Thursday, January 31, 2013
The ABA has reserved a block of rooms at the Bancroft. Reservations may be made by calling the hotel directly at 800-549-1002 and referring to the "ABA Technology in the Practice and Workplace Meeting."
Josh Eidelson has a really good article at The American Prospect on Alt-Labor. These are groups, like worker centers, that represent workers but do not attempt to engage in collective bargaining on their behalf. The article delves into their history, their rise in numbers, and prospects for the future. An excerpt:
The [Restaurant Opportunities Center] ROC is a labor group. But it’s not a union. It represents a new face of the U.S. labor movement—an often-ignored, little-understood array of groups organizing workers without the union label. As unions face declining membership these workers’ groups—like the mostly union-free job sectors they organize—are on the rise, particularly in New York. Because of their efforts, more restaurant workers in the city get paid sick days, domestic workers receive overtime pay, and taxi drivers will soon have health insurance.
Twenty years ago, when Rutgers labor professor Janice Fine first set out to count the nonunion groups that were organizing and mobilizing workers, she found just five in the entire country. Today, her tally stands at 214. These groups organize farmworkers and fashion models. They go by names like “workers’ centers” and “workers’ alliances.” Some are rooted in the immigrant-rights movement as much as the labor movement. Lacking the ability to engage in collective bargaining or enforce union contracts, these alternative labor groups rely on an overlapping set of other tactics to reform their industries. The ROC teaches workers their rights and also restaurant skills; advises and publicizes model employers; and helps organize protests like the ones at Capital Grille, making customers aware of what goes on behind the dining room. The ROC also lobbies state and local lawmakers for reforms and helps workers take legal action when all else fails. . . .
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is justified as preventing employers from contributing to or entrenching social status hierarchies — and that it is justifiable even if it imposes meaningful costs on employers.
The paper argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates the point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment-at-will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
I thought this post by Steven Schwinn over at the Constitutional Law Prof Blog dealing with state constitutional provisions on the "right to work" (i.e., right not to join a union or pay fees in a union shop) might be of interest to some of the readership here:
Wednesday, January 30, 2013
The NLRB announced yesterday that Dennis Walsh has been named Regional Director in Philadelphia From the announcement:
National Labor Relations Board Chairman Mark Gaston Pearce and Acting General Counsel Lafe Solomon announced their selection of Dennis P. Walsh to serve as Regional Director of the Agency’s Region 4 office in Philadelphia, Pennsylvania. Mr. Walsh will be responsible for enforcement of the nation’s primary labor law covering private sector employees in the jurisdiction of Region 4, which serves 22 counties in eastern Pennsylvania, 8 counties in southern New Jersey, and 1 county in Delaware. He replaces Regional Director Dorothy Moore-Duncan, who retired in January 2013.
Mr. Walsh was appointed to serve as the Deputy General Counsel of the Federal Labor Relations Authority in December 2009. Previously, Mr. Walsh had a distinguished career with the Board, during which he performed nearly every aspect of the Board’s work from field attorney to Board member. Mr. Walsh served as a Member of the NLRB on three occasions: January 2006 to December 2007, December 2002 to December 2004, and December 2000 to December 2001. He also served as a Special Assistant in the Division of Enforcement, Deputy Assistant General Counsel in the General Counsel’s Division of Operations, Chief Counsel to both Member Wilma Liebman (1997-2000) and Member Margaret A. Browning (1994-1997), and Counsel to Member Patricia Diaz Dennis. Mr. Walsh began his legal career in 1984 as an NLRB attorney in the Office of Representation Appeals, and continued to work for various NLRB offices, including the Appellate Court Branch and Region 4. From 1989 to 1994, Mr. Walsh engaged in the private practice of law in Philadelphia. He has also served as an Adjunct Professor of Labor Law at Howard University School of Law. Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review, and a 1976 summa cum laude graduate of Hamilton College.
Dennis' labor accomplishments are obviously impressive, and I'm excited to see what he does in Philadelphia. I should also note that, like some other Board members, he also was active in academic circles, both by writing and presenting at conferences. On a more personal note, as readers of my NLRB posts are well aware, Dennis has been a font of information and new developments in labor law. That's been a great help to this blog and me personally, so I wanted to take this opportunity to thank him.
Tuesday, January 29, 2013
The event I'd like to bring to your attention is the International Symposium on Comparative Sciences organized by the Bulgarian Comparative Education Society. It will be held in Sofia, Bulgaria, 8 - 11 October 2013. In the the Symposium program there are at least two sections that may be of interest to you and/or your colleagues involved in comparative research:
1. Section on Comparative Labour Studies;
2. Section on Comparative Law.
- abstract submission deadline is March 20, 2013.
- abstract acceptance notification is May 30, 2013.
- full paper submission deadline is August 15, 2013 (for those who would like his/her paper to be considered for publication).
Further details and requirements concerning abstracts, registration, accomodation, ect. can be obtained from the Symposium website.
Congratulations to Paul Secunda (Marquette) for being named to the National Academy of Social Insurance (NASI). Here's a description of the Academy:
Academy members are recognized experts in Social Security and retirement security, Medicare and health coverage, workers’ compensation, private employee benefits, unemployment insurance, and related social assistance programs. Individuals selected for membership have distinguished themselves by improving the quality of research, administration, or policymaking in one or more of these areas.
“Members are at the heart of NASI,” said NASI President Larry Atkins. “We expect our new members will be engaged – many of them prominently and from a variety of perspectives – on fundamental issues of the role of social insurance programs and their demographic and financial challenges in the next decade. We look forward to recognizing, using, and sustaining their expertise and enthusiasm. It is with great pleasure that we welcome them.”
New members are nominated by current Academy members in recognition of their significant and ongoing professional contributions to the field of social insurance. NASI members volunteer their time in study panels, advisory committees, and conferences. Members make significant contributions to NASI’s research, education, communication, and leadership development initiatives.
Monday, January 28, 2013
I want to turn at this juncture in my guest blogging to some recent developments (some of which were briefly discussed previously on Workplace Prof Blog here) in the EEOC's position on anti-LGBT discrimination.
Last year, the EEOC issued a decision which is arguably one of the most important developments in transgender equality in recent years. In the decision, Macy v. Holder, the EEOC found in a precedential opinion that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex,’ and such discrimination therefore violates Title VII.” Thus, under Macy, the EEOC’s official position is that anti-transgender discrimination is per se sex discrimination.
(See EEOC Digest of Equal Employment Opportunity Law ("Commission policy is that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex in violation of Title VII."); see also Macy (“When an employer discriminates against someone because the person is transgender, the employer has engaged in [sex discrimination]... This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotpyical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person."))
The implications of Macy are thus potentially tremendous for transgender employees—if widely afforded deference, it would mean that gender identity discrimination is now categorically prohibited under Title VII, without ENDA or any other type of legislative movement at the federal level.
Friday, January 25, 2013
- Paul M. Secunda, Privatizing Workplace Privacy, 88 Notre Dame L. Rev. 277 (2012).
- Jason R. Bent, An Incentive-Based Approach to Regulating Workplace Chemicals, 73 Ohio St. L.J. 1389 (2013).
- Jessica R. Vartanian, Speaking of Workplace Harassment: A First Amendment Push Toward a Status-Blind Statute Regulating "Workplace Bullying", 65 Maine L. Rev. 175 (2012).
- Taylor Robertson, What Can Brown Do for You? You're Fired: Punitive Damages for Rogue Employee Conduct in Jones v. UPS, 37 Okla. City U. L. Rev. 569 (2012).
UPDATE: Chairman Pearce just released a statement that is in line with my prediction that the NLRB would continue to decide cases despite the ruling (not that my prediction was particularly bold; the Board is just doing what it did during the two-member issue).
The D.C. Circuit just struck down the NLRB recess appointments. I haven't had time to more than glance at the decision, but it obviously has major ramifications, as--like the New Process, two-member Board issue--it holds the prospect of voiding decisions. It also could play a role with the new Consumer Financial Protection Bureau, which also had a recess appointment at the time. I suspect that what we will see next is a reprise of the New Process situation, in which the NLRB uses its nonacquiescence policy and continues to issue decisions and we'll have to wait for the Supreme Court to see what happens to those decisions. I did a rough Westlaw search and came up with 499 cases in which Members Block, Flynn, or Griffin participate, so we're talking about a lot of cases that could be in jeapardy, including subsequent ones if the Board does what I just predicted it will do.
In Noel Canning, the court agreed with the NLRB's substantive findings in the case, but that was mooted by its holding that the NLRB recess appointments were unconstitutional. After holding that it had jurisdiction to decide the matter--no small thing given the separation of power tensions at play--the court essentially held that the Senate really wasn't in recess. They defined recess as when Congress isn't in one of its regular two or three sessions. The decision is a long one and reaches out to other related appointment practices (prompting a concurrence that objected to overreach). Moreover, in a 2004 case, the 11th Cir. held to the contrary, so we might expect a Supreme Court grant of cert. if the D.C. Circuit doesn't take this en banc. On that note, the panel was quite conservative (Sentelle, Henderson, and Griffith--who, coincidentally, filled the slot that a lawyer in the case, Miguel Estrada, was originally nominated for), so it's not impossible that the full court will re-examine this. Stay tuned.
Hat Tip: Michael Lightner
Thursday, January 24, 2013
Finally some sanity has returned to this insane world and Seth Harris (formerly a labor and employment law prof at New York Law School) and current Deputy Secretary of Labor has been named Acting Secretary of Labor with the departure of Hilda Solis. President Obama has not yet named a successor to Solis, but as far as I am concerned, I would just take the Acting title away from Seth and let him have at it.
You see, my friends, in my ideal world, law professors should run everything - especially the Labor Department. :>)
This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.
One of Bill's critical arguments is that the law school crisis is largely a labor market issue: too few law school graduates chasing too few jobs and a mismatch between the skill sets legal employers need and the skill sets that law schools provide.
[T]he financial viability of law schools depends upon three interrelated factors: (a) students wishing to enroll, (b) an ability to pay, and (c) professional employment upon graduation. Of these factors, the professional employment is the most important because, if present, the first two factors will take care of themselves.... If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the gradutes of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement.
If you plan to be involved in legal education for more than the next 3-5 years, I would highly recommend reading this article.
Wednesday, January 23, 2013
The Department of Labor released its data on union density for 2012 and the news was not good for unions. Among the highlights (or lowlights, depending on your view): private sector membership dropped from 6.9% to 6.6%; public sector membership dropped from 37% to 35.9%; and the number of union members fell by 400,000, despite a 2.4 million increase in jobs. Moreover, both Wisconsin and Indiana saw huge drops following their anti-union legislation. Steven Greenhouse, at the New York Times, has a good article exploring those state issues as well as the overall trend.
For those of you interested in comparing the historical numbers and other breakouts of the data, I'll put a plug in for unionstats.com (full disclosure: my father is one of the authors), which provides a more user-friendly version of the DOL stats (it obviously hasn't been updated with the new numbers yet).
Outgoing Secretary of Defense Leon Panetta and Army General Martin Dempsey, Chairman of the Joint Chiefs of Staff are apparently going to announce tomorrow that they are lifting the ban on women serving in combat positions with a goal towards integration by 2016. In November, four servicemembers represented by the ACLU sued to lift the ban, arguing that women were already serving in most combat roles but just weren't getting recognized for it. Advancement to the highest levels of military service depends on service in combat.
This move comes via a recommendation from the Joint Chiefs of Staff, which earlier this month issued a "Women in Service Implementation Plan" calling for this change; that memo stated in part, "[t]he time has come to rescind the direct combat exclusion rule for women and to eliminate all unnecessary gender-based barriers to service."
For more information see the news stories here, here, here, and here. Mandatory regisration with the Selective Service Administration does not appear to be addressed by the recommendation; perhaps that is not widely enough seen to be a gender-based barrier to service.
This is a big step forward potentially for sex equality in the military, although full implementation will take some time. I hope that part of that implementation involves addressing the serious problem of sexual violence in the military as part of a comprehensive plan. I also think that the effect of this change in policy does a lot to expand women's rights more broadly in this country. To the extent that military service is one of the responsibilities of full citizenship, and I think most people agree that it is in at least some cirumstances, allowing women to serve the same way men do solidifies our claim to citizenship and authority to set national policy.
Mike Maslanka has a nice post at Work Matters on the importance of the retaliation case the Supreme Court has just accepted certiorari on, Nassar v. University of Texas Southwestern Medical Center. Here's an excerpt:
Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action. ... My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive. SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.
Congratulations to Orly Lobel (San Diego) for being named one of "The 50 Sharpest Minds of Israel" by The Marker Magazine, Israel’s leading business journal. Featured in the magazine's January 2013 issue, Orly discusses her career choice, connections to Israel, upcoming book, and current research in the article. Read the article in Hebrew online or see the English translation at USD's press release. Here's a representative excerpt:
In a sunny morning in north Tel-Aviv, she closes our conversation by quoting Confucius: “Choose a job you love, and you will not have to work a day in your life.” This may be the secret to her happiness. Lobel is a professor of law at the University of San Diego, and one of the foremost scholars in her field. She became a professor at young age, published numerous studies, received awards and grants, and this year was one of the five scholars to receive a University Professorship at her university. Recently, she was invited to speak at the United Nations headquarters in Vienna about her research on human capital and the flow of knowledge – a rare honor for Israeli academics.
vol. 28 #1 (2013)
Symposium 2012: The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve, and How We Can Learn from the Private Sector
- Michael Carrell & Richard Bales, Considering Final Offer Arbitration to Resolve Public Sector Impasses in Times of Concession Bargaining, p. 1.
- Howard S. Bellman, The Importance of Impasse Resolution Procedures to Recent Revisions of Wisconsin Public Sector Labor Law, p. 37.
- Charles B. Craver, The Use of Alternative Dispute Resolution Techniques to Resolve Public Sector Bargaining Disputes, p. 45.
- Ariel C. Avgar, J. Ryan Lamare, David B. Lipsky, & Abhishek Gupta, Unions and ADR: The Relationship between Labor Unions and Workplace Dispute Resolution in U.S. Corporations, p. 63.
- Joel Cutcher-Gershenfeld & Saul A. Rubinstein, Innovation and Transformation in Public Sector Employment Relations: Future Prospects on a Contested Terrain, p. 107.
- Martin H. Malin, Two Models of Interest Arbitration, p. 145.
- Lamont E. Stallworth & Daniel J. Kaspar, Employing the Presidential Executive Order and the Law to Provide Integrated Conflict Management Systems and ADR Processes: The Proposed National Employment Dispute Resolution Act (NEDRA), p. 171.
Guy Davidov (Hebrew U. Jerusalem) has just posted on SSRN his article (forthcoming Toronto L.J.) The Goals of Regulating Work: Between Universalism and Selectivity. Here's the abstract:
What are the goals of labour and employment laws? For purposes of reforming, interpreting and defending such laws, it is important to articulate their goals. This article is concerned with the general goals of regulating work relations (i.e. goals shared by different regulations in this field), at the level of normative justifications. The various goals mentioned in the literature are reviewed and discussed. It is argued that these goals can be classified on a continuum between selective (in the sense of intending to help a specific group – employees) and universal (goals which are seen as advancing the interests of society at large and employers as well). It is argued that a trend can be identified, in recent years, from selective to universal articulations of goals. The difficulties with this trend are then exposed.
Tuesday, January 22, 2013
An Analysis of the 7th Circuit's Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision
On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin's decision in the same case.
The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.
That only "most" public sector workers in Wisconsin were covered by Act 10 - most general public sector employees were, but most public safety workers were not - became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.
The Western District of Wisconsin held that Act 10's distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis.
The 7th Circuit in a 2-1 decision Friday upheld the law in its entirety. As an initial matter, the state was found to have a legitmate basis for denying some public employees collective bargaining rights but not public safety officers because of concerns about the public peace and order after the law passed. More interestingly, the Court said the First Amendment was not violated with regard to the anti-dues checkoff provisions because the state was seeking to subsidize some union speech, but not others. In such subsidy cases, the distinctions have to be reasonable and viewpoint neutral. The majority of the 7th Circuit held that it was reasonable because of concerns relating to labor piece and not viewpoint discriminatory because elections have consequences and politicians are permitted to favor one group of employees over another. The 7th Circuti also held that the anti-dues checkoff provisions and recertification provisions were not a pretext for viewpoint discrimination (this is where dissenting Judge Hamilton disagreed and would have found that the dues checkoff provision of Act 10 violated the First Amendment as a pretext for viewpoint discrimintation).
With regard to the equal protection claims, the union dues and recertification provisions were found to meet the low standard of rational basis review because of the labor peace concerns the majority mentioned throughout the opinion.
Couple of thoughts on this long 74-page opinion:
1. It does not in any way put the Act 10 litigation to rest. This case merely decided one set of federal constitutional issues revolving around distinctions made between public safety officials and other public employees in Act 10. It does not have anything to do with Judge Colas decision made in Dane County Circuit Court in September, which is based on different reasoning all together and still at this point finds the law invalid (at least for municipal employees). Additionally, there is other Act 10 litigation pending, including public pension litigation involving constitutional impairment of contract claims and state constitutional home rule charter claims.
2. Given that the whole raison d'etre behind Act 10 when announced was to help trim the budget deficit, it is remarkable that the 7th Circuit barely discusses the State's assertion in this regard and relies primarily for the distinctions in the law based over concerns for labor peace. This may be in fact one of the concerns for collecitve bargaining distinctions, but to completely ignore the asserted budgetary reasoning , which had nothing to do with the dues checkout and recertification provisions, is outlandish.
3. It is also remarkable that two 7th Judges could say with a straight face that the law was not viewpoint discriminatory given that the union dues and recertification provisions were clearly a thinly veiled attempt to punish public unions that did not support Walker's 2010 election. I think the dissenting judge was right when he said this was really a limited public forum case (not just a subsidy case) and that al least the union dues provisions was clearly viewpoint discriminatory under the appropriate First Amendment analysis.
4. There could potentionally be a en banc review or even a petition for cert to the Supreme Court, but I think this decision is largely the last word on these Act 10 issues.
5. I think it is also remarkable that the 7th Circuit ended up basing its decision largely on arguments that were not made before the district court and should have been considered waived on appeal under basic fundamentals of appellate review.
In all, not a very convincing decision from my standpoint and another blow for public unions in Wisconsin. In the end, litigation may lead to some changes in the law, but there really is no substitute for either seeking to amend the Wisconsin constitution to provide for public employee bargaining rights or getting the necessary Democratic majorities in the legislative chamber and a Democratic governor in Madison. Unfortunately, the confluence of those events may be a long way off and public unions are likely to suffer in the meantime.
Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).
The SCOTUSblog file with links to documents is here.