The Employment Law Decisions of Supreme Court Nominee Elena Kegan

President Obama's nomination of Elena Kegan to the Supreme Court is the fourth since Jottings was started in the summer of 2002.

In the past I have published links to the employment and labor law decisions of the nominees. See,

First Obama Supreme Court Nominee - Sonia Sotomayor

Now on First - Samuel Alito -- Let the Feeding Frenzy Begin

A More Complete List of Judge John Roberts' Labor and Employment Related Decisions

And now for soon to be Justice Kegan:


Yep, that's it, zero -- nada -- nothing.

For the first time since President Nixon nominated Lewis Powell and William Rehnquist on the same day, President Obama has nominated for the Court an individual who has not previously served as a judge. Of the two, Kegan's background is much more similar to Rehnquist than Powell. Powell had been in private practice as a corporate lawyer. Rehnquist had been a government lawyer for the bulk of his career.

Kegan has been a government lawyer but also an academic, serving in her last stint as Dean of the Harvard law school.

In any event, her first Supreme Court opinion on a labor and employment law matter will be her first judicial opinion on a labor and employment lawyer.

A non-judge has been desired by many, me included,  although I would have actually preferred someone with more extensive private sector experience.   Since confirmation seems to be likely, barring something unforeseen, it is likely that we will have an opportunity to see if that was a good or bad thing.

Compliance Plans -- Showing How You Are Not Breaking the Law

Seth Harris, the number two person in the Department of Labor, has announced the intention of the DOL to require employers to adopt compliance plans "aimed at ensuring they do not violate wage, job safety and equal employment laws," according to Steve Greenhouse's report in yesterday's New York Times, U.S. Outlines Plan to Curb Violations of Labor Law.

This will be in the form of regulations, which the article notes will be more than a year long process. Additionally, many of the ideas are still being "worked out" but the one concrete example is an interesting one, the use of independent contractors. According to the article, Harris forsees the rules requiring an employer who uses independent contractors, to provide a written explanation of why they should be considered independent contractors rather than employees and give these workers a copy.

Obviously, the battle lines are being drawn. This announcement does nothing but re-enforce my view that just like a river, when one area of advance is blocked, the river does not go away, it just moves in a different direction. Without the ability to pass legislation, it seems ever more clear the new focus of the Obama administration in labor and employment will be on the regulatory front.

No Class Arbitration Under the FAA Unless Specifically Agreed, At Least for Now

Today the Supreme Court decided a case important in the employment law field although the underlying case was a commercial dispute. The question in Stolt-Nielsen v. AnimalFeeds International (S.Ct. 4.27.10) [pdf] was whether under the Federal Arbitration Act, arbitrators could decide that class action was appropriate if the arbitration agreement was silent on that issue. Holding that the answer was no, Justice Alito wrote:

From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.

The vote was the now familiar one with Justice Alito being joined by C.J. Roberts and Justices Scalia, Kennedy and Thomas. Justice Sotomayor did not participate and Justice Ginzberg wrote the dissent. In an argument that too has become familiar, she argued that the Court was prematurely answering the question.

This is extremely good news for all the employers who have arbitration agreements which are silent on class action.

However, just like the members of the majority, the members of the dissent, and even the argument for the dissent, we all know what comes next -- the cry for Congressional reversal.

Hopefully I will be wrong, as class arbitration is something that should be undertaken only after a long and careful study. In fact, class actions may be in for such a look in the Duke v. Wal-Mart decision which ultimately has to end up on the Supreme Court's plate.

The possible pyrrhic nature of today's victory for employers could come if it sparks greater interest in passage of the Arbitration Fairness Act, which would in its present form solve the question of employment law class action cases in arbitration by doing away with arbitration in such matters altogether.

Round 2 in Dukes v. Wal-Mart to Plaintiffs

Today, in a 6-5 decision the 9th Circuit has affirmed the lower court's certification of a 1.5 million person class in a Title VII sex discrimination claim again Wal-Mart. See the article at Yahoo Finance, Court: Wal-Mart to face massive class action suit.

The decision itself checks in at 137 pages, which includes what the Yahoo Finance article calls a "blistering dissent." I have not read it yet, but I will hopefully get around to it before Round 3, which could be when the application for certiorari is filed, although there may be some more interim skirmishing in the 9th Circuit.

POWER To The People and Unintended Consequences

Immigration is a political hot button, which may be one of the greatest understatements of the year. It is certainly an issue on which people disagree, unfortunately, often disagreeably.

I certainly don't want to add to that unhelpful dialogue, but I have to admit my first reaction on reading the substance of the POWER Act (Protect Our Workers from Exploitation and Retaliation Act) was to quickly jump to what I forsee as unintended consequences.  The bill was introduced by Senator Menendez (D - NJ) and at this point has only three co-sponsors, Senators Gillibrand (D-NY), Murray (D-Wash), and Harkin (D-Iowa).

In short, the bill would prevent the deportation of individuals during the pendency of certain proceedings. One is criminal prosecutions where the individual is important to the prosecution. I can see how that could help overall crime enforcement and since the initiating action, a crime, is by some one other than the person tryng to avoid being deported, not that easy to abuse.

The other type of proceeding hower is serious labor violations. Under that section, an individual could avoid deportation if the individual:

(2)(A) has filed, or is a material witness to, a bona fide workplace claim (as defined in section 274A(e)(10)(B)(iii)(II) of such Act, as added by section 3(b)); and

(B) has been helpful, is being helpful, or is likely to be helpful to--

(i) a Federal, State, or local law enforcement official;

(ii) a Federal, State, or local prosecutor;

(iii) a Federal, State, or local judge;

(iv) the Department of Homeland Security;

(v) the Equal Employment Opportunity Commission;

(vi) the Department of Labor;

(vii) the National Labor Relations Board; or

(viii) other Federal, State, or local authorities investigating, prosecuting, or seeking civil remedies related to the workplace claim.

A summary of key provisions by the National Immigration Law Council makes it seem that protection from deportation would extend to a civil claim:

Stay of removal and employment authorization. Workers who have filed workplace claims or who are material witnesses in a workplace claim may receive a stay of removal and employment authorization until the workplace claim is resolved. This would allow workers to more effectively claim their labor rights and would allow the U.S. Department of Labor (DOL) to effectively prosecute employers who break the law.

It is not clear whether the suit has to be prosecuted by the government or if protection is extended to a suit where the individual employee is the plaintiff.

Although there is a provision that filing a claim just to avoid deportation will not be allowed, it does not take a genius to figure out that this statute will lead to a lot more suits and that "protection" against suits filed for that purpose is feeble to non-existent.

One of the aims of the legislation is certainly laudable, to provide a counter-balance to those unscrupulous employers who hire illegal aliens, take advantage of them and use either actual immigration enforcement or the threat of it to insulate them from liability for their wrong doing.

I won't argue with that aim, but on first blush, I have to believe there is a better solution.

Hat tip to Prof Marcia McCormick at Workplace Prof Blog,  Bill to Protect Non-Citizen Workers.

The Future of Unions: A Key Question

BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read. See, As Retirement Nears, SEIU's Stern Says Shift in Work Processes Top Issue Facing Unions.

The money quote for me:

Are there different ways workers can be successful in the 21st century in addition to unions or a different role for unions in the 21st century?

Regardless of how you feel about him, Stern has to be viewed as one of the more innovative leaders of the union movement, certainly in my career (and this week end is my 35th year law school reunion).

Although my practice has been much more oriented to employment than labor law, as an interested and somewhat better informed observer than many, that sentence says succinctly what I have thought about unions for a long time.

I believe unions have not adapted to the changing world as fast as needed. In what is a gross over-simplification, unions are operating on a blue collar model in what has increasingly become a white collar workplace; a world where a career is marked by multiple jobs and even free lance type assignments from multiple companies, not one job with one company for your working life.

One could quibble and suggest that by assuming, not questioning, that there is a continuing role for unions that Stern may not be really getting to the ultimate core of the issue. That could well be merely semantics and saying it that bluntly could hardly be expected of someone who has spent his life in the organized labor movement.

Stern hopes to find a spot at a university or other organization to think about things that he didn't have time to do as he was meeting the daily duties of running a large organization.

It will be interesting to see what thoughts and/or actions emanate from Stern's reflections. The common wisdom would be that whatever it is, it will be strenuously opposed by the business community. But his underlying point is a good one:

 If you want to have a middle class in America there has to be some way for workers to share in the gains, not just share in the pain.

While it might well be that I would disagree with the conclusions that Stern, and whatever group he gathers arounds him, reaches, I am glad to see someone with his experience embarking on the journey.

He has posed the right question.  I wish him well.

First Employment Law Test for Justice Steven's Replacement: Figuring Out the Cat's Paw

Assuming that notwithstanding the current posturing, come the first October in 2010 there is a replacement for Justice Stevens, one of their first tests may be helping to define the parameters of the Cat's Paw theory in discrimination cases. An issue that has been lurking around the Supreme Court agenda for awhile. See my earlier post, 5th Circuit Panel Looks At Cat's Paw Theory .

As is almost always the case, the first to bring it to my attention is Ross Runkel at his LawMemo Employment Law Blog, SCOTUS will review "cat's paw" case. The issue in the 7th Circuit case of Staub v. Proctor Hospital(3/25/09):

In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

A couple of quick points. The underlying cause of action is USERRA which is not a statute that often comes under Supreme Court review. Since the Cat's Paw theory is more general in nature, I don't think that means we will necessarily get much insight into how the Supreme Court views USERRA. However, given the group that it protects, one would expect most courts to give it as pro-employee favorable view as any statute.
And one of the frequently mentioned candidates for the Supreme Court position is Judge Diane Wood of the 7th Circuit. She was not on the panel that decided Staub. It would be somewhat ironic if she were appointed and one of her first employment law cases as a Supreme Court Justice was reviewing the handiwork of her generally more conservative former peers.