Saturday, April 12, 2008

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation/Pension SSRN Downloads

Zatz on Community Service

Zatz Noah Zatz (UCLA & Chicago) has an op-ed piece out in today's Washington Post.  In the op-ed, Zatz decries the Bush Administration's new regulations on the Temporary Assistance for Needy Families program's work requirements:

One of the latest victims of the Bush administration's continuing assault on ordinary language is the term "community service." You might have thought that community service was about serving others, but apparently what it's really about is serving oneself.

The work requirements of the program were sold to the public as a "social contract" when President Bill Clinton and a Republican Congress created TANF. . . . But that high-minded talk about "reciprocity" has gone out the window. According to the new regulations, community service is just another job-training program. Traditional forms of community service -- including many of those that are most beneficial to people in need -- don't count anymore, unless they are "designed to improve the employability" of those performing the services. But enhancing our own job skills is not the primary purpose of ladling soup for the hungry, beautifying our public lands, consoling the sick, bringing joy to the elderly and mentoring the young. Serving others is.

The administration's interpretation not only mocks the spirit of public service but also mangles the law. The statute has other provisions for training and work experience. The regulations render the separate inclusion of "community service" superfluous. . . .  At bottom, the administration repudiates the ethic of community service. Its view of the world is simple: You and your family are on your own and should focus on yourselves. So much for mutual responsibility.

Check out the full piece.


April 12, 2008 in Commentary | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2008

Another Levitz Case

Nlrb The D.C. Circuit, having already enforced the NLRB's use of the Levitz actual loss of majority support rule for withdrawing recognition (Highlands Hospital), has fleshed out that doctrine in a new case, Parkwood Development Center v. NLRB.  Of particular interest is the court's approach to when majority support should be measured:

In this case of contradictory petitions and counterpetitions, majority support among Parkwood’s employees depends on when one measures it. From December 2, 2002 until March 6, 2003, the employees’ first petition made clear their lack of support for the Union. But after March 7, 2003, the date the Union presented the counter-petition, the objective evidence showed just the opposite. The Board measured employee support at the expiration of the CBA, on March 8, 2003, because that was the date on which Parkwood’s announced withdrawal of recognition was to take effect.

Prior to Levitz, an employer could withdraw recognition from a union on the basis of good-faith doubt as to the union’s continued support among a majority of employees in the bargaining unit. . . .  Noting that the Board cannot ignore its own precedent, Parkwood argues that the Board was bound by pre-Levitz precedent to measure actual loss of majority support in the same way it once measured good-faith doubt, namely, on the day evidence of actual loss first came to light. This argument fails to account for Levitz, which . . . changed what the Board measures in scrutinizing a withdrawal of recognition, shifting from good-faith doubt to actual loss of majority support. Implicit in this decision is a corresponding change in how the Board will take its measurements. . . .

That the Board was not bound by its precedent to choose the earlier measuring point is apparent from our recent decision in Highlands Hospital. In Highlands, we approved the Board’s decision to consider post-petition employee conduct in determining whether there was an actual loss of majority support. Id. at 31–32. We could not have so held if the Board’s precedent required it to measure actual loss in the same way it had once measured good-faith doubt.

Basically, the court sensibly held that the timing for whether the employer had a good faith reasonable doubt about the union's majority support is different than the question whether the union in fact lacked such support.   It's interesting that the Bush Board never reconsidered Levitz, but this case demonstrates that it will continue to have a life of its own unless a future Board pulls back.


April 11, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

The Relationship Between Litigation and Tenure

Sch_building Walter Olson over at Overlawyered, commenting on a post written by Robert Weissberg, puts forth this provocative commentary:

As universities grow apprehensive of lawsuits filed by junior faculty hired for tenure-track positions but then passed over for tenure, they are accelerating the trend toward classifying more junior positions as non-tenure-track -- hastening, perhaps, the eventual demise of the tenure system entirely. (Robert Weissberg, Minding the Campus, Apr. 10).

In turn, Weissberg writes:

Some predictions about tenure. First, as assistant professors become more skilled at defending their jobs, universities will increasingly abandon tenure track positions. You don't hire what you can't fire. This is already happening with a vengeance. Half of all new higher education positions are now non-tenure track: adjuncts, visitors, clinical professors, lecturers and so on. Second, putting hard-to-find women and minorities on the tenure track means imposing staff reductions elsewhere, and since diversity hires "take care of their own," the white male - of any ideological stripe - may join the Polar Bear on the soon-to-be extinct list (even in budgetary crises, funds to hire members of "under-represented groups" always exist). Third, as universities push harder to diversify the tenured faculty ("retention" in administration-speak), promotion standards will inevitably decline, and white males unfairly passed over may justifiably, if reluctantly, join the litigation culture. These multiplying, expensive, sometimes embarrassing court battles, in turn, may further weaken tenure as a system given the effortless options to hire and then easily fire plentiful non-tenure track employees. That universities themselves control the size of the academic proletariat by granting degrees in the absence of available jobs can only push this process even further. In short, the university tenure system may slowly disappear though for reasons nobody would have predicted.



April 11, 2008 in Commentary | Permalink | Comments (7) | TrackBack (2)

Brief Filed in Crawford Retaliation Supreme Court Case

Schnapper Eric Schnapper (Washington) sends along the brief he helped to write on behalf of petitioner in the forthcoming Supreme Court case of Crawford v. Metropolitan Government of Nashville.

The case presents the question of which whether the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer’s internal investigation of sexual harassment.

The petitioner argues the the protections of the participation clause are not limited to investigations and hearings by or proceedings before the EEOC and that participation in an employer's internal investigation or proceeding regarding gender-based discrimination is protected by the participation clause. In the alternative, petitioner also claims her conduct is protected by the opposition clause of the retaliation provisions of Title VII.


April 11, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Just Another Reason to be Proud of Our Government


From the Commitee on Homeland Security:

Today, the Majority Staff of the Committee on Homeland Security, Chaired by Rep. Bennie G. Thompson (D-MS), released a report entitled “The ICE Halloween Party: Trick, Treat, or Cover-up?”

The report explores the 2007 ICE Halloween party where an employee who wore a costume composed of a prison uniform, dreadlocks and skin-darkening make-up was awarded a prize for “most original costume” by Assistant Secretary Myers [pictured left] land other senior ICE officials. The report finds that Myers was not forthcoming about the existence of photographs of the party, ordered the destruction of the photographs, and ordered the sanctioning and relocation of an employee to conceal the details of the party.

The report is here. Scroll to page 21 to see the picture of the incident.

This is just pathetic. Par for the course for this Administration, however.


April 11, 2008 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Wal-Mart Video Archive

FilmThe Wall Street Journal recently reported more bad news for Wal-Mart, here. From the story, Wal-Mart used a small production company to tape meetings, skits for meetings, and other things. The production company created 15,000 tapes of material. When Wal-Mart stopped using the company, it almost went out of business, but is trying to stay afloat in part by researching the videos and providing copies of clips for a fee to anyone who wants them. The film company maintains that Wal-Mart did not sign any sort of agreement that gave it ownership or the copyright to the material, leaving those rights with the film company. A Wal-Mart spokeswoman stated, "Needless to say, we did not pay Flagler Productions to tape internal meetings with this aftermarket in mind."

Not too surprisingly, one of the people particularly interested in the content of the videos is Brad Seligman who represents the plaintiffs in Dukes v. Wal-Mart. Overall, this material could be a treasure trove for plaintiffs lawyers and regulators.


April 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Delta-NW Merger May Be On Again; Labor Again the Key Issue

Delta Nw_3 Today's Cincinnati Enquirer reports that Delta Airlines and its pilots have tentatively agreed to a new collective bargaining agreement that is intended to "clear the way for a merger with Northwest Airlines."  As Paul reported back in February, the original merger talks were scuttled when pilots at the two companies were unable to agree on a method for blending their seniority lists.  The new cba apparently addresses the 7000 Delta pilots' concerns; the 500 Northwest pilots would join the cba after the merger.  I assume the Northwest pilots won't be overly thrilled with this arrangement.  For more, see Delta Merger Revived


April 11, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2008

Equal Pay

NwlcThe National Women's Law Center reports:

Monday, April 21, kicks off the start of Equal Pay Week — the point in 2008 when the average woman's wages finally catch up with what the average man earned in 2007.

MM (surely number 1501?)

April 10, 2008 | Permalink | Comments (0) | TrackBack (0)

LeRoy: Empirical Work on Judicial Review of Employment Arbitration Awards

Leroym Michael LeRoy (Illinois Law & ILR) has just posted on SSRN his article Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations: An Empirical Analysis.  Here's the abstract:

State courts are creating conditions for moral hazard in the arbitration of employment disputes. The problem begins when employers compel individuals to arbitrate their legal claims, denying them access to juries and other benefits of a trial. This empirical study identifies a disturbing trend. State courts vacated many arbitration wins for employees, but not for employers. My database has 443 federal and state court rulings from 1975-2007. Remarkably, state appellate courts confirmed only 56.4% of employee wins in arbitration. But when the same courts ruled on employer victories, they confirmed 86.7% of awards. The difference in rates was statistically significant. Similarly, federal appeals courts upheld 85.7% of employer wins. Lower courts behaved like appellate courts. These state courts confirmed only 77.6% of employee wins, while federal district judges enforced 92.7% of these awards.

The lopsided results suggest a moral hazard. When courts vacate many awards that rule for employees, the individual must either return to a lengthy and costly "do over" arbitration - or worse, be stuck with a useless award, and no other recourse because Gilmer v. Interstate/Johnson Lane Corp. bars employees from suing.

Throughout this Article, the reader will sense snowballing futility for employees. The problem is that the number of award reviewing standards is growing, due to new state laws and creeping expansion of common law standards. This causes judges to deviate from the FAA's extremely deferential principles. As a result, court review is becoming an insurance program that protects employers from costly awards. This poses a moral hazard, as judges reduce incentives for employers to be responsible for their actions. Because Gilmer permanently bars employees from suing, employers are double-insulated from being held to account for their unlawful conduct.

This trend undermines the purpose of the Federal Arbitration Act (FAA). The law meant to end court interference with awards. Gilmer reinforced this view by stating a theory of forum substitution - the idea that by "agreeing to arbitrate a statutory claim, a party . . . submits to their resolution in an arbitral, rather than a judicial, forum." After Gilmer, employers adopted mandatory arbitration to control litigation costs and liability. But the data raise new doubts about forum substitution. Courts interfere with arbitration more than the FAA or Gilmer envisioned.

I propose two solutions. Judicial review of awards in all courts should be limited to the four explicit FAA standards. This would free arbitration from court interference, just as Congress intended. Indeed, the gist of my legislative proposal was supported in the current term of the Supreme Court, when Preston v. Ferrar said: "The Act (FAA), which rests on Congress' authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration." [The Court endorsed this proposal even more forcefully in Hall Street v. Mattel, which Workplace Prof Blog reported on here. -- rb]  Second, arbitration losers who incur liability should be required to post judgment bonds if they challenge an award. This idea borrows from civil procedure codes, and is therefore consistent with the goal of forum substitution. The current practice erodes award finality by allowing employers to make cost free appeals. Arbitration offers attractive benefits: reduced cost, simplicity, and easy accessibility to disputants. But these benefits will not be achieved until the growing vacatur problem - and its attendant quality of relieving employers of liability for unlawful behavior - is addressed.

The fact that employees fare so badly in appeals of employment arbitration awards is news to me -- and a significant contribution to the limited empirical literature on employment arbitration.  But I wonder whether restricting judicial revew and requiring a bond will solve the problem.


April 10, 2008 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (1)

Lest We Forget the Butt Painter . . .

Abstractpainting OK, enough of this rankings nonsense, on to the important news (HT: Jon Hyman at Ohio's Employer Law Blog and Jack Sargent):

In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.


April 10, 2008 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 9, 2008

SSRN Top 25 Labor and Employment Law Faculty Download Rankings

Ssrn_logo_71When we last did a list like this two years ago, we received a number of displeased  comments along the line that we shouldn't be even doing a ranking of this nature (see previous post here). But Rick, Jeff, and I believe that for better or worse, SSRN downloads are one metric of publishing success and something that law professors, not only in our field, but in other fields as well (see tax law professor rankings here), pay attention to.  Also, many people in our area of the law rely on the SSRN subject-matter emails for new scholarship. So anything that encourages people to upload labor and employment law work, we believe, is a good thing.

Like last time, I have attempted to rank law faculty in terms of both new SSRN downloads within the past 12 months and in terms of all-time SSRN downloads. SSRN has updated its new monthly rankings of SSRN Top 1,500 Law Authors (searchable database here) as of today, April 9, 2008. 

Also like last time, I did my best as I went over the list of law professors to try to identify those faculty members whose primary teaching and research interests in the last couple of years have focused on the labor and employment law context (employment discrimination, employment law, employee benefits, and labor law). Thus, I have only included those full-time law professors who not only write in labor and employment law, but who currently teach labor and employment law courses.  Of course, and perhaps this will spur people to place more of their work on SSRN for public consumption, this ranking only includes labor and employment professors with at least one labor-related paper on SSRN.

Some thoughts about the rankings below:

  • I think it noticeable that professors at lower ranked schools tend to use SSRN more than their elite colleagues in order to get noticed in the academy. Some distinguished professors (e.g., Deborah Malamud and Robert Gorman) have no SSRN presence at all and others have little presence (e.g., Sam Estreicher, Marion Crain, and Joel Friedman).
  • It is interesting to compare these rankings to Westlaw labor and employment law citation rankings (here).  Only three professors (Stone, Schwab, and Fisk) are on both lists.
  • There is also a significant relationship between the top download authors (13 out of 27) and those who have lateraled or visited in the last few years (Secunda, Jolls, Thomas, Stone, Gely, Zelinsky, Yuracko, Bagenstos, Bodie, Hutchison, Dannin, Long, and Fisk).
  • There were 47 labor and employment law professors in the top 1500. Those who made the top 1500, but not the Top 25 below include:
    • Michael Lynx (Western Ontario (Canada)), Kate Silbaugh (BU), Ann Lofaso (West Virginia), Vicki Schultz (Yale), Jon Forman (Oklahoma), Jim Brudney (Ohio State), Keith Cunningham-Parmeter (Willamette), Lawrence Rosenthal (Chapman), Jeff Hirsch (Tennessee), Melissa Hart (Colorado), Angela Onwuachi-Willig (Iowa), Julie Suk (Cardozo), Scott Moss (Colorado), Judy Fudge (Victoria (Canada)), Joanna Grossman (Hofstra), Aaron Lacy (Barry), Tristin Green (Seton Hall), Matthew Finkin (Illinois), Elizabeth Emens (Columbia), and Michael Stein (William & Mary)
  • There are now two non-US law professors (Doorey and Davidov) in the Top 25 (and 4 in the top 45), suggesting that international scholars are using SSRN to get their work read by more academics in their fields in the United States.

In any event, I would appreciate if readers would use the comment section to please tell us about any individuals I might have missed and to also continue to debate about the utility of a list like this and what other observations can be made.

Update (4/10): It is now the Top 27 because of omissions that have come to my attention.



                     Top 25 Labor & Employment Faculty SSRN Rankings

Total New Downloads 

  All-Time Downloads 

Labor Faculty (School)

L&E Rank

Overall Rank

L&E Rank

Overall Rank

Richard Bales (N. Ky/Chase)





Paul Secunda (Mississippi)





Christine Jolls (Harvard)





Suja Thomas (Cincinnati) 4 267 7 407

Katherine V.W. Stone (UCLA)





Michael LeRoy (llinois) 6 303 22 1029

Ken Dau-Schmidt (Indiana)





Orly Lobel (San Diego)





Edward Zelinsky (Cardozo) 9 526 11 590

Kim Yuracko (Northwestern)





Sharona Hoffman (Case Western)





Rafael Gely (Cincinnati)





Charles Craver (GW) 13 579 ---- 1509

Michael Selmi (GW)





Nancy Levit (UMKC) 15 626 ------ 1121

Stewart Schwab (Cornell)





Samuel Bagenstos (Wash U.)





Matthew Bodie (St. Louis)





Harry Hutchison (Geo. Mason)





Cristina Rodriguez (NYU) 19 801 ----- 1465
David Doorey (York (Canada)) 21 840 ---- 1539

Ellen Dannin (Penn State)





Jennifer Gordon (Fordham)





Guy Davidov (Hebrew Univ. Israel)) 24 906 ------ 1163

Alex Long (Tennessee)





Richard Moberly (Nebraska) 26 966 ----- 1705

Catherine Fisk (Duke)





April 9, 2008 in Scholarship | Permalink | Comments (7) | TrackBack (0)


Virginia Law Review’s In Brief has posted three responses (Jeff Hirsch, Harry Hutchison, and Catherine Fisk) to Matt Bodie’s recently published article Information and the Market for Union Representation.  There's also a reply from Matt.


April 9, 2008 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

CRR Brief: Why Do More Older Men Work in Some States?

Crrlogo In honor of Rick's birthday (smile), the Center for Retirement Research at Boston College has released a new Issue in Brief: "Why Do More Older Men Work in Some States?" by Alicia H. Munnell, Mauricio Soto, and Natalia A. Zhivan.

The brief’s key findings are:

·    The percentage of men age 55-64 who work varies from 40 percent in West Virginia to nearly 90 percent in South Dakota.

·    More older men work in states with stronger labor markets, more self-employed workers, and higher levels of education.

·    Older men also work when retirement benefits are low relative to pre-retirement income.

·    Thus, declining replacement rates from Social Security and 401(k) plans could trigger increased work by   older men.

The entire brief is available for review here.


April 9, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Lobel on Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations

Lobelo_3 Orly Lobel (San Diego) has posted on SSRN her forthcoming piece in the California Law Review: Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations.

Here's the abstract:

Ranging from strict disclosure prohibitions to generous monetary incentives for informants, the legal approaches to conflicts between organizational loyalty and legal compliance reveal a deep ambivalence about the role of individual dissent in group settings. In fact, recent constitutional and private law cases have had the undesirable effect of denying protections to those most likely to identify and report corporate misconduct.

This article argues that, particularly in light of broad shifts from command-and-control regulation to new governance processes, the corollary to skepticism about government's ability to remedy organizational illegalities is the ability of individuals to internally confront violations. The article develops a way to reconcile the pervasive tensions of conflicting obligations by connecting organizational citizenship to both institutional learning and broader civic obligation and by developing a systemic linkage between the substance of dissent and its form. It calls for the adoption of sequenced protections creating a reporting pyramid that prioritizes internal problem-solving when feasible. The analysis of mediating the conflicting demands of citizenship and organizational citizenship extends more broadly to legal debates on family immunities in criminal procedure, civic disobedience and military hierarchies, and professional roles in legal ethics, bringing analytical clarity to dilemmas about following rules while maintaining independent judgment.

It is hard to keep track of Orly's prodigious works, but I am pretty sure I heard her present this thought-provoking piece as part of the Seton Hall Employment and Labor Law Scholars' Forum last year.  As she points out, it is a continuation of her larger project to build the new governance movement in the labor and employment law field.


April 9, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Gregory on Labor Organizing by Executive Order?!

Gregory_2 David Gregory (St. John's) has posted on SSRN his forthcoming piece: Labor Organizing by Executive Order?! - Governor Spitzer and the Unionization of Home-Based Child Day Providers.

Here's the abstract:

In May, 2007, New York became the most recent state to extend unionization rights to home-based, child day care providers. New York did so by governor's executive order, rather than by the more cumbersome legislative process. Labor organizing by executive order is a remarkable and powerful instrument for dramatically enhancing unionization prerogatives to persons who are, in fact, classical independent contractors.

How true and all the more interesting now that Gov. Spitzer's term has proven shorter than expected.

But does this mean that a governor not inclined toward the labor movement could take union rights away as a matter of executive order? That would be my chief worry with this process.


April 9, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Another Glenn ERISA Amicus Brief: Arguing NonDelegation

Legalbrief To follow up on Don Bogan's amicus brief in MetLife v. Glenn that we reported on yesterday, today we are featuring another amicus brief in Glenn that Jonathan Feigenbaum filed with Scott Riemer for the MS Society of New York City in the case.

In an interesting and novel argument, they maintain that deferring to a litigant in a Section 502(a)(1)(B) denial of benefits case is an impermissible delegation of Article III duties that denies Mrs. Glenn her constitutional right to Article III adjudication.  They write that they know of no other area of the law where the Federal Judiciary defers to the decision of a private litigant when deciding private rights.

This is a short pointed brief to alert the Supreme Court to this important constitutional issue that has been overlooked.

Jonathan and Scott would appreciate you comments on the brief and are interested in hearing feedback from others.


April 9, 2008 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Indiana Supreme Court Reinstates Verdict in Workplace Bullying Case

Bully The case is Raess v. Doescher, No. 49S02-0710-cv-424 (April 8, 2008).  Michael Fox has the details over at Jottings by an Employer's Lawyer


April 9, 2008 in Employment Common Law | Permalink | Comments (0) | TrackBack (2)


Cake_2 Today, I became a member of a new protected class.  Guess which one?


April 9, 2008 in About This Blog | Permalink | Comments (2) | TrackBack (0)