An Analysis of the 7th Circuit’s Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision

Posted on Categories Labor & Employment Law, Public, Wisconsin Law & Legal SystemLeave a comment» on An Analysis of the 7th Circuit’s Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision

On Friday last week, the 7th Circuit in Wisconsin Education Association Council vs. Walker (7th Cir. Jan, 18, 2013), affirmed in part and reversed in part the Western District of Wisconsin’s decision in the same case.

The case involves the now-infamous Wisconsin Act 10, which came to international prominence in February 2011 when Wisconsin Governer Scott Walker, under the pretense of a budget crisis, sought to attack public unions by passing legislation which would deny collective bargaining rights to most public sector employees in the state.

That only “most” public sector workers in Wisconsin were covered by Act 10 – most general public sector employees were, but most public safety workers were not – became the basis of the federal constitutional challenges under the First Amendment free speech clause and the equal protection clause in this case.

The Western District of Wisconsin held that Act 10’s distinctions between different types of employees passed constitutional muster as far as the general anti-collective bargaining measure because it met the low-threshold rational basis review standard (there was a legitimate reason for such distinctions). On the other hand, the District Court struck down the anti-dues checkoff and punitive recertification provisions of the law as being without any legitimate basis. Continue reading “An Analysis of the 7th Circuit’s Wisconsin Act 10 Anti-Public Sector Collective Bargaining Law Decision”

Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law

Posted on Categories Labor & Employment Law, Political Processes & Rhetoric, President & Executive Branch, PublicLeave a comment» on Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law

In light of President Obama’s resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in the labor and employment law area during a second Obama administration:

First, I think the verdict is still very much out on  whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term.  It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.

On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act.  I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.

On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains.   Continue reading “Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law”

Wisconsin Recall Post-Mortem: Implications for Labor

Posted on Categories Labor & Employment Law, Political Processes & Rhetoric, Public7 Comments on Wisconsin Recall Post-Mortem: Implications for Labor

Cross posted at Workplace Prof Blog.

As one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.

Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:

1) First and foremost, the Citizens United decision played a huge role.  Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Brothers) while Barrett raised only $4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker.  Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues.  Citizens United primarily favors large corporate donors, plain and simple.

Continue reading “Wisconsin Recall Post-Mortem: Implications for Labor”

Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill

Posted on Categories Labor & Employment Law, Wisconsin Law & Legal System4 Comments on Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill

The Western District of Wisconsin issued its much anticipated opinion in WEAC v. Walker yesterday on the constitutionality of Wisconsin Act 10, the public-sector anti-collective bargaining bill that was enacted into law last June after a monumental political fight. Of course, Act 10’s passage continues to have ramifications as Governor Walker was officially subjected to a recall election yesterday (after some 900,000 Wisconsites signed petitions to recall him), with an additional four Republican state senators and the lieutenant Governor also being subject to recall.

I just read this Act 10 decision and my conclusion is: good, but not great.

Continue reading “Federal Judge Partially Strikes Down Wisconsin Act 10, the Anti-Collective Bargaining Bill”

The Most Important Public Employment Law Case: Pickering v. Board of Education, 391 U.S. 563 (1968)

Posted on Categories Labor & Employment Law, U.S. Supreme Court2 Comments on The Most Important Public Employment Law Case: Pickering v. Board of Education, 391 U.S. 563 (1968)

When most hear about public employment law, they believe the topic involves unions and collective bargaining between government employers and public employee unions.  This is not correct. Although public-sector labor law is an increasingly important area of inquiry given the robust union movement in the public sector, an equally important area concerns the constitutional rights of public employees.  This is public employment law. It is important area of the law both because only public employees, with a government employer, have the protections of the federal constitution under the state action doctrine and because of the sheer size of the public workforce in this country: currently around 23 million workers or about 17% of all workers in the United States.

So within this specialized area, I believe the most important case is the public employee free speech case of Pickering v. Board of Education, decided by the United States Supreme Court in 1968.  On October 8, 1964, the Board of Education of Township High School District 205 in Will County, Illinois, fired teacher Marvin Pickering for writing a blistering editorial about the Board and Superintendent in the local Lockport Herald on the previous September 24th.  The letter concerned a series of four tax referenda initiated and supported by the Board of Education which sought to allocate tax money for a variety of school-related purposes.  Pickering believed that the Board and Superintendent had bungled the matter and that tax money was better spent on teachers’ salary, funding for school lunches for non-athletes, and educational needs generally.

Not surprisingly, the Lockport School Board viewed Pickering’s public statements as insubordination.  Continue reading “The Most Important Public Employment Law Case: Pickering v. Board of Education, 391 U.S. 563 (1968)”

Supreme Court Takes New First Amendment Public Employment Case

Posted on Categories Constitutional Interpretation, Labor & Employment Law, U.S. Supreme CourtLeave a comment» on Supreme Court Takes New First Amendment Public Employment Case

4United States Supreme Court 112904 Not exactly Garcetti II, but the United State Supreme Court yeserday granted certiorari in a case involving a ruling affirming a jury verdict for a police chief claiming retaliation under the First Amendment’s Petition Clause.  The case is Duryea v. Guarnieri (No. 09-1476).  (Here is the Third Circuit opinion below and the petition for writ of certiorari).

Although the Borough argues that this case should be handled like other free speech cases and be dismissed because the dispute does not meet the Connick “matter of public concern” test, the police chief argues that there should be different standards applied for Petition Clause claims as opposed to free speech claims.

Interestingly, a similar argument arises over whether the Connick/Pickering/Garcetti framework should apply in association claim cases under the First Amendment.  Continue reading “Supreme Court Takes New First Amendment Public Employment Case”

NASA v. Nelson and Public Employee Informational Privacy

Posted on Categories Constitutional Interpretation, Labor & Employment Law, Privacy RightsLeave a comment» on NASA v. Nelson and Public Employee Informational Privacy

4United States Supreme Court 112904 Yesterday, the United States Supreme Court heard oral argument in the public employee informational privacy case of NASA v. Nelson (oral tanscript here). Rather than reinvent the wheel on this one, I want to direct reader’s to Prof. Lior Strahilevitz’s (Chicago Law) excellent analysis of the oral argument on PrawfsBlawg.

Here are some highlights: 

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .

Continue reading “NASA v. Nelson and Public Employee Informational Privacy”

Pickering Free Speech Rights and Cyberbullying by Public Employees

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Cyberbully I can’t make this stuff up.  From CNN and Anderson Cooper (with video):

For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an Internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.

Using the online moniker “Concerned Michigan Alumnus,” Shirvell launched his blog in late April.

“Welcome to ‘Chris Armstrong Watch,'” Shirvell wrote in his inaugural blog post.   Continue reading “Pickering Free Speech Rights and Cyberbullying by Public Employees”

Craigslist “Adult Services” Proponent Fired by School District

Posted on Categories Education & Law, Labor & Employment LawLeave a comment» on Craigslist “Adult Services” Proponent Fired by School District

Sch_building Interesting education and employment law story in the New York Times brought to my attention by one of my employment law students:

A teacher at a Bronx elementary school has been reassigned after writing on a Web site about her past as a sex worker.

In a short online article in The Huffington Post on Sept. 7, the teacher, Melissa Petro, criticized Craigslist for shutting down its “adult services” section, which carried sex-related advertising.

Ms. Petro wrote that from October 2006 to January 2007, she “accepted money in exchange for sexual services I provided to men I met online.”

She said that she used Craigslist to meet men and it provided “a simple, familiar forum through which I could do my business with complete anonymity, from the safety and convenience of my own home.”

This is a fairly standard public employee free speech case applying the Pickering framework, probably coming down to whether the online article in question substantially disrupted the teacher’s ability to be an effective teacher in the school (by dint of her relationship with her supervisors, colleagues, parents, or students). When you are talking about elementary school, you also have to consider concerns about good role models and the impressionable age of the children. Continue reading “Craigslist “Adult Services” Proponent Fired by School District”

District Court Keeps Out Social Framework Evidence in Employment Discrimination Case

Posted on Categories Evidence, Labor & Employment LawLeave a comment» on District Court Keeps Out Social Framework Evidence in Employment Discrimination Case

Scales-red Thanks to Colin Miller over at the Evidence Prof Blog who has an interesting post up today at Feminist Law Professors about an evidence issue near and dear to my heart in a recent employment gender discrimination class action, E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010) (can’t find a non-pay version, sorry). The case involved allegations by the EEOC that the company had engaged in multiple forms of pregnancy and sex discrimination against 58 female employees.

At issue specifically was whether the court should allow in so-called “social framework evidence.” As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.  More specifically, in employment discrimination cases, we wrote: “Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately.” Continue reading “District Court Keeps Out Social Framework Evidence in Employment Discrimination Case”

Marquette Law Review Symposium – Promoting Employee Voice in the New American Economy

Posted on Categories Labor & Employment Law, Marquette Law School, Speakers at MarquetteLeave a comment» on Marquette Law Review Symposium – Promoting Employee Voice in the New American Economy

MarquetteThe Marquette Law Review Symposium this year will be on a labor and employment law topic.  I had the pleasure of organizing the symposium as part of Marquette’s Labor and Employment Law Program.   The event will be on Friday, October 1, 2010 from 8:15 a.m. to 4:30 p.m. at the beautiful new Eckstein Hall Law School building at 1215 Michigan Ave., Milwaukee.

The name of the program is: Promoting Employee Voice in the New American Economy and features, among other prominent speakers, Professor Kenneth Dau-Schmidt, the Willard and Margaret Carl Professor of Labor and Employment Law at Indiana University–Bloomington, Maurer School of Law.

All are welcome. There is no fee for this conference, but registration is required.  Please reserve your spot by September 23, 2010 by filling out and sending in this this form.  Continue reading “Marquette Law Review Symposium – Promoting Employee Voice in the New American Economy”

ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs

Posted on Categories Labor & Employment Law, U.S. Supreme CourtLeave a comment» on ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs

4United States Supreme Court 112904 For those who care about ERISA participants and beneficiaries being able to find good counsel for their claims, the U.S. Supreme Court decision this morning in Hardt v. Reliance Insurance Co., No. 09-448 (U.S. May 24, 2010) is welcome news.

In a nearly unanimous opinion written by Justice Thomas (Justice Stevens wrote to concur in part), the Court held that:

A fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under §1132(g)(1) [Section 502(g)(1)]. Interpreting the section to require a party to attain that status is contrary to §1132(g)(1)’s plain text. The words “prevailing party” do not appear in the provision. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.) That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions to recover delinquent employer contributions to a multiemployer plan. In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees.§1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” requirement, the Fourth Circuit’s decision adding that term of art to the statute more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U. S. 349, 359.

The case is interesting because it poses a common legal issue in ERISA litigation.  The court, after pointing out problems with a plan administrator’s interpretation of plan terms, remands the case back to the company and the company ends up awarding the initially requested benefits to the employee. Continue reading “ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs”