Workplace Prof Blog

Forthcoming Employee Rights Employment Policy Journal Symposium on Decent Work

When I'm not teaching, writing, reading, or occasionally blogging, I'm lucky enough to get to work on every issue of the Employee Rights and Employment Policy Journal. I've learned so much by working on the articles published in this really excellent peer review specialty journal, but I rarely get the chance to post about them before the issue comes out. The issue we will send out this June is an exception.

In this issue, Susan Bisom-Rapp (Thomas Jefferson) organized a symposium on Decent Work in a Post-Recessionary World, and assembled a great group of articles on the subject. Here's a little preview:

•   Janice R. Bellace (Penn’s Wharton School) examines the connection between “decent work,” as expressed in the ILO's 2008 Declaration and 1998 Declaration of Fundamental Principles and Rights at Work, tracing the ILO’s commitment to social justice back to its founding, demonstrating that the agency’s purposes and goals serve as a link between the human rights principles expressed in the 1998 Declaration and the proactive stance of the ILO’s decent work program, which provides a foundation for sustainable economic recovery.
• Roger Blanpain (University of Leuven (Belgium) and University of Tilburg (the Netherlands)), provides  a perspective from Brussels, the capital of the European Union (EU), reviewing EU efforts to promote the goals and principles of decent work in a Europe reeling from the effects of the global economic crisis.
• Susan Bisom-Rapp (Thomas Jefferson), Andrew Frazer (University of Wollongong, New South Wales), and Malcolm Sargeant (Middlesex University Business School, London), employ decent work as a yardstick to examine how older workers fared during the global financial crisis and are faring during the recovery in  Australia, the United Kingdom, and the United States.
• Michael J. Zimmer (Loyola, Chicago), tackles the long-standing, global decline of the trade union movement and its connection to global increases in income inequality, the latter a central concern of the decent work agenda. 
• Peggie R. Smith (Wash. U)examines the regulatory challenges associated with securing decent work for an economically-marginalized group, those laboring in domestic service, providing both a global and local focus
• Timothy P. Glynn (Seton Hall) writes about decent work and workplace law enforcement at a time in which many US corporations have imported a central characteristic of globalization – shifting production or services to independent thirdparty suppliers. 

The symposium is an excellent introduction to international and comparative labor law, and explores many incredibly important questions surrounding the standards of living and working made more complicated by the global recession. We all should be thinking about these things if we're not already. Look for the issue to hit your local library sometime in June.

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Duru's Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL

Congratulations to Jeremi Duru (Temple) on the publication of his impressive new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (Oxford University Press).
 
From the press release:

Two days before Super Bowl XLI in 2007, the game’s opposing head coaches posed with the trophy one of them would hoist after the contest. It was a fairly unremarkable event, except that both coaches were African American--a fact that was as much of a story as the game itself.  Head coaching in the NFL had long been a whites-only business, and just a few years earlier such a matchup was unthinkable. In 2002, however, two lawyers, Cyrus Mehri and Johnnie Cochran, together with a few grizzled NFL veterans, began a movement that would expand opportunities for coaching aspirants of color in the NFL and ultimately transform the League’s racial landscape.
 
Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America’s most popular sport and added an extraordinary new chapter to the civil rights story.

More information on the book is available at www.advancingtheball.com. I look forward to reading this fascinating book. Everyone should check it out!  

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New Comparative Book

Giuseppe Casale, Ed., The Employment Relationship: A Comparative Overview (Hart Publishing 2011).  Here's the publisher's description:

The issue of who is or is not in an employment relationship has become problematic in recent decades as a result of major changes in work organization as well as in the adequacy of legal regulation in adapting to such changes. In different parts of the world there is increasing difficulty in establishing whether or not an employment relationship exists in situations where the respective rights and obligations of the parties concerned are not clear, where there has been an attempt to disguise the employment relationship, or where inadequacies or gaps exist in the legal framework or in its interpretation or application. Vulnerable workers appear to suffer most in these situations. At the same time, social partners and labour administrators have emphasized that globalization has increased the need for protection against circumvention of national labour legislation by contractual and/or other legal arrangements.

The employment relationship is under ever-closer scrutiny, not only by labour lawyers, but also by workers, employers and the judiciary. Changes in the world of work have modified traditional notions of the employment relationship. These changes in the ‘standard employment relationship’ shape the scope of protection and application of labour legislation and automatically affect the way labour law is implemented.

This book presents the ways the scope of labour legislation applies to the realm of the employment relationship. Terms, notions, definitions, laws and practice in the various regions of the world are herein reported.

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Holiday Reading

Philip Dray, There is Power in a Union: The Epic Story of Labor in America (Random House 2010), available at Amazon.  Here are notes from the publisher:

From the textile mills of Lowell, Massachusetts, the first real factories in America, to the triumph of unions in the twentieth century and their waning influence today, the con­test between labor and capital for their share of American bounty has shaped our national experience. Philip Dray’s ambition is to show us the vital accomplishments of organized labor in that time and illuminate its central role in our social, political, economic, and cultural evolution. There Is Power in a Union is an epic, character-driven narrative that locates this struggle for security and dignity in all its various settings: on picket lines and in union halls, jails, assembly lines, corporate boardrooms, the courts, the halls of Congress, and the White House. The author demonstrates, viscerally and dramatically, the urgency of the fight for fairness and economic democracy—a struggle that remains especially urgent today, when ordinary Americans are so anxious and beset by eco­nomic woes.

Philip Dray is the author of At the Hands of Persons Unknown: The Lynching of Black America, which won the Robert F. Kennedy Book Award and made him a Pulitzer Prize finalist, and Stealing God’s Thunder: Benjamin Franklin’s Lightning Rod and the Invention of America, and the coauthor of the New York Times Notable Book We Are Not Afraid: The Story of Goodman, Schwerner, and Chaney, and the Civil Rights Campaign for Mississippi. He lives in Brooklyn.

Hat tip: Carol Furnish.

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Labor Rights as Human Rights

Congratulations to Colin Fenwick (Melbourne L.S.) and Tonia Novitz (U. Bristol) on the publication of their book Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, Oxford, 2010).  Here are the publisher's notes:

Concerns associated with globalisation of markets, exacerbated by the 'credit crunch', have placed pressure on many nation states to make their labour markets more 'flexible'. In so doing, many states have sought to reduce labour standards and to diminish the influence of trade unions as the advocates of such standards. One response to this development, both nationally and internationally, has been to emphasise that workers' rights are fundamental human rights. This collection of essays examines whether this is an appropriate or effective strategy.

The book begins by considering the translation of human rights discourse into labour standards, namely how theory might be put into practice. The remainder of the book tests hypotheses posited in the first chapter and is divided into three parts. The first part investigates, through a number of national case studies, how, in practice, workers' rights are treated as human rights in the domestic legal context. These ten chapters cover African, American, Asian, European, and Pacific countries. The second part consists of essays which analyse the operation of regional or international systems for human rights promotion, and their particular relevance to the treatment of workers' rights as human rights. The final part consists of chapters which explore regulatory alternatives to the traditional use of human rights law. The book concludes by considering the merits of various regulatory approaches.

The publisher has graciously agreed to give readers of Workplace Prof Blog a 20% discount on orders of the book. To receive the discount, type ‘HRW’ in the special instructions field when ordering online. The discount will not show up on the order confirmation but will be applied when the order is processed.

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Grover, Sperino, & Gonzalez on Employment Discrimination

Congratulations to Susan Grover (William & Mary), Sandra Sperino (Temple, en route to Cincinnati), and Jarod Gonzalez (Texas Tech) on the impending publication of their casebook Employment Discrimination: A Context and Practice Casebook (Carolina Academic Press, forthcoming December 2010).  Here are the publisher's notes:

Students will be better prepared for professional life if they leave law school with an ability to conceptualize legal theory, a sensitivity to the contexts in which legal rules operate and a concrete understanding of the lawyer's role as a professional problem solver. While retaining the methods used in traditional legal education, this text uses numerous exercises designed to engage students beyond the realm of traditional legal reasoning and to develop a core skill set crucial to employment discrimination attorneys.

Employment Discrimination: A Context and Practice Casebook asks students to view legal problems through different lenses, from the perspective of a plaintiff's lawyer, a judge, an in-house counsel, a defense attorney, a victim of discrimination, a person accused of discrimination, a human resources professional, and an employer. It helps students gain an understanding of what each of these individuals might consider in resolving a legal problem. The exercises' fact patterns involve both litigation and transactional contexts to help students understand the multi-faceted roles of employment discrimination attorneys.

Perhaps most importantly, this book also tries to help students understand how the policy and theory underlying discrimination law affect the doctrine. The book contains numerous problems challenging students to question the underlying theory of American employment discrimination law and to consider how the law might work differently if it were based on a different set of theoretical assumptions.

One of the highlights of the text is the Capstone Experience. The Capstone Experience gives students an opportunity to combine the theoretical, doctrinal, historical, and practical knowledge they have gained throughout the casebook and to use that knowledge to resolve real-world problems. The Capstone Experience provides five different exercises, each focusing on a different skill set.

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Congrats to Dau-Schmidt, Covington, & Finkin

West Publishing has just announced a December publication date for the 4th edition of Ken Dau-Schmidt, Robert Covington, & Matt Finkin, Legal Protection for the Individual Employee (the photo is of the 3d edition).  Here's the publisher's description:

This book is intended for courses on the individual rights of workers in the employment relationship, independent of courses on the law governing collective bargaining or employment discrimination. It can be used for one three credit survey course on employment law, or for two related courses on employment law and employee benefits, each of two credits. The book covers the full range of employment law subjects from pre-employment screening, individual employment contracts, the employment at-will doctrine, exceptions to the employment at–will doctrine, obligations of employees, monitoring and control of employees, the regulation of pay and hours of work (FLSA), the regulation of occupational safety and health (OSHA), state and federal regulation of workers compensation, unemployment compensation, and the regulation of employee benefits (ERISA). The book has been substantially updated from the last issue to facilitate teaching and to include such topics as: the Genetic Information Non-discrimination Act (GINA), employee privacy issues in the new information technology, the proposed restatement of employment law, and recent enactments in unemployment compensation and health care. Where appropriate, the book presents interdisciplinary discussions of employment law problems from historical, sociological and economic perspectives. Efforts were also made to include relevant empirical evidence on important employment law questions. A recurring theme in the book, especially in the introductory chapter and the chapters on individual employment contracts, is the historical tension in the United States between legal ideologies of “free labor,” i.e., of the law as conducing toward freedom in the contracting which is indifferent to outcome or of the law as conducing toward outcomes that conduce toward equality and fairness.

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The Happy Lawyer

Congratulations to Nancy Levit and Doug Linder (both UMKC) on the publication of their book The Happy Lawyer: Making a Good Life in the Law (Oxford University Press; also available (for less) at Amazon).  Here's an excerpt from the publisher's notes:

The Happy Lawyer  examines the causes of dissatisfaction among lawyers, and then charts possible paths to happier and more fulfilling careers in law. Eschewing a one-size-fits-all approach, it shows how maximizing our chances for achieving happiness depends on understanding our own personality types, values, strengths, and interests.

A timely book at a not-so-great time to be a lawyer.

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Public Sector Employment, 2d

Congratulations to Marty Malin (Chicago-Kent), Joe Slater (Toledo), and Ann Hodges (Richmond) on the publication of the second edition of their casebook Public Sector Employment (available in December)!  Here's the publisher's description:

This law school casebook includes materials dealing with constitutional rights of public employees, civil service, tenure and other laws specific to public employees, as well as public employee collective bargaining statutes and/or significant unionization among public employees. It emphasizes how the law governing the public sector workplace differs from the private sector. The book facilitates classroom examination of different policies, issues, and concerns that arise when government is the employer. Laws from a variety of states, as well as the federal government, enables the instructor to compare different approaches to matters such as bargaining unit definitions, scope of bargaining, impasse resolution, and grievance arbitration.

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Denning, McCormick and Lipshaw on Becoming a Law Professor

Congratulations to Brannon P. Denning (Cumberland School of Law), our own Marcia McCormick (Saint Louis University - School of Law), and Jeffrey M. Lipshaw (Suffolk University Law School) on the publication of their new book: Becoming a Law Professor: A Candidate's Guide (ABA 2010).

Here is the abstract:    

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.

The book should be available from the ABA later in 2010.

For those of you on both sides of the law professor hiring process, the timing of this publication could not be better with the first distribution of the FAR electronic resumes due out next week. I have the distinct pleasure of counting all three of these wonderful people as good friends and their advice in this area should be especially worthwhile for those ready to consider becoming a law professor.

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Levit and Linder Publish "The Happy Lawyer"

Congratulations to Nancy Levit and Doug Linder at UMKC Law for the publication of their important new book: The Happy Lawyer: Making a Good Life in the Law.

Here is the press release:

You get good grades in college, pay a small fortune to put yourself through law school, study hard to pass the bar exam, and finally land a high-paying job in a prestigious firm. You're happy, right? Not really. Oh, it beats laying asphalt, but after all your hard work, you expected more from your job. What gives?

The Happy Lawyer examines the causes of dissatisfaction among lawyers, and then charts possible paths to happier and more fulfilling careers in law. Eschewing a one-size-fits-all approach, it shows how maximizing our chances for achieving happiness depends on understanding our own personality types, values, strengths, and interests.

Covering everything from brain chemistry and the science of happiness to the workings of the modern law firm, Nancy Levit and Doug Linder provide invaluable insights for both aspiring and working lawyers. For law students, they offer surprising suggestions for selecting a law school that maximizes your long-term happiness prospects. For those about to embark on a legal career, they tell you what happiness research says about which potential jobs hold the most promise. For working lawyers, they offer a handy toolbox--a set of easily understandable steps--that can boost career happiness. Finally, for firm managers, they offer a range of approaches for remaking a firm into a more satisfying workplace.

Read this book and you will know whether you are more likely to be a happy lawyer at age 30 or age 60, why you can tell a lot about a firm from looking at its walls and windows, whether a 10 percent raise or a new office with a view does more for your happiness, and whether the happiness prospects are better in large or small firms.

No book can guarantee a happier career, but for lawyers of all ages and stripes, The Happy Lawyer may give you your best shot.

I believe this new book will become essential reading for law professors advising their students on career paths in this new economy. Pick up a copy!

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Wiedenbeck on ERISA: Principles of Employee Benefit Law

Peter J. Wiedenbeck (Washington University) has published: ERISA: Principles of Employee Benefit Law (Oxford University Press, 2010).

More information is available at the TaxProf Blog.

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Waterstone et al. Review Bagenstos's Book on Disability Rights

Michael Waterstone (Loyola Los Angeles) posted this morning, over at PrawfsBlawg, about his co-authored review of Sam Bagenstos's book (mentioned on Workplace Prof Blog here) on disability rights.  With Michael's permission, I am cross-posting his post here:

I am happy to share a new project I have been working on.  Along with David Wilkins and Michael Stein, I have co-authored a book review of Sam Bagenstos's book Law & Contradictions of the Disability Rights Movement.  Our book review, available [on SSRN] here, is forthcoming in the Harvard Law Review.

One of the main themes of Professor Bagenstos's book is that while the Supreme Court can be criticized for how it has interpreted the Americans with Disabilities Act, its decisions may also be be fairly explained by contradictions within the disability rights movement.  This diversity of interests has created tensions within the movement’s goals, allowing the Rehnquist Court to select interpretations of the scope of disability rights from among a competing set of principles articulated by members of this large and contentious movement.

We agree with most of what Professor Bagenstos offers in his book, and recognize it as an important and novel contribution to the literature.  In our Review, we suggest that Professor Bagenstos implicitly raises an even more fundamental question: given that internal divisions have undermined the movement’s goals, why have disability rights advocates failed to develop strategies for bridging – or at the very least, camouflaging – their differences in order to present a more effective, united front? We use this Review as an opportunity to discuss the role of “disability cause lawyering,” a topic unaddressed by both the disability rights and cause lawyering scholarship.  We hope this is the beginning of a series of projects in this area. 

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Estlund: Regoverning the Workplace

Many congratulations to Cynthia Estlund (NYU) on the publication by Yale University Press of her new book Regoverning the Workplace.  Those of us with gray hair will recognize the title as a take-off on Paul Weiler's book Governing the Workplace.  Like Weiler's book, Estlund's will be a game-changer.  Here's the publisher's description:

This original book seeks to shape current trends toward employer self-regulation into a new paradigm of workplace governance in which workers participate. The decline of collective bargaining and the parallel rise of employment law have left workers with an abundance of legal rights but no representation at work. Without representation, even workers’ legal rights are often under-enforced. At the same time, however, many legal and social forces have pushed firms to self-regulate—to take on the task of realizing public norms through internal compliance structures.

Cynthia Estlund argues that the trend toward self-regulation is here to stay, and that worker-friendly reformers should seek not to stop that trend but to steer it by securing for workers an effective voice within self-regulatory processes. If the law can be retooled to encourage forms of self-regulation in which workers participate, it can help both to promote public values and to revive workplace self-governance.

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Samuel Issacharoff (NYU) (left) & Erin Scharff (NYU student) have just posted on SSRN their chapter Antidiscrimination in Employment: The Simple, the Complex, and the Paradoxical (forthcoming in THE LAW AND ECONOMICS OF LABOR AND EMPLOYMENT LAW, Cynthia Estlund and Michael L. Wachter, eds., Edward Elgar).  Here's the abstract:

Employment discrimination law has come a long way since it confronted the simple exclusion of minorities or women from desirable positions in the workforce. The expansion of protected groups and the dismantling of the more overt forms of exclusions has strained the antidiscrimination norm embodied by Title VI of the Civil Rights Act of 1964. As the law expanded the class of protected workers, its redistributive aims grew more pronounced. This chapter of a forthcoming handbook on the economic foundations of labor and employment law and provides an overview of this shift, focusing on the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Americans with Disabilities Act. With each further expansion of the reach of employment discrimination laws, the relation between bias and what may be termed employers’ economically rational discrimination became a more significant part of the case law. This chapter addresses some of the underlying labor economic issues as civil rights laws confront accommodation requirements and redistributive aims.

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Maltby on Workplace Rights

Lewis Maltby has just published Can They Do That?: Retaking Our Fundamental Rights in the Workplace.  Here's the publisher's description:

Is it legal for your boss to fire you for what you write on your personal blog? Or for putting the “wrong” candidate’s bumper sticker on your car? Or for having a high risk of a future disease? Shockingly, all of these are allowed—and really happen, everyday, in America. Lew Maltby of the National Workrights Institute shares true stories of employees who have been fired or harassed unfairly — but legally. For instance, he exposes bosses who:

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• Place hidden cameras in restrooms
• Fire employees for their political orientations
• Track employees through cell phone GPS locators
• Fire people for social drinking after work
• Require applicants to provide outrageous details on their religious beliefs and sex lives
• Force employees to donate to politicians 

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Mississippi Law Journal Launches New Online Companion - MISSing Sources

A shout-out to the law journal at my old stomping grounds. The Mississippi Law Journal is announcing the launch of its new online companion - MISSing Sources:

MISSing Sources began in the fall of 2009 and features (1) student articles such as case notes and comments, (2) responses to printed articles and (3) short faculty/practitioner essays.
 
Our goal is to create an online companion to our print-version of the Mississippi Law Journal, which features pieces from students, faculty, and practitioners. We hope to foster an arena for extended academic discussion on current legal issues, while also providing a formal outlet for citation by subsequent law reviews and courts. Responses and essays can be written, posted, and accessed in a very timely fashion, avoiding the printing process that can take months.
 
At the beginning of each school year, we will have a group of articles released together. After which, we will upload new content as they become available throughout the year. Rather than separate issues for its content, each article will be referenced to the concurring print journal issue. Each article will be archived on our website for future access.
 
For example: David G. Sansing, Walker W. Jones, III & Jason R. Bush, Unequal Justice: An Unintended Consequence in Mississippi Counties with Two Judicial Districts, 79 Miss. L.J. MISSing Sources 1 (2009), http://mslj.law.olemiss.edu/missingsources/volume79/essays/Sansing.pdf.
 
We would like to offer your Workplace Prof Blog readership, other practitioners, professors, and colleagues alike an exciting opportunity to contribute to MISSing Sources. We are continually accepting and reviewing potential content and encourage them to join in - even if only a few pages. We are open to both informal and formal works.

For more information - or to simply view our content - please visit their website. If you have any questions, please contact Stephen Smith at spsmith2@olemiss.edu or their Electronic Journal Executive Editor, Arthur Park, at arthurjpark@gmail.com.
 
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Brown on Understanding Labor and Employment Law in China

Ron Brown (Hawaii) has a new book by Cambridge coming out this month entitled: Understanding Labor and Employment Law in China.

A description from Ron:

Many would agree that one of the more significant areas of legal growth and social need in recent times in China is labor and employment law. Foreign investors and Chinese alike are discovering they must now, more than ever, pay attention to the new legal requirements. The government seeks to balance economic growth and social needs, while maintaining its competitive advantage; and, now at the same time it must deal with the global economic downturn. The laws themselves have now reached a critical mass. This permits a relatively stable point in time in which the labor and employment laws can be described and explained, even though as we all know there continues to be issues of enforcement in some areas of the country.

Sounds like a fascinating and timely book. You can find out more information about it here and see the book cover here.

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Managing Disputes

Gary Kaplan (DeForest, ... Kaplan & Berardinelli in Pittsburgh) has just published Executive Guide to Managing Disputes (BeardBooks 2009).  Here's the publisher's description:

Drawing upon more than 25 years experience as a business lawyer, arbitrator, and mediator, Gary Kaplan not only explains why litigation is so costly, but also how to manage disputes sensibly to avoid unnecessary litigation, reduce costs, and improve results.

The Executive Guide draws from the latest scientific research and economic theory to explain, contrary to popular sentiment, that the high cost of litigation is systemic, rather than the fault of supposedly greedy lawyers. Indeed, litigation is a perfect storm of circumstances that leads to bad decisions about when and if to settle business disputes and why it is such an inefficient process for obtaining decisions and resolving claims.

The Executive Guide shows how ADR (i.e., Alternative Dispute Resolution), such as mediation and arbitration, can short-cut disputes, and how to use often inexpensive dispute management programs to contain costs and achieve favorable outcomes that focus on cultivating positive business, workplace, and healthcare relationships.

I had the pleasure to read a draft last year.  It's a well-written book, aimed at business managers.

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Zimmer, Sullivan, & White on Employment Discrimination

Congratulations to Michael Zimmer, Charles Sullivan, and Rebecca Hanner White on the publication of their book Employment Discrimination: Selected Cases and Statutes.  I know the book is published because I received a review copy in yesterday's mail.  I can't find it, though, on Wolters Kluwer's web site (which can only be described as pitiful when it comes to trying to locate a book), but the book is available on Amazon.

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