November 13, 2004
Schwartz - 2004 Teacher of the Year at Wisconsin
Congratulations to Professor David Schwartz (Wisconsin). Professor Schwartz has been voted recipient of the 2004 Teacher of the Year Award from the Wisconsin Law Alumni Association (WLAA). The award, which has been given each fall for almost 20 years, makes a significant statement about the value and importance of classroom teaching at the University of Wisconsin Law School.
David Schwartz (B.A., M.A., J.D. Yale University) practiced law for 12 years, specializing in employment discrimination and civil rights litigation. For the three years just prior to joining the UW Law School faculty in the Fall of 1999, Professor Schwartz was Senior Staff Attorney at the American Civil Liberties Union of Southern California, in Los Angeles. Previously, Professor Schwartz was in private practice in San Francisco, representing plaintiffs in employment cases. After graduating law school, he clerked for the Honorable Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit.
For a complete announcement click here.
Innovatice Teaching Conference in HR/IR Website
The Innovative Teaching Conference in HR/IR website is now online at:
Registration information will be online in a few days. Pre-registration will be open until February 28, 2005. The call for papers is also available on the website. Submission deadline 11/30/04.
For an ealier post on this issue see here.
November 12, 2004
Fourth Edition of Chairman Gould's Primer on Labor Law
A Primer on American Labor Law is an accessible guide written for nonspecialists labor and management representatives, students, general practice lawyers, and trade unionists, government officials, and academics from other countries. It covers such topics as the National Labor Relations Act, unfair labor practices, the collective bargaining relationship, dispute resolution, the public sector, and public-interest labor law. This thoroughly updated fourth edition contains extensive new material, covering developments in the eleven years since the third edition, including the continuing decline in union membership, job security rights, wrongful discharge litigation and dispute resolution procedures, ADA (Americans with Disabilities Act) litigation, cases involving sexual harassment and sexual orientation, the most recent collective bargaining agreements in professional sports, and the debate spurred by globalism on international labor standards. Much of the discussion of the National Labor Relations Act discusses decisions and policy changes by the National Labor Relations Board during the author’s chairmanship in 1994-1998.
Jonathan Cutler on the struggle for American Unionism
New book by Jonathan Cutler (Department of Sociology at Wesleyan University) titled, Shorter Hours, the UAW, and the Struggle for American Unionism.
The movement for a shorter workweek that once defined the labor movement in the United States was largely displaced by the new corporatist structure of organized labor in the post-New Deal era. Labor's Time examines the changes that occurred within organized labor and traces their influence on the decline of the shorter hours movement. Focusing on the internal union politics of the influential United Automobile Workers and Local 600, its chapter at Henry Ford's massive River Rouge factory, Jonathan Cutler demonstrates how an all-but-forgotten interracial movement for a shorter workweek during the 1950s and 1960s became a casualty of an increasingly top-heavy union bureaucracy that lost touch with the desires, fears, and aspirations of rank and file workers and dug its own grave in the process. Jonathan Cutler examines the political context in which the shorter hours movement emerged within Local 600 in the 1940s, then chronicles the attempts by Walter Reuther, the head of the UAW, to suppress it. Cutler also reviews the role the Communist Party played in the controversy. Finally, he documents the UAW response to rank and file pressure for a shorter workweek, and how the local's own organizational flaws allowed Reuther and the national union to wrest control from the dissidents.
An excerpt from the introduction is available here.
Dau-Schmidt at Georgetown
Ken Dau-Schmidt (Indiana University School of Law) presents, "Gender and the Legal Profession: The Michigan Alumni Data Set 1967-2000" as part of the Georgetown University Law Center Law and Economics Workshop Series, today November 12, 2004.
November 11, 2004
Secunda on the NLRB
Professor Paul Secunda (Univ. of Mississippi) has just published “Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board” in the Florida State University Law Review. The Article’s empirical analysis of the NLRB’s inherently destructive conduct decisions strongly suggests that the Board is generally less politically motivated in adjudicating labor disputes than previous commentators have suspected. These findings suggest that such decisional consistency results from the effects of institutional collegiality, which permit Board Members from all ideological perspectives to decide cases solely on their legal merits and with the sole goal of getting the law right.
Slow moving regulation
A few weeks ago I blooged on a 13 years long strike in California to illustrate what sometimes is the slow pace of struggles for justice at the workplace. In her most recent "Regulators" column in the Wahington Post, Cindy Skrzycki, reminds us that at the Occupational Health and Safety Administration (OSHA) the pace is even slower.
"The wheels of regulation can turn slowly at the Occupational Safety and Health Administration, very slowly. Take the case of hexavalent chromium.
In 1976, a separate research group, the National Institute for Occupational Safety and Health, asked that an emergency standard be written to limit workers' exposure to the chemical compound, which is used to manufacture pigments and dyes, tan leather and make stainless steel and chrome plating. ...
Yet, there was more delay. Only after two lawsuits and a court order issued in April 2003, which essentially told the agency "enough is enough," did the wheels of the regulatory machinery begin to turn in a meaningful way.
On Oct. 4, OSHA issued three proposals that would cover general industry, construction and shipyards, lowering the permissible exposure from the current standard of 52 micrograms per cubic meter of air to 1 microgram on an eight-hour, time-weighted average -- a limit that is four times higher than what Public Citizen requested in its petition. The proposal also calls for controlling exposure through engineering controls, protective clothing and respiratory protection.
The agency has until January 2006 to complete the rule under a timetable worked out with court supervision."
Estreicher on Accessible Justice
Professor Samuel Estreicher (NYU) delivers this year’s McGlinchey lecture entitled, "Accessible Justice: The ADR Challenge to the U.S. Legal System,” at Tulane Law School today, Thursday, November 11th at 6:00 p.m.
The McGlinchey Lecture was established in 1996 to honor the late Dermot S. McGlinchey, a distinguished Tulane Law School graduate and founder of the New Orleans law firm of McGlinchey Stafford. The McGlinchey Lecture is dedicated to the field of litigation and practice.
November 10, 2004
Disagreement within the AFL-CIO
"as the nation's union leaders gather today in Washington the labor movement is in turmoil, with the president of the A.F.L.-C.I.O.'s largest union hinting that it might pull out of the labor federation and some labor leaders saying that John J. Sweeney may face a challenge for its presidency."
The disagreement appears to be centered on the question of what shoudl unions do to reverse the long downward trend in unionization rates in the U.S. According to Greenhouse:
"In a sign of the jockeying and soul-searching, Andrew L. Stern, president of the Service Employees International Union, the A.F.L.-C.I.O.'s largest union, called yesterday in a letter for far-reaching changes in labor designed to increase its membership, proposing a $25-million-a-year campaign to unionize Wal-Mart and a near doubling in the amount spent annually on organizing."
A related article appears in the Los Angeles Times (Unions Confront Postelection Reality, by Nancy Cleeland).
Federalist Society on Globalization
As part of the Federalist Society National Convention (November 11-13, 2004), a panel on Labor & Globalization: Labor Challenges for the 21st Century. The panel features:
· Mr. Daryl R. Buffenstein, Paul Hastings Janofski & Walker LLP
· MMrs. Marti Dinerstein, President, Immigration Matters and Fellow, Center for Immigration Studies
· Mr. Gary Clyde Hufbauer, Reginald Jones Senior Fellow, Institute for International Economics
· Hon. Steven J. Law, Deputy Secretary, U.S. Department of Labor
· Hon. Bruce P. Mehlman, Mehlman & Vogel, Inc. and Former U.S. Assistant Secretary of Commerce, Technology Policy
· Mr. Grover G. Norquist, President, Americans for Tax Reform
· Ms. Elizabeth K. Dorminey, Wimberly, Lawson, Steckel, Nelson & Schneider, PC (Moderator)
Message from the AALS
Here is a message from the AALS regarding the 2005 Annual Meeting and the current work stoppage at the San Francisco Hilton
Association of American Law Schools
To: Law School Faculty and Staff
From: Carl C. Monk, Executive Vice President and Executive Director
Subject: A MESSAGE TO LAW SCHOOL FACULTY AND STAFF REGARDING THE 2005 ASSOCIATION OF AMERICAN LAW SCHOOLS (AALS) ANNUAL MEETING
Greetings to all:
Many of you are aware of the fact that the headquarters hotel for the Annual Meeting, the San Francisco Hilton, is currently involved in a strike/lockout with one of its unions. Although negotiations are in progress it is unclear whether the strike/lockout will continue at the time of our Annual Meeting on January 5-8. The Hilton has indicated that it is continuing to provide full service during the strike/lockout.
A few Section leaders have already advised us that they would lose speakers and attendees for any program scheduled in the Hilton. To assure that the Annual Meeting content is not affected by cancellation of speakers, and that faculty who would not cross picket lines are able to attend the Annual Meeting and programs in which they are interested, the AALS has developed a "Plan B" that will be implemented if the strike/lockout is still in progress at the time of the Annual Meeting. This afternoon our office consulted with the AALS Executive Committee and all committee members support this option.
Under Plan B virtually all of the events scheduled in the Hilton would be moved to Hotels Nikko and Parc 55, neither of which are affected by the current strike/lockout, and are located directly across the street from the Hilton. Thus, Annual Meeting registration and all regular Section programs would be moved. In addition to all regular Section programs, all but three Section meal events (breakfasts and luncheons) would be moved. We will attempt to make alternative locations available for these three Section meal events as well. Due to space constraints, exhibit booths and perhaps childcare facilities would be required to remain in the Hilton.
Lodging arrangements can be made at Nikko, Parc 55, or Hilton. Once Nikko and Parc 55 are full AALS will attempt to add additional hotels for those of you who prefer not to stay at the Hilton. You are of course also free to arrange for your own lodging at one of the many hotels in San Francisco not affected by the strike/lockout.
Although the ideal solution would be that the strike/lockout no longer be in progress at the time of our meeting, "Plan B" provides an option for presenting virtually the entire Annual Meeting in hotels that are not subject to the strike/lockout and thus have no picket lines. AALS is pleased to have been able to arrange this backup plan and we look forward to seeing you at the Annual Meeting January 5-8.
As additional information becomes available, it will be included on our Web site at: www.aals.org/am2005/updates/
I look forward to seeing you in San Francisco.
Elite Orchestras ready to play
Daniel Wakin, (New York Times) reports that the musicians of the Chicago Symphony Orchestra recently ratified a new three-year contract, avoiding interrupting the regular season. The contract, reports Wakin:
"calls for the musicians to pay more in health care costs. Raises in the last two years will bring the minimum salary to $111,670 for the final year, making it one of the highest-paying orchestra jobs in the country. The first-year minimum will be $104,000." (Labor Contract For Orchestra in Chicago)
Wakin notes that:
"The orchestras in Chicago, New York, Philadelphia and Cleveland, which along with the Boston Symphony have historically been considered the nation's elite five, begin the season with expiring contracts. But they have either approved new contracts or have approvals pending."
November 9, 2004
The EEOC estimates that 15 percent of the sexual harassment cases it handles nowadays involve same-sex allegations, and the number is rising.
Regarding the history of same-sex harassment cases:
It wasn't until 1998, when a Louisiana oil rig worker pursued a case against his male superiors, that the Supreme Court opened the door to same-sex lawsuits by declaring that the federal law banning harassment applies even if the victim and accused are the same sex.
Gay rights groups praised the Louisiana decision, Oncale v. Sundowner Offshore Services. However, the ruling has opened the door to abuse and underscored the awkward social issues unique to such cases, lawyers say.
Gay complainants are often forced to reveal their sexual orientation. Non-gay plaintiffs are sometimes chided for not having been able to handle the situation on their own.
Regarding plainitffs' difficulties in establishing same-sex harassment, Susman notes:
Many plaintiffs are faced with trying to "out" an accuser who denies being gay, adding to their burden of proof. Gentile, in denying former aide John Martin's accusations, said he is not gay and is the victim of a political witch-hunt.
On the other hand, notes Susman:
A major problem is that some anti-gay workers have used such accusations to undermine gays in the workplace, said Suzanne Goldberg, an expert on gay civil rights and associate professor of law at Rutgers University.
"There's no question that sexual harassment suits are sometimes used as a vehicle to attack a gay or lesbian boss," said Goldberg, recalling her defense of a gay man who was being targeted by a disgruntled employee.
Law School Rankings
From my fellow blogger, Paul Caron, at TaxProf Blog, a great post on law school rankings and an order to New Jersey's judges to refrain from participating in the annual survey. N.J. Judges Told: Just Say No to U.S. News Law School Survey
Wokplace Gender Identity Discrimination
In Companies Add Gender Identity to Anti- Bias Policies, Amy Joyce (Washington Post) reports an increase in the number of companies that protect employees from discrimination based on "gender identity and/or expression." The phrase covers “not only gay, lesbian, bisexual and transgender (GLBT) employees, and those who are transitioning from one sex to another, but also workers who might be chided for not acting male or female enough.” According to the story, some employers have expanded the reach of discrimination protection as relates to sexual identity and expression in an effort to decrease the number of potential lawsuits that might claim discrimination based on the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins. In Price Waterhouse, the Court held that the accounting firm was liable under Title VII when it denied a female senior manager’s candidacy for partner based on sex stereotypes including the view that the candidate was “macho” and too aggressive.
Gulati and Carbado at Northwestern
Mitu Gulati (Georgetown) and Devon Carbado (UCLA) present "Race to the top of the Corporate Ladder: What Minorities Do When They Get There" as part of the Northwestern Employment Law Colloquium, this coming Thursday, November 11.
November 8, 2004
Title VII turns 40
"is a it’s a bittersweet birthday. On the one hand, we can celebrate four decades of federal attention to sex discrimination in the workplace. But on the other, it’s getting harder to actually enforce the law, because the standards for what constitutes sufficient evidence are becoming increasingly stringent."
Rights of employees returning from military service
From The New England In-House, an interesting article regarding the workplace rights of employees returning from military service, The Uniformed Services Employment Reemployment Act Provides Extensive Rights To Returning Employees (Evan Fray-Witzer). Among the major protections provided by USERRA are:
At its most basic, USERRA addresses the rights of active service members to employment and reemployment opportunities. With respect to employing new employees or promoting existing employees, this means that employers may not allow an employee’s (or potential employee’s) active military service, potential active military service, or imminent active military service to enter the decision making process. With respect to the reemployment of employees who were called away to active duty, the specific details as to notification requirements and the timing of a request for reemployment are somewhat complex. The general rule, however, is straightforward: In general, a returning employee is entitled to reemployment in his or her original position (or a position of like seniority, status and pay) unless the employer’s circumstances have so changed as to make reemployment "impossible" or "unreasonable."
USERRA also applies what is known as an "escalator principle," which generally means that, upon reemployment, the employee is supposed to step back onto the "seniority escalator," not just at the place where they disembarked, but in the position they would have naturally occupied if it had not been for the employee’s military service.
Although USERRA does not specifically mention its impact on a union’s collective bargaining agreement, it does make clear that its provisions trump any contrary "state law, contract, agreement, policy, plan, or practice" which would reduce, limit, or eliminate an employee’s rights under USERRA. Presumably, this language means that a union’s CBA could not dictate a seniority plan that conflicted with the provisions of the statute.
November 7, 2004
Jolls & Prescott on Disability Discrimination
Another fascinating paper by Christine Jolls (Harvard, NBER) in collaboration with J.J. Prescott (MIT), just posted in SSRN. Here is the abstract: Studies of the effects of employment protection frequently examine protective legislation as a whole. From a policy reform perspective, however, it is often critical to know which particular aspect of the legislation is responsible for its observed effects. The American with Disabilities Act (ADA), a 1990 federal law covering over 40 million Americans, is a clear case in point. Several empirical studies have suggested that the passage of the ADA reduced rather than increased employment opportunities for individuals with disabilities. To the extent this is true, it is crucial to credibly disentangle the different features of this complex and multi-faceted law. Separately evaluating the distinct aspects of the ADA is important not only for determining how the law might best be reformed if some aspects of it produce negative employment effects, but also for improving our understanding of the potential consequences of ADA-like provisions in race and other civil rights laws. This paper exploits state-level variation in pre-ADA legal regimes governing disability discrimination to separately estimate the employment effects of each of the ADA's two primary substantive provisions. We find strong evidence that the immediate post-enactment employment effects of the ADA are attributable to its requirement of "reasonable accommodations" for disabled employees rather than to its potential imposition of firing costs for such employees. Moreover, the pattern of the ADA's effects across states suggests, contrary to widely-discussed prior findings based on national-level data, that declining disabled employment after the immediate post-ADA period reflects other factors rather than the ADA itself.