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Abstract:
Whether a full labor relations privilege is developing is one of the most interesting as well as difficult aspects of labor law and the law of evidence. This issue typically arises when an employee has a confidential conversation with a non-attorney union representative concerning a labor relations issue and the employer or a third party seeks to learn about that confidential communication. A labor relations privilege is a critically important issue in labor law because much of labor-management relations is conducted by non-attorneys.

While a number of courts have recognized a labor relations privilege in the context of an employee-employer relationship, courts have issued widely conflicting opinions with respect to the application of this privilege to third parties. I refer to the application of this privilege to third parties as a "full labor relations privilege."

In supporting the recognition of a full labor relations privilege, this Article examines general principles of privilege law, the treatment of lay privileges in other contexts, freedom of association principles, and the litigation that has taken place concerning the recognition of a labor relations privilege. This Article also explores the unique features of labor law that support the recognition of a full labor relations privilege. The handful of courts and commentators who have examined whether a labor relations privilege should be recognized have not examined these critically important labor law principles.

As the Supreme Court has recognized, it is in no ones interest to have uncertain privileges. That is exactly the state of the law this Article addresses and hopes to clarify.

Privilege, Evidence, Unions, Arbitration

Abstract:
The collapse of the economy at the end of 2008 is one of the most important issues of our time and has resulted in the passage of historic bailout and stimulus legislation. Newly elected President Obama has recognized that his political future depends upon the economy rebounding. This Essay focuses on an important aspect of the 2009 economic stimulus, formerly known as the American Recovery and Reinvestment Act, which seems to been left out of the political debate; the effect this stimulus will have on labor and employment law. This Essay asserts that this stimulus is much more than just an economic package. It is a reflection of a fundamental social change that is about to occur in labor and employment law similar to President Roosevelt's New Deal. I refer to this as Obama's Big Deal.

This Essay also reviews the historic relationship between the law and economics with respect to labor legislation. Additionally, this Essay reviews proposed labor and employment legislation that is likely to be enacted by the 111th Congress such as the Employee Free Choice Act, H.R. 1409, 111th Cong. (1st Sess. 2009), the Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act ("RESPECT"), H.R. 1644, 110th Cong. (1st Sess. 2007), The Equal Remedies Act, H.R. 5129, 110th Cong. (2d Sess. 2008), Employment Non-Discrimination Act ("ENDA"), H.R. 3685, 110th Cong. (1st Sess. 2007).

labor law, employment law, politics, Obama, New Deal, Employee Free Choice Act, Recession

Abstract:
This Article summarizes the law of affirmative action and argues that affirmative action constitutes reverse discrimination. If equal opportunity were truly the goal, then preference could be given based upon economic status. However, racial classifications should never be used - particularly after you consider this nations history of permitting discrimination.

affirmative action, reverse discrimination, employment discrimination

Abstract:
An individual employee is not a party to the collective bargaining agreement between a union and an employer. Additionally, under the terms of most collective bargaining agreements, the union owns the arbitration procedure, and therefore, it is entirely up to the union whether it will proceed with the arbitration. As a party to the arbitration, it is also the union's decision whether to appeal any adverse arbitration award. Stated another way, the grievant simply does not have standing to proceed without the support of his or her union.

Under existing law, if the union does not agree that an arbitration case has merit, there is very little an individual employee can do other than to sue the union for breach of the duty of fair representation. This Article argues, however, that there is a way to avoid hostility and unnecessary litigation in a way which will satisfy the grievant, his or her union, and perhaps even the employer. It is submitted that in certain cases the union could assign its right to proceed with the arbitration to the grievant. The grievant would have his day in court, and the union would not have to bear the time and considerable expense of arbitration with respect to a claim it believed either lacked merit or which should be presented by the individual grievant.

To this commentator's astonishment, there is no academic commentary addressing the important issue of whether or not unions can assign their right to arbitrate or their right to appeal to an individual grievant. Additionally, there are only three judicial decisions on this issue, and all three opinions arose in the public sector. In all three of these decisions, the courts held that the union could not make the assignment. As explained in this Article, a close examination of these decisions demonstrates that all three of these decisions were wrongly decided.

arbitration, assignment, standing, contracts, labor law, employment law

Abstract:
Attorneys may be interested in joining a labor union for the same reasons as other employees. Although there is relatively little precedent or history in the area of attorney unions, the federal National Labor Relations Board has asserted jurisdiction over law firms since 1977, provided a firm has $250,000 in gross revenue. The general process of establishing a union would be the same as it is for employees in other fields.

There are instances where such unionization has occurred without contest. Many reported cases involving law firms actually concern support staff, although there are those that also involve attorneys. What if there is a contest? As a general proposition, attorneys enjoy the same legal rights as other employees in deciding whether or not they want to be represented by a union. The employer's or law firm's desires are irrelevant. However, attorney-employers are likely to raise certain points in opposition to attorney unionism. They may argue that staff attorneys are not eligible to unionize because they are either confidential employees, or supervisors, or managerial employees. They might also claim that attorneys should not organize because the ethics of the legal profession will impede the collective bargaining process. Each of these is discussed in turn.

labor law, nlrb, attorneys, unions

Abstract:
This Article is primarily about whether the parties to a collective bargaining agreement can voluntarily agree to alter the standard of judicial review that any such labor arbitration decision would normally be subjected to. Under the FAA in the context of commercial arbitration, this issue has generated a significant amount of scholarly debate by academic commentators as well as a conflict in the circuits - with some courts even drawing a distinction between expanding judicial review and eliminating judicial review altogether. Significantly, however, with the exception of dicta contained in one Seventh Circuit opinion written by Judge Posner, the alteration of the standard of judicial review of labor arbitration awards in the private sector has not been addressed by scholarly commentators or by courts in the private sector.

The present state of the law does not provide any clear answer to the question whether the parties can contractually alter the standard of judicial review of a commercial arbitration decision. There is a tension between freedom of contract which lies at the heart of arbitration law and the need for judicial oversight in order to prevent abuse.

The Supreme Court has denied certiorari four times where the issue has been raised in the context of a commercial arbitration. Given the amount of conflicting opinions that have been generated and the amount of scholarly debate, it is only a matter of time before the Supreme Court takes up this issue.

It is submitted that regardless how the Supreme Court ultimately rules with respect to commercial arbitration under the FAA, an even more compelling case exists to allow parties to a collective bargaining agreement, which contains a labor arbitration provision, to alter the standard of judicial review. This is principally because labor arbitration is fundamentally different from commercial arbitration.

labor arbitration, arbitration, alternative dispute resolution, labor law, collective bargaining, litigation

Abstract:
This Essay discusses the use of me too evidence where parties, usually plaintiff's, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination as well as the U.S. Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn.

The use of me too evidence has proven to be controversial. Indeed, employment discrimination cases often turn on whether a plaintiff has been able to come up with an appropriate comparator who was treated differently than he or she was.

Though scholars who have had the opportunity to opine about the Sprint case have characterized the U.S. Supreme Court decision as a judicial punt because of its remand on procedural grounds, this Essay asserts that this decision is going to turn out to be significant to the developing jurisprudence involving employment discrimination. This is principally because of dicta in Justice Thomas' unanimous per curiam opinion which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible me too evidence, it is clear that the Court rejected any type of rule which would flatly prohibit the introduction of such evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

me too evidence, employment discrimination, evidence, Supreme Court

Abstract:
Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep't. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be "profoundly disturbing." The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

Abstract:
Public policy strongly supports voluntarism as it fuels interests that are critically important to society and the health of this country, particularly in these days of ever-increasing budget cuts. It has also created many unique legal dilemmas. Unfortunately, however, the volunteer experience for the individual may not always work out. This article addresses the consequences of a failed voluntary service relationship. For instance, can a volunteer who is sexually harassed maintain a cause of action for sex discrimination under Title VII? Is a volunteer an employee with other rights? What is the definition of an employee anyway?

There is still great variation in this country with respect to which employment test should be utilized to determine whether or not someone is an independent contractor or an employee. Additionally, courts have reached conflicting decisions with respect to whether other workers, such as graduate students, are employees. Therefore, it should not be surprising that there is also great variation in the case law distinguishing between volunteers and employees.

As discussed in this article, a two-step analysis should be utilized to distinguish between volunteers and employees. In general, to be an employee, the individual must (1) be hired which involves an examination of whether the individual receives some form of remuneration, and (2) have his or her work controlled by the employer.

Though there is virtually no scholarly work that analyzes the rights of volunteers in employment, the question of whether volunteers should be treated as employees is becoming an increasingly important legal issue as there are a number of recent decisions addressing this issue.See, e.g., Hallissey v. America Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. Lexis 12964 (S.D.N.Y. Mar. 10, 2006) (refusing to grant summary judgment because community leaders who serviced internet message boards and chat rooms in return for free internet access, a compact disc case, expanded web space, anti-virus software, and employee discounts could be employees under the FLSA); Lowery v. Klemm, 845 N.E.2d 1124 (Mass. 2006) (denying a state claim for sexual harassment as the plaintiff was a volunteer and not an employee).

Volunteers, Employees, Labor Law, Employment Law

Abstract:
One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be "tweaked" to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.

Duty of Fair Representation, Arbitration, Labor Law, Unions, Grievances

Abstract:
This article is about advisory labor arbitration under New York Law. Advisory arbitration is compared and contrasted to the more common final and binding arbitration. Advisory arbitration is utilized mostly in the public sector in New York, but it is also utilized in the private sector as well as in jurisdictions outside the state of New York. The author argues that advisory arbitration may have a place in the non-union employment setting, particularly in employment-at-will states such as New York.

Advisory Arbitration, Non-Binding Arbitration, alternative dispute resolution

Abstract:
The Supreme Court has recognized that Congress enacted the Individuals with Disabilities Education Act, 20 U.S.C. Sec. 1400-1482 (IDEA) to ensure that children with disabilities have available to them a Free Appropriate Public Education that emphasizes special education and related services designed to meet their unique needs. This Article addresses whether IDEA entitles parents of disabled children who provide therapy to their child and act as a quasi-therapist because the school district failed to provide a Free Appropriate Public Education are entitled to reimbursement for the therapy services they provide. Additionally, Bucks County Department of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61 (3d Cir. 2004), the seminal case that held that parents, in certain circumstances, are entitled to reimbursement for therapeutic services they provide is extensively analyzed. This Article maintains that Bucks County was correctly decided, with the exception of a portion of the opinion that limited parental reimbursement to situations where a therapist was unavailable. In any event, parents are now clearly entitled to full reimbursement after the Supreme Court's May 2007 decision in Winkelman v. Parma City School District, 127 S. Ct. 1994 (2007), which held that parents have independent and enforceable rights under IDEA.

In reaching this conclusion, this Article also addresses the principle objections to providing parental reimbursement. Specifically, some object that parents are not legally qualified, since most are not schooled in the needed therapy. However, existing precedent permits reimbursement of uncertified therapists, and this Article submits that parental therapists should not be treated any differently. Additionally, some object that if parents are reimbursed as quasi-therapists, they might become "employees" of the school district and be entitled to employment law rights and protections. This Article demonstrates that although IDEA is similar to the National Labor Relations Act and the Americans With Disabilities Act, a parental therapist is unlikely to be considered an "employee" of the school district under any of the tests that courts use to define employees. This Article also discusses the deplorable education conditions many disabled children were forced to tolerate before the enactment of IDEA in 1975. This history is necessary to understand, and be aware of, when examining special education law policy.

IDEA, Free and Appropriate Public Education, Parents, Employees, Students

Abstract:
One of the best keep secrets in New York law is that most labor unions are immune from legal liability simply because they are organized as an unincorporated association. In jurisdictions such as New York, which follow common law, unions have this immunity because plaintiffs cannot met the stringent common law pleading requirements applicable to unincorporated associations, to wit, it must be alleged, and ultimately established, that the conduct complained of was approved of and ratified by each and every member of the association. Thus, the form in which a labor union is organized has a significant impact on its potential for legal liability. This is reminiscent of the forms of actions utilized in the Middle Ages where the form of the action determined whether a party had any remedy.

This Article surveys union liability in this important and little understood area of law. It concludes that the common law pleading requirements of Martin v. Curran make little sense today, particularly when applied to labor unions. Public policy is certainly not furthered by blind obedience to an ancient common law doctrine.

Surprisingly, there is no academic commentary which address this important issue under New York law or the seminal case in this area, Martin v. Curran. However, Martin v. Curran continues to be relied upon in order to dismiss cases against unions even though this case has been severely criticized by a number of courts. Just recently, the First Department upheld the dismissal of a tort action against a union because the common law pleading requirements of Martin v. Curran could not be met. That 2006 decision generated a significant dissent by Justice Saxe, who stated that this dated rule should be abandoned. Salemeh v. Toussaint, 25 A.D. 3d 411 (1st Dept. 2006)(Saxe, J., dissenting).

labor law, duty of fair representation, martin v. curran, unions, new york law

Abstract:
In this Essay I reply to Professor David Gregory and Paul Secunda's comments about my principal article, Sprint/United Management Co. vs. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of Me Too Evidence Of Discrimination. But Did it? 102 Nw. U. L. Rev. 264 (2008). Both of these articles are important pieces of scholarship. David Gregory, Sprint/United Management Company v. Mendelsohn and Case-by-Case Adjudication of Me Too Evidence of Discrimination, 102 Nw. U. L. Rev. Colloquy 382 (2008); Paul M. Secunda, The Many Mendelsohn Me Too Missteps: An Alliterative Response To Professor Rubinstein, 102 Nw. U. L. Rev. Colloquy 264 (2008).

I primarily focused this response on my disagreement with Professor Secunda's argument that the Court had to punt the issue of the admissibility of me too evidence and with his claim that the Court made a mistake in granting certiorari.

While I agree that the Court correctly remanded the case, a remand does not require a judicial punt. I believe that the Court had the opportunity to provide such guidance and simply blew it.

I also disagree with Professor Secunda's view that the Court incorrectly granted certiorari. I believe that Professor Secunda reads too much into what he admits are oral argument tea leaves. As I demonstrated in my principle article, the state of the law was in a complete disarray prior to Sprint being granted review. Therefore, the Supreme Court had good reason to review this important issue. As Professor Gregory and I both noted, post Sprint lower courts are already divided over how to treat the admissibility of me too evidence. Therefore, there is no reason why the Court should not take this issue up again.

MeToo Evidence, Evidence, Employment Discrimination, ADEA, Litigation

Abstract:
This Article discusses whether an employer can justify a termination based upon evidence it discovers after an employee's termination. I survey various areas of the law including the NLRB's treatment of this issue. While this article was written before the McKesson decision, the authorities cited are still useful.

predischarge misconduct, employer defenses

Abstract:
This Article is about a New York lower case which recognized a labor union evidentiary privilege between union members and union officers.

privilege, union members, officers