PrawfsBlawg

Stimulus Blogging II: Can Legislatures "End Run" Governors?

Some recent news reports have mentioned that governors who earlier said they would reject stimulus money now have "backed off" and certified that they will take federal money.  But, as I described in my first post, "certification" is only one of two steps states must take to receive much of their stimulus money.  For most of the important grants, including education and unemployment, the states also have to apply.   Gov. Sanford (SC), for instance, maintains that he won't apply for education dollars, and several other governors say they won't apply for unemployment (and possibly TANF) money.  Reports are that the state legislatures are going to try to "make end runs around their governors and accept the money."  Can they do that?

Whether they can turns on the question I flagged in my first post: we know that state legislatures can "certify," but can they also "apply" in place of the governor?  South Carolina's attorney general has opined that the answer is no (and Prawfs guest Tommy Crocker agreed).  I think that the AG is about half right on educational dollars, and not at all right about unemployment.  Here's why.

First, let's recall that ARRA (i.e., the stimlus legislation) requires governors to certify that they'll take federal money, but also allows state legislature to certify if the governor doesn't.  The SC AG argues that this certification power is insufficient to empower the legislature, acting alone, to obtain federal money. For instance, the education provisions of ARRA state that "the Governor" has to submit certain information to the federal Dep't of Education before federal money can flow.  SCAG argues that this application language would be meaningless if the SC legislature could trigger federal money simply by certifying.

But SCAG simply assumes that the South Carolina legislature can't apply as well as certify.  True, the statute says "the Governor" must provide the required information.  But if the certification clause allows a legislature to stand in the governor's shoes for certification purposes, why can't it also fill his/her role for application, too?  That seems to me at least a plausible way to synthesize the two clauses; otherwise, the clause permitting the legislature to certify doesn't accomplish much, other than to obtain some small pots of money for which no application is needed.  So, at a minimum, I think a federal agency authorized to implement the statute could opine that legislative application would be sufficient, and stand a good chance of obtaining some kind of judicial deference to that view. 

For other provisions, such as the unemployment money, the argument that legislatures can apply is even stronger, because the statute does not mention "the Governor."  Instead, the section simply requires an agreement between the Secretary of Labor and "any State," ARRA section 2002, or for other provisions the "option of a State," ARRA Section 2005(b), or the "request" of "each State," ARRA section 2101(a)(3)(A).  Since ARRA specifically uses the term "governor" elsewhere, there is a strong implication that where that word is not used, action by the governor is not required.  So the legislature or its designee would be able to apply for unemployment and TANF benefits.

There might be an argument, though, that these readings empowering the state legislature to act should be set aside because of constitutional concerns.  That is the interpretive move made by the Congressional Research Service memo I mentioned last time (as well as by a second memo that I think hasn't been made widely available, but which I have, if anyone is interested).  CRS, following some earlier suggestions by Jack Balkin, thinks that empowering the legislature might violate the anti-commandeering aspects of the 10th Amendment.  I've already said a bit about that point on Jack's blog, but I'll follow up on the avoidance point here a little later this week. 

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

The Employee Free Choice Act

Those of us teaching Labor Law last semester had a rare treat: a proposal to amend the National Labor Relations Act, in a significant way, made the news. Students brought it up on their own, presidential candidates were discussing it, and my own friends and colleagues were asking me about it. I say "rare," because the NLRA is notoriously difficult to amend. Since 1960, there has only been one, relatively minor, amendment (applying the NLRA to hospitals). Indeed, NLRA amendments are exactly comparable to playoff victories by the Detroit Lions, in terms of frequency and significance, in the last half-century. Wait, that’s another post. . . .

Most of the public debate over EFCA has concerned the "card check" provision. My take on EFCA, in short, is this: "card check," while an easy target for opponents to attack, is not nearly as radical as opponents claim; the second part of EFCA, which would stiffen the remedies for employer violations of the NLRA during union organizing campaigns is obviously justified; and that the third part, which would mandate binding arbitration if the parties could not agree on a first contract within a specified time period is the most interesting and radical part of EFCA.

First, card check. Yeah, yeah, how can anybody oppose elections? I’ll get into why the union elections aren’t much like political elections, but I’ll begin by suggesting that requiring employers to recognize unions if the union produces cards, signed by a majority of workers in an appropriate bargaining unit where there is no proof of coercion or fraud, is not actually a radical idea. For one thing, mandatory card check was the law under the NLRA until the 1950s.

Also, from the passage of the NLRA through today, employers always have been allowed to recognize unions via card check and without an election. This means, among other things, that EFCA does not take away any right that any employee has to an election. EFCA would merely take away the right of an employer to force an election, in the face of a valid majority card showing. Employees would still have the same rights to, say, decertify the union later. Indeed, under Dana Corporation (NLRB 2007), before a card check recognition would be granted any protection from a decertification election, there must be a 45-day window after the recognition in which 30% of the employees are entitled to demand an election.

Further, in the public sector, where labor law is state and local law, five or six states have enacted mandatory card check recognition. I am not aware of any incidents of menacing union/mob stereotypes – the kind one sees in anti-EFCA ads – coercing employees in these jurisdictions. Similarly, mandatory card check recognition is the law in some Canadian provinces.

Second, to understand both the card check and remedies parts of EFCA, one has to understand that lots of folks think that the union election process is fundamentally broken. There are many studies on this. To summarize a few results: 91% of employers force employees to attend intimidating one-on-one meetings with supervisors; 51% illegally threaten to close their worksite when employees try to form a union; 30% unlawfully fire workers who support forming a union as a way of intimidating others. An alarmingly high percentage of employees feel that they would be fired if they supported a union in a union election process.

Now you may say, "but that’s illegal, sp why don’t unions and workers just bring claims?" The problem is the uniquely weak remedies under the NLRA. An employee fired for union organizing gets the right to reinstatement and backpay – minus whatever the employee made or should have made while waiting to be reinstated. And after all the litigation and appeals, reinstatement usually takes years. Compare other employment law statutes, like the FLSA (double damages, attorneys fees) or Title VII (punitive damages, consequential damages, emotional distress damages, attorneys fees); none of that is available under the NLRA. It’s clear that a not-insignificant number of employers intentionally violate the NLRA because the penalties are so trivial. So, I think, the part of EFCA that would increase penalties for employer violations during union organizing campaigns is a no-brainer.

Finally, EFCA would require mandatory arbitration for first contracts when the employer and union haven’t reached agreement. This addresses the problem of employers refusing to agree to contracts with unions, then provoking strikes and/or decertification campaigns, thus frustrating the purpose of the NLRA. A study by Kate Brofenbrenner shows that in about one-third of cases in which unions vote for representation, after a year, employers still have not agreed to labor contracts. Current law does not require any agreement; it merely requires bargaining "in good faith." Again, the remedy for violating the duty to bargain in good faith is almost comically weak: it’s an order to begin bargaining in good faith – which often takes years to get – and that’s basically it. Also, if the union and employees reach an impasse during bargaining, current labor law allows management to implement its proposals unilaterally.

EFCA allows employers or employees to request mediation by the Federal Mediation and Conciliation Service (FMCS) if no agreement on a first contract has been reached after 90 days of bargaining. If the FMCS is unable to bring the parties to agreement after 30 days of mediation, the dispute must be referred to binding arbitration. Unions and employers can agree to lengthen these time limits.

Binding arbitration is a relatively radical idea under the NLRA, in that the NLRB and courts have always been loathe to do almost anything that would set substantive terms of labor contracts. On the other hand, such procedures are common in the public sector in the U.S., and are used in a number of Canadian jurisdictions. Also, it’s likely that if this part of EFCA were enacted, the vast majority of negotiations would not actually use binding arbitration; rather, the law would serve as an incentive to bargain in true good faith.

I don’t have any inside information, but obviously there will be a tough fight over EFCA, and compromises might well be made. Along those lines, I note that the public sector jurisdictions that use binding arbitration to resolve bargaining impasses tend to have very specific rules about how the arbitrations should work (e.g., what criteria arbitrators should use). Some more details might be useful in EFCA’s arbitration section. I also wonder whether, if the unions got the tougher remedies, they would feel quite as strongly about either or both of the other two sections. So we’ll see if EFCA will pass as written, or at all. One thing is for sure, however: in the next couple of years, labor law reform is looking a lot more likely than another Lions playoff win.

The Republic Sit-Down Strike: A Response to Richard Ensberg

Sure, I could have left this in the comments to Richard’s post, but since I’m a guest-blogger too, I’ll make a separate post. Plus, I’ve always wanted to be a part of some "A Response To . . ." debate.

Richard writes:

Neither BOA nor any other bank can survive by making, not merely a poor - but an insane "loan" in response to political pressure. In a free economy, businesses fail and various stakeholders - shareholders, employees and creditors - will be hurt by it. We can't expect banks - even those who have had an influx of federal capital - to insure against it.

The Republic employees acted boldly and certainly benefited from being from the President-elect's hometown. Maybe (although I would oppose it) the government should guarantee obligations under the plant closing laws. But shifting the costs to a firm's lender based upon who can and cannot exert the requisite political pressure seems irrational and even dangerous.

One response to his post questioned whether the loan was indeed "insane," given that this seems to be in part a "run-away shop" issue.

More broadly, though, I don’t think this should be seen primarily as a "make a bank lend money" protest. The workers were protesting that the employer did not pay benefits the workers felt they were owed under the WARN Act and under their union contract. When the employer argued it couldn’t pay these benefits because it didn’t get a loan, the workers then focused on the bank. That was smart, practically and politically. But the protest was first and foremost about rights the workers had or reasonably believed they should have under an employment law and their contract with their employer.

Now, perhaps under the law as currently written, the employer’s financial plight would have allowed it to avoid these obligations. WARN is famously riddled with exceptions and is problematically toothless. Also, as debates over the auto industry’s fate remind us, bankruptcy courts can be part of a process in which labor contracts are rewritten. So, perhaps the legal claims by the workers would have failed. And of course even if the workers had good legal claims, it’s not legal to occupy the employer’s property.

Still, many of us remember with some sympathy a history of workers asserting their conceptions of rights against employers – rights that the law did not at the time recognize, but later did. As I cautioned in my initial post, I wouldn’t over-read this incident as being the harbinger of a new New Deal’s worth of labor militancy. But if workers want to press the point, by peaceful, disciplined protest, that they deserve a better deal when companies go under (or are claiming to go under), I’m for it. And if they succeed in their protest, yeah, I’ll celebrate it.

The Modern Sit-Down Strike (re-post)

[Here's the post I accidentally deleted for the sake of an Accurate Archival Record.  Thanks to Dan M. for finding it in the netherworld.  More new content soon!]

Some labor historians have a tendency to romanticize and exaggerate the importance of certain forms of worker "militancy." With that caveat, I was interested in this story about a group of union workers who were recently laid off by Republic Windows and Doors and Chicago but have thus far refused to leave the plant in what the workers are calling an "occupation." The workers claim they are owed severance pay and that the three-day notice of the shut-down they received violated the WARN Act’s requirement of sixty days' notice. Further, as the NYT reports, "their anger stretched broadly to the government’s costly corporate bailout plans, which, they argued, had forgotten about regular workers."

They want the poor person to stay down," said Silvia Mazon, 47, a mother of two who worked as an assembler here for 13 years and said she had never before been the sort to march in protests or make a fuss. "We’re here, and we’re not going anywhere until we get what’s fair and what’s ours. They thought they would get rid of us easily, but if we have to be here for Christmas, it doesn’t matter."

. . . [S]ome workers said they doubted that the company was really in financial straits, and they suggested that it would reopen elsewhere with cheaper costs and lower pay. Others said managers had kept their struggles secret, at one point before Thanksgiving removing heavy equipment in the middle of the night but claiming, when asked about it, that all was well. Workers also pointedly blamed Bank of America, a lender to Republic Windows, saying the bank had prevented the company from paying them what they were owed, particularly for vacation time accrued.

"Here the banks like Bank of America get a bailout, but workers cannot be paid?" said Leah Fried, an organizer with the union workers. "The taxpayers would like to see that bailout go toward saving jobs, not saving C.E.O.’s."

The workers said they were determined to keep their action — reminiscent, union leaders said, of autoworkers’ efforts in Michigan in the 1930s — peaceful and to preserve the factory.

"The fact is that workers really feel like they have nothing to lose at this point," Ms. Fried said. "It shows something about our economic times, and it says something about how people feel about the bailout."

According to other reports I’ve read, Bank of America received $25 billion in bailout money and then cut off operating credit to the Republic Windows and Doors.

Despite all the comparisons to the Great Depression and New Deal floating around these days, it would be a stretch to call this single act a tip of an iceberg of renewed labor militancy. Still, one can see this act as consistent with a long tradition of alternative views of economic justice and rights at the workplace, a tradition that has had a significant impact on the development of labor and employment law.

Setttlement at Republic Windows and Doors

Because I'm an idiot, I inadvertently deleted my previous blog post here about the sit-down strike at Republic Windows iand Doors in Chicago.  Fortunately, events give me a chance to update the story.

Jobs With Justice has the following report.

Workers at Republic Window and Doors in Chicago voted to accept a settlement late last night. 

The settlement totals $1.75million. It will provide the workers with:

• Eight weeks of pay they are owed under the federal WARN Act;
• Two months of continued health coverage, and;
• Pay for all accrued and unused vacation.

JPMorgan Chase will provide $400,000 of the settlement, with the balance coming from Bank of America. Although the money will be provided as a loan to Republic Windows and Doors, it will go directly into a third-party fund whose sole purpose is to pay the workers what is owed them. In addition, the UE has started the "Window of Opportunity Fund" dedicated to re-opening the plant.

As the Local 1110 leaders characterized the settlement, "We fought to make them pay what they owe us, and we won."

It's also worth quoting labor historian Nelson Lichtenstein.  In a good editorial comparing and contrasting this action with the sit-down strikes during the New Deal, he writes in part:

Factory occupations are rare because they violate the everyday laws of property, and for the most part American workers are law-abiding people.

They occur only when workers feel morally aggrieved, when they sense that ownership has itself violated the law, when the boss has become the outlaw in their eyes and in that of the community as well.

Awkward But Interesting

Imagine you are a labor/employment law prof. with interests in, among other things, gay/lesbian rights, employment discrimination rules, religion, public employment, and the First Amendment.   Imagine further that a very interesting case with all these issues involving a public university as an employer has just hit the court system (and blogosphere).  And imagine it's your turn to guest blog on a prominent legal blogsite.  It would be a great opportunity to make a post analyzing the case, legal rules, and policies involved, right?

It would be, unless the defendant in the case was your very own employer.  Which counsels discretion, to say the least.  Still, it's worth discussing, and there are interesting posts and comments at the V.C. and Religion Clause.

I would be interested in the thoughts of others.   FWIW, I don't have any "inside information" about this case.

An Exercise in Judgment

Further to Bill Henderson's comments on judgment (and the difficulties in teaching it), I went back to an article I wrote on the subject and pulled out the following hypothetical:

The company has two valuable and high-potential employees, Jack and Stephanie.  They are managing the critical launch of the company’s newest product, one upon which the future of the company rides.

An internal audit reveals that the two have been using Jack’s company credit card to purchase personal items that have no conceivable connection to the company (a new DVD recorder, for example).  The human resources manager confronts Jack, who admits that his personal finances had gotten out of control, that it was a bad mistake, but he was desperate, and at some point, intended to repay it. Jack says that he told Stephanie what he was doing, learned that she also was in bad financial straits, and lent the card to her.  Jack is terminated for cause immediately and escorted out of the building, and does not contest the termination.

The human resources manager then confronts Stephanie.  Stephanie first admits that she used the card, then claims later that she did not, and that Jack purchased the items for her, without her knowing the source of the funds.  Over the next two days, as the manager investigates the situation, Stephanie consults with a lawyer, who insists that the company does not have a basis for a termination with cause.  In order to get the matter behind him, the manager agrees that Stephanie will be allowed to sign a routine separation agreement and mutual release, and to receive two weeks’ severance pay, half of the amount to which she would have been entitled under the company policy.

Friends of Jack complain that concessions made to Stephanie are not right, and that there has been unfair and unequal treatment of the two: if Jack was terminated for cause, Stephanie should have been as well.

Was it either illegal or wrong for the manager to treat Jack and Stephanie differently?   I am more interested in the wrong than the illegal (as I cannot think of any reason why it would be). 

Note Bill Henderson's observation that "it is just damn hard to define judgment in a way that is objectively defensible."  Is objective evaluation of this judgment even possible?  If not, how do we evaluate it?  Respond to Jack's friends?

Where Were the Feminists When Elizabeth Vargas was Mommy-Tracked?

Feminists are speaking out in droves regarding Hillary Clinton’s presidential bid. Her treatment by the media, opponents, and pundits is getting careful scrutiny from women’s advocates. That’s great. But the attention has caused me to re-focus on a question I had two years ago, which still bother me.

Where were the feminists when Elizabeth Vargas – brief holder of the “permanent” anchor position at ABC World News Tonight – had to give up her post upon becoming pregnant?

There are two important aspects to the story that beg for feminist scrutiny. First, Vargas left her position early in her pregnancy, and “voluntarily” chose not to come back to the anchor-chair after giving birth. Press-release pleasantries aside, it sure looks like mommy-tracking. This is an issue that is explicitly legal in nature, as it raises the prospect of colorable employment-discrimination claims under federal law. Where were the feminist law professors to lend this story a critical eye, forcing these concerns into the national consciousness?

The second facet of ABC’s maneuver begging feminist scrutiny is that Vargas’s downgrade came after her male co-anchor, Bob Woodruff, was sidelined following a severe head injury suffered in a roadside bombing in Iraq. The questions raised by this aspect are less legal than social, but deserving of examination nonetheless: Did ABC decide it could tolerate a woman in the anchor chair only if the feng shui on set was put into balance by a male presence?

[More after the jump ... ]

The three major-network anchor chairs are positions of enormous influence and power – arguably more significant – and I know I’ll get flak for this – than seats on the U.S. Supreme Court. While each justice gets only one of nine votes on the Court, each national anchor is one of only three people who deliver, and thereby shape, the national news for millions upon millions of Americans. Anchors generally wield considerable power over story selection and editing as well.

There are few people suited for anchoring the national news. Candidates need to be able to use disarming ebullience in one instant, and mass-casualty gravitas in the next. They have to project a sense that they could share a good-natured laugh with you over coffee, yet be your polestar in times of history-turning tragedy.

It’s a talent that NBC’s recent hire, Brian Williams, appears to lack. He would deliver the news of National Candy Day the same as he does for genocide: Punching. Three words. In every sentence.

Katie Couric, the new face of the CBS Evening News, also seems to lack the ability. After debuting to considerable fanfare, her sinking ratings quickly became tabloid fodder.

Virtually everyone who has done the national anchor job brilliantly has been male – Peter Jennings, Tom Brokaw, Walter Cronkite. Yet Vargas possessed the rare gift. Perhaps ABC could not overcome the image of a male anchor in their mind’s eye. But isn’t that why we have federal employment discrimination law? Too bad public intellectuals didn’t force America to confront the issue.

Law-Firm Associates Should Unionize

Law-firm associates should unionize. I don’t know why they haven’t already, except that they are, on the whole, rather gutless.

Think about it. Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners.

Now, I know nothing about labor law. Is there a legal barrier here? Or are associates just holding themselves back? There would certainly be some professional responsibility issues with an all-out strike, as client interests could be threatened. But I think associates could flex considerable collective-bargaining muscle without creating an ethics problem.

Let me note that when I say associates are underpaid, I do not mean that they are impoverished and we should feel sorry for them. But, compared to the amount that the partners bill clients for associate hours, the portion associates receive is trifling. Why should they surrender more than three-quarters of their billable rate to pay for the partners’ rainmaking services and office overhead?

I am struck by the irony that associates are trained and employed to play hardball in their litigation work and corporate deals, yet, when it comes to dealing with the partnership over pay, associates seem to take what they are given, unless they feel so slighted they move to another firm. That’s my observation, having been one.

One last point: I am sure many associates would claim they are uninterested in unionization since, as they see it, they will be a partner someday. But, of course, if everyone thinks that, most are wrong.

Jeff Hirsch is En Fuego

It is a rare blog post that can combine thoughtful analysis with passionate feelings over the subject matter.  This post is one.

Justice Thomas as Moderate Swing Vote - At Least in Discrimination Cases

This is my last Justice Thomas post, I promise.  I just have to offer one footnote of dissent from the assumption underlying all the recent Thomas coverage -- that he's an across-the-board conservative.  He's not.  Justice Thomas's jurisprudence reliably yields conservative results in all areas I can think of (and I'd love to be corrected if you know of any area I'm neglecting) -- except employment discrimination.

Justice Thomas seems to be a libertarian conservative in his political views, and many such folks are skeptical of the need for antidiscrimination laws as broad as those we have.  So it's interesting that Justice Thomas's Title VII jurisprudence is nuanced, a mixed bag.  In several cases, he's ruled for plaintiffs in a way that either (1) makes the difference in a 5-4 split, or (2) at least joins a unanimous court in overturning more restrictive lower-court legal standards for Title VII claims -- including at least one restrictive lower-court standard that then-Judge Alito had advocated at the Third Circuit.

St. Mary's Honor Ctr. v. Hicks (1993):  Justice Thomas voted with the 5-4 majority to rule for the defendant -- but in a case that many progressives (including myself) find a quite defensible ruling: that when the plaintiff disproves the reasons the employer gave for his firing, but doesn't have evidence specifically pointing to discrimination, that plaintiff's showing allows, but doesn't compel, a finding of discrimination.  The next three cases are where Justice Thomas's jurisprudence gets interesting.

Reeves v. Sanderson Plumbing (2000):  Justice Thomas voted with unanimous court to reject several appellate courts' holdings (including one then-Judge Alito had advanced) that plaintiffs lose whenever all they have is the same evidence as in Hicks (i.e., when plaintiff proves the employer's asserted reason for the firing a "pretext" but doesn't have evidence specifically pointing to discrimination).  This is the fundamental employment discrimination issue, and it places Justice Thomas (and Scalia) to the left of many, many lower-court judges (and their colleague Justice Alito).

Desert Palace v. Costa (2003): Justice Thomas authored the opinion, for a unanimous court, that Congress's 1991 liberalization of Title VII plaintffs' burden of proof applies to all Title VII cases, not just those with certain kinds of direct evidence.  As in Reeves, the Court's unanimity was striking because many lower courts had adopted a much more restrictive view, and Thomas's opinion was clear and forceful in rejecting those views.

National R.R. Passenger Corp. (Amtrak) v. Morgan (2002): Justice Thomas wrote the opinion for the 5-4 majority taking a middle ground on when the "continuing violation" doctrine allows courts to extend discrimination plaintiffs' limitations periods - specifically, that the doctrine can be used to extend the limitations period for claims of ongoing ("continuing")  harassment but not for more tangible, point-in-time decisions like denials of promotion).  Dissenting, arguing that the continuing violations doctrine cannot apply to harassment claims either, were Justices O'Connor, Kennedy, Scalia, & Rehnquist.  Thus, Justice Thomas here played the O'Connor/Kennedy/Powell role of joining the four quasi-liberals to form a majority against his usual conservative cohort.

Ledbetter v. Goodyear (2007): Justice Thomas joined a 5-4 majority taking a narrow view of how statutes of limitations applies to pay discrimination, viewing pay discrimination not as an ongoing, continuous form of discrimination, but rather as a particular pay decision (the initial discriminatory pay decision) that must be challenged shortly after that initial decision, not years later.

I'm not giving the entirety of Justice Thomas's or the Court's Title VII jurisprudence here; I'm already stretching the purpose and form of a blog post with this length, I think.

But my point is that whereas Justice Scalia's occasional departures from conservative outcomes are much heralded (e.g., certain speech, search-and-seizure, and executive power cases), employment discirmination is one area of law in which Justice Thomas departs from conservative outcomes, and few seem to notice, even when writing in particular about Justice Thomas's jurisprudence.

I have my own hunches as to where this streak in Justice Thomas's jurisprudence comes from, but I'd rather open the discussion up to comments (if anyone actually has read this far).

What Should a 50-50 Union Vote Mean?

Since I started looking at corporate voting discontinuities, I've gotten a little obsessed with voting discontinuities in general. One place I've looked for discontinuities is NLRB workplace elections seeking to certify a union. (Disclaimer: I basically know nothing about the topic other than the ability to look at data, so please correct me if I say anything egregiously wrong.) I've learned a few things from looking at these votes. 1:  There is no evidence that anything fishy is going on in close elections. and 2:  When there is a perfect tie vote, the tie goes to the company. 

I'm puzzled by point 2-- why should a tie go to the company? I think it would make more sense to vote again or even flip a coin in these circumstances, rather than just give a victory to one side or the other.

If ties never happened, then this would be a trivial detail. But they do happen. In my dataset of over 84,000 NLRB certification/decertification votes from 1977-1999, there was a tie in over 3,000 votes (3.6% percent of all votes). This happens because many votes come from small workplaces with even numbers of workers, making ties a frequent outcome.  Given the frequency of ties and the apparent unfairness of the apparent "unfairness" of the "tie goes to the company" rule, I think a different tie-breaking rule, such as revoting or even coinflipping, is worth considering.

Unionize! (or I'll slap the Figure Four on you)

Whooooooooooo!

-- The Nature Boy, Ric Flair

One of the more interesting topics I saw presented at the Employment Law Conference that Blogs Built was John Hall's talk on workplace safety in the pornographic film industry.  (The only reason I went to this particular session was because of my deep interest in workplace safety.  Really.)  The thing that was most striking about Professor Hall's topic was, given the obvious risks of contracting sexually transmitted diseases, just how badly porn actors are in need of legal protection and just how little protection California safety and health officials actually provide.  According to Hall, this is an area in which California health officials have more or less turned a blind eye.

Hall's talk eventually got me thinking about another industry that has largely been ignored by the law and those who enforce it:  the professional wrestling business.  Like the porn industry, professional wrestling is a high-risk business for performers.  The number of professional wrestlers who have died young in the past few years is truly frightening.   

In many instances, the cause of death appears attributable, in part, to abuse of painkillers, steroid abuse, and/or general physical abuse resulting from risky on-the-job behavior.  Like performers in the porn business,  wrestlers take sometimes extreme risks in terms of their job performance.  While modern wrestlers spend less time in the ring than their predecessors, their style of wrestling has far more potential for serious injury.  High-risk maneuvers -- such as flips, leaps from the top rope to the floor, and unprotected chair shots (i.e., smacks to the head with metal chairs) -- are far more common now than in the past as workers try to push the envelope to keep the attention of the public.  The risky behavior doesn't end in the ring, however.  Steroid use is reportedly widespread in the business.  As a result of these factors, the potential for sudden paralysis (see Darren Drozdov) or death (see Owen Hart) is fairly high.  So too is the potential for long-term, chronic pain (see the Dynamite Kid), a condition frequently treated by copious amounts of painkillers (see Kurt Angle).

Like performers in the porn industry, wrestlers are easily exploited.   Because they are classified as independent contractors, wrestlers are not entitled to collect workers' compensation, so working with serious injury is a common occurrence.  Unlike football players, wrestlers don't have pensions.  They don't enjoy employer-provided health insurance.  State athletic commissions  generally take a hands off approach.  (At least as of a few years ago, Oregon was the only state whose commission tested wrestlers for steroids.  Coincidentally (?), the WWE didn't run shows in Oregon.).  In short, this is an industry that is largely unregulated to the detriment of the performers.

So, if the law won't protect wrestlers, what's the solution (short of siccing Professor "Samoa Joe" Slater on management)?  Unionization might be one possibility, but it would be a tough sell.  Because there are plenty of people who dream of being a wrestler, the performers are often quite willing to assume risks workers in other industries would never tolerate.  Years ago, Jesse "the Body" -- later "the Governor" -- Ventura actually tried to organize the WWE (then the WWF).  According to Ventura, however, he was ratted out to management by one Hulk Hogan. 

In discussing all of the above, I don't mean to overstate the seriousness of the situation.  There are plenty of occupations out there in which workers earn far less money and face greater health risks (say, coal mining, for example).  But there is something at least slightly offensive to me about the fact that lawmakers and regulators are unwilling to take steps to protect those such as wrestlers and porn actors because (I surmise), in part, they don't want to associate themselves with such "embarrassing" industries.

Law Firms: One Last Bastion of Legal Discrimination?

The New York Times reports on the surprising prevalence of age-based mandatory retirement at big law firms:

In a survey last year of 46 law firms with 100 or more lawyers, about 57 percent of them reported a mandatory retirement age, ranging from 65 to 72

Let me converse with myself about this:

(1)  Scott, haven't the standard "retirement ages" become obsolete?  Excellent point, Scott.  "65 isn’t old anymore,” one lawyer is quoted as saying.  This reminds me of how the social security "retirement age" was set in the 1930s at 65... because 65 was the life expectancy at the time.

(2)  Is this really legal, Scott?  Good question.  Yes and no.  The federal age discrimination law covers only "employees," and the folks in question here are partners, not employees.  But the EEOC's position, and a 7th Circuit ruling against Sidley & Austin in an age discrimination case, is that many so-called "partners" are really "employees" with fancy titles -- e.g., if they lack a meaningful equity stake or role running the firm.  Such partners are, legally speaking, "employees" protected against age discrimination -- which means that mandatorily "retiring" them is illegal.

(3)  Isn't mandatory retirement just younger lawyers grabbing business from older lawyers?  Sure looks that way.

“To be a healthy institution, you have to encourage people to hand off business to the younger generation,” said Richard J. Davis, a partner and Weil Gotshal’s general counsel

This is one of those sentences: if you're not reading it carefully, you'll just nod your head because it has a lot of common catchphrases ("healthy institution"..."younger generation"); but if you think about it for a minute, it makes no sense whatsoever.  Say a partner normally would have a client from age 40 to 75 without mandatory retirement, but mandatory retirement truncates that relationship from 35 years to 30 years: (1) Is that 5-year shortening of a partner's client relationship really that critical to "the younger generation"? (2) Is this guy really asserting that forced turnover of clients to new lawyers is a good thing for business? (3) isn't this policy -- you must give up your business to help others without business -- kind of like a 100% estate tax (which even Nancy Pelosi doesn't advocate)?

Thoughts???

The Conference that Blogs Built

So, I just returned to California from the First Annual Colloquium on Current Scholarship in Labor & Employment Law at Marquette Law School, and I think I can speak for (most? many?) when I say that this was a great conference.  With so many interesting papers, on everything from Title VII, to whistleblowing, to labor, it's difficult to know where to begin. 

Over on WorkplaceProf, Paul Secunda (Ole Miss) has already graciously thanked everyone, and I have –already - mocked his use of the smiley face graphic (a bit ironic to use the Walmart symbol for a labor and employment conference, eh Paul?). 

A “theme” of the conference that emerged involved the use of powerpoint graphics.  One panel I attended featured Michael Z. Green (Texas-Wesleyan) who had powerpoint animations, Scott Moss (Marquette) who had odd embedded clip art deployed to humorous effect, and Marcia McCormick (Cumberland) who had meticulously drawn images that looked almost postmodern.  Of course, these speakers all had interesting things to say too (about arbitrator bias, confidential settlements, and collaborative dispute resolution respectively), but that’s beside the point, no?

It was also great to catch up with folks on blogs, which in addition to the aforementioned, also included Joe Slater (Toledo); Michael McCann (Mississippi College); an unnamed, but very cool blogger; and Prawfsblawg’s own Orly Lobel. 

Which I guess brings me to the point of this post, which is that the conference had its beginnings in the blogosphere, with Joe, Scott, and Paul deciding – in cyberspace – that they were going to organize this conference.  I’m still thinking this through, but perhaps this conference is a testament to the idea that blogs aren’t by any means the antithesis of scholarship (as a distraction, or just providing glib soundbites, as I have seen argued by others before).  Perhaps what they can do is assist us in creating welcoming scholarly communities (whether online, or in person).

Employment Discrimination by Religious Employers

There’s an interesting article in the New York Times (click here; registration required) discussing employment discrimination by religious employers.  The article begins by recounting why J. Jeffrey Heck, a management-side attorney decided, in this instance, to take on a plaintiff’s case:

“The only employee cases I take are those that poke my buttons… And this one really did.”  His client was a middle-aged novice training to become a nun in a Roman Catholic religious order in Toledo.  She said she had been dismissed by the order after she became seriously ill – including a diagnosis of breast cancer. … Along with her occupation and her home, she lost her health insurance[.]”

The story continues by describing how the U.S. District Court dismissed the novice’s case (under the Americans with Disabilities Act), reasoning that this was an ecclesiastical matter.  The article also describes a lawsuit by a rabbi, diagnosed with Parkinson’s disease, who was dismissed from his position (and whose case was also dismissed, due to the ministerial exception).

Although some of the cases involving clergy members were rather disturbing (if you can’t expect compassion from the church or synagogue for anyone who is ill, let alone an ill clergy member, who can you expect compassion from?), even more troubling were the cases described where religious institutions, as employers, were exercising discriminatory biases against workers in rank-and-file positions that had nothing to do with religion (such as receptionists) and were shielded from liability. 

More commentary from Paul Secunda (Ole Miss) here at Workplace Prof Blog.

Immoral Jobs?

Last semester, when I taught employment law, I remember having a conversation with some students that ended up carrying over into a question I kept asking (seemingly) everyone.  The question was, what do you think is an “immoral” job and why?  The responses I received varied widely.  One friend, an entrepreneur - and also a fan of the Sopranos – replied that his only category was “hitman” but then, under my intensive questioning, qualified that answer with “anything illegal.”  But of course, that begs the question of what is illegal and why, etc., which wasn’t really what I was thinking about, at all.  To the other extreme, another friend was adamant that plastic surgeons belonged on the list.  Me, personally?  I think if your job is “spammer,” well, that might be immoral.  (No one mentioned any law-related jobs, but that might be because everyone I was talking to knew I was a lawprof…)

Shiver me Timbers

Just a note, mateys, to remind you that today is “International Talk Like a Pirate Day” a fact that I'm sure is not lost on our colleagues at Pitt Law.  As you drink your bottle of rum to celebrate, you could check out Theresa Beiner & Robert Chapman’s article on employment law and bankruptcy claims, Take What You Can, Give Nothing Back: Judicial Estoppel, Employment Discrimination, Bankruptcy and Piracy in the Courts, 60 U. Miami L. Rev. 1 (2005) (quoting Captain Jack Sparrow).

[Hat tip: Amy Landers]

Course Preparation and the 800-Pound Gorilla in the Room

OK, so Jeff Lipshaw has clearly set  a torrid pace for guest bloggers on Prawfs.  Geesh, he made me feel guilty for not posting yesterday (I mean the guy is driving across country and apparently blogging as he's changing lanes).   And to think I really liked the guy when I met him in Baltimore in July.

In any event, and keeping with the spirit of discoursing on course preparation for the upcoming fall semester (alas, I am not lucky enough to teach Secured Transactions like Jeff), I will let everyone in on my prep situation. 

In a word: ERISA.  Yes, I am one those masochistic people who actually went into their Associate Dean's office and offered to teach employee benefits.  Unlike Article 9, ERISA does not only not make sense when you get to thorny little issues, but it is also maddeningly complex at a global level.

Things just got a lot more hectic though for employee benefits people.  I give you the 907-page Pension Protection Act (PPA) about to be signed into law by the President.  In short, I don't know how I am going to incorporate this new statutory bad-boy into the already confusing ERISA framework.

Everything from minimum funding of pension plans to automatic enrollments in 401(k) plans have been altered to a degree that will keep ERISA attorneys busy and rich for many years to come (to students, I refer to my employee benefits law class as "the guaranteed future employment in law" class.  Thinking back to Kim Roosevelt's recent post, however, the students in their evaluations of the class do not seem to appreciate the gift I am giving them).

So, I am interested in hearing whether other people are dealing with anything similar as they prepare for their classes this semester.    Any other 900-page statutory gorillas out there? 

At least for my other class, Labor Law, it really has now just come down to a situation which Stephen Colbert sums up best when he concludes: "It's time for management and labor to put aside their differences and come together as management to exploit labor."