Paul M. Secunda – Page 11 – Marquette University Law School Faculty Blog

Desparate Times and Desperate Measures: Public Employment in San Francisco

Post author:Paul M. Secunda
Post published:February 10, 2010
Post category:Labor & Employment Law

The recession might not be as bad as it was, but tell that to all those people out there who can’t find jobs or are facing this type of government action (in the most progressive of all cities). From Heather Knight of the San Francisco Chronicle:

More than 10,000 San Francisco city workers — from librarians and gardeners to secretaries and street cleaners — would be laid off and most rehired for jobs with shorter hours under a controversial plan being examined by Mayor Gavin Newsom.

The idea, which sprouted in the mayor’s budget office and was described to his department heads Monday, would reduce the workweek for a large swath of the city’s 26,000 full-time employees from 40 hours to 37.5.

GFFD in Employment Contracts Comes to Wisconsin?

Post author:Paul M. Secunda
Post published:February 3, 2010
Post category:Labor & Employment Law Wisconsin Civil Litigation

For those unfamiliar with employment law, it might surprise you to learn that in the United States most states do not recognize an implied covenant of good faith and fair dealing (GFFD) in employment contracts, even though such covenants are deemed to exist in commercial contracts under the UCC.

By my last count, only nine states have adopted GFFD in employment contracts. Though the type of GFFD implied in employment contracts varies, the most common form involves a situation where an employee’s justified expectations to pay or benefits are frustrated by an arbitrary employer action (like an out-of-the-blue firing).

Well, Wisconsin might be the tenth state to recognize such a GFFD in employment in the case of Phillips v. US Bank (Wisconsin Ct App 02/02/2010), though the Wisconsin Appellate Court was careful not to call it that.

Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech

Post author:Paul M. Secunda
Post published:January 28, 2010
Post category:Education & Law First Amendment Labor & Employment Law

In Weintraub v. Board of Education of the City of New York, No. 07-2376 (2d Cir. Jan. 27, 2010), the Second Circuit, in a 2-1 decision, has delivered a body blow to the First Amendment speech rights of public school teachers.

The case concerns a fifth-grade teacher who was dealing with a disruptive student throwing books at him on multiple occasions. When the school administrator refused to take disciplinary action against the student, the teacher filed a grievance with his union. The school allegedly responded by retaliating against the teacher and eventually, firing him. (BTW, all of this happened from 1998-2000, and the Second Circuit decision just came out in 2010; something about justice delayed is justice denied keeps popping into my head.)

The majority decision, written by Judge Walker, recites the holding of Garcetti (U.S. 2006) (the bane of my existence) that public employee speech pursuant to an employee’s official duties receives NO First Amendment protection. In Weintraub, the “speech” being examined was the grievance filed by the teacher with his union.

The Court held that the employee’s grievance was “pursuant to” his official duties because “it was ‘part and parcel of his concerns’ about his ability to ‘properly execute his duties,’ as a public school teacher — namely to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.”