Workplace Prof Blog

Mastrosimone on the NLRB's Election Rules

Joe Mastrosimone (Washburn) has just posted on SSRN his article, "Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech," which will appear int he Washburn Law Journal.  The abstract:

The central promise of the National Labor Relations Act is freedom of choice to American workers to decide whether they wish to be represented by a labor union. At the same time, studies show that employees’ choices are not always the product of uncoerced freewill. Many attribute employer coercion as hampering employee choice. That choice had traditionally been made through a secret ballot election conducted by the National Labor Relations Board. That election has generally been held approximately six to eight weeks after the petition for an election and after the union and the employer have “campaigned” for employee support. 

To correct employer coercion problems, the NLRB has altered its representation process to drastically shorten the period from petition to election. That shortened window significantly reduces the time in which an employer can communicate with his or her employees about the choice they are about to make in the soon-to-come election. 

The article concludes that attempts to shorten the campaign and cut out the employer’s role in the process are contrary to Congressional intent, to the First Amendment, and to the information gathering purpose of the campaign. Those conclusions are based on an examination of the legislative history of the Taft-Hartley Act’s inclusion of “the employer free speech provision” in Section 8(c), the court’s longstanding treatment of employer and union campaign speech as protected by the First Amendment, and studies of political campaigns that show that the information gathered by voters during a campaign is meaningful and helpful to the electorate and that the gathering of information is related to the length of the campaign. 

The article concludes that (1) the shortened campaign seeks to prevent unlawful coercion by improperly and unwisely limiting this protected and valuable information and (2) offers other means to combat unlawful coercion that respect the employer’s right and the employees’ need for information from both the employer and the union.

Joe's criticism of quicker elections is well thought out, even though many will disagree with him (I've come out somewhere in the middle by advocating for shorter elections, but not too short).  No matter your views on the timetable, he makes some interesting proposals as replacements for quick elections, including staying employer's ability to terminate employees during the critical period and requiring employers to provide information to support predictions of plant closures and similar costs of unionization.  

A very interesting article--check it out.

-JH

O'Brien on The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies

Christine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her forthcoming article in the Oregon Law Review: The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies.

Here is the abstract:

Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act-protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.

Hard to think of a more relevant and timely topic in the area of American labor law. I was just explaining to one of my colleagues the other day that much of the action in traditional labor law in the next few years might be with regard to the Section 7 rights of non-union employees.  This article provides much needed guidance of what those evolving rights might look like in the social media milieu.

PS

Levinson on Social Media, Privacy, and the Employment Relationship: The American Experience

Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.

Here is the abstract:

This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.

This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation.  As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.

PS

New ADAPT International Bulletin on Comparative Labor and Employment Law

Our friends at ADAPT, Chris Leggett and Michele Tiraboschi, bring word of the latest version of the ADAPT International Bulletin, including two comments.

The first note, which is from Gabriele Gamberini (PhD Candidate in Human Capital Formation and Labour relations and Visiting Researcher at Middlesex University, London) gives insights on whistleblowing in countries without whistleblower laws. Using a Game theory and taking the Italian case into a point, the article demonstrates the importance of creating internal channels for whistleblowing in countries with no whistleblower laws.

The second note that comes from Paul Jonker-Hoffrén (Post-doctoral Researcher, Turku Center for Labour Studies, Turku University) deals with the origin of the Youth Guarantee and explains briefly the goals, actors, and the pros and cons of the Finnish Youth Guarantee system.

This issue also includes the January edition of the E-Journal of International and Comparative Labour Studies.

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

PS

Comparative Unjust Dismissal Law

Normally here at Workplace Prof Blog, we at least like to pretend that we have some shame when it comes to self-promotion by getting fellow bloggers to post on each others' papers.  I'm going to break this norm, however, because this post is as much a rquest for assistance as anything else.  Sam Estreicher (NYU) and I have posted on SSRN our article, Comparative Unjust Dismissal Law: Reassessing American Exceptionalism, which will appear in the North Carolina Law Review.  

I've copied the abstract below, but one aspect of the article that I want to focus on here is our attempt to give as rich a picture as we can on how unjust dismissal laws are actually operating in various countries.  This attempt has involved, among other things, trying to find data on enforcement and talking to local experts.  As you can see from our acknowledgements footnote, we've already received a tremendous amount of help from a large number of people--and hats off to all them once again for all their great assistance.  However, we've had trouble finding good data for a lot of countries and, especially with an article this long, have no doubt messed something up or overlooked a relevant issue.  So, our request is that if you have any suggestions, corrections, comments, or leads on useful data, please let me know (you can email me at jmhirsch@email.unc.edu) so we can make the change before publication.  To the abstract:

Commentators have long debated the merits of the United States’ "at-will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals. 

Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.

This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.

Thanks!

-JH

Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum

The good folks at Seton Hall have just put out a call for proposals for the Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum.  This is a great event--basically the labor & employment version of the Stanford/Yale/Harvard Junior Faculty Forum--so all of you junior scholars should definitely considering submitting.  The info:

 

Call for Proposals:

Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum

Seton Hall Law School, October 11-12, 2013

Building on the successes of the last seven years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents. 

For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.

The event will be held at Seton Hall Law School, October 11-12, 2013.  As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere.  Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.  

Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, June 17, 2013.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or charles.sullivan@shu.edu. 

Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 23, 2013.

 -JH

Seiner Awarded 2013 Outstanding Faculty Publication Award from South Carolina Law

Congratulations to friend of the blog and Twiqbal scholar extraordinaire, Joe Seiner (South Carolina), for winning the faculty publication award at his school this year.

From the webpage announcement:

Professor Joe Seiner received the 2013 Outstanding Faculty Publication Award at the University of South Carolina School of Law, which is presented to a faculty member who has written an outstanding piece of scholarship. Seiner received this year's honor for his article, "Punitive Damages, Due Process, and Employment Discrimination," 97 Iowa L. Rev. 473 (2012).  A faculty committee reviews eligible publications each year and selects the winner, and this year’s  award was presented by Robert Wilcox, Dean of the law school.  The paper proposes – for the first time – a uniform analytical framework for analyzing punitive damages in employment discrimination cases after the Supreme Court’s high profile decisions in Philip Morris v. Williams and Exxon Shipping v. Baker.

Congratulations, Joe! Well-deserved.

PS

NYLS Law Review Symposium on Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination

The New York Law School Law Review has an interesting new Symposium out which seeks to identify the reasons employment plaintiffs have far lower success rates on prejudgment and post-judgment motions when compared to other types of plaintiffs.  The symposium issue is entitled: Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination (links to all articles available). It is based on a symposium by that same name held at New York Law School in April 2012.

Here are the contents of the Symposium Issue:

I. Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination

    Introduction by Arthur S. Leonard, Professor of Law, New York Law School

    Summary Judgment in Employment Discrimination Cases: A Judge’s Perspective by Hon. Denny Chin, U.S. Circuit Court Judge, U.S. Court of Appeals for the Second Circuit

    Essay: From the “No Spittin’, No Cussin’ And No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective by Hon. Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa

    The Jury (or More Accurately the Judge) Is Still Out for Civil Rights and Employment Cases Post-Iqbal by Suzette M. Malveaux, Associate Dean of Academic Affairs and Associate Professor of Law, The Catholic University of America, Columbus School of Law

    Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination and Summary Judgment by Hon. Bernice B. Donald, U.S. Circuit Court Judge, U.S. Court of Appeals for the Sixth Circuit; and J. Eric Pardue, Associate, Vinson & Elkins LLP

    “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases by Elizabeth M. Schneider, Rose L. Hoffner Professor of Law, Brooklyn Law School; and Hon. Nancy Gertner, Professor of Practice, Harvard Law School and U.S. District Court Judge, District of Massachusetts (Ret.)

    Inferences in Employment Law Compared to Other Areas of Law: Turning the Rules Upside Down by David L. Lee, Principal, Law Offices of David L. Lee; and Jennifer C. Weiss, Principal, Law Offices of Jennifer C. Weiss

    Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases by Deborah Thompson Eisenberg, Assistant Professor of Law, University of Maryland Francis King Carey School of Law and Director, Center for Dispute Resolution.

    (In)competence in Appellate and District Court Brief Writing on Rule 12 and 56 Motions by Scott A. Moss, Associate Professor of Law, University of Colorado Law School.

    Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano by Ann C. McGinley, William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas

Extremely impressive and wide-ranging series of papers on perhaps the legal issue these days at the intersection between employment discrimination law and civil procedure.

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Zelinsky on California Dreaming: The California Secure Choice Retirement Savings Trust Act

Edward A. Zelinsky (Yeshiva University - Benjamin N. Cardozo School of Law) has posted on SSRN is new piece forthcoming in the Connecticut Insurance Law Journal: California Dreaming: The California Secure Choice Retirement Savings Trust Act.

Here is the abstract:

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual retirement accounts under the Code. Hence, employees participating in savings arrangements established under the Act will not receive the income tax benefits associated with individual retirement accounts.

If the Act were to be amended to make its accounts individual retirement accounts, the Act would survive ERISA preemption under New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995), though not under Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). Since Travelers is the Court’s more recent and more compelling construction of ERISA preemption, the Act should survive ERISA preemption if the Act is amended to have true individual retirement accounts.

A final section addresses the choices other state legislatures (as well as Congress) confront if they elect to follow part or all of the path on which California has embarked to encourage private retirement savings. President Obama has recently proposed a federal mandate under which employers with more than ten employees would be required to maintain either retirement plans or IRA coverage. The President’s proposal ensures public debate about the appropriate function of government in encouraging retirement savings. The Golden State’s Act will play an important role in that debate. In that debate, I favor state-by-state experimentation rather than any single approach to the task of encouraging greater retirement savings.

As always, Ed wrties a comprehensive, easily-understandable explanation of the new California state-run pension plan for private employees. I have read this piece in full and agree with Ed that California has failed to set up IRAs for employees as they desired and instead have created an ERISA plan.  I also agree with Ed that such provisions should be amended so that this scheme is given a chance to work to provide an additional vehicle for retirement savings for California residents.

PS

Youngdahl on Investment Consultants and Institutional Corruption

Jay Yougdahl (Harvard University - Edmond J. Safra Center for Ethics) has recently posted on SSRN his new piece entitled: Investment Consultants and Institutional Corruption.

Here is the abstract:

Analyses of the financial crisis of 2007-2009 and the continuing effects of a difficult investing environment have largely focused on factors such as the roles of failed and complex financial products, inadequate credit rating agencies, and ineffective government regulators. Nearly unexamined, however, is a key group of actors in the financial landscape, investment consultants. Investment consultants stand as gatekeepers between large investors, such as private and public retirement funds, and those from “Wall Street” who design and sell financial products. Investment consultants hired by these asset owners practically control many investment decisions. Yet, as a whole the profession failed to protect asset owners in the recent financial crisis and has yet to engage in serious self-examination. Much of the reason for the failure can be traced to institutional corruption, which takes the form of conflicts of interest, dependencies, and pay-to-play activity. In addition, a claimed ability to accurately predict the financial future, an ambiguous legal landscape, and a tainted financial environment provide a fertile soil for institutional corruption. This institutional corruption erodes the confidence and effectiveness of the retirement and investment systems today. While not proposing a comprehensive system of reform, this article illuminates a way forward for those in the industry who have the desire to address and implement necessary corrective activity.

This is a timely and provocative contribution by Jay. In light of the increased movement from traditional pension to consumer driven defined contribution plans like 401ks, there is a very significant role being played by investment consultants in the pension world today, perhaps more than ever.

This role is largely misunderstood or ignored by many who practice ERISA law, and of course, by many plan participants and beneficiaries. It will be interesting to see what impact this paper may have on the increasing reliance on 401ks on the one hand, and the new trend among larger companies (like GM and Verizon) to derisk their pension obligations by purchasing group annunity contracts from large insurers (like Prudential) on the other.

PS

Investment Consultants and Institutional Corruption

Jay Youngdahl

Harvard University - Edmond J. Safra Center for Ethics

April 25, 2013

Edmond J. Safra Working Papers, No. 7

Abstract:     
Analyses of the financial crisis of 2007-2009 and the continuing effects of a difficult investing environment have largely focused on factors such as the roles of failed and complex financial products, inadequate credit rating agencies, and ineffective government regulators. Nearly unexamined, however, is a key group of actors in the financial landscape, investment consultants. Investment consultants stand as gatekeepers between large investors, such as private and public retirement funds, and those from “Wall Street” who design and sell financial products. Investment consultants hired by these asset owners practically control many investment decisions. Yet, as a whole the profession failed to protect asset owners in the recent financial crisis and has yet to engage in serious self-examination. Much of the reason for the failure can be traced to institutional corruption, which takes the form of conflicts of interest, dependencies, and pay-to-play activity. In addition, a claimed ability to accurately predict the financial future, an ambiguous legal landscape, and a tainted financial environment provide a fertile soil for institutional corruption. This institutional corruption erodes the confidence and effectiveness of the retirement and investment systems today. While not proposing a comprehensive system of reform, this article illuminates a way forward for those in the industry who have the desire to address and implement necessary corrective activity.

Slater on Interest Arbitration

Joe Slater (Toledo) just posted on SSRN his article (OSJDR) Interest Arbitration as Alternative Dispute Resolution: The History from 1919 to 2011. Here's the abstract:

This paper comes from a February 2012 Symposium, "The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector." It discusses the history of an important form of alternative dispute resolution: the use of what is called “interest arbitration” to resolve bargaining impasses in public-sector labor relations. This process is used in many states as an alternative to strikes. While interest arbitration has been a crucial part of public-sector labor law and labor relations for decades, it has come under increased scrutiny recently. Indeed, in the wave of laws passed in 2011 restricting the rights of public-sector unions to bargain collectively, interest arbitration was repeatedly attacked, and in several states it was eliminated or restricted.

This paper gives a historical overview of the development of interest arbitration, discussing how and why it developed as it did. This development was neither inevitable nor “natural” in that many other western democracies generally allow public workers to strike. But only a few states in the U.S. allows any public workers to strike. Thus, the question is: why did U.S. law and policy develop the way it did? This paper traces the relevant history from 1919 through to the new, restrictive laws of 2011. It starts with the Boston Police strike of 1919 — a seminal event in the history of public-sector labor law, that had a profound and lasting impact on how U.S. policymakers felt about dispute resolution in public sector labor law. It then turns to the first public-sector labor law permitting collective bargaining — passed, ironically in view of recent events, in Wisconsin in 1959 — and describes how concerns about dispute resolution were central to debates over that law. The paper continues by explaining how interest arbitration in public-sector labor relations has evolved and how it has worked from the 1960s into the 21st century. Finally, the paper explores the very recent developments in this area in the laws of 2011.

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More on Seiner's Post-Dukes Advice

Another shout out for Joe Seiner's (SC) recent article, "Weathering Wal-Mart," on post-Dukes class action lawyering.  Thomson-Reuters recently did a story on his article.  Some highlights:

"I do think there is a hunger for what are some of the procedural avenues to overcome the decision," Seiner said in an interview. "How can we achieve a class action? "That's where I'm trying to push the discussion." . . .

He prescribes three broad approaches. First, he writes, the EEOC, as a government plaintiff, is not bound by Dukes and should bring more broad-scale cases involving workplace discrimination. While noting that the EEOC is "historically underfunded," Seiner says the agency can nevertheless achieve meaningful injunctive and monetary relief.

Next, Seiner turns to procedural responses. When trying individual cases, plaintiffs' attorneys should make better use of collateral estoppel, the doctrine that says that a determination in one case should affect a related matter. . . .

Finally, Seiner writes, plaintiffs' lawyers should try to "cabin" Wal-Mart, by which he means making sure the decision applies only to the very, very large class actions such as Dukes. They should also try to take the decision "at its word," by flooding the courts with separate individual lawsuits.

In the article, Joe also notes that his next step maybe to focus more on practioners' ideas.  So I think I can speak for him in saying he'd love to hear from any of you with additional thoughts.

Hat Tip:  Suja Thomas

ISO Chapters on Foreign Labor and Employment Laws

Oxford University Press is publishing a book titled "Global Labor and Employment Law: Reports From Law Offices Worldwide," which is being edited by Sam Estreicher (NYU), Michael Gray (Jones Day), and myself.  It is going to be a comprehensive book, both in the topics covered as well as the number of countries we have chapters for.  Thanks to many attorneys at Jones Day and elsewhere, in addition to academics, we've got most of what we need, but there are a few holes.  Below are a list of countries that we'd like to have chapters on--if you're knowledge about the labor and employment laws in any of these countries and would like to join what look to be a great book (I'm only a bit biased), please send me an email: jmhirsch@email.unc.edu.

• Thailand
• Cambodia
• Poland
• Czech RepubliC
• HUngary
• Egypt
• UAE

-JH

Long & Sperino on Diminishing Retaliation Liability

Alex Long (Tennessee) and Sandra Sperino (Cincinnati) has just had their essay, "Diminishing Retaliation Liability" published in the NYU Law Review Online.  The essay's introduction:

Over the past decade, courts have often construed statutory provisions relating to workplace retaliation liberally, interpreting them to provide protections for employees who complained about discrimination against themselves or others. However, a recent decision by the Fifth Circuit Court of Appeals demonstrates that courts may begin to scale back the gains made by employees in retaliation cases by applying agency principles to limit employer liability for retaliation.

An interesting topic from two folks who know their retaliation law, so check it out.

-JH

Recently Published Scholarship

• Marcia L. McCormick, Workplace Reform in a Jobless Recovery, 81 UMKC L. Rev. 347 (2012).
• Michael J. Zimmer, Inequality, Individualized Risk, and Insecurity, 2013 Wisc. L. Rev. 1.
• Teressa L. Elliott, The Path to the Americans with Disabilites Act Amendments Act: U.S. Supreme Court Cases, Congressional Intent, and Substantial Change, 48 Gonzaga L. Rev. 395 (2012/13).
• Sandra Simpson, The Elusive Quest for Equality: Women, Work, and the Next Wave of Humanism, 48 Gonzaga L. Rev. 279 (2012/13).
• Jasmine A. Williams, "Unemployed (and Black) Need Not Apply": A Discussion of Uneployment Discrimination, Its Disparate Impact on the Black Community, and Proposed Legal Remedies, 56 Howard L.J. 629 (2013).
• Jason E. Shapiro, Employee Benefits Law: The Hidden Gap Enabling Sexual Orientation Discrimination in Employment, 19 Casrdozo J. L. & Gender 511 (2013).
• Nicholas H. Meza, A New Approach for Clarity in the Determination of Protected Concerted Activity Online, 45 Ariz. St. L.J. 329 (2013).

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A Dau-Schmidt Duo

Ken Dau-Schmidt (Indiana-Bloomington) has just posted on SSRN a couple of new articles:

Promises to Keep: Ensuring the Payment of Americans’ Pension Benefits in the Wake of the Great Recession (forthcoming Washburn  L.J.):

In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a pension plan. I then examine the particular problems that have arisen because of our relatively recent transition from defined benefit to defined contribution plans, and the funding problems caused by the Great Recession. I close with a section discussing policy changes that might be made to improve our pension system and help ensure that workers receive not only the pension benefits they were promised, but also adequate benefits to sustain them comfortably during their retirement.

The Employment and Economic Advancement of African Americans in the Twentieth Century (with Ryland Sherman, IU-Bloomington Dep't Telecomm.):

The African American experience in the American economy in the Twentieth Century has been a story of many successes, and more than a few unfulfilled promises. Brought in chains to the poorest region of the United States to do the least desirable work, and purposely denied education in order to preserve their subjugation, African Americans began the Twentieth Century on the lowest rung of the American economic ladder doing predominantly low-skilled, low-wage agricultural labor in the poorest region of our country. However, over the course of the century, African Americans were able to overcome express and implicit discrimination to climb the economic ladder and achieve success in new regions and new occupations and professions. African Americans still suffer many disadvantages that diminish their economic success, particularly males and particularly in education, but certainly in comparison with the previous three centuries, the Twentieth Century marked important advancements in African American economic opportunity and success.

In this essay, we will examine how African Americans achieved the economic progress they made during the Twentieth Century. We do this by examining their progress along four vectors of economic opportunity - geographical distribution, labor force participation, occupational distribution, and educational attainment - and then examine the resulting improvement in relative economic rewards. We will also examine the impact that the Civil Rights Movement, the Civil Rights Act and affirmative action policies have had on this progress. We will see that, from an economic perspective, the story of African American success in the Twentieth Century is one of overcoming discrimination by moving from a situation of relatively constrained economic opportunities, to gain access to, and success in, an ever larger and more rewarding set of opportunities across the country. It is hoped that the recounting of the success of African Americans in achieving greater economic success by using the law and their own initiative to gain access to new geographic, occupational, and educational opportunities will serve as an inspirational and educational lesson for India’s Dalits in their own struggle for equal opportunities.

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Duff on Labor and the NFL Antitrust Exemption

Michael Duff (Wyoming, visiting Denver) has just posted on SSRN his essay What Brady v. N.F.L. Teaches About the Devolution of Labor Law.  Here's the abstract:

In this essay I argue that the Eight Circuit got things very wrong when it found, in Brady v. National Football League, that a district court’s injunctions issued against the NFL in connection with player-filed antitrust suits were barred by the Norris LaGuardia Act of 1932 (NLGA).  I argue that the Court’s misreading of the NLGA strikes at the “statutory music” of labor law so dramatically as to represent a judicial unmooring from it.  I chronicle other recent important, but relatively minor, judicial departures from the music.  I also discuss a major but less recent departure – the employer lockout.  I distinguish Brady from these departures, concluding that invocation of the NLGA—the original and arguably the foundational American labor law statute—to protect wealthy NFL owners from player-filed antitrust suits is a bridge too far.  That the NFL wants to be exempted from antitrust law, I understand.  We should be honest, however, and modify antitrust law to affirmatively grant the exemption (or not).  We should not contort and abuse labor law in a manner that makes a mockery of it.  On the other hand, I consider whether cases like Brady are inevitable when judges are propping up a labor law regime originally meant to maintain industrial peace throughout an era in which there is little industrial strife.  Perhaps it is natural that a labor law regime that cannot do what it was supposed to do because of a shift in the zeitgeist (whatever caused the shift), coupled with legislative ossification preventing the regime’s innovation, will be vulnerable to bad faith manipulation.  In Brady, the manipulation consisted of the court’s misapplication of the NLGA and its putting on of blinders as all parties advanced positions difficult to characterize as having been made in good faith.  I question in light of the debacle why anyone would want the labor law we now have.

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Bodie Defines Employment

Matt Bodie (SLU) has just posted on SSRN his article (89 Notre Dame L. Rev. (2013)) Participation as a Theory of Employment.  Here's the abstract:

The concept of employment is an important legal category, not only for labor and employment law, but also for intellectual property law, torts, criminal law, and tax. The right-to-control test has dominated the debate over the definition of “employee” since its origins in the master-servant doctrine. However, the test no longer represents our modern notion of what it means to be an employee. This change has played itself out in research on the theory of the firm, which has shifted from a model of control to a model of participation in a team production process. This Article uses the theory of the firm literature to provide a new doctrinal definition for “employee” based on the concept of participation rather than control. The participation test better delineates the boundaries of employment and provides a framework for addressing the stresses on firms and workers that are rife within the modern economy.

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Recently Published Scholarship: Loyola-Chicago Publishes Colloquium Articles

Mike Hohenadel, Executive Editor of Research and Marketing, Loyola University Chicago Law Journal, sends us the following:

The Loyola University Chicago Law Journal is pleased to announce the publication of our symposium issue featuring articles from the September 2012 Northwestern School of Law and Loyola University Chicago School of Law. The Colloquium, which took place last September 14 and 15, allowed labor and employment law scholars to discuss works-in-progress and gain feedback from their peers. The Loyola University Chicago Law Journal has the distinct pleasure of publishing the following four articles stemming from that Colloquium:

• Regretting Roth? Why and How the Supreme Court Could Deprive Tenured Public Teachers of Due Process Rights in Employment – Karl D. Camillucci
• The Law is a Fractal: The Attempt to Anticipate Everything – Andrew Morrison Stumpff
• Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law – Douglas A. Hass
• Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States – Susan Bisom-Rapp and Malcolm Sargeant

Copies of each of these articles are available through the Law Journal’s website.

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Recently Published Scholarship

• Jamie Darin Prenkert, Julie Maning Magid, & Allison Fetter-Harrott, Retaliatory Disclosure: When Identifying the Complainant Is an Adverse Action, 91 N. Carolina L. Rev. 889 (2013).
• Colin M. Leonard & Tyler T. Hendry, From Peoria to Peru: NLRB Doctrine in a Social Media World, 63 Syracuse L. Rev. 199 (2013).
• Karin Mika, Privacy in the Workplace: Are Collective Bargaining Agreements a Place to Start Formulating More Uniform Standards?, 49 Willamette L. Rev. 251 (2012).
• Charles J. Russo, A Cautionary Tale of Collective Bargaining in Public Education: A Teacher's Right or Tail Wagging the Dog?, 37 U. Dayton L. Rev. 317 (20112).
• Adam S. McGonigle, Applying Equitable Estoppel to ERISA Pension Benefit Claims, 54 William & Mary L. Rev. 627 (2012).
• Garrett Wozniak, The "Walkaway Shop": Long-Term Union Avoidance and Management Decisions to Open New Facilities as Lawful Conduct Under the National Labor Relations Act, 42 U. Baltimore L. Rev. 151 (2012).
• Katherine Kubale & Ricahrd Bales, The Damage Is Done: Ordering a New Trial Based Only on Damages, 40 Pepperdine L. Rev. 625 (2013).

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