Workplace Prof Blog

New Book

Susan Bisom-Rapp writes to tell us of a new book: Diversity, Equality and Integration: Beyond the Law -- A Comparative Study (Roger Blanpain, ed.).  The book is a collection of papers presented at an international forum held at the Palace of the Royal Flemish Academy of Belgium in Brussels in September 2007.  Scholars from 11 countries and representatives from the European Union, the European Social Partners, BusinessEurope, and the ETUC gathered together to discuss strategies and solutions for creating and maintaining diverse and harmonious societies.  Susan contributed the U.S. chapter and co-wrote the conclusion to the proceedings.  The book is available from Vanden Broele Publishers.

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Kryvoi on Russian Employee Buyouts

Yaraslau Kryvoi (clerk, D.C. Circuit) has just posted on SSRN his article (forthcoming U.C. Davis Bus. L.J.) Employee Ownership and Corporate Governance in Russia.  Here's the abstract:

This paper brings into focus the impact of employee buyouts on corporate governance in transition ten years after the large-scale privatization took place in Russia.

The analysis shows that although privatization employee buyouts have helped to reduce unemployment and prevent major social conflicts, it otherwise had a negative effect on corporate governance and firms' productivity. An excessively large labor force and the management's tendency to preserve the old Soviet-style corporate governance hampered the long-term growth of privatized enterprises in Russia.

Unlike in many other transition countries employees in Russia were obedient to the directors who ruled the enterprises in the absence of any meaningful system of checks and balances. Employee ownership still remains a popular idea in Russia, but subsequent attempts of the Russian government to isolate enterprises from outside investors in the form of people's enterprises have proved to be a failure.

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Top-5 International Employment & Labor Law SSRN Downloads

 

1. Michael S. Lynk, Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada (192).
2. Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (56).
3. Michael J. Zimmer, Decent Work with a Living Wage (32).
4. Ademola Oladimeji Okeowo (photo above), Migrant Workers: Where Lies Their Haven under the United Nations' Migrant Workers' Convention? (24).
5. Shae McCrystal, Smothering the Right to Strike: Work Choices and Industrial Action (20).

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Top-5 Benefits/Compensation/Pension SSRN Downloads

1. Stephen F. Diamond, Legal Implications of Proposed GM/UAW VEBA (257).
2. Susan Liemer & Hollee Temple, Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time (205).
3. Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (112).
4. Guy Davidov (photo above), The (Changing?) Idea of Labour Law (87).
5. A.G. (Tassos) Malliaris & Mary Malliaris, Investment Principles for Individual Retirement Accounts (63).

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It's Friday Afternoon, . . .

. . . a few minutes before 5:00 EST -- isn't this about the time that the NLRB usually issues its bombshell decisions?

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Political Campaigns, Working Without Pay, and the FLSA

Michael Fox, at Jottings by an Employer's Lawyer, raises the issue:

The big news in today's political world (at least until Mitt Romney dropped out) was that the Hillary Clinton' campaign was having some financial struggles which resulted not only in her having to loan her campaign $5 million, but according to the article in the Chicago Tribune:

Clinton's campaign also disclosed that several senior staff members, including her campaign manager, were voluntarily working without pay.

Having lately been up to my neck in wage and hour law collective actions, I couldn't help but think beyond the political implications to, you guessed it -- the possibility of a wage and hour problem!

Fox discusses the issue in more detail.  It's worth checking out.

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Shout Out to New Blog: The Faculty Lounge

A stellar group of bloggers has started a new law professor blog called The Faculty Lounge.  The group is led by Dan Filler (Drexel), formerly of Concurring Opinions, and Al Brophy (Property Prof), Kathleen Bergin (First Amendment Prof), Laura Appleman, Kevin Noble Maillard, and Calvin Massey.

Here is a taste of the welcome post from Dan (the rest is here):

I set out to find a new space for myself in the blogosphere.  In the course of that search I came upon friends and fellow travelers with the same urge.  We imagined a blog that shamelessly embraced  both high theory and pop culture.   A blog that accepted the all-too-true reality that everyone is too damn busy to read anything that isn't engaging.  A blog with multiple voices, some newer and some older. 

It seemed to me that we wanted to recreate the experience of a faculty lounge.   Where sometimes people are talking about a great new paper on SSRN, other times they're lamenting the loss of a wonderful colleague to a competitor school, and once in a while they're just amused by a funny bumper sticker they saw on the way to work.  Where the senior colleague adds  non-dairy creamer to his java while his youthful colleague steeps her organic hemp tea.  And where you never know where the conversations will go next.  Welcome to the Lounge.  We hope you'll poke your head in sometimes to see what's up.

Welcome to the Faculty Lounge and I look forward to drinking Chai with you guys virtually.

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EBRI Issues Brief on ERISA Preemption

The Employee Benefits Research Institute (EBRI) has put out an issue brief entitled: ERISA Pre-emption: Implications for Health Reform and Coverage by Paul Fronstin and Bill Pierron, EBRI Fellow.

Here's a summary:

This Issue Brief provides an overview of the issues relating to the Employee Retirement Income Security Act of 1974 (ERISA) and state and local attempts at comprehensive health insurance reform. It reviews the statute and its history, major case law relating to the interaction of ERISA and state law, and the implications of ERISA’s pre-emption of state laws governing health insurance. It also presents the latest data on the number of health plan participants in both insured and self-insured ERISA-governed plans, and the trends related to self-insurance.

For a copy of this Issue Brief, you can find it at the following Web site.

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Unions: I Still Remember a Place Called Hope

The New York Times had an editorial yesterday on the theme that 2008 should be a hopeful year for unions. Here are some highlights:

By virtually every indicator, 2007 was a dismal year for American workers. Job growth slowed, unemployment jumped and wages lost what little ground they had gained against inflation since 2003. There is one sliver of good news: the percentage of American workers who belong to a union rose for the first time in three decades . . . .

While the rebound is tiny, and might yet prove to be a statistical mirage, it is the first recorded increase in organized labor’s ranks since the 1970s, when almost one in four workers belonged to a union.

There is little doubt that American workers need unions. Wages today are almost 10 percent lower than they were in 1973, after accounting for inflation. The share of national income devoted to workers’ wages and benefits is at its lowest since the late-1960s, while the share going to profits has surged. The decline in unionization has been a big part of the reason that workers have lost so much ground . . . .

[T]he uptick offers hope that the renewed emphasis on organizing workers by some of the nation’s largest unions — like the service employees’ union, the Teamsters and others that split off from the A.F.L.-C.I.O. to form the Change to Win coalition — might start paying dividends despite the difficult odds.

I think cautious optimism is the appropriate language. But if bills like the Employee Free Choice Act are passed in the coming years, full-blown optimism might be in order for the U.S. labor movement.

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International Labor Law: Cases and Materials on Workers' Rights in the Global Economy

Lance Compa (Cornell IR) gives us the heads us on his new international casebook with fellow members of the Labor Law Group, Jim Atleson (Buffalo), Kerry Rittich (Toronto), Calvin Sharpe (Case Western) and Marley Weiss (Maryland) entitled: International Labor Law: Cases and Materials on Workers' Rights in the Global Economy.

Lance writes:

We designed this book for labor and employment law teachers who want to expand their offerings and respond to keen student interest in globalization and its effects. We also mean it for teachers of human rights law, international law, international business law and related topics who would like to take up global labor issues . . . .

In many ways the book teaches itself, even for those whose primary experience is in domestic rather than international labor and employment law. The "Notes and Questions" interspersed throughout the text set up classroom discussions and debates. Likewise, "Internet Assignments" create a platform for student presentations in the class. These can also serve as examination and paper assignments.

We will also have a website at West that will have updated information. 

You can find that website here, as well as a copy of the table of contents here.

West Publishers will have it ready to ship February 14.

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Aaron and Stone on Rethinking Comparative Labor Law

Kathy Stone (UCLA) writes to tell us about the publication of her and the late Ben Aaron's new book: Rethinking Comparative Labor Law: Bridging the Past and the Future.

Kathy writes:

The comparative study of labor law systems has been an important field of law for many decades, but the now, as production becomes increasingly global,  issues of comparative labor law arise with a new urgency. The papers in this volume explore all facets of comparative work in the labor law field, addressing questions such as, what was the purpose of engaging in the study of comparative labor law in the past, and what is the purpose of such an inquiry today? Are national labor law systems converging in the face of the increasing globalization of production in recent decades? How are different countries responding to current challenges to their domestic labor law regimes, challenges such as the advent of new flexible models of production, an increase in immigration, and domestic participation in transnational trading blocs?

Labor law scholars from eight countries, spanning several generations met at the UCLA School of Law in the fall, 2005 to consider these and other questions. The papers in this volume present the ideas exchanged and invite yet further reflection on the goals, purposes, possibilities and pitfalls of comparative work in the labor law field.

You can receive more information about this book at www.vandeplaspublishing.com/labor. It is also available at www.amazon.com and www.barnesandnoble.com.

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DC Council Votes for Paid Sick Leave Provision

Employment Law360 is reporting:

The Washington, D.C., City Council voted 11-2 on [this past] Tuesday to approve the initial version of a bill that would require all city businesses to provide their workers with paid sick leave.

The bill, known as the “Accrued Sick and Safe Leave Act,” would make D.C. only the second city in the U.S., after San Francisco, to have such a measure in place.

Last month, the Washington Post provided some information on the bill:

Under the proposed Accrued Sick and Safe Leave Act, District employers would be required to provide paid leave to all workers to care for themselves or family members. Employees could take paid days off because of health reasons, domestic violence or sexual abuse. The number of days, which an employee could earn, would depend on the size of the employer.

More info here.

Not surprisingly, not all in DC are happy with this development, but some clearly are.

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Law Firm Pays for "Egregious Ethical Lapse" in Employment Discrimination Case

Thanks to Dennis Nolan (South Carolina) for pointing out to me this interesting article in the BNA's Daily Labor Report (subscription required) about a recent case decided the District of Minnesota involving ethical issues surrounding a law firm's handling of a race discrimination case from the plaintiff's side:

Unethical conduct by law firm that represented employees in race discrimination case bars them from recovering any attorneys' fees or expenses for services rendered prior to district court's disqualification of firm, and thus firm's motion for fees and expenses exceeding $1 million is denied, where firm's conduct, which included interactions with former high-level human resources employee, and mishandling of employer's privileged and confidential information, constituted egregious ethical lapse and damaged integrity of judicial process, and firm has not demonstrated nexus between work it performed and ultimate resolution of employees' claims.

The case is Arnold v. Cargill, Inc., 01-2086 (D. Minn. Dec. 4, 2007) (Westlaw subscription required).

Like Dennis, I found this case to be somewhat unusual. Are others aware of similar behavior by either defense or plaintiff's attorneys leading to such a result?

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Empirical Work on Employment Arbitration

Alexander Colvin (Penn St. Dep't Labor Studies & Ind. Rel.) has just posted on SSRN his new article (published this week in EREPJ) Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?  Here's the abstract:

This article reviews the existing empirical research on employment arbitration and presents new findings based on analysis of data from recent American Arbitration Association employment arbitration case filings. Whereas past research often concluded based on more limited datasets that outcomes from employment arbitration were generally similar to those from litigation, results of the present study, which is based on a larger dataset focused on cases involving employer promulgated agreements, indicate that both employee win rates and damage awards in employment arbitration are significantly lower than in litigation. By contrast, results of the present study confirm previous research findings that time to hearing is generally shorter in employment arbitration than in litigation. As with past research, the present study finds evidence of a repeat player effect, though with some uncertainty as to the causal explanation for this effect. Self-representation of employees is found to be associated with significantly worse employee win rates and damage awards, particularly where the case involves by a repeat employer-arbitrator pairing. Lastly, the article reviews research indicating some positive impacts of employment arbitration on the adoption and operation of internal organizational dispute resolution procedures.

Most articles about employment arbitration are either doctrinal (e.g., do such agreements, or certain clauses often found in such agreements, fit within the contract law doctrine of unconscionability) or normative (employment arbitration is bad for employees because it's coercive).  Colvin is one of the few folks conducting real research in this field; this is a fantastic example of his important work.

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NYU Law Program on Defending Unions

The NYU Center for Labor and Employment Law is proud to announce that tomorrow, Thursday February 7, 2008, 6:30 pm - 8:30 pm, in Vanderbilt Hall, Room 216, 40 Washington Square South, New York, New York, there will be a program on "Defending Unions."

Here's a list of speakers and their topics:

1. J. Bruce Maffeo, Partner at Meyer, Suozzi, English and Klein, P.C.

Bruce Maffeo will be discussing defending unions in criminal investigations and litigation. Bruce serves as Ethical Practices Compliance Officer for DC 37 and represents the International Brotherhood of Teamsters in connection with the Consent Decree.

2. Ronald Schectman, Managing Partner at Pryor, Cashman and Adjunct Professor of Law at NewYork University School of Law

Ronald Schectman also represents a number of unions and will be discussing recent developments in duty of fair representation litigation.3. Richard A. Brook, Partner at Meyer, Suozzi, English and Klein, P.C.

Richard Brook will discuss representing unions acting as employers, including issues arising under the LMRDA.

4. Eugene Friedman, Partner at Friedman Wolf

He will speak on defending unions in civil Rico actions.

5. Mitchell H. Rubinstein, Senior Counsel at New York State United Teachers and Adjunct Professor of Law at St. John's Law School and New York Law School

Mitchell Rubinstein will discuss union immunity from virtually all forms of common law causes of action in New York simply because they are organized as unincorporated associations. He represents unions and individuals in the private and public sectors.

This program is free and open to the public. Please RSVP to Ben Eisenman at ben.eisenman@nyu.edu or 212 998-6242.

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Invitation to AFL-CIO LCC Conference

The AFL-CIO Lawyers Coordinating Committee (LCC) writes academics to invite them to attend the AFL-CIO Union Lawyers Conference from May 18th to May 20th in Seattle at the Seattle Westin.

The theme of the conference is "Labor 2008: Building the Labor Movement, Changing the Laws."

You can find a conference registration form and schedule here.

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New Scholarship: BJELL

   

 

Berkeley Journal of Employment and Labor Law
Volume 28, Number 2, 2007

Articles

• Michael H. LeRoy (top left), Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude?  The Case of Crippled Ports, p. 331.
• Marisa Anne Pagnattaro (top center) & Ellen R. Peirce (top right), Between a Rock and a Hard Place: The Conflict Between U.S. Corporate Codes of Conduct and European Privacy and Work Laws, p. 375.
• James B. Jacobs (bottom left) & Dimitri D. Portnoi (bottom second), Administrative Criminal Law & Procedure in the Teamsters Union: What Has Been Achieved After (Nearly) Twenty Years, p. 429.
• Debbie Kaminer, The Child Care Crisis and the Work-Family Conflict: A Policy Rationale for Federal Legislation, p. 495.
• Matthew W. Finkin (bottom third), Disloyalty!  Does Jefferson Standard Stalk Still?, p. 541.

Essay

• Wilma B. Liebman (bottom right), Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, p. 569.

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UNC First Amendment Symposium

The University of North Carolina Law Review will host on February 22, 2008 a symposium on the First Amendment: Public Citizens, Public Servants, and Free Speech in the Post-Garcetti Workplace.  Among the many notables speaking are Marion Crain, Ruben Garcia, and our own Paul Secunda.  Here's the lineup:

The Future of Academic Freedom - Garcetti's Impact on Public School Educators

• Paul Horwitz - Associate Professor, University of Alabama School of Law
• George Leef - Vice President for Research, John William Pope Center for Higher Education Policy
• Sheldon Nahmod - Professor of Law and Co-Director of the Institute for Law and the Humanities, Chicago-Kent College of Law
• Moderator: Hugh Stevens, First Amendment Attorney, Everett, Gaskins, Hancock & Stevens, LLP

Keynote Address

• Robert O'Neil - Director, Thomas Jefferson Center for the Protection of Free Expression, Former President of the University of Virginia

Government Speech, Government Speakers, and the First Amendment

• Helen Norton - Associate Professor, University of Colorado Law School
• Paul Secunda - Assistant Professor of Law, University of Mississippi School of Law (for another few months, anyway)
• Ruben Garcia - Associate Professor, California Western School of Law
• Moderator: Michael Kent Curtis, Professor, Wake Forest University School of Law

The Outer Limits and Unintended Effects of Garcetti - Employment Law, Whistleblowers, and the Media

• Ferrel Guillory - Director, Program on Public Life, UNC-Chapel Hill
• Catherine Fisk, Professor, Duke University Law School
• Ramona Paetzold - Professor, Mays Business School at Texas A&M University
• Moderator: Marion Crain, Professor, UNC School of Law

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NYT on Smithfield's RICO Suit v. UFCW

Thanks to Ariana Levinson (Louisville) for alerting us to the story in today's New York Times about the RICO suit Smithfield Foods has filed against the United Food Commercial Workers International Union, the UFCW local, and several union members in their individual capacities.  Here's an excerpt:

Smithfield Foods, which raises, kills and processes more pigs than any company on earth, does not like some of the things a union has been saying about conditions at its giant slaughterhouse in Tar Heel, N.C., where 4,650 people work and 32,000 hogs die every day.

So Smithfield has filed a racketeering lawsuit against the union, on the theory that speaking out about labor, environmental and safety issues in order to pressure the company to unionize amounts to extortion like that used by organized crime.

As Ariana points out, the article is particularly interesting in light of the changes to the Board's policies on when filing a frivolous suit might (or might not as the case may be) constitute a ULP.  Here's a copy of the complaint.  For more, see A Corporate View of Mafia Tactics:  Protesting, Lobbying and Citing Upton Sinclair.

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Recently Published Scholarship: EREPJ

 







Employee Rights and Employment Policy Journal
Volume 11, Number 22, 2007

Article

• Michael Selmi (left), The Supreme Court’s 2006-2007 Term Employment Law Cases: A Quiet but Revealing Term, p. 219.

Papers from the National Academy of Arbitrators Conference
Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution

• Arnold M. Zack (second), The Due Process Protocol: Getting There and Getting Over It, p.257.
• John Kagel, Arbitration and Due Process: The Way We Were At The Time of Gilmer, p. 267.
• Richard A. Bales (third), Beyond the Protocol: Recent Trends in Employment Arbitration, p. 301.
• Jacquelin F. Drucker, The Protocol in Practice: Reflections, Assessments, Issues for Discussion, and Suggested Actions, p. 345.
• Martin H. Malin (fourth), Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation, p. 363.
• Alexander J.S. Colvin (right), Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?, p. 405.

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