Sunday, April 29, 2012
- On the eve on Monday's start date for the NLRB'S new election rules, the Board has published with the final rules additional comments by Chairman Pearce (concurring) and Member Hayes (dissenting) on the rules' legality.
- Keeping on the new election rules theme, Acting General Counsel Solomon has issued new guidance for the regional offices' implementation of the rules and a set of frequently asked questions for the public.
- The Washington Post's Steven Pearlstein writes about airline unions turning the tables on American Airlines, which had go into bankruptcy in part to void its collective-bargaining agreements. The unions responded by negotiating an agreement with US Airways to allow that company to buy American and eventually make the new agreement apply to current American employees.
- Politico discusses labor unions' recent political efforts and asks whether Wisconsin and otherr states' attacks on unions may backfire.
- An update on the law firm workers fired for wearing orange shirts. The firm says the firings were for harassing an office manager to get her to quit. This, of course, might be an admission of an unfair labor practice as trying to get rid of a manager may be protected by the NLRA if it relates to working conditions (will someone who knows labor law please talk to this firm). However, if the allegations of harassment and obscene language are true, that protection would be eliminated.
- The D.C. Circuit upholds the NLRB's most recent New York New York decision. Notably, the panel had two strongly conservative judges in its 3-0 decision (with one concurrence): Henderson, Kavanagh, and Rogers.
- And finally, the Bachelor and Bachelorette shows are being sued for race discrimination. Neither have had a main bachelor/bachelorette of color out of 23 seasons total. You can Download Bachelor complaint.
Hat Tip: Michael Ewing. Michael Lightner, & Dennis Walsh
... [A] cloud hangs over disparate-impact liability. In Ricci v. DeStefano, the United States Supreme Court concluded that an employer's decision to discard an employment practice because it produced a racially disparate impact amounts to a form of racial discrimination against nonminorities, at least absent “a strong basis in evidence to believe it would face disparate-impact liability . . . ." By holding that an employer’s abandonment of an employee selection mechanism because it produces too many successful nonminority candidates amounts to racial discrimination, Ricci cast grave constitutional doubt on disparate-impact liability. Contemporary equal protection jurisprudence requires strict scrutiny for all race-conscious governmental action, even when it has a remedial or otherwise ostensibly benign justification. Indeed, in his separate opinion, Justice Scalia expressed serious doubt about the constitutionality of disparate-impact liability.
Ricci has provoked a torrent of criticism from those who regard it as an indefensible limitation on the ability of the civil rights laws to remediate discrimination. The literature does not yet contain, however, an account that endeavors to harmonize disparate-impact liability with contemporary equal protection jurisprudence. The task of this article is to provide that account. Part I demonstrates that the holding in Ricci was essentially compelled by the structure of contemporary equal protection jurisprudence. Part II endeavors to reconcile disparate-impact liability with strict scrutiny. Part III submits that the the fate of disparate-impact liability tells us much about the character of equal protection. Asking the question whether disparate impact can be saved ultimately tells us whether equal protection jurisprudence is to embody a conception of a colorblind Constitution so robust that it effectively prevents the government from addressing racially skewed inequality of opportunity. While it proves difficult to disentangle race-conscious governmental action, even for remedial purposes, from the rigors of strict scrutiny, Part III contends that there is good reason to resist the view that the government must always remain colorblind, even in the face of demonstrable inequality of opportunity that locks racial minorities into a position of economic disadvantage.
Friday, April 27, 2012
- Michael Waterstone, Michael Ashley Stein, & David B. Wilkins, Disability Cause Lawyers, 53 Wm. & Mary L. Rev. 1287 (2012).
- Katherine A. Peebles, Negligent Hiring and the Information Age: How State Legislatures Can Save Employers from Inevitable Liability, 53 Wm. & Mary L. Rev. 1397 (2012).
- Elizabeth A. Leyla, The War(riors) at Home: Examining USERRA's Veterans' Reemployment Protections When Hostility Follows Soldiers to the Workplace, 28 Georgia St. U. L. Rev. 851 (2012).
Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case, edited by Fay Faraday, Judy Fudge and Eric Tucker (Irwin Law 2012). Here's a description:
On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. This collection of original essays untangles the two stories that are intertwined in the Fraserdecision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications.
This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees.
GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.
Thursday, April 26, 2012
The EEOC yesterday issued an updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII. The Commission voted 4-1 to approve the guidance document. The Commission also issued a Question-and-Answer (Q&A) document about the guidance. Here's a description from the EEOC's press release:
While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, it is unlawful to discriminate in employment based on race, color, national origin, religion, or sex. The guidance builds on longstanding guidance documents that the EEOC issued over twenty years ago. The Commission originally issued three separate policy documents in February and July 1987 under Chair Clarence Thomas and in September 1990 under Chair Evan Kemp explaining when the use of arrest and conviction records in employment decisions may violate Title VII. The Commission also held public meetings on the subject in 2008 and 2011. The Enforcement Guidance issued today is predicated on, and supported by, federal court precedent concerning the application of Title VII to employers’ consideration of a job applicant or employee’s criminal history and incorporates judicial decisions issued since passage of the Civil Rights Act of 1991. The guidance also updates relevant data, consolidates previous EEOC policy statements on this issue into a single document and illustrates how Title VII applies to various scenarios that an employer might encounter when considering the arrest or conviction history of a current or prospective employee.
Hat tip: Carol Furnish.
[UPDATE: The Romney campaign has apparently said that Schaumber is no longer an advisor. That's no surprise. What is a surprise is that the campaign claims that Schaumber stepped down in December 2011. Obviously, I can't say for sure whther that's true, but it's really hard to believe that the campaign let report after report on this scandal come out for weeks without correcting statements that Schaumber was an advisor. Someone on the campaign, if the report is accurate, is either incompetent or lying.]
Rep. Cummings has just stated that more allegations involving NLRB Member Flynn are on their way. According to Cummings, the NLRB's IG has discovered "additional and more serious improper disclosures" from Flynn to former member Schaumber and that the IG referred the matter to the Office of Special Counsel for possible violations of the Hatch Act (prohibiting certain partisan political activity).
I won't hazard a guess at what these allegations involved, but stay tuned. I assume this means that Rep. Issa will finally hold a hearing on the matter. Right?
Hat Tip: Patrick Kavanagh
Caroline Mala Corbin (Miami) has just posted on SSRN her essay Expanding the Bob Jones Compromise. The essay will appear in Austin Sarat, ed., Matters of Faith: Religoius Experiences and Legal Responses in the United States (forthcoming Cambridge U. Press). Here's the abstract:
Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?
Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.
Tuesday, April 24, 2012
The Senate yesterday voted 54-45 to reject a bill that would have blocked the NLRB's new elections rules. This is obviously just one of many labor-related skirmishes that we've already seen and will see plenty more of as the election cycle heats up. The NLRB will certainly be at the center of some, but with the Wisconsin Gov. Walker recall election coming up, state public labor relations may be making an encore soon.
In the meantime, the election rules will go into effect on April 30, so look out for the first elections under the new system.
Hat Tip: Patrick Kavanagh & Mike Lightner
Monday, April 23, 2012
Public Sector Inc. is holding an online debate on "Are Dues Check-Off and Agency Shop in the Public Interest?," between Joe Slater (Toledo) and Daniel DiSalvo (Manhattan Institute, City College of NY Political Science Department). The opening statement are up and the back-and-forth will continue for three more days, so check it out. Comments are also accepted.
A couple of updates on the NLRB's recent attempts to issue rules requiring notices and to change some of its election procedures. The New York TImes today has an editorial supporting the Board's notice posting rule, which states in part:
At its core this isn’t just about the legality of having to hang a poster in the coffee room. It’s about industry’s attempt to delay rules whenever it cannot derail them outright. It is about preventing workers from gaining knowledge and support to help them press their concerns.
The courts will now have their say. The White House and Democratic lawmakers should weigh in with friend-of-the-court briefs supporting the N.L.R.B. — and employees’ right to know their rights.
Also, there is a vote scheduled this week in the Senate for a bill that would block the Board's elections rules. There's obviously no chance that this will pass now, but just another attempt to go after the NLRB. And, remember, those new rules go into effect on April 30.
These two rules, and the reactions to them, have been fascinating. This is especially true given the number of times that people have pushed the NLRB to implement more rules (including myself, to a limited extent, and the NAM, which is fighting the notice rule). Once I get done with my current deadlines (hi Paul & Sam), I'm thinking of writing something along the lines of "Beware of What You Ask For," which is not to say that these attempts have been failures. At least not yet.
Hat Tip: Patrick Kavanagh & Dennis Walsh
- Lauren M. Weinstein, The Role of Labor Law in Challenging English-Only Policies, 47 Harv. C.R.-C.L. L. Rev. 219 (2012).
- Katie Lynn Patrick, Airline Employees Are Not Reporting Violations Because They Lack Adequate Whistleblower Protection: Are You Ready for Takeoff?, 46 Valparaiso U. L. Rev. 211 (2011).
Friday, April 20, 2012
It's all the unions' fault, according to singer-songwriter Roy Zimmerman. The song is an ironic take on blaming unions, and it was filmed at a Colorado site where the Western Federation of Miners battled in the early part of the 20th century.
The Spectrum reports:
On March 23, former UB Law Professor Jeffrey Malkan filed a civil rights lawsuit against Law School Dean Makau W. Mutua in the federal District Court of Buffalo. The suit alleges that two months after Mutua became dean in 2008, he illegally fired Malkan by violating Malkan’s right to due process under the 14th Amendment and barring Malkan access to a mandatory faculty review procedure.
Malkan, former director of the law school’s Legal Research and Writing program (LRW), alleges that Mutua failed to follow non-discretionary faculty review procedures required under Malkan’s contract with the school. The lawsuit also names the current vice dean for legal skills, Charles P. Ewing, who allegedly worked in conspiracy with Mutua to block Malkan’s access to a mandatory faculty grievance process, thus allowing Ewing to become director of the LRW soon after Malkan was fired.
Malkan was fired from the law school because Mutua planned on eliminating the LRW program from the school’s curriculum, a position Malkan had maintained since 2000, the lawsuit alleges. In a letter to Malkan informing him of his termination, Mutua said the new Skills Program (created after the LRW’s termination and awarded Ewing) was an appropriate and legal substitution.
Thursday, April 19, 2012
Thanks to one of our commenters and also to Rebecca Hamburg of NELA's Employee Rights Advocacy Institute For Law & Policy, we now have the Iowa opinion of Judge Blink in Pippin v. Iowa. Rebecca also reports that NELA is planning its 2012 Fall Seminar around related issues, Bias 2.0: What Every Employee Advocate Should Know. I’m sure she'll let us know when the program is finalized and registration opens.
Wednesday, April 18, 2012
Call for Papers Announcement
AALS Section on Women in Legal Education
“Institutional Responsibility for Sex and Gender Exploitation”
2013 AALS Annual Meeting
January 4-7, 2013
New Orleans, Louisiana
The AALS Section on Women in Legal Education will hold a program during the AALS 2013 Annual Meeting in New Orleans, with paper presentations on the topic of Institutional Responsibility for Sex and Gender Exploitation. We have the below committed moderator and speakers, and are seeking paper submissions to fill the fifth speaker slot. The papers will be published as a Symposium in the Iowa Journal of Gender, Race & Justice.
Moderator: Professor Cheryl Wade
Protection for Children in Club Sports (Professor Ellen Bublick)
Theories to Holding Insurance Companies Liable for Third Party Exploitation (Dean Jay Mootz)
Employer Liability for Family Responsibilities Discrimination (Professor Joan Williams)
Finding Institutional Tort Responsibility for Sex and Gender Exploitation (Professor Deleso A. Alford)
Submissions should be of scholarship relating to the topic of Institutional Responsibility for Sex and Gender Exploitation, but they can be on any dimension or strand of the general topic. There is a maximum 25,000 word limit (inclusive of footnotes) for the submission. People submitting papers for consideration must be willing to have the paper published as part of the symposium, if the author is selected as the fifth speaker for the panel. Each professor may submit only one paper for consideration.
Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
To be considered, papers must be submitted electronically to Professor Kirsten Davis, Stetson University College of Law, email@example.com. The deadline for submission is Wednesday, August 1, 2012. The author of the selected paper will be notified by October 1, 2012. The Call for Paper participant will be responsible for paying his or her own annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member law schools are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty), and adjunct faculty members, graduate students, and fellows are not eligible to submit.
Papers will be selected after review by an ad hoc committee composed of Section Executive Committee members.
Any inquiries about the Call for Papers should be submitted to: Professor Kirsten Davis, Stetson University College of Law, firstname.lastname@example.org, or 727-562-7877.
Apparently, the a state trial level judge in Iowa has rejected one of the more overt efforts to deploy implicit bias as a theory of discrimination in a class action. Here's one of the news stories, but I haven't been able to locate the opinion itself. Will post when I do. Hat tip to Katie Eyer.
Tuesday, April 17, 2012
And the saga continues . . . . The D.C. Circuit has just enjoined enforcement of the NLRB's new notice posting rule while the district court order largerly upholding the rule is pending on appeal. On the heels on a South Carolina district court's rejection of the rule, this hasn't been a good week for the NLRB. That said, Chairman Pearce announced the NLRB's intent to appeal the South Carolina ruling, as well as some of the D.C. court's holdings against the rule, so there's still a long way to go.
As for the injunction, it's not a total surprise given the politics now. That said, it didn't seem injunction-worthy to me. The harm to employers of merely posting a notice seems extremely low. And the NLRB, to me, is on very solid footing. As I've noted before, this is a very limited exercise of administrative authority and, under normal rules of administrative law, the NLRB should be in good shape. Of course, as readers are well aware, things related to the NLRB often don't follow the normal rules.
The panel was Tatel, Kavanagh, and Brown. Also, I've heard that my memory may not be correct (no surprise there) and that this panel may not be the same lineup that hears the merits.
One question for readers: does anyone know which judges issued the injunction? Assuming they're the ones who will hear the merits of the case (which, if my memory is correct, is the normal practice in that court), that would be relevant in predicting how this might turn out.
Hat Tip: Matt Bodie