Friday, February 15, 2019

Labor & Employment Roundup

Some recent L&E stories that I've been too busy lately to post on (see my follow-up post):

  • The Denver teachers strike ends after three days. Looks like the deal will significantly increase salaries and the .parties agree to study the bonus scheme that helped precipitate the strike. As an aside, this year seems to be one of more traditional, union teacher strikes, as opposed to the previous years' non-union teacher protests and strikes. I'm not sure if it's just coincidence or something else (e.g., state politicians did more to pacify teachers prior to the November elections), but it's worth watching.
  • The Seventh Circuit just held en banc that the ADEA does not permit disparate impact claims by applicantsThis issue has Supreme Court review written all over it. I'm not sure when, as there's some question whether there's an active circuit split (the 7th & 11th have held the same; to the best of my knowledge, all the circuits going the other way did so before the Smith v. Jackson case from the Supreme Court that clarified the ADEA's disparate impact analysis). In the meantime, it's a great teaching case because it's going some good statutory interpretation aspects, weaving a tension of textual factors, past Court precedent, and statutory purpose.
  • In other Seventh Circuit news, the court just ruled on Scabby the Rat (who seems to be going out of his way to define the modern labor movement). It held that a town ordinance prohibiting Scabby did not violate the union's First Amendment rights because the ordinance was content neutral and wasn't enforced in a discriminatory fashion. At the same time, the NLRB's General Counsel has indicated a desire to go after the use of Scabby and other inflatables (which employers really hate, thereby showing their effectiveness). So expect Scabby to stay in the news.
  • The NLRB has invited briefs regarding whether it should decline jurisdiction over charter schools. Note this would be a decision to voluntarily decline jurisdiction, not a ruling that the Board lacks jurisdiction (like the Northwestern college football case). I'm not a huge fan of this tactic, especially in a case like charter schools where you lack the conflict in public and private teams playing each other. But note that if the NLRB follows through, they're not going to be able to totally avoid the issue because employees could still bring individual complaints alleging ULPs. 

-Jeff Hirsch

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