July 20, 2012
4th Circuit Upholds EEOC Subpoena in English-Only Case
Jon Harkavy sends word of EEOC v. Ranstad, in which the Fourth Circuit yesterday reversed a district court judgment denying enforcement of an EEOC subpoena relating to the validity of an employment agency's English-only policy under both Title VII and the ADA.
Using Antidiscrimination Law to Protect Domestic Violence Victims
Belinda Smith (Sydney) & Tashina Orchiston (law student - Sydney) have just posted on SSRN their article (forthcoming Australian Journal of Labour Law) Domestic Violence Victims at Work: A Role for Anti-Discrimination Law?. The downloadable article is an earlier version of the article that will be published this October. Here's the abstract:
For victims of domestic violence it is increasingly recognised that financial security is critical to their safety and ability to escape a violent relationship. The majority of victims of domestic violence are engaged in paid work, but are often reluctant to disclose their status. This reluctance can persist even when the worker needs some workplace flexibility in order to navigate the criminal justice system, make housing and/or financial arrangements or access support services. Two possible reasons for non-disclosure are: a fear that the widespread negative attitudes about victims of domestic violence will impair relationships with their colleagues and managers; and a belief that they have no rights to workplace flexibility or adjustments to deal with their circumstances. In this paper we explore whether federal anti-discrimination laws could be used to address these twin concerns and promote normative and behavioural change. By recognising ‘victims of domestic violence’ as a vulnerable group warranting protection against discrimination in the workplace, anti-discrimination laws could empower these workers to disclose their status and even expect reasonable adjustments to enable them to maintain their employment.
July 19, 2012
Doorey on A Model of Responsive Workplace Law
David Doorey (York Univ. (Canada)) has posted on SSRN his forthcoming piece in the Osgoode Hall Law Journal called "A Model of Responsive Workplace Law". As David points out, this is the final (much revised) published version of a draft paper Mike Zimmer (Loyola-Chicago) reviewed previously on Jotwell.
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 compliance with employment standards laws. 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.
Although I count myself as one of the skeptics of the decentered/new governance approach to labor relations, I am a huge fan of David's work and encourage others to read in this piece his innovative ideas for getting Northern American labor law back on the right track.
Labor and Employment LawProf Hiring: University of Mississippi School of Law
Our friend, Dean Richard Gershon, sends along this hiring announcement:
The University of Mississippi School of Law invites applications from entry-level and lateral candidates for at least two tenure-track faculty positions beginning August 2013. Our primary curricular needs are in Intellectual Property, International Law, Employment Law, Labor Law, Real Estate, and Commercial/Transactional Law, but we welcome applications from outstanding candidates in all curricular areas. We may also have a need for visiting professors. All applicants should have a distinguished academic background, and either great promise or a record of excellence in both scholarship and teaching.
Located among the rolling hills of Northern Mississippi, the University of Mississippi’s main campus is centered in Oxford, Miss., about 70 miles south of Memphis, Tenn. Oxford has been listed among the 20 Best Small Towns in America by Smithsonian Magazine, and the University of Mississippi was chosen as the most beautiful college campus for 2011 by Newsweek magazine.
The University of Mississippi is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA employer.
Entry-Level Candidates Contact: Professor David W. Case, Co-Chair, Faculty Appointments Committee, University of Mississippi School of Law, 481 Coliseum Dr., University, MS 38677.
Laterals and Visitors Contact: Professor Donna Davis, Co-Chair, Faculty Appointments Committee, University of Mississippi School of Law, 481 Coliseum Dr., University, MS 38677.
I can attest, having spent the first six years of my academic life at Ole Miss Law, that the school is a wonderful place filled with great colleagues and students. This is a hidden gem of an opportunity for the right person.
July 18, 2012
Thanks to Dennis Nolan for sending a link to this New York Times article Unions’ Past May Hold Key to Their Future. The article points out that unions were extraordinarily weak in the early 1930s, but reinvented themselves and came roaring back a decade later. Perhaps they can pull off a repeat performance. Here's the article's take-away:
But if the prospects look grim for the unions of America’s industrial era, the precedent of the 1930s — when workers organized in droves — offers perhaps a hint of a path for organized labor as the economy works its way forward from the Great Recession, a role that perhaps better fits the nation’s corporate makeup.
The future labor movement may have to give up organizing work site by work site. Its biggest political fight in the last few years — pushing a law to make it easier to organize a workplace — may be irrelevant. And fighting to create new barriers to foreign competition is probably a lost cause. Instead of negotiating for their members only, unions might do better pulling for better wages and conditions for all workers.
Some scholars, like the economist Richard B. Freeman of the National Bureau of Economic Research, suggest the labor movement could take a page from the AARP’s playbook and become a lobbying group. German-like worker councils could discuss workplace issues with management, without negotiating over pay.
Maybe unions don’t have to entirely give up collective bargaining but broaden it. A model might be the alliance between the A.F.L.-C.I.O. and the Domestic Workers Alliance of New York City to push for a bill of rights for nonunionized nannies and maids.
In any event, 80 years from now, labor organizations will probably look as different as our current unions look when compared with the guilds of 80 years ago. Today’s strongest unions — of autoworkers and airline pilots — could easily be the weakest, decimated by international competition. Unions may well be strongest in hospitals, hotels and other businesses not exposed to international trade.
But are these reinventions or abdications?
July 17, 2012
Runge on Redefining Leave From Work
Robin Runge (North Dakota School of Law) just had an article published in the Georgetown Journal on Poverty Law and Policy.
Here's the cite: Redefining Leave From Work, 19 GEO. J. ON POVERTY L. & POL’Y 445 (2012) (Westlaw Subscription required).
From the Introduction:
The concept of leave from work in the United States has been determined by a collection of social and cultural factors. Workplaces are manifestations of social and cultural beliefs about how work is done, what exceptions or modifications to those norms are acceptable, and how family life is to be conducted. Similarly, the justifiable reasons for taking leave and the qualifications necessary to access leave from work reinforce societal values regarding work and family.
The current leave-from-work laws and policies do not incorporate the work-life and non-work-life experiences of low-wage workers. As a result, the majority of low-wage workers do not have meaningful access to leave from work, and when they do, the leave is underutilized. In this way, the work and family lives of low income workers generally, and low-wage working women in particular, are devalued by effectively denying their existence in the workplace.
Although there has been extensive analysis of how to remedy work-family conflict and workplace discrimination against women as caregivers, there has been limited examination of the work-life experiences of low-wage workers outside their identity as caregivers. Framing low-income working women's issues as “work-family conflict” may not be appropriate or accurate to describe their experiences. Moreover, the focus on leave from work as a primary method for addressing gender equity without discussing employees' control over their work and family lives has ignored the work experience of many low-wage working women, thus rendering the efficacy of this tool less successful in achieving its goal of gender equity.
This Article contributes to this scholarship by incorporating an analysis of low-wage workers' experience with current leave from work laws and policies. This analysis demonstrates that current leave laws and policies have contributed to social and cultural norms about leave that result in inaccessibility and underutilization of leave from work by low-wage workers. Reasons for this underutilization include the lack of control low-wage workers have over their work and family lives, a lack of financial support or incentive to take leave from work, and the mismatch of the permissible reasons for taking leave from work with the lives of low-wage workers. By integrating the work and family life experiences of low-wage workers into leave from work laws and policies, they may become a more effective tool for addressing gender and class inequity in the workplace.
This is a very timely and important article at the intersection of employment, gender, and poverty law. Check it out!
Smaller Government = Fewer Jobs for Women
As Republicans continue to call for smaller government, Sarah Damaske explains at Psychology Today that the labor-market effect of any such downsizing will be felt primarily by women:
Although men were more likely than women to lose jobs during the Great Recession, nearly three years later, women continue to be recovering jobs at a slower pace. Analysis released this month by the Institute for Women’s Policy Research shows that women have recovered approximately 40 percent of jobs lost from 2007-2010, while men have recovered approximately 46 percent of jobs lost during that period. The primary explanation behind this deficit: public sector job loss.
Women are more likely than men to be employed in the public sector—in jobs such as teachers, librarians, and municipal workers—and the public sector has steadily lost jobs since the official end of the recession three years ago. In fact, the National Women’s Law Center released a report this month found that for women, for every 10 jobs added by the private sector, 4 jobs have been lost in the public sector. Men, on the other hand, have lost only 1 job in the public sector for every 10 jobs added by the private sector.