May 25, 2012
Becker Named AFL-CIO GC
Thanks to Laura Cooper for remidning us that former NLRB Member Craig Becker has been named General Counsel of the AFL-CIO. He will join Lynn Rhinehart, who has been the AFL-CIO's General Counsel since 2009. Before joining the NLRB, Becker served as associate general counsel to both the SEIU and the AFL-CIO.
More recently, after his NLRB stint, Becker had been a visiting professor of law at the Georgetown University Law Center.
May 24, 2012
Protests in Spain
I'm teaching International and Comparative Employment Law this summer in Madrid. It's a great time to be here in part because of events surrounding the Eurozone crisis and the economic debates about how to pull out of it. In connection with the European summit talks in Brussels that just ended, there were a couple of protests in Madrid today. One protesting the changes to labor rights that will make it easier to terminate employees and the other protesting austerity measures cutting education. It's hard to see from my bad pictures, but the protests were really large, and well organized, and there was significant enthusiasm from the crowds, too. These workers take labor rights very seriously.
May 23, 2012
Co-Authored Scholarship and Baboon Hierarchies
Michael Kraus discusses in Psychology Today how studies of baboon hierarchies help inform whether co-authored scholarship projects, especially those involving multiple co-authors, are likely to be successful. The take-away: Fewer co-authors are usually better than more, and it helps if there is a clearly defined hierarchy among the co-authors. For more, see More Teammates or Less [sic] Teammates?
EEOC Charges: A State-by-State Comparison
The EEOC has released a chart showing the number and types of EEOC charges filed by state. Texas is #1. Michael Maslanka (a partner in the Dallas office of Constangy) over at Work Matters has a theory about why this is so:
My take is brute numbers. Our state has 25 million citizens. That's a lot. And the trend will continue, with the state growing to 35 million to 45 million by 2040. (I suspect that California is third because lawyers may prefer to sue under more favorable state law, so there they file complaints with the state agency, not the federal one.)
But David Foley at LaborRelated has calculated the number of charges filed per capita. His map and chart indicaste that Alabama leads the pack, followed by Mississippi -- and that 6/7 "leading" states are in the Deep South. By contrast, Vermont, Maine, and Montana have a disproportionately small number of charges per capita.
Moberly's Latest on SOX Whistleblowing
Richard Moberly (Nebraska), the go-to person on Sarbanes-Oxley’s whistleblower provision, has just posted on SSRN his article (forthcoming South Carolina L. Rev.) Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later. Here's the abstract:
Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in legal protection available to them, whistleblowers did not play a significant role in uncovering the financial crisis that led to the Great Recession at the end of the decade. These related failures indicate that although whistleblowers had stronger and more prevalent protection than ever before, they had less reason to believe such protection works. This Article examines the developments in whistleblower law during the last decade and concludes that Sarbanes-Oxley’s most important lesson is that the usual approach to whistleblowing may not be sufficient. Encouragingly, the Article also evaluates recent developments in light of Sarbanes-Oxley’s successes and failures to demonstrate that policy makers may have learned from the Sarbanes-Oxley experience. During the last two years, regulators and legislators implemented new strategies that may encourage employees to blow the whistle more effectively.
May 22, 2012
NLRB Invites Briefs on Faculty-Employee Issue
Today, in the Point Park University case, the NLRB invites amicus briefs to help it further develop its approach to whether faculty should be considered employees or managers (there were two dissents). Like many of you, I hear people say all the time that, under Yeshiva, faculty can't unionize. But of course Yeshiva never laid out a per se rule; it used several factors to reach that conclusion given the facts of that case. That said, how those factors should apply haven't been clear, which is what the Board, upon the D.C. CIrcuit's urging, intends to address in Point Park. The invitation lists 8 questions that the Board is particularly interested in, including special considerations involving academics.
Recently Published Scholarship
- Mitchell H. Rubinstein, Employes, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland Between an Employer-and-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).
- Stacey L. Wagner, Martyrs for a Cause: How ERISA's Anti-Retaliation Provision Has Been Misinterpreted to Disadvantage Those Who Properly Report Employer Wrongdoing, 38 J. Legislation 128 (2012).
- James R. Glenn, Can Friendly Go Too Far? Ramifications of the NLRA on Employer Practices in a Digital World, 2012 J. Law, Tech., & Policy 219.
- Thomas J. McIntyre, Discriminatory Opportunism: Why Undertaking Self-Employment to Mitigate Damages Creates Unique Challenges, xlv Suffolk U. L. Rev. 549 (2012).
NYC Conference on Collective Bargaining
New York University's 65th Annual Conference on Labor, co-sponsored with Cornell University School of Industrial and Labor Relations & St John’s University School of Law, will be held June 7-8, 2012. The topic is The Challenge for Collective Bargaining. The opening reception will be June 6, 2012, at St. John’s - Manhattan Campus; the rest of the conference will be held at NYU Law.
May 21, 2012
American Law Institute - Restatement of Employment Law
Update (5/25): The Membership of the ALI approved all of Chapter 3 and the privacy sections of Chapter 7 (not the autonomy provisions which were not under consideration) on a voice vote. This leaves two chapters left before the Restatement is complete: Chapter 4 (concerning certain tort issues) and Chapter 9 (concerning employment law remedies).
The 89th Annual Meeting of the American Law Institute (ALI) is going on in Washington D.C. over the nex three days. Worklaw profs joining me here include: Cyndi Nance (Arkansas), Miriam Cherry (Saint Louis), Mike Zimmer (Seton Hall), Larry Rosenthal (N. Kentucky), Matt Bodie (Saint Louis/Notre Dame), Alan Hyde (Rutgers-Newark), and Charlie Sullivan (Seton Hall).
Of particular note, tomorrow the ALI membership will take up Chapters 3 and 7 of the Restatement of Employment Law. Chapter 3, penned by Sam Estreicher (NYU), concerns compensation and benefit issues, while Chapter 7 (written by Matt Bodie) concerns privacy and autonomy interests in the workplace (although only the privacy sections will be taken up tomorrow).
Needless to say, for those of us in attendance, it should be a lively and spirited debate tomorrow over these Chapters.