Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.

MM

April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Northwestern Football Union Vote this Week

NorthwesternThe scholarship players for Northwestern's football team will be voting Friday whether to unionize.  As the NY Times reports, Northwestern has been fighting hard for the players to vote against the union.  Many readers will recognize these anti-union tactics as common during a campaign.  Indeed, the facts, which could easily be the basis for a challenge to the election if the union loses, looks like something I'd write for a Labor Law exam:  for example, the coach engaging in one-one meetings (or "interrogations"?) with players; predictions (or threats?) of negative consequences if there is a union; and giving players new iPads and bowling parties (pre-planned or improper provision of gifts?).  No matter the outcome of the vote, which we likely won't know for a while, this will probably drag on for some time.  One upside is that the publicity given to this case will provide a good example to explain the issues surrounding the NLRB-election process.  Just in time for new election rules from the NLRB!

In addition to issues under the NLRA, I would expect to see claims brought by players under other statutes.  The FLSA (hello minimum wage and overtime), Title VII, OSHA, and other statutes all have definitions of "employee" as broad, or broader, than the NLRA.  And those statutes will pull in public schools as well.  I'd be surprised if we don't see some of these claims soon, especially if the NCAA doesn't make significant changes (e.g., the NCAA just removed restrictions on player meals after Shabazz Napier's "I go to bed starving" comment).  This isn't a novel argument either.  In the 1970s, an Indiana State football player unsuccessfully sought status as an employee to get workers compensation benefits after becoming a parapalegic because of an injury suffered during practice.

-JH

April 24, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, April 21, 2014

UAW Drops Challenge To VW-Chattanooga Vote

VWIn a bit of a surprise, the UAW announced today that it will drop its challenge against its recent election loss at VW-Chattanooga.   The UAW cited the prospect of delay while going through the NLRB challenge process.  That's certainly a legitimate concern, but I don't think I'm going on a limb by suggesting the other factors are at play here.  As Ken Dau-Schmidt noted in the linked article, by dropping the challenge, the UAW could seek another vote earlier.  Moreover, the subject of some of the alleged threats--a new production line--may already be in place soon and will therefore no longer remain as a viable point of pressure.

I will admit that I'm disappointed, if only at the loss of a possible ruling relying heavily on the comments of lawmakers.  Some of the government pressure that has come to light, if true, is really quite amazing.   Of course, the prospect of such a Board ruling--and the significant backlash that would come with it--was likely an issue in the decision as well.

Hat Tip:  Too many to count, so thanks to you all.

-JH

April 21, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2014

Bauries on Academic Freedom and on Supreme Court Review

Scott-Bauries-FULLScott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment.  It is forthcoming in the Mississippi Law Journal, and here is the abstract:

This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.

The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract: 

In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.

Great work, Scott!

MM

April 16, 2014 in Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Fifth Annual Con Law Colloquium

ScotusFriend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:

Fifth Annual Constitutional Law Colloquium

Friday, November 7th and Saturday, November 8th

Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.

This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.

Titles and abstracts of papers should be submitted electronically to constitutionlaw@luc.edu no later than June 15, 2014.

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

Conference Organizers:

Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, bsullivan7@luc.edu
Professor Alexander Tsesis, atsesis@luc.edu
Professor Michael Zimmer, mzimme4@luc.edu

Program Administrator:
Heather Figus, ConstitutionLaw@law.edu

Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer

Looks likea  great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.

MM

April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Commentary on NLRB Northwestern decision

FootballThe Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post. 

If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.

In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.

I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.

MM

March 27, 2014 in Commentary, Faculty News, Labor and Employment News, Labor Law, Union News | Permalink | Comments (3) | TrackBack (0)

Sunday, March 9, 2014

Greene & O'Brien on D.R. Horton

Greene ObrienStephanie Greene and Christine Neylon O'Brien (both Boston College - Business) have just posted on SSRN their timely article (forthcoming Am. Bus. L.J.) The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes. Here's the abstract:

When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.

I agree, but am not optomistic.

rb

March 9, 2014 in Arbitration, Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

Labor & Employment Law Roundup

NLRBSome recent labor and employment news, mostly from the NLRB:

  • The NLRB will hold public meetings on its new election rules proposals.  Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11.  The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
  • Here we go again.  Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack.  This time a House hearing.  The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
  • I'm late on this one, but the NLRB is relocating.  HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront.  At least they'll be able to catch more Nationals games.
  • After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past.  Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
    premises during nonworking hours."  See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?

Hat Tip: Patrick Kavanagh.

-JH

March 7, 2014 in Employment Discrimination, Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Sunday, March 2, 2014

LRRN Call for Papers: Amsterdam!

AmstLabour Law Research Network Conference
University of Amsterdam
25-27 June 2015

The Labour Law Research Network (LLRN), established in 2011, is comprised of 46 research centres from all over the world dedicated to the study of labour law. One of the objectives of the LLRN is to hold bi-annual international conferences that will be entirely academic (dedicated to the presentation and discussion of original papers); entirely about labour law (broadly conceived); and will allow cutting-edge topics to surface from the participating scholars themselves, in a non-hierarchical way.

Each conference is organised by a different research centre from among the LLRN members. The inaugural LLRN conference was held on June 2013 at Pompeu Fabra University in Barcelona. We are delighted to announce that the second LLRN Conference, to be held on June 25-27, 2015, will be organised by the Hugo Sinzheimer Institute (HSI) at the University of Amsterdam.

All the details are in this Call for Papers. Thanks to Guy Davidov for sending this along.

rb

March 2, 2014 in Conferences & Colloquia, Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Fletcher, Fort, & Singel on Tribal Disruption and Labor Relations

TurtleMatthew Fletcher, Kathryn Fort, and Wenona Singel have just posted on SSRN their article Tribal Disruption and Labor Relations. Matthew has been posting on Indian Law topics over at Turtle Talk for several years now, and he's been kind enough to send me a heads-up whenever he's posted something labor-related. He also has the distinction of being a key player in the ALI's forthcoming Restatement of Indian Law.

Here's the abstract:

In recent years, Indian tribes have begun to assert treaty rights to govern labor relations within the reservation, most notably in Indian gaming operations. The National Labor Relations Board and several national labor unions have asserted, with a large degree of success, that the National Labor Relations Act governs labor relations in tribal casinos.

This paper addresses several aspects of the tribal-federal-labor relationship through the lens of tribal disruption theory. Professor Wenona Singel has argued, drawing from institutional economics theory, that labor relations law and policy is static, with unions and the NLRB preferring to rely upon Great Depression-era federal law to decide labor disputes arising in Indian country – not because federal law is substantively preferable to tribal law, but because it is known and predictable. These actors reject tribal labor relations legal regimes despite the possibility that tribal law may be substantively preferable to all parties.

Tribal disruption theory offers an alternative view of how to resolve these ongoing labor disputes, one preferable to the uncertain and high stakes litigation.

rb

March 2, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

New Speaker Series in Labor and Employment Law at Marquette Law School

I am excited to announce the kick-off of a new speaker series in labor and employment law, sponsored by the Labor and Employment Law Program at Marquette University Law School.

We are really starting the program off with a bang.  

On March 17th, Sam Estreicher (NYU Law) will be debating yours truly on his new labor law reform proposal, "Easy In, Easy Out" (details about that proposal here). You can register here.

On March 27th, in conjunction with the Third Annual ERISA National Conference at Marquette, Assistant Secretary of Labor and head of the Employee Benefit Security Administration (EBSA) Phyllis Borzi will be speaking about the Affordable Care Act. You can register here.

Finally, on April 8th, Professor Takashi Araki, former Dean and Professor of Law at the University of Tokyo Law School and Visiting Professor this semester at Harvard Law School, will be coming to speak about contemporary topics in Japanese employment law.  You can register here.

All events are scheduled at noon and include lunch.

PS

February 25, 2014 in Conferences & Colloquia, International & Comparative L.E.L., Labor Law, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

The Aftermath of the VW-UAW Vote

VWGiven the amount of attention leading up to the VW-Chattanooga vote, it's no surprise that the aftermath has been heated as well.  Following the UAW's narrow loss, the biggest news is the union's filing of eletcion objections with the NLRB.  The actual objections petition is well worth a read.  I followed the election pretty closely, but was still amazed at some of the statements by Tennessee politicians, especially Sen. Corker who might feel especially charged given his role in bringing VW to Chattanooga while he was mayor.  In any event, there's a plausible third-party interference claim here, especially given Corker's repeated statements that he heard from VW itself that it would decide against expanding production at the plant if the union won.  It'll be interesting to see if VW takes any position before the Board.

In related news, Steven Greenhouse has a good recap on the events as of last week,primarily from the UAW's viewpoint.  Also, Cesar Rosado Marzan (Chicago-Kent) takes the glass-half-full view by stressing the possibility of filing ILO charges and VW bargaining with the UAW as a minority union.  Given the outcry leading up to the vote, could you imaging the reaction if VW started dealing with the union after it lost a vote?

Hat Tip:  Tom Cochrane

-JH

February 24, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Friday, February 21, 2014

Teaching Employment and Labor Law

TeachingLast spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.

The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:

Forward

Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon

Teaching Employment and Labor Law

A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim

Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Rachel Arnow-Richman

Collaboration and Community: the Labor Law Group and the Future of Labor Employment Casebooks
Matthew T. Bodie

Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry

The Capstone Course in Labor and Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, and Professionalism
Laura J. Cooper

Constructing a Comprehensive Curriculum in Labor and Employment Law
Martin H. Malin

From Podcasts to Treasure Hunts—Using Technology to Promote Student Engagement
Marcia L. McCormick

Identifying (with) Disability: Using Film to Teach Employment Discrimination
Elizabeth Pendo

A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter

Teaching Private-Sector Labor Law and Public-Sector Labor Law Together
Joseph E. Slater

Teaching the Post-Sex Generation
Kerri Lynn Stone

You should check them out.

MM

February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 19, 2014

Faculty Strike at UIC

StrikeFaculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.

The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.

These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there? 

MM

February 19, 2014 in Labor and Employment News, Labor Law, Public Employment Law, Union News | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

VW Chattanooga Employees Vote Against UAW Works Council

VW  UAWThe votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%).   As has been frequently noted in the news, this could have been a ground-breaking vote in many ways.  One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry.  Moreover, the labor-management relationship was to model itself on a German-style works council.

Although important, I found the "foothold" point to be the less important one.  In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal).  Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.

More interesting was that the proposed relationship between VW and the UAW looked extremely promising.  Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed.  But it was not to be.

-JH

February 14, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Thursday, February 13, 2014

Duff on ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain

DuffMichael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.

Here is the abstract:

Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy.  Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose.  Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker.  This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.

Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.

The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.

The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.

This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.

Check it out!

PS

February 13, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Race, Labor, & the Law at UCLA

Graphic_000Friend of the blog Wendy Greene (Cumberland, Samford U) writes to tell us of an upcoming conference at UCLA that might interest our readers. The topic is Race, Labor, and the Law, the sponsor is the UCLA Institute for Research on Labor and Employment, and the program looks great:

Friday, February 28, 2014

8:00 AM - 8:10 AM

Welcome

  • Chris Tilly, Ph.D. | Director, UCLA Institute for Research on Labor and Employment; Professor of Urban Planning, UC Los Angeles

8:10 AM - 8:55 AM

Opening Keynote

  • Ruben J. Garcia, J.D., LL.M. | Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
    • "The Relationship Between Racism and Anti-Union Animus"

9:00 AM - 10:30 AM

Transformation of the Labor Movement

  • Héctor Cordero-Guzmán, Ph.D. | Professor of Sociology and Urban Education, School of Public Affairs, Baruch College, City University New York
    • "Worker Center, Worker Center Networks, and the Promise of Protections for Low Wage Workers under the FLSA"
  • Victor Narro, J.D. | Project Director, Center for Labor Research and Education, Institute for Research on Labor and Employment, UC Los Angeles
  • Saru Jayaraman, M.P.P., J.D. | Director, Food Labor Research Center, University of California, Berkeley; Co-Founder & Co-Director, Restaurant Opportunities Center United
    • "Racial Segregation in the Restaurant Industry: Challenges & Opportunities"

10:35 AM - 12:05 PM

Concurrent Panels

Panel A: The Politics of Prison and Labor: How Incarceration Affects Reentry, Employment Opportunities, and the Labor Movement as a Whole

  • Kelly Lytle Hernandez, Ph.D. | Associate Professor of History, UC Los Angeles; Director, UCLA Department of History's Public History Initiative
  • Marta Lopez Garza, Ph.D. | Professor of Gender and Women's Studies and Chicana/o Studies, California State University, Northridge
    • "When Will the Punishment End?"
  • Heather Ann Thompson, Ph.D | Associate Professor of History and African American Studies, Temple University
    • "Making Mass Incarceration Matter to the American Labor Movement"

Panel B: Bringing Workers Into Focus: Worker Cooperatives, Black-Latino Relations in the Workplace, and Racial Alliance Building in the Labor Movement

  • Jassmin Poyaoan | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Vanessa Ribas, Ph.D. | Assistant Professor of Sociology, UC San Diego
    • "The Value of Being Negro, the Cost of being Hispano: 'Disposability' and Challenges for Cross-Racial Solidarity in the Workplace"
  • Alexandra Suh, Ph.D. | Executive Director, Koreatown Immigrant Workers Alliance (KIWA)

12:05 PM - 1:05 PM   Lunch

1:05 PM - 2:35 PM     Concurrent Panels

Panel A: Intimate Labor

  • Mireille Miller Young, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
    • "Illicit Eroticism: The Politics of Intimate Labor in Black Women's Porn Work"
  • Grace Chang, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
  • Elena Shih | Ph.D. Candidate in Sociology, UC Los Angeles
    • "Rehabilitating Intimate Labor: Transnational Racial Formations of 'Good Work' in Human Trafficking Rescue"

Panel B: Labor Law Through a Critical Race Theory Lens

  • Maureen Carroll, J.D. | Greenberg Law Review Fellow, UCLA School of Law, UC Los Angeles
    • "Privilege and Invisibility in Labor Practice"
  • Nayla Wren | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Sanjukta Paul, M.A., J.D. | Attorney & Clinical Teaching Fellow, UCLA School of Law, UC Los Angeles
    • "Normative Obstacles to Empowerment Lawyering in the Workers Rights Context"

2:40 PM - 4:40 PM     Concurrent Panels

Panel A: Intersectional Analysis of Women in Low Wage Labor, Organizing, and Combating Workplace Discrimination

  • Sarah Haley, Ph.D. | Assistant Professor of Gender Studies, UC Los Angeles
  • Eileen Boris, Ph.D. | Hull Professor and Chair, Department of Feminist Studies, UC Santa Barbara
    • "(In)Visibility and the Color of Home Care: Law, Recognition, Justice"
  • D. Wendy Greene, J.D., LL.M. | Professor of Law, Cumberland School of Law, Samford University
  • Ellen Reese, Ph.D. | Professor of Sociology and Chair of Labor Studies, UC Riverside
    • "Intersecting Inequalities Among Latina/o Warehouse Workers in Inland Southern California: Challenges and Prospects for Justice"

 

Panel B: Safe Jobs, Healthy Jobs, Good Jobs

  • Anne E. Fehrenbacher MPH | Ph.D Student in Community Health Sciences, UC Los Angeles
    • "Job Insecurity and Quality of Life: Testing a Causal Model of Job Stress Proliferation Moderated by Race, Gender, and Education"
  • Kevin Riley, MPH, Ph.D | Director of Research and Evaluation, UCLA Labor Occupational Safety & Health (LOSH), Institute for Research on Labor and Employment, UC Los Angeles

4:45 PM - 5:45 PM     Wine and Cheese Reception

Saturday, March 1, 2014

9:20 AM - 9:25 AM

Welcome

  • Pamela A. Izvănariu, J.D., LL.M. | Director of Research & Development, UCLA Institute for Research on Labor and Employment, UC Los Angeles

9:25 AM - 11:15 AM

Labor and Employment Issues Facing Indigenous Peoples in the U.S.

  • Matthew L.M. Fletcher, J.D. | Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University
    • "On Treaties and Internal Tribal Sovereignty"
  • James Kawahara, J.D. | Adjunct Professor in Practice, UCLA School of Law, UC Los Angeles; Attorney, Kawahara Law P.C.
    • "Judicial Application of Federal Labor and Employment Laws to Indian Tribes When Congress is Silent: What Fills the Vacuum?"
  • Lynn Stephen, Ph.D. | Professor of Anthropology and Director of the Center for Latino/a and Latin American Studies, University of Oregon
    • "Indigenous Mexican Workers in the U.S.: Labor Conditions, Health, and Identity"
  • David Kamper, Ph.D. | Associate Professor and Chair of American Indian Studies, San Diego State University
    • "The Work around Tribal Sovereignty: Negotiating Notions of Labor, Jobs, & Class in Tribal Governmental Gaming and Economic Development"

11:20 AM - 1:10 PM

Race, Labor, and Immigration

  • Hiroshi Motomura, J.D. | Professor of Law, UCLA School of Law, UC Los Angeles
    • "Race, Labor, and the Making of Immigration Outside the Law"
  • Sameer Ashar, J.D. | Clinical Professor of Law, Irvine School of Law, UC Irvine
    • "Immigration Enforcement, Race, and Resistance"
  • Shannon Gleeson, Ph.D. | Associate Professor of Latin American and Latino Studies, UC Santa Cruz
    • "Precarious Labor, Tenuous Rights: Lay v. Legal Conceptions of Justice at the Workplace"
  • David Cook-Martin, Ph.D. | Associate Professor of Sociology, Grinnell College
    • "A House Divided: Labor and its Contrasting Roles in Shaping Ethnically Selective Immigration Law in the Americas"

1:10 PM - 2:10 PM     Lunch

2:10 PM - 4:00 PM     Worker Voice, Labor Speech

  • Leticia M. Saucedo, J.D. | Professor of Law, UC Davis
  • Camille Gear Rich, J.D. | Associate Professor of Law, Gould School of Law, University of Southern California
    • "Post-Racial Hydraulics: The Role of the Fair Labor Standards Act in the Repackaging of Race and Gender Discrimination Claims"
  • Nicholas Espiritu, J.D. | Staff Attorney, National Immigration Law Center
  • Catherine Fisk, J.D. | Chancellor's Professor of Law, Irvine School of Law, UC Irvine
    • "Worker Voice and Labor Speech After Harris v. Quinn and Citizens United: Why Unions Should Have the Same Free Speech Rights as Corporations and Why the Supreme Court Thinks They Do Not"

4:00 PM - 4:45 PM

Closing Keynote

  • Ian F. Haney-López, J.D., M.P.A. | John H. Boalt Professor of Law, UC Berkeley
    • "Dog Whistle Politics/Dog Whistle Racism"

If you will be in the area, it seems like a great opportunity to hear from a broad mix of subject areas, disciplines, topics, academics, and people in the field. For more information and to register, see here.

MM

February 11, 2014 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

NLRB Invitation for Briefs

NLRBIn another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities.  All of these are perennial issues that have been hard fought over the years.  The announcements (links above) contain more info on filing briefs.

The announcement for the deferral issues states, in part:

The National Labor Relations Board (NLRB) invites interested parties to file briefs . . .  to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.

Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act.  Spielberg Mfg. Co., 112 NLRB 1080 (1955).  Further, the arbitral forum must have considered the unfair labor practice issue.  The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue.  Olin Corp., 268 NLRB 573 (1984).  The burden of proof rests with the party opposing deferral.

The NLRB General Counsel has asked the Board to adopt a different standard.  Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act. 

The announcement for the regious university jurisdiction and faculty status states, in part:

The National Labor Relations Board is inviting briefs from interested parties on two questions:  whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.

The case is Pacific Lutheran University (19-RC-102521).  . . .  In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case.  The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980). 

It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.

-JH

 

February 10, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 5, 2014

NLRB Proposed New/Old Election Rules

NLRBThe NLRB has just announced that it is proposing new election rules.  To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011.  We described those proposals here, which were ultimately watered down when the Boar finalized its election rules.  Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules.  As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing.  For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.

From the NLRB's  announcement:

The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures.  In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow.  The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act.  Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.  Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer.  Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .

 “I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said.  He stressed that the Board is reviewing the proposed changes with an open mind:  “No final decisions have been made.  We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered.  Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”

“Unnecessary delay and inefficiencies hurt both employees and employers.  These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said.  “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”

The reforms the Board will propose would:

    • allow for electronic filing and transmission of election petitions and other documents;
    • ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
    • streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
    • include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
    • consolidate all election-related appeals to the Board into a single post-election appeals process.

Stay tuned.

-JH

February 5, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Northwestern Football Players File Representation Petition with the NLRB

Ncaa-football-logo-562x383ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others. 

MM

January 28, 2014 in Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)