Amanda Jaret

Author's details

Name: Amanda Jaret
Date registered: September 13, 2012

Latest posts

  1. Labor Law around the World: Lessons from China — March 6, 2013
  2. The D.C. Circuit Invalidates NLRB Recess Appointments — February 4, 2013
  3. Navigating the NLRB’s New Preemption Decisions — October 29, 2012
  4. Songs of Labor and Love — October 9, 2012
  5. Reflections on the Chicago Teachers’ Strike — September 23, 2012

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Mar 06

Labor Law around the World: Lessons from China

China’s meteoric rise as an economic superpower has saturated American news for years. China’s massive exports of inexpensive consumer goods are one of the chief causes of its recent prosperity.[1]  However, many are beginning to realize that some of China’s gains may be ill-gotten, with portrayals of horrific incidents like the Foxconn Technology plant suicides[2] becoming common fare in the American media.

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Feb 04

The D.C. Circuit Invalidates NLRB Recess Appointments

In its recent decision, Canning v. NLRB,[1] the Court of Appeals for the D.C. Circuit vacated a National Labor Relations Board (“NLRB”) order, ruling that the Board lacked a quorum because three of its members were invalidly appointed.[2]  Although President Obama attempted to appoint three of the Board’s members under the authority of the Recess Appointments Clause of the Constitution,[3] the D.C. Circuit concluded that the appointments were constitutionally invalid.[4]  The decision suggests that nearly two hundred years of presidential recess appointments may be invalid exercises of executive power.[5]

The first issue the court addressed pertained to the meaning of “recess” in the Recess Appointments Clause.  At the time President Obama made the three recess appointments to the NLRB, the Senate was holding pro forma sessions every three business days between December 20, 2011 and January 22, 2012.[6]  Despite an agreement stating that no business was to be conducted during those pro forma sessions, the Senate conducted business twice during that time period.[7]  The court concluded that only “the”[8] intersession recess of the Senate provides an appropriate opportunity for recess appointments, distinguishing other “adjournments” or “generic break[s] in proceedings” as insufficient to confer appointment authority.[9]  Because the court believed the Senate had only “broken for three days within an ongoing session,” it concluded that it was “not in ‘the Recess.’”[10]  The court cited separation of powers concerns and the original meaning of the term according to the Framers in support of its interpretation.[11]

Although the court acknowledged that its holding regarding the meaning of the term “Recess” would have been sufficient to vacate the Board’s order, it nevertheless continued to address a second constitutional issue:  the meaning of the word “happen” in the Recess Appointments Clause.[12]  On this issue, the court concluded that because the vacancies in Board membership did not “happen” during “the Recess,” the president lacked authority to make recess appointments.[13]  The court rejected three other circuits’ interpretation that the word “happen” in the Recess Appointments Clause includes all vacancies that “exist,” relying heavily on an originalist reading of the Constitution.[14]

This decision has already generated substantial criticism.[15]  Some have expressed concern that the court’s reading of the term “recess” suggests that the Senate can continue holding pro forma sessions to thwart presidential appointments indefinitely.[16]  Others are concerned that the decision threatens the status of hundreds of NLRB decisions.[17]

Despite the apparent force of the D.C. Circuit’s ruling, there are appeals pending in other circuits that will also address this conflict.[18]  Regardless of the outcomes of those decisions, however, it appears extremely likely that the Supreme Court will ultimately decide whether the recess appointments to the Board were valid.[19]  Because recess appointments can contribute to the smooth functioning of government, especially in times of political partisanship, the Supreme Court should carefully consider this issue and not read the Recess Appointments Clause unduly narrowly so as to completely impede use of the Recess Appointment power.


[1] Nos. 12–1115, 12–1153, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013).

[2] See id. at *23.

[3] U.S. Const. Art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[4] Canning, 2013 WL 276024, at *7.

[5] See Charlie Savage & Steven Greenhouse, Court Rejects Obama Move to Fill Posts, N.Y. Times, Jan. 25, 2013, at A1 (“Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867.”).

[6] See id. at *7.

[7] Id. (explaining that the Senate acted twice between December 20, 2011 and January 22, 2012:  once to pass a temporary extension to the payroll tax; once to fulfill its constitutional duty to meet on January 3).

[8] An extended discussion of the significance of the word “the” and its difference from “a” or “an” appears in the court’s opinion.  Id. at *8.

[9] Id. at *8-*9 & *16 (differentiating between “recesses” and “the Recess” and concluding that the latter only refers to the intersession recess, not to other adjournments).

[10] Id. at *9.

[11] Id. at *11-*12.

[12] Id. at *16 (quoting U.S. Const. Art. II, § 2, cl. 3) (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

[13] Id. at *23.

[14] Id. at *17 -*19 (quoting Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962)) (emphasizing that the other circuits’ analysis was misguided because they “did not focus their analyses on the original public meaning of the word ‘happen.’”).

[16] Id. (“[T]he opinion essentially said that the Senate need almost never be in recess; a handful of senators could create ‘pro-forma’ sessions that would trump any President’s ability to make appointments.”).

[17] See, e.g., Robert Barnes & Steven Mufson, Court Says Obama Exceeded Authority in Making Appointments, Jan. 25, 2013 (describing several labor leaders’ reactions to the decision).

[18] See id.

[19] See Toobin, supra note 12.

Jan 22

St. John’s Students Win 4/6 NYSBA Labor & Employment Section Awards

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On January 26, 2013, the Labor and Employment Law Section of the New York State Bar Association will present three third-year students from St. John’s, Amanda Jaret, Andrew Midgen, and Alyssa Zuckerman, with awards at its annual meeting.

Amanda Jaret, Secretary of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the Samuel M. Kaynard Memorial Student Service Award and second place winner in the Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition for her paper, titled “Other Mutual Aid Or Protection”: Collective Legal Claims as Concerted Activity in D. R. Horton, Inc. and Beyond. Amanda has worked as a research assistant and Junior Fellow for the Center during her entire tenure at St. John’s, supported by the 2011 John Boyd Scholarship, the 2012 Professor Lawrence Joseph Scholarship, and the Cesar Chavez Memorial Scholarship, awarded to the graduating third-year law student with the highest grades in the labor and employment law curriculum. She has worked for the United Auto Workers in Detroit, Michigan and for Cohen, Weiss and Simon LLP, a union-side labor law firm.

Andrew Midgen, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the first place winner of the 2012 Dr. Emanuel Stein and Kenneth D. Stein Memorial Writing Competition. His winning paper, titled The Future Scope of the Antitrust Exemption in Professional Sports, addresses a controversial and developing area of labor and employment law that has captured national attention during recent collective bargaining agreement negotiations for professional sports teams and players in the National Football League and, most recently, the National Hockey League. Among Andrew’s previous honors and accomplishments are the Inaugural Borrelli and Associates Scholarship and prestigious internships with UNITE HERE! Local 100, the United States Department of Labor Office of the Solicitor, and the National Labor Relations Board Division of Judges.

Alyssa Zuckerman, Co-President of the Labor and Employment Law Society and Junior Fellow for the Center for Labor and Employment Law, is the second place winner of the 2012 Samuel M. Kaynard Memorial Student Service Award. One of Alyssa’s chief initiatives as Co-President includes the successful launch of a new blog, the Center for Labor and Employment Law Forum (this blog). The Service Award also recognizes her consistently impressive leadership of the Society and the many successful events she has coordinated for the Center during her time at St. John’s. Alyssa has also received many other notable honors for her contributions to labor and employment law, including the 2012 Coca-Cola Refreshments Scholarship, which enabled Alyssa to work as a Summer Associate with Coca-Cola’s Labor Relations Department, the Cesar Chavez Memorial Scholarship, and an internship with Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, a workers’ compensation law firm.

These three students follow in the footsteps of many of their predecessors who have received similar recognition from the New York State Bar Association. The students’ successes are a testament to the strength of St. John’s labor and employment law curriculum and the stalwart guidance and mentoring of Professor David L. Gregory.

Oct 29

Navigating the NLRB’s New Preemption Decisions

The National Labor Relations Board (“NLRB”) recently decided a pair of cases that raised important issues about the nature of federal preemption.[1] These companion cases both explored the dimensions of so-called “Garmon” preemption,[2] a doctrine that limits states’ role in regulating activity that is subject to federal regulation pursuant to the National Labor Relations Act (“NLRA” or “Act”).[3] While the decisions reaffirmed traditional preemption principles, they expanded the reach of the NLRB’s power to find that filing certain types of state court lawsuits amounts to an unfair labor practice and to enjoin these state court lawsuits when they are preempted by federal law.

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Oct 09

Songs of Labor and Love

On Friday, October 5, the Center of Labor and Employment Law kicked off its two-day concert series at the Catholic Worker Maryhouse in Manhattan.

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Oct 01

Hugh Blumenfeld to Play in NYC October 5th & 6th

The St. John’s Center for Labor and Employment Law proudly presents two free concerts on Friday, October 5 and Saturday, October 6 featuring Hugh Blumenfeld

 “SONGS OF LABOR AND LOVE” - Celebrating the Centennial of the birth of Woody Guthrie

On: Friday, October 5, 7:45 p.m., Maryhouse Catholic Worker, 55 East 3rd Street, New York City &  Saturday, October 6, 8 p.m., 101 Murray Street, St. John’s Manhattan Campus Auditorium (doors open 6:30 p.m.; Music begins at 8 p.m.) (Please RSVP to Paula Edwards 718-990-6653; edwardsp@stjohns.edu)

Here’s a sample of Blumenfeld’s music to get you ready to rock…

Hugh Blumenfeld, Ph.D., M.D. is a great friend of St. John’s, first performing at St. John’s on November 13, 1997 to open for New Zealand Trade Federation President Maxine Gay, and on both November 21, 1998 and October 28, 2003 with Richard Shindell.

Blumenfeld is a singer-songwriter who came out of the Greenwich Village folk scene in the 1980s.  For nearly two decades he performed at top folk clubs and festivals across the U.S. as well as several tours abroad in Europe and Israel. Through the 1990s, Hugh released four critically acclaimed albums on Prime CD, an independent New York label. His most recent CD, Dad, came out on the respected Waterbug label earlier this year.

While in New York, Blumenfeld contributed many songs and articles to the Fast Folk Musical Magazine (now part of the Smithsonian/Folkways collection). He also had songs and articles published in Broadside and Sing Out! Magazines.  His work, which has always born the mark of his literary studies (M.A. University of Chicago; Ph.D. in Poetics from NYU), took on an increasingly political bent, with long-time DJ Ed McKeon calling him “as sharp a political and social satirist as any songwriter writing today.” He found himself at venues like the People’s Voice Café, the Catholic Worker and the tiny but mighty Curbstone Press. He also played to large academic gatherings like the annual conference of the NY State Labor/Religion Coalition in 1997 and St. John’s University’s Labor Law Conferences in 1997, 1998, and, most recently, March 18, 2011,  opening for keynote speaker AFL-CIO President Richard Trumka. In October 2003, he spoke and sang on a panel with Hugh Masekela at the 4th annual UNESCO Conference on Human Rights hosted by the University of Connecticut. Over the years, he has opened for Arlo Guthrie and Richie Havens, and performed with Ani DiFranco and poet Martín Espada.

The Connecticut Commission on the Arts named Blumenfeld Connecticut’s official State Troubadour for 1999 and 2000, earning him a spot at the Kennedy Center’s Millennium Stage concert series.

Over the years Blumenfeld found increasing satisfaction from performing for children and adults with illnesses and disabilities. He worked at camps for children with cancer and was a frequent performer at camps, group homes and benefit concerts for the regional Department of Mental Retardation. But it was conducting research on singing to premature babies at the Connecticut Children’s Medical Center and a stint with Hartford Hospital’s Integrative Medicine Department that finally led him to become a doctor.  He finished both his M.D. and residency training at the University Of Connecticut School of Medicine and became board certified as a Family doctor in 2010.  He currently practices in Hartford, where his interests are patient education and improving access to health care in the nation’s second poorest city.

The St. John’s Center for Labor and Employment Law thanks our friends and co-sponsors, Professor Sam Estreicher and the N.Y.U School of Law Center for Labor and Employment Law, Vice President Jeff Zaino and the American Arbitration Association, and Jane Sammon and colleagues at the Catholic Worker. Special thanks to the Center’s Honorary Chairman, Edward Cardinal Egan, Archbishop Emeritus, Archdiocese of  New York.

Sep 23

Reflections on the Chicago Teachers’ Strike

This past Wednesday, an overwhelming majority of delegates for the Chicago Teachers Union (“CTU”) voted to end the union’s ten-day strike.[1] The strike was the CTU’s first in over twenty-five years,[2] and many spectators believe it has fundamentally changed the national conversations about education policy and labor alike.

The negotiations that have paved the way for a new contract between the city and the CTU led both parties to make concessions. The teachers did not receive as substantial a raise as they had hoped, but they successfully resisted several significant changes that Chicago Mayor Rahm Emanuel sought to impose, including a new teacher evaluation program, and they instituted a new recall policy for top teachers who are laid off as a result of school closings.[3] Mayor Emanuel counted his efforts toward implementing a longer school day among his successes during the negotiations.[4] Although the CTU President, Karen Lewis, has expressed some dissatisfaction with the substance of the new agreement, she regards the strike as successful and anticipates that the delegates will approve it during the coming weeks.[5]

As the Chicago teachers’ strike drew to a close, many questions remained unanswered. Some continued wondering whether the essential questions underlying the dispute, like the propriety of tying teacher evaluations to students’ standardized test scores or the specter of increasing competition from charter schools, were adequately resolved. Because both the city and the union made concessions in the new contract, others queried who “won.”[6] One facet of the strike that especially captured the popular imagination is assessing what impact this strike will have during these crucial weeks leading up to the presidential election,[7] especially in view of President Obama’s conspicuous silence during a dispute that has special salience for the President.

Because the Chicago public school system is the third-largest in the country,[8] onlookers have viewed this strike as something of a referendum on the troubled state of public education and the continuing role of public sector labor unions.[9] In light of the ongoing fight between Wisconsin public employees and Governor Scott Walker, it is perhaps not an exaggeration to say, as Nathan Saunders, president of the Washington Teachers Union did, that the strike in Chicago was an “epic battle.”[10] Labor leaders like Richard Trumka, president of the AFL-CIO, have applauded the teachers, emphasizing that they have the right to reframe the conversation about education policy because of their unique perspective on what kinds of change are necessary to improve education.[11] It seems likely that the CTU will galvanize teachers’ unions across the country in speaking out on behalf of their needs and the best interests of students as the debate about education policy grows ever fiercer.

 


[1] Monica Davey & Steven Yaccino, Teachers End Chicago Strike on Second Try, N.Y. Times, Sept. 18, 2012, at A1.

[2] See id.

[3] Ellen Jean Hirst & Jennifer Delgado, It’s Back to School Again for Chicago Students, Chi. Tribune, Sept. 19, 2012, available at http://articles.chicagotribune.com/2012-09-19/news/chi-todays-assignment-seal-deal-with-chicago-teachers-20120918_1_chicago-teachers-union-chicago-students-first-day.

[4] Davey & Yaccino, supra note 1.

[5] Id.

[6] Valerie Strauss, Who Won the Chicago Teachers Strike?, Wash. Post, Sept. 19, 2012, available at http://www.washingtonpost.com/blogs/answer-sheet/post/who-won-the-chicago-teachers-strike/2012/09/18/974b5efa-020b-11e2-b257-e1c2b3548a4a_blog.html.

[7] See Lyndsey Layton, Peter Wallsten, & Bill Turque, Chicago Teachers Strike Places Obama at Odds with Key Part of Political Base, Wash. Post, Sept. 11, 2012, available at http://www.washingtonpost.com/politics/chicago-teachers-strike-places-obama-at-odds-with-key-part-of-political-base/2012/09/11/df89a776-fc2a-11e1-b153-218509a954e1_story.html.

[8] Davey & Yaccino, supra note 1.

[9] Monica Davey & Steven Greenhouse, School Days Resume in Chicago as the Lessons from a Strike Are Assessed, N.Y. Times, Sept. 19, 2012, at A19.

[10] Layton, Wallsten & Turque, supra note 7.

[11] See id.

Sep 23

16th Annual Management Lawyers Colloquium

On September 13th, 2012, the Center for Labor & Employment Law held it’s 16th annual Management Lawyers Colloquium.  The panelists included: Christine Hogan, an associate at Littler Mendelson; Steven Johnson, Group Director of Labor Relations, Northeast Region, at Coca-Cola; Terry O’Neil, partner at Bond, Schoeneck & King; Howard Sokol, partner at Holland & Knight; Evan J. Spelfogel, partner at Epstein, Becker & Green; and Richard Zuckerman, partner at Lamb & Barnosky.  The topics covered included the issues management-side attorneys and employers face when dealing with social media in the workplace, navigating and keeping employers in compliance with the NLRB’s advice on social media issues, the challenges associated with advising management-side clients in both the public and private sectors, the pros and cons of practicing labor and employment law, and how to break into the labor and employment law field. 

Also announced at the event was the winner of this year’s Jackson Lewis scholarship for Excellence in Labor and Employment law, in memory of Alan C. Becker, May Mansour ’14, and the inaugural winner of the Cesar Chavez Memorial Scholarship, Amanda Jaret ’13. The panel discussion was followed by a dinner for all those in attendance.