Wednesday, February 19, 2014

Teaching Conference: Assessment Across the Curriculum

IltlThe Institute for Law Teaching and Learning is holding a conference on Saturday April 5 at the William H. Bowen School of Law, University of Arkansas at Little Rock. The conference, Assessment Across the Curriculum, looks great. Here is the outline of the program:

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place onSaturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

Conference Content:  Sessions will address topics such as

·         Formative Assessment in Large Classes
·         Classroom Assessment Techniques
·         Using Rubrics for Formative and Summative Assessment
·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork
·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  Theconference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  Theconference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.”

MM

February 19, 2014 in Teaching | Permalink | Comments (0) | TrackBack (0)

Faculty Strike at UIC

StrikeFaculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.

The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.

These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there? 

MM

February 19, 2014 in Labor and Employment News, Labor Law, Public Employment Law, Union News | Permalink | Comments (0) | TrackBack (0)

Déjà vu

New ImageA few weeks ago, I was passing the newspaper rack in the law library (yes, we still have newspapers), and had a deja vu moment when I saw the headline in the New Jersey Law Journal:

NJ Legislature Clears Ban on Discrimination Over Pregnancy

Shades of 1978.  Of course, the NJLJ was reporting a new statute that not only bars sex discrimination on account of pregnancy (which has long been held illegal under NJ's Law Against Discrimination under the heading of discrimination on account of sex) but also imposing for the first time a duty of reasonable accommodation for pregnancy. So it was, after all, headline-worthy in 2014.

The federal Pregnancy Discrimination Act, which amende onlyd Title VII in 1978 to equate pregnancy discrimination  with sex discrimination, has long been held to bar disparate treatment of pregnant women only  when they are like other employees in "their ability or inability to work" (and, as Deborah Widiss recently reiterated, even that equal treatment command  has been applied grudgingly). The New Jersey Supreme Court interpreted LAD similarly: no discrimination, but no need to accommodate.

The new statute, however, requires "reasonable accommodation" in the workplace, "such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, or modified work schedules or transfers to less strenuous or hazardous work." The accommodation must be "needs related to pregnancy" and "based on the advice of {the employee's] physician."  

Needless to say, there is also an undue hardship exception, with the employer explictly assigned the burden of showing such a hardship. The statute lists a number of factors relevant to that determination, and, while it does not weight them, does include "the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement."

What "reasonable accommodation" conspicuously does not require in the new statute is any leave of absence, and the amendment explicitly states that it does not affect rights to paid or unpaid leave.  Leave, therefore, remains controlled by the FMLA and NJ's FLA.

Despite that provision, many employers might well prefer to offer unpaid leave to workers (who were financially able to take it) rather than engage in the kind of accommodations the statute anticipates. But, of course, since the new law explicitly bars discrimination on account of pregnancy, such leave cannot be forced on employees who would prefer, and "need," one of the other kinds of accommodations.

How this will actually play out in the workplace remains to be seen, but it certainly changes the default position radically in the Garden State.  Probably the biggest problem for employees seeking accommodation is the extent to which their bosses can credibly claim that a given accommodation would, in essence, waive "an essential requirement of a job," presumably more likely for small employers than for larger ones who can more easily shift assignments to cover particular functions.

CAS 

 

February 19, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

VW Chattanooga Employees Vote Against UAW Works Council

VW  UAWThe votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%).   As has been frequently noted in the news, this could have been a ground-breaking vote in many ways.  One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry.  Moreover, the labor-management relationship was to model itself on a German-style works council.

Although important, I found the "foothold" point to be the less important one.  In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal).  Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.

More interesting was that the proposed relationship between VW and the UAW looked extremely promising.  Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed.  But it was not to be.

-JH

February 14, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Dimick and Rao on Wage-Setting Institutions

Dimick RaoMatthew Dimick (Buffalo-Law) and Neel Rao (Buffalo-Economics) have just posted on SSRN their paper, Wage-Setting Institutions and Corporate Governance, which examines  how wage-setting institutions influence the concentration of ownership and investor=protector legislation.  The abstract:

Why do corporate governance law and practice differ across countries? This paper explains how wage-setting institutions influence ownership structures and investor protection laws. In particular, we identify a nonmonotonic relationship between the level of centralization in wage-bargaining institutions and the level of ownership concentration and investor protection laws. As wage setting becomes more centralized, ownership concentration within firms at first becomes more, and then less, concentrated. In addition, the socially optimal level of investor protection laws is decreasing in ownership concentration. Thus, as wage-setting institutions become more centralized, investor protection laws become less and then more protective. This explanation is consistent with the observable pattern of wage-setting structures, ownership concentration, and investor protection legislation across developed countries. While agreeing with recent research that highlights labor as an important corporate stakeholder in shaping corporate governance, a focus on bargaining structures can resolve an important puzzle this research confronts, namely, why Scandinavian countries with higher than average labor strength also have higher than average investor protection legislation.

 

Looks really interesting, so check it out!

-JH

February 14, 2014 in Labor and Employment News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Causation, Again

New ImageThere's an interesting post from the Whistleblower Law Blog, Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?, the theme of which is that the but-for causation standard that emerged in Gross and Nassar is likely to spread across all federal statutes that do not explicitly adopt a lower standard.

I think that's correct. Although Burrage, a unanimous decision,  can be distinguished as involving a criminal statute and thus subject to the rule of lenity, the pattern across recent cases is pretty clear.  

However, there are a number of employment-related statutes that explicitly employ language suggesting lesser causation -- Title VII status discrimination cases and USERRA (for "motivating factor") and a whole raft of newer federal whistleblower laws, starting with SOX, that not only use "contributing factor" but also require proof of the "same decision anyway" by the employer to be by "clear and convincing evidence."

And then there are the older Supreme Court cases that, in the §1983 context (Mt. Healthy for First Amendment and Texas v. LeSage for the Equal Protection Clause) or under the NLRA (Transportation Management) that adopt a lower causation/burden shifting approach.  The lower courts aren't supposed to "predict" what the Supreme Court would do when there's a precedent on point, even if later precedents seem to undermine it, which suggests that that authority should remain good law unless and until the Supreme Court gets around to overruling it. (The Court did advert to those cases in a footnote in Gross, but did so in atempting to distinguish them rather than cast doubt on their authority, which would seem to reinforce the need for lower courts to follow them until instructed otherwise).

And, then, of course, there are statutes, such as §1981, which don't use causation language to begin with.

It's not that I doubt where the current majority wants to go; I'm just pointing out that the path is more rocky than it might seem at first.

CAS 

 

 

February 14, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, February 13, 2014

Duff on ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain

DuffMichael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.

Here is the abstract:

Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy.  Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose.  Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker.  This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.

Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.

The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.

The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.

This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.

Check it out!

PS

February 13, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Race, Labor, & the Law at UCLA

Graphic_000Friend of the blog Wendy Greene (Cumberland, Samford U) writes to tell us of an upcoming conference at UCLA that might interest our readers. The topic is Race, Labor, and the Law, the sponsor is the UCLA Institute for Research on Labor and Employment, and the program looks great:

Friday, February 28, 2014

8:00 AM - 8:10 AM

Welcome

  • Chris Tilly, Ph.D. | Director, UCLA Institute for Research on Labor and Employment; Professor of Urban Planning, UC Los Angeles

8:10 AM - 8:55 AM

Opening Keynote

  • Ruben J. Garcia, J.D., LL.M. | Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
    • "The Relationship Between Racism and Anti-Union Animus"

9:00 AM - 10:30 AM

Transformation of the Labor Movement

  • Héctor Cordero-Guzmán, Ph.D. | Professor of Sociology and Urban Education, School of Public Affairs, Baruch College, City University New York
    • "Worker Center, Worker Center Networks, and the Promise of Protections for Low Wage Workers under the FLSA"
  • Victor Narro, J.D. | Project Director, Center for Labor Research and Education, Institute for Research on Labor and Employment, UC Los Angeles
  • Saru Jayaraman, M.P.P., J.D. | Director, Food Labor Research Center, University of California, Berkeley; Co-Founder & Co-Director, Restaurant Opportunities Center United
    • "Racial Segregation in the Restaurant Industry: Challenges & Opportunities"

10:35 AM - 12:05 PM

Concurrent Panels

Panel A: The Politics of Prison and Labor: How Incarceration Affects Reentry, Employment Opportunities, and the Labor Movement as a Whole

  • Kelly Lytle Hernandez, Ph.D. | Associate Professor of History, UC Los Angeles; Director, UCLA Department of History's Public History Initiative
  • Marta Lopez Garza, Ph.D. | Professor of Gender and Women's Studies and Chicana/o Studies, California State University, Northridge
    • "When Will the Punishment End?"
  • Heather Ann Thompson, Ph.D | Associate Professor of History and African American Studies, Temple University
    • "Making Mass Incarceration Matter to the American Labor Movement"

Panel B: Bringing Workers Into Focus: Worker Cooperatives, Black-Latino Relations in the Workplace, and Racial Alliance Building in the Labor Movement

  • Jassmin Poyaoan | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Vanessa Ribas, Ph.D. | Assistant Professor of Sociology, UC San Diego
    • "The Value of Being Negro, the Cost of being Hispano: 'Disposability' and Challenges for Cross-Racial Solidarity in the Workplace"
  • Alexandra Suh, Ph.D. | Executive Director, Koreatown Immigrant Workers Alliance (KIWA)

12:05 PM - 1:05 PM   Lunch

1:05 PM - 2:35 PM     Concurrent Panels

Panel A: Intimate Labor

  • Mireille Miller Young, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
    • "Illicit Eroticism: The Politics of Intimate Labor in Black Women's Porn Work"
  • Grace Chang, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
  • Elena Shih | Ph.D. Candidate in Sociology, UC Los Angeles
    • "Rehabilitating Intimate Labor: Transnational Racial Formations of 'Good Work' in Human Trafficking Rescue"

Panel B: Labor Law Through a Critical Race Theory Lens

  • Maureen Carroll, J.D. | Greenberg Law Review Fellow, UCLA School of Law, UC Los Angeles
    • "Privilege and Invisibility in Labor Practice"
  • Nayla Wren | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Sanjukta Paul, M.A., J.D. | Attorney & Clinical Teaching Fellow, UCLA School of Law, UC Los Angeles
    • "Normative Obstacles to Empowerment Lawyering in the Workers Rights Context"

2:40 PM - 4:40 PM     Concurrent Panels

Panel A: Intersectional Analysis of Women in Low Wage Labor, Organizing, and Combating Workplace Discrimination

  • Sarah Haley, Ph.D. | Assistant Professor of Gender Studies, UC Los Angeles
  • Eileen Boris, Ph.D. | Hull Professor and Chair, Department of Feminist Studies, UC Santa Barbara
    • "(In)Visibility and the Color of Home Care: Law, Recognition, Justice"
  • D. Wendy Greene, J.D., LL.M. | Professor of Law, Cumberland School of Law, Samford University
  • Ellen Reese, Ph.D. | Professor of Sociology and Chair of Labor Studies, UC Riverside
    • "Intersecting Inequalities Among Latina/o Warehouse Workers in Inland Southern California: Challenges and Prospects for Justice"

 

Panel B: Safe Jobs, Healthy Jobs, Good Jobs

  • Anne E. Fehrenbacher MPH | Ph.D Student in Community Health Sciences, UC Los Angeles
    • "Job Insecurity and Quality of Life: Testing a Causal Model of Job Stress Proliferation Moderated by Race, Gender, and Education"
  • Kevin Riley, MPH, Ph.D | Director of Research and Evaluation, UCLA Labor Occupational Safety & Health (LOSH), Institute for Research on Labor and Employment, UC Los Angeles

4:45 PM - 5:45 PM     Wine and Cheese Reception

Saturday, March 1, 2014

9:20 AM - 9:25 AM

Welcome

  • Pamela A. Izvănariu, J.D., LL.M. | Director of Research & Development, UCLA Institute for Research on Labor and Employment, UC Los Angeles

9:25 AM - 11:15 AM

Labor and Employment Issues Facing Indigenous Peoples in the U.S.

  • Matthew L.M. Fletcher, J.D. | Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University
    • "On Treaties and Internal Tribal Sovereignty"
  • James Kawahara, J.D. | Adjunct Professor in Practice, UCLA School of Law, UC Los Angeles; Attorney, Kawahara Law P.C.
    • "Judicial Application of Federal Labor and Employment Laws to Indian Tribes When Congress is Silent: What Fills the Vacuum?"
  • Lynn Stephen, Ph.D. | Professor of Anthropology and Director of the Center for Latino/a and Latin American Studies, University of Oregon
    • "Indigenous Mexican Workers in the U.S.: Labor Conditions, Health, and Identity"
  • David Kamper, Ph.D. | Associate Professor and Chair of American Indian Studies, San Diego State University
    • "The Work around Tribal Sovereignty: Negotiating Notions of Labor, Jobs, & Class in Tribal Governmental Gaming and Economic Development"

11:20 AM - 1:10 PM

Race, Labor, and Immigration

  • Hiroshi Motomura, J.D. | Professor of Law, UCLA School of Law, UC Los Angeles
    • "Race, Labor, and the Making of Immigration Outside the Law"
  • Sameer Ashar, J.D. | Clinical Professor of Law, Irvine School of Law, UC Irvine
    • "Immigration Enforcement, Race, and Resistance"
  • Shannon Gleeson, Ph.D. | Associate Professor of Latin American and Latino Studies, UC Santa Cruz
    • "Precarious Labor, Tenuous Rights: Lay v. Legal Conceptions of Justice at the Workplace"
  • David Cook-Martin, Ph.D. | Associate Professor of Sociology, Grinnell College
    • "A House Divided: Labor and its Contrasting Roles in Shaping Ethnically Selective Immigration Law in the Americas"

1:10 PM - 2:10 PM     Lunch

2:10 PM - 4:00 PM     Worker Voice, Labor Speech

  • Leticia M. Saucedo, J.D. | Professor of Law, UC Davis
  • Camille Gear Rich, J.D. | Associate Professor of Law, Gould School of Law, University of Southern California
    • "Post-Racial Hydraulics: The Role of the Fair Labor Standards Act in the Repackaging of Race and Gender Discrimination Claims"
  • Nicholas Espiritu, J.D. | Staff Attorney, National Immigration Law Center
  • Catherine Fisk, J.D. | Chancellor's Professor of Law, Irvine School of Law, UC Irvine
    • "Worker Voice and Labor Speech After Harris v. Quinn and Citizens United: Why Unions Should Have the Same Free Speech Rights as Corporations and Why the Supreme Court Thinks They Do Not"

4:00 PM - 4:45 PM

Closing Keynote

  • Ian F. Haney-López, J.D., M.P.A. | John H. Boalt Professor of Law, UC Berkeley
    • "Dog Whistle Politics/Dog Whistle Racism"

If you will be in the area, it seems like a great opportunity to hear from a broad mix of subject areas, disciplines, topics, academics, and people in the field. For more information and to register, see here.

MM

February 11, 2014 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

NLRB Invitation for Briefs

NLRBIn another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities.  All of these are perennial issues that have been hard fought over the years.  The announcements (links above) contain more info on filing briefs.

The announcement for the deferral issues states, in part:

The National Labor Relations Board (NLRB) invites interested parties to file briefs . . .  to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.

Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act.  Spielberg Mfg. Co., 112 NLRB 1080 (1955).  Further, the arbitral forum must have considered the unfair labor practice issue.  The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue.  Olin Corp., 268 NLRB 573 (1984).  The burden of proof rests with the party opposing deferral.

The NLRB General Counsel has asked the Board to adopt a different standard.  Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act. 

The announcement for the regious university jurisdiction and faculty status states, in part:

The National Labor Relations Board is inviting briefs from interested parties on two questions:  whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.

The case is Pacific Lutheran University (19-RC-102521).  . . .  In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case.  The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980). 

It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.

-JH

 

February 10, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Harthill Leaves Florida Coastal for U.S. Department of Labor

HarthillSusan Harthill sends word that she left her faculty position at Florida Coastal Law School in Jacksonville this past December in order to start a new job today as Deputy Solicitor of Labor for National Operations in Washington D.C.
 
Among her other responsbilities, Susan's position oversees the Division of Plan Benefits Security, so I hope to see her in Washington in my role as a member of the ERISA Advisory Council in the coming years.

Good luck, Susan, on your exciting new job!

PS

February 10, 2014 in Faculty Moves, Faculty News | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

E-Journal of International and Comparative Labour Studies Vol 3, Issue 1, January 2014

Adapt

Thanks to Pietro Manzella of ADAPT for bringing to my attention the publication of the latest issue of the E-Journal of International and Comparative Labour Studies (Vol 3, Issue 1, January 2014).  You can find the full contents here.

PS

February 6, 2014 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 5, 2014

Brown and Schneider's Report on ABA Dispute Resolution Section Survey on Gender Differences

GavelMy colleague Andrea Schneider (Marquette) and her co-author, Gina Brown, have posted on SSRN their new report: Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey (Andrea also posted on this report at Indisputably.org here).

Here is the abstract:

This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.

This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.

Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.

This report's connection to labor and employment law is fairly straightforward: more and more workplace disputes are being decided through arbitration and mediation. Consequently, the importance of arbitrators and mediators themselves being reflective of the populations they serve cannot be understated.  This report and its recommendations takes an important first step in ensuring more gender diversity among arbitrators and mediators deciding workplace and other types of disputes.

PS

February 5, 2014 in Arbitration | Permalink | Comments (0) | TrackBack (0)

NLRB Proposed New/Old Election Rules

NLRBThe NLRB has just announced that it is proposing new election rules.  To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011.  We described those proposals here, which were ultimately watered down when the Boar finalized its election rules.  Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules.  As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing.  For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.

From the NLRB's  announcement:

The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures.  In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow.  The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act.  Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay.  Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer.  Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .

 “I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said.  He stressed that the Board is reviewing the proposed changes with an open mind:  “No final decisions have been made.  We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered.  Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”

“Unnecessary delay and inefficiencies hurt both employees and employers.  These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said.  “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”

The reforms the Board will propose would:

    • allow for electronic filing and transmission of election petitions and other documents;
    • ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
    • streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
    • include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
    • consolidate all election-related appeals to the Board into a single post-election appeals process.

Stay tuned.

-JH

February 5, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

ADAPT Twitter-Based Version of ADAPT International Bulletin

AdaptThanks to our friends at ADAPT, Chris Leggett and Michele Tiraboschi, for bringing to our attention the Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published during the last two weeks. Here is what Chris and Michele write:

The bulletin includes two comments: “The Emotional Timeline of Unemployment: Anticipation, Reaction, and Adaptation”, by Christian von Scheve, Frederike Esche and Jürgen Schupp (German Institute for Economic Research - DIW, Berlin) and The Horizon 2020 Strategy for SMEs”, by Meysam Salimi (International Doctoral School in Human Capital Formation and Labour Relations, University of Bergamo).

 

This issue also conveys some of the latest ADAPT publications, among which is the last ADAPT University Press, ADAPT- Labour Studies e-Book Series n. 19, "Violencia, riesgos psicosociales y salud en el trabajo. Estudios desde el derecho internacional y comparado" edited by Lourdes Mella Méndez (Professor of labour law at the University of Santiago de Compostela).

For further information, you can make contact with the ADAPT staff at news@adaptinternational.it.

PS

January 29, 2014 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Northwestern Football Players File Representation Petition with the NLRB

Ncaa-football-logo-562x383ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others. 

MM

January 28, 2014 in Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Guest Workplace Prof Blog Post: Feldblum on Mach Mining

FeldblumWe are privileged to present as a guest blogger today, Chai R. Feldblum.  Chai is a Commissioner on the federal Equal Employment Opportunity Commission (EEOC), but is writing here on a recent 7th Circuit decision for herself only.  Her post is entitled: On Mach Mining.

Much attention has been paid to the Seventh Circuit’s opinion in EEOC v. Mach Mining.  That is how it should be.  Judge David Hamilton’s opinion for the panel is brilliant, concise, and correct.  The women at the center of the lawsuit who were seeking jobs in the mining industry will now finally have their day in court.

Instead of following precedents of other courts of appeal that have decided or presumed that courts can review the sufficiency of EEOC’s conciliation process, Judge Hamilton went back to first principles of statutory construction.  As his opinion noted:

The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle.  An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process as "evidence in a subsequent proceeding." 42 U.S.C. § 2000e-5(b).  We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.

While much attention has been paid to the fact that the Seventh Circuit broke from the pack in deciding the legal issue before it, less attention has been paid to the weight the Seventh Circuit placed on the internal "meaningful scrutiny" and oversight that the Commission applies to its conciliation process.  As Judge Hamilton explained:

[T]he commissioners who head the agency are appointed by the President with the advice and consent of the Senate.  In short, even without the judiciary trying to monitor the EEOC’s efforts at conciliation, those efforts are subject to meaningful scrutiny.

As a former professor of statutory interpretation, I give the Mach Mining decision an A for careful and thoughtful statutory analysis.  On a more practical level, as a sitting Commissioner of the EEOC, I welcome the court’s emphasis on the meaningful oversight Commissioners provide with regard to our staff’s conciliation efforts.  That is something I have been a strong supporter of since I joined the Commission.

My commitment to those efforts comes directly from the language of Title VII:

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b).

The five of us who make up the Commission obviously cannot investigate, find cause and conciliate on the thousands of charges we receive each year.  Thus, in its regulations, the Commission has delegated authority to its field staff to investigate charges, issue findings of cause, and engage in the conciliation process, 29 CFR §§1601.15(a), .21(d), .24(b).  

This is how it should be.  Delegation is good governance.  But the Commission is ultimately responsible for all actions taken in its name.  Thus, our delegation to our field staff is, and must be, accompanied by reporting and accountability back to the Commission. Our Strategic Plan for 2012-2016 and our Strategic Enforcement Plan of 2013-2016 include components that enhance such accountability.

Judge Hamilton was correct that the language of Title VII, which provides no standard for the conciliation process, is not susceptible of judicial review of “whether the EEOC tried hard enough to settle.”  Rather, the statutory language provides significant deference to the agency in carrying out its obligation to “endeavor to eliminate” alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.”  That deference presumes and is reinforced by active Commission oversight to ensure that the letter and the spirit of the statutory language continue to be carried out.

[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney.  The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]

PS

January 28, 2014 in Commentary, Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Joshi on The Trouble with Inclusion

YuvrajjoshiYuvraj Joshi has brought to my attention his article recently published in the Virginia Journal of Social Policy and the Law (Vol. 21, No. 2, 2014) entitled: The Trouble with Inclusion.

Here is the abstract:

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN.  Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.

Have not had the chance to read this piece, but it appears to challenge many conventional assumptions about inclusion in the workplace and other settings and should be a thought-provoking read.

PS

January 28, 2014 in Employment Discrimination, Scholarship | Permalink | Comments (1) | TrackBack (0)

Corbin with Two Pieces on Corporate Religious Liberty

CorbinCaroline Mala Corbin (University of Miami School of Law) has recently posted two papers on SSRN discussing her thoughts on corporate religious liberties.  The first apears in the American Constitution Society Issue Brieff for January 2014 and is entitled: Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions.

Here is the abstract:

One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”

This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.

The second (longer) piece is entitled: Corporate Religious Liberty.

Here is the abstract:    

Do for-profit corporations have a right to religious liberty? This question is front and center in two cases before the Supreme Court challenging the Affordable Care Act’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression. Most scholars writing on this issue argue that for-profit corporations do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.

This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.

Two very interesting reads on a hot current legal topic that could have a large impact on the workplace. Check them out!

PS

January 28, 2014 in Religion, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, January 27, 2014

Supreme Court Decides Sandifer Donning and Doffing Protective Clothes Case in U.S. Steel's Favor

4United States Supreme Court 112904The United States Supreme Court decided today, in an almost unanimous opinion written by Justice Scalia (Justice Sotomayor didn't join one footnote), a donning and doffing case under the Fair Labor Standards Act in Sandifer v. United States Steel Corporation.

According to the syllabus of the case, Sandifer and others filed a putative collective action under the FLSA, seeking backpay for time spent donning and doffing pieces of protective gear that they asserted U.S. Steel requires workers to wear because of hazards at its steel plants. U. S. Steel contends that this donning-and-doffing time, which would otherwise be compensable under the Act, is noncompensable under a provision in the collective-bargaining agreement.

That provision’s validity depends on 29 U. S. C. §203(o), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be compensated.  The District Court granted U. S. Steel summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under §203(o). The Seventh Circuit affirmed.

The Supreme Court held that the the time the workers spent donning and doffing their protective gear was not compensable by operation of §203(o).  More specifically, the Court construed "clothes" in "changing of clothes" to mean items that are both designed and used to cover the body and are commonly regarded as articles of dress. Nothing in §203(o)’s text or context, according to the Court, suggests anything other than this ordinary meaning. Thus, it concluded that there was no basis for the employees' assertion that the unmodified term “clothes” somehow omits protective clothing.

Going forward, the Court stated that a more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.”  If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were also donned and doffed.  So going forward, a distinction, for compensation purposes, will be made between between donning and doffing involving primarily protecive equipment (compensation ) as opposed to primarily protective clothing (not compensable if designated as such under the applicable CBA).

Don't you just love donning and doffing cases? :D

PS

January 27, 2014 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Journal of Collective Bargaining in the Academy

CBABill Herbert sends word of the e-publication of Volume V of the Journal of Collective Bargaining in the Academy (JCBA).  JCBA publishes on collective bargaining (in its broadest sense) in a university setting in three distinctive genres: scholarly articles, opinion pieces, and “notes from the field” practitioner pieces to share the practical workings of collective bargaining. JCBA is an open access, peer-review online publication of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. JCBA welcomes submission of scholarly articles for future volumes from a wide community of university and college faculty, graduate students, post-doctoral scholars, administrators, union leaders and representatives and other others with an interest in collective bargaining and representation issues in the academy.

Editorials

  • “Positive Collaboration: Beyond Labor Conflict and Labor Peace,” by former National Center for Collective Bargaining in Higher Education and the Professions Executive Director Richard Boris.
  • “Shelter from the Storm: Rekindling Research on Collective Bargaining and Representation Issues,” by current National Center Executive Director William Herbert.

Articles

  • “Organizational Culture, Knowledge Structures, and Relational Messages in Organizational Negotiation: A Systems Approach,” by Vincent P. Cavataio and Robert S. Hinck.
  • An analysis of messages from both sides in the most recent negotiations at Central Michigan University.
  • “Collective Begging at Its Best: Labor-Management Relations in South Dakota,” by Gary Aguiar.
  • An article from the union perspective on the gains in the last round of negotiations in the South Dakota system.

Practitioner Notes

  • "Bargaining Market Equity Adjustments by Rank and Discipline,” by Jonathan P. Blitz and Jeffrey F. Cross.
  • "Negotiating For Curriculum & Class Size, 2011-13: One Faculty Union’s Perspective,” by Amy Rosenberger and Steve Hicks.

rb

January 27, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)