Saturday, August 31, 2013

Sixth Circuit Approves Specialty Healthcare

NLRBI've been slow to post on this one, but recently, the Sixth Circuit upheld the NLRB's Specialty Healthcare decision.  In Kindred Nursing Centers v. NLRB, the court held that the rule was appropriate under the Board's wide discretion to determine appropriate bargaining units.  In particular, the NLRB adequately explained why using its traditional--and repeatedly court-approved--overwhelming "community of interest" standard was appropriate for the non-acute health care centers at issue under Specialty Healthcare.

I'm generally a fan of courts deferring to the NLRB and that's particularly true in representational matters, where the Board is supposed to get especially high deference (can you tell I used to defend Board decisions in court?).  It's even nice to see the Sixth Circuit do so, given that court's frequent hostility to Board decisions.

Also check out Ross Runkel's post on the decision.

Hat Tip: Patrick Kavanagh


August 31, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

Fourth Circuit WCS Decision Exposes Unions to Sham Litigation Liability

GavelFriend of the blog, Jon Harkavy, sent along a copy of an important Fourth Circuit case issued this week.  He thinks the Blog's readers would be interested in reading it.  I agree. Here is the Fourth Circuit case at issue.

WCS v. UFCW Local 27 exposes unions to "sham litigation" liability in the face of First Amendment protection for filing lawsuits.  The case arises from UFCW's opposition to shopping center developments where non-union Wegmans stores are located.  The Fourth Circuit's decision permits the developer to sue the union in a decision that may have a chilling effect on this type of union activity.

Could be yet another avenue through which anti-union employers harass union organizing campaigns through litigation.  Stay tuned.


August 30, 2013 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 28, 2013

Latest Update on Eighth Annual Colloquium on Labor and Employment Law at UNLV Law

ConfSome additional details about the Eighth Annual Colloquium on Labor and Employment Law have been forwarded to us by one of the co-organizers at UNLV, Ruben Garcia.

He writes:

The Eighth Annual Colloquium on Current Scholarship in Labor and Employment Law will take place in Las Vegas September 27-28, hosted by the Boyd School of Law at UNLV.  The organizers are very excited about the entire program, but would like to note a few highlights:

Friday, Sept. 27, 12:30-2:30 PM:  Plenary Luncheon Panel, “Title VII at its 50th Anniversary and its Importance to Labor and Work Law”, featuring three leading scholars on Title VII of the Civil Rights Act and its intersections with multiple disciplines: Professor Paul Frymer, Princeton University; Professor Vicki Schultz, Yale Law School; Professor Tanya Hernandez, Fordham Law School; moderated by Professor Ann McGinley, UNLV Boyd School of Law.

Friday, September 27, 7 pm:  Dinner Program at Culinary Workers Union (CWU) Hall, Las Vegas, “Labor’s History and Future in Nevada:  From the Mines to the Casinos,” featuring historian Professor Michael Green, College of Southern Nevada; Secretary-Treasurer Geoconda Arguello-Kline, CWU Local 226 and members of Local 226; moderated by Professor Ruben Garcia, UNLV Boyd School of Law.

Saturday, September 27, 12:30-2:00 pm  Closing Luncheon and Presentation of the Paul Steven Miller Scholarship Award to Professor Marley S. Weiss,  Francis King Carey School of Law, University of Maryland.

The complete program and all details are here.

Needless to say, I am super stoked to be taking part in this year's festivities. If you look at the faculty presentations, you will see that the topics represent nearly every possible issue that concerns the law of the workplace.  This Colloquium is definitely one of the labor and employment law professor events of the year!  Congratualtions to Ann and Ruben for putting together an exceptional program.


August 28, 2013 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Stein, Silvers, Areheart & Francis on Accommodating Every Body

BooksCongratulations to Michael Stein (William & Mary), Anita Silvers (San Francisco State-Philosophy), Brad Areheart (Tennessee), and Leslie Francis (Utah), all of who just posted to SSRN their co-authored paper forthcoming in the University of Chicago Law Review entitled: Accommodating Every Body.

Here is the abstract:

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes “accommodating every body” by extending an Americans with Disabilities Act reasonable accommodation mandate to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity—people whose functional capacity does not comply with prevailing workforce design and organizational presumptions—and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because everyone hopes to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

This is a wonderful new addition to the disability rights theory literature, which advances a new approach that anyone who studies employment discrimination law or disability law should consider seriously in thinking about how and when to accommodate workers with different types of abilities in the workplace.


August 28, 2013 in Disability, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Feuer on Determining the Death Beneficiary Under an ERISA Plan and the Rights of Such a Beneficiary

ErisaAlbert Feuer has a new ERISA article out that may interest many of our employee benefit law-inclinced readers: Determining the Death Beneficiary Under an ERISA Plan and the Rights of Such a Beneficiary, 54 Tax Mgmt Memo. 323 (August 26, 2013).

According to Albert, the article seeks to provide advice to (1) ERISA plan administrators, who often struggle to determine who they should pay survivor benefits, and to (2) trusts and estates attorneys and family law attorneys, who often struggle to determine who, if anyone, may use state law to wrest benefits from the person entitled to receive survivor benefits from an ERISA plan.

A great addition indeed to this underdeveloped area of ERISA Law!


August 28, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Connolly on Victimless Harassment - UK Style

Connolly Michael 1Friend of the blog, Michael Connolly (University of Surrey (UK)), having reading Charlie's post from this past Monday on Battaglia v. UPS on "victimless harassment," brings to our attention a similar case from England.

Here's Michael's summary of that case:

Reading the note on Battaglia v. UPS reminded me of a case held here in England some years’ ago. The issue in English v Sanderson [2008] EWCA 1421 was whether someone could be liable for harassment ‘on the grounds of’ sexual orientation, under the UK’s Regulations outlawing harassment and discrimination on grounds of sexual orientation, when the treatment was unrelated to any particular person’s sexual orientation.

In this case, Mr. English was harassed by colleagues using sexual innuendo suggesting he was homosexual. This conduct was rooted, apparently, in two things: he lived in Brighton (a well known centre of the gay scene) and had attended boarding school. What made this case unusual is that Mr. English was heterosexual, and his tormentors neither assumed nor perceived Mr. English to be gay. Mr. English was aware throughout that his tormentors never mistook him for being homosexual. The Court of Appeal, by a 2-1 majority, found that the mockery amounted to unlawful harassment on the grounds of sexual orientation.

Quite clearly, the phrase ‘on the ground of sexual orientation’ lends itself to cover the scenario where the harassment was unrelated to any person’s sexual orientation. As Sedley LJ observed, the distance between perceived harassment (unlawful) and harassing a man as if he were gay when he is not ‘is barely perceptible’ ([38]). However, policy considerations were prevalent in the speeches. The underlying policy consideration here is to protect homosexual (or bisexual) workers from being ‘outed’ by a systematic campaign of abuse. In such a pernicious scenario, the worker would have to suffer the abuse in silence unless or until he ‘came out’. As such, this decision helps preserve the dignity of workers that discrimination law is supposed to enshrine.

Very interesting indeed, Michael, in light of Battaglia case (and because this case concerns a Mr. English from England!). Thanks for brining a comparative gloss to this timely topic!


August 28, 2013 in Commentary, Employment Discrimination, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Shout Out to Chaumtoli Huq's New Law at the Margins Blog

Chaumtoli-Huq-web2Thanks to Chaumtoli Huq (New York Law School) for introducing her Law at the Margins Blog to us.  Today's post is entitled: Labor's Renaissance:  Bold Organizing and Partnerships Needed in the New Economy.

Here is an excerpt from that post:

How might we structure the inclusion of worker groups into a new labor movement by expanding legal protections without squashing the same radicalism that promises to reinvigorate the labor movement? . . . .

[F]or the labor movement to experience a full renaissance, it must understand the features of the new economy, and restructure our state and federal labor laws such that it maximizes worker participation and allows for innovative organizing techniques long used by worker centers to flourish.

If you are interested in this blog, or labor issues generally, you can follow Chaumtoli on Twitter @lawatmargins or join Law@theMargins Facebook page.

According to Chaumtoli, Law@theMargins uses social media as a dynamic platform from which to highlight the ways laws and legal institutions expand or limit the social justice aspirations of people and communities. Inspired by feminist theorists like bell hooks, the site seeks to make both activist and theoretical interventions to social justice issues in hopes to create a space to inspire alternate discourses on law and social justice.

Once a month, Chaumtoli hopes to feature original guest posts, so if any readers of the Workplace Prof Blog would like to submit a piece, she would welcome such contributions.  The criteria is that the post should highlight an area that is not covered in mainstream discourse. Think Critical Legal Studies meets the Labor Law/Social Movement Theory on blogs.  Chaumtoli can be reached at

Welcome to the blogosphere, Chaumtoli, and we wish you much success on this worthwhile endeavor!


August 28, 2013 in Commentary, Faculty News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

Victimless Harassment?

New ImageThe New Jersey Supreme Court recently decided a case that some have viewed as "victimless harassment. " Battaglia v. UPS involved several interesting issues, but the one of present concern was the plaintiff's claim of retaliation for his objections to offensive comments made about women but not to any woman.

The Appellate Division had determined that an impact on women was necessary before such protesting such conduct was protected by the state Law Against Discrimination.  Essentially, the lower court had reasoned that, unless the acts protested were discriminatory, the protests weren't protected and, since the comments in question were never heard by any woman, they couldn't constitute discrimination.

The Supreme Court disagreed: the language at issue "is particularly vile, demeaning and offensive, bespeaking attitudes and views about women that have no place in the work setting."  Even though no woman would be able to sue for harassment based on that language, LAD protection is not limited to "those who voice complaints about directly demonstrable acts of discrimination."

It's not clear whether the court was holding merely that a plaintiff might reasonably believe such words violated LAD (even if they didn't) or whether it was reasoning more broadly that plaintiff's conduct was protected because it tended to "advance the broad purposes" of LAD, which would be a more radical reading.

The former reading is, at least as a matter of doctrine if not application, not a stretch from federal law (although most Title VII cases demand a  higher standard of reasonableness) and there is some support for it in the opinion's language ("we do not demand that [the plaintiff] accurately understand the nuances of the LAD").  But the court's repeated references to the purposes of the antidiscrimination law and how "ill-served" they would be by a contrary ruling, suggests a broader principle.

Or maybe this distinction is too fine-grained: perhaps the court is simply announcing that, in New Jersey, a person who acts in good faith to advance the antidiscrimination objective is protected regardless of the "reasonableness" of his or her belief about whether the protested conduct actually violates the statute.

In any event, Battaglia offers much broader protection against retaliation than does Title VII as it is usually read, and sends a clear message to the plaintiffs-side bar not to omit a LAD claim when suit is filed. 

The opinion has the potential to radically change the ground rules in New Jersey.  Although Battaglia itself involved "particularly vile, demeaning and offensive" language, its principle would seem to embrace less egregious comments so long as the attitudes expressed would constitute discrimination if acted upon.  Perhaps the most likely limitation of the new rule is the Supreme Court's   stress that "these were not the occasional words of a low-level employee having a bad day but were the words of a supervisor, uttered in meetings attended by managerial employees, both repeatedly and routinely."



August 26, 2013 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

No Room at the Board?: Labor Law Meets the Vacancies Act

Lafe_solomon-smLike Jeffrey, I too think there is something "fishy" about the Western District of Washington’s conclusion that Acting General Counsel Lafe Solomon’s appointment is contrary to the Federal Vacancies Reform Act (FVRA).  The court’s four-page order left me with three immediate thoughts:

First, the court is probably correct that Solomon was not an assistant to out-going General Counsel Meisburg.  As far as I know, Solomon was the Executive Director of the Office of Representation Appeals when he was appointed Acting General Counsel.  Representation Appeals is on the Board side of the agency and reports to the Chairman of the Board – not the General Counsel.  So, if the FVRA applies only to first assistants then the appointment was probably unauthorized.

However, it seems that there is a strong argument that the court simply misread the FVRA.  While Section (a)(1) does apply only to first assistants, that section provides for automatic succession without appointment or direction from the President.  However, Sections (a)(2) and (a)(3) provide for a larger universe of eligible appointees in cases where the President directs a person to take over in an acting role.  Section (a)(2) applies to any person “who serves in an office for which appointment is required and (a)(3) applies to any “officer or employee of such Executive agency.”  Neither Section (a)(2) nor Section (a)(3) is limited to first assistants.  Not being an expert on this topic, I am not sure those apply but is seems they could.  The court could have read “office” broadly to include both GC and Board side “persons.”  Or, the court could have certainly found Solomon to be an “employee of such Executive agency.”  Whatever the correct result, the court’s one-sentence rejection of those provisions is just unconvincing.

Finally, if the court is correct, this ruling presents a larger issue than the recess appointments issue on the Board side.  So much of the Board’s day-to-day operations run through the General Counsel, that paralyzing that half of the agency effectively paralyzes the whole.  And, while former-Member and GC nominee Griffin is certainly qualified to be General Counsel, his being named in a racketeering suit and his previous questionable recess appointment makes it unlikely that he will be confirmed by the Senate anytime soon.

- Joe Mastrosimone (Washburn)

August 23, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (4) | TrackBack (0)

The Recess Appointment Mess Gets Messier

NLRBI'll admit it: I didn't see this one coming.  A federal district court judge in Washington has just denied an NLRB petition for a 10(j) injunction based on the argument that the NLRB Members' at the time recess appointments were invalid and that Acting General Counsel Lafe Solomon's appointment was improper.  

The judge explicitly followed New Process in holding the recess appointments (which he mistakenly moved back by a full year) invalid.  The NLRB then argued that the Regional Director doesn't need Board approval for a 10(j) injuction; instead, a delegation of authority from the GC will suffice.  But the judge rejected that by concluding that Solomon's appointment was also infirm.

The argument with regard to Solomon implicates a different issue that the NLRB member appointments, which are largely constitutional in nature, as the GC is covered by the Federal Vacancies Reform Act.  I have not looked closely at that act, but I've always been under the impression that Solomon's appointment fit easily under its requirements.  The judge disagreed, based primarily on the argument that an acting GC must have been a "first assistant" to the GC prior to his or her appointment and that Solomon (who was Director of the Representation Unit before his appointment) didn't satisfy that requirement.  

That conclusion still sounds fishy to me--I believe that Solomon and other similar section directors reported directly to the GC--but I'll concede that I don't know the FVRA enough to make an informed judgment (and the court also said it was "undisputed" that Solomon was never a first assistant).  Moreover, the FVRA make a specific exception for the NLRB GC (which is why I've always thought this was fine), stating that it's not covered by a provision that doesn't allow ratification of actions by officials who were improperly appointed. The judge characterized this as an exception to a "penalty provision" that doesn't allow Solomon to act when his appointment was improper.  I'm not sure that's really a "penalty" and the judge's argument seems circular, but again, I'm speaking partially out of ignorance here.

Any readers who are better informed are encouraged to help the rest of us out in the comments section.


Hat Tip:  Patrick Kavanagh & PS


August 23, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 21, 2013

Goldsmith on Three Problems in Mulhall

GoldsmithRiffing off Jeff's early post today on the NAA's amicus brief in Mulhall, I want to bring to reader's attention a provocative blog post written by Jack Goldsmith on the On Labor Blog, entitled: Three Problems in Mulhall.  In short, the three problems with conservatives on the Court agreeing that a neutrality agreement represents a Section 302 violation concern: (1) the lack of a private cause of action; (2) pleading problems; and (3) mootness.

Jack does an excellent job laying out why conservative Justices set to deliver a death blow to neutrality agreements between employers and union in organizing campaigns will have a hard time doing so consistent with their conservative judicial principles (yes, I know this assumes we live in a judicially-principled world).

Here's Jack's conclusion:

Perhaps the Court will reverse in Mulhall on the basis of one of these three arguments (it is not clear that any of them is properly presented, though the first issue might be included within the general interpretation of the statute, and the third is probably jurisdictional).  Or perhaps the Court will reverse after determining that employer concessions are not “things of value” under Section 302.  (I think this is hard to do, if the Court gets this far.)  Or perhaps it will dismiss the case as improvidently granted.  But if (as many people think) the right side of the Court is set to affirm on the Eleventh Circuit’s theory of Section 302, it will have to do so in the face of some pretty important conservative principles, including freedom of contract, a presumption against private rights of action, a commitment to strict pleading rules, and respect for the limited subject matter jurisdiction of federal courts.

An important post by Jack and one that I hope may even (dare I dream?) lead to a certiorari improvidently granted ending.


August 21, 2013 in Commentary, Labor Law | Permalink | Comments (0) | TrackBack (0)

National Academy of Arbitrators' Mulhall Amicus Brief

Supreme CourtThe National Academy of Arbitrators have just filed a amicus brief in Mulhall.  [Download NAA-Unite.Here.Mulhall.Amicus.]  Unlike a lot of amicus briefs, this one appears to do a nice job of adding something to the conversation, in particular the impact that the ruling could have on arbitrations.   The brief's summary of argument:

The Question Presented is whether an employer’s participation in a regime of labor-management relations that structures the parties’ relationship, in anticipation of potential union recognition, “pays” or “delivers” a “thing of value” to the union in violation of criminal law. The court below, as have the other courts, focused solely on the rules contained in the agreement. No judicial attention has been devoted to the role of arbitration as a component of the negotiated system as a whole. Once the role of arbitration is considered, it is apparent that what is “paid” or “delivered”—note the awkward statutory usage—is a system of industrial self-government in which arbitration plays a key role in overseeing the meaning, including the lawfulness, of the system. Such a pre-recognitional governance system is no more encompassed by § 302 than is the system of industrial self-government created by a collective bargaining agreement given legal effect through § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. 

In fact, it is quite impossible to distinguish a pre-recognition exchange of terms, of union access in return for labor peace subject to arbitral oversight, from a post-recognition exchange of terms, of recognition of union and management rights in return for labor peace subject to arbitral oversight. To accept the applicability of § 302 to the former is to extend the potential applicability of criminal law to the latter. Both would be antithetical to well-established labor law and policy. 

This brings me to raise what may be a controversial point: does anyone else think the union was mistaken to petition for cert. in Mulhall?  It may not have mattered--the employer petitioned as well--but I never read the 11th Circuit's decision as being as bad as many others did.  Although the court certainly opened the door to Section 302 application more than before, it still emphasized that there would only be a violation when there were bribery or corruption issues in play:

Employers and unions may set ground rules for an organizing campaign, even if the employer and union benefit from the agreement. But innocuous ground rules can become illegal payments if used as valuable consideration in a scheme to corrupt a union or to extort a benefit from an employer.

I know that opening could become wider before some courts.  That said, if I were the union, my inclination would be to accept that holding for now--it can always wait until an actual violation is found down the road--and try to avoid Supreme Court review.  Especially after some of the language in Knox, do they really think the Court is going to come out with a better ruling?  Seems like the risk and costs of losing at the Supreme Court are far, far greater than the potential gains here.


August 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 20, 2013

AALS Labor & Employment Law Call for Papers

AALSPeggie Smith (Wash. U. & chair of AALS Section on Labor Relations and Employment Law) writes to let us know about that section's call for papers for this year's AALS Annual Meeting in New York.  The meeting is from January 2-5, 2014, and the title of the panel if "Making Visible the Invisible."  The announcement:

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the AALS Annual Meeting in New York, NY.   The section program is entitled: Making Visible the Invisible.  The papers will be published in theEmployee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.

The section program will focus on legal conceptualizations of work as they relate to various forms of invisible work performed both by individuals who labor without pay as well as those who, while paid, perform activities that are heavily marginalized as labor.   Panelists will consider how the law defines work, how those definitions influence our explicit and implicit understandings of work, the policy implications of those definitions and how the law can craft more inclusive definitions. Topics from leading scholars already committed to present include interns, care work, gold farming, and sex work.  We are seeking one additional speaker who will present on a relevant topic.  

The Labor Relations and Employment Law Section program takes place on Friday, January 3, 2014 from 10:30 to 12:15.

 Please submit an abstract of no more than 400 words and a resume to Section Chair Peggie Smith at by September 10, 2013.  Authors of selected abstracts will be notified before October 1, 2013.


August 20, 2013 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Dimick on Productive Unionism

DimickMatthew Dimick (Buffalo) has posted on SSRN his new piece entited: Productive Unionism.

Here is the abstract:

Do labor unions have a future? This Article considers the role and importance of labor union structures, in particular to the degree of centralization in collective bargaining, to the future of labor unions. Centralization refers primarily to the level at which collective bargaining takes place: whether at the plant, firm, industry, or national level. The Article examines the historical origins of different structures of bargaining in the United States and Europe, the important implications that centralization has for economic productivity, and the ways that various labor law rules reinforce or reflect different bargaining structures. Most critically, the Article contends that greater centralization of collective bargaining entails a broader, more "universal" representation of worker interests, has a stronger impact on unions' ability to lower income inequality, and, through its positive effects on economic productivity, reduces employer opposition to unionization in the long run. Although centralized bargaining is a medium- to long-term goal, the Article proposes ways that unions can change their own organizational structures, bargaining objectives, and organizing tactics to position themselves for future changes in bargaining structure and to avoid the pitfalls of the decentralized bargaining structures of the past.

Matt wanted to make sure that I mentioned that this a working paper version and that all comments are very much welcome. 


August 19, 2013 in International & Comparative L.E.L., Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thomas and Molk on Employer Costs and Conflicts under the Affordable Care Act

Thomas PeterMolkThanks to Joe Seiner (South Carolina) for bringing to my attention this recently published article by Suja Thomas (Illinois) and Peter Molk (VAP lllinois) entitled: Employer Costs and Conflicts under the Affordable Act. It is published in the Cornell Law Review Online.

Here's the abstract:

In January 2015, qualified employers must provide health care coverage under the Patient Protection and Affordable Care Act of 2010 or face a fine. As employers actively attempt to minimize the costs that they will incur, the possibility emerges that employers will retaliate against or harass employees who seek coverage. This Essay discusses the protections for employees under the law and the possible deficiencies in the law. It shows that employers and employees often have contrasting incentives – employers to avoid coverage, and employees to take coverage – and these incentives may result in employer harassment and retaliation of employees. Presently, in an analogous context, employees often raise retaliation claims after they have complained of discrimination, and these claims have had significant success. Because of similarities between these situations, comparable retaliation under the ACA is likely, and perhaps it will occur even more due to the significant specific costs that employers face under the ACA.

As Joe points out, this timely article on the employment law implications of the Affordable Care Act has already been covered fairly extensively by the Wall Street Journal. The WSJ cites are here and here (behind pay wall).  Check it out while it is hot.


August 19, 2013 in Employment Discrimination, Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Congratulations to Supreme Court Fellow Dave Sidhu

SidhuCongratulations to Dave Sidhu (New Mexico) who this academic year will be a Supreme Court Fellow

Dave teaches and writes in the areas of constitutional law, national security, civil rights, and as you can see in the post below, employment discrimination.  His scholarly interests concern the rights and experiences of marginalized communities, including the urban poor, post-9/11 detainees, and Muslims and those perceived to be Muslim in the United States after 9/11.

Before joining UNM in 2011, Dave taught at the University of Baltimore School of Law, held research/fellowship posts at Harvard, Georgetown, and Stanford universities, worked as a staff attorney in the policy arm of the U.S. Department of Education’s Office for Civil Rights, and clerked for U.S. District Judge David. G. Campbell.  Dave has drafted, on a pro bono basis, amicus briefs for scholars and community-based organizations in several cases: Ashcroft v. Iqbal (S. Ct.), al-Maqaleh v. Obama (D.C. Cir.), Padilla v. Yoo (9th Cir.), United States v. Hatch (10th Cir.), and Knight v. Thompson (11th Cir.).

Congrats, and enjoy your fellowship!


August 19, 2013 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Sunday, August 18, 2013

Sidhu on "Positive" Racial Stereotypes

SidhuDawinder Sidhu (New Mexico) has just posted on SSRN his article Positive Racial Stereotypes.  Here's the abstract:

Racial stereotypes -- generalizations that categorically attribute certain characteristics to members of a given race -- can take negative and positive forms. Negative racial stereotypes, which assign unfavorable traits to members of a given race, have justified odious practices, including slavery and segregation. These stereotypes, and the attendant practices, are rightfully seen as inconsistent with American law and the meaning of identity and equality in contemporary society.

This Article explores and exposes the problematic nature of positive racial stereotypes, which attribute favored or valued traits to members of a given race. In arguing that both negative and positive racial stereotypes should be seen as incompatible with the law and current social thinking on identity and equality, this Article identifies positive racial stereotypes in employment and admissions decisions that are condoned by courts, points out that these positive racial stereotypes carry unique and underappreciated social harms, and suggests that the positive racial stereotypes are not sustainable under Supreme Court’s existing equal protection jurisprudence. It also discusses whether the problems with positive racial stereotypes may spill over to the delicate political context of preferences given to Native-Americans in employment.

This Article closes by proposing that a fundamental legal norm -- that an individual be assessed according to his or her actual qualities rather than on the basis of assumptions tied to identity -- be applied to these areas of law.


August 18, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Lester Named Interim Dean at Berkeley

LesterCongratulations (and condolences) to Gillian Lester, who has been named interim dean at U.C.-Berkeley.  Here's the news:

Berkeley Law Dean Christopher Edley, Jr., today announced that he is taking medical leave (as of Monday, August 19) and will end his nine years of service as head of the law school on December 31, 2013.

In a letter to law school faculty and staff, Edley reiterated his commitment to the school’s capital campaign and offered to assist on special projects while on leave. Professor Gillian Lester has agreed to serve as acting dean in the interim, as UC Berkeley begins a replacement search.

And here's a bit about Gillian:

Gillian Leter is the Alexander F. and May T. Morrison Professor of Law and the Werner and Mimi Wolfen Research Professor of Law.  Gillian's principal subject areas include employment law and policy, and contracts. Her research has explored topics including distributive justice and the welfare state, workplace intellectual property, and paid family leave.

Lester holds a J.S.D. from Stanford Law School and LL.B. from the University of Toronto Faculty of Law, where she served as editor in chief of the University of Toronto Faculty of Law Review. Lester began her teaching career in 1994 at the UCLA School of Law, where she became full professor in 1999. She joined the Berkeley Law faculty in 2006, and is currently appointed as Acting Dean (Dec. 2012 - ), Associate Dean for the JD Program and Curriculum Planning (2010 - ), and Alexander F. and May T. Morrison Professor of Law. She has also held appointments as Sidley Austin Visiting Professor at Harvard Law School (2008-09), Sloan Fellow and Visiting Professor at Georgetown University Law Center (2000), and has held short visiting appointments at USC Gould School of Law and the University of Chicago Law School.

Lester's books include, Employment Law Cases And Materials, Fifth Ed. (Lexis-Nexis, 2012) (with Willborn, Schwab & Burton), Family Security Insurance: A New Foundation for Economic Security (Workplace Flexibility 2010 and Berkeley Center for Health, Economic and Family Security, 2010), and Jumping The Queue: An Inquiry Into The Legal Treatment Of Students With Disabilities (Harvard Press, 1997) (with Mark Kelman). Articles and chapters include "Can Joe the Plumber Support Redistribution? Law, Social Preferences, and Sustainable Policy Design, in Tax Law Review (2011); Beyond Collective Bargaining: Modern Unions and Social Solidarity, in Brian Langille and Guy Davidov (eds.), The Idea of Labor Law pp. 329-343 (Cambridge University Press, 2011); "Restrictive Covenants and Choice of Laws: An American Perspective," in Comparative Labor Law & Policy Journal (2010); "A Defense of Paid Family Leave" in the Harvard Journal of Law & Gender (2005), and "Unemployment Insurance and Wealth Redistribution" in the UCLA Law Review (2001).

Congrats, Gillian, and best of luck to you!  I look forward to seeing you at the various dean's funcions this year!


August 18, 2013 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: EREPJ


Employee Rights and Employment Policy Journal
Vol. 17, #1 (2013)

  • Ramona L. Paetzold, Introduction , p. 1.
  • Kevin M. Barry, Exactly What Congress Intended, p. 5.
  • Michelle A. Travis,The Part and Parcel of Impairment Discrimination, p. 35.
  • Patrick J. Schwedler, Prescription Drugs and Dangerous jobs: When Can Disclosure be Required for Public Safety Under the ADA? p. 93.
  • Jorge M. Farinacci-Fernos, The Search for a Wrongful Dismissal Statute: A Look at Puerto Rico's Act No. 80 As a Potential Starting Point, p. 125.


August 18, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 16, 2013

Reservations about Resignations

New ImageThe Chronicle of Higher Education recently ran a story about a professor at VMI who announced that he intended to resign his position. The dean of faculty  responded that, “although the procedure you have followed does not strictly conform to the guidelines published in VMI’s Faculty Handbook or Regulations, we accept your resignation.” The professor, Kurt J. Ayau,  immediately protested, but the events left his status at VMI unclear. What is pretty clear is that his employer put Ayau in the uncomfortable position of having to backtrack -- which may have been its purpose. In the end, the professor accepted a paid leave, which will give him a chance to look for employment elsewhere. So it's kind of hard to tell who came out on top.

As one of the commenters at the Chronicle suggested, VMI would have been on pretty tenuous ground if it tried to push the “resignation” since Ayau not only failed to tender a written resignation but didn’t even announce that he was resigning; he merely stated his intent to do so. 

But the case got me thinking about the law of resignations. Even formal resignations can be rescinded in extreme circumstances. Some of you may remember Odorizzi v. Bloomfield School Dist., where a school teacher had a signed resignation invalidated for undue influence – “multiple persuaders” took advantage of plaintiff’s exhaustion and mental turmoil after being arrested for homosexual conduct to extract his resignation. And, of course, the constructive discharge doctrine can be viewed as another way in which a formal resignation might lose its normal legal effects.

But there’s certainly nothing in "normal" contract law that would require any degree of formality for mutual agreement to terminate a contract – which is what a resignation, if accepted, is. There doesn’t seem to be much law on what is necessary to make a resignation into an offer that can be accepted.  This makes sense, of course: in a mostly at will world, either side can walk away by virtue of a mere announcement. But Professor Ayau presumably had tenure, and there are millions of employees working in academic institutions, el-hi, civil service, unions, and under individual contracts where the issue is a real one. To quote an old country song, does Johnny Paycheck’s “Take this job and shove it I ain’t working here no more”  constitute an offer that the employer in such cases can accept?  (For those country music fans, if any on this blog, I realize that Johnny was merely fantasizing about what he wished he had the “guts to say”).

 One instructive case is Mahoney v. Board of Trustees, 214 Cal.Rptr. 370 (Cal. App. 1985), where the court refused to honor a telephone message resigning because the community college  was "equitably estopped" by its formal written resignation procedures, upon which the plaintiff had supposedly relied. That might well have been the outcome had the VMI situation been litigated.

In this kind of case, the issue is whether a resignation should be viewed as an offer to rescind a contract, which can then be accepted by the employer. But a resignation can also be viewed as a repudiation of a contract, especially if it is coupled with failure of the employee to perform. Indeed, unjustified failure to show up to work is sometimes described as constructive resignation.  The notion of repudiation triggers yet other contract doctrines, under which it's generally held that the act of repudiation must be unequivocal, see Bennet v. Sage Payment Solutions, Inc., 710 S.E.2d 736 (Va. 2011), and it may be that there is more room for argument in this regard about the formality of the resignation. 

While all may have ended well for Professor Ayau, the lesson from this kerfuffle is that employees have to be careful what they say in the course of griping about their jobs.


Thanks to Teliza Adams, Seton Hall class of 2015, for her help with this.


August 16, 2013 in Employment Common Law | Permalink | Comments (5) | TrackBack (0)