drawn from the Administrative Procedure Act, permitting suit by those within the “zone of interests” the statute was designed to protect. Applying that test, Thompson was not mere “collateral damage” of the violation and could therefore sue.
I've never understood "zone of interests" -- except as a phrase that gives the court leeway to allow a plaintiff to sue or not as it chooses. So I'm a little concerned that the test may be used to contract the statute's reach. But beyond that, Scalia's use of the term “collateral damage” does not exactly clarify the issue. Scalia can’t be saying that plaintiffs who are hurt by virtue of discrimination targeted against others suffer only collateral damage and can't sue – that exactly describes Thompson!
And how about those, like the male plaintiffs in Anjelino v. New York Times, 200 F.3d 73 (3d Cir. 1999), who claimed to have been denied employment because the employer did not want to hire women higher up on the eligibility list? They seem to be collateral damage within Scalia’s formulation, which would make the Third Circuit's grant of standing to them incorrect.
But it’s not clear why they are different from Thompson. It’s true that the employer allegedly intended to act against Thompson in order to hurt Regalado, while the Anjelinoemployer, by hypothesis, would have been happy to hire the males if it didn’t have to hire females. But presumably North American Stainless would have been happy to keep Thompson if it didn't want to retaliate against Regalado.
In any event, what’s the point of splitting these hairs when the Court seems to concede there’s a violation to begin with? In Anjelino, had both men and women sued, should the remedy be limited to requiring the employer to hire the females because the males had no standing?
The good news is that the Court did not, expressly at least, overturn the cases that accorded standing for those denied the benefits of interracial association. I assume the interest of whites in asociating with women on a position of equality in the workplace continues to be within Title VII's zone of interests.
In any event, maybe, establishing third-party retaliation standing in North American Stainless is worth the trade-off a unanimous decision contracting the reach of Title VII standing more generally. I leave it to wiser heads to figure that out.
Postscript. The North American Stainless Court avoided deciding which third parties might be protected by its rule – probably “firing a close family member” and probably not “milder reprisal against a mere acquaintance,” but “beyond that we are reluctant to generalize.” Context is apparently all. But the Court did stress “the provision’s standard for judging harm must be objective.” That might literally be true if limited to "juding harm,"
But the logic of the underlying claim – that retaliation is actionable when likely to deter a reasonable employee from engaging in protected conduct-- suggests that subjectivity needs to enter the picture where the employer's motives are concerned. Isn't the correct test whether the actual employer (not a reasonable one) actually believed that acting against B would deter/punish protected conduct by a reasonable employee in A's position?
Saturday, February 19, 2011
As we've posted, Paul has been quite involved with opposition to the Wisconsin's governor's recent attempt to sharply reduce public section collective-bargaining. He has an op-ed in Madison's Capitol Times explaining his opposition, part of which provides five suggested reason to oppose the bill:
1. Unions are democratic organizations that provide workers a collective voice in society and in the workplace. They are a countervailing power to employers, employer organizations and governments that promote business interests at the expense of working people and fair social values.
2. European societies function quite well with a much more extensive and robust public (and private) sector union voice. Despite the current problems in the European Union, they still seem to compete well globally while providing comparable if not superior wages, benefits and working conditions.
3. Unions provide protections on the job beyond wages and benefits, most notably procedures for due process protections. These are democratic principles.
4. Unions helped build and sustain the middle class. Walker’s proposals amount to “class warfare” in two ways: by fomenting intra-class warfare and by supporting the growth of income and wealth disparities favoring the elites in society. Note that the firefighters and police officers are excluded from his attack on unions. This is a classic divide-and-conquer management strategy.
5. Civilized societies recognize worker rights (collective bargaining) as a human right.
In short, this is not about the right to have a say on “benefits,” as some misinformed news outlets have put it. No, this is about securing for workers basic human rights that international law recognizes.
Paul also question whether this really has anything to do with the state budget--a question that has particular weight given that the governor just last month pushed through a large tax break package.
Friday, February 18, 2011
Scott Bauries (Kentucky), along with a student co-author, Patrick Schach, have published a short piece on the expansion of the Garcetti rule in the federal appellate courts in educational employee claims. The name of the piece is: Coloring Outside of the Lines: Garcetti in the Federal Appellate Courts.
Here is the abstract:
This article examines the Supreme Court’s 2006 decision in Garcetti v. Ceballos in a novel light. Paying careful attention to the specific facts that were before the Court in Garcetti, and to the Court’s perception of these facts against the background of employee speech case law, the authors demonstrate that the Garcetti rule that public employee speech made “pursuant to official duties” is outside the First Amendment’s protection exempts a very narrow category of speech - only that speech which an employee is contractually bound to make. However, based on a review of the education-related cases applying Garcetti in the federal appellate courts, the authors show that the courts have applied a much broader version of the Garcetti rule than the Supreme Court initially developed, and have accordingly further limited public employee speech rights in the guise of applying the Garcetti precedent.
Part of the blame for this set of rights-limiting appellate rulings undoubtedly lays with the Supreme Court’s failure to clearly articulate a workable test for determining whether an employee’s speech was rendered “pursuant to official duties.” Accordingly, the authors advance just such a workable test, which both mutes Justice Souter’s expressed concerns over indeterminacy and allows for a more principled approach to applying the threshold First Amendment exemption without limiting public educational employee speech rights further than the Garcetti decision itself limited such rights. The authors show that the application of this proposed test would have led to the opposite result on the Garcetti threshold question in most, if not all, of the cases reviewed.
The authors acknowledge that, even using their proposed test, the Garcetti rule by its own terms appears to exempt public employee speech pursuant to duties of (1) auditing and fraud prevention, and (2) teaching and scholarship from the First Amendment’s protections. These categories of speech are uniquely valuable to the public, and subjecting such speech to unilateral employer control effectively eliminates the primary justification for the speech’s existence. The authors survey recent decisions in cases presenting claims based on internal auditing, teaching, and scholarship, identify some emerging trends, and conclude by offering some preliminary thoughts as to the direction that future rulings should pursue.
Scott tells us that this short piece represents a portion of the longer project (still in progress) that he presented at the Labor and Employment Law Colloquium in St. Louis in September. I very much look forward to reading this and the next piece!
Sean C. Koehler, Senior Articles Editor of the Fordham Urban Law Journal, writes to let us know about the publication of several labor/employment essays in the Urban Law Journal's book on immigration policy. This is a themed volume with fourteen articles and essays from many of the leaders in the immigration law field. Each piece either suggests a specific fix to the U.S. Immigration system or discusses in depth a specific flaw in the system. Here are the essays with a labor/employment angle:
- David Bacon & Bill Ong Hing: The Rise and Fall of Employer Sanctions.
- Chris Gafner & Stephen Yale-Loehr: Attracting The Best and The Brightest: A Critique of the Current U.S. Immigration System.
- Leticia M. Saucedo: Immigration Enforcement Versus Employment Law Enforcement: The Case For Integrated Protections In the Immigrant Workplace.
- Peter H. Schuck & John E. Tyler: Making the Case For Changing U.S. Policy Regarding Highly Skilled Immigrants.
OK, slight exaggeration, but Paul is in Madison supporting state employees in the face of the governor's attempts to limit public-sector unions' ability to represent government workers and limit those workers' ability to object generally to working conditions. Here is what he said today in the BNA Daily Labor Report:
Paul M. Secunda, a professor of labor and employment law at Marquette University Law School in Milwaukee, said he opposes S.B. 11 on both moral and legal grounds. He characterized the proposal as an exercise in political retribution, rather than budgetary restraint. He added that S.B. 11 is setting the tone for similar action in Florida, Indiana, Nevada, and Ohio.
“It doesn't square at all with the history of labor law,’’ Secunda told BNA. “Wisconsin was the very first state to have public sector bargaining laws similar to the National Labor Relations Act. Really, this law is not about repairing the budget. It's about killing the unions. It's about taking away the power of workers to negotiate fairly in their workplace. We know this because while the bill cuts the budget, there are a number of things that have nothing to do with cost savings. So this is just a punitive bill by a conservative Republican to punish the unions.’’
Secunda said he would help draft a legal challenge to S.B. 11 if it is enacted in the near future. He pointed to numerous strategies under the U.S. Constitution and the Wisconsin Constitution on which to challenge the proposal. He expressed concerns about the bill's impact on freedom of association and equal protection. He also expressed doubts about lawmakers' authority to bar employers from collecting dues on behalf of public sector unions.
Meanwhile, Democratic state senators have fled, hoping to ensure there will be no quorum to act on the the governor's bill. Republicans have responded by calling on the state police to round up the lawmakers and bring them back to Madison, but those state police have no power to bring the Senators back from Illinois and other states where they are thought to be in hiding.
Here's some more excerpts from the AP report:
Wisconsin was in political limbo, if not chaos, Thursday as a growing number of protesters swarmed the Capitol to denounce the new Republican governor's plan to strip collective bargaining rights from most public sector unions, and Democratic lawmakers fled the state, denying the GOP majority the quorum it needs to pass the bill.
Gov. Scott Walker's budget repair bill has sparked days of demonstrations in Wisconsin and is one of a number of attempts by newly elected Republicans to strike at public sector unions, one of the pillars of the Democratic Party.
Thursday, February 17, 2011
Wisconsin public employees got a shot of support from Obama, who has personally spoken up against Gov. Walker's recent moves to severely limit public collective bargaining and has lent organizational support for opposition efforts. From the Washington Post:
Obama accused Scott Walker, the state's new Republican governor, of unleashing an "assault" on unions in pushing emergency legislation that would nullify collective-bargaining agreements that affect most public employees, including teachers.
The president's political machine worked in close coordination Thursday with state and national union officials to mobilize thousands of protesters to gather in Madison and to plan similar demonstrations in other state capitals.
Their efforts began to spread, as thousands of labor supporters turned out for a hearing in Columbus, Ohio, to protest a measure from Gov. John Kasich (R) that would cut collective-bargaining rights.
By the end of the day, Democratic Party officials were working to organize additional demonstrations in Ohio and Indiana, where an effort is underway to trim benefits for public workers. Some union activists predicted similar protests in Missouri, New Jersey and Pennsylvania.
We'll obviously have a lot more on this, as the story looks like it's not going away any time soon.
Hat Tip: Patrick Kavanagh