Wednesday, August 14, 2013

Shout Out to New Labor and Employment Law Blog: Ross Runkel Report

Ross_Runkel_aLong-time friend of the Workplace Prof Blog, Ross Runkel (Willamette Emeritus), is blogging at a new location on the internet: Ross Runkel Report: Arbitration, employment law, labor law

Ross already has up some great posts, characteristically taking on the most interesting labor and employment law cases and topics of the day.

Here's a sample of one of today's posts, entited: Quit Rehab Twice, get fired. No help from ADA or FMLA:

Bryan Shirley had a problem with Vicodin, so he took medical leave to get treatment for addiction. After completing a detox period, he left the treatment program early. Kept using. The boss gave him a second chance. After one day of detox, he checked out of the program.

The employer fired him for violating its drug-free workplace policy which provides that an employee “who rejects treatment or who leaves a treatment program prior to being properly discharged will be terminated.”

Shirley sued claiming ADA and FMLA violations. Denied, and denied. Shirley v. Precision Castparts (5th Cir 08/12/2013).

You can't beat Ross's legendary laser-like analysis of recent labor and employment case law.  Ross's new blog is a must daily read for all labor and employment law profs and practitioners. Check it out!


August 14, 2013 in Commentary, Faculty News | Permalink | Comments (0) | TrackBack (0)

Feigenbaum and Riemer on Discretionary Review of Insured ERISA Benefits Cases

ErisaJonathan Feigenbaum and Scott Riemer have published in the ABA TIPS Health and Disability & Life Insurance Law Committee Newsletter (Summer 2013): Did the Supreme Court Flunk Constitutional Law When It Permitted Discretionary Review of Insured ERISA Benefits Cases?

From the Introduction:

Beginning with Firestone Tire & Rubber Co. v. Bruch, and its affirmance in Metropolitan Life Ins. Co. v. Glenn, and most recently in Conkright v. Frommert, the Supreme Court permitted District Courts to treat insured ERISA welfare benefits cases as summary review proceedings. In each case, the court focused on trust law, but never addressed whether the regulatory scheme it set up by these cases satisfies the requirements of Article III of the Constitution. The authors argue that discretionary review, without a full trial on the merits, violates Article III.

In the 1983 comedy Trading Places the amoral Duke brothers conduct an experiment in social Darwinism debating whether genetics or nurturing is the source of success. They make a wager, and then put their theories to the test. They manipulate the life of Louis Winthorp III (Dan Akroyd), a successful commodities trader, by “trading places” with Billy Ray Valentine (Eddie Murphy), a street con artist.

We’ll bet the same amount wagered by the Duke brothers with our readers – identify any litigation in the federal courts between private litigants, other than discussed in this paper, where the Article III Judge must defer to the decision of the defendant without conducting a full trial on the merits. We bet you can’t.

This is an interesting topic that has been explored by Don Bogan (Oklahoma), among others, in the past. The article makes an interesting and provocative point concerning the unique features of ERISA Section 502(a)(1)(B) litigation and the lack of a normal Article III federal court procedure.

Can anyone win the Duke brothers' wager that Feigenbaum and Riemer have put forward?  I guess one of the questions is whether there is another area of law that has a statutorily required internal review process (like under ERISA Section 503) which requires exhaustion of internal appeals before a claim can be brought in court (not the same thing as what exists in Title VII scenarios where you can exhaust external administrative procedures by merely waiting out the EEOC)? 

Another wrinkle is that ACA provides for the possibility of an alternative mechanism through an independent external medical review by a physician, which is de novo review of the plan administrator's claim denial and which is final and not appealable to court. How does that further complicate the Article III issue?


August 14, 2013 in Commentary, Pension and Benefits | Permalink | Comments (2) | TrackBack (0)

Friday, August 9, 2013

Morris on Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use

CharliemorrisNow that the Senate has confirmed an entire 5 member NLRB, Charlie Morris (SMU Law) reminds us that the time is soon coming for the filing of a members-only rulemaking petition. 

In this regard, he has posted on his blog, Charles J. Morris on Labor Relations, a warm-up for that prospect.  The post is entitled: Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use, and the full version of his post is available on Charlie's blog.

Here's a taste of Charlie's post:

It is especially important that the AFL-CIO and other participants in American labor relations become better acquainted with the concept of members-only collective bargaining because the National Labor Relations Board will likely be considering that process in the near future.  Validation of this innovative process can be of immense help in getting American workers back on the road to a robust labor movement and a major expansion of collective bargaining that will help build a stronger middle class. 

The need for such a process has been dramatically evidenced by recent work stoppages at various Wal-Mart and fast-food locations.  Although those walk-outs represent commendable examples of courageous workers fighting back, they will inevitably be unsuccessful in achieving significant change.  Despite their legitimate complaints, those low-wage workers have no effective mean to engage management in a dialogue about working conditions―much less in a consequential bargaining session that might significantly improve those conditions. 

They obviously need a union; but in accordance with prevailing conditions under the National Labor Relations Act (NLRA or Act), union representation is virtually unavailable to them and to most other American workers. The sad fact is that Wal-Mart and other anti-union companies are almost always able to prevent their employees from achieving union representation.  Many―if not most― nonunion companies routinely indoctrinate their workforce with anti-union rhetoric and frequently engage in aggressive conduct—both legal and illegal—to successfully discourage any support for workers organizing into groups for any purpose.  Employment discrimination and discharges for union activity, and the fear of such retaliation, are commonplace.

As Charlie points out, this is the same piece that he submitted to the AFL-CIO in its search for new ways of rebuilding the labor movement and collective bargaining.  Charlie is the master on this topic and I highly recommend that those looking for alternatives to increase worker voice in the American workplace give serious consideration to Charlie's proposals.


August 9, 2013 in Commentary, Labor Law, Union News | Permalink | Comments (4) | TrackBack (0)

Shout Out to Sachs and Goldsmith's New "On Labor" Blog

ComputerIt is my pleasure to bring to the attention of the readers of this blog the recent launch of a new academic labor law blog, jointly run by Ben Sachs and Jack Goldsmith (both of Harvard Law).  It is aptly titled: On Labor.

A little taste of the blog's aspirations from the "About" section:

On Labor is a blog by Benjamin Sachs and Jack Goldsmith devoted to workers, unions, and their politics. We interpret our subject broadly to include the current crisis in the traditional union movement (why union decline is happening and what it means for our society); the new and contested forms of worker organization that are filling the labor union gap; how work ought to be structured and managed; how workers ought to be represented and compensated; and the appropriate role of government – all three branches – in each of these issues.

It looks like there will also be some other contributors to the blog who are students at Harvard Law School.

There are already some very interesting blog posts up, including one on the forthcoming Supreme Court Mulhall case, which Ben says "could be the most significant labor law case in a generation."

Check it out!


August 9, 2013 in Commentary, Faculty News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Friday, July 12, 2013

Adams on The Right to Strike in Canada – Recent Developments

CanadianflagAt my request, Roy Adams (Ariel F. Sallows Chair of Human Rights (Emeritus), U. of Saskatchewan; Professor of Industrial Relations (Emeritus), McMaster University) has provided an update on the legal status of the right to strike in Canada.  This has been a hot area in Canadian labor law and a recent decision by the Saskatchewan Appellate Court has only added flames to that fire.  You can read Roy's entire commentary here.

Here is a taste of the piece:

After many years in power Saskatchewan’s moderately leftist New Democratic Party was defeated by the conservative “Saskatchewan Party” in 2007. The new government immediately introduced labor law changes one of which put considerable constraints on the right of public sector workers to strike.

Organized labor immediately went to court, claiming that the legislation offended the Freedom of Association clause in Canada’s Charter of Rights and Freedoms. At the first level (Court of the Queen’s Bench) the judge (Ball) agreed and ordered the government to revise the law (see Saskatchewan v. Saskatchewan Federation of Labour 2012 SKOB 62). Instead, the government appealed and, very recently, Ball’s ruling was reversed (see Saskatchewan v. Saskatchewan Federation of Labour 2013 SKCA 43).

Whereas most Canadian governments, even those controlled by conservative parties, are more cautious than governments in the USA about attacking organized labor, the urge to weaken unions and especially public sector unions – is on the rise. (Private sector unions are already weaker than they have been in decades).  But in the Canadian environment there is a counter force to be contended with – international labor law which has grown in importance over the past half-dozen years primarily as a result of the Supreme Court finding it to be a persuasive source in interpreting the Charter’s Freedom of Association Clause (see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; aka BC Health Services).

Read the whole piece when you get the chance. It does a great job explicating the current status of the right to strike in Canada. I remarked to Roy that although Canadian labor proponents may feel that things have been rough for them in recent years, their American colleagues would feel lucky to even have freedom of association in the labor context or the freedom to strike given any form of constitutional consideration. Ditto any legal recognition by US Courts of (gasp!) international labor standards!


July 12, 2013 in Commentary, International & Comparative L.E.L., Labor Law | Permalink | Comments (1) | TrackBack (0)

Monday, July 8, 2013

Pasquale on From Status to Contract to Fealty

ContractThanks to Mike Zimmer (Loyola-Chicago) for bringing to my attention this post on the Concurring Opinion Blog from Frank Pasquale entitled: From Status to Contract to Fealty.

Here's a taste:

“Consent” can be a near-universal solvent in employment law, eviscerating rights that would be considered basic outside the workplace. Soon after Independence Day, Alana Semuels reported a new twist on the trend: contracts to tie even low-wage employees to a given workplace, on penalty of not working at any competing business for months or a year afterward:

Mazhar Saleem is bound to his employer by a number of contracts that made it hard to earn enough money to live, but also hard to go work anywhere else. He drives a town car for a company in New York as an independent contractor, rather than as a full-time employee. That means he doesn’t get benefits, never gets overtime, and isn’t guaranteed set hours.

But he also signed a non-compete contract when he started working, meaning he can’t drive a car for anyone else in New York. So even if his employer doesn’t give him any work, he’s not allowed to go find it elsewhere. . . .

In a recent case in Worcester, Mass., three women working at a hair salon tried to leave after theirconditions at work deteriorated. All three received cease and desist letters when they started working elsewhere, because they had signed non-compete clauses. They had to wait a year for the clauses to expire before they could work in the area again.

In fact, these exclusivity clauses even extend to the hunt for temporary, no-benefits work, as Fed governor Sarah Bloom Raskin found out at a job fair:

‘So what I need to do is put in my resume and then I’ll be able to get this job?’ And she said ‘yes.’ And I said: ‘while I’m waiting can I go to some other firms and throw my resume into their databases as well?’ And she said ‘oh no, you can’t do that, because you’re going to sign a letter of intent.’ And that letter of intent is basically an exclusivity agreement that says that by putting your resume in here you agree to not put your resume anywhere else.

Corey Robin explains the tricky issues these cases raise for advocates of “freedom of contract.” Libertarians often point out a paradox of democratic theory: a dictatorial party could win an election, then decide “no more elections.” Is not something similar happening when bosses, emboldened by a terrible job market and a near-infinite supply of cheap labor, bind employees like the hair salon did? If workers have neither voice (no union) nor exit (no chance to seek better employment), what’s left but loyalty? Or, to put it feudally, fealty?

I appreciate Frank' post, but wonder whether these covenants for lower paying jobs would be enforceable in most states given the lack of unqiue protectible legitimate business interests (though the hair stylist situation may be a closer situation).  I am also skpetical that the letters of intent can keep the employees from applying to other employers in the at-will world in which we live.

Of course, the lack of employee sophistication and lack of access to knowledgeable attorneys who know the employment law in this area makes these developments troubling nonetheless.


July 8, 2013 in Commentary, Workplace Trends | Permalink | Comments (4) | TrackBack (0)

Friday, July 5, 2013

Morris's Comment on 4th Circuit Panel’s Notice Posting Decision in U.S. Chamber v. NLRB

CharliemorrisToday, we are happy to present a second piece of commentary by Charlie Morris (SMU Emeritus) on another federal appellate court decision, this time the Fourth Circuit Court of Appeals decision in U.S Chamber v. NLRB, striking down the NLRB's notice posting rules.  You can downloand the full commentary here and you can also find it as well on Charlie's own blog.

Here is a taste from the introduction of the commentary:

This decision, issued June 14, 2013, holds that in promulgating the NLRA rule requiring employers to post notices advising employees of their rights under the National Labor Relations Act “the Board exceeds its authority” pursuant to step one of the two-step rule of Chevron U.S.A., Inc. v. NRDC, Inc.,467 U.S. 837 (1984), that governs judicial review of an agency’s interpretation of its enabling statute.  That holding of an absence of statutory authorization is not only incorrect for a variety of valid reasons, it is directly contrary to the Supreme Court’s recent decision in City of Arlington v. FCC, Nos. 11-1545 & 11-1547, May 20, 2013, which the panel’s opinion (by Judge Duncan) acknowledged but―without explanation―chose not to follow. 

The decision in City of Arlington responded to the question of “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the agency’s statutory authority (that is, its jurisdiction).”  Justice Scalia’s majority opinion stressed that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretation is a mirage” and noted that “there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” . . . .

Charlie again makes an exceedingly persuasive argument why the Fourth Circuit's decision in U.S. Chamber v. NLRB does not withstand closer scutiny.  In the meantime, we all await to see if the en banc 4th Circuit or the U.S. Supreme Court may become enmeshed in this notice posting/compelled employer speech debate.


July 5, 2013 in Commentary, Labor Law | Permalink | Comments (2) | TrackBack (0)

Monday, July 1, 2013

ITUC Position Paper on Freedom of Speech and Freedom of Association: Finding the Balance

ItucLance Compa (Cornell ILR) has brought ot our attention a new paper from the International Trade Union Confederation (ITUC) and the global unions UNI and IndustriALL countering employers' claims that a 2010 decision by the ILO Committee on Freedom of Association endorsed American management-style anti-union campaigns around the world. It is entitled: Freedom of Speech and Freedom of Association: Finding a Balance (June 2013).

The case involved a Delta Airlines campaign against flight attendants' organizing. Lance worked on this along with Jeff Vogt of ITUC and Christy Hoffman of UNI, advised by Fred Feinstein of U. Maryland and Keith Ewing of Kings College London.

The International Organization of Employers, the Littler Mendelson law firm, and T-Mobile have been promoting the idea that the CFA's comments on employers' freedom of expression make NLRA Section 8(c) as interpreted by American courts the new international standard for employers' anti-union campaigns. The ITUC paper argues that the CFA decision did no such thing. On the contrary, the CFA reinforced the long-established standard  of non-interference in workers' organizing efforts: that freedom of expression cannot be abused in ways that interfere with freedom of association.

This issue will continue to be sharply debated both in the ILO context and in union organizing campaign efforts that invoke international standards on freedom of association.  All comments and thoughts are welcome.


July 1, 2013 in Commentary, International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)

Grabell on "The Expendables: How the temps who power corporate giants are getting crushed."

BooksThanks to Harris Freeman (Western New England School of Law) for passign along how to get a hold of Michael Grabell's excellent piece of journalism on exploitation in the temp staffing industry, titled "The Expendables: How the temps who power corporate giants are getting crushed."

You can finnd It is on the website, and in TIME magazine.

Timely topic given recent posts on temporary employees.



July 1, 2013 in Commentary, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, June 27, 2013

Morris on Employee-Rights Posters and Employers’ Free Speech

CharliemorrisWe are thrilled to welcome as a guest commentator to the Workplace Prof Blog our distinguished colleague, Charlie Morris.  As many of you know, Charlie is professor of law emeritus at the Dedman School of Law at SMU. He is an internationally renowned labor law scholar and authority on the NLRA and well-known for his take on members-only bargaining units.  He wrote about minority-bargaining in 2005 in The Blue Eagle At Work: Reclaiming Democratic Rights In The American WorkplaceMore recently, Charlie has started his own blog, Charles J. Morris on Labor Relations, featuring his thoughts on various labor law topics.

Here, Charlie shares with us his thoughts on the recent DC Circuit decision concerning employee-rights posters and employer's free speech.  Here is a taste of his commentary (which you can download in full at this link here):

A recent decision by a panel of  judges of the District of Columbia Circuit Court of Appeals in National Association of Manufacturers (NAM) v. NLRB, in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB or Board) on August 30, 2011, that requires employers to display a poster that advises employees of their rights under the National Labor Relations Act (NLRA or Act) is unconstitutional because it violates the First Amendment free-speech rights of employers.  The New York Times’ characterization of that decision as “outrageous” expresses the natural reaction to a ruling that uses the cover of free speech to suppress free speech.  Judge Randolph’s decision raises the critical question of whether by final judicial determination this notice-posting rule will be deemed a violation of the Constitution, for if so, most governmentally required notice postings (both federal and state) that are commonly displayed in millions of American workplaces will no longer be mandatory.  Based on established case law, the final answer to that question should be that the rule does not violate the First Amendment; thus the existing familiar notice- postings will safely continue. 

This is an excellent piece for both those who are unfamiliar with this area of labor law, as well as those who know much about this decision and are interested in a well-thought out and comprehensive perspective. We look forward to Charlie sharing more of his posts with us as a guest commentator in the days and weeks to come.


June 27, 2013 in Commentary, Labor Law | Permalink | Comments (3) | TrackBack (0)

Tuesday, June 25, 2013

Stone on Italian Colors

StoneKatherine V.W. Stone (UCLA) has a nice blog post at the Huffington Post on American Express v. Italian Colors Restaurant. A bit from the post:

Today the Supreme Court put another nail in the coffin of the withering body of consumer rights. In the American Express v. Italian Colors case, the Court furthered its trend that permits corporations to use arbitration to prevent consumers from challenging their unlawful conduct. The case arose when a group of merchants brought a class action against American Express alleging that the credit card company imposed on them an illegal tying arrangement, in violation of the antitrust law. The merchants' contracts with Amex contained a clause that required all disputes be subject to arbitration and that all disputes be arbitrated on an individual basis. It also prohibited parties from sharing the costs of any litigation or otherwise consolidating their legal claims. The merchants wanted to void the class action waiver and arbitrate as a group because it would cost many hundreds of thousands of dollars to mount an antitrust action yet the average recovery would be only $5000. Hence, they argued, without the ability to bring a class or collective action, they would lose their substantive rights. The Second Circuit agreed. It held that the class action ban could not be enforced "because to do so would grant Amex de facto immunity from antitrust liability by removing the plaintiffs' only reasonably feasible means of recovery."

The Second Circuit decision rested on an established Supreme Court precedent that says that under the Federal Arbitration Act, arbitration is only appropriate when it entails no loss of substantive rights. The Supreme Court first expressed this principle in 1985 in Mitsubishi Motors v. Solar Chrysler-Plymouth, a case in which a party was required to arbitrate a claim arising under the Sherman Antitrust Act. In Mitsubishi, the Court stated that arbitration could be ordered only if the litigant "may vindicate its statutory cause of action in the arbitral forum." The Court further explained that "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute."

There is a lot more good analysis. You should read the whole thing.


June 25, 2013 in Arbitration, Beltway Developments, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, June 20, 2013

U.S. Supreme Court Ruling in American Express Case Upholds Class Action Arbitration Waivers

4United States Supreme Court 112904Today, we have a guest post from Lise Gelernter (Buffalo) on the United States Supreme Court's latest decision on arbitration in American Express v. Italian Colors Restaurant.  The decision can be found  on the Supreme Court website here under the name of the case.

Here's Lise's overview of the decision:

The Court, four in the majority (Justice Scalia writing the decision), one in concurrence (Justice Thomas) and three in the dissent (Justice Kagan writing the opinion with Breyer and Ginsburg joining her – Justice Sotomayor took no part, presumably because she was on the 2d Cir. when it decided the case that the Supreme Court reviewed), said that the Federal Arbitration Act prohibited a court from invalidating an arbitration agreement that barred class actions, even if the practical effect was that the plaintiffs would find it impossible to vindicate their antitrust claim. 

An economic analysis had shown that the cost of an expert witness to show that American Express had used improper monopolistic power to impose fees on the plaintiffs would far exceed the economic recovery that any one individual plaintiff could hope to have.  As the dissent pointed out, the pluarlity and concurrence basically responded by answering that that was just “too darn bad.”
The impact in the labor and employment context is that unrepresented employees can not only be required to waive access to a court to vindicate statutory rights, but can also be required to waive their right to class actions.   Thus, minimum wage, employment discrimination and other types of employment actions will have to be pursued on an individual basis if that waiver exists in a pre-hire agreement. 

On the collective bargaining side of things, it will be interesting to see if an employer tries to compel individual arbitration of a contract grievance that was brought on behalf of a whole bargaining unit (e.g., a violation of a contractual provision on overtime scheduling).  I don’t know that it would make much of a difference in the long run in terms of the practical effect of an arbitration award, which probably means it is not worth it for an employer to pursue that kind of argument.

Great commentary, Lise, and looking forward to others' comments on this important new arbitration law case.


June 20, 2013 in Arbitration, Commentary | Permalink | Comments (2) | TrackBack (0)

Thursday, June 13, 2013

Wal-Mart makes news for focus on temp hiring

WalmartReuters recently did a survey of Wal-Mart's hiring in recent months and published the findings today. The results are making a fairly decent size buzz in other media outlets and on twitter. The survey revealed a big surge in hiring temporary workers, who are automatically terminated after 180 days, although they can reapply for their positions. About half the stores surveyed were hiring only temporary workers, while others were hiring a mix of temporary and non-temporary workers. It appears that all of the temporary workers were hired to work part time, and that Wal-Mart makes a distinction between regular part-time work, and temporary part-time work. Regular workers aren't automatically terminated at the 180-day mark. The stores explained that this strategy allows them to be more flexible, able to react more quickly to changes in demand. Of similar types of stores, only Dollar General does temporary hiring year round. Most only do temporary hiring at the holiday season.

I have a serious question about this news. What does the "temporary" designation get Wal-Mart? It is a term without legal effect. We all know that in reality, nearly all of Wal-Mart's workers, and most workers in the U.S., are effectively temporary workers. They can be terminated at any time for nearly any reason with no notice. We also know, though, from Pauline Kim's (Wash. U. St. L.) work, and our own experiences, that many if not most employees don't realize this.

Clearly, people do attach legal significance to the terminology. Most of the commentary on the Wal-Mart news suggests that this kind of terminology has legal significance, as if the default employment relationship gave employees some level of job security, and hiring workers labeled "temporary" outside of the busiest season for that business is some kind of break with the norms of employment relationships.

So why use this terminology that has no legal consequences? Is this designation a way to make the workers feel even more insecure? Does it make them less likely to assert rights during their employment or after because they are told up front not to expect to continue? Is this kind of like noncompete agreements in places they are not enforceable? I have the same problem with other HR terminology, too, like "probationary" employees in an at-will setting. Or even full or part-time in an at-will context before the FMLA or the ACA mandated some limited benefits based on the number of hours an employee worked.

I ask these questions because I genuinely want to know what the answers might be. I speak to non-lawyers a lot about employment law issues, and I find that nearly every discussion or presentation ends up with me giving them bad news, that they don't have job security unless they have an individual or collective contract (or some statutory rights like civil servants and public school teachers). Our students, like most people, also tend to believe employees have job security until they take our classes. 

Maybe part of an answer is that even though at-will employees have no legal job security, they have practical job security because most employers have incentives to keep employees. Small employers and people with hiring and firing power often have personal relationships with those they have power over that make firing people difficult. And employers' own beliefs, which tend to overestimate the risk of liability mean that they rarely terminate people without a pretty good reason. Is that enough?

Feel free to weigh in on any of the questions in the comments.


June 13, 2013 in Commentary, Labor and Employment News, Workplace Trends | Permalink | Comments (8) | TrackBack (0)

Tuesday, May 21, 2013

Yesterday's Supreme Court Chevron Decision and Its Impact on the NLRB

GelernterA very interesting guest post today by Lise Gelernter (Buffalo) on the potential impact of yesterday's U.S. Supreme Court decision involving administrative law and the FCC, which could have some impact on the NLRB's power to interpret the jurisdictional bounds of its own statute:

As an administrative law geek, I read the Supreme Court’s Chevron decision issued yesterday (City of Arlington v. FCC 569 U.S. __, slip op. No. 11-1545 (5/20/13)) with great interest.  And then I started wondering if it had any impact on the NAM v. NLRB case concerning the NLRB’s authority to require employers to exhibit posters about employees’ collective bargaining rights. 

In the Arlington v. FCC case, the majority (with Justice Scalia writing the decision and Justice Roberts strongly dissenting, joined by Justices Alito and Kennedy) said that courts had to defer, under Chevron, to the FCC’s determination that it had the jurisdiction or authority to interpret an ambiguous part of its statute.  The statute in question required state and local governments to act on wireless antennas siting applications “within a reasonable period of time.”  47 USC §332(c)(7)(B)(ii).  The FCC had promulgated a rule interpreting “reasonable” to mean 90 days for applications for new antennas on existing towers, and 150 days for all other applications.  The question was “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, jurisdiction).” 

 The majority found that there was no difference in Chevron treatment of “jurisdictional” questions and “run-of-the mill” applications of an agency’s governing statute.  Slip op. at 5.  The bottom line was:

judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of statutory provision is “jurisdictional” or “nonjurisdictional.”  Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority.

Id. at 9.  The Court upheld the Fifth Circuit’s decision to grant Chevron deference to the FCC because the statutory grant of authority was ambiguous and the FCC’s interpretation of its authority was “a permissible construction of the statute.”  Id. at 4.  The ambiguity was found in  the “reasonable period” language in §332(c)(7)(B)(ii) and a “saving clause” that provided “that nothing in the [Communications] Act, except those limitations provided in §332(c)(7)(B) ‘shall limit or affect the authority of a State or local government’ over siting decisions.”  Id. at 2 (emphasis added).  The City of Arlington had argued that the “saving clause” took away the FCC’s authority to set specific time limits on siting decisions.  The Fifth Circuit had determined that the effect of the saving was ambiguous and that the FCC’s determination that it could impose specific time limitations was a “permissible construction of the statute.”  Id. at 4.

Although the DC Circuit’s decision in the NAM v. NLRB case is framed differently, I wonder if that court’s insistence on Section 8(c)’s limitations on the NLRB’s ability to require employers to post the NLRB’s words about collective bargaining rights isn’t really just a decision not to grant Chevron deference to the Board’s finding that it had the jurisdiction to require the poster.  As was true for the FCC, the NLRB has a broad grant of rulemaking power under §6; the NLRB has “the authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this Act.”  §201 of the Communications Act gives the FCC the similar authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.”  Shouldn’t the NLRB’s interpretation of its statute in a regulation get the same deference test applied as was true for the FCC?  It can be argued that the DC Circuit just began with the wrong analysis.

Some might argue that the NAM v. NLRB case is very different because it is based on a First Amendment analysis, not a Chevron-type analysis.  But the DC Circuit was very careful to tie everything back to the statute in the form of the limits that §8(c) imposes on the NLRB, not really on the First Amendment.  The court’s conclusion states: “We therefore conclude that the Board’s rule violates § 8(c).”  Slip op. at 23.  Thus, the issue in that case really is whether or not §8(c) precluded the Board from issuing its rule (which was the issue the litigants focused on).  The Arlington v. FCC case says that if the Board’s statutory interpretation is permissible, the court should defer to the Board’s interpretation in the face of the ambiguity raised by the interplay of §8(c), the §7 rights the NLRA grants, and the broad §6 rulemaking authority.  Of course, a court could find that the Board’s interpretation is not permissible, but that is not what the DC Circuit did.  The court short-circuited the traditional Chevron analysis that the Arlington v. FCC case requires.

I think Lise's analysis has some really bite to it and will be interested to hear what readers think of her theory in the comments.


May 21, 2013 in Commentary, Labor Law | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 23, 2013

The Peggy Browning Fund's Take on the Academic Future of Labor and Employment Law

PeggybrowningContinuing a conversation that was started on this blog a couple of weeks, Joe Lurie of the Peggy Browning Fund writes to provide his take on the academic future of labor and employment law in the greater legal academy and what his group, the Peggy Browning Fund, is doing to help to ensure the future of labor law in particular:

As most of you know, the Peggy Browning Fund’s core mission is educating law students as to the rights and needs of workers.  As recently as 20 years ago, law schools across the country recognized this educational goal as an important part of their curriculum.  Unfortunately, today this is no longer the case.  On April 11, 2013, Reuters reported that Professor Paul Secunda, who teaches labor and employment law at Marquette University School of Law, stated that “law schools give labor and employment law short shrift.”  Professsor Secunda went on to say that “hiring among law school professors specializing in labor and employment dropped this year, and the field is overlooked at many law schools.”

Thanks to your help, we have made, and continue to make, an impact in the education and recruitment of young lawyers for the labor movement.  Our 10-week summer fellowship program and our annual National Law Students Workers’ Rights Conference provide the training and education many law students want but do not receive in law school.  We offer law students wide-ranging opportunities to work for social and economic justice.  Building on these opportunities, many of our alumni have gone on to work for unions, the National Labor Relations Board, the U.S. Department of Labor, worker centers and union-side law firms.

Law schools have created a vacuum in labor law and employment law legal education. Even though we are proud of increasing the number of fellows we placed to 70 positions, we cannot begin to fill this vacuum.  This year we received well over 500 applications for the 70 fellowship positions we can afford to offer.  The waiting list for unions and worker centers wanting our students is long and continues to grow.  With your help, we can continue to strengthen the labor movement by educating the next generation of lawyers committed to working for economic and social justice.

Thanks to Joe and the Peggy Browning Fund for penning this piece and I can state from personal experience that my students over the years have very much enjoyed participating in the group's national conference and fellowship programs.  

Just another avenue (albeit on the union side of things) for providing the labor and employment law skills and education students need to be successful attorneys in this vital area of study.


April 23, 2013 in Commentary, Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Labor Law Makes an Appearance on The Good Wife

ThegoodwifeFrom Harris Freeman (Western New England), a lighter entry on pedagogy and popular culture. Harris writes:

A rare cultural phenomena – labor issues driving the plot of a prime-time TV show. This week’s episode of The Good Wife (#21), a legal drama on CBS starring Julianna Marguiles, featured a plot devoted to labor law:  Attorney Alicia Florick (Marguiles) was ‘tricked/coaxed’ into representing a group of computer coders at a software company who sought to form a union. 

Much to my surprise, a series of hearings before an administrative law judge at the NLRB provided the adjudicatory framework.  Legal issues included whether: workers were employees; engaged in concerted activity; suffered from discrimination because they chose to form a union, and; whether employer electronic surveillance was lawful. What’s more, the firm’s representation of these employees proved a catalyst for the law firm’s administrative staff to complain about their own workplace conditions and a justifiably cynical take on how employers “lawfully” handle employee dissatisfaction. 

If you can get a hold of the episode, excerpts would make for some effective use of popular TV culture for classroom teaching and conversation.   A summary of the episode is available at Entertainment Weekly here.  

Does all this also mean that labor law is again bubbling up in Americans' consciousness? Have the events of Wisconsin, Michigan, and the NLRB finally got some in Hollywood to take notice of the importance of these issues to the future of our country?

OK, probably not. But one can dream.


April 23, 2013 in Commentary, Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, April 22, 2013

An ERISA Update: Some Thoughts on McCutchen and Heimeshoff

GavelLast week was a momentous week for those of us who teach and practice employee benefits law under ERISA. 

First, the United States Supreme Court decided the reimbursement case of U.S. Airways v. McCutchen.  The syllabus is provided here in a post by Jeff from last week, but the long and the short is that U.S. Airways, a self-insured health plan provider, had provided medical benefits (some $67,000) to a participant (McCutchen) of their plan injured in a car accident.  Although U.S. Airways paid for the medicial expenses arising from the accident, when McCutchen received a settlement of his claim against the third-party tortfeasor (about $110,000), U.S. Airways exercised its rights under the plan's reimbursement clause to recover the amount it had already paid to McCutchen.  This would be mean that McCutchen would lose his full recovery because in addition to paying back U.S. Airways for the medical expenses, he owed a 40% contingency fee to his attorneys. He sought the use of two equitable doctrines - unjust enrichement based on double recovery and the common fund doctrine - to mitigate this harsh result.

The Court in McCutchen found that this was a contractual matter and that the plan terms overrode any possible equitable principles, as long as the terms of the plan were clear.  Although the reimbursement clause was clear with regard to U.S. Airways being able to collect the full amount it previously payed out in medical expenses and therefore equitable theories of unjust enrichment were unavailable, the plan was silent on how attorney fees should be split be McCuthchen and the company. Thus, the majorty five Justices applied the common fund doctrine to require U.S. Airways to ratably play its share of McCutchen's attorney fees.

Few take away points from McCutchen:

1) It would seem, a la Firestone, that plans henceforth could write their reimbursement clauses in their plans to make clear that the common fund doctrine does not apply and companies are not responsible for attorney fees. That would mean, without equitable principles available, participants like McCutchen could actually end up coming out behind after suing the third-party for their injures. As other have pointed out, however, companies may think twice before adding such language to their plans for fear that attorneys will not take such cases and/or participants will just not decide to sue the third-party since they would be worse off if they did.

2. It is strange that the Court that has gone previously out of its way to say that ERISA is imbued with trust law, would treat this issue as a purely contractual matter.  The Court, in deciding the standard of review in denial of benefit claim cases in Firestone and Glenn, came to the exactly opposite result and found that trust law principles applied.  Although Firestone was a 502(a)(1)(B) denial of benefit plan case and McCutchen is a 502(a)(3) claim for appropriate equitable relief under the terms of the pan, both provisions have been historically construed with trust law in mind, not contract law. Of course, trust law would have more likely provided the equitable remedies that McCutchen was seeking.

3. Applying contract principles seems particularly unfair in this context because employee benefit plans are essentially adhesion contracts.  Not only are participants unlikely to understand and know about such reimbursement clause provisions in their benefit plans, but even if they do, they would not be able to negotiate in any meaningful way with their employer over changing the terms of the plan. This is a true take-it-or-leave-it proposition.  This is why contract law is unsuited to 502(a)(3) for appropriate equitable relief and why trust law, given that the funds are placed in trust for the benefit of participants and beneficiaries, is the far better and appropriate model.

So, McCutchen seems wrong to me on many levels. What is depressing is not only that the usual Justices are aligned against ERISA plaintiffs, but normal allies of plaintiffs on the Court just don't seem to understand the consequence of their decision in a case like this.  In short, ERISA continues to baffles the Supreme Court. 

All this does not bode well for ERISA plaintiffs in the case the Supreme Court granted cert in last week, Heimeshoff v. Hartford.  This case concerns when the statute of limitations should begin to run in a case where a participant seeks disability benefits under an employer's welfare benefit plan.  ERISA only has a statutory SOL provision for breach of fiduciary claims, and courts usually look to state law analogs to find SOLs for denial of benefit claims like this one. However, the issue is not what the appropriate SOL is, but rather, when does that SOL begin to run?

Here is a summary of the case and the question presented from Proskauer's ERISA Practice Center Blog:

Heimeshoff had been a Wal-Mart employee for nearly twenty years. In 2005, she filed a claim for long term disability benefits as a result of various ailments caused by fibromyalgia. Hartford’s plan provided that its three-year limitations period ran from the time that proof of loss was due under the plan. Here, even accepting Heimeshoff’s arguments, the latest she could have filed a proof of loss was in September 2007, and she did not commence her lawsuit until November 2010.

The Second Circuit concluded that Connecticut law permits parties to an insurance contract to shorten the state-prescribed statute of limitations, and also permits the statute of limitations under an ERISA plan to begin before a claimant can bring a legal action. Accordingly, it held that the district court had properly dismissed Heimeshoff’s claim as untimely since she had filed her lawsuit several months after the three year period had expired.

The Supreme Court agreed to address the following question: “When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?” According to the petition, the Circuits have not uniformly answered this question. 

This is really an interesting question from a number of different stand-points:

1.  From a preemption standpoint, it would appear that state law would apply, and override Hartford's insurance language to the contrary, since this is insured disability plan subject to state law insurance regulations since it is a law regulating insurance under ERISA Section 514(a)(2)(A) and saved from ERISA preemption.  In fact, it reminds one of the California notice-prejudice rule in the Court's UNUM v. Ward case from 1999 where the state law was found to be saved from preemption.  Yet, the Second Circuit concludes that under Connecticut insurance law, an insurer can shorten the statute of limitations in an insurance contract; but the Second Circuit then says the question of when a statute of limitations begins to run is a matter of federal law.

2. If federal applies, as the Second Circuit suggests, the federal law would appear to be based on the ERISA principles that generally written terms of the plan should be enforced as written. Of course, this is why the Court ends up deciding that Heimeshoff's disability claim must be dismissed under the applicable SOL. This conclusion also resonates with the contract-based analysis in McCutchen which says equitable principles cannot override a clearly written benefit plan provision.

3. On the other hand, if state law applied under the preemption analysis above, it could be possible that different insurance laws from different states might provide that such provisions like Hartford's violate laws that require insurance companies to explain to participants when their claims need to be filed in court to challenge the plan administrator's decision. No such law seems to exist in Connecticut, but of course there would be a host of different regimes that would then apply, seemingly inconsistent with the uniformity which is desired for such plans under ERISA. Perhaps a DOL regulation on this issue would helpful.

The Court could certainly go in a number of different directions here, but given recent precedent, a contract-based approach may seem the mostly likely scenario, which means the Second Circuit's decision would be upheld.

Also, as friend of the blog Don Bogan (Oklahoma) pointed out to me: "I have never heard of a contract, which requires internal appeals/exhaustion of administrative remedies, to also declare that the SOL begins to run even before internals appeals are exhausted—if Connecticut has no statute or case law on that issue, then perhaps the Supreme Court should certify the case to Connecticut Supreme Court for resolution of what Conn. insurance law is or would be on that question."

Perhaps so. Stay tuned.


April 22, 2013 in Commentary, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

The Irony of the Supreme Court’s Decision in Kiobel v. Royal Dutch Petroleum

Susan_bisomrapp_webFriend of the blog and comparative and international LEL expert, Susan Bisom-Rapp (Thomas Jefferson) has kindly provided the following guest post. It is an excellent analysis of this week's Supreme Court decision in Kiobel v. Royal Dutch Peltroleum. In it, she explains the labor and employment law ramifications of this important decision:

The Irony of the Supreme Court’s Decision in Kiobel v. Royal Dutch Petroleum

Susan Bisom-Rapp (Thomas Jefferson School of Law)

Although not a case involving workers’ rights, the April 17th decision in Kiobel v. Royal Dutch Petroleum was long-awaited by those interested in whether transnational corporations (TNCs) can be sued in U.S. courts under the Alien Tort Statute (ATS) for human rights violations perpetrated against foreign workers laboring abroad.  Rather than answer the question initially directed to the Court – Does the ATS confer jurisdiction over corporations? – the Supreme Court addressed a different question: Whether and under what circumstances may U.S. courts recognize an ATS cause of action for violations occurring within another sovereign territory?  In a fractured and somewhat muddy decision, the Court limited ATS cases, at least where the defendants are foreign corporations, the wrongdoing occurs outside the U.S., and the claims do not touch or concern the territory of the United States.  Even so, the Court left open enough questions that on the day the decision issued, workers’ rights advocates confidently opined that there is still a subset of viable ATS cases that may be brought against TNCs.

Kiobel was brought by Nigerian nationals against Dutch, British, and Nigerian corporations, which the plaintiffs argued aided and abetted the Nigerian government in committing human rights abuses as the latter sought to suppress environmental protests related to corporate oil exploration.  All nine justices agreed that the case should be dismissed but the four justices of the Court’s liberal wing (Justices Breyer, Ginsburg, Sotomayor, and Kagan) disagreed with the reasoning of the majority (Justices Roberts, Scalia, Kennedy, Thomas, and Alito).  A liberal wing concurrence was consequently written.  Complicating matters, Justices Kennedy and Alito each filed a separate concurrence, and Justice Thomas joined Justice Alito’s concurrence.

No matter how you slice it, the Supreme Court’s decision in Kiobel is a win for TNCs.  The Kiobel case will not proceed, and the Court announced new limitations on ATS claims.  Ironically, however, and despite the limitations imposed by the Kiobel majority, it is the majority opinion, written by Chief Justice Roberts, which leaves the courthouse door open a bit and will likely be used by workers’ rights advocates in subsequent litigation.  Before explaining why, some background on ATS claims on behalf of workers is necessary.

The ATS, legislation enacted in 1789 and signed into law by George Washington, confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”  It was not until 1996, however, that suit was brought against a corporate defendant. That case involved the oil company Unocal, which was sued for allegedly aiding and abetting abuses by the Myanmar military, including the use of forced labor, committed in connection with the construction of a natural gas pipeline.  Although that case settled, subsequent ATS cases brought on behalf of workers include suits against: Bridgestone-Firestone on behalf of children and adults who work on Firestone’s rubber plantation in Liberia; Chiquita by the families of pro-union workers murdered by Colombian paramilitaries; Coca-Cola for the murder and torture of Colombian union leaders; Nestle, Archer Daniels Midland, and Cargill relating to the trafficking of Malian children into Cote d’Ivoire for work on cocoa plantations; and mining company Drummond, regarding its subsidiary’s alleged involvement with the torture and murder of Colombian trade union leaders.

In 2007, that last case, Romero v. Drummond Co., Inc., became the first ATS case against a corporation to reach trial.  Although the jury ruled against the plaintiffs, many TNCs and their advocates viewed the case as making real what had until then been a theoretical threat of corporate ATS liability.  The status of corporate ATS liability, however, is contested.  There is a split in the circuits that the Supreme Court had a chance to resolve in Kiobel.  Rather than do that directly, the Court addressed a different issue – the extra-territorial reach of the ATS in suits brought against any person, natural or juridical.

For the Kiobel majority, this is a simple case resolved by the presumption against extraterritorial application of a statute.  That well-known presumption provides that where Congress has not plainly expressed its intent that legislation apply beyond U.S. borders, the statute does not apply extraterritorially. Since the spare text of the ATS does not address the reach of the grant of federal jurisdiction for tort claims brought by aliens, the presumption, by barring claims such as those in Kiobel, precludes U.S. courts from creating conflicts with other nations and interfering with foreign policy.  That the tort claims mentioned in the ATS are those “committed in violation of the law of nations” does not, argued the majority, imply reach beyond our borders since violations of international law norms can occur on U.S. soil.  Indeed, two embarrassing incidents involving foreign ambassadors to the U.S. occurred just prior to passage of the ATS.  At the time, U.S. officials were concerned there might not be a sufficient forum for hearing those claims.

As for what it would take to displace the presumption, Chief Justice Roberts notes that all ATS claims must “touch and concern” U.S. territory with “sufficient force.”  Somewhat tantalizing, he opines that  “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.”  Picking up on all that the majority opinion leaves unanswered, Justice Kennedy’s one paragraph concurrence notes that “the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the [ATS].”

Rather than embrace the presumption against extraterritorial application, the liberal wing’s concurrence is driven by the principles of foreign relations law from which it draws international jurisdictional norms to determine when it is appropriate to apply U.S. law outside of U.S. territory. To that end, Justice Breyer, who wrote the concurrence, relies on the Restatement (Third) of Foreign Relations Law.  The liberal concurrence argues that the statute provides federal district courts with jurisdiction not only when the torts occur in the U.S. but also when “the defendant is an American national” or “the defendant’s conduct substantially and adversely affects an important American national interest.”

While providing some useful language for workers’ rights advocates, there are two reasons I believe the liberal concurrence may be less helpful to them than the majority opinion coupled with Justice Kennedy’s concurrence.  First, there may be a tendency among American judges to shy away from foreign relations law and the Restatement Third when they might easily make use of a presumption rooted in domestic law, and, I might add, that presumption is embedded in a majority opinion.  Strategically, it may make sense for workers’ rights advocates to craft arguments using language that is familiar to American judges. 

Second, Justice Breyer's example of “an important American national interest” does not track the fact patterns of the ATS corporate cases very well.  His example is ensuring our country does not become a safe harbor for modern day pirates – those who commit heinous violations of international norms elsewhere and then seek safety on our shores.  In the corporate ATS cases, the actual commission of human rights violations is rarely performed by the TNC in question.  Gross human rights abuses in those cases usually have a direct connection to a foreign government.  The corporate liability, if it were to lie, is vicarious.  In short, the ill-fit of Justice Breyer’s example may limit the utility of the liberal concurrence leading to the irony that the more conservative majority opinion may ultimately be of greater use to workers’ rights advocates.  The Kiobel decision was a disappointment for workers’ rights advocates but it was not as bad a decision as it could have been.  The battle over corporate ATS liability continues, at least for now.

April 18, 2013 in Beltway Developments, Commentary, International & Comparative L.E.L. | Permalink | Comments (4) | TrackBack (0)

Tuesday, February 5, 2013

Goldberg on Noel Canning Recess Appointment Decision in Labor Notes

GoldbergM300x266Faculty_de.ashxMichael Goldberg (Widener (Wilmington)) has posted a brief analysis in Labor Notes on the DC Circuit's recent decision in Noel Canning, which found the 2012 recess appointments to the NLRB by President Obama to be unlawful.

After discussing the decision, Michael points out that the combination of the lack of filibuster reform in the Senate and the narrow reading of what it means for there to be a "recess," means that the Board will have a exceedingly difficult time having its orders enforced until it has at least three Senate-confirmed members or the Noel Canning decision is overturned by en banc or US Supreme Court review.

This is because Section 10(f) of the NLRA allows any employer to appeal an adverse Board decision to the DC Circuit (which will find such orders to be null and void) and because it is unlikely that Senate Republicans will permit any NLRB nominee through, regardless of their merits, since they can effectively shut down a federal agency they have no love for by not confirming anyone. 

Labor relations law in the United States has reached Kafka-esque proportions.

In any event, read Michael's entire Labor Notes piece.


February 5, 2013 in Commentary, Labor Law | Permalink | Comments (12) | TrackBack (0)

Zimmer and Sperino Amicus Brief in Mixed Motives Retaliation Case

WritingMichael Zimmer (Loyola-Chicago) and Sandra Sperino (Cincinnati) are currently drafting an amicus brief to be filed in University of Texas Southwestern Medical Center v. Nassar.  This case addresses mixed motive issues in Title VII retaliation cases, and it is a pretty important issue.  Michael and Sandra are interested in hearing from anyone who would like to comment on drafts of the amicus or who would be interested in signing or considering signing on to the finished brief.  Please email Sandra at [email protected] if interested.


February 5, 2013 in Beltway Developments, Commentary, Employment Discrimination, Faculty News | Permalink | Comments (0) | TrackBack (0)