December 3, 2011
Recently Published Scholarship
- Gavin Reinke, When a Promise Isn't a Promise: Public Employers' Ability to Alter Pension Plans of Retired Employees, 64 Vanderbilt L. Rev. 1673 (2011).
- Charlotte Garden, Citizens, United, and Citizens United: The Future of Labor Speech Rights?, 53 Wm. & Mary L. Rev. 1 (2011).
- Amy Livingston, Employee Free Choice: Amplofying Employee Voice Without Silencing Employers -- A Proposal for Reforming the National Labor Relations Act, 45 U. Mich. J. L. Reform 219 (2011).
- Sadia Aslam, Hijab in the Workplace: Why Title VII Does Not Adequately Protect Employees from Discrimination on the Basis of Religious Dress and Appearance, 80 UMKC L. Rev. 221 (2011).
- Robert Sprague, Invasion of the Social Networks: Blurring the Line Between Personal Life and the Employment Relationship, 50 Louisville L. Rev. 1 (2011).
- Michelle Eviston, Front Pay Under the FMLA, 38 N. Ky. L. Rev. 259 (2011).
- Matthew D. Gimovsky, Attorney's Fee Awards Under ERISA and the "Some Degree of Success" Standard, 14 J. Health Care L. & Policy 177 (2011).
- Thomas B. Heywood, State-Funded Discrimination: Section 504 of the Rehabilitation Act and Its Uneven Application to Independent Contractors and Other Workers, 60 Catholic U. L. Rev. 1143 (2011).
- D. Wendy Greene, Black Women Can't Have Blonde Hair ... in the Workplace, 14 J. Gender Race & Justice 405 (2011).
- Melanie A. Goff & Richard A. Bales, A "Plausible" Defense: Applying Twombley & Iqbal to Affirmative Defenses, 34 Am. J. Trial Advoc. 603 (2011).
December 2, 2011
November Unemployment Report
The Department of Labor was released its November unemployment figures. The good news is that the unemployment rate is down to 8.6%, from 9.0%. Moreover, last month's numbers, like the previous few months have been revised to show increased job growth (see this for a nice chart on the recent revisions). The bad news is that part of the story is that fewer people are looking for work and, therefore, are not counted as unemployed. Nevertheless, 120,000 jobs were added last month; not great, but not bad either and better than expectations. Perhaps more importantly, the trend seems to be moving positively, although we'll have to wait and see if that's true.
December 1, 2011
Call for Papers: Indiana Journal of Law and Social Equality for Symposium on “Whither Social Equality?”
Thanks to Deborah Widiss (Indiana-Bloomington) for letting us know that the newly-formed Indiana Journal of Law and Social Equality is currently seeking submissions for its inaugural issue and symposium, “Whither Social Equality?” The issue and the symposium, to be held on March 30, 2012, in Bloomington, Indiana, will explore the current state of social equality thought from a variety of perspectives and address a variety of different forms of (in)equality (race, class, gender, sexual orientation, intersectionality, and familial status).
Submit papers, proposals, or abstracts to email@example.com by January 16, 2012. Papers may be accepted for publication, presentation at the symposium, or both. Papers may vary in length from short essays to more traditional law review length (latter preferred).
Conference: Public Sector Bargaining Around the World
On July 2, 2012, a one-day conference will be held in Philadelphia on public sector collective bargaining around the world. Leading scholars from the United States, Japan, France, Canada, Germany, Greece and Italy will discuss their public sector unions. Each country will be represented by a legal and a non-legal scholar. The conference has been organized by Matt Finkin from Illinois. Marty Malin from Chicago-Kent will be the legal scholar from the United States. Click here for a draft program and the names and affiliations of all the presenters.
This program is being sponsored by the US and Canadian Branches of the International Society for Labor and Social Security Law and by the International Association of Labour Law Journals. (By the way, you should join the US Branch of the ISLSSL: It’s inexpensive, includes a subscription to the Comparative Labor Law & Policy Journal, and provides great opportunities to network with overseas colleagues.) The program is being offered in conjunction with the 16th World Congress of the International Labour and Employment Relations Association, which will be in Philly from July 2-5. As a result, this will be a good set of events to meet lots of interesting people from around the world.
The organizers have not yet finalized the arrangements: registration fee (but it will be low), housing, precise location, etc. But please think about attending and mark your calendars. If you’re interested, please drop Steve Willborn a note, so he can keep you informed about details as they develop.
LEL Scholars in Israel
I'm thrilled today to add to our compilation of LEL scholars from around the world. Please join me in thanking Orly Lobel (San Diego; visiting Tel Aviv U.; new ALI member) for compiling this list:
- Yuval Feldman
College of Management
- Shlomit Yaniski-Ravid
- Faina Milman
- Sagit Mor
- Moti Mironi
- Einat Albin
- Avishai Benish
- Guy Davidov
- Lilach Luria
- Sharon Rabin-Margaliot
- Yuval Procaccia
Netanya Academic College
- Hadara Bar-Mor
- Michal Horovitz
Ono Academic College
- Amir Paz-Fuchs
- Shlomit Yaniski-Ravid
Ramat Gan Academic Center of Law and Business
- Yossi Dahan
- Tally Kritzman
Tel Aviv University
- Guy Mundlak
- Hila Shamir
- Yoffi Tirosh
- Tami Katz-Kricheli
- Orly Lobel (visiting professor from San Diego 2011-2012)
New Book: American Labor Struggles and Law Histories
From slave rebellions, to the Lowell Mill girls, to Wisconsin and the Tea Party; this book tells the stories of law and legal action inevitably intersecting the collective actions of workers, in triumph or in anguish, over all of United States history.
Most people assume labor actions are carried out through trade unions and, therefore, that the relevant law of labor is the regulation of a particular form of collective bargaining between the representatives of workers (unions) and the representatives of owners (management). Neither assumption is accurate. It is striking to discover that most of the key labor struggles described in this book started either spontaneously among a group of workers, or at least began out in front of a sometimes unprepared or skeptical national union leadership that had to catch up to its members. Labor has at different times chosen strategies well beyond bargaining backed by strikes, including: consumer information (the union label); boycotts; picketing; small scale and ad hoc control over the tools, speed, and process of work; occupation of industrial plants; cooperative ownership; civil rights actions; independent and/or party politics; mass exodus; or even rebellion.
Not surprisingly, while sometimes invoked by labor as well as management, an amazing range of legal practices have been used by the State in the protection of employer interest and/or the repression of labor. Frequently, law appeared in protection and expansion of the common law prerogatives of property, antitrust legislation applied to unions but not to trusts, criminal and civil conspiracy convictions sustained by courts at all levels through sweeping injunctions prohibiting labor activity, and often use of militia or the U.S. Army explicitly to break strikes.
Importantly, entering law as an intervention in collective struggle inevitably requires a view of law from the bottom up. In contrast, entering law initially via Supreme Court opinions and other elite texts tends to record legal activity as winners-only history. Yet, as American Labor Struggles and Law Histories shows, law is always constructed as one arena of social struggle, channeled and shaped by both winners and losers. The deployment of power in our society has always altered our understandings of the possibility of democracy, particularly as American workers have fought to better their lives.
November 30, 2011
Boeing Case Settling?
If you thought you saw pigs flying overhead today, it may be because of this story: the NLRB case against Boeing may be settling. According to reports, the union officials and Boeing have reached a tentative settlement that would have a new airplane built in Washington State. This is a different plane than the one being built in SC, but is apparently enough to satisfy the union. If the members ratify, the union will then inform the Board that it no longer has an issue with Boeing. Although General Counsel Solomon could still pursue the case, that's unlikely. Indeed, he was quoted as describing the agreement as a "very significant and hopeful development." He didn't say the case would end--he noted that after ratification, "we will be in discussions with the parties about the next steps in the process"--but I doubt that he is masochistic enough to pursue the case after the parties have settled.
Hat Tip: Dave
NLRB Election Rule Meeting
[UPDATE2: The meeting has now adjourned with--surprise--Pearce and Becker voting to proceed with the rule and Hayes voting against. Next step is the final draft of the rule, the Board vote to accept it or not, and if accepted to publish it.
UPDATE: Based on language by Pearce and Becker, as well as info from a reader, Member Hayes is at the meeting. I'm glad to hear it, as I think the Board will be much better served by his criticism at the meeting, rather than a Wisconsin-like circus. He actually talked about why he ultimately decided not to, such as not considering himself obstructionist, the recognition that a new member could make that action useless, and most importantly, that resigning would take the attention away from the rule itself.]
You can get a webstream of the meeting here. I can't tell for sure whether whether Member Hayes is there (bad resolution), but it doesn't look like it.
Chairman Pearce also noted that long-time labor attorney Andrew Kramer (who did a lot of work on the election rule issue), as well as a Board employee whose name I didn't catch, have passed away.
November 29, 2011
NLRB Election Rules Proposal
Q: What do the amendments in the Chairman’s resolution provide for?
A: The Chairman’s resolution contains six procedural amendments, all aimed at reducing unnecessary litigation in election cases before the Board:
- The National Labor Relations Act provides for a pre-election hearing to determine whether there exists a “question of representation” to be resolved by an election. Currently, parties can raise issues at the hearing that are not relevant to that question, which can result in unnecessary, expensive, and time-consuming litigation for the Board and all parties. The first proposed amendment gives the hearing officer authority to limit the hearing to matters relevant to the question of whether an election should be held.
- Most cases involve only routine issues based on well-known principles of Board law. In such cases, regional directors can reach a fair and sound decision based on the record from pre-election hearing, including closing arguments. Parties may currently file briefs after the hearing, but the briefing adds nothing to the regions’ decision-making process in such routine cases and substantially increases the parties’ litigation costs. The second proposed amendment authorizes the hearing officer to decide whether to permit briefing depending on whether the case presents issues that would benefit from it.
- The Board’s current rules require parties to file two separate appeals to seek Board review of pre-election issues and issues concerning the conduct of the election, respectively. Appeals concerning pre-election issues must be filed before the election, and are often subsequently mooted by the results of the election. The third amendment reduces unnecessary litigation by consolidating the two appeals into a single post-election procedure and by avoiding altogether appeals of issues that become moot as a result of the election.
- The fourth amendment follows directly from the third, by ending the practice of delaying the scheduling of elections to permit time for a pre-election appeal. (In any event, even under the current rules, the delay does not serve its stated purpose because the Board typically permits the election to be conducted and directs that the ballots be impounded while it considers the appeal.)
- In keeping with the effort to avoid multiple appeals in a single case, the fifth amendment would narrow the circumstances in which a request for special permission to appeal to the Board would be granted. Such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review. (Board review would remain available following the election on all issues for which permission to appeal was denied or not sought.)
- The sixth amendment would simplify appeal procedures and avoid litigation of appeals that do not present a serious issue for review. It would do this by giving the Board discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues.
Q: What parts of the original proposed rule are not included in the Chairman’s proposal?
A: The original proposal represents a comprehensive initiative aimed at modernizing and streamlining the Board’s procedures in representation cases from beginning to end. It includes dozens of proposed amendments of the Board’s rules affecting many aspects of representation proceedings. The Chairman’s resolution includes only six procedural changes, leaving the vast majority of the proposed amendments for continued consideration by the Board. Among the many proposed amendments not included in the Chairman’s proposal are the electronic filing of petitions, the requirement that hearings be set for 7 days after service of the notice of hearing, the requirement of a statement of position filing, inclusion of email addresses and phone numbers in the voter list, and the change of the period for filing the voter list from 7 to 2 work days.
Although there will obviously still be objections, part of this list is far more modest than even my conservative guess (at least what I thought was conservative). For instance, electronic filing and new election dates seemed more doable to me. On the other hand, some things I thought doubtful are included, such as eliminating pre-election Board reviews and limiting the topics for a pre-election hearing. The big question now is what Member Hayes will do. Stay tuned . . . .
Doorey on Doorey on Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance
David Doorey (York - Canada) has just posted on SSRN his new article forthcoming in the Osgoode Hall Law Journal: Good Employer, Bad Employer: Decentred Regulation and Fast-Track Collective Bargaining to Improve Employment Standards Compliance.
Here is the abstract:
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether "decentred" regulatory theory offers useful insights into the challenge of improving workplace law effectiveness. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist'. Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees.
The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a “dual regulatory stream” model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
The North American workplace law model is indeed broken, and this paper provides additional methods and insights from the new governance model to help repair our broken system. Count me still skeptical of self-regulatory approaches in the workplace, but Doorey's paper looks to be a must-read for anyone considering alternatives to workplace reform in Canada and the United States.
Hayes To Quit To Block Election Rules?
Following the NLRB's announcement that it would soon vote on some of the proposed election rules, a fight has broken out between the lone Repulican on the Board, Brian Hayes, and Chairman Pearce. There is a big disagreement about the extent to which the Democratic majority have allowed Hayes to participate (he argues that they haven't; Pearce says he refused to participate). Hayes has gone so far as to write a letter to the Chair of the House Education and the Workforce Committee alleging that the majority won't tell him which changes they are considering and have refused to share all the comments receive; Pearce has refuted those allegations as well. Finally, rumors are swirling that Hayes may resign to drop the Board to two members and thwart its power to issue a rule.
This incident raises a host of issues. It's unclear at this point what's really been happening, but Hayes' allegations obviously raises procedural questions that could provide ammunition for those challenging the rule. Moreover, if Hayes doesn't resign but, asanother rumor has suggested, merely refuses to participate in the vote, there is a question whether the Board would still meet its quorum requirements.
Stay tuned--there's a lot more to come.
Hat Tip: Patrick Kavanagh
AA Files for Bankruptcy, Citing Labor Costs
Bloomberg reports this morning that American Airlines parent AMR Corp. (AMR) has filed for bankruptcy "after failing to secure cost-cutting labor agreements and sitting out a round of mergers that dropped it from the world’s largest airline to No. 3 in the U.S." This will set off another fight about whether companies can use bankruptcy to back out of collective bargaining agreements. The company has filed in Manhattan -- not Texas, where it's headquartered -- presumably at least in part because the federal courts in Manhattan have used bankruptcy to nuke CBAs (but cf. Frontier Airlines). I've written on the legal issue -- see 2001 Michigan St. L. Rev. 1145 -- but if anyone's looking for a timely article/note topic, this would be a great one.
November 28, 2011
Waterstone on Genetic Discrimination
Michael Waterstone recently posted a blog item on GINA that described a talk he gave in Ireland on genetic discrimination. The full post is well worth reading, but I'll copy a small part that I found to be particularly interesting:
Ultimately, as passed, GINA is both modest and revolutionary. Modest, because it just prohibits discrimination on the basis of genetic information in employment and the provision of health insurance. There are large legal issues relating to genetic information and genetic privacy that GINA does not touch: the preference of parents for certain genetic features in unborn children, the use of genetic information in life insurance policies, and the use of stem cells to further genetic science. Yet GINA is also revolutionary: usually, in our antidiscrimination law, Congress looks backward, building a record of discrimination in a particular area before it acts. Yet despite widespread fears of genetic discrimination, GINA was passed without much evidence that this was actually occurring on a large scale. To critics, this meant it was a "remedy in search of a problem." To supporters, GINA represented a rare opportunity for the law to get out ahead of a problem and proactively create a culture that this type of discrimination is not acceptable.
Secunda on the WI Public Sector Labor Dispute
Paul Secunda (Marquete; visiting Wisconsin) has just posted on SSRN his article The Perceptible Disconnect between the Global Economic Crisis and the Wisconsin Public Sector Labor Dispute of 2011. Here's the abstract:
The enactment in June 2011 of Wisconsin Act 10, legislation that eliminated most collective bargaining rights for most public employees in Wisconsin, did not necessarily follow from the economic conditions surrounding the global recession. The argument here is that it was a blatant power grab with political, social, and economic implications. Governor Walker’s claim that Act 10’s anti-collective bargaining approach was required to balance Wisconsin’s budget is belied by two unassailable facts. First, there were a number of provisions in the law, including an annual union recertification requirement and an anti-dues checkoff provision, which had absolutely nothing to do with cost savings. Perhaps even more tellingly, when Act 10 was finally enacted by the State legislature, Walker and his allies in the legislature employed a legislative procedure which could only be utilized if Act 10 did not have any impact on state fiscal policy. In short, Governor Walker used the global economic crisis, and Wisconsin’s budget situation more specifically, as a ruse to enact a punitive bill against public sector unions.
Although unions and their allies have drafted, and continue to draft, procedural and substantive legal challenges to Act 10 based on state open meeting laws and constitutionally-based freedom of association and equal protections provisions, these legal challenges have so far been unsuccessful. If such efforts continue to be unsuccessful, it indeed may be a long time before any real public sector collective bargaining will be permitted in Wisconsin. The subsequent loss of workplace rights not only adversely impacts public sector workers, but also the citizens of Wisconsin who will be that much poorer for having to live in a society where internationally-recognized rights of association and collective bargaining are not taken seriously.
This piece discusses this historic moment in Wisconsin public sector labor law in three parts. The first section describes the story of the enactment of Wisconsin Act 10 in chronological order. The second section then considers whether the global recession in fact lead inevitably to the enactment of Act 10. Finally, the third section concludes by normatively arguing for robust public sector bargaining rights in Wisconsin and throughout the United States.