Wednesday, July 12, 2017
It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.
First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.
Tuesday, July 11, 2017
Thanks to Aaron Halegua, a lawyer and research fellow at NYU Law School, for keeping us in the loop about the labor practices of one of Donald Trump's friends in China:
Last week, the Financial Times did a story on the Chinese migrant workers in Saipan who continue to demand payment for their work constructing a Hong Kong-invested casino, which has now opened. As an earlier story in the New York Times noted, the CEO of the Hong Kong company, Imperial Pacific, is a former executive of one of Donald Trump's casinos in Atlantic City. Imperial Pacific hired several Chinese contractors to build the project, who are alleged to have not paid some workers at all, failed to pay all workers the minimum wage or overtime, and not compensated injured workers. OSHA has issued large fines against the contractors for safety violations, which lead to at least one documented fatality, and DOJ is prosecuting managers of these companies for harboring and illegally employing aliens. As the contractors have not paid what is owed, the workers are now calling on Imperial Pacific to compensate them. Outside groups have supported the workers, including the National Employment Law Project, National Guestworker Alliance, and, most recently, the Hong Kong Confederation of Trade Unions -- which called on people to write letters to Imperial Pacific to pay the workers.
Sunday, July 9, 2017
Many thanks to Dennis Nolan (South Carolina emeritus; NAA) for forwarding Sylvain Cypel, Macron’s California Revolution, which has a detailed discussion of French President Emmanuel Macron's plans for French labor law. Here's an excerpt:
Continuing deindustrialization has shut millions of older employees out of the job market. And unemployment among the young is beating all records: at the end of April 2017, the number of officially registered jobseekers hit 5,836,000—the same number as in the United States, a country with five times France’s population! For the past forty years, whether governed by the right or the left—or even during short periods of “cohabitation”—neither side has been able to curb unemployment.
[N]ew macroniste politicians closely follow their leader’s core socioeconomic philosophy: that in today’s world, the people who rise to the top, or at least stay afloat, are those who’ve succeeded in adapting to the relentless process of globalization and its technological disruptions. There will be less and less room for job security and more and more for people who have a capacity for innovation and adaptation. Gone are lifelong professional careers. Likewise gone are rigid job descriptions and fixed work schedules. In this, Macron once again embodies a very American way of thinking. And he believes that France has to catch up to the current reality of the labor force.
But the first real test of the new president’s mandate will be the new labor law that he intends to issue as an executive order, before asking France’s parliament to vote on it. Macron wants to move fast. He wants to take advantage of the “big bang” of his election and his opponents’ stunned paralysis to abolish much of the existing French labor code, which, because of powerful labor unions, was designed to cater to the best-protected employees—especially those in heavy industry—and has long been skewed toward the interests of workers in general at the expense of greater flexibility and efficiency for private enterprise. Just how far does he mean to take this? Clearly, as far as he can.
The real question is whether Macron is ready to take on the unions or will seek to compromise with them. His approach to economic reform has been well known since his tenure as economics minister (2014–2016): a major deregulation of existing laws to allow employers to practice less “rigid” employment and hiring policies, including fewer restrictions on salaries and working conditions. These measures, he argues, are essential if there is to be a revival of the French job market. Employers, who are also asking for a freer hand in firing workers, claim these measures will bring a reduction in labor costs. The corollary to these ambitions, and the condition for their success, is a significant reduction of what remains of the unions’ power, already enormously diminished. (Fifty years ago, 22 percent of all employees were union members, while that number is currently 7.7 percent, according to the OECD).
When Macron tried to put these reforms into effect as economics minister under François Hollande, he encountered very strong resistance from the unions and from the public itself. After a series of protest marches and demonstrations, the law had to be issued by Prime Minister Valls, through a procedure designed to avoid a parliamentary vote, which it seemed quite unlikely to pass. Today the basic problem is much the same. The unions are so hostile to reforming the labor market because, behind the apparent “change,” it is possible to glimpse a policy that’s been at work for a long time already. Ever since 1984, all governments, right and left, have worked tirelessly to shatter administrative and legal “rigidity” with respect to hiring and firing. And yet, France’s steadily worsening joblessness has never been brought under control. Even worse, in France as in nearly all the rest of the Western world, inequality has become ever more deeply entrenched, in lockstep with the deterioration of middle-class purchasing power. It’s not hard to imagine, therefore, that the unions might once again be the front line of resistance to still more radical measures to deregulate the labor market.
Friday, July 7, 2017
I came across today an interesting new article, on a topic I hadn't thought much about before, posted recently on SSRN. The article, by W.C. Bunting of the U.S. DOJ-Civil Rights Division, is Unlocking the Housing-Related Benefits of Telework: A Case for Government Intervention. Here's the abstract:
The central claim of the present article is that some form of government intervention is necessary to make telework arrangements sufficiently binding in the long-run for employees living in, or near, city centers to feel comfortable incurring the costs of relocating to more remote, lower-priced areas, and to ensure the long-run financial self-sufficiency of private telework centers, which provide important benefits, not just to employers and employees, but to society generally. The public benefit considered here is the capacity for telework, and telework centers specifically, to provide lower-priced housing alternatives for middle- and high-income earners who choose to live in, or near, the city center to reduce the time spent commuting, but who would otherwise choose to live in more remote, lower-priced areas if commuting costs were lower. As explained, a minimal amount of government intervention is necessary, however, to overcome several key economic challenges that preclude employees from relocating to remote, lower-priced exurban or rural communities, as well as the formation of a new and exciting private-sector enterprise—the privately-operated telework center.
Wednesday, July 5, 2017
When teaching the adverse employment action doctrine, I often ask my class whether an employer would be liable if it painted the workspaces of its female workers pink while painting those of its male workers blue. Objectionable as that would be to the cause of equality in the workplace, the adverse employment action doctrine might well allow it: absent some additional provable harm, the décor would not be sufficient to violate the statute.
That law school hypothetical manifested in the real world in the recent Seventh Circuit case EEOC v. Autozone, Inc. where Stuckey, a black employee claimed that his employer, Autozone, violated Title VII by transferring him from one store to a new location with the motive of keeping the store “predominantly Hispanic.” The panel held that summary judgment was appropriate for Autozone: the EEOC failed to provide sufficient evidence showing that the transfer adversely affected Stuckey’s employment status since there was no reduction in his compensation or responsibilities.
The panel was obviously skeptical of the claim to begin with but, given Stuckey’s testimony that his district manager explained to him the reason for the transfer, it assumed a triable issue on that point.
At first blush, the decision is unremarkable as a straightforward application of the adverse employment action doctrine since Stuckey suffered no diminishment in pay or responsibilities. Section 703(a)(1)’s reference to discrimination in “compensation, terms, conditions, or privileges” of employment has led to the rule that an employee has to show meaningful harm in order to state a claim. A “lateral transfer” (one without reduction in pay) has been the quintessential example of no harm/no foul. Pink offices/blue offices. Whether that result casts doubt on the whole adverse employment action doctrine is another question.
But the EEOC tried an end run around the doctrine in Autozone by invoking § 703(a)(2), which declares it unlawful “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” because of the prohibited grounds. “Segregating” would seem to be exactly what Autozone was alleged to have been doing. The panel, however, rejected that argument, reading (a)(2), similar to (a)(1), to also require the EEOC to demonstrate that the transfer deprived Stuckey of meaningful employment opportunities. In short, segregating employees by race is not necessarily a statutory violation.
The court rejected the EEOC’s argument that proof of racial segregation should trigger automatic liability. Looking to the section’s phrasing, it found that the Commission reading “leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action ‘deprive[d] or tend[ed] to deprive’ the employee of employment opportunities ‘or otherwise adversely affect[ed] his status as an employee,’ what is the point of this statutory language?”
The panel did offer one piece of comfort to the EEOC, stressing that “(a)(2) does cast a wider net than subsection (a)(1),” because it speaks in terms of an action that “has only a tendency to deprive a person of employment opportunities” while (a)(1) addresses actions that actually "discriminate against any individual." It may be that some lateral transfer immune from (a)(1) nevertheless are actionable under (a)(2) because of their tendency to deprive the employee of opportunities. Still, the dramatic new possibilities for (a)(2) envisioned by Professor Sperino in Justice Kennedy’s Big New Idea are unlikely to be meaningfully realized if other courts take the Autozone approach.
However, to return to a point mentioned above, maybe cases like Autozone suggest a reconceptualization of the whole adverse employment action doctrine. After all, to permit racial (and other kinds of) segregation flies in the face of the antidiscrimination project, making a textual analysis that leads down this path surely suspect. Maybe more to the point, I am not the first to note that the adverse employment action doctrine is not very firmly wedded to the text of (a)(1). Where one works is surely a “term, condition, or privilege” of employment as those terms are usually used and as the first two were interpreted under the National Labor Relations Act. Ironically, maybe a textualist reading would make (a)(1) broader than (a)(2)! Finally, perhaps the courts should think more seriously about the structure of the statute. Title VII famously has a bona fide occupational qualification defense, and equally famously, it does not reach race. Autozone permits exactly the result that the BFOQ would allow, without all the messy restrictions of that doctrine.
Thanks to my research assistant Henry Klimowicz, Seton Hall Law ’19
Saturday, July 1, 2017
There is a great story in the New York Times today discussing the alarming problem and culture of sexual harassment in the technology sector. We have all seen the headlines and fallout from this conduct recently at a number of high profile companies in the modern economy. This article takes a fascinating look inside the industry and culture, focusing on the financing of start-ups. From the Times piece:
"Most venture capitalists and entrepreneurs are men, with female entrepreneurs receiving $1.5 billion in funding last year versus $58.2 billion for men, according to the data firm PitchBook. Many of the investors hold outsize power, since entrepreneurs need their money to turn ideas and innovations into a business. And because the venture industry operates with few disclosure requirements, people have kept silent about investors who cross the lines with entrepreneurs."
This is an increasingly important issue in a growing part of the economy (and as we blogged about earlier, Professors Eisenstadt and Geddes have an interesting take on the issue available here). The article definitely provides an interesting perspective on this high-profile topic.
-- Joe Seiner
Thursday, June 29, 2017
To celebrate the 50th anniversary of the ADEA, the EEOC brought together experts on age discrimination from a number of different disciplines. The panel looked at the continuing problem of age discrimination, even five decades after the statue was enacted. Older workers continue to report difficulties with obtaining employment, and outdated views of these employees continue to persist. From the acting chair, Victoria A. Lipnic:
"With so many more people working and living longer, we can't afford to allow age discrimination to waste the knowledge, skills, and talent of older workers," . . . "Outdated assumptions about age and work deprive people of economic opportunity and stifle job growth and productivity. My hope is that 50 years after the enactment of the Age Discrimination in Employment Act (ADEA), we can work together to fulfill the promise of this important civil rights law to ensure opportunities are based on ability, not age."
Information on the panel and discussion is available here, and the EEOC plans to post a video of the proceedings shortly as well.
Wednesday, June 28, 2017
There is a really interesting post over at the US Department of Labor blog on mental illness in the workplace. The author explores the various challenges workers can face in this area, and examines ways of addressing some of these issues. From the piece:
"Living with a mental illness also includes being aware of the stigma that comes along with it. A misperception about people with mental health disabilities is that they are weak or have a flawed character, rather than recognizing the biological basis of these conditions. Sadly, attitudes like these prevent people from seeking the help that they need to live healthy lives, and may discourage employers from hiring skilled, productive workers."
Mental illness is an important part of the Americans with Disabilities Act, yet one that is often unexplored. The post is definitely worth taking a look at if you are interested in this area.
-- Joe Seiner
Saturday, June 24, 2017
[T]he context is a retired NFL player's challenge to a no-disability determination by the administrative review Board set up under the NFL's disability retirement plan. The Court affirms a decision by Judge Garbis in the District of Maryland reversing the Board's determination, and rules in favor of the player whose disabling condition is related to 69,000 hits he suffered during his 9 year NFL career.
Friday, June 23, 2017
Congrats to Friends-of-blog Leora Eisenstadt and Deanna Geddes (Temple) who have a fascinating op-ed in The San Francisco Chronicle on the troubles at Uber and the law's contribution to the creation of angry workers and unhealthy workplaces. The piece is based on an article they have forthcoming in the UPenn Journal of Business Law called Suppressed Anger, Retaliation Doctrine, and Workplace Culture. This emerging issue has particular relevance for businesses in the on-demand economy (Jeff Hirsch and I recently posted a piece on the role unions can play in the technology sector, which is available here). I definitely recommend their op-ed if you have the chance to take a look!
Jonathan Rauch has written The Conservative Case for Unions in the Atlantic. Congratulations to Matt Dimick (Buffalo) for a prominent mention, and for Rauch's discussion of Dimick's work on the Ghent System. Here's an excerpt from the article:
All workers do not suffer equally from the decline of unions: In today’s fragmented, hypercompetitive, and globalized workplace, high-powered professionals enjoy more autonomy and respect than ever. Less educated workers, by contrast, have lost agency and, in many cases, dignity. Edward Luce of the Financial Times puts the problem well in his new book, The Retreat of Western Liberalism: “In survey after survey, the biggest employee complaint is being treated with a lack of respect. Whether they work in an Amazon warehouse, serve fast food, or sit in a … customer-service cubicle, they feel diminished by how they are treated.” That has implications not just for the well-being of workers, but for the health of capitalism and even of democracy.
In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself.
Thursday, June 22, 2017
The Call for Papers of the sixteenth International Conference in commemoration of prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19-21 March 2018, and will be entitled “Assessing Worker Performance in a Changing Technological and Societal Environment: an Interdisciplinary and Multifaceted Perspective”. Deadlines are as follows:
- submission of short expressions of interest, July, 20th 2017;
- submission of extended abstracts (in case of acceptance of expressions of interest): October, 13th 2017.
Further information will be available soon at the Marco Biagi Foundation’s website.
Wednesday, June 21, 2017
Sophie Mitra (Fordham Dep't Econ.) and Douglas Kruse (Rutgers - Management & Labor) have just published a significant new empirical study of the impact of disability on employment. The article is Are Workers with Disabilities More Likely to be Displaced?, and unfortunately their answer is "yes". The article is published at International Journal of Human Resource Management, Vol. 27(4), pp. 1550-1579, 2016; here's the abstract:
The literature on employment and disability has been relatively silent regarding the job loss experience of persons with disabilities. We document the gap in job displacement rates across disability status in the United States over the 2007–2013 period using data from the 2010, 2012 and 2014 Displaced Worker Supplements of the Current Population Survey. We find that men and women with disabilities are, respectively, 75 and 89% more likely to experience an involuntary job loss than men and women without disabilities in the United States over the 2007–2013 period, with gaps in displacement rates of eight and seven percentage points for men and women, respectively. A significant gap is found in most occupation-education subsamples. Using a logit decomposition, we find that differences in observable characteristics do not explain the gap in the job loss rate across disability status. Longitudinal tests following workers over a one-year period point to a causal effect of disability on the likelihood of displacement. While the disability gap may be due to unobservable characteristics, job mismatch and employer discrimination are also possible explanations, highlighting the potential importance of employer and public policies in improving the job security of workers with disabilities.
Tuesday, June 20, 2017
As predicted, Marvin Kaplan will be nominated as a member of the NLRB. At the moment, Kaplan is counsel at the Occupational Safety and Health Review Commission. especially given his previous Capitol Hill experience as counsel for the House Workforce and Education Committee, I would expect his nomination to come relatively quickly, producing a 2-2 political split on the Board (of course, most cases will be heard by a randomly selected 3-member panel).
Monday, June 19, 2017
Over at On Labor, Vivian Dong describes the switch:
[T]he Department of Justice announced last Friday that it will switch over its support in the upcoming Supreme Court case, NLRB v. Murphy Oil, from the National Labor Relations Board to Murphy Oil. The issue in the case, set for the 2017 October term, is whether arbitration agreements with individual employees that ban employees from pursuing employment claims on a class or collective basis (class action waivers) violate the NLRA. Under President Obama, the DOJ wrote an amicus brief in support of the NLRB, which had ruled that such arbitration agreements did indeed violate the NLRA. But, as the DOJ states in its re-filed brief, “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.” The DOJ now argues that “nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here.” NLRB v. Murphy Oil was consolidated with Epic Systems Corp. v. Lewis (the 7th Circuit opinion that caused the circuit split), and Ernst & Young LLP v. Morris—all three cases received significant attention when their opinions were issued. Whatever the outcome, the case will be a landmark case for employment law.
The ABA Journal of Labor & Employment Law now welcomes submission of manuscripts for possible publication in Volume 33 of the Journal for 2017-2018. The Journal, whose subscribers include the 20,000-plus members of the ABA Section of Labor & Employment Law, seeks articles of current practical interest to labor and employment attorneys written by attorneys, judges, government officials, and professors. Articles should not exceed forty pages with both text and footnotes double-spaced. Academics may submit manuscripts of immediate relevance to practicing attorneys derived from longer, previously-published articles if they are within this length limitation. Manuscripts should be submitted in Microsoft Word as an attachment to an e-mail sent to firstname.lastname@example.org. Inquiries to the Faculty Co-Editors, Stephen F. Befort and Laura J. Cooper, may also be sent to that e-mail address.
Saturday, June 17, 2017
Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description:
The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine―from statutes, judicial decisions, and other sources―focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.
I haven't yet received a copy of the book, but know from reviewing the draft of the labor law chapter that it will be top-flight.
Monday, June 12, 2017
In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall. This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 17, 2017 at Berkeley Law School.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.
Full drafts must be available for circulation to participants by October 27, 2017.
Proposals should be submitted to:
Tristin Green, USF School of Law, email@example.com. Electronic submissions via email are preferred.
Sunday, June 11, 2017
The Center for Contemporary Labour Law (CCLL) is a new labor-focused Center directed by Professor Giorgi Amiranashvili of Tbilisi State University in Tbilisi, Georgia. The goals of CCLL include (1) educational and scientific research activities, (2) dialogue & collaboration with all actors in the labor field, (3) consultative activities, and (4) collaboration with foreign experts and institutions.
Founding members include Prof. Amiranashvili, Prof. Dr. Andrea Borroni (Italy); Assoc. Prof. Dr. Vakhtang Zaalishvili (Georgia); Ph.D. Candidate Tornike Kapanadze (Georgia). Other members include Assoc. Prof. Dr. Elena Sychenko (Russian Federation); Prof. Dr. Francesco Bacchini (Italy); Prof. Dr. Roberta Caragnano (Italy); Dr. Marco Seghesio (Italy); Assoc. Prof. Dr. Nicos Trimikliniotis (Cyprus); Prof. Rick Bales (U.S.).
CCLL has hosted several lectures at Tbilisi State, including:
- Prof. Dr. Andrea Borroni & Prof. Dr. Francesco Bacchini on “The position of Labour law in the private law system”.
- Assoc. Prof. Dr. Elena Sychenko was held at Ivane Javakhishvili Tbilisi State University on “The European Convention on Human Rights as a Source of Labour Law”.
- Mr. Kari Tapiola, Special Advisor to the Director General of the International Labour Organization, on “The Role of International Labour Standards in strengthening Social Justice and Economic Efficiency”.
Wednesday, June 7, 2017
Friends of the blog Susan Bisom-Rapp (Thomas Jefferson) and Urwana Coiquaud (HEC Montreal) have posted their latest paper on SSRN. This comparative law collaboration, examining the actions of the state in undermining the standard employment relationship and increasing nonstandard work, is called The Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States. Here is the abstract:
In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone.
Susan and Urwana note that their analysis is both descriptive, in that it reveals the government’s complicity in the rise of employment insecurity, and normative, because it provides a mechanism for applauding or indicting the actions of the state in the face of changing work relations in the 21st century.