Workplace Prof Blog

Karin on Workplace Flexibility & the Military

Marcy Karin (ASU) and Katie Onachila have just posted on SSRN their article (American U. LEL Forum, 2012) The Military's Workplace Flexibility Framework.  Here's the abstract:

The return of combat troops from Iraq provides a valuable catalyst to take stock of the use of workplace flexibility in the U.S. military and for other employers supporting the military community. Workplace flexibility is a tool the military can use to support its operations, improve the recruitment and retention of military personnel, and fulfill its obligation to support veterans and military families. While the unique mission critical needs of the military are an inescapable variable when creating workplace flexibility policies, the military must meet the workplace flexibility needs of its services members and their families to maximize the effectiveness and efficiency of the Armed Forces. This article provides an overview of the legal framework for workplace flexibility for the military community, and observations about themes evolving from those laws.

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Kentucky Bill Would Nuke Arbitration Separability

Under the U.S. Supreme Court's separability doctrine, it's not enough to argue that a contract containing an arbitration clause is unconscionable or was procurred by fraud or duress.  To have the arbitration clause found unenforceable, the allegation of fraud or unconscionabilty must be directed specifically at the arbitration clause, not the "container agreement" as a whole.  This is misguided -- if someone gets me to sign a contract by putting a gun to my head, I shouldn't be bound by any part of the contract.

A bill introduced in the Kentucky Senate would legislatively overrule the separability doctrine.  In theory, this should overturn (in Kentucky) the Supreme Court's separability doctrine, because the Federal Arbitration Act incorporates-by-reference state contract law regarding contract revocation.  But the Supreme Court has, more than once, ignored the plain language of the FAA in favor of its policy of broadly enforcing arbitration agreements.

Unfortunately, the current version of the bill exempts employment agreements.

Hat tip: Carol Furnish.

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Proposed Rulemaking on Military Family and Airline Flight Crew Provisions of FMLA

Friend of the blog Marcy Karin (Arizona State) writes to let us know that the Department of Labor has issued a Notice of Proposed Rulemaking:

Notice of Proposed Rulemaking to Implement Statutory Amendments to the Family and Medical Leave Act

The U.S. Department of Labor announced that the Wage and Hour Division intends to publish a Notice of Proposed Rulemaking (NPRM) to implement and interpret the statutory amendments to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees and make some additional regulatory changes. The Family and Medical Leave Act (FMLA) was recently amended to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees.

Upon publication, interested parties will be invited to submit written comments on the proposed rule at www.regulations.gov. Only comments received during the comment period identified in the Federal Register published version of the Notice of Proposed Rulemaking will be considered part of the rulemaking record.

More information is available at the Proposed Rule Website.

One of my colleagues here at SLU has his environmental law students draft and submit comments on proposed rules as a way to introduce them to administrative lawmaking and the regulations process. It also forces them to dig deeper into the statutes and the policies and practical implications of enforcement. Marcy has done this too in her classes and has loved the results. She has offered to be a resource to anyone interested it trying it. I am thinking of having my employment discrimination students do the same thing after this encouragement.

MM

Loyola Debate on the Ministerial Exception and Hosanna-Tabor

On Monday, February 13, Rick Garnett (Notre Dame) and our own Paul Secunda will debate the recent Hosanna-Tabor decision and the ministerial exception at Loyola University Chicago Law School as part of its Law and Religion program. The debate will take place at noon at the law school. Click the program page for more information or to find out how to attend.

Rick and Paul are both fantastic scholars and speakers and come at this issue, not surprisingly, from quite different perspectives, both thoughtful. This will be a great event.

MM

Papers From 2011 AALS Labor & Employment Progam

Chicago-Kent's Employee Rights and Employment Policy Journal has just published the papers presented at last year's (2011) AALS Labor Relations and Employment Law Program.  As many of you will remember, the panel focused on the particularly timely topic of Julius Getman's book, Restoring the Power of Unions:  It Takes a Movement," which focuses on UNITE-HERE, the union involved with the strike at the San Francisco HIlton.  The papers are:

• Rachel Arnow-Richman, Author Meets Reader, Scholar Meets Worker: An Introduction to the Section on Labor Relations and Employment Law 2011 AALS Panel Presentation
• Maria L. Ontiveros, Building A Movement with Immigrant Workers: The 1972-74 Strike and Boycott at Farah Manufacturing
• Cynthia Estlund, "It Takes a Movement" - But What Does It Take To Mobilize the Workers (In the U.S. and China)
• Michael C. Duff, Of Courage, Tumult, and the Smash Mouth Truth: A Union Side Apologia
  
• Dennis P. Walsh, Procedural Barriers that Prevent the NLRB from Resolving Major Workers Issues
• Julius Getman, Ruminations on a Symposium

-JH

Call for Papers for American University Law Labor and Employment Law Forum

Lauren Khouri, Senior Content Editor of the American University Labor & Employment Law Forum writes to tell us that the Forum is issuing a paper call. The paper call is attached here.

Here are som details of the paper call:

The Labor & Employment Law Forum is seeking articles for publication on the following topics:

1) Employee Benefits, including:
• The effects of ‘Don’t Ask Don’t Tell’ repeal;
• The possible Defense of Marriage Act (“DOMA”) repeal;
• The ramifications of the Patient Protection and Affordable Health Care Act;

2) Politicization of the labor movement, including:
• Occupy Wall Street;
• The impact of the Citizen’s United decision on the Labor Movement;
• The continuing attack on Public Sector workers;
• Community organizing and the labor community

3) Paid Sick Days, including:
• The national paid sick day movement
• The effect of paid sick leave on women and children

PS

Recently Published Scholarship: Am. J. Comp. L.

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The American Journal of Comparative Law
vol. 60 #1 (2012)

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• Gráinne de Búrca, The Trajectories of European and American Antidiscrimination Law - Introduction to the Special Issue on Antidiscrimination Law in Europe and North America, p. 1.
• Gerard Quinn and Eilionóir Flynn, Transatlantic Borrowings: The Past and Future of EU Non-Discrimination Law and Poligy on the Ground of Disability, pg. 23.
• Bruno de Witte, New Institutions for Promoting Equality in Europe: Legal Transfers, National Bricolage adn European Governance, pg. 49.
• Julie C. Suk, From Antidiscrimination to Equality: STereotypes and the Life Cycle in the United States and Europe, pg. 75.
• Ruth Rubio-Marín, A New European Parity-Democracy Sex Equality Model and why it won't Fly in the United States, pg. 99.
• Mark Bell, Gender Identity and Sexual Orientation: Alternative Pathways in EU Equality Law, pg. 127.
• Samantha Besson, Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: It Takes Two to Tango in the Council of Europe, pg. 147.
• Luc B. Tremblay, Promoting Equality and Combating Discrimination Through Affirmative Action: The Same Challenge? Questioning the Canadian Substantive Equality Paradigm, pg. 181.
• Elizabeth F. Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, pg. 205.
• Renáta Uitz, Lessons from Sexual Orientation Discrimination in Central Europe, pg. 235.
• Sandra Fredman, Breaking the Mold: Equality as a Proactive Duty, pg. 265.

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More Post-Dukes Class Action Rulings

The Seventh Circuit issued an opinion last week applying Wal-Mart v. Dukes in a class action under the Fair Labor Standards and Illinois Minimum Wage Acts. In Ross v. RBS Citizens, the district court had certified two classes: 1. all current and former hourly employees made to work more than forty hours a week pursuant to an unofficial policy; and 2. all current and former assistant branch manager employees who claimed they were misclassified as exempt employees and made to work more than forty hours a week.

The Seventh Circuit affirmed the certification as not an abuse of discretion. The employer had argued that the classes lacked commonality as interpreted by the Supreme Court in Dukes. The Seventh Circuit distinguished Dukes in a number of ways in affirming the district court's certification. In this case, the classes constituted only about 2000 employees from Illinois only, and there were a large number of affidavits supporting the claims. And the legal question of an unofficial policy did not require individual determinations of motive, unlike discrimination claims. Finally, there was no conflict, either, between a statement of official policy and the unofficial policy alleged by the plaintiff classes to have injured them.

With very few of these Courts of Appeal applications of Dukes, this adds another important development in where class actions will go from here.

MM

A Future Supreme Court Case on Public E-Mail Privacy?

OK, so it's a bit early to be predicting Supreme Court cert., but if I were a privacy advocate, I'd be pushing hard on this case as a possible vehicle for the Court.  The reason are the facts:  mainly that the FDA engaged in substantial monitoring of employee e-mails to Congress regarding the employees' whistleblowing about their allegations that the FDA was approving unsafe devices.  According to the Washington Post:

The surveillance — detailed in e-mails and memos unearthed by six of the scientists and doctors, who filed a lawsuit against the FDA in U.S. District Court in Washington last week — took place over two years as the plaintiffs accessed their personal Gmail accounts from government computers.

Information garnered this way eventually contributed to the harassment or dismissal of all six of the FDA employees, the suit alleges. All had worked in an office responsible for reviewing devices for cancer screening and other purposes.

Copies of the e-mails show that, starting in January 2009, the FDA intercepted communications with congressional staffers and draft versions of whistleblower complaints complete with editing notes in the margins. The agency also took electronic snapshots of the computer desktops of the FDA employees and reviewed documents they saved on the hard drives of their government computers.

FDA computers post a warning, visible when users log on, that they should have “no reasonable expectation of privacy” in any data passing through or stored on the system, and that the government may intercept any such data at any time for any lawful government purpose.

There's more detail about the monitoring, which was quite robust, so check out the full article.  Obviously, there are issues about the extent to which the banner warning protects public employer monitoring and, a subset of that question, is whether on its own terms, the warning considers retaliatory purposes to be "lawful."  But the facts just sound bad for the agency, which shouldn't matter, but we all know does.

Of course, the main take-home point is what I tell my students every semester:  if you don't want your employer to see what you're doing on your computer, then don't do it at work.

-JH 

Recently Published Scholarship

• Ariana R. Levinson, Workplace Privacy and Monitoring: The Quest for Balanced Interests, 59 Cleveland St. L. Rev. 377 (2011).
• Monica Teixeira de Sousa, The State of Our Unions: How President Obama's Education Reforms Threaten the Working Class, 50 Louisville L. Rev. 201 (2011).
• William R. Corbett, What Is in GINA's Genes? The Curious Case of the Mutant-Hybrid Employment Law, 64 Okla. L. Rev. 1 (2011).
• Emily Eschenbach Barker, The Changing Face of Liberalism in Workplace Democracy: The Shift from Collective to Individual Rights, 36 Vermont L. Rev. 303 (2011).
• Heather M. Kolinsky, Taking Away an Employer's Free Pass: Making the Case for a More Sophisticated Sex-Plus Analysis in Employment Discrimination Cases, 36 Vermont L. Rev. 327 (2011).

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Call for Papers: LLRN Conference in Barcelona

Labour Law Research Network will hold its inaugural conference at Pompeu Fabra University, Barcelona, June 14-15, 2013.

LLRN was established in 2011 by 30 research centres from all over the world dedicated to the study of labour law. One of the objectives of the LLRN is to hold regular international conferences that will be entirely academic (dedicated to the presentation and discussion of original papers); entirely about labour law (broadly conceived); and will allow cutting-edge topics to surface from the participating scholars themselves, in a non-hierarchical way.

Proposals are being invited of:

• Abstracts: scholars interested in presenting papers at the conference are invited to submit an abstract of up to 500 words. Please include a title, your name and affiliation and contact information.
• Sessions: scholars are also welcome to submit proposals for full sessions, which include 3-4 papers and a discussant. Such proposals should be submitted by the organizer of the session (who will also serve as the chair), and include abstracts of all proposed papers as well as a short integrative statement explaining the theme of the session (all in one file).
• Book Symposiums: scholars who wish to organize a discussion around a recent important labour law book are invited to propose a session with 3-4 discussants and the book author as a respondent. Proposals for book symposiums do not require abstracts, just a short explanation of the book's importance and brief bios of the discussants who agreed to take part.   
• Research Centres Showcase Panels: labour law research centres are invited to propose sessions in which their research projects will be presented and discussed. The exact plan for such sessions is open for discussion with the organizing committee.

Important dates:

• October 15, 2012    Last day to submit abstracts/session proposals
• December 15, 2012    Decisions on acceptance of papers/sessions    
• May 15, 2013        Last day to submit full papers
• June 14-15, 2013    Conference

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Execs Skimp on Pension Payments to Pad Their Own Pockets

We've reported before on the underfunding of public and private pensions.  An article in The Economist points out that some of the same private-sector companies underfunding their pensions also are engaging in share-buyback schemes.  Why? Because share buybacks artificially inflate the company's stock price (it reduces the supply of stock without the need for improved company performance) and thereby justify high executive compensation and bonuses.  Meanwhile, the same companies are assuming an unrealistic 10% rate of return on investments in pension funds -- even though top executives as a group forecast equity returns of 6.3%. Good deal for corporate execs; bad deal for rank-and-file employees.

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