Saturday, April 9, 2011
Andrea Lee, Executive Symposium Editor for Case Western Reserve Law Review, writes to tell us about her Law Review's symposium and call for papers. The topic is The Future of Private and Public Sector Collective Bargaining, and the symposium will take place in November 2011. Here's a description:
The Case Western Reserve Law Review is announcing a Call for Papers that address present problems and propose new solutions concerning the future of private and public sector collective bargaining rights. Contention over recent developments in public sector collective bargaining rights in Wisconsin and Ohio promise major change and debate. Case Western’s symposium will discuss this opportunity for change and may include potential topics such as:
- Desirability and Viability of Collective Bargaining
- Unionization in the Private and Public Sector
- Trends in Labor Law
- Legal Issues that Arise from Public Sector Pension Reforms
- Unions and Politics
- New Approaches to Private and Public Sector Unionization
- Private Sector Unionization and Outsourcing
Anyone interested in being a speaker at the symposium or interested in being considered for publication in the Case Western Reserve Law Review Volume 62 should submit an abstract to firstname.lastname@example.org by June 1, 2011. Each abstract should discuss one or more of the foregoing potential symposium topics. A committee will review the abstracts and will invite applicants to speak at the symposium and/or publish in the Law Review. The committee will base invitations on the relevancy, quality, and originality of the abstract. Potential symposium speakers may include legal scholars, economists, political scientists, social scientists, politicians, and collective bargaining experts including those from jurisdictions outside the United States.
- Ernest F. Lidge III, Disparate Treatment Employment Discrimination and an Employer's Good Faith: Honest Mistakes, Benign Motives, and Other Sincerely Held Beliefs, 36 Oklahoma City U. L. Rev. 45 (2011).
- Nancy L. Zisk, Failing the Test: How Ricci v. Destefano Failed to Clarify Disparate Impact and Disparate Treatment Law, 34 Hamline L. Rev. 27 (201).
- Adam Gorzelsky, The Employee Free Choice Act: Breathing New Life into Unions or Dead in the Water?, 72 U. Pittsburgh L. Rev. 147 (2010).
- Dina Mishra, Child Labor as Involuntary Servitude: The Failure Congress to Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 Rutgers L. Rev. 59 (2010).
- Courtney Glickman, Jon & Kate Plus ... Child Entertainment Labor Law Complaints, 32 Whittier L. Rev. 147 (2010).
- Tom C. Hodge, The Treatment of Employees as Stakeholders in the European Union: Current and Future Trends, 38 Syracuse J. Int'l L. & Commerce 91 (2010).
- Sovereign Hager, Farm Workers and Forced Labor: Why Including Agricultural Guest Workers in the Migrant and Seasonal Worker Protection Act Prevents Human Trafficking, 38 Syracuse J. Int'l L. & Commerce 173 (2010).
Ralph Anzivino (Marquette) has just posted on SSRN his article (forthcoming Marquette L. Rev.) Drafting Restrictive Covenants in Employment Contracts. Here's the abstract:
Restrictive covenants or non-compete clauses are commonly used in employment contracts to prevent unfair competition. Unfair competition normally takes the form of a former employee soliciting the employer’s customers or using confidential information after becoming employed with a competitor of his former employer. Courts and Legislatures have detailed a number of specific requirements that a restrictive covenant in an employment contract must satisfy to be enforceable. For example, an employer must have a ‘protectable interest.’ An employer can protect confidential information, but how do the courts distinguish the employer’s confidential information from that information which an employee can call his own? Restrictive covenant must also be reasonably necessary for the employer’s protection. And, restrictive covenants must be reasonable as to time and territory, and not impose an undue hardship upon the employee or offend public policy. Finally, an employment contract normally has multiple restrictive covenants, and the divisibility of such clauses is examined. The purpose of this article is to explain the numerous factors involved in drafting an enforceable restrictive covenant in an employment contract.
This is a terrific resource.
Friday, April 8, 2011
Morris Kleiner (Minnesota) and David Weil (Boston University) have posted on the NBER Working Paper site their piece, "Evaluating the Effectiveness of National Labor Relations Act Remedies: Analysis and Comparison with Other Workplace Penalty Policies." (The SSRN link is here.) As will not be a surprise to many readers, the authors find that the likely remedies for NLRA violations are small both from the employee's and employer's perspective, especially relative to the benefits that employers receive in committing certain ULPs. Thus, they conclude that NLRA remedies fail to adequately curb unlawful behavior, even compared to other employment law schemes. The abstract:
The goal of this paper is to examine the implied penalty policies underlying the remedies created by the National Labor Relations Act (NLRA) in terms of the policies’ impact on employer and union behaviors. We present a simple model of deterrence as a means of evaluating workplace penalty policies in terms of their influence on employer behavior, particularly through deterrence effects. We also compare the remedies for violations embodied in the NLRA with penalty policies under other workplace legislation, such as the Fair Labor Standards Act and the Occupational Safety and Health Act. We then evaluate the size of financial costs for violations against individuals of specific provisions of the NLRA by firms and unions for the period 2000-2009. We show that the implied penalties are modest, particularly in terms of providing sufficient incentives to comply with the law in a timely manner. Given this finding, we examine other potential remedies available under the NLRA, in particular, methods to address the impact of delays (the length of time from the filing of the charge or the issuance of the charge to the time of its adjudication before an administrative law judge at the National Labor Relations Board or through the federal courts) on workplace representation through unionization.
Of particular interest are the tables at the end of the paper, which include average awards for various ULPs, broken down by several variables, delay by ULP, and data on 10(j) requests and Board authorizations. Definitely worth a look.
Thursday, April 7, 2011
For those of you who follow state and federal developments in equal employment opportunity law, you, like me, probably became spoiled by having to read Paul Mollica's Daily Developments in EEO Law Blog.
That blog has been off-line for a while as Paul transitioned to a new law firm. But I am very happy to report that Paul's new Outten & Golden Employment Law Blog, also referred to still as Daily Developments in EEO Law, is now up and running.
From the opening post:
This author is pleased to announce the return of Daily Developments in EEO Law to its new platform. I will continue to report on the comings-and-goings of federal equal employment opportunity law in this space - concentrating, as before, on developments in the U.S. Courts of Appeals - and will be joined before very long by other, extraordinary attorneys from Outten & Golden LLP, contributing in their areas of expertise.
I like the new format very much. Check it out as I am sure it will become essential reading from those who follow employment discrimination law developments like I do.
An editorial in today's New York Times argues that the Supreme Court should allow the Wal-Mart case to go forward as a class action. The editorial cites favorably the amicus brief written by Alexandra Lahav, Arthur Miller, Paul Secunda, Adam Steinman, and Melissa Hart:
A brief by 31 professors of civil procedure explains why the women are a suitable class. Their claims meet the core test: They have in common the question of whether Wal-Mart discriminated against them. Meanwhile, the high cost of litigation compared to the low likely individual recoveries would make it hard for the women to proceed any other way.
Fascinating case just out from the Fourth Circuit Court of Appeals yesterday on a crucial question at the intersection of public employment law and higher education law: Does Garcetti v. Ceballos, the case that severely limited public employee free speech rights when employees speak pursuant to their official duties, apply to professors in the higher education context.
In Adams v. Trustees of the Univ. of North Carolina-Wilmington,10-1413 (4th Cir. April 6, 2011), the Fourth Circuit held that a university professor could pursue his claims that his employer retaliated and discriminated against him based on his viewpoints, in violation of the First Amendment.
Adams filed suit after he was denied a promotion to the position of full professor. As part of his promotion materials, Adams included references to his service to Christian groups, and referred to being “an activist in the campus free speech movement.” Additionally, he listed numerous speeches on “Academic Freedom” as well as conservative issues in his portfolio. Eventually, he was rejected promotion.
Although it upheld the district court on dismissing a claim of religious discrimination under Title VII, the Fourth Circuit found that the district court had erred when it granted summary judgment to the university on the employee’s First Amendment retaliation claim. The court found that Garcetti applies to the academic context and noted that the Supreme Court expressly left open the question of whether the principles would apply in the academic context.
With Garcetti not an obstacle, the court applied the Pickering-Connick analysis and determined that the employee spoke on a matter of public concern because Adam’s writings, which addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality, qualified. On remand, the Pickering balance of interests will have to be applied, as well as the Mt. Healthy same decision test.
This one could be heading for the Supreme Court with the interesting twist of a conservative advocacy group arguing for the expansion of First Amendment rights in public academic employment.
Hat tip: Jon Harkavy.
The Seattle University Law Review recently published Crowdsourcing the Work-Family Debate: A Colloquy. The colloquy explores themes presented by Professor Joan C. Williams in her book Reshaping the Work-Family Debate: Why Men and Class Matter. Contributors to the colloquy include Professors Richard Delgado, Jean Stefancic, Nancy Levit, Lisa Pruitt, and Katharine Silbaugh, among others. The colloquy also includes a response from Professor Williams and a retrospective reprint of a 1978 address delivered by then-Professor Ruth Bader Ginsburg on her experiences with sex discrimination in the legal profession. In a preface to the reprinted edition, Justice Ginsburg states that she is heartened by the changes from 1978 to today, but that "[a]s Joan C. Williams develops in Reshaping the Work-Family Debate, there is a great distance yet to travel."
Wednesday, April 6, 2011
Wal-Mart is the largest private employer in the United States, with more than one million current employees. Its employment practices directly affect over one percent of the American workforce. Moreover, other retailers often strive to replicate Wal-Mart’s practices. If employment discrimination is pervasive at Wal-Mart, it may thrive throughout the retail market. Assuming the empirical evidence supports the claim that Wal-Mart engaged in widespread pay and promotion discrimination against female employees, what could explain the persistence of such a practice in a company known for its devotion to efficiency principles? In answering this question, this Article builds on an earlier coauthored paper that created a model to demonstrate how employment discrimination could persist even in a highly competitive market. In this Article, I add to the criticism of unregulated markets by analyzing a real-world example in which a seemingly competitive market allegedly allows discrimination to flourish. This Article suggests that the reasons why the market may have failed to eliminate sex discrimination at Wal-Mart are of both theoretical and practical importance. Regardless of whether the Wal-Mart plaintiffs ultimately prevail in a lawsuit, this analysis of the retail labor market speaks to the justification for, if not the efficacy of, government regulation in this area. In other words, Wal-Mart matters.
Tuesday, April 5, 2011
- Alvaro Santos, Three Transnational Discourses of Labor Law in Domestic Reforms, 32 U. Pa. J. Int'l L. 123 (2010).
- William A. Herbert, Card Check Labor Certification: Lessons from New York, 74 Albany L. Rev.
- 93 (2010/11).
- Ani B. Satz, Fragmented Lives: Disability Discrimination and the Role of "Environment-Framing", 68 Wash. & Lee L. Rev. 187 (2011).
- Micah Prieb Stoltzfus Jost, Independent Contractors, Employees, and Entrepreneuralism Under the National Labor Relations Act: A Worker-By-Worker Approach, 68 Wash. & Lee L. Rev. 311 (2011).
- Jeffrey M. Hirsch, Employee or Entrepreneur?, 68 Wash. & Lee L. Rev. 353 (2011).
- F. Ryan Van Pelt, Union Refusal to Arbitratte: Pyett's Unanswered Question, 2010 J. Disp. Resol. 515.