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Paul Secunda moving to Marquette
December 31, 2007 by Ross Runkel at LawMemo
Sincere congratulations to Paul Secunda upon his decision to accept a law teaching position at Marquette University Law School, effective the 2008-2009 school year. He is currently Jessie D. Puckett, Jr. Lecturer and Assistant Professor of Law at the University of Mississippi School of Law.
Professor Secunda joined The University of Mississippi School of Law Faculty in the summer of 2002. He teaches employment law, employment discrimination law, employee benefits, labor law, civil procedure, school law, higher education law, and special education law.
Professor Secunda's recent articles appear in the UCLA Law Review, Wisconsin Law Review, Colorado Law Review, U.C. Davis Law Review, Florida State University Law Review, Villanova Law Review, Kentucky Law Review, Duke Journal of Gender Law & Policy, and the Comparative Labor Law & Policy Journal. He is also the author, along with Professors Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, and, along with Sam Estreicher, of the forthcoming case book, Global Issues in Employee Benefits Law.
His legal scholarship primarily focuses on the civil liberties and civil rights of employees, with a focus on public employee speech, privacy, and associational issues. He has also written on innovative remedial approaches to group employment discrimination claims and the dynamics of administrative agency adjudication in the labor law context. His current project concerns the lack of employee benefit protection for employee participants under ERISA’s remedial and preemption scheme.
Professor Secunda is the current national Chair of the AALS Section on Employment Discrimination Law. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, which is part of the Law Professors Blog Network. He moderates the empdiscr listserv, the AALS-sponsored email discussion group of employment discrimination law professors in the United States. Professor Secunda is also a Research Fellow at the NYU School of Law's Center for Labor and Employment Law.
Professor Secunda serves as a special education mediator for the State of Mississippi's Office of Special Education and as a public arbitrator for FINRA. He is also a frequent commentator on labor and employment law issues in the national media and has written columns for the National Law Journal and Legal Times.
As one of his Ole Miss colleagues said in an email this morning: "Paul has been a wonderful classroom teacher, a phenomenal published scholar, and a good colleague."
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NLRB arranges for two-Member Board
December 28, 2007 by Ross Runkel at LawMemo
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NLRB arranges for two-Member Board to issue decisions.
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NLRB delegates litigation authority to General Counsel.
The NLRB took the following actions December 20, announced December 28:
Anticipating a loss of two members when Congress adjourns in January, the National Labor Relations Board has unanimously decided to temporarily delegate to the General Counsel authority on all court litigation matters that otherwise would require Board authorization. This delegation will give the General Counsel full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the National Labor Relations Act. The Board issued a similar delegation of authority to the General Counsel in 1993 and 2001.
The sitting members are Wilma B. Liebman, Peter C. Schaumber, Peter N. Kirsanow, and Dennis P. Walsh. Former Chairman Robert J. Battista's term expired on December 16, 2007, leaving one vacancy. Members Kirsanow and Walsh are serving in recess appointments that will expire at the sine die adjournment of the current session of Congress.
Under these circumstances, the Board also delegated its powers to Members Liebman, Schaumber, and Kirsanow. This action will permit Members Liebman and Schaumber, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases. In 2005, a three-member Board issued a similar delegation permitting a two-member quorum to issue decisions.
The temporary delegations, decided on December 20, 2007 and announced today, will be effective as of midnight tonight. They will be revoked when the Board returns to at least three members. In announcing the delegations, the Board stated that it has "a continuing responsibility to fulfill its statutory obligations in the most effective and efficient manner possible."
The Board acted pursuant to Section 3(b) of the Act, which provides that
[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. ... A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.
In addition to the statutory language, the Board relied on the legal analysis and U. S. Circuit Court precedent set forth in the March 4, 2003 opinion issued by the Office of Legal Counsel of the U.S. Department of Justice (OLC) in response to the Board's May 16, 2002 request for OLC's opinion whether the Board may issue decisions during periods when three or more of the five seats on the Board are vacant. OLC's opinion concluded that "if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained."
The Board has historically relied on this reasoning where one member of a three-member Board is disqualified or recused from participating on the merits of a case. The Board also noted that OLC's opinion does not distinguish between decisions that were pending at the time of the delegation of authority to the three-member Board and decisions that are submitted to the Board after the delegation and the departure of the third member.
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ERISA preempts San Francisco Health Care Security Ordinance
December 27, 2007 by Ross Runkel at LawMemo
United States District Court for the Northern District of California has held that San Francisco's Health Care Security Ordinance is preempted by ERISA. The ordinance would require private employers with 20 or more employees to make heath care expenditures of specific amounts per hour of work. The Ordinance sets out a number of non-exclusive qualifying health care expenditures, such as contributions to health savings accounts, direct reimbursement to employees for some of the expenses incurred in the purchase of health care services, payments to third parties for the purpose of provided health care services, costs incurred in the direct delivery of health care services, or payments by the employer to the City “to be used on behalf of covered employees.”
Golden Gate Restaurant Assoc v. San Francisco (N.D. California 12/26/2007)
The court granted summary judgment for the plaintiff opposing the ordinance on the grounds that (1) it has an impermissible connection with employee benefit plans and (2) its expenditure requirements make unlawful reference to employee benefit plans.
Earlier reports on this case:
- Workplace Prof Blog: San Francisco Health Law Falls to ERISA Preemption
- What's New in Employment Law?: ERISA Preempts San Francisco Health Care Ordinance
- calitics: SF's Employer Health Care Mandate Struck Down
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Shopping mall cannot prevent newspaper employees from urging boycott of mall tenants
December 27, 2007 by Ross Runkel at LawMemo
Fashion Valley Mall v. NLRB (California 12/24/2007) (4-3)
The Supreme Court of California granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. The court held that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.
Union members employed by a newspaper distributed leaflets to customers entering and leaving the store of a tenant in a shopping mall. (This was to protest the tenant running ads in the newspaper, which the union claimed treated its employees unfairly.) Mall officials required the union members to leave because they did not have a Mall-issued permit. In order to obtain a permit, an applicant must agree not to urge a boycott of any shopping mall tenant.
The union filed unfair labor practice charges with the National Labor Relations Board (NLRB), and the Board ruled that the Mall violated Section 8(a)(1) by maintaining its permit requirement, which had the purpose and effect of shielding tenants from otherwise lawful consumer boycott handbilling. The Mall petitioned the DC Circuit for review, and the DC Circuit asked the California Supreme Court to clarify the following question: "Under California law, may [the Mall] maintain and enforce against the Union its [permit rule]?" The California court answered in the negative, thus assuring that the DC Circuit will uphold the NLRB decision.
The California court noted that the California constitution grants greater protection for free speech than the federal constitution does. A private shopping mall "can be a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks." Robins v. Pruneyard Shopping Center, 23 Cal3d 899, affirmed in Pruneyard Shopping Center v. Robins, 447 US 74 (1980).
After reviewing Pruneyard and other intervening decisions, the court held that the shopping mall's rule was viewpoint-neutral but not content-neutral "because it prohibits speech that urges a boycott while permitting speech that does not," and therefore is subject to strict scrutiny. The mall's purpose of maximizing tenants' profits "is not compelling compared to the Union's right to free expression."
The DISSENT argued that Pruneyard was wrong and has been rejected overwhelmingly by other jurisdictions. Even if Pruneyard is not overruled, it can be distinguished on the ground that the activity involved in this case is not compatible with the normal use of the property, which is to allow the "businesses on the premises to do business."
Earlier report on this case: Workplace Prof Blog: California Shopping Malls are Public Forums
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Age discrimination disparate impact case heads to Supreme Court
December 22, 2007 by Ross Runkel at LawMemo
Will the US Supreme Court grant certiorari in Meacham v. Knolls Atomic Power Laboratory? [Case details] Probably, I think. Earlier this week the US Justice Department filed a brief arguing that certiorari should be granted.
The Meacham case presents the legal issue of whether it's the plaintiffs or the defendant that bears the burden of proof on an important aspect of a disparate impact age discrimination case: proving (or disproving) that the employer's decision "is based on reasonable factors other than age." That's the RFOA exception.
Knolls laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40.
Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs. The 2nd Circuit (by 2-1 vote) vacated the judgment of the district court and remanded the case with instructions to enter judgment for the employer. The 2nd Circuit majority held that it is the plaintiffs' burden to prove that the employer's justification is unreasonable. The dissenting judge would look at the RFOA defense as an affirmative defense as to which the employer would have the burden of persuasion.
The government's brief said:
The court of appeals held that plaintiffs raising a disparate-impact age discrimination claim bear the burden of proof with respect to the ADEA’s RFOA exception. That ruling is at odds with the text of the pertinent statutory provision, the decisions of other circuits, and agency regulations. In addition, the burden of proof on this issue is of threshold and recurring importance in ADEA disparate-impact cases. This Court’s review of the first question presented is therefore warranted.
The questions presented by the petition (filed by the losing plaintiffs):
The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The questions presented are:1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.
2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
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NLRB losing its quorum?
December 21, 2007 by Ross Runkel at LawMemo
As of January 1 there will be only two Members of the National Labor Relations Board.
Will they be a quorum for conducting business?
The full Board has five Members.
At the end of December 16, the number dropped to four because of the expiration of the term of appointment for Chairman Battista.
At the end of December 31, the terms of Members Kirsanow and Walsh will expire because they are recess appointees who were not approved by the Senate.
That will leave two: Wilma B. Liebman (Democrat) and Peter C. Schaumber (Republican).
So how can two be a quorum? Watch this.
About two years ago, a roughly similar event occurred. There were only three Members, and one of their terms was about to expire. On Aug. 26, 2005, Chairman Battista and Members Liebman and Schaumber delegated to themselves, as a three-member group, all of the Board's powers in anticipation of the expiration of then Member Schaumber's term on Aug. 27, 2005. Pursuant to this delegation, the remaining two Board Members (Chairman Battista and Member Liebman) constituted a quorum of the three-member group with the authority to issue decisions and orders in unfair labor practice and representation cases. This appears to be permissible under Section 3(b) of the National Labor Relations Act.
So, before the year ends, I expect a similar delegation to three Members, with the surviving two becoming a quorum.
And don't look for any recess appointments by the President. The Senate has figured out a way to keep itself in session so there will be no "recess" and the President will not have the chance.
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NLRB bombs use of email for union organizing
December 21, 2007 by Ross Runkel at LawMemo
On Chairman Battista's last day in office the NLRB dropped two bombs.
The case: The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007). This was another 3-2 decision, along party lines.
Part one was expected:
An employer does not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations."
This is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
Part two is a bit more radical:
What happens when an employer allows employees to use emails for some non-work purposes, but forbids email use for organizing purposes? The NLRA prohibits employers from discriminating against union activity? So what does it mean to "discriminate"?
The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and "group" or "organizational" postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis, "rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals." The majority overruled the Board's decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.
Thus, on the last day in which the Bush Board commanded a majority of the NLRB, it adopted a position that has been discussed for many years, but that had been a definite minority position.
Professor Jeffrey M. Hirsch at Workplace Prof Blog has a lengthy comment on this case - Major NLRB Internet and Discrimination Decision - in which he says "The majority's analysis here is weak" and " This makes no sense at all."
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Supreme Court will decide ADA accommodation case
December 08, 2007 by Ross Runkel at LawMemo
Huber v. Wal-Mart Stores, Inc (certiorari granted 12/07/2007) [Details, briefs]
Decision below: Huber v. Wal-Mart Stores, Inc (8th Cir 05/30/2007)
Pam Huber had worked as an order-filler until she became disabled. She sought, as a reasonable accommodation, reassignment to a router position which was vacant and for which she was qualified. The employer did not automatically reassign her to the router position, but required her to apply and compete with other applicants. The employer filled the router position with a non-disabled person who was the most qualified applicant, and placed Huber in a less desirable janitorial position.
Huber sued under the Americans with Disabilities Act (ADA); the trail court granted summary judgment for Huber; the 8th Circuit reversed; the US Supreme Court granted certiorari to review the 8th Circuit judgment. Oral argument probably will be scheduled for March 2008.
Huber's position is that the employer should have automatically reassigned her to the router position without requiring her to compete with other applicants.
The employer's position is that it has a nondiscriminatory policy of hiring the most qualified applicant, and that giving the router position to the most qualified applicant does not violate the ADA.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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