Saturday, July 28, 2018
Here's a call for papers from the Marquette Benefits and Social Welfare Law Review:
The Marquette Benefits and Social Welfare Law Review is seeking submissions for its Spring 2019 Symposium on the topic of the revitalization of labor law. In the past year, teachers across the nation have gone on strike en masse for higher wages and better working conditions. The United States Supreme Court’s recent decision in Janus v. AFSCME is expected to have wide-ranging effects on public sector unions. These are but a few examples of current issues in labor law we hope to highlight.
Symposium articles will be published in Volume 20, Issue 1, scheduled for publication in Spring 2019. At this time, we invite all interested scholars and practitioners to submit a title and abstract to be considered for publication in the Symposium issue. Please send titles and abstracts no later than Friday, August 31, 2018.
Articles should be between twenty and twenty-five double-spaced pages. Final article submissions will be due December 31, 2018.
Titles and abstracts may be submitted via email to Travis L. Yang, Symposium Editor, at firstname.lastname@example.org.
Tuesday, July 24, 2018
I am attending this week the International Labour and Employment Relations Association conference in Seoul. Here's a brief description of the organization:
The International Industrial Relations Association (IIRA) was established in 1966 in response to a growing need to develop and exchange knowledge in the field of industrial relations, at the international level, and provide the academic and the practitioner with a forum for discussion and research. Its founding members were the British Universities Industrial Relations Association, the Industrial Relations Research Association (USA), the International Institute for Labour Studies (Geneva, Switzerland) and the Japan Institute of Labour. In 2010 it was decided to change its name to International Labour and Employment Relations Association, Ilera.
There are a respectable number of U.S. academics, mostly from business and ILR schools; relatively few are law faculty. There are about 1900 total attendees. There's a good mix of academics, H.R. practitioners, and labor union activists, though most of the panels are academically oriented. This is my first time to attend ILERA; I'm here because I (correctly) anticipated heavy representation from folks throughout East and Southeast Asia.
If you're interested in learning more, email me. If you're interested in attending the next ILERA conference (Lund, Sweden, 21-24 June 2021), a conference brochure is after the page break.
Thursday, July 19, 2018
Thanks to Jon Harkavy for once again alerting us to an important case out of the Fourth Circuit. The case is Savage v. State of Maryland. Part III of the opinion deals with a Title VII retaliation claim by a public employee. The Court denies an interesting claim with esoteric issues galore by holding simply that even if the defendants are subject to Title VII liability, there cannot be actionable retaliation here. That is because no reasonable employee could believe that exposure to the most odious racial epithets violates Title VII when it is part of the employee's job in preparing for trial to listen to potential witness statements being read by the state's attorney. [The plaintiff here is a police officer who attended a trial preparation meeting where the state's attorney read potential witness letters containing the epithets.] When plaintiff complained about a hostile environment, the attorney allegedly retaliated against him by refusing to use him as a witness. The Fourth Circuit holds that context matters when an employee is, in the course of his job, exposed to the most offensive racial slurs.
I am very pleased to let you know that well-known employment law scholar Michelle Travis (University of San Francisco law school) has just published a brand new children’s book, My Mom Has Two Jobs. This wonderful new text, targeted at children ages two through seven, gives working mothers a much needed new platform to talk with their kids about their different jobs. The book also helps to break down gender stereotypes that currently exist in the workplace. From the book's official website:
Finally, a children’s picture book that pays homage to working moms everywhere!
My Mom Has Two Jobs celebrates the work that women do both inside and outside of the home. On each page, children proudly describe how their moms care for them in a very special way, while also making the world better through their careers. The book highlights moms in a wide range of professions, including a teacher, engineer, police officer, doctor, secretary, dentist, firefighter, nurse, lawyer, waitress, military sergeant, veterinarian, and pilot.
My Mom Has Two Jobs gives parents a platform to talk to their kids about their work, and to help kids see how parents bring the same love, passion, and dedication to both their parenting jobs and their professional jobs. The book is beautifully illustrated to embrace diverse moms and kids of different races and ethnicities, and to show the wide range of important roles that women play.
What a wonderful new addition to the children's literature. More about the book can be found here. Congratulations Michelle!
Ann Hopkins, of Price Waterhouse v. Hopkins fame, has passed away. You can see the NY Times obituary on her here. Especially in the current #MeToo movement, it's important to remember the major impact that her case has had on sex discrimination in the workplace.
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts as part of a Call for Papers to be presented at the 2019 Annual Meeting program in New Orleans. The program, titled Increasing Tension: Labor and Employment Law Protections and Religious Accommodations, will take place on Friday, January 4, 2019, from 10:30 am to 12:15 pm, and it is co-sponsored by the AALS Employment Discrimination Law and Law and Religion Sections. This program will follow the Labor Relations and Employment Law and Employment Discrimination Sections breakfast held from 7:00 a.m. to 8:30 that morning.
This program will focus on the increasing tension between workplace and antidiscrimination laws and religious freedom. Panelists will explore the challenges presented by this tension when religious exemptions from workplace and antidiscrimination laws are provided to religious organizations, employers with deeply held religious beliefs, and individual employees. A panel of leading labor and employment law and law and religion scholars will address that issue from varying perspectives, including constitutional law (religious freedom and/or compelled speech and association in the workplace), traditional labor law (NLRB’s jurisdiction over religiously affiliated employers and the impact on employee organizing drives), and employment discrimination law.
We are seeking an additional speaker or speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Joseph Mastrosimone, at email@example.com by Friday, September 17, 2018. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 4, 2019.
That didn't take long. A week after Janus came down, the Purple Communications firm is trying to use the decision (as well as Becerra) to overturn the NLRB's rule in Purple Communications that permits employees in some instances to use employer e-mail for NLRA-related communications. This argument reflects part of Member Johnson's dissent in Purple Communications.
As I've written previously, I think the argument that it violates the First Amendment to allow employees to communicate about labor matters through employer email is ridiculous. The best rejoinder to this argument was the majority's analogy in Purple Communications that no one would think that a message sent via gmail represents the views of Google. And I see nothing in Janus or Becerra that suggests otherwise. The closest related claim to pass the smell test is the idea that requiring an employer to allow speech hostile to the employer on its own e-mail system is improper. I say it's close to passing the smell test because one can see how an employer would see that as unfair. But that doesn't mean there's any legal basis for the argument. The Court has required employers to let employees use their property for hostile speech for decades (think Republic Aviation) without any constitutional or statutory issues. That said, I guess we can't totally count this argument out given how the Court has been treating labor issues lately.
Hat Tip: Charlotte Garden
New and Emerging Voices in Workplace Law Session at 2019 AALS Annual Meetin
The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law is inviting submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2019 Annual Meeting in New Orleans on Thursday, January 3, 2019, from 3:30-4:45 p.m.
About. This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of scholars in the field. The session will provide new scholars a supportive environment in which to receive constructive feedback.
Eligibility. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.
Submission Format. Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.
Submission Instructions. To be considered, proposals should be submitted electronically to Professors Joseph Fishkin, at firstname.lastname@example.org, and Joseph Mastrosimone, at email@example.com. The deadline for submission is Friday, September 1, 2018.
Selection. Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 29, 2018. Presenters will be responsible for paying their annual meeting registration fee and travel expenses. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 3, 2018.
Questions. Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Professor Joseph Fishkin, at firstname.lastname@example.org and/or the Chair for the Section on Labor Relations and Employment Law, Joseph Mastrosimone, email@example.com.
Wednesday, July 18, 2018
Friends-of-blog Bradley Areheart (Tennessee) and Jessica Roberts (Houston) have just posted on SSRN their superb piece, The Future of Genetic Privacy, which is forthcoming next year in the Yale Law Journal. This excellent piece examines the Genetic Information Nondiscrimination Act and the importance of privacy during the era of big data. The abstract is below:
How should we measure a law’s success? Congress frequently outlines its reasons for enacting legislation. But what if a statute fails to accomplish its articulated purpose but serves another—more important—end? The Genetic Information Nondiscrimination Act (GINA) has faced significant criticism since passing in 2008. Commentators have dismissed the law as ill-conceived, unnecessary, and ineffective. However, on GINA’s ten-year anniversary, we argue that while GINA has failed to fulfill its purpose of improving attitudes toward genetic testing, it has achieved unanticipated success as an employee privacy statute. In the era of big data, protections for employee privacy are more pressing than protections against genetic discrimination. Instead of failed legislation, GINA is a blueprint for future employment laws.
Congratulations to Jessica and Bradley on their wonderful work, and I recommend that everyone add this great article to their summer reading list!
Monday, July 16, 2018
Tenure-Track Assistant or Associate Professor Position in Conflict Resolution
The ILR School at Cornell University invites applications for a tenure-track faculty position in the area of conflict/dispute resolution at either the Assistant Professor or Associate Professor level, to begin August 2019. Applicants should have research and teaching interests related to topics such as arbitration, mediation, negotiation, conflict management, dispute resolution, collective action, and social movements. We are open to scholars using qualitative, quantitative, legal, and mixed methods, and studying conflict at various levels of analysis including societal, organizational, group, or individual. Applicants should have a doctorate (PhD or JD) in a relevant field, such as industrial relations, organizational behavior, law, psychology, sociology, or management. A successful candidate’s appointment will be in either the Department of Labor Relations, Law, and History or the Department of Organizational Behavior. Faculty in these departments publish in top-tier journals in their field, such as ILR Review, Industrial Relations, Administrative Science Quarterly, Academy of Management Journal, American Journal of Sociology, American Sociological Review, Journal of Personality and Social Psychology, Psychological Science, Journal of Experimental Social Psychology, Journal of Empirical Legal Studies, and in major law reviews. Evidence of very strong research and teaching potential is essential. Review of applications will begin October 1, 2018. Questions about this position can be directed to Professor Alex Colvin (firstname.lastname@example.org), Professor Harry Katz (email@example.com), Professor Marya Besharov (firstname.lastname@example.org), Professor Pam Tolbert (email@example.com), or Professor Kate Griffith (firstname.lastname@example.org).
Lost in the shuffle of the latter part of the Supreme Court's term this year was Lucia v. SEC. In that case, the Court held that ALJs are "Officers of the United States" that must be appointed by the president or agency heads. In response, the Administration recently issued an executive order requiring ALJs to be hired by the respective agencies, rather than a central pool maintained by OPM. Although some fear that this will inject more politics into ALJ selection, it seems like an obvious move after Lucia.
It's unclear the extent to which this affects workplace agencies. For instance, my understanding is that the NLRB already follows a hiring procedure that would pass muster under Lucia. I believe the case is similar from safety ALJs, like those under MSHA and OSHA. Indeed, it's not a certainty that Lucia would apply to all of these ALJs, as that holding was limited to ALJs who carry out important duties with significant discretion (although my sense is that they would meet this threshold).
This all may be a nothing-burger, but it's worth keeping an eye on.
Sunday, July 15, 2018
Jon Harkavy (Patterson Harkavy) sends word of Strothers v. City of Laurel, Maryland, downloadable here, a Fourth Circuit decision handed down last Friday. The case involves a Title VII retaliation claim against a public employer based on a complaint of racial harassment. Judge Gregory's opinion for the panel reversed a district court's dismissal of the claim.
Thursday, July 12, 2018
Just a quick reminder that registration for COSELL XIII closes on August 20: Registration is currently still available here!!!
The Thirteenth Annual Colloquium On Scholarship in Employment and Labor Law (COSELL) will be held at the University of South Carolina School of Law in Columbia, South Carolina. We are celebrating our move into a completely new legal facility, and we look forward to you joining us for the conference from the evening of Thursday, September 27th through the afternoon of Saturday, September 29th, 2018. Information on registration, the conference hotel, and participating in the conference is available here. Registration for the conference hotel is also now available online, and can be completed here.
We look forward to seeing everyone in South Carolina in a couple of months, and please let me know if you have any questions about the registration process.
Wednesday, June 27, 2018
The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.
The basis for the decision is that dissenting employees’ have a 1stAmendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees' 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.
Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments:
- Will courts try to apply Janus to the private sector? There has been some loose language by the Court in the past that raises the possibility that court enforcement of union fee agreements is enough for state action, particularly in more highly regulated areas. The Court since then has been moving towards a more narrow interpretation of state action, but as Janus shows, that doesn't mean they won't make an exception when unions are involved. Indeed, in Janus, the Court stated that the line between chargeable and uncharitable expenses is "unworkable" (it's certainly difficult at times, but this seems a stretch). On the other hand, in its defense of overruling Abood, the Court in Janus stressed the difference between public- and private-sector collective bargaining and footnote 24 the Court described this state action argument as "more questionable" now then when Abood was decided. This could be considered a minor win for unions. See Joe Slater’s helpful article on this topic in which he argues persuasively that this holding should not apply to the private sector.
- Is this the beginning of the end for exclusivity? Up to now, American labor law has been built on the notion that unions act as the exclusive representative of all employees in a unit. I predict (see warning above) that Janus will usher in more challenges to exclusivity. This may include unions being more willing to explore members-only representation, as well as the NLRB at some point addressing whether the NLRA requires employers to bargain with minority unions. For instance, a bill has already been introduced in NY that would allow unions to decline to represent non-member employees for grievances and other matters, while also allowing them to provide insurance and other benefits only to members; other states (California and NJ) have recently enacted and/or are working on other pro-union measures. One limit to this, however, is that in Janus, the Court seemed to double-down on the notion that unions and public-sector employers cannot agreed to contracts that treat nonmember employees worse. That doesn't preclude members-only unionism, but it does serve as a reminder that there would be limitations to such representation.
- Related to the exclusivity issue--is this also the end of fair representation? Even before the Janus decision was announced, unions filed suit in state courts challenging the idea that they have a duty to fairly represent all unit employees. Now that Court has held that the Constitution precludes dissenting employees from paying for union representation, unions will argue in turn that it is unconstitutional to force them to expend time and resources representing employees who pay nothing. Janus gives some mixed signals. In one direction, the Court stated that unions' "duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative." Thus, unions may have to seek to be members-only to push this argument. In the other direction, the Court seems to approve of arrangements in which union charge nonmembers for using grievance or arbitration procedures.
- While exclusivity and fair representation are weakened, will Janus usher in a strengthening of public-sector employees’ 1st Amendment rights? The language in Janus suggests so, as it now states that public-sector working conditions are matters of public interest that warrant more 1st Amendment protections. Despite that, however, the answer I think is “no.” Although it’s not defensible, I believe the Court will limit its broad 1st Amendment interpretation to cases brought against unions. Individual employees, I predict, will continue to face steep challenges raises these claims. Indeed, in Janus, the Court made a point of stressing that union speech is a public concern and it distinguished Pickering by stressing the difference between a union pushing for a wage increase and an individual employee--all of which seems to be a to distinguish individual employees' free speech claims. In addition, I doubt the Court will be as concerned with the 1stAmendment when unions challenge Section 8(b) limitations on their right to protest, picket, and boycott. See Charlotte Garden’s article on this.
- How badly will this hurt unions? We saw fairly steep declines in union membership following major changes in states like Wisconsin. Will Janus and its new opt-in requirement extend that affect nationwide? I suspect that, on average, public-sector unions will see a big hit, but that the effect will not be consistent everywhere. This is especially true given that some states have already made moves to add protections for public-sector collective bargaining in anticipation of Janus.
- On a minor note, while discussing the difficulty in challenging what's chargeable and what's not under Abood, the Court in Janus stressed the "substantial" costs in bringing an arbitration case to make such a challenge. It wasn't central to either case, but that's one of the exact arguments in Epic Systems (and the earlier Italian Colors) that the Court didn't seem concerned about.
- On a non-labor related note, the number of precedents overruled by the Court in the last couple of weeks is remarkable--and that's just the ones overruled explicitly. For whatever reasons, the Court this term has seemed more willing to break from its past to achieve the result it wants, and it will be interesting to see if that trend continues next term.
Tuesday, June 26, 2018
Just a heads up: the Supreme Court just announced that tomorrow is the last day of the term. Which means that we'll have Janus. Not that the outcome is in doubt, but I'll have the decision posted, along with some thoughts ASAP. So stay tuned tomorrow morning, including following us on Twitter.
Monday, June 25, 2018
Monday, June 18, 2018
Yale Law Journal and Stanford Law Review have just published a companion symposium titled “#MeToo and the Future of Sexual Harassment Law.” The symposium addresses, among other things, how sexual harassment interacts with notions of gender policing, sex segregation, and arbitrary and unchecked power in the workplace; the kinds of reforms needed to more effectively discourage sexual harassment; and the need to extend protections to those who are accused of harassment. Here are the contributors; their abstracts are available on the other side of the page break.
- Vicki Schultz (Yale)
- Brian Soucek (U.C. Davis)
- Rachel Arnow-Richman (Denver)
- Angela Onwuachi-Willig (Berkeley en route to the deanship at Boston U.)
- Ramit Mizrahi (Mizrahi Law)
- Tristin K. Green (San Francisco)
- Ian Ayres (Yale)
- Nancy Gertner (Harvard)
- Susan Bisom-Rapp (Thomas Jefferson)
- Rebecca K. Lee (Thomas Jefferson)
- Nicole Buonocore Porter (Toledo)
- Ann C. McGinley (UNLV)
Friday, June 15, 2018
Some recent labor & employment stories in the news recently:
- The New York Times has a piece out today on the prevalence of pregnancy discrimination, which includes background on Peggy Young and her suit against UPS that went to the Supreme Court. It reminded of my time one summer as a law student working on a pregnancy discrimination trial at Vladeck Waldman in NY. I distinctly remember the attorneys being worried about our case--which should've been an easy one based on the facts--because of their past experience facing resistance to such claims in front of judges' and juries. Our client ultimately won this one, but looking back, it's crazy how much evidence of discrimination it took.
- The California Department of Industrial Relations found the Cheesecake Factory jointly liable for wage and overtime violations against janitors at its restaurants. The case involved new state laws imposing more legal liability on companies for their contractors's violations. In this case, a subcontractor was directly responsible for the violations, but both the Cheesecake Factory and the contractor it hired, which in turn hired the subcontractor, were held jointly liable.
- The NLRB has made explicit what has been clear for a while: it's going to engage in rulemaking on the joint employer test. Oh, and it will also conduct a comprehensive review of its ethical policies and standards for Board Member recusals.
- Thomas Edsall writes an op-ed in the NY Times about worker struggles in the current economy, particularly under the Trump administration. He quotes top economists, Sachin, and some other guy who blogs here.
Congratulations to Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex Univ. London) on the paperback publication of their book Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Univ. Press). The book has garnered favorable reviews since its publication in October 2016. Richard Poole (Newcastle University, UK) described the book as “a fine achievement…a thorough, compelling, and valuable book.” Erika Kispeter (University of Warwick, UK) called the book a “successful combination of the sociological and legal aspects of women’s lifetime disadvantage in work” and “an accessible often fascinating analysis of current laws and their implementation.”
Nicole Porter (University of Toledo, USA), in a forthcoming review notes, “To my knowledge, this is the only book that outlines, in a systematic way, how all of the disadvantages and discrimination women face over a lifetime accumulate to contribute to women’s economic insecurity in old age.” Praising its “ambitious” and “broad-minded approach,” and “voluminous body of research,” she added, “I thoroughly enjoyed this book.”
Cambridge University Press is presently offering the book at the discounted price of $27.99 (£18.39). The flyer for this pricing is available here.