Tuesday, May 15, 2012

Short video about workers' rights in Massachusetts

Massachusetts is an "at will" employment state, but what does that mean in practice? Are employers free to fire workers for any reason at all? For a short video about some of the key exceptions to the at-will rule, click here or on the image below. 

Saturday, May 12, 2012

Commission sends ACTA question to court

Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the treaties governing the European Union, in particular the Charter of Fundamental Rights? 

That is the question before the Union’s highest court. John Clancy, the spokesperson for Trade Commissioner Karel De Gucht, issued a press release dated May 11 confirming that the European Commission has referred the issue of ACTA’s legality to the European Court of Justice. Under articles 207 and 218 of the EU Treaty, ACTA needs the consent of the European Parliament as well as ratification by the Member States. But ACTA simply does not have the parliamentary votes to pass.

The Greens are unequivocally against the measure, as are the Progressive Alliance (the Socialist group), the Liberals, and the United/Nordic Green Left. There are 736 members of the European Parliament (MEPs)  so the treaty would need 368 votes in order to move on to state-by-state ratification. With the anti-ACTA forces comprising four of the political groups that account for more than 368 MEPs, and only an up-or-down vote available at this stage, ACTA seems to be effectively dead. Sending the matter to the court seems like an attempt to keep it on life support, which is why the Socialist group welcomed an earlier decision by a parliamentary committee not to do so. For a video of the group's leader, Hannes Swoboda, explaining why the Parliament should treat the future of ACTA as a political matter not a legal one, click here.  According to the Greens, the Commission's referral to the court may bring "an important dimension to clarifying the legality o the document" but will not interfere with Parliament's timetable, with a vote on ACTA happening very soon.

Commissioner Karel De Gucht

Thursday, May 10, 2012

When is teaching inherently religious?

Is the teaching of Hebrew inherently religious? That is the key question in a discrimination case currently before the highest state court in Massachusetts. On May 8, the Supreme Judicial Court heard arguments in Temple Emanuel of Newton v. MCAD, which started in August 2008 when a teacher filed a charge of age-based discrimination (hostile work environment and discriminatory discharge) with the Massachusetts Commission Against Discrimination (MCAD).

In most cases, after the MCAD has served the complaint the respondent (defendant) submits a document called a position statement, after which the complainant (plaintiff) offers a rebuttal. Then, when the papers from both sides are in, the MCAD holds an investigative conference. But this case is different.

After receiving the complaint, the respondent, Temple Emanuel, went to superior court for an injunction claiming that an MCAD investigation would violate its right to the free exercise of religion under the First Amendment. The argument succeeded, and the superior court declared that the MCAD lacked subject matter jurisdiction and permanently enjoined it from investigating the complaint. Following the MCAD's appeal, the Supreme Judicial Court took up the case.

In its brief, the MCAD points out that religious institutions are only exempt from anti-discrimination laws in a very narrow set of circumstances, such as when the employee in question has a "ministerial" function.  Teachers at parochial schools do not usually fall into this category.  While the Temple does not dispute this, it contends that the duties of all teachers at its school are "primarily religious" because they provide the students "with educational and religious instruction in all aspects of Conservative Judaism."  In instructing her students in Hebrew at this particular school, the complainant was doing something inherently "religious in nature," the Temple argues. In essence, the respondent contends that teaching at the school cannot be, as a matter of definition, secular.

That argument persuaded the Superior Court, which held that learning Hebrew was "part and parcel of the students' study of Jewish prayer, texts, and rituals" thereby rendering the teacher's job "ministerial." Will the SJC agree? If so, the case will have implications for employees at many other religious schools in the commonwealth. We shall have to wait and see.

Tuesday, May 8, 2012

Traffic Light Coalition

For election law aficionados and dispute-resolution practitioners alike, the news from Germany's northernmost state of Schleswig-Holstein provides some helpful insights into the dynamics of multi-party negotiations. Although the Pirate Party's rise continues, the stranger story is how a quirk of Schleswig-Holstein's version of list PR is pushing a small ethnic party to the fore. And despite the fact that the state is a relatively small one, the election's impact extends all the way into the federal parliament.

The Greens

It Takes Three

The recent elections left the two major parties, the Social Democrats (SPD) and the Christian Democrats (CDU), with 22 seats each in the 69-member parliament. For a workable majority, one of them will have to form a coalition with at least two of the smaller parties. The Greens obtained their best result to date, with just over 13% of the votes and 10 seats. The Free Democrats (FDP) managed to avoid collapse, but with just six seats now find themselves on a par with the new Pirate Party. The fifth party, and likely coalition partner with the Social Democrats and Greens, is the South Schleswig Voter Federation (SSW), which brings us to a curious feature of Schleswig-Holstein's election laws.

The Odd One Out

To win seats in the state parliament, a political party has to obtain at least five percent of the votes statewide. The same principle applies at the federal level, where the five-percent threshold helped keep extreme left-wing and right-wing groups out of office. But in the late 1970s and early 1980s it also served as an incentive for various anti-nuclear organizations to form the Greens. Coalescing into one electoral list enabled the Greens to gain a toehold in parliament, but in the years immediately after German reunification the five per cent threshold proved insurmountable.

However, the SSW, which represents the Danish and Frisian minorities in Schleswig-Holstein, does not have to meet this hurdle. As a result of a 1955 agreement with Denmark, the SSW is exempt from the fie percent rule and the party's special status has, until now, kept it from a king-making role. The last time the SSW looked poised to put the SPD into office, the CDU threatened to end the party's exemption from the five percent rule.

But with a combined force of just 28 legislators, the CDU and the Free Democrats (which had ruled together since 2009) cannot form a government. Similarly, a Green-SPD partnership would still find itself three seats short of an overall majority. This means that the SSW is now pivotal. Because the party's trademark color is blue, commentators have dubbed the putative new government the Danish Traffic Light Coalition (Denmark's traffic signals are red, green, and blue).

Pirate Power

But for the anomalous SSW, the pivotal party would have been the Pirates. The new digital-rights party's growing pains might have made it an unstable coalition partner over the lifetime of a parliament. On the other hand, as a party with a growing legislative presence across Europe and clear (albeit narrow) legislative priorities, the Pirate Party could have been a more predictable negotiating partner. With its ethnic base and almost automatic parliamentary presence the SSW has no incentive to grow, whereas the Pirates need to maintain momentum if they are to keep jumping over the five per cent hurdle. As a party that would benefit from power by obtaining specific policy commitments from the SPD, the Pirates might be easier to bargain with and lock into a long-term agreement.

National Impact

Ironically, by avoiding a complete rout the FDP in Schleswig-Holstein has made life more difficult for the national leadership.
Guido Westerwelle

Wolfgang Kubicki
Credit for the party's survival is going to Wolfgang Kubicki, the FDP's leading candidate in the state, to the detriment of the federal chair, Phillip Roessler, and parliamentary leader Guido Westerwelle.

In addition to its effect within the FDP, the state elections will have an impact on the composition of the federal legislature.

In the U.S., a state's legislative elections will not affect the composition Congress. Gone are the days when state assemblies chose U.S. senators. But the upper house of Germany's bicameral parliament resembles the United States in the days before direct elections. In Germany, each state government sends a group of delegates to Germany's upper house, the Bundesrat, where the delegation votes as a bloc. So Schleswig-Holstein's current CDU-FDP delegation to the Bundesrat will soon be replaced by one that reflects the partisan make-up of the new state government, with implications for the agenda of Chancellor Angela Merkel's Christian Democrat-Free Democrat government.


In the past, the five per cent hurdle did what its post-War designers hoped, and excluded small extremist parties from elective office. At the national level, one unforeseen consequence of the rule was to encourage various ecology and anti-nuclear factions to join together as Green lists. The decision to carve out an exemption for the SSW in Schleswig-Holstein may produce yet another unforeseen consequence for German politics.

Thursday, May 3, 2012

Looking for work? First, get a job.

“Must be currently employed” is a stipulation that employers in Massachusetts are free to put in their job advertisements. The jobless need not apply. Telling people that the very fact they are unemployed renders them unworthy of consideration is not only unreasonable but also discriminatory.  

New Jersey, Oregon, and the District of Columbia have banned advertisements of this kind, and the National Employment Law Project says that a dozen more states are considering similar measures (check out the MSNBC video on their site). But the Obama administration’s effort to outlaw the practice nationwide through the American Jobs Act is making no headway in the Republican-controlled Congress, and so far there is no state law in Massachusetts expressly prohibiting this particular form of discrimination.

In the meantime, because unemployment is higher in communities of color the current anti-discrimination statute may provide some protection for people on the receiving end of anti-jobless bias. For example, the March 2012 statewide unemployment average in Massachusetts was 6.4%, but the rates were higher in cities where most of the residents are people of color. In Holyoke the March unemployment rate was 9.3% and in Springfield it was 10.1%.  So in the Pioneer Valley region as a whole, an advertisement that expresses a bias against the unemployed will have a disparate impact on people of color. It is possible, therefore, that a would-be applicant who is African-American or Hispanic could have a claim under Chapter 151B. 

If you think the law should stop employers from ruling out applications from people who are simply looking for work, or if you know of any organizations in Massachusetts that are pushing state-level legislation to address the problem, please let me know.