Saturday, May 31, 2014

Weighing in on Wal-Mart - Part Two - The Procedural Approach

I am continuing here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. Again, I am not seeking to contest the Court’s decision, but ask more practically how plaintiffs should proceed in light of this case.

There are a number of procedural tools that can be used to help circumvent the Wal-Mart decision. One often overlooked approach is the offensive use of non-mutual collateral estoppel.  This tool can help streamline complex litigation by allowing common issues in the cases to be resolved a single time. This approach can be particularly effective in employment claims, which often involve a common set of managers, policies, and discriminatory facts.

Second, plaintiffs can still act collectively through the consolidation of cases. Case consolidation differs from collateral estoppel in that questions critical to the cases are resolved at the same time. Again, the consolidation of cases can help streamline and simplify the litigation.

Third, plaintiffs can attempt to limit the reach of the Wal-Mart decision by limiting its facts. In this way, plaintiffs can argue that the decision should be restricted to those cases involving enormous claims. Thus, there is the possibility of “cabining” Wal-Mart by limiting the decision to only those handful of employers with massive workforces. In its decision, the Court repeatedly emphasized the unique nature of the million plus claims against the company, thus inviting this cabining approach.

Finally, plaintiffs could take the complete opposite approach and “take Wal-Mart at its word.”  In this way, plaintiffs could embrace the decision and file massive individual lawsuits against employers. This approach could overwhelm companies if carefully organized by plaintiffs’ firms.

I detail each of these procedural tactics much more carefully here, and invite you to share your thoughts on these various approaches in the comments below. I will continue shortly with a discussion of the potential to use revised relief to help limit the Court's decision.


May 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

In The News - Class Action Employment Settlement

There is an interesting article from Reuters and Yahoo News that discusses a $324.5 million proposal to settle an antitrust case brought by 64,000 employees against Apple, Google, Intel, and Adobe.  The case alleges that the technology companies engaged in anti-competitive behavior by agreeing not to recruit employees from any of the other’s workforces. There is some question as to whether the settlement will hold up, and it is far less than what was originally sought by the workers.


May 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Is Section 707 of Title VII Substantive?


Many readers of this blog are likely already aware of the EEOC’s current effort to challenge severance agreements that it views as interfering with an employee’s non-waivable right to file an EEOC charge of discrimination.  The two pending cases are EEOC v. CVS Pharmacy, Inc., No. 1:14-CV-863 (N.D. Ill.) and EEOC v. CollegeAmerica Denver, Inc., No. 1:14-CV-01232 (D. Colo.).  Some other coverage of these cases can be found herehere, here, and here.

These two cases differ in some important ways.  For this post, I will focus on CVS.  The CVS Separation Agreement at issue included an express carve-out within the covenant not to sue paragraph stating that:  “[N]othing in this paragraph is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation.”  Nonetheless, the EEOC maintains that several other aspects of the Agreement, including a cooperation provision, a non-disparagement provision, and a non-disclosure provision, constitute “resistance to the full enjoyment of rights secured by Title VII because the Separation Agreement interferes with an employee’s right to file a charge with the EEOC . . . and to participate and cooperate with an investigation conducted by the EEOC . . . .” (Complaint, ¶ 10).

The EEOC’s legal theory here appears to be that this severance agreement violates Section 707(a) of Title VII, which provides in relevant part:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States . . . requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described.

CVS contends that, even assuming the agreement is somehow improper, that would only render the severance agreement unenforceable – not an independent substantive violation of Title VII.  Throughout its motion to dismiss brief, CVS contends that the Section 707 “pattern or practice” language is merely a “procedural tool,” or an “evidentiary framework,” or a “way of proving discrimination.”  In CVS’s view, a series of underlying violations of the substantive prohibitions of Title VII – either discrimination or retaliation – is a prerequisite to a pattern or practice suit.

Interestingly, the EEOC has long had a tendency to blur the distinctions between Section 707 and Section 706 in systemic cases in order to capture certain remedial or procedural advantages from each section – something I have written/complained about several times, including in this article and in the comments section here.  Now, CVS may try to capitalize on that history.  In its brief, CVS cites the EEOC’s own words from a recent Ninth Circuit appellate brief involving the hotly-disputed failure to conciliate issue and a purported distinction between Sections 706 and 707 on conciliation.  The EEOC's words:  “But ‘pattern or practice’ is an evidentiary framework, not a ‘claim,’ and EEOC may use that framework under either §706 or §707.”      

So does Section 707’s “pattern or practice” language only create an evidentiary framework for establishing underlying substantive discrimination or retaliation in violation of Title VII?  Or does it create an independent substantive claim?  Perhaps we will finally get an answer.  If it is the latter, can we expect to see Section 707 challenges to other common employment practices, such as mandatory arbitration agreements, that might be alleged to "deny the full exercise" of rights under Title VII? 


May 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

I found this ...

Umw... while walking downtown Columbus, Ohio, across the street from the state capitol.


May 28, 2014 | Permalink | Comments (0) | TrackBack (0)

O'Brien and the NLRB on Social Media

O'brienChristine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (8 Charleston L. Rev. 411 (2014)) The National Labor Relations Board: Perspectives on Social Media. Here's the abstract:

This article provides an update to the NLRB’s viewpoint on employees’ social media posts concerning work-related matters that impact the employment relationship. Work time and private lives are blurring further than ever, as employees post updates and comments on an astonishing range of matters, to sites including Youtube, Google , Facebook, Twitter, Snapchat, Instagram, Linkedin, their Tumblr blogs, and more. For example, in just a log-in moment, typing a mere 140 characters, employees apprise the world of their perspectives on what just transpired at the office, point of view (pov) included. Employees’ social media use has increased workplace pressures. The tensions between employers’ reputational rights, along with efforts to maintain workplace decorum and productivity, are increasingly conflicting with employees’ expressions of workplace frustrations and more in their online activities.

The National Labor Relations Act protects private sector employees’ regardless of union affiliation, to the extent their communications cover protected concerted activity – matters of shared concern relating to: wages, hours and working conditions, or mutual aid and protection. The National Labor Relations Board has taken advantage of the popularity of social media to educate the public about the protections afforded to employees by Section 7 of the National Labor Relations Act, and over the past five years has issued a number of reports, advice memoranda, and decisions to reinforce its role as administrative authority on employee’s employment-related social media use. The NLRB has signaled its readiness to respond to unfair labor practice charges filed by employees or unions against employers to the extent the employers have policies or act unlawfully to interfere with employees’ Section 7 rights. To get a sense of the nuances of these cases and the wide scope of employee communications that trigger NLRB scrutiny, this article summarizes a recent top ten cases and adds to these several recent additions.

The author recommends for employees to more closely manage and edit their posts so as to avoid workplace-related communications that are not protected by the NLRA. Furthermore, employers are advised to conform to the NLRA when reacting to employee posts that raise issues of concern, and further, to understand how the NLRB will construe their responses. To the extent employees reasonably construe employers are prohibiting protected concerted activities, such actions will be found to be unlawful. Finally, employers should create social media policies that provide specific guidance and examples for employees, managers, and even C-level officers, on the types of communications that are covered, and not covered. In this way, employees’ and employers’ interests are both well-served.


May 28, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Transnational Perspectives in Equality

AalslogoThe AALS is hosting a Workshop June 22-24 in Washington DC on Transnational Perspectives on Equality Law. The full program is here, and this is a summary:

Workshop on Transnational Perspectives on Equality Law


Sunday, June 22 - Tuesday, June 24, 2014

The Renaissance Mayflower Hotel

Washington, DC




Antidiscrimination law is an American invention that has spread all around the world.  During the American civil rights movement of the 1960s, antidiscrimination law promised radical social transformations towards equality for women and minorities in the workplace, in politics, and in education.  But recent developments in Equal Protection and Title VII doctrine have paralyzed this trajectory.  Meanwhile, the last decade has seen the unprecedented globalization of antidiscrimination law, as well as its expansion and alternative development outside the United States, catalyzed largely by the European Union's two directives in 2000, on race equality and on equal treatment in employment.  Over the last few years, a new body of equality law and policy experimentation has emerged not only in the EU and in European countries, but also in South Africa, Canada, Latin America, and Asia. There is a range of public policies adopted to mitigate the disadvantages of vulnerable groups such as racial, ethnic, and religious minorities, women, the disabled, the elderly, and the poor, constituting an "equality law" that goes beyond norms prohibiting discrimination.  


At the same time, antidiscrimination law in the United States seems to be changing. U.S. Supreme Court decisions over the last several years (Ricci v. DeStefanoParents Involved in Community Schools v. Seattle School DistrictWal-Mart v. Dukes, and Shelby County v. Holder) have signaled the end of antidiscrimination law as envisioned by the civil rights movement in the United States.  In response, there is growing scholarly interest in finding new approaches to the persistent problem of structural inequality.  Comparative reflection is a productive tool, particularly when energy and optimism surrounds the trajectory of antidiscrimination law and equality policy outside of the United States.  Now that there is over a decade's worth of new antidiscrimination activity in the EU countries following the 2000 equality directives, the time is ripe for scholarly reflection and evaluation of these developments. From an intellectual, practical, and strategic perspective, antidiscrimination scholars in the United States can no longer ignore developments in antidiscrimination law in other countries.


While a growing number of American legal scholars are lamenting the limits of antidiscrimination law, the recent growth of this body of law outside of the United States has largely gone unnoticed. The central purpose of this mid-year meeting is to widen the comparative lens on U.S. equality law - its failures, its achievements, and its potential - across a variety of subject areas.  The meeting will provide a unique and much-needed opportunity to bring together scholars from various fields - constitutional law, employment discrimination law, comparative law, comparative constitutional law, election law, education law - to deepen and enrich the scholarship and teaching of equality.   The meeting will also provide a unique opportunity for U.S. scholars to interact with a wide, varied, and stimulating group of antidiscrimination scholars working around the world.


Additionally, law schools are increasingly making their curricula more transnational and comparative.  This conference will assist teachers in integrating comparative perspectives to illuminate constitutional law, employment discrimination law, employment law, and other traditional subjects.


This Workshop will explore a number of critical questions including what is at stake in looking comparatively when doing equality law; how affirmative action is understood in other legal systems; understanding disparate impact, accommodation, and positive rights.  There will be discussions of religion, profiling, and equality and social movements.  Transnational perspectives on equality law will be a greater component of antidiscrimination scholarship going forward. This meeting should not be missed.


AALS Planning Committee for 2014 AALS Workshop on Transnational Perspectives for Equality Law

  • Timothy A. Canova, Nova Southeastern University Shepard Broad Law Center
  • Guy-Uriel E. Charles, Duke University School of Law, Chair
  • Richard T. Ford, Stanford Law School
  • Reva B. Siegel, Yale Law School
  • Julie C. Suk, Benjamin N. Cardozo School of Law Yeshiva University

 The program has a great lineup. Register by June 4 to get the early bird rate.


May 28, 2014 in Conferences & Colloquia, Disability, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Contract Law Meets the Ministerial Exception

NewimageA while ago, I commented on a dispute then before the Kentucky Court of Appeals regarding the intersection of the ministerial exception to contract law.  On appeal, the Kentucky Supreme Court has just weighed in, issuing a pair of decisions that take a nuanced approach to who is a "minister" for purposes of the exception and, perhaps more significantly, analyze the role of the exception when it's contract law -- not discrimination -- that is at stake.

The cases, Kirby v. Lexington Theological Seminary and Kant v. Lexington Theological Seminary both arose in the wake of financial problems at the Seminary resulting in the termination of tenured professors. The core claims in both actions were that the Seminary had violated the tenure rights of the professors as set forth in the Faculty Handbook. The Seminary's main response, looking to the Supreme Court's recent endorsement of the doctrine in Hosanna Tabor, was that the "ministerial exception" barred the suits.  The application of that doctrine was especially counterintuitive on the case of Professor Kant, who was a Jewish scholar teaching at a Christian seminary.

The Kentucky Supreme Court had little difficulty in deciding that Seminary qualied as a religious institution able to claim the exception, but whether Kirby was a minister within it was "much more complicated."  Nevertheless, and despite the fact that Kirby was not ordained, it found a constellation of facts pointing in that direction, including both his traching and participation in worship. 

So far, so bad for Kirby, and, consistent with Hosanna Tabor,  the court did affirm dismissal of his claim for racial discrimination.

However, it refused to dismiss Kirby's contract claim, reasoning (1) enforcement of contracts does not implicate concerns about government interference with religion and (2) the contract did not involve ecceliastical matters that would bar suit under Kentucky's "eccelesiastical abstention" doctrine. Roughly translated, the first principle recognizes the right of churches and other religious institutions to enter into contracts subject to the second principle, which forbids civil courts from resolving even contract disputes by deciding religious questions.

Given that the Seminary chose to circumscribe its right to discharge professors by granting them tenure, the court saw no question of government control of a church.  And given that the Faculty Handbook permitted discharge of tenured professors only for cause related to their character or performance -- not for financial reasons -- there was no reason to abstain:  "[W]hen the case merely involves a church, or even a minister, but does not require the interpretation of church doctrine, courts need not" abstain.  Presumably, had the discharges been justified in terms of performance that implicated religious issues -- such as departures from orthodoxy in teaching -- the ecclesiastical abstention principle would have barred the suit.

As for Professor Kant, the court found him not to be a ministerial employee to begin with. Rejecting the view that all Seminary professors were necessarily ministers, it found that, unlike Kirby, Kant "did not participate in significant religious functions, proselytize, or espouse the tenets of faith" of his employer. Even though his teaching might have contributed to the overall mission of the Seminary, that was not enough to make him a minister. Further, while Kant's personal belief system -- he was a "practicing Jew" -- did not necessarily mean he was not a minister, the reality remained that his work was chiefly secular.

Despite not falling under the ministerial exception, the court considered whether  Kentucky;s ecclesiastical abstention doctrine would nevertheless Kant's bar the suit, finding the analysis in Kirby controlling: essentially, that there was no religious question involved.


May 28, 2014 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Weighing in on Wal-Mart - Part One - The Governmental Approach

As I mentioned in my initial blog, I will be writing short summaries here of what I view as the four best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision.  I am not seeking to criticize the case (though I do disagree with the decision), but ask more practically how plaintiffs should proceed in light of this opinion.

Perhaps the most obvious approach, and the one that I will discuss here today, is for the government (specifically the EEOC) to become more heavily involved in pursuing systemic claims.  Unlike private plaintiffs, it has been well established that the EEOC is not subject to the commonality requirements of Federal Rule of Civil Procedure 23. Thus, unlike other litigants, the Wal-Mart case is largely inapplicable to the Commission.  The government is thus free to pursue systemic claims without any fear of the case being dismissed on commonality grounds.

This puts the EEOC in the best position to enforce federal employment discrimination law that occurs on a widespread basis. I thus encourage the agency (and in the interest of full disclosure, my prior employer) to pursue more class action type claims as part of its enforcement mission.  This approach comes with substantial cost. The EEOC is a historically underfunded agency. Diverting resources from individual cases to systemic claims may mean that many individuals who would otherwise have their claims taken by the EEOC will be required to seek private counsel elsewhere. Class-action cases are frequently complex and time-consuming to pursue. Nonetheless, the EEOC is now in the best position to pursue these claims. And, the agency will have an opportunity to consider the value of systemic cases early in the process – – in its role as an administrative agency. It will thus see these cases when the charge of discrimination is initially filed.

Please feel free to share your thoughts on the EEOC's role in class-action claims in the comments below. I will continue shortly with a discussion of the potential use of various procedural techniques to help circumvent the Court's decision.


May 27, 2014 | Permalink | Comments (2) | TrackBack (0)

Saturday, May 24, 2014

Physical Presence and the ADA

6th Cir

Image from:

I was recently made aware of a new federal appellate decision out of the Sixth Circuit which may be of significant interest to many of you. In EEOC v. Ford Motor Co., the court considered the extent to which an employee needed to be present at work to perform the job under the ADA. In the case, which involved a “resale buyer,” the court concluded that an individual with Irritable Bowel Syndrome should have been permitted to work at home as a reasonable accommodation given today's technological advances.  The court noted that

“The assumption implicit in the dissent’s analysis and many of the early cases is that the “workplace” is the physical worksite provided by the employer. When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.”

Though the court here sided with the employee, it did note that, “[d]etermining whether physical presence is essential to a particular job is a “highly fact specific” question.”  It will be interesting to see if other courts follow suit on the work at home question, and whether changing technologies will result in a shift in this area of the law.


May 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 22, 2014

EEOC Update


There are a couple of interesting news items involving the EEOC.  First,  the agency recently issued a press release discussing a $110,000 settlement that it reached with Norfork Southern Railway Company.  The settlement  was in an ADA case that involved an individual with degenerative disc disease. Second, in another ADA claim, a federal judge in the Middle District of Florida recently awarded $150,000 judgment against American Tool and Mold, LLC (ATM).  Perhaps more interestingly, however, the judge in the case issued widespread injunctive relief against ATM, requiring the employer

"to provide notice to job applicants that it is an equal opportunity employer; create and implement a disability discrimination policy; provide ATM's management with live training on disability discrimination each year for four years; and post notice of the lawsuit in its facilities. The judgment further requires ATM to conduct a functional job analysis and create written job descriptions for each position subject to a post-offer medical examination. ATM must also ensure that any third-party medical contractors it uses for post-offer medical examinations conducts them in a manner consistent with the ADA. Finally, ATM must report to the EEOC twice a year concerning individuals not hired or terminated as a result of employment medical screenings and people who make complaints of disability discrimination."

It is not unusual for the Commission to obtain  this type of widespread injunctive relief.  Nonetheless,  it demonstrates the importance of compliance  with the federal mandates against  disability discrimination.


May 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

In the News – Disclosure under the ADEA

I wanted to briefly highlight a recent news story which I saw from Bloomberg and Business Week. The story focuses on recent changes at IBM as to the disclosures that are being given to workers after discharge. In particular, the article notes that workers over 40 subject to termination are no longer being informed of the ages and job titles of other workers that are similarly being discharged.

The company is offering arbitration to these workers as a way of circumventing the disclosure requirement. It is an interesting change from a corporation that is often seen as a leader in employment – type benefits. It may also signal a change in the way that other corporations handle severance packages and agreements.


May 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Weighing in on Wal-Mart

I want to thank the workplace prof blog for the opportunity to weigh in with some of my views on employment discrimination law in the coming weeks.  The issue that I am currently focusing on is the Supreme Court's troubling decision in Wal-Mart.  Though the case is now a couple of years old, the ripple effects from this decision are just now being felt in the lower courts.  There seems little question that Wal-Mart has made it much more difficult for plaintiffs to bring class action employment discrimination cases.  Combined with the Supreme Court's other decision in Concepcion, it is now harder for workplace victims to act collectively when seeking relief from an employer.

There have been a number of wonderful articles by friends of this blog detailing the problems inherent with the Court's flawed decision. Putting these excellent pieces aside for the moment, however, what interests me is how class action employment discrimination plaintiffs should proceed after Wal-Mart.  What are the best vehicles currently available to plaintiffs seeking to file systemic claims?

I am hoping that this blog can help spark a discussion of the various options still available to plaintiffs seeking to act collectively. In my view, there are four primary approaches that plaintiffs can use to circumvent the Court’s decision. These include the governmental approach, the procedural approach, revised relief, and issue class certification. Over the coming weeks, I will outline the potential use of each of these mechanisms for plaintiffs to still pursue class-action claims following the Wal-Mart case. Importantly, I do not view these four avenues as exclusive roads to systemic relief. Indeed, I am simply hoping to spark a conversation of how plaintiffs should proceed in this area. I thus invite others to weigh in here with any suggestions they might have on this topic.

More to follow soon...


May 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Joseph Seiner

SeinerPlease welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:

Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.

Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.

Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.

Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract: 

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.

Welcome, Joe!


May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, May 17, 2014

NYU Annual Conference on Labor

NYU LawNYU's 67th Annual Conference on Labor will be held June 5-6, 2014.  The topic this year is "Title VII of the Civil Rights Act After 50 Years."  As usual, there's a greet line up of speakers, which you can see in the full program.  The link also has info on registration.




May 17, 2014 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

NLRB Invites Briefs on Joint-Employer Standard

NLRBOn the heels of its invitation for briefs on electronic communications and college athletes status as employees, the NLRB has also extended an invitation for briefs on its joint-employer standard.  According to the invitation in Leadpoint Business, the Board is considering the following questions:

1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?

2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?

3. If the Board adopts a new standard for determining joint-employer status, whatshould that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

Amicus briefs are due on June 26, 2014.



May 15, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

NLRB Asks for Briefs in Northwestern Players Case

NlrbThe NLRB is asking for amicus briefs on the issues in the Northwestern football players election case by June 26. It would be a great opportunity for those interested to weigh in.

h/t Charlotte Garden


May 13, 2014 in Beltway Developments, Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Preemption Laws and Goldilocks

Florida County MapA recent opinion piece in Al Jazeera America (H/T Sam Bagenstos, @sbagen) calls attention to the ongoing lobbying efforts of the American Legislative Exchange Council (ALEC) and the National Restaurants Association to pursue state laws preempting local employment regulation.  The piece focuses primarily on the preemption of local laws requiring that employers offer paid sick leave or pay a higher living wage or minimum wage.  A number of cities have enacted mandatory paid sick leave laws (with varying eligibility requirements), including San Francisco, Seattle, New York City, Washington D.C., Portland, Oregon, and Jersey City, New Jersey. 

Several states have enacted legislation preempting, to varying degrees, the ability of local governments to regulate employers.  These states include Wisconsin, Florida, Mississippi, Arizona, Indiana, Tennessee, Louisiana, Kansas, and as of April 14, Oklahoma.  The Oklahoma law heads off an initiative to raise the minimum wage in Oklahoma City to $10.10 per hour. Florida enacted its own preemption law in 2013 and, as part of that legislation, convened a task force to study the preemption question.  (Disclosure:  In October, I testified before this task force.).  Florida’s law does not preempt living wage ordinances, but it does preempt local minimum wage laws and local laws requiring the provision of benefits not otherwise required by federal or state law. 

States are considering the extension of preemption beyond just minimum wages and sick leave.  For example, in Florida, there are no wage payment and collection protections to speak of, other than a requirement to pay in cash or a negotiable instrument.  In response to a perceived wage theft problem, some local governments in Florida, including Miami-Dade County, have enacted wage theft ordinances.  Bills were introduced in the Florida House and Senate to preempt (with certain exceptions) any new local wage theft laws, although such efforts have been unsuccessful thus far.       

The primary justification offered for state level preemption of local employment laws is that it would be too difficult for employers to comply with a patchwork of differing local employment laws.  Indeed, this is the very first reason listed in the Florida Task Force’s Final Report, which concludes that preemption of local laws was the appropriate course.  As someone who represented and advised employers for years, I am somewhat sympathetic to the compliance concern.  But the compliance cost savings of uniform employment laws must be balanced against the benefits of decentralized regulation.  Labor market conditions vary from city to city, just as they do from state to state.  Why are uniform state laws necessarily preferable to a patchwork of local laws?  The same interested parties making that argument would doubtless contend that the compliance cost savings of uniform federal employment regulation should often yield to the ability of states to craft a patchwork of differing employment laws that best suit the needs of the labor market within each individual state.  Is it really the case that the state level is “just the right” level of uniformity for most employment regulation – neither too centralized nor too decentralized – or does it have more to do with who currently holds control over the legislative and executive branches at the state level?


May 8, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 6, 2014

Jack Getman Retires

Image001When our list of faculty moves went up last month, one item left of the list was the retirement of Julius (Jack) Getman from the University of Texas after 28 years on the faculty. The American Statesman did a nice story on Jack's career. Here's a part:

A sort of Johnny Appleseed of labor law, Getman has through the decades sprinkled proteges all over the country. Many of them followed Getman into academia. Many of them chose their professor’s specialty even if they’d planned on practicing another kind of law before they took Getman’s basic labor law class which, 2011 graduate Elliot Becker recalled, “some of us called ‘Story Time with Grandpa Jack.’”

“I don’t know where I’d be without him,” said Becker, who this fall will go to work in the general counsel’s office of the National Labor Relations Board.

“I didn’t go to law school thinking I wanted to do labor and employment,” said James Brudney, who teaches labor at Fordham Law School. “It was the exposure to him and the subject that converted me. He has a remarkable blend of realism, sardonic humor and remarkably perceptive insights analytically about the real world.”

While Getman may be sympathetic to workers and the labor movement, he’s not a dogmatic radical who has never missed a Pete Seeger concert.

“His perceptions of the struggles that ordinary shop floor workers had to go through made him sensitive to both the positive aspects of (union) leadership and the risks that leadership might separate from the rank and file,” Brudney said. “He’s obviously sympathetic to unions, but that has not restrained him from offering substantial and powerful critiques.”

Jack's book Restoring the Power of Unions was also the subject of the Section on Labor Relations and Employment Law program at the AALS annual meeting in 2011, which coincided with the UNITE HERE boycott of the conference hotel. The presentations were published in volume 15, issue 2 of the Employee Rights & Employment Policy Journal

h/t Michael Murphy and Harris Freeman


May 6, 2014 in Faculty Moves, Faculty News, Labor and Employment News, Labor Law, Labor/Employment History, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Morris and the Chamber on Members-Only Unions

Blue EagleRecently, the U.S. Chamber of Commerce released a report called, The Blue Legal has Landed: The Paradigm Shift from Majority Rule to Members-Only Representation.  The title is somewhat odd because the report attacks a wide variety of issues, from workers centers to D.R. Horton, that don't seem to have much to do with members-only representation.  But, it did accomplish one goal, which was to prompt a reaction from Charles Morris, who book, Blue Eagle at Work, the Chamber's title obviously played off of.

Morris has an extensive post on his Labor Relations Blog.  I'll copy the introduction below, but the entire piece is worth a full read:

The U.S. Chamber of Commerce announces in the title to its recent report on union representation that “The Blue Eagle Has Landed”—referring to the “Blue Eagle At Work” (my book on members-only collective bargaining)—and it concludes that the present system of majority-union representation and collective bargaining is “giving way to a...system that allows for members-only representation.”  I appreciate such prescience in the report’s title and ill-gotten conclusion, for although the Blue Eagle has not yet landed, it is expected to land in the near future, after which American labor relations should vastly improve.  When that occurs, the original and existing purpose of the National Labor Relations Act (NLRA or Act) will certainly be more accurately realized than it has been in recent years, and this will significantly help in the rebuilding of America’s diminishing middle class.

What I don’t appreciate, however, is that in this unsigned report the Chamber disparages and inaccurately describes the process of members-only representation and bargaining and grossly misrepresents and distorts the plain language and law of the NLRA and its legislative history, which are the subjects of this blog.  I invite any Chamber attorney or attorneys with name identification to counter with documented references to specific statutory text, legislative history, and applicable cases—which will be difficult if not impossible in view of what that text, history, and those cases clearly say.  I shall indeed welcome a response.

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

The End of Register-Guard?

NLRBThe NLRB just announced that it is inviting briefing from the parties and amici on whether to overturn Register-Guard, in a case called Purple Communications.  Among the list of questions the Board raised are: 

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7?

It is no secret that I'm not a fan of Register-Guard (in addition to the link above, see here and here).  So, I'll be watching this case very closely.  One disappointing aspect of the announcement is that the Board did not raise the possibility of reversing Register-Guard's restrictive definition of "discrimination."  Perhaps that's a topic for another day.


May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)