Thursday, November 2, 2017

FMCS/LERA Call for Papers & Panels on "Shaping the Future of Work"


Arthur Pearlstein (FMCS) sends word that FMCS is ...

participating in the production and program of the Labor and Employment Relations Association (LERA) 70th Annual Meeting, June 14-17, 2018, in Baltimore, MD at the Hilton Baltimore, with the theme “Shaping the Future of Work: Challenges, Opportunities and New Models.” Conference organizers and the program committee have issued a call for proposals for papers, symposia, panels, workshops, posters, skill-building debates, roundtable discussions, and other formats for the conference program. The deadline for conference proposals is fast approaching. It is Nov. 15, 2017.

According to organizers, the conference will feature more than 80 workshops, sessions, and events where more than 250 speakers will present. The conference is intended to provide practical workshops, debates on the latest research in labor and employment relations. Attendees will hear from experts on how their companies, organizations, and unions have successfully navigated workplace issues critical to their success.


November 2, 2017 in Conferences & Colloquia, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

BJELL Call for Papers on ADEA

AdeaMelissa Hart (Colorado) sends word that the Berkeley Journal of Employment and Labor Law is calling for law review articles for a special symposium issue commemorating the 50th anniversary of the ADEA. The Symposium, titled "The Age Discrimination in Employment Act at 50: Silver Anniversary of Midlife Crisis?", will take place November 17th, 2017.

First drafts of papers should be submitted by March 15th, 2018. Once accepted, authors will have until August 10th, 2018 to submit a final draft. The Journal's editorial staff will then work with authors to edit the article throughout late summer and fall. BJELL's selection team will use the following criteria to select papers:

  • Relevance to the ADEA or age discrimination generally
  • Originality/novelty of claims, analysis, or argument
  • Quality of analysis and thought
  • Potential to be useful to practitioners, the development of academic dialogue, and/or policy advocacy
  • Degree of completeness (papers should be roughly 10,000-20,000 words with strong footnote source support)

Authors can submit their papers here with a subject line of "[Author Name] Age Discrimination Submission." Authors may also submit questions here.


November 2, 2017 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Wednesday, November 1, 2017

Harpur on Discrimination, Copyright, & Equality

CrCongratulations to Paul Harpur (U. Queensland/Beirne Law) on the publication earlier this year by Cambridge University Press of his book Discrimination, Copyright & Inequality. The book analyses the interaction between anti-discrimination and copyright laws, in the international human rights and copyright jurisdictions, as well as in the national jurisdictions in Australia, Canada, the UK and USA. This work builds on international and domestic notions of digital equality and rights to access information. The core thesis of this monograph is that technology now creates the possibility that everyone in the world, regardless of their abilities or disabilities, should be able to access the written word.

Here's the publisher's description:

While equality laws operate to enable access to information, these laws have limited power over the overriding impact of market forces and copyright laws that focus on restricting access to information. Technology now creates opportunities for everyone in the world, regardless of their abilities or disabilities, to be able to access the written word – yet the print disabled are denied reading equality, and have their access to information limited by laws protecting the mainstream use and consumption of information. The Convention on the Rights of Persons with Disabilities and the World Intellectual Property Organization's Marrakesh Treaty have swept in a new legal paradigm. This book contributes to disability rights scholarship, and builds on ideas of digital equality and rights to access in its analysis of domestic disability anti-discrimination, civil rights, human rights, constitutional rights, copyright and other equality measures that promote and hinder reading equality.

Congrats, Paul!

November 1, 2017 in Books, Disability | Permalink | Comments (0)

Tuesday, October 24, 2017

Morantz on What Unions Do for Regulation

What do unions do for regulation? That's the subject of Alison Morantz's recent and timely review of the research literature: "What Unions Do for Regulation," Annual Review of Law and Social Science 13 (2017): 515-534. Here's the abstract:

The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.


Morantz's main conclusion: There's a lot of support in the research literature for thinking that, "in most contexts, unions' tendency to strengthen workers' collective voice and mitigate market imperfections predominates their tendency to exert monopoly power and engage in economic rent-seeking." The best evidence of this comes from studies of how unionization strongly correlates with lower rates of serious and fatal workplace injuries. Some prior research also shows that unions tend to lower overall wage dispersion, which may indirectly reduce pay discrimination against women and racial minorities.


--Sachin Pandya

October 24, 2017 in Labor Law, Union News, Workplace Safety | Permalink | Comments (0)

Thomas & Lopez in San Francisco Chronicle: Harassment Exists Because Judges Dismiss Legit Cases

  Thomas_sujaCLopezongratulations and kudos to Suja Thomas (Illinois) and David Lopez (EEOC General Counsel) on their article published yesterday in the San Francisco Chronicle on the persistence of sexual harassment in the workplace. Here's an excerpt; the full article is at Why Judges Routinely Dismiss Sexual Harassment Cases:

The scandals involving Harvey Weinstein, Silicon Valley and Fox News have shone a spotlight on corporate tolerance of sexual harassment by executives. The U.S. Supreme Court recognized people could sue for such harassment more than 30 years ago. But at least 25 percent of women say that they are still harassed in the workplace. So, why does sexual harassment persist? A surprising part of the story lies with federal judges. Despite coverage under the law, when an employee alleges sexual harassment, a judge will likely dismiss the case.

Let’s look at the facts of some dismissed cases: co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands.

In deciding whether to dismiss a case, a judge examines the paper records of the evidence — a written account of what the witnesses will say and relevant documents. Using this information, if the judge thinks a reasonable jury could not find for the employee, then the case is dismissed. When employers request dismissal of discrimination claims, including harassment claims, more than 70 percent are dismissed in whole or in part, according to a 2007 federal study.

This high dismissal rate should give us pause to consider whether judges are making the right decisions. Judges are not supposed to dismiss cases based on their own opinions of the evidence. But, their own opinions are all they have, and a judge’s opinion may differ from a jury’s.


October 24, 2017 in Employment Discrimination | Permalink | Comments (2)

Sunday, October 22, 2017

Kotkin in Washington Post: Confidential Settlements Protect Sexual Harassers

Kotkin_minnaCongratulations to Minna Kotkin (Brooklyn) on her fine article in today's Washington Post on how confidentiality clauses in settlement agreements undermine the enforcement of Title VII's prohibition of sexual harassment. Here's an excerpt:

A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium. Recent revelations about Bill O’Reilly, Roger Ailes and Harvey Weinstein show that they confidentially settled harassment claims in the millions of dollars over decades, using legal maneuvers to keep their conduct under the radar. How common is this?

Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.

A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.

For the entire article, see How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.


October 22, 2017 in Employment Discrimination | Permalink | Comments (0)

Wednesday, October 18, 2017

Legal Protection for NFL Protests? Not So Fast . . . .

Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark. 

The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.

First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.

Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.

Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.

-Jeff Hirsch

October 18, 2017 in Labor and Employment News | Permalink | Comments (10)

Monday, October 16, 2017

Solicitor General's View on USERRA Abrogation

Supreme Court

As I mentioned recently, the Supreme Court had requested the Solicitor General's view on whether the abrogation of state sovereign immunity under USERRA was valid. The SG's office just submitted its brief, recommending the denial of cert. There are reasonable grounds to argue against cert., most notably the lack of a circuit split, but the SG's brief was, to put in bluntly, lazy. It didn't make any meaningful attempt to address the constitutional or historical reasons why abrogation under the war power should be treated especially carefully; indeed, it went so far as to suggest that the war powers are equivalent to other Article I powers when it come to the balance of federal and state power, which I find disturbing ("But the central problem with petitioner’s argument [that Congress' war powers is exclusive and important] is that all Article I powers could be described as exclusive and important to at least some degree.").

Again, if you're curious about this issue, I've got an older article that delves into it the question in detail. Needless to say, I conclude that the war powers is very much not like other Article I powers when it comes to federal authority supplanting state authority. 

-Jeff Hirsch

October 16, 2017 in Labor and Employment News | Permalink | Comments (1)

Saturday, October 14, 2017

NFL in the News

NflThe NFL is once again providing great fodder for labor/employment exam questions.

Over at Indisputably, Sarah Cole has a great post about the Fifth Circuit's rejection of a preliminary injunction by the NFL Players' association that would have prevented the suspension of Cowboy running back Zeke Elliott. As Sarah points out, the arbitration clause that the NFL and the Players' Association agreed to is bizarre, but the Players' Association must follow the procedure it agreed to before challenging the outcome in court.

In other news, an unfair labor practice charge has been filed against the Cowboys (and owner Jerry Jones) for threatening to bench players who kneel during the national anthem to protest race discrimination and violence. As Ben Sachs points out over at onlabor, this is a possible ULP for interfering with the players' protected concerted activity under the NLRA. In a separate onlabor post, Noah Zatz makes a convincing case that any benching would violate the opposition clause of Title VII's anti-retaliation provision.



October 14, 2017 in Arbitration, Employment Discrimination, Labor Law | Permalink | Comments (1)

Wednesday, October 11, 2017

New EEOC Training Announced


The U.S. Equal Employment Opportunity Commission just announced new training seminars that it will be conducting.  The training, conducted by EEOC staff, focuses on exemplifying respect and inclusiveness in the workplace.  From the EEOC:

"The U.S. Equal Employment Opportunity Commission (EEOC) announced ... that it will launch two new trainings for employers: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees). Instead of traditional compliance training that solely focuses on legal definitions and standards for liability, the new program provides an exciting training alternative for harassment prevention. . .

The training program focuses on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace. The program is customizable for different types of workplaces and includes a section for reviewing employers' own harassment prevention policies and procedures."

These new training programs provide a great new resource for employers.  As we see in the prior post below, allegations of disrespect, abuse, and harassment still occur in the workplace.  Training can help educate and prevent this type of behavior.  More information on the EEOC's program is available here.

- Joe Seiner

October 11, 2017 | Permalink | Comments (0)

Tuesday, October 10, 2017

Weinstein, Harassment & Reporting in Hollywood

  • Hollywood

As we are all aware by now, there have been numerous allegations of sexual harassment and assault against the well-known Hollywood producer Harvey Weinstein.  The allegations go back many years and are made by many well-known members of the acting community.  The story is an important reminder that while harassment is often subtle, it can be (and still often is) quite overt and frequently crosses the line into assault.

There are many issues in this story which involve various aspects of harassment law, and this news story is certainly one that could be discussed for several different purposes in both your employment law and employment discrimination courses.  Feel free to share your thoughts on the case in the comments below.  One interesting aspect of the issue to me involves the relative silence of male members of the Hollywood community, and the lack of males generally to report the issue.  There is a good story on that particular part of the case in the Guardian, which is available here.  Regardless of gender, everyone must be cognizant of an existing hostile working environment, and should report it when it occurs.  And employers must foster an open environment that encourages this type of reporting by every employee in the workplace. 

It is unfortunate that it often takes this type of story to bring these issues to light.  Nonetheless, the story can help bring awareness to this ongoing problem in the workplace.

-- Joe Seiner

October 10, 2017 | Permalink | Comments (0)

Monday, October 9, 2017

Gender Sidelining Call for Proposals

A8E7E2A9-8C34-4E39-9BD8558BC623CE93Jessica Fink (Cal. Western) writes with an exciting call for proposals for a symposium on Gender Sidelining. She writes:

Hi fellow Employment and Labor scholars:

I am excited to share California Western School of Law’s Call for Proposals for an innovative Gender Sidelining Symposium to be held in San Diego on April 26 & 27, 2018.  As detailed in the attached Call for Proposals, we are seeking individuals both to serve as primary presenters in various “salons,” as well as to serve as commentators on these presentations.  Please see the attached Call for Proposals for more information.  

We are thrilled that our keynote speaker will be Dean Camille Nelson from American University Washington College of Law, a widely published and well-respected scholar.  We further are excited to be hosting a “Judge’s Panel” on the opening night of the Symposium – including Justice Judith Haller (Associate Justice, CA 4th Dist. Court of Appeals) and Judge Margaret McKeown (U.S. Court of Appeals, 9th Cir.) – during which these respected jurists will discuss issues related to our Symposium topic.

We hope that you will strongly consider submitting a proposal to join us at the Symposium this April.

The call for proposals gives more details, also:

The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic.  The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality.  The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response.  Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.

In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture.  Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme.  Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons. 

Proposals should be submitted to no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line.  Please use Microsoft Word or the equivalent, but do not use PDF.  By submitting an application, you are agreeing that you will be present at the symposium to present your work.  Questions should be directed to Prof. Jessica Fink at

Read the whole call for proposals for more complete descriptions of the salon sessions:  Download CFP-Revised.doc It looks really interesting.


October 9, 2017 in Conferences & Colloquia, Employment Discrimination, Workplace Trends | Permalink | Comments (0)

Saturday, October 7, 2017

Labor & Employment Roundup

Some recent labor & employment news to catch up on: 

  • The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
  • Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
  • The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
  • Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.

-Jeff Hirsch

October 7, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (2)

Thursday, September 28, 2017

Supre Court Grants Cert in Two Labor & Employment Cases

Supreme CourtToday, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.

Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again. 

You can read more at SCOTUSBlog.

-Jeff Hirsch

September 28, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Wednesday, September 27, 2017

Colvin on Arbitration Clauses and D.R. Horton

ColvinConsistent with Imre's post below, Alex Colvin (Cornell ILR) provides this news of his own study:

In a nice conjunction with the D.R. Horton cases arguments coming up, I also have a report out today on the use of mandatory employment arbitration clauses, as well as the incidence of class action waivers. The study was sponsored by the Economic Policy Institute (EPI).

This is a nationally representative, establishment-level survey of 628 employers. It allows me to get a measure of the percentage of employees covered by mandatory arbitration. The key take-away is that I find that 56.2 percent of private sector nonunion employees are covered by mandatory arbitration. Of the employees covered by mandatory arbitration, 41.1 percent have class action waivers in the procedures.

Although the methodology is different, there is some nice consistency between the results of Imre’s study and mine. His focus is on the Fortune 100 companies, where my reading is that he finds 80 use mandatory arbitration for some workers using a broad measure or 66 using a narrower measure. In some additional analysis of my survey results, I found that larger employers were more likely to use mandatory arbitration, with 65.1 percent of employers with 1000 or more employees having mandatory arbitration procedures. Our numbers are also generally consistent with regard to the proportion of mandatory arbitration procedures that include class action waivers. So my take-away is that the two studies' results reinforce the validity of each other’s findings.


September 27, 2017 in Arbitration | Permalink | Comments (0)

Szalai on Arbitration Clauses and D.R. Horton

ImreImre Szalai (Loyola New Orleans) provides this update on matters related to D.R. Horton (see also Alex Colvin's study in the post above):

In anticipation of the D.R. Horton cases to be argued next week, I am publishing a report about the use of arbitration clauses for workplace-related disputes. The key finding from my study, which is based solely on publicly-available data, shows that 80 of the Fortune 100 companies, the largest companies in America by revenue, have used arbitration agreements for workplace-related disputes since 2010, and almost half of these 80 have class waivers.

My study is limited in scope; I was just trying to get a better sense of the possible impact of the D.R. Horton cases and capture a snapshot of the use of arbitration clauses in the workplace among the top companies in America.

Here’s an early link to the study, which will go live tomorrow through the Employee Rights Advocacy Institute, of which I serve as a board member:

I hope these limited findings may be of some value and provide some context for the ongoing debates about the use of arbitration. I know I sound like a broken record sometimes, but I firmly believe the Federal Arbitration Act (FAA) was never intended to cover employment disputes. Based on the original purpose, history, and text of the FAA – and if the Supreme Court were writing on a clean slate, there should be no debate that the employees would win the D.R. Horton cases. Unfortunately, the Supreme Court has long abandoned any analysis of the history and text of the FAA. To paraphrase Justice O’Connor, the FAA as interpreted today is now solely a creation of the Supreme Court’s own imagination. I hope I am pleasantly surprised in a few months when the decisions are issued. However, if the Court rules in favor of the employees, it would be the first time in decades that the Supreme Court has significantly cut back on its expansive interpretations of the FAA. My bet is that the employers win, and the Court will unfortunately continue chipping away at our ability to access the judiciary.


September 27, 2017 in Arbitration | Permalink | Comments (0)

Tuesday, September 12, 2017

Seiner's New Book On SCOTUS LEL

Seiner's bookA huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:

The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.

Congratulations, Joe!


September 12, 2017 in Book Club, Employment Common Law, Employment Discrimination, Workplace Trends | Permalink | Comments (0)

Zelinsky on ERISA Preemption

ZelinskyEdward Zelinsky (Cardozo) has just published, at 34 Hoifstra JLEL 301 (2017), ERISA Preemption After Gobielle v. Liberty Mutual: Completing the Retrenchment of Shaw. Here's the take-away:

There were other courses which the Gobeille Court could have taken. I argued, for example, that the best construction of ERISA Section 514(a) is to treat that section as reversing the normal presumption against preemption and instead presuming preemption when ERISA plans are affected by state law.
Gobeille chose a different path, completing the sub silentio retrenchment of Shaw. Gobeille confirms that, going forward, Traveler’s more restrained approach to ERISA preemption prevails over Shaw’s “plain meaning” approach to section 514(a). This is important for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as state taxes as they apply to the investment trusts of ERISA-regulated retirement plans.


September 12, 2017 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Monday, September 11, 2017

Briefing Paper on Mexican Labour Reform

MSN Mexico Labor ReformThanks to Tequila Brooks for passing along this information on recent labor reforms to Mexico's Constitution:

Canadian NGO Maquiladora Solidarity Network has published a great briefing Briefing Paper on recent labor reforms to Mexico's Constitution. The paper highlights what's at stake for labor justice reform and full realization of the rights to Freedom of Association and Collective Bargaining in Mexico - and provides a map to what has been accomplished so far and the road ahead for a complete transformation of Mexico's labor justice reform.

Some excerpts:

This briefing paper provides an overview of the process leading to the constitutional reform, an analysis of its content and possible implications, and an assessment of the issues surrounding the coming implementing legislation. The analysis is based on research and an in-depth consultation process carried out by the Maquila Solidarity Network (MSN) between February and May. That process included interviews with 16 Mexican and international labour rights experts from academia, the legal sector, trade unions, and civil society organizations, as well as other sectors.

By reforming Articles 107 and 123, the Mexican government moves actively toward honouring its commitment to workers, business and the international community to provide an impartial, unbiased, independent, and transparent labour justice system. If the reform and its implementing legislation bring all of the necessary safeguards into effect to address the problem of employer protection contracts, including the right for all union members to freely elect their leaders and to receive a hard copy of and vote on their collective bargaining agreements, they could bring Mexico’s legal framework more into compliance with the International Labour Organization’s (ILOs) fundamental Conventions 8710 and 9811 on freedom of association and the right to collectively bargain.

While the reform process is still underway, international brands, employers, trade unions, worker support groups, human rights organizations and the international community can continue to support the process by acknowledging progress so far and encouraging the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform and avoids the pitfalls described above. Pressure can be brought to bear to ensure the expeditious roll-out of the implementing legislation and to ensure that justice is brought to those who violate the laws in the future. They can also encourage the government to resolve outstanding conflicts, to cease registering newly signed employer protection contracts, and to ratify ILO Convention 98. Cross-sector outreach and coordination would be particularly helpful in advancing this work.


September 11, 2017 in International & Comparative L.E.L. | Permalink | Comments (0)

Friday, September 8, 2017

11th Circuit: Employers must accommodate breastfeeding workers under Title VII

BreastfeedingThe Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.

The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue.  As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.

The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences." 



September 8, 2017 in Employment Discrimination, Worklife Issues | Permalink | Comments (0)