Labor & Employment Roundup

It's time for another labor and employment roundup:

• Among the reasons for my needing to do a quick roundup is preparations for two summer conferences:

1.  The inagural Labour Law Research Network (LLRN) conference in Barcelona next week.  The program looks great, present company notwithstanding.

2.  The annual Southeastern Association of Law Schools (SEALS) conference, Aug. 4-10 in West Palm Beach (and to all those who are thinking boondoggle--yes, it's in a nice place, but we take over an entire Southern Florida hotel in August and, as a result, get incredibly cheap rates).  As has been the case for the last several years--primarily due to the work of Michael Green and Paul Secunda--there are numerous labor and employment panels (by my count, six panels with a primary L&E focus, plus many more related).  One new feature this year at SEALS is a "New Voices" series that involves a call for papers from scholars with five years or less experience to discuss works-in-progress with more senior faculty--we have a L&E New Voices panel with several great-looking papers.

• The May unemployment numbers are in: 175,000 new jobs, with an 7.6% unemployment rate (up from 7.5% the month before).  The numbers look OK--a bit better than projected--and there seems to be a slight decrease in discouraged workers.

• In a case in which Connecticut state employees challenged their dismissal, the Second Cir. granted summary judgment to the plaintiffs, holding that the layoffs targeted union members.  According to the court, this violated their First Amendment right to association and, in doing so, applied strict scrutiny.  Given that the standard for these cases has been a mess of late, expect a cert. petition and a decent likelihood of it being granted.

• An employer recently settled charges that it fired two workers, and sued one of them, for filing charges with the NLRB.  In addition to paying $315,000, the employer agreed to drop the suit, rescind a wage-gag rule, and stop paying an attorney to represent employees in a coercive manner (the attorney claimed to represent the employees--allegedly via coercion--and required all contact with employees to go to him first.  Even by labor law standards, that's some pretty agressive action.

• An update on the cert. petition and amicus briefs for Noel Canning.  The conference is set for June 20.  My favorite quote from the Washington Post article:

“This stuff is catnip for law nerds,” Washington lawyer John P. Elwood wrote in a post on the legal blog the Volokh Conspiracy — which, it should be said, is itself catnip for law nerds.

• Speaking of the dysfunctional state of NLRB appointments, former member Peter Hurtgen suggests a temporary compromise of having only two Democratic and two Republic members.  I admire Hurtgen, but I'm not sure that having the White House give up its normal prerogative to have a majority on the NLRB solves anything--seems like it simply gives the minority party more incentive to block nominations.

• Also, in NLRB news--the Board refused to adopt the General Counsel's suggestion to change the Spielberg/Olin arbitration deferral standards.  The GC wanted more limited deferral, to occur only when it is shown that the arbitrator adequately considered the statutory rights at issue.  Not entirely clear why the NLRB didn't agree, but it shows that descriptions of the NLRB as being a hack for union interests isn't accurate.

• The Fourth Circuit recently issued a decision in a sexual harassment case in which the alleged harasser commited suicide after the accusation was made.  The court affirmed summary judgment for the employer in yet another case that shows, in spite of popular opinion, how difficult it is to win sexual harassment claims.

Hat Tip:  Jonathan Harkavy, Patrick Kavanagh, and others.

-JH