February 22, 2013
Recently Published Scholarship
- V. Blair Druhan, Severe or Pervasive: An Analysis of Who, What and Where Matters When Determining Sexual Harassment, 66 Vanderbilt L. Rev. 355 (2013).
Recently Published Scholarship: ABA JLEL
- Peter J. Wiedenbeck, The Editor's Page
- Sean M. Anderson, ERISA Benefits Litigation: An Empirical Picture
- Susan E. Cancelosi, The Quandary of Federal Intervention in Retiree Health Benefits
- Jonathan Barry Forman, Optimal Distribution Rules for Defined Contribution Plans: What Can the United States Learn from Other Countries?
- Kathryn L. Moore, Social Security in an Era of Retrenchment: What Would Happen if the Social Security Trust Funds Were Exhausted?
- Dana M. Muir, Default Settings in Defined Contribution Plans: A Comparative Approach to Fiduciary Obligation and the Role of Markets
- Radha A. Pathak & Brendan S. Maher, Health Insurance & Federalism-in-Fact
- Paul M. Secunda, Lessons from the Ontario Expert Commission on Pensions for U.S. Policymakers
- David L. Johnson, The Parameters of "Solicitation" in an Era of Non-Solicitation Covenants
- Ian Hayes, The Unconstitutionality of Section 8(b)(4)(ii)(B) and the Supreme Court's Unique Treatment of Union Speech
- Jonathan Reiner, Preserving Workers' Statutory Rights: An Analysis of the NLRB General Counsel's Proposed Post-Arbitration Deferral Policy
February 21, 2013
Tiraboschi on Younger Workers in Recessionary Times, ADAPT, and E-Journal of International and Comparative Labour Studies
In cooperation with Pietro Manzella, I am delighted to start a series of international and comparative labor law posts emanating from ADAPT, a non-profit labor and employment studies organization in Italy, and its E-Journal of International and Comparative Labor Studies.
First, today's featured paper from the E-Journal of International and Comparative Labor Studies is by Professor Michele Tiraboschi entitled: Young Workers in Recessionary Times: A Caveat (to continental Europe) to Reconstruct its Labour Law?
Here is the abstract:
The current debate taking place in continental Europe on the need to reform labour law to reduce the duality between labour market insiders and outsiders, thus giving new employment opportunities to young people seems to be, at its best, a consequence of the crisis, or at its worst, an excuse. The considerable emphasis placed on the power of legislation to reduce youth unemployment prevents real labour market problems from being clearly identified, thus reducing the scope to adopt more effective measures. Action is certainly required to help young people during the current crisis, yet interventions should not be exclusively directed towards increased flexibility and deregulation. This paper questions the “thaumaturgic power” wrongly attributed to legislative interventions and put forward a more holistic approach to solve the problem of youth employment, by focusing on the education systems, school-to-work transition and industrial relations. As a comparative analysis demonstrates, in order to effectively tackle the issue of youth employment, it is not enough to reform labour law. High quality education systems, apprenticeship schemes, efficient placement and employment services, cooperative industrial relations and flexible wage determination mechanisms are the key to success when it comes to youth employment, not only in times of recession.
Clearly a high relevant and interesting labor law article for all who care about youth employment opportunities throughout the globe.
As far as the E-Journal of International and Comparative Labour Studies, it is an open-access review promoted by ADAPT University Press and run by Malcolm Sargeant and Michele Tiraboschi. It is generally concerned with issues in employment relations, human resource management, health and safety, psychology, sociology, labour economics, politics, labour law and history. More info at firstname.lastname@example.org or www.adapt.it.
ADAPT is a non-profit organisation founded in 2000 by Professor Marco Biagi with the aim of promoting studies and research in the field of labour law and industrial relations from an international and comparative perspective. Their purpose is to encourage and implement a new approach to academic research, by establishing long-term relationships with other universities and advanced studies institutes, and promoting academic and scientific exchange programs with enterprises, institutions, foundations and associations. More info is availabe at www.adapt.it.
We hope you enjoy the comning articles from this new collaboration between Workplace Prof Blog, ADAPT, and the E-Journal of International and Comparative Labour Studies.
February 20, 2013
Widiss on the PDA and ADA Interplay
Deborah Widiss (Indiana--Bloomington) has posted a new article on SSRN: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act. Here is the abstract:
Pregnancy -- a health condition that only affects women -- raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, courts regularly permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.
This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by many courts interpreting the PDA risks relegating pregnancy once again to the basement.
Timely and important--particularly since the EEOC is currently evaluating its guidance on the interaction of Title VII, the ADA, and the FMLA.
Stetson Law Review No Longer Symposium-Only
This is a general notice rather than one specific to LEL, but because now is prime-time submission season, I thought it nonetheless pertinent. Jason Bent (Stetson) informs us that Stetson Law Review, which has been a symposium-only journal, now is accepting non-symposium submissions via ExpressO.
February 19, 2013
Duff's New Workers' Compensation Textbook
Congratulations to Michael Duff (Wyoming) on the publication of his new Carolina Academic Press textbook: Workers' Compensation Law: A Context and Practice Casebook. The book's description:
The author wanted this book to serve as the perfect marriage between workers' compensation theory and practice. While the book covers most of the traditional areas of workers' compensation doctrine, it also dwells at strategic points to reflect upon the letter of the law. It dares to question doctrine and — more importantly — encourages even the beginning student of workers' compensation to do more than passively receive rules. The author draws on his real world experience as a former injured worker and workers' compensation attorney; and supplements that experience with his theoretical perspective as a teacher and scholar of administrative and employment law. The student is guided through cases by the use of probing introductory questions, reflection sections at the conclusion of many of the cases, and running commentary and ''interrogation'' by way of text boxes at critical junctures in the cases. The student becomes acquainted with a fictional injured worker — Ann Smith — early in the book and has the opportunity to reflect upon legally significant developments as her case becomes increasingly complex. In the final, problem-solving chapter titled ''In the Law Office,'' students are introduced to materials from actual cases demonstrating even more concretely how the principles they are learning are applied in practice. The resulting product is a natural fit with other titles in the Context and Practice Series. Students are introduced to a body of law through explicit engagement with it, and through exercises and commentary meant to refine their understanding through contextual interaction with black letter rules.
This sounds like a great choice for Workers' Comp classes. Moreover, as one who recently discovered the amount of work required to merely co-author a first-edition textbook, I'm in awe of doing one solo.
Lobel & Lofaso Provide a Global Perspective on 8(a)(2)
Orly Lobel (San Diego) and Anne Lofaso (West Virginia) have just posted on SSRN their chapter Systems of Employee Representation: The US Report in Systems of Employee Representation at the Enterprise: A Comparative Study (Bulletin of Comparative Labour Relations Series, Roger Blanpain, Hiroya Nakakubo and Takashi Araki Editors) (Kluwer 2012). This is a terrific addition to the 8(a)(2) literature. Here's the abstract:
Although employee-representation systems coexist with a collective-bargaining framework in continental Europe for many years, US labor advocates have looked upon those representations systems with suspicion. The reasons for this suspicion are historical: US employee-representation systems have their roots in company-dominated unions that the National Labor Relations Act was designed to prohibit. The National Labor Relations Board, the independent agency created by the New Deal Congress to administer the NLRA, has interpreted that legislation’s prohibition to essentially make unlawful most, if not all, employer-initiated employee-representation systems and many other types of employee-representations systems. While Congress’s and the Board’s efforts to prohibit employer-dominated employee-representation systems have been noble and are grounded in values designed to preserve employees’ right to workplace participation to the greatest extent, these efforts have, in fact, muffled employee voice. The problem arises in part from differences in two competing values: employee voice and employee self-organization. The article, part of a comparative study of systems of employee representation around the world, argues that while at first blush, those values appear to be co-extensive, in reality, employee voice, which focuses on employee participation and industrial democracy, is a broader concept than self-organization, which focuses on employee autonomy. That section of the NLRA that prohibits company-dominated unions values self-organization, or worker autonomy, over employee voice, or participation. Other sections of the NLRA, such as its exclusivity principle, whereby the union that the majority selects or designates is the exclusive employee representative, further serve to stifle employee voice. Against a backdrop of understanding the instrumental and principled rationale for employee-representation systems, the article asks which types of systems function well within the US legal framework, which systems do not fit within this framework, and to what extent the framework needs to change to accommodate greater participation in contemporary markets.
February 18, 2013
Herbert on Social Media & Public Sector Labor Law
William A. Herbert just posted on SSRN his article (presented at the NKU Chase Law & Informatics Symposium last week) Can't Escape from the Memory: Social Media and Public Sector Labor Law. Here's the abstract:
The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.
Bernt on Employment Contracts
Lisa J. Bernt (visiting Northeastern) just posted on SSRN her article (Syracuse L. Rev.) Tailoring a Consent Inquiry to Fit Individual Employment Contracts. Here's the abstract:
This article looks at the fundamental requirement of consent in contracts, and tailors the consent inquiry to fit the particular setting of individual employment contracts. It borrows from the approach some courts have used to assess the validity of waivers of various statutory rights. Those courts look to a non-exclusive set of factors to assess whether the waiver was knowing and voluntary. It also looks at the manner in which courts determine the validity of premarital agreements. Courts pay particular attention to whether the parties entered a premarital agreement knowingly and volun-tarily, and consider various factors, including the opportunity and ability to review and consider the agreement, external pressures on consent, the relative sophistication of the parties, and whether the parties had disclosed financial and other information to each other. Such a consent inquiry also needs to address the particular concerns that arise at various points along the employment relationship.
Recently Published Scholarship
- Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 Illinois L. Rev. 1.
- Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20 George Mason L. Rev. 545 (2013).
- Matthew P. Mooney, Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII, 62 Duke L.J. 1029 (2013).
- Alexander Volokh, Privatization and the Elusive Employee-Contractor Distinction, 46 UCDavis L. Rev. 133 (2012).
- Beverly I. Moran, Islamic Law Meets ERISA: How America's Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It, 46 UCDavis L. Rev. 209 (2012).