Friday, May 31, 2013
In the first circuit court of appeals decision on the issue, the Fifth Circuit, in EEOC v. Houston Funding II held yesterday that discriminating against an employee because she is lactating or expressing milk is sex discrimination. The decision reversed summary judgment in favor of the employer and remanded the case to the district court. We reported on the district court decision here, and you might recall that the district court had held that lactation was not a condition related to pregnancy because it did not start until pregnancy had ended.
The Fifth Circuit's decision held that lactation was a medical condition related to pregnancy and childbirth because it was a physiological state caused by pregnancy and subsequent childbirth. It further relied on prior circuit precedent, which had held that menstruation, a normal part of female physiology, was a condition related to pregnancy and childbirth:
Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly afterthe pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s postpregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”
In a footnote in this section, the court distinguished cases about whether a failure to accommodate an employee who wanted to express milk at work in a particular way violated Title VII. Title VII does not require accommodations for women affected by pregnancy, childbirth, or related conditions, just that those women be treated the same as other employees who may be similar in their ability or inability to work. So if the employer never allows employees to take breaks, it may not be required by Title VII to allow lactating women to take breaks, for example.
This case was not about whether the employer had to accommodate the employee's request to use her breast pump at work, or at least not yet. Instead, it was about whether she was fired just for saying that she had said was lactating and wanted to express milk at work. She hadn't asked for any special accommodation yet. The employer doesn't exactly deny that; instead, it contends that she was not fired at all and instead abandoned her job.
This decision is an important development in the area of sex discrimination in sex-specific contexts. The accommodation framing seems somewhat problematic, though. It seems too easy to see a request related to expressing milk as something special, disregarding the kinds of actions employees simply take without requesting or requests that employees make all of the time that aren't viewed as accommodating. For example, even workplaces with rigid requirements about where employees must be and for how long (think a factory production line or cash register at a store) often provide breaks for employees to go to the bathroom, get a drink of water, or just rest for a few minutes. If an employee uses one of these breaks for some other purpose, it seems problematic to suddenly frame it as an accommodation.
With the amendment of the FLSA to require that most employers provide reasonable breaks and facilities to allow lactating women to express milk, perhaps this issue will fade, but it still says a lot about what we view as the "norm" to talk about accommodating pregnant or lactating women, when we don't talk about accommodating people with full bladders.
h/t N. William Metke, @metkelaw
Thursday, May 30, 2013
Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.
Here is the abstract:
This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.
This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation. As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.
Wednesday, May 29, 2013
Stewart Schwab, Dean of the Cornell Law School and one of the Reporters of the ALI's Restatement of Employment Law, has announced that he is stepping down as dean of the law school in June 2014.
From the Cornell Chronicle:
“I have enjoyed my time as dean,” said Schwab. “Cornell Law has a collegial faculty that sees the best in each other; students who are talented, hardworking and enjoy learning the law; and loyal alumni who lead lives of distinction and are dedicated to improving the school. These factors have let us accomplish many things over the last decade.” . . . .Other Law School milestones under Schwab’s leadership:
- the most successful fundraising year in the history of the Law School, 2012;
- expansion of the school’s business law curriculum with new deals and transactional law classes;
- creation of new clinical studies opportunities in securities law, labor law, LGBT rights and juvenile justice;
- the launch of several new programs, institutes and projects including the Clarke Business Law Institute, the Cornell e-Rulemaking Initiative, the Avon Global Center for Women and Justice, the Clarke Initiative for Law and Development in the Middle East and North Africa and the expansion of the Journal of Empirical Legal Studies; and
- establishment and expansion of exchange partnerships with some two dozen universities around the world.
After a sabbatical during the 2014-15 academic year, Schwab will return to the faculty. Here's hoping that much more innovative labor and employment law scholarship is the happy result!
Our friends at ADAPT, Chris Leggett and Michele Tiraboschi, bring word of the latest version of the ADAPT International Bulletin, including two comments.
The first note, which is from Gabriele Gamberini (PhD Candidate in Human Capital Formation and Labour relations and Visiting Researcher at Middlesex University, London) gives insights on whistleblowing in countries without whistleblower laws. Using a Game theory and taking the Italian case into a point, the article demonstrates the importance of creating internal channels for whistleblowing in countries with no whistleblower laws.
The second note that comes from Paul Jonker-Hoffrén (Post-doctoral Researcher, Turku Center for Labour Studies, Turku University) deals with the origin of the Youth Guarantee and explains briefly the goals, actors, and the pros and cons of the Finnish Youth Guarantee system.
This issue also includes the January edition of the E-Journal of International and Comparative Labour Studies.
For further information, you can contact the ADAPT staff at firstname.lastname@example.orgPS
Tuesday, May 28, 2013
Onwuachi-Willig's New Book: According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family
Congratulations to worklaw prof Angela Onwuachi-Willig (Iowa) on the publication of her new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family (Yale University Press 2013).
Angela presented one of her chapters of the book to the Marquette Law faculty as part of our Faculty Workshop series and it really was quite captivating. Although the book focuses on issues surrounding family law, it also provides insights into many area of civil rights and work law as well. Here is the press release.
Saturday, May 25, 2013
- LEL issues raised by facebook and other social media sites. EVERY country in the world is dealing with the issue of how to deal with an employee who is fired for criticizing her boss/company. My favorite: the employee who "liked" a facebook friend's comment that the employee's boss "is as worthless as a chocolate teapot."
- Outsourcing (e.g., to temporary staffing agencies) as a means of avoiding benefits and unfair dismissal protections required for "employees".
- The disembowelment of trade unionism.
- The difficulty of collective bargaining when the workers are in one country (with one set of laws and expectations) and ownership/management is in a different country.
- The efficacy of labor tribunals / labor courts for resolving labor disputes.
- Negotiating in the shadow of "law" that is unenforced or a "judiciary" that is corrupt and easily bribed.
- Sex discrimination laws, even if effective at addressing discrimination in urban employment settings, do little or nothing to address socially entrenched gender attitudes and employment practices in rural areas.
Friday, May 24, 2013
Congratulations to Chai Feldblum (EEOC, Georgetown) for her nomination to the EEOC for a second term. President Obama announced the nomination yesterday along with a group of other positions here. Given her extensive background on antidiscrimination issues in the legislative clinic at Georgetown and her central involvmement in drafting, coalition building, and passage of the ADA and ADAAA, Chai has been a very effective commissioner. She and Commissioner Lipnic, one of the President's Republican nominees, in particular have been able to work with business and employee advocates on enforcement issues. Here's hoping the Senate confirmation process goes smoothly this time around as well.
h/t Marcy Karin (Arizona State)
Thursday, May 23, 2013
Normally here at Workplace Prof Blog, we at least like to pretend that we have some shame when it comes to self-promotion by getting fellow bloggers to post on each others' papers. I'm going to break this norm, however, because this post is as much a rquest for assistance as anything else. Sam Estreicher (NYU) and I have posted on SSRN our article, Comparative Unjust Dismissal Law: Reassessing American Exceptionalism, which will appear in the North Carolina Law Review.
I've copied the abstract below, but one aspect of the article that I want to focus on here is our attempt to give as rich a picture as we can on how unjust dismissal laws are actually operating in various countries. This attempt has involved, among other things, trying to find data on enforcement and talking to local experts. As you can see from our acknowledgements footnote, we've already received a tremendous amount of help from a large number of people--and hats off to all them once again for all their great assistance. However, we've had trouble finding good data for a lot of countries and, especially with an article this long, have no doubt messed something up or overlooked a relevant issue. So, our request is that if you have any suggestions, corrections, comments, or leads on useful data, please let me know (you can email me at email@example.com) so we can make the change before publication. To the abstract:
Commentators have long debated the merits of the United States’ "at-will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals.
Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.
I'm writing to you to share the call for papers for a International Comparative Sciences Symposium in Sofia which is to be held in October this year. There are two sessions there which might be of interest to our colleagues:
- comparative law session;
- comparative labour studies session.
If you consider this event to be of possible interest to your colleagues working in the field of labour law (and possibly to your non-legal and/or non-labour-law colleagues as well), please feel free to share it with them. Please find below the third call for abstracts for this Symposium as forwarded to me by my Slovenian colleague and the link to the Symposium website.
The Symposium is a new initiative of the Bulgarian Comparative Education Society and our colleagues from the Society kindly asked me and other comparativists to share the information on this Symposium as widely as possible. We all know how difficult it may be sometimes to convene an international event for the first time at a national level. Therefore I believe it'd be a good idea to support this undertaking at least by spreading the information about it.
Here is the call for paper and conference website and registration information:
This is our Third Call for abstracts, full papers and roundtables to be submitted to the International Symposium on Comparative Sciences that will be organized by the Bulgarian Comparative Education Society and held in Sofia, Bulgaria, 8 - 11 October 2013. Please be informed that the abstract submission deadline is extended by 31 May.
This will be a forum where different comparative sciences can meet and discuss problems of common interest. Scholars from the following sciences are invited: Comparative Education, Comparative Psychology, Comparative Sociology, Comparative Religion, Comparative Linguistics, Comparative Literature, Comparative Civilization Studies, Comparative Mythology, Comparative Anthropology, Comparative Law, Comparative History, Comparative Labour Studies.
Hope you will find this Symposium productive and interesting. For more information please visit the Symposium website.
Yesterday, the Senate HELP Committee approved all five NLRB nominees. The Republican nominees (Johnson and Miscimarra) got unanimous support; Chairman Pearce (a Dem) had four Republicans vote against him; and Members Block and Griffin (Dems) had all Republicans except for Murkowski vote against them. The reason for the objections to Block and Griffin are purportedly that they should step down because of the question regarding the legality of their recess appointments. This, even though there has been universal agreement that all the nominees are qualified. I find that argument silly--there's a circuit split on the legality of the appointments and Block and Griffin are simply trying to do the work the President asked them to do. The entire issue has nothing to do with them personally. (And it should go without saying, contrary to George Will's way-over-the-top op-ed today, that they are not comparable to George Wallace standing in the doorway at the University of Alabama).
As we've noted before, this issue is bigger than the NLRB and raises the possibility of the nuclear option, although there are still big questions whether the Senate Democrats will go that far. At this point, Reid looks like he will wait to bring the nominations to the full Senate until July, in order to keep the option open.
As a final note, check out former Chairwoman Liebman's recent op-ed on the matter, which appeared in Politico.
Hat Tip: Patrick Kavanagh
Wednesday, May 22, 2013
The good folks at Seton Hall have just put out a call for proposals for the Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum. This is a great event--basically the labor & employment version of the Stanford/Yale/Harvard Junior Faculty Forum--so all of you junior scholars should definitely considering submitting. The info:
Call for Proposals:
Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum
Seton Hall Law School, October 11-12, 2013
Building on the successes of the last seven years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents.
For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
The event will be held at Seton Hall Law School, October 11-12, 2013. As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.
Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, June 17, 2013.
Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 23, 2013.
This past Friday, the United State Supreme Court granted cert. in the case of Lawson v. FMR LLC. The case concerns whether the Sarbanes-Oxley Act (SOX), which protects employees of publicly traded companies from retaliation for reporting financial improprieties, also protects the employees of private contractors of those companies. In the case, two fund investment advisors blew the whistle on a publicly-traded mutual fund which contracted for their services. The First Circuit found that the fund advisors were not covered by SOX protections.
The Court had asked the U.S. Solicitor General's views on the case, and the SG recommended that the Court bypass the case in order to allow the issue to percolate among more circuit courts. The case, however, was granted.
Among the issues to be decided: whether protecting the employees of contractors is mandated under the plain meaning of SOX and whether a finding of no coverage for such employees will discourage whistleblowers from bringing financial fraud allegations to the attention of the public. It should also be an interesting case because it is one of the first to examine the whistleblower protections of SOX and will likely provide guidance on how broadly or narrowly SOX should be interpreted to protect whistleblowers in the financial services industry.
Tuesday, May 21, 2013
A very interesting guest post today by Lise Gelernter (Buffalo) on the potential impact of yesterday's U.S. Supreme Court decision involving administrative law and the FCC, which could have some impact on the NLRB's power to interpret the jurisdictional bounds of its own statute:
As an administrative law geek, I read the Supreme Court’s Chevron decision issued yesterday (City of Arlington v. FCC 569 U.S. __, slip op. No. 11-1545 (5/20/13)) with great interest. And then I started wondering if it had any impact on the NAM v. NLRB case concerning the NLRB’s authority to require employers to exhibit posters about employees’ collective bargaining rights.
In the Arlington v. FCC case, the majority (with Justice Scalia writing the decision and Justice Roberts strongly dissenting, joined by Justices Alito and Kennedy) said that courts had to defer, under Chevron, to the FCC’s determination that it had the jurisdiction or authority to interpret an ambiguous part of its statute. The statute in question required state and local governments to act on wireless antennas siting applications “within a reasonable period of time.” 47 USC §332(c)(7)(B)(ii). The FCC had promulgated a rule interpreting “reasonable” to mean 90 days for applications for new antennas on existing towers, and 150 days for all other applications. The question was “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, jurisdiction).”
The majority found that there was no difference in Chevron treatment of “jurisdictional” questions and “run-of-the mill” applications of an agency’s governing statute. Slip op. at 5. The bottom line was:
judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority.
Id. at 9. The Court upheld the Fifth Circuit’s decision to grant Chevron deference to the FCC because the statutory grant of authority was ambiguous and the FCC’s interpretation of its authority was “a permissible construction of the statute.” Id. at 4. The ambiguity was found in the “reasonable period” language in §332(c)(7)(B)(ii) and a “saving clause” that provided “that nothing in the [Communications] Act, except those limitations provided in §332(c)(7)(B) ‘shall limit or affect the authority of a State or local government’ over siting decisions.” Id. at 2 (emphasis added). The City of Arlington had argued that the “saving clause” took away the FCC’s authority to set specific time limits on siting decisions. The Fifth Circuit had determined that the effect of the saving was ambiguous and that the FCC’s determination that it could impose specific time limitations was a “permissible construction of the statute.” Id. at 4.
Although the DC Circuit’s decision in the NAM v. NLRB case is framed differently, I wonder if that court’s insistence on Section 8(c)’s limitations on the NLRB’s ability to require employers to post the NLRB’s words about collective bargaining rights isn’t really just a decision not to grant Chevron deference to the Board’s finding that it had the jurisdiction to require the poster. As was true for the FCC, the NLRB has a broad grant of rulemaking power under §6; the NLRB has “the authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this Act.” §201 of the Communications Act gives the FCC the similar authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Shouldn’t the NLRB’s interpretation of its statute in a regulation get the same deference test applied as was true for the FCC? It can be argued that the DC Circuit just began with the wrong analysis.
Some might argue that the NAM v. NLRB case is very different because it is based on a First Amendment analysis, not a Chevron-type analysis. But the DC Circuit was very careful to tie everything back to the statute in the form of the limits that §8(c) imposes on the NLRB, not really on the First Amendment. The court’s conclusion states: “We therefore conclude that the Board’s rule violates § 8(c).” Slip op. at 23. Thus, the issue in that case really is whether or not §8(c) precluded the Board from issuing its rule (which was the issue the litigants focused on). The Arlington v. FCC case says that if the Board’s statutory interpretation is permissible, the court should defer to the Board’s interpretation in the face of the ambiguity raised by the interplay of §8(c), the §7 rights the NLRA grants, and the broad §6 rulemaking authority. Of course, a court could find that the Board’s interpretation is not permissible, but that is not what the DC Circuit did. The court short-circuited the traditional Chevron analysis that the Arlington v. FCC case requires.
I think Lise's analysis has some really bite to it and will be interested to hear what readers think of her theory in the comments.
Friday, May 17, 2013
for the 2014 AALS Annual Meeting to be held in New York, New York, January 2-5, 2014.
Title of Program: The persistent societal habits of bullying, harassing, and excluding: Exploring the current legal and public policy issues at the forefront of efforts to combat such discrimination of people with disabilities, as well as other marginalized populations in our society, as well as efforts to provide better enforcement of legally protected rights in this context.
More information can be obtained from Richard Peterson, AALS Disability Law Section Chair, at email@example.com.
The deadline for submission is Friday, June 7, 2013. The officers of the Section on Disability Law will select three abstracts for presentations. Authors will be notified no later than June 28, 2013. Please include “Response to AALS Disability Law Section Call for Papers/Presentations 2014” in the subject line of your email submission.
Hat tip to Katie Eyer.
Thursday, May 16, 2013
In addition to the Third Circuit's divided, pro-Noel Canning decision this morning which Jeff has described here in his post from today, Washington has been busy with labor-oriented topics.
To wit, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the five recently nominated members for the National Labor Relations Board (NLRB) (Democrats Mark Gaston Pearce, Richard F. Griffin, and Sharon Block, and Republicans Harry I. Johnson and Philip A. Miscimarra). Surprisingly, the hearing lacked histrionics from either side, and a vote is planned by the Senate commitee next week on May 22nd. My prediction would be to expect a party line vote sending the nominations to the Senate floor, where, of course, a Republican filibuster should be expected. It will be interesting to see how the GOP justifies this filibuster given that its complaints about the Obama administration surround the use of the recess appointment power, and now Obama is given them the nominees they asked for in the first place. There is some urgency here because the Board will lack a quorum as of August 27th, when Chairman Pearce's term expires.
In other news, the Senate HELP committee voted today 12-10 along party lines to forward the nomination of Thomas Perez to be Secretary of Labor. Perez, who is exceptionally qualified to hold this position based on previous positions in federal and state government (he is the assistant attorney general in charge of the Justice Department's Civil Rights Division and he formerly headed Maryland's Department of Labor, Licensing and Regulation), has been under GOP attack for his purported role as assistant AG for civil rights. Not sure what the GOP will do on the Senate floor. They might have a hard time holding together a filibuster on this one, especially since their allegations against Perez appear to have turned out to be all smoke and no fire.
In any event, busy day today in Washington D.C. And I have feeling, the fireworks have just started.
ADAPT International Conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?
We are pleased to announce that ADAPT and the International Doctoral School in Human Capital and Labour Relations are organizing the international conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?, which is going to take place on 25-26 October 2013 at the University of Bergamo (Italy).
The conference is part of the ADAPT international events on Productivity, Investment in Human Capital and the Challenge of Youth Employment, which resulted in three volumes making up the ADAPT Labour Studies Book-Series edited by Cambridge Scholars Publishing and it aims at contributing to the current debate on youth unemployment and school-to-work transition.
Almost five years after the onset of the crisis, youth unemployment witnessed a further worsening. Besides persistent unemployment, the quality of youth employment is also challenged by the increase in non-standard, temporary, part-time and informal work. Tools to fill the youth productivity gap and ease school-to-work transition do exist, but sometimes they are misleadingly used and implemented. This is the case of traineeships, also known as internships or stages, which are conceived and implemented differently cross-nationally.
ADAPT and the International Doctoral School in Human Capital and Labour Relations invite professors, researchers, doctoral students, experts, practitioners and all those interested in the conference topics to submit papers. Deadline for abstract submission is 1st July 2013. We particularly encourage graduate students to submit papers.
The annual Transgender Law Institute will convene on August 22, 2013 at the National LGBT Bar Association’s 25th Anniversary Lavender Law® Conference & Career Fair. Lavender Law will be held August 22-24, 2013 at the Marriot Marquis in San Francisco, California. The Institute’s theme this year is “25 Years of Transgender Law.”
Institute participants will look back on the trans law movement’s history and examine substantive achievements, with an eye toward cutting-edge issues still to be tackled. Workshops will focus on employment law following Macy v. Holder, the EEOC’s precedent setting decision; immigration; health care; and increasing trans participation in the legal profession.
The keynote speaker for the Transgender Law Institute will be Shannon Price Minter, Legal Director of the National Center for Lesbian Rights, one of the nation’s leading advocacy organizations for the LGBT community. Mr. Minter, an openly transgender attorney, is known for his tireless work advocating and litigating to advance LGBT rights since the mid-1990s.
Today, the Third Circuit just issued its decision (2-1) in NLRB v. New Vista Nursing & Rehab [ Download New Vista ]. I've haven't had a chance to really read it (including the dissent, it comes in at a whopping 157 pages), but it basically follows the D.C. Circuit's conclusion in Noel Canning that recess appointments are only allowed for intersession Senate recesses.
A few interesting things in New Vista. First, this case--which substantively involved an employer's technical Section 8(a)(5) election challenge--involved former Member Becker's appointment. This obviously expands the impact of this issue on past Board decisions, although I'm guessing not significantly, as there are probably not a lot of decisions involving Becker that are still pending and include this argument (which the Thrid Circuit held is not waivable). Second, this only brings up the pressure for Supreme Court review, especially given the split with the Eleventh Circuit.
A final point is that, although I don't think it's an accident that courts are using the NLRB for this issue, what we're dealing with is much bigger than the NLRB. This a separation of powers fight, and a big one. Given the Republicans' de facto rule requiring a supermajority for all appointments, these cases severely limit the president's ability to make nominations. The irony is that these decisions could end up giving the president more power if the Democrats finally decide to go nuclear and change the current filibuster rules, which only requires a majority vote. I won't make a prediction on that, as there are a lot of factors at play as this battle plays out. However, although I'm not predicting this either, don't be surprised if the Court ultimately cites its political question doctrine and just lets the elected officials go at it without court interference. I'm not sure the Justices will be able to resist a big issue that brings in questions of textualism and originalism, but there is a reasonable argument that the political question doctrine is justified here.
Hat Tip: Patrick Kavanagh
Monday, May 13, 2013
Paul Clark, Professor and Director of the new School of Labor Studies and Employment Relations at Penn State University wrote the LERA listserv this morning:
I am pleased to announce that on May 3rd, Penn State’s Board of Trustees voted to elevate our program from a Department to a School. The change is effective immediately.
Our new School of Labor and Employment Relations offers six degree programs in residence (BA & BS in LER, MS in HRER, 5-Year BS in LER/MS in HRER, 5-Year BS in Spanish/MS in HRER, and 4-Year JD/MS in HRER degrees) and five programs online ((BA & BS in LER, MPS in HRER, 5-Year BS in LER/MPS in HRER, and BS in Organizational Leadership degrees). The elevation of the program to school status is the culmination of a lot of hard work by faculty, staff, and alumni over our 70 year history. In recent years we have established a successful research Center on Global Workers Rights and are in the process of starting a new International Human Resources Management Project that will become a full-fledged center in the next year or two. We also have reinstated our Labor Education and Research Program and created a new management outreach program called the Academy of Human Capital Management.
While our name will change, we will remain a part of the College of the Liberal Arts at Penn State.
We think the change in our status is a positive thing for our program and for the field of labor and employment relations. We look forward to working with other programs to help move our field forward in the years ahead.
I, of course, agree whole-heartedly. There has been too many shuttering of industrial relations programs in the US in the last decade or so, while focus has shifted to corporate-oriented Management and Human Resources programs in business schools around the country. I can only hope the success at Penn State resonates with other campuses around the country. As income inequality in this country grows dramatically and unions face increasing attacks from their corporate-sponsored opponents, these types of schools are essential to provide an academic viewpoint slowly disappearing.