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A U.S. Supreme Court decision in a consumer rights case, announced April 27, may have a negative impact on workers’ rights, according to Denver Law Professor Nantiya Ruan, a member of the law school’s Workplace Law Program.
In AT&T Mobility LLC v Concepcion (2011), the Court decided 5 to 4 that the Federal Arbitration Act’s narrow provision for revoking contractural prohibition of classwide arbitration preempts a rule based in a California Supreme Court decision that is more favorable to the rights of consumers to pursue class action. Prior decisions by a U.S. District Court and a U.S. Appeals Court hearing the case had used California’s rule to find in the Concepcions’ favor, that AT&T’s ban on classwide arbitration was unconscionable. The Supreme Court’s decision to overrule those lower courts means the Concepcions may pursue their claim against AT&T, for charging sales tax on the retail value of a cell phone provided free under the service contract they signed, as individuals but not as members in a class action suit.
In partnership with the Lawyers’ Committee for Civil Rights, Professor Ruan co-authored a brief for Amici Curiae which was submitted to the Court supporting the Concepcions’ right to class-wide litigation. California and other states, the brief argues, “applying general principles of contract law, have held that a class action waiver may be unconscionable under certain narrow circumstances….” (5) A key issue for Professor Ruan is how the Court’s ruling in this consumer rights case may also restrict the viability of class actions protecting the rights of workers. The brief she co-authored holds that, “Class actions protect employees from the threat of retaliation, provide an incentive to employees and to private attorneys to prosecute small claims that would not be brought individually, and increase awareness of workplace violations.” (5)
In a similar vein, a Vanderbilt Law Review article published last year by Professor Ruan argued that court-made limitations on collective litigation restrict the scope of legal remedies available for underrepresented groups such as low-wage workers. See Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers. 63 Vand. L. Rev. 727 (2010).
. Catherine Smith, Associate Dean of Institutional Diversity and Inclusiveness at Denver Law, is also a member of school’s Workplace Law Program. Dean Smith sees a natural link between her teaching and research interest in employment law and her administrative efforts to increase diversity at the law school. “A diverse workforce is good business,” she states. “Critical problem solving in any workplace improves as people with different perspectives assess an issue and deliberate together on how to frame a solution.”
On January 26th, Dean Smith spoke at an event hosted by Garcia Calderon Ruiz LLP (GCR), addressing ways legal education and the legal profession can foster and build institutions as diverse as Denver and the nation. She spoke at the invitation of GCR attorneys Dolores Atencio and Susan Barnes, Denver Law grads who wished to recognize the diversity efforts undertaken at their alma mater and their firm. Ms. Atencio and Ms. Barnes, partners at GCR, both are litigators and Ms. Atencio specializes in employment and education law.
Professor Arnow-Richman spoke at a conference exploring the topic “Contract as Promise at 30: The Future of Contract Theory” on March 25, 2011 at Suffolk University Law School. The conference assessed approaches to contract theory developing in the 30 years since the 1981 publication of Charles Fried’s Contract as Promise. Professor Arnow-Richman addressed what she calls the “competing impulses” between informal norms and practices governing employment relationships, from which contractual obligations can arise, and employers’ use of express language to define and limit those same obligations. “Using such ‘disclaimer’ language,” she holds, “employers have in many instances successfully limited the extent to which their promises become legally binding and preserved the power to alter their priorities unilaterally.” She suggests that applying a contract perspective to the employment relationship might return balance to it, where, for example, a basic contract duty like good faith is understood to be a backdrop against which an employer’s reservation of rights is read. Professor Arnow-Richman’s paper on this topic will see print in a forthcoming issue of the Suffolk Law Review.
. Each January, nearly 300 law schools comprising the Association of American Law Schools (AALS) send around 3000 delegates to the organization’s annual convention. This year’s delegates landed in the midst of a long-running labor dispute between management and the workers at San Francisco’s Union Square Hilton hotel, site of the meetings. In September, SALT, the Society of Law Teachers, had forcefully advocated for an outright boycott of the Hilton. SALT’s proposed measure failed, and the Conference proceeded as planned at the Hilton. Once there, however, a group of delegates joined the fray, taking the side of Hilton workers.
Denver Law Professor Rachel Arnow-Richman, Chair of the AALS Section on Labor Relations and Employment Law, had a hand in faculty action that resulted in moving over two-thirds of the AALS Conference out of the Hilton. Speaking at a rally held during the conference to support the Hilton workers, Professor Arnow-Richman criticized the AALS for failing to take steps to avoid siting future meetings at a hotel in the midst of an active labor dispute. Workplace faculty, she went on to say, are not only “committed professionally (through our research and teaching) to the cause of justice, but we enjoy a freedom of speech, a security in our employment, and a voice in the governance of our workplaces that is unheard of in the contemporary economy. If those of us who enjoy the privileges and security of academic employment don’t speak out on behalf of these workers who will?” To see her remarks, go to the laborprof blog and search back on the pages there to entries made on January 10, 2011, at http://lawprofessors.typepad.com/laborprof_blog/page/3/
. Noyce, who graduated last year and currently clerks for a U.S. District Court in Iowa, published her paper in the inaugural issue of LABOR & EMPLOYMENT LAW FORUM, a workplace law journal from American University’s Washington College of Law. “[W]ith the expansion of social networking, growing use of technology in the workplace, and feeble boundaries between work and home,” she writes, “employees’ electronic privacy is a pressing legal issue.” (29) Against this background, Noyce probes how an implied-in-fact employment contract “may encompass privacy rights and create protectable employee privacy interests.” (30) The article began as a directed research paper she wrote under faculty supervision while a student at Denver Law, an option open to second- and third-year students interested in labor and employment law. Producing a directed research paper is one way for students participating in the DU Workplace Law Program to meet the requirements of a “capstone experience,” on the way to earning a program certificate. See Volume 1 of LAB & EMP LAW FORUM and Noyce’s article at: http://digitalcommons.wcl.american.edu/lelb/. For DU Workplace Law Program certificate requirements, see: http://www.law.du.edu/index.php/workplace-law/certificate-program-information.
. The Colorado Immigration Rights Coalition (http://www.coloradoimmigrant.org) presented a panel at Denver Law on February 17 devoted to criticism of Arizona’s controversial SB 1070 and discussion of attempts—failed so far—to pass copycat legislation in Colorado. Chris Newman, a graduate of Sturm College of Law, and now the Legal Director for the National Day Laborer Organizing Network (http://www.ndlon.org/) participated. Newman and his organization are active in legal challenges against the state of Arizona and a number of its municipalities over treatment of day laborers. “Arizona,” he told the audience of 150,” is driving the development of immigration law and policy in this nation right before our eyes.” He described laws being considered and passed around the country as “unconstitutional, unjust, and immoral.” And he attacked the very term “illegal immigrant. It is a racist, dehumanizing term, lacking logical and legal significance. People cannot be illegal, only their actions can be.” Flyer (PDF) ».