March 29, 2008
AFL-CIO President Sweeney to Speak at U. Baltimore
John J. Sweeney, AFL-CIO president, will discuss the state of working families in America and the future of unions in resurging industries such as steel and energy on Tuesday, April 8, in the University of Baltimore's Langsdale Auditorium. The event is free and open to the public.
Sweeney will discuss the current state of organized labor, and consider the prospects of some industries that appearing to be gaining new momentum in a changing global economy, such as steel and energy.
Sweeney's talk will launch the School of Law's newest lecture series, "Leaders in Labor." This annual event will bring a speaker to U. Balt. each spring to discuss issues relevant to the American labor market.
Top-5 Employment SSRN Downloads
- Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men, and Responsibility (155).
- Samuel Estreicher & Kristina Yost, Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment (69).
- Jonathan Barry Forman, Making Our Work Work (62).
- Alex B. Long (photo above), Retaliatory Discharge and the Ethical Rules Governing Attorneys (62).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (54).
Top-5 Labor SSRN Downloads
- Eric Tucker (photo above), The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada (83).
- David J. Doorey, Harry and the Steelworker (or Teaching Labor Law to Non-Law Students) (81).
- Jennifer Dillard & Joel F. Dillard, Fetishizing the Electoral Process: The NLRB's Problematic Embrace of Electoral Formalism (71).
- Raja Raghunath, Stacking the Deck: Privileging "Employer Free Choice" over Industrial Democracy in the Card Check Debate (59).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (54).
Top-5 International Employment & Labor Law SSRN Downloads
- Heike Schweitzer (photo above), Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (40).
- Marie-Ange Moreau, European Solidarity and Labour Law: Some Thoughts Stemming from the Question of Restructuring in Europe (13).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Richard L. Kaplan, Top Ten Myths of Social Security (267).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (137).
- Martin Lipton, Some Thoughts for Boards of Directors in 2008 (106).
- Jesse M. Fried (photo above), Hands-Off Options (105).
- Albert Feuer, Who Is Entitled to Survivor Benefits From ERISA Plans? (88).
March 28, 2008
Submit Grades or Else at Florida State
From Inside Higher Ed today:
Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .
Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .
As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.
“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”
With that, the crowd broke into a wave of spontaneous applause.
First, I wonder if this applies at the law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I'll leave that to Paul Horwitz's of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?
Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn't even realize.
Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
I don't see where the grade penalty fits in, do you?
whether a suit seeking to enforce an arbitration obligation under state law is within the federal court’s jurisdiction, when the attempt to compel arbitration does not directly raise a federal question. The case involves an attempt by a credit card issuing bank that sought to compel arbitration of a class-action lawsuit in Maryland, growing out of an alleged failure to pay a credit card balance.
The amicus brief will support the "look through" approach, in which federal courts assert jurisdiction by "looking through" the state-law-based motion to compel to an underlying dispute involving federal law. The contrary approach asserts that the look-through approach is inconsistent with the well-pleaded complaint rule. The amicus brief will not address the issue of whether jurisdiction exists under the facts of the Vaden case.
For more on this issue, see Imre's article The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12 Harv. Neg. L. Rev. 319 (2007) and my article (co-authored with Jamie Ireland) Federal Question Jurisdiction and the Federal Arbitration Act (forthcoming Colorado L. Rev).
Anyone interested in helping to draft the brief, or in signing it, should contact Imre.
Canadian Study on Billing Post-Baby
Paul Caron reported recently at Tax Prof Blog on a Canadian study published in the February issue of the Journal of Vocational Behavior. That survey found women lawyers who had children bill fewer hours than do men lawyers who have children. Part of that disparity was because the women studied more often had partners who also worked, and so were required to take on more domestic responsibilities whereas men with children more often had partners who did not work. Thus, women who had flexible schedules used non-work time for child care or domestic work, while men who used flexible schedules used the time for leisure. Women without children bill more than anyone else--women with children and men with or without children.
The survey authors equate the number of hours billed with how productive the workers are. In response to that conclusion, Caron quotes Carolyn Elefant at Legal Blog Watch who argues that billed time is not a proxy for productivity in terms of client needs met. She argues that the longer the hours, often the less productive the lawyer.
This seems a very good point. The conclusion by the authors about productivity seems to reinforce the stereotypes of women with children as not as serious about work, an issue that Joan Williams has written extensively about, terming the resulting discrimination "maternal wall" discrimination. I would also be interested in knowing more about why women without children bill so much. Perhaps some are trying to work hard enough that they will not be penalized if they do have children and change schedules down the road. Perhaps some are older women who decided not to have children at all and to focus intently on their careers, fearing that they had to work harder to be taken seriously in this male dominated field. This single study probably won't change much about firm behavior, but I wonder if it will legitimize the decision of some firms not to allow for flexible scheduling or if it will chip away at that benefit where it does exist.
March 27, 2008
Mimimum Wage & Inflexible Labor Markets
Orgul Ozturk (South Carolina -- Moore School of Business) has just posted on SSRN her article Employment Effects of Minimum Wages in Inflexible Labor Markets. Here's the abstract:
This paper structurally models and estimates the employment effects of minimum wages in inflexible labor markets with fixed employment costs. When there are fixed costs associated with employment, minimum wage regulation not only results in a reduction in employment among low productivity workers but also shifts the distribution of hours for the available jobs in the market, resulting in scarcity of part-time jobs. Thus, for sufficiently high employment costs, a minimum wage makes it less likely for marginal workers to enter and stay in the labor market and has important employment effects. I estimate the model using survey data from Turkey. I find significant reduction in employment due to the loss of part time jobs caused by the national minimum wage policy in this highly inflexible labor market.
Zimmer to Join Loyola-Chicago
Congratulations to my good friend, Mike Zimmer, who is moving next academic year from Seton Hall to Loyola-Chicago full-time.
Mike received his A.B. and J.D. from Marquette University (a very fine school I might add), where he was Editor in Chief of the Marquette Law Review. He also holds an LL.M from Columbia University, where he was named a James Kent Fellow. Following law school, he clerked for the Honorable Thomas E. Fairchild of the United States Court of Appeals for the Seventh Circuit and then served as an associate at Foley & Lardner in Milwaukee (a great city I might add).
He began his law school teaching career at the University of South Carolina and he has taught at a number of law schools, most recently as a visiting professor of law at Northwestern University. He joined the Seton Hall University School of Law in 1978, served as Associate Dean from 1990 to 1994 and has been on the faculty until 2008. He has taught in summer programs to American law students in Italy, France and England and to Chinese law students in Beijing.
A widely recognized scholar in the areas of employment discrimination law, labor and employment law and constitutional law, Mike is co-author of the well-regarded and widely-adopted Cases and Materials on Employment Discrimination (1982; 2d ed. 1988; 3d ed. 1994; 4th ed. 1997, 5th ed. 2000; 6th ed. 2003; 7th ed. 2008), The Global Workplace (2006), Employment Discrimination: Law & Practice (2002), Employment Discrimination (1988), Cases & Materials on Employment Law (1993), Federal Statutory Law of Employment Discrimination (1980) and author of Employment Discrimination Roadmap. He has also published articles in numerous leading law journals.
Mike has taught employment discrimination law, employment law, international and comparative employment law and labor law and has also taught torts, contracts, constitutional law, administrative law and US foreign relations law.
As I told Mike in an email to him a short while ago, I am thrilled to add him to the labor and employment law professor community in the greater Chicago-Milwaukee area. I also expect him to provide me with guided tours of the Milwaukee area!
Commemorating the 40th Anniversary of the Taylor Law
On May 15 and 16, 2008, there will be a conference held in Albany, New York commemorating the 40th anniversary of the Taylor Law - the statute governing labor relations between unions and government in New York State. The conference will be held at the Desmond Hotel. It is being sponsored by the New York State Public Employment Relations Board (PERB), and co-sponsored by the New York City Office of Collective Bargaining, Cornell University’
s School of Industrial and Labor Relations (ILR), the Government Law Center at Albany Law School, and the Labor and Employment Law Section of the New York State Bar Association.
Jerome Lefkowitz, PERB’s Chairman, who participated in the original drafting of the law, will open the program with a commentary entitled: “The Taylor Law and Public Sector Collective Bargaining Through the Years; the History and Future Direction of PERB and the Law.” Several scholars will then present papers on various aspects of public sector labor relations, which will be responded to by leading representatives of both labor and management. Albany Law School Professor Vincent Bonventre, will make a presentation on the impact of New York Court of Appeals’ decisions on Taylor Law issues; MIT Professor Thomas A. Kochan, co-director of the Workplace Center and Institute for Work and Employment Research, will examine the impact of compulsory interest arbitration and other impasse procedures on the bargaining process, updating the original “Kochan Report” he co-authored over thirty years ago. Chicago labor attorney R. Theodore Clark, will examine alternative statutory systems used in other jurisdictions. New York Times reporter Steven Greenhouse will be moderating an after dinner panel discussion with public sector officials and labor representatives. The program will conclude with a presentation by Cornell ILR Dean Harry C. Katz entitled “looking Ahead: Drawing On Lessons Learned, What Does the Future Hold for Public Sector Labor Relations in New York State.”
The following is a pdf version of the schedule for the conference. Sounds like a wonderful conference with great presenters. Check it out if your in the area.
Pregnancy Discrimination Charges Surge
[p]regnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years. And that "may be only the tip of the iceberg," an EEOC spokesman says. The agency also received 20,400 pregnancy-bias inquiries at its call center last year, the center's first full year of operation; that doesn't include thousands more walk-ins asking about the same topic at fair-employment offices. An advocacy group, 9to5, National Association of Working Women, also is seeing an increase in pregnancy-bias calls on its hotline.
The groundswell reflects both changing demographics and a new activism among mothers. It also shows that even now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides.
See More Women Pursue Claims of Pregnancy Discrimination (subscription required).
March 26, 2008
Colvin to Cornell ILR
Alex Colvin, currently at the Department of Labor Studies & Employment Relations at Penn State, is leaving PSU to join the faculty at Cornell's School of Industrial and Labor Relations.
Colvin received his J.D. in 1992 from the University of Toronto and his Ph.D. in 1999 from Cornell's ILR School. He has conducted extensive research on employment dispute resolution, with a particular emphasis on procedures in nonunion workplaces and the impact of the legal environment on organizations. Among his research activities is involvement in a multi-year research project on work and employment in the telecommunications industry. He has published articles in journals such as Industrial & Labor Relations Review, Industrial Relations, British Journal of Industrial Relations, Personnel Psychology, Relations Industrielles, the Ohio State Journal on Dispute Resolution, and the Cornell Journal of Law & Public Policy. He received the 2003 Outstanding Young Scholar Award from the Industrial Relations Research Association (IRRA) and the 2000 Best Dissertation Award from the IRRA. His most recently published article is Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?.
Bales and Ireland on Federal Question Jurisdiction and the Federal Arbitration Act
Rick Bales has been quite a busy camper putting out new scholarship. Today, we feature his new piece, co-authored with student Jamie Ireland, just posted on SSRN and forthcoming in the Colorado Law Review: Federal Question Jurisdiction and the Federal Arbitration Act.
Here's the abstract:
The Federal Arbitration Act gives signatories to an arbitration agreement the right to have that agreement specifically enforced. The FAA does not, however, confer federal subject matter jurisdiction. Absent federal jurisdiction, a party seeking enforcement under the FAA must sue in state court. State courts, however, are far more likely than federal courts to use state contract law doctrines to avoid enforcing arbitration agreements. This has led parties seeking enforcement to look for other ways into federal court.
Some federal courts have found jurisdiction over enforcement actions when the underlying dispute involves a federal question, such as when an employer is seeking to enforce an arbitration agreement against an employee who has sued for employment discrimination under Title VII. These courts reason that the text and history of the FAA require courts to "look through" the dispute about enforceability to the underlying dispute. Other courts, however, have concluded that such a "look through" is inconsistent with the text and history of the FAA and with the well-pleaded complaint rule.
Our article explains that the difficulty of choosing one approach over the other is exacerbated because the same interpretive tools can be marshaled in favor of each approach, and because the arguments made using each interpretive tool are not mutually exclusive. Our article argues that courts should adopt the "look through" approach.
Another very timely piece on an issue that the Supreme Court is now scheduled to hear oral argument on in the Fall in the case of Vaden v. Discover Bank.
Third Annual Colloquium on Current Scholarship in Labor & Employment Law
Ruben Garcia (Cal Western) writes to tell us that he's set up a site for the Third Annual Colloquium on Current Scholarship in Labor & Employment Law. The Colloquium will be held October 23-25 in San Diego, and is being organized by Ruben, Orly Lobel (San Diego), and Susan Bisom-Rapp (Thomas Jefferson).
March 25, 2008
Hall Street v. Mattel and the Future of Arbitration
Although this isn't an employment law case, the Supreme Court handed down an opinion today in Hall Street v. Mattel that may have important ramifications for arbitration of disputes involving employment discrimination and other statutory rights. Hall Street Associates, L.L.C. and Mattel entered into an arbitration agreement after a dispute had arisen and been partially litigated. The district court approved the agreement, which stated, in part:
[t]he United States District Court for the District of
Oregon may enter judgment upon any award, either
by confirming the award or by vacating, modifying or
correcting the award. The Court shall vacate, modify
or correct any award: (i) where the arbitrator’s findings
of facts are not supported by substantial evidence,
or (ii) where the arbitrator’s conclusions of law
The scope of this review is more searching than the review provided by the Federal Arbitration Act (FAA), which allows an award to be vacated where procured by corruption, fraud, or undue means, where there was evident partiality or corruption in the arbitrator, where the arbitrator was guilty of misconduct in not postponing the arbitration or refusing to hear evidence, or where "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." These are pretty narrow grounds.
The Ninth Circuit had held that the provision that expanded review was unenforceable because it exceeded the review provided for by the FAA (the circuits were split), and the Supreme Court affirmed. In an opinion by Justice Souter, the Court held that the language of the FAA demonstrated that the review it provided was exclusive, which meant that the parties could not contract for greater review. Although the Court suggested that because this was arbitration approved by the District Court that such an agreement could be construed as an order for court annexed arbitration, something the court might due under Fed. Civ. P. R. 16, which allows district courts to enter orders to manage its cases, which would not necessarily be subject to the same limitation. The Court declined to construe this agreement in this manner in this case.
Stevens dissented, and Kennedy joined that dissent. Stevens looked primarily to the purpose of the FAA, which was to allow parties to privately determine how disputes should be resolved without complying strictly with most of the traditional processes of the courts. That the Court should now say that the statutory language does not allow the parties to contract for these processes turns the FAA on its head.
Rick is much more of an expert on arbitration, so he may correct me, but the result here seems surprising and seems somewhat troubling to me. Could arbitration agreements that provide for court-like procedural protections violate the FAA? Maybe the distinction would be that review is clearly provided for by the FAA, while it is nearly silent on what an arbitration agreement might contain. The only provision that governs the content provides a default rule for selection of the arbitrator, but it explicitly allows the parties to contract for a different procedure. Additionally, the FAA explicitly provides that arbitration contracts will not be enforced if doing so would would violate the law of contracts. Still, viewing the FAA as a ceiling rather than a floor for the procedures used in arbitration and requiring that ceiling to remain well below the procedures a court would use might cast some doubt on decisions that have refused to enforce agreements for not providing enough procedures to satisfy due process.
No-Match Letter Rule Revival?
Without conceding any of the issues in the pending litigation, on March 21 the Department of Homeland Security announced that it will soon transmit a 44-page supplemental proposed rulemaking to the Federal Register that addresses the issues raised by Judge Charles Breyer of the Northern District of California when he enjoined the release of the agency's "no-match" regulation in October 2007 (AFL-CIO v Chertoff, NDCal, No 3:07-cv-04472-CRB).
Without altering any of the steps an employer can take upon receipt of a "no-match" letter, the supplemental rulemaking instead: (1) clarifies DHS's policy on such letters; (2) alters the regulation's anti-discrimination language; and (3) provides an initial regulatory flexibility analysis. The supplemental rulemaking will likely appear in the Federal Register in the next few days, according to Amy Kudwa, DHS spokesperson, and will provide 30 days for public comment. Upon publication, DHS will seek to have Breyer's preliminary injunction dissolved.
I don't think this supplemental rulemaking addresses the concerns brought up in Judge Breyer's decision and so it does not seem this move by DHS changes anything.
In the absence of federal regulations, states like Mississippi have taken matters into their own hands. Governor Haley Barbour just signed into law the Mississippi Employment Protection Act, requiring all employers to verify the legal status of their new hires using the federal government's E-Verify program. Here's hoping that Governor Barbour's next employment bill is one that sets up a Mississippi anti-discrimination law, as Mississippi remains one of three states in the country without a state anti-discrimination agency or law.
As I tell my students, that's because Mississippi doesn't have discrimination anymore.
Ontiveros on Immigrants and Organized Labor
Maria Ontiveros (San Francisco) sends us word on her piece out in WorkingUSA's Journal of Labor and Society: Out of the Shadows and into the Spotlight: Immigrants and Organized Labor.
Here's the abstract:
Immigrant workers have always been forced to organize in the shadow of antilabor laws because they have been systematically excluded from their protection. This essay begins by examining the ways in which the labor laws (the National Labor Relations Act and others workplace laws) have systematically excluded immigrant workers. It then discusses a wide variety of pragmatic legal approaches (lawsuits, collective bargaining agreements and legislative enactments) used by organized labor, acting in solidarity with immigrant workers (on the national and international arenas) to protect immigrant workers. Finally, it suggests a moral framework, grounded in the 13th Amendment of the U.S. Constitution to support these approaches.
Maria brought her timely essay to my attention after seeing yesterday's post on organized labor's international law project. She noted that she viewed organized labor's ILO work "as a very positive development, as it emphasizes organized labor's role as an advocate for working people vis-a-vis the government, not just vis-a-vis employers." Similarly, Maria's essay places that type of advocacy in perspective with organized labor's current advocacy for immigrant workers.
4th Cir. on Withdrawal of Recognition
CCH Workweek has this short write up about the Fourth Circuit's decision in a labor law case two weeks ago on an employer's attempted withdrawal of recognition from a union:
An employer's unilateral withdrawal of recognition from a union was unlawful where the employer failed to show that a union had lost majority support among bargaining unit employees, concluded the Fourth Circuit. Two months prior to the expiration of a collective bargaining agreement, some employees circulated a "disaffection petition." Thirty-four employees, reflecting a majority of bargaining unit of employees, signed the petition. After receiving a copy of the petition, the employer notified the union that it believed that the union no longer represented a majority of unit employees and that it would withdraw recognition when the contract expired. Thereafter, a second petition circulated in which 34 employees asserted they did not wish to end union representation. Since there were13 cross-over signatures on the petitions, the employer lacked objective evidence that a majority of unit employees no longer supported the union.
The case is NLRB v HQM of Bayside, LLC (4thCir. March 10, 2008).
This case highlights how much more difficult it is for employers to unilaterally withdrawal recognition from unions in light of the Levitz Furniture decision which basically took away the ability of employers to withdrawal based on good faith doubt. Of course, Levitz Furniture was a reaction to the pro-employer decision of Justice Scalia in Allentown Mack.
March 24, 2008
Louis Jackson Winners Announced
The Louis Jackson National Student Writing Competition in Employment and Labor Law, co-sponsored by Jackson Lewis LLP and Chicago Kent's Institute for Law and the Workplace, is complete. Here are this year's winners:
- Mariya Starchevsky (George Mason University School of Law), ERISA Federal Preemption Problem with a State-Based Solution: The Need for Regulatory Subdivision in Employee Benefits.
Second Place (2)
- Lindsay Niehaus (NKU / Salmon P. Chase College of Law), The Fifth Amendment Disclosure Obligations of Government Employers When Interrogating Public Employees.
- Juliette Poindexter (University of San Francisco School of Law), Has the FLSA Failed to Adapt to the New Information and Service Economy? The Case of Insurance Adjusters.
Congratulations to all!!!