Thursday, February 11, 2010

Outlook Not So Good Becker Recess Appointment

Becker Nothing is by any means clear at this point, but the following post by the Work In Progress blog, and especially its link to this White House statement, doesn't point to a recess appointment for Craig Becker.  Labor is not likely to be very happy, so much so that I don't feel confident saying a recess appointment won't happen for Becker until it's official.  But I sure wouldn't bet on it at this point.

Also, here's a reminder that the remaining two NLRB appointees (Pearce and Hayes) may have to be approved together or face another Republican block.  I'm not sure if the Democrats would bother just keeping the NLRB at an even 2-2 political split; we may stay in a holding pattern until a new 3rd Democratic Board member can be nominated (although having a 2-2 split is a lot better than a 1-1 split).

On the other hand, more recent reports suggest that a Becker recess appointment isn't ruled out yet.  Like I said above, you can't assume anything until it's official.

Hat Tip:  Patrick Kavanagh


February 11, 2010 in Labor Law | Permalink | Comments (6) | TrackBack (0)

The DOL's Progress

DolThere are some great new things on the Department of Labor's website. I visited it earlier today and what should greet me but Deputy Secretary Seth Harris' smiling face on a link to a video in which he gives a progress report on the DOL's regulatory agenda. There are several other videos and links to archived web chats with Secretary Solis. Lots of great stuff.

In addition to that, there's a link to the DOL's open government page, where it provides the link to data that was required by the Open Government Directive.

I love the transparency that compliance with the Directive is bringing to the labor and employment agencies. The DOL has always been pretty good, particularly the Bureau of Labor statistics, but it's even better now. My hope is that people take advantage of these opportunities to learn more about the agencies and their efforts.


February 11, 2010 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Call For Papers For The Marco Biagi Award

Conf Matt Finkin (Illinois) brings to our attention a CALL FOR PAPERS FOR THE MARCO BIAGI AWARD.

Here is the announcement:

To stimulate scholarly activity and broaden academic interest in comparative labor and employment law, the International Association of Labor Law Journals announces a Call for Papers for the Marco Biagi Award. The award is named in honor of the late Marco Biagi, who not only made enormous contributions to Italian labor law and to the study of comparative labor law, but who founded the Association:

1. The Call is addressed to doctoral students, advanced professional students, and academic researchers in the early stage of their careers.

2. The Call requests papers concerning comparative labor or employment law and     employment relations, broadly conceived. Research of an empirical nature within the Call’s purview is most welcome.

3. Submissions will be evaluated by an academic jury to be appointed by the Association.

4. Papers accepted by the jury will be assured publication in a member journal.

5. Papers may be submitted in English, French, or Spanish. The final version should not significantly exceed 50.000 types spaces which amounts to twenty printed pages.

6. The author or authors of the papers selected by the jury will be invited to present the work at the Association’s 2010 meeting in the United Kingdom. Efforts are being undertaken to attach an honarium and travel expenses for the presentation of the paper. Until that effort bears fruit, however, the Association hopes that home institutional funds would be available to support the researcher’s presentation.

7. The deadline for submission is March 31, 2010. Submissions should be transmitted electronically via the Comparative Labor Law & Policy Journal at and Lavoro e diritto at or

Sounds like a great program, submit away!


February 11, 2010 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

The Costs of Staying Home Sick

Sick The New York Times' Economix has a post by economist Nancy Folbre today on the costs of not having sick leave.  As is no surprise to readers, a lot of private-sector workers lack sick leave, meaning that most of them are going to work unless they absolutely are unable.  Anyone with a child in school can tell you that there are some serious negative externalities with that decision, because illnesses like company.  According to Folbre:

The United States stands out as one of the few rich nations in the world that doesn’t  mandate any form of paid sick leave.  About 40 percent of private-sector workers lack coverage from their employer. This means they will lose pay and even risk losing their jobs if they call in sick.

Less than a third of part-time civilian employees and low-wage earners (those in the bottom 25 percent of the wage distribution) enjoy sick-leave benefits. On the other hand, about 90 percent of public-sector workers are covered. . . . 

A fascinating study of New York City, titled “Sick in the City,” reports that about half of its working inhabitants say they don’t get paid sick leave. Three cities, San Francisco, Milwaukee and Washington, have passed legislation requiring most employers to provide a limited number of paid sick-leave days.

The Healthy Families Act that got a bit of traction in Congress last spring would create a new national standard, guaranteeing employees one paid hour off for each 30 hours worked and enabling them to earn up to seven paid sick days a year. Workers would be entitled to claim their days when they or a child, a parent, a spouse or someone else close to them became ill.

Like mandated health insurance, mandated paid sick leave would cost money. Employers could pass on costs to employees in the form of lower wages. But, also like health insurance, paid sick leave could save money by improving health. Evidence for this argument is presented in a briefing paper just published by the Institute for Women’s Policy Research analyzing the effects of the H1N1 epidemic last fall. . . . By not heeding strong advice from the Centers for Disease Control and Prevention to stay home, employees infected with H1N1 are estimated to have infected as many as seven million co-workers.


February 10, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Katz Named Dean at Denver

KatzCongratulations to Marty Katz, who has just been named Dean at University of Denver Sturm College of Law.  He has been serving as Interim Dean since last year.

Marty specializes in antidiscrimination law, both within constitutional law and employment law. His work on antidiscrimination law has been published in the Georgetown Law Journal, the Notre Dame Law Review, the Indiana Law Journal, the Hastings Law Journal, and the Yale Law Journal. His work on separation of powers has been published in Constitutional Commentary, a peer-reviewed journal. He has lectured extensively on antidiscrimination law, free speech and religion, separation of powers, defamation, and employment-related intellectual property law. He also has made numerous media appearances. Prior to teaching full time, Katz was a partner in the employment law group at Davis, Graham & Stubbs, and a law clerk to David M. Ebel on the U.S. Court of Appeals. In his spare time, he flies search and rescue missions for the Civil Air Patrol. 

Good luck finding "spare time" as Dean, Marty!


February 10, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Render on Sex "Stereotyping"

Render Meredith Render (Alabama) has just posted on SSRN her article (forthcoming Yale J. L. & Feminism) Gender Rules.  Here's the abstract:

Sex-stereotypes are of perennial concern within antidiscrimination law and theory, yet there is widespread disagreement about what constitutes a “sex-stereotype.” This article enters the debate surrounding the correct understanding of “stereotype” and posits that the concept is too thin to serve as a criterion for distinguishing “discriminatory” gender generalizations from non-discriminatory probabilistic descriptions of behavior. Instead, “stereotype” is a heuristic that has been used by courts and commentators to crudely capture judgments about the justness of applying sex-respecting rules.

In this light, the article argues for abandoning the stereotype heuristic in favor of a rule-centered analysis of sex-respecting generalizations. Arguing that courts and commentators have not objected to gender generalizations because they are descriptively inaccurate (as the stereotype heuristic suggests) but because they also exert unique prescriptive force, the article provides a new understanding of the theoretical basis for subjecting gender generalizations to antidiscrimination scrutiny.

February 10, 2010 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Becker Loses Cloture Vote

Becker The Senate held the cloture vote today on Craig Becker's nomination to the NLRB and it fell 8 votes short of the needed 60 (the vote was 52-33, with 15 senators not voting).  Two of the no votes came from Democrats, Ben Nelson (NE) and Blanche Lincoln (AR), which will now allow Becker opponents to call his rejection bipartisan.  The question now is whether he could get a recess appointment.  Obama has said that he might make some if the nomination holds continue (we're looking at you, Sen. Richard "I'm putting a hold on almost every nomination until I get some defense contracts in Alabama" Shelby---who, it should be noted, has now lifted his blanket hold).  It's unclear, however, whether Becker would be included in any recess appointments, or whether he's even willing to still be a pinata.

The question I have is whether this represents a sea change in NLRB nominations.  For a while now, NLRB nominations have lived or died together, as a package deal.  That's had its problems (see the number of times over the last decade that the Board has had 5 members, or even 3 members), but largely avoided the targeting of specific nominees.  Although Bill Gould faced harsher questioning, to my knowledge, Becker is the first NLRB nominee to actually get voted down (my memory doesn't go back too far though, so that may not be correct).  It's possible that Becker will just be considered a casualty of the current hyper-partisan mood in Washington.  Or, this may be the start of more contentious individual NLRB nominations.  I've wondered if the reasoning in bringing up the cloture vote, despite its near-certain failure, was as a call-to-arms or something that Democrats can now point to when fighting future Republican nominations.  Hard to believe that the NLRB nomination process could get worse, but there you go.

Hat Tip:  Patrick Kavanagh and Dennis Walsh


February 9, 2010 in Labor Law | Permalink | Comments (12) | TrackBack (0)

Desperate Times and Desperate Measures: Public Employment in San Francisco

Sanfran The recession might not be as bad as it was, but tell that to all those people out there who can't find jobs or are facing this type of government action (in the most progressive of all cities):

From Heather Knight of the San Francisco Chronicle:

More than 10,000 San Francisco city workers - from librarians and gardeners to secretaries and street cleaners - would be laid off and most rehired for jobs with shorter hours under a controversial plan being examined by Mayor Gavin Newsom.

The idea, which sprouted in the mayor's budget office and was described to his department heads Monday, would reduce the workweek for a large swath of the city's 26,000 full-time employees from 40 hours to 37.5.

Newsom's budget office estimates that paying workers for 2.5 fewer hours of work each week would save more than $50 million a year as the city grapples with how to close a devastating $522 million budget gap for the 2010-11 fiscal year.

Health and vacation benefits would not be affected, though pensions - which are calculated based on workers' salaries - would reflect the shaved schedules . . . .

If the idea is accepted, workers will begin receiving layoff notices soon and could opt to reapply for the positions with shorter weeks, which would be filled based on seniority . . . . 

Making the plan more controversial, though, is that it won't apply to all city workers. Police officers, firefighters and deputy sheriffs probably would be exempted. Those departments have mandatory staffing levels and reducing workers' hours would mean paying increased overtime, eliminating any cost savings.

Better than mass layoffs certainly, but can some of this blog's California readers write in the comments whether this plan would be legal and whether better alternatives exist?  My thoughts: raise the city tax on large companies doing business in San Francisco (or add a couple bucks levy to hotel rooms since that is the industry in SF) and/or consider a 4 day workweek (9 hours a day) to save on operating and infrastructure costs.

Hat Tip:  Daniel Mitchell


February 9, 2010 in Labor and Employment News, Public Employment Law | Permalink | Comments (1) | TrackBack (0)

Monday, February 8, 2010

Not even in a terrific labor market ...

Shift ... is this person getting a job:

i found ur id on;line and found that u ans evil hr question. i am struck with a question in interview of "why my grades are so low". and also cant find an ans where a positive mindset is going to be created in mind of the interviewer. i am a law graduate.

Here's Evil HR Lady's response.


February 8, 2010 in Teaching, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Dannin on Hoffman Plastics

Dannin Ellen Dannin (Penn State) has just posted on SSRN her article (forthcoming U. San Francisco L. Rev.) Hoffman Plastics as Labor Law – Equality at Last for Immigrant Workers?  Here's the abstract:

Hoffman Plastics, the poster child of immigration gone wrong, is popularly viewed as a case that imposed penalties unique to immigrant workers. The Supreme Court decision in Hoffman Plastics can relieve an employer that illegally fires an undocumented worker from owing back pay for violations of the National Labor Relations Act; however, the sad truth is, that rather than creating an injury unique to immigrants, Hoffman Plastics is better seen as part of the long American tradition of judicial hostility toward unions and labor law with roots in the 1930s and even earlier. The Supreme Court held that, although Hoffman Plastics violated the NLRA by firing Jose Castro in retaliation for his union activities, Hoffman Plastics owed no back pay because Castro had violated immigration laws. The judicial tradition of refusing to enforce the rights Congress created under the NLRA applies equally to immigrant and native workers. This does not mean that immigration status, law, and policy played no role in Hoffman Plastics’ outcome. Rather, we cannot fully understand Hoffman Plastics – and how to redress the situation – unless we understand the roots of Hoffman Plastics. That history includes an all-out attack on the NLRA and unions by American elites, including urging employers to disobey the law; a split union movement whose battleground included the NLRB; and a judiciary willing to “judicially amend” the NLRA to add provisions Congress had rejected. 


February 8, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)