- “Labor law in America has reached the absurd point where the NLRB is taking the position that a company can’t tell its employees to have a positive attitude” [Ira Stoll on Trader Joe’s controversy, following on T-Mobile case last April, earlier on predecessor 2014 decision in Hills and Dales General Hospital]
- Judge Janice Rogers Brown, writing for D.C. Circuit, rips NLRB for “abusive tactics and extremism.” orders it to pay employer’s attorney fees [Jon Hyman, David Leishman and Seth Borden, McGuire Woods Labor Relations Today (citing Board’s “nonacquiescence” policy), opinion in Heartland Plymouth Court MI, LLC v. NLRB]
- Quoting John Ross’s Short Circuit: Illinois telephone company “may not have violated the rights of striking worker (who allegedly followed a non-striker onto the highway, cut him off, slowed down, and did not allow him to pass) by firing her, says the D.C. Circuit. Concurring in her own opinion, Judge Millett reprimands the NLRB for long countenancing strikers’ sexually and racially demeaning behavior.” More on Millett’s concurrence in Consolidated Communications v. NLRB: Jon Hyman, and more on the case itself from the U.S. Chamber;
- Also quoting Short Circuit: “After discussions with NLRB, Norwood, Mass. car dealership revises employee handbook. NLRB: The new dress code, which prohibits some employees from wearing ‘pins, insignias, or other message clothing,’ still restricts labor rights. First Circuit: Just so. Dissent: Pity employers who want their employees to look nice. “[T]he Board and the courts have lured businesses into a legal bog.'”
- Congress hasn’t passed ENDA. Will courts approve EEOC’s scheme of cobbling it together virtually from other legal materials? [ABA Journal, Will Baude and more, Eugene Volokh on Seventh Circuit argument]
- California agricultural-labor law creates a right to trespass for union organizers. Help, Ninth Circuit! [Ilya Shapiro and Frank Garrison]
At last month’s Federalist Society National Lawyers Convention, Eugene Volokh debated Deborah Rhode on whether hostile environment law on and off campus often violates the First Amendment. The discussion also got onto Model Rule 8.4 (g), adopted by the American Bar Association a few months ago, which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Can bar disciplinary committees be trusted not to apply this language to politically incorrect expression by lawyers, including in pedagogical settings such as law school and continuing legal education (CLE)? [Josh Blackman, Francis Pileggi]
After students at the University of Wisconsin-Platteville used Facebook to post pictures of themselves in Hallowe’en “Three Blind Mice” costumes, a member of the school’s “Bias Incident Team” turned them in herself to the team, which decided that there was a risk the costume idea “makes fun of a disability.” The pictures have been taken down. “The University of Washington produced a six-minute video last year decrying ‘cultural appropriation’ around Halloween. Off-limits costumes included hula skirts, [straitjackets], sombreros, fake mustaches and martial-arts attire.” [Jillian Kay Melchior, Heat Street] No mention of possible offense to the tail-amputee community. More on bias response teams here.
“Wearing a Gadsden Flag hat to work could be considered racial harassment, according to the Equal Employment Commission, the government body that oversees ‘hostile work environment’ harassment claims.” The EEOC acknowledged that the historical origin of the rattlesnake flag was unrelated to racial matters. The case involved a federal worker, but the EEOC’s jurisdiction extends to the private sector and the principles it expounds are generally applicable there as well. [Andrew Stiles/Heat Street, Eugene Volokh; compare Snopes (alarm premature, EEOC still early in process) and Noah Feldman, Bloomberg View (yes, worth investigating as possible harassment)]
Public service posters on the D.C. Metro proclaim the slogan “If it’s unwanted, it’s harassment,” which must have sounded good to someone but is entirely wrong as a legal matter [David Post]
After the Feminist Majority Foundation promoted a Title IX complaint against the University of Mary Washington, primarily based on the public Virginia university’s failure to crack down harder on student use of the independent Yik Yak social media gossip platform, UMW President Richard Hurley in June wrote an unapologetic letter crisply refuting many of the group’s contentions. What do you think happened next? Sponsors amended their complaint to allege that Hurley’s letter itself constituted unlawful retaliation against persons invoking Title IX protection. “The [U.S. Department of Education’s] Office for Civil Rights announced its intent to investigate the university this month.” And now a group of 72 women’s and civil rights organizations, including the respectable American Association of University Women and Leadership Conference for Civil Rights, have “announced a campaign to enlist the federal government in pressuring colleges to protect students from harassment via anonymous social-media applications like Yik Yak.” [Eugene Volokh; Hans Bader; Chronicle of Higher Education; Fredericksburg, Va. Free Lance-Star (Hurley letter)] One thing’s for sure, someone is retaliating against something.
More: Eugene Volokh is out with a don’t-miss followup post analyzing the FMF complaints in much more depth, and noting that Hurley is being charged with retaliation for “engaging in normal public debate”:
Readers might recall the recent attempt to use Title IX to shut down critical speech as retaliation, in the Northwestern University / Prof. Laura Kipnis controversy…. This complaint is yet another such attempt.
The Feminist Majority Foundation, though a publisher of a magazine [Ms.], doesn’t seem to care much about the First Amendment rights of students, or of accused university officials. Its complaint goes far beyond constitutionally unprotected and rightly punishable speech, such as true threats of violence.
Instead, it faults the university for not stopping criticism of feminist arguments and feminist arguers, whether vulgar criticism or other criticism. It faults the university for speaking out, without vulgarities or epithets, in its own defense. And the premise of the complaint thus seems to be that one side of a debate has the right to speak — to condemn and to accuse — but the federal government should step in to stop the other side from responding.
- University of California deems it “microaggressions” to say these things. How many have you said today? [Eugene Volokh; related from Hans Bader on federal government’s role]
- Regarding those conniptions among some University of Wisconsin faculty: “Despite what you’ve heard, tenure is unchanged.” [Christian Schneider, Milwaukee Journal Sentinel, via Ann Althouse]
- Indiana school board president: black market for sugar, salt observed in our schools after federal lunch mandate [Washington Free Beacon, B.K. Marcus/FEE via @farmerhayek (comparison to prisoner of war economy)]
- “Amherst’s version of Kafka’s ‘The Trial'” [KC Johnson, Minding the Campus] Problems with Washington Post journalism on campus assault [KC Johnson and Stuart Taylor, Jr., Weekly Standard; Ashe Schow, D.C. Examiner]
- Judge rules against NYC teacher competence test that showed disparate impact against minorities [New York Times; Blake Neff, Daily Caller]
- Update: “Jury Rejects Unsuccessful Conservative Faculty Candidate’s Discrimination Suit Against Univ. of Iowa Law School” [Caron/TaxProf, earlier here, etc.]
- Ethics regs forbid researchers to exercise “undue influence” over survey subjects’ decision to answer their questions, and applications of that concept can be surprising [Nicholas Christakis on Berkeley instance via Zachary Schrag, IRB Blog]
- Lawprofs vs. speech: new book by Prof. Danielle Citron (U. of Maryland) urges stepped-up legal penalties for online expression as “harassment” [“Hate Crimes in Cyberspace,” Harvard University Press]
- European high court’s Google-unindexing folly: “The truth is, you’ve never had the ‘right to be forgotten'” [Jack Shafer; example, WSJ]
- Feds’ National Science Foundation spending nearly $1 million to create online database monitoring “suspicious memes”, “false and misleading ideas” on Twitter [Free Beacon]
- Flap over fantasy-art DMCA takedown demand seems to be over, but we can still enjoy Ken’s take [Popehat] More Popehat highlights: 7th Circuit affirms sanctions vs. Team Prenda of copyright troll fame; multi-level marketer threatens blogger; controversial doctor resorts “to threats and legal analysis that are at least as innovative as his cancer theories“; “In 2014, minimal legal competence requires an attorney to anticipate and understand the Streisand Effect“;
- When occupational licensure laws stifle speech [Dana Berliner (IJ), NYT Room for Debate]
- Inside a deposition in the Shirley Sherrod defamation lawsuit [J. Christian Adams, earlier here, etc.] Write if you dare about Michael Mann, just hope he doesn’t sue you over it [Trevor Burrus, earlier here, etc.]
- U.S. Civil Rights Commission member Michael Yaki argues for campus speech codes [Hans Bader, Eugene Volokh] Per EEOC: “Illegal ‘hostile work environment’ harassment for co-workers to wear Confederate flag T-shirts” [Volokh; also]
- “The tie that binds public employee unions and Wall Street” [Daniel DiSalvo] “Unions Manipulate New York City’s Public Pension Funds To Punish Their Enemies” [NYT via Jim Epstein, Reason]
- Illinois latest state to pass “ban the box” law restricting employers’ inquiries on criminal records [Workplace Prof]
- Two ex-football pros file suit claiming union conspired with owners on concussions [Bloomberg]
- Average Illinois public retiree’s pension rapidly narrowing gap with average salary of worker still on job [Jake Griffin Daily Herald via Reboot Illinois] By 2006, 1,600 California prison guards were making $110K+, plus more on tendency of state/local government pay to outrun private [Lee Ohanian via Tyler Cowen]
- Great moments in employment law: Seventh Circuit says other employees’ having sex on complainant’s desk not hostile work environment when not targeted at gender [Eric B. Meyer]
- Next step signaled in SEIU fast food protest campaign: unlawful property occupations [AP, Chicago Tribune, arrests in May]
- Trial lawyer win: Obama federal-contractor fiat will forbid pre-dispute agreements to submit bias claims to binding arbitration [AP, AAJ jubilates]
In not just one recent case, but two:
* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today]
* “Starbucks cannot fire a union activist employee who cursed at a manager in front of customers, the National Labor Relations Board has ruled for the second time. Joseph Agins was active in trying to unionize four Manhattan Starbucks coffee shops between 2004 and 2007.” His repeated imprecations, sometimes in the presence of customers, included “this is [BS],” “do everything your damn self,” “about damn time” when the manager arrived to help, and “go … yourself”. A protected pattern of behavior under federal labor law, the NLRB ruled. “The board ordered Starbucks to offer Agins his old job or a substantially equivalent position, compensate him for any loss of earnings and other benefits, and remove from its files any references to the unlawful firing.” [Seattle Post-Intelligencer]
Compare the separately developed field of “hostile-environment” law, in which the employer may be held liable for years’ worth of back pay if it does not separate from the workplace an employee who repeatedly confronts a co-worker with belligerent and profane abuse (& Scott Greenfield).