Workplace Prof Blog

AALS Section on Employment Discrimination Law – Call for Papers for Panel on “Title VII at 50: Looking Forward, Looking Back"

Deborah Widiss (Indiana-Bloomington) passes on a call for paper for the upcoming program of the AALS Section on Employment Discrimination Law – Title VII at 50: Looking Forward, Looking Back.”

Here is the annoucement:

The AALS Section on Employment Discrimination invites submissions for participation in a panel at the annual conference (Jan. 2-5, 2014) focused on Title VII’s fiftieth anniversary. The panel will bring together key leaders who helped shape Title VII’s early implementation, a current EEOC commissioner, and scholars to use this milestone year as an opportunity for looking both forward and backward at Title VII’s impact and its potential. Confirmed panelists include Alfred Blumrosen, Chai Feldblum, Trina Jones, and Bill Robinson. One additional panelist will be selected from the call-for-papers; junior scholars are particularly encouraged to submit proposals. Presenters may opt to publish their papers in the Employee Rights and Employment Policy Journal.  

The deadline for submissions is August 15, 2013. More details are available here. For more information, contact Deborah Widiss, dwidiss@indiana.edu.

PS

Fourth Circuit Strikes Down NLRB's Notice Posting Rule

UPDATE:  I was informed by someone at the Department of Labor that, since 2010, DOL requires federal contractors to post virtually the identical notice; indeed, the NLRB used the DOL rule as a model.  Given the numebr of such contractors, this is nothing to sneeze at.  But it would be nice if other employees also knew what their legal rights were.

The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB's notice posting rule, in Chamber of Commerce v. NLRB (a 3-0 decision, with 2 Obama nominees).  Unlike the D.C. Circuit's broad, quasiiconstitutional decision, the Fourth Circuit limited its holding to whether the NLRA gave the NLRB power to require employers that have acted unlawfully to post informational notices.  The court concluded that it did not.

The short version of the holding is that, unlike other statutes that gave agencies the power to require notices, the NLRA limited the NLRB to a reactive role.  In other words, the Board cannot act unless it is acting on a ULP charge or representational matter; thus, it is unable to impose an independent duty on employers that have not otherwise violated the Act (like the D.C. Circuit, the Fourth Circuit did not strike down the NLRB's practice of requiring notices in case-by-case determinations as a ULP rememdy or prior to an election).  I find this view of the NLRA too narrow and think the court was too quick to dismiss the Board's attempt to fit the rule under its power to "necessarily carry out" the provisions of the Act.  That said, it is a far more defensible holding that the broad one from the D.C. Circuit.  Unfortunately, the result is the same--assuming these cases stand, the NLRB won't be able to punish employers for not posting notices absent an amendment of the NLRB.  Although I still think the NLRB should ask employers to voluntarily post notices (and sweeten the pot by changing the notice to add more language about the right not to join a union, whcih it should have had in the first place).  Even if a small number of employers use it, it's better than none.

Hat Tip:  Patrick Kavanagh

-JH

Shout Out to Richard Moberly's New Blog: Law of Secrecy Blog

Richard Mobely (Nebraska) writes to tell us that he is finally dipping his toes in the blogging world (yes, he realizes it is 10 years too late!).

In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.

I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.

Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.

PS

Cherry and Carlson on Virtual Workplace Whistleblowers

Congratulations to both Miriam Cherry (St. Louis) and Richard Carlson (Sout Texas) who were both mentioned in a recent article by AOL News discussing the importance of virtual workplace whistleblowers in light of the Snowden affair.  The article is entitled: New Type Of Whistle-Blower: Young, Internet Savvy And Headed For Jail.

In particular, Miriam's latest article was written up by AOL News.  Here are some highlights:

Miriam Cherry, a professor at Saint Louis University School of Law and author of the report, calls them "virtual whistle-blowers." Unlike past generations, they're blogging, dropping surreptitious videos onto YouTube or leaking documents to online groups such as WikiLeaks, as Bradley Manning allegedly did. Cherry points to a growing army of "whistle-bloggers," employees who blog -- usually anonymously -- about illegal activities at their places of work. No state so far, she notes, has whistle-blower laws on the books to explicitly protect bloggers -- let alone the people who post YouTube videos or leak to Wikileaks.

Here is a link to Miriam's featured article. Congratulations to both Miriam and Richard!

PS

Wal-Mart makes news for focus on temp hiring

Reuters recently did a survey of Wal-Mart's hiring in recent months and published the findings today. The results are making a fairly decent size buzz in other media outlets and on twitter. The survey revealed a big surge in hiring temporary workers, who are automatically terminated after 180 days, although they can reapply for their positions. About half the stores surveyed were hiring only temporary workers, while others were hiring a mix of temporary and non-temporary workers. It appears that all of the temporary workers were hired to work part time, and that Wal-Mart makes a distinction between regular part-time work, and temporary part-time work. Regular workers aren't automatically terminated at the 180-day mark. The stores explained that this strategy allows them to be more flexible, able to react more quickly to changes in demand. Of similar types of stores, only Dollar General does temporary hiring year round. Most only do temporary hiring at the holiday season.

I have a serious question about this news. What does the "temporary" designation get Wal-Mart? It is a term without legal effect. We all know that in reality, nearly all of Wal-Mart's workers, and most workers in the U.S., are effectively temporary workers. They can be terminated at any time for nearly any reason with no notice. We also know, though, from Pauline Kim's (Wash. U. St. L.) work, and our own experiences, that many if not most employees don't realize this.

Clearly, people do attach legal significance to the terminology. Most of the commentary on the Wal-Mart news suggests that this kind of terminology has legal significance, as if the default employment relationship gave employees some level of job security, and hiring workers labeled "temporary" outside of the busiest season for that business is some kind of break with the norms of employment relationships.

So why use this terminology that has no legal consequences? Is this designation a way to make the workers feel even more insecure? Does it make them less likely to assert rights during their employment or after because they are told up front not to expect to continue? Is this kind of like noncompete agreements in places they are not enforceable? I have the same problem with other HR terminology, too, like "probationary" employees in an at-will setting. Or even full or part-time in an at-will context before the FMLA or the ACA mandated some limited benefits based on the number of hours an employee worked.

I ask these questions because I genuinely want to know what the answers might be. I speak to non-lawyers a lot about employment law issues, and I find that nearly every discussion or presentation ends up with me giving them bad news, that they don't have job security unless they have an individual or collective contract (or some statutory rights like civil servants and public school teachers). Our students, like most people, also tend to believe employees have job security until they take our classes. 

Maybe part of an answer is that even though at-will employees have no legal job security, they have practical job security because most employers have incentives to keep employees. Small employers and people with hiring and firing power often have personal relationships with those they have power over that make firing people difficult. And employers' own beliefs, which tend to overestimate the risk of liability mean that they rarely terminate people without a pretty good reason. Is that enough?

Feel free to weigh in on any of the questions in the comments.

MM

EEOC Sues BMW and Dollar General for Improper Use of Criminal Background Checks

The Wall Street Journal has the story of how the EEOC yesterday filed cases against two companies, BMW and Dollar General, who are accused of improperly using criminal background checks to discriminate against black applicants.

From the Wall Street Journal:

Federal regulators Tuesday accused two large employers of improperly using criminal-background checks in hiring, the latest salvo in a contentious debate over whether such screening amounts to discrimination against black applicants.

In complaints filed in federal courts in Illinois and South Carolina, the Equal Employment Opportunity Commission said two companies discount retailer Dollar General Corp. and a U.S. unit of German auto maker BMW generally barred potential employees based on the criminal checks, when they should have reviewed each applicant. The commission said the policies had the effect of discriminating against black applicants.

The suits underscore increasing government scrutiny of criminal and credit checks, which are widely used to screen job applicants. Some 92% of employers use criminal-background checks for some or all job openings, according to a 2010 survey by the Society of Human Resource Management.

The EEOC issued guidance to employers last year, shortly after a unit of PepsiCo Inc. agreed to pay $3.1 million and change its screening policy to settle charges of discriminating against blacks by improperly using criminal checks. In some cases, the Pepsi bottling unit screened out applicants who had been arrested but never convicted.

The guidelines don't bar the use of criminal checks, but urge employers to consider the crime, its relation to an applicant's potential job, and how much time that has passed since the conviction. The guidelines also recommend that employers review each case individually, and allow applicants to show why they should be hired despite a conviction.

Because this is an area of the law where the EEOC recently issued guidance and has had success in winning these cases against other large companies, I would suspect this is going to be a hot area of employment discrimination litigation for many years to come. Or at least until some of these employers adopt criminal background check practices that comply with EEOC guidelines.

Hat Tip: Liz Tippett

PS

O'Brien on The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies

Christine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her forthcoming article in the Oregon Law Review: The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies.

Here is the abstract:

Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act-protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.

Hard to think of a more relevant and timely topic in the area of American labor law. I was just explaining to one of my colleagues the other day that much of the action in traditional labor law in the next few years might be with regard to the Section 7 rights of non-union employees.  This article provides much needed guidance of what those evolving rights might look like in the social media milieu.

PS

ADAPT Forum on Internships: Internships and Traineeships: Occupational Transition or Exploitation?

Lots of news and cases these days around the world about the plight of unpaid interns.  Our friends at ADAPT send us word that they will be holding a forum on the issues surrounding this important labor and employment law topic.  The name of the forum is: Internships and Traineeships: Occupational Transition or Exploitation? Here is a description:

We are pleased to inform you that the Association for International and Comparative Labour Studies (ADAPT) has launched a new discussion forum on the contentious issues of internships and traineeships. In our opinion, debating this matter from an international and comparative perspective is the best way to reflect upon the central questions related to labour market regulation: What is the meaning and value of labour and which is its proper legal definition? In reference to internships and training, are we talking about work or a simple learning experience? Which is the legal definition and, consequently, the most effective way to regulate internship? According to the different definitions and purposes, shoul d internships be paid or unpaid? How to evaluate and certificate the competence gained after a period of an internship? Who monitors and controls the regularity and the quality of internships? Should internships be limited to school alternation or school-to-work transition only? Is it possible to utilize people’s work without a formal contract?

We do not have pre-determined answers to all these questions, yet we strongly believe that today’s improper use of internships will have serious consequences not only on young people but also on the future of our economies and on the development of a sound society. This is why we want to open this forum and ask your contribution and suggestions, in order to provide the right answers to such a complex issue. We are aware that an international and multi-disciplinary approach could help us to devise a theoretical framework and some practical solutions in order to avoid that such an important lever in terms of school-to-work transition degenerates into forms of exploitation of young people.

This is an open access 2.0 forum. A simple registration is required.

The solutions provided in this forum will be discussed during the upcoming international conference, Internship and Traineeship for Students and Young People, Training, School-to-Work Transition or Exploitation?, organised by our International PhD School on Human Capital Formation and Labour Relations on October 25-26, 2013 in Bergamo.

You are welcome to join us in this forum and attend the conference, also by submitting a contribution in response to our call for papers.

For further information, make contact with our staff at news@adaptinternational.it

PS

Big win in fight against unpaid internships

Earlier today Judge William H. Pauley in the U.S. District Court for the Southern District of New York handed down an important opinion in Glatt v. Fox Searchlight Pictures, Inc. The case involves the hot topic of whether interns working on the film Black Swan were really employees who should have been paid at least minimum wage. The court granted the plaintiffs summary judgment on that issue, ruling that they were indeed employees.

The court relied on the Department of Labor's multipart test, for determining when an intern is legitimately a non-employee. The court rejected Searchlight's argument that it should rely on a balancing test weighing who received the primary benefit from the internship. That balancing test, the court ruled, was subjective and unworkable for employers. Some interns will learn more than others, and it may not even be possible to know who is the primary beneficiary until the end of the internship.

Another plaintiff, who worked as an intern for the Fox Entertainment Group at its headquarters in New York was allowed to pursue her action as a collective action under the New York Labor Law and a collective action under the FLSA.

This is an important development in the wage and hour/misclassification arena, an area of litigation that is growing. The legality of unpaid internships has been a big focus lately, in a wide variety of contexts, including in the legal field. We'll have to see if this inspires suits in more industries. My prediction is that it will.

MM

Reminder...

Submissions are due on Monday, June 17, 2013 for the Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum to be held October 11-12th. We welcome proposals from relatively junior scholars (untenured, newly tenured, or prospective professors) across the spectrum of Employment and Labor Law. Proposals should be 3-5 pages in length and can be submitted to me at charles.sullivan@shu.edu. 

CAS

SCOTUS OKs Class Arbitration

The Supreme Court issued three opinions today, and among them was Oxford Health Plans LLC v. Sutter.

Here is the syllabus from the opinion:

Respondent Sutter, a pediatrician, provided medical services to petitioner Oxford Health Plans’ insureds under a fee-for-services contract that required binding arbitration of contractual disputes. He nonetheless filed a proposed class action in New Jersey Superior Court, alleging that Oxford failed to fully and promptly pay him and other physicians with similar Oxford contracts. On Oxford’s motion, the court compelled arbitration. The parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and he concluded that it did. Oxford filed a motion in federal court to vacate the arbitrator’s decision, claiming that he had “exceeded [his] powers” under §10(a)(4) of the Federal Arbitration Act (FAA), 9 U. S. C. §1 et. seq. The District Court denied the motion, and the Third Circuit affirmed.

After this Court decided Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662—holding that an arbitrator may employ class procedures only if the parties have authorized them—the arbitrator reaffirmed his conclusion that the contract approves class arbitration. Oxford renewed its motion to vacate that decision under §10(a)(4). The District Court denied the motion, and the Third Circuit affirmed.

Held: The arbitrator’s decision survives the limited judicial review allowed by §10(a)(4). Pp. 4−9.

(a) A party seeking relief under §10(a)(4) bears a heavy burden. “It is not enough . . . to show that the [arbitrator] committed an error—or even a serious error.” Stolt-Nielsen, 559 U. S., at 671. Because the parties “bargained for the arbitrator’s construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court’s view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57, 62. Thus, the sole question on judicial review is whether the arbitrator interpreted the parties’ contract, not whether he construed it correctly. Here, the arbitrator twice did what the parties asked: He considered their contract and decided whether it reflected an agreement to permit class proceedings. That suffices to show that he did not exceed his powers under §10(a)(4). Pp. 4−6.

(b) Stolt-Neilsen does not support Oxford’s contrary view. There, the parties stipulated that they had not reached an agreement on class arbitration, so the arbitrators did not construe the contract, and did not identify any agreement authorizing class proceedings. This Court thus found not that they had misinterpreted the contract but that they had abandoned their interpretive role. Here, in stark contrast, the arbitrator did construe the contract, and did find an agreement to permit class arbitration. So to overturn his decision, this Court would have to find that he misapprehended the parties’ intent. But §10(a)(4) bars that course: It permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly. Oxford’s remaining arguments go to the merits of the arbitrator’s contract interpretation and are thus irrelevant under §10(a)(4). Pp. 6−9.

675 F. 3d 215, affirmed.

KAGAN, J., delivered the opinion for a unanimous Court. ALITO, J., filed a concurring opinion, in which THOMAS, J., joined.

I'll admit to being a bit surprised at the outcome here. The language of prior decisions on arbitration suggested that the Court thought arbitration and class actions were incompatible and that contractual language would have to explicitly allow class actions in arbitration before they could go forward. The contractual language in this case was not that clear. The arbitrator in this case interpreted this arbitration clause as allowing class actions (just one of the universe of civil actions) to proceed in arbitration:

No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the rules of the American Arbitration Association with one arbitrator.

The rule on deferring to the arbitrator trumped what may be the majority of Justices' own view on class actions.

MM

 

 

Labor & Employment Roundup

It's time for another labor and employment roundup:

• Among the reasons for my needing to do a quick roundup is preparations for two summer conferences:

1.  The inagural Labour Law Research Network (LLRN) conference in Barcelona next week.  The program looks great, present company notwithstanding.

2.  The annual Southeastern Association of Law Schools (SEALS) conference, Aug. 4-10 in West Palm Beach (and to all those who are thinking boondoggle--yes, it's in a nice place, but we take over an entire Southern Florida hotel in August and, as a result, get incredibly cheap rates).  As has been the case for the last several years--primarily due to the work of Michael Green and Paul Secunda--there are numerous labor and employment panels (by my count, six panels with a primary L&E focus, plus many more related).  One new feature this year at SEALS is a "New Voices" series that involves a call for papers from scholars with five years or less experience to discuss works-in-progress with more senior faculty--we have a L&E New Voices panel with several great-looking papers.

• The May unemployment numbers are in: 175,000 new jobs, with an 7.6% unemployment rate (up from 7.5% the month before).  The numbers look OK--a bit better than projected--and there seems to be a slight decrease in discouraged workers.

• In a case in which Connecticut state employees challenged their dismissal, the Second Cir. granted summary judgment to the plaintiffs, holding that the layoffs targeted union members.  According to the court, this violated their First Amendment right to association and, in doing so, applied strict scrutiny.  Given that the standard for these cases has been a mess of late, expect a cert. petition and a decent likelihood of it being granted.

• An employer recently settled charges that it fired two workers, and sued one of them, for filing charges with the NLRB.  In addition to paying $315,000, the employer agreed to drop the suit, rescind a wage-gag rule, and stop paying an attorney to represent employees in a coercive manner (the attorney claimed to represent the employees--allegedly via coercion--and required all contact with employees to go to him first.  Even by labor law standards, that's some pretty agressive action.

• An update on the cert. petition and amicus briefs for Noel Canning.  The conference is set for June 20.  My favorite quote from the Washington Post article:

“This stuff is catnip for law nerds,” Washington lawyer John P. Elwood wrote in a post on the legal blog the Volokh Conspiracy — which, it should be said, is itself catnip for law nerds.

• Speaking of the dysfunctional state of NLRB appointments, former member Peter Hurtgen suggests a temporary compromise of having only two Democratic and two Republic members.  I admire Hurtgen, but I'm not sure that having the White House give up its normal prerogative to have a majority on the NLRB solves anything--seems like it simply gives the minority party more incentive to block nominations.

• Also, in NLRB news--the Board refused to adopt the General Counsel's suggestion to change the Spielberg/Olin arbitration deferral standards.  The GC wanted more limited deferral, to occur only when it is shown that the arbitrator adequately considered the statutory rights at issue.  Not entirely clear why the NLRB didn't agree, but it shows that descriptions of the NLRB as being a hack for union interests isn't accurate.

• The Fourth Circuit recently issued a decision in a sexual harassment case in which the alleged harasser commited suicide after the accusation was made.  The court affirmed summary judgment for the employer in yet another case that shows, in spite of popular opinion, how difficult it is to win sexual harassment claims.

Hat Tip:  Jonathan Harkavy, Patrick Kavanagh, and others.

-JH

Fifth Circuit holds that lactation discrimination violates Title VII

In the first circuit court of appeals decision on the issue, the Fifth Circuit, in EEOC v. Houston Funding II held yesterday that discriminating against an employee because she is lactating or expressing milk is sex discrimination. The decision reversed summary judgment in favor of the employer and remanded the case to the district court. We reported on the district court decision here, and you might recall that the district court had held that lactation was not a condition related to pregnancy because it did not start until pregnancy had ended.

The Fifth Circuit's decision held that lactation was a medical condition related to pregnancy and childbirth because it was a physiological state caused by pregnancy and subsequent childbirth. It further relied on prior circuit precedent, which had held that menstruation, a normal part of female physiology, was a condition related to pregnancy and childbirth:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly afterthe pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s postpregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”

In a footnote in this section, the court distinguished cases about whether a failure to accommodate an employee who wanted to express milk at work in a particular way violated Title VII. Title VII does not require accommodations for women affected by pregnancy, childbirth, or related conditions, just that those women be treated the same as other employees who may be similar in their ability or inability to work. So if the employer never allows employees to take breaks, it may not be required by Title VII to allow lactating women to take breaks, for example. 

This case was not about whether the employer had to accommodate the employee's request to use her breast pump at work, or at least not yet. Instead, it was about whether she was fired just for saying that she had said was lactating and wanted to express milk at work. She hadn't asked for any special accommodation yet. The employer doesn't exactly deny that; instead, it contends that she was not fired at all and instead abandoned her job.

This decision is an important development in the area of sex discrimination in sex-specific contexts. The accommodation framing seems somewhat problematic, though. It seems too easy to see a request related to expressing milk as something special, disregarding the kinds of actions employees simply take without requesting or requests that employees make all of the time that aren't viewed as accommodating. For example, even workplaces with rigid requirements about where employees must be and for how long (think a factory production line or cash register at a store) often provide breaks for employees to go to the bathroom, get a drink of water, or just rest for a few minutes. If an employee uses one of these breaks for some other purpose, it seems problematic to suddenly frame it as an accommodation.

With the amendment of the FLSA to require that most employers provide reasonable breaks and facilities to allow lactating women to express milk, perhaps this issue will fade, but it still says a lot about what we view as the "norm" to talk about accommodating pregnant or lactating women, when we don't talk about accommodating people with full bladders.

h/t N. William Metke, @metkelaw

MM 

Levinson on Social Media, Privacy, and the Employment Relationship: The American Experience

Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.

Here is the abstract:

This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.

This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation.  As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.

PS

Schwab Leaving Cornell Law Deanship in 2014

Stewart Schwab, Dean of the Cornell Law School and one of the Reporters of the ALI's Restatement of Employment Law, has announced that he is stepping down as dean of the law school in June 2014.

From the Cornell Chronicle:

“I have enjoyed my time as dean,” said Schwab. “Cornell Law has a collegial faculty that sees the best in each other; students who are talented, hardworking and enjoy learning the law; and loyal alumni who lead lives of distinction and are dedicated to improving the school. These factors have let us accomplish many things over the last decade.” . . . .

Other Law School milestones under Schwab’s leadership:

• the most successful fundraising year in the history of the Law School, 2012;
• expansion of the school’s business law curriculum with new deals and transactional law classes;
• creation of new clinical studies opportunities in securities law, labor law, LGBT rights and juvenile justice;
• the launch of several new programs, institutes and projects including the Clarke Business Law Institute, the Cornell e-Rulemaking Initiative, the Avon Global Center for Women and Justice, the Clarke Initiative for Law and Development in the Middle East and North Africa and the expansion of the Journal of Empirical Legal Studies; and
• establishment and expansion of exchange partnerships with some two dozen universities around the world.

After a sabbatical during the 2014-15 academic year, Schwab will return to the faculty. Here's hoping that much more innovative labor and employment law scholarship is the happy result!

PS

New ADAPT International Bulletin on Comparative Labor and Employment Law

Our friends at ADAPT, Chris Leggett and Michele Tiraboschi, bring word of the latest version of the ADAPT International Bulletin, including two comments.

The first note, which is from Gabriele Gamberini (PhD Candidate in Human Capital Formation and Labour relations and Visiting Researcher at Middlesex University, London) gives insights on whistleblowing in countries without whistleblower laws. Using a Game theory and taking the Italian case into a point, the article demonstrates the importance of creating internal channels for whistleblowing in countries with no whistleblower laws.

The second note that comes from Paul Jonker-Hoffrén (Post-doctoral Researcher, Turku Center for Labour Studies, Turku University) deals with the origin of the Youth Guarantee and explains briefly the goals, actors, and the pros and cons of the Finnish Youth Guarantee system.

This issue also includes the January edition of the E-Journal of International and Comparative Labour Studies.

For further information, you can contact the ADAPT staff at news@adaptinternational.it

PS

Onwuachi-Willig's New Book: According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family

Congratulations to worklaw prof Angela Onwuachi-Willig (Iowa) on the publication of her new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family (Yale University Press 2013). 

Angela presented one of her chapters of the book to the Marquette Law faculty as part of our Faculty Workshop series and it really was quite captivating. Although the book focuses on issues surrounding family law, it also provides insights into many area of civil rights and work law as well.  Here is the press release.

You can purchase it through Amazon, Yale University Press, or an indpendent book store.

PS

LawAsia Employment Conference

Greetings from the LawAsia Employment Conference in Siem Reap, Cambodia.  It never ceases to amaze me that the rest of the world is grappling with many of the same labor/employment issues as we in the U.S. are.  Here are some of the themes I've found most interesting so far; any of them would make a fascinating comparative LEL article.  If any blog readers are interested in connecting with Asian lawyers/professors on any of these topics, please let me know and I will happily make the connection.

• LEL issues raised by facebook and other social media sites.  EVERY country in the world is dealing with the issue of how to deal with an employee who is fired for criticizing her boss/company. My favorite: the employee who "liked" a facebook friend's comment that the employee's boss "is as worthless as a chocolate teapot."
• Outsourcing (e.g., to temporary staffing agencies) as a means of avoiding benefits and unfair dismissal protections required for "employees".
• The disembowelment of trade unionism.
• The difficulty of collective bargaining when the workers are in one country (with one set of laws and expectations) and ownership/management is in a different country.
• The efficacy of labor tribunals / labor courts for resolving labor disputes.  
• Negotiating in the shadow of "law" that is unenforced or a "judiciary" that is corrupt and easily bribed.
• Sex discrimination laws, even if effective at addressing discrimination in urban employment settings, do little or nothing to address socially entrenched gender attitudes and employment practices in rural areas.

-rb

NYU Labor Center Events

In addition to the Annual Conference on Labor (focused on Regulation of Compensation) that we posted on earlier, NYU's Center for Labor & Employment Law is holding a conference on "Implications of the Affordable Care Act for Multi-Employer and Single-Employer Plans." The conference is on June 21, and you can see the program and more information here.

-JH

Feldblum Nominated to EEOC for Another Term

Congratulations to Chai Feldblum (EEOC, Georgetown) for her nomination to the EEOC for a second term. President Obama announced the nomination yesterday along with a group of other positions here. Given her extensive background on antidiscrimination issues in the legislative clinic at Georgetown and her central involvmement in drafting, coalition building, and passage of the ADA and ADAAA, Chai has been a very effective commissioner. She and Commissioner Lipnic, one of the President's Republican nominees, in particular have been able to work with business and employee advocates on enforcement issues. Here's hoping the Senate confirmation process goes smoothly this time around as well.

h/t Marcy Karin (Arizona State)

MM