Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label employment law. Show all posts
Showing posts with label employment law. Show all posts

Monday, September 26, 2022

Governor's proposed pay hikes evince typical bureaucratic ignorance of how working people earn

Governor Dan McKee
(Kenneth C. Zirkel CC BY-SA 4.0 via Wikimedia)
Rhode Island Governor Dan McKee's proposal for huge increases to state administrators' pay, on the scale of revising $135,000 upward to $190,000, shows ignorance of how ordinary working people earn.

Our present condition of oppressive inflation has us all thinking a lot about pay. For ordinary working people in America, the only way to avoid an effective pay reduction over time is to change jobs. (Hat tip at my wife for putting words to that observation.) Employers demand "team" or "family" loyalty, 24/7 availability, and uncompensated overtime. But the loyal employee winds up being underpaid for overworking.

Raises don't keep up with inflation, if there are raises at all. In my own compulsorily union job, 2% raises are the contract standard. That rate tracks inflation for about the last 10 years, on average, but not for the preceding 10 years, when the union negotiated the rate, nor for the present year. The union admonishes that the university would give zero were it not for, of course, the union, so workers should be grateful for losing less badly. Then when the pandemic hit, the union asked for bigger pay cuts than the university proposed. So the union lost all credibility with me.

The "family" loyalty employers demand works only one way. At the first sign of hardship, jobs are cut; people in the lower ranks are disposable. Business cries out for relief form taxpayers, even as bottom lines bulge. Profiteering, not necessity, is pushing the present inflation, and there is no will in Washington for protection against price gouging. No wonder some workers are at last wising up to "quiet quitting," which is not quitting at all.

I make OK money, less than market rate for what I do, and less than I was promised since my employer, with union assent, reneged on an agreement, but a lot more than most Rhode Islanders. And I think I'm pretty good at what I do. You can't help but learn something with 25 years' experience.

Yet if I left my job, my employer would be pleased to replace me with someone lacking experience and paid two-thirds or less. Indeed, the norm in legal academia, in step with the private marketplace, is to prefer a 20-something lawyer out of a clerkship over a lateral candidate. At that, there would be young people lined up for my job, eager to be part of the "family," and understandably so in a market that has long forgotten what it means to negotiate terms of employment. I cannot move laterally even if I take the pay cut, because it's not just the discount price employers are after. They want a newly beholden member of the "family."

That's the reality for most American workers: employers expecting commitment and performance akin to indentured servitude from people who work cheap because they know they're easily replaceable for less.

So when I see pay raises of the kind that Governor McKee is proposing, supposedly for the purpose of recruitment and retention, I am outraged. In this New England market, there are plenty of bright, talented people right out of university, law and graduate school, some of them my former students, who are eager to test their skills in public leadership. The present $135,000 pay, double the average state salary, would be a dream offer.

That's not to say, of course, that I wouldn't rather see the market treat people fairly and reward talent and experience. I would rather that everyone in the workforce had pension security, not just public sector workers regardless of merit, willing to commit to one job and place for 20 years; that everyone had access to high-quality healthcare, not just people who let an employer walk all over them because they're afraid of dying from a recurred cancer if they change insurers; and that everyone would have the opportunity to earn a living wage in fewer than 40 hours per week.

But that's not our world. Well, not our country. So in the meantime, I don't care to see public-sector leaders privileged by terms of employment they are unable or unwilling to establish for the rest of us.

McKee's Republican opponent accused him of buying votes. I'm not sure that's true. There aren't enough state department heads to turn an election, and I doubt they have that much sway behind the curtain over the voters who work for them. 

I think it more likely that McKee has calculated that in the present political climate, his reelection as a Rhode Island Democrat is effectively a done deal. So he has the political capital to spend to shore up loyalty in an executive branch that he claimed this term by succession rather than election. (Independents such as me are barred from primary voting in Rhode Island, so I've had no say yet.)

Either way, raises for already well compensated state leaders will be an insult to taxpayers.

Thursday, September 1, 2022

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)
Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).

Wednesday, July 27, 2022

Grubhub drivers signed away right to sue, court rules

Haydn Blackey via Flickr CC BY-SA 2.0
Grubhub drivers signed away their right to sue on unfair wage claims, the Massachusetts Supreme Judicial Court ruled today.

Plaintiff Grubhub drivers complained that the company is stiffing them on minimum wages and tips under state law and, worse, retaliating against drivers who complain.

I have no knowledge of the validity of these claims, but I worry a lot about the exploitation of gig workers in our economy. This exploitation is a big slice of the broader problem of employers' over-classification of personnel as independent contractors to avoid having to provide fair wages and benefits. Sometimes employers cross the legal line and sometimes they don't; regardless, the effect of even the lawful leeway contributes to our glut of working people who cannot make ends meet, put us all at risk with insufficient insurance for healthcare and accidents, and spend so much on necessities as to have paralyzed American socioeconomic mobility. Our woefully outdated measures of employment fail to reflect this problem, which is why media pundits and Washington pointy-heads scrunch their faces in confusion over how we can have favorable job numbers and an "it's the economy, stupid" political crisis happening at the same time.

Collateral to labor exploitation, we have long had the problem of our court system being subverted by the supposed freedom to contract. At this point, we all know without even having to read the fine print that every terms-and-condition box we check, just like every product we liberate from shrinkwrap, binds us to arbitrate any disgruntlement and frees our adversaries from ever having to answer to us in the courts, which were designed for that very purpose. Many of us know furthermore that the terms of arbitration profoundly favor the respondent companies, both substantively, evidenced empirically by companies' overwhelming win rates, and, often, procedurally, by way of inconvenient venues, arcane procedures in contrast with small claims courts, and the burdens of transaction costs.  I've cited the definitive books on this subject by Nancy Kim and Margaret Jane Radin so many times, that, frankly, I just don't have the energy today to look up their URLs again.  Let's instead invoke the tireless Ralph Nader and his persistent admonition that we have undermined the Seventh Amendment, to which point I add humbly that anti-vigilantism is an important function of our civil dispute resolution system, and maybe we ought remember that in a society in which the least mentally stable among us apparently have ready access to firearms.

So it's the confluence of these two socio-legal problems that interests me in the present case, more than the merits. On the merits, the Grubhub complainants tried to work around their 2017 clickwrap agreement to arbitrate by characterizing themselves as a kind of interstate transportation worker that is exempt from the Federal Arbitration Act. But Grubhub drivers are not long-haul truckers. A for creativity, F for achievement. The court held that the drivers indeed signed away their right to sue.

F is likely to be the final disposition of the complaints in arbitration after remand, too.

You can read more in Archer v. Grubhub, Inc., No. SJC-13228 (July 27, 2022). Justice Dalila Argaez Wendlandt wrote the unanimous opinion (temporarily posted).  The case in Suffolk County Superior Court is no. 1984CV03277 (class action complaint filed Oct. 21, 2019).

The U.S. Chamber, dependable opponent of transparency and accountability, was among the amici on the prevailing side.  The Harvard Cyberlaw Clinic was among the amici for the workers. The office of Commonwealth Attorney General Maura Healey entered an appearance as amicus, but filed no brief. Healey's office sued Grubhub one year ago, alleging the company overcharged Massachusetts restaurants during the pandemic (complaint, press release). That case, no. 2184CV01719 in Suffolk County Superior Court, is pending currently on cross motions for summary judgment.

Tuesday, February 1, 2022

As America, France share Enlightenment roots, why have worker rights so diverged? Or have they?

Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law.  Here is the abstract:

The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251.  It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers.  He had already a wealth of experience in the labor movement before he went to law school.  He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.

The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic.  Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic.  Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:

The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."

A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common.  Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.

The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).

[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).

Wednesday, January 26, 2022

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0
Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

Tuesday, December 28, 2021

Police officer delivering lunch was on the job for worker comp but not for statutory immunity, court rules

Pixabay by Ronald Plett (license)
A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not a "frolic" as escapes worker compensation coverage, but, at the same time, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

Thursday, September 9, 2021

So now you care about academic mobbing

Angry Mob by Robert Couse-Baker, CC BY 2.0
Princeton politics professor Keith E. Whittington (on the blog) has a wisely worded op-ed, on The Volokh Conspiracy at Reason, on the too often abdicated responsibility of university administrators to push back against viewpoint-based campus mobbing of faculty.

"It is now a familiar pattern," he writes: attack, petition, social media campaign, demand for termination.  Of the university's duty, he writes:

University presidents have a responsibility in such a situation. It should go without saying, but unfortunately it does not, that they have a responsibility to actually live up to their constitutional and contractual responsibilities and refrain from sanctioning the faculty member for saying something that someone finds controversial. They should insist that harassment and threats directed against members of the faculty will not be tolerated. Professors should at least be confident that when the mobs arrive, pitchforks in hand, that university leaders will not flinch and give in to the demands of the mob.

I hope the piece hits the desk of every university president in the land with a thunderclap of j'accuse.

Yet it is fascinating to me to see described today as cliché what was once fringe.  Canadian sociologist Kenneth Westhues, professor emeritus at the University of Waterloo, published his Workplace Mobbing in Academe (2004) seventeen years ago, and that book was built on his earlier Eliminating Professors (1998).

By the time I met Ken in 2009, he was already the world's leading expert on academic mobbing.  He still is.  Westhues's website is still the online clearinghouse on mobbing as a sociological phenomenon. But he's almost never cited, at least in the legal lit.  I find eight references to Westhues on Westlaw's JLR database, and none in the last dozen years.

At a program at the Association of American Law Schools (AALS) in 2010, I accepted the invitation of Westhues and Syracuse University law professor Robert Ashford to speak of my experience.  Ashford perceived a worthwhile connection to his inventive work in socio-economics, and Westhues flattered me with my name as a participle

The splash we made at AALS and in legal academics eleven years ago might be described well as mostly indifferent curiosity.  Mostly modifies indifferent, not curiosity.  

I wrote in the Journal of College and University Law in 2009 about the need for broader academic freedom, beyond published research and into the professorial "penumbra."  I presented at AAUP, besides AALS.  The article was cited once in a 2011 bibliography and once in 2013.  (Thanks, Profs. Benson and Jones.)  And that was that.

Not until cancel culture reached the well known coastal scholars of academia's elite institutions did mobbing hit the mainstream.  Now a lot of important people are wringing their hands over academic freedom and waning tenure.

Too bad they don't seem able to find my article.  Or Westhues's work.  Is there really a wheel until it's invented at a "top" school?

It's nice to see serious people having serious thoughts about academic freedom, at last.  But it's too late to give solace to a generation of victim-scholars.  And it's probably too late to resuscitate intellectual liberty on campus, for at least a generation yet.

Monday, August 23, 2021

Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0
Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

Thursday, January 28, 2021

How many people suffer while state unemployment office shuffles paper, issues baseless denials?

I wrote in 2020 about the pay cuts foisted on faculty and staff at UMass Dartmouth.  We're a union shop, which is weird for university faculty in the United States, but at least is supposed to be good for workers.  So for my pay cut—about 11.6%, plus $4k in professional development budget, over one calendar year, so far—the union got me, in return—wait, let me punch the numbers into the calculator—

Nothing.

I quit my union membership once and for all, before the ink dried on the union's Memorandum of Abdication.  But thanks to the compulsory representation law in Massachusetts, I'm still bound to give away anything the union, with its refined talents at the bargaining table, decides that I should give away.

Let me interject a disclaimer that I am not complaining about having a job during the pandemic.  As will become clear momentarily, I am writing about this for the very reason that my concern extends to the many persons who are not as fortunate.  I push myself every day, literally every day, to count my blessings and be grateful, and to find a way to show compassion for those facing hardships during this crisis.  Some days I do better than other days.

With regard to my personal situation, I suggest, I hope modestly, only that in exchange for a pay cut, there might have been some benefit afforded in return: maybe a leniency in job requirements, such as research or teaching load; maybe flexibility in course scheduling; maybe an "IOU" for development budget down the road.  I might could have been bought off for the price of some reference books from my wish list.  Or a new hoodie.  I can always use a hoodie.

I suggested these bargaining chips (except the hoodie) to the union.  No response.  I understand.  It takes a lot of energy and focus to give so much away in so short a time.

But this isn't about the union.  Not today.  Today I write about another bloated bureaucracy feeding ironically at taxpayer teats: the Massachusetts Department of Unemployment Assistance, or "Mass UI."

I was given the option, which I accepted, to take part of my pay cut as furlough during the holidays in December.  There was absolutely no reduction to my workload in December, so one might question the utility of a furlough.  But the idea was, the university told us if carefully to disclaim any guarantee, we could claim unemployment insurance to recover a fraction of four days' pay.  It happens that my wife, who also works for the university as an administrator, also took a pay cut (two, actually, for staff) and furlough (also two).  I'm trying to leave her out of this, and I definitely do not speak for her, so I will tell only what I have to to get my story across.

Let me interject again: As a taxpayer, I am not a fan of one financially stressed public institution shoving its accounts payable off on another financially stressed public institution.  That doesn't seem to me to be an efficient way to solve the problem of stress on the fisc.  But I don't make the rules.  We've got a kid in college.  I'm not leaving money on the table.

So we both filed, at different times in 2020, for whatever unemployment insurance we might recoup.

My wife's online account access was immediately shut down, purportedly in response to a spate of fraudulent claims received by Mass UI.  While her access was blocked, Mass UI (claims that it) sent an electronic request for documents to confirm her identity.  She didn't know about any request, because access was blocked.  She couldn't file the docs, even if she'd known to, because access was blocked.  Meanwhile, Mass UI confirmed the validity of her claim with university HR.  

And then Mass UI denied her claim anyway for supposed failure to provide ID.  She didn't even find out about the denial until months later, because, say it with me, access was blocked.

Having witnessed that mess of an experience, I set my account for hard-copy correspondence only, by mail.  Mass UI sent to me, in hard copy, a request for documents to confirm my identity.  Promptly, I returned, in hard copy, the documents requested.  Presumably, Mass UI could confirm my identity, too, and the legitimacy of my claim, with the university.  I work for the state, after all.  But I was trying to play nice.

Twenty days later, Mass UI denied my claim anyway for supposed failure to provide ID.

We both now have appeals pending.  I expect we will have to go to Boston for hearings (50 miles and two hours each way, expensive parking, different days).  As yet, the hearings have not been scheduled.  My wife's first claim dates back to the summer, in the heyday of federal subsidies.  Good times.

As I just wrote to the Commonwealth Attorney General, at some point, misfeasance slides into malfeasance.  I don't know what's going on at Mass UI.  But it's inexcusable.

And that brings me back around to people who are really hurt by this kind of misfeasance or malfeasance by public officials.  People already are suffering for so many reasons: pandemic risk, joblessness, homelessness, systemic disadvantages of race and socioeconomics.  If my family's experience with Mass UI has resulted in two out of two legitimate, easily confirmed claims being rejected on nakedly indefensible, if not outrightly false, grounds, then how many claims are being wrongfully denied for claimants who are depending on unemployment assistance in a time of crisis?

Look, we're lucky.  I know it.  We're both lawyers.  We have the know-how to appeal, and to sue if necessary.  We have the flexibility in our work to adjust our schedules for hearings, and a car to go to Boston if we have to.  We make decent money, even after pay cuts, educational loan debt, and college tuition bills.  We'll be OK.

But today is one of those days that I feel like I'm falling short on compassionate action.  I should do something.  Something should be done.  

I don't know what.  Or how.

I do suspect that Mass UI is running the vaccine roll-out.

This blog is mine and mine alone, and not a product of my employer.  I speak as a private citizen, not a representative of the university, even if my writing sometimes also serves public interests, which is part of my job.  I reference my job and work profile on this blog for purpose of identification only.  While this disclaimer always pertains, I wish to emphasize it today.

UPDATE, Feb. 16, 2021: Our IDs were accepted and matters remanded from appeal to reprocessing thanks to heroic intervention, for which we are grateful, by an individual in the UMass Dartmouth HR office.  Of course, that doesn't alleviate our concerns about people in Massachusetts who are in serious need. WGBH reported on February 8 on "shocking[] dysfunction[]" in the system, having exactly the impact we feared.

Wednesday, January 20, 2021

Divided court allows employee firing for exercising statutory right to supplement personnel record

Pixy.org CC BY-NC-ND 4.0
An at-will employee may be fired for rebutting an adverse employment action, the Massachusetts Appeals Court held today, despite a state law that specifically empowers employees to add rebuttals to their personnel records.  The decision drew a vigorous dissent from two of the five justices on the rehearing panel.

As my 1L students tire of hearing, we read cases in law school (in the common law tradition) for one of a number of purposes.  For any given lesson, it's important to know which our purpose is, especially when it is to demonstrate the rule by counterexample.  To teach wrongful termination, I have used a federal case, applying Massachusetts law, in which the court is much more generous to the at-will claimant than a state high court typically is.  But today's case proved only the norm.

The instant plaintiff found no relief from the usual rule that, as the Appeals Court quoted precedent, "employment at will can be terminated for any reason or for no reason."  Massachusetts admits of narrow exception to the rule for "well-defined public policy," "preferably embodied in a textual law source."  Think firing a model for taking maternity leave, a claim that resonates with dimensions of both statutory entitlement and civil rights.  Yet even while the plaintiff here pointed to a specific statutory entitlement, the Appeals Court rejected his claim.

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

Meehan's rebuttal was not in the appellate record, the court wrote in a footnote.  From its absence, one might infer that it was not predicated on what the court would regard as worthy public policy.  An employer's "internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception," the Supreme Judicial Court held previously.  "If it were otherwise, our courts would become super personnel departments," the Appeals Court reasoned.

Justice Meade
Mass.gov
It would be hard to conclude that the court's ruling is other than consistent with common law norms.  Many a state court has never seen a wrongful termination claim it liked, at least in the context of at-will employment.  And the notion of utterly "at will" conforms to the American norm of freedom to contract.

At the same time, the ruling seems to undermine the statute.  As a practical matter, an employer asserts many reasons for an adverse personnel action, and an employee's rebuttal answers in kind.  The rebuttal itself is then a viable predicate for termination—"not a team player"—even when the employee alleges, inter alia, an actionable wrong, such as discrimination.  The employee may then complain of discrimination vis-à-vis the precipitating adverse action.  But the employee had that option anyway.  There is nothing to be gained, and everything to be lost, by using the rebuttal statute as a resolution procedure.

Justice Henry
Mass.gov

That was the thrust of the dissent.  "Only the credulous and fools would exercise this right henceforth," Justice Henry wrote of the rebuttal statute.

Meditech admitted that it terminated Meehan solely for writing the rebuttal, something he had a statutory right to do.  Dispute resolution is among the purposes of the statute, Justice Henry reasoned, possibly sparing the Commonwealth an unemployment insurance claim.  At minimum, the personnel record, which might be reviewed by a prospective second employer, is complete with both sides of the story.  Meditech has no apparent, legitimate interest, Justice Henry observed, merely in disallowing rebuttal under the statute.

The dissent concluded:

The result the majority reaches renders the statutory right useless and illusory, and empowers employers to punish employees for doing exactly what the Legislature authorized them to do. Countenancing such a result is wholly inconsistent with a just—or even a sane—employment policy. The majority essentially casts the Legislature as a trickster, creating a trap for unwitting employees that employers now may spring.

The case is Meehan v. Medical Information Technology, Inc., No. 19-P-1412 (Jan. 20, 2021).  Justice William J. Meade wrote the majority opinion, which Chief Justice Green and Justice Vuono joined.  Justice Meade was an appellate attorney in the attorney general's office in the 1990s and deputy chief legal counsel to Governor Mitt Romney in the 20-aughts before going on the bench, and he teaches appellate practice at Suffolk Law School.  

Justice Vickie L. Henry wrote the dissent, which Justice Rubin joined.  Justice Henry was a commercial litigator in intellectual property, product liability, and other matters for more than a decade, and then a senior staff attorney for Gay & Lesbian Advocates & Defenders before her appointment to the bench.  The case was reheard after the initial panel divided 2-1.  The addition of two judges apparently only added a vote for each corner.

Tuesday, January 19, 2021

Class labor action fails on appeal, but highlights persistent failure to afford living wage for U.S. workers

Boston, Mass. (from Pixabay by StockSnap, licensed)
Notwithstanding its failure, a class labor action dismissed by the Massachusetts Appeals Court highlights the persistent legal norms that keep U.S. workers under compensated.

Siew-Mey Tam worked as a property manager for Federal Management Co. (FMC) in Boston, managing Mason Place, a 127-unit, subsidized-housing community in the heart of the city.  Dissatisfied with her terms of employment, Tam became the lead plaintiff in a class action accusing FMC of violating wage-and-hour laws.  The class was certified in 2015.

Among the issues in the case was FMC's classification of Tam and others as exempt administrative employees.  A company's ability to exploit so-called "salaried" workers with responsibilities that defy the number of work hours in the week facilitates subversion of already paltry U.S. minimum wages and evasion of overtime pay.  This is another in a genus of "misclassification" problems that form our bleak landscape of employment rights and was part of the back-and-forth tug of regulatory might in the Obama and Trump administrations.

In 2016, the threshold for overtime exemption under Department of Labor regulations pursuant to the Fair Labor Standards Act (FLSA) was $455 per week, or $23,660 per year.  For comparison, the intransigent federal minimum wage is, and has been since 2009, $7.25 per hour, or up to $15,080 per year.  The Massachusetts minimum wage in 2016 was $10 per hour, or up to $20,800 per year.  Having been unable to push a federal minimum-wage hike through Congress, the Obama Administration announced a doubling of the exemption threshold, to be effective December 1, 2016, from $455 per week, to $913 per week, or $47,476 per year, with automatic upward adjustments to follow beginning in 2020.

From the Economic Policy Institute
But that increase never happened.  A Texas judge blocked the regulations in November 2016 (N.Y. Times), and the Trump Administration in 2017 junked the upgrade.  The threshold remained at $455 for three more years, until the Trump Administration promulgated a more modest increase to $684 per week, or $35,568 per year, which took effect in 2020.  While the federal minimum wage remains at $7.25, the Massachusetts minimum wage has crept upward, in 2021 to $14.00 per hour, or up to $29,120, on its way to a living wage.

In the instant case, according to the court, "[i]t was uncontested that Tam worked more than 40 hours per week but generally was not paid overtime. Instead, the dispute was whether the nature of Tam's job meant that she was an exempt administrative employee to whom overtime pay was not due."  FMC maintained that in addition to a base salary in excess of the $455 threshold, Tam's "primary duty include[d] the exercise of discretion and independent judgment with respect to matters of significance," which regulations also require for "administrative" exemption.

Most of the appellate decision in Tam v. FMC concerns a deposition in 2016, in which, it seems from the court's description, the plaintiffs' case self-destructed.  Tam's answers supported the FMC position that she exercised considerable authority over the property.  Moreover, "Tam gave other answers that raised serious concerns about how the case and a related discrimination case against [FMC] were being litigated," pointing to inconsistencies in discovery responses.

"For example," the court observed, "confronted with a factual misstatement in her interrogatory answers filed in the [related] discrimination case, Tam attempted to address the misstatement by explaining that she had signed the answers without actually reading them, because she 'trust[ed her] lawyer.'"  The deposition was especially damaging because Tam was the lead plaintiff for the class.

The Appeals Court affirmed summary judgment and an award of pretrial costs against Tam and a co-plainitff, Raymond.  A collateral action against FMC remains pending.

Included in the affirmance was the dismissal of a separate retaliation claim by Raymond.

A former property manager for FMC, Raymond alleged that she was fired for her wage-and-hour complaints, a retaliation that would violate Massachusetts law.  The courts ruled that Raymond's claim came up short because she did not sufficiently notify FMC of the legal basis of her discontent.  An employee need not necessarily invoke a specific statute, the Appeals Court held, but the court characterized Raymond's objections as closer to "abstract grumblings" (quoting precedent) than to a reasonably understandable assertion of statutory rights.  That's a cautionary tale for low-wage employees who might not understand the legal nuances of classification and take as true an employer's declaration of what the law is.

The real shame of the case is what it reveals about the deplorable state of U.S. labor rights.  According to MIT, a living wage for a Boston worker is $670 per week, or $34,819 per year.  That's well more than the exemption threshold before 2020 and just about equivalent to the threshold now.  An exempt employee can be expected to work more than 40 hours per week, so can't hold down a second job—even assuming that it would be civilized to expect that, which it's not.

So the present regime sets an expectation that a worker earning a minimum living wage will work longer than a 40-hour week.  One might expect that administrative employees working more than 40 hours per week would do a little better than a living wage.  Meanwhile, hourly workers still fall far short.  And the per annum numbers I've used here assume 2,080 working hours per year: no break.  Federal law requires no paid vacation time.

The FLSA has been around since 1938.  It's at least arguable that the proceeds of industrialization and technology should be that people don't have to work as hard to survive.  Even by the time the FLSA turns 100, will employees working full time in the shining city on a hill be able to meet basic needs?

The case is Tam v. Federal Management Co., No. 19-P-1332 (Mass. App. Ct. Jan. 6, 2021).  Justice James R. Milkey authored the opinion of a unanimous panel that also comprised Justices Blake and Henry. 

Tuesday, October 13, 2020

Secret civil justice undermines employee rights

Pintera Studios
A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.


Sunday, October 11, 2020

Oops. We accidentally linked healthcare to your job.

mohamed_hassan (pixabay.com)

I stand with the rest of the world in awestruck horror of America's stubborn insistence that access to healthcare should be a function of both one's wealth and the largesse of one's employer.

Critics of the free market are quick to conclude that it has failed the American worker.  Economic libertarians are just as quick to tout the essentiality of free contract.  Before we make any decisions about the free labor market, maybe we should try it out.  A market in which a worker can't change jobs for fear of a recurring cancer or a bankrupting accident is not a free labor market.

For the NPR podcast Throughline, Lawrence Wu set out recently to explain how we arrived at the problem of employer-dependent healthcare.  The description of the episode, "The Everlasting Problem" (Oct. 1, 2020), reads:

Health insurance for millions of Americans is dependent on their jobs. But it's not like that everywhere. So, how did the U.S. end up with such a fragile system that leaves so many vulnerable or with no health insurance at all? On this episode, how a temporary solution created an everlasting problem.

For This American Life and Planet Money, Alex Blumberg and Adam Davidson also addressed this subject back in 2009.  Their bit ran only 11 minutes, but I have never forgotten the shocking fact that "four accidental steps led to enacting the very questionable system of employers paying for health care."


Tuesday, May 1, 2018

Why do law profs lose their employment suits? Because most plaintiffs lose

An article about litigious law profs in the Albany Law Review by Nova Southeastern Law Professor Robert Jarvis is getting a lot of play in legal academic circles.  Jarvis did an astonishingly thorough and first-of-its-kind survey of cases in which law professors are plaintiffs suing over employment matters.  Here's how the ABA Journal (May 2018, at 15) summarized it:

Law professors often lose when they sue over employment matters such as not getting hired, tenure denials or pay disputes, according to an article by Robert Jarvis in the latest issue of the Albany Law Review. Jarvis, a professor at Nova Southeastern University’s Shepard Broad College of Law, wrote that three issues are at the root of these lawsuits: dissatisfaction with, and professional jealousy of, faculty colleagues; disagreements with, and distrust of, administrators; and feeling that others are receiving better, and undeserved, treatment. In what appears to be the first study of its kind, Jarvis also found that law professor suits are far more common in recent years.
Jarvis's work is quality, but commenters have read too much into his observations.  Eager to dine on the raw flesh of irony, stories such as Above the Law's have ripped lines from Jarvis, such as "many law professors are guilty of a shocking level of thin-skinnedness," to over-explain law profs' poor record in litigation.  First, Jarvis offered that as an observation, not an explanation.  Second, "many" does not mean even "most."  It's surely true of "many," but that hardly explains the litigation record.

Jarvis himself observed, "law professors generally do a poor job assessing their chances, for they lose much more often than they win."  That's just wrong--a non sequitur.  Any plaintiff in a civil action could be said to have assessed the situation poorly, simply because defendants usually win civil actions.  Yet plaintiffs keep suing.  So there must be other reasons to sue.  One reason to sue is that a plaintiff might hope to win a settlement, because a defendant wishes to avoid a public row or litigation transaction costs.  Another reason to sue is that a plaintiff has nothing to lose.  A lawsuit in a hopeless situation might yet stake out a public defense of integrity and leave a record to protect future employment prospects.

Importantly, whether a plaintiff wins in litigation or seeks to accomplish these ancillary aims says nothing definitive as to whether plaintiff was actually wronged.  Plenty of plaintiffs are wronged and lose.  Evidence controlled by defendants often cannot be marshaled sufficiently to make the plaintiff's case to the requisite standard.  Courts broadly defer to universities in the construction of tenure contracts, even though the universities draft them and they're not negotiable.  And all kinds of legal standards, such as sovereign immunity, and sometimes tort reforms, such as anti-SLAPP laws, protect defendants prophylactically. 

So why do law professors lose their cases?  Because all plaintiffs usually lose, for all sorts of reasons, some legitimate, some not.  In academics, universities dominate the employment bargain in a supply-rich market, so law professors, like anyone else, start from a disadvantage.  And law professors might be expected to turn up as plaintiffs more often than the average employee because the law professor correctly calculates that she or he has a better-than-average chance of beating the odds.

Full disclosure, my own once upon a case is mentioned, fairly and correctly, in a footnote in Jarvis's article, on the subject of reputational injury.  When I sued, I was most definitely accused of being thin-skinned--by people who had no idea what it was like to see one's career and livelihood pouring down the drain, and family suffering by association, upon defamatory falsehoods that spread like wildfire.  I could have not sued.  One colleague advised me to just wait five years and let the false allegations fade from memory.  Even if they would have faded, a dubious proposition, waiting would have meant career stasis for at least five years, maybe forever.

And had I not sued, despite the odds, and had the lawsuit as leverage, I never would have received the public letter of exoneration that I did.  My current employer asked to see that letter before I started a new job.  I don't know whether I count as a loss in Jarvis's statistics.  My lawsuit didn't win any money, and I dismissed it with prejudice.  But I don't think I lost.

Anyway, why law profs lose their cases is not what worries me the most about Jarvis's findings.  I'm far more concerned about his observation that lawsuits in legal academics are on the uptick.  This I believe to be the result of worsening employment conditions and the frustration of law faculty--me included--whom, in the troubled legal education market, universities increasingly expect to be vocational trainers and obedient serfs, rather than erudite educators and champions of intellectual freedom.  In examining the unusual incidence of law professor-employee plaintiffs, Jarvis is seeing just the tip of a nasty iceberg.

Tuesday, October 24, 2017

Policy proposal threatens academic freedom at University of Arkansas

Watchdogs in my former home state of Arkansas have alerted me to a major proposed change to University of Arkansas Board of Trustees tenure policy that threatens faculty academic freedom and tenure.  I wrote on this subject and presented at an AAUP conference some time ago; see "Penumbral Academic Freedom" at SSRN.  I happen to have just started serving here at UMass Dartmouth on a campus-wide committee studying policy related to faculty privileges and responsibilities.  I plan in time to write more about my experience here at UMD.  Meanwhile, though, what is happening at Arkansas, just one instance amid an alarming national trend, needs wider attention.  Simply put, an attack on academic freedom anywhere is an attack on academic freedom everywhere.

As is widely known both in and outside the academy, this is not a happy time for freedom of expression on the university campus.  (See this New York Times op-ed from yesterday, by University of Oregon President Michael Schill.)  Professor Catherine Ross at GW Law wrote an excellent piece recently for 66:4 Journal of Legal Education on "Assaultive Words and Constitutional Norms," explaining the clash between First Amendment freedom of speech and lately abundant and popular efforts to regulate speech that is normatively objectionable, such as hate speech.  The problem extends to our complicated American relationship with whistleblowers: compare the Obama Administration's "war on whistleblowers" (Guardian) with the later pardoning of Chelsea Manning.

In the academic sphere, the problem has played out in attack on faculty and faculty privileges, such as tenure, that are designed to preserve the university as "the quintessential marketplace of ideas."  The corporatization of the university and the infantilization of faculty have been documented and described, for example by Johns Hopkins Professor Benjamin Ginsberg in his 2013 book, The Fall of the Faculty (Amazon).

My colleague Professor Joshua Silverstein at the University of Arkansas Little Rock Law School wrote an excellent missive to his faculty on the proposed changes to Arkansas board policy.  He explained how the policy changes conflict with established AAUP norms.  Especially problematic is a provision that would allow termination of faculty for "unwillingness to work productively with colleagues."  As Professor Silverstein aptly observes, this is administrator-speak for what the AAUP long ago described and condemned as a "collegiality" requirement.

That provision would allow the termination of a faculty member who ignores instruction to teach the politically correct or anti-intellectual version of a subject in the classroom; who refuses to give passing grades for failing performance, when campus bean counters fear losing the student's tuition dollars; or who objects to the elimination of disciplines such as philosophy and foreign language as the university looks to budget according to revenue potential rather than academic mission.  In the corporatized university, there is no room for faculty governance and less for freedom of thought.  Faculty are expected to toe the line and make the widgets.  That's a frightening vision of the university, especially when one contemplates the impact on young adults of modeling automatous obedience in a purported democracy.

Professor Silverstein has given me permission to excerpt his missive, below.  His redline-and-comment version of the board policy I have parked here.  I note that Silverstein had to create the redline version himself; only a clean revision was distributed.  The redline version, he warns, might have mistakes that are artifacts of conversion from PDF.  The clean revision proposal is here.  The current rule can be found here.  Silverstein disclaims that he only received the proposal last weekend, so his review is not comprehensive.  Also, these comments pertain only to changes to the board policy on tenure.  Other proposed changes would affect employment periods and distinguished professorships.

The academy must stand together to repel attacks on tenure.  And we in the legal academy have an especial responsibility to heed the call.

--


Colleagues:

Last week, the faculty senate received proposed changes to the UA System rules regarding tenure (Board of Trustees Policy 405.1), employment periods (Policy 405.4), and university and distinguished professorships (Policy 470.1).   This email concerns the proposed changes to policy 405.1.  As the subject of my email indicates, I believe that the proposed changes are a grave threat to tenure and academic freedom within the entire UA System.  Most importantly, the revisions dramatically expand the grounds justifying termination for cause.  They do so by (1) effectively establishing collegiality as a basis for termination, and (2) permitting dismissal after a single unsatisfactory rating in an annual review.  In addition, the revisions critically weaken the procedural protections available at university committee hearings regarding terminations.  If these changes are adopted, the damage to the University of Arkansas will be wide-ranging and likely permanent.  It is thus imperative that we speak out about the threat.

*  *  *


1.  The University may not retroactively alter tenure rights.

In my opinion, the proposed changes to 405.1 cannot retroactively alter the rights granted under existing tenure contracts.  Well-established principles of contract law and constitutional law firmly support this conclusion.  Thus, the changes to 405.1, if adopted, will only apply to faculty not yet tenured.  However, I have not conducted exhaustive legal research on this point.  In addition, while nothing in the proposal suggests that the university believes it can—or intends to—apply the changes retroactively, an express admission on these points is the only way we can be sure of the thinking of the Board of Trustees and the rest of the central administration.

Even if the changes are applied solely in a prospective manner, that only modestly reduces the damage that the new rules will cause.  For example, all new hires will be subject to the revised standards.  That is a serious problem.  The changes will make it more difficult to hire the best entry-level and lateral faculty.  And those who are hired will possess weakened tenure protections and more limited academic freedom, both of which will result in numerous harms to teaching, research, and service within the UA system.

2.  The proposal dramatically expands the scope of what constitutes “cause” for purposes of terminating faculty

a.  Introduction.

Let me start by highlighting the critical textual changes to the definition of “cause.”  The current definition is set forth in section I of Policy 405.1 (which is on page 2 of the policy):

“Cause” is defined as conduct which demonstrates that the faculty member lacks the ability or willingness to perform his or her duties or to fulfill his or her responsibilities to the University; examples of such conduct include (but are not limited to) incompetence, neglect of duty, intellectual dishonesty, and moral turpitude.

Compare that to the revised definition, set out in section I of the proposal on pages 1-2 (and on pages 1-2 of my redline):

Cause - Cause is defined as conduct that demonstrates the faculty member lacks the willingness or ability to perform duties or responsibilities to the University. A faculty member may be disciplined, or dismissed, for cause on grounds including but not limited to unsatisfactory performance or (1) professional dishonesty or plagiarism; (2) discrimination, including harassment or retaliation, prohibited by law or university policy; (3) unethical conduct related to fitness to engage in teaching, research, service/outreach and/or administration, or otherwise related to the faculty member’s employment or public employment; (4) misuse of appointment or authority to exploit others; (5) theft or intentional misuse of property; (6) incompetence, job abandonment, pattern of disruptive conduct or unwillingness to work productively with colleagues, or refusal to perform reasonable duties; (7) threats or acts of violence or retaliatory conduct; or (8) violation of University policy, or state or federal law, substantially related to performance of faculty responsibilities or fitness to serve the University

I have highlighted two pieces of the revised definition.  First, I highlighted the addition of “unsatisfactory performance” near the beginning of the definition.  Second, I highlighted certain language in item 6.  Section 2.b. of this email addresses item 6.  Section 2.c. of this email addresses the insertion of “unsatisfactory performance.”  There is additional language in the proposal relating to the two pieces of the definition that I highlighted.  That language is discussed in the sections below corresponding to the highlighted language.

b.  Establishing collegiality as a basis for termination dramatically reduces tenure protections and academic freedom.

The language I highlighted in item 6 is very dangerous.  “Pattern of disruptive conduct” is a deeply subjective standard.  “Unwillingness to work productively with colleagues” is worse.  These standards create a serious potential for abuse.  It takes little imagination to see how the standards could be employed to stifle academic freedom by dismissing or otherwise punishing tenured faculty on the pretextual grounds that they are “disruptive” and/or “uncollegial.”  Note that including a collegiality requirement in tenure standards violates AAUP principles.  This change would thus move the UA System out of compliance with the AAUP.  See On Collegiality as a Criterion for Faculty Evaluation at page 1 (and throughout)), available here.

The importance of the changes in item (6) is highlighted by the fact that the “work productively” collegiality standard is repeated in the section of 405.1 that concerns academic freedom.  The proposal amends section IV.A.14.c, on page 10 by inserting the following language: “Faculty are expected to work productively with colleagues in carrying out the mission of the University.”  By adding this to the academic freedom section, it is clear that the drafters intend the language to circumscribe the scope of academic freedom everywhere within the University of Arkansas.

c.  The proposal permits termination after a single unsatisfactory rating in an annual review; this also dramatically reduces tenure protection and academic freedom.

Under the current standard, termination for performance issues may result only from “incompetence,” “neglect of duty,” or the like.  Under the proposed standard, a mere finding of “unsatisfactory performance” in a single annual review is sufficient grounds to warrant termination.  That is a profound change.

To elaborate, the proposal inserts new standards regarding annual reviews in section V.A.9.  Here is the pertinent language:

Any campus procedures regarding post-tenure review shall not allow greater than one academic year, with active cooperation from the faculty member, for an overall unsatisfactory performance rating to be substantially remedied prior to a recommendation of dismissal on the basis of unsatisfactory performance. In other words, if a faculty member’s overall performance is evaluated as unsatisfactory for an academic year, any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal on twelve months’ notice as provided for in this policy. Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.

On the surface, this provision appears to provide that termination is only permissible after two unsatisfactory ratings.  In the first yellow block, the provision states that “any improvement plans or other remedial measures are expected to result in a satisfactory evaluation by the end of the following academic year; if not, the faculty member may be issued a notice of dismissal . . .”  (Emphasis added.)  That suggests that two unsatisfactory ratings are required.  But now consider the last sentence of the language I quoted, also highlighted in yellow: “Again, such period of time for remediation assumes the active cooperation and engagement of the faculty member; otherwise, a shortened timeframe may be utilized.”  (Emphasis added.)  This means that if the university, in its subjective judgment, determines that a person is not being sufficiently “cooperative” or “engaged” in the remediation plan, termination is possible well before the end of the first academic year after the unsatisfactory rating.  In short, a single unsatisfactory rating, combined with a judgment of insufficient “cooperation” or “engagement,” can result in termination. 

That is a dramatic change from the existing rule.  To repeat, the current standard requires “incompetence,” “neglect of duty,” or something comparable.  Those words denote performance that is considerably worse than suggested by a mere finding of “unsatisfactory.”  Indeed, “incompetence” and “neglect of duty” are much worse than multiple findings of unsatisfactory performance.

This change also violates AAUP standards.  For example, in a report regarding Greenville College in Illinois, the AAUP said this:

As the writers of the 1958 Statement on Procedural Standards had assumed, most institutions have indeed developed their own standards of what constitutes adequate cause for dismissal.  They most commonly tend to be “incompetence,” “professional misconduct,” “gross neglect,” and the like.  In comparison, Greenville’s standard of “unsatisfactory service” not only is nebulous and subjective, but also sets too low a bar for adequate protection of tenure and academic freedom . . . .

Report, Academic Freedom and Tenure: Greenville College (Illinois) at page 86, available here.

Likewise, the AAUP’s formal statement on post-tenure review explains that the appropriate standard for “cause” is “incompetence, malfeasance, or failure to perform . . . duties.”  Post-tenure Review: An AAUP Response at page 230, available here.  The report proceeds to explain that if “the standard of dismissal is shifted from ‘incompetence’ to ‘unsatisfactory performance,’ . . . then tenured faculty must recurrently ‘satisfy’ administrative officers rather than the basic standards of their profession,” which fatally undermines academic freedom.  See id.

As these AAUP documents make clear, the proposed change of the cause standard from “incompetence” and “neglect of duty” to mere “unsatisfactory” performance is fundamentally inconsistent with core principles of academic freedom.  And that would be true even if the proposal required multiple findings of unsatisfactory performance.  As I explained, however, a single finding of unsatisfactory performance can justify termination under the proposal (when combined with a finding that the faculty member is not sufficiently cooperative or engaged in remediation of the unsatisfactory performance).

3.  The proposal critically weakens procedural protections.

Section IV.C. of 405.1 concerns the procedures for dismissing a tenured or tenure-track faculty member.  Part of the termination process is a hearing before an impartial committee.  The proposal revises section IV.C.5., on page 14, to strip away the committee’s ability to grant procedural protections equivalent to those afforded in a court of law.  See comment j7 on page 12 of the redline, which explains this point in more detail.

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Note that the redline contains a few other substantive comments.

As I said, this proposal is a striking attack on academic freedom and tenure.  It is thus imperative that we make our voices heard.

Josh
Joshua M. Silverstein
Professor of Law
University of Arkansas at Little Rock
William H. Bowen School of Law
1201 McMath Ave.
Little Rock, AR 72202-5142