Saturday, May 7, 2011
I've been in Prato, Italy (just outside of Florence) at a conference hosted by Monash University Law School (Australia) on the intersection of IP and LEL Law. Recurring themes have included (1) how universities and professors allocate ownership of patents as between them, and (2) how differenct countries, especially common-law countries, deal with the "accidental employee inventor" -- the employee who is hired to do reg, but ular work, but during her employment invents something related to her employer's business. My mention of the American "shop right" for the latter brought a wave of enthusiasm from other folks -- it's a nice middle ground in the all-or-nothing legal tests that most other countries use.
Now, I'm off to Berlin for the ABA International LEL Section meeting.
Friday, May 6, 2011
The Supreme Court of Canada handed down the Fraser farmworker freedom of association decision last week. Roy Adams (McMaster (Hamilton, ON) has graciously agreed to share his thoughts about the decision on this blog.
Here's a taste:
On April 29th the Supreme Court of Canada finally handed down its decision on the bargaining rights of Ontario farm workers. In Ontario (Attorney General) v. Fraser the court split 5-2-1-1. Lots of descriptions of the various opinions will no doubt soon appear on the web. This comment focuses almost entirely on the majority decision.
The majority overturned the decision of the Ontario Court of Appeal written by Ontario Chief Justice Warren Winkler. That court had ruled Ontario’s Agricultural Employees Protection Act (AEPA) to be unconstitutional because it did not provide for union recognition based on “majoritarian exclusivity,” the general principle found in labour relations acts across the country, and because it failed to specify a dispute resolution mechanism for disputes over contract negotiations and for the settlement of contract interpretation disputes and because it did not explicitly contain provisions requiring good faith bargaining.
In its Fraser decision, the Supreme Court found that Judge Winkler had gone too far in requiring the province to legislate the major provisions of the “Wagner Act Model” found in general private sector labour legislation across the country. The major deficiency that the majority found in the AEPA was the absence of a clause that explicitly requires agricultural employers confronted by “representations” made by an employee association to engage in a “good faith” process. The majority of the court “affirmed that bargaining activities protected by s. 2(d) [the Charter’s freedom of association clause] in the labour relations context include good faith bargaining on important workplace issues...” which are “not limited to a mere right to make representations to one’s employer, but requires the employer to engage in a process of consideration and discussion to have them considered by the employer.” (para. 40). The majority went on to say that “One way to interfere with free association in pursuit of workplace goals is to ban employee associations. Another way, just as effective, is to set up a system that makes it impossible to have meaningful negotiations on workplace matters.” (para 42) . . . .
My reading of the majority decision is that the Tribunal is now required to assess any dispute about the operation of the relevant paragraphs against the bargaining in good faith guidelines outlined by the SCC in Health Services (2007). “Section 2(d),” the majority in Fraser said referring to Health Services, “requires the parties to meet and engage in meaningful dialogue. They must avoid unnecessary delays and make reasonable effort to arrive at an acceptable contract...” (41) Although in referring to the operative clauses in the AEPA 5(6) and (7), the majority conservatively said that “any ambiguity” should be “resolved by interpreting them as imposing a duty on agricultural employers to consider employee representations in good faith,” they also said (again referring to general principles established in Health Services) that 2(d) creates a “right to collective bargaining.” Although some employer-side law firms are making much of the phrase “consider employee representations in good faith,” I think that when read in its entirety the decision means that the government, through the Tribunal, must do more than require the employer to read demands “in good faith,” say “no” and move on.
You can read the rest of Roy's insightful comments about this important decision on worker's freedom of association rights at this link.
Wednesday, May 4, 2011
Michael Selmi (George Washington) has posted on SSRN his forthcoming piece in the Berkeley Journal of Employment and Labor Law: Theorizing Systemic Disparate Treatment Law.
Here is the abstract:
The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove intentional discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race discrimination. Claims of gender discrimination are more complicated because the regression analyses that are at the core of the case do not create as strong an inference of discrimination as occurs in the context of race discrimination. The essay, however, rejects the notion that the pattern or practice claim is merely an aggregation of individual claims, and instead suggests that the statistics prove a more subtle form of discrimination that would not be evident if one focused solely on individual claims. The paper also critiques the presentation of the sex discrimination claim in the Wal-Mart litigation for its generic quality, and suggests that plaintiffs must provide a narrative that explains the statistical story with a focus on the particular employer.
Mike points out that this piece is part of Tristan Green's (San Francisco) project on systemic discrimination. It looks like an interesting idea and I look forward to reviewing it. Check it out!
Readers can find a helpful update on the outcome of the Canadian national elections here.
Workplace blogger David Doorey comments:
The [New Democratic Party] NDP did indeed surge to their best results ever, jumping from 37 seats in Parliament to 102! They are now the Official Opposition for the first time in their history. The picked up over 30% of the votes cast.
The Conservatives won a majority, mostly because the Liberals and NDP split the vote in many places, allowing the Conservatives to pick up many new seats while increasing their share of the popular vote by only a very small amount. The Liberals (our Democrats) were creamed, falling from 77 seats to just 34. This is the first time in Canada's history that the Liberals are neither the government or the official opposition.
Among the NDP Members of Parliament are a handful of ex-union people.
Interesting times up in the Great White North indeed.
I've been surprised at how much attention is getting paid to the NLRB General Counsel's complaint against Boeing. Based on what I've seen, the conservative uproar to what, based on the allegations is a relatively straightforward case of an employer punishing workers for striking (with admittedly large potential economic impacts), is way out of proportion. But this editorial from the Wall Street Journal (subscription required, but if you Google the title, you can find it free) and the legislation it describes, has now entered the bizzaro stage.
As for the editorial, even taking into account the normal tenor one would expect from a WSJ editorial, I honestly don't ever remember seeing any piece of writing with so many inaccuracies. For instance, there's the title, which states that there is a Board ruling (it's just a GC complaint); the description of the remedy to shut down production in South Carolina (the GC doesn't seek that, it would just require Boeing to maintain production in Washington; and the argument that the complaint requires employers to stay in non-right-to-work states (I don't even know where to begin). Two minutes with a fact-checker would've had these cut, although that would've undermined the purpose of the editorial and its support for the legislation.
Speaking of which, the bill by Sens. Alexander, Graham, and DeMint purports to strengthen right-to-work laws ( Download Alexander bill). But I don't see how, aside from maybe allowing states to pass laws to preclude certain CBA provisions. The fact that Alexander describes the bill as preventing the NLRA from preempting right-to-work laws is particularly ridiculous given that state right-to-work laws are specifically permitted by Section 14 of the NLRA. Maybe someone else can think of a more substantive effect of this bill--if so, I'd love to hear it.
If I were more talented, I'd do a Saturday Night Live "Really!?!" take on these.
Hat Tip: Patrick Kavanagh
Monday, May 2, 2011
The ABA is hosting a live webinar on Wednesday, May 4 on the new ADAAA regulations. Chai Feldblum and Victoria Lipnic, two of the commissioners, are on the panel, joined by Michael Subit and L. Julius Turman.
According to the notice,
This CLE will focus on how to apply the new regulations including:
• provisions on types of impairments that should easily be concluded to be substantially limiting;
• when and how to consider "condition, manner, or duration;" and
• the scope of the "transitory and minor" defense to "regarded as" coverage, indicating key examples.
Registrants that take this program will receive strategic guidance from our panelists, compliance advice for their clients, and the ability to pose questions to the faculty live.
The webinar begins at 1 PM Eastern time, and you can click the program page for more information and to register.
Congrats to our own Paul Secunda whose letter to the editor appeared on Friday in the Seattle Times. Responding to an editorial by Kathleen Parker that appeared earlier in the week, which called the complaint "political" even though retaliating against unions is "technically" a violation of the law and analogized the move to the civil war, Paul points out that all the NLRB is doing is enforcing a fairly straightforward violation of federal law. Great point, Paul!
Thanks to friend of the blog, David Yamada, for sending news of a new book that focuses on the rising use of unpaid interns: Intern Nation by Ross Perlin. From the book's description,
The first no-holds-barred exposé of the exploitative and divisive world of internships.
Every year, between 1 and 2 million Americans work as interns. They famously shuttle coffee in a thousand newsrooms, congressional offices, and Hollywood studios, but they also deliver aid in Afghanistan, build the human genome, and pick up garbage. They are increasingly of all ages, and their numbers are growing fast—from 17 percent of college graduates in 1992 to 50 percent in 2008. Almost half of all internships are illegal under the Fair Labor Standards Act, and this mass exploitation saves firms more than $600 million each year. Interns enjoy no workplace protections and no standing in courts of law—let alone benefits like healthcare.
Ross Perlin, an ex-intern himself, has written the first exposé of this world of drudgery and aspiration. In this witty, astonishing, and serious investigative work, Perlin takes the reader inside both boutique nonprofits and megacorporations such as Disney (which employs 8,000 interns at Disney World alone). He profiles fellow interns, talks to historians about what unleashed this phenomenon, and explains why governments in the US and Europe may finally be moving to rein in the internship boom.
Insightful and humorous, Intern Nation will transform the way we think about the culture of work.
David does a thorough review of the book on his blog, Minding the Workplace, outlining the book and offering a link to his article (cited in the book as the best single source of information for American internships and the law) The Employment Law Rights of Student Interns.
David Doorey (York Univ.) brings us up to speed:
The Federal election happens today in Canada. The Conservative government (closest to the Republicans) has been in power with a slim edge over the Liberals (closest to the Democrats). The New Democratic Party most aligned with the labour movement and furthest left of the major parties (although not very much left of the Liberals these days) has traditionally run third, quite a ways back.
However, something very unexpected has happened in the last month leading to today's vote. The NDP has surged, from a support level near 19% at the start of the campaign to the final survey before election day of 31.6%. That places them just a few points back of the Conservatives, and well ahead of the Liberals. It is feasible a labour party could actually win the election, though more likely they could be the official opposition. The NDP's main platform issues are cancelling a corporate tax cut promised by the Conservatives and stronger environmental protection laws. The surge of the political left has taken all of the pundits by great surprise and they are at pains to explain what the hell is going on.
For those Americans not familiar with Canada's leftist, third party, here's a famous clip of a speech by its first leader, Tommy Douglas, the founder of the Canadian health care model, that forms the spiritual philosophy of the party. It may resonate with those American readers who see little difference between many Republican and Democrat policies these days.
Thanks, David. And will be interesting to see the results of this election.
The Chronicle of Education has an article on a subject that subscribers to the LERA listserv have been hearing about. Conservative activist Andrew Breitbart (he of the Shirley Sherrod debacle) has been explicitly going after professors who teach labor relations topics, trying to find embarrassing video of their lectures. First out of the gate are adjuncts Don Gilijum and Judith Ancel at UMKC who were depicted by a Breitbart-edited video apparently advocating union violence. However, the adjuncts claim that the video--the original of which was apparently obtained from an intra-school source for filmed lectures--was a "hatchet job" in which footage was edited and spliced to make it appear that they were advocating violence, rather than merely discussing it. The university's own review seems to support the adjuncts' argument and expressed annoyance that film showing students were released without authorization. There appears to be some confusion whether one of the adjuncts has resigned (the school asked him to initially, which he did, then reconsidered). What is unclear is whether the university welcomes him back after their review.
The scary thing is the allegation that a filmed lectured might be spliced to give an inaccurate view of what's going on. If my lectures were filmed (they're not now; no doubt too boring to warrant it), I'd make darn sure that I had copies of the original so I could rebut anything like this.
Hat Tip: Alex Long