November 2, 2012
New Book on LEL Economics
I posted yesterday on Rachel Arnow-Richman's chapter in an upcoming book, and she responded by suggesting -- rightly so -- that we post as well on the book as a whole. The book is Cynthia L. Estlund (NYU) & Michael Wachter (U. Penn.), Research Handbook on the Economics of Labor and Employment Law (Edward Elgar Publishing forthcoming February 2013). Here's the publisher's description:
This Research Handbook assembles the original work of leading legal and economic scholars, working in a variety of traditions and methodologies, on the economic analysis of labor and employment law. In addition to surveying the current state of the art on the economics of labor markets and employment relations, the volume’s 17 chapters assess aspects of traditional labor law and union organizing, the law governing the employment contract and termination of employment, employment discrimination and other employer mandates, restrictions on employee mobility, and the forum and remedies for labor and employment claims.
Contributors include: R. Arnow-Richman, S. Deakin, Z. Eigen, R. Epstein, C. Estlund, S. Estreicher, B. Hirsch, A. Hyde, S. Issacharoff , C. Jolls, B. Kaufman, M. Kleiner, B. Sachs, E. Scharff, S. Schwab, M. Wachter, D. Weil.
Recently Published Scholarship
- Erin O'Hara O'Connor, Kenneth J. Martin, & Randall S. Thomas, Customizing Employment Arbitration, 98 Iowa L. Rev. 133 (2012).
- Benjamin C. Galea, Getting to "Sometimes": Expanding Teachers' First Amendment Rights Through "Garcetti's Caveat", 62 Case Western Res. L. Rev. 1205 (2012).
October Employment Data
In case you hadn't heard, the Department of Labor released its October employment figures today. Overall, it was better than expected. Job gains were estimated at 171,000 and the unemployment rate ticked up a tenth of a point to 7.9%; the unemployment rate is largely viewed as positive because of the increase in people looking for work. Perhaps more important were revisions to the previous months, which were revised up by a total of 64,000 jobs. The trend lately of upward revisions suggests that there may be continual improvement in the labor market as the early job estimates are unable to fully capture th eincrease in jobs. But we'll have to see if it keeps up.
November 1, 2012
Arnow-Richman on Just Notice
Rachel Arnow-Richman (Denver) has just posted on SSRN her chapter From Just Cause to Just Notice in Reforming Employment Termination Law for Wachter & Estlund's Research Handbook on the Economics of Labor and Employment Law (forthcoming February 2013). The chapter is a variation on the theme she developed earlier in her article Just Notice: Re-Reforming Employment At-Will for the 21st Century. Here's an excerpt from the abstract:
For the last quarter century, the discourse surrounding employment termination law has focused almost exclusively on the desirability of changing from an employment at will to a just cause regime. This chapter asserts that such a result is neither inevitable nor desirable. A better approach would be to require employers to provide advance warning of termination or, at the employer’s election, pay separated workers their salary and benefits for a designated period. This “just notice” approach has several advantages. First, as compared to a universal just cause rule, and perhaps even to the current system of “at-will plus exceptions,” a just notice rule is likely to engender fewer administrative costs and protect a wider swath of the workforce. Second, the rule has a clear foundation in American jurisprudence. Outside the employment context, contract law requires a party whose performance is discretionary to act in accordance with principals of good faith and fair dealing, including providing reasonable notice prior to terminating an indefinite contractual relationship. Adopting a just notice rule would bring the law of employment contracts more in line with broader contract doctrine. Finally, a just notice rule would refocus the goal of employment termination law on enabling employee transition rather than constraining employer discretion. A just notice system addresses workers’ most immediate need upon job loss – income continuity -- while preserving employers’ ability to determine whom to terminate and why. Such an approach can be normatively justified as giving force to the contemporary social contract of employment. To the extent that expectations of long-term employment with a single employer have been replaced with expectations of long-term employability in an external market, it makes sense that employers should directly bear at least some of the costs of employee transition in the inevitable event of job loss.
Fletcher Named ALI Reporter of American Indian Law
Congratulations to friend-of-the-blog Matthew Fletcher (MSU) who has just been named Reporter for the incipient Restatement of the Law of American Indians. Matthew has been great about sending along recent LEL cases involving American Indians -- especially cases involving issues of NLRB jurisidiction.
Topics to be considered for the new Restatement include federal/tribal relations, state/tribal relations, tribal jurisdiction and authority, and Indian Country business law.
From the Financial Times, via The Faculty Lounge:
Some 100 of [UBS]'s fixed income traders in London discovered at the turnstiles that their passes were no longer working when they tried to get to work on Tuesday morning. Other bankers had been contacted by phone or discovered that they might lose their jobs when their email repeatedly bounced back.
Nepotism can have advantages and disadvantages. For example, hiring relatives is easy and can lead to greater trust (what we call “swift trust”) if the relations get along and share a common purpose. Where nepotism becomes problematic is when non-relative employees feel that there is unfair favoritism, and when relatives are hired over more competent non-relatives. Unfortunately, there has been very little research on nepotism in the workplace.
Find a Therapist
Our research program is among the first investigating people’s perceptions of nepotistic practices in the workplace. For example, we have found that there are individual differences in perceptions of nepotism, with some people being accepting of nepotistic practices – thinking it is perfectly fine to have preferential treatment of relatives (“well, she is the boss’s daughter…”), and others completely rejecting of any sort of favoritism.
What we are finding, however, is that people tend to believe that there is favoritism whenever a relative is hired, regardless of whether they tolerate nepotism or not. Even when a relative is the most qualified person for the job, coworkers tend to believe that it was their family relationship, rather than their qualifications, that got the person the job.
What we intend to examine next is the impact that perceptions of nepotism may have on employee performance, motivation, and decisions to stay with the company.
October 31, 2012
Tucker: New Governance in OHS
Orly Lobel (San Diego; photo not at left)) sends word that Eric Tucker (York - Osgoode; photo left) has posted to SSRN his article Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom. Orly points out that the article "is a nice engagement with the new gov[ernance] debates and with recent osha developments". Here's the abstract:
New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism . In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.
SLU Faculty Vote No Confidence in Biondi
Marcia posted here back in August about the turbulence at Saint Louis University, the resignation of SLU Law Dean Annette Clark, and the general value of scholarship. Yesterday, following a student protest, the SLU Faculty Senate overwhelimingly voted no confidence in SLU President Biondi. Best of luck to all faculty and students at SLU and SLU Law as this unpleasantess plays itself out.
Thanks for the post, Rick,. Here is additional information about all of the steps in the middle. Before Dean Clark joined the law school, the University had been through some rather serious restructuring. Schools and departments were closed, and the graduate school was reorganized without any real faculty input. After Dean Clark resigned, the University proposed a new policy for all university faculty that seemed to require scholarship (or more scholarship) from all kinds of faculty, indcluding those on only yearly contracts and which effectively would have turned tenure into a system of six-year contracts at best. The new policy was slated to go into effect in January. After the University Faculty Senate and individual groups of influential faculty made the case that the proposal would hurt the University, that proposal was withdrawn. The faculty of the College of Arts and Sciences voted no confidence in the Vice President. The Trustees, possibly anticipating further faculty action, issued a letter in support of the President and Vice President and a committee established to move forward on how to improve SLU. Then, the full faculty senate voted no confidence in the Vice President. The President reaffirmed his support of the Vice President and said that he would not fire the VP. There were also various responses and further news stories about the no confidence vote and about the Vice President, some in response to a threatened student vote of no confidence: here, here, here, here. The Arts and Sciences faculty voted no confidence in the President a couple of weeks ago. Late last week and early this week, the faculty held teach-ins, and students held protests. This culminated in the no confidence vote by the full faculty senate yesterday.
October 30, 2012
Recently Published Scholarship: Comparative Labor Law & Policy J.
Volume 34, Number 1 Fall 2012
- Einat Albin, Introduction: Precarious Work and Human Rights, p. 1.
- Nicola Kountouris, The Legal Determinants of Precariousness in Personal Work Relations: A European Perspective, p. 21.
- Bernd Waas, A Quid Pro Quo in Temporary Agency Work: Abolishing Restrictions and Establishing Equal Treatment-Lessons to Be Learned from European and German Labor Law?, p. 47.
- Guy Davidov, The Principle of Proportionality in Labor Law and Its Impact on Precarious Workers, p. 63.
- Kamala Sankaran, The Human Right to Livelihood: Recognizing the Right to be Human, p. 81.
- Judy Fudge, Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers, p. 95.
- Virginia Mantouvalou, Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor, p. 133.
- Deirdre McCann, New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms, p. 167.
- Einat Albin, Human Rights and the Multiple Dimensions of Precarious Work, p. 193.
- Guy Mundlak, Human Rights and Labor Rights: Why Don't the Two Tracks Meet?, p. 217.
October 29, 2012
NYSBA Conference on Social Media and the Public Sector Workplace
It is co-sponsored by New York State Bar Association (NYSBA) Labor and Employment Section’s Technology in the Workplace and Practice Committee and the Hofstra Labor & Employment Law Journal.
More details are included in this announcement.
Recently Published Scholarship
- Mila Gumin, Ugly on the Inside: An Argument for a Narrow Interpretation of Employer Defenses to Appearance Discrimination, 96 Minn. L. Rev. 1769 (2012).
- Iliza Bershad, Employing Arbitration: FLSA Collective Actions Post-Concepcion, 34 Cardozo L. Rev. 359 (2012).
Johnson on Disparate Impact
Rusty Johnson (Cumberland) has posted on SSRN the most recent version of his article, "Disambiguating the Disparate Impact Claim," which will be published in the Temple Political and Civil Rights Review. The abstract:
In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or rectify the structural inequality resulting from centuries of de jure and de facto discrimination.
I argue that the origins of the disparate impact doctrine reveal another baseline proposition for the doctrine. Principally, the adoption of the business necessity prong of the doctrine reveals a concern with employment practices that contravene an established workplace governance process. This same concern exists in the present, as evidenced by the widespread efforts of employers to avow the values of fair and equitable processes in workplaces. Therefore, this article will demonstrate that a workplace governance baseline according fair and just procedures for workers exists in the modern employment context. Selection practices that distort fair procedures in the workplace contradict this normative baseline, and the disparate impact doctrine serves as a measure to remedy such procedural distortions. With this conceptualization of the reasons underlying the disparate impact doctrine, I provide an alternative basis for assessing the constitutionality of the doctrine and addressing Justice Scalia’s contentions.
Interesting stuff and worth checking out.
October 28, 2012
- Picking up from what Paul was quoted on recently, Steven Greenhouse has an article on employers lobbying employees to support specific politicians.
- Some recent posts from the NY Times' Economix blog on how you don't work as much as you think you do, the limits on low-wage workers' ability to live near better jobs, and some insights on wages.
- Walk-out and wage payment issues at Wal-Mart.\
- The NLRB's case production numbers for FY 2012.
- Kendall Isaac on the Supreme Court's pending Kloeckner case.
- Big strikes in Indonesia.
- As Michael Duff notes to me, did Romney cop to a Title VII violation when he admitted demanding "binders full of women"? Under Ricci's definition of disparate treatment, he very well might have (ignoring whether those jobs were covered by Title VII).
- An NFL player stands up for gay rights and a local politician demands that he be silenced.
- Last but not least: what candies union-friendly consumers should buy.
Hat Tips: Michael Duff, Sierra Johnson, & Brishen Rogers
Bodie on Labor, Corporate, and Political Speech
Matt Bodle (St.Louis Univ.) recently published in the Columbia Law Review's Sidebar, his essay "Labor Speech, Corporate Spreech, and Polictical Speech: A Response to Professor Sachs." The piece provides a rejoinder to Ben Sachs' argument that shareholders should be given similar objector rights to employees represented by unions. From the conclusion:
The ability of union consumers—those enjoying the fruits of representation—to opt out of political expenses is asymmetrical and improper. But Professor Sachs’s correction for this asymmetry is flawed. In order for his theory to be operationalized fairly, there would need to be opt-out rights for all economic participants who provided support for speech with which they disagree. Instead of attempting to separate these myriad intertwined strands, we should instead recognize that unions’ political activities are part of their business of providing representation services to employees. If represented employees are to pay their fair share of representation, these costs must be included as well. To provide otherwise is to unfairly restrict unions in their ability to participate in the marketplace for ideas. On this basic principle, Sachs and I agree.
This issue is likely to be important for a long time and this is another interesting take on the problem, so check it out.