Friday, June 15, 2012
Rick Su (SUNY - Buffalo) has just posted on SSRN his article (forthcoming Washburn L. Rev.) Working on Immigration: Three Models of Labor and Employment Regulation. Here's the abstract:
The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political consensus on how to regulate immigration in part because we cannot agree on the role that the government should play in labor and employment regulations.
This essay argues that labor and employment regulations have traditionally imagined government intervention in three distinct ways. Each envisions government intervention at a different level in the national economy. Each adheres to a different view about what kind of employment terms the government should set, if any. As political and ideological frameworks, these three approaches offer insights into how economic regulations pertaining to labor and employment, including those regulations pertaining to immigration. Indeed, these three approaches have not only shaped the historical development of our nation’s immigration laws, but also continue to divide efforts toward comprehensive reform today.
Thursday, June 14, 2012
- Ann C. Hodges, The Editor's Page, pg. v.
- Martin H. Malin, The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements, pg.149.
- Stephen F. Befort, The Constitutional Dimension of Unilateral Change in Public-Sector Collective Bargaining, pg. 165.
- Eric M. Madiar, Public Pension Benefits Under Siege: Does State Law Facilitate or Block Recent Efforts to Cut the Pension Benefits of Public Servants?, pg. 179.
- Laura J. Cooper, Discipline and Discharge of Public-Sector Employees: An Empirical Study of Arbitration Awards, pg. 195.
- Susan Tsui Grundmann, The Impact of Employee Performance in Adverse Actions in the Federal Sector, pg. 211.
- Andrew G. Biggs and Jason Richwine, The Effect of Pension Accounting Rules on Public-Private Pay Comparisons, pg. 227.
- Jeffrey H. Keefe, State and Local Public Employees: Are They Overcompensated?, pg. 239.
- Robert Clark, Evolution of Public-Sector Retirement Plans: Crisis, Challenges, and Change, pg. 257.
- Ann C. Hodges and William Warwick, The Sheathed Sword: Public-Sector Union Efficacy in Non-Bargaining States, pg. 275.
- Paul M. Secunda, The Wisconsin Public-Sector Labor Dispute of 2011, pg. 293.
- Phoebe Taurick, Untested Assumptions in NLRB Proceedings, pg. 307.
- Mary Anne Franks, Sexual Harassment 2.0, 71 Maryland L. Rev. 655 (2012).
- Justin Schwartz, Where Did Mill Go Wrong? Why the Capital-Managed Firm Rather than the Labor-Managed Enterprise Is the Predominant Organizational Form in Market Economics, 73 Ohio St. L.J. 219 (2012).
- Gabriel Feldman, Antitrust Versus Labor Law in Professional Sports: Balancing the Scales after Brady v. NFL and Anthony v. NBA, 45 U.C. Davis L. Rev. 1221 (2012).
- Muhammad Salman Sakrani, The Third Circuit's Massacre of Title VII's Undue Hardship Test, 45 U.C. Davis L. Rev. 1557 (2012).
- Stephanie A. Kostiuk, After GINA, NINA? Neuroscience-Based Discrimination in the Workplace, 65 Vanderbilt L. Rev. 933 (2012).
Tuesday, June 12, 2012
A number of us were startled by the recent Kentucky Supreme Court decision overturning summary judgment granted to the University of Kentucky in an action brought by a former employee fired for possessing a semiautomatic pistol in his locked car, parked on University property.
The opinion generated ideological criticism from Professor Bainbridge ("Cases like this illustrate that both right and left are willing to throw at-will employment under the bus to advance policy goals." In contrast, I think at-will employment . . . is a crucial social policy that deserves better from those of us on the right who respect free enterprise and free markets."), but I find it more interesting as an exercise in applying relatively well-established public policy tort principles to a unusual setting.
In Mitchell v. University of Kentucky, 2012 Ky. LEXIS 47 (April 26, 2012), the employee's gun possession violated University rules, but the plaintiff alleged that firing him for that reason would violate the state’s public policy in favor of the right to bear arms, and the state supreme court agreed.
Of course, the University of Kentucky is a state institution, which means that state constitutional constraints would apply and there is a right to bear arms in the state constitution. But the court did not approach the case as a straightforward violation of constitutional rights. Rather, it looked to Kentucky’s “narrow public policy exception” to the at-will doctrine, thereby suggesting that its holding was applicable to private employers as well. To the extent that a public policy claim against a private employer could be predicated on constitutional protections designed to constrain the government, the decision would be radical. Indeed, the Sixth Circuit came out the other way on this precise point in 2009 where the right at issue was found in the Ohio’s state constitution instead of statutes. Plona v. United Parcel Service, Inc., 558 F.3d 478 (6th Cir. 2009), upheld summary judgment for UPS, finding that the public policy barring state interference with the right to bear arms was inapplicable to a private employer; in fact, the Ohio legislature had affirmed the right of most private employment to prohibit firearms on their premises or property.
Back to Mitchell. By invoking the canon of avoidance, the Mitchell court looked to Kentucky statutes rather than the state constitution, and that required sorting through a several laws pointing in different directions. A criminal statute barring carrying of a concealed weapon contained exceptions from its prohibitions, one of which stated that no “person or organization shall prohibit a person from keeping a firearm . . . in a glove compartment of a vehicle…,” and authorized an action to enforce it. That would seem to have resolved the case, except for a fact dispute as to whether Mitchell kept the weapon in his armrest. Kentucky’s legislature might have been a tad over-precise to achieve what were apparently its goals.
Not to worry, however. Another statute dealt with concealed carry licenses, and Mitchell possessed such a license. Although still another enactment authorized colleges and universities to control deadly weapons on their property, it was subject to an exception for licensed concealed carriers, and the provision governing such licenses also barred any “person or organization” from prohibiting a licensed person from keeping a firearm “in his or her vehicle.” No picky limitation to glove compartments here! And yet a third statute specifically barred an employer (as opposed to a person or institution) from firing an employee who possesses a firearm in a vehicle on the employer’s premises.
The court did recognize a tension between the provision authorizing universities to control weapons on their property and the other statutes, but, in light of the license law’s command to liberally construe the right to bear arms and the legislature’s policy in favor of safeguarding weapons in vehicles, the court held that the licensed concealed carrier’s rights prevailed. A concurrence reluctantly agreed.
The decision is interesting in a number of respects. First, given the statutory authorizations of a civil action, it’s not so clear why anyone worried about fitting this case within the state’s public policy jurisprudence. We don’t usually view statutes expressly granting rights to employees as generating common law public policy claims.
Second, while it’s hard to disagree, given the various (if not necessarily consistent) enactments, that the Kentucky legislature meant to generally preserve the right of individuals to keep firearms in their cars, there was also a statute that allowed colleges and universities to restrict that very right. The court’s resolution of the tension seems questionable.
Third, Mitchell illustrates that, when a state has not clearly addressed the question of the right of employers (public or private) to control arms in their workplaces, more general statutory approval of the right to bear arms might trigger public policy protection for armed employees.
Thanks to my research assistant, Justine Abrams, for her help on this.
Monday, June 11, 2012
The City of New Haven can't seem to win for losing. The Supreme Court today denied cert. on Briscoe v. New Haven. You may recall that a couple of years ago when Ricci v. DeStefano was issued, the majority opinion had a particularly puzzling piece. This is what I said at the time:
The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:
I wasn't the only one puzzling. Michael Briscoe filed that disparate impact lawsuit, and while the trial court dismissed it pursuant to this puzzling language, the Second Circuit reversed, finding the claim not precluded by the Ricci case and finding that the Court's statement was mere dicta. Apparently the Supreme Court agreed by not taking the case on cert today. The City settled with the Ricci plaintiffs, I wonder whether it will figure out a way to settle on the disparate impace suit too, or we'll see yet more litigation on this.
The Spectacle Sickened Me -- in this letter we find a historical perspective on dress codes, their purpose, and gender equality. As presented here, "In July of 1905, after attending a performance of Don Giovanni at the Royal Opera House in Covent Garden, renowned playwright and critic George Bernard Shaw wrote a wonderful letter of complaint to The Times. His grievance didn't concern the opera itself, but rather an extravagantly dressed lady seated in his line of sight."
A taste of the letter:
Evening dress is cheap, simple, durable, prevents rivalry and extravagance on the part of male leaders of fashion, annihilates class distinctions and gives men who are poor and doubtful of their social position (that is, the great majority of men) a sense of security and satisfaction that no clothes of their own choosing could confer, besides saving a whole sex the trouble of considering what they should wear on state occasions. The objections to it are as dust in the balance in the eyes of the ordinary Briton. These objections are that it is colourless; that it involves a whitening process that makes the shirt troublesome, slightly uncomfortable, and seriously unclean; that it acts as a passport for undesirable persons; that it fails to guarantee sobriety, cleanliness, and order on the part of the wearer; and that it reduces to a formula a very vital human habit which should be the subject of constant experiment and active private enterprise. All such objections are thoroughly un-English...But I submit that what is sauce for the gander is sauce for the goose. Every argument that applies to the regulation of the man's dress applies equally to the regulation of the woman's.
Wednesday, June 6, 2012
As one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.
Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:
1) First and foremost, the Citizens United decision played a huge role. Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Bros) while Barrett raised only $ 4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker. Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues. Citizens United primarily favors large corporate donors, plain and simple.
2) I think that the result might have been more about the recall process then saying anything about Walker's agenda or labor's future. Truth be told, a good segment of the Wisconsin electorate never bought into the idea that a recall was appropriate even if they were against Walker's policies (exit polls from Wisconsin show that 60% of voters think recalls are inappropriate except for malfeasance -- not just when you disagree with policies). Indeed, when one considers that 19% of Walker voters (according to exit polls) were planning to vote for Obama in November, that makes a lot of sense if one considers that people do not like special process elections like the one we had last night. So, in short, surviving a recall is not the same as winning an election.
3) Union voters came out in droves to vote (from 26% of electorate in 2010 to 32% of the electorate last night). Yet, and this is important, the labor vote was not monolithic. Some 36% of union voters (again, according to exit polls) voted for Walker. Many union members, especially those in the police and firefighter union are Republicans, so no surprise there. But there is anecdotal evidence tha some union members who did not approve of Walker's anti-labor policies, still voted for him in the recall, saying that a recall was not the appropriate process given the situation. Again, the recall may be more about people being against special process elections than anything else.
4) Silver linings? Two. (a) Obama did very well in exit polls (winning 45%-38%) among the voters. Although Obama has been far from a great President for labor, he is still a much better option for labor types than Romney; (b) the State Senate flipped back to Democratic control which means even though the Senate has no planned sesssions for the rest of the year, Walker will be unable to hold special sessions to discuss right-to-work legislation and other conservative agenda items. However, elections occur in Nov. 2012 again for all state assembly seats and some state senate seats, and the important thing for Dems will be to hold the Senate majority for Jan. 2013. If they can, Walker's agenda will be dead in the water for the last two years of his governorship.
5) What does the recall mean for Walker? Although some say he should be emboldened and bolstered by the victory, his victory speech last night sounded a conciliatory tone. Whether his words are sincere or they result from his realizing that he can't govern by fiat anymore, is anyone's guess. He also might recognize that he is very much the target of a John Doe investigation and still may be indicted. Either way, I doubt that he is a viable Vice President candidate given his pending legal issues, his polarizing nature, and the unlikelihood that Romney could win Wisconsin.
6) Finally, what impact, if any, does Walker's recall victory have on other states considering similar labor law reforms. Personally, I think the impact will be small. If anything, the lesson of Wisconsin is that one can get more bees with honey than vinegar. Although most of Walker's labor reforms remain in place (though legal challenges are still pending), Walker, and allied state Senators, have had to endure a year's worth of recall efforts that wasted their time and money. For other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced. One also has to remember that the Wisconsin recall did not take place in a vacuum and that just last November, Ohio voters resoundingly defeated an anti-collective bargaining bill. So, I think the ripple effects will be miminal in other states from this recall, given the totality of results across the states, and we won't know for sure how aggressive GOP Republican governors will be on the labor front until the voters have spoken again in November.
So, in all, not a good night for Democrats and their labor allies in Wisconsin. A fatal blow? No. Unions, private and public, will live to fight another day. Union values are too important for many in Wisconsin and elsewhere in the country. And at the end of the day, 1.1 million Wisconsonites voted to recall one of the nation's most anti-labor, pro-corporate Governors in the country.
Am I making lemonade out of lemons? Perhaps. But it would be mistake to draw too many definitive conclusions for the labor movement or for the Presidential election in November based on the Wisconsin recall experience.
Tuesday, June 5, 2012
The Paycheck Fairness Act, S. 797, H.R. 1519, and S. 3220, a bill to amend the Equal Pay Act (that's Pres. Kennedy signing the EPA to the left) succumbed once again to a Republican filibuster in the Senate. Not surprising, but still disappointing to those of us who think the EPA and Title VII can't get at the causes of the gender wage gap. See here, here, and here for stories.
The winners of the 2012 Marco Biagi Award are Ledesma Iturbide and Diego Marcelo for their paper, Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica. This paper is a sophisticated and insightful discussion of legal conceptions of the employment relationship. It explores emerging problems with current conceptions as employment relationships become more complex in the global environment and suggests a new approach to the issue.
Another paper was selected by the judges for special commendation: Towards an Effective Definition of Forced Labor by Apoorva Sharma. This paper describes new and emerging forms of forced labor; analyzes their treatment under international and domestic (India) definitions of forced labor; and proposes a new definition.
The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.
This year’s winners were chosen by an academic jury composed of Sandrine Laviolette (France), Jesús Cruz Villalón (Spain), and Steven L. Willborn (United States). The winners were chosen from fifteen papers submitted for the competition.
Friday, June 1, 2012
The Department of Labor's May unemployment numbers are out, and they're disappointing. Employment increased by a net 69,000 jobs, with the rate ticking up a tenth of a point to 8.1%. Last months job gaines were revised from 115,000 to 77,000. This seems to be a replay of the Spring-Summer unemployment blues we've seen the last few years. Health care and transportation/warehousing saw the biggest job gains, with construction showing the biggest losses. But overall, there wasn't much significant change in any of the numbers. Therefore, it's the disappointment that the labor market isn't picking up steam that's the real problem.