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.
Friday, June 2, 2017
Congratulations to Rafael Gely (Missouri-Columbia), who just received the David Petersen Award from the National Academy of Arbitrators. In addition to all his labor/employment work, Rafael directs Missouri-Columbia's Center for the Study of Dispute Resolution. He also is the founder of Workplace Prof Blog -- he created the blog and then handed it off to me way back when he was at Cincinnati. Here’s the announcement of the award, which is extremely well deserved:
The National Academy of Arbitrators conferred upon Rafael Gely the David Petersen Award at its annual meeting in Chicago, Illinois. The David Petersen Award recognizes and honors individuals who have given invaluable service to the Academy.
The Academy conferred the Petersen Award because of Professor Gely’s instrumental role in the startup and continual maintenance of arbitrationinfo.com, the neutral website which is a joint venture of the National Academy of Arbitrators and the University of Missouri School of Law. Through Professor Gely’s work as an editor of the site, he has written content on a regular basis, designed and updated the site, supervised student assistants, and crucially connected with journals both before and after articles are written. The Academy notes the creation of the website provided a source of information and education regarding arbitration for journalists, professionals, and the public. The Academy believes that the website has immeasurably improved the discourse and understanding of labor and employment arbitration in both United States and Canada.
Wednesday, May 31, 2017
This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a substantially revised treatment of discrimination law, expanded discussion of employment-based health care, and takes into account a number of recent Supreme Court decisions and the use of executive orders. It further addresses how employment law directly impacts the modern economy, discussing how this area of the law effects on-demand workers in the technology sector.
Tuesday, May 30, 2017
TaxProf Blog and Leiter Law School Reports have been covering the complaint by Columbia Law professor, George Fletcher. Very briefly, he alleges that Columbia discriminated against him based on his age by refusing to allow him to teach a required LLM course (Columbia cited poor evaluations), which among other things, might mean that he falls below the required number of teaching hours for the year. Among the other factors that threaten his teaching load is his desire to maintain his tradition of working a full semester in Israel and the fact that the elective course he was assigned to teach is at risk of being cancelled for low enrollment.
I obviously don't know what's really going on here, but I've got to say that the former Academic Affairs Dean in me sees several red flags about his teaching that makes me less inclined to be sympathetic to his claim. That's not to mention the fact that part of the problem is that he expects to be able to leave for half the year, every year.
Monday, May 29, 2017
In a somewhat overlooked portion of the recent proposed budget of the Trump administration, the President has outlined a proposal to merge the OFCCP and EEOC. As part of the merger, the budget would slash funding to the OFCCP and cut the workforce of the agency. There was immediate resistance in the civil rights community over the proposed merger, which would require Congressional approval. There is an excellent article on the implications of this proposal over at Bloomberg/BNA. From the article:
"The EEOC and the DOL’s Office of Federal Contract Compliance Programs would be combined to create 'one agency to combat employment discrimination,' according to the president’s proposed budget for fiscal year 2018. . . The agencies are expected to 'work collaboratively' to coordinate the transition by the end of fiscal 2018."
It is always difficult to gauge the likelihood of such a proposal actually going into effect, particularly where there is such strong resistance. We will continue to follow the potential impact of the proposed budget on all aspects of workplace law here.
Decades ago, the Supreme Court read Title VII's ban on employment discrimination because of “national origin” not to cover employment discrimination because of citizenship or immigration status. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). There, the Court relied on, among other things, the sparse legislative history, and that Congress had already required some federal employees to be citizens: “[W]e cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise.” Id. at 91.
In a newly-posted working paper (“Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII under Espinoza v. Farah”), Maria Ontiveros argues that Espinoza---by reading "national origin" in Title VII to only cover country-of-origin discrimination----got it wrong and should now be overruled. Here's the abstract:
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
The paper is forthcoming in the Berkeley Journal of Employment and Labor Law.
Wednesday, May 24, 2017
The 12th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held
September 15 and 16, 2017 at Texas A&M University School of Law in Fort Worth, Texas. There will also be a reception on the evening of September 14, 2017. The registration page is now online. That page also has a link about the hotel and travel information. The deadline for submissions of abstracts is August 16, 2017. Other key highlights and expectations for this year’s COSELL:
- We expect to start Friday morning and end Saturday late afternoon as opposed to Saturday early noon closings from prior years. This will provide opportunity for more papers to be presented and get feedback from many more participants. We hope that you will consider attending all day Friday and until 5 p.m. on Saturday, September 16, 2017 so that we can spread out the sessions and have less competing sessions.
- We expect to have a special program on Saturday, September 16, 2017 involving one of our sponsors, the International Society for Labour and Social Security Law.
- We expect to be able to offer publication in the Texas A&M Law Review to a couple of papers presented at COSELL if those papers can be submitted in final format by Friday, September 29, 2017 and subject to approval by the Texas A&M Law Review Board for its Winter 2017 Volume.
- We expect that the Employee Rights and Employment Policy Law Journal may be able to accept some papers presented at COSELL as well and you should explore the parameters with Professor Marty Malin at Chicago Kent Law School as that journal will be holding an Editorial Board meeting during COSELL.
- Presentation of the Paul Steven Miller Memorial Award (senior faculty) and Michael J. Zimmer Memorial Award (junior faculty).
If you have any questions about the 12th Annual COSELL to be held at Texas A&M University School of Law in Fort, Worth Texas on September 15‐16, 2017, please do not hesitate to contact Professor Michael Z. Green.
The call for papers for the annual Centre for Human Rights disability rights conference to be held 7-8 November 2017 at the University of Pretoria is now out on the Centres' website. The theme for the conference this year is Domesticating the CRPD in the African region: A focus on access to justice and legal capacity. Important dates:
- Deadline (Abstracts): 16 June 2017.
- Authors will be notified by: 26 June 2017 whether their abstract has been accepted.
- Deadline (Papers): 8 September 2017.
- Authors whose abstracts are accepted will be required to submit their full papers by 8 September 2017.
- Applicants will be notified by 30 September 2017 whether their application for funding has been accepted.
- Date of Conference: 7-8 November 2017.
Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.