Friday, December 3, 2010
Congratulations to Colin Fenwick (Melbourne L.S.) and Tonia Novitz (U. Bristol) on the publication of their book Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, Oxford, 2010). Here are the publisher's notes:
Concerns associated with globalisation of markets, exacerbated by the 'credit crunch', have placed pressure on many nation states to make their labour markets more 'flexible'. In so doing, many states have sought to reduce labour standards and to diminish the influence of trade unions as the advocates of such standards. One response to this development, both nationally and internationally, has been to emphasise that workers' rights are fundamental human rights. This collection of essays examines whether this is an appropriate or effective strategy.
The book begins by considering the translation of human rights discourse into labour standards, namely how theory might be put into practice. The remainder of the book tests hypotheses posited in the first chapter and is divided into three parts. The first part investigates, through a number of national case studies, how, in practice, workers' rights are treated as human rights in the domestic legal context. These ten chapters cover African, American, Asian, European, and Pacific countries. The second part consists of essays which analyse the operation of regional or international systems for human rights promotion, and their particular relevance to the treatment of workers' rights as human rights. The final part consists of chapters which explore regulatory alternatives to the traditional use of human rights law. The book concludes by considering the merits of various regulatory approaches.
The publisher has graciously agreed to give readers of Workplace Prof Blog a 20% discount on orders of the book. To receive the discount, type ‘HRW’ in the special instructions field when ordering online. The discount will not show up on the order confirmation but will be applied when the order is processed.
Congratulations to Mitch Rubinstein (Adjunct Prof Blog) on the publication of his article, in the New York State Bar Journal, A Peek at New York Defamation Law, 82 N.Y.S. Bar J. 58 (Nov./Dec. 2010). This article is a primer on the law of defamation in New York. The article discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth & opinion, as well as the different types of privileges that may apply.
If you're looking for a new intentional infliction of emotional distress example for class, this is it. The Utah Supreme Court, in Hudgens v. Prosper, just allowed a suit to continue alleging IIED, among other claims. The facts underlying this claim? The plaintiff claimed that during a work retreat, a supervisor--as part of a "motivtional excerise"--waterboarded the plaintiff (i.e., made other employees hold the plaintiff down while the supervisor poured water over his nose and mouth).
What's amazing about the case is that the trial court dismissed the plaintiff's suit for failure to state a claim. The Supreme Court reversed solely because of the trial court's lack of reasoning for its decision, so it's possible that the trial court will do the same thing and simply add some justification for the decision (what that could be, I don't know).
Hat Tip: Dennis Walsh
The Department of Labor has released its November employment data and they are disappointing. Contrary to predictions of large job gains (or about 150,000), there were only a net of 39,000 jobs added. Moreover, the unemployment rate went up .2 points to 9.8%. The private sector added 50,000 new jobs (many of which were temporary), while the public sector lost 11,000. We'll see if December provides any better news.
Nicole Porter (Toledo) has just posted on SSRN her book reveiew (forthcoming 20 Cornell J. L. & Pub. Pol. 2011) Relieving (Most of) the Tension: A Review Essay of Samuel R. Bagenstos, Law & the Contradictions of the Disability Rights Movement. Here's the abstract:
In this Review Essay, I reveal the considerable contribution made by Professor Samuel Bagenstos in his book, Law & the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, while worthwhile and therefore worth preserving and reinforcing, has limitations that cannot be overcome simply by amending the ADA. Instead, Bagenstos argues that we need to explore social welfare interventions and we need to tailor them in such a way as to avoid “unnecessary paternalism and dependence.”
While Bagenstos does an admirable job exploring and suggesting solutions to most of the tensions in the disability law area, the one that he does not explore is a conflict that I believe will be pivotal as courts begin deciding cases after the ADA Amendments Act of 2008. Because the Amendments have made it easier for individuals to pass the threshold issue of coverage, more courts will be forced to analyze the underdeveloped reasonable accommodation provision in the ADA. Many of these cases will involve the tension that arises when the accommodation needed by an individual with a disability conflicts with the rights or interests of other employees in the workplace. This Review will discuss this conflict, exploring a resolution that draws support from the lessons learned in Bagenstos’s book, while infusing the discussion with a communitarian influence.
Thursday, December 2, 2010
The NY Times has an article today exploring the not unsurprising fact that the longer an individual is unemployed, the more difficult it is to find a job--even controlling for other factors. Given what looks to be a relatively small, core group of long-term unemployed individuals, this raises the prospect that many of these people will be unable to escape the long-term harm associated with their lack of employment. Part of the problem is that although layoffs have not been that numerous for a while, new hiring has been largely stagnant. This makes tomorrow's employment numbers all the more interesting, as well as the next month's numbers, especially given what looks like good retail sales thus far during the holiday season.
We blog here occasionally on military issues because the military is a workplace, after all, even if it is an unusual and unusually dangerous one. Despite that, I have to admit that I never expected to see a call for greater workplace flexibility in the military by the Department of Defense. From a press release earlier this week,
Recognizing and finding ways to accommodate the changing needs of servicemembers and their families with regard to the military workplace should be a priority for leaders, the chairman of the Joint Chiefs of Staff said here yesterday.
Navy Adm. Mike Mullen spoke as part of a panel on work and life balance at the Alfred P. Sloan Foundation’s Focus on Workplace Flexibility Conference.
The audience was composed of more than 100 government, military and business leaders.
“The ability to be the best we can be and carry out our missions is so central to our focus on our people, … but more than our people, our families,” Mullen said, “and while we’ve made significant strides, we still have a long way to go.”
Allowing flexible options that affect the number of hours worked and the places where employees work is one way leaders can help in providing balance between work and family life, the chairman said, citing flex time and compressed work weeks, part-time work, job sharing and teleworking as examples.
While the press release goes on to focus primarily on women servicemembers, the issue is also framed as important for military families. And current working conditions in the military highlight the importance of flexibility for men, too, Men have families, and there are human limits that long, repeated deployments, or long hours with no down time can sorely test. Recognizing those limits and the need for flexibility is good for the servicemembers, good for their families, good for performance, and good for overall military readiness.
Jason Zuckerman alerts us that the Employment Law Group’s Whistleblower Law Blog has a complete report on the robust whistleblower protection provision enacted earlier this week by the Senate as part of the food safety bill. Here's a brief excerpt:
To ensure that workers can disclose food safety concerns without fear of reprisal, Congress included in the FMSA a robust whistleblower protection provision (Section 402) that protects workers engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food. .... Section 402 applies to any entity “engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” The FSMA prohibits retaliation against an employee who has:
- provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
- testified or is about to testify in a proceeding concerning such violation;
- assisted or participated or is about to assist or participate in such a proceeding; or
- objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.
Beverly Cohen (Albany) has just posted on SSRN her article (George Mason L. Rev.) Saving the Savings Clause: Advocating a Broader Reading of the Miller Test to Enable States to Protect ERISA Health Plan Members by Regulating Insurance. Here's an excerpt from the abstract:
ERISA’s broad preemption of state laws relating to employee benefit plans, with regard to health plans in particular, prevents states from regulating these plans even though ERISA itself provides almost no substantive regulation of their provisions. This has permitted insurance companies to largely control the terms of ERISA health benefit plans that provide coverage through the purchase of insurance....
While ERISA clearly precludes states from regulating self-insured health benefit plans, its “savings clause” saves from preemption states’ regulation of insurance.... In 2003 in Kentucky Association of Health Plans, Inc. v. Miller, the United State Supreme Court devised a new test to determine savings, relaxing the requirements to save a greater range of state insurance laws. However, due to the test’s rather confused language, federal courts have continued to deliver inconsistent rulings as to whether particular state laws are saved from preemption. The unfortunate result is that state laws that legitimately regulate the relationship between insurers and insureds continue to be wrongfully preempted, depriving countless ERISA plan members of the state law protections that should be available to them.
This Article argues for a broader reading of the Miller savings test, in keeping with the intent and expansive language of ERISA’s savings clause. Applying Miller to give full effect to the savings clause will unbind the states to indirectly regulate insured ERISA health benefit plans via their traditional role of regulating insurance business conducted within the states’ borders.
Wednesday, December 1, 2010
Bill McMahon of the Constagny firm in North Carolina writes to let me know about the new blog his firm just launched: Employment and Labor Law Insider. The subtext of the blog is: "Legalese is not Spoken Here."
The blog features the labor and employment law musing of Robin E. Shea, from primarily a management-side perspective.
We welcome them to the little family of blogs that cover workplace law. Check them out!
Julia Bredtmann (RWI & U. Bochum) & Sebastian Otten (RWI & U. Bochum) have posted on SSRN their article Getting What (Employers Think) You’re Worth – Evidence on the Gender Gap in Entry Wages among University Graduates. Here's the abstract:
Since the early 1970s, wage differentials between men and women have attracted the research interest of labor economists. However, up to now empirical evidence on gender differentials of labor market entrants and the determinants of their starting wages is scarce. To fill this gap, we make use of a unique dataset on graduates in economics from a large representative German university, to investigate whether – even for such a homogeneous group of labor market entrants – a gender gap in earnings exists. Concentrating on a highly homogeneous sample limits the problem of unobserved heterogeneity, which results in an overestimation of the unexplained component of standard decompositions analyses. The results reveal that women’s entry wages are significant lower than those of their male counterparts. Blinder-Oaxaca decompositions suggest that the major part of this gap remains unexplained by gender differences in observable characteristics.
- Katherine Lippel, The Law of Workplace Bullying: An International Overview, p. 1.
- Joan Squelch and Robert Guthrie, The Australian Legal Framework for Workplace Bullying, p. 15.
- Rachel Cox, Psychological Harassment Legislation in Quebec: The First Five Years, p. 55.
- Diego Lopez Fernandez, Legal Protection for Victims of Workplace Harrassment in Chile, p. 91.
- Loic Lerouge, Moral Harassment in the Workplace: French Law and European Perspectives, p. 109.
- Philipp S. Fischinger, "Mobbing": The German Law of Bullying, p. 153.
- Manuel Velazquez, The Spanish Code of Practice on Work-Related Bullying: Reflections on European Law and Its Impact on a National Strategy for Labor Inspectors, p. 185.
- Helge Hoel & Stale Einarsen, The Swedish Ordinance Against Victimization at Work: A Critical Assessment, p. 225.
- David C. Yamada, Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment, p. 251.
- Leonard J. Schoppa, reviewed by Harald Conrad, Race for the Exits: The Unraveling of Japan's System of Social Protection, p. 285.
- Ronald C. Brown, reviewed by Li-chuan Liuhuang and Felix Chengliang Chen, Understanding Labor and Employment Law in China, p. 289.
- Hans-Werner Sinn, reviewed by Margitta Matzke, Can Germany be Saved? The Malaise of the World's First Welfare State, p. 293.
- Dani Filc, reviewed by Dana R. Vashdi, Circles of Exclusion: The Politics of Health Care in Israel, p. 299.
Hiro N. Aragaki (Fordham Business School) just posted on SSRN his article (U. Pa. 2010) Arbitration's Suspect Status in which he analyses arbitration law from an antidiscrimination perspective. Here's the abstract:
Concerned about abuses of power in the arbitration area, state legislatures have stepped up efforts to regulate arbitration agreements. But under the U.S. Supreme Court’s Federal Arbitration Act ("FAA") jurisprudence, such measures are uniformly preempted, resulting in what one scholar has described as "federal imperialism" in an area of law traditionally reserved for the states. This has led to numerous calls for reform, including the controversial "Arbitration Fairness Act" currently pending in Congress.
Under the Constitution’s Supremacy Clause, the FAA should preempt only state laws that stand as an "obstacle" to its purpose. The traditional understanding of that purpose is to enforce arbitration agreements as written. In this Article, I offer a different interpretation of that purpose as one of anti-discrimination: of reversing centuries of "judicial hostility," pursuant to which courts refused to honor pre-dispute arbitration agreements in quite the same way they did other contracts. If I am correct, the FAA should preempt only those state laws that can be said to discriminate improperly against arbitration. Many courts, scholars, and practitioners have lent credence to this theory, but this is the first article systematically to develop it.
This is the first of two works in which I use anti-discrimination law and theory as a lens to critique the Court’s FAA preemption jurisprudence and to develop a more sophisticated approach - one that is better at reconciling the states’ regulatory interests with the "national policy favoring arbitration."
Tuesday, November 30, 2010
A couple of weeks ago, the House Committee on the Judiciary's Subcommittee on Constitution, Civil Rights, and Civil Liberties held a hearing on the report of the President's Advisory Council on Faith Based Initiatives. The subcommittee had asked the White House and DOJ to send a representative to testify about the recommended reforms, but no one showed up.
Apparently, the committee was a little offended by the no-show. They sent a letter to AG Holder, asking him or his designee to come to a follow-up hearing to be scheduled after the end of this week. In part, the letter asks this:
In particular, we would like to hear from the Department on the issue of whether religious organizations may make religion-based employment decisions while receiving federal funds. As you undoubtedly are aware, the president asked his Advisory Council not to consider this issue, and the administration has said that it is conducting its own evaluation. This is an issue of importance to subcommittee members from both political parties, to many of our constituents and to the American public. It is unacceptable – and flatly inconsistent with the president’s pledge of greater transparency – that the Department of Justice has not made its position clear to the Congress or to agencies and partnering organizations who must understand and comply with the law.
This is a very important issue, but it's also understandable that the administration would not want to touch it with a ten-foot pole at the moment. Coming down on one side risks a potential free exercise problem (although faith based organizations don't have to take federal funds), and coming down on the other risks a different free exercise or establishment clause problem. I'm not a First Amendment expert, but I'm not sure that a principled distinction can be drawn between actions taken as an employer and the delivery of services provided to the community. Presumably it is not controversial that faith based organizations can't discriminate in their delivery of services on the basis of religion if they receive federal funds to deliver those services. Why then might they be allowed to discriminate on the basis of religion in choosing who can deliver those services. At the same time, the organizations shouldn't have to hire people who don't support the mission of the organization, at least in broad terms. I guess it seems to me that support of the mission, phrased neutrally with regard to religion, should be the touchstone.
In any event, we'll have to see if the administration complies with this strongly worded letter.
[Sutton] talks about a study of drug treatment errors in hospital nursing units. The most efficient and safest units reported 10 times more drug errors than the least efficient and unsafe units. Yes, you read that right. Sutton writes: "This tenfold difference in reported errors was due to psychological safety, not the actual error rate. Nurses with good bosses felt safe to admit mistakes, nurses with bad bosses avoided reporting errors because doing so provoked humiliation and retaliation." My take: You can't fix what you don't know is broken, and you won't know what's broken unless an employee tells you. A candid and transparent culture makes a manager stronger, not weaker.
Michael Fox over at Jottings by an Employer's Lawyer has a terrific post on the recent surge in disparate impact claims based on applicants' credit histories, and on the creative use of the web by plantiffs' atorneys to identufy potential clients.