Friday, November 18, 2011
The NLRB just announced that it intends to have a vote on whether to finalize a "small number" of its proposed election rules. The vote is scheduled for Nov. 30 at a public meeting--but only the Board members will participate (see the announcement for more information). According to the announcement:
The Board received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July. In response to those comments, and in light of the possibility that the Board will lose a quorum at the end of the current congressional session, Board Chairman Mark Pearce will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.
It sounds like the Board still wants to do something, but isn't willing to stir the pot completely by issuing all or most of the proposals. Of course, and perhaps as the Friday afternoon announcement shows, the Board no doubt knows that any change is likely to lead to more criticism. So, any thoughts on what changes will be finalized? Off the top of my head, some of the less controversial measures that I'd expect to see go through include electronic filing, compliance assistance, faster/more predictable hearing dates, and streamlined regulations. On my list of "maybes" is a quicker preliminary Exclesior list (although maybe more than the currently proposed two days); inclusion of email in the Exclesior list; the option of requesting a single, post-election review of all issues; and Board discretion to review post-election rulings by the Region. That leaves for my "highly doubtful" list the pre-election statement of position requirement, deferral of eligibility issues affecting less than 20% of the proposed unit to a post-election challenge, and elimination of pre-election review by the Board. But these are just guesses, so I'd be curious to see what others think.
[UPDATE: according to a BNA Daily Labor Report story things are heated at the Board, with Member Hayes complaining to a House committee about being excluded from the rulemaking process, with Chairmen Pearce calling that complaint untrue and promising a more thorough response. Hayes also complained that there is a push to get a rule out before Becker's term expired, but it's not like that's a surprise or a new tactic. Stay tuned for more.
Hat Tip: Patrick Kavanagh]
Here's the Agenda for the Experts’ Meeting on the Restatement of Employment Law Project, November 18-19, 2011, Northwestern Law School in Chicago. This is the second meeting of recognized experts to discuss the ongoing Restatement of Employment Law Project being undertaken by the American Law Institute. The first meeting took place in 2008 at Hastings Law School in 2008. Papers were published in the Journal of Employee Rights and Employment Policy. In 2008, only two chapters of the Restatement had been written. This meeting takes up the continuing critique of the project in response to additional chapters and the project as a whole. Papers from the conference will again be published. The conference again, like the one in Hastings, is being sponsored in part by The Labor Law Group.
Thursday, November 17, 2011
NASA, the world's leader in space and aeronautics is always seeking outstanding scientists, engineers, and other talented professionals [lawyers?] to carry forward the great discovery process that its mission demands....
The National Aeronautics and Space Administration (NASA) has a need for Astronaut Candidates to support the International Space Station (ISS) Program and future deep space exploration activities.... Frequent travel may be required.
Carol Furnish (NKU Chase) sends word of the new ABA Directory for Disability Rights. This first-of-its-kind online directory provides information about state and local bar associations that: (1) offer support to lawyers with disabilities or disability diversity, or (2) handle substantive areas of disability law.
Mitch Rubinstein has a nice post over at Adjunct Prof Blog on the ILO's ruling that the ban on public employee strikes and the penalties issued against the TWU in 2006 NYC Transit Strike were improper. As Mitch notes, however, the legal effect of the ruling is nil.
Wednesday, November 16, 2011
Corinne Vargha (ILO) sends word of EPLex, a new ILO database on Employment Protection Legislation. This database contains information on the employment termination laws of some 90 countries. EPlex covers the key topics which are regularly examined in national and comparative studies on employment termination legislation. The information is broken down to cover more than 50 variables, and will be updated annually to facilitate analysis of impacts and trends over time. It displays the legal information compiled under seven main headings:
- Source and scope of regulation - legislation in force, categories of workers and enterprises excluded.
- Contracts of employment - duration of probationary periods, conditions and limits on fixed-term contracts.
- Substantial requirements for dismissals - authorised and prohibited grounds, categories of workers enjoying particular protection.
- Procedures for individual dismissals - obligation to give reasons, form of notification, length of notice by tenure, pay in lieu of notice.
- Collective dismissals for economic reasons - definition, prior consultation, notification and/or approval by workers’ representatives and public authorities, priority rules for dismissal and re-employment.
- Severance pay - calculation by tenure and type of dismissal.
- Avenues for redress - compensation for unfair dismissal, reinstatement, competent courts, conciliation, arbitration.
Tuesday, November 15, 2011
Prior to SB5 going down in flames, Ohio Republicans (who read the writing on the wall well before the election) were talking about trying to re-pass portions of SB5 as separate bills. Now, even that seems off the table. Republican Speaker of the House Bill Batchelder is cited in Ohio's Hannah Report (subscription required) as saying that he doesn't think the House will tackle the issue of collective bargaining again this General Assembly. Hat tip: Carol Furnish.
Michael Zimmer (Loyola-Chicago) has just posted on SSRN the article he delivered at the Labor & Employment Colloquium and at Lewis & Clark's conference on protected classes and antidiscrimination. The article, forthcoming Lewis & Clark L. Rev., is Wal-Mart v. Dukes: Taking the Protection Out of Protected Classes. Here's the abstract:
Wal-Mart v. Dukes was a major 2011 procedural decision changing the future path of class actions. To decide the procedural issue, the Court found it necessary to look to the underlying substantive law - Title VII’s systemic disparate treatment and disparate impact theories of discrimination. This article will explore the way the Court treated that substantive law to attempt to see if Wal-Mart is a foreshadowing of major changes in the substance of antidiscrimination law. To do that, it will first briefly develop the competing visions of the underlying purpose of antidiscrimination law - whether the aim of the law is to address subordination of classes of people protected by the law or is simply to prohibit classifications - and traces their development since Reconstruction through the Rehnquist Court. Next, it develops the earlier Robert’s Court decisions in Parents Involved and Ricci v. DeStefano. leading up to Wal-Mart showing how the anticlassification purpose and corresponding absolute color-blind rule have come to predominate if not completely prevail. Finally getting to Wal-Mart, the article first sketches out how Wal-Mart would be analyzed under prior law and then describes how that substantive law was treated in the decision itself. Looking at the juxtaposition of prior law with the approach to substantive antidiscrimination law developed the next section sets out the possible impact of Wal-Mart on that law. In the best case, Wal-Mart would have no impact on Title VII’s substantive law. In the worst case, the decision foreshadows a major contraction of the systemic theories of discrimination that were in place before the Roberts Court era.
Suja A. Thomas (Illinois) just posted on SSRN a speech she gave for a colloquium for the 25th anniversary of the summary judgment trilogy held at Seattle U. The speech, which will be published at 43 Loyola-Chicago L.J. (2012), discusses the effect of procedure on employment discrimination cases. The article is Before and After the Summary Judgment Trilogy; here's the abstract:
In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases—employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.
Monday, November 14, 2011
The NBA Players Union just announced that is has both rejected the NBA's latest contract offer and decided to disband (by "disclaiming interest" in representing the players). Part of the reason was the union's view that the NBA wasn't going to move from its current position; indeed, the NBA said over the weekend that it was done bargaining.
Although a breakthrough is always possible--losing lots of money tends to do that--it's looking likely that next season will be cancelled. One interesting aspect of the NBA is that, unlike football, many basketball players can play in one of the many leagues around the world. They're not the NBA by any means, but some pay pretty well and are quite competitive. That could either put more pressure on the league or just make it more likely that the work stoppage will continue for a long time. Stay tuned.
UPDATE: Matt Bodie has a nice post on the topic over at PrawfsBlawg. -rb
the debate about the [proposed] changes is a good thing to keep an eye on because although inclusion of a condition in the DSM-IV has not been completely synonymous with coverage under various employment laws, the courts have often looked to it for guidance. Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).
David's post is extensive, discusses several of the proposed changes, and is worth a close read.
Judy Fudge (Victoria) just posted on SSRN her article The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers. Here's the abstract:
Many civil society organizations and advocacy groups consider international human rights norms to offer a more promising avenue for protecting migrant workers from precarious employment than do claims based upon citizenship and the nation state. However, there is little research on how international right instruments specifically designed to protect migrant workers’ rights address the factors that make migrant workers’ employment precarious. The paper provides a taxonomy that maps the link between migrant status and precarious employment, which it uses to explore the nexus between precarious migrant status and precarious employment in the three “low-skill” streams – the Seasonal Agricultural Workers Program, the Live-in-Caregiver Program, and the Pilot Project for Occupations Requiring Lower Levels of Formal Training (NOC C and D) – in the Canadian Temporary Foreign Worker Program. After demonstrating the relationship between precarious migrant workers and precarious employment, the paper evaluates the capacity of international human rights instruments specifically designed for migrant workers to the address the problem of precarious employment. It finds that the main problem with relying on the international migrant workers’ rights instruments is that they defer to the principle of state sovereignty over immigration policy and accept the right of states to impose restrictions on non-national’s employment rights in exchange for the privilege to enter host state territory. What these instruments do is limit the duration of employment restrictions to two years. The problem is that allowing states to tie a migrant worker’s work authorization to a specific employer for two years permits state-sanctioned subordination of migrant workers to employers and creates a situation ripe for abuse. To break the link between precarious migrant status and precarious employment it is crucial for nation states to develop forms of restrictions on migrant workers mobility, such as sectoral and occupational work authorizations, that are less likely to be as exploitative as authorizations that tie migrant workers to specific employers.