Thursday, November 20, 2014
Why do most people today not have rights at work that come from the US Constitution? That’s the puzzle at the heart of a just-published legal history: Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press, 2014). Here’s the publisher’s description:
Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason or no reason at all. This book uses history to explain why. It takes readers back to the 1930s and 1940s when advocates across the political spectrum – labor leaders, civil rights advocates, and conservatives opposed to government regulation – set out to enshrine constitutional rights in the workplace. The book tells their interlocking stories of fighting for constitutional protections for American workers, recovers their surprising successes, explains their ultimate failure, and helps readers assess this outcome.
From the book itself:
From the vantage point of the mid-twentieth century, the workplace Constitution’s future looked promising. In the 1930s and 1940s, two movements began trying to extend the Constitution to the workplace. They were opposed to each other politically but they shared this legal goal. One, the civil rights movement, would go on to capture the attention of the nation and dismantle Jim Crow. The other, the right-to-work movement, fought for open shops. Although its history is less well known, this second movement was supported by prominent politicians and opinion makers. Together, the two movements created a strange and contentious but politically powerful combination. Their successes and failures change the historical understanding of constitutional law, labor politics, civil rights struggles, and conservative movements.
The book’s website is here.
Hat tip: Legal History Blog
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 17, 2014
Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits. The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.
If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at firstname.lastname@example.org by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.
Tuesday, May 6, 2014
When our list of faculty moves went up last month, one item left of the list was the retirement of Julius (Jack) Getman from the University of Texas after 28 years on the faculty. The American Statesman did a nice story on Jack's career. Here's a part:
A sort of Johnny Appleseed of labor law, Getman has through the decades sprinkled proteges all over the country. Many of them followed Getman into academia. Many of them chose their professor’s specialty even if they’d planned on practicing another kind of law before they took Getman’s basic labor law class which, 2011 graduate Elliot Becker recalled, “some of us called ‘Story Time with Grandpa Jack.’”
“I don’t know where I’d be without him,” said Becker, who this fall will go to work in the general counsel’s office of the National Labor Relations Board.
“I didn’t go to law school thinking I wanted to do labor and employment,” said James Brudney, who teaches labor at Fordham Law School. “It was the exposure to him and the subject that converted me. He has a remarkable blend of realism, sardonic humor and remarkably perceptive insights analytically about the real world.”
While Getman may be sympathetic to workers and the labor movement, he’s not a dogmatic radical who has never missed a Pete Seeger concert.
“His perceptions of the struggles that ordinary shop floor workers had to go through made him sensitive to both the positive aspects of (union) leadership and the risks that leadership might separate from the rank and file,” Brudney said. “He’s obviously sympathetic to unions, but that has not restrained him from offering substantial and powerful critiques.”
Jack's book Restoring the Power of Unions was also the subject of the Section on Labor Relations and Employment Law program at the AALS annual meeting in 2011, which coincided with the UNITE HERE boycott of the conference hotel. The presentations were published in volume 15, issue 2 of the Employee Rights & Employment Policy Journal.
h/t Michael Murphy and Harris Freeman
Thursday, April 24, 2014
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.
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)
Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Friday, March 7, 2014
The building, built art-deco style in the late 1920s and early 1930s, originally housed Ohio's asministrative agencies, but now houses the Ohio Supreme Court.
The inside of the building is also suffused with labor images.
Thursday, September 5, 2013
This wasn't unexpected, but the D.C. Circuit made it official: the court today denied the NLRB's petition for rehearing and en banc review in NAM v. NLRB [I've just got access to the rehearing denial at the moment]. This was the notice posting case that we blogged about quite a bit when it came out.
Given the D.C. Circuit's political makeup, there was only a small hope that it would take the case en banc. I do think there's a good chance the Supreme Court will grant cert. How they might treat a case is up in the air, of course. The 5-member majority is obviously not a fan of labor, so it's a good bet that the rule will remain struck down somehow. However, I think there's a decent chance the Court would not be willing to write such a sweeping decision as the D.C. Circuit's.
Hat Tip: Patrick Kavanagh
Wednesday, July 17, 2013
vol. 16 #2 (Spring 2013)
A Celebration of Baseball Unionism
- Paul D. Brachman & Bert Forsythe, Preface
- Ross E. Davies, Along Comes the Players Association: The Roots and Rise of Organized Labor in Major League Baseball
- Peter Miller, Introducing Marvin Miller
- Marvin Miller, Remarks: Reflections on Baseball and the MLBPA
- Roundtable Discussion on Marvin Miller, the MLBPA, and Baseball
- Michael Weiner, Marvin Miller’s Lasting Legacy
- The Honorable Nicholas M. Ohanesian, Trying the Carrot and Sparing the Stick: An Incentive Based Reform Proposal for NLRB Elections, Voluntary Recognition, and Withdrawal of Recognition
- Cynthia Estlund, Labor Law Reform Again? Reframing Labor Law as a Regulatory Project
Sunday, June 30, 2013
Unions are key repeat players before the Supreme Court. Their involvement extends beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others. Though scholars have written about how other union activity, like collective bargaining, impacts non-union workers, the role and impact of union participation in non-labor litigation has largely been ignored in the public debate over unions in America and in the academic literature about what unions do. This Article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional labor law; in order to show how union-made law affects interests beyond those of the labor movement, its members, and unionized employers. It reveals how union-made law has had significant effects on the structure of American government and society.
This Article first describes the many areas in which union Supreme Court litigation has had important social effects extending far beyond core labor interests, and explains why, as a practical matter, unions are well situated to bring or fund these cases. Next, the Article explores three characteristics that have the potential to shape unions’ litigation positions: First, unions are more likely than other social movement litigators to litigate defensively, as well as offensively; second, unions operate based on majority rule; and third, unions may use litigation to support bargaining positions. The Article shows how these dynamics have played out in past cases, sometimes with surprising results. Finally, the article concludes with some observations regarding declining union density in this country.
Tuesday, June 25, 2013
Patrick O'Donnell (Philosophy, Santa Barbara City College) may be known to some of you through his blogging at Ratio Juris and Religious Left Law or other places. He is also a compiler of bibliographies extraordinaire. He has sent us an updated version of his bibliography on Workers, the World of Work, and Labor Law: Download World of Work and Labor Law Bibliography
Patrick has other bibliographies available that might be of interest to readers, as well, including:
- Animal Ethics, Rights, and Law
- Death and Dying
- Dreams and Dreaming
- The Emotions
- Environmental and Ecological Worldviews
- The Ethics, Economics, and Politics of Global Distributive Justice
- Freudian and Post-Freudian Psychology
- Human Rights
- Mass Media: Politics, Political Economy, and Law
- Punishment and Prison
- Socio-Political Conflict Resolution and Nonviolence
- Vietnam War
If you are interested in any of those other topics, I'm sure Patrick would be willing to share them.
Tuesday, April 30, 2013
Joe Slater (Toledo) just posted on SSRN his article (OSJDR) Interest Arbitration as Alternative Dispute Resolution: The History from 1919 to 2011. Here's the abstract:
This paper comes from a February 2012 Symposium, "The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector." It discusses the history of an important form of alternative dispute resolution: the use of what is called “interest arbitration” to resolve bargaining impasses in public-sector labor relations. This process is used in many states as an alternative to strikes. While interest arbitration has been a crucial part of public-sector labor law and labor relations for decades, it has come under increased scrutiny recently. Indeed, in the wave of laws passed in 2011 restricting the rights of public-sector unions to bargain collectively, interest arbitration was repeatedly attacked, and in several states it was eliminated or restricted.
This paper gives a historical overview of the development of interest arbitration, discussing how and why it developed as it did. This development was neither inevitable nor “natural” in that many other western democracies generally allow public workers to strike. But only a few states in the U.S. allows any public workers to strike. Thus, the question is: why did U.S. law and policy develop the way it did? This paper traces the relevant history from 1919 through to the new, restrictive laws of 2011. It starts with the Boston Police strike of 1919 — a seminal event in the history of public-sector labor law, that had a profound and lasting impact on how U.S. policymakers felt about dispute resolution in public sector labor law. It then turns to the first public-sector labor law permitting collective bargaining — passed, ironically in view of recent events, in Wisconsin in 1959 — and describes how concerns about dispute resolution were central to debates over that law. The paper continues by explaining how interest arbitration in public-sector labor relations has evolved and how it has worked from the 1960s into the 21st century. Finally, the paper explores the very recent developments in this area in the laws of 2011.
Saturday, April 20, 2013
Ken Dau-Schmidt (Indiana-Bloomington) has just posted on SSRN a couple of new articles:
Promises to Keep: Ensuring the Payment of Americans’ Pension Benefits in the Wake of the Great Recession (forthcoming Washburn L.J.):
In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a pension plan. I then examine the particular problems that have arisen because of our relatively recent transition from defined benefit to defined contribution plans, and the funding problems caused by the Great Recession. I close with a section discussing policy changes that might be made to improve our pension system and help ensure that workers receive not only the pension benefits they were promised, but also adequate benefits to sustain them comfortably during their retirement.
The Employment and Economic Advancement of African Americans in the Twentieth Century (with Ryland Sherman, IU-Bloomington Dep't Telecomm.):
The African American experience in the American economy in the Twentieth Century has been a story of many successes, and more than a few unfulfilled promises. Brought in chains to the poorest region of the United States to do the least desirable work, and purposely denied education in order to preserve their subjugation, African Americans began the Twentieth Century on the lowest rung of the American economic ladder doing predominantly low-skilled, low-wage agricultural labor in the poorest region of our country. However, over the course of the century, African Americans were able to overcome express and implicit discrimination to climb the economic ladder and achieve success in new regions and new occupations and professions. African Americans still suffer many disadvantages that diminish their economic success, particularly males and particularly in education, but certainly in comparison with the previous three centuries, the Twentieth Century marked important advancements in African American economic opportunity and success.
In this essay, we will examine how African Americans achieved the economic progress they made during the Twentieth Century. We do this by examining their progress along four vectors of economic opportunity - geographical distribution, labor force participation, occupational distribution, and educational attainment - and then examine the resulting improvement in relative economic rewards. We will also examine the impact that the Civil Rights Movement, the Civil Rights Act and affirmative action policies have had on this progress. We will see that, from an economic perspective, the story of African American success in the Twentieth Century is one of overcoming discrimination by moving from a situation of relatively constrained economic opportunities, to gain access to, and success in, an ever larger and more rewarding set of opportunities across the country. It is hoped that the recounting of the success of African Americans in achieving greater economic success by using the law and their own initiative to gain access to new geographic, occupational, and educational opportunities will serve as an inspirational and educational lesson for India’s Dalits in their own struggle for equal opportunities.
Thursday, October 11, 2012
Thanks to Bill Herbert for alerting us to this New York Times review of Sasha Reuther’s new film on the U.A.W.:
Th[is] 1937 photograph is just one of the searing scenes in “Brothers on the Line,” a new documentary about the Reuther brothers: Walter, the future United Auto Workers president standing next to the bloodied organizer, and Victor and Roy. Together they played a pivotal role in transforming the United Auto Workers into what was for decades the nation’s most powerful labor union.
Friday, April 13, 2012
On the heels of the recent D.C. District Court decision that mostly upheld the NLRB's new notice posting rule, a district court judge has fully rejected the rule [ Download SC Notice Decision ]. In this most recent case, the judge held that the rule exceeded the NLRB's authority to enact rules "necessary to carry out" the provisions of the NLRA. The judge also emphasized, among other things, that the NLRB only reacts to cases brought to it, which the rule contradicts.
I tend to agree with the earlier decision, which viewed the "necessary" language as giving the NLRB broader authority; it seems to me that most agencies are give wide leeway with similar language. Moreover, the stress on the NLRB's reactive role seems overemphasized. That said, the lack of statutory authority for a notice, in contrast to a lot of other statutes, isn't helpful to the NLRB. I don't think that's fatal, but the judge in the recent decision disagrees.
Here's a pie in the sky solution: what if Congress passed a law requiring the posting of an NLRA notice that emphasized employees' right to unionize, not unionize (including decertify), and to act collectively in the absence of a union. In other words, full disclosure. If we're serious about informing employees of their rights--and others and I have written many times about the importance of doing so--then a more complete notice should be a good thing. I know, a snowball's chance of passing. But I'd love to at least see the bill proposed given all I've heard over the years about the need for employees to learn about their right not to be represented.
Given that we won't be seeing legislation anytime soon, we'll just have to follow these cases as they go up on appeal. I won't actually predict this, but it wouldn't surprise me to see this in the Supreme Court eventually. Stay tuned.
Hat Tip: James Young
Wednesday, November 30, 2011
If you thought you saw pigs flying overhead today, it may be because of this story: the NLRB case against Boeing may be settling. According to reports, the union officials and Boeing have reached a tentative settlement that would have a new airplane built in Washington State. This is a different plane than the one being built in SC, but is apparently enough to satisfy the union. If the members ratify, the union will then inform the Board that it no longer has an issue with Boeing. Although General Counsel Solomon could still pursue the case, that's unlikely. Indeed, he was quoted as describing the agreement as a "very significant and hopeful development." He didn't say the case would end--he noted that after ratification, "we will be in discussions with the parties about the next steps in the process"--but I doubt that he is masochistic enough to pursue the case after the parties have settled.
Hat Tip: Dave
Wednesday, October 12, 2011
Frank Kameny died yesterday, on National Coming Out Day. I don't know if that's fitting or ironic for an icon in the gay rights movement. Kameny was one of thousands of men and women fired from military and government jobs in the mid-twentieth century, but he did not go quietly. He sued to get his job back. Kameny was a specialized astronomer, employed by the U.S. Army Map Service. While he did not win in court, he nonetheless helped start the Gay Rights Movement.
Kameny joined Jack Nichols, and together, they launched the Washington, D.C. Mattachine Society, one of the first and loudest Gay Rights Groups in the country. Kameny fought to get the federal government to change its policy, and in 1975, the federal government stopped excluding homosexuals from government employment. Kameny also fought the Pentagon on security clearance denials on the basis of homosexuality, a policy that was changed in 1995. And he fought the American Psychiatric Association for listing homosexuality as a mental disorder; they agreed in 1973. For more on Kameny, check out this interview with him from last year in the Washingtonian.
That makes three important figures in equality movements to have passed away in the last week--the Rev. Fred Shuttlesworth, one of the most influential figures in the Civil Rights movement, and Derrick Bell, one of the most influential critical race theorists. I hope that the next few years see some excellent memorial symposia in their individual and collective honor.
Wednesday, July 13, 2011
Dennis Nolan sends a link to this New York Times review of the HBO documentary (Wednesday, 9 p.m. EST) The Curious Case of Curt Flood. Flood sued Major League Baseball in 1953 in an unsuccessful attempt to nuke the reserve clause.
Wednesday, June 15, 2011
Bill Herbert has just posted on SSRN his new article, "Public Sector Labor Law and History: The Politics of Ancient History?", which will be published in the Hofstra Labor and Employment Law Journal. The abstract:
This article discuss three books that address various aspects of public sector labor history. It seeks to contextualize the current debate over public sector labor law and relations through the lessons of relevant history. The first book discussed is entitled The Man Who Saved New York: Hugh Carey and the Great Fiscal Crisis of 1975, by Seymour P. Lachman and Robert Polner. It recounts the leadership of Governor Carey and public sector labor leaders in reaching negotiated solutions through collective bargaining that helped solve New York City's fiscal crisis in 1975. The second book is a long-forgotten 1948 treatise Government as Employer by Sterling D. Spero, published at the dawn of public sector collective bargaining in the United States. Unlike most histories of American labor, Spero's book focuses on the public sector, providing an important antidote to the dominance of the private sector narrative in United States labor historiography. The final book examined is a labor history published last year: There is Power in a Union: The Epic Story of Labor in America by Philip Dray. Dray's book presents an episodic labor history of America's private sector from the rise of industrialization to today, which touches upon certain events in public sector labor history.
Looks like an invaluable piece given the current news, including what came out of Wisconsin yesterday.
Friday, March 25, 2011
As Jeff noted yesterday, today is the 100th anniversary of the fire at the Triangle Shirtwaist Factory in New York City. It was the largest industrial accident in NYC history, and I think remains the second largest industrial accident in U.S. history.
With this anniversary come a number of excellent documentaries on the subject. Earlier this month, PBS's American Experience series (from WGBH in Boston) explored the fire, and you can watch that program and access many original materials here. HBO also has a documentary on the fire, and its website provides links to useful resources as well. For more in the way of documents, if you're interested, check out Cornell's ILR School site devoted to the fire, and UMKC has documents from the trial of the factory owners as part of its famous trial series online. The tragedy helped to mobilize people to push harder for protective labor legislation in New York and across the country, efforts that had already been underway, but which gained significantly greater momentum.
This anniversary is particularly interesting juxtaposed against today's current labor climate. We have the examples of the recent legislative efforts to strip public workers of collective bargaining rights in a number of states, but most visibly in Wisconsin. And in my own current state of Missouri, there seems an outright revolution in the works. We have a movement called "Fix the 6," proposed by business interests in the state. The program touches on some tax and broader tort reform issues, but primarily focuses on employment. The legislative agenda seeks to limit awards and make it harder for employees to get to trial in employment discrimination cases (h/t Erin Clark, for links to a summary of the legislation and this anti-legislation video), to roll back whistleblower protections (h/t Roger Goldman for the link to this article), and to repeal automatic increases to the minimum wage to keep pace with inflation. In addition to these, there was a bill to make union security clauses in collective bargaining agreements illegal--the so-called right to work legislation. While the right to work bill stalled in the Missouri Senate, the discrimination legislation has passed the House, and the whistleblower legislation has passed the Senate.
I'm struck, as likely many readers of this blog are, by all of this movement, much of it flying in the face of opinion polls, and wonder, why now and what does it mean? All of these bills are labeled as making our state more competitive for industry--as job-creating measures. Has the Great Recession made legislators think that workers (or seeking-work-ers) are so desperate that they will vote against their self interest in one sense--we often do, so maybe that's right--in the hopes that the resulting largesse to company profits will trickle down to them? Is this the kind of race to the bottom that might demonstrate that Brandeis' notion of states-as-laboratories has serious limitations at least when it comes to measuring justice values against scarce economic resources?
Are these multi-layered efforts going on in other states too? I'd love to hear about it or your thoughts in the comments.