May 15, 2010
Top-10 Labor & Employment Recent SSRN Downloads
- Richard H. Thaler, Cass R. Sunstein, & John P. Balz, Choice Architecture (1080).
- Carola Frydman & Dirk Jenter, CEO Compensation (378).
- Amy Monahan, Public Pension Plan Reform: The Legal Framework (373).
- Robert Pikowsky & John A. Miller, Taxation and the Sabbatical: Doctrine, Planning and Policy (290).
- Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure (194).
- Mark C. Weber, Unreasonable Accommodation and Due Hardship (173).
- Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform (166).
- Joseph Seiner (photo above) & Benjamin Gutman, The New Disparate Impact (126).
- Robert Flannigan, Fact-Based Fiduciary Accountability in Canada (124).
- Randall S. Thomas & Harwell Wells, Executive Compensation in the Courts: Board Capture, Optimal Contracting and Officer Fiduciary Duties (124).
May 14, 2010
Harkin: No EFCA for Now
This isn't exactly breaking news, but BNA's Daily Labor Report (subscription required) is reporting on statements of Sen. Harkin that the votes aren't in the Senate to pass EFCA. More surprising is his comment that he was within one vote of passage (presumable 60 votes for cloture) before the Mass. election. It had looked to me that any version of EFCA with card-check certification was doomed long before then, but Harkin's a slightly better source on Senate vote-counting than me (he may have been talking about passing a compromise bill without card-check). And for those in despair over this news, Harkin did say that passing some version of EFCA is his highest priority--so maybe something will happen eventually.
More Proposed Changes to Chapter 8a motion that would re-order some of the sections in the ALI's draft Restatement chapter on the Duty of Loyalty and Restrictive Covenants. While the proposal can be viewed as technical in nature, the goal is more conceptual -- to make clearer that the "confidential information" that the draft protects is in the nature of the employer's intellectual property rather than a matter of the employee's duty of loyalty.
This is an interesting point that might generate some enlightening discussion about the underlying theories of chapter 8.
Steve Wilborn sends the link to this YouTube videoclip of hotel employees demonstrating earlier this week as part of the San Francisco hotel boycott. Here's the uploaders' description:
A flashmob infiltrates the Westin St. Francis hotel in San Francisco and performs an adaptation of Lady Gaga's song "Bad Romance." The event was organized to draw attention to a boycott called by the workers of the hotel who are fighting to win a fair contract and affordable healthcare. Lesbian Gay Bisexual Transgender Queer activists put the song and dance together as a creative way to tell the hundreds of thousands of LGBTQ people from all over the country coming to San Francsico in June for Pride to stay out of the boycotted hotels.
Queries: Is calling one's employer a "bad hotel" unprotected product disparagement under Jefferson Standard? Assuming this is picketing (and not aural assault), is picketing inside the hotel protected?
Recently Published Scholarship: U. Pa. J. Bus. L.
University of Pennsylvania Journal of Business Law
Volume 12, Number 2, Winter 2010
- Corey A. Ciocchetti & John Holcomb, The Frontier of Affirmative Action: Employment Preferences & Diversity in the Private Workplace, p. 283.
- Michael E. Chaplin, Workplace Bullying: The Problem and the Cure, p. 437.
- Nima H. Mohebbi, Back Door Arbitration: Why Allowing Nonsignatories to Unfairly Utilize Arbitration Clauses May Violate the Seventh Amendment, p. 555.
- Caroline Cheng, Reevaluating Reasonable Accommodation: Adapting the Canadian Proof Structure to Achieve the ADA's Equal Opportunity Goal, p. 581
May 13, 2010
Anti-Bullying Legislation Passes NY Senate
I'm sure that David Yamada (Suffolk) is doing a dance of joy today with the news that the New York State Senate passed S. 1823-B, a bill to create a private cause of action for employees subject to an abusive working environment. From the Senate's press release,
this legislation provides legal redress for employees who have been harmed psychologically, physically or economically by being deliberately subjected to abusive work environments; and it provides legal incentives for employers to prevent and respond to mistreatment of employees at work.
Surveys and studies demonstrate that 16 to 21 percent of employees experience health-endangering workplace bullying, abuse and harassment, and that this behavior is 4 times more prevalent then sexual harassment. These studies have also documented the serious effects on these targeted employees. They include: shame, humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, gastrointestinal disorders, hypertension and pathophysiologic changes that increase the risk of cardiovascular disease.
“The social and economic well-being of the State is dependent upon healthy, safe, and productive employees,” said Senator [Thomas P.] Morahan [Chairman of the Committee on Mental Health and Developmental Disabilities]. “I want to thank all my colleagues, on both sides of the aisle, who voted for this legislation. In particular, Senator George Onorato, Chairman of the Labor Committee, Republican Leader Dean Skelos, Majority Conference Leader John Sampson and Deputy Majority Leader Jeff Klein for helping secure passage of the legislation”.
“I became aware of the prevalence of abusive environments in the workplace when one of my constituents brought her situation at her place of employment to my attention. It became apparent that legislation was needed to address the problem,” said Morahan.
“Workplace bullying, abuse and harassment bring with them a variety of very serious human and economic costs,” said Senator George Onorato, Chairman of the Labor Committee and co-prime sponsor of the legislation. “Abusive behavior can cause grievous harm to employees who are the victims of it, leading to all manner of health problems and, often, forcing them to leave their jobs to escape it. In addition, it costs employers in terms of lost employee productivity, and other workplace problems. By taking aim at abusive work environments, this legislation will protect employees from inappropriate behavior and help our businesses to become more productive and successful.”
“Mistreatment of employees in the workplace is a serious issue, but too often, workers have no recourse when they are subject to an abusive work environment,” said Senate Republican Leader Dean G. Skelos. “Senator Morahan’s legislation will help employees who have been harmed, physically, mentally or financially, and will encourage employers to do more to prevent and respond to this problem.”
“We are truly appreciative of Senator Morahan’s efforts which have culminated in the passage of vital legislation in the New York State Senate,” said New York Healthy Workplace Advocate State Coordinators Mike Schlicht and Tom Witt.
This bill must still pass the New York State Assembly and be signed by the governor to become law.
May 11, 2010
Maybe Some Controversy at the ALI?
A motion has been posted at the ALI that, if passed, would defer consideration of Chapter 8 (Employee Duty of Loyalty and Restrictive Covenants) until the Reporters submit the projected chapter on Damages. The mover is Joseph D. Garrison.
I don't know anything about this motion, other than the mover's posted explanation -- which is that Chapter 8 extends the duty of loyalty to all employees (not just higher level ones) and it seems to envision an action in tort, with the resultant expansion of recovery beyond that available in a contract suit.
I would doubt that the motion will pass -- ALI approval of any given part of a Restatement is tentative, and thus (at least in theory) can be revisited in light of other chapters. An obvious response to the motion is to defer the remedies issue to that chapter (which is not even in draft form as of now). On the other hand, raising the issue now, and before the entire body, is likely to focus attention on it and thus make it more likely that it will be ultimately explicitly addressed. I think Mr. Garrison did a service by raising these questions, and it will be interesting to see how Dean Schwab and the other Reporters respond.
May 10, 2010
NMB Issues New Majority-Vote Rule
The NMB will announce in Tuesday's Federal Register that it is adopting its proposed majority-vote rule. The final rule is virtually identical to the proposed rule we posted on last year. In essence, the rule would generally allow a union to be elected by a majority of votes cast, which is a significant change from the previous rule requiring a majority of all employees eligible to vote. The rule does not create a similar process for decert efforts.
Registration Open for 5th Annual Labor & Employment Law Colloquium
Registration is now open for this Fall's Annual Colloquium on Labor and Employment Law Scholarship to be held in St. Louis. The colloquium is being jointly sponsored by Saint Louis University and Washington University, and the dates are September 24-25, 2010.
From the web page:
The Colloquium, now in its fifth year, provides an opportunity for labor and employment law scholars to present works-in-progress and receive feedback from their colleagues in the field.
The colloquium will meet on Friday, September 24 and Saturday, September 25, and will be organized around panel presentations of papers in related areas. Topics will include issues in Employment Law, Employment Discrimination, Labor Law and Employee Benefits, including international and comparative work in these fields.
The St. Louis University Law Journal will publish a symposium issue in connection with the colloquium. Interested authors should submit their articles to the journal by December 1, 2010, and authors whose articles are chosen will be notified by February 1, 2011. More details on the submission process will be available at the colloquium.
If you would like to register and submit an abstract for a paper to be presented at the colloquium, please click here. The deadline for submission of abstracts is August 15, 2010.
St. Louis is pretty easy to get to, and there's lots of great stuff to do here. We don't have the conference hotel finalized yet, but that link will be added to the site very soon. We hope to see lots of you here!
Oregon Captive Audience Law Lawsuit Dismissed
As many of you know, I have worked with other law professors to protect the recently-enacted Oregon Workplace Captive Audience bill from invalidation by a Chamber of Commerce lawsuit. The Oregon law, SB 519, protects employees from being fired for not attending employer mandatory meetings on political, religious, or labor topics.
Friday, the district judge, dismissed the lawsuit in Association of Oregon Industries v. Avakian on non-substantive standing grounds. As Ross Runkel explains:
A federal judge on Friday dismissed a suit attacking Oregon's anti-captive audience law, which went into effect in January . . . .
A suit attacked the statute as being preempted by the National Labor Relations Act and on constitutional grounds. The suit was brought by local and national business groups.
A federal judge dismissed the suit Friday on the ground that the plaintiffs could not show any injury at this time.
Although this is an initial victory for supporters of this law, I am not all that sanguine just as of yet. I suspect that another legal challenge will be forthcoming as soon as an individual employee seeks to enforce the law. So stay tuned.
Bales Named as the 2010 Frank Sinton Milburn Oustanding Professor
It gives me great pleasure to announce the selection of our own, Professor Richard Bales, as the 2010 Frank Sinton Milburn Outstanding Professor at the University of Northern Kentucky. From the University press release:
Professor Bales is a faculty member of Chase College of Law. He is a leading innovator in the classroom, an accomplished scholar and mentor of student scholars, and a university citizen who gives generously of his time to student work, university service and public engagement in meaningful ways.
A member of the Chase faculty since 1998, Professor Bales not only advises a student organization and coaches competition teams, but also directs the Chase Center for Excellence in Advocacy and serves as advisory board chairman for the interdisciplinary NKU Alternative Dispute Resolution Center.
The law faculty marvel at the scope and depth of Professor Bales’ work across teaching, scholarship and service. Said one Chase colleague:
“. . . Professor Bales has routinely caused me to ponder how one human being can simultaneously be one of the most accomplished scholars, productive administrators and effective classroom teachers on the faculty. I still do not know how Professor Bales achieves at such high levels on many fronts; I only know that he does.”
In the classroom, Professor Bales combines traditional doctrinal instruction with experiential learning to ensure students are “practice ready” when they graduate. For example, he divides students in Civil Procedure into three groups - a mediation group, an arbitration group and a litigation group - and leads them through a series of semester-long simulation exercises on a case such as sexual harassment.
In Labor Law, Professor Bales creates a company with students in the role of employees and himself in the role of president. He then puts myriad obstacles in their path - e.g., firing union leaders and pitting employees against each other on a pay raise plan – and immerses them in the challenges of negotiating agreements in an atmosphere of multifaceted interests.
A more deserving individual there could not be. Equally remarkable, it is the first time any one from the law school has ever won this university-side award. Many kudos, Rick!
Recently Published Scholarship
- Charles A. Sullivan, The Puzzling Persistence of Unenforceable Contract Terms, 70 Ohio St. L.J. 1127 (2010).
- Michael Ashley Stine, Michael E. Waterstone, & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010).
- Sagrit Ziskind, The GINA: A New Look at an Old Problem, 35 Rutgers Comp. & Tech. L.J. 163 (2009).
May 9, 2010
Henry New SEIU President
The SEIU has just elected Mary Kay Henry to replace Andrew Stern as its president. Henry was a bit of a dark-horse early on, as the initial favorite for the post had been Anna Burger, the SEIU's Secretary-Treasurer. Henry has been a long-serving SEIU employee and is moving up from her position as head of the SEIU's health-care division. Early statements by Henry seem to indicate a continued presence in the political arena as a means to enhance the union's main goal--organizing. She also appears to be offering a fig leaf to other unions, with which the SEIU hasn't always had a good relationship.-JH
Top-10 Labor & Employment Recent SSRN Downloads
- Richard H. Thaler, Cass R. Sunstein, & John P. Balz, Choice Architecture (1038).
- Carola Frydman & Dirk Jenter, CEO Compensation (352).
- Amy Monahan (photo above), Public Pension Plan Reform: The Legal Framework (341).
- Robert Pikowsky & John A. Miller, Taxation and the Sabbatical: Doctrine, Planning and Policy (280).
- Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure (187).
- Mark C. Weber, Unreasonable Accommodation and Due Hardship (169).
- Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform (148).
- Robert Flannigan, Fact-Based Fiduciary Accountability in Canada (121).
- Randall S. Thomas & Harwell Wells, Executive Compensation in the Courts: Board Capture, Optimal Contracting and Officer Fiduciary Duties (120).
- Joseph Seiner & Benjamin Gutman, The New Disparate Impact (114).