Thursday, November 29, 2012
From the Executive Summary to Decoding the Fiscal Cliff:
The waning days of 2012 and of President Obama’s final days of his first Administration provide him and the Democratic and Republican leadership of the Congress a unique challenge to resolve what has become the most critical domestic problem of the Nation, averting the fiscal cliff. To do so will require them to achieve what they have been unable to accomplish in his entire initial term in office, namely, overcoming sharply contrasting philosophies of government regarding the issues that underlie the fiscal cliff, i.e. tax policy and government expenditures. Solving the problem is further compounded by what had become a mantra of the President in his bid for reelection, taxing the rich more heavily to minimize cuts in programs benefitting the middle and lower classes. The argument of this article is that there are already enacted a considerable number of new tax measures that will begin to fall in 2013 only on the very taxpayers who are in the President’s target area, thus accomplishing Obama’s goal and greatly reducing the principal obstacle to the negotiators averting the fiscal cliff.
Surely not every one will agree with this line of argumentation, but it is a provocative commentary that deserves scrutiny.
Wednesday, November 28, 2012
First, I’d like to thank Charlie for the kind introduction, and the rest of the regulars here at Workplace Prof Blog for the invitation to guest blog this month.
Unions’ participation in electoral politics is a topic of continuing interest to me, and one that I have discussed in two recent articles: one dealing with the impact of Citizens United on unions, and another (coauthored, with Nancy Leong) that describes coalitions between unions and civil rights groups in the political arena. Therefore, I thought I’d start out by discussing one way in which unions and union members participated in the 2012 presidential campaign season: the Workers’ Voice SuperPAC. (In future posts, I plan to discuss other aspects of union political advocacy, including participation in voting rights litigation, and encouragement of members to run for state or local office.)
As many readers know, Workers’ Voice is an AFL-CIO SuperPAC that focused its resources in part on facilitating targeted door-to-door canvassing by union members. Because of Citizens United, Workers’ Voice could canvass at non-union households; this was a change from past years, in which union canvassing was restricted to union households.
Why did Workers’ Voice devote scarce resources to canvassing, rather than television and radio ads? I suspect the answer lies in part in the realization that the labor movement would be dramatically outspent on media. But there are additional considerations as well. (Full disclosure: Before the election, I expressed skepticism in an interview that even a well-coordinated canvassing effort could balance the effect of other forms of political persuasion.) For one, unions have a lot of experience with political canvassing, and therefore have a good sense of what works. However, much of this experience comes from communicating with union members. (Working America, an AFL affiliate for non-union workers, provides an important exception, though even there, I suspect that organizers are in more frequent contact with current and potential members than are election canvassers.) While it is thus not initially obvious that effective canvassing techniques in the union context translate directly into the non-union context, canvassers could of course refine their approach as they went along. In addition, there is the effect of the SB-5 referendum in Ohio and the recall efforts in Wisconsin to consider; these campaigns helped identify strong networks of union activists and supporters who could be called on to participate in the 'ground game' (though some of these people may have been fatigued by the time election season arrived). In these two key swing states, then, canvassing seems to have been a natural extension of recent union activism.Finally, it is worth considering unions’ opportunity costs. In his book, Why Unions Matter, Michael Yates states that “there is a direct connection between the increase in the amounts of money and effort labor has expended politically and the decline in organizing efforts.” Here, I think there is much to be said for door-to-door canvassing over other forms of political campaigning by unions, particularly given the chance that face-to-face contacts could translate into support for future organizing efforts. Given all this, the extent to which union canvassing of non-union homes results in either political or organizing gains seems like an important area of potential research.
Dear Colleagues: Please see the attached for the 2012 joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law. Thanks very much for all of your contributions, and we hope you enjoy this year's newsletter.
You can get the newsletter here [ Download Employment Discrimination_L&E Newsletter_2012 ]. It has information on relevant AALS panels, faculty publication and personnel moves, important decisions from the past year, and cases pending in the Supreme Court.
Tuesday, November 27, 2012
University of Colorado Law School to Host 9th Annual Labor and Employment Law Colloquium in Fall 2014
Along with Joe Slater and Scott Moss, I am happy to announce that the Ninth Annual Colloquium on Current Scholarship in Labor and Employment Law will be held in the Fall of 2014 at the University of Colorado Law School. This will be the second time that Colorado will be hosting the event (it co-hosted the Second Annual Colloquium in 2007), and we are thrilled to be returning to Boulder.
As a reminder, the Eighth Annual Colloquium will be held next year in September 2013 at UNLV Law School. You should look forward to hearing more information about the UNLV Colloquium soon on the various labor and employment law listservs and the Workplace Prof Blog.
Workplace Prof is pleased to welcome a guest blogger, Charlotte Garden.
Although she's relatively new to the academy, having started on tenure track at Seattle in 2011, Professor Garden is well-know to a lot of our readers through her scholarship and presentations at conferences. In fact, I first met Charlotte at Seton Hall's Forum in 2010. It was clear to everyone present that she would be an strong new voice in our patch of acadmia, and that's certainly proving true. Working so far mainly in the labor area, with an emphasis on labor speech, she's not only very well published, but has already been featued in Jotwell.
We welcome Charlotte and look forward to her contributions.
Tuesday, November 20, 2012
Congratulations to Paul and Jeff on their new book, Labor Law: A Problem Based Approach (LexisNexis 2012), complete with video promotional materials.
From the more traditional promotional materials:
Labor Law: A Problem Based Approach covers the essential introductory labor law topics on organizing, collective bargaining, and concerted activities. It also includes materials for advanced labor law classes on topics such as: individual rights in a labor union, union security clauses, and federal preemption. The problem-based approach of this exciting new Book provides practical experience to students in the day-to-day practice of labor law.
Labor Law: A Problem Based Approach emphasizes recent labor law developments and controversies including: NLRB election and posting rules, the Boeing controversy, and recent attempts at labor law legislative reform. And, it is also highly interactive with hyperlinks to blogs, law review articles, government web sites, and other digitized sources.
The authors of Labor Law: A Problem Based Approach bring more than twenty-years of combined experience in practice, teaching, and scholarship in labor law to the book. Professor Hirsch is former appellate attorney for the National Labor Relations Board, while Professor Secunda is former management-side labor law attorney at several major law firms.
without informing the other. But in those states (about a dozen) where it is not legal, issues touching on the employment relationship will continue to arise. Memories of Linda Tripp. Last month, Carroll v. Merrill Lynch, was handed down by the Seventh Circuit involving unauthorized taping under an Illinois statute.
While the backstory is more involved, the case boiled down to the recording of a profanity-laced phone tirade on Thanksgiving by one Merrill Lynch employee to another at his home. The latter’s wife recorded the call, and she and her husband played it back at Merrill the next day before reporting it to the police. Merrill promptly fired the caller, who promptly sued Merrill and the husband and wife.
The claim against the couple was violation of the Illinois law prohibiting recording without consent of all parties. Plaintiff’s claim against Merrill was based on the theory that Merrill violated the statute when its agent requested and listened to the previously recorded conversation. Merrill successfully argued that, because the originally recordation was exempt from the statute, the subsequent playback was also exempt.
Anyhow, the court affirmed summary judgment against the plaintiff because Illinois has a statutory exception allowing recordation when the recording party has a reasonable suspicion that a crime is being, or is about to be, committed. Given the extremeness of the plaintiff’s language, the
court found that the wife fell within that exception.
There are a number of subsidiary issues that might be worth exploring in another setting, but the main take-away from the opinion is that it's dangerous -- even if not necessarily wrongful -- for employees to record threatening conversations from co-workers in a number of states. And it is dangerous -- but not necessarily wrongful -- for employers to act on the basis of such conversations.
From the employer’s standpoint, maybe the safer course would have been not to listen to the recorrding but rather to ask the caller about it. After all, the contents of the call are fair game even if the recording isn’t. That said, it might be too much to ask a manager to forebear listening to this kind of thing while HR and Legal figure out whether it’s appropriate to do so.
As important, some other state eavesropping laws -- Delaware, Florida, Maryland, Massachusetts,
Montana, New Hampshire, Pennsylvania -- all lack an express “fear of crime” exception (although one might be judically added).
Thanks to my RA, Allison Martin, for her help on this.
Monday, November 19, 2012
In a sign that recent union campaigns against Wal-Mart are beginning to have an effect, Wal-Mart has just filed a charge with the NLRB asking for an injunction against planned Black Friday pickets at the company's stores. Wal-Mart's argument is that the union--more precisely, one of its alleged affiliates--is conducting these pickets as part of a demand for representation. Based on what I've read thus far, I don't see it, but check out this article from the Nation which, no matter your view on the topic, provides a very good description of the issues, including quotes from a who's-who lineup. An article by Steven Greenhouse is worth reading as well. Finally, Michael Duff points out this video related to the protests.
Friday, November 16, 2012
- Elizabeth F. Emens, Framing Disability, 2012 Ill. L. Rev. 1383 (2012).
- Katherine Greene, Flying into the Future with Boeing: What Should Happen When Legitimate Business Decisions Collide with Union Discrimination, 44 U. Toledo L. Rev. 203 (2012).
- Rockwell Thomas Gust IV, The California Workers' Compensation Act: The Death Knell of NFL Players' "Concussion" Case?, 44 U. Toledo L. Rev. 245 (2012).
Thursday, November 15, 2012
UPDATE #2 (11/19/12): there may be hope for the Twinkie yet. As I mentioned earlier, there was also the chance that Hostess and the union could reach an agreement after the company-imposed deadline. Reports have just come out that the parties, at the urging of the bankruptcy judge, have agreed to enter into mediation. We'll see if anything happens.
UPDATE: the deadline passed without an agreement, and Hostess has now moved to fully wind down operation. Of course, there could always be a last-minute deal that saves the company, but who knows. Even if the company liquidates, Twinkie fans may still have hope and the CEO discussed the sale of the brands. Stay tuned.
Hostess, which has been in Chapter 11 bankruptcy, is in the midst of a strike by employees who are members of the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union. The company reached an agreement with the Teamsters, which represent a larger portion of its employees. But the Bakery workers are upset about pay reductions and health and pension concessions sough by Hostess. The company set a deadline for 5pm today (about 10 minutes from now) for the strike to end. If it doesn't, the company says it will ask the bankruptcy court for permission to fully liquidate. I'm guessing that if the deadline passes, there may still be hope for a solution, but things are looking dire for Hostess. Better stock up on Twinkies now (unfortunately, rumors of their multi-year shelf life aren't true).
Check out Mike Maslanka's Work Matters. Here's an excerpt:
[Companies often face the issue of how to handle a manager who has had an affair with an employee.] Does the manager deserve a second chance? It’s human nature to want to provide one, because most people would want one if they messed up. But there are exceptions. Did the executive violate a rule or a norm of conduct to which he expected others to adhere? With Petraeus, the answer is yes. The Times article notes that the intelligence community frowns on extramarital affairs because of the possibility of the employee being blackmailed for information.
Wednesday, November 14, 2012
Thanks to the good folks over at the U.S. Office of Special Counsel (OSC) for bringing to our attention that Congress just passed landmark legislation to strengthen protections for federal employees who blow the whistle on waste, fraud, and abuse in government operations.
The Whistleblower Protection Enhancement Act (WPEA) (S. 743) passed the U.S. Senate last night, and will be presented to the President for his signature soon. The House of Representatives passed identical legislation in September of this year.
Specifically, the WPEA provides OSC with additional tools to protect federal employees from unlawful retaliation. Provisions include:
• Overturning legal precedents that narrowed protections for government whistleblowers;
• Giving whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers;
• Restoring the OSC’s ability to seek disciplinary actions against supervisors who retaliate; and
• Holding agencies accountable for retaliatory investigations.
Like OSC, I commend Congress and the President for promoting government accountability through enactment of this legislation. The hope is that federal employees will now be more willing to become the vanguard of the citizenry when it comes to shedding light on government abuse and waste, thereby ensuring more accountable and transparent government for all of us.
Last week, while I was on the road, the Supreme Court granted the petition for a writ of certiorari in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012). At issue is "[w]hether the Federal Arbitration Act permits courts, invoking the ‘federal substantive law of arbitrability,’ to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal law claim.” See generally Jill Gross's post over at ADR Prof Blog.
Recall that in AT&T Mobility v. Concepcion, the Supreme Court enforced an arbitration agreement containing a class-action waiver over a finding that under state law the waiver was unconscionable. In Italian Colors, the Second Circuit has held that a similar waiver is unenforceable because it interferes with the vindication of federal statutory (antitrust) rights.
The Federal Arbitration Act requires enforcement of arbitrtion agreements "save for" generally applicable defenses available under state contract law. The Supreme Court in Concepcion effectively read the "save for" language out of the statute. The one defense left to lopsided arbitration agreements is that they interfere with the vindication of federal statutory rights such as the right to be free from workplace discrimination created by Title VII. In other words, when a lopsided arbitration agreement forces a court to choose between enforcing the FAA on the one hand and vindicating Title VII rights on the other, courts should choose the latter.
I expect the Supreme Court will choose the former, and will advance three grounds for doing so. First, the Court will argue that the either/or proposition of FAA v. statutes such as Title VII is chimerical -- consumers and employees can still pursue their claims individually even if they are barred from pursuing the claims as class actions. The Court will ignore, as it did in Concepcion, the contrary argument that aggregating claims is practically -- albeit not legally -- the only way to bring high-volume low-dollar claims.
Second, the Court will argue that the "plain language" of the FAA should trump the "policies" behind federal statutes such as Title VII. Of course, the really plain language of the FAA creates a state-contract-law defense that the Supreme Court white-outed in Concepcion in favor of the pro-arbitration policy of that statute.
Third, the Court will argue that the "presumption of arbitrability" articulated in Mitsubishi v. Soler Chrysler-Plymouth (1985) means that if the FAA is inconsistent with other federal statutes, the FAA should trump later-enacted statutes because Congress, in enacting those statutes, could have but chose not to write into those statutes provisions saying that those statutes trump the FAA. Never mind that the Congresses that passed both the FAA and the later statutes never dreamed that an activist Supreme Court would apply the FAA to employment and consumer disputes, way beyond the commercial disputes for which the statute was designed.
One final note. When the Supreme Court accepted cert in Concepcion, it did so in an extraordinarily atypical arbitration case in which the defendant had gone way out of its way to ensure that individual rights could be pursued notwithstanding the class-action waiver. This allowed the Court to hand down a pro-arbitration ruling while ignoring the anti-consumer/employee effect the ruling would have on the vast majority of cases to which the FAA now is being applied. In Italian Colors, the Court has done it again. Plantiffs are merchants who have sued American Express over the terms AmEx imposes on merchants who accept AmEx credit cards from consumers. Thus, the Court will have the opportunity to issue yet another pro-arbitration ruling in a context that hides the the anti-consumer/employee effect the ruling will have on the vast majority of cases now subject to the FAA. Maybe the likely outcome of Italian Colors is justified in the context of the commercial cases for which the FAA originally was designed. But it certainly is not justified in the context of the commercial/employment cases to which the Court now is requiring that it be applied.
There have been a slew of terrific articles posted on SSRN over the last several days -- check these out:
- Eugene Volokh (UCLA), Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation, 16 Texas Review of Law & Politics (2012).
- Paul Benjamin Lowry (CityUHK) et al., The Drivers in the Use of Online Whistle-Blowing Reporting Systems, J. of Management Information Systems (2013).
- Henry Drummonds (Lewis & Clark), The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, 49 Willamette Law Rev. (2013).
- Marty Malin (Chicago-Kent), The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements, 27 ABA JLEL 149 (2012).
- Marty Malin (Chicago-Kent), The Arbitration Fairness Act: It Need Not and Should Not Be an All or Nothing Proposition, 87 Indiana L.J. 289 (2012).
- Deborah Thompson Eisenberg (Maryland), Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases, 57 NYLS L. Rev. (2013).
Tuesday, November 13, 2012
Thanks to Nicole Porter (Toledo, Visiting at Denver) for brining to my attention a Symposium Honoring the work of Professor Ann Scales. Although not directly employment-related, this symposium should be of interest to folks whose labor and employment law scholarship overlaps with Feminist Legal Theory.
Ann McGinley (UNLV) will be one of the speakers at the symposium.
The rest of the details on the Scales Symposium can be found here.
Monday, November 12, 2012
Henry Drummonds (Lewis and Clark College - Law School) has posted on SSRN his forthcoming piece in the Willamette Law Review: The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush.
Here is the abstract:
Prompted by a dispute over a labor arbitrator’s controversial reinstatement award in favor of an Oregon police officer who fatally shot a suicidal black man in the back after the man’s family had called the police for help, this article argues for a revitalized public policy exception to arbitral award enforcement. In this view, the public policy exception sometimes suffers from too cribbed an interpretation by both management and union lawyers, arbitrators, and reviewing courts and labor boards. At the same time a revitalized public policy exception must be applied judiciously so as not to undermine the bedrock labor relations policy embodied in the Steelworkers Trilogy favoring final and binding arbitration of workplace disputes in the unionized sector.
Drawing on lessons from a close reading of the three leading public policy decisions of the United States Supreme Court — herein dubbed the “Public Policy Trilogy” — the article shows how reviewing bodies SHOULD review de novo the question whether reinstatement REMEDIES, and not the underlying employee conduct, comply with clearly defined public policies. The Steelworkers Trilogy can be accommodated by confining the public policy review to the question of reinstatement — as distinct from the question whether the arbitral finding of a contract violation draws its “essence” from the collective bargaining agreement — and further, by basing the public policy review on facts found by the arbitrator in accordance with the parties’ agreement to submit their dispute to “final and binding” arbitration. These principles derive from a close reading of the Supreme Court’s holdings and discussion in the Public Policy Trilogy. The article shows how public sector cases in the private sector, and in the public sector in Oregon, Illinois, and Pennsylvania, while largely consistent with this more nuanced view of the Trilogy, have occasionally strayed from these teachings and too narrowly applied the public policy exception.
Very interesting insights into a very important area of labor arbitration law. Check it out!
Proposal 2 would have created constitutional protection for public-sector bargaining in Michigan. Passage in that state seems like it would have been a no-brainer -- except that it didn't pass, and it didn't pass by a relatively wide margin. Dennis Nolan flagged the last Wedensday as one as worth blogging about, but the usual folks I might go to in Michigan to explain what had happened were at a loss.
Here's one possibility, from Detroit Free Press's Brian Dickerson:
We share organized labor's anger at Republicans who want to make unions the scapegoats for decades of municipal mismanagement. But we also understood that, at the end of the day, Proposal 2 was designed to erect a firewall not just against labor's opponents, but against the democratic process itself.
And we reasoned that, in an era when the pie is shrinking for most Michiganders, the notion that anyone's share should be protected by constitutional armor was simply unfair to everyone else.
Barry Goldman suggests that perhaps Proposal 2 was defeated because "(a) No is the default vote, (b) the vote really meant a pox on both your houses."
If you have any insight, please leave a comment.
Saturday, November 10, 2012
Legal Newsline reports on a recent Virginia Supreme Court decision (4-3), acting on a question certified by the Fourth Circuit, that allows an employee to sue an individual for a termination in violation of public policy, even when the individual is not the official employer. The key is that the individual must have had a participatory role in the termination, such as being a supervisor or manager.
In the case at issue, a nurse sued the doctor who owned her former employer. She alleged that he fired her for rejecting his many sexual advances--which included unwanted physical advances--and demands that she divorce her husband so she could be with him. The Court held that the purposes of the public policy tort are best served by holding individuals accountable. The dissent argued that the tort is limited to the employer-employee relationship.
Hat Tip: ALex Long
Friday, November 9, 2012
I am happy to report that today saw the publication by the Wisconsin Journal of Law, Gender & Society (WJLGS) four papers from the October 2011 Symposium on The Constitutionalization of Labor and Employment Law, which was held at the University of Wisconsin Law School.
Here are the contents of the WJLGS Summer 2012 Symposium Issue (Vol. 27, No. 2):
Introduction: Symposium on The Constitutionalization of Labor and Employment Law - Carin A. Clauss & Paul M. Secunda
Disparate Impact and Equal Protection After Ricci v. DeStefano - Marcia L. McCormick
A Strategic Plan for Using the Thirteenth Amendment to Protect Immigrant Workers - Maria L. Ontiveros
Constitutionalizing Employees' Rights: Lessons from the History of the Thirteenth Amendment - George Rutherglen
First Amendment Protection for Union Appeals to Consumers - Michal C. Harper
Check out the articles in this fine volume when you get a chance!