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Full-Text Articles in Law
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Are Unions A Constitutional Anomaly?, Cynthia Estlund
Michigan Law Review
This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …
Griggs At Midlife, Deborah A. Widiss
Griggs At Midlife, Deborah A. Widiss
Michigan Law Review
Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989, …
Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt
Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt
Michigan Law Review
Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn
Michigan Law Review
The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …
There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow
There's No "I" In "League": Professional Sports Leagues And The Single Entity Defense, Nathaniel Grow
Michigan Law Review
This Note argues that outside of labor disputes, sports leagues should be presumed to be single entities. Part I argues that professional sports leagues are single entities in disputes regarding league-wide, non-labor policy. In particular, the focus of the Supreme Court's jurisprudence on economic reality rather than organizational form necessitates a finding that professional sports leagues are single entities in non-labor disputes. Part II argues that professional sports leagues are not single entities for purposes of labor disputes; sports leagues, on the whole, do not involve a unity of interest for labor matters. More importantly, existing precedent outside of the …
How American Workers Lost The Right To Strike, And Other Tales, James Gray Pope
How American Workers Lost The Right To Strike, And Other Tales, James Gray Pope
Michigan Law Review
To paraphrase a veteran labor scholar, if you want to know where the corpses are buried in labor law, look for the "of course" statements in court opinions. By "of course" statements, he meant propositions that are announced as if they were self-evident, requiring no justification. Each year, thousands of law students read such statements in labor law casebooks. And each year, they duly ask themselves - prodded sometimes by the casebook's notes - how these conclusions could be justified in legal terms. But often there seems to be no answer, and the mystery continues. This Essay recounts the origins …
Arbitration: Time Limits And Continuing Violations, Richard I. Bloch
Arbitration: Time Limits And Continuing Violations, Richard I. Bloch
Michigan Law Review
Time limits in a collective bargaining agreement, particularly as they apply to the grievance procedure, are very important. Filing or processing deadlines are taken as seriously in the context of these private documents and negotiated time limits as they are in the world of standard litigation, with deadlines that are imposed statutorily or otherwise. Management advocates often view the time limitation provisions as virtually the only thing employers gain, as opposed to give, in the bargaining relationship. Deadlines have been strictly, if reluctantly, construed by most arbitrators. The "continuing violation" provides a meaningful exception to the otherwise immutable time bar. …
The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind
The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind
Michigan Law Review
This Note proposes that courts require the plaintiff in a RIF case to show, as part of her prima facie burden, that the employer reassigned at least part of her job responsibilities to a younger individual of equal or lesser qualifications. Part I describes the analytical framework applied to most intentional discrimination cases the McDonnell Douglas framework. Part II explains that the RIF plaintiff cannot meet the specific requirements of the prima facie case as articulated in McDonnell Douglas because her firing occurs in conjunction with the elimination of her position. This Part then examines two approaches taken by the …
The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud
The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud
Michigan Law Review
The purpose of this article is to explain why the Court's much-maligned decision in Hicks was correct, and to further argue that in the aftermath of Hicks, the McDonnell Douglas-Burdine proof structure ought to be abandoned.
The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud
The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud
Michigan Law Review
The purpose of this article is to explain why the Court's much-maligned decision in Hicks was correct, and to further argue that in the aftermath of Hicks, the McDonnell Douglas-Burdine proof structure ought to be abandoned.
Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells
Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells
Michigan Law Review
This Note argues that the federal courts retain power to furnish equitable relief for constitutional violations to ensure adequate protection of federal employees' rights. Statutory procedures and remedies available under the Civil Service Reform Act of 1978 (CSRA) and related legislation should preempt judicially created equitable relief only where the government or federal agency affirmatively demonstrates that these procedures are constitutionally sufficient. Part I canvasses the current lower court response to the question of preclusion and notes the various routes taken by the courts in inferring congressional intent to preempt. This Part discusses varying interpretations of the Civil Service Reform …
The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman
The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman
Michigan Law Review
This Note examines these three possible interpretations of which job characteristics a court must examine when determining the validity of a BFOQ defense to an ADEA suit and concludes that the Eighth Circuit's standard is correct. Because disputes over which interpretation is proper arise almost exclusively in cases involving public safety occupations, this Note discusses the standards for measuring that scope within the framework of the policy considerations associated with public safety. Part I of this Note discusses the three current standards used to determine the scope of the BFOQ defense. Part II illuminates the problems inherent in having three …
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Yankees Out Of North America: Foreign Employer Job Discrimination Against American Citizens, Michigan Law Review
Michigan Law Review
This Note explores Title VII's relationship to the hiring practices of foreign employers. It focuses on Japanese employers, who might face the toughest Title VII challenge to a business and cultural familiarity or citizenship requirement. Part I sets out arguments for and against finding intentional discrimination - disparate treatment - in either of these hiring requirements. It suggests that a court should refuse to find national origin discrimination when the employer imposes a business and cultural familiarity requirement. However, when an applicant is denied employment solely on the basis of citizenship, a strong argument may be made that the …
Rationalizing Administrative Searches, Michigan Law Review
Rationalizing Administrative Searches, Michigan Law Review
Michigan Law Review
At the outset, this Note examines the major decisions concerning administrative searches. Specifically, it traces the development of a warrant requirement and of the corresponding lower standard of probable cause announced in the Camara and See decisions. Subsequent modifications of that seemingly absolute rule are then analyzed. To develop a framework for evaluating administrative search cases, Section II groups those principal Supreme Court cases, along with pertinent lower court opinions, into three tiers of fourth amendment protection: administrative searches that require a warrant based on a traditional criminal standard of probable cause; administrative searches that require a warrant based on …
The Impact If Howard Johnson On The Labor Obligations Of Successor Employer, Michigan Law Review
The Impact If Howard Johnson On The Labor Obligations Of Successor Employer, Michigan Law Review
Michigan Law Review
This Note assesses the impact of Howard Johnson on the labor-law obligations of successor employers. Part I analyzes the prior case law; part II critiques the reasoning of the Howard Johnson opinion; part III considers the merits of a new approach to the successorship problem, suggested in a footnote in Howard Johnson.
Contract Rights And The Successor Employer: The Impact Of Burns Security, Michigan Law Review
Contract Rights And The Successor Employer: The Impact Of Burns Security, Michigan Law Review
Michigan Law Review
This Note will only briefly discuss the implications of Burns for NLRB proceedings. Instead, the focus will be on the impact of Burns on actions to compel arbitration under section 301. Is the rationale of Burns inconsistent with the rule established in Wiley for section 301 actions? If it does not undermine Wiley, does Burns indicate when employers will be deemed successors in future actions under section 301 to compel arbitration? Before examining these questions, however, it is necessary to consider the decisions of Wiley and Burns.
Strangers In Paradise: Griggs V. Duke Power Co. And The Concept Of Employment Discrimination, Alfred W. Blumrosen
Strangers In Paradise: Griggs V. Duke Power Co. And The Concept Of Employment Discrimination, Alfred W. Blumrosen
Michigan Law Review
In March 1966, the Equal Employment Opportunity Commission (EEOC) negotiated an extensive agreement with the Newport News Shipyard to eliminate employment discrimination. The outcome of these negotiations-which were conducted by the Office of Conciliations which I then headed-was the first major achievement for the EEOC under title Vll of the Civil Rights Act of 1964. Following that episode, Ken Holbert, Deputy Chief of Conciliations, and I decided to try to negotiate a model conciliation agreement on the subject of discriminatory employment testing. We knew that many companies had introduced tests in the 1950's and early 1960's when they could no …
Racial Equality In Jobs And Unions, Collective Bargaining, And The Burger Court, William B. Gould
Racial Equality In Jobs And Unions, Collective Bargaining, And The Burger Court, William B. Gould
Michigan Law Review
In dealing with the problems of employment discrimination, the Burger Court will have to face several new and major issues. This Article is concerned with two of the most important of those issues. The first is whether the present requirement that workers seek redress of their grievances through the exclusive representation of the union is applicable to victims of racial discrimination; and if not, what other remedies should be available to those workers. The second is whether quotas and ratios based on race are permissible; and if so, whether it is required that they be used to integrate union leadership …