Buying Silence

Can a company sign an airtight "nondisparagement" agreement with a departing employee? That's one question raised by this fascinating post at Above the Law. It reprints an email by a departing associate who essentially accuses a firm of trying to hide the real reason for her being let go. At one point she states:

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months' pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don't need much help from me in damaging your reputation.

This is not my area, but I find work in the general field of regulation of information flow fascinating. This news story by Adam Liptak suggests that while "settlements for silence" are generally enforceable, there are several reasons why a beneficiary of one may not seek to enforce it. Richard Epstein has argued for a "better coordination" of contract and free speech law here, and his proposal would largely eliminate public policy exceptions (and First Amendment defenses) to enforcement. Epstein argues that "where true information is obtained illegally-- whether by trespass, fraud, or breach of confidence or contract--the presumption should shift sharply in the other direction, so that both damages and injunctive relief are made available to the party with the right to keep that information confidential."

Posted by Frank Pasquale at 08:12 PM | Comments (3) | TrackBack

Submit Grades or Else at Florida State

[Cross Posted on Workplace Prof Blog]

From Inside Higher Ed today:

Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .

Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .

As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.

“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”

With that, the crowd broke into a wave of spontaneous applause.

First, I wonder if this applies at the FSU law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I'll leave that to the Paul Horwitz's of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?

Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn't even realize and one that does not inspire applause.

Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:

Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

I don't see where the grade penalty fits in, do you?

Posted by Paul Secunda at 12:29 PM | Comments (14) | TrackBack

Organized Labor's International Law Project

[Cross posted on Workplace Prof Blog]

Matthew Muggeridge of the National Right to Work Foundation has posted in The Federalist Society's Engage 9.1 magazine: Organized Labor's International Law Project?: Transforming Workplace Rights into Human Rights.

Here's some highlights:

For more than half a century, large U.S. labor unions, alone or in concert with other labor organization federations, have regularly filed complaints with the International Labour Organization (ILO) against the U.S. Government. This article analyzes the significance of organized labor’s forays into international law through the ILO process . . . .

We can see from this quick overview of a half-century of complaints how the ILO’s Committee on Freedom of Association went from a blunt dismissal of a complaint as unsubstantiated and “vague” in 1950, to requesting wholesale federal and state legislative action in 2007. Th ere is no reason to suppose that the CFA will hesitate in recommending that the “Bush Board’s decisions” be condemned as well, as a violation of international law and the commitments entered into by the United States.

What happened over these fi fty years to make U.S. labor law so unacceptable to the international labor oversight body? Evidently, over fifty complaints during the span of nearly sixty years have convinced the ILO that the U.S. is not living up toits commitments. What are those commitments? The U.S. has signed no relevant new ILO Convention in that time span. Any development of labor law since 1950 has worked to grant U.S. workers greater employment and organizing protection . . . .

To conclude, non-participation in the ILO process will not prevent international scrutiny of U.S. labor law. Moreover, as international legal machinery goes, the ILO process does not pose as serious a threat to national sovereignty as does the International Criminal Court, for example. Nonetheless, ILO processes are a lobbying tool for organized labor and a potential embarrassment for the United States as long as it participates in them and does not comply with the CFA’s interpretations of ILO Conventions that the U.S. has not ratified. Consequently, the U.S. government might well give serious consideration to withdrawing from ILO membership, while candidly explaining its reasons for doing so.

Now, this is not a surprising commentary from someone affiliated with the National Right to Work Foundation. And I don't think any serious politician (and heck, W didn't even do it) would give "serious consideration" to withdrawing the US from ILO membership. Shoot, we should be the ones leading the world in showing how workers' rights should be protected. Haven't we pulled out of enough international treaties yet?

But I myself have questioned in the past the importance of symbolic filings with the ILO, when money can be better used domestically for grass roots organizing and domestic political campaigns.

In response to that post, Deborah Greenfield of the AFL-CIO wrote in the comments:

We understand only too well that the ILO has no enforcement authority, but that’s not the point. Unless and until the United States owns up to its serious breaches of international labor commitments, it can hardly expect other nations, which often enjoy serious trading advantages through systemic labor abuses, to do so. And, by repeatedly calling to the attention of the ILO, which remains the world’s preeminent labor agency, the U.S. government’s deepening failures to protect the rights of workers, we can mobilize international pressure on our government with respect to core labor rights.

And Lance Compa (Cornell) wrote in the comments to the same post:

International complaints are indeed a waste of time if they are not integrated into a broader strategy that can make use of them. That is one goal of the ILO complaint in the Oakwood case, to be able to put employers on the defensive as violators of international human rights standards in campaigns on the ground, especially if they file UC petitions.

A favorable ruling from the ILO Committee on Freedom of Association will boost support for trade union goals in the U.S. human rights community, an important ally in a movement for a legislative fix to Oakwood. It will also provide solid ground for enlisting European and other foreign trade union and NGO support in disuptes involving EU-based MNCs. They take the ILO very seriously.

Finally, Michael Duff (Wyoming):

I'm convinced that many workers never experience the cognitive dissonance that is created by the conflict between the two "regimes." I began my experience of that dissonance as a Philadelphia-based ramp agent as USAirways was breaking the Teamsters Union in the early 1990s. It was enough to drive me to law school. I think that anything (including the incremental gravitas of contrary world opinion generated in part by ILO decisions) resulting in an increase of that dissonance is beneficial.

So in the end, I am more persuaded that filing complaints with the ILO has some value, ILO membership has definite value, and that Muggeridge's analysis and conclusions are part of a project really not worth the candle.

Posted by Paul Secunda at 10:57 AM | Comments (2) | TrackBack

Tipping Leads to Racial Pay Disparities?

From Freakonomics by Ian Ayres in the New York Times:

A few years back, I got interested in taxicab tipping – and what influences how much people tip. So together with Fred Vars and Nasser Zakariya, I collected data on more than 1,000 cab rides in New Haven, C.T. and crunched the numbers. The study (published in The Yale Law Journal) found — after controlling for a host of other variables — two independent racial effects:

1. African-American cab drivers, on average, were tipped approximately one-third less than white cab drivers.

2. African-American and Hispanic passengers tipped approximately one-half the amount white passengers tipped.

African-American passengers also seemed to participate in the racial discrimination against African-American drivers. While African-American passengers generally tipped less, on average they also tipped black drivers approximately one-third less than they tipped white drivers . . . .

However, a new study co-authored by the world’s leading number cruncher on tipping, Michael Lynn, has found a similar effect in a Southern restaurant. His article, “Consumer Racial Discrimination in Tipping: A Replication and Extension” is based on 140 surveys that he and his co-authors:
…

collected during three lunch shifts (11:00 a.m. to 4:00 p.m.) at a [large national chain] restaurant located in the southern United States.

Focusing on just blacks and whites, the study once again found that:

Consumers of both races discriminated against black service providers by tipping them less than white service providers.

Ayres then gives us the employment discrimination law angle: "But as a law professor what is most interesting about Lynn’s article is his suggestion that an employer might be held liable under Title VII of the Civil Rights Act for establishing a tipping policy that has a disparate impact against African-American employees . . . But the harder question is whether the racial disparate impact of tipping is legally justified by the legitimate interest of businesses to enhance customer service."

Very thought-provoking article, with some interesting tidbits about the history of tipping practices in this country. Should tipping be curtailed to prevent discriminatory impacts in pay practices?

Posted by Paul Secunda at 12:27 PM | Comments (8) | TrackBack

Sadomasochism Sex with Student=Professor Fit to Teach?

[Cross Posted on Workplace Prof Blog]

OK, I have seen some pretty crazy stories in my day while blogging in these parts, but this just might take the cake. What makes it even more interesting is that the story is related to us by the Dank Professor, who describes himself as someone who "openly engaged in propinquitous dating, dating students and having many wonderful friendships with many of my students and their families."

In any event, on to the sadomasochism:

The Albuquerque Journal reported yesterday that University of New Mexico professor of English Lisa Chvez was found fit to teach by the UNM Deputy Provost Richard Holder. Provost Holder reported to the English department faculty that he determined that the faculty member had posed on a sadomasochism website with at least one of her graduate students, and that Professor Chvez should not have to face a faculty ethics inquiry.

In a March 10 letter to English department faculty, Deputy Provost Richard Holder said he thinks associate professor Lisa Chvez used poor judgment in participating in the Web site’s activities with one of her students.

But, Holder goes on to say, “In my mind this participation did not rise to the level of calling into question her ‘unfitness for duty.’ ”

Okay. What then does qualify? The Provost says that it appears the conduct was consensual between adults away from campus, but what type of power does a professor have over graduate students in this type of situation? In the consensual university student relationship context, I have argued in a law review article previously that if a professor has supervisory authority over the student, we should look askance over whether the university should normally permit such a relationship.

And I wasn't talking about sadomasochistic relationships.

For his part, the Dank Professor concludes:

Findings of no undue influence, no hostile environment, no use of university facilities means in the dankprofessor’s opinion, that there is no case against the professor. Bravo to the University of New Mexico administration for doing the right thing.

But given the upset reaction of members of the English Department ("Scharnhorst said none of his colleagues are angry that [the professor in question]] posed on the Web site. “What everyone finds troublesome is the fact that she was involved with graduate students,” he said.), I think an appeal of the Provost decision is a safe best and given the lurid subject matter, this is not the last we have heard of this case for sure.

Posted by Paul Secunda at 10:51 AM | Comments (4) | TrackBack

Is Mississippi on the Verge of a Union Movement?

[Cross-Posted on Workplace Prof Blog]

I do not jest. Consider that just last week the Clarion-Ledger of Jackson reported:

A vote to unionize the Johnson Controls plant in Madison County was unsuccessful.

“We were 34 votes short,” said Gary Casteel, United Auto Workers regional director.

The facility supplies seats and other components to Nissan. The United Auto Workers was seeking to represent the workers.

The final tally was 213 for unionizing and 145 opposed.

Now, I want to argue that 145 votes for unionization in the heart of the Deep South is nothing short of an amazing accomplishment and Southern workers are being to understand the benefits that come with unionization. Although there are currently over 100 local unions in Mississippi (again, not kidding), there is only one lawyer I know in the state that practices union-side labor law full-time (hello Roger Doolittle!).

But here I want to go back over fifty years of history and invoke the memory of the great Professor Bill Murphy, who recently passed away, who wrote in a prescient piece in the Mississippi Law Journal in 1954. I describe his idea in a recent tribute I penned to him in the same Journal:

In Bill’s article on “The 'Right to Work’ ‘Statute,” “[he] wanted lawyers to understand how labor unions sought security, the arguments for and against such security measures, the origins of right-to-work laws, and the litigation that the laws had caused.” Murphy’s commentary on these laws was unusually astute and he proved prescient when he observed that “a cheap, docile labor supply” in the South would attract industry which would inevitably lead to the rise of unionism in the region. Indeed, in the last decade as Mississippi has been successful in luring the likes of Nissan, Toyota, and other large corporations, Bill’s prediction about the eventual increase in unionism in this state no larger appears far-fetched.

I hope where ever you are Bill, that you are smiling about these favorable developments.

Posted by Paul Secunda at 02:40 PM | Comments (2) | TrackBack

Failing to Heed the Lessons of Enron

[Cross posted on Workplace Prof Blog]

Lost in the business disaster that is Bear Stearns' acquisition by JP Morgan Chase this past weekend is the plight of Bear Stearns employees after this collapse.

Not only our many jobs lost, but according to Lisa Fairfax at the Conglomerate Blog, a lot of these employees did not learn from the Enron debacle and had a lot of their pensions tied up in company stock:

I know we are trying to move on, but I have heard several news sources and commentators point out that Bear Stearns employees own some 1/3 of the company's stock. That number seems striking and a bit surprising, particularly given all of the hoopla surrounding Enron and the fact that its employees held so much of the company's stock when it collapsed. Indeed, I thought one important lesson from Enron, at least for employees, was to diversify. Apparently not. To be sure, there are many good reasons to invest in your company's stock. Then too, a short while ago Bear Stearns did not appear like it was heading for disaster (but then again neither did Enron). Moreover, it is not clear that Bear Stearns employees have not diversified and hence perhaps there are employees who did not have their entire nest egg in the Bear Stearns basket. Unfortunately, it seems more likely that employees have once again found themselves in a situation in which they not only face potential job loss, but also the loss of their retirement.

As I tell my employee benefits law students every semester, the statistics indicate that a remarkable amount of employees believe that their safest retirement investment is their own company, based apparently on some belief that "really" know what's going on where they work.

Workers need to resist this urge and practice fundamental modern portifolo theory with their defined contribution plans and diversify. More than that, advocacy groups, unions, and employers need to do a better job of educating their employees about what can happen when a 401(k) plan is not adequately diversified not only between sectors (financial vs. tech. vs. health), but also across investment types (bonds vs. stock, etc).

Unfortunately, to the extent that Bears Stearns workers have indeed lost their retirement savings, for a lot of them it will not be easy to make up the deficit, even by working through retirement. Expect many lawsuits to follow, including a few ERISA ones.

Posted by Paul Secunda at 02:13 PM | Comments (1) | TrackBack

The Constitutionality of Pre-Employment Drug Testing for Public Employees

As I wrote today on Workplace Prof Blog, Ross Runkel's Employment Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008) (case link in Workplace Prof post), a case discussing the permissibility of drug testing public employee.

Ross summarizes the case:

Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier's favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part - concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.

The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them. The court rejected that argument, reasoning that the United States Supreme Court's decision in Chandler v. Miller, 520 US 305 (1997) "makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited." The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be "special" and not merely "symbolic."

I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees' Fourth Amendment rights to be free from unreasonable search and seizure.

The use of the word "symbolic" in the court's decision brings to mind Justice Scalia's dissent in the Von Raab case concerning federal custom agents. Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee's 4th Amendment rights for symbolic purposes.

The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area. It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.

Posted by Paul Secunda at 12:09 PM | Comments (0) | TrackBack

Does Religious Observance and the Workplace Mix?

[Cross-posted on Workplace Prof Blog]

I argue strongly in a recent paper that it is inappropriate for employers to provide workplace chaplains in the workplace for their employees:

In addition to political speeches, more companies are hiring ministers to serve their workers. Some critics believe that these ministers have another agenda – to convert. Evangelical Christian organizations are offering Christian ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees' religious affiliations are becoming part of the American workplace.

A number of companies have been formed to provide employer-sponsored religious services to employees, including Marketplace Ministries, Corporate Chaplains of America, Workplace Chaplains, and Chaplains at Work. For instance, Marketplace Ministries, Inc., now has 1700 chaplains and makes on-site visits to 300 companies in 38 states. Marketplace Chaplains U.S.A. employed 1,629 chaplains last year.

While the accommodation of voluntary religious observance in the workplace is certainly not objectionable, this growing corporate sponsorship and encouragement of religious observance creates a significant danger of compulsion. The agencies with which employers contract to provide religious services may also have a deeply held mission that may lead them to borrow employers’ authority over employees in order to gain an audience. Although limits exist on the ability of employers to proselytize in the workplace under Title VII and parallel state anti-discrimination law, the relative lack of cases in this area suggest that employees do not yet feel comfortable fighting back against these workplace practices.

A few days ago, CNN.com had an article on the same topic:

Religion, like sex and politics, once was considered inappropriate watercooler talk. Not anymore. Prayer sessions, religious diversity groups and chaplains like Reece, along with rabbis and imams, have become more common across corporate America in the past decade.

Fifty percent of those questioned in a 2002 Gallup poll said religious expression should be tolerated in the work place while another 28 percent thought it should be encouraged. That's compared to 21percent who didn't see a place for religious expression on the job.

I might be in the minority here, but I am as well as far as being part of a minority religion too (Jewish). Perhaps, I see compulsion where others don't, but I think employers should be very circumspect in encouraging religious observance in the workplace and potentially alienating many workers.

Posted by Paul Secunda at 01:02 PM | Comments (2) | TrackBack

Reading Book on Break=Racial Harassment?

[Cross-posted on Workplace Prof Blog]

Here is a remarkable story, highlighted by the Freedom for Individual Rights in Education's (FIRE) The Torch, and brought to my attention by Dennis Nolan (South Carolina):

In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.

Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students' response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.

But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.

A few weeks later, Sampson was notified by Marguerite Watkins of the school's Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room. Once again, he attempted to explain the book's content, but Watkins too had no interest in hearing it. Despite his not being given a chance to defend himself, he subsequently received a letter from Lillian Charleston of the AAO, dated November 25, 2007, informing him that AAO had completed its investigation of the matter. The letter stated,

You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence...you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black coworkers.

It went on to say that according to "the legal 'reasonable person standard,' a majority of adults are aware of and understand how repugnant the KKK is to African-Americans..." As a result of AAO's findings, Sampson was ordered to refrain from reading the book in the immediate presence of his co-workers and to sit apart from them whenever reading it.

To paraphrase EMF: "That's Unbelievable." So wrong on so many level, it reminds me of this blog post from the past. And the issues are not limited to employment discrimination ones, but also raise issues of prior restraint, freedom of speech and expression, the ability of an employer to control the off-duty conduct of an employee, and the allegedly one-sided nature of the investigation. Both Eugene Volokh and David Bernstein have highlighted the dangers that an over-aggressive application of employment discrimination laws poses for First Amendment rights in the public employment context.

Let's hope that wiser heads prevail and this disciplinary action is overturned by those who understand the purpose and policy behind employment discrimination laws.

Posted by Paul Secunda at 04:35 PM | Comments (23) | TrackBack

Labor Law: Not Dead Yet

[modified from a similar, more technical post at Workplace Prof Blog]

"Bring out your dead." Monty Python's Holy Grail

Especially in Labor Law, whose irrelevancy and death its opponents have been preaching for years (shoot Solove doesn't even have a separate post category for Labor Law, had to post this under Employment Law), I've always loved when something I've recently taught in class dovetails nicely into a current event being discussed in the popular press. Case in point: yesterday in Labor Law class, we discussed the duty to bargain in good faith under Section 8(d) of the NLRA and the per se violation of Section 8(a)(5) that occurs when a company says it has a present inability to pay a union's bargaining demand and then refuses to substantiate those claims by giving information to the union. Under Truitt and Detroit Edison, such information is due to the union so it can carry out its role as bargaining representative of employees.

So yesterday after class, my trusty research assistant Brent Klein wrote: "the UAW went on strike at American Axle in an attempt to gain access to company financial documents. The union claims these documents are needed to justify the across the board wage and benefit cuts that American Axle is requiring to move labor contract negotiations forward. The fact that distinguishes this situation from that of the Big Three (which recently negotiated their own contracts and accepted similar cuts) is American Axle turned a $37 million profit last year, a far cry from the 38.7 billion loss suffered by General Motors last year."

Ah, the continuing relevancy of labor law.

Here's the article from The Detroit News.

Posted by Paul Secunda at 11:25 AM | Comments (0) | TrackBack

Pornography and Public Employment: Further Implications of Garcetti

Having just returned from speaking at a great conference hosted by the First Amendment Law Review at UNC on all things Garcetti, it is interesting to see many of the various issues discussed there come to the fore in a recent case, Davis v. McKinney, No. 07-20184 (5th Cir. Feb. 21, 2008), decided by the Fifth Circuit this past Thursday. For the uninitiated, Garcetti v. Ceballos (U.S. 2006) is the watershed public employment free speech case that drastically cut down on public employees First Amendment expression rights while such employees are working pursuant to their official duties.

In Davis, here are the interesting background facts:

Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide Compliance Officer . . . .

[After applying for a promotion, Davis was involved in an audit investigation of physicians' computers.] Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography . . . .

Davis asked Corum [her direct supervisor] to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.

Thereafter, Davis was given mundane tasks and she faced continuing harassment from those employees and supervisors who did not want her to continue with her investigation. She therefore sent an internal complaint letter regarding the "unethical and illegal" activity directed at her and alleged, "that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees." In this same letter, Davis wrote that, "because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices." This last action to go whistle blower would turn out to be crucial.

The UT System eventually decided not to fill the job that Davis sought promotion into and she also claimed retaliation. Davis later quit, alleging that she had been constructively discharged and now suffered from depression.

What makes a case like this so fascinating (at least to employment law geeks like myself) is that without the public employment angle, this would be a fairly (sorry to say), run-of-the-mill Title VII discrimination and retaliation case. But because these events transpired in the public workplace, Davis alleged that her employer violated her First Amendment free speech rights by retaliating against her for speaking out on matters of public concern.

And this is where Garcetti changes everything. Rather than starting with whether what Davis complained about was a private personnel matter or a matter of public concern (which was the threshold question under Connick v. Myers (U.S. 1983), Garcetti now requires at the threshold that it be determined whether the employee was acting pursuant to her professional duties or merely speaking as a citizen. This inquiry is not merely about the job title one has, but what functions one actually carries out. There is also much controversy in these case where the employee is an investigator of some sort and the question is whether she is merely performing her job or going beyond her normal job functions by reporting misconduct by others in the organization (for those of you familiar with SOX whistle blowing cases, all this might ring a bell).

Even if you are lucky enough to get by summary judgment on the liability issues in a public employee case like Davis did (few employees do: in 2007, employees lost 21 out of 26 of these cases on the appellate level and many more on the district level), there are still complicated issues of qualified immunity since this is a civil rights case brought under Section 1983 (at least for state and local employees; federal employees go through an even more arcane and more difficult framework).

In Davis, not only did the appellate court review the very unusual pro-employee findings that the employee spoke as a citizen, not as an employee it making her complaint, but as an interlocutory appeal, also examined the issue of whether the individual defendants should be granted qualified immunity. The standard is whether the officials' conduct was "objectively reasonable in light of clearly established law at the time of the incident."

The problem for public employee plaintiffs here is that nothing under Garcetti is really "clearly established." To the court's credit and as about twelve different speakers agreed at the First Amendment Law Review Symposium this past week, "Garcetti changed this [public employee free speech] analysis in ways not yet fully determined." Nevertheless, the court was able to point to an emerging principle that,

Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job . . . .

If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.

In other words, it appears that the Garcetti question is beginning to turn on whether one is an internal or external whistle blower (which incidentally is how some states define the scope of their own whistle blowing statutes). In any event, under this analysis, Davis was considered an external whistle blower for some of her statements because she also complained to the FBI and the EEOC. But Davis still has a very long road ahead of her if she is ultimately to prevail: on remand, she must be still show she was speaking on matters of public concern, that her First Amendment interests outweighed her employer's efficiency interests (the Pickering balancing test), that her employer would not have made the same decision absent this protected conduct (Mt. Healthy test), and that it was not objectively reasonable for the defendant officials to take the actions they did given what were then the clearly established constitutional rights. Phew! It is amazing any one even bothers to bring this type of complaint.

The lingering question is whether this development in the law of public employee constitutional rights is a good one. I think not. Employees are being given an incentive to air the dirty laundry of their public employers for all to see in order to gain constitutional protection. This makes no sense and is counter to other areas of employment law (see sexual harassment law cases like Faragher) in which employees are required to first exhaust internal procedures with their employer before filing an external complaint. Yet, in the Garcetti situation, there is no exhaustion requirement (the court recognizes in footnote 3 that, "it is not dispositive that a public employee’s statements are made internally."), so one might as well just go directly outside of one's employer to gain additional protection. This state of affairs leads to a waste of judicial resources on unnecessary litigation that might have been nipped in the bud if the employee just simply complained internally.

None of this is surely an enviable position for any plaintiff who is not merely seeking to vindicate a private interest in getting his or her job back, but is also seeking to vindicate a public interest in holding public employers accountable to the citizens they are supposed to be serving.

Hat Tip: Elaine Mittleman

Posted by Paul Secunda at 01:53 PM | Comments (5) | TrackBack

Things That Make You Go Hmmm . . . .

The March Atlantic Monthly has an interesting blurb about increasing wage discrimination against overweight white women, based on a report from the U.S. Bureau of Labor Statistics. Even more interesting than the finding of wage discrimination was the finding that the rate of being overweight and obese in white females has increased from 12.6% in 1981 to 50.4% in 2000. Perhaps I've been living under a rock, but this seems to me a shocking jump, and during a period when my impression was that the U.S. was paying increasing attention to healthy diets and exercise. It's not entirely clear where the primary source found the data on overweight and obese women; the weight gain findings are mentioned only in the context of a dataset that examines the weight of a cohort of women over time through annual and then biennial self-reporting interviews. I can't imagine the report based the weight-gain statistics on this crowd, given that these women are likely to gain weight as they get older and therefore don't strike me as a reliable subset from which to extrapolate to the population as a whole. Any thoughts from statisticians and others on the source and reliability of these data?

Posted by Jaya Ramji-Nogales at 01:05 PM | Comments (1) | TrackBack

Justice Redux: The Impact of the Same Justice Writing on the Same Issue Years Later

Today, a very important ERISA remedies case was handed down by the Supreme Court in LaRue v. DeWolff, Boberg, and Assocs. The Court held, "that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account." Or in other words, an employee 401(k) account holder can now sue their employer/plan administrator for breaches of fiduciary duty which cause a loss to their account.

NOW WAIT! Before you stop reading, I promise this post is not about ERISA (God Forbid).

Instead, I want to get readers' insights on a point I made today in my post on Workplace Prof (there is no such thing as blogging too much, you Doubting Thomases) entitled: "Reflections on LaRue":

Justice Stevens was the perfect person to write the majority opinion (joined by Souter, Breyer, Ginsburg, and Alito) because twenty-three years earlier he wrote the decision in the Russell case, which found that consequential damages were not permitted under a Section 502(a)(2) breach of fiduciary duty claim. His understanding that Russell applied to the the meaning of a plan loss in the defined benefit plan context as opposed to the defined contribution plan (401(k)) context of this case, carries considerable weight in trying to decide the relationship between LaRue and Russell. In fact, and this is rank speculation on my part, I wonder if Alito joined the progressives because he was particularly swayed by the meaning of that case given to it by its original author.

Now, I understand that most of you do not understand the underlying ERISA-speak going on in that passage. Fair enough. But what about the thought that an otherwise reluctant Justice (in my example, Alito) will join an opinion because he is particularly swayed that a previous precedent does not apply because the same Justice (in this case, Stevens) wrote on the issue today and many years ago (in this case, 23 years ago) and says the cases are distinguishable?

I can think of similar situations in other areas of labor and employment law (including in the federal employment Bivens context in Bush v. Lucas with Justice Brennan's views on that issue). Does this phenomenon exist in other areas of the law? Examples or counter-examples (or as my colleague, Chris Green, talked about during his philosophy lecture yesterday on "Epistemic Parity of Testimony and Perception," dis-analogies)?

And to your understanding, does the twice-writing Justice gain additional authority for his or her views on the opinion because he or she has written persuasively on the opinion before? I also might point out that in LaRue, Alito might have been willing to follow Stevens because Stevens was joined by Rehnquist, Burger, O'Connor, and Powell in his previous opinion in Russell.

What say you fellow law professors with way too much time on your hands?

Posted by Paul Secunda at 03:58 PM | Comments (3) | TrackBack

The Distressing State of Muslim Employment Discrimination in the United States

Cross-posted on Workplace Prof Blog:

These numbers from a recent article by Adam Liptak in the New York Times could be construed to suggest that Muslims in the United States are being targeted by workplace discrimination, harassment, and retaliation, but are not gaining sympathy from the courts in the current political environment:

The decisions Mr. Breinholt collected do provide a snapshot of public and judicial attitudes. Beyond the terrorism cases, two trends are clear: the number of civil cases brought by Muslim plaintiffs is growing fast, and the plaintiffs almost always lose.

There were, for instance, 69 employment discrimination decisions involving Muslim plaintiffs in 2007. Only one involved a victory, if you can call it that.

Abdul W. Azimi, a meat slicer in Portland, Me., sued his employer, Jordan Meats, for what an appeals court called “myriad and outrageous” mistreatment. Mr. Azimi found pieces of pork in his jacket, a picture of Osama bin Laden in his locker and his shoes in the toilet. A Maine jury ruled in his favor but awarded him no damages, leaving him with only a judicial declaration that his employer had violated the law.

Clearly, Muslim plaintiffs should have the same equal justice under the law as any other American citizen. Although there are many frivolous employment discrimination claims filed in any given year (my own practice experience on the management-side attests to this), these numbers are well beyond what one would expect in a random sampling of employment discrimination cases and point to a troubling trend.

Hat Tip: Jack Sargent

PS

Posted by Paul Secunda at 03:15 PM | Comments (2) | TrackBack

The WGA and Web 2.0

Check out this analysis of the new Directors Guild Agreement by Jonathan Tasini of Working Life. Tasini argues (contrary to my understanding of the conventional wisdom) that the fight in the ongoing writers guild strike isn't about residuals for online downloads but rather the jurisdictional scope of the union itself in a world where content is produced socially:

The DGA only gets jurisdiction over product currently under contract. That means that all non-union work--such as reality shows--will remain outside the new media jurisdiction.

And any work done under those thresholds will not be covered. The industry is precisely moving to a lower-cost structure--doesn't that sound familiar? It's the "kid-in-the-garage" problem--content coming from everywhere and everyone. As I described it in a panel discussion I just spoke at this week, it's similar to the off-shoring of work in manufacturing. You have the world of the WGA, where the standards are decent, with wages, health care and pensions. And, then, you have Big Mediastan--that would be the world where there is no union, where there are no residuals, no pensions, no health care. The above provision agreed to by the DGA seems--seems--to allow the growth of Big Mediastan. As an aside: it is one reason I believe that a critical component of the WGA's future--and that of the Screen Actors Guild--is to focus intensely on organizing the young kids today who are cranking out material using IMovie and other software. The unions have to get those younger--and older people--who are now producing content into the union now so that they don't become this mass of unorganized, low-wage labor that has no connection to the labor movement.

If the WGA agreed to those terms, it would basically be giving up on an important issue: union jurisdiction.

Fair enough: but if the strike is about monopolizing content production, the writers have a significantly tougher political fight on their hands than one would think from watching videos like this.

Posted by Dave Hoffman at 03:18 PM | Comments (0) | TrackBack

Don’t Drink and Drive, How About Don’t Party, Photograph, and Post?

It’s New Year’s Eve. Time to eat, drink, and be merry. Time to wear the lampshade. Time to let the past go and look to future. And time to capture time in a picture. And that’s the problem. I have heard stories of weddings threatened and sometimes derailed by indiscreet bachelor or bachelorette party pictures. In those cases the old school photograph was developed and then someone saw the pictures and had to tell her girlfriend or buddy about what they saw. Now, however, people post and share their fun online. The number of stories about how a beauty queen was dethroned or a star’s career was halted from indiscreet pictures require little more than a nod here. But as the New York Times notes sometimes perfectly legal and normal behaviors can cause problems when captured in a picture and posted online. So where is the line between professional life and personal life?

In the specific case a woman in a student teacher program had attended a costume party. She posted a picture from the party to her MySpace page in which the woman:

with a pirate’s hat perched atop her head, sips from a large plastic cup whose contents cannot be seen. When posting the photo, she fatefully captioned her self-portrait “drunken pirate,” though whether she was serious can’t be determined by looking at the photo.

The school of course claims that the woman was not meeting her program’s requirements but admitted that the picture was found just before the dismissal. In addition, “The university backed the school authorities’ contentions that her posting was ‘unprofessional’ and might ‘promote under-age drinking.’ It also cited a passage in the teacher’s handbook that said staff members are 'to be well-groomed and appropriately dressed.'” Right.

With the ability to document almost anything as not meeting some bureaucratic ideal of doing one’s job, employers will always be able to trump up a claim that the firing was based on poor performance. But to claim at the same time that the behavior promotes underage drinking and one must be well groomed at a costume party suggests grasping at straws. If the article is accurate about the arguments, no one should accept the idea that an adult has to hide being an adult from students. This situation is not a teacher telling students “I was so wasted on Saturday.” As for the grooming issue, one has to admire an attorney who can argue to the court that what one wears at a COSTUME PARTY somehow relates to grooming and professional standards.

Of course one should realize that how one behaves in social situations can affect professional life. But allowing employers to micromanage the off hours of employees must stop. As the article notes the problem is that most employment is at-will. As such it would seem that anything is fair game for dismissal. Yet that sort of formalism cannot be correct. At-will must be understood as related to employment situations. Otherwise, those who fear big government will miss the real threat to individual liberty which is big (or small) employer.

Until then, however, stop wearing those comfortable sweats or torn jeans at home. They are poor fashion, reflect poorly on everything which you are associated, and the work standards committee disapproves.

Posted by Deven Desai at 02:23 PM | Comments (4) | TrackBack

What's Wrong With A Company Paying for a CEO's Family to Fly?

Michelle Leder, of Footnoted, was on NPR's Marketplace yesterday. The story: the worst examples of agency-costs in footnotes in SEC filings in 2007. (She doesn't sell it that way, but that's what it is.)

Bloggers have highlighted a few of Michelle's "best" finds, including Edward Mueller's agreement, as CEO of Quest, to permit his family members to use the company plane to travel back and forth to California (where his family was based) to Denver (where Qwest is headquartered.) Although the story was hyped as permitting Mueller's daughter to commute daily to school -- something of a modern-day Leonard v. Pepsico, there is no evidence that the family plans to fly back and forth in this way.

But who cares anyway? Increasing numbers of high-level executives work far away from home, commuting to headquarters for parts of the week. (The consultants' four day week, but permanently.) Encouraging them to do so maximizes shareholder wealth because it (presumably) allows recruitment of talent that wants to live elsewhere. Now the problem with these schemes is that it is taxing for the executive and her/his home life to be separated from the family. As Professor Joan Heminway explains here, personal turmoil in a CEO's life can have materially adverse consequences for shareholder value, and well-run companies probably ought to do everything they can to make executives personally happy.

So why not pay for a family to commute back to California, to enable a family member to finish her last year of high school surrounded by friends, while coming "home" to Denver when possible? If that makes Mueller happy, and reduces the chance that he would live in California and commute to Denver, Qwest's shareholders win. If the argument is simply that the CEO should pay for this travel out of his own pocket, the flight costs will be imputed as income to him under the agreement, so the economics are basically the same. Given disclosure, these kinds of perks should be seen simply as salary-substitutes, at worst, and as ways to reduce the chance of disruption by increasing the CEO's chance of having a normal family life.

Dailykos (which originally brought the story to my attention) had this to say:

And as this president likes to remind us, this is the ownership society, so don't be surprised to learn that some of your retirement funds are going to fuel up that jet so an execu-kid can zip off to the prom.

But this is plainly silly. Would we prefer that Qwest simply paid Mueller more money? Or not disclosed the behavior?

Posted by Dave Hoffman at 06:56 PM | Comments (3) | TrackBack

It's Time to End the Writers' Strike

When I posted about The Daily Show writers' strike video nearly a month ago, one commenter said that he was "seriously jonesing for the Daily Show." By now, he must be having cold sweats. What I find most interesting about the radio silence of The Daily Show (and of late night talk shows) is that many people depend on these shows to keep up with current events. Consider Thomas Friedman's column yesterday that was presented as though it were written by the Iranian Ministry of Intelligence. Here's an excerpt:

For instance, CNN’s nightly business report is hosted by a man named “Dobbs.” Real journalists come on his show and present transparently propagandistic stories about immigration and trade and then he fulminates about them, much the way our ayatollahs used to do about “Satanic Americans” on late-night Iranian TV. So viewers have no real idea what’s happening in the U.S. economy.

Meanwhile, at 11 p.m., something called “The Daily Show,” which appears on Comedy Central, has fake journalists presenting what turns out to be the real news.

(Of course, the irony here is that Friedman himself is adopting the fake news format to make a real news point.) I don't watch enough Lou Dobbs to comment, but I do watch enough of "The Daily Show" to know that the writers' strike must be having political ramifications. Some politicians are getting a free pass that they wouldn't get with Stewart and Colbert on the air. It's time to end the writers' strike. Or the terrorists win.

It looks like there's some progress in labor talks, so stay tuned. And, now, here it is, your moment of zen.

Posted by Adam Kolber at 07:34 AM | Comments (0) | TrackBack

Accommodating Breastfeeding Mothers

Before my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?

Over at slate.com, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.

Here are the facts, which lacked clarity in many media reports. Currier was scheduled to take a 370-question multiple choice test. The test is taken on a computer and questions are distributed in eight one-hour blocks; once the block ends, a student cannot revisit that portion of the test. Students have forty-five minutes of break time; they can allocate it between the blocks in any manner they choose. No food or drink is allowed in the testing room. Because Currier has learning disabilities, the NBME granted her double time and a separate test-taking room. Currier’s testing would thus take place over two days, with forty-five minutes of break time each day.

Currier, whose daughter was born on May 1, 2007, asked for an additional sixty minutes of break time each day for the purpose of pumping millk. The NBME refused this request and offered the following accommodations:

* permission to express milk in a private room at the testing center during the allotted break time;

* permission to bring food and drink into the testing room;

* permission to pump milk while in her separate testing room;

* the option to leave the test center to breastfeed during the allotted time.

The first two accommodations are worthwhile because they go to the heart of Currier’s problem; that is, they help ensure that Currier will have adequate time to pump, eat, and go to the bathroom during the course of the day. The second two are notable only for their utter worthlessness. Leaving the testing center would only increase Currier’s time crunch. Her separate testing room is video-monitored and has at least three glass walls, so enough said about the suggestion that she pump there! The NBME’s other proposed solution—that Currier delay testing until she no longer needs to pump milk—suggests that the licensing board is several decades behind the times.

But why weren’t the first two accommodations good enough? At the risk of sounding like Donald Rumsfield standing at his desk, what’s the big deal?

Currier said that she should pump at least once every three hours in order to avoid reduced milk supply, engorgement, blocked milk ducts, breast infection, and other horribles. Her expert’s affidavit stated that each pumping session would take about thirty minutes: five minutes to assemble the pump, 10 – 15 minutes to express milk, and five to 10 minutes to disassemble and clean the pump and to store the milk. On this record, Currier does need more than 45 minutes of break time over the course of an eight hour test.

But of course this record strains credulity for anyone familiar with pumping milk. When time matters, women preassemble most of the pump in advance and bring extra preassembled parts if they will pump more than once. “Storing” milk consists of placing it next to an ice pack already in the pump. All the mechanics take just a few minutes.

The number that really matters is how long it takes to express milk. But at 10 to 15 minutes (the numbers provided by Currier's expert), she should have time to pump twice and still attend to other physiological needs, particularly since she can eat and drink in the testing room. And if she did have to pump less than the ideal, the most likely worst case scenario is that Currier would be a bit uncomfortable by the end of the day. Indeed, Currier’s victory is partially the fault of the NBME’s lawyers, as the appeals court specifically notes that on the state of the record, it was undisputed that Currier “would suffer physical pain from breast engorgement if she is not permitted additional time.”

What concerns me is that this case sends the message that accommodating breastfeeding mothers is difficult. It’s not. All women need is privacy to pump and the break time that many employees are already afforded during the course of an average day. But employers will understandably protest policies requiring accommodation if they believe that breastfeeding employees require one additional hour on top of what they usually receive.

While Lithwick is right that many commentators remained silent about this case, my own (admittedly unscientific) survey showed quite a bit of web chatter. Most comments were decidedly unsympathetic toward Currier. Indeed, I’ve declined to link to any posting beside Lithwick’s because some of the comments are so impolite. Undoubtedly some of the chatter has been influenced by the facts that Currier was already receiving accommodation for learning disabilities, and that she had failed the exam once before.

As academics have painstakingly documented, there is much that policymakers could do to help women balance families and careers. My fear is that Currier will end up as a poster child for those who oppose these efforts.

Posted by Sarah Waldeck at 03:49 PM | Comments (1) | TrackBack

Bye, Bye T.V. and Movies, Hello Strike

For those who don’t know, the Writer’s Guild of America (WGA) is poised to go on strike. The deadline was midnight on Halloween. Reality T.V. shows will again overrun the airwaves and films that might have gone straight to video will have a better chance to be in a theater. The labor law here may become interesting. The WGA has indicated that any member must “submit to the WGA all unproduced material that's been written for struck companies, plus the status of each project.” The studios are taking the position that the writer contracts negate the labor contracts. As Variety reports Universal’s letter states:

"Pursuant to the agreement between you and Universal, you may not provide or discuss with the WGA any information concerning scripts owned by Universal, including the status of such scripts, the identity of the author thereof, whether or not a rewrite or other writing services are being performed and, if so, by whom, nor supply copies of any such scripts (including spec or sample scripts) to the WGA," Universal's letter read. "The supplying of such information would be considered an unauthorized disclosure of Universal's confidential information, and the supplying of scripts would be considered a misappropriation of corporate property," the letter continued.

So there it is. I am not sure how labor law interacts with this position. Nonetheless, the language is familiar. The studios claim that writing is property. They own the property and that allows them to control everything related to it. In addition, the confidential information aspect of the claim gives studios another way to claim that the strike interferes with a valuable asset. As the article notes several possible claims could be brought including, “inducement of breach of contract, interference with prospective economic advantage, misappropriation, conversion and unfair competition.” The WGA argues that the rules are part of enforcing its labor rights and so that it can have information to determine whether “strike-breaking or scab writing” claims have merit. In fact similar rules were in place in 1988 as part of a previous strike.

If labor lawyers have perspectives on this issue, I would love to know what they are. It seems to me that the public policy behind labor law would allow the guild to ask it members to provide this information. Still given the recent practice of the entertainment industry when it perceives something to be property, this strike could turn into another round in the property rights fights.

(Image source: Wikicommons)
Cross-posted at Madisonian.

Posted by Deven Desai at 01:30 AM | Comments (5) | TrackBack

Will Bill Belichick Really Pay a $500,000 Fine?

The NFL has annouced its verdict in the New England Patriots taping scandal: Coach Bill Belichick is being fined $500,000 and the Patriots $200,000 plus one or two draft picks. Here's my question: is Bill worried about bouncing tomorrow's rent check? Notably, if he were a corporate CEO, the answer would almost certainly be not: he wouldn't pay a dime out of his own pocket.

Under ordinary agency principles, the fine would seem to be for conduct within the scope of employment and therefore subject to indemnification as a matter of right. (The conduct isn't illegal, just prohibited by a very vague league rule.) Thus, the default should be that Belichick will get reimbursed by the Pats. But something is wrong with this analysis, as the actual, distinctly administered, fine would otherwise be quite deceptive.* So we've got to assume that Belichick's contract contains a clause saying something like: "All league fines are your responsibility, and you agree not to seek indemnification against us."

If that is true, then the question becomes: can NFL coaches buy insurance against potential losses like this? On one view of the behavior, the answer is no, because you generally can't insure against acts in your control. But maybe Belichick didn't personally order this behavior, he just permitted it - he's negligent. If that were so, he certainly could have puchased some kind of policy that would have reimbursed him. Whether he did or not is of course unknown, though given his reputation for strategic genius, I wouldn't be terribly surprised.

(Image Source: Wikicommons)
*I'm assuming that the NFL isn't so cynical as to think that a separate fine might quiet the public uproar even if it really is just a $700,000 tax on the organization.

Posted by Dave Hoffman at 11:04 PM | Comments (2) | TrackBack