March 20, 2010
Top-10 Labor & Employment Recent SSRN Downloads
Back by popular demand is our weekly top-10 list.
- John E. Core (left) & Wayne R. Guay (right), Is There a Case for Regulating Executive Pay in the Financial Services Industry? (184).
- Paul M. Secunda, Cultural Cognition at Work (122).
- Susan Carle, A Social Movement History of Title VII Disparate Impact Analysis (118).
- Jennifer G. Hill, New Trends in the Regulation of Executive Remuneration (107).
- Meredith Render, Gender Rules (102).
- Sharona Hoffman, Employing E-Health: The Impact of Electronic Health Records on the Workplace (81).
- Kelli Kleisinger & Richard A. Bales, The Validity of the Two-Member NLRB (76).
- David E. Bernstein & Thomas C. (Tim) Leonard, Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform (74).
- Robert DeYoung, Meng Yan, & Emma Y. Peng, Executive Compensation and Business Policy Choices at U.S. Commercial Banks (74).
- Ellen Dannin, Hoffman Plastics as Labor Law – Equality at Last for Immigrant Workers? (72).
March 19, 2010
Newsweek Focuses on Age Discrimination in the Workplace
Here. The thought is that since the Supreme Court's Gross decision last year making it more difficult for older employees to prove age discrimination, it has been even harder for older employees to be successful in such suits even as the incidence of such claims rise:
As if finding and holding on to a job wasn't hard enough. According to the U.S. Equal Employment Opportunity Commission, there's been a 17 percent jump in the number of age-discrimination complaints filed since the recession began in 2007. Federal law is supposed to protect workers 40 and older, but proving you've been denied a job or laid off to make way for younger and cheaper workers isn't easy. And the byproduct of a 2009 Supreme Court decision has substantially increased the burden of proof required to win an age-discrimination case.
The article is in question-and-answer format with NEWSWEEK's Nancy Cook asking questions of Laurie McCann, a senior attorney with AARP Foundation Litigation.
No real surprises here, but it is good that the plight of older Americans in the workplace in light of the recession and the Gross decision are finally making top news stories.
Hat Tip: Rosario Vega Lynn
Large British Airways Strike Looming Tomorrow
John Campbell-Orde, a regular reader of the Workplace Prof Blog, writes us to let us know that there is a potentially enormous strike by Unite members against British Airways, one which may involve international cooperation from other unions, including possibly some in the U.S.
John tells us that public opinion in Britain appears to be largely against the potential strikers, with blame being placed on union members for not reaching agreement with British Airways (which is calling for large concessions), rather than careful consideration of whether British Airways is taking an unreasonable position, or even bargaining in bad faith by withdrawing an earlier proposal that Unite had rejected but appears open to reconsidering to avert a strike.
I certainly agree with John that striking always puts unions and their members in an awkward spot, especially those unions that provide services directly to the public. John writes in this regard:
People seem to forget that "it takes two to tango": to blame the union, unless its position is clearly unreasonable, for striking is to ignore the fact that the employer has effectively equal control over whether a strike occurs. It can prevent a strike by accepting the union's proposed contract, just as the union can avoid striking by accepting the employer's proposed contract. These are, after all, bilateral negotiations. Anyone involved in labor relations knows that most union members are very reluctant to strike. In doing so they damage themselves quite severely economically, at least in the short term. One might infer from this, and from BA withdrawing its earlier proposal, that under the circumstances perhaps Unite should strike in order to best represent its members interests.
Of course, John wrote this before the latest developments this morning. As on Noon EDT in the U.S., the Wall Street Journal is reporting that a full strike is scheduled for Saturday after the parties could not come to an agreement. WSJ writes:
Willie Walsh, British Airways PLC's chief executive, is no stranger to the tense, high-profile world of negotiating with trade unions.
"My sole focus is that British Airways continues to fly" he said to reporters Friday after the Unite union said it plans to go ahead with a planned cabin-crew strike Saturday after talks ended without an agreement. Mr. Walsh, who has set up contingency plans that will allow two-thirds of booked BA passengers to fly during the stike, said he isn't trying to break the union, or undermine organized labor.
Unite's joint general-secretary, Tony Woodley, countered that the talks broke down because "hawks" within British Airways had won, and said Mr. Walsh, was looking for a "war" with Unite's members.
It would be the first strike that has hit the airline since 1997 and the first since Mr. Walsh became CEO in 2005.
Look for updates on this blog post and developments warrant.
Fishman on 'Dressing Up' Gender Stereotypes
Charlotte Fishman is a San Francisco attorney and Executive Director of Pick Up the Pace, a nonprofit organization whose mission is to identify and eliminate barriers to women’s advancement in the workplace. In a blog post (now also published in The Daily Journal), she asks: Is it legal to fire a front desk clerk for not being “pretty enough”?:
Not in Iowa. Last Monday, the Eighth Circuit Court of Appeals reversed a trial judge’s decision and ordered Lewis v. Heartland Inns of America to trial.Brenna Lewis was a front desk clerk at Heartland Inns in Ankeny, Iowa. She was promoted to the day shift, sight unseen, after enthusiastic recommendation from previous managers. Once on the job, Lewis’ loose-fitting clothing and unisex appearance caused Director of Operations Barbara Cullinan to express reservations about whether she was a “good fit.”
Lewis wore short hair, no makeup and sported an “Ellen DeGeneres look.” She was “tomboyish,” friendly, and well-liked by customers. Cullinan preferred a pretty “Midwestern girl look” on the day shift. She fired the manager who refused to reassign Lewis and demanded that Lewis undergo a videotaped “second” interview to keep her job. A distraught Lewis objected to the second interview, questioning whether it was lawful to require one just because of her appearance. Three days later she was fired.
When Lewis sued Heartland for sex discrimination, the company countered that Lewis was terminated for “thwarting” the interview procedure and exhibiting “hostility” to Heartland’s policies. The trial judge dismissed the case. Lewis appealed. In January, a three judge panel ruled in Lewis’ favor. On March 8, the full court denied Heartland’s request for rehearing, and ordered the case back to jury trial.
As Charlotte herself observes, this case should have never been dismissed by the trial court in light of the recognition of stereotype gender bias under Price Waterhouse v. Hopkins (U.S. 1989). But it is good to see that the appellate courts still recognize the vitality of this branch of employment discrimination law.
March 18, 2010
New H2-A Poster
The Department of Labor’s Employment and Training Administration and Wage and Hour Division published a final rule implementing changes to the H-2A program effective March 15, 2010. One of the requirements in the rule is for employers who employ H-2A workers to display a new H-2A poster where employees can readily see it. The poster is also available in Spanish. It will be made available in other languages in the coming months.
Zero Tolerance on Zero Tolerance
Michael Maslanka, over at Work Matters, discusses whyzero-tolerance policies in drug and anti-harassment policies are a bad idea.
March 17, 2010
Humorous Help-Wanted Signs
Thanks to Miriam Cherry for sending this link to the Huffington Post's 13 Funniest Help Wanted Signs.
Wagner Competition Results
Congratulations to team DePaul for making it to the final round, and to team Loyola-Chicago for winning the tournament. Barry, Michigan State, and NKU-Chase all made it to the quarter-final round (hat tip: Dan O'Gorman), but I don't have the complete results. If you do, please send them to me and I'll post them.
Kathleen Roberts, Wagner Moot Court Competition Chair, sends us this list of the quarter-finalists. Congratulations to all!
Loyola Chicago University School of Law
Barry University School of Law
Mississippi College School of Law
Michigan State University College of Law
Northern Kentucky University, Chase College of Law
DePaul University College of Law
Brooklyn Law Schoool
University of San Francisco School of Law
Estlund: Regoverning the Workplace
Many congratulations to Cynthia Estlund (NYU) on the publication by Yale University Press of her new book Regoverning the Workplace. Those of us with gray hair will recognize the title as a take-off on Paul Weiler's book Governing the Workplace. Like Weiler's book, Estlund's will be a game-changer. Here's the publisher's description:
This original book seeks to shape current trends toward employer self-regulation into a new paradigm of workplace governance in which workers participate. The decline of collective bargaining and the parallel rise of employment law have left workers with an abundance of legal rights but no representation at work. Without representation, even workers’ legal rights are often under-enforced. At the same time, however, many legal and social forces have pushed firms to self-regulate—to take on the task of realizing public norms through internal compliance structures.
Cynthia Estlund argues that the trend toward self-regulation is here to stay, and that worker-friendly reformers should seek not to stop that trend but to steer it by securing for workers an effective voice within self-regulatory processes. If the law can be retooled to encourage forms of self-regulation in which workers participate, it can help both to promote public values and to revive workplace self-governance.
Samuel Issacharoff (NYU) (left) & Erin Scharff (NYU student) have just posted on SSRN their chapter Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical (forthcoming in THE LAW AND ECONOMICS OF LABOR AND EMPLOYMENT LAW, Cynthia Estlund and Michael L. Wachter, eds., Edward Elgar). Here's the abstract:
Employment discrimination law has come a long way since it confronted the simple exclusion of minorities or women from desirable positions in the workforce. The expansion of protected groups and the dismantling of the more overt forms of exclusions has strained the antidiscrimination norm embodied by Title VI of the Civil Rights Act of 1964. As the law expanded the class of protected workers, its redistributive aims grew more pronounced. This chapter of a forthcoming handbook on the economic foundations of labor and employment law and provides an overview of this shift, focusing on the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. With each further expansion of the reach of employment discrimination laws, the relation between bias and what may be termed employers’ economically rational discrimination became a more significant part of the case law. This chapter addresses some of the underlying labor economic issues as civil rights laws confront accommodation requirements and redistributive aims.
Work-Life on NPR
NPR is running a series this week on work-life balance. Today's reports focus on flexible work schedules and low-wage workers. Joan Williams, Director of the Center for WorkLife Law at U.C.-Hastings, is featured prominently.
March 16, 2010
9th Cir. First Amendment/Labor Law Heading to En Banc Review
Ask and ye shall receive. In this case, that means my wishes were granted in the Ampersand case where I argued a panel of the Ninth Circuit ruled inappropriately that granting a 10(j) injunction would cause First Amendment speech and press issues. Now the NLRB has moved for en banc review in that case.
As I argued before, the only outcome that would be consistent with a discriminatory firing for union-based conduct is a reversal of the panel decision and the entering of a 10(j) injunction to prevent the employer from engaging in unlawful union-based discrimination.
The NLRB filed its petition for rehearing on March 11 asking the full U.S. Court of Appeals for the Ninth Circuit to rehear and reverse the panel decision and reinstate eight fired reporters pending the board's resolution of unfair labor practice charges (McDermott v. Ampersand Publ'g LLC d/b/a Santa Barbara News-Press, 9th Cir., No. 08-56202, petition for rehearing en banc filed 3/11/10).
In its petition for rehearing, the NLRB argued that the panel reached a “sweeping conclusion” that the reporters lost the protection of the National Labor Relations Act due to their motives, in a “misinterpretation of First Amendment rights in relation to NLRA rights [that] is already being cited in other injunction cases.”
Hat Tip: Hank Leland
DOL Seeks to Define "Green Jobs" for Regulatory PurposesThe Department of Labor's Bureau of Labor Statistics (BLS) is soliciting comments on its proposed definitions of environmentally friendly “green jobs” in advance of its first collection of data on those jobs. A notice of proposed rulemaking willl be in today's Federal Register.
According to the BLS, the notice sets out a definition of green jobs the agency proposes to use, as well as a list of industries in which such jobs may be found. Those industries are classified according to the existing North American Industry Classification System (NAICS).
The definition provides a broad definition for "green jobs": economic activities that help protect or restore the environment or conserve natural resources. Such jobs that generally fall into one of these categories involve: renewable energy; energy efficiency; greenhouse gas reduction; pollution reduction and cleanup; recycling and waste reduction; agricultural and natural resources conservation; and education, compliance, public awareness, and training in environmental fields.PS
March 15, 2010
More Reasons to Take Down that Facebook Page
Mitch Rubenstein at Adjunct Law Prof Blog has an interesting post about a study concerning online reputation and job consequences that Dan Solove at Concurring Opinions elaborates on. Mitch asks about employment discrimination while Dan focuses on privacy and process implications.
The study, done by Microsoft, surveys consumers, HR managers, and recruiters in the US, UK, Germany, and France, and finds that while fewer than 15% of people think that their online information will matter in getting hired, 70% of employers in the US (much bigger than the other countries) rejected employees because of information found out about them online. And nearly all US employers surveyed thought it appropriate to base decisions on information found online. See Dan's post for some great graphics and the study for more info.