Saturday, September 9, 2006

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation//Pension SSRN Downloads

Friday, September 8, 2006

Law Partners v. Law Partners for Discrimination


Managing partners who think their law firms can’t be sued for discrimination by another equity partner may need to think again.  An ongoing discrimination lawsuit filed by a former equity partner against [Chicago's 400+ attorney firm of] Hinshaw & Culbertson is the latest bit of evidence that such partner-against-partnership claims may be a coming trend.

So begins an article in today's ABA Journal eReport, Ex-Partner Sues Her Law Firm for Bias, by Martha Neil.  Thanks to Jennifer Kreder for the heads-up.


September 8, 2006 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Kotkin on An Empirical Study of Confidential Employment Discrimination Settlements

Mkotkinsmall_3Minna Kotkin (Brooklyn) has posted on SSRN her piece entitled: Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements.

Here's the abstract:

Recent empirical studies on outcomes in employment discrimination litigation all reach the same conclusion: plaintiffs have little chance of success. But these studies rely on summary judgment decisions and trial verdicts, gleaned from reported opinions, electronic docket entries, and data collected by the Administrative Office of the Courts, and they acknowledge that this is just “the tip of the iceberg.” Until now, settlement outcomes, which account for 70% of case resolutions, have been rendered invisible because of confidential settlement agreements. Along with the “vanishing trial” syndrome, secret settlements have created an information vacuum, skewing the public policy discourse about employment discrimination litigation, and leaving the judiciary, litigants and attorneys without benchmarks by which to negotiate resolutions.

This article reports on an anonymously coded database of 1170 cases settled by federal magistrate judges in Chicago over a six year period ending in 2005, and provides the first detailed analysis of settlement outcomes. These data reveal that employment discrimination litigation, which accounts for over 40% of the database, with a mean recovery of $54,651, is neither jeopardizing American business nor resulting in undeserved windfalls for disgruntled employees. Plaintiffs are achieving a reasonable degree of success, measured against their lost wages. The Chicago project should be replicated and refined to provide an even more complete picture of settlement outcomes.

You can download this important piece of empirical work on employment discrimination settlement agreements at this link.


September 8, 2006 in Scholarship | Permalink | Comments (1) | TrackBack (0)

The Brown Collar Workplace

Faculty_leticiasaucedoLeticia Saucedo (UNLV) has just posted on SSRN her provocative new article The Employer Preference for the Subservient Worker and the Making of the Brown Collar Workplace.  Here's the abstract:

The rapidly growing Latino immigrant population raises questions about how the “brown collar” worker is being incorporated into our economy. Newly arrived Latino immigrants, or “brown collar” workers, are increasingly found in segregated workplaces throughout the country. They typically perform the least desirable jobs in the most unstable conditions in our economy. This article explores the creation of these workplaces by focusing first, on the conditions that create brown collar subservience and second, on employer practices that seek workers out for their subservience. Today’s anti-discrimination law does not adequately capture the form of discrimination lurking in the interaction between brown collar workers taking the jobs no one else wants and employers seeking subservient workers.
The myth of the immigrant worker taking the jobs nobody else wants resonates in our public culture. This article challenges the myth by exploring sociological theories that explain how and why employers, through their preference for subservient workers, create jobs that native-born workers will not take. It also uncovers assumptions about the dynamics of immigrant workplaces embedded in neoclassical economic theories at the heart of judicial opinions. Practices such as network hiring, job structuring, targeting subservience, and avoiding native-born workers, are all couched in terms of worker choice. Alternative sociological theories provide a counter-narrative: employers take advantage of the social conditions that make brown collar workers subservient by setting workplace conditions and pay rates.
There is no adequate place in the current anti-discrimination frameworks for such a narrative. This article explores the power of the anti-subordination principle to recognize employer preferences for the subservient worker as a possible form of discrimination. It suggests that incorporation of the alternative sociological theories into current Title VII frameworks can provide a remedy for brown collar workers seeking the advancement opportunities that the American dream promises.


September 8, 2006 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, September 7, 2006

NIH: Bipolar Depression Takes Heavy Toll on Workplace Productivity; Workplace Supports Essential

Medicallogo Thanks to the Editor of Blawg Review for pointing out this press release from the National Institute of Health (NIH) from September 1st highlighting the especially destructive impact bipolar disease has on the productivity of workers, even when compared to clinical depression (also called major depressive disorder).

From the press release:

Bipolar disorder costs twice as much in lost productivity as major depressive  disorder, a study funded by the National Institutes of Health’s (NIH) National Institute of Mental Health (NIMH) has found. Each U.S. worker with bipolar disorder averaged 65.5 lost workdays in a year, compared to 27.2 for major depression.  Even though major depression is more than six times as prevalent, bipolar disorder costs the U.S. workplace nearly half as much — a disproportionately high $14.1 billion annually. Researchers traced the higher toll mostly to bipolar disorder’s more severe depressive episodes rather than to its agitated manic periods. The study by Drs. Ronald Kessler, Philip Wang, Harvard University, and colleagues, is among two on mood disorders in the workplace published in the September 2006 issue of the American Journal of Psychiatry.          

Their study is the first to distinguish the impact of depressive episodes due to bipolar disorder from those due to major depressive disorder on the workplace. It is based on one-year data from 3378 employed respondents to the National Co-morbidity Survey Replication, a nationally representative household survey of 9,282 U.S. adults, conducted in 2001-2003.

In a related study, "[researchers] suggest[ed] that health professionals pay more attention to recovery of work function and that workplace supports be developed, perhaps through employee assistance programs and worksite occupational health clinics, to help depressed patients better manage job demands."

And clearly such accommodations in the workplace for workers suffering from bipolar disorder would be consistent with employer obligations under Title I of the ADA.  The important point seems to be that if employers are proactive in developing support systems for these workers, there is a better chance that these employees will remain able to perform the essential functions of their jobs. 

Finally, and speaking to employers in terms of the bottom line, investing in such support systems makes sense financially because these programs will help cut down on the amount of loss days and allow bipolars sufferers to remain productive members of the workforce.


September 7, 2006 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

NYU Graduate Student Strike Ends With A Whimper

Nyu_logo_2 After so much fuss being made in the past year about whether NYU would cave and recognize its graduate students union in light of a recent NLRB decision finding that such students are not statutory employees for purposes of the NLRA (see previous posts here, here, here, here, here, here, and still here), the whole affair has apparently now come to a quiet end.  Inside Higher Ed reports that all graduate students, even the union organizers, are now back teaching classes at NYU, and it it safe to say, without a union.

No better example, I would explain to my labor law students, of why it is so important to be considered an employee under the NLRA and have Section 7 rights to engage in self-organization, collective bargaining, and concerted activities for mutual aid and protection in order to have even a fighting chance of being taking seriously by one's employer.  Also, the outcome of this dispute helps to explain why so much is at stake in the supervisory status cases now pending before the Board.


September 7, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 6, 2006

Companies That Could Benefit from HR Sensitivity Training

Yourfired_3 Jeanne Sahadi of has truly conjured up a parade of horribles when it comes to the different and diabolical ways employers have gone about terminating their employee's employment (think Radio Shack, Northwest's Guide for Laid Off Employees and the text messaging firing here).

Some of the more cold-hearted examples (with tongue-in-cheek headers):

Strategy 2: Consider the cattle call. It can build team spirit.

One company herded employees into an auditorium and gave them one of two color-coded information packets. Those with the same color packets sat together. The two groups were then escorted out of the auditorium through different exits. One led back to the office, which meant that group of employees could stay. The other led to the street, which meant the workers should file for unemployment.

Strategy 3: There is no such thing as "too low." So don't be afraid to test bottom. One option is to let employees figure things out for themselves.

One company deliberately left a new organizational chart on the photocopy machines. Some employees were left off entirely, and others were moved to new positions.

I guess all this would be somewhat funny if one could just ignore the absolute heartlessness exhibited by corporate America and the psychic pain inflicted on the workers.   But I, like most, am certainly not cracking a smile.

"The things that get done in the name of expediency are quite shocking," said Dale Klamfoth, senior vice president at WJM Associates, an executive and organizational development firm.



September 6, 2006 in Commentary | Permalink | Comments (0) | TrackBack (0)

Reconstituted 3rd Circuit Panels Does 180 and Broadens Ministerial Exception under Title VII

Church_7 Thanks to Howard Bashman at How Appealing for bringing to my attention the Third Circuit's reissued opinion in the case of Petruska v. Gannon University, No. 05-1222 (3rd Cir. Sept. 6, 2006) (previously blogged about here (original decision) and here (vacation of original decision)).

The holding of the opinion, which adopts the ministerial exception in Title VII cases and applies it to any claim "which would limit a religious institution's right to choose who will perform spiritual functions," is not that unusual in that it closely coincides with the law of seven other circuit courts.

What is unusual is that the dissent in the original opinion became the majority opinion because the original decision was issued after the opinion's author, Judge Becker, had passed and the other judge had to recuse himself.  That left the panel dissenter and two new judges to hear this case and this time they unanimously agreed with the initial dissenting opinion.  The court explains the situation in the first footnote to the opinion:

This case was originally argued on October 20, 2005, before Judges Smith, Becker, and Nygaard. On May 23, 2006, an opinion by a majority of the original panel was filed, affirming in part, reversing in part, and remanding the case for further proceedings. Judge Smith filed a dissenting opinion on the same day. Judge Becker, who authored the majority opinion, died on May 19, 2006, after the case had been circulated to the full court, but before the opinions were filed. Appellants petitioned for rehearing en banc or, in the alternative, rehearing by a reconstituted panel. Because of this chain of events, the Court granted the Appellants' request for rehearing by a reconstituted panel. Judge Nygaard subsequently recused himself from the reconstituted panel. Judges Cowen and Greenberg were selected at random to replace Judges Becker and Nygaard.

And thus, at least in the 3rd Circuit, an important aspect of employment discrimination law has turned on the untimely death of a jurist. 

Something just doesn't feel right about this case to me.  Perhaps to make things cleaner from a process standpoint, the full 3rd Circuit sitting en banc should pass on this case because of the importance of the issue and the unusual circumstances surrouding the court's 180 in this case.


September 6, 2006 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

An Academic's Life, from a Labor Perspective

Images_72 From a Monday New York Times article by Tom Lutz; thank to Mike Fischl for forwarding it:

On paper, the academic life looks great. As many as 15 weeks off in the summer, four in the winter, one in the spring, and then, usually, only three days a week on campus the rest of the time. Anybody who tells you this wasn’t part of the lure of a job in higher education is lying. But one finds out right away in graduate school that in fact the typical professor logs an average of 60 hours a week, and the more successful professors work even more — including not just 14-hour days during the school year, but 10-hour days in the summer as well.

Why, then, does there continue to be a glut of fresh Ph.D.’s? It isn’t the pay scale, which, with a few lucky exceptions, offers the lowest years-of-education-to-income ratio possible. It isn’t really the work itself, either. Yes, teaching and research are rewarding, but we face as much drudgery as in any professional job. Once you’ve read 10,000 freshman essays, you’ve read them all.

But we academics do have something few others possess in this postindustrial world: control over our own time. All the surveys point to this as the most common factor in job satisfaction. The jobs in which decisions are made and the pace set by machines provide the least satisfaction, while those, like mine, that foster at least the illusion of control provide the most.

For the entire article, see The Summer Next Time.


September 6, 2006 | Permalink | Comments (0) | TrackBack (0)

Termination of Delta Pilots' Pension Plan Clears Last Hurdle

N736dy_1 A federal bankruptcy judge yesterday approved Delta Airline's request to terminate its pilots pension plan as a way to help it emerge from bankruptcy.  The active Delta pilots had already agreed to the termination, which, "included an option for pilots to retire early at the age of 50 and take out half their entitlements in one lump sum payment,"

Yesterday, a dissident group of retired pilots also withdrew their objections and cut a deal with Delta. Under the arrangement, the group representing about 100 retired pilots agreed to pull its objections to the plan's termination in exchange for Delta agreeing to pay $500,000 to the group to cover fees and expenses.

Delta will now formally ask the PBGC to take over the plan and the agency will pay reduced benefits to the pilots. 

Another sad example of a company not being able to back up their pension promises to their employees.  And although pilots are, as a class, better paid than most, many are still bound to suffer. 

One more question: do the Delta executives, with their nonqualified, top-hat retirement plans, have to forego any of their retirement payments?


September 6, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Symposium on Behavioral Realism (and Implicit Bias)

Aggbymrbsep04 FacultyphotophpJolls_christine_3 Sunstein_2

Pic_1 Jerry_kang_3 Mrb2_thumb_2 Gary_blasi_1

Jost2 Banks_richard Eberhardt

California Law Review
Volume 94, No. 4, July 2006

Symposium on Behavioral Realism

  • Anthony G. Greenwald (top row, left) & Linda Hamilton Krieger (top row, center-left), Implicit Bias: Scientific Foundations, p. 945.
  • Christine Jolls (top row, center-right) & Cass R. Sunstein (top row, right), The Law of Implicit Bias, p. 969.
  • Linda Hamilton Krieger & Susan T. Fiske (second row, left), Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, p. 997.
  • Jerry Kang (second row, center-left) & Mahzarin R. Banaji (second row, center-right), Fair Measures: A Behavioral Realist Revision of ‘Affirmative Action’, p. 1063.
  • Gary Blasi (second row, right) & John T. Jost (bottom row, left), System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, p. 1119.
  • R. Richard Banks (bottom row, center-left), Jennifer L. Eberhardt (bottom row, center-right), & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, p. 1169.


September 6, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 5, 2006

Classifying Nurses as Employees By Contract

Nurses_1 The LA Times recently reported on a tentative agreement between Kaiser Permanente and the California Nurses Association.  In anticipation of the Board's decision in the Oakwood cases, which has been the subject of several previous posts, the proposed five-year contract includes a promise by Kaiser not to "claim that any nurse or job classification covered by this agreement exercises supervisory authority," even if there is litigation before the Board.  Union members still have to ratify the agreement before it takes effect.

This promise is interesting.  Technically, the Board could probably determine sua sponte that certain of these nurses were supervisors.  Except for very extreme circumstances, however, that would be highly unlikely.  Because the party asserting supervisory status bears the burden of proof, the record would be devoid of enough facts for the Board to determine the issue.  Moreover, I am curious about what the agreement provides for a remedy against Kaiser if it claimed that nurses were supervisors.  Should the relationship between these parties sour in the future, there would be a significant temptation for Kaiser to breach that portion of the agreement.  Whatever contractual remedy Kaiser would be liable for may be worth the ability to eliminate NLRA protection for the 14,000 nurses covered by the agreement.

This agreement also illustrates the obsolescence of the NLRA's definition of supervisor.  That 14,000 nurses reasonably feel threatened enough about whether they are protected as "employees" under the Act to negotiate this promise is troubling.  There is nothing about most nurses that should remove them from the protection of the NLRA.  That their status has long been at risk, and may shortly be even more tenuous, does not bode well for the NLRA's continued relevance.


Hat Tip:  Daniel Mitchell

September 5, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently-Published Scholarship

18jnolan_1 Johnson_creola


  • Francine Tilewick Bazluke & Jeffrey J. Nolan (left), "Because of Sex": The Evolving Legal Riddle of Sexual vs. Gender Identity, 32 J. College & Univ. L. 361 (2006).
  • Creola Johnson (right), Degrees of Deception: Are Consumers and Employers Being Duped by Online Diploma Mills and Universities?, 32 J. College & Univ. L. 411 (2006).


  • Allison E. McClure, The Professional Presumption: Do Professional Employees Really Have Equal Bargaining Power When They Enter Into Employment-Related Adhesion Contracts?, 74 U. Cin. L. Rev. 1497 (2006).
  • Jeffrey L. Ehrenpreis, Controlling Our Borders Through Enhanced Employer Sanctions, 79 S. Cal. L. Rev. 1203 (2006).


September 5, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Spiraling Downwards: The Employer-Provided Health Insurance System in America

Medical_symbol2_1The number of Americans withouth health insurance continues to increase, according to the latest results from the U.S. Census Bureau. According to the report, reported in McClatchy Newspapers (via Raw Story), the number of Americans without health insurance jumped by 1.3 million to 46.6 million.

Most disturbing, "[c]hildren accounted for 8.3 million of the uninsured, up from 7.9 million in 2004. Nearly 1 in 5 impoverished children lacked coverage in 2005, and 22 percent of Hispanic children were uninsured."

Two important points to make here. The number of uninsured Americans is not necessarily related to recently stable unemployment rates, because one can still be employed and increasingly not be provided health insurance by their employer.  Remember the system as it currently exists is entirely voluntary. 

Second, a full 16% of Americans, living in the richest country in the world, don't have health insurance.  And we are all paying for this inefficient system.

It is time to revisit the idea of a single-payer/government health care system.  A sensible system can be put together without raising the spectre of socialism and satisfying to some degree all of the major stakeholders.  It won't be perfect, but it would have to be better than the system we have in which employers are increasingly not providing benefits and when they do, employees can't afford them.

The current employer-provided model is broke and unlikely to be fixed anytime soon. The time to act is now.


September 5, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Zatz on What Welfare Requires From Work

N_zatz_webNoah Zatz (UCLA) has posted on SSRN his forthcoming piece in the UCLA Law Review: What Welfare Requires From Work.

Here's the abstract:

Work is central to much of life and to many areas of law, including recent transformations in the American welfare state. Despite this pervasive importance, work is notoriously difficult to define, and yet doing so is essential to the design and functioning of a work-based welfare system.

This Article provides the first comprehensive analysis of how to define work for the purpose of satisfying welfare work requirements. Work should be understood contextually, its meaning shaped by the underlying normative justifications for linking work to transfer eligibility. Starting from this premise, the Article probes what should count as work according to three major types of justification for work requirements: those emphasizing self-sufficiency, work's non-economic benefits, and reciprocity. Each work rationale leads to distinct and often conflicting work definitions. Deciding which to adopt requires hard choices between competing normative approaches to work and poverty. This conflict belies the superficial consensus in favor of work requirements in the abstract.

Thinking systematically about work in context also opens up new critical perspectives on particular activities. On all accounts, work is less easily identified with paid employment than commonly assumed, something borne out by the actual practices of work-based programs. To illustrate this, the Article concludes by sketching a new avenue for feminist analysis of family caretaking as work, one that exploits rather than rejects a link between work and self-sufficiency.

Noah continues to be at the cutting-edge of workplace and poverty law. This piece will certainly add new dimensions to how we think about welfare-to-work programs in this country.

The article can be found at this link.


September 5, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Prenkert on Bizarro Statutory Stare Decisis

PrenkertrevJamie Prenkert (Indiana-Business) has posted on SSRN his paper entitled: Bizarro Statutory Stare Decisis.

Here's the abstract:

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently and the strong presumption of statutory stare decisis. This convergence of circumstances led to the odd result of duplicating the congressionally disfavored Wards Cove interpretation.

I use the comic book story of Bizarro, Superman's imperfect duplicate, as an allegory for the Smith Court's flawed invocation of statutory stare decisis to duplicate Wards Cove, labeling it Bizarro statutory stare decisis. None of the justifications for the regular presumption of statutory stare decisis supports the result in Smith. Furthermore, Bizarro statutory stare decisis interferes with the proper balance of power between Congress and the Court and implicates the countermajoritarian difficulty of elevating the Court's interpretations over Congress's expressed preferences. The paper explores other contexts in which Bizarro statutory stare decisis could wreak havoc.

Finally, I present an alternative to Bizarro statutory stare decisis. In situations like Smith, the Court should not treat an overridden interpretation as binding precedent, but should interpret the statute before it as a matter of first impression. In doing so, an overridden interpretation should not be duplicated without clear textual, purposive, or historical evidence that the overridden interpretation is more appropriate this time around. The paper concludes by applying this alternative to Smith and explaining why Wards Cove should never have been revived.

You can read this Bizarro, yet very interesting, law review article at this link.


September 5, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 3, 2006

Blawg Review #73

Laborday The Workplace Prof Blog is thrilled to be hosting the 73rd edition of the esteemed Blawg Review for Labor Day 2006 (we didn't need no stinkin' vacation anyway) and thought that we would look at this holiday from a distinctly legal perspective (but still make it a fun time for all nonetheless).

In this vein, it has been said that American labor law is about placing industrial combatants on equal footing so that the sides, labor and management, can have at one another in a high stakes game of economic warfare in order to hammer out mutually-agreeable terms and conditions of employment.

So who is exactly winning the war these days?  There are probably more scientific ways to decipher this on-going tit-for-tat, but we thought what better way to do this (given the constraints of a blog carnival) than to review recent labor-related blog posts and determine whether the story's outcome favors labor or management.  For the sake of keeping the sides straight, we'll call the labor side, "Norma Rae," and the management side, "Wall Street."

So here goes:

It makes sense to start all this with an example of what we mean when we talk about the battle between labor and management: Jordan Barab of Confined Space has the details of one particularly nasty fight over the "Taxpayer Bill of Rights" and public employment between AFSCME and Richard Berman's Center for Union Facts. Advantage: On-going

Bruce MacEwen at Adam Smith, Esq. wonders, in thinking about law firm laterals, whether just because superstar employees bring in more revenue, does that make the venture more profitable? Or, do expenses associated with the superstar capture essentially all the added value they bring, leaving no extra profit for the business?  Advantage: Norma Rae (given that it appears that these superstar employees likely retain the compensation they bring to the firm)

There is a lot of disagreement over the exact meaning of the stock option back-dating scandal with Bruce MacEwen at Adam Smith, Esq., not necessarily seeing the harm and Matt Bodie at PrawfsBlawg not necessarily agreeing. Advantage: No one. A wash until we can figure out what the heck is going on.

No issue who's the winner in this one: ContractsProf Blog reports that employee noncompetition clauses are not enforceable in California.  Advantage: Norma Rae

Greg Mankiw's Blog provides evidence from an economist's study that establishes, contrary to popular belief, that there are still many employees who have stable long-term employment relationships with one employer.  Then why are so many workers pessimistic according to the Pew Research Center as Brent Hunsberger at The Oregonian At Work Blog reports?  Advantage: No one. A wash.

Pot-smoking not enough to get you fired in Iowa?  Apparently not, if you don't receive a copy of the drug testing policy, according to Rosario Vega Lynn at the New Mexico Labor and Employment Law Blog.  But as Mark at The Sportsbiz Blog points out, drug testing for performance enhancing drugs may be coming, with the support of Tiger, soon to the PGA Tour. Advantage: Another wash.

Breast-feeding accommodations at work?  Brent Hunsberger at The Oregonian At Work Blog tells us it is more likely if you are a white-collar worker than a blue-collar one.  Advantage: No one, since employees at different income levels are being treated differently

Diane Pfadenhauer of Strategic HR Lawyer recommends that Radio Shack, with its recent firing of 400 employees by email, can serve as the poster child for how NOT to fire employees.  Advantage: Wall Street (Ross Runkel just flat out persuaded me. He's very persuasive).

The true meaning of Labor Day? Julie Ferguson at Workers Comp Insider reminds us that it's a celebration for the contributions that workers have made to the prosperity of American society. You go American Worker! Advantage: Norma Rae

Chris McKinney at The HR Lawyer's Blog has advice from an article for management on how to navigate the turbulent waters surrounding workplace retaliation suits in light of the Supreme Court's recent Burlington Northern decision.  Advantage: Wall Street

Does a law firm that encourages lawyers to take a nap when tired deserve an award or its collective head checked? cites a Newsday article that explains in New Zealand you get a "work-life balance" award.  Arnie Herz of Legal Sanity is on the same wave length in embracing the idea of learned optimism for lawyers, who should carve out "sacred time" for themselves during the day. Advantage: Norma Rae

Next up, George of George's Employment Blawg (writing for considers whether it is illegal for employers to make employment decisions about employees and potential employees based on what they read about a person on  Short answer: probably not.  Advantage: Wall Street

Keeping with the spirit of Labor Day, David Giacalone, of ethicalEsq and f/k/a, puts out a virtual help wanted sign for some new co-editors for his newest venture: shlep: the Self-Help Law ExPress, which will cover the world of self-representation, pro se litigation and do-it-yourself legal services.  Advantage: Norma Rae (bloggers) fills us in on an on-going sexual harassment suit by a partner against her law firm.  The law firm is defending on the ground that the partner is not an employee for purposes of Title VII.  Advantage: To Be Determined (my guess, eventually Norma Rae)

Apparently, the YUPPY of the 80's is passe. Legal IT explains the GOSSIP (Gadget Obsessed, Status Symbol Infatuated Professional) employees of the new millennium have taken over with their nano iPods, memory sticks, and cell phones.  More toys for labor = advantage for Norma Rae, but more connections to work all the time can lead to workalcoholism and even liability for the employer for promoting addiction in its employees, according to this post by Chris McKinney at The HR Lawyer's Blog. Advantage: Apparently no one

I'm with Troy Rosasco at The Disabled Worker Law Blog in taking my hat off to Governor Pataki of New York for signing into law a workers comp bill that will provide medical and lost wage benefits to Ground Zero rescuers and first responders. Advantage: Norma Rae

Howard Bashman at How Appealing points to an article in the Wall Street Journal for the proposition that bloggers have trouble relaxing and many times even blog while on vacation. I would say that's sick, but I would only be putting myself down. Advantage: Wall Street (within the same person, management is beating up on labor).

Don't look now, but the Labor and Employment Law Blog has the low down on a new web-site established for the sole purpose of reporting employers who hire illegal immigrants. The website was set up by a network of law firms, labor organizations, immigration reform advocates and others working to eliminate the incentive for illegal immigration. On the same topic, both George at George's Employment Blawg and J. Craig Williams of May It Please The Court have the scoop on employers suing other employers under unfair competition laws for using illegal immigrant workers   Advantage: Norma Rae (many unions support the rights of immigrant workers, but employers are facing lawsuits in these cases and losing cheap sources of labor).

Michael McCann over at the Sports Law Blog details the Deion Branch/New England Patriots story, in which Branch would like to be traded to another team, but the Patriots aren't budging.  Branch has filed an arbitration claim, but as one of the comments to the post points out, under an exclusive rights contract, Branch probably has no chance.  Advantage: Wall Street

Pay up, Donut Boy!'s In-House Counsel has the scoop on the $4.7 million dollar class action settlement Krispy Kreme agreed to based on allegations of ERISA fiduciary breaches concerning employee retirement plans. And perhaps Krispy Kreme execs should consider themselves lucky, as poor pension governance may lead some fiduciaries to jail, according to Susan Mangiero at Pension Risk MatterAdvantage: Norma Rae

Lawyers may be the butt of many jokes in this country, but at least they are not being harassed, intimidated, and generally having the crap beat out of them for filing a class action as in China. Matt Barr of the Socratic Rhythm Method has the details.  Advantage: Tie (time to take a step back from the fray and realize that American labor and management have it good in relative terms).

Walter Olson at has the skinny on how anti-Wal-Mart groups are petitioning state attorney generals to apply false advertising laws to stymie Wal-Mart from issuing TV commercials defending themselves against union attacks. Such far-fetched legal attacks can only make Wal-Mart look sympathetic.  Advantage: Wall Street

Finally, David Maister at Passions, People, Principles has a nice piece of advice for how staff people can help partners and other superiors make their law firms better places to work. Advantage: Norman Rae

Final Tally:

Norma Rae:  9

Wall Street:   6

Tie, on-going, to be determined, etc.:  8

SO, putting to one side the fact that only 7.8% of the private sector workforce is presently unionized in this country, labor can take solace in the fact that they had a pretty blogorific week heading into Labor Day (though the fact that there are a significant number of disputes which have no winners makes you wonder whether a little less industrial combat and a little more industrial cooperation would go a long way in the American workplace). 

In any event, thanks for playing along at home everybody and Happy Labor Day!

Next week, check out Blawg Review #74 which will be hosted at Case School of Law's Institute for Global Security Law and Policy on September 11th.

Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

September 3, 2006 in Commentary | Permalink | Comments (0) | TrackBack (8)