Volume 32, Number 1, Fall 2016

The University of Minnesota Law School has been the editorial home of the ABA Journal of Labor & Employment Law since 2009. Today, the Journal’s editorial work is accomplished collaboratively by two Faculty Co-Editors, seven third-year student editors, and nine second-year student staff members. The editors discuss the plans of the third-year student editors after graduation, ranging from clerkships on the Minnesota Court of Appeals and Maine’s Supreme Judicial Court to law firms on both the labor and management side.

The author brings her experience as Chair of the Whistleblower Protection Advisory Committee to examine the effectiveness of protection for employees reporting workplace safety hazards. Her detailed review of data on processing and litigation of OSH Act whistleblower claims reveals the ineffectiveness of current statutory protections. She compares these weaknesses with the strengths of other federal workplace whistleblower protection laws and draws from that comparison specific suggestions for improving OSH Act whistleblower protection.

The authors describe the evolution of the Equal Employment Opportunity Commission’s (EEOC) view that Title VII does prohibit transgender and sexual orientation discrimination. The EEOC relies on the Supreme Court’s holding in Price Waterhouse that adverse employer treatment of an employee who fails to comply with societal gender norms can constitute discrimination “because of sex.” They identify the limitations of this argument and anticipate that the issue will ultimately be resolved by the Supreme Court.

The author, a management attorney and former EEOC Vice Chair, details the agency’s development of a theory that relies on section 707(a) of Title VII to challenge severance agreements that are conditioned on waiver of employees’ rights to interact with the EEOC as a “pattern or practice of resistance” to their enjoyment of Title VII rights. She objects that this resistance theory allows the EEOC to sue whenever severance agreement language could potentially interfere with an employee’s ability to interact with the EEOC, even if the employer never acts in reliance on the agreement.

The author asserts that federal law preempts state legislation requiring employers to eliminate gender pay differences that do not violate Title VII or the Equal Pay Act, or that provide remedies greater than federal law. He offers a detailed examination of laws in New York, California, and Massachusetts and concludes that they are preempted by Title VII because, if employers were to comply with some state fair pay law provisions, they would violate the federal law’s prohibition of preferences for protected groups.

The authors explain the Supreme Court’s three alternative tests of judicial deference to agency action and how these tests are applied significantly differently under each of these nondiscrimination statutes. They draw from the Supreme Court’s jurisprudential theories and holdings to offer practical advice to attorneys arguing for or against deference to EEOC regulations and sub-regulatory guidance, including specific questions to address under each of the deference tests.

The author provides a detailed description of two recent National Labor Relations Board cases on unionized workers’ rights to representation in employer disciplinary investigations, contending both cases are consistent with the text of the National Labor Relations Act and are logical and reasonable applications of the Weingarten doctrine. The Article concludes by highlighting the practical effects for union employees of the newly recognized rights.

The author, a third-year student at the University of Minnesota Law School and the Lead Managing Editor of the Journal, conducted original empirical research investigating why labor arbitrators regularly reinstate police offices discharged for misconduct, finding that the principal reasons for overturning discharges are police departments’ failures to provide sufficient evidence of guilt and to observe required procedures.