Thursday, May 31, 2012
- Being a Supershuttle driver isn't all it's cracked up to be, apparently.
- The NLRB's General Counsel has a new memo on social media policies.
- The Second Circuit reverses the NLRB's findings regarding several Starbucks practices in opposition to the IWW organizing campaign. Although one of the employees involved founded Brandworkers, so something good came out of this.
- Some Trump news unrelated to birtherism: the D.C. Circuit reverses the Board's rejection of Trump Plaza's election objection based on the Board's reliance on a lack of evidence of a mock card-check election's dissemination.
Hat Tip: Michael Duff
Ave Maria School of Law has recently announced that former NLRB Member John Raudabaugh will be the new Reed Larson Professor of Labor Law. I've got no problem with a law school having a qualified, conservative labor law teacher. But the specifics of this arrangement raises red flags for me. The school's announcement:
Ave Maria School of Law, in conjunction with the National Right to Work Legal Defense Foundation, has established the Reed Larson Professorship of Labor Law. The position will be held by John Raudabaugh, a former member of the National Labor Relations Board (1990-1993) and an experienced labor and employee relations attorney.
The Foundation will provide Professor Raudabaugh's services to Ave Maria School of Law. He will teach courses related to labor law and employee rights. As part of his teaching duties, Professor Raudabaugh will supervise a labor law litigation course (practicum or clinic) involving students in significant Foundation-supported cases each academic term, thereby giving high level litigation experience and education to Ave Maria School of Law students. In addition to his teaching duties, Professor Raudabaugh, as a Foundation Staff Attorney, will also work in the Foundation's legal aid program (described at www.nrtw.org) and litigate Foundation-supported cases brought for individual workers.
So, basically, Ave Maria is allowing the NRTWLDF to put in one of the group's attorneys in the classroom, which is troubling. Outside groups funding professorships and other things is certainly not unusual. There has long been controversy over gifts that have strings attached related to donating group's goals. But this case seems to make the law school an unfiltered mouthpiece for the NRTWLDF--in particular, having students working on (only?) Foundation cases. I can undersand why NRTWLDF would want to do this, but to my mind, Ave Maria is undermining its credibility here. Yes, I know it's a conservative school, but this goes beyond that. For instance, if the SEIU funded a professorship at my school with no strings attached, I'd be fine with that. If Craig Becker wanted to teach at my school, I'd be thrilled. But if the SEIU offered to fund a professorship only if it was held by Becker and only if it required the litigation of SEIU cases, I'd be the first to object. That takes away any semblance of academic independence or integrity.
Hat Tip: Patrick Kavanagh
I've been meaning to post about this for awhile, and teaching the unit on U.S. Employment Law to my summer students gives me the perfect opportunity. Earlier this spring, the employee handbook from Valve, a gaming company, was floating around the blogs and twitter. It's unusual in that it doesn't talk about the kinds of things we're all used to seeing in handbooks--no policies (exactly), description of benefits (in the usual sense), or disciplinary structure. Instead, it's an introduction into a workplace culture that at least portrays itself as flat (no hierarchy), with work driven by each worker and projects developing organically. The handbook is useful for a couple of things--first as a breath of fresh air, it shows alternative work arrangements might look like. Also, I think I have some serious job envy, although in a lot of ways, it describes what our jobs as law profs are like. Second, it would be a great platform to talk about all of those contract issues that employee handbooks usually raise (sort of the anti-Hoffmann-LaRoche handbook that Rachel Arnow-Richman, Denver, uses to teach transactional skills in employment law), or other issues, like the fact that the figures and cartoons of employees show almost no women, and no people of color, male or female. Anyway, here's the pdf version: Download Valve_Handbook_LowRes
Tuesday, May 29, 2012
One of the top workplace programs in the United States these days is run by the good folks at the University of Denver Sturm College of Law. Not only do they have top-notch faculty in many of the specific areas of labor and employment law, but they continue to take the lead in teaching, scholarship, and experiental learning opportunities.
Rachael Arnow-Richman, the director of the Workplace Law Program at DU Law and pictured left, sends along their Spring 2012 Newletter to fill us in on all of the labor and employment law going-ons. Of note, two nationally-recognized labor and employment law scholars, Nicole Porter (Toledo) and Michael Duff (Wyoming), will be visiting law professors during parts of the 2012-2013 academic year at DU Law.
Monday, May 28, 2012
Sunday, May 27, 2012
The NLRB has just announced that embattled Member Terence Flynn has resigned. According to the announcement:
Yesterday evening, May 26, Board Member Terence F. Flynn submitted his resignation to the President and to NLRB Chairman Mark Gaston Pearce.
His resignation is effective July 24, 2012. He has immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.
Mr. Flynn was sworn in as a Board Member on January 9, 2012. He joined the Board in 2003 as Chief Counsel to Member Peter Schaumber, and had previously been in private practice. The letter of resignation, dated May 25, was delivered via FAX and email on May 26.
Earlier today, Chairman Pearce informed NLRB employees of the resignation and, on behalf of the entire Board, thanked them for their "hard work and commitment to excellence through even the most difficult circumstances." He intends to issue a statement after communicating with the staff on Tuesday.
The next question is whether this will eliminate the calls for hearings and pressure on the role of former Member Schaumber and the Romney campaign, including his magic December resignation from the campaign.
Friday, May 25, 2012
Thanks to Laura Cooper for remidning us that former NLRB Member Craig Becker has been named General Counsel of the AFL-CIO. He will join Lynn Rhinehart, who has been the AFL-CIO's General Counsel since 2009. Before joining the NLRB, Becker served as associate general counsel to both the SEIU and the AFL-CIO.
More recently, after his NLRB stint, Becker had been a visiting professor of law at the Georgetown University Law Center.
Thursday, May 24, 2012
I'm teaching International and Comparative Employment Law this summer in Madrid. It's a great time to be here in part because of events surrounding the Eurozone crisis and the economic debates about how to pull out of it. In connection with the European summit talks in Brussels that just ended, there were a couple of protests in Madrid today. One protesting the changes to labor rights that will make it easier to terminate employees and the other protesting austerity measures cutting education. It's hard to see from my bad pictures, but the protests were really large, and well organized, and there was significant enthusiasm from the crowds, too. These workers take labor rights very seriously.
Wednesday, May 23, 2012
Michael Kraus discusses in Psychology Today how studies of baboon hierarchies help inform whether co-authored scholarship projects, especially those involving multiple co-authors, are likely to be successful. The take-away: Fewer co-authors are usually better than more, and it helps if there is a clearly defined hierarchy among the co-authors. For more, see More Teammates or Less [sic] Teammates?
The EEOC has released a chart showing the number and types of EEOC charges filed by state. Texas is #1. Michael Maslanka (a partner in the Dallas office of Constangy) over at Work Matters has a theory about why this is so:
My take is brute numbers. Our state has 25 million citizens. That's a lot. And the trend will continue, with the state growing to 35 million to 45 million by 2040. (I suspect that California is third because lawyers may prefer to sue under more favorable state law, so there they file complaints with the state agency, not the federal one.)
But David Foley at LaborRelated has calculated the number of charges filed per capita. His map and chart indicaste that Alabama leads the pack, followed by Mississippi -- and that 6/7 "leading" states are in the Deep South. By contrast, Vermont, Maine, and Montana have a disproportionately small number of charges per capita.
Richard Moberly (Nebraska), the go-to person on Sarbanes-Oxley’s whistleblower provision, has just posted on SSRN his article (forthcoming South Carolina L. Rev.) Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later. Here's the abstract:
Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in legal protection available to them, whistleblowers did not play a significant role in uncovering the financial crisis that led to the Great Recession at the end of the decade. These related failures indicate that although whistleblowers had stronger and more prevalent protection than ever before, they had less reason to believe such protection works. This Article examines the developments in whistleblower law during the last decade and concludes that Sarbanes-Oxley’s most important lesson is that the usual approach to whistleblowing may not be sufficient. Encouragingly, the Article also evaluates recent developments in light of Sarbanes-Oxley’s successes and failures to demonstrate that policy makers may have learned from the Sarbanes-Oxley experience. During the last two years, regulators and legislators implemented new strategies that may encourage employees to blow the whistle more effectively.
Tuesday, May 22, 2012
Today, in the Point Park University case, the NLRB invites amicus briefs to help it further develop its approach to whether faculty should be considered employees or managers (there were two dissents). Like many of you, I hear people say all the time that, under Yeshiva, faculty can't unionize. But of course Yeshiva never laid out a per se rule; it used several factors to reach that conclusion given the facts of that case. That said, how those factors should apply haven't been clear, which is what the Board, upon the D.C. CIrcuit's urging, intends to address in Point Park. The invitation lists 8 questions that the Board is particularly interested in, including special considerations involving academics.
- Mitchell H. Rubinstein, Employes, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland Between an Employer-and-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).
- Stacey L. Wagner, Martyrs for a Cause: How ERISA's Anti-Retaliation Provision Has Been Misinterpreted to Disadvantage Those Who Properly Report Employer Wrongdoing, 38 J. Legislation 128 (2012).
- James R. Glenn, Can Friendly Go Too Far? Ramifications of the NLRA on Employer Practices in a Digital World, 2012 J. Law, Tech., & Policy 219.
- Thomas J. McIntyre, Discriminatory Opportunism: Why Undertaking Self-Employment to Mitigate Damages Creates Unique Challenges, xlv Suffolk U. L. Rev. 549 (2012).
New York University's 65th Annual Conference on Labor, co-sponsored with Cornell University School of Industrial and Labor Relations & St John’s University School of Law, will be held June 7-8, 2012. The topic is The Challenge for Collective Bargaining. The opening reception will be June 6, 2012, at St. John’s - Manhattan Campus; the rest of the conference will be held at NYU Law.
Monday, May 21, 2012
Update (5/25): The Membership of the ALI approved all of Chapter 3 and the privacy sections of Chapter 7 (not the autonomy provisions which were not under consideration) on a voice vote. This leaves two chapters left before the Restatement is complete: Chapter 4 (concerning certain tort issues) and Chapter 9 (concerning employment law remedies).
The 89th Annual Meeting of the American Law Institute (ALI) is going on in Washington D.C. over the nex three days. Worklaw profs joining me here include: Cyndi Nance (Arkansas), Miriam Cherry (Saint Louis), Mike Zimmer (Seton Hall), Larry Rosenthal (N. Kentucky), Matt Bodie (Saint Louis/Notre Dame), Alan Hyde (Rutgers-Newark), and Charlie Sullivan (Seton Hall).
Of particular note, tomorrow the ALI membership will take up Chapters 3 and 7 of the Restatement of Employment Law. Chapter 3, penned by Sam Estreicher (NYU), concerns compensation and benefit issues, while Chapter 7 (written by Matt Bodie) concerns privacy and autonomy interests in the workplace (although only the privacy sections will be taken up tomorrow).
Needless to say, for those of us in attendance, it should be a lively and spirited debate tomorrow over these Chapters.
Saturday, May 19, 2012
The NEA Law Fellow will work primarily with lawyers in the NEA Office of General Counsel and with other union lawyers around the country on a wide range of activities. The Fellow will assist experienced
lawyers working on cases and regulatory matters that affect public education and the rights of educators.
Whenever possible, the NEA Law Fellow will be given the opportunity to participate in meetings with
union lawyers and to attend hearings and other events in the DC area. The NEA Law Fellow will work out of NEA’s Office of General Counsel at NEA’s headquarters in Washington D.C. The fellowship is for a
period of one year (through August 31, 2013). Full vacation and health benefits are provided. Salary is
commensurate with experience and in the range of $50 - $60,000 per year. Recent law graduates and
judicial clerks are welcome to apply.
For more information see the full announcement [Download NEA Law Fellow_2012].
Alvin Lurie has recently posted on BenefitsLink called, "Can Peter's Sponsor Borrow From Peter To Pay Peter?" The intro:
Whose skin is in the game when pension plans make loans to plan sponsors to pay pension contributions, and is the answer different if the plan sponsor is a government body?
Those questions come to mind on learning that last year the highest elected officials in New York State authorized financially distressed local governments in the state to use a problematic borrowing scheme to defer a portion of their pension liabilities, by, in effect, borrowing from the state pension system to satisfy significant percentages of contributions owed to the pension trust for the retirement benefits of their respective employees. In fact, more than just permitting its municipalities to engage in this financing scheme, the state itself went to that same window to cover a portion of its own pension liabilities. Some observers have called it "irresponsible." The more pressing question is whether it is legal or just a skin game.
Lurie provides a lot of info on the issue, so check it out.
Thursday, May 17, 2012
Thanks to Michael Green (Texas Wesleyan) for the pointer that there was a brief article on the ABA website a few days ago referring to an American Bar Foundation study recently published in the Law and Society Review: Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation, by Ellen Berrey, Steve Hoffman, and Laura Beth Nielsen.
The study suggests that more than half of employment discrimination claimants feel that their lawyers are incompetent. As Michael observes, although the ABA on-line journal article title suggests the study focuses on the employee complaints about competency of their attorneys, the actual study has a lot of interesting information and addresses broader concerns about what employer representatives and employees involved in discrimination litigation think about the process and how unfair both sides perceive it to be.
I myself wonder whether the fact that so many employment discrimination plaintiffs lose their cases today (and on 12(b)(6) motions under Iqbal and Twombly) translates into these claimants getting a false impression that their attorneys are not doing everything they possibly can do to help them. This is not to say that there are not some incompetent attorneys out there (especially those that just dabble in employment discrimination law practice), but the numbers the study reports seem to be showing that claimants don't understand how the system (adminsitratively and legally) is structurally stacked against them.
If you're a relatively new scholar interested in participating in Seton Hall's Employment & Labor Law Forum, this year held on October 5th to 6th, this is a reminder that your proposal is due by Friday, June 1st.
They should be three-to-five pages in length and sent to Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
I finished my grading early this semester so I could attend the ABA International Labor and Employment Law Committee meeting this week in Paris. Marley Weiss (Maryland) and Richard Carlson (South Texas) were among the attendees. One of the best presentations of the conference was on labor/employment issues in a globalized airline industry.
This is a great conference to attend, not only for the presentations, but for the networking opportunities. More than half the attendees are non-Americans, with a heavy dose of Europeans. The Committee leaders are exceptionally welcoming of new members, and there are plenty of writing and speaking opportunities. Plus, the Committee meets in places that are not half bad to visit. Next year's meeting will be in Rome.
If you're interested in getting involved on this Committee, drop me an email.