As you know by now, the Republicans will be in control of the U.S. House of Representatives beginning next year, and the Democrats will retain control of the U.S. Senate, although by a much more narrow margin than has been the case for the past two years. Since Republicans are generally regarded as more employer-friendly than Democrats, most employment lawyers may say that the result of this year’s midterm election will mean no new employment legislation. That may be true but I would remind you of what many employment lawyers said after the 2008 election.
I have previously posted a survey of the laws in all 50 states concerning an employee’s right to vote. In case you’ve just heard about the survey, I’m giving you a link to the post again, so you can easily find it. In addition to the voting laws themselves, the post contains some practical tips concerning employee voting. Click here.
The owner of a chain of McDonald’s restaurants in Ohio sent a letter to his employees about the upcoming elections. The letter accompanied employee paychecks and said that employee wages could only be raised “if the right people” were elected. If others were elected, “we will not” raise wages. The letter encouraged employees to vote for Republican candidates in the Governor’s race, the U.S. Senate race, and a congressional district race. Then the walls of legal hell collapsed on the franchise owner.
Citizens are angry. They’re angry with Democrats and Republicans. Some say there’s no difference between the two parties. Both are interested in power, not results. Right now, candidates from both parties are saying that this has been true in the past, but it won’t be anymore if whoever is talking is elected. Washington is the problem. Send outsiders, and change for the better will occur.
No one was disciplined or fired in connection with the Christmas day (2009) attempted airplane bombing. No supervisor of Major Nidal Hasan (the Fort Hood shooter) was disciplined or fired in connection with their failure to act on clear signs that Hasan was a danger to himself and others. (Here) And now (here and here), no one is being disciplined or fired in connection with the suicide bombing in 2009 at an Afghan base, which killed seven CIA employees. It’s clear now that critical warnings about the suicide bomber simply weren’t reported to other CIA.
November 2 is just two weeks away. The mid-term elections are almost here. It’s predicted that there will be a lot of new faces in Congress next year. Remember, it was generally believed that the 2008 elections would usher in all kinds of new labor and employment laws. That hasn’t happened. It’s generally believed that the results of the mid-term elections will mean very little activity on the labor and employment front. It will be interesting to see if we are as wrong about the mid-term elections as we were about the 2008 elections.
When the 2008 elections were approaching, I surveyed the laws in all 50 states concerning the voting rights of employees. With the mid-term elections a little more than three weeks away, it’s time for another review this subject. I know that some of you have been recently accessing the post I did back in 2008. The state laws remain basically the same, although there are a few changes. The purpose of this post is to make sure that you are up-to-speed on these laws in the state or states where you have facilities or employees.
As you’ve undoubtedly heard, about 11 years ago, the Republican nominee for the U.S. Senate in Delaware, Christine O’Donnell, admitted that she dabbled in witchcraft when she was in high school. (Here) This news has traveled all over the place and has become a political issue in the Senate race. The ensuing hubbub is significant for employers, not because of politics, but because it raises an important issue under Title VII of the Civil Rights Act, which prevents religious discrimination.
Although non-union employers sometimes think otherwise, the National Labor Relations Act applies to both union and non-union employers. That means both union and non-union employers need to be aware of action taken by the National Labor Relations Board (NLRB) that could affect them. The NLRB has recently issued a decision that makes it easier for non-union employers to be drawn into disputes between a union and a union employer with which the non-union employer does business. My colleagues at Miller & Martin have written an excellent summary of this recent decision. I encourage you to read it.
My Labor Day post suggested that organized labor should receive a boost from the Great Recession. There is, of course, a quite legitimate contrary view. For those employers to whom I may have given heartburn on Labor Day, here’s your antacid.
Three recent stories in the news caused me to think of the most famous line from the 1976 movie Network: “I’m mad as hell, and I’m not going to take this any more.” First, there’s the stressed-out Jet Blue flight attendant, who ended his career like many employees say they’d like to. Second, protests by laid-off bank workers are growing and now include sit-ins. In China. Third, an era of anger among employees is sweeping the U.S. These stories have something in common, but when put together, there’s a degree of incongruence.
It is perhaps fitting that my 2000th post be about a momentous event. Elena Kagan was confirmed yesterday by the U.S. Senate as a justice of the U.S. Supreme Court by a vote of 63-37 . It’s no surprise that she was confirmed. It marks, however, the first time in U.S. history that three women will be serving on the Supreme Court at the same time. This really is one of those “we’ve come a long way, baby” moments. Ronald Reagan appointed the first woman ever: Sandra Day O’Connor (now retired). Bill Clinton appointed the second: Ruth Bader Ginsburg; Barack Obama has appointed the third: Sonia Sotomayor, and the fourth: Elena Kagan.
For over 40 years, race discrimination claims have been primarily asserted by minority employees: African-Americans, Hispanics, and members of various other racial or ethnic groups. On the rare occasion when a white employee alleged discrimination, it was called “reverse discrimination.” The U.S. Commission on Civil Rights, composed of six conservative Republicans and two liberal Democrats, has increasingly placed the spotlight on discrimination against whites.
Yesterday, significant parts of Arizona’s new and controversial immigration law were ruled invalid by a federal judge. (Read here.) Undoubtedly, there will be an appeal, so who knows what will eventually happen? Not many people disagree with the proposition that there should be a federal overhaul of immigration law. But Congress isn’t about to act on this before the November elections, and it’s unlikely Congress will act on it after the elections.
On October 14, 2009, I did a post on the value of zero tolerance policies: 0. The recent firestorm surrounding the forced resignation of Shirley Sherrod by the U.S. Department of Agriculture validates the 10/14/09 post as well as anything possibly could. Most of what has been written about the Sherrod debacle has focused on race and politics. This post focuses on employment and human resources issues. (For a similar post, see Dan Oswald.)
Perhaps the one thing of interest that hasn’t been covered on this blog about Supreme Court nominee Elena Kagan is a one year period of time when she clerked for Justice Thurgood Marshall in the late 1980′s. (For my other posts on Kagan, click here, here, here, here, here, here, here, here, here, here, here, here, here and here.) All of these posts have been designed to predict what kind of Justice Elena Kagan would be when it comes to labor and employment law. As previous posts have pointed out, any prediction is more of a guess because of Kagan’s scant record on this subject.
The definition of insubordination is sometimes elusive. Everyone seems to agree that insubordination can result in a discharge. The question that causes disagreement is whether whatever the conduct in question is actually constitutes insubordination. I’m not in a position to judge what kind of job General Stanley McChrystal has been doing in Afghanistan, but I feel certain that what he said and did as reported in Rolling Stone amounts to insubordination. President Obama didn’t have to fire McChrystal, but he’s absolutely justified in doing so from an employment law standpoint. Employers who struggle with the meaning of insubordination should file this incident away as a good example of the offense.
When I did the first post on Elena Kagan’s Solicitor General briefs, I indicated that she had submitted briefs in nine cases having employment law implications. As noted in my last post, one of them involved the same issue as New Process Steel v. NLRB recently decided by the Supreme Court. One of them (Mohawk Industries, Inc. v. Carpenter) is a strictly procedural case and doesn’t seem worth discussion for purposes of discerning anything about her labor and employment views.
The only Elena Kagan brief I haven’t covered was filed in the case of New Process Steel v. National Labor Relations Board. (She also filed one in National Labor Relations Board v. Laurel Baye Healthcare of Lake Lanier, but this case involved the same issue decided in the New Process Steel case.) New Process Steel concerned the issue of whether the NLRB could properly decide cases with only a two-member board. Representing the NLRB’s position, Kagan argued as Solicitor General that the NLRB could act with only a two-member board. The Supreme Court has now decided that it couldn’t.
In an effort to predict what kind of Supreme Court justice Elena Kagan will be when it comes to labor and employment issues, it will be necessary to look at things that don’t fit neatly into that area of the law. I will try not to stretch too far in seeking to uncover her political leanings that could apply to the labor and employment area, but I’ll admit that a little stretching will be done because although a few things are beginning to be revealed concerning her views, about the only thing we know for sure is that she’s a registered Democrat.