Thursday, April 30, 2015

Call for Papers: Marco Biagi Foundation

Susan Bisom-Rapp (Thomas Jefferson) sends along the annual call for papers for the 14thInternational Conference in Commemoration of Professor Marco Biagi and the Fifth Young Scholars’ Workshop in Labour Relations.  The theme of the 2016 conference is Well Being At and Through Work, a topic that could not be more timely given the lingering effects of the global economic crisis on working people.  In addition, in connection with the Young Scholars’ Workshop, this year the Foundation is awarding a Marco Biagi Prize, which will allow the author of the best paper to take up a three-month residence at the Foundation and comes with a prize of 3500 euros. 

For more details, see the Conference call for papers, Download Marco Biagi Conference 2016, and the Young Scholars call for papers,  Download Call YSW 2016.


April 30, 2015 in Conferences & Colloquia, Faculty Presentations, International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Wednesday, April 29, 2015

Harris on Department of Labor Performance

Seth-HarrisSeth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review.  The abstract:

This article tells the story of the successful effort to turn around the Labor Department’s performance during the first five years of the Obama Administration. The Labor Department leadership team, largely chosen for its policy expertise rather than any management experience, used common-sense performance measurement and management to improve workers’ lives and the nation’s economy. The article critiques the two principal laws that purport to structure and guide the executive branch’s performance planning and explains how the Labor Department succeeded in improving its performance despite these laws and Congress’ lack of interest in implementing them or holding agencies accountable for compliance or good performance. The article also offers a reform agenda for improving federal government performance both through congressional action and activist stakeholder engagement.

I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting.  That's right, it's about managerial performance measures and it was really interesting.  Don't believe me?  Read the article.



April 29, 2015 in Conferences & Colloquia, Labor and Employment News, Labor Law | Permalink | Comments (0)

Duty to Conciliate by EEOC is Reviewable, but Standard Is Narrow

ScotusThe Supreme Court issued its decision in Mach Mining v. EEOC this morning. The decision was unanimous and written by Justice Kagan. Essentially, the Court said that the duty to conciliate was judicially reviewable, but the scope of that review was simply whether the EEOC had given the employer notice of what the employer is alleged to have done and which employees or class of employees has been injured, and must try to engage the employer in a discussion to give it a chance to voluntarily remedy the injury. Most importantly, the remedy for a failure to conciliate isn't dismissal, it's a stay of the action and an order to the EEOC to conciliate. Here is the holding from the syllabus:

1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation. This Court has recognized a “strong presumption” that Congress means to allow judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670. That presumption is rebuttable when a statute’s language or structure demonstrates that Congress intended an agency to police itself. Block v. Community Nutrition Institute, 467 U. S. 340, 349, 351. But nothing rebuts that presumption here.

By its choice of language, Congress imposed a mandatory duty on the EEOC to attempt conciliation and made that duty a precondition to filing a lawsuit. Such compulsory prerequisites are routinely enforced by courts in Title VII litigation. And though Congress gave the EEOC wide latitude to choose which “informal methods” to use, it did not deprive courts of judicially manageable criteria by which to review the conciliation process. By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice. The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. In enforcing that statutory condition, a court applies a manageable standard. Pp. 4–8.

2. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. This limited review respects the expansive discretion that Title VII gives the EEOC while still ensuring that it follows the law.

The Government’s suggestion that review be limited to checking the facial validity of its two letters to Mach Mining falls short of Title VII’s demands. That standard would merely accept the EEOC’s word that it followed the law, whereas the aim of judicial review is to verify that the EEOC actually tried to conciliate a discrimination charge. Citing the standard set out in the National Labor Relations Act, Mach Mining proposes review for whether the EEOC engaged in good-faith negotiation, laying out a number of specific requirements to implement that standard. But the NLRA’s process-based approach provides a poor analogy for Title VII, which ultimately cares about substantive outcomes and eschews any reciprocal duty to negotiate in good faith. Mach Mining’s proposed code of conduct also conflicts with the wide latitude Congress gave the Commission to decide how to conduct and when to end conciliation efforts. And because information obtained during conciliation would be necessary evidence in a good-faith determination proceeding, Mach Mining’s brand of review would violate Title VII’s confidentiality protections.

The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement. Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute. Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts. Pp. 8–14.

738 F. 3d 171, vacated and remanded

The result seems in line with the questions the Justices had during the oral argument in this case, and seem a relatively pragmatic compromise, narrowly tailored to prevent fraud by the agency. The largest gap for more searching review seems to be the duty for the EEOC to identify all of the employees affected as part of its attempt to conciliate. It is relatively easy to see how this would work in a case with a single employee, or even a group of employees, but it is a little more difficult to see how it will work in a pattern and practice case like Mach Mining itself or CRST (and more on the issue here and here). In those cases, the members of the entire group of applicants or employees were unknown when the EEOC filed its action. In CRST, this was partly because the employer would not identify women who had applied and been assigned trainers so that the EEOC could find them.

The key seems to be two-fold. First, the EEOC needs to only identify the class of employees. In Mach Mining it could be potential women applicants, and in CRST, it could be women in the training program potentially harassed by their trainers. Especially where what is challenged is a policy, the identity of all potential individuals affected by that policy seems less important on the front end and in at least some situations, information may be more likely with the employer. Second, the remedy is not dismissal of the action, but only a stay to allow the conciliation process to take place. That means, for a case like CRST, where individuals were identified after the complaint was filed, the matter should have been stayed rather than dismissed.

Because there is so little payoff for employers to litigate this issue, the decision may actually diminish failure to conciliate claims. We'll have to wait and see.


April 29, 2015 in Employment Discrimination | Permalink | Comments (1)

Tuesday, April 28, 2015

Tenth Annual Colloquium Registration Open

WPBDeborah Widiss (Indiana) has good news to share:

The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.

 Registration is now open at:

 If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.

 The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.

 Please feel free to contact any of us with questions.

 We will look forward to hosting you in Bloomington!


April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Monday, April 27, 2015

Supreme Court Grants Cert in Discrimination Timeliness Case


image from

The Supreme Court has just granted certiorari in an employment discrimination case, Green v. Donahoe, which will examine the filing period for the constructive discharge claims of federal employees.  The specific issue for which cert was granted (from Scotusblog) is:

"Whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation, as three other circuits have held."

This will be an interesting case to follow and see what the Court ultimately decides.  Hat tip:  Ross Runkel.

-- Joe Seiner


April 27, 2015 | Permalink | Comments (0)

Tenth Annual Seton Hall Employment & Labor Law Scholars' Forum

Friday, October 9, 2015

Building on the successes of the last decade, 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 senior scholars an opportunity to understand and appreciate new scholarly currents. 

For the Scholars’ Forum, three 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, Friday, October 9, 2015.  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 15, 2015.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or 

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 14, 2015.


April 27, 2015 | Permalink | Comments (0)

Sunday, April 26, 2015

Update on NLRB Election Rules Challenge

NLRBThe first of no doubt many updates on the legal wrangling of the NLRB's new election rules.  In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015.  Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits.  This is far from the final word, but a nice first step for the NLRB.

For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.

Hat Tip: Patrick Kavanagh


April 26, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Nonmember Grievance Fees

NLRBRecently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing.  This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.

Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond.  Expect major outcries if the NLRB decides to allow unions to charge for grievance processing.  However, it's not that easy to defend the current precedent.  That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal.  That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."

Stay tuned.


April 26, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Thursday, April 23, 2015

A $70,000 Minimum Wage?


There was a recent article in the New York Times which reported that one company -- Gravity Payments -- had decided to raise its minimum wage to $70,000 for its entire 120 employee workforce.  From the piece:

"The idea began percolating, said Dan Price, the founder of Gravity Payments, after he read an article on happiness. It showed that, for people who earn less than about $70,000, extra money makes a big difference in their lives."

Price plans to pay for the move by dramatically cutting his own pay and turning to company profits.  The move has garnered a lot of attention.  Indeed, a blog at the Washington Post looked at whether Wal-Mart could similarly raise its minimum wage to $70,000.  In short, analyzing revenue and costs, the answer appears to be no.  However, the article speculates that a minimum wage of $47,230 (the current mean wage in this country) could be possible at the nation's largest retailer.

The question is largely academic, however, as there is little reason to believe that major companies would move toward this huge of a jump in pay.  Nonetheless, as companies like Gravity Payments grab headlines with this type of enhanced wage structure, it may cause corporations to re-evaluate their own pay strategies.

- Joe Seiner


April 23, 2015 | Permalink | Comments (0)

Wednesday, April 22, 2015

Little Rock Passes Anti-Discrimination Ordinance: Conflict with Arkansas Statute Prohibiting Local Anti-Discrimination Ordinances?

        On Tuesday, the city of Little Rock, Arkansas, passed an anti-discrimination ordinance that may conflict with a recently-enacted Arkansas statute that limits local civil rights ordinances in the State.  The Little Rock ordinance provides, among other things, that the city will not contract with any entity that discriminates against anyone on the basis of a set of characteristics, including but not limited to sexual orientation and gender identity.  Last month, however, in response to a similar anti-discrimination ordinance passed by the City of Fayetteville, the Arkansas legislature enacted Act No. 137.  That Act prohibits local governments in that State from exceeding the anti-discrimination protections—including but not limited to protections against employment discrimination—afforded under state law.  (For more, see this previous post.) 

             How does the Little Rock ordinance survive, given Act No. 137?  Before Little Rock’s ordinance passed, City Attorney Thomas Carpenter issued a legal opinion, dated April 19, 2015.  There, Carpenter concluded, among other things, that the ordinance did not conflict with Arkansas state law.  The pertinent text of Act No. 137 provides:

 A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

 Ark. Code § 14-1-403(a). 

     In his opinion, City Attorney Carpenter found no conflict between Act 137 and the ordinance, because the ordinance “lists types of discrimination that are already prohibited for one reason or another by state law.”  For the ordinance’s coverage of “sexual orientation” and “gender identity” discrimination, Carpenter pointed to three State statutes currently in the Arkansas statute books: (1) an anti-school-bullying statute that covers bullying based on attributes that include “gender identity” and “sexual orientation,” Ark. Code § 6-18-514(b)(1); a statute requiring shelters to develop a policy for delivering services “without regard to . . . sexual preference,” Ark. Code § 9-4-106(1); and a statute letting a person change their birth records with a court order indicating that person’s sex had been changed “by surgical procedure” and that person’s name had been changed, Ark. Code § 20-18-307(d).

        This legal analysis appears to turn on how a court would read Act No. 137’s phrase “discrimination on a basis not contained in state law.”  The City Attorney seems to read that phrase to mean that if an Arkansas statute protects a person from any type of adverse action based on “sexual orientation,” then “sexual orientation” is therefore “a basis . . . contained in state law.”  The rival reading:  The Arkansas legislature intended that phrase to cover both the protected characteristic and the type of adverse action motivated by that characteristic.  By this reasoning, since no Arkansas law (including the Arkansas Civil Rights Act, Ark. Code § 16-123-107) expressly prohibits an employer from refusing to hire someone (the “discrimination”) because of his or her sexual orientation (the “basis”), Act No. 137 does not let Little Rock refuse to contract with an entity for the reason that it refuses to hire people because they are gay.

     The City Attorney’s legal opinion did not address another legal argument available to defend the ordinance: Act No. 137 is void, because it was really motivated by anti-gay animus, and thus violates the “equal protection” guaranteed by the US Constitution and the “equality of all persons” guaranteed by article 2, section 3, of the Arkansas Constitution.


 --Sachin Pandya

April 22, 2015 | Permalink | Comments (0)

Sunday, April 19, 2015

Zelinsky to SCOTUS: Fix ERISA Preemption

ZelEdward Zelinsky (Cardozo) has just posted on SSRN his article
 (Cornell Law Review On Line, Vol. 100, 2015) Gobeille v. Liberty Mutual: An Opportunity to Correct the Problems of ERISA Preemption. Here's the abstract:

Gobeille v. Liberty Mutual Insurance Company is an opportunity for the U.S. Supreme Court to correct the three fundamental problems of its current ERISA preemption jurisprudence. While incrementalism has its virtues, on balance, it would be better for the Court to use Gobeille to correct the basics of ERISA preemption.

Specifically, the Court should acknowledge the tension between Shaw v. Delta Air Lines, Inc. and the Court’s subsequent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. by reconsidering the statute afresh. As part of such reconsideration, the Court should construe ERISA § 514(a) as creating a presumption for preemption. Such a construction of § 514(a) respects the text of the statute without yielding to the potential indeterminacy of the statute’s broad language. Finally, the Court should jettison the notion that traditional areas of state law as defined by the Court are immune from ERISA’s more expansive than usual preemption and should instead acknowledge what the statute says: Per §§ 514(b)(2)(A) and 514(b)(4), the areas immunized from ERISA’s more stringent preemption are – and are only – state banking, securities, insurance, and criminal laws.

In the final analysis, a system of statutory law requires courts to take statutes seriously.


April 19, 2015 in Pension and Benefits | Permalink | Comments (0)

Friday, April 17, 2015

Sony Hack Raises Equal Pay Questions


In what has been termed "Sonypocalypse," hackers breached the Sony Pictures corporate database and stole widespread data from the company.  Much of this data was later leaked to the public.  While most of the attention for this unprecedented data breach has been over the internal comments made about the company's films, as well as concerns over the protection of private worker information such as employee social security numbers, there are possible discrimination issues here as well.  Specifically, CNN reports that the data revealed startling salary disparities between the highest paid Sony workers:

"The world now knows what Sony employees make [and there is] a major pay gap that runs on gender and race lines. There are 17 people at Sony Pictures who make more than $1 million a year. Only one is black. Only one is a woman."

This salary data raises interesting questions about the pay practices at the company.  Perhaps more importantly, it demonstrates how difficult pay discrimination claims are to establish in the first place, as such data is not typically available at private companies.  While the way in which this information was uncovered is undoubtedly reprehensible, the salary data certainly raises some difficult questions for the company.  In my mind, those questions are far more important than the internal squabbling over whether the company is making too many "formulaic Adam Sandler films", which is currently capturing the headlines.  It will be interesting to follow this issue and see whether the salary gap leads to litigation or a public response from the company.

-- Joe Seiner

April 17, 2015 | Permalink | Comments (0)

Thursday, April 16, 2015

Telesh on EPLI's Influence

    Soon after Congress enacted the Civil Rights Act of 1991, liability insurers began marketing separate liability insurance coverage for employment-law liability—what insurers today call it Employment Practices Liability Insurance (EPLI).  How does EPLI coverage, and the insurer practices behind it, affect what people do? In this recently posted paper, Shauhin Telesh takes a look at EPLI's role in influencing what employer see as compliance with employment-discrimination law: "Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Anti-Discrimination Laws,” Law and Policy (forthcoming 2015).   Here's the abstract:

Existing empirical research suggests that human resource officials, managers, and in-house counsel influence the meaning of anti-discrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance companies play a critical and as yet, unrecognized role in mediating the meaning of anti-discrimination law through Employment Practice Liability Insurance (EPLI). My analysis draws from, links, and contributes to two literatures that examine organizational behavior in different ways: new institutional organizational sociology studies of how organizations respond to legal regulation and socio-legal insurance scholars’ research on how institutions govern through risk. Through participant observation at EPLI conferences, interviews, and content analysis of insurance loss prevention manuals, my study bridges these two literatures and highlights how the insurance field uses a risk-based logic to construct the threat of employment law and influence the form of compliance from employers. Faced with uncertain legal risk concerning potential discrimination violations, insurance institutions elevate the risk and threat in the legal environment and offer EPLI and a series of risk-management services that build discretion into legal rules and mediate the nature of civil rights compliance. My data suggest that insurance risk management services may sometimes be compatible with civil rights goals of improving equality, due process, and fair governance in workplace settings, but at other times may simply make discrimination claims against employers more defensible.

--Sachin Pandya

April 16, 2015 | Permalink | Comments (0)

Wednesday, April 15, 2015

NLRB Representation Rules Now in Effect

NLRBIt's official.  As of yesterday, the NLRB's new representation rules are now effective.  Challenges are already raised, and more are likely to follow, so there's plenty more to come.  In the meantime, if you're look for a primer on the major new changes, you can see my forthcoming article, NLRB Elections: Ambush or Anticlimax?, which will appear in the Emory Law Journal as part of its symposium on the NLRB at 80 years.


April 15, 2015 in Labor Law | Permalink | Comments (0)

Monday, April 13, 2015

$250,000 Discrimination Award to Hooters Waitress


In an interesting and well-publicized arbitration decision in an employment discrimination suit against Hooters, an employee was recently awarded a quarter-of-a-million dollars.  While several sex and sexual harassment claims have been brought against the company, this case involved racial discrimination.  A former waitress of the restaurant chain alleged that the company told her that she could not wear blond highlights in her hair, which did not look natural for blacks.  The waitress further alleged that employees of other races were permitted to alter their hair color.  The employee was ultimately terminated by Hooters.

From an article on the case at "Arbitrator Edmund D. Cooke Jr. wrote that Hooters violated state and federal civil rights laws and that the hair policy 'as implemented in a discriminatory manner adversely affecting African-American women.'"  The company calls the decision "flawed."  This is an interesting case that has been in the news for awhile now.  It seems that appearance discrimination claims are becoming more prevalent of late.  One such claim brought against Abercrombie is still pending before the U.S. Supreme Court after oral arguments, and is being closely followed by academics and practitioners.

-- Joe Seiner

April 13, 2015 | Permalink | Comments (0)

Dispelling the Bonus Illusion?

New ImageA recent case out of Ohio, Pohmer v. JPMorgan Chase Bank, N.A., may cause some scurrying around among employer counsel as they try to plug procedural holes which may have allowed a former employee to end-run the employer’s rather elaborate (and typical) rules regarding awards of bonuses.  The basic fact scenario is common – plaintiff discharged (in this case for apparently good reason) before any bonus was due.  I use “due” loosely since JPMorgan Chase’s Bonus Plan was excruciatingly clear that any bonus, and the amount thereof, was in its sole discretion, and, in any event, an employee had to still working when bonuses were paid to receive one.

 The plaintiff’s rather clever ploy was to sue for quantum meruit and unjust enrichment because plaintiff had conferred value on his former employer, for which compensation was due. Like most financial services firms, JPMC had a practice of awarding bonuses, and, in fact, plaintiff had received one each of the previous 13 years. But plaintiff had never been provided a copy of the Bonus Plan, much less assented to be bound by it, and so claimed a right to quantum meruit and unjust enrichment recovery free of its constraints.  

 The court agreed, reversing summary judgment for the bank. While acknowledging that neither quantum meruit nor unjust enrichment applies “when a contract exists between the parties covering the same subject,” it rejected the trial court’s conclusion that the Bonus Plan was such a contract. Since the Plan was “explicit that the decision of whether to award bonuses and in what amount rests entirely in the discretion” of the employer, it was an illusory contract, binding neither party.  

 The court hastened to add that such plans need not always be illusory – if executed in connection with gaining or continuing employment, such a plan would presumably be supported by that consideration. Plaintiff, however, had not executed a document regarding the Plan nor even been made aware of its terms and so could not be said to have assented to its terms in exchange for continued employment.  For that reason, summary judgment for the employer was reversed.

 Pohmer is only an intermediate appellate decision, but it does cast into doubt the practice of generally disseminating compensation policies rather than requiring express employee assent to them. Further, it is by no means clear that the plaintiff will prevail on remand since the appellate court spent little time analyzing the core claims of unjust enrichment and quantum meruit, and it it’s not so clear how either theory would work in this setting. 

 The plaintiff was paid a salary for his work for JPMorgan Chase, and either theory would have to take that reality into account. That’s clearest with unjust enrichment. Assuming that plaintiff’s efforts in fact enriched the defendant, what’s unjust about it retaining that benefit when it bought and paid for the very efforts that enriched it?  Plaintiff will argue that he worked harder to obtain a bonus, but – Bonus Plan aside – we would not normally think an extra-zealous employee is entitled to compensation above and beyond his agreed rate for such efforts, even when they bear fruit.  Much the same could be said of the quantum meruit theory. And that’s entirely aside from what remains of contract law’s preexisting duty doctrine.

 But what about the employer’s practice of paying bonuses?  Plaintiff can be expected to argue that that gave rise to an implied promise (terms of the unknown Bonus Plan aside, of course) that “extra” or “better” work would receive extra compensation. Indeed, bonus systems exist to motivate employees to work harder, and companies like JPMC (especially in financial services where bonuses can approximate yearly salary) clearly expect the prospect of the pot of gold to trigger better work. Further, the structure of the Bonus Plan is a classic example of an employer trying to have its cake and eat it too: the prospect of a bonus motivates employees but no single employee has any legal right to it. So long as the employer’s practices do not appreciably undercut those expectations, it can have the best of both worlds. And not paying a bonus to a former employee like Pohmer, one discharged for apparently good reason, will not impair the firm’s reputation for paying bonuses.    

 So do unjust enrichment or quantum meruit justify recovery where an employer’s practices imply a bonus, which expectation is not effectively disclaimed by some binding contract?  The Restatement (Third) of Restitution provides some hints: Section 31 deals with contracts that are unenforceable for some reason, including indefiniteness, and Illustration 4 would allow an agent to recover for the value of his services when he was promised a bonus but there was no way to calculate its amount.  The measure of recovery would be the market rate of services, less (of course) the salary paid.  In the Illustration, however, there was an express agreement to pay a bonus, see also Ill. 15, while in Pohmer’s case any such agreement would depend on finding an implied promise arising out of past practice.


April 13, 2015 in Employment Common Law | Permalink | Comments (0)

Friday, April 10, 2015

Virginia Joins Ban-the-Box Movement

Last week, Governor Terry McAuliffe executed an executive order in the state of Virginia which prohibits employers from asking state applicants about any criminal convictions on their job application.  There are certain exceptions that apply for more safety-related positions such as those working in childcare or law enforcement jobs, and the order applies to state (not private) employees.  Virginia joins more than a dozen states that now have such prohibitions.  The Governor was quoted on the executive order in an article over at

"In a new Virginia economy, people who make mistakes and pay the price should be welcomed back into society and given the opportunity to succeed. . . This executive order will remove unnecessary obstacles to economic success for Virginians who deserve a second chance."

For those of you interested in which other jurisdictions have similar prohibitions (and what those prohibitions are), the National Employment Law Project has a number of great resources available.  It is definitely a great topic to raise with your students, as there are always varying opinions on this issue.

-- Joe Seiner

April 10, 2015 | Permalink | Comments (0)

Wednesday, April 8, 2015

Sharon Block to White House

White houseNews is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House.  She will be a senior advisor for labor and working families at the White House Office of Public Engagement.

Great to hear that my former colleague at the NLRB has moved such an important position.


Hat Tip: Patrick Kavanagh

April 8, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015

Emory NLRB Symposium

Emory LRevThis Friday, the Emory Law Review will host a symposium, The National Labor Relations Board After Eighty Years.  The lineup, present company excluded, is impressive and includes all current NLRB members (plus a former Chairman) and the current NLRB General Counsel.  In addition, several of the top labor academics will be presenting.  As I can personally attest, the law review has already been working hard on getting the symposium issue ready for publication, so it should be out relatively soon.

Here's the symposium description, which appropriately gives thanks to Michael Green, who--in addition to the law review members--put this entire symposium together:

The Emory Law Journal is pleased to present a special symposium the Journal has put together with the invaluable assistance of Professor Michael Z. Green of the Texas A&M University School of Law. Our symposium will address the continued viability of the National Labor Relations Board as an administrative agency at the dawn of its eightieth anniversary. The decisions and actions of the Board have drawn increased scrutiny in the modern era, and even more so in the wake of President Obama's efforts to ensure the Board was comprised of a full contingent of members. But even before President Obama was elected, because the Board primarily develops its rules through adjudications its decisions have become quite controversial, no doubt in part as a result from the lack of legislative changes to guide the agency's actions over the past forty years. The NLRB’s effectiveness as it reaches its eightieth anniversary in 2015 represents an important legal question and a major concern for all those interested in labor law. This Symposium will assemble some of the most prominent labor law scholars in the country along with the NLRB Chairman and NLRB General Counsel and other members of the NLRB to assess the role of the Board today, what actions Congress may take with respect to the Board, and what the future of the Board might be. Specifically, our symposium will feature three panels, highlighted below.

The schedule:

Assessing the NLRB's Impact & Political Effectiveness

Charlotte Garden, Seattle University School of Law, “A Shot Across the Bow”: Politics and the Obama Board
Julius Getman, University of Texas School of Law, The NLRB, What Went Wrong, and Should We Try to Fix It?
William B. Gould IV, Stanford Law School, Politics and the Effect on the NLRB’s Adjudicative Process
Theodore St. Antoine, University of Michigan Law School, The NLRB’s Role Vis-à-Vis Courts

A Conversation with NLRB Members & General Counsel

ModeratorProfessor Charles A. Shanor
Mark Gaston Pearce, Chairman
Richard F. Griffin, Jr., General Counsel
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
Philip A. Miscimarra, Member

Opportunities for Improvement in Changing Times

Kenneth G. Dau-Schmidt, Maurer School of Law, Indiana University, Labor Law 2.0: The Impact of the New Information Technology on the Employment Relationship and the Relevance of the NLRA
Samuel Estreicher, NYU School of Law, Towards a Depoliticization of the NLRB: Administrative Steps
Michael Z. Green, Texas A&M University School of Law, Expanding Protections in the Non-Union Workplace: The New Age of the NLRB

Jeffrey Hirsch, UNC School of Law, NLRB Elections: Ambush or Anticlimax?


April 7, 2015 in Conferences & Colloquia, Labor Law | Permalink | Comments (0) | TrackBack (0)

Duff on the Modern Workplace

  Prof. Duff

I have just learned that Friend-of-blog Michael Duff (Wyoming) has posted his piece, The Cowboy Code Meets the Smash Mouth Truth: Meditations on Worker Incivility, on SSRN.  This piece, which is a symposium essay, looks at some of the realities and practicalities in today's workplace environment. From the abstract:

This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability. Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world. Workers must resist forces promoting vulnerability and internalize a steely and clear-eyed ethic of self-defense in response to the smash mouth truth of this challenging new environment.  Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as “incivility.” The law—and I focus in the essay on American labor law—can be of some help at the margins to the cause of worker resistance; but one cannot lose sight of the implacability of the adversary or the ineluctability of the situation. As Chinua Achebe once said with his customary penetrating wisdom:

To answer oppression with appropriate resistance requires knowledge of two kinds: in the first place, self-knowledge by the victim, which means awareness that oppression exists, an awareness that the victim has fallen from a great height of glory or promise into the present depths; secondly, the victim must know who the enemy is.

However, the dire predicament remains full of possibilities. And many such possibilities along the way are beautiful and ennobling. Workers need not lose their humanity, or their values, when confronting the moral insouciance of owners and employers. In the end, I am convinced and argue (from the context of my own life) that both my law students and their former-blue-collar, Teamster law professor (and perhaps others) can learn to appreciate, and even venerate, the sometimes beautiful incivility of human resistance.  Whether in Ferguson, Missouri or in the workplace, the human spirit fights on.

Professor Duff has put together a wonderful, inspiring piece and it is certainly well worth taking a close look. 

- Joe Seiner


April 7, 2015 | Permalink | Comments (0) | TrackBack (0)