Pickering a Fight with the Wrong Guy

Paul Secunda has a new paper on SSRN that provides the full story of the famous First Amendment case Pickering v. Board of Education.  Paul interviewed the plaintiff, Marvin Pickering (now in his 70s), and collected other historical records in order to supplement the background information supplied in the United States Supreme Court’s decision.  Pickering was fired from his job as a public school teacher in Lockport, Illinois, in 1964 after he wrote a letter to the editor criticizing the Lockport School Board.  Pickering challenged his dismissal all the way to the Supreme Court and eventually won reinstatement.

In addition to recounting Pickering’s colorful life story and the history of the case that made him famous, Paul’s paper also critically appraises the post-Pickering cases that have pared back the First Amendment rights of public employees.  The paper appears as a chapter in the book First Amendment Law Stories.  An abstract appears after the jump. 

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A Captivating New Paper

Paul Secunda argues in a new paper on SSRN that the National Labor Relations Act should be interpreted to prohibit “captive audience meetings.”  Employers require employee attendance at such meetings in order to communicate anti-union messages.  Paul has written interestingly about captive audience meetings from a number of perspectives (see, e.g., here).  In the new paper, he critically examines NLRB precedent that approves of such meetings.

Entitled “The Contemporary ‘Fist Inside the Velvet Glove’ — Employer Captive Audience Meetings Under the NLRA,” the paper will be published in a symposium issue of the Florida International University Law Review devoted to the NLRB.  The abstract appears after the jump. 

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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.

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