Saturday, January 24, 2009

Ishimaru & Griffin Appointed to Top EEOC Posts

Ishimaru Griffin The EEOC yesterday announced that President Barack Obama has appointed Stuart J. Ishimaru as Acting Chairman ["Chairman" is the official title -- you'd think the EEOC of all agencies would use the gender-neutral "Chair"] of the EEOC and Christine M. Griffin as Acting Vice Chairman [the press release says "Acting Vice Chair", but her EEOC web page says "Acting Vice Chairman"].

Ishimaru, whose term expires on July 1, 2012, has been a Commissioner since November 2003. He was confirmed by the U.S. Senate for a second term in December 2007.  During his tenure, Ishimaru has primarily focused on large, systemic cases and in reinvigorating the agency’s work on race discrimination issues.  He also played an instrumental role in the EEOC's adoption of guidance on gender discrimination against workers with caregiving responsibilities.

Prior to joining the EEOC, Ishimaru served as Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice between 1999 and 2001. Before that, he served as Counsel to the Assistant Attorney General in the Civil Rights Division for five years. In 1993, Ishimaru was appointed by President Clinton to be the Acting Staff Director of the U.S. Commission on Civil Rights, and from 1984-1993 served on the professional staffs of the House Judiciary Subcommittee on Civil and Constitutional Rights and two House Armed Services Subcommittees of the U.S. Congress. A native of San Jose, Calif., Ishimaru received his A.B. in Political Science and in Economics from the University of California, Berkeley, and his law degree from the George Washington University.

Christine M. Griffin was sworn in as an EEOC Commissioner on Jan. 3, 2006, to serve the remainder of a five-year term expiring July 1, 2009. Since joining the Commission, Ms. Griffin has been vocal in her support of increasing diversity in the federal workforce, as well as promoting greater efficiency and fairness in the federal EEO process. She has also been a strong advocate for women’s rights and the rights of individuals with disabilities.

Prior to joining the EEOC, Griffin served as the Executive Director of the Disability Law Center in Boston from 1996 to 2005. Before that she served from 1995 to 1996 as an Attorney Advisor to the former Vice Chair of the EEOC, advising him on legal matters and policy issues. Griffin is also a Vietnam-Era Veteran, serving on active duty in the U.S. Army from 1974-1977. A native of Boston, Griffin is a graduate of the Massachusetts Maritime Academy and the Boston College Law School.

Ishimaru succeeds Naomi C. Earp, whose term as a Commissioner expires on July 1, 2010. In addition to Acting Chairman Ishimaru and Acting Vice Chair Griffin, the other sitting Commissioners are Earp and Constance S. Barker. The fifth Commissioner seat is vacant.


January 24, 2009 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

SSRN Top-10 List of Recent Employment & Labor Downloads

Friday, January 23, 2009

Coaches of Color and Title VII

WhistleMichael J. Nichols has posted on SSRN his article, forthcoming in the Spring issue of volume 8 of the Virginia Sports and Entertainment Law Journal, Time for a Hail Mary? With Bleak Prospects of Being Aided by a College Version of the NFL's Rooney Rule, Should Minority College Football Coaches Turn Their Attention to Title VII Litigation?

From the abstract:

Over the past several years member teams of both the National Football League ("NFL") and the National Collegiate Athletic Association ("NCAA") have been criticized for employing too few head football coaches who are minorities. The problem has gained attention as non-whites now comprise a majority of the players at both levels of competition. In 2003, the NFL instituted a rule - the Rooney Rule - that is widely credited with significant improvements in the number of minority coaches employed within the professional league. Over the same period, the college head coaching ranks remain almost entirely devoid of non-white head coaches. This note analyzes whether the NCAA is in a position to emulate the Rooney Rule despite opposition from athletic directors, university presidents, conference commissioners, and others. The author further examines whether an over-looked minority job candidate could successfully sue a university for discrimination under Title VII of the Civil Rights Act of 1964 - an avenue advocated by several of the interest groups responsible for convincing the NFL to adopt the Rooney Rule.


January 23, 2009 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, January 22, 2009

York University Strike

Yorklogo David Doorey's Workplace Law Blog has an interesting post on a strike by part-time teachers and graduate assistants at York University, where he teaches.  Classes have been cancelled during the strike and recent developments seem to show that it's not going to end soon:

All three units of striking York employees soundly rejected York’s offer in voting over the past two days. . . . The results of the vote were as follows: Unit 1 (teaching assistants) 62% opposed, Unit 2 (contract faculty) 59% opposed, and Unit 3 (graduate assistants) 70% opposed.   Only 69% of eligible voters bothered to show up–who knows what the other 31% were doing Monday and Tuesday. Turns out the union executive had a pretty good sense of the mood of the workers–these results are what they predicted.  What happens now is anyone’s guess.  The employer has said it has nothing left to offer, and the union has said that the employer has been stalling in bargaining for months and has hardly moved at all since bargaining began last summer. Full-time faculty members have been bickering with their union (YUFA) and among themselves, with a minority last week issuing a signed petition urging the strikers to return to work.  The Deans of the faculties too sought to influence the strikers to vote for the offer, emphasizing the “economic crisis”. Apparently, none of these efforts to sway the workers away from the opinions of the union leadership worked.  Indeed, in my experience with these issues (I practiced labour law for years before becoming an academic), these efforts to pressure the strikers, while no doubt intended to help end the dispute, may very well have had the opposite effect that was intended. . . .

Finally, I mentioned earlier that if the government does pass back to work legislation, it will send the dispute to something called “interest arbitration”.  The principal legal test in interest arbitration is often called “the replication test”.  The idea is that the arbitrator tries to estimate what would have been the outcome had the parties been permitted to continue the strike.  When the membership and the union bargaining committee have strongly rejected the employer’s last offer, that is pretty strong evidence that the employer would have been required to give something more to end the strike. But, equally, the employer here has insisted it has nothing more to give.  So it would be interesting to see how an arbitrator would deal with this problem applying the “replication test”.

Doorey also has further discussion on possible work legislation and the fact that the parties appear to be bargaining in the press as much as they are behind closed doors.


January 22, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Ledbetter Passes Senate

Congress The Lilly Ledbetter Fair Pay Act of 2009, S. 181 passed today, according to the Washington Post and This version does not contain the amendments to the Equal Pay Act that the Paycheck Fairness Act piece of the House version had, and the Post suggests the House will approve the Senate version to move the Ledbetter piece forward.

Hat Tip: Paul Secunda


January 22, 2009 in Beltway Developments, Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Liebman Designated Board Chair

Liebman The NLRB received this afternoon an order designating Wilma Liebman Chair of the National Labor Relations Board.

Liebman has served as a Member of the NLRB since November 14, 1997. She was first appointed by President Clinton and confirmed by the Senate to a five-year term that expired on December 16, 2002.  She was reappointed by President Bush and confirmed by the Senate to a second term that expired on August 27, 2006 and to a third term that will expire on August 27, 2011.

Prior to joining the NLRB, Ms. Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (FMCS). She acted as the chief operations officer of this federal agency, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grants programs. In addition, Ms. Liebman advised the FMCS Director on issues involving major labor disputes and participated in significant negotiations as needed.

I don't think Liebman's appointment comes as any surprise.  She's certainly paid her dues, functioning as the dissenter in so many high-profile cases issued by the Bush II Board.

Hat tip: Tor Christensen.


January 22, 2009 | Permalink | Comments (2) | TrackBack (0)

Befort & Olig on Cat's Paw

Befort Olig Stephen Befort (Minnesota) and Alison Olig (Best & Flanagan) have just posted on SSRN their article Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 S.C. L. Rev. ___ (2009).  Here's the abstract:

This article proposes a new analytical framework for determining the reach of subordinate bias liability under antidiscrimination statutes. The current jurisprudence on this topic is in a state of disarray. A majority of federal circuit courts have adopted a relatively lenient standard which imposes liability whenever a biased subordinate influences an adverse action made by an ultimate decision-maker. Meanwhile the Fourth Circuit strictly limits liability to the situation where the biased subordinate is the de facto actual or principal decision-maker, and two other circuits adopt intermediate approaches that focus more closely on causation and on whether the employer has undertaken an independent investigation into the underlying circumstances. Rather than endorsing any of these existing standards, we propose a new test that draws on the various strengths of the current formulations. We believe that a plaintiff should be recognized as making out a prima facie case of subordinate bias liability by showing that a supervisor or other employee with delegated authority influences an adverse employment action to the extent that discrimination was a motivating factor in that outcome. Once such a showing is made, an employer should be liable unless it can establish the existence of either of two affirmative defenses. First, borrowing from sexual harassment jurisprudence, an employer should not be liable where it has taken reasonable measures to prevent and correct such bias, such as by the implementation of an anti-bias policy, and the plaintiff unreasonably has failed to use the opportunities provided. Alternatively, where the plaintiff has utilized such a policy or where no policy exists, an employer should be able to avoid liability only if it has dissipated the taint of subordinate bias by undertaking a fair and independent investigation into the circumstances underlying the contemplated employment action. We believe that this new test appropriately would encourage employers to protect themselves by preventing discrimination in the workplace while still providing plaintiffs with a reasonable opportunity to obtain redress for such discrimination that nonetheless may occur.


January 22, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Labor Standards and the World Trade Organization

GlobeWhile we're on the subject of the global workplace, Patrick S. O'Donnell at Ratio Juris had a very interesting post recently on the WTO, Core ILO Standards and Human Rights. Patrick wrote the post in response to the question asked by Roger Alford at Opinio Juris, Why is the Environment More Important than Human Rights?

Patrick's post contains a wealth of information on the international bodies and instruments that provide a structure for international cooperation and the use of international pressure in the areas of trade, labor, and their intersection. He also provides an excellent explanation of why the WTO standards end up protecting the environment more than human rights by allowing countries more power to refuse to import products that were produced in a way that harms the environment than to refuse to import products that were produced in ways that injured the lives or health of workers. Finally, the post suggests sources that provide suggestions on how to link human rights, International Labour Organization core standards, and the WTO. And in classic form, he provides a wealth of resources for further reading.


January 22, 2009 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

The Pedagogy of Global Workplace Law

Bisomrapp Susan Bisom-Rapp (Thomas Jefferson) writes to tell us of an upcoming thematic issue of the International Journal of Comparative Labour Law and Industrial Relations that she and William Bromwich (University of Modena, Italy) edited. The focus of the issue is on the pedagogy of comparative and international labor law, and the papers in it grew out of presentations at Thomas Jefferson's conference last February, entitled "The Global Workplace: Expanding Intellectual Borders with International and Comparative Workplace Law."

Here is the table of contents with a short summary of each piece:

Timothy P. Glynn (Seton Hall), A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders To Move Beyond (Artificial) Substantive Ones. This paper examines how the study of comparative and international employment law can enable students not just to acquire an understanding of other legal systems, but also to bridge the gap between employment law and other regulatory provisions, particularly in corporate law. In this way students are encouraged to reconsider the legal relations between stakeholders in the firm, particularly workers, managers, and investors

Ruben J. Garcia (California Western), Teaching Problem-Solving and Preventive Law Skills through International Labor and Employment Law. This paper focuses on the role of the lawyer as counselor and problem solver, rather than just as litigator, and the paper considers how the principles of preventive law can be applied to the teaching of international labor and employment law. Ethical issues are a central concern in this study, particularly when the author asks whether in an age of financial scandals it is sufficient for lawyers to simply sign off on actions that, though legal, are morally or financially questionable, underlining the importance of the ethical dimension of legal education.

Michael J. Zimmer (Loyola, Chicago), Two Halves of a Whole: Teaching International and Comparative Employment Law. This paper also places the accent on lawyers behaving in an ethical, professionally responsible and culturally sensitive manner, both in the way they view their own country’s laws and those of other nations. Given the increasing transnationalisation of labour law practice, he highlights the need for the workplace law regimes of individual nations to be seen in relation to the provisions of the International Labour Organisation and, where applicable, regional structures such as the EU and the NAFTA labor side accord.

Susan Bisom-Rapp (Thomas Jefferson), Fearing Minefields but Finding Goldfields: Teaching International and Comparative Workplace Law in China or Anywhere Else. This paper reflects on pedagogic issues relating to an experience in teaching international and comparative workplace law to students as part of a Study Abroad in China Program, which presented a number of challenges, including language difficulties faced by the Chinese students on the program, methodological and cultural issues, since legal education in China is lecture-based rather than interactive, and finally political issues, relating to Chinese and American foreign policy and workplace conditions.

Rafael Gely (Cincinnati), Workplace Songs: Developing a Framework for Research and Teaching. This paper deals with a topic that is rarely addressed: the role of workplace songs in the employer-employee relationship, with suggestions about how to incorporate workplace songs as a topic of discussion in industrial relations courses. Music, as employed in Gely’s classroom, connects students to the distinctive workplace cultures of the national jurisdictions studied.

William Bromwich (University of Modena), Blood, Toil, Tears and Sweat? Achieving Proficiency in Academic Writing. In an applied linguistics perspective, this paper examines the difficult process of acquiring proficiency in academic writing. The role of double-blind peer review is examined, with excerpts from referee reports used to cast light on the key principles of academic discourse in comparative labour law and industrial relations, with a view to helping new researchers in the discipline.

This issue is a very valuable contribution to the field, and the articles look fascinating. Currently, the only way to get copies of the issue is by ordering straight from Kluwer International, using its order form. The issue is volume 25, Issue 1. Get it while it's hot, as they say!


January 22, 2009 in International & Comparative L.E.L., Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Peanut Revenge

Nut Mail Online, via pjh law, tells of the Nottingham, England maintenance worker who got ticked when told to remove an inappropriate calendar from his workstation.  His response:  distribute peanuts throughout industrial bakery.  The bakery was a nut-free zone so that customers with nut allergies could buy the products; the peanuts caused the plant to shut for 24 hours and cost the employer L1.2M.


January 22, 2009 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2009

Regulating for Decent Work Call for Abstracts

Ilo Colin Fenwick (ILO, formerly at Melbourne Law School) has let us know about an upcoming conference and call for abstracts/papers.  The event is the Conference on Regulating for Decent Work, which is intended to explore whether retreating or reinforcing labor laws is the best means for future social and economic progress.  The conference will take place in July 2009 and there is a call for abstracts for papers presented at the conference:

[A]bstracts are requested for an international Conference on Regulating for Decent Work: Innovative Regulation as a Response to Globalization to be held in the International Labour Office, Geneva from 8-10 July 2009.

In line with the objectives of the RDW network, the Conference will explore responses to current deregulatory agendas and examine techniques for strengthening regulatory measures in substance or scope and heightening their influence on the practices of working life. Researchers from all regions are encouraged to attend and from a range of disciplines including law, economics, industrial relations, development studies, sociology and geography.

Abstracts for papers are invited that address one or more of the Conference Themes outlined below. The papers will address central features of the contemporary debates on labour market regulation, and will therefore be expected to include contributions on the measurement and comparison of domestic labour standards; the impact and influence of labour laws; the regulation of ‘non-traditional’ workers and employers (‘non-standard’ and ‘informal’ working relationships, small- and micro- enterprises etc.); the role of labour law in developing economies; innovative or overlooked modes of regulation (public procurement, financial incentives etc.); and the relationship between public and private regulatory initiatives and multi-stakeholder alliances. In line with the objectives of the RDW network, papers are particularly welcome that address regulatory domains beyond the ‘core’ labour standards of the ILO’s Declaration on Fundamental Principles and Rights at Work and in particular on the regulation of wages, working hours, work/family, health and safety, security of employment and social protection, including the ability of vulnerable workers to access these labour rights.

Abstracts should be submitted to They will be subject to a competitive review process. It is expected that an edited volume will be produced that will draw on selected Conference papers.

Deadline for submission of abstracts: 31st January 2009
Deadline for submission of final paper: 31st May 2009

Guidelines for abstracts
o Abstracts should be a maximum of 400 words including references and appendices.
o Each abstract should include:
o the paper title;
o names and institutional affiliations of all authors;
o the contact address and email of the correspondence author;
o the proposed Conference track.
o Abstracts should be submitted as a single-spaced Word document formatted to A4 size in 12 point Arial font.
o Guidelines for final papers will be communicated to the authors of selected abstracts.

There's plenty more information in the formal conference announcement.


January 21, 2009 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (1)

A Union Win in the Locke Case

Supreme_court The Supreme Court has just issued its decision in Locke v. Karass (see here for our description of the case and here for our take on the oral argument).  Although I suspected that the union may win this one, I didn't anticipate a unanimous win, with an added concurrence by three justices.  I haven't had time to read the full decision--the price of delivering breaking news--but here are some of the relevant portions of the Court's syllabus:

Under this Court’s precedent, the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.

(a) Prior decisions frame the question at issue.  The Court has long held that the First Amendment permits local unions designated as the exclusive bargaining representatives for certain employees to charge nonmember employees a service fee as a condition of their continued employment. With respect to litigation expenses, the Court also held that a local could charge nonmembers for expenses of litigation normally conducted by an exclusive representative, including litigation incidental to collective bargaining, but said (in language that the petitioners here emphasize) that litigation expenses “not having such connection with the bargaining unit are not to be charged to objecting employees.” Ellis v. Railway Clerks. Later, the Court held, with respect to the chargeability of a local’s payment of an affiliation fee to a national, that the local “may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Lehnert v. Ferris Faculty Assn. The Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit,” although there must be “some indication that the payment [say, to the national] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” However, the Lehnert Court split into three irreconcilable factions on the subject here at issue, payment for national litigation.

(b) Because Lehnert failed to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Having examined the question further, however, the Court now believes that, consistent with its precedent, costs of such litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated [which are stated in the first paragraph of this syllabus]. . . . 

(c) Applying Lehnert’sstandard to the national litigation expenses at issue demonstrates that they are both appropriately related to collective bargaining activities and reciprocal, and are therefore chargeable. . . .   

Justice Alito, joined by Chief Justice Roberts and Justice Scalia, had a brief concurrence that stressed that the meaning of "reciprocal in nature" is still an open question.  Although unions don't have a free pass under Locke, I imagined that they're thrilled not have lost all extra-unit expenses.  The next step, of course, is to see how this plays out in future cases.

Hat Tip:  Paul Secunda


January 21, 2009 in Labor Law | Permalink | Comments (2) | TrackBack (0)

New Edition of E.D. Law & Practice

Sullivan_bio Laurenwalter_2 Charles Sullivan (Seton Hall) has published the 4th Edition of Employment Discrimination Law & Practice (Aspen 2008). His co-author on this edition is Lauren Walter, a practicing attorney.  It's a 2 volume work that tries to answer most of the unanswered questions in the Zimmer, Sullivan and White casebook.  Because Law & Practice was in page proof when the 2008 ADA Amendments were passed, it is probably the first work to try to integrate them into an extended discussion of the ADA.


January 21, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Teacher's Manual to Heinsz et al.'s Labor Law Casebook is Out

Casebooks The Teacher's Manual is out for Heinsz, Nolan, & Bales's Labor Law: Collective Bargaining in a Free Society.  I don't have a weblink, but the ISBN is 978-0-314-17773-5.  Here's the publisher's description of the casebook:

This new edition (formerly Oberer, Heinsz and Nolan's Labor Law casebook) takes a distinctive approach to the topic. The first section provides a minicourse in American labor law history, describing the development of labor law in the United States. It provides students with the social, political, and economic context necessary to appreciate the doctrinal material presented in the rest of the book. Cases are tightly edited, notes are brief, and the text hews closely to major points. The streamlined presentation is ideal for professors who wish to supplement the material with simulations or other experiential learning exercises.

If anyone has any questions about the casebook, feel free to contact me directly.


January 21, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Workplace Prof Blog #16 in Law Prof Blog Rankings

Thx Thanks to all of you for making Workplace Prof Blog the 16th most-read law prof blog (by number of visitors), and 17th by number of page views.  For the complete list, see Paul Caron's chart


January 21, 2009 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Federal Jurisdiction over State Wage/Hour Class Actions

Ot Thanks for Jonathan Harkavy for alerting us to this significant unpublished wage/hour case decided late last week by the Fourth Circuit.

Plaintiffs brought a state-law-based class action for unpaid overtime.  Plaintiffs did not specify the amount they were seeking in damages.  Defendants attempted to remove pursuant to the Class Action Fairness Act, which permits removal if the amount in controversy exceeds $5M.  In support, defendants filed an expert report concluding that damages would exceed this threshold.

The Fourth Circuit, 2-1, remanded, finding the experts' calculations unpersuasive and holding that plaintiffs were under no obligation to proffer their own evidence of damages.  The dissent argued that the majority mistook the parties' burden of production and burden of persuasion:  "[Just as in the Title VII context], in the CAFA context, the burden of proof remains with the party seeking to invoke federal jurisdiction -- typically, the class action defendant.  But once the [defendant] has put forth credible evidence on the jurisdictional question, the burden of production shifts to the [plaintiff] to offer something in response."

The case is Bartnikowski v. NVR, Inc., No. 09-1063 (4th Cir. Jan. 16, 2009).

As Jonathan points out, this is a very cert-worthy case.


January 21, 2009 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2009

Obama on EFCA

Obama_3 During a recent interview with the Washington Post, Obama talked a bit about EFCA.  In response to a question about the timing and terms of a potential EFCA bill, specifically whether card check is the only way to approach the problem, Obama said:

Here’s my basic principal that wages and incomes have flatlined over the last decade.  That part of that has to do with forces that are beyond everybody’s control: globalization, technology and so forth.  Part of it has to do with workers have very little leverage and that larger and larger shares of our productivity go to the top and not to the middle or the bottom.  I think unions serve an important role in that.  I think that the way the Bush Administration managed the Department of Labor, the NLRB, and a host of other aspects of labor management relations put the thumb too heavily against unions.  I want to lift that thumb.  There are going to be steps that we can take other than the Employee Free Choice Act that will make a difference there.

I think the basic principal of making it easier and fairer for workers who want to join a union, join a union is important.  And the basic outline of the Employee Fair Choice are ones that I agree with. But I will certainly listen to all parties involved including from labor and the business community which I know considers this to be the devil incarnate.  I will listen to parties involved and see if there are ways that we can bring those parties together and restore some balance.

You know, now if the business community’s argument against the Employee Free Choice Act is simply that it will make it easier for people to join unions and we think that is damaging to the economy then they probably won’t get too far with me. If their arguments are we think there are more elegant ways of doing this or here are some modifications or tweaks to the general concept that we would like to see. Then I think that’s a conversation that not only myself but folks in labor would be willing to have.  But, so that’s the general approach that I am interested in taking. But in terms of time table, if we are losing half a million jobs a month then there are no jobs to unionize. So my focus first is on those key economic priority items that I just mentioned.

Whether Obama was sending a single about his willingness to compromise on EFCA or whether he was simply expressing his normal openness to others’ ideas remains to be seen.  I’m guessing that he hasn’t though too much about EFCA or the NLRB at this point, so it’s probably too early to read much into anything his says on the topic.

Hat Tip:  Labor Law Blog & Jeffrey Wilson


January 20, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

The NLRB's Top-Ten Endangered Decisions

Nlrb Attorney Paul Galligan (Seyfarth Shaw) has an article in the New York Law Journal listing what he views as the top-ten endangered new NLRB precedents.  Although he’s management-side, I imagine that the unions would agree that these cases are high on their list of cases that they’d like to see go away.  His top four (in order) is:

Read the article for the entire list.

Hat Tip:  Dennis Walsh & Barry Hirsch


January 20, 2009 in Labor Law | Permalink | Comments (1) | TrackBack (0)

In Memoriam: Seymour Waldman

Columbia_2 It is with regret that we report on the recent passing of Seymour Waldman.  According to his law firm, Vladeck, Waldman, Elias and Engelhard:

Mr. Waldman had been a named partner at the firm for thirty years.  He also served as general counsel to the Bricklayers and Allied Craftworkers Union, the parent organization to bricklayers locals around the country.  Prior to joining the firm, he had practiced law for over twenty years with his father, Louis Waldman, and his brother, Paul. 

Mr. Waldman, who represented unions throughout his entire career, was recognized nationally for his skills as an advocate in a wide variety of cases ranging from antitrust to racketeering law. 

Mr. Waldman served in the Navy in World War II and graduated from Columbia Law School.

I worked at Vladeck when I was a law student and, although I did not have the fortune of meeting him, Mr. Waldman’s importance to both the firm and the labor law field was obvious and he will be missed.


January 20, 2009 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

LLG UC-Hastings Symposium on Proposed Restatement

Marty Malin (Chicago-Kent) posted this announcement on the Employment discrimination list serv. The Proposed Employment Law Restatement is something we've blogged about before, and this conference (and the project) is likely to be of interest to most readers of this blog:

Dear Colleagues:


Please excuse the short notice.  The Labor Law Group and the University of California Hastings College of Law and cosponsoring a one-day symposium on the proposed Restatement of Employment Law on Saturday, February 7, 2009 at UC-Hastings.  There is no charge for attending this symposium but advance registration is required.  To register, send an e-mail Labor Law Group Chair Ken Dau-Schmidt at A block of rooms has been reserved at the Hotel Whitcomb, near UC Hastings, at the rate of $65 per night plus tax.  To reserve a room at this rate, call the hotel at 415 626-8000 during regular business hours (Pacific Time) and mention that you are attending "The ALI Restatement Conference" hosted by the "Labor Law Group" and UC-Hastings Law School. To insure the conference rate and room availability, your room reservations must be made by 5:00 pm PST, January 25, 2009.

The Labor Law Group has organized three working groups, one each on the three chapters of the proposed Restatement that are available in draft form. The working groups are:


Chapter 1, Existence of the Employment Relationship;


Dennis Nolan, Chair

Alvin Goldman

Ted St. Antoine

Joseph Slater


 Chapter 2, Employment Contracts Termination;


Matt Finkin, Chair

§ 2.01 Lea VanderVelde

§§ 2.02-2.03 Bill Corbett

§§ 2.04-2.05 Steve Befort

§2.06 Matt Finkin


Chapter 4, The Tort of Wrongful Discipline in Violation of Public Policy


Joe Grodin, Chair

§ 4.01: Pauline Kim and Catherine Fisk

§ 4.02: Roberto Corrado and Rick Bales

§ 4.03 Paul Secunda


At the symposium, representatives of the working groups will present their analyses followed by responders commenting on the analyses.  The responders are Rachael Arnow-Richman, Allan Hyde and Marley Weiss.


The conference schedule is as follows:

Conference on the Proposed Restatement of Employment Law
Schedule of Events

Saturday February 7, 2009

7:30-8-30 a.m. Continental Breakfast at UC-Hastings Law School

8:30- 8:45 am Welcome by Dean Nell

8:45- 9:00 am Prefatory Comments Ken Dau-Schmidt,
Chair of the Labor Law Group

Session 1: Chapter 1-- The Definition of Employee
9:00-10:00 am Comments by the Working Committee on Chapter 1
Dennis Nolan, University of South Carolina, Chair

10:00-10:30 am Response

10:30- 10:50 am Break

Session 2: Chapter 2
10:50- 11:50 am Comments by the Working Committee on Chapter 2
                       Matt Finkin, University of Illinois, Chair

11:50- 12:20 pm Response

12:30- 2:00pm Lunch

Session 3: Chapter 4
2:00- 3:00 pm Comments by the Working Committee on Chapter 4
                       Joseph Grodin, University of California-Hastings, Chair
3:00-3:30 pm Response

3:30-4:30 pm Reception

Proceedings of the symposium will be published in Employee Rights and Employment Policy Journal.  Again, to register for the symposium e-mail Ken Dau-Schmidt (there is no registration fee) at and be sure to call the hotel by January 25 to reserve a room at the conference rate.  We hope to see you in San Francisco on February 7.



January 20, 2009 in Conferences & Colloquia, Employment Common Law, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)