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Volume 31, Number 2, Winter 2016

The Editors' Page
By Stephen F. Befort and Laura J. Cooper
From the start of the University of Minnesota’s involvement with the Journal, its editorial work has been a collaboration between the two Faculty Co-Editors and a group of third-year law student editors and second-year law student staff members. The editors explain how student notes are selected and published. This issue includes two student notes and four practitioner articles, all reflecting a variety of experiences. Read further for details.

Labor and Employment Law at the 2014–2015 Supreme Court: The Court Devotes Ten Percent of Its Docket to Statutory Interpretation in Employment Cases, But Rejects the Argument That What Employment Law Really Needs Is More Administrative Law
By Scott A. Moss
The 2014–2015 Supreme Court Term was a significant one for labor and employment law—and saw the passing of Justice Antonin Scalia, leaving an eight-Justice Court with likely four-four splits in a range of public law cases that previously had greater potential for significant holdings on, among other topics, public employee unions, affirmative action, and an employer mandate to cover contraceptive care. Until the Court returns to full strength and perhaps a bit longer, district and appellate court decisions fleshing out the large batch of 2014–2015 Supreme Court decisions may be more worthy of observation than the Court itself.

Resolving ERISA’s “Church Plan” Problem
By Jeffrey A. Herman
Whether an employee benefit plan receives church-plan status under the Employee Retirement Income Security Act of 1974 (ERISA) is crucial for the millions of employees and beneficiaries enrolled in plans maintained by religiously affiliated organizations, such as schools and hospitals. Management attorney Jeffrey A. Herman addresses federal courts’ inconsistent textual interpretations of the church plan exemption. Using basic canons of statutory construction, he argues that ERISA’s plain text and agency interpretations warrant broad construction of the church plan exemption.

Tackling Workplace Bullying in Tort: Emerging Extreme and Outrageous Conduct Test Averts Need for Statutory Solution
By Sarah E. Morris
Recent media attention to workplace bullying has raised the question of whether bullying victims have legal remedies. While sexual harassment law may assist some victims, bullying targets will most often look to common law for relief. The author describes the nature of workplace bullying and explains why it is actionable under the common law tort of intentional infliction of emotional distress (IIED) and concludes that proposed anti-bullying statutes are unnecessary; would not strengthen IIED doctrine; and would undermine other statutory claims, such as Title VII sexual harassment claims.

The NLRB’s Evolving Joint-Employer Standard: Browning-Ferris Industries of California, Inc.
By Daniel B. Pasternak and Naomi T. Perera
Management attorney Pasternak and union attorney Perera summarize the National Labor Relation Board’s 2015 decision overturning longstanding precedent to redefine when firms are joint employers under the NLRA. The authors analyze NLRB and Regional Director decisions in the wake of Browning-Ferris and present different perspectives on the decision’s likely impact on franchisee-franchisor and contract labor relationships and its broader implications for labor-management relations.

Revisiting the Offensive Bargaining Lockout on the Fiftieth Anniversary of American Ship Building Company v. NLRB
By Douglas E. Ray and Christopher David Ruiz Cameron
Fifty years ago, the Supreme Court held an employer could legally lock out employees in support of its bargaining demands—the so-called offensive or bargaining lockout. Since then, courts and the NLRB have expanded the offensive lockout doctrine allowing employers to lock out employees who have not threatened to strike and are willing to work while negotiations continue. The authors assert that precedent has turned the offensive lockout into a “nuclear option” for employers, contrary to national labor policy promoting collective bargaining, and propose that the Court return to permitting offensive lockouts only in the limited circumstances of American Ship.

Navigating Through Hills & Dales: Can Employers Abide by the NLRA While Maintaining Civil Work Environments?
By Arielle A. Dagen Sunsdahl
The author analyzes the legality of employer handbook policies in the wake of the 2014 NLRB decision in Hills & Dales, which has resulted in confusion and uncertainty for employers drafting workplace civility rules to promote positive work environments, and provides employers guidance in drafting NLRA-compliant policies.

Third-Party Inflammatory Appeals to Prejudice: Race, Religion, and Union Elections
By Marc J. Shinn-Krantz
The author focuses on regulation of third-party inflammatory appeals to racial or religious prejudice during representation election campaigns. On the basis of his review of NLRB and court decisions and conflicting policy objectives, he concludes that the Board should give less weight to third-party inflammatory appeals than those made by primary parties when deciding whether to overturn election results.