Monday, December 5, 2016
Congratulations to Tristin Green (San Francisco) on the publication of her new book Discrimination Laundering: The Rise of Organizational Innocence and the Crisis of Equal Opportunity Law by Cambridge University Press. Here's the publisher's description:
While discrimination in the workplace is often perceived to be undertaken at the hands of individual or ‘rogue’ employees acting against the better interest of their employers, the truth is often the opposite: organizations are inciting discrimination through the work environments they create. Worse, the law increasingly ignores this reality and exacerbates the problem. In this groundbreaking book, Tristin K. Green describes the process of discrimination laundering, showing how judges are changing the law to protect employers, and why. By bringing organizations back into the discussion of discrimination, with real-world stories and extensive social science research, Green shows how organizational and legal efforts to minimize discrimination – usually by policing individuals over broader organizational change – are taking us in the wrong direction, and how the law can do better by creating incentives for organizational efforts that are likely to minimize discrimination, instead of inciting it.
And here's just one of the many strong endorsements:
Tristin Green brilliantly illuminates the origins and effects of disturbing new trends in employment discrimination law that serve to protect high-level officials and their organizations – while leaving those who experience discrimination and lose opportunities more vulnerable. Green is an excellent guide, combining both a readable writing style with technical expertise.
-John Skrentny, University of California, San Diego
Conveniently timed for end-of-year gift-giving and library acquisitions, Tristin's book is available from Cambridge in softback for $34.99 and hardback for $151, and from Amazon in both hard copy forms and in kindle form ($21.49).
Wednesday, November 30, 2016
Jake Rosenfeld (Wash U. - Sociology) has just posted the essay Labor and Politics: Learning the Right Lessons from 2016 over at onlabor. H argues that the Democratic Party's take-away from the 2016 election results -- that they need to refocus on white/male/working-class/Rust-Belters, is exactly wrong. His entire essay is well worth a read; here's an excerpt:
The election postmortems paint a picture of the U.S. labor movement as a set of beleaguered organizations made up of white, male, manufacturing workers. That would have been an accurate representation of organized labor a century ago. More recently, the demographic and occupational composition of organized labor changed dramatically, bringing millions of women and racial and ethnic minorities into its ranks. During the latter half of the 20th Century no population was more over-represented in labor unions than African-Americans. In the Detroit metropolitan area three decades ago, unions had organized nearly 1 out of every 3 workers; by 2015, the rate had fallen by more than half. In the Milwaukee metro area, 1 out of every 4 workers belong to a labor union back in the mid-1980s. Today, less than 1 in 15 do.
Democrats’ newfound attention to the electoral consequences of organized labor’s plight is welcome, although several decades overdue. Alongside churches, unions remain the only set of mass-based organizations that connect working-class Americans to politics. If 2016 has taught us anything, it is that all the advanced analytics in the world can’t compensate for desiccated political organizations that engage workers biennially, at best. But looking to convince white working-class Republican voters in Sheboygan or Kenosha Counties to join the Democrats makes sense only if Democrats had turned out all their potential voters. A more fruitful way forward would be for Democrats, labor unions, and progressive allies to reinvigorate remaining unions, especially in urban areas, and to coordinate resources and activities with state and local political organizations.
Tuesday, November 29, 2016
Friend of the Blog Bill Herbert sends word that registration is now open for the National Center's 44th Annual Conference on March 26-28, 2017 in New York City. The conference keynote speaker is NLRB Chair Mark G. Pearce. The number and breadth of panels and workshops is far too long to list and describe here, but is available at the Conference Registration Website.
Tuesday, November 22, 2016
District Court Enjoins New Overtime Salary Threshold (and Basically Holds that Salary-Basis Test is Unlawful)
Today, the Eastern District of Texas just issued a nationwide preliminary injunction barring application of the Department of Labor's (DOL) new minimum salary threshold for overtime exclusions under the Fair Labor Standards Act.
The decision is stunning. The court relies almost exclusively on dictionary definitions of the terms of the FLSA's overtime provisions. In so doing it states repeatedly that the FLSA's statement that the DOL may define and delimit the meaning of "administrative, exccutive, and professional" does not include the authority to set minimum salary thresholds. According to the court, the DOL can only update the duties. Thus, if an employee meets the duties of, say, an administrative employee, they should be excluded no matter their salary. However, perhaps recognizing that this line of reasoning runs contrary to decades of overtime law, the court drops a footnote saying it wasn't questioning the salary-basis test generally -- the court was addressing only the new salary threshold was under issue. But as far as I can tell, the only logical conclusion from the court's reasoning is that the salary-basis test in general is illegal (if someone sees a way around this in the decision, definitely let me know). In other words, if this decision stands, I think the only logical conclusion is that there will no longer be a salary-basis test for overtime exemptions.
Friday, November 18, 2016
Introduction: Ken Dau-Schmidt, Indiana University
Chapter 1: Existence of the Employment Relationship
- Joe Slater, Toledo
- Charlotte Garden, Seattle Univ
Chapter 2: Employment Contracts: Termination
- Steve Befort, Minnesota
- Lea Vandervelde, Iowa
- Ken Casebeer, U of Miami
Chapter 3: Employment Contracts: Compensation and Benefits
- Scott Moss, Colorado
- Nadelle Grossman, Marquette
Chapter 4: Principles of Employer Liability for Tortious Harm to Employees
- Jason Bent, Stetson
- Michael C. Duff, Wyoming
Chapter 5: The Tort of Wrongful Discharge in Violation of Public Policy
- Nicole Porter, Toledo
- Ann McGinley, UNLV
Chapter 6: Defamation, Wrongful Interference, and Misrepresentation
- Ruben Garcia, UNLV
- Helen Norton, Colorado
Chapter 7: Employee Privacy and Autonomy
- Matt Finkin, Illinois
Chapter 8: Employee Obligations and Restrictive Covenants
- Alan Hyde, Rutgers Newark
Chapter 9: Remedies
- Marley Weiss, Maryland
- Judge David Hamilton, Seventh Circuit Court of Appeals
- Judge Terry A. Crone, Third District Court of Appeals (Indianapolis)
- Michael W. Padgett, Jackson and Lewis (Indianapolis)
- Ryan H. Vann, Baker & McKenzie LLP (Chicago)
- Michael D. Ray, Ogletree and Deakins (Chicago)
- Jeffrey A. Macey, Macey, Swanson and Allman (Indianapolis)
- John Roche, Senior Attorney, Ill FOP Labor Council
- Dale Pierson, IUOE, Local 150 General Counsel
- Daniel J. Kaspar, Assistant Counsel, Nat'l Treasury Employees Union
Thursday, November 17, 2016
“Findings on the prevalence and sectoral distribution of the worst forms of child labor in each country. . . Country-specific suggestions for government action (since 2009). . . [and] [i]ndividual country assessments that identify where Significant, Moderate, Minimal, or No Advancement has been made (since 2011).”
Child labor issues are a critical – – and sometimes forgotten – – area of employment law and labor law. This report does a nice job of reviewing these critical issues and can be a very helpful resource for academics and others looking at these important topics.
-- Joe Seiner
As someone who's about to guest-teach for a couple of weeks at a Vietnamese labor college, I've been more attuned than most on TPP post mortems. There is a lot of pro-labor language to like in TPP -- it could be a game-changer in SE Asia, where some of the most appalling labor abuses on the planet currently exist. Is TPP dead?
I'll go out on a limb and predict -- contrary to everything I've seen everywhere -- that TPP is alive and well. (1) Trump values business above all else, and global trade is good for business. I'd bet the ranch that he will negotiate a few minor face-saving adjustments, re-brand the entire treaty as a Trump initiative (the Trump-Pacific Partnership!), and throw his weight behind it. (2) The alternative to TPP is ceding SE Asia to China (both politically and economically). That would make Trump a loser. Trump does not want be a loser. Thus, I predict that, just as Trump has walked back several (though not nearly enough) of his more reactionary ideas, TPP goes forwarded by another name.
Joe Slater (Toledo) and Charlotte Garden (Seattle - tenured!!!) feature prominently in this Salon article Donald Trump’s Supreme Court will be a real threat to labor — and that’s going to hurt the Democrats. Here's an excerpt:
This oversight [of the Democrats in recognizing the loss of their Union constituency in key post-industrial states like OH, MI, WI, and PA] is particularly troubling when one considers that the Republicans certainly don’t think unions are a minor issue. On the contrary, Republicans see labor organizing as a major impediment to their electoral prospects. So they have done everything in their power to dismantle the ability of unions to organize workers and bargain collectively on their behalf. Now that Donald Trump will have the power to appoint federal judges, especially Supreme Court judges, these efforts to destroy organized labor will get a big assist in the courts.
Gary Spitko (Santa Clara) has just published Antigay Bias in Role-Model Occupations (U. Penn. Press 2016). What impeccable timing, given the current political environment. The book explores how employment discrimination against gay role models (teachers, major league athletes, military service members, etc.) has been used to reinforce social understandings about the inferior nature of gay people. The book also argues that there is a reciprocal relationship between this type of discrimination and the bullying of LGBT youth, and proposes a reform agenda to combat antigay bias in role-model occupations grounded in an understanding of the nature of this reciprocal relationship.
For a 20% discount, enter code "PH41".
Congrats, Gary, and many thanks for your well-timed tome. Would that your message resonated farther north in our executive-branch.
Wednesday, November 16, 2016
One of my favorite higher-ed bloggers, Matt Reed (aka "Dean Dad"), posts today on the disconnect between the increasing decriminalization private-sector drug testing, and the consequent labor-market distortions. Here's an excerpt; his entire post When Did We Decide That? is well worth the read:
Without ever really having the conversation, as a society, we seem to have decided to outsource the war on drugs to private employers.
Referenda legalizing marijuana for recreational use passed in several states, having already passed in several others. It’s legal for documented medicinal use in many more, and I’m told that getting the relevant documentation is less strenuous in some places than others. The culture seems to be saying, albeit in stages and regionally, that it has better things to worry about.
But during the same period that many state legal barriers have fallen, employer drug screening has become widespread.
In talking with some local employers about the gaps they’re struggling to fill, I’ve heard repeatedly that the single biggest barrier to finding good people is getting candidates who can pass a drug test. Tests snag an alarming number of people. That’s especially true in the jobs that don’t require graduate degrees but that do pay pretty well, such as the skilled trades.
Tuesday, November 15, 2016
Buzzfeed News has a fascinating recent story about "an artificially intelligent chatbot called WorkIt" developed by OUR Walmart, a network of Walmart workers. WorkIt is designed to answer workers' questions about company policies by "draw[ing] from hundreds of pages of company policies and employee guidelines." The bot uses an algorithm to answer common employee questions, and is "trained" by human beings to increase its accuracy. The bot can apparently be purchased and used for other purposes -- presumably also to inform workers of their rights under the relevant labor and employment laws?
Worth a read.
- Charlotte Alexander
Sunday, November 13, 2016
Richard Kaplan (Illinois) has just posted on SSRN his article The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services (2016 NYU Rev. of Ee Benefits & Exec. Comp.). Here's the abstract:
This Article examines one of the most contentious provisions of the Affordable Care Act – namely, the 40% excise tax on high-value health insurance provided by employers. This levy, commonly denominated the “Cadillac” tax, is scheduled to take effect in 2020 but has already induced many employers to raise annual deductibles on the health insurance they provide to reduce the value of such insurance and thereby lower their exposure to this new tax. After analyzing the administrative guidance proposed since the Cadillac tax’s enactment, this Article considers how that tax’s effective encouragement of high-deductible health insurance plans has inadvertently made the Health Savings Accounts that President George W. Bush promoted 15 years earlier much more appealing.
Friday, November 11, 2016
The EEOC has just posted on its website a couple of webinars – – that are free of cost – – and could prove useful to both employers and employees on a couple of specific issues. The first discusses how federal law applies to wellness programs offered by employers. From the EEOC’s website:
“On May 17, EEOC issued final rules that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their family members. The rules allow limited incentives for employees and spouses to participate in such programs, but also include important privacy protections. . . EEOC offered a webinar on Oct. 19 to discuss these rules. EEOC attorneys provided information that will help employers and wellness programs comply with the rules, including an overview of both rules and answers to frequently asked questions the Commission has received since the rules were published.” The webinar is available here.
The second discussion addresses compliance with the new EEO-1 report. From the EEOC’s website: “The U.S. Equal Employment Opportunity Commission (EEOC) has posted online a recording of its Oct. 26, 2016 webinar for employers about the new Employer Information Report or EEO-1 . . . This webinar provides an overview of the EEO-1, describes the process of reporting and submitting summary pay and hours worked data, and gives examples of how to enter the data on the new form.” This webinar is available here.
Both webinars are helpful resources for employers and provide excellent (and inexpensive) guides on these issues.
-- Joe Seiner
Thursday, November 10, 2016
Every once in awhile, someone writes something that makes me see something familiar from a completely different angle. Such is Naomi Schoelbaum's (GWU) new article, recently posted on SSRN, Towards a Law of Coworkers (forthcoming Alabama L. Rev. 2017). Here's the abstract:
A growing body of research reveals what most Americans already know from experience: that our coworkers play a central role in our lives. The significance of coworker relationships is only magnified in an era of expanding work hours in the twenty-four-seven economy. But the law does not reflect this reality, and instead relegates coworkers to the status of legal strangers. This Article argues that the law’s failure to recognize coworker relationships undermines not only these relationships, but also the goals of work law, and makes the case for a law of coworker relationships that would promote the equal, fair, and safe workplace the law envisions.
This Article bypasses the longstanding divide between the collective focus of labor law and the individual focus of employment law by positing a relational theory of work law, with coworkers at the center. Relying on a rich social science literature, the Article shows how coworker bonds help to achieve the goals of work law by enhancing employee leverage, promoting collective action, facilitating worker voice, and even preventing legal violations from occurring in the first place. But across a wide swath of doctrines, from labor law to antidiscrimination law to wage-and-hour law and beyond, the law limits workers’ ability to harness the power of these bonds by erecting barriers to coworker bonding, discouraging the exchange of coworker support, and allowing employers to rupture coworker bonds.
To remedy these shortcomings, this Article proposes a law of limited-purpose support that would recognize coworker bonds. This model would adapt time-tested doctrines to the reality of coworker relationships, and would provide new protections to coworkers. This law of limited-purpose support would align work law with work life, and allow coworker relationships to fulfill their promise of achieving a better workplace.
Wednesday, November 9, 2016
Friend-of-blog (and EEOC General Counsel) David Lopez sends along a fascinating case from a federal district court in the Western District of Pennsylvania which denied a motion to dismiss based on the Defendant's argument that Title VII does not protect sexual orientation discrimination. In the case, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), the Commission alleged that a male worker was harassed on the basis of his sexual orientation and subsequently left his employment as a result of the workplace environment.
The decision is available here: SCOTTMEDICAL.order. From the District Court's opinion, which relied heavily on the Supreme Court's Price Waterhouse decision:
"[T]he Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. . . . It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping and, under Price Waterhouse, violates Title VII. . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination "because of sex," Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied."
The case represents a groundbreaking decision and it will be interesting to see if other courts follow this analysis. The EEOC press release on the case is available here.
Tuesday, November 8, 2016
When you have good news to share, but are reticent to toot your own horn, send that news my way. Likewise, please send my way news you come across about the accomplishments of our comrades.
I'm always happy to brag on the accomplishments of everyone in our LEL community.
Monday, November 7, 2016
In a move that will surprise absolutely no one who knows her, the faculty at Seattle U. have unanimously voted to recommend that Charlotte Garden receive tenure later this year. (The recommendation still must be approved by the University, but I would assume that's a no-brainer.)
Charlotte is the whole package. She is an innovative teacher, a cutting-edge scholar, and a behind-the-scenes worker bee who organizes conferences (e.g., COSELL) and never misses an opportunity to praise her colleagues in the LEL field. On top of all her professional accomplishments, she is a genuinely wonderful, down-to-earth, always-willing-to-help person who I am exceptionally proud to know. Congrats to Charlotte, and congratulations to Seattle for having the good judgment to approve her tenure application unanimously.
You can find Charlotte's full bio after the break.
Thursday, November 3, 2016
Dennis Nolan and Rick Bales have just published the new edition of their book, Labor and Employment Arbitration in a Nutshell (West, 3d ed.). The publisher's description:
Labor and employment arbitration law simplified. Authoritative coverage provides a description of the origin, development, and practice of labor and employment arbitration. Text focuses on the fundamentals of the labor and employment arbitration process and explores the major arbitration law issues, their importance, and the conflicting opinions on them.
A must have if your studying or working in this area.
The Washington Post has posted 20 photos from Lewis Hine, documenting child laborers from the early 1900s. There are some really moving pictures in the collection and all of them show young children who are doing extremely hard work. Definitely worth a look.
Of course, child labor is not unheard of even today.
Wednesday, November 2, 2016
If you have students writing on issues connected with disability and the law, please share with them this announcement (you can even post this flyer Download TJSL-CraneWritingCompetition-2017-d2) from our friend Susan Bisom-Rapp (Thomas Jefferson):
Thomas Jefferson School of law is pleased to announce the third Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.
All submissions must be submitted electronically to: firstname.lastname@example.org. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.
For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition:email@example.com.