Sunday, March 9, 2014
This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American.I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.
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.
A new posting on SSRN on Designing Law School Externships that Comply with the FLSA should be of great interest not only to those of us tilling the employment law vinyard but to pretty much everyone else in legal education. From Niki Kuckes of Roger Williams, it deals with the recent DOL letter to the ABA on law student internships and the minimum wage question. Here's the abstract:
Recent debates over the best way to educate lawyers has led to an increasing focus on providing “experiential” education in law schools – and with it, a noted growth in law school externship programs. Externships provide a valuable way of giving law students real-life legal practice experience by allowing them to earn academic credit for training in a variety of actual legal settings, from prosecutors’ offices to corporate counsel departments. Because current ABA Standards for Law Schools do not permit students to be paid for activities for which they earn academic credit, law school externships are unpaid. This can raise questions under the Fair Labor Standards Act (“FLSA”), which bars covered employers from offering unpaid positions unless those positions qualify for one of the specific exceptions recognized by the Department of Labor from federal minimum wage and overtime requirements.
This issue was recently highlighted by an exchange of letters between the Department of Labor and the American Bar Association over law school externships. In September of 2013, the Department issued an opinion letter that approved as permissible the particular externship program posited by the ABA (in which unpaid law student externs at private law firms work exclusively on pro bono cases). Following this exchange, the broader question remains as to how to design an FLSA-compliant legal externship program, outside of this narrow setting.
This Article demonstrates that the interests of the law schools and the Department of Labor are in accord in this area, and that both seek to ensure – through the ABA Standards, on the law school side, and the FLSA, on the Labor Department’s side – that unpaid externships designed as training programs genuinely provide meaningful education and training for the law student externs who participate. By parsing the FLSA case law in this area and Department of Labor guidance statements, the Article derives a set of “best practices” for designing FLSA-compliant law school externship programs, highlights some pitfalls that may arise, and suggests specific steps to be taken both by law school externship program directors and host organizations who may participate in legal externship programs.
Hat tip to Mike Yelnosky for flagging this for us.
- 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.
Wednesday, March 5, 2014
Thank you to the Workplace Prof Bloggers for inviting me back, and special thanks to Paul Secunda for his incredible work on this blog. Paul and the rest of the team have been an invaluable source of information about labor and employment law developments and scholarship. The virtual community that Paul helped to build here does a wonderful job of making newcomers feel immediately welcome. Thank you, Paul!
For my first post, I want to raise an issue that I have been pondering in connection with last week's Citizens United symposium at Stetson: employer attempts to persuade employees to vote for certain candidates. Several such attempts were reported in the last presidential campaign, and they raise questions about voter coercion. Although state and federal statutes (mostly criminal) prohibit threatening or intimidating voters, many consider them ineffective. Shortly after Citizens United, Paul argued that states should follow Oregon's lead by enacting statutes that protect employees from termination or discipline for refusing to attend mandatory political meetings. Elsewhere, Bruce Ackerman and Ian Ayres have argued that the Gissel Packing standard for distinguishing protected employer speech from unprotected coercion in union elections should be imported, by federal or state legislation, into the political election context. Eugene Volokh appears to agree that Gissel Packing is the right standard for political elections. Gissel Packing generally permits employers to predict an election's consequences when speaking to employees only if (1) the employer points to "demonstrably probable consequences" based on objective fact and (2) those consequences are beyond the employer's control.
It strikes me that attempts to import Gissel Packing into political elections are misguided. The Supreme Court, in Gissel Packing itself, identified important differences between union and political elections that might justify different standards. The Second Circuit, in a similar context, rejected an analogy to political elections, noting the "more intimate relationship" between employees and candidates (union vs. employer) in union elections, and the need for "extra breathing space" in political debates. Also, the Gissel Packing standard is less workable for political elections; what counts as a "demonstrably probable consequence" of a presidential election? Moreover, any attempt to import Gissel Packing into political elections might spur the Court to reconsider Gissel Packing itself, given the Court's more recent First Amendment jurisprudence.
Perhaps deterrence through civil tort remedies is a better approach? In Kunkle v. Q-Mark, Inc., a federal court recognized a wrongful discharge claim based on the clear public policy found in criminal statutes prohibiting voter intimidation. The employee/plaintiff alleged that her supervisor threatened to fire Obama supporters if Obama were re-elected, and further alleged that the supervisor engaged employees in conversations aimed at uncovering political affiliations. The day after the election, plaintiff stated at work that she had voted a "straight democratic ticket." Two days later she was fired. The case settled after the court denied defendants' motion for judgment on the pleadings.
There will often be problems of proof (secret ballots) and questions about whether the legislature has already supplied adequate remedies. But deterrence through a civil wrongful discharge remedy might nonetheless be preferable to the Gissel Packing approach, which seems both unlikely to succeed and risky.
Monday, March 3, 2014
Professor Bent joins Stetson as an assistant professor of law, teaching and writing in the areas of civil procedure and employment law. Professor Bent's scholarly interests include systemic theories of employment discrimination, workplace safety regulation, and law and economics. His recent articles have been selected for publication in the Ohio State Law Journal, the Tennessee Law Review and the Michigan Journal of Law Reform. Prior to joining the faculty at Stetson, Professor Bent was a Shughart Fellow and visiting assistant professor at the Penn State University Dickinson School of Law.
Professor Bent graduated magna cum laude from the University of Michigan Law School, where he served as a notes editor of the Michigan Law Review and was a member of the Order of the Coif. Professor Bent earned his bachelor's degree in economics, with honors, from Grinnell College. Following law school, Professor Bent served as a judicial clerk to Judge Cornelia Kennedy of the U.S. Court of Appeals for the 6th Circuit and Judge Joan B. Gottschall of the U.S. District Court for the Northern District of Illinois. Following his clerkships, Professor Bent practiced in the Labor and Employment and Appellate Practice Groups with Foley & Lardner LLP. He later became a principal and shareholder of Smith & Bent P.C., where he practiced employment law and environmental litigation. While in private practice, Professor Bent represented clients in International Chamber of Commerce arbitration proceedings, advocated for clients in systemic employment discrimination cases involving the U.S. Equal Employment Opportunity Commission, and assisted clients in interactions and negotiations with state environmental and human rights agencies.
A couple of his recent articles include:
Welcome aboard, Jason!
Sunday, March 2, 2014
Labour 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.
Nicole Porter (Toledo) has posted on SSRN her article The New ADA Backlash. She's presented on this and related several times recently, including at my law school, and I think it's spot-on. Here's the abstract:
Many believe the Americans with Disabilities Act (ADA) suffered from a significant backlash by courts, only corrected by the ADA Amendments Act (ADAAA) in 2008. Following the ADAAA, it seemed likely the judicial backlash would continue in new ways. My analysis suggests that although the backlash has not happened as dramatically as some feared, there is reason to anticipate a new backlash against the ADA.
The initial backlash to the ADA consisted of courts strictly interpreting the definition of disability so that very few cases made it past the threshold coverage question. This Article first seeks to determine whether courts are following Congress’s mandate in the ADAAA to broadly interpret the definition of disability, making it easier for an employee to get past the threshold question of whether the employee meets the statutory definition of disability. The answer to this first inquiry is “yes” — the courts are interpreting the definition of disability much more broadly, allowing many more plaintiffs to survive summary judgment on this issue.
However, a new backlash may be coming, and it could take two forms. First, courts could broadly construe the “essential functions of the position,” giving great deference to what the employer designates as the essential functions and thereby excluding individuals with disabilities from protection. And second, courts could use the ambiguity of the word “reasonable,” to hold that many accommodations are not reasonable, thereby eliminating the available remedies for employees with disabilities. My analysis of court decisions on these issues since the passage of the ADAAA shows somewhat mixed results.
The most interesting result is that there appears to be a real backlash against the ADA when the employee is requesting an accommodation related to the structural norms of the workplace — the hours, shift, schedule, attendance, and leave policies. Courts are quite reluctant to require employers to modify these structural norms of their workplaces. Based on this last conclusion, this paper explores why the structural norms of the workplace appear to be so immune to judicial scrutiny.
Matthew 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.
Friday, February 28, 2014
Although I stopped blogging one time before about five years ago, and of course restarted a number of months later, I have decide once and for all to take a permanent vacation from blogging. Today is my last day on the "job."
There are a number of reasons which led to this decision (as there always are with a decision such as this one), but none have anything to do with my wonderful co-bloggers, Rick, Jeff, Marcia, and Charlie. They have been supportive colleagues throughout this adventure together and I thank each of them for providing some of the best blogging content around to the labor and employment law community.
No, for me, it is simply just time to move on to a new phase of my legal and academic career. I no longer have the time or energy to do the numerous posts a week that a blog such as this demands. It's hard to believe, but I have been blogging for almost ten years now (Rick and I started blogging together in the fall of 2004). I still enjoy learning about labor and employment law developments, new papers, conferences, and faculty news from all of you, and I love the great virtual community we have built together through this blog. But now I will become, like the rest of you, solely a reader (and sometime commenter).
If you have the inclination, you will still be able to find some commentary and other such stuff from me concerning labor and employment law on my Twitter feed (@psecundawrkprof).
In the meantime, my four co-bloggers will "labor" on and continue to provide the top-notch news and analysis you have come to expect from this platform. And I suspect that there will be opportunities as well for new voices to emerge on this blog. Please note that a new Twitter Feed has been started for this blog - @WorkProfBlog - and I hope you will consider following it.
I look forward to continuing interacting with many of you by email, during conferences, and in other assorted venues. Thank you for making my time as a blogger here at Workplace Prof Blog so much fun.
To quote Garrison Keillor: "Be well, do good work, and keep in touch."
This is a pretty sad day for me in particular, the other editors of the blog more generally, and the wider world of legal academia and practicing attorneys that have come to rely on Paul's indefagitable contributions to a wide range of topics within our discipline. "Benefits" might have been his first love here, but here and elsewhere he has been a strong voice in the legal academy. I take some considerable comfort in his assurances that he will continue to be that strong voice, albeit in other forums. Heck, I might actually have to join Twitter in order to get my daily fix of Paul's musings!
Thursday, February 27, 2014
This has been a busy semester for the Labor and Employment Law Program at Marquette University Law School. In addition to the Speaker Series I wrote about this past Tuesday, we are also honored to be hosting the Third Annual ERISA, Employee Benefits and Social Insurance National Conference (program at this link) on March 28, 2014 (this follows up to wonderful ERISA conferences at Washington University Law and Michigan Business the two previous years).
To say we have an embarassment of riches does not quite capture the remarkable array of papers that are to be presented. When you add a terrific luncheon keynote speaker in the person of Assistant Secretary of Labor for the Employee Benefit Security Administration, Phyllis Borzi, the cool factor (even for ERISA) is off thc charts.
Panels include papers on ERISA claim and plan issues, the Affordable Care Act and ERISA, the future of public pension plans and other non-ERISA pension plans here and abroad, bankruptcy issues surrounding pensions and other legacy costs, and emerging challenges for social insurance and pension programs.
Should be a great program!
This Article takes a different approach. It explains a regime’s preferred method of regulating contracts, especially in the employment and consumer contexts, by reference to macro features of its political economy. Both the normative question of whether a mandatory or default approach is superior, and the positive question of which approach is probable, turn on characteristics of the population set that will be subject to the rule, characteristics of market structure in that jurisdiction, and various political institutions. Unlike others commenting on the mandatory-default divide, this Article emphasizes the importance of political and economic features of the transactional environment, not the microeconomics of the transactions themselves. The four environmental factors I study here are heterogeneity, mobility, sectoral composition and institutional capacity. After exploring their effects on domestic regulatory strategy, I discuss the limitations they pose for transnational regulation. Although “private regulation” might appear a third regulatory mode suitable in the transnational context, I argue that private agreements that constrain other private agreements are not properly regarded as an alternative to either ex ante mandatory rules or ex post interpretive defaults imposed by the state.
Looks worth a read!
Wednesday, February 26, 2014
The EEOC has asked for public comments to its proposed revised management directive in federal sector proceedings. The EEOC acts as an adjudicator for federal sector claims. From the press release,
The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the Regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.
These revisions represent the first major changes to MD-110 since 1999; they can be categorized into three areas:
- Implementation of Revised Regulations:
- new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
- revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
- a new compliance section;
- updated retaliation language in the dismissal section;
- notice to complainant when an agency is untimely in completing an investigation; and
- information on digital filings of appeals and complaint files.
- Conflict of Interest:
- addressing EEO director reporting relationship;
- EEO and HR conflicts;
- complaint processing of matters involving EEO officials or high-level agency officials; and
- conflicts between agency legal and EEO programs.
- General Updates & Clarification:
- revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.
These revisions are a part of the EEOC's ongoing efforts to improve the federal sector process. The agency encourages interested parties to review these proposed changes and provide feedback for EEOC consideration. The agency specifically urges stakeholders to provide feedback on the conflict-of-interest section, as this is the EEOC's first attempt to provide clarity in this area, and stakeholder input will be valuable in determining the final approach.
Public comments on revisions to MD-110 should be provided through Regulation.gov (http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001) no later than April 25, 2014 for appropriate consideration.
Further information about EEOC is available on its website www.eeoc.gov. The EEOC's Office of Federal Operations also maintains a Twitter handle @EEOC_OFO for general news and information updates.
Tuesday, February 25, 2014
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 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.
Congratulations to Laura Cooper (Minnesota), Dennis Nolan (South Carolina, Emeritus), Stephen Befort (Minnesota), and our own Rick Bales on publication of the third edition of their casebook (from the Labor Law Group), ADR in the Workplace. From West's announcement:
West Academic has just published the Third Edition of ADR in the Workplace, a casebook that covers substantive and procedural issues of arbitration and mediation in both the union and non-union workplace. On behalf of The Labor Law Group, authors Laura J. Cooper, Dennis R. Nolan, Richard A. Bales and Stephen F. Befort, have updated the 2005 Second Edition in many respects including recent court and arbitration decisions, new scholarly analysis, and current notes and questions. Changes include new empirical and statistical information, a significant number of new labor and employment arbitration cases illustrating contemporary developments, a look at the effects of the recent upheavals in state regulation of public sector collective bargaining, and an expanded section on federal sector arbitration. Among the book’s appendices is an extensive research guide on labor arbitration and alternative dispute resolution in employment. West Academic plans to publish in Summer 2014, for professors adopting ADR in the Workplace, a book of materials and teacher’s guidance for classroom simulations of arbitration and mediation in both union and non-union settings.
Monday, February 24, 2014
Given 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
Friday, February 21, 2014
Last 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:
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
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
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)
Thursday, February 20, 2014
The Departments of Labor, Treasury, and Health and Human Services have announced the publication of final regulations implementing a 90-day limit on waiting periods for employer provided health coverage.
The final regulations require that no group health plan or group health insurance issuer impose a waiting period longer than 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals, and it doesn't affect non-time-period conditions for eligibility, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period. Requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.
The departments are issuing a companion proposed rule for comment. That rule would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment. Comments must be filed by April 25, 2014.
Both the final and proposed rule are scheduled to be published on Monday, February 24, 2014.