Wednesday, March 22, 2017

Supreme Court Rules Against NLRB in Vacancies Act Case

Supreme CourtYesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.

The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.

Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office?  For instance the certification of elections?  Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:

Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.

This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?

-Jeff Hirsch 

 

 

March 22, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Friday, March 17, 2017

Hirsch & Seiner: Unions Deserve a Place in the Uber Economy

Hirsch  SeinerJeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.

This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.

This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.

rb

March 17, 2017 in Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Wednesday, March 15, 2017

Garden in The Atlantic on Trump and Unions

GardenCharlotte Garden (Seattle U.) has just published in The Atlantic Unions Are Wondering: Resist or Assist? Congrats to Charlotte for taking this topic -- which we all know is important -- to a wider audience (or, as she said in a Facebook post: "in which I convinced The Atlantic to let me write about NLRA Section 8(b)(4) for them"). Here's an excerpt:

The first month of the Trump administration was mostly a discouraging one for labor unions. Since taking office, the president has frozen federal hiring (though he did pledge to hire 15,000 border patrol agents) and restated his support for a national “right to work” law that would disrupt unions’ funding mechanisms. He also sought the confirmation of Andy Puzder, a fast-food CEO who’s not fond of minimum-wage or overtime rules, to head the Department of Labor, only to see him withdraw amid public outcry.

Still, some within the labor movement have cheered Trump’s use of the presidential bully pulpit to harangue employers who send jobs overseas, and voiced optimism about Trump’s stated desire to “buy American and hire American.”

This has left many labor unions with a decision about how best to serve their members going forward: Should they try to get along with Trump, in the hope that they will be able to help guide his efforts to court working-class voters? Or should they take to the streets alongside progressives calling for workplace-based actions, like the recent nationwide strikes by women and by immigrants?

rb

March 15, 2017 in Labor Law, Workplace Trends | Permalink | Comments (1)

Sunday, February 26, 2017

Stone: Unions in the Gig Economy

StoneKathy Stone (UCLA) has just published Unions in the Precarious Economy:
How collective bargaining can help gig and on-demand workers (American Prospect, 2/21/17). In it, she discusses various types of precarious workers, including workers in the retail, restaurant, and hospitality industries, as well as workers who perform "gigs" as independent contractors for internet platform companies.  She gives examples to show how various types of precarious workers can benefit from forming unions and bargaining collectively. Here's an excerpt:

The various forms of on-demand work tend to defeat the protections of our system of labor regulation, which assumes that employees have regular payroll employment. Seemingly, unions are also not much help, since they, too, are based on the assumption of regular jobs. But if we dig a little deeper, there is a long history of unions protecting their members from employers’ efforts to force workers to bear all the risks and costs of fluctuating demand. This is true in industries as varied as construction, airlines, hotels, and entertainment.

If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important. Some of these are unions that organize and collectively bargain under the terms of the National Labor Relations Board. But others, in the world of so-called alt-labor, use worker centers, associations, and other worker-empowerment strategies that are not technically unions. If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important.

rb

February 26, 2017 in Labor Law, Workplace Trends | Permalink | Comments (0)

Thursday, February 23, 2017

Dimick on Other Avenues Unions Can Serve their Members (and Encourage Membership)

DimickMany thanks to Matthew Dimick for contributing this guest post:

A few weeks ago, OnLabor.org featured a post I wrote about the Ghent system and progressive federalism. At the end of that post, I referred to “other avenues for Ghent-type experiments” beyond the main one discussed in the article, which would require changes in the current federal-state cooperative system of unemployment insurance. Mentioning these “other avenues” prompted several queries from readers, and I will use this opportunity here at the Workplace Prof Blog to talk about those.

First, some background. To remind readers, the Ghent system is a form of union-administered (but government paid-for) unemployment insurance that has a substantial, positive impact on the rate of union membership in the countries that have it. What makes the Ghent system a prospect for union revitalization in the US is the system of unemployment insurance we have here, which basically incentivizes states to adopt, finance, and administer their own unemployment-insurance systems subject to federal guidelines and oversight by the Secretary of Labor. It also helps that states are given more latitude under federal labor law preemption when it comes to the design and administration of unemployment insurance.

I originally wrote about the Ghent system for a law review article in 2012, after Democrats had lost control of Congress, which had effectively ended any prospect of passage for the Employee Free Choice Act. Yet as long as a Democrat remained in the White House, a reform like the Ghent system at the state level didn’t need approval from a Republican Congress. I doubt Obama’s tenure is the last we will see of divided government, so I still think it is worth thinking about a progressive-federalist reform like the Ghent system. Yet since a Trump administration probably forestalls that avenue for now, it is also worth dwelling on “other avenues,” as I suggested in my other post.

One alternative is take a purely private route to a Ghent system. Despite its weakness in terms of union density, the US labor movement still has vast resources and expertise gained through administering health and pension funds. Can these resources be leveraged to create a subsidized and supplemental system of unemployment insurance for workers? Without the government subsidy and because it wouldn’t be a worker’s exclusive source of unemployment insurance, this proposal certainly wouldn’t have the impact of a full-blooded Ghent system. Yet historically, unions have filled this function, and it played an important part in the origins of the Ghent system, which was created when a municipal government came to the rescue of a union unemployment insurance fund depleted by an economic downturn.

A private option need not supply unemployment insurance. The Freelancers Union has had notable success in providing health, dental, life, and disability insurance to workers who join the union. The main difference between the Freelancers Union and a traditional labor union is that the former does not collectively bargain. It is understandable why the Freelancers Union has made this choice. At the same time, a labor organization that combined both mutual aid and bargaining functions is a powerful ideal.

Moving even further from the insurance realm, union-administered and employer- or government-funded job training also seems like a possibility. Workforce development is a goal the business community can get behind. And unions already have a template in the highly successful Culinary Academy of Las Vegas, a consortium of local hotel casinos and unions that provides job training to union members. Working closely with the union’s hiring hall, the CHA does many things the Ghent system does in terms of cultivating union membership.

In short, there are indeed many other avenues available for experimenting with Ghent-type institutions that worker advocates should consider—even with a Trump in the White House.

rb

February 23, 2017 in Labor Law | Permalink | Comments (0)

Wednesday, February 22, 2017

Getman: Let's Fix Linn

GetmanJack Getman (Texas) wrote a guest post yesterday over at PrawfsBlawg on The Continuing Mischief of the Linn Case. I am re-posting it here with Jack's permission:

In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.

The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.

Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”

Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’

The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:

  • The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
  • The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”

Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.

Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.

rb

 

 

February 22, 2017 in Labor Law | Permalink | Comments (0)

Saturday, January 28, 2017

Herbert on Higher Education Unionization

Bill Herbert (Hunter College) has posted on SSRN his article, The Winds of Changes Shift: An Analysis of Recent Growth in Bargaining Units and Representation Efforts in Higher Education, which is being published in the Journal of Collective Bargaining in the Academy. The abstract:

This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013.

The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase in certified private sector faculty units over the number of private sector units identified by the National Center for the Study of Collective Bargaining in Higher Education and the Professions in 2012, while the increase in the public sector has been 2.1%. The largest number of newly certified units involves non-tenure track faculty at private non-profit institutions. The second largest group of new units in higher education involves tenured and tenure-track faculty at public institutions. The average final election tallies demonstrate strong support for unionization among higher education faculty: 72.8% among private sector tenured/tenure-track and contingent faculty, and 73.3% among public sector tenure-track and contingent faculty.

The article demonstrates that unionization efforts by private sector tenured and tenure-track faculty and faculty continue to be adversely impacted by two judicially-created doctrines, despite modifications made to the applicable standards in a 2014 National Labor Relations Board decision. It also examines pending and completed unionization efforts by graduate and research assistants in light of the recent NLRB decision finding that private sector graduate student employees are entitled to the associational rights guaranteed under federal labor law.

Among other things, the article highlights some of the unique characteristics of collective-bargaining in higher education. Of course, a new Board may shift some of these trends by, for example, flipping again on the question of graduate students' status as employees.

-Jeff Hirsch

January 28, 2017 in Labor Law, Scholarship | Permalink | Comments (0)

Friday, January 27, 2017

A Pro-Labor Trump Board?

MorrisUnlikely, but Charlie Morris (SMU emeritus) engages in some thoughtful, self-described wishful thinking. His essay over at onlabor is How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class. Here's an excerpt:

Considering that [President Trump] won his election with the critical votes of many union men in Michigan, Ohio, Pennsylvania, and Wisconsin, what position will he likely take toward organized labor?  Probably no one, including Trump himself, knows the precise answer to that question, or whether he will continue or worsen the GOP’s endemic negative attitude toward unions.  My own view of what he might do—which is colored by my hope as to what I think he should do—stems from his previous labor-relations experience and public statements..., plus my tentative consideration and appraisal of his basic nature—which seems to be the same as President Obama’s, who said “I don’t think he is ideological.  Ultimately he is pragmatic.”  ....  I would therefore like to believe that he will apply [such pragmatism] to matters involving labor-relations, especially since he claims to “have great relationships with unions” and has expressed his disdain for so many major policies of the Republican establishment—but in truth I will be totally surprised if that happens.  If, however, Trump should prove to be a non-ideological President who will oppose[] key elements of the establishment—though his announcements  of major appointments to date suggest otherwise—he should be amenable to allowing the NLRB to function according to its true statutory policy rather than treating it in the manner of his Republican predecessors, all of whom appointed critical numbers of Board Members and NLRB General Counsels who were opposed to the NLRA’s basic policy of favoring collective bargaining, a practice that contributed substantially to the Board’s failure to adequately enforce the Act.

rb

 

January 27, 2017 in Beltway Developments, Labor Law | Permalink | Comments (0)

Miscimarra New NLRB Chair

Yesterday, the NLRB announced that the president has appointed NLRB Member Philip Miscimarra as chairman. According to the announcement:

“It is an honor to be named NLRB Acting Chairman by the President,” Miscimarra said. “I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”

Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the Board. Pearce will continue as a Board Member in a term expiring on August 27, 2018 and has served as a Board Member since 2010 including Chairman since 2011. The Board also currently includes Board Member Lauren McFerran, whose term expires on December 16, 2019. Two Board Member seats are currently vacant.

Miscimarra has served as a Board Member since August 7, 2013. He was nominated by President Obama on April 9, 2013, and he was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions on May 22, 2013. He was confirmed by the Senate on July 30, 2013, and his current term expires on December 16, 2017. 

Before joining the Board, Acting Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP). 

Miscimarra received his Juris Doctor from the University of Pennsylvania Law School; a Masters in Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts degree from Duquesne University.

I got a chance to meet Chairman Miscimarra at a conference a couple of years ago. Although we don't always agree on the issues, I thought he was very thoughtful and had some useful insights from his time in practice. 

-Jeff Hirsch

January 27, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Friday, January 13, 2017

Supreme Court to Review D.R. Horton Rule

Supreme CourtToday, the Supreme Court announced that it would review the NLRB's D.R. Horton rule, which concludes that employment class action waivers can violate Section 8(a)(1) of the NLRA. The Court consolidated a group of cases under review that we be familiar to readers of the blog: NLRB v. Murphy Oil, Ernst & Yong v. Morris, and Epic System v. Lewis.  Should be an interesting case and here's hoping that my follow blogger Charlie Sullivan and his co-author Tim Glynn picks up a Supreme Court citation on the way.

We'll keep you posted on the oral argument and developments that follow.

-Jeff Hirsch

January 13, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Wednesday, November 30, 2016

Labor, the 2016 Election, and Democrats' Next Move

JakeJake Rosenfeld (Wash U. - Sociology) has just posted the essay Labor and Politics: Learning the Right Lessons from 2016 over at onlabor. H argues that the Democratic Party's take-away from the 2016 election results -- that they need to refocus on white/male/working-class/Rust-Belters, is exactly wrong. His entire essay is well worth a read; here's an excerpt:

The election postmortems paint a picture of the U.S. labor movement as a set of beleaguered organizations made up of white, male, manufacturing workers.  That would have been an accurate representation of organized labor a century ago.  More recently, the demographic and occupational composition of organized labor changed dramatically, bringing millions of women and racial and ethnic minorities into its ranks. During the latter half of the 20th Century no population was more over-represented in labor unions than African-Americans.  In the Detroit metropolitan area three decades ago, unions had organized nearly 1 out of every 3 workers; by 2015, the rate had fallen by more than half.  In the Milwaukee metro area, 1 out of every 4 workers belong to a labor union back in the mid-1980s.  Today, less than 1 in 15 do.

Democrats’ newfound attention to the electoral consequences of organized labor’s plight is welcome, although several decades overdue.  Alongside churches, unions remain the only set of mass-based organizations that connect working-class Americans to politics.  If 2016 has taught us anything, it is that all the advanced analytics in the world can’t compensate for desiccated political organizations that engage workers biennially, at best.  But looking to convince white working-class Republican voters in Sheboygan or Kenosha Counties to join the Democrats makes sense only if Democrats had turned out all their potential voters.  A more fruitful way forward would be for Democrats, labor unions, and progressive allies to reinvigorate remaining unions, especially in urban areas, and to coordinate resources and activities with state and local political organizations.

rb

November 30, 2016 in Labor Law | Permalink | Comments (0)

Tuesday, November 29, 2016

Conference Announcement: Collective Bargaining in Higher Ed

NcsFriend of the Blog Bill Herbert sends word that registration is now open for the National Center's 44th Annual Conference on March 26-28, 2017 in New York City. The conference keynote speaker is NLRB Chair Mark G. Pearce. The number and breadth of panels and workshops is far too long to list and describe here, but is available at the Conference Registration Website.

rb

November 29, 2016 in Conferences & Colloquia, Labor Law, Public Employment Law | Permalink | Comments (0)

Thursday, November 17, 2016

Slater & Garden: Trump is Bad News for Labor

TrumpJoe Slater (Toledo) and Charlotte Garden (Seattle - tenured!!!) feature prominently in this Salon article Donald Trump’s Supreme Court will be a real threat to labor — and that’s going to hurt the Democrats. Here's an excerpt:

This oversight [of the Democrats in recognizing the loss of their Union constituency in key post-industrial states like OH, MI, WI, and PA] is particularly troubling when one considers that the Republicans certainly don’t think unions are a minor issue. On the contrary, Republicans see labor organizing as a major impediment to their electoral prospects. So they have done everything in their power to dismantle the ability of unions to organize workers and bargain collectively on their behalf. Now that Donald Trump will have the power to appoint federal judges, especially Supreme Court judges, these efforts to destroy organized labor will get a big assist in the courts.

rb

November 17, 2016 in Labor Law | Permalink | Comments (1)

Thursday, November 3, 2016

Child Laborers

The Washington Post has posted 20 photos from Lewis Hine, documenting child laborers from the early 1900s.  There are some really moving pictures in the collection and all of them show young children who are doing extremely hard work.  Definitely worth a look.

Of course, child labor is not unheard of even today

-JH

 

November 3, 2016 in Labor and Employment News, Labor Law, Labor/Employment History | Permalink | Comments (0)

Monday, October 24, 2016

SEALS Discussion Panel on Graduate Students as Employees

Sealslogo2Among the several labor and employment topics at next year’s SEALS meeting, we are organizing a discussion panel on graduate students and research assistants recent classification as employees under the NLRA.  Please let Jeff Hirsch (jmhirsch@email.unc.edu) know if you’re interested in being a discussant, which involves a 5-7 minute presentation and participation in roundtable discussion: 

Graduate Students as Employees

In its recent Columbia University decision, the NLRB once again concluded that graduate students and research assistants may be considered employees under the NLRA, opening the door to unionization among graduate students as private universities and colleges around the nation. This discussion panel will consider the possible implications of this decision, including how graduate student organizing may work in tandem with faculty organizing; comparing public and private sector graduate student unions; whether Columbia University will impact the classification of other potential student-employees, such as athletes; and others.

-JH

October 24, 2016 in Conferences & Colloquia, Labor Law | Permalink | Comments (0)

Wednesday, October 19, 2016

Cherry and Aloisi on "Dependent Contractors" in Canada, Italy, and Spain

    As some debate whether to add “dependent contractor” to the set of worker classifications ({employee, independent contractor}) in the US, a new working paper looks to the experience of Canada, Italy, and Spain: Miriam Cherry and Antonio Aloisi, “‘Dependent Contractors’ in the Gig Economy: A Comparative Approach (SSRN).  Here’s the abstract:

In response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.

The paper itself surveys the law and legal commentary in Canada, Italy, and Spain.  It finds that Canada’s “dependent contractor” category, which originated in Arthurs (1965), succeeded in “expanding the coverage of laws aimed at ‘employees’ to encompass vulnerable small business and tradespeople." In contrast, Italy “saw systemic arbitrage between the standard employment category and the intermediate category,” which caused confusion and “a movement to strip workers of their rights by misclassifying them downwards.”  Meanwhile, in Spain, the category covers only a “tiny” portion of workers, because of “burdensome requirements and a seventy-five percent dependency threshold to enter the third category.” (p. 3).

 

--Sachin Pandya

October 19, 2016 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0)

Thursday, October 6, 2016

Halegua: Who Will Represent China's Workers?

HaleguaAaron Halegua (Research Fellow, NYU Law) just returned from spending a month in Malaysia with the ILO, working with the government to revise its labor laws to comply with TPP. Meanwhile, his report for the Ford Foundation has been released: Who Will Represent China's Workers? Lawyers, Legal Aid, and the Enforcement of Labor Rights. It examines the legal needs of China's workers, the landscape of legal service providers, and the remaining "representation gap" between legal needs and services--and offers some strategies to narrow it. It also has a lot of information and statistics on labor litigation there. Here's a summary:

In the past decade, China has made considerable progress in legislating new legal protections for workers, expanding their access to arbitration and courts, and paying for more lawyers to represent them. Nonetheless, in China, as elsewhere, labor violations persist and a substantial “representation gap” remains between legal needs and services.

This new Report ... provides an original and in-depth analysis of that gap—and strategies to narrow it. Based on over 100 interviews, observations of legal proceedings, and extensive documentary research, [the Report] examines the legal violations suffered by workers, the range of legal service providers, and how workers fare in litigation. Despite government efforts, problems with unpaid wages, social insurance contributions, workplace injuries, and discrimination endure, which increasingly lead to labor protests and strikes. Workers are also litigating more cases in arbitration and court, but statistics show that they are often unsuccessful.

Continue reading

October 6, 2016 in International & Comparative L.E.L., Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, September 21, 2016

Bisom-Rapp on lifetime disadvantage for working women

Bisom_rapp_book_cover-1_240Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:

In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.

"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."

Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.

"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."

In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.

"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.

The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.

Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.

Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.

MM 

September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)

Thursday, September 15, 2016

Doorey on Climate Change and Labor Law

Fellow blogger, David Doorey (http://lawofwork.ca) has just posted on SSRN a new article, A Law of Just Transitions: Putting Labor Law to Work on Climate Change. The abstract:

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept originally developed by the North American labor movement, but has since been endorsed by important global institutions including the International Labour Organization and the U.N. Environmental Program. However, the prescriptions that would guide a policy of just transition have been under-explored in the legal literature. This paper marks an important early contribution to this challenge. It explores the factual and normative boundaries of a legal field called Just Transitions Law and questions whether such a field would offer any new, valuable insights into the challenge of regulating a response to climate change.

This is definitely an intersection that we haven't heard much about, but as we can see from the politics surrounding trade and climate agreements, it's clearly one that it's important. 

-JH

September 15, 2016 in Labor Law, Scholarship | Permalink | Comments (0)

Friday, August 26, 2016

Call for papers from the Center for Applied Feminism & Intersectionality

The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:

CALL FOR PAPERS

APPLIED FEMINISM AND INTERSECTIONALITY: 

EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?

We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to ubfeministconference@gmail.com. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

MM

August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)