Friday, March 29, 2013
LawProf Call for Joining Amicus Brief in Southwest Medical Center v. Nassar Title VII Retaliation Case
Sandra Sperino (Cincinnati) writes to tell us that a group of employment law professors (inlcuding yours truly) is submitting an amicus brief in support of the Respondent in the University of Southwestern Medical Center v. Nassar case currently pending before the Supreme Court.
As many of you might know, this case concerns the causation standard applied to Title VII retaliation claims. Amici are arguing that such claims may proceed under a “motivating factor” standard.
If you would like to obtain a copy of the brief and sign on to it, please contact Sandra at firstname.lastname@example.org.
She hopes to have all signers on board by Monday, April 1.
Kevin Barry (Quinnipiac University - School of Law) has posted on SSRN his article in the Employee Rights and Employment Policy Journal (Vol. 17, No. 1, 2013): Exactly What Congress Intended?
Here is the abstract:
The Americans with Disabilities Act (ADA) was passed by Congress and signed into law in 1990 with tremendous bipartisan support and high hopes. When President George H.W. Bush signed it, he called the law a "sledgehammer" to shatter a "shameful wall of exclusion". Unfortunately, for many people with disabilities experiencing discrimination on the job, the ADA turned out to be more of a rubber mallet. The Supreme Court, in a series of decisions in 1999 and 2002, gutted the ADA by narrowly interpreting its definition of "disability". In 2008, Congress fired back by passing the ADA Amendments Act [ADAAA] of 2008. This Article discusses the Congress-courts dialectic surrounding the ADA: from its passage in 1990, to the pit of Supreme Court jurisprudence, to the advocacy effort that swung the pendulum back to Congress. While judicial interpretations of the Amendments are just beginning to surface, they are, for the most part, exactly what Congress intended.
Kevin tells us that this piece is part of a larger education and outreach effort among several law school clinics, employee-side attorneys, and other interested groups, which is working to respond to some issues with respect to the ADAAA's implementation. Looks to be a short, user-friendly article that tells the story of the ADA's passage, its amendment in 2008, and its current interpretation by courts post-ADAAA. Check it out!
Earlier this month, Portland, OR became the fourth city to require employers to provide sick leave to workers. Leave is earned on an hourly basis up to five total days in a year. Employers of six or more employees must provide paid leave while smaller employers can provide the leave unpaid.
New York City is poised to become the fifth. The city council approved a bill that would require employers with 20 or more employees to offer paid sick leaves next year. The requirement would extend to employers with 15 or more the following year. All employers would have to provide at least unpaid leave. Mayor Bloomberg has pledged to veto it, stating that it will hurt job growth, but there is enough support on the city counsel to override that veto. This is a particularly important development for workers and employers, coming on the heels of the state legislature having just raised the state minimum wage to $9.
Wednesday, March 27, 2013
Thanks to Carol Furnish for sending us this TRAC Report on a drop in civil rights lawsuits. As you can see from the excerpt below, claims are down on both a monthly and annual basis. The claim rate by far is the highest in D.C., followed by the Northern Districts of Alabama and Florida and the Sourthern District of New York.
The latest available data from the federal courts show that during February 2013 the government reported 950 new lawsuits filed under the category of Employment Civil Rights, according to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC). This number is down 7.9 percent from the previous month and is 13.2 percent lower than the same period one year ago. Such lawsuits are mainly filed for employment-related civil rights discrimination on the basis of race, gender, national origin, disability, age and religion. Read the full report, including a list of those districts in which lawsuits of this kind were filed with the greatest rates relative to population.
Geoffrey Fowler writes in this morning's Wall Street Journal You Won't Believe How Adorable This Kitty Is! Click for More! Companies Hire 'Ethical Hackers' To Dupe Employees; Crutches as Props. Here's an excerpt:
"Check out these kitties! :-)" read emails featuring the photo of a Turkish Angora cat with a purple mohawk, sent to nearly two million cubicle dwellers so far. It includes an attachment or link promising more feline photos. Those who click get a surprise: stern warnings from their tech departments.
The ... email is a simulated cyberattack. It is among the ploys companies are using to dupe employees into committing unsafe computing as a way to train them not to be so easily fooled.
Thanks to Ruben Garcia for passing along this link to Ann McGinley's Slate article What Happened in Vegas? Why are Las Vegas bartenders now mostly women?. Here's an excerpt:
A decade ago about 80 to 85 percent of nightclub bartenders were men; today women represent about 60 percent of the club bartenders. [A similar dynamic is occurring with card dealers.]
Men could apply for jobs as cocktail servers either on the casino floors or in the nightclubs, but cocktailing, unlike bartending, is traditionally a woman’s job and continues to remain that way. * * * Even in lean economic times, men generally don’t apply for cocktail positions. This is somewhat surprising given that cocktail jobs are well-paid, especially at the high-end casinos. Although the hourly wage is not much to talk about, cocktail servers who work on the casino floor earn generous tips, which means that their annual incomes can exceed $100,000 a year. So why don’t men apply? One female human resources manager of a Nevada casino said that she has a skimpy bikini-like costume for a male applicant just in case a man applies so that she can demonstrate that her casino does not discriminate. The manager suggested that besides shielding the casino from liability for discrimination, the costume serves the purpose of discouraging men from applying for the jobs. And, she reported, men do not apply.
As Ann points out, it's all about female sex appeal, made possible by the Ninth Circuit's Jespersen v. Harrah's.
A few notes/comments:
- Fwiw, I'm not convinced that the costume is an iron-clad shield to Title VII liability, but I'll let others comment on that.
- Ruben helpfully reminds us that the 2013 Labor and Employment Scholarship Colloquium is in Las Vegas.
- Just to avoid any confusion: that's neither Ruben nor Ann in the photo.
Monday, March 25, 2013
South Texas Law Review
Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest
- Richard Carlson, Foreward, 1.
- Miriam Cherry, Virtual Whistleblowing, 9.
- Orly Lobel, Linking Prevention, Detection, and Whistleblowing: Principles for Designing Effective Reporting Systems, 37.
- Geoffrey Christopher Rapp, States of Pay: Emerging Trends in State Whistleblower Bounty Schemes, 53.
- Sonny Eckhart, Postconference Reflector: A Nudged Solution to Securities Fraud, 81.
- Jarod S. Gonzalez, Whistleblower Laws, Workplace Safety and Healthm, and Scientific Laboratory Employees, 139.
Thursday, March 21, 2013
In my prior post, I summarized the analysis in Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, which Tim Glynn and I recently uploaded on SSRN. As I described, we argue that NLRB correctly concluded in In re D.R. Horton that the labor laws protect the right to concerned action in the form of concerted dispute resolution. We then demonstrate why this right conflicts with and trumps the FAA’s arbitration mandate. Along the way, we discuss why courts confronting the enforceability of arbitration clauses in employment must address these issues, regardless of what happens to the Horton decision on appeal.
Our final section addresses the implications of our analysis. Courts should refuse to enforce arbitration clauses that, like the one in Horton, require an employee to resolve employment-related disputes in individual arbitration and waive the right to pursue joint of collective adjudication of claims in any forum. But this does not mean that all arbitration agreements in the employment context are unenforceable. Agreements to arbitrate individual claims are enforceable as long as employees are free to bring aggregated claims in court; conversely, employers might well be able to bar access to judicial forums, if they adequately allow for concerted enforcement of legal claims in arbitration.
But, as we demonstrate, there are important limitations on next-generation arbitration agreements. The NLRA declares it an unfair labor practice to require agreements that reasonable employees may believe bar concerted action, and, given the Supreme Court’s declaration in Stolt-Nielsen that “arbitration” means “bilateral arbitration,” an agreement providing merely for “arbitration” must bar concerted pursuit of claims. The bottom line is that employers must make clear in their agreements that some form of concerted relief remains available. We wonder whether most employers will choose to do so. To explore the exciting details, again, you can check out the article.
Last, but certainly not least, for those of you wondering about the title, it’s a play on Dr. Seuss, Horton Hatches the Egg (1940), a classic children’s tale in which Horton, an elephant, promises to sit on the egg of Mayzie, the lazy bird, while she flies off for a short rest. Needless to say, Mayzie doesn’t return, but faithful Horton continues to warm the egg for nearly a year, in the process undergoing a variety of ordeals. His performance is all the more remarkable since Mazie clearly provided no consideration for his promise.The result is a perhaps genetically unlikely elephant-bird, which might well symbolize the next generation of arbitration agreements if Horton is generally accepted.
One of my favorite bloggers on higher education, Dean Dad at Confessions of a Community College Dean, asks: Should a public college partner with a private company to train scabs? I'd encourage Workplace Prof Blog posts to read the entire post and to comment over at Dean Dad's blog.
Anya Kamenetz has a thought-provoking piece about the Milwaukee Area Technical College’s agreement to run welding programs for Caterpillar. Caterpillar is expecting a strike, so it wants the local technical college to train its managers and non-unit staff to be able to do union jobs if its welders walk off the job. MATC is responding to employer need, offering training in an employable skill and thereby supporting the local economy. Now the Steelworkers’ union is petitioning MATC to refrain from what it considers pre-emptive strikebusting. It’s an ugly, sticky issue.
There’s nothing objectionable about a technical college teaching welding. It has done that for years, and I assume has done it well. And there’s nothing unusual about a college contracting with specific private employers to run classes or training workshops for its employees. Community colleges have done that for decades. * * *
In this case, the union is essentially asking the college to take a moral position that training these workers in this skill at this time is wrong. * * * [T]hinking through the consequences of taking a self-consciously moral position gets complicated quickly. Suppose MATC told Caterpillar to go away. The governor of Wisconsin isn’t known for being particularly union-friendly; I can imagine severe political (and therefore budgetary) consequences for the college far beyond the loss of the contract. Something like that is going on now in Michigan, where some public colleges are trying to sign long-term contracts with unions to beat the “right to work” deadline, and legislators are threatening budgetary retaliation. * * *
Wise and worldly readers, what would you do? If you ran MATC, would you honor the union request, or would you run the program?
We posted here an announcement of the Eleventh Conference in commemoration of Prof. Marco Biagi. The Conference, organized by the Marco Biagi Foundation, took place in Modena (Italy) on 18 and 19 March 2013. Susan Bisom-Rapp (Thomas Jefferson) attended and presented, and I asked her to prepare a short description of the Conference for us, both to describe the Conference itself and also to talk about why the Conference might be of interest to American LEL professors. Here's her report:
Every year since 2003, the Marco Biagi Foundation has hosted an international conference in Modena, Italy devoted to international and comparative employment and labor relations. This year’s conference, The Transnational Dimension of Labor Relations: A New Order in the Making?, brought together scholars from Europe, Africa, and the Americas, who analyzed the challenges of regulating work, promoting labor standards, and addressing increasing economic inequality in the wake of the global economic crisis. Particular attention was given to new forms of transnational collective bargaining, emerging hard and soft law techniques to influence the conduct of transnational corporations, the difficulty of establishing fair conditions of work for migrants, and the lack of a clear hierarchy of law-making authority at the international level. Participants addressed these issues from a number of disciplines including law, industrial relations, economics, and human resource management.
Part of the University of Modena and Reggio Emilia, Italy, the Marco Biagi Foundation is also home to the International Doctoral Research School in Labour Relations, which promotes PhD work that is comparative and interdisciplinary. To advance the work of its own students, and establish links with PhD and post-doctoral students around the world, the Foundation launched its Young Scholars’ Workshop last year. This year, we heard and commented on papers from PhD students from Norway, Italy, Spain, South Africa, Austria, Estonia, and Hungary. The chance to provide feedback from an outsider’s perspective – that of an American law professor – was fun for me and, I hope, helpful for them. For me, this session has become a highlight of the annual conference.
Mike Zimmer (Loyola University Chicago) and I were first introduced to the Foundation’s annual conference in 2007 by our co-author Roger Blanpain (Universities of Leuven and Tilburg, Belgium and the Netherlands). Roger, a prolific scholar in the field of comparative labor and employment law, attends most years, as do some of the most influential scholars in that field, including Manfred Weiss (J.W. Goethe University, Frankfurt, Germany), Csilla Kollonay-Lehoczy (Central European University, Budapest, Hungary), Jacques Rojot, (University of Paris II – Panthéon Assas, France), Alan Neal (University of Warwick, U.K.), and Janice Bellace (The Wharton School, University of Pennsylvania). The opportunity for conversations and exchange with these scholars and others has kept me coming back to Modena annually since then. It has also led to my fruitful collaboration with Malcolm Sargeant (Middlesex University Business School, London, U.K.), with whom I have written several articles on comparative age discrimination law. Serving on the Foundation’s international council has helped me understand the challenges facing higher education in Europe. I recommend this kind of involvement to American legal scholars interested in a fresh perspective on the challenges and possible solutions to the problems we confront at home. I only worry that in this age of austerity and shrinking travel budgets, it will become increasingly difficult for those in the American legal academy to participate in conferences outside our borders. Finding ways to do it may take some creative planning, but, at least in my experience, it will be well worth the effort.
Many thanks, Susan!
Tuesday, March 19, 2013
The EEOC has just issued its "African American Workgroup Report," which paints a picture of the many obstacles faced by black federal workers. The report is organized around seven main obstacles, with background information and recommendations for each. The obstacles:
- Unconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.
- African Americans lack adequate mentoring and networking opportunities for higher level and management positions.
- Insufficient training and development assignments perpetuate inequalities in skills and opportunities for African Americans.
- Narrow recruitment methods negatively impact African Americans.
- The perception of widespread inequality among African Americans in the federal workforce hinders their career advancement.
- Educational requirements create obstacles for African Americans in the federal workforce.
- EEO regulations and laws are not adequately followed by agencies and are not effectively enforced.
You can also read the Washington Post's take on the report here.
Many thanks to my colleague Rick for his post on the abstract for Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, which Tim Glynn and I recently uploaded on SSRN. We don't disagree with him that the smart money might well bet on the FAA in this collision, but we're pretty sure this will be a heavier lift for a textualist Court than at least some of the prior decisions.
In any event, while we (naturally) think the piece is worth a read in full, in the interests of shameless self-promotion and on the remote possibility that some of you might want a short summary, here goes.
A little over a year ago, the National Labor Relations Board decided In re D.R. Horton, which held that employers may not compel employees to waive their NLRA right to pursue collective legal redress of employment claims. Instead, the NLRA mandates that some mechanism for concerted dispute resolution remain available in arbitral or judicial forums. The decision was appealed to the Fifth Circuit, where it remains pending after oral argument. That court has to face not only the underlying substantive issue but also various challenges to the composition of the Board itself. A successful challenge would vacate Horton and threaten a number of other Board decisions (and, indeed, perhaps the decisions of a number of other agencies to the extent that the Fifth Circuit might fall into line with the D.C. Circuit in Noel Canning v. NLRB, invalidating most recess appointments).
Our article, however, mostly avoids the quorum issues since the question the Board decided – whether an arbitration agreement can bar all joint and collective resort to legal remedies in any forum, arbitral or judicial – will confront courts whenever an employer moves to stay a lawsuit pending arbitration. And in such proceedings the Horton analysis will continue to have influence, regardless of whether the Board decision is affirmed or vacated. In fact, in our view, the courts are required to address this analysis, not because of (or at least not only because of) Horton itself, but because it reflects the correct interpretation of the NLRA as well as its predecessor, the Norris-LaGuardia Act.
Indeed, we think the threshold question – whether the labor laws protect the right to concerted action in the form of concerted dispute resolution – is scarcely debatable. While we track through the case law establishing that principle, tracing it back to the Norris-LaGuardia Act’s invalidation of yellow dog contracts, the bottom line is that it’s hard to imagine a reading of that statute and the NLRA that would protect employees from contracting away their right to strike and picket but nevertheless allow them to agree not to join together as co-plaintiffs or in class or collective actions to vindicate their rights in appropriate forums. Of course, if you have doubts or your curiosity is piqued, you can go check out the article!
The real stumbling block for Horton is not the clear requirements of labor law but, as Rick suggests, the Federal Arbitration Act. Now, we agree with Rick that the FAA has, at least until now, been king of the hill when it comes to its intersection with other federal statutes. That has been due to the Supreme Court’s rather impressive ability to interpret the FAA not to conflict with the other statutes and thus avoid having to confront the correct result should it find an irreconcilable conflict. But we believe even the present Court would have to recognize that, in the Horton scenario, the irresistible force of the FAA has met the immovable object of the labor law right to concerted dispute resolution.
Ironically, it is the Supreme Court’s recent decisions regarding arbitration that have made the conflict inevitable. In its most recent FAA jurisprudence, the Court has gone well beyond insisting that arbitration clauses be enforced on the same terms as other contractual provisions. In Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1775-76 (2010) and AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1750 (2011), the Court stated that the enforcement of arbitration clauses as written means, absent qualifying language, that arbitration must be bilateral, that is, only between the parties to the agreement. Taken together, these decisions indicate that an (unqualified) mandatory arbitration clause in an otherwise enforceable contract will preclude joint, collective, or class enforcement in both arbitral and judicial forums and therefore abridge employee rights to concerted action.
Thus, there is a conflict between the two regimes, and the Court will have to decide which trumps where an otherwise valid arbitration agreement purports to limit what would be employees’ right to concerted dispute resolution or other concerted activity. For us, the answer is easy: applying normal principles of statutory interpretation, the labor statutes (the NLA and the NLRA) effects a pro tanto repeal of the FAA. Indeed, as an obvious starting point, both regimes expressly so provide! Thus, the FAA finds arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” And the Norris LaGuardia Act contains an express repealer: “All acts and parts of acts in conflict with the provisions of this chapter are repealed.” 29 U.S.C. §115.
Moreover, we believe that, by fair implication, the NLRA also repeals conflicting applications of the FAA. A simple hypothetical, drawing on the plain language of the FAA, makes the point pellucid. While we usually think of the FAA as governing disputes about legal rights, § 2 it is framed much more broadly to validate any “agreement in writing to submit to arbitration an existing controversy.” What would this section say about the scenario in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), the seminal NLRA concerted action case? In the case itself, the Supreme Court affirmed the Board’s finding that seven workers who had left work together to protest the shop’s bitterly cold but not unlawful conditions had engaged in protected concerted activity under Section 7. If the FAA’s broad bilateral arbitration enforcement mandate survives the NLRA in this context, an employer could require that all employees to agree, as a condition of employment, to submit Washington Aluminum-like complaints or disputes—all “controversies over conditions in the shop”—exclusively to individualized, binding arbitration.
Needless to say, so reading the FAA would effectively repeal the labor law. The bottom line then has to be otherwise: the labor statutes trump the conflicting FAA. Obviously, the full analysis with all of its twists and turns requires a deeper dive than this, so I again shamelessly invite you to read the piece. . . .
Finally, I should note that reaching this result required dealing with some pesky issues which you can pursue if you’re so inclined. For example, there’s an argument (that we don’t think much of) that courts have to leave these questions, at least in the first instance, to the primary jurisdiction of the NLRB. And there’s an argument that Glynn and I view as bizarre (but has been accepted by some courts) that the FAA in fact trumps the labor laws. It goes this way: while the FAA was enacted in 1925 and the NLA and NLRA in the ‘30s, the FAA was reenacted in 1947 as part of a routine codification of the United States Code and it is therefore the later in time and trumps the “earlier” statutes in the event of conflict. Really.
I’ll come back to some of the implications of our analysis in a follow-up post. And it will be shorter. Really.
The UNLV William S. Boyd School of Law is pleased to host the 8th Annual Colloquium on Current Scholarship in Labor and Employment Law on September 27-28, 2013 in Las Vegas, Nevada.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will begin with a breakfast at the UNLV Tam Alumni Center on Friday morning. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches. Breakfast, lunch, and break services will be provided on site at Boyd on Friday; breakfast, break services, and a wrap-up dessert reception will be offered on Saturday (lunch on your own). On Friday evening, a special dinner and panel discussion will be held at the Culinary Union (Local 226) banquet hall.
For complete details and to register for the Colloquium, click here.
Adam Shinar (S.J.D. Candidate, Harvard Law School) has just posted on SSRN his forthcoming piece in the Connecticut Law Review entitled: Public Employee Speech and the Privatization of the First Amendment.
Here is the abstract:
Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored.
Against this background, the article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice.
I have had the privilege of commenting on earlier drafts of this paper and it is one of the finest papers on public employment free speech law that I have read in quite a while. It is comprehensive, insightful, and seeks to answer a question concerning why public employee speech is being treated more like (less legally protected) private employee speech in the United States. Adam draws on a wide range of interdiscplinary scholarship for his findings and he concludes by seeking to establish broader First Amendment free speech protections for public employees so that they can speak out freely in the public interest.
Check it out!
Charlie Sullivan & Tim Glynn (both Seton Hall) have just posted on SSRN their article (forthcoming 64 Alabama L. Rev. (2013)) Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution. Here's the abstract:
As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end. The National Labor Relations Board recently held in In re D.R. Horton that employers may not compel employees to waive their NLRA right to pursue collective legal redress of employment claims. Instead, the NLRA mandates that some mechanism for concerted dispute resolution remain available in arbitral or judicial forums. Unsurprisingly, this decision has generated an enormous amount of litigation. Although the case itself is pending before the Fifth Circuit, courts across the country are now confronting Horton-based challenges to the enforcement of mandatory arbitration clauses in employment contracts. To date, they have generally rejected these challenges on various grounds.
This Article will explore why these courts are wrong and why agreements that bar concerted dispute resolution are indeed invalid. The Board’s articulation of labor law rights ordinarily is entitled to judicial deference. But such deference has been called into question in Horton itself in part because of a recent circuit court decision invalidating recess appointments to the Board. As we will demonstrate, however, no deference is necessary because Horton reflects the correctnot merely a reasonableinterpretation of the NLRA as well as its predecessor, the Norris-LaGuardia Act.
Moreover, although the Supreme Court has seemingly treated the Federal Arbitration Act as a “super-statute” that overwhelms all before it, the Court has simultaneously denied doing more than applying what textual analysis and interpretive conventions require. The Horton question will force the Court to confront the collision between what it says and what it does. Established doctrines of statutory interpretation, recently and resoundingly reaffirmed by the Court, dictate a contrary result. Indeed, to the extent the concerted activity mandate of federal labor law conflicts with provisions of the FAA, the former clearly supersedes the latter.
With apologies to Dr. Seuss, Horton meant what it said and said what it meant. Courts must follow, one hundred percent.
For what it's worth, I agree completely with Charlie and Tim about what the Court should do, but I do not expect that this is what the Court will do. As I have argued elsewhere, the Court is, in FAA cases, all too willing to subsume plain language to the Court's policy preference for arbitration. I suspect that the Court will do as it did in Concepcion, and find that the D.R. Horton rule would have the effect of discouraging employers from promulgating individual employment arbitration agreements and therefore is inconsistent with the FAA.
One might argue that Concepcion is distinguishable because it involved a potential conflict between the FAA and a state common-law doctrine (unconscionability) instead of a federal statute (NLRA). But I wouldn't read too much into this given the express language in the FAA Section 2 preserving state common-law defenses to arbitration agreements. If the Court in Concepcion was willing to erase that language, I see no reason why the Court will give the language of the NLRA any higher priority.
Monday, March 18, 2013
The Supreme Court today granted cert in Madigan v. Levin, an ADEA case from the 7th Circuit. Here is the issue:
Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.
Thursday, March 14, 2013
In our second installment on mitigating the effect of Wal-Mart, we have Jason Bent's (Stetson) new article, Saving Systemic Disparate Treatment by Exposing Hidden Priors, which he has just posted on SSRN. The abstract:
What remains of the systemic disparate treatment theory of discrimination after Wal-Mart Stores, Inc. v. Dukes? Is it now defunct, or can it be saved? This Article contends that the systemic disparate treatment theory can be saved only by identifying the flaws in its statistical foundation, and rebuilding that foundation anew with a recognition of the inescapable role of Bayesian priors. Recent scholarly efforts to understand systemic disparate treatment law can roughly be sorted into two strands – methodological and contextualist. In the methodological strand, scholars call attention to the inability of current statistical methodologies to support an inference of discrimination. In the contextualist strand, scholars argue that systemic disparate treatment theory should be conceptually expanded to impose liability on employers for wrongdoing located at the organizational level, rather than as simply an aggregation of individual-level claims. This Article aims to reconcile these divergent scholarly strands and, in the process, to rebuild systemic disparate treatment law. Taking a Bayesian view, the statistical shortcomings identified in the methodological strand are not fatal. Yet, the Bayesian view also provides conceptual space for the organizational approach advanced in the contextualist strand. After Wal-Mart, scholars have an opportunity to reshape this sorely misunderstood area of antidiscrimination law. To do so, legal scholars, social scientists, and statisticians will need to convince courts to acknowledge, embrace, and ultimately, to manage the vital role of Bayesian priors.
I'm always a sucker for arguments that seek to take the advantage of statistics, while still recognizing that it has limits and can benefit from other types on analysis. So check it out!.
Wednesday, March 13, 2013
Joseph Seiner (South Carolina) has just posted on SSRN his article, Weathering Wal-Mart, which will be published in the Notre Dame Law Review. The abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date, and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.
Instead, this Article attempts — for the first time — to find a solution to the problem created by Wal-Mart. The academic literature has yet to explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class-action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This paper offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This paper also situates these proposals in the context of the existing literature.
The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this paper asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass-employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. For the first time in the academic literature, this Article takes on that challenge.
Joe has always been one of the go-to people on procedure and employment law (much like Suja Thomas, as Rick's earlier post shows), so this is a must-read for those concerned about the effect of Dukes on employment cases.
César F. Rosado Marzán (Illinois Institute of Technology, Chicago - Kent College of Law) has posted on SSRN his forthcoming piece in the UC Irvine Law Review entitled: Organizing Unions in the U.S. with International Framework Agreements: An Exploratory Study.
Here is the abstract:
Union density continues to decline, while income inequality continues to climb. But while union density falls we have experienced the counterintuitive rise in international framework agreements (“IFAs”), or agreements signed by global union federations (“global unions”) and multinational corporations. IFAs can be construed to contain employer pledges to not put obstacles on workers who want to organize. Can a global employer’s pledge to not oppose workers’ organization facilitate their unionization? In an exploratory fashion, I interviewed union and multi-national firms that signed IFAs to better comprehend how these novel agreements can aid the organization of workers. The results of this exploratory study show that the organizational inroads vary from nonexistent to very modest, even with the employers’ pledges not to oppose unionization. Economic and political obstacles seem to significantly hinder union organization even when the employers sign IFAs. The article concludes that even though the organizational results of the cases were not entirely positive, the cases suggest that unions that think creatively and experiment with the IFAs beyond mere neutrality pacts could counter the economic and political roadblocks to unionization. Therefore, the article provides hypotheses for further research to clarify how IFAs can be more effective organizing tools and for unions to experiment with the global agreements.
I really like how Cesar went to the proverbial horse's mouth to interview those involved in such agreements in Germany and other countries (during hsi research leave in Europe last year). I think his insights will be very helpful going forward in deciding whether IFAs can play a meaningful in the post-Wagner Model world we now find ourselves in.