Will Police Body Cameras be a Mandatory Subject of Bargaining in Florida?
If you’re reading this only for a quick answer to the question in the title, I’ll spare your hand the Evelyn Wood speed-read. The answer to the question is: “Yes.” For those with the time and inclination to stay with this, I offer an explanation for my confidence in the answer. Whether police body cameras will improve policing in Florida is a subject for another day.
Conversations about law enforcement in the nation always have been heated. Outside “the thin blue line,” those conversations are getting exponentially hotter with each officer-involved shooting, while conversations within the law enforcement community are well along to roiling about the targeting of police officers for assassination. Amid clamor more akin to dueling monologues than to conversations between the parties arrayed on either side of the yellow tape, the growing hue and cry for cameras to be affixed onto the bodies of police officers threatens to further cement various “stakeholders” into fixed positions at their bastions. It already may be too late for reasoned discussions about the cameras even within the close and closed law enforcement community. As a consumer of law enforcement services myself, I hope it isn’t.
Before wading into these turbid currents, let’s begin with the obvious. We all should be able to agree that the purpose of affixing cameras onto the bodies of police officers is to record their citizen contacts; specifically, police officers’ uses of force upon citizens, and more specifically their uses of deadly force. While the sounds and images captured by the cameras certainly offer insight into policing for training purposes and document incidents for suspects’ criminal prosecutions, the men and women to whose bodies the cameras actually are attached know well that the demand to record their every citizen contact is to assess their job performance and, toward that end, to provide evidence for their discipline and criminal prosecutions.
If you would have no problem going about your own workday with the additional duty to record each and every human interaction and to record a long list of tasks you perform routinely and without much deliberation, and you wouldn’t be concerned about the prospects of those recordings being collected, critiqued, cataloged, and archived as public records perhaps into perpetuity, and you’d accept these additional responsibilities as essential functions of your continued employment without any additional compensation, I don’t believe you. There’s nothing going on here of any interest to you; you can move along.
For those of you still on-scene, let’s do a quick briefing of where we are right now regarding what are referred to as police “body-worn cameras.” For reasons that may become apparent as we continue, I prefer to refer to the devices as “body cameras.”
Even before “body cameras” were introduced into the lexicon, the ubiquitous cell phone videos, patrol car “dash-cams,” business properties’ and elevator security cameras, and GoPro images that are standard fare in the news and online had made mundane what was remarkable, if not revelatory, in the Rodney King case. Body camera technology is affordable now, quickly is becoming more so, and with federal monies available to assist agencies’ purchases, the issue no longer is whether to affix the cameras to police officers, but how quickly can it be done to as many as possible in a manner that is most effective. Yet, the narrowed fixing of the focus thus far on how the cameras can be made most “effective” clumsily has been ensuring some resistance from the men and women to whom the cameras will be affixed, i.e., the conversations about the cameras may be ensuring they will not be as effective as we need them to be.
Taking the field first for the federal government in the effort to establish the place in law enforcement for police body cameras was a report published through a cooperative agreement between the U.S. Department of Justice’s Office of Community Oriented Policing (COPS) and the Police Executive Research Forum (PERF), a private police management think-tank of sorts. The report, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” reduced to writing the thoughts and ideas culled from a conference in Washington, D.C., on September 11, 2013. The sole purpose of the gathering was “to discuss the policy and operational issues surrounding body-worn cameras,” and, toward that end, 127 law enforcement agencies and dozens of other organizations and interests convened. The most significant of the “lessons learned” was to be found in the report’s Appendix B, which contained the list of the conference’s attendees.
The lesson was that unions representing police officers are failing to pay attention to this important development for their members. The list of attendees shows that law enforcement agencies throughout the United States had representatives in attendance, from Albuquerque to Yakima. There were 200 police chiefs listed to be present. Various federal agencies you would expect to appear were there, as were representatives from some universities, corporations, and management-side labor law firms. Even the Royal Canadian Mounted Police was represented. Close examination of the list confirmed that only one representative for a police officer union bothered to attend. Just one police union of all the police unions purporting to represent law enforcement recognized the importance of attending a conference specifically designed to engender a discussion among key stakeholders about the development of policies and implementation plans surrounding the placement of cameras onto the bodies of police officers. It was, thus, little surprise to discover that within the approximately 80-page report, “officer concerns” were summarily addressed in fewer than two-and-a-half pages of the report.
It may be that the lone “union guy” may have stepped out of the room when attendees brainstormed identifying sources of input law enforcement agencies might explore to hear their own “officer concerns” about the cameras they intend to affix to their officers’ bodies. This suspicion arises since the universe of “useful” sources for input regarding attaching cameras to the bodies of police officers, which were identified by the conference attendees, included:
• Patrol commanders and officers
• Investigators and training supervisors
• The agency’s legal department
• Communications staff
• Internal affairs personnel and evidence management personnel
• Others across the agency who will be involved with body-worn cameras
Markedly absent from the list was duly state-certified collective bargaining representatives for police officers’ wages, hours, and terms and conditions of employment. This stakeholder group got virtually no ink in the thick report; apart from a single, broad, and oblique recommendation that when implementing their “body-worn” camera programs, law enforcement agencies “consult with frontline officers, local unions, the department’s legal advisors, prosecutors, community groups, other local stakeholders, and the general public.”1 The report also suggested that “meetings with union representatives are an effective means to communicate with officers about the agency’s body-worn camera program.”2
its tone, and with its words, the report implies, at best, that police officer unions probably should be noticed when law enforcement agencies are set to go forward with “implementing” their “body-worn” camera programs. At worst, the report identifies police officer unions as useful only after-the-fact as channels for disseminating agency body camera policies down through the ranks. In both cases, police unions are mentioned for involvement when the programs and policies are afait accompli. A word search through the report does not reveal any use of the words “collective bargaining” or “negotiate.”
While this author has made formal written requests for “collective bargaining” regarding body cameras dutifully since early 2014 to every agency with which my labor organization had collective bargaining agreements and whose police chief or sheriff made mention of them in the news, not one of those agencies provided notice (formal or otherwise) that they were considering affixing cameras to the bodies of the police officers whose unions I represented. The first I heard about agencies considering attaching cameras to my bargaining unit members was from television news and reading newspapers. In one case, I learned about the prospect from seeing a line item specifically budgeted for purchasing the cameras.
Law enforcement agencies in Florida have been steadfast in their resistance to “negotiations” about body cameras. In my practice, I have been sporadically granted meetings with management about the topic of body cameras, but those meetings were afforded only after my formal, written requests to bargain over them. The “meetings” were scheduled after my requests for bargaining were responded to by equally dutiful management-side attorneys who advised that “meetings” would be convened without waiving their agency-clients’ position that the cameras are not a “bargainable” subject.
In some agencies that received my requests for bargaining, “committees” of command staff and bargaining unit members were established to “talk” about the cameras. What failed to happen, at least during the time I was making these efforts, was the actual development of contract terms or other written agreements addressing the topic reached as a result of actual collective bargaining.3
The various reasons agencies offered for not engaging in any actual “collective bargaining” — i.e., parties’ meeting to exchange written proposals in good faith for the purpose of coming to an agreement — regarding affixing cameras to bargaining unit members’ bodies ranged from “cameras aren’t an issue, yet,” to “cameras are equipment, so they’re not subject to bargaining.” At best, that first reason is dangerous avoidance behavior; at worst, it’s dangerously misleading. The cameras are and have been an issue since before any of the agencies I had experience dealing with formally acknowledged their existence. That second reason will be shown here to be likely wrong as a matter of law. Perhaps this may be the reason some management lawyers and police commanders persist in referring to the cameras as “body-worn.”
The “dangers” in refusing to engage real collective bargaining regarding police body cameras derive first and foremost from a failure by the primary “stakeholders,” law enforcement agency employers and their law enforcement employees’ unions, to seize the opportunity to identify their community of interest regarding body cameras: to ensure the cameras will serve the intended purpose of improving police work. Even if the Florida Public Employees Relations Commission (PERC) was to identify body cameras as only a “permissive” subject of bargaining, in order to accomplish the purported purpose of body cameras, employing law enforcement agencies and their employees’ unions nonetheless would be wise to come to voluntary mutual agreements on the devices. Much as Newton’s Third Law of Motion recognizes that for every action there is an equal and opposite reaction, unilateral and reflexively developed employer-imposed body camera programs and procedures will precipitate adversarial relations between officers and management on the topic, and are likely to result in employee practices and conduct inconsistent with the stated public good the devices will bring. In this particular matter, both law enforcement agencies and their law enforcement officers’ representatives stand to lose the public’s trust when they don’t trust each other.
Now, an explanation for that fast answer I gave to the question posed here. Florida’s PERC has not yet had occasion to rule on whether law enforcement agency employers must bargain over body cameras with the labor organizations representing their sworn law enforcement officers-employees. It is this author’s opinion that there is good reason to expect that when PERC does come to deal with this question, it will follow the precedent set by the National Labor Relations Board (NLRB) in similar cases arising in the private sector under the National Labor Relations Act (NLRA):
“If a Florida statute is patterned after a federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.”4
Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108, 116 (Fla. 1st DCA 1977), involved unfair labor practice charges against an employer arising from, among other things, allegations that a school board refused to renew the contracts of two teachers and denied tenure to a third teacher, in retaliation for the teachers’ protected activities as union representatives. The court deferred to PERC’s application of F.S. §§447.501(1)(a) and (b), noting that “[s]ection 447.501(1)(b) reflects the strong influence of [§]8(a)(3) of the NLRA….”; albeit, it remanded that portion of the case to the PERC hearing officer for reasons not herein relevant:
“In reaching our decision, we chose to follow the precedent set by the National Labor Relations Board (NLRB) in like cases arising under the National Labor Relations Act (NLRA). Since the relevant provisions of Florida’s PERA are similar to those of the NLRA, decisions of the NLRB are pertinent and instructive where, as here, the case is one of first impression under PERA.”5
With Gow v. AFSCME, 4 FPER ¶4168 (1978), PERC adopted virtually verbatim from an NLRB case under the NLRA a “duty of fair representation” owed by a Florida public-sector union to its public employee bargaining unit members under F.S. §§447.301 and 447.307, a breach of which constitutes an unfair labor practice by a union under Ch. 447, much the same as had been established by the NLRB interpreting the NLRA.6
So, how has the NLRB decided cases involving private sector employee body cameras? It hasn’t, and for reasons outside the scope of this article, it may never be called upon to decide such a private-sector employee case. The National Labor Relations Board has decided on several occasions that employers commit unfair labor practices in violation of NLRA §§8(a)5 and 8(a)1 when they fail to provide unions notice of, and refuse to bargain over, installation of hidden surveillance cameras in the workplace prior to such installation.7
The NLRB’s and federal courts’ determinations of the workplace surveillance cameras’ as “mandatory” subjects of bargaining under the NLRA are rooted in the U.S. Supreme Court’s analysis in Ford Motor Company v. NLRB, 441 U.S. 488 (1979). That case’s analysis and findings clearly are applicable to an employer’s affixing video and audio recording devices directly onto its employees’ bodies. In Ford Motor Company, the Court identified “mandatory” subjects of bargaining as those employment-related matters that are “plainly germane to the ‘working environment’” and “not among those ‘managerial decisions, which lie at the core of entrepreneurial control.’”8
In Colgate-Palmolive Company and Local 15, International Chemical Workers Union, AFL-CIO, 323 NLRB 515 (Apr. 23, 1997), the board found the surveillance cameras satisfied the first factor; that the cameras were “germane to the working environment” to the extent that their introduction into the workplace was “analogous to physical examinations, drug/alcohol testing requirements, and polygraph testing, all of which the [b]oard has found to be mandatory subjects of bargaining.”9 Indisputably, the surveillance cameras were placed by the employer in and around the employees’ workplace specifically to surveil the employees.
Subscribing to the identification of “managerial decisions, which lie at the core of entrepreneurial control” that Justice Stewart’s concurring opinion in Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), had made, the board found the hidden surveillance cameras satisfied the second factor, also:
“The use of surveillance cameras is not entrepreneurial in character, is not fundamental to the basic direction of the enterprise, and impinges directly on employment security. It is a change in the [r]espondent’s methods used to reduce workplace theft or detect other suspected employee misconduct with serious implications for its employees’ job security….”10
The board in Anheuser-Busch, Inc. and Brewers and Maltsters, Local Union No. 6, I.B.T., 342 NLRB 560 (2004), affirmed the NLRB administrative law judge’s rulings, findings, and conclusions about the workplace cameras, which expressly relied upon the board’s decision in Colgate-Palmolive; specifically, that an employer’s installation and use of hidden surveillance cameras in the workplace is a “mandatory” subject of bargaining.
Based upon PERC’s consideration of, if not reliance upon, the NLRB’s and federal courts’ applications of the NLRA when confronted with cases “of first impression under PERA,” and considering how the NLRB and federal courts have treated for bargaining purposes the installation of surveillance cameras in private sector workplaces (for surveilling employees’ job performance and for discipline), it’s reasonable to expect PERC will determine police body cameras are a “mandatory” subject of bargaining in Florida. This conclusion is also supported by the especially broad scope of negotiations required by F.S. §447.309(1) to balance the relative bargaining strengths of the parties in such public employment disputes, considering that public employees cannot strike; unlike their private sector counterparts under the NLRA.11
“Because there is no statutory procedure afforded the public employee to bring pressure upon an employer to make concessions in collective bargaining, either through a strike or binding arbitration, PERC has been provided broad authority under [§]447.503, as a means of allaying a significant imbalance of bargaining power in favor of the employer.”12
In coming to the conclusion that police officer drug testing was a “mandatory” subject of bargaining in Florida, the court cited NLRB general counsel memorandum GC-87-5, among other NLRB decisions and cases involving compulsory urinalysis of New Haven police officers decided by a Connecticut State Board of Labor Relations, and similar testing of Buffalo police officers decided by a New York State Commission.
My research has revealed only two cases decided in other jurisdictions to which Florida’s PERC might be referred on the issues of whether and to what extent police body camera programs are subject to mandatory bargaining. Both of those disputes arose from public employers refusing to bargain over their unilaterally implemented police body camera programs. The first case arose from a prohibited practice charge (PPC) filed against Montgomery County, Maryland, by the Fraternal Order of Police pursuant to the Montgomery County Police Labor Relations Act (PLRA).13 The second case was an arbitrator’s award upon a contractual grievance filed by the Fraternal Order of Police against the Oklahoma City Police Department.14
In both cases, the body cameras were found to be significant changes in the police employees’ terms and conditions of employment with regard to which the unions formally had requested bargaining in timely fashion. In the Maryland County case, after the employer was ordered to negotiate with the union, it declared certain specific matters raised by the union nonnegotiable. In the Oklahoma City case, the employer more broadly had asserted its police department’s new program entirely to be neither “a change” in working conditions (the cameras being “simply a tool”), nor otherwise beyond management rights and the authority an ordinance gave the police chief to determine what “equipment” would be “worn” by police officers. In both cases the employers were ordered to bargain regarding certain specific proposals by the unions.
Notably, the January 29, 2016, order in the Maryland case found “negotiable” a union proposal precluding the employer from routinely and randomly searching through police officers’ body camera recordings for the purpose of discovering acts of misconduct upon which to propose discipline. Informed in part by advisory language reproduced from a Maryland Police Training Commission “Body-worn Camera Procedural Reference Guide” that emphasized (in capital letters and with underlining) that a recording “shall NOT be used to ROUTINELY EVALUATE AN INDIVIDUAL’S PERFORMANCE OR TO ROUTINELY LOOK FOR VIOLATIONS,” etc., the permanent umpire observed: “[T]he assertion that the [d]epartment has the unbridled discretion as the owner of the BWC recording to review it and use it as it deems fit, limited only by express limitations contained in law, is unpersuasive.”
Accordingly, the permanent umpire found that “to the extent that the matters implicate conditions of employment and to the extent that the proposals do not inappropriately impair employer rights, the exercise of managerial discretion relative to the BWC policy and recordings is negotiable under the PLRA.”15
Yet, conclusive for this author on the issue of how police body cameras will be decided by Florida’s PERC, based upon Florida’s PERA, was the ease and speed with which the City of Miami v. F.O.P., Miami Lodge 20 and Florida Public Employees Relations Commission, 571 So. 2d 1309, 1312 (Fla. 3d DCA 1989), court disposed of the public employer’s various contentions: that drug testing its police officers was a fundamental decision exclusively within traditional management prerogatives as with any “entrepreneurial concern” and, therefore, was not subject to collective bargaining; and that drug testing its police officers was expressly within Florida public employers’ exclusive statutory management rights pursuant to F.S. §447.209.
The court cited to School Board v. Indian River County Education Association, 373 So. 2d 412, 414 (Fla. 4th DCA 1979): “[F.S. §]447.309(1) (1977), requires the appellant to bargain in good faith with respect to any changes in ‘wages, hours, and terms and conditions of employment.’ This change falls within the purview of that provision….”16
Of the various arguments made by the City of Miami to exclude compulsory drug testing from collective bargaining, given shortest shrift by the court was the “entrepreneurial concern” argument first articulated by the concurring opinion in Fibreboard and reintroduced by the City of Miami: “In our view, the ‘entrepreneurial concern’ doctrine has no place in this case; while drug testing undoubtedly is important…it is not — as history surely tells us — fundamental to the functioning of the police force.”17
Indisputably, the City of Miami Police Department had functioned, as had others for more than 100 years, without compulsory drug testing of its police officers. Likewise indisputably, police officers throughout Florida have functioned, as have others for more than 100 years, without cameras affixed to their bodies.
Last, and no more persuasive upon the court than any of the city’s other arguments to exclude compulsory drug testing from collective bargaining, was that one based upon the broad language according public employers the litany of “right[s]” identified in F.S. §447.209:
“[W]hile the [c]ity has the right to regulate the police, the procedure used to regulate must be submitted to collective bargaining when the exercise of that right impacts on the lives of police officers. As the NLRB [g]eneral [c]ounsel stated, ‘a drug test is not simply a work rule — rather, it is a means of policing and enforcing compliance with a rule. There is a critical distinction between a rule against drug usage and the methodology used to determine whether the rule is being broken.’”18
As previously observed, the men and women to whose bodies the cameras will actually be attached know well that whatever the stated policy reasons for the cameras, management and citizens will demand that these records of their citizen contacts be used to assess their job performance: toward that end, to provide evidence for their discipline and criminal prosecutions. The images and sounds captured by the body cameras are the newest methodology to determine whether policies and/or laws are being broken by them. Law enforcement agencies’ persistence in referring to the cameras as “worn” (like uniforms), and “equipment” (like firearms), will neither bring the new body cameras within Florida public employers’ statutory management rights nor otherwise render them exclusively within an “entrepreneurial concern” sufficiently to exclude them as a “mandatory” subject of bargaining. The answer to the question posed here is: Yes.
1 U.S. Department of Justice, Office of Community Oriented Policing & Police Executive Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (emphasis added).
2 Id. (emphasis added).
3 I noticed an odd reticence to engage in formal negotiations about the cameras by my own labor organization’s administration — also a phenomenon subject for another day.
4 See Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108, 116 (Fla. 1st DCA 1977), citing Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929); State ex rel. Packard v. Cook, 108 Fla. 157, 146 So. 223 (1933).
5 See also School Board of Polk County v. Florida Public Employees Relations Commission, 399 So. 2d 520, 522 (Fla. 2d DCA 1981) (internal footnote and citations omitted).
6 See Wallace Corp. v. NLRB, 323 U.S. 248, 255 (1944) (As the exclusive bargaining agent for all employees, under the NLRA unions are “charged with the responsibility of representing [those employees’] interests fairly and impartially.”); see Gow, 4 FPER ¶4168 at 325 (A union breaches its duty to represent employees fairly when its conduct in the processing of grievances is arbitrary, discriminatory, or in bad faith.).
7 See Colgate-Palmolive Company and Local 15, International Chemical Workers Union, AFL-CIO, 323 NLRB 515 (Apr. 23, 1997) (The employer’s installation and use of hidden surveillance cameras in the workplace is a “mandatory” subject of bargaining, and the union has a statutory right to bargain over the installation and continued use of the surveillance cameras.); see also Anheuser-Busch, Inc. and Brewers and Maltsters, Local Union No. 6, I.B.T., 342 NLRB 560 (2004), citing National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir. 2003), enforcing 335 NLRB 747 (2001) (employer’s installation of hidden surveillance cameras in work and break areas is a “mandatory” subject of bargaining).
8 See Ford Motor Company, 441 U.S. at 498, quoting Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964) (Stewart, J., concurring).
9 Colgate-Palmolive Company, AFL-CIO 323 NLRB at 515 (internal footnotes omitted).
10 See Polk County, 399 So. 2d at 515-516 (emphasis added). Justice Stewart had distinguished as managerial decisions lying at the core of an employer’s entrepreneurial control those “[d]ecisions concerning the commitment of investment capital and the basic scope of the enterprise [that] are not in themselves primarily about conditions of employment…or which impinge only indirectly upon employment security….” Fibreboard, 379 U.S. at 223 (in pertinent part).
11 See Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So. 2d 133, 140 (Fla. 1st DCA 1983), reversed in part on other grounds, 475 So. 2d 1221 (Fla. 1985).
12 See City of Miami v. F.O.P., Miami Lodge 20 and Florida Public Employees Relations Commission, 571 So. 2d 1309, 1312 (Fla. 3d DCA 1989), citing Board of County Commissioners v. Central Florida Professional Fire Fighters Association, 467 So. 2d 1023, 1026 (Fla. 5th DCA 1985) (emphasis added) (“[I]t seems clear enough that a public employer must bargain over a change in rules ‘affecting, or impacting upon, employment or a condition of employment.’”); see also City of Miami, 571 So. 2d at 1313 (emphasis added) (finding police officers’ compulsory drug testing “a term and condition of employment which settles an aspect of and impacts upon the employment relationship and can lead to discipline and discharge and, therefore, is the subject of mandatory collective bargaining”).
13 The case is In the Matter of Montgomery County Maryland and Fraternal Order of Police, Montgomery County Lodge No. 35, Order by Ira F. Jaffe, Esq., Permanent Umpire (Jan. 29, 2016). The case is a second proceeding between the parties regarding the employer’s unilateral implementation initially of a body camera “pilot” program in June 2015, which it claimed was “non-negotiable” in its entirety and with regard to which it was ordered to negotiate. Because the first case involved the employer’s broad assertion that it was not obligated to bargain at all and, therefore, no specific provisions of its body camera “program” were in dispute, the permanent umpire was unable to make findings on precisely what operational terms of the body camera program were “negotiable.” The second case arose from the county’s declaration during the ordered negotiations for a fiscal year 2016 collective bargaining agreement, that certain specific terms within an entirely new and comprehensive article proposed by the union governing the uses of the camera were “non-negotiable.” For purposes of this article and for brevity, references here are to the second case; albeit, the initial order as a general matter is consistent with this writer’s prediction. As of this writing, I have not found official citations.
14 In the Matter of Arbitration between the City of Oklahoma City, Oklahoma and The Fraternal Order of Police, Lodge 123, FMCS Case No. 16-50120-6 (Lumbly, June 14, 2016). As of this writing, I have not found the case reported in any labor arbitration reporters.
15 In the Matter of Montgomery County, Fraternal Order of Police Lodge 35, Prohibited Practice Charge at 14 (Jan. 20, 2016) (emphasis added), available at https://lris.com/wp-content/uploads/2016/06/Montgomery-County-BWC-Arbitration-2.pdf.
16 A case involving a school board’s unilateral change in the number of periods in the school day (in pertinent part) (emphasis added).
17 See City of Miami, 571 So. 2d at 1314 (in pertinent part) (emphasis added) (citations omitted).
18 See id. (in pertinent part) (emphasis added) (citation omitted).
Gary E. Lippman is a member of the Labor and Employment Law Section and former general counsel for the Palm Beach County Police Benevolent Association, where he served for 15 years until returning to private practice in March. He has a master’s degree in industrial and labor relations from Cornell University, is admitted to practice in New York and Florida, and has been concentrating on labor and employment law for 29 years.
This column is submitted on behalf of the Labor and Employment Law Section, Leslie Weiner Langbein, chair, and Robert Eschenfelder, editor.
