July 21, 2007
Sachs on Labor Law Renewal
Benjamin Sachs (Yale) has just posted on SSRN his essay Labor Law Renewal (Harv. L. & Pol'y Rev.). Here's the abstract:
This essay challenges the conventional wisdom that American labor law has reached a dead end. I argue that the dysfunctionality of the National Labor Relations Act has led not to "ossification" - as many believe - but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels.
The essay outlines three examples to illustrate these emerging channels. The first involves the ability of several thousand janitors in Houston to secure wage increases and health benefits through a unionization campaign governed entirely by private agreement. The second concerns several hundred thousand home care and child care workers who unionized under a regime of state and local labor law. And the third is the story of an immigrant garment worker who relied on a quintessential employment law statute to lead a collective effort for overtime wages at her Brooklyn factory.
These accounts illustrate labor law's new dynamism. They also reveal that American labor law is no longer a regime defined by a single federal statute administered by a single federal agency. Rather, the field is increasingly constituted by private processes, state and local regulation, and multiple federal statutes - most notably employment laws like Title VII and the Fair Labor Standards Act - enforced by multiple actors.
The essay proposes that we treat each of these decentralizing trends as a productive form of experimentation. Self-consciously embracing this experimental potential will provide new insight into a series of practical questions central to labor law reform. These experimental developments also will help us resolve structural and conceptual quandaries at the core of the field: the appropriate function of private agreement in labor law; the role that states and localities should play in the design of labor policy; and the relationship between individual rights and collective action.
Top-5 Employment SSRN Downloads
- Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom (224).
- Adam P. Romero, Methodological Descriptions: 'Feminist' and 'Queer' Legal Theories (94).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (64).
- D. Aaron Lacy, The Most Endangered title VII Plaintiff?: African-American Males and Intersectionality Claims (62).
- Geoffrey Christopher Rapp, Beyond Protection: Invigorating Incentives for Sarbanes-Oxley Corporate and Securities Fraud Whistleblowers (40).
Top-5 Labor SSRN Downloads
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (64).
- Timothy A. Canova (photo above), Campaign Finance: Iron Triangles and the Decline of American Political Discourse (32).
- Matthew T. Bodie, Information and the Market for Union Representation (30).
- Colin Fenwick, Workers' Human Rights in Australia (23).
- Ingrid Landau, Richard Mitchell, Ann O'Connell, & Ian Ramsay, Employee Share Ownership in Australia: Theory, Evidence, Current Practice and Regulation (18).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Rene B. Adams & Daniel Ferreira, One Share, One Vote: The Empirical Evidence (458).
- Jason S. Scott, Longevity Annuity: An Annuity for Everyone? (384).
- Matthew D. Hutcheson, Retirement Plan Disclosure: Ethical Principles and Legal Obligations (169).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (64).
- George Dargo, Reclaiming Franz Kafka, Doctor of Jurisprudence (57).
Top-5 International Employment & Labor Law SSRN Downloads
- Colin Fenwick (photo above), Workers' Human Rights in Australia (23).
- Lorand Bartels, Social Issues in Regional Trade Agreements: Labour, Environment and Human Rights (23).
"Child Labor! Child Labor!": Child Labor Violations in the U.S.
Child labor law violations are not just an international problem apparently (from kutv.com):
The company that operates Little Caesar's Pizza restaurants in Utah has been forced to pay more than $110,000 over allegations of child labor violations.
Caesars Utah paid the penalty following a federal investigation which determined that several violations had been committed at a restaurant location in Sandy.
According to the U.S. Department of Labor, violations included employees between the ages of 14 and 17. In some cases, officials say the teens were operating mechanical dough mixing machines when federal law requires them to be at least 18 years of age. In other cases, labor officials say teens were put to work for longer hours than federal law allowed.
These are exactly the type of safety violations that lead to unnecessary tragedies in the workplace. Hopefully, in light of this legal action, more companies will not be cavalier about the importance of child labor laws.
Gely and Bierman on Employee Blogging and Legal Reform
Rafael Gely (Cincinnati) and Len Bierman (Texas A&M Business) have posted on SSRN a new paper in the Harvard Journal of Technology entitled: Social Isolation and American Workers: Employee Blogging and Legal Reform.
From the abstract:
This Article examines the increasing “social isolation” of American workers and the role the Internet, particularly employee “blogging,” can potentially play in ameliorating this situation. It builds on a path-breaking June 2006 empirical study in the American Sociological Review documenting said social isolation, and on Harvard political scientist Robert D. Putnam's classic theoretical work developing a similar theme. The Article argues that off-duty blogging by employees can play an important role in helping reverse this decline in social isolation, but that current legal structures impede this goal. This Article then proposes various reforms to address this situation.
Great stuff at the intersection of employment law and blogging. And I love the use of an interdisciplinary approach. Check it out!
July 20, 2007
Call for Papers: WORK MATTERS: 26th Annual International Labour Process Conference
Mary Gatta, Director of the Workforce Policy and Research Center for Women and Work at Rutgers University, has placed on the LERA-listserv a call for papers for the upcoming WORK MATTERS: 26th Annual International Labour Process Conference at University College of Dublin on March 18-20, 2008.
Here is the description and some further details:
As we progress through the 21st Century we must craft public policies that address inequalities in workforces in order for individual workers to have the opportunities to reach economic self-sufficiency, and also for countries to be economically competitive in a global marketplace. Yet many workers, particularly those in marginalized populations (based on race, gender, educational attainment, age, disability, etc; along with the intersections of these identities) are not provided with opportunities to gain the education and skills needed to succeed. Specifically there has been much research documenting the changing skill needs and educational requirements of local and global labor markets. Yet the articulation of the ways in which members of society can attain the education and skills training needed, and the role of the public sector to facilitate that process effectively is often left unclear. Central to this is that public policy needs a clear understanding of the nexus between education and employment throughout a worker's lifetime, and what barriers exist for groups of workers to attain that education. Simply put, although public policy must find ways to direct education and skills training to all workers, often the needs of marginalized populations are not fully understood or addressed by policy.
This stream seeks contributions that address innovative ways that public policy can be crafted in order to "democratize access" to education and skills training (defined broadly to include such forms of education as: basic literacy, industry specific skills, college, and advanced education) to all populations.
Those who are interested should send abstracts to both ILPC2008@ucd.ie and the stream organisers email@example.com by October 31, 2007 Be sure that it is marked Public Policy, Access and Skill Stream in the email subject line. Further information can be found here.
De Facto De-Unionization at Delphi?
Struggling auto parts maker Delphi Corp. expects to have as few as about 2,300 United Auto Workers union members at its four remaining UAW plants by 2012, the company said in a court filing.
That would be less than a tenth of the 24,000 UAW members it employed when it filed for bankruptcy protection in 2005.
Since that filing, Delphi said its UAW membership has dropped to about 17,000 due to buyouts and early retirements, and by the end of this year, it expects to have 4,703 UAW employees as it closes and sells plants.
My good friend, Dennis Nolan (South Carolina) makes the point that with this level of workers left, it is almost like Delphi has de-unionized. It is hard to believe that the UAW was happy with how this deal has worked out even in hard economic times.
Will Arbaugh Come to Haunt?
Next, I want to bring this blog's readers' attention the post that Mike did on the 2006 Supreme Court case of Arbaugh v. Y & H Corp., which found that the fifteen employee threshold requirement of Title VII was part of the employee's case and not jurisdictional. Both Mike and I thought that this was a very nice technical point, but not much of practical relevance.
As it turns out, we were wrong. Courts are increasingly finding in other employment contexts (recently under COBRA and the FMLA) that the employee threshold requirement may be waivable by the employer or, put differently, the employee may estop itself into coverage. Of course, if the requirement was jurisdictional this would not be possible.
So in any event, hold your breath for the first Title VII case with 10 employees. It is on its way.
New Books on ERISA, Benefits
National Underwriter Company has just published the 2007 editions of Frank Bitzer et al.'s ERISA Facts and Benefits Facts. Both provide extraordinarily comprehensive coverage of their respective topics. Thanks to Nicholas Ferrigno, co-author of these books, for alerting me to their publication.
Kramer: Employment Discrimination Harms Families
Employment discrimination scholarship tends to assume that the harms of employment discrimination are not borne beyond the walls of the workplace. This is a mistake. In this paper, I argue that employment discrimination harms employees' families. The centerpiece of my argument is a novel framework for conceptualizing the family harms of employment discrimination, which I call exporting. Exporting refers to the ways in which employees take their work out of the workplace and into their private lives (and vice versa). By approaching the work/family relationship from the perspective of exporting, I am able to develop an account of how employees take the effects of discrimination home with them after work. In addition, I show that existing employment discrimination doctrine—in particular the remedial provisions of Title VII—can and should capture family harms.
The "family harms" Kramer describes include "disruption harm" (when an employee's experience at work disrupts her ability to interact with her family, such as when an employee is too stressed or distracted to play with her children or interact with her spouse) and "exclusion harm" (when an employee's work experience is so damaging that it leads him to exclude his family from work, such as when an employee refuses to bring his children to work or to work-related social functions for fear of exposing the children to discrimination). These family harms are over & above the economic harms to the family caused by employment discrimination.
Gordon on Retirement Security
Jeffrey Gordon (Columbia) has just posted on SSRN his article (Lewis & Clark L. Rev.) The 'Prudent Retiree Rule': What to Do When Retirement Security is Impossible. Here's the abstract:
Policy debates about the appropriate risk levels for individual retirement plans and social retirement plans (like social security) often pay insufficient attention to the inescapable trade-off between “payment risk” (the risk of insufficient funding for anticipated benefits) and “short fall risk” (the risk of insufficient benefits for a satisfactory retirement). Thus a “prudent retiree rule” would permit a prudent level of “contingent funding” of retirement payouts. Contingent funding - basing benefit expectations on funding sources that may not materialize - increases payment risk, yet pension systems without some contingent funding will produce inferior benefits in most states of the world, increasing shortfall risk. Contingent funding can take different forms: underfunding (in an actuarial sense) of defined benefit promises, which means reliance on the firm's continued profitability; a tilt toward equity investments in a defined contribution plan, including an appropriate level of employer own stock, and reliance on pay-as-you-go (PAYGO) funding of social security benefits in which each generation funds its predecessor's benefits. The case for the prudent retiree rule is strengthened through a better appreciation of the underlying risks to retirement security: demographic risk (too many retirees relative to workers); economic risk (insufficient economic growth) and distributional risk (non-effort-based individual economic outcomes). Policies that address these risks can significantly reduce the risks associated with contingent funding.
July 19, 2007
Worker Freedom Acts
State Worker Freedom bills seek to prohibit workplace mandatory meeting at which employees must listen to their employer's views of labor-related, political, and religious issues (the AFL-CIO blog has more on these types of meetings discussing political and religious issues).
Under federal labor law, such captive audience speeches are permitted by employers as long as they are not coercive and unions generally do not have the same access to employees at work to make counter captive audience speeches. Research has shown that these speeches are highly effective in defeating union organizational campaigns. It is not surprising therefore that most employers use them and use them often.
Yesterday, the Michigan House of Representative passed a Worker Freedom bill (copy of bill here). The legislation moves on to the Michigan Senate, which is unlikely to pass it given the slim Republican majority in that chamber.
Nevertheless, this legislation brings up important constitutional and labor preemption issues. Constitutional issues include whether these laws are a proper time, place, and manner restriction, whether employers have less speech rights when talking to a captive audience, and whether such laws are content discriminatory. The labor preemption issues mostly surround so-called Machinist preemption, which preempts state laws which although not directly interfering with provisions in the National Labor Relations Act, do indirectly interfere with an area of law that was intended by Congress to be left to the free play of economic forces.
In my paper, Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, I argue that such state Worker Freedom laws should not be preempted because states retain the right to regulate property rights of employers and contractual relations between employers and employees even in light of the NLRA.
Of course, until one of these Worker Freedom Acts is actually passed and legally challenged, the viability of these laws remains an open question.
Another Fair Share Law Bites ERISA Preemption Dust
It is not surprising in light of the demise of the Walmart Bill (aka the Maryland Fair Share Health Care Bill) that other efforts by municipalities to make employers pay a higher share of their employees' health care costs would probably also suffer the same ERISA preemption fate.
And that's exactly how things turned out in New York (from Roy Harmon at Health Plan Law blog):
The United States District Court for the Eastern District of New York handed down another victory for the Retail Industry Leaders Association. In this decision, filed July 14, 2007, the district court ruled that ERISA preempted the Suffolk County, New York Fair Share Act. The reasoning of the opinion essentially follows that in Retail Industry Leaders Association v. Fielder, — F.3d —-, 2007 WL 102157, C.A.4 (Md.) (January 17, 2007).
The case is RILA v. Suffolk County, 06-531 (E.D.N.Y. July 14, 2007).
I am now more interested to see if the Massachusetts universal health care plan suffers the same fate. The best thing going for that law is that apparently RILA doesn't believe it causes the same harm to its members as the Maryland and Suffolk County law and has not yet challenged it on ERISA preemtion grounds.
A Same Sex Harassment Case With a Twist
The Nasty, Brutish & Short blog has word of an interesting same sex harassment case involving one man who believes another man, who was gay, was staring at him at the urinals.
The stared-at man responded by sending an anonymous email to the other man telling him to bug off. The other man complained about being harassed and the first man was terminated. This case was about the first man's claim about being sexually harassed by the other man and retaliated against by the company. The 7th Circuit's decision rightly holds that his claim must fail since he did not formally report the urinal incident (an anonymous email did not do the trick).
But that is not the twist. This is the twist:
[O]n Friday, January 23, 2004, Bernier noticed Davis taking “an overt, purposeful and glaring look” at Bernier’s penis while they were both standing at the urinals in the men’s bathroom on their floor. Bernier knew that Davis was gay—he had learned this in 2003, some time after Davis brought a male date to the company’s 2002 Christmas party—but he was not aware until this litigation commenced that Davis had a “lazy” left eye that sometimes made it appear that he was “looking off at something” when conversing.
The case is Bernier v. Morningstar, Inc., 06-1617 (7th Cir. July 17, 2007).
The common sense advice from Nasty, Brutish and Short:
And of course, always follow established urinal protocol by taking an end one first, and never going to one next to one which is being used by someone else. A little common sense never hurts in these situations, especially if it keeps you from having to figure out which of your co-workers have medically diagnosed lazy eyes.
Moore on Reforming Social Security
Kathryn Moore (Kentucky) has just posted on SSRN her article (forthcoming Lewis & Clark L. Rev.) Social Security Reform: Fundamental Restructuring or Incremental Change? Here's the abstract:
In light of Social Security's long-term deficit, reform of the system appears inevitable. Commentators and policymakers have offered a wide range of possible reforms. This Article describes and analyzes five possible types of reform: (1) individual accounts, (2) progressive price indexing, (3) general revenue and/or estate tax revenue financing [such as earmarking estate taxes to Social Security], (4) increasing the maximum taxable wage base, and (5) increasing the normal retirement [age]. The Article opposes the first two proposed changes, individual accounts and progressive price indexing, because they would fundamentally restructure the current system. The Article recommends that Social Security's financing difficulties be addressed by a combination of estate tax revenue financing, a higher taxable wage base, and a higher normal retirement age. A combination of these three reforms would retain the current structure of the system and distribute the costs of reform so that no single class of participants or beneficiaries would bear the entire brunt of reform.
The article does a great job of presenting the current problem and describing/evaluating the options. It's a must-read for all of us who expect, some day, to retire.
July 18, 2007
7th Cir.: Illustrating The Madness Which Is Garcetti
Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.
Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.
The 7th Circuit in Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007) reversed a jury verdict in favor of the police officer and found that this type of speech to the ADA was pursuant to the police officer's official duties and therefore, not protected by the First Amendment. But here's the kicker, the same speech the police officer made in response to a subpoena in a civil suit was not pursuant to his official duties. Therefore, the 7th Circuit remanded the case for a new trial so that a jury could be properly instructed about the protected and unprotected aspects of the same speech! Kafka here we come.
The dissent makes the obvious point that the police officer was not required to report the chief's conduct to the ADA so none of his speech should be considered as pursuant to official duties. The bigger point, however, is that the Supreme Court has completely eviscerated public employee free speech protection by not recognizing that even some speech which is part of a person's job duties may be spoken in the employee's capacity as a citizen to warn the public on matters of community concern, like when your boss is committing a serious crime!
For a wonderful take on the absurd results occasioned by Garcetti's formalism, check out this paper just posted on SSRN, and published in the William & Mary Bill of Rights Journal, by Charles "Rocky" Rhodes (South Texas) entitled: Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism.
Hat Tip: Ross Runkel
Some Insight on Corporate Investment in One's Employees
Thanks to Lisa Fairfax of the Conglomerate Blog for bringing to my attention this delightful and refreshing personal story about her conversation with a company owner on an airplane:
I have been traveling a bit lately and, as is apparently inevitable, my most recent flight was delayed. However, the delay gave me the opportunity to speak with a fellow passenger who happened to own a mid-sized business . . . .
[H]e explained that he made it a point to have a very flexible work schedule for his employees, and if people needed time off or to come in late to "watch their kids or whatever"--his answer was always that they should take the time, their job would be there when they returned. He said the answer was the same if the time off was ten minutes or ten months. When I asked him if he could really run a business with people taking ten months off at a time, he responded that the problem with most people in human resources was that they "forget that resources are things you build up, not something you constantly turn over."
So, now the question is how do we bottle this wisdom and sell it to all employers?
DOL Fails to Force Unions to Report Trusts
Employment Law360 reported yesterday that the AFL-CIO has been successful in getting a DOL financial disclosure regulation blocked by a federal district judge:
The AFL-CIO has succeeded once again in blocking the U.S. Department of Labor's attempt to add annual financial reporting requirements, with a district court judge agreeing with its claims that the agency violated rules on introducing new measures.
The ruling by Judge John Bates of the U.S. District Court for Washington, D.C. marked the AFL-CIO's second triumph in keeping the DOL from forcing unions to report on trusts in which it is financially involved.
I am not a betting man, but I would expect the Bush DOL to fix whatever it did wrong this time and try to set up the financial reporting requirements again.