March 16, 2012
Recently Published Scholarship: Albany L. Rev.
Volume 75, Number 1, 2011/2012
Symposium, Protecting Workers' Rights in a Post-Wisconsin World
- Hina Shah & Marci Seville, Domestic Worker Organizing: Building a Contemporary Movement for Dignity and Power, prg. 413.
- James P. Allen, Jr. & Richard A. Bales, ERISA Failures and the Erosion of Workers' Rights: The Urgent Need to Protect Private & Public Workers' Pensions and Benefits, pg. 449.
- Alexandra R. Harrington, Corporate Social Responsibility, Globalization, the Multinational Corporation, and Labor: An Unlikely Alliance, pg. 483.
- Sheldon Gelman, Adopting Ohio Senate Bill 5: The Role of the Public University Presidents, pg. 511.
- Benjamin Levin, Blue-Collar Crime: Conspiracy, Organized Labor, and the Anti-Union Civil RICO Claim, pg. 559.
Brown's East Asian Labor and Employment Law: International and Comparative Context
Congratulations to Ron Brown (Hawaii) who has a new book coming out this month that deals with international labor law practice and the comparative aspects of labor and employment laws in Japan, China, and South Korea. The book is entitled: East Asian Labor and Employment Law: International and Comparative Context. While a general read, Ron tells us that he used it this semester in his Asian Labor Law class.
Here is a description from the publisher:
This book deals with international labor and employment law in the East Asia Region (EA), particularly dealing with China, South Korea, and Japan. It explores and explains the effects of globalization and discusses the role of international lawyers, business personnel, and human resource directors who are knowledgeable, culturally sensitive, and understand the issues that can arise when dealing in EA trade and investment. The text and readings (from area experts) are organized and written to provide the reader with, first, a broad understanding and insight into the global dimensions of the fast-emerging area of labor and employment issues (e.g., global legal standards and their interplay with domestic and foreign laws); and second, to show how these laws and approaches play out in specific EA countries (comparing global approaches with the specific laws of each country on four common agenda items: regulatory administration, workers’ rights, trade unions, and dispute resolution).
The book should be of interest not only to lawyers, students, human resource personnel, and government officials, but also to business investors, managers, and members of the public interested in the growing phenomenon of changing labor laws and societies in China, South Korea, and Japan.
I have read an initial draft of this book and believe it is an original contribution to this important area of study. Pick up a copy. Here is a link to the brochure on the book, with ordering instructions.
Recently Published Scholarship: Indiana L.J.
Symposium, Labor and Employment Law Under the Obama Administration
Volume 87, Number 1, Winter 2012
- Kenneth G. Dau-Schmidt & Matthew Kelley, Swimming in the Crosscurrents of History: Labor and Employment Law Under the Obama Administration, pg. 1.
- Lonnie Golden, Becoming Too Small to Bail? Propsepct for Workers in the 2011 Economy and 112th Congress, pg. 1.
- Robert J. Flanagan, Labor Policy in the Great Recession, pg. 43.
- Kenneth G. Dau-Schmidt, Keynes Was Right!, pg. 59.
- Elyce Rotella, Labor Policy and the Great Recession: An Economist's Perspective, pg. 63.
- William B. Gould IV, Beyond Labor Law: Private Initiatives to Promote Employee Freedom of Association in the Obama Era, pg. 69.
- John N. Raudabaugh, Labored Law: Bilateralism or Pluralism, Ossification or Reformation?, pg. 105.
- Karl G. Nelson, Moving Beyond the Zero-Sum Game: Joint Management-Employee Committees in the Twenty-First Century, pg. 119.
- Paul M. Secunda, The Future of NLRB Doctrine on Captive Audience Speeches, pg. 123.
- James Y. Moore & Richard A. Bales, Elections, Neutrality Agreements, and Card Checks: The Failure of the Political Model of Industrial Democracy, pg. 147.
- Rik Lineback, Comments on Proposed Changes to Captive Audience Speech Rules and Use of Card Checks, pg. 165.
- Nora L. Macey, Proposals to Reinstate the voluntary Recognition Bar and Rein in Captive Audience Speeches: A Rationale for Change at the National Labor Relations Board, pg. 177.
- Jospeh E. Slater, Public-Sector Labor in the Age of Obama, pg. 189.
- Stephen F. Befort, Public-Sector Employment Under Siege, pg. 231.
- David S. Schwartz, Claim-Suppressing Arbitration: The New Rules, pg. 239.
- Zev J. Eigen, Nicholas F. Menillo & David Sherwyn, Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a "Mandatory Arbitration Act", pg. 271.
- Martin H. Malin, The Arbitration Fairness Act: It need Not and SHould Not Be an All or Nothing Proposition, pg. 289.
- Laura J. Cooper, Employment Arbitration 2011: A Realist's View, pg. 317.
- Angela Onwuachi-Willig & Mario L. Barnes, The Obama Effect: Understanding Emerging Meanings of "Obama" in Anti-Discrimination Law, pg. 325.
- Joel Wm. Friedman, The Impact of the Obama Presidency on Civil Rights Enforcement in the United States, pg. 367.
- Deborah A. Widiss, Divergent Interests: Union REpresentation of Individual Employment Discrimination Claims, pg. 421.
- Kevin Brown, This Is a Time for Hope and Change, pg. 431.
- Scott A. Allen, Patents Fettering Reproductive Rights, pg. 445.
- R. Patrick Thornberry, Televising the Sumpreme Court: Why Legislation Fails, pg. 479.
Recently Published Scholarship: EREPJ
Employee Rights and Employment Policy Journal
Volume 15, Number 2, 2011
- L. Camille Hébert, The Supreme Court's 2010-2011 Labor and Employment Law Decisions: A Large and "Mixed Bag" for Employers and Employees, pg. 279.
- Matthew W. Finkin, Captive Audition, Human Dignity, and Federalism: Ruminations on an Oregon Law, pg. 355.
- Shelley McGill & Mark Baetz, Technology Use Codes of Conduct: Is it a Choice Between Shaping the Organizational Culture and Effective Legal Enforcement?, pg. 379.
- Irene Lurie, Enforcement of State Minimum Wage and Overtime Laws: Resources, Procedures, and Outcomes, pg. 411.
- Rachel Arnow-Richman, Author Meets Reader, Scholar Meets Worker: An Intoruction to the Section on Labor Relations and Employment Law 2011 AALS Panel Presentation, pg. 443.
- Maria L. Ontiveros, Building A Movement with Immigrant Workers: The 1972-72 Strike and Boycott at Farah Manufacturing, pg. 479.
- Cynthia Estlund, "It Takes a Movement" - But What Does It Take To Mobilize the Workers (In the U.S. and China)?, pg. 507.
- Michael C. Duff, Of Courage, Tumult, and the Smash Mouth Truth: A Union Side Apologia, pg. 521.
- Dennis P. Walsh, Procedural Barriers that Prevent the NLRB from Resolving Major Workers Rights Issues, pg. 545.
- Julius Getman, Ruminations on a Symposium, pg. 557.
- Ann Morning, Conceptualizing Race Consciousness and Diversity, pg. 559.
- Reviewed by Carolyn Shapiro, Compassion and Coalitions: A Review of Reshaping the Work-Family Debate: Why Men and Class Matter, by Joan Williams, pg. 567.
March 15, 2012
3d Circuit Applies Concepcion to Employment Arbitration
Thanks to Ian Mitchell for sending word of Quilloin v. Tenet Healthsystem Philadelphia, in which the Third Circuit held that signing an arbitration agreement prevented a nurse from bringing a wage claim as a class action.
Recently Published Scholarship: Comparative Labor Law & Policy J.
Comparative Labor Law & Policy Journal
Volume 33, Number 2, Winter 2012
- Michele Colucci & Arnout Geeraert, The "Social Dialogue" in European Professional Football, pg. 203.
- Luisa Corazza, In Search of Industrial Self-Regulation or Efficient Settlement of Employment Disputes? The Case of Italian Arbitration Reform, pg. 235.
- Breen Creighton & Pam Nuttall, Good Faith Bargaining Down Under, pg. 257.
- Richard Croucher, Mark Kelly, & Lilian Miles, A Rawlsian Basis for Core Labor Rights, pg. 297.
- Reviewed by Richard L. Kaplan, edited by Dana M. Muir & John A. Turner, Imagining the Ideal Pension System: International Perspectives, pg. 321.
(c)(4) to the Rescue
One of my earlier posts suggests problems with relying on the EEOC to fill the gap created by Wal-Mart Stores v. Dukes for employment discrimination class actions. Today's post provides more reason to be optimistic about private class actions -- at least for disparate impact claims -- than some believed possible in the wake of Wal-Mart.
The case is McReynolds v. Merrill Lynch, an opinion by Judge Posner (no, no illustrative pictures this time), which overturned a denial of class certification. The class consisted of 700 African American brokers who challenged two policies of Merrill Lynch as having an unjustified disparate impact. One was the "teaming" policy, which allowed brokers to form teams and share clients. The second was a policy that distributed the accounts of departing brokers to remaining brokers based on past success.
Neither policy was absolute in the sense that managers could veto teams and add criteria for distribution, but the class representative claimed that they had a disparate impact on the black brokers. Posner likened the teaming policy to a police department's allowing police officers to select junior officers as partners -- if male officers never select females and whites never select blacks, "the practice of allowing officers to choose their partners could be challenged as enabling sexual and racial discrimination -- as having in the jargon of discrimination law a 'disparate impact' on a protected group." And if teams tended to be more successful, accounts would tend to be redistributed to those already doing well.
In short, unlike Wal-Mart, where the only central policy was to accord managerial discretion, in McReynolds there was a central policy to constrain such discretion in these two respects, and these policies were appropriate for disparate impact attack. Accordingly, Posner reversed the reversed the denial of class certification "under Rules 23(b)(2) and 23(c)(4)," the latter of which allows for class certification for particular issues.
This is all making my colleague Jon Romberg look prescient. A decade ago, he argued for (c)(4) as a way around some of the problems with more inclusive class suits. Jon Romberg, Half a Loaf is Predominant and Superior to None: Class Certification of Particular Issues Under Rule 23(c)(4)(A), 2002 Utah L. Rev. 249. He wrote there that "When cases contain a core of common issues relating to the defendant's culpable conduct, along with a corona of individual issues, Rule 23(c)(4)(A) empowers the court to sever the common issues, certifying them for class resolution, while leaving the remaining issues for individualized resolution in later stages of the same case, or in subsequent individual cases."
That seems to be exactly what Posner had in mind because he expressly envisioned, should the disparate impact on the policies be successful, "hundreds of separate trials to determine which class members were actually adversely affected."
Posner also has some interesting ruminations on when it's appropriate to have a single resolution of a claim such as this one -- as opposed to individual decisions over many cases: "If resisting a class action requires betting one's company on a single jury verdict, a defendant may be forced to settle," which would argue against resolving the issue in a single proceeding. I'm really not so sure, but that's a question for another day.
Finally, it's worth noting that Posner approved certification under (b)(2) rather than (b)(3) -- presumably because no monetary relief would necessarily flow from the decision given the (c)(4) certification. Although the (relatively) small size of the class probably made the decision less critical from a notice cost standpoint, the fact that class members did not have to affirmatively "make waves" at this point probably helped plaintiffs.
March 14, 2012
Our own Paul Secunda was just named one of the top 50 Law Professors on Twitter, according to WordWideLearn. You can see the entire list here.
March 13, 2012
Sperino on Discrimination Statutes, the Common Law, and Proximate Cause
Sandra Sperino (University of Cincinnati College of Law) has posted on SSRN her forthcoming article in the University of Illinois Law Review: Discrimination Statutes, the Common Law, and Proximate Cause.
Here is the abstract:
The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.
Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both proximate cause and employment discrimination law change, depending on the particular context in which they are invoked. Proximate cause analysis is highly dependent on the underlying tort to which it is attached. None of the types of employment discrimination claims fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause.
This Article will accomplish three tasks. First, it develops an architecture for determining when courts have the appropriate authority to import proximate cause into federal statutes. Second, it argues that Title VII already contains liability limiting principles that make the use of proximate cause both unnecessary and inappropriate. Finally, it demonstrates theoretical and practical problems with applying proximate cause in discrimination cases.
Sandra continues to be at the forefront of employment discrimination law theory. This is a must-read for anyone interested in undertstanding where future employment discrimination doctrinal developments are heading.
D.A. Horton Appealed to 5th Circuit
ADR Prof Blog reports today that the NLRB’s decision in D.A. Horton, limiting arbitral class waivers in employment agreements, has been appealed to the Fifth Circuit. Given the political conservatism of the Fifth Circuit, I suspect that the only real question is how long it takes the court to reverse.
Diversity Training Doesn't Work
From Peter Bregman at Psychology Today:
Diversity training doesn't extinguish prejudice. It promotes it. ...
A study [Diversity Management in Corporate America] of 829 companies over 31 years showed that diversity training had "no positive effects in the average workplace." Millions of dollars a year were spent on the training resulting in, well, nothing. Attitudes — and the diversity of the organizations — remained the same.
It gets worse. The researchers — Frank Dobbin of Harvard, Alexandra Kalev of Berkeley, and Erin Kelly of the University of Minnesota — concluded that "In firms where training is mandatory or emphasizes the threat of lawsuits, training actually has negative effects on management diversity."
... When people divide into categories to illustrate the idea of diversity, it reinforces the idea of the categories. ... Categories are dehumanizing. They simplify the complexity of a human being. So focusing people on the categories increases their prejudice.
The solution? Instead of seeing people as categories, we need to see people as people. Stop training people to be more accepting of diversity. It's too conceptual, and it doesn't work. Instead, train them to do their work with a diverse set of individuals. Not categories of people. People.
Teach them how to have difficult conversations with a range of individuals. Teach them how to manage the variety of employees who report to them. Teach them how to develop the skills of their various employees.
And, while teaching them that, help them resist the urge to think about someone as a gay person, a white man, a black woman, or an Indian. Also help them to resist the urge to think about someone as "just like me" — that's a mistake too.
Move beyond similarity and diversity to individuality. Help them see John, not as a gay white man, but as John. Yes, John may be gay and white and a man. But he's so much more than that. Don't reinforce his labels, which only serve to stereotype him. Reveal his singularity. Don't ask: What are the dreams of a gay white man. Ask: What are John's dreams? What does he hate? What are his passions?
The antidote to the ineffectiveness of diversity training is the opposite of diversity training. If you want diversity, think about an individual, then another, then another.
Levinson on Labor Arbitration of Employment Claims
Ariana Levinson (Louisville) has just posted on SSRN her article (forthcoming U. Michigan J. Law Reform, 2013) What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims. I'm fairly certain this is the first study of its kind. Here's the abstract:
This article contributes to the debate over mandatory arbitration of employment discrimination claims in the unionized sector, which, in light of the proposed prohibition on union waivers in the Arbitration Fairness Act, has significant practical implications. Fundamentally, the article is about access to justice. The article examines 160 labor arbitration opinions and awards in employment discrimination cases. The author concludes that labor arbitration is a forum in which employment discrimination claims can be and, in some cases, are, successfully resolved. Based upon close examination of the opinions and awards, the article recommends legislative improvements targeting statutes of limitations, compulsory process, remedies, class actions and, in certain cases, discovery, the standard of review, and a union’s duty of fair representation.
Glynn on LEL Enforcement
Tim Glynn (Seton Hall) has just posted on SSRN his article (forthcoming BJELL 2012) Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations. Here's an excerpt from the abstract:
This Article traces the decline of the traditional mechanisms for enforcing workplace rights and diagnoses the failure of existing self-regulatory regimes. It then proposes a different strategy for enhancing compliance within firms: imposing “professional-like” supervisory duties on high-ranking corporate officers to ensure firm compliance with work-law standards. Existing self-regulatory models fail precisely because receding oversight and enforcement risks render their inducements too weak to ensure genuine self-regulation. But the principal decision-makers within these firms would approach compliance with far greater vigor if they were bound — personally — to do so. In an era in which the shortcomings in external enforcement are unlikely to be eliminated, supplementing firm-level accountability with a carefully calibrated regime that targets firm decision-makers themselves offers a potentially effective and cost-efficient way to promote greater adherence to work-law mandates.
March 12, 2012
Albany Law Review: "Protecting Workers’ Rights in a Post-Wisconsin World: Strategies for Organizing and Action in an Era of Diminished Resources and Embattled Unions"
The Albany Law Review recently published a handful of articles on issues relating to workers rights that should be of much interest to many blog readers. The articles are in a symposium entitled: "Protecting Workers’ Rights in a Post-Wisconsin World: Strategies for Organizing and Action in an Era of Diminished Resources and Embattled Unions."
The articles in the symposium include:
Hina Shah & Marci Seville, Domestic Worker Organizing: Building a Contemporary Movement for Dignity and Power 75 Alb. L. Rev. 413 (2011/2012)
James P. Allen, Jr. & Richard A. Bales, ERISA Failures and the Erosion of Workers' Rights: The Urgent Need to Protect Private Practice & Public Workers' Pensions and Benefits 75 Alb. L. Rev. 449 (2011/2012)
Alexandra R. Harrington, Corporate Social Responsibility, Globalization, the Multinational Corporation, and Labor: An Unlikely Alliance 75 Alb. L. Rev. 483 (2011/2012)
Sheldon Gelman, Adopting Ohio Senate Bill 5: The Role of the Public Univeristy Presidents 75 Alb. L. Rev. 511 (2011/2012)
Benjamin Levin, Blue-Collar Crime: Conspiracy, Organized Labor, and the Anti-Union Civil RICO Claim 75 Alb. L. Rev. 559 (2011/2012)
Check them all out!
Bisom-Rapp and Zimmer on Northern American Border Wars
Susan Bisom-Rapp of Thomas Jefferson School of Law and Mike Zimmer of Loyola University Chicago School of Law have just posted on SSRN a paper, North American Border Wars: The Role of Canadian And American Scholarship in U.S. Labor Law Reform Debates.
Abstract: The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This paper will briefly trace the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought his experience and insights with him, rapidly becoming one of the foremost labor law scholars in the United States. His influence in the 1990s, and hence the influence of Canadian ideas, on the ultimately unsuccessful labor law reform proposals of President Clinton’s Dunlop Commission is widely recognized.
Professor Weiler’s proposals are once again the basis for scholarly and policy debate. This time, however, Canadian ideas and experience have prompted a scholarly border skirmish. Recently, when new legislation – the Employee Free Choice Act – was proposed to Congress to implement a number of reforms of the National Labor Relations Act based on the Canadian experience, several U.S. academics argued that the actual Canadian experience where these reforms were in place resulted in higher unemployment and slower economic growth. Canadian labor scholars, fearing the corrosive effects of such critiques on their own labor relations regime, responded with rejoinders challenging the work of the American scholars. Clearly, and notwithstanding American provincialism, Canadian-influenced labor law scholarship has played a central role in U.S. policy debates, creating a favorable intellectual environment for labor law convergence. Yet the opponents of U.S. labor law reform also deploy scholarship aimed at the Canadian experience in order reinforce the divergent paths of the two systems, as do Canadian scholars acting defensively to forestall greater convergence of the Canadian regime to the U.S. model.
They will deliver on March 19, 2012, at the Tenth Annual Marco Biagi Conference in Modena, Italy. The conference is in memory of Professor Biagi who was assassinated ten years ago by the Red Brigades for having proposed changes to Italian labor law.
Recently Published Scholarship
- Roger M. Baron & Anthony P. Lamb, The Revictimization of Personal Injury Victims by ERISA Subrogation Claims, 45 Creighton L. Rev. 325 (2012).
- Jacqueline Rau, No Fault Discrimination? Using the Americans with Disabilities Act as a Model for "Norm Advocating" Mediation in Title VII Disputes, 27 Ohio St. J. Disp. Resol. 241 (2012).
DOL Extends Comment Period on FLSA Application to Domestic Service
The deadline for comments is extended from March 12 to March 21. Here's the DOL notice. Thanks to Kenneth Shiotani (National Disability Rights Network) for giving us the heads-up.
My friend Mike Zimmer is famous for his "slicing and dicing" article,which rightly critiques courts for dividing plaintiffs' proof into small pieces -- none of which is sufficient to show discrimination.
I've just finished reading a case out of the Eighth Circuit which goes considerably further than anything Mike decried. By the time the district court and circuit court had made mincemeat out of the EEOC's case, there was, almost literally nothing left. EEOC v. CRST Van is one of the more remarkable opinions I have ever read in its ability to deploy substantive and procedural law to reduce what appeared to be a dramatic pattern of sexual harassment to a few stray claims.
At issue was harassment in a training program for a company operating the largest fleet of "team driven" tractor-trailers. The business model put a team of drivers in the same cab for as much as 21 days, with the drivers alternating sleeping and driving to maximize mileage and minimize stops. The potential for harassment as women enter that previously male-only business is pretty obvious. And to get a full time/full pay job, women had to successfully complete CRST's training program, the core of which is a "28-day over-the-road training trip with an experienced 'Lead Driver.'"
You guessed it. One woman filed an EEOC charge claiming harassment by two Lead Drivers. The EEOC investigated and ultimately brought suit, informing the court that it had a good faith belief that about 270 had actionable claims for discrimination. Sounds pretty serious, huh? Not so much. Here are a few highlights of judicial mincing:
- The circuit upheld the district court's dismissal of the claims for 67 more women because the Commission had failed to investigate/conciliate for these employees before suit.
- The Eighth Circuit affirmed no automatic liability for the company for harassment by Lead Drivers because they were not "supervisors" -- although it seems hard to credit that they did not have enormous power in determining who would become a full time driver, the court found that they the Lead Drivers did not have decision-making power but only made "recommendations" as to whether trainees could do the job.
- The court upheld summary judgment for the employer as to 9 of 11 women because the harassment they suffered wasn't severe or pervasive (mere "offensive utterances" weren't enough, even when coupled with "poor hygiene"), although it reversed the district court as to two of them.
- As to 21 women, the harassers were co-workers (recall, Lead Drivers aren't supervisors), which mean that CRST could be liable only for negligence, and the company lacked actual or constructive notice as to 10 of them
- As for the remaining 11, there was no liability because CRST acted promptly when it received notice.
Ironically,CRST has gotten attention not so much because of the oinion's remarkable exercise in reducing to chump change what is apparently a wide-spread pattern of sex discrimination at one of the nation's largest transportation company's but rather for the Eighth Circuit's vacation of an award of $4,000,000 to the defendant against the CRST. Apparently, even in the Eighth Circuit it's possible to carry a good joke too far. Or maybe not -- the vacation was "without prejudice" to the district court's awarding fees later.