Workplace Prof Blog

Top-5 Employment SSRN Downloads

1. Cynthia L. Estlund, Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law (121).
2. Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (92).
3. Edward A. Zelinsky (photo above), Maryland's Wal-Mart Act:  Policy and Preemption (74).
4. Richard C. Reuben, Democracy and Disute Resolution: Systems Design and the New Workplace (69).
5. Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (62).

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Top-5 Labor SSRN Downloads

1. David J. Doorey, Neutrality Agreements: Bargaining Freedom of Association in the Shadow of the State (26).
2. Lisa B. Bingham, Cynthia J. Hallberlin, & Denise Walker, Dispute Resolution System Design and Justice in Mediation at the Workplace: Purpose Drives Practice (17).
3. Terry Carney, Welfare to Work: Or Work Discipline Revisited (16).
4. Holger M. Mueller (left) & Thomas Philippon (right), Concentrated Ownership and Labor Relations (14).
5. Monique Ebell & Christian Haefke, Product Market Regulation and Endogenous Union Formation (14).

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Top-5 International Employment & Labor Law SSRN Downloads

1. Matt Zwolinski (photo above), Sweatshops, Choice, and Exploitation (103).
2. Sanford M. Jacoby, Convergence by Design: The Case of CalPERS in Japan (32).
3. Monique Ebell & Christian Haefke, Product Market Regulation and Endogenous Union Formation (14).

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Top-5 Benefits/Compensation//Pension SSRN Downloads

1. David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (218).
2. Alan D. Jagolinzer (left), Steven R. Matsunaga (right), & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (114).
3. Vidhi Chhaochharia & Yaniv Grinstein, CEO Compensation and Board Oversight (95).
4. Richard L. Kaplan, Means-Testing Medicare: Retiree Pain for Little Governmental Gain (75).
5. Edward A. Zelinsky, Maryland's Wal-Mart Act:  Policy and Preemption (74).
   

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EEOC Sues Denny's on ADA

The EEOC announced yesterday that it has filed a federal discrimination lawsuit under the Americans with Disabilities Act against Denny’s, Inc., which operates more than 500 corporate-owned restaurants in 30 states, on behalf of disabled employees nationwide who were not provided reasonable accommodation and were fired after being denied medical leave needed in connection with their disabilities.  In its suit, the EEOC charges that Denny’s violated the rights of a class of workers with disabilities by maintaining a maximum medical leave policy that automatically denied additional medical leave beyond a pre-determined limit -- even when additional leave was required by the ADA as a reasonable accommodation for those workers -- resulting in their unlawful terminations.  For more, see the EEOC's press release.

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Articles Recently Posted on SSRN

Several new articles have been posted on SSRN in the last week.  Here are summaries of the abstracts:

• Katherine Van Wezel Stone (left), Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace.  We are accustomed to think of an at-will employment contract as one that can be terminated at any time by either party for any reason.  That is, an at-will contract lasts only from moment to moment, at every moment completed and at every moment renewed -- it has no temporality or fixed terms.  Nonetheless, legislatures have imposed mandatory terms on the employment relationship such as minimum wage and mandatory safety standards, and courts have upheld employers' attempt to impose other terms, such as mandatory arbitration clauses and post-employment restrictive covenants, that extend beyond the life of the instantaneous at-will contract and bind employees over time.  These later developments pose a theoretical problem for the at-will contract.  If the contract is truly at-will, how can some terms bind the parties beyond the moment?  And if some terms can be binding over time, which ones and why not others?  This paper argues that the courts are evolving a hybrid type of employment contract, in which the contract is moment to moment for purposes of dismissal but on-going for purpose of certain employer-imposed terms.  It then argues that this new type of employment contract is neither strictly at-will nor a general form of dismissal protection.  It proposes that we recognize the current instability in the doctrine and treat it as an opportunity to consider what types of terms we believe should be imposed on the contract of employment.  To do so will enable us to design our employment law doctrines around the contingencies, vulnerabilities, and possibilities of work in the modern era.
• Jennifer Ann Drobac (center), I Can't to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas.  This Article offers a unique theoretical foundation for prohibiting the sexual harassment of working adolescents by adult co-workers.  After analyzing the socio-legal treatment of sexuality, the Article reviews classic philosophical perspectives on juvenile capacity and new psychosocial evidence concerning adolescent development.  It weaves this information with Kantian ethics to synthesize a customized legal theory to address the sexual harassment of minors and adolescent “consent” to sex with an adult co-worker.
• Robert C. Hockett (right), What Kinds of Stock Ownership Plans Should There Be? Of ESOPs, Other SOPs, and Ownership Societies.  Present-day advocates of an "ownership society" ("OS") do not seem to have noticed the means we have already employed to become an OS where homes and "human capital" (higher education) are concerned.  Nor do they appear to have considered whether these same means - which amount to publicly enhanced private credit markets - might be employed to spread shares in business firms, with a view to completing our OS.  This article seeks tentatively to fill that gap.  It does so first by demonstrating how the Employee Stock Ownership Plan, or "ESOP," in effect replicates our home and education spreading programs in piecemeal fashion.  But piecemeal replication, the article shows, is not sufficient; a completed OS requires complete replication.  So the article, second, generalizes from the ESOP along two salient dimensions - what it labels the "patronage" and "credit" dimensions - in order both to complete SOP-financing's replication of our federal home - and higher education-finance programs, and with that our OS itself.  Our OS is, in effect, a "three-legged stool" that awaits its third leg.

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Social Protection and Decent Work

Social Protection and Decent Work: New Prospects For International Labor Standards

Comparative Labor Law & Policy Journal
Volume 27, Number 2, Winter 2006

Foreward

• Jean-Claude Javillier, Sabrina Regent, and Emmanuel Reynaud, Foreword, p. ix.

Introduction

• Alain Supiot, The Position of Social Security in the System of International Labor Standards, p. 113.

Context

• Emmanuel Reynaud, Social Security for All: Global Trends and Challenges, p. 123.

• Simon Deakin and Mark Freedland, Updating International Labor Standards in the Area of Social Security: A Framework for Analysis, p. 151.

Actors

• Renana Jhabvala and Shalini Sinha, Social Protection for Women Workers in the Informal Economy, p. 167.
• Ravi Naidoo and Isobel Frye, The Role of Workers’ Organizations in the Extension of Social Security to Informal Workers, p. 187.
• R. Filali Meknassi, Extending Social Security in the Developing Countries: Between Universal Entitlement and the Selectiveness of International Standards, p. 207.

Methods

• Mamadou Diawara, Mobilizing Local Knowledge, p. 225.
• Robert Salais, On the Correct (and Incorrect) Use of Indicators in Public Action, p. 237.
• Adrian Goldin, Extending Social Security Coverage: The Normative Route, p. 257.

Conclusion

• Alain Supiot, The Outlines of a Framework Agreement on the Extension of Social Protection, p. 273.

Book Review

• John Turner - reviewed by Richard L. Kaplan, Individual Accounts for Social Security Reform:  International Perspectives on the U.S. Debate, p. 297.

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NLRB Posts Revised Casehandling Manual

The NLRB General Counsel's Office has posted an informal copy of the revised National Labor Relations Board Casehandling Manual (Part 3) Compliance Proceedings on the Agency’s Internet Website for review before a final version of the manual is issued. The last revision of the Compliance Manual was completed in 1993. As currently revised, the Manual has been reorganized to make it more “reader friendly” and to make the order in which the material is presented conform to the path of normal case processing. In addition, sections of the Manual dealing with formal compliance proceedings, bankruptcy and contempt proceedings have been expanded to provide more detailed information and guidance to the Regional Offices.

The General Counsel's Office is soliciting comments to the Manual.  Comments should be addressed to Beth Tursell.

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Reminder: Employment and Labor Law Research Canon Suggestions

Just a reminder that today on PrawfsBlawg, Matt Bodie (pictured left), as part of his research canon project, is soliciting suggestions for canonical works in the area of labor and employment law.

You can make your suggestions here or you can provide your insights on PrawfsBlawg in the comments section to Matt's entry.

Thanks for your help for this worthy project.

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U. Texas to Host Conference on Gender and Labor

The University of Texas School of Law will host “Gender and Labor: What’s Working?,” a conference examining labor governance and its impact on women on Oct. 19-20.  The keynote address and panels are free and open to the public.   

The conference is co-organized by UT-Austin’s Center for Women’s and Gender Studies and UT Law’s William Wayne Justice Center for Public Interest Law.  It is co-sponsored by the Bernard and Audre Rapoport Center for Human Rights and Justice and the Humanities Institute.

Judith Scott, general counsel of Service Employees International Union, which has a largely female membership and is one of the largest unions in the nation, will open the conference with a keynote address on Oct. 19 at 4 p.m. in the Law School’s Eidman Courtroom.  On Oct. 20, leading gender and law scholars and advocates for working women   will examine legislation and other governance structures adopted at the federal   level to address specific issues affecting women and work in the U.S. Panel topics include Women in the Labor Movement (NLRB); Workplace Discrimination   (EEOC); Work and Family (FMLA); and Trade Governance as a Labor Issue (NAFTA). The panels will also consider emerging reforms, innovations, and alternatives to these federal governance structures.

For more information, contact Gretchen Ritter.

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All is Not Well with Health Savings Accounts

The Oregonian At Work Blog has an entry which suggests that many employees still do not understand the mechanics of the high-deductible health insurance plans and their accompanying health savings accounts, and employers are having to spend a lot of time helping employees to understand them.

The At Work Blog points to a story in Monday's Wall Street Journal (subscription required) which documented how health saving accounts were affecting employees for one small employer. There are also statistics from a Hewitt Associations survey that suggest "that fewer than one-third of employees in such high deductible plans with HSAs are satisfied with their selection and understand the plan. Nearly half said they would not choose to enroll if they had a second chance."

Not good news for those who are pushing these consumer-driven health care financing mechanisms as a way to solve this country's health care delivery crisis.

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Supreme Court Takes Union Fees Case

The Supreme Court just granted cert. in two consolidated cases, Washington v. Washington Education Association and Davenport v. Washington Education Association.  In 1992, Washington voters adopted an initiative that required unions to obtain affirmative consent ("opt-in") from nonmembers before spending any of the nonmembers' fees on political activity.  This is a sharp contrast from the typical "opt-out" rule for dues objectors.

The Washington Supreme Court held that the initiative violated the First Amendment because it imposed a significant burden on unions' ability to engage in political speech and association.  The Court accepted the union's argument that nonmember objectors' right not to contribute to political spending was adequately protected by their ability to opt-out; thus, there was no compelling interest for restricting unions' First Amendment rights.

This is obviously an important issue that could have a significant impact on unions' political activity.  I don't like to guess the outcome of Supreme Court cases, but the grant of cert. here has got to be a grave concern for unions.  Stay tuned.

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Employees Still Look to Unions for Traditional Reasons

Although this is not a Top 10 list of the David Letterman variety, HR.BLR.com points to a poll by the Employment Law Alliance which establishes the top 4 reasons why employees support unions:

The top four factors that workers cite as important in deciding whether to have union representation are workplace safety, getting better benefits, obtaining higher wages, and increasing job security, according to a poll by the Employment Law Alliance, a network of employment and labor lawyers.

I guess no surprise there.  Perhaps, more interesting:

More than 40 percent of respondents said that they believed that unions have had a substantial impact on improving the working conditions of average American workers.

Thirty percent of respondents said unions really care about improving working conditions. On the other hand, 19 percent of respondents said unions are corrupt and only care about what is in the best interest of their own officials.

Finally, it is interesting to note that 61 percent of those responding to this survey had never been in a union.  I think there is both reason for hope and concern from these numbers for the labor movement in America.

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Best Employers for Working Mothers

Working Mother magazine has put together its annual list of the top 100 places to work for moms balanicng work/family obligations and notes an improvement in mother-friendly benefits in the corporate world.

According to this AP report:

Working Mother CEO Carol Evans, who authored the book "This Is How We Do It: The Working Mothers' Manifesto," said that in order to retain female employees, a growing number of companies are offering customized schedules.

"There are some very, very creative ideas, and this is all related to what we saw in the past, with women dropping off the edge of a cliff, when they said it's either working full time or not at all," Evans said.

Using the five criteria of flexibility, leave time for new parents, child care, elder care and the number of women occupying top jobs, the top 10 companies included:

Abbott Laboratories; Bon Secours Richmond Health System; Ernst & Young LLP; HSBC USA Inc.; IBM Corp.; JPMorgan Chase & Co.; Patagonia Inc.; PriceWaterhouseCoopers LLP; Principal Financial Group, and S.C. Johnson & Son Inc.

You can find the rest of the Top 100 at this link.

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Zelinksy on Maryland's Wal-Mart Act: Policy and Preemption

Edward Zelinsky (Cardozo; Visting Yale) has posted on SSRN his forthcoming piece in the Cardozo Law Review entitled: Maryland's Wal-Mart Act: Policy and Preemption.

Here's the abstract:

Maryland's Wal-Mart Act raises two fundamental questions: Is the Act legal? Does the Act represent sound policy?

With respect to the legality of the Maryland statute, I conclude that the Employee Retirement Income Security Act of 1974 (ERISA) preempts the Maryland law. As a matter of policy, the Maryland statute is ill-conceived. The Maryland Act raises prices on Wal-Mart's predominantly low-income customers and, for the long run, will reduce Wal-Mart's employment.

In the final analysis, Maryland's Wal-Mart Act is a poorly-designed exercise in political symbolism, rather than a carefully-crafted response to the pressing problem of health care in America.

I've read this piece in its entirety and am quite familiar with the topic of ERISA preemption being discussed.  With that being said, this is a must-read piece for anyone interested in this quickly developing area of ERISA health care law.  Here's the link.

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Bibliography on The World of Work and Labor Law

Thanks to blog reader Patrick S. O'Donnell, an adjunct instructor in the Department of Philosophy at the Santa Barbara City College, for this bibliography on labor law books entitled: The World of Work and Labor Law: A Basic Biliography.

This comprehensive list of must-read labor law scholarship includes our very own Rick Bales' Compulsory Arbitration: The Grand Experiment in Employment. (Ithaca, NY: Cornell University Press, 1997).

Give it a look see.  There are some oldies, but goodies in there (and I don't mean the book authors!).

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En Banc 9th Circuit Upholds California State Law That Prohibits Employers From Using State Funds for Anti-Union Purposes

Via Howard Bashman at How Appealing this past Friday:

"Appeals court restores law favorable to labor": [Friday] in The San Francisco Chronicle, Bob Egelko has an article that begins, "An appeals court reinstated a labor-backed law Thursday that prohibits California employers from spending money they get from the state on anti-union activities. In a 12-3 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said the law does not violate employers' freedom of speech or interfere with federal regulation of labor-management relations."

Howard provides a link to 9th Circuit's en banc ruling in Chamber of Commerce of the United States v. California Labor Federation, AFL-CIO, 03-55166 (9th Cir., 9/21/06) at this link.

Here's the first paragraph of the opinion:

The question before us is whether a state’s exercise of its sovereign power to control the use of its funds conflicts with national labor policy as expressed in the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-169. Specifically, two provisions in a California statute forbid employers who receive state grant or program funds in excess of $10,000
from using those funds to assist, promote or deter union organizing. We hold that California’s grant and program fund restrictions do not undermine federal labor policy, are not preempted by the NLRA and do not violate the First Amendment.

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Workplace Conflict Resolution

Blaine Donais, a Canadian workplace dispute resolution practitioner, has just published Workplaces That Work: A Guide to Conflict Management Systems in Union and Non-Union Workplaces. 

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