Tuesday, December 11, 2012

The Supreme Court's Kloeckner Decision

Supreme CourtYesterday, the Supreme Court issued a decision in Kloeckner v. Solis. This case involved the procedures by which federal employees can challenge "mixed cases" under the Civil Service Reform Act.  A mixed case is a discrimination action that is appealable to the MSPB.  The Eighth Circuit had held that such cases are appealable only to the Federal Circuit (which had held the same in an earlier case), but the Supreme Court disagreed in an unanimous decision.

I won't get into the technical aspects of the decision, which interpreted various provisions of the CSRA.  But the upshot is that when the MSPB rejects an employee's mixed case claim, then the next avenue for challenge is the relevant federal district court--not the Federal Circuit, which hears most other MSPB appeals.  This is true whether the MSPB dismissed the appeal for substantive or for procedural reasons.

It's great that the Supreme Court clarified this issue.  I hope that there are future cases along these lines; as a former clerk on the Federal Circuit, I can personally (and painfully) attest to the fact that the procedures involved with federal employee cases, especially when discrimination is alleged, are incredibly confusing.

Congratulations to Eric Schnapper (U. Washington), the long-time Supreme Court advocate who successfully argued the case for Kloeckner.


December 11, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, December 10, 2012

Maybe Systemic Disparate Treatment Isn't Dead Yet?

New ImageWal-Mart was obviously a major blow to the systemic disparate treatment theory, radically curtailing efforts to use that approach in private class actions. There's also more than a hint that in the majority opinion that the substantive theory is questionable, despite its pedigree in Teamsters and Hazelwood.  But to test that out, it seems clear that the only available forum is a government suit, most likely by the EEOC. The possibility of that happening was increased earlier this month when the Sixth Circuit decided Serrano v. EEOC.

The case started life as an class action filed by the woman who had originally filed a charge with the agency. While class certification was denied, the EEOC intervened and, although Ms. Serrano settled her claim, sought relief for a class of female employees.

The agency's efforts didn't fare well at the district court, which not only dismissed all the claims but granted attorneys' fees and costs to the employer. The basis of the dismissal was that the EEOC could not bring a pattern and practice claim on the basis of an individual charge under section 706 of the statute but only on the basis of a pattern or practice suit under section 707 (although the court also found that the agency had failed to properly plead the pattern or practice claim).

The circuit court panel held that a pattern or practice violation could be prosecuted on the basis of a 706 charge. I won't explore the reasoning because the result is more important, but it does seem that the whole issue could have been avoided by the Commission filing its own 707 claims (either in the Serrano litigation or in a separate action that could then be consolidated). That would have avoided the statutory authorization question and, if adequately supported, satisfied the pleading requirements that bothered the dissenting judge. Admittedly, however, a 707-only suit might have more limited remedies.

But what is surprising about the opinion is the failure of the EEOC to be explicit in its pleading about asserting a Teamsters case.  To find the pleading sufficient, the majority looked to Swierkiewicz, whose authority is at least questionable, concluding that the EEOC complaint "although not a model of good lawyering," sufficed. Although the dissent agreed with the majority that Teamsters did not have to be explicitly invoked, but she found not "even a shred of an allegation suggesting a pattern-or-practice claim." 

This is all more than a little disturbing. Now that the EEOC has pretty much a monopoly on pursuing systemic disparate treatment claims, it is more important than ever that it be that model of good lawyering. While the Commission escaped a fee award (and the court stressed that such an award would probably have been inappropriate even had the defendant prevailed), it can scarcely be confident that it will meet so generous a reading of its pleadings the next time around.




December 10, 2012 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Friday, December 7, 2012

November Employment Data

HiringThe Department of Labor released its November employment data today.  The unemployment rate dropped to 7.7% (from 7.9%), with 146,000 jobs added.  However, some of the drop in unemploymetn appears to be because of people not looking for work.  The previous two months' gains were revised downward by 49,000 jobs.  Basically, we remain in a slow and steady improvement.



December 7, 2012 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Penn State LSER Establishes the Center for Global Workers’ Rights (CGWR)

Penn statePaul F. Clark, head of the Department of Labor Studies and Employment Relations at Penn State University, brings to our attention, that the Project for Global Workers’ Rights has been elevated to full research center status as of December 1, 2012.

Professor Mark Anner will serve as the founding Director of the Center for Global Workers’ Rights (CGWR) and Professor Jill Jensen will serve as the Center’s Assistant Director.

From the press release:

The Center supports a rigorous academic research agenda on sweatshops, labor standards, and precarious work,  and partners with both activists and practitioners in support of workers' rights, collective representation, social activism,  and on-going efforts to hold accountable those who permit poor and dangerous work conditions, and  violations of workers’ organizing rights.  It also sponsors a Post-Doctoral Scholar each year.

You can find more information on the Center here.


December 7, 2012 in Faculty News, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Park Avenue: Money, Power, and the American Dream

On the unlikely chance that anyone is looking for a distraction from exam-grading, I thought I’d mention a new Alex Gibney documentary that aired on PBS and is now available on Hulu. Park Avenue: Money, Power, and the American Dream looks at issues related to income inequality through the lens of “two Park Avenues”: the one on the Upper East Side (and especially 740 Park, which, according to the film, houses the highest concentration of billionaires in the US, and is home to David Koch, Steve, Schwarzman, and John Thain); and the one in the south Bronx, which runs through the poorest congressional district in the country. The issues raised in the film will be familiar to most readers of this blog, but one of the film’s greatest strengths is the ease with which it weaves them together. Beginning with psychological and physical effects of wealth and poverty, the film also touches on a wide range subjects including: the growth of the lobbying industry as a reaction to Ralph Nader and progressive reform; tax rates, both individual and corporate, as well as the carried interest tax provision (Chuck Schumer comes in for much criticism here); the Koch brothers and Americans for Prosperity; the Ryan budget; and of course, the decline of unions. The labor-related portion of the film comes towards the end; it focuses primarily on Wisconsin public sector labor law reform, and makes a case for unions as the primary voice in politics for the working class (a view to which I am sympathetic). Private sector unions are mentioned only in terms of their decline.

This has me thinking about two related issues – the portrayal of unions in media (both fiction and non-fiction), and documentaries that can be usefully shown in a labor law class to illustrate some of the dynamics of organizing and bargaining that may not be obvious to students without a labor background. On the latter, last year I showed Where Do You Stand? Stories From An American Mill, which documented a decades-long series of organizing campaigns at a textile plant in North Carolina. (Spoiler alert: the union finally wins a Board election after the employer agrees to maintain neutrality, but the plant becomes unprofitable in the face of overseas competition a few years later, and closes.) I’ve also considered Justice in the Coalfields, about a UMWA strike against Pittston in the late 1980s, and Harlan County, USA. Are there any great labor documentaries that are approrpriate for the classroom that I’m missing? If so, I’d love to hear about them.

-- CG

December 7, 2012 | Permalink | Comments (3) | TrackBack (0)

Thursday, December 6, 2012

No NHL Settlement

NHLEarlier this week, it looked like the NHL might get back on the ice, with union negotiators stating that the two sides were close to resolving the lockout.  Soon thereafter, the NHL left a voicemail message not only rejecting the players' latest offer, but also claiming that the league was taking most to all of it's previous offers off the table.

Needless to say, hockey fans shouldn't be holding their breaths that they'll see any NHL this year--it's not looking good at all.


December 6, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Michigan on the Way to Becoming the Next Right-to-Work State

MichiganIt is hard to believe that one of the homes of the labor movement, Michigan, is about to enact "right-to-work" (or right-to-free-ride) legislation. Such legislation will permit workers in both the public and private sectors in Michigan to receive the services of unions (collective bargaining and grievance handling) without paying for any of the expense of such services through agency fees (membership dues). 

Needless to say, such laws make it hard for unions financially to maintian their operations and make it also difficult for unions to organize workers in the first place. 

Here are the latest details from the Detroit Free Press on the Michigan situation:

There was chaos and high emotion at the Capitol today after Gov. Rick Snyder and GOP legislative leaders announced fast-track plans to make Michigan the nation’s 24th right-to-work state.

At a news conference, Snyder said the Legislature will proceed with right-to-work legislation for public and private employees — which would exclude police and firefighters — and that the bills will be introduced today during the lame-duck session. He said he plans to sign them when they reach his desk.

“The goal isn’t to divide Michigan. It is to bring Michigan together,” the governor said, as hundreds of union protesters stormed the Capitol and the governor’s office, vociferously voicing their opposition to the plan.

Union activists demonstrated outside and inside the Romney Building, which houses Snyder’s offices, and poured into the Capitol across the street. At about 12:30 p.m., State Police said no one was being allowed into the Capitol -- including employees -- because it was at capacity. Even UAW President Bob King and Michigan AFL-CIO head Karla Swift were having trouble attempting to get inside.

If Michigan does enact this legislation, which appears very likely at this point, it will be the 24th state to do so. 


December 6, 2012 in Labor and Employment News, Labor Law, Public Employment Law | Permalink | Comments (7) | TrackBack (0)

Wednesday, December 5, 2012

Kirgis on Nitro-Lift

KirgisI am re-posting here, with permission, a post by Paul Kirgis (St. John's) over at ADR Prof Blog on the Supreme Court's most recent arbitration case.  The original post is Nitro-Lift Technologies v. Howard: The Arbitration Locomotive Rolls On

As Jill Gross suggested in her post the other day, there is nothing novel about the Supreme Court’s per curiam decision in Nitro-Lift Technologies v. Howard, 568 U.S. ___ (2012). And the fact that the case seems unexceptional is powerful evidence for how extreme the Supreme Court’s arbitration jurisprudence has become.

Like most states, Oklahoma has long disfavored covenants not to compete. Oklahoma goes further than many in that it has enacted a statute, passed in 2001, rendering void and unenforceable any contract that prevents an employee from engaging “in the same business as that conducted by the former employer or in a similar business as that conducted by the former employer as long as the former employee does not directly solicit the sale of goods, services or a combination of goods and services from the established customers of the former employer.” Okla. Stat. Tit. 15 § 219A. Without question, Oklahoma considers the regulation of contracts in restraint of trade to be an important public policy matter.

In Nitro-Lift, the Oklahoma Supreme Court refused to enforce an arbitration agreement in a dispute involving a covenant not to compete. Unfortunately, the court’s sloppy reasoning left it open to a summary reversal by the Supremes. The Oklahoma court, citing only its own precedents, held that “the existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement.” That holding is obviously in conflict with Federal Arbitration Act precedent, so its reversal is unsurprising.

But the result of the decision is remarkable. Private employers in Oklahoma are flatly prohibited from including broad covenants not to compete in their contracts with employees. Enforcing that proscription—and thus protecting both the free market and the rights of employees—would appear to be a basic obligation of the Oklahoma courts. Yet the courts of Oklahoma have just been told that private employers can, simply by dropping a paragraph of text into an employment contract, divest them of jurisdiction to enforce Oklahoma’s law against covenants not to compete.

Decisions like Nitro-Lift are extraordinary in their disregard for principles of federalism. The Supreme Court’s arbitration jurisprudence uses a short procedural statute enacted almost 90 years ago to deprive states of their historical prerogative to regulate and enforce private contracts. As Richard Reuben has persuasively argued, this is not a conservative position. It’s an example of judicial activism in the service a radical Chamber of Commerce agenda.


December 5, 2012 in Arbitration | Permalink | Comments (1) | TrackBack (0)

Coworker.org Officially Launches with First Worker Petition Campaign

Coworker.rogCongratulations to Michelle Miller and Jess Kutch, friends of the blog, who have just officially launched Coworker.org and its first official petition campaign on behalf of a fired Walmart worker in Arkansas.

Here is what I wrote about Coworker.org in my recent paper considering alternative models to the existing Wagner Model of labor law in the United States:

[Coworker.org] is an online platform that puts the power of collective bargaining into the hands of all workers, all over the world. It represents a scalable departure from traditional union organizing by providing ordinary people with online tools and training to organize their co-workers and advocate for changes on the job.

When coworker.org launches, it will be a petition-based internet service.  The worker’s initial point of entry will be the creation of a petition centered on the change they would like to see in their workplace and would target their bosses. The process of procuring fellow employees to sign the petition would be how these employees would form their organizing committees going forward . . . [B]y using social media “share” functions on services like Facebook and Twitter, workers will be able begin to promote their workplace campaigns and gather coworker interest in the same workplace issues.

It is a fabulous idea which responds perfectly and timely to the challenges facing worker rights organizations in our global, mobile, and tech-savvy economy.  Check out the site and if the spirit moves you, sign the petition to get the Walmart worker her job back!


December 5, 2012 in Labor and Employment News, Union News, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 4, 2012

Criminal Facebooking

FbProfessors Stephanie Greene & Christine Neylon O'Brien (both Boston College Business) have just posted on SSRN their article (forthcoming 2013 American Business L.J.) Exceeding Authorized Access in the Workplace: Prosecuting Disloyal Conduct under the Computer Fraud and Abuse Act.  Here's the abstract of this timely article:

If you spend time at work checking Facebook or shopping online you might be violating your employer’s computer policy. But you might also be committing a federal crime. For the past decade or so, courts have disagreed over the scope of the Computer Fraud and Abuse Act. Some courts have found that an employee who violates a workplace policy, breaches a contract, or breaches a duty of loyalty to his employer may be both civilly and criminally liable under this Act. Computers provide new opportunities for distraction at work; they also provide opportunities for dishonest behavior. While some behavior is clearly criminal, it is not always clear what type of behavior should be criminal under the Act, particularly as social norms about workplace habits and computer use are constantly evolving.

This article focuses on the variety of ways courts construe the Computer Fraud and Abuse Act which criminalizes some types of access to computers, detailing how courts continue to struggle with an accepted interpretation of what is, and what is not, criminal. A recent highly anticipated case, the Ninth Circuit’s en banc United States v. Nosal decision, reflects this discord. In a 9-2 decision, the court held that the ambiguous criminal statute should be given limited applicability because its general purpose is to punish hacking rather than acts such as misappropriation of confidential information. The decision expresses concern that a broad interpretation of the statute would criminalize a range of acts we all engage in on employer networks. The Ninth Circuit’s interpretation creates a notable split of opinion with the First, Fifth, Seventh and Eleventh circuit courts of appeal. More recently, the Fourth Circuit followed the reasoning of the Ninth Circuit’s narrow interpretation theory thereby furthering the division of opinion on this issue.

Readers who find this topic of interest should check out the upcoming NKU Law & Informatics Symposium on Labor/Employment Issues.


December 4, 2012 in Beltway Developments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Recently Published Scholarship


  • Charles A. Sullivan, Tortifying Employment Discrimination, 92 Boston U. L. Rev. 1431 (2012).
  • Susan Lorde Martin, Patronage Employment: Limiting Litigation, 49 San Diego L. Rev. 669 (2012).


December 3, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)