Saturday, June 23, 2007
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation (149).
- Adam P. Romero, Methodological Descriptions: 'Feminist' and 'Queer' Legal Theories (80).
- Susan P. Sturm (photo above) & Howard Gadlin, Conflict Resolution and Systemic Change (54).
- D. Aaron Lacy, The Most Endangered title VII Plaintiff?: African-American Males and Intersectionality Claims (50).
- Martin Katz, Reclaiming McDonnel Douglas (49).
- Orly Lobel (photo above), Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions (49).
- Mitchell H. Rubinstein, Assignment of Labor Arbiration (44).
- Ronald McCallum, In Defense of Labour Law (31).
- Mitchell H. Rubinstein, Is a Labor Relations Evidentiary Privilege Developing? (29).
- Matthew T. Bodie, Information and the Market for Union Representation (21).
Workplace Prof Blog's own Paul Secunda (Mississippi) has just posted on SSRN his essay (forthcoming Comparative Labor Law & Policy Journal) Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States. Here's the abstract:
The U.S. Supreme Court has long interpreted the National Labor Relations Act as permitting employers to hold workplace captive audience meetings with their employees on labor-oriented issues. Employees must attend these meetings at pain of discharge and may not be able to leave these meetings, ask questions, or espouse pro-union views.
Under Worker Freedom Act legislation percolating presently in a number of state legislatures, employers would not only be prohibited from holding mandatory sessions during work to express opinions on labor-related, political, and religious issues, but would be liable for retaliating against workers who reported the holding of such sessions.
The focus of this essay is whether Worker Freedom Act legislation would be preempted by federal labor law. This essay answers this question in two ways. First, under current labor preemption doctrine and Supreme Court precedent interpreting rights of states to continue to regulate property and contract rights in the labor relations context, courts should find that such state laws are not preempted by the NLRA. Second, this essay renews the call for a reconceptualization of labor preemption doctrine by the Supreme Court to place such legislation on a more sound doctrinal foundation. Under this new conception, once federal labor law is satisfied by permitting the free exchange of ideas on unionization between employers and their employees, state should then be able to go beyond that floor and provide additional protections to employees to be free from mandatory indoctrination sessions by their employers at work.
As the Bush II Board continues to chip away at the rubble that remains of the NLRA, perhaps states can begin putting some of the pieces back together again.
- Rene B. Adams & Daniel Ferreira, One Share, One Vote: The Empirical Evidence (325).
- Jason S. Scott, Longevity Annuity: An Annuity for Everyone? (167).
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation (149).
- Pamela J. Perun, Towards a Sensible System for Saving (110).
- Lisa Mensah & Pamela J. Perun, Savings for Life: A Pathway to Financial Security for All Americans (77).
- Orly Lobel, Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions (49).
- Tomer Broude (photo above), The WTO/GATS Mode 4, International Labour Migration Regimes and Global Justice (33).
- Michael J. Rawling, A Generic Model of Regulating Supply Chain Outsourcing (26).
- Dae Yong Jeong & Ruth V. Aguilera, The Evolution of Enterprise Unionism in Japan: A Socio-Political Perspective (17).
- Colin Fenwick, Workers' Human Rights in Australia (16).
Guy Mundlak (Tel Aviv Univ. - Faculty of Law) has posted on bepress his article in Theoretical Inquiries in Law: Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages.
Here's the abstract:
The Article critically examines the adaptation of citizenship rights to industrial relations and labor law. Starting with T.H. Marshall’s discussion of industrial citizenship, the Article examines the coupling of industrial citizenship with trade unions. While Marshall’s concept of industrial citizenship may seem to be in decline, other labor market institutions are trying to bridge the divide between citizenship and labor rights: workplace democracy, which assumes the constituency of workers in the corporation; and corporate citizenship, which is used to entrust corporations with obligations that are traditionally expected of human citizens. Citizenship’s contribution to the analysis of labor market institutions lies in the emphasis on the public nature of workers’ rights, in the association of rights with obligations, and in the emphasis on active participation. However, citizenship also has "blind spots" that other theories address more coherently. Human rights are a preferred concept for distinguishing fundamental rights (including rights of citizenship) from "ordinary" rights. Labor rights are more effective in identifying power structures that citizenship rights may overlook. Consequently, the concept of citizenship may compromise workers’ capacity to negotiate fair remuneration, protection from dismissal and the dignity of labor.
An interesting piece on the interrelationship between citizenship, human rights, and labor rights.
Friday, June 22, 2007
Anne Marie Lofaso (a new faculty member at West Virginia and former attorney at the NLRB's Supreme Court and Appellate Court Branches), has just posted on SSRN her new essay, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective. Here's the abstract:
These remarks, given on March 21, 2007, as part of the West Virginia Law Review's Symposium: Thinking Outside of the Box: A Post-Sago Look at Coal Mine Safety, suggest a comparative and interdisciplinary approach to looking at workplace health and safety issues. The remarks in particular and the symposium in general use the Sago Disaster as a springboard for examining the various and complex questions related to the broader question - What role does or should the law play in protecting workers' health and safety. This, of course, leads to the obvious question - Does regulation work? An administrative law and comparative approach to the regulatory issue helps to identify best practices that may save lives. But more profound questions quickly surface. What do we citizens of a “just” society owe workers who daily risk their lives for our collective comfort? If the technology is available to save workers' lives, why hasn't it been made available? The remarks raise questions in hope that next year's symposium will commence a dialogue for presenting different perspectives and possible solutions.
An interesting look at some very important workplace issues--definitely worth reading.
Back in January, I wrote about an interesting workplace privacy case from the 9th Circuit, which received much attention from the legal blogosphere because the original panel decision seemed a little off. Here's what I wrote back then:
A few months ago, we wrote about the 9th Circuit case of United States v. Ziegler, in which the court had found that a private sector employee had no legitimate expectation of privacy under the Fourth Amendment when government agents sought to use evidence from his workplace computer in a criminal prosecution. This finding was based on the fact that his company had access rights to the computer.
Orin Kerr of the Volokh Conspiracy vehemently opposed this reading of what the Fourth Amendment requires and now the 9th Circuit panel has reissued its opinion in the case, United States v. Ziegler, No. 05-30177 (9th Cir. Jan. 30, 2007). Although the result comes out the same, Orin is now happy because the court's reasoning is more consistent with Fourth Amendment precedent in this area.
Now comes word that the en banc 9th Circuit has refused to review the decision in a 16-11 vote. As Robert Loblaw at Decision of the Day points out, this denial of en banc review is somewhat unusual in that not only was there a dissent to the review denial, but the panel who decided the case wrote a concurrence defending their decision. Here's the decision denying en banc review in U.S. v. Ziegler, 05-30177 (9th Cir., June 21, 2007).
Benjamin Richardson (Osgoode Hall - Canada) has posted on SSRN his forthcoming piece in the Banking and Finance Law Review: Do the Fiduciary Duties of Pension Funds Hinder Socially Responsible Investment?
Here's the abstract:
In recent years, pension funds and other institutional investors have begun to give more attention to the environmental and social behaviour of the companies in which they invest. A recent movement for socially responsible investment (SRI) seeks to exclude companies that pollute or ignore human rights, for example, and to champion those that behave ethically and responsibly. However, some confusion among investment decisionmakers persists about the extent to which their fiduciary duties to beneficiaries allow policies that may sacrifice financial returns for environmental or other philanthropic causes. This is compounded by the belief that they cannot secure the best returns in respect of their fiduciary obligations with current socially responsible companies. With reference to the main common law jurisdictions, this article critically examines whether the fiduciary duties of pension fund investors hinder SRI. Contrary to some commonly held beliefs, SRI can often sit comfortably with fiduciary duties to invest prudently. However, legal reforms to improve the climate for SRI would help, as evident by some recent initiatives in several jurisdictions.
This is an important area in pension law as evidenced by Vice President Gore's recent remarks on socially responsible investments at a speech in England (see the comments to this post for some more insight on this issue). In any event, give Richardson's piece a read.
A few weeks back, we brought you a story about how the chief of the Selective Service System had been accused of sexual harassment by a female employee. It now looks like retaliation can be added to the list of charges.
William Chatfield, chief of the Selective Service System, has blocked an agency employee from returning to work after he corroborated a female colleague’s charges that Chatfield had sexually harassed her.
Chatfield, a Bush administration appointee from Dallas, directed that Willie Blanding, a 10-year agency employee, be barred from his office at the agency’s headquarters in suburban Arlington, Va.
Blanding has held a number of top positions at the agency, serving at various times as the deputy director _ the No. 2 slot _ as well as the chief operating officer, executive director and the agency’s equal employment opportunity director.
In a June 13 memo to Blanding, Chatfield ordered him to stay away from the office until the agency is certain "that you will not be a threat to the health or safety of yourself or your fellow co-workers."
Blanding, who is under treatment for diabetes and a back ailment, said Chatfield’s letter insinuates that he is suffering psychological problems and might harm fellow employees.
If these allegation are true, this is one of the most egregious employment retaliation cases I've read about in years and the fact that it is taking place at this level of government is truly disconcerting,
Thursday, June 21, 2007
Katherine Baird Silbaugh (Boston U.) has just posted on SSRN her article (forthcoming Fordham L. Rev.) Women's Place: Urban Planning, Housing Design, and Work-Family Balance. Here's the abstract:
In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. "Place" is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead on employer mandates and family law reforms. This article fills the gap by evaluating the effect of "place" on work-family balance and the role law plays in creating our challenging geography. I argue that effective work-family balance requires attention to the spatial dimensions of the work-family conflict.
I found the article fascinating, and though I understand that empirically the arguments apply more often to women than to men, as a single dad they resonated very strongly with me. For example,
Apart from the time commuting absorbs, the increasing distance between home and work exacerbates logistical difficulties for working parents. In particular, the ability to be available to attend to brief family matters during the workday is in large part a function of distance between home and work. A twenty-five minute parent-teacher conference can present an enormous challenge to a parent who is an hour from his child's school. A fifteen-minute meeting with an elderly parent's physical therapist can absorb half of a workday if it requires an additional round-trip from work during the day. An employee's flexible schedule permitting half-hour breaks is of little use when a dependent is more than a half hour away from the workplace. The growing distance between work and home which characterizes sprawl increases work-family tension.
Marty Katz (
Here are the details:
The colloquium will be hosted this year jointly by the University of Colorado Law School and the
University of Denver, Sturm College of Law. This year’s conference will take place on Friday September 28 and Saturday, September 29, 2006, with presentations in both Denver and Boulder, Colorado. We hope you will attend and, if you choose, present a work in progress or recent publication in labor and employment law.
Last year’s colloquium at Marquette
Law School was a resounding success, with 50 scholars in labor and employment attending to present and offer feedback on papers on a wide range of topics. It was a remarkable opportunity for labor and employment law scholars from around the country to present their works in progress or recent scholarship, to get feedback from their colleagues, and to have a chance to meet and interact with those who are also teaching and researching in the labor and employment law area. This year’s conference will offer the same opportunity. Although all participants are encouraged to present their scholarship, one need not present to attend.
The colloquium will begin at 8 a.m. on Friday, September 28 (with an informal get-together the night before) and will conclude shortly after noon on Saturday, September 29th. On Thursday night and Saturday afternoon, we will be arranging informal opportunities to socialize and get to know
Denver and Boulder. Friday presentations and meals will take place at the DU law school, and on Saturday, participants will meet at CU. Transportation to CU on Saturday will be provided. All meals and refreshments will be provided on Friday, as will breakfast and refreshments on Saturday.
To register for the conference, please visit our website at www.colorado.edu/law/laborandemployment/. The registration deadline is July 31, 2007. To register as a presenter, please not only register online but also email or mail a title and abstract to Melissa.firstname.lastname@example.org and follow up with your full paper (or any other materials, if not a full paper) by September 1st. If there are a large number of proposals for presentations, priority may be given to those who submit early.
We encourage you to take a look at the hotel information on our registration web site, and to book a room if you are planning on joining us. As it happens, there are other events going on in both
Denver and Boulder the weekend of September 28-29, so we recommend that you make hotel reservations relatively soon. If you check with the hotels below and they no longer have rooms available, please contact one of us and we can suggest other convenient options. HOTEL RESERVATION CODE: To take advantage of the room rates quoted for the hotels listed on the registration web site, you will need to indicate that you are a participant in the “Labor and Employment Law Conference.”
Wednesday, June 20, 2007
The D.C. Circuit has added to the growing list of cases overturning NLRB decisions that go against a union. In Sheet Metals Workers' Local 15 v. NLRB, the court held that the Board wrongly found that the union unlawfully threatened to picket a department store that was using a nonunion contractor and that the union engaged in unlawful picketing by holding a mock funeral in front of a hospital using nonunion construction workers. As described in BNA's Daily Labor Report (subscription required):
The [D.C. Circuit] joined the Ninth Circuit in holding that a union planning to picket a worksite with multiple employers does not have to provide an assurance that the union will limit its picketing to a reserved gate set aside for the employer with whom the union has a labor dispute. "The Board offers us no reason to believe it can make an unfair labor practice out of a union's failure to assure an employer the union will abide by the law," Judge Douglas H. Ginsburg wrote for the D.C. Circuit. . . .
The board's finding that the mock funeral constituted illegal picketing conflicts with U.S. Supreme Court decisions on the First Amendment rights of abortion protesters, Ginsburg said. He found that the union's activity was "a combination of street theater and handbilling," not picketing, and that the means by which the union delivered its message was not threatening or coercive.
As I've noted in the past, the current Board's shift in favor of employers have caused even generally conservative circuits to overrule Board decisions going against unions. This case is a prime example. The Board's conclusions were almost impossible to defend, even before a panel of all Republican judges (Ginsburg, Griffith, and Williams). The case is also a good reminder that, perhaps even more than the blockbuster decisions that get all of the attention, the current Board's leanings in less sensational cases have a significant impact on the labor landscape.
The New York Times has a story on outsourcing work to China, particularly with regard to the recent recall of Thomas the Train toys because of the use of lead paint by a Chinese manufacturer. As the story notes, companies are often able to maintain a wall of secrecy that shields treatment of workers, as well as quality issues with the product itself:
Over the last two decades or so, American companies have generally followed a two-pronged outsourcing strategy. First, the companies have tried to move as much of their manufacturing as possible to places where wages are just a fraction of what they are here. Second, the companies have distanced themselves from their overseas production. They usually don’t own the factories and refuse to say much about them.
“In decades of reporting on military matters, I have rarely encountered people as concerned about keeping secrets as the buyers and suppliers who meet in Shenzhen and similar cities,” [journalist James Fallows] wrote.
This secrecy brings a number of advantages. It keeps competitors from finding out tricks of the trade. It keeps consumers from discovering that their $100 brand-name shirt comes from the same assembly line as a $40 generic version. And it prevents activists from criticizing a company for the working conditions in a factory where its products are made. The companies get the cost advantages of outsourcing without the publicity disadvantages.
I'll confess that my thoughts have been much more on my son, who had several of the recalled toys, than work conditions in China. But as infuriating as it is to think that someone would knowingly expose kids to dangerous toxins, the fact that workers are being exposed to lead paint, and no doubt far worse, on a daily basis shouldn't be forgotten either.
Thanks to Rosario Vega-Lynn of the New Mexico Labor and Employment Law blog for bringing to my attention this interesting case from the Eastern District of Kentucky from a few months back about the viability of a sexual harassment cause of action under USERRA, the federal military employment protection act.
In Steenken v. Campbell County, No. 04-224 (E.D. Ky. Mar. 15, 2007) (Westlaw subscription required), the court stated:
Although USERRA does not specifically prohibit an employer from subjecting an employee to harassment or a hostile work environment due to the employee's military status...the Act specifically prohibits the denial of any benefit of employment by an employer to members of uniformed service based upon their membership and/or performance of service...Because the right to be free from a hostile work environment, broadly construed, is a benefit of employment...the court concludes that Plaintiff's hostile work environment claim is cognizable under USERRA.
I don't know much about USERRA, but the court's logic seems right to me. It will be interesting to see whether other courts pick up on this reasoning.
In the first, Harold Meyerson writes:
This week, just before it turns again to immigration, the Senate takes up the Employee Free Choice Act (EFCA), which would restore to America's workers the right to join unions. Depending on how you look at it, the Senate's timing -- moving to bolster middle- and working-class incomes before it alters our immigration policy -- is either impeccable or 30 years too late . . . .
American conservatism defends the right of corporations to ship jobs overseas; it has opposed legislation raising the minimum wage and restoring employees' right to join unions and bargain for higher wages. However valid conservatives' fear of the economic harm from immigration (and for most Americans, it's not very much), the issue itself has become conservatism's surrogate for greater anxieties about globalization and the restratification of the U.S. economy -- anxieties whose very names conservatism dare not speak.
This week, though, the Senate turns to legislation that not only speaks about the economic stagnation of all but the wealthiest Americans but that would actually begin to end it. The goal of the Employee Free Choice Act is simply to give workers the right to join unions without facing the (currently) one-in-five chance of being fired for playing an active role in a campaign to do so.
And speaking of conservatives, here's what George Will has to say today on the EFCA and the recent Davenport decision:
Democracy is rule by persuasion, but the unpersuasive often try to coerce the unpersuaded. Recent days have provided two illustrations of this tendency, both of them pertaining to labor unions, whose decades of declining membership testify to their waning power to persuade workers that unions add more value to workers' lives than they subtract . . . .
Last Thursday, the Supreme Court ruled 9 to 0 against the Washington Education Association (WEA), Washington state's teachers union, which was claiming a perverse government-conferred entitlement. Five days later, organized labor and its political allies, including she who would be president, marched in Washington, D.C. They were asking Congress to deny to workers, whom unions are trying to organize, the right to a secret ballot. Both cases also illustrate the increasingly casual resort to abridgements of the rights of free speech and association . . . .
The WEA's whiny audacity was not more offensive than the aim organized labor tried to advance with yesterday's march and rally in the nation's capital. Unions were demonstrating in support of legislation with the Orwellian title Employee Free Choice Act. It would deny employees the choice of a secret ballot when voting on unionization of their workplace. Instead, union organizers would use the "card check" system, which allows them to pick the voters they want: Once a majority of workers -- exposed one at a time to face-to-face pressure from union organizers -- sign a union card, the union is automatically certified as the bargaining agent for all the workers.
I happen to agree with Meyerson on this one: "If we're really serious about restoring economic security in America and economic vitality to the middle class, the EFCA would work a whole lot better than would a fence on the border."
Hat Tip: Ronald Turner
Judy Fudge (Univ. of Victoria - Canada) has the following interesting commentary on the Canadian Supreme Court's earth shattering opinion in B.C. Health Services (previous post here) granting constitutional status to the collective bargaining rights of workers.
Here's a taste from Judy's post on The Court Blog:
Sometimes it is good to eat crow – if it comes with the right sauce. In its June 8, 2007 decision, Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, the Supreme Court of Canada concluded that “the holdings in the Alberta Reference and PIPSC excluding collective bargaining from the scope of s. 2(d) [of the Charter] can no longer stand” (para 35). The Court overruled twenty years of Charter jurisprudence in the context of legislation enacted by the Campbell government in British Columbia, which was elected by an overwhelming majority (winning 77 of 79 seats) in 2001.
I had predicted that the constitutional challenge to Bill 29, which vitiated key elements of the non-clinical health care workers collective agreements, would not be successful. Despite the fact that in Dunmore v. Ontario (AG),  3 S.C.R 1016, which involved the exclusion of agricultural workers from Ontario’s labour relations legislation, the Supreme Court had opened the constitutional door a crack in order to provide some constitutional protection for the freedom of workers and unions to engage in collective activities, I predicted that an attempt to widen that space in the health sector context would provoke the Court to slam the constitutional door shut. I was wrong . . . .
The decision is an important symbolic and moral victory both for the British Columbia Hospital Employees’ Union, which represented the thousands of mostly women workers who lost their jobs and saw their wages drop precipitously when their collective agreements were torn up, and for the Canadian labour movement in general, which has been on the defensive for the past twenty-five years. The failure of the Supreme Court to interpret the guarantee of freedom of association in the Charter to include collective bargaining had been taken as a signal by governments across the country that they could ride roughshod over workers’ hard fought for rights . . . .
After the Court’s decision in the BC case, at a minimum, governments will have to consider workers’ rights and to consult with their unions before introducing draconian legislation. While the Court is clear that its decision protects the process of collective bargaining, and not the substantive outcomes embodied in collective agreements, the emphasis on the government’s duty to bargain in good faith fosters democratic deliberation, at the expense of an instinctive vilification of public sector workers. However, what the decision means in concrete terms is an open question. In the particular case, it is unclear what the remedy will be since all the Supreme Court did was suspend the declaration of the legislation’s invalidity for one year.
Very insightful. And all I can say to Judy is that I'm more wrong about these things than you are.
Hat Tip: Michael Fitzgibbon
Tuesday, June 19, 2007
The House last week passed a resolution that would amend the Fair Labor Standards Act to increase the penalty for child labor violations. The penalty now is $10,000 per child-employee. The new penalty would be $11,000 per child-employee, $50,000 if the child-employee suffers death or serious injury, and $100,000 if the child-employee suffers death or serious injury and the violation is willful or repeated. The resolution has the Bush Administration's support, as demonstrated by the Department of Labor's press release. I've reviewed the resolution to see if, for example, there's a waiver of civil liability or something similarly nefarious, but there's not -- it's "clean." The resolution has been referred to the Senate Committee on Health, Education, Labor, and Pensions.
The Bill is H.R. 2637: Child Labor Protection Act of 2007. Thanks to Carol Furnish for pulling the text and current status of the resolution.
Barry Kozak, Associate Director of the graduate Employee Benefits programs at The John Marshall Law School (JMLS), writes to let our readers know more about the Employee Benefits program at JMLS, which is the only law school in the nation with an LL.M. degree program in Employee Benefits.
Additionally, John Marshall also currently has a J.D. certificate in Employee
Benefits and offers a M.S. degree in Employee Benefits for non-attorneys. The JMLS Law Review also holds an annual Employee Benefits Law Symposium.
For those interested in learning more about this program, the website can be found here. You may also contact Kathryn Kennedy, the Director of the Employee Benefits program, or Barry.
Merit pay for teachers has always been a controversial topic with teachers and their unions over the years. This article from yesterday's New York Times, however, points out that merit pay is gaining acceptance. Here is some highlights from the article:
For years, the unionized teaching profession opposed few ideas more vehemently than merit pay, but those objections appear to be eroding as school districts in dozens of states experiment with plans that compensate teachers partly based on classroom performance . . .
Scores of similar but mostly smaller teacher-pay experiments are under way nationwide, and union locals are cooperating with some of them, said Allan Odden, a professor at the University of Wisconsin who studies teacher compensation. A consensus is building across the political spectrum that rewarding teachers with bonuses or raises for improving student achievement, working in lower income schools or teaching subjects that are hard to staff can energize veteran teachers and attract bright rookies to the profession . . . .
The American Federation of Teachers says it opposes plans that allow administrators alone to decide which teachers get extra money or that pay individual teachers based solely on how students perform on standardized test scores, which they consider unreliable. But it encourages efforts to raise teaching quality and has endorsed arrangements that reward teams of teachers whose students show outstanding achievement growth.
This is not to say that everyone agrees with merit proposals, as there has been recent opposition to such proposals in Texas, Florida, and New York City. The secret to success appears to be for states and municipalities to get union input for their proposals and those proposals must not be based solely on standardized score results.