Saturday, June 19, 2010

Solomon to be NLRB's Interim GC

NLRB Word of the street is that Lafe Solomon, longtime director of the NLRB's Office of Representation Appeals (the "R-Unit"), will serve as interim General Counsel.  There's no posting on the NLRB website yet, so it doesn't appear to be official.  Of perhaps more interest is who will be the new GC nominee and how long it will take to name him or her (never mind how long confirmation or a recess appointment will take).  On that, I have absolutely no information


June 19, 2010 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

4th Circuit Reverses SJ in SH Case

FMC-Logo Jon Harkavy sends us this link to EEOC v. Fairbrook Medical Clinic (4th Cir. 6-18-10), in which the Fourth Circuit reverses n employer's summary judgment grant in a case involving some fairly graphic sexual banter.  Of course, it's news any time the Fourth Circuit reverses a grant of summary judgment favoring an employer.


June 19, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, June 18, 2010

Slinn & Herbert on Electronic Voting

Slinn Herbert On the heels of signs that the NLRB is considering electronic voting, Sara Slinn (Osgoode Hall) & William Herbert (NY PERB, writing independently), have just posted on SSRN their new article, "New Technology and Representation Elections: Don’t Go Mistaking Paradise for Technology Across the Road."  The abstract:

Amid dialogue on amending labor certification procedures are calls for the adoption of internet, electronic and/or telephone representation voting (IETV) procedures in representation elections. To date, most labor relations agencies in the United States and Canada have not implemented IETV. Two notable exceptions are the National Mediation Board (NMB), and the United States Federal Labor Relations Authority (FLRA). This article explores strengths and weaknesses of IETV and the potential for wider adoption of this technology in the representation election context. The article examines the NMB’s rationale in adopting IETV, and its experience with this new election format. Insight from interview participants provides a fuller examination of the prospects and pitfalls of IETV than previous research. Preliminary investigation shows the primary rationale for adopting IETV is pragmatic administrative decision-making, rather than minimizing employer and union interference in voting. Findings also show that IETV has been adopted as a substitute for mail-ballot elections, and not as a replacement for on-site manual elections. These findings have implications for extending the adoption of IETV to other labor relations agencies. This article posits that while IETV is an important innovation in the representation electoral process, it is too early for universal adoption of electronic and telephonic voting without additional research and experimentation. In experimenting with IETV, the focus should be on determining whether IETV fulfills the fundamental purpose of a representation election: to accurately reflect whether or not employees in a unit wish to be represented by the applicant union. Moreover, in introducing IETV, an agency must explore new means of communicating with unit employees aimed at maximizing participation in the election process, including electronic notification announcing the election along with possible agency staff visits to the workplace to explain the IETV procedure. 

An important addition to this developing area, so check it out.


June 18, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Bullying at Wal-Mart

Wm The Advocate (as reported by Michelle Garcia), via David Yamada's Minding the Workplace, reports:

Back in March, 18-year-old Fernando Gallardo got a seasonal job at a Las Vegas Walmart, hoping to make a few extra dollars. But a few weeks into the job, Gallardo says, his immediate supervisor asked him “point-blank” in front of four of his coworkers if he was gay, and from then on alienated him from the 50 other associates at that location.

“I told her yes, and after that she was very rude and short with me,” he tells The Advocate.

Gallardo says that soon after the incident, he was stripped of many of his daily duties and asked to wear a yellow vest and walk around the store. By mid May his supervisor and two other managers stopped talking to him completely.

Yamada points out that "[p]ublic ridicule, tagging, the silent treatment, deliberate isolation, and removal of meaningful job duties are all classic bullying behaviors."


June 18, 2010 in Employment Common Law, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, June 17, 2010

Supreme Court Reverses Employees' Win in Texting Case (Quon)

Sct The Supreme Court today released City of Ontario v. Quon, in which the Court (in a unanimous decision, with Scalia concurring) held that the government employer's search of employee text messages was reasonable under the Fourth Amendment.  This was the case in which the employer got a private company to release employees full text messages because of their overuse of the texting plan.  Several messages were inappropriate and resulted in employee discipline. The Ninth Circuit held that this violated the Fourth Amendment, as looking at the full text messages--as opposed to merely the recipients' addresses--was not necessary to address the aim of the search.

The first important aspect of Quon is that the Court did not address whether the employees had a reasonable expectation of privacy in their texts. The Court assumed that they did because its analysis of the reasonableness of the search settled the issue.  In making this assumption, the Court emphasized that the rapid changes in technology and the norms that result from such changes have a big impact on this issue; thus, it was avoiding making a conclusive determination.  That's understandable, but unfortunate, as these type of issues are only going to increase, and it's not like the Court can't get a handle on the basic question at this point.  Maybe it just wants more development in the lower courts.

Second, having assumed a privacy interest, the Court held that the search was reasonable.  It was instigated for a work-related matter and--this is the potentially controversial aspect--looking at the full messages was not "excessively intrusive."  The Court seemed swayed by the fact that the employer only looked at a sample of messages sent while the employee was on duty.  No doubt the sexual nature of the texts didn't help either.

Finally, the Court implicitly approved of the O'Connor v. Ortega analysis, as Scalia's concurrence--reiterating his concurrence in Ortega that would implement a different analysis--didn't get any other justices to sign on.

My main conclusion is that this case mainly turns on the facts.  It seems to give employers a fair amount of leeway for searches, but that's not a surprise.  I predict that the Court will have to weigh in again later on the more precise contours of the reasonable expectation of privacy, although it seems reluctant to do so anytime soon.  So the normal warning continues to apply:  don't send anything electronic on work equipment without assuming that your employer is also reading it.

-JH & rb

June 17, 2010 in Labor and Employment News, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

NLRB Loses Two-Member Board Case (New Process Steel)

NLRB Hot of the presses is the Supreme Court's New Process decision.  In a 5-4 decision (with Stevens writing for a largely conservative majority and Kennedy writing for a largely liberal minority), the Court agreed with the employer that the NLRB had no authority to issue two-member decisions.  In the interest of getting the news out fast, I haven't had time to read the decision yet, but as I've said before, I think this is the correct result on the law although an unfortunate rejection of an admirable attempt by Liebman and Schaumber to get cases out. 

What remains to be seen is how the Board will deal with the now-vacated cases.  I'm assuming that a new three-member panel will look at all the cases again.  The Board may simply add either Member Becker or Pearce to a panel with Liebman and Schaumber, who have obviously given their opinion on the cases already.  This will obviously take some time, but given that these are noncontroversial cases, hopefully not too long.

Here is the full syllabus:

The Taft-Hartley Act increased the size of the National Labor Relations Board (Board) from three members to five, see 29 U. S. C. §153(a),and amended §3(b) of the National Labor Relations Act to increase the  Board’s quorum requirement from two members to three and to allow the Board to delegate its authority to groups of at least three members, see §153(b). In December 2007, the Board—finding itself with only four members and expecting two more vacancies— delegated, inter alia, its powers to a group of three members. On December 31, one group member’s appointment expired, but the others proceeded to issue Board decisions for the next 27 months as a two-member quorum of a three-member group. Two of those decisions sustained unfair labor practice complaints against petitioner, which sought review, challenging the two-member Board’s authority to is-sue orders. The Seventh Circuit ruled for the Government, concluding that the two members constituted a valid quorum of a three-member group to which the Board had legitimately delegated its powers.

Held: Section 3(b) requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.

    (a) The first sentence of §3(b), the so-called delegation clause, authorizes the Board to delegate its powers only to a “group of three or more members.”  This clause is best read to require that the delegee group maintain a membership of three in order for the delegation to remain valid. First, that is the only way to harmonize and give meaningful effect to all of §3(b)’s provisions: (1) the delegation clause; (2) the vacancy clause, which provides that “[a] vacancy in the Board of the powers of the Board” shall not impair the right of the remaining members to exercise all of the powers of the Board; (3) the Board quorum requirement, which mandates that “three members of the Board shall, at all times, constitute a quorum of the Board”; and (4) the group quorum provision, which provides that “two members shall constitute a quorum” of any delegee group. This reading is consonant with the Board quorum requirement of three participating members “at all times,” and it gives material effect to the delegation clause’s three-member rule. It also permits the vacancy clause to operate to provide that vacancies do not impair the Board’s ability to take action, so long as the quorum is satisfied. And it does not render inoperative the group quorum provision, which continues to authorize a properly constituted three-member delegee group to issue a decision with only two members participating when one is disqualified from a case. The Government’s contrary reading allows two members to act as the Board ad infinitum, dramatically undercutting the Board quorum requirement’s significance by allowing its permanent circumvention. It also diminishes the delegation clause’s three-member requirement by permitting a de facto two-member delegation. By allowing the Board to include a third member in the group for only one minute before her term expires, this approach also gives no meaningful effect to the command implicit in both the delegation clause and the Board quorum requirement that the Board’s full power be vested in no fewer than three members. Second, had Congress intended to authorize two members to act on an ongoing basis, it could have used straight-forward language. The Court’s interpretation is consistent with the Board’s longstanding practice of reconstituting a delegee group when one group member’s term expired.
    (b) The Government’s several arguments against the Court’s interpretation—that the group quorum requirement and vacancy clause together permit two members of a three-member group to constitute a quorum even when there is no third member; that the vacancy clause establishes that a vacancy in the group has no effect; and that reading the statute to authorize the Board to act with only two members advances the congressional objective of Board efficiency—are unconvincing.

Some thoughts:

The majority's decision boils down to its interpretation of the most consistent reading of 3(b).  Essentially, the Court held that the NLRB's interpretation, while perhaps having some textual support (or at least not wholly inconsistent with the text), is simply too weird to be the appropriate reading.  As noted in the syllabus above, the NLRB's argument would allow it--as it did here--to undermine the quorum and delegation clauses.  In short, it seems that Congress did not write 3(b) with the intent of allowing a semi-permanent two-member Board to continue issuing cases; rather, the two-member language was reserved for a recusal, death, or something similarly temporary (which the Court stated it's OK with, in footnote 6).  That basic argument is the one that has had me convinced all along.  It's too bad that Congress has put the Board in this position, but the main fault lies with the confirmation process (or lack thereof).

Footnote 4 raises--but does not address--whether delegations to the General Counsel or Regional Directors under similar circumstances are valid.  The reason is the Court's holding that a delegee groups ceases to exist once the Board no longer has three members.  If such delegations are ultimately deemed invalid, this would significantly broaden the impact of New Process.

The dissent takes a more practical view, essentially arguing that the text should be interpreted in a wat that doesn't undermine the policies of the NLRA (not issuing decisions tends to do that).  In other words, both the majority and dissent recognize that the NLRB's interpretation can be gleaned from the text; the majority rejects it because that interpretation is a more awkward fit, while the dissent accepts the NLRB's view because it is more consistent with the overarching policies of the NLRA (and also argues that it's more consistent with the text).

Also, not surprisingly, there was no discussion of the Second Circuit's Chevron deference argument.

Finally, the NLRB has issued a press release on the decision.

Hat Tip:  Justin Keith (who was one of the attorneys for the employer) & Amy Cocuzza


June 17, 2010 in Labor Law | Permalink | Comments (12) | TrackBack (0)

Symposium: Labor and Employment Law under Obama


Ken Dau-Schmidt and Indiana Law Journal will host, on November 12-13, 2010, the symposium “Labor and Employment Law under the Obama Administration: A Time for Hope and Change?”.  Here's the agenda:

  1. The Economic and Political Environment for Labor under Barak Obama: The Economy: Can Obama Bail Out Workers?
  2. Labor Law: Change in the Law Governing Employee Collective Rights?  (a) The Employee Free Choice Act: Prospects for Passage, Implementation and Impact.  (b) The Obama Board.  (c) Collective Bargaining in the Public Sector and Under The RLA Under Obama.
  3. Employment Law.  (a) The Arbitration Fairness Act: An Idea that’s Time has Come?  (b) Antidiscrimination Law under a Black President in a "Post-Racial" America?  (c) Bridging the Divide: The Significance of a Mixed Race President to the Enforcement of Anti-Discrimination Laws.


June 17, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Kim on GINA

KimP4 Pauline Kim (Wash. U.) has just posted on SSRN her article (forthcoming 31 Comparative Labor L. & Policy J.) Regulating the Use of Genetic Information: Perspectives from the U.S. Experience.  Here's the abstract:

This essay comments on an empirical study documenting the policies, practices, and attitudes of Australian employers regarding the use of genetic information from the U.S. perspective. The U.S. Congress recently enacted the Genetic Information Nondiscrimination Act of 2008 (GINA), which, among other things, prohibits employment discrimination on the basis of genetic information and restricts employers’ access to their employees’ genetic information. Just as the Australian study found no evidence of systematic use of genetic testing or screening by employers, GINA was passed in the absence of any evidence of widespread employment discrimination on the basis of genetic characteristics. Although it is too early to evaluate the effectiveness of GINA’s employment provisions in preventing genetic discrimination, an examination of the history and language of the statute offers some insights concerning the possibilities and challenges involved in regulating the use of genetic information in the workplace. This examination suggests that relying solely on an anti-discrimination framework is likely to be inadequate; the key to preventing misuse of genetic information by employers will be creating robust privacy protections. Fully restricting the flow of genetic information, however, poses a number of challenges for regulators.


June 17, 2010 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Gely & Chandler Post Empirical Study of Card Check

Gely  ChandlerRafael Gely (Missouri) and Tim Chandler (LSU Business School) have just posted on SSRN their article Understanding Card-Check Organizing: The Public Sector Experience.  This is the latest in their series of empirical studies of workplace matters.  Here's the abstract of their article:

The use of “card checks” as a method of union organizing has recently garnered considerable attention, much of it surrounding the proposed Employee Free Choice Act. The proposed legislation seeks to amend the National Labor Relations Act by requiring employers to recognize a union when the employer is presented with evidence of majority support for union recognition via card checks. Despite this recent interest in card checks, there is little empirical research on the topic due, in part, to the lack of available data. Although card-check organizing in the private sector is not rare, such organizing is voluntary, and does not require government approval. Thus, there is little data chronicling the frequency of such events. However, card-check legislation has become increasingly common among public employees at the state and local levels. In this article, we draw upon the public sector experience to help fill the gap in our understanding of card-check organizing. In particular, the article explores card-check organizing by public sector employees in Illinois which has allowed card-check organizing since 1983, but which in 2003 amended its statute to require employers to recognize unions on the basis of card checks, and Ohio which also has allowed card-check recognition to occur since 1983, but has not passed legislation requiring card-check recognition. An analysis of public sector organizing activity in Illinois before and after the law was changed, allows us to identify the effects of changes in the law and to explore the possible implications in other contexts. Moreover, by comparing the Illinois’ experience to that of Ohio, we can more fully understand the extent to which both the presence and absence of card check legislation may have affected organizing activity. The experience of these two states provides us with a natural experiment on the effects of public sector card check legislation on organizing activity.

We use data collected from state labor relations agencies in Illinois and Ohio to examine the overall levels and patterns of organizing activity in both states during the period under study (1998-2008), as well as specific contextual conditions associated with organizing activity in the two states. Our data show that in Ohio, where card-check recognition is voluntary, elections run by the state labor agency have been the predominant means of organizing new members. That was also the case in Illinois until 2003, when mandatory card-check legislation was enacted. Since then, the overwhelming majority of organizing has occurred via the mandatory card-check provision. Moreover, cross-sectional (i.e., Illinois and Ohio) and time-series (i.e., pre and post card check legislation in Illinois) comparisons of various contextual characteristics associated with organizing activity provide a more complete picture of the effects of the Illinois’ legislation. For part of our analysis, we use a methodological technique known as Qualitative Comparative Analysis (“QCA”) to identify combinations of conditions that are distinctively associated with the use of either card-checks or elections. We find that the Illinois’ legislation not only facilitated the ability of unions to organize, but also that unions responded by shifting to card checks as their primary means of organizing under certain contextual conditions and by expanding their organizing activity into different contexts.


June 17, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 16, 2010

Workplace Flexibility Case Study

Asu_logo Arizona State's work-life clinic recently wrote a case study of Arizona and Michigan' workplace flexibility policies.  The project is sponsored by TWIGA Foundation and the Sloan Center of Aging and Work and stresses the need to support flexible work arrangements, time off, and career flexibility. From the study's conclusion:

In conclusion, both Arizona and Michigan have the potential to bolster their status as states as employers-of-choice. Both states have achieved a flexible workplace with strong executive leadership throughout the state workforce’s management levels, and the support and use of flexible work arrangements, time off, and career flexibility to address emerging problems and changing demographics. Supported by the states’ existing legal frameworks, Arizona and Michigan have become models for creating and implementing flexibility for a dynamic and aging workforce. Indeed, Arizona and Michigan demonstrate that developing and continuing workplace flexibility programs requires a coordinated plan of awareness, assessment, and action. It involves a thoughtful response to societal problems, such as a down economy in Michigan and environmental crises in Arizona and strong voices like Governor Granholm’s in Michigan and Governors  Symington’s, Hull’s, Napolitano’s and Brewer’s in Arizona. It requires “buy in” from managers who need to support, educate, implement, and know how to use new and creative ways to utilize existing laws for the benefit of the state as an employer and employees.

This report demonstrates that Arizona and Michigan have certainly come a long way in offering workplace flexibility to address the aging workforce and support all generations of state workers at their various life cycle stages. Nonetheless, as employers-of-choice, Arizona and Michigan must remain committed to a continued awareness of the existence and impact of changing demographics, continued assessments of the state responses to these changing factors, and take further action when necessary. By operating within existing legal frameworks and following this States as Employers-of-Choice model, these states can create a win-win-win situation for workplace flexibility that benefits employees, the state as an employer, and communities at large.


June 16, 2010 in Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Electronic Voting in NLRB Elections?

NLRB Last week, on the Federal Business Opportunities website, the NLRB issued an announcement that reads in relevant part:

The National Labor Relations Board (NLRB) is seeking industry solutions regarding the capacity, availability, methodology and interest of industry sources for procuring and implementing secure electronic voting services both for remote and on-site elections.  This Request for Information (RFI) is for industry comments only and is not a Request for Proposals.   The Government will not pay for any information provided in response to this RFI. . . . .

The NLRB received 3,400 petitions in representation cases and conducted 2,085 elections in fiscal year 2008.  Approximately 150 of these elections were conducted through the use of mail ballots.  In the remainder of the elections, employees cast manual ballots in portable voting booths at designated sites, typically employer facilities.

Information Sought:

The NLRB's requirements are for the acquisition of electronic voting services to support conducting secret-ballot elections to determine representation issues.  Specifically, the Agency requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections; and that has demonstrated experience in protecting similar type elections from both deliberate misconduct and simple error.  With respect to electronic voting capabilities, the Agency specifically requests information, to the extent available, relating to what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion.  The Agency also requests, to the extent available, information relating to experience regarding the level of participation achieved through remote electronic voting technology (vs. traditional on-site elections, whether manual or electronic).

The combination of the NLRB's continuing technological modernization, the numerous locations and size of offices, and varying end-user competency levels may add complexity to the electronic voting services solution. 

Obviously, this is still very early in the NLRB's consideration of electronic voting, but it's a clear sign that they're thinking about it.  Stay tuned.

Hat Tip:  Rob Walkowiak


June 16, 2010 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 15, 2010

State Antidiscrimination Statutes Apparently Protect Employers, at Least in Texas


Anybody who practices employment law is familiar with the ways that many state and federal laws overlap, and the resulting puzzle that creates for questions of liability. One of these was the subject of Waffle House, Inc. v. Williams, an opinion issued by the Texas Supreme Court late last week. The plaintiff in that case had sued Waffle House for sexual harassment and the negligent supervision and retention of the employee who harassed her. She also sued the employee for assault.

After a jury found in her favor, Williams elected the remedies of the common law claim, which allowed for greater damages. She was awarded $425,000 in compensatory damages and the same amount in punitives (reduced from the $3.24 million the jury awarded). Waffle House appealed and argued that the common law claim was preempted by the Texas Civil and Human Rights Act. The Texas Supreme Court agreed. 

Although statutory remedies are presumed to supplement and not preempt common law remedies, the court held that the system created by the act was so elaborate that it did preempt the common law here to the extent the facts supporting the underlying claim were intertwined with those that would support the statutory claim. From the opinion: 

If Williams’ common-law claim for negligent supervision and retention is allowed to coexist with the statutory claim, the panoply of special rules applicable to TCHRA claims could be circumvented in any case where the alleged sexual harassment included even the slightest physical contact. In any such case, the plaintiff could claim that a physical contact, even if not actionable as statutory sexual harassment, and even if not normally actionable as a common-law battery, was “offensive or provocative” because it occurred in the context and course of the coworker’s sexual harassment of the plaintiff. The statutory requirements of exhaustion of administrative remedies and the purposes behind the administrative phase of proceedings, the relatively short statute of limitations, the limits on compensatory and punitive damages, the requirement that the plaintiff prove an abusive working environment, and all other special rules and procedures governing the statutory sexual-harassment claim could be evaded in any case where any physical contact between the plaintiff and the coworker occurred.

In other words, the Texas Legislature imposed a more limited set of remedies and a more cumbersome process when the underlying tortious conduct led to sexual harassment or other discrimination. 

While this holding is consistent with prior Texas Supreme Court cases (City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 2008), concerning the incompatibility between the act and the Texas Whistleblower Act, and Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004), holding that the act preempted an intentional infliction emotional distress claim), it seems to me to minimize the harm that discrimination causes. Maybe it simply highlights the fact that legislatures (at least the Texas legislature) don't see discrimination as something as harmful as other types of negligence or intentional misconduct. That seems a somewhat dubious proposition, as the dissent noted. But perhaps instead, it simply means that the legislature meant to penalize individuals more harshly than businesses. Either way, it's kind of disturbing on a normative level, at least to me.


June 15, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

NLRB's Meisburg Issues Report on 10j Injunctions

Meisburg National Labor Relations Board General Counsel Ronald Meisburg reports that 112 injunction proceedings were authorized under Section 10(j) during his four-and-a-half years on the job. The Board seeks injunctions from the federal courts in certain cases to preserve the rights of employees during sometimes-lengthy Board administrative proceedings.  A Board press release states:

According to [Meisburg's R]eport (available here, with appendices), injunctions were most commonly sought in cases in which an employer interfered with organizing campaigns, withdrew recognition from an incumbent union, undermined a bargaining representative, or refused to recognize a union that already existed in a workplace that was purchased.  The agency won injunctions in 42 cases and lost in 12 others. Another 40 cases were settled before or after the petition for injunction was filed, 14 were not filed or withdrawn, and four are pending.

It is traditional for General Counsels to report on injunction activity at the end of their terms. Mr. Meisburg, whose term began in January 2006, leaves office at the end of this week....  In the report he noted, “The 112 authorized cases do, in my view, represent an active and vital 10(j) program and, given intake, merit factor and settlement rate differences, is quite high in historical comparison with other four year periods.”


June 15, 2010 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Workplace Bullying Karma?


Reports are now coming out that Meg Whitman, current California gubernatorial candidate and former eBay CEO, shoved a former employee.  Whitman's campaign claims it was just a verbal altercation, but while the initial reports suggested that she shoved an employee.  If it was just a verbal altercation, I'd love to hear what she said, because there was apparently a settlement with the employee for about $200,000.

It's unclear what, if any, political consequences this will have.  But it's at least a good example of the type of bullying that can occur at work.


June 15, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Doorey on Decentring Labour Law

D_doorey David Doorey (York University) has posted on SSRN his new piece: Decentring Labour Law.

Here is the abstract:

Workplace law has always been “decentred”, in the sense that it has rarely relied exclusively on “command and control” style regulation. Governments have long recognized the usefulness of harnessing private actors (like the “public” and unions) towards achieving employment policy goals. In one sense, therefore, contemporary scholarship on decentred regulation, or “New Governance”, might be perceived to have little to offer labour and employment law scholars. On the other hand, there may be some useful insights in this literature towards the challenge of reforming a North American labor law model based in mid-twentieth century thinking. This paper explores this potential by proposing a fundamentally different way of thinking about the contemporary objective of the Wagner model in North America. The paper considers a novel proposal for workplace law reform that involves harnessing the threat of unionization to influence the management decision-making matrix in ways that might encourage firms to improve compliance with employment-based statutes while, at the same time, carves out a potentially useful new role for union organizers and worker advocates. 

David's piece adds an interesting international perspective to the increasing calls for workplace law reform based on the new governance model.

Check it out.


June 15, 2010 in International & Comparative L.E.L., Scholarship | Permalink | Comments (1) | TrackBack (0)

Call for Papers: Law and the Deaf / Hard-of-Hearing Communities

Valpo Josh Reece, Editor-in-Chief of the Valparaiso Law Review, writes to encourage submissions to his journal's forthcoming issue that will be dedicated to Disability Law topics.  The primary focus of the issue will be on how the law relates to the Deaf and Hard-of-Hearing communities.  Here's a summary:

Our goal for putting together this issue is twofold.  First, research into current legal scholarship reflected a relatively minimal amount of writing dedicated to these communities.

There is no reason for this as the legal issues that affect the Deaf and Hard of Hearing community are intriguing and deserving of both practical and theoretical reflection.  Second, we would like this issue to serve as a sort of “sourcebook” for those who practice, write, and research in this area of the law.

Attached is a list of Suggested Topics that our Executive Board has worked hard to compile.  If you are interested in contributing to this issue, please browse through the list, select a topic (or even your own that you feel may be timely), and then submit an abstract of your contribution.  I would ask that all abstracts are submitted to me no later than Wednesday, June 30th.  Invitations to write will be sent out within the next week.

I realize that this is a rather short time to contemplate contributing an article to our Law Review.  However, the sooner we are able to reply with invitations, the longer you would have to research and write an article.  If you have a strong interest but cannot complete an abstract by the above date, please contact us and we will do our best to work with you.

The publication goal for this proposed Issue is currently March 2011.  In order to meet this date, all articles would have to be completed and sent in by October 8th.  While these dates have some flexibility, they are necessary to maintain the current publication schedule.


June 15, 2010 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: BJELL

Flex Berkeley Journal of Employment and Labor Law
Volume 30, Number 2 (2010)




  • John A. Durkalski, Fixing Economic Flexibilization:  A Role for Flexible Work Laws in the Workplace Policy Agenda, p. 381.
  • Hila Shamir, Between Home and Work:  Assessing the Distributive Effects of Employment Law in Markets of Care, p. 404.
  • David J. Walsh, Small Change:  An Empirical Analysis of the Effect of Supreme Court Precedents on Federal Appeals Court Decisions in Sexual Harrassment Cases, 1993-2005, p. 461


  • Judge Marsha Berzon, A General Theory of the Collective Bargaining Agreement at 35, p. 526


June 15, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 14, 2010

Recently Published Scholarship: J. College & University Law


Journal of College and University Law
Volume 36, Number 2, 2010

  • Peter F. May, Common Legal Issues When Employing Staff in Support of Overseas Academic Programs, p. 399.
  • Kevin Cranman & Natasha Baker, Where in the World are Your Employees?  Institutions as Global Employers:  Employment Law Considerations in the Age of International Programs, p. 565.
  • Josh Rinschler, Students or Employees?  The Struggle Over Graduate Student Unions in America's Private Colleges and Universities, p. 615.

June 14, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Shout Out to the New Wisconsin Labor and Employment Law Blog

Enochs Welcome to Randy Enochs, a partner at the Seifert Law Center in Milwaukee, and his new blog: Wisconsin Labor and Employment Law Blog

Randy has been a long time blogger and it will be great to have someone in my own backyard covering all the legal happenings in Wisconsin workplace.  


June 14, 2010 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Recently Published Scholarship


  • Aaron A. Dhir, Towards a Race and Gender-Conscious Conception of the Firm: Canadian Corporate Governance, Law, and Diversity, 35 Queen's L.J. 569 (2010).
  • Kevin Kolben, A Development Approach to Trade and Labor Regimes, 45 Wake Forest L. Rev. 355 (2010).
  • Edward Gresser, Labor and Environment in Trade Since NAFTA: Activists Have Achieved Less, and More, Than They Realize, 45 Wake Forest L. Rev. 491 (2010).
  • Dale Larson, Antidiscrimination Law in the Workplace: Moving Beyond the Impasse, 9 U. Maryland L.J. of Race, Religion, Gender, & Class 303 (2009).
  • Sarah L. Fabian, Garcetti v. Ceballos: Whether an Employee Speaks as a Citizen or as a Public Employee -- Who Decides?, 43 U.C. Davis L. Rev. 1675 (2010).
  • Christine Moore, The PDA Fails to Deliver: Why Nalco and Wallace Cannot Coexist, and a New Standard for Defining "Related Medical Condition", 44 U. San Francisco L. Rev. 683 (2010).
  • Jessica Morreale, DR-CAFTA: The Siren Song for Improved Labor Standards for Haitians in the Dominican Republic, 44 U. San Francisco L. Rev. 707 (2010).
  • Elissa Stone, How the Family and Medical Leave Act Can Offer Protection to Domestic Violence Victims in the Workplace, 44 U. San Francisco L. Rev. 729 (2010).

June 14, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)