Saturday, March 31, 2012

Do English-Only Rules Violate Section 7?

EnglishLauren Weinstein (Harvard '12) has posted on SSRN her student article (2012 Harv. CR-CL LR) The Role of Labor Law in Challenging English-Only Policies.  Here's the abstract of this sensible article:

Policies requiring employees to speaking English only in the workplace disadvantage bilingual and non-English speaking employees. Employees typically challenge these policies under Title VII's prohibition on discrimination on the basis of national origin, however, those challenges have been largely unsuccessful due to (i) permissive business justification analysis, and (ii) lack of deference to EEOC guidelines prohibiting linguistic discrimination.

This article proposes that English-only policies violate Section 7 of the NLRA, which protects the right to communicate at the workplace. Because English-only policies naturally interfere with the right of some employees to communicate in the language in which they are most comfortable they can constitute a formidable obstacle to unionization efforts. Moreover, challenges under the NLRA may have a higher likelihood of success because the business justification analysis is more demanding under the NLRA, and there is no deference problem given that Section 7 protections are well-established under Supreme Court precedent. Despite some of the shortcomings of the NLRA, namely a lackluster remedial regime, Section 7 challenges provide a promising avenue for employees or labor organizers seeking to challenge English-only policies.


March 31, 2012 in Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, March 30, 2012

Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill

WisconsinThe Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker today on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10's passage continues to have ramifications as Governor Walker was officially subjected to a recall election today (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.

I just read this Act 10 decision and my conclusion is: good, but not great. Most of Act 10 survives on equal protection grounds, the court buying the Walker Administration's hard-to-believe argument that it only applies to non-public safety employees, and not public safety officials, because of concerns that public safety employees would be needed if the other public employees went out on strike (even though such strikes would be illegal under Wisconsin law).

Nevertheless, in a clear victory for the public-sector unions in Wisconsin, the onerous recertification and anti-dues check off provisions, that again only applied to non-public safety employees, were enjoined on both equal protection and First Amendment grounds. The cout found asolutely no connected between the Walker administration's purported justifications for treating these two groups of public employees differently and the need for these two punitive provisions. Indeed, the court goes out of its way to all but say that the Walker administration passed these provisions as political payback for those public safety unions that supported Walker in the 2010 election. 

Special kudos to friend of the blog, Joe Slater (Toledo), who was cited twice by the court.  Once for his contribution to the Marquette Law Review Symposium in 2010: Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution, 94 MARQ. L. REV. 917, 927 n.65 (2011), and once for the affidavit he submitted on behalf of plaintiff unions, stating that not a single other state in the union had such an onerous recertification provision.


March 30, 2012 in Public Employment Law | Permalink | Comments (2) | TrackBack (0)

Thursday, March 29, 2012

Brown on East Asian LEL

EalCongratulations to Ron Brown (Hawai'i) on the publication of his book East Asian Labor and Employment Law: International and Comparative Context (Cambridge 2012).  I've ordered my copy and am looking forward to reading it.  Here's the publisher's description:

This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administration, workers' rights, trade unions, and dispute resolution). The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to business investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.


March 29, 2012 in Books, International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Howe on Government as Role Model in Union Relations

HoweJohn Howe (Melbourne) has just posted on SSRN his chapter, from Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective (W.B. Creighton & A. Forsyth, eds., forthcoming 2012), Government as Industrial Relations Role Model: The Promotion of Collective Bargaining and Workplace Cooperation by Non-Legislative Mechanisms.  Here's the abstract and an excerpt from the Introduction.  Governors in Wisconsin and Ohio might want to take notes.

Most collective bargaining regimes operate by establishing a right to bargain collectively at enterprise or industry level. In theory, the law operates to facilitate collective bargaining by providing that employers must not refuse to bargain collectively with employee representatives where a sufficient number of employees wish that to happen, even where individual employees are in a weak bargaining position relative to their employers.

In systems where the state wishes to encourage collective bargaining, non-legislative means can be employed to promote or encourage collective bargaining as a supplement to the procedural right to bargain. Sometimes this is through the state operating as a ‘model employer’ or role model, thereby demonstrating its commitment to collective employment practices. Beyond this, government may make adoption or consideration of collective practices a condition of the receipt of public finance under government procurement programs, grants and subsidies and so on. It might also seek to encourage the take up of the desired practices through education and information programs. Failure to consider these non-legislative mechanisms leaves an incomplete picture of the role of the state in regulating work.


March 29, 2012 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 28, 2012

Thoughts on the Flynn Report

FLynnIn light of Terrence Flynn’s response to allegations of ethical breaches, I wanted to give some additional thoughts.  Flynn's attorney sent this response to the IG; you can compare it to the IG report and see what you think.  The letter notes that there wasn't much time to prepare a response, so I'm not going to analyze it as the final word, but it doesn't leave me convinced that everything was innocuous or inadvertent.  In addition, Flynn responded to the media, saying among other things, that "I am troubled by the politicization of this internal matter, in which I have committed no wrongdoing, and feel that this manufactured controversy is emblematic of the mean-spirited political theatrics that currently paralyze Washington and deter individuals from public service.”

First, Flynn’s argument that he did nothing wrong is unconvincing.  I don’t know enough about the relevant criminal statutes at play (comments to my original post listed a couple) to make a conclusion regarding criminal liability, or security law violations if anyone traded on some of his information, but I feel confident in saying that providing assistance and, especially, confidential information to parties involved in litigation against the NLRB is something that Board members shouldn't do. Indeed, I can’t believe that Flynn, or any other Board member, would say “no problem” to an employee who was giving similar information to former NLRB Member Craig Becker to assist him with a challenge that the SEIU was bringing against a Board decision or rule (that's a made-up hypo; I'm not even sure what Becker's doing now).  More significantly, by saying that this isn’t a problem, he’s in effect announcing that he may continue to pass along this type of information.  Given that, how can the NLRB function properly with him working there in any capacity?  How are other Board members supposed to deliberate knowing that their discussions lack confidentiality?  I really can’t see any way for the Board to get back to normal without Flynn resigning or being removed.

Second, Flynn’s attempt to blame his troubles on politics doesn’t pass the laugh test.  Indeed, I’ve been shocked at how muted unions and the Democrats have been on this, with the AFL-CIO’s call for his resignation being the most high-profile.  I actually like allowing the investigation to continue without the histrionics, which is an incredible contrast to what NLRB opponents have done.  One needs only to think about the Boeing case—which ironically was one of the subjects of Flynn’s e-mails—as a contrast to what’s going on now.  Moreover, I don’t know how the investigation started, but even if a political motive existed, the IG’s report stands on its own. Maybe politics played a role in bringing it to light, but I don’t see a case of some innocent government official being unfairly impugned for political gain (again, see Boeing).  Finally, ask yourself what would be happening now if a current Democratic NLRB Member was the subject of this IG report and had passed information to, hypothetically, Craig Becker or Wilma Liebman.  

Stay tuned, as there's obviously plenty more to come on this one.


March 28, 2012 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Jill D. Weinberg & Laura Beth Nielsen, Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking [though you can't tell from the title, the article article uses civil rights employment cases as its dataset], 85 S. Cal. L. Rev. 313 (2012).
  • Charles C. Mathes, The Department of Labor's Changing Policies Toward the H-2B Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801 (2012).


March 28, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Yuracko on the Unfulfilled Promise of the Prohibition Against Sex Stereotyping

YurackoKim Yuracko (Northwestern) has just posted on SSRN her article (forthcoming, 2012 U. Pa. L. Rev.) Soul of a Woman: The Sex Stereotyping Prohibition at Work.  Here's the abstract:

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually does mean in courts’ current sex discrimination jurisprudence. I reject the interpretations most often offered by scholars — namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic balancing test. I conclude by arguing that the prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways not previously recognized. While the prohibition has extended Title VII’s protection to workers who had previously been excluded, it does so by relying on and reinforcing traditional gender categories. Moreover, by doing so the prohibition actually protects some individuals at the expense of the class whose subordination stemming from socially salient gender norms remains intact.


March 28, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Secunda on the Comparative Lack of Privatization in American Social Insurance Programs

SecundaPaul Secunda (Marquette) has just posted on SSRN his timely article Explaining the Lack of Non-Public Actors in the U.S. Public Social Insurance System.  Here's the abstract:

There are currently very few non-public actors playing a role in the federal and state social insurance programs in the United States. Yet, “projected long-run program costs for both Medicare and Social Security are not sustainable under currently scheduled financing, and will require legislative Bombcorrections if disruptive consequences for beneficiaries and taxpayers are to be avoided.” As financial pressure increases on these programs, as it surely will, Americans may become more willing to go the privatization route and engage more non-public actors in the provision of social insurance.

In the meantime, the paradox of the American social insurance system is that while disclaiming any desire for socialist-type programs, most Americans today believe that only the government should be responsible for providing the social insurance safety net. On the one hand, this could be because U.S. citizens are seeking to hold on to what meager social safety net they have left. On the other hand, scarred from the recent global recession and underhanded actions by many private investment firms and banks, most Americans are not yet ready to place their faith in these private actors, even if more efficiency, cost-savings, and activation could be achieved by doing so.

What this all means is that unlike its counterparts in Europe, the United States social insurance system does not appear to have an incipient movement in which non-public actors will start to play a larger role in any American social insurance program in the near future. At the same time, the stability of the current system means there is unlikely to be the same diminishment in solidarity that is sometimes seen with the introduction of non-public actors into these programs in other countries.


March 27, 2012 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, March 26, 2012

Recently Published Scholarship: Hofstra LELJ

HofstraHofstra Labor & Employment Law Journal
Volume 29, Number 1, Fall 2011



  • Kenneth Casebeer, O My Sons and Daughters, How Do I Immiserate Thee: Let Me Count the Ways, pg. 1.
  • Harry G. Hutchison, Waging War on "Unemployables"? Race, Low-Wage Work, and Minimum Wages: The New Evidence, pg. 25.
  • Emily S. Miller, The Strongest Defense You've Never Heard Of: The Constitution's Federal Enclave Doctrine and its Effect on Litigants, States, and Congress, pg. 73.
  • Marisa Warren and Arnie Pedowitz, Social Media, Trade Secrets, Duties of Loyalty, Restrictive Covenants and Yes, the Sky is Falling, pg. 99.
  • Jay Youngdahl, The Time Has Come for a Sustainable Theory of Fiduciary Duty in Investment, pg. 115.
  • David Barnhorn and Joey E. Pegram, Speak the Truth and Tell No Lies: An Update for the Employee Polygraph Protection Act, pg. 141.
  • Ashley L. Behre, Coming Out to Fight for Our Country: Achieving Equality for Gay Service Members in Post-"Don't Ask, Don't Tell" Military, pg. 189.
  • Phillip K. Vacchio and Joshua L. Wolinsky, Genetic Information Nondiscrimination Act of 2008: It's in Title VII's Genes, pg. 229.


March 26, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Call for Proposals for the Seventh Annual Seton Hall Employment & Labor Law Scholars' Forum

Seton HallThanks to Tim Glynn (Seton Hall) for giving us the heads up on this Call for Proposals for the Seventh Annual Seton Hall Employment & Labor Law Scholars' Forum which will be held at the Seton Hall Law School, October 5-6, 2012.  From the press release:

Building on the successes of the last six years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents. 

For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.

The event will be held at Seton Hall Law School, October 5-6, 2012.  As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere.  Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.  

Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Friday, June 1, 2012.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or 

Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 10, 2012.

For further information, including past participants, visit our Forum website:


March 26, 2012 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Friday, March 23, 2012

Ethical Allegations Against NLRB Member Flynn


UPDATE:  The Wall Street Journal also has an artice on this matter, with some additional information, including the fact that Rep. Miller has referred the matter to AG Eric Holder, statements by Kirsanow that "I received no inside information whatsoever," and a note that Schaumber currently advices Mitt Romney on labor matters (neither Schaumber nor the Romney campaign would comment).]

The NLRB's IG just released a report into alleged ethical breaches by NLRB Member Flynn and found them to be meritorious.  They involve giving help and condifential information to former NLRB Member Schaumber and Kirsanow for some of their pending litigation when Flynn was Chief Counsel to Member Hayes; the IG also found that Flynn wasn't truthful during the investigation.  He also sent information to attorneys at his former firm, Crowell & Moring. You should definitely read the report, which goes through a long list of correspondence [ Download Flynn Report], but the Washington Post summarizes some of the bigger findings:

The board’s inspector general said Terence Flynn violated ethics rules by sharing confidential details on the status of pending cases and the likely votes of other members before decisions were released. A report from Inspector General David Berry also faulted Flynn for a “lack of candor” during the investigation. . . .

Flynn told attorneys representing clients before the board about pre-decisional votes, the early positions of other members, status of cases and the analysis of a pending rulemaking that was planned to streamline union elections, the report said.

In one instance, the report said, Flynn even helped an outside lawyer conduct research on how to attack a board rule that requires businesses to put up posters explaining union rights. . . .

I don't know what, if any, penalties Flynn could face--or for that matter Schaumber and Kirsanow who should've known that the assistance was improper.  The actions with Schaumber were particularly extensive.  There was less involvement with Kirsanow, but it's notable that he did not respond to the IG's requests for an interview.  In short, these are serious ethical violations and leaves a black mark on all three of these NLRB members.

Hat Tip:  Patrick Kavanagh


March 23, 2012 in Labor and Employment News | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 21, 2012

Wasserman on Hosanna-Tabor and Jurisdiction

Faculty_WassermanHowardAnd in keeping with the federal courts/Supreme Court theme, Howard Wasserman (Florida International) has a really interesting essay on the Supreme Court's holding in Hosanna-Tabor Lutheran School v. EEOC that the ministerial exception is not jurisdictional in PENNumbra: Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exception. From the introduction:

Hosanna-Tabor correctly characterized the ministerial exemption as a limitation on the merits of the employment discrimination claim.  I repeatedly argued for this position before the Court entered the mix, including in this Essay, which was written and accepted for publication in October 2011 (before the Court discovered unanimity and thus was able to decide the case fairly quickly).  But the Court’s jurisdictionality footnote was entirely conclusory, failing to explain why the issue controls whether the plaintiff’s allegations entitle him to relief rather than whether the court has power to hear the case.

It thus remains to unpack why the exemption is, in fact, a merits doctrine.  First, doing so demonstrates the correctness of the conclusion in  Hosanna-Tabor, putting to rest any normative dispute on the issue.  Second, mischaracterization of the ministerial exemption resulted from the same category errors that plague characterization of other legal issues; this issue illustrates nicely the routine conflation of jurisdiction and merits and courts’ failure to maintain clean lines between doctrines and underlying concepts. While the Court’s conclu-sion that the exemption is merits-based might be enough to signal lower courts on future jurisdictionality issues, actual analysis and explanation may better enable them to understand and recognize the limits of what goes to jurisdiction and, inversely, the breadth of what goes to substantive merits.

This Essay, I hope, provides that analysis.

I haven't had a chance yet to read the whole thing carefully, but what I've seen so far is a great discussion of an issue vexing to courts, litigants, and scholars alike.


March 21, 2012 in Commentary, Disability, Employment Discrimination, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Cunningham-Parmeter on Federalism and Immigration

Cunningham_web-1-10Apropos of yesterday's federalism decision in the FMLA/11th Amendment context, Keith Cunningham-Parmeter (Willamette) has a nice piece on federalism in immigration laws: Forced Federalism: States as Laboratories of Immigration Reform. Here's the abstract:

This Article questions the experimental value of state immigration laws. Analyzing the Supreme Court’s major decisions in this area, including Chamber of Commerce v. Whiting, the Article explains why state immigration laws fail to satisfy two necessary conditions of effective experimentation: internalization and replication. When states internalize costs, other jurisdictions can effectively evaluate outcomes. Replication occurs when states take diverse approaches to common problems. Unfortunately, state immigration laws do not meet these criteria because states operate in a system of “forced federalism”: a division of power between the two levels of government in which subnational jurisdictions attempt to force the federal government to accept state-defined immigration enforcement schemes. But as states thrust their chosen levels of immigration control on the federal government, their potential to innovate on immigration matters is quite restricted. Essentially, forced federalism limits states to a narrow set of enforcement decisions based on federally defined norms — far from the type of diverse testing associated with true innovation. 

Today’s state immigration laws also fail to internalize costs — another condition of successful subnational tests. Restrictionist states that encourage unauthorized immigrants to resettle in other jurisdictions export the economic damage they claim illegal immigration causes. In addition to economic spillovers, laboratory states export social costs to the nation by fundamentally altering the concept of a shared national identity. For example, when immigrants flee restrictionist states in order to avoid racial profiling or harassment, the national commitment to values such as egalitarianism and nondiscrimination is weakened. These harms are not confined to restrictionist states but are felt by the nation as a whole. 

Not all subjects are ripe for local experimentation and not all tests produce valid results. Despite the appealing image of states as laboratories, today’s immigration experiments will not advance the nation’s ongoing search for sounder immigration policies.

Very timely issue and thoughtful piece!


March 21, 2012 in Employment Common Law, Employment Discrimination, Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

States Immune from Suit for FMLA Violations Related to Self-Care

SupctThe Supreme Court issued it's opinion in Coleman v. Md. Ct. App. today, holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA's self-care provisions. Here's the syllabus:

JUSTICE  KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE  ALITO, concluded that suits against States under the self-care provision are barred by sovereign immunity.  Pp. 3−12. 

(a) Under the federal system, States, as sovereigns, are immune from damages suits, unless they waive that defense.  See, e.g., Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72−73. Congress may also abrogate the States’ immunity pursuant to its powers under §5 of the Fourteenth Amendment, but it must make that intention “unmistakably clear in the language of the statute,” Hibbs, supra, at 726.  It did so in the FMLA.  Congress also “must tailor” legislation enacted under §5 “to remedy or prevent” “conduct transgressing the Fourteenth Amendment’s substantive provisions.”   Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639. “There must be a congruence and proportionality between the injury to be prevented or remedied and  the means adopted to that end.” City of Boerne v. Flores, 521 U. S. 507, 520. Pp. 3−5. 

(b) The sex-based discrimination that supported allowing subparagraph (C) suits against States is absent with respect to the self-care provision. Petitioner’s three arguments to the contrary are unpersuasive.  Pp. 5–12.

(1) Petitioner maintains that the self-care provision addresses sex discrimination and sex stereotyping.  But the provision, standing alone, is not a valid abrogation of the States’ immunity from suit.  At the time the FMLA was enacted, there was no evidence of such discrimination or stereotyping in sick-leave policies.  Congress was concerned about the economic burdens imposed by illness-related job loss on employees and their families and about discrimination based on illness, not sex.  Although the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses, the provision, as a remedy, is not congruent and proportional to any identified constitutional violations.  When the FMLA was enacted, Congress had no evidence that States were excluding pregnancy-related illnesses from their leave policies.  Pp. 6–7.

(2) Petitioner also argues that the self-care provision is a necessary adjunct to the family-care provision sustained in Hibbs.  But his claim—that the provisions work in tandem to ensure the equal availability of total FMLA leave time to women and men despite their different leave-usage patterns―is unconvincing and does not comply with the requirements of City of Boerne. Also, there are no congressional findings of, or evidence on, how the self-care provision is necessary to the family-care provisions or how it reduces employer discrimination against women. Pp. 8–11.

(3) Finally, petitioner contends that the self-care provision helps single parents keep their jobs when they get ill.  The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed  at remedying neutral leave restrictions that have a disparate effect on women. However, “[a]lthough disparate impact may be relevant evidence of . . . discrimination . . .  such evidence is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”  Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 373.  Because it is unlikely that many of the neutral leave policies affected by the self-care provision are unconstitutional, the scope of the self-care provision is out of proportion to its supposed remedial or preventive objectives. Pp. 11−12. 

JUSTICE SCALIA adhered to his view that the Court should abandon the “congruence and proportionality” approach in favor of one that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment.  Outside the context of racial discrimination, Congress’s §5 power should be limited to the regulation of conduct that itself violates the Fourteenth Amendment and thus would not reach a State’s failure to grant self-care leave to its employees. Pp. 1−2.

Justice Ginsberg, Breyer, Sotomayor, and Kagan would have held that the self-care provisions validly enforce the right to be free from gender discrimination.

I haven't had time to read the opinion carefully, but the result is not much of a surprise. One particularly interesting piece is that Justice Scalia seems to be continuing his drive to limit Congress's powers to enact anti-discrimination legislation that is in any way different from what the Fourteenth Amendment provides, although he does apparently see some wiggle room for race discrimination legislation.

Update: Michael Waterstone (Loyola L.A.) has some nice analysis at Prawfsblawg, and I've written several things about the 11th amendment issue and federalism, like this, this, and an article forthcoming in the Wisconsin Journal on Law, Gender and Society that I'll post on SSRN as soon as it's ready for prime time.


March 20, 2012 in Employment Discrimination, Worklife Issues | Permalink | Comments (3) | TrackBack (0)

Zelinsky on the Individual Mandate, the Parsonage Allowance, and the Religious Exemptions for FICA and Social Security

ZelThat's a mouthful of a headline.  Anyway, Ed Zelinsky (Cardozo) has just posted on SSRN his article Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes.  Here's the abstract:

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion from gross income of clerical housing allowances.

I ultimately find unpersuasive the indictment of Section 107 as constitutionally entangling. For the same reasons, I also conclude that the religious exemptions of the Social Security taxes and of the individual health mandate pass First Amendment muster. In the modern world, extensive contact between tax systems and religious institutions is unavoidable. Whether religious entities and actors are taxed or exempted, there are inevitable tensions between the contemporary state and sectarian institutions and their personnel. Whether religious entities and actors are taxed or exempted, there are no disentangling alternatives, just imperfect trade-offs between different forms of entanglement.

Thus, Section 107 and the exclusion from gross income it grants to clerical recipients of housing and parsonage allowances are constitutionally permitted, though not constitutionally required, responses to the problems of entanglement inherent in the relationship between modern government and religion. Similarly, the Code’s sectarian exemptions from the individual health care mandate and from the FICA and self-employment taxes are acceptable, though not obligatory, means under the First Amendment of managing the inevitable contacts and tensions between the contemporary state and the religious community.

However, as a matter of tax policy, the exclusion of Section 107(2) for cash parsonage allowances stands on weaker ground than does the exclusion of Section 107(1) for in-kind housing provided to “minister[s] of the gospel.” The taxation of such cash allowances, in contrast to the taxation of housing provided in-kind, does not involve problems of valuation or of taxpayer liquidity and is thus more practicable as a matter of tax policy.


March 20, 2012 in Religion, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, March 19, 2012

Fired for Wearing Orange

OrangeJoe Slater (Toledo) sends us word of this story from the SunSentinel;

Four workers tell the story this way: For the past few months, some employees have worn orange shirts on pay-day Fridays so they'd look like a group when they went out for happy hour.

This Friday, 14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

On these facts,it seems fairly clear that the employer thought the employees were engaging in protected, concerted activity, even if perhaps they weren't.


March 19, 2012 in Labor Law | Permalink | Comments (11) | TrackBack (0)

Recently Published Scholarship


  • Kermit Roosevelt III, Not as Bad as You Think: Why Garcetti v. Ceballos Makes Sense, 14 U. Pa. J. Const'l L. 631 (2012).
  • Mark E. Berghausen, Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity, 105 Nw. L. Rev. 1281 (2011).


March 19, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 18, 2012

The NFL Salary-Cap Side Agreement

NFLThanks to Dan Sydner's, owner of Washington, in-you-face maneuvers during the lock-out, there's been a lot of attention to the new salary cap agreed to by the NFL and players' union.  The new cap was a bit higher than the previous one, but apparently lower than a few of the highest-spending teams would prefer.  The interesting feature for labor law purposes is that the new cap was not part of the new CBA; instead, the parties agreed to it later, as part of a side agreement that was not brought to the team owners or the union's executive committee of player representatives.  I'm unaware of any internal rules for either party that makes that a problem, but it could make future agreements harder to make if there's significant blow-back.

Hat Tip:  Alex Long


March 18, 2012 in Labor and Employment News | Permalink | Comments (4) | TrackBack (0)

Friday, March 16, 2012

Recently Published Scholarship: Albany L. Rev.



Volume 75, Number 1, 2011/2012

Symposium, Protecting Workers' Rights in a Post-Wisconsin World

  • Hina Shah & Marci Seville, Domestic Worker Organizing: Building a Contemporary Movement for Dignity and Power, prg. 413.
  • James P. Allen, Jr. & Richard A. Bales, ERISA Failures and the Erosion of Workers' Rights: The Urgent Need to Protect Private & Public Workers' Pensions and Benefits, pg. 449.
  • Alexandra R. Harrington, Corporate Social Responsibility, Globalization, the Multinational Corporation, and Labor: An Unlikely Alliance, pg. 483.
  • Sheldon Gelman, Adopting Ohio Senate Bill 5: The Role of the Public University Presidents, pg. 511.
  • Benjamin Levin, Blue-Collar Crime: Conspiracy, Organized Labor, and the Anti-Union Civil RICO Claim, pg. 559.


March 16, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Brown's East Asian Labor and Employment Law: International and Comparative Context

BooksCongratulations to Ron Brown (Hawaii) who has a new book coming out this month that deals with international labor law practice and the comparative aspects of labor and employment laws in Japan, China, and South Korea. The book is entitled: East Asian Labor and Employment Law: International and Comparative Context. While a general read, Ron tells us that he used it this semester in his Asian Labor Law class.

Here is a description from the publisher:

This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administra­tion, workers’ rights, trade unions, and dispute resolution).

The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to busi­ness investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.

I have read an initial draft of this book and believe it is an original contribution to this important area of study.  Pick up a copy.  Here is a link to the brochure on the book, with ordering instructions.


March 16, 2012 in Book Club, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)