Thursday, September 15, 2016

Doorey on Climate Change and Labor Law

Fellow blogger, David Doorey (http://lawofwork.ca) has just posted on SSRN a new article, A Law of Just Transitions: Putting Labor Law to Work on Climate Change. The abstract:

Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept originally developed by the North American labor movement, but has since been endorsed by important global institutions including the International Labour Organization and the U.N. Environmental Program. However, the prescriptions that would guide a policy of just transition have been under-explored in the legal literature. This paper marks an important early contribution to this challenge. It explores the factual and normative boundaries of a legal field called Just Transitions Law and questions whether such a field would offer any new, valuable insights into the challenge of regulating a response to climate change.

This is definitely an intersection that we haven't heard much about, but as we can see from the politics surrounding trade and climate agreements, it's clearly one that it's important. 

-JH

September 15, 2016 in Labor Law, Scholarship | Permalink | Comments (0)

Friday, September 9, 2016

Harkavy's Annual Review of SCOTUS LEL Decisions

HarkavyJon Harkavy (Patterson Harkavy) has just posted on SSRN his annual (30th?) review of the Supreme Court's work in the employment area.  The article will be presented at a seminar in late October at the Grove Park Inn in Asheville, NC. Here's the abstract:

This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.

rb

September 9, 2016 in Employment Common Law, Employment Discrimination, Scholarship, Workplace Trends | Permalink | Comments (0)

Sunday, September 4, 2016

Estreicher Proposes "Safe Harbor" Rule to Promote Employment of High-Risk Applicants

EstreicherSam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:


This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.

Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.

The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.

...

This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.

rb

September 4, 2016 in Disability, Employment Discrimination, Scholarship | Permalink | Comments (1)

Friday, August 26, 2016

Chong on Hollywood's Blinding Whiteness

ChongChrissy Shu Jien Chong (San Francisco) has just posted on SSRN her article (21 Asian Pacific American L.J. (2016)) Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling? Here's an excerpted abstract:

Despite America's recent diversity craze, the bamboo ceiling appears stronger than ever in Hollywood. The entertainment industry's lack of racial diversity is disappointing, but the legal system's failure to protect minorities from Hollywood's discriminatory hiring practices is even more depressing. ... [W]hites hold 84% of on-screen acting roles and 94% of behind-the-cameras positions. Asian Pacific Americans only held 3% of on-screen acting roles and 0.8% of behind-the-cameras positions.

[This article] argues that the dramatic under-representation of Asian Pacific Americans in Hollywood is caused by racially discriminatory practices that are fueled by implicit and explicit biases. ... [The article] discusses an array of industry solutions, such as diversity and debiasing programs, colorblind pitches and casting, more Asians in the arts, self regulation, and organizing with other minorities. But the article ultimately determines the best solution to Hollywood's diversity problem is legislative action.

rb

August 26, 2016 in Employment Discrimination, Scholarship | Permalink | Comments (1)

Call for papers from the Center for Applied Feminism & Intersectionality

The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:

CALL FOR PAPERS

APPLIED FEMINISM AND INTERSECTIONALITY: 

EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?

We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to ubfeministconference@gmail.com. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

MM

August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)

Tuesday, August 23, 2016

Ontiveros on the Exploitation of High-Skilled Tech Workers

Ontiveros_mariaMaria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming BJELL) H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers. Here's the abstract:

This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.

rb

August 23, 2016 in Scholarship, Worklife Issues | Permalink | Comments (0)

Friday, July 29, 2016

Yamada on Unpaid Internships

UnpaidDavid Yamada (Suffolk) has just posted on SSRN his article (8 Northeastern U. L.J. 357 (2016) The Legal and Social Movement Against Unpaid Internships. The article offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years. This includes the Glatt v. Fox Searchlight Pictures litigation concerning unpaid internships, which culminated in 2016 Second Circuit decision that restricts, but does not foreclose, future challenges under the FLSA.

The article already has received a huge amount of attention -- 500+ SSRN downloads. This obviously is a critically hot topic.

Here's an excerpt from the abstract:

Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.

rb

July 29, 2016 in Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (1)

Tuesday, July 19, 2016

New Book: Invisible Labor

51gF-gQv01L._SX331_BO1,204,203,200_Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:

Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.

The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!

MM

July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)

Wednesday, June 29, 2016

Kim on Algorithmic Discrimination

KimPauline Kim (Washington U.) has just posted on SSRN her article (forthcoming 2017 William & Mary Law Review) Data-Driven Discrimination at Work. Here's the abstract of this timely article:

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired or promoted. Proponents of the new data science claim that automated decision systems can make better decisions faster, and are also fairer, because they replace biased human decision-makers with “neutral” data. However, data are not neutral and algorithms can discriminate. The legal world has not yet grappled with these challenges to workplace equality. The risks posed by data analytics call for fundamentally rethinking anti-discrimination doctrine. When decision-making algorithms produce biased outcomes, they may seem to resemble familiar disparate impact cases, but that doctrine turns out to be a poor fit. Developed in a different context, disparate impact doctrine fails to address the ways in which algorithms can introduce bias and cause harm. This Article argues instead for a plausible, revisionist interpretation of Title VII, in which disparate treatment and disparate impact are not the only recognized forms of discrimination. A close reading of the text suggests that Title VII also prohibits classification bias — namely, the use of classification schemes that have the effect of exacerbating inequality or disadvantage along the lines of race or other protected category. This description matches well the concerns raised by workplace analytics. Framing the problem in terms of classification bias leads to some quite different conclusions about how the anti-discrimination norm should be applied to algorithms, suggesting both the possibilities and limits of Title VII’s liability focused model.

rb

June 29, 2016 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Tuesday, June 14, 2016

COSELL Website Open for Registration

11th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24(Saturday) September 2016

Information and link to registration:  http://www.law.uw.edu/events/cosell

Registration:  https://www.law.washington.edu/reg/cosell/default.aspx

The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23rd and 24th.  Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22nd through Saturday, Sept. 24th.  Rooms are priced at about $209/night - please reserve a hotel room as soon as possible given hotel attrition policies.   Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington.  Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.

The website has information about the hotel, and the registration page has space for you to enter your paper topic and an abstract.  Registration for the conference is open until 31 August 2016.  Please send any questions or concerns, whether it’s about the conference or “things to do in Seattle” to Prof. Lea Vaughn at lvaughn@uw.edu.  Thank you!

June 14, 2016 in Conferences & Colloquia, Faculty Presentations, Scholarship | Permalink | Comments (0)

Monday, June 13, 2016

Call for Papers, AALS: Classifying Workers in the Gig Economy

AalsThe Executive Committee of the AALS Labor Relations and Employment Law Section announces that it is seeking abstracts as part of a Call for Papers to be presented at the 2017 Annual Meeting program in San Francisco. The program, titled Classifying Workers in the “Sharing” and “Gig” Economy, will take place on Thursday, January 5, 2017 from 8:30 am to 10:15 am.  Co-sponsored by the AALS Immigration Law, Business Associations, and Contracts Sections, this program will start immediately after a Breakfast jointly sponsored by the AALS Labor Relations and Employment Law and Employment Discrimination Sections held from 7 a.m. to 8:30 that morning.

This program will focus on the emerging trend of businesses using “on-demand” workers who share economic risks with those businesses as nominally independent contractors. These workers consider the job opportunity as an individual “gig,” characterized by flexibility conveniently gained from technology. State, federal, and local legislatures and related labor and employment law enforcement agencies have started to add items to this analysis beyond the typical “1099/W-2" common law control nomenclature. 

As a result, the question of who is an employee in the gig and sharing economy has become an ever-increasing concern. During the program, a panel of leading labor and employment law scholars will address this question from a multi-disciplinary approach including the examination of unique issues for business franchises and immigrant workers.

We are seeking an additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. Papers presented during this program may be published by the Employee Rights and Employment Policy Journal. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Michael Z. Green, at mzgreen@law.tamu.edu by August 26, 2016.  The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 5, 2017. Any inquiries about this Call for Papers should be submitted by e-mail to Professor Green.

MM

June 13, 2016 in Conferences & Colloquia, Employment Common Law, Faculty Presentations, Scholarship | Permalink | Comments (1)

Wednesday, June 1, 2016

Annual Colloquium Save the Date

SAVE THE DATE: 11th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24 (Saturday) September 2016

The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23rd and 24th.  Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22nd through Saturday, Sept. 24th.  Rooms are priced at about $209/night.  Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington.  Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.

The website will be posted soon.  In the meantime, please send an email indicating your interest and the title + abstract of any paper you wish to present to Prof. Lea Vaughn at lvaughn@uw.edu.  As soon as the site is up, she will let you know so that you can complete your formal registration. Thank you!

June 1, 2016 in Conferences & Colloquia, Scholarship | Permalink | Comments (0)

Wednesday, May 4, 2016

Secunda and Hertel-Fernandez on Workplace Political Intimidation

Secunda HFAs the primary season transitions more solidly into the presidential election, our thoughts in the labor and employment world naturally turn to workplace captive audience speeches. WPB emeritus Paul Secunda (Marquette) is probably the country's expert on the subject. He has an important piece out in the UCLA Law Review Discourse with Alexander Hertel-Fernandez (doctoral candidate in government and social policy, Harvard), who has been engaged in empirical work to study the scope of employer political intimidation. The article, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United summarizes some of Hertel-Fernandez's empirical findings and recommends that Congress amend Title VII to prohibit discrimination on the basis of political affiliation or belief.

The article lays out a compelling case and a workable solution. It finishes with this powerful exhortation:

As the country enters into a highly-contested and polarizing presidential election cycle, it is imperative that Congress act quickly to end political coercion in the workplace.  Consistent with longstanding principles of freedom of speech, expression, association, and political affiliation, private-sector employees, just as much as their public-sector counterparts, have the right to engage (or not engage) in political activities without fear of retribution or disadvantage from their employer.  It is one thing to provide corporations with expanded free speech rights in the electoral process.  It is quite another to permit companies to coerce workers in their political expression.  We should not tolerate the latter encroachment on worker autonomy.

The article is a great read, and I highly recommend it.

MM 

May 4, 2016 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0)

Wednesday, March 30, 2016

Seiner on Class Actions in the On-Demand Economy

JosephSeinerOur own Joe Seiner has just uploaded an essay to SSRN: Tailoring Class Actions to the On-Demand Economy, 77 Ohio State L.J. __ (2017) (forthcoming). From the abstract: 

In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.

The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.

Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important—yet unexplored— area of the law.

As Joe writes in the abstract, classification issues in the on-demand or platform economy are a very hot topic right now, and this essay on systemic claims is a valuable contribution to the broader issues.

MM

March 30, 2016 in Employment Common Law, Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Wednesday, March 23, 2016

Conference Announcement: Philosophical Foundations of Labour Law

FoundationsGillian Lester (Columbia) writes to tell us of the upcoming conference Philosophical Foundations of Labour Law, which will be held June 16-17, 2016 at the UCL Faculty of Laws, Senate House, Malet Street, London WC1. This conference brings together leading labour law scholars (and, I'm excited to say, a terrific mix of established and emerging scholars!) from around the world to explore the broad themes of:

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  • Equality
  • Dignity
  • Exploitation
  • Domination
  • Liberty

A complete list of speakers is provided after the page break. The size of the event is strictly limited to 65 people to encourage discussion. Registration is required. Doctoral students with an interest in this topic are particularly welcome to attend. Doctoral students should write to the conference administrator Lisa Penfold to learn about available discounts. The conference has been convened by Dr. Virginia Mantouvalou (UCL), Professor Hugh Collins (Oxford), and Professor Gillian Lester (Columbia Law School).

rb

Continue reading

March 23, 2016 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Tuesday, March 22, 2016

Opting out of Workers' Comp

MorantzAlison Morantz (Stanford) has just posted on SSRN her article Rejecting the Grand Bargain: What Happens When Large Companies Opt Out of Workers’ Compensation? Here's the abstract:

The “grand bargain” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault occupational injury insurance, was one of the great tort reforms of the Twentieth Century. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which many firms (“nonsubscribers”) have chosen to do so: Texas. This study examines the impact of Texas nonsubscription on fifteen large, multistate nonsubscribers that provided their Texas employees with customized occupational injury insurance benefits (“private plans”) in lieu of workers’ compensation coverage between 1998 and 2010. As economic theory would lead one to expect, nonsubscription generated considerable cost savings. My preferred estimates suggest that costs per worker hour fell by about 44 percent. These savings were driven by a drop in the frequency of more serious claims involving replacement of lost wages, and by a decline in costs per claim. Both medical and wage-replacement costs fell substantially. Although the decline in wage-replacement costs was larger in percentage terms than the drop in medical costs, the latter was equally financially consequential since medical costs comprise a larger share of total costs. The second stage, which compares the effect of nonsubscription across different types of injuries, finds that non-traumatic injury claims were more responsive to nonsubscription than traumatic ones. In part, this disparity reflects the fact that private plans categorically exclude some non-traumatic injuries from the scope of coverage. Yet even those non-traumatic injuries that were not excluded from coverage declined more than traumatic injuries, consistent with aggressive claim screening by employers and/or a decline in over-claiming and over-utilization by employees in the nonsubscription environment. The third stage examines the effect of nonsubscription on severe, traumatic injuries, which are generally the least susceptible to reporting bias and moral hazard. The sizable and significant decline in such injuries is consistent with an improvement in real safety, although it could also be explained by aggressive claim screening. The final stage of the study probes whether four ubiquitous features of private plans – non-coverage of permanent partial disabilities, categorical exclusion of many diseases and some non-traumatic injuries, capped benefits, and lack of chiropractic care – explain the observed trends. Surprisingly, these features account for little of the estimated cost savings. Although many study participants describe limited provider choice and 24-hour reporting windows as major cost drivers, data limitations preclude me from identifying their respective impacts. Overall, my findings suggest an urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social welfare state into an optional program that exists alongside privately-provided forms of occupational injury insurance.

rb

March 22, 2016 in Scholarship, Workplace Safety | Permalink | Comments (1)

Saturday, March 19, 2016

ABA JLEL Student Writing Competition

AbajlelLaura Cooper (Minnesota) writes to tell us:

Labor and employment law professors and their students should take note of the new rules for the 2016 American Bar Association Section of Labor and Employment Law and The College of Labor and Employment Lawyers Annual Law Student Writing Competition.  The competition has doubled its award for the first-prize essay to $3000.  The prize also, as before, brings with it the opportunity of publication in the ABA Journal of Labor & Employment Law that has tens of thousands of practicing attorneys as subscribers.  Another change in the rules permits essays to be as long as thirty-five pages.  Students may find it easier to prepare their spring semester seminar papers in the competition’s format now that the submission deadline has been set for June 15, 2016, well after the end of final exams.  See the complete competition rules here.

rb

March 19, 2016 in Scholarship, Teaching | Permalink | Comments (0)

Wednesday, March 9, 2016

Yamada: Turning Academics into Activism

YamadaDavid Yamada (Suffolk) has just posted on SSRN Intellectual Activism and the Practice of Public Interest Law, to be published in the Southern California Journal of Law and Social Justice. Though not strictly a labor/employment piece, it's built around the work David has been doing on workplace bullying and on unpaid internships, and will be useful to anyone working in law reform. Here's the abstract:

How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?

I explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession.

This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.

The article closes with an Appendix containing a short annotated bibliography of books related to intellectual activism, public intellectualism, and the uses of scholarship to advance social change.

rb

March 9, 2016 in Scholarship | Permalink | Comments (0)

Saturday, February 27, 2016

Rogers: "Libertarian Corporatism" Better than Wagner

RogersBrishen Rogers (Temple) has just posted on SSRN his article (forthcoming Texas L. Rev.) Libertarian Corporatism is Not an Oxymoron. Here's the abstract:

This paper, for a symposium on constitutional law and inequality, proposes a new model of labor law termed "libertarian corporatism." Under this model, the state would strongly encourage or even mandate collective bargaining at the occupational or sectoral level (as corporatism requires), while leaving workers near-unfettered choice as to bargaining representatives, and removing certain core legal constraints on workers’ concerted action (as a principled libertarianism requires). This model may ensure both equality and employee choice better than our existing "Wagner Model." Libertarian corporatism may also be a promising power-dispersion strategy in other fields--for example, it could help resolve conflicts over the use of user data by tech firms.

rb

February 27, 2016 in Labor Law, Scholarship | Permalink | Comments (0)

Monday, February 22, 2016

Cherry: The Big Picture of "Gig Economy" Work

CherryMiriam Cherry (SLU) just posted on SSRN her article (forthcoming Comparative Labor Law & Policy Journal) Beyond Misclassification: The Digital Transformation of Work. Here's the abstract:

The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include the growth of automatic management and a move toward ever more precarious work. To the extent that technology can help us realize an increase in skilled knowledge work that is a positive goal. It is questionable, however, if present forms of crowdwork extend that framework. In fact, some forms of the new crowdwork seem to be a throwbacks to a Taylorist deskilling of the industrial process, but without the loyalty and job security. These results are not inevitable, but we need to pay attention to them if we hope to arrest the race to bottom in labor standards online.

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February 22, 2016 in Scholarship, Wage & Hour | Permalink | Comments (0)