April 04, 2013
Bisom-Rapp and Sargeant on Age Discrimination in the UK and US
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN page proofs for their article, Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States, which appears in the Loyola University Chicago Law Journal. Susan just returned from a week in London, where she and Malcolm scoped out their newest project, centered on gender discrimination along the course of life, how it accumulates over time and disadvantages women not only as workers but as retirees. Here's the abstract for the Loyola Chicago article:
This article compares age discrimination law and practice in the United Kingdom (UK) and United States (US) to discern convergences and divergences in legal doctrine, the law's normative underpinnings, and societal outcomes. Each country at first blush appears to pursue age discrimination protection using a distinct model. Age bias law in Britain adheres to what might be termed the European approach. That approach, grounded in the EU's Framework Directive on Equal Treatment in Employment and Occupation, is relatively recent in Britain, dating to October 2006. One distinguishing characteristic of UK law is the possibility of employer-justified compulsory retirement.
In contrast to the UK, the legal prohibition of age discrimination in the US is over four decades old, embodied in the Age Discrimination in Employment Act of 1967 (ADEA). The American approach prohibits compulsory retirement programs in order to combat negative, age-based stereotypes about when and how older workers should exit the labor market. Over time, however, US Supreme Court decisions have greatly weakened the ADEA's protections, making it difficult for plaintiffs to make out a prima facie case of age discrimination, making it easier for employers to defend against suit, and complicating the government's enforcement efforts. Also, aggressive corporate downsizing, very laxly regulated in the US, increasingly affects older workers, leaving them without employment at a point in their lives when finding replacement work is most difficult or for some impossible.
Despite what may appear as great doctrinal contrasts, however, the age discrimination laws of the UK and the US converge in many respects. Both systems view age stereotyping as an ill to be cured. Both countries ultimately provide for inferior legal protections against age discrimination as compared to other forms of prohibited workplace bias. Finally, both approaches to age discrimination render workers vulnerable in their later working years even though each nation's laws arguably arrive there by a different route.
This article argues that the deficiencies plaguing both systems are traceable to the incursion of a distinct economic imperative, applicable only to older workers, on what should be a civil or human rights approach to their treatment. Putting age on an even footing with other forms of bias – for example, race and sex – is necessary if the law is to eliminate the harm it seeks to redress.
Looks great, and I can't wait to see the follow-up piece, too.
April 03, 2013
Recently Published Scholarship: St. John's LR Symposium
St. John’s Law Review, Volume 86, Number 2 - Spring 2012
Symposium: Worlds of Work: Employment Dispute Resolution Systems Across the Globe
- Paul F. Kirgis & David Gregory, Introduction
- Keynote Address: Theodore J. St. Antoine, The Moral Dimension of Employment Dispute Resolution, p. 391.
- Samuel Estreicher, Strategy for Labor Revisited, p. 413.
- William B. Gould IV, A Century and Half Century of Advance and Retreat: The Ebbs and Flows of Workplace Democracy, p.431.
- Julius Getman & Dan Getman, Winning the FLSA Battle: How Corporations Use Arbitration Clauses to Avoid Judges, Juries, Plaintiffs, and Laws, p. 447.
- George H. Cohen, Advancing Student Achievement in the United States Public Schools Through Labor-Management Collaboration: The FMCS’s Evolving Role in Education Reform, p.465.
- David L. Gregory & Michael Harary, A Comparative Assessment of Labor and Employment Dispute Resolution in the United States and United Kingdom from 2006 Through 2011, p. 485.
- Guido Carducci, The Importance of Legal Context and Other Considerations in Assessing the Suitability of Negotiations, Mediation, Arbitration and Litigation in Resolving Effectively Domestic and International Disputes (Employment Disputes and Beyond), p. 511.
- Ronald C. Brown, Comparative Alternative Dispute Resolution for Individual Labor Disputes in Japan, China, and the United States: Lessons from Asia?, p. 543.
- Elayne E. Greenberg, Overcoming Out Global Disability in the Workforce: Mediating the Dream, p. 579.
- Mary Kalich, Do You Need A Doctor’s Note? Lay Testimony Should be Sufficient Evidence for FMLA Leave Unless Compelling Counter Conditions Exist, p. 603.
- Jennifer Kelly, He Said, She Said: Sex Prosecutions and Spousal Privileges Under the Federal Rules of Evidence, p. 637.
- Nicole Lapsatis, In the Best Interests of No One: How New York’s “Best Interests of the Child” Law Violates Parents’ Fundamental Right to the Care, Custody, and Control of Their Children, p. 673.
- Daniel Mazzella, We’re on a Mission from God: Properly Interrupting RLUIPA’s “Equal Terms” Provision, p. 715.
April 01, 2013
Clarke on the Gross Confusion Deep in the Heart of Univ. Of Texas S.W. Med. Center v. Nassar
Brian S. Clarke (Charlotte School of Law) has posted a short essay on SSRN entitled: The Gross Confusion Deep in the Heart of Univ. Of Texas S.W. Med. Center v. Nassar.
Here's the abstract:
This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.
The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation is inherently absurd as every occurrence has a virtually infinite number of factual causes. Nassar provides the Court with a golden opportunity to eliminate the causal confusion that followed Gross and replace it with causal coherence.
To do so, this essay argues, the Court should explicitly adopt the unrecognized factual causation standard from Price Waterhouse: that but-for causation in the disparate treatment context is established when the employer’s consideration of a protected trait was a necessary element of the set of factors that caused the decision.
Very interesting, of course timely, given the prominence this issue has taken on in light of this upcoming U.S. Supreme Court Title VII retaliation case. Check it out!
Recently Published Scholarship
- Lawrence D. Rosenthal, The Supreme Court's Interpretation of the Fair Labor Standards Act's Anti-Retaliation Provision in Kasten v. Saint-Gobain Performance Plastics Corp.: Putting Policy Over Plain Language?, 64 Mercer L. Rev. 459 (2013).
- William R. Corbett, Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself, 62 American U. L. Rev. 447 (2013).
- Alexander J. Callen, Avoiding Double Recovery: Assessing Liquidated Damages in Private Wage and Hour Actions Under the Fair Labor Standards Act and the New York Labor Law, 81 Fordham L. Rev. 1881 (2012-13).
March 29, 2013
Barry on Exactly What Congress Intended? (ADAAA)
Kevin Barry (Quinnipiac University - School of Law) has posted on SSRN his article in the Employee Rights and Employment Policy Journal (Vol. 17, No. 1, 2013): Exactly What Congress Intended?
Here is the abstract:
The Americans with Disabilities Act (ADA) was passed by Congress and signed into law in 1990 with tremendous bipartisan support and high hopes. When President George H.W. Bush signed it, he called the law a "sledgehammer" to shatter a "shameful wall of exclusion". Unfortunately, for many people with disabilities experiencing discrimination on the job, the ADA turned out to be more of a rubber mallet. The Supreme Court, in a series of decisions in 1999 and 2002, gutted the ADA by narrowly interpreting its definition of "disability". In 2008, Congress fired back by passing the ADA Amendments Act [ADAAA] of 2008. This Article discusses the Congress-courts dialectic surrounding the ADA: from its passage in 1990, to the pit of Supreme Court jurisprudence, to the advocacy effort that swung the pendulum back to Congress. While judicial interpretations of the Amendments are just beginning to surface, they are, for the most part, exactly what Congress intended.
Kevin tells us that this piece is part of a larger education and outreach effort among several law school clinics, employee-side attorneys, and other interested groups, which is working to respond to some issues with respect to the ADAAA's implementation. Looks to be a short, user-friendly article that tells the story of the ADA's passage, its amendment in 2008, and its current interpretation by courts post-ADAAA. Check it out!
March 27, 2013
Sex(y?) Discrimination in Vegas
Thanks to Ruben Garcia for passing along this link to Ann McGinley's Slate article What Happened in Vegas? Why are Las Vegas bartenders now mostly women?. Here's an excerpt:
A decade ago about 80 to 85 percent of nightclub bartenders were men; today women represent about 60 percent of the club bartenders. [A similar dynamic is occurring with card dealers.]
Men could apply for jobs as cocktail servers either on the casino floors or in the nightclubs, but cocktailing, unlike bartending, is traditionally a woman’s job and continues to remain that way. * * * Even in lean economic times, men generally don’t apply for cocktail positions. This is somewhat surprising given that cocktail jobs are well-paid, especially at the high-end casinos. Although the hourly wage is not much to talk about, cocktail servers who work on the casino floor earn generous tips, which means that their annual incomes can exceed $100,000 a year. So why don’t men apply? One female human resources manager of a Nevada casino said that she has a skimpy bikini-like costume for a male applicant just in case a man applies so that she can demonstrate that her casino does not discriminate. The manager suggested that besides shielding the casino from liability for discrimination, the costume serves the purpose of discouraging men from applying for the jobs. And, she reported, men do not apply.
As Ann points out, it's all about female sex appeal, made possible by the Ninth Circuit's Jespersen v. Harrah's.
A few notes/comments:
- Fwiw, I'm not convinced that the costume is an iron-clad shield to Title VII liability, but I'll let others comment on that.
- Ruben helpfully reminds us that the 2013 Labor and Employment Scholarship Colloquium is in Las Vegas.
- Just to avoid any confusion: that's neither Ruben nor Ann in the photo.
March 25, 2013
Recently Published Scholarship: STLR Symposium on Whistleblowing
South Texas Law Review
Citizen Employees: Whistleblowers and Other Employees Acting in the Public Interest
- Richard Carlson, Foreward, 1.
- Miriam Cherry, Virtual Whistleblowing, 9.
- Orly Lobel, Linking Prevention, Detection, and Whistleblowing: Principles for Designing Effective Reporting Systems, 37.
- Geoffrey Christopher Rapp, States of Pay: Emerging Trends in State Whistleblower Bounty Schemes, 53.
- Sonny Eckhart, Postconference Reflector: A Nudged Solution to Securities Fraud, 81.
- Jarod S. Gonzalez, Whistleblower Laws, Workplace Safety and Healthm, and Scientific Laboratory Employees, 139.
Recently Published Scholarship
- Representative Louise Slaughter, Genetic Information Non-Discrimination Act, 50 Harvard J. Legis. 41 (2013).
- Kimberly A. Yuracko, Soul of a Woman: The Sex Stereotyping Prohibition at Work, 161 U. Pa. L. Rev. 757 (2013).
March 21, 2013
Bisom-Rapp on Why We All Should Go to Italy Next Spring
We posted here an announcement of the Eleventh Conference in commemoration of Prof. Marco Biagi. The Conference, organized by the Marco Biagi Foundation, took place in Modena (Italy) on 18 and 19 March 2013. Susan Bisom-Rapp (Thomas Jefferson) attended and presented, and I asked her to prepare a short description of the Conference for us, both to describe the Conference itself and also to talk about why the Conference might be of interest to American LEL professors. Here's her report:
Every year since 2003, the Marco Biagi Foundation has hosted an international conference in Modena, Italy devoted to international and comparative employment and labor relations. This year’s conference, The Transnational Dimension of Labor Relations: A New Order in the Making?, brought together scholars from Europe, Africa, and the Americas, who analyzed the challenges of regulating work, promoting labor standards, and addressing increasing economic inequality in the wake of the global economic crisis. Particular attention was given to new forms of transnational collective bargaining, emerging hard and soft law techniques to influence the conduct of transnational corporations, the difficulty of establishing fair conditions of work for migrants, and the lack of a clear hierarchy of law-making authority at the international level. Participants addressed these issues from a number of disciplines including law, industrial relations, economics, and human resource management.
Part of the University of Modena and Reggio Emilia, Italy, the Marco Biagi Foundation is also home to the International Doctoral Research School in Labour Relations, which promotes PhD work that is comparative and interdisciplinary. To advance the work of its own students, and establish links with PhD and post-doctoral students around the world, the Foundation launched its Young Scholars’ Workshop last year. This year, we heard and commented on papers from PhD students from Norway, Italy, Spain, South Africa, Austria, Estonia, and Hungary. The chance to provide feedback from an outsider’s perspective – that of an American law professor – was fun for me and, I hope, helpful for them. For me, this session has become a highlight of the annual conference.
Mike Zimmer (Loyola University Chicago) and I were first introduced to the Foundation’s annual conference in 2007 by our co-author Roger Blanpain (Universities of Leuven and Tilburg, Belgium and the Netherlands). Roger, a prolific scholar in the field of comparative labor and employment law, attends most years, as do some of the most influential scholars in that field, including Manfred Weiss (J.W. Goethe University, Frankfurt, Germany), Csilla Kollonay-Lehoczy (Central European University, Budapest, Hungary), Jacques Rojot, (University of Paris II – Panthéon Assas, France), Alan Neal (University of Warwick, U.K.), and Janice Bellace (The Wharton School, University of Pennsylvania). The opportunity for conversations and exchange with these scholars and others has kept me coming back to Modena annually since then. It has also led to my fruitful collaboration with Malcolm Sargeant (Middlesex University Business School, London, U.K.), with whom I have written several articles on comparative age discrimination law. Serving on the Foundation’s international council has helped me understand the challenges facing higher education in Europe. I recommend this kind of involvement to American legal scholars interested in a fresh perspective on the challenges and possible solutions to the problems we confront at home. I only worry that in this age of austerity and shrinking travel budgets, it will become increasingly difficult for those in the American legal academy to participate in conferences outside our borders. Finding ways to do it may take some creative planning, but, at least in my experience, it will be well worth the effort.
Many thanks, Susan!
March 19, 2013
Shinar on Public Employee Speech and the Privatization of the First Amendment
Adam Shinar (S.J.D. Candidate, Harvard Law School) has just posted on SSRN his forthcoming piece in the Connecticut Law Review entitled: Public Employee Speech and the Privatization of the First Amendment.
Here is the abstract:
Constitutional protection of public employee speech has been declining for the past forty years, yet the reason for the decline has remained elusive. This article puts forward a novel theory situating public employee speech in larger structural transformations in governmental organization. It identifies a “public/private convergence,” the main feature of which is that public officials are increasingly viewed as private employees, resulting in a significant erosion of their free speech rights. This erosion is exacerbated by rising levels of privatization and civil service reforms exhibiting the same mode of thought, that public employees are no different from private employees. These trends have far reaching First Amendment implications that up until now have remained largely unexplored.
Against this background, the article argues that the privatization of public employee speech doctrine should be reconsidered for three main reasons. First, it overlooks the ways in which the public sector does not operate like the market. Second, it risks eroding the unique norms and culture the civil service aims to foster. Finally, it undermines a system of internal checks on state power that are especially important given the reduction in external monitoring capacity. Accordingly, the article proposes two directions for reform: a doctrinal framework that resolves the problems with the Court’s current position, and a new governance framework that relies on internal regulatory channels to encourage public employee voice.
I have had the privilege of commenting on earlier drafts of this paper and it is one of the finest papers on public employment free speech law that I have read in quite a while. It is comprehensive, insightful, and seeks to answer a question concerning why public employee speech is being treated more like (less legally protected) private employee speech in the United States. Adam draws on a wide range of interdiscplinary scholarship for his findings and he concludes by seeking to establish broader First Amendment free speech protections for public employees so that they can speak out freely in the public interest.
Check it out!
Sullivan & Glynn on D.R. Horton
Charlie Sullivan & Tim Glynn (both Seton Hall) have just posted on SSRN their article (forthcoming 64 Alabama L. Rev. (2013)) Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution. Here's the abstract:
As interpreted by the Supreme Court, the Federal Arbitration Act has largely swept all before it, validating agreements to arbitrate almost all disputes, including those involving claims under statutes regulating the employment relation. That era may be nearing an end. The National Labor Relations Board recently held in In re D.R. Horton that employers may not compel employees to waive their NLRA right to pursue collective legal redress of employment claims. Instead, the NLRA mandates that some mechanism for concerted dispute resolution remain available in arbitral or judicial forums. Unsurprisingly, this decision has generated an enormous amount of litigation. Although the case itself is pending before the Fifth Circuit, courts across the country are now confronting Horton-based challenges to the enforcement of mandatory arbitration clauses in employment contracts. To date, they have generally rejected these challenges on various grounds.
This Article will explore why these courts are wrong and why agreements that bar concerted dispute resolution are indeed invalid. The Board’s articulation of labor law rights ordinarily is entitled to judicial deference. But such deference has been called into question in Horton itself in part because of a recent circuit court decision invalidating recess appointments to the Board. As we will demonstrate, however, no deference is necessary because Horton reflects the correctnot merely a reasonableinterpretation of the NLRA as well as its predecessor, the Norris-LaGuardia Act.
Moreover, although the Supreme Court has seemingly treated the Federal Arbitration Act as a “super-statute” that overwhelms all before it, the Court has simultaneously denied doing more than applying what textual analysis and interpretive conventions require. The Horton question will force the Court to confront the collision between what it says and what it does. Established doctrines of statutory interpretation, recently and resoundingly reaffirmed by the Court, dictate a contrary result. Indeed, to the extent the concerted activity mandate of federal labor law conflicts with provisions of the FAA, the former clearly supersedes the latter.
With apologies to Dr. Seuss, Horton meant what it said and said what it meant. Courts must follow, one hundred percent.
For what it's worth, I agree completely with Charlie and Tim about what the Court should do, but I do not expect that this is what the Court will do. As I have argued elsewhere, the Court is, in FAA cases, all too willing to subsume plain language to the Court's policy preference for arbitration. I suspect that the Court will do as it did in Concepcion, and find that the D.R. Horton rule would have the effect of discouraging employers from promulgating individual employment arbitration agreements and therefore is inconsistent with the FAA.
One might argue that Concepcion is distinguishable because it involved a potential conflict between the FAA and a state common-law doctrine (unconscionability) instead of a federal statute (NLRA). But I wouldn't read too much into this given the express language in the FAA Section 2 preserving state common-law defenses to arbitration agreements. If the Court in Concepcion was willing to erase that language, I see no reason why the Court will give the language of the NLRA any higher priority.
March 14, 2013
Bent on Saving Systemic Disparate Treatment from Wal-Mart
In our second installment on mitigating the effect of Wal-Mart, we have Jason Bent's (Stetson) new article, Saving Systemic Disparate Treatment by Exposing Hidden Priors, which he has just posted on SSRN. The abstract:
What remains of the systemic disparate treatment theory of discrimination after Wal-Mart Stores, Inc. v. Dukes? Is it now defunct, or can it be saved? This Article contends that the systemic disparate treatment theory can be saved only by identifying the flaws in its statistical foundation, and rebuilding that foundation anew with a recognition of the inescapable role of Bayesian priors. Recent scholarly efforts to understand systemic disparate treatment law can roughly be sorted into two strands – methodological and contextualist. In the methodological strand, scholars call attention to the inability of current statistical methodologies to support an inference of discrimination. In the contextualist strand, scholars argue that systemic disparate treatment theory should be conceptually expanded to impose liability on employers for wrongdoing located at the organizational level, rather than as simply an aggregation of individual-level claims. This Article aims to reconcile these divergent scholarly strands and, in the process, to rebuild systemic disparate treatment law. Taking a Bayesian view, the statistical shortcomings identified in the methodological strand are not fatal. Yet, the Bayesian view also provides conceptual space for the organizational approach advanced in the contextualist strand. After Wal-Mart, scholars have an opportunity to reshape this sorely misunderstood area of antidiscrimination law. To do so, legal scholars, social scientists, and statisticians will need to convince courts to acknowledge, embrace, and ultimately, to manage the vital role of Bayesian priors.
I'm always a sucker for arguments that seek to take the advantage of statistics, while still recognizing that it has limits and can benefit from other types on analysis. So check it out!.
March 13, 2013
Seiner on Weathering Wal-Mart
Joseph Seiner (South Carolina) has just posted on SSRN his article, Weathering Wal-Mart, which will be published in the Notre Dame Law Review. The abstract:
In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date, and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.
Instead, this Article attempts — for the first time — to find a solution to the problem created by Wal-Mart. The academic literature has yet to explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class-action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This paper offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This paper also situates these proposals in the context of the existing literature.
The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this paper asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass-employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. For the first time in the academic literature, this Article takes on that challenge.
Joe has always been one of the go-to people on procedure and employment law (much like Suja Thomas, as Rick's earlier post shows), so this is a must-read for those concerned about the effect of Dukes on employment cases.
Rosado Marzan on Organizing Unions in the U.S. with International Framework Agreements
César F. Rosado Marzán (Illinois Institute of Technology, Chicago - Kent College of Law) has posted on SSRN his forthcoming piece in the UC Irvine Law Review entitled: Organizing Unions in the U.S. with International Framework Agreements: An Exploratory Study.
Here is the abstract:
Union density continues to decline, while income inequality continues to climb. But while union density falls we have experienced the counterintuitive rise in international framework agreements (“IFAs”), or agreements signed by global union federations (“global unions”) and multinational corporations. IFAs can be construed to contain employer pledges to not put obstacles on workers who want to organize. Can a global employer’s pledge to not oppose workers’ organization facilitate their unionization? In an exploratory fashion, I interviewed union and multi-national firms that signed IFAs to better comprehend how these novel agreements can aid the organization of workers. The results of this exploratory study show that the organizational inroads vary from nonexistent to very modest, even with the employers’ pledges not to oppose unionization. Economic and political obstacles seem to significantly hinder union organization even when the employers sign IFAs. The article concludes that even though the organizational results of the cases were not entirely positive, the cases suggest that unions that think creatively and experiment with the IFAs beyond mere neutrality pacts could counter the economic and political roadblocks to unionization. Therefore, the article provides hypotheses for further research to clarify how IFAs can be more effective organizing tools and for unions to experiment with the global agreements.
I really like how Cesar went to the proverbial horse's mouth to interview those involved in such agreements in Germany and other countries (during hsi research leave in Europe last year). I think his insights will be very helpful going forward in deciding whether IFAs can play a meaningful in the post-Wagner Model world we now find ourselves in.
March 12, 2013
Many Workplace Prof Blog readers will recall Suja Thomas's presentation at January's AALS Conference / Employment Discrimination panel in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts. Since then, she has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making legal changes in these types of cases. During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.
That inspiration has resulted in my most recent article (co-authored with Mark Gerano; forthcoming 30 Hofstra JLEL (2013)) Oddball Arbitration. The abstract is below. I've also posted over on PrawfsBlawg an attempt to crowdsource other areas of the law in which the Court may be using cases with oddball facts to shape the law under the political radar. Check it out.
Congress passed the FAA in 1925 to resolve commercial disputes involving merchants. Since then, the Supreme Court has dramatically expanded the scope of the FAA and applied it in the employee and consumer settings. More recently the Supreme Court has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash. This article describes three oddball arbitration cases and argues that their atypical facts have permitted the Court to create legal rules that, while perhaps creating a just outcome in the oddball cases themselves, create unjust outcomes in the typical arbitration cases that much more commonly appear in the lower courts.
March 09, 2013
Recently Published Scholarship
- George Padis, Arbitration Under Siege: Reforming Consumer and Employment Arbitration and Class Actions, 91 Tex. L. Rev. 665 (2013).
- Robert Tananbaum, Grossly Overbroad: The Unnecessary Conflict over Mixed Motives Claims in Title VII Anti-Retaliation Cases Resulting from Gross v. FBL Financial Services, 34 Cardozo L. Rev. 1129 (2013).
Recently Published Scholarship: HLELJ
Hofstra Labor & Employment Law Journal
Volume 30, No. 1 - Fall 2012
- Michael J. Zimmer and Susan Bisom-Rapp, North American Border Wars: The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates.
- David L. Gregory, Ian Hayes, and Amanda Jaret, The Labor Law Jurisprudence of Wilma Liebman.
- Ann C. McGinley and Ryan P. McGinley-Stempel, Beyond the Water Cooler: Speech and the Workplace in an Era of Social Media.
- Sarah Andrews, Lactation Breaks in the Workplace: What Employers Need to Know About the Nursing Mothers Amendment to the FLSA.
- Ryan H. Nelson, Affirmative Action for LGBT Applicants & Employees: A Proposed Regulatory Scheme.
- Ryan Mainhardt and William Volet, The First Prong's Effect on the Docket: How the Second Circuit Should Modify the "McDonnell Douglas" Framework in Title VII Reverse Discrimination Claims.
- James R. Baez and Kerri E. Caulfielf, Drawing a Line in the Shifting Sand of Social Media: Attempting to Prevent Teachers from "Liking" a Student Outside the Classroom.
Recently Published Scholarship: Comparative Labor Law & Policy J.
Comparative Labor Law & Policy Journal
Volume 34, Number 2 - Winter 2013
Public Sector Collective Bargaining and the Distortion of Democracy: Do Public Sector Unions Have "Too Much" Power?
- Jeffrey H. Keefe, A Reconsideration and Empirical Evaluation of Wellington's and Winter's, "The Unions and the Cities".
- Martin H. Malin, Does Public Employee Collective Bargaining Distort Democracy? A Perspective from the United States
- Kazutoshi Koshiro, Does Public Sector Collective Bargaining Distort Democracy in Japan?
- Ryuichi Yamakawa, Japan's Collective Labor Relations Law in the Public Sector: Constitutional Conflict Between Union Rights and Democracy
- Véronique Chanut and Jacques Rojot, Does Public Sector Collective Bargaining Distort Democracy - The Case for France
- Mark Thompson and Sara Slinn, Public Sector Industrial Relations in Canada: Does It Threaten or Sustain Democracy?
- Berndt Keller, The Public Sector in the United States and Germany: Comparative Aspects in an Employment Relations Perspective
- Jens M. Schubert, Public Sector Collective Bargaining and the Distortion of Democracy: Do Public Sector Unions Have "Too Much" Power? - The German Perspective
- Theodore N. Tsekos, Structural, Functional, and Cultural Aspects of the Greek Public Administration and Their Effects on Public Employees' Collective Action
- Dimitrios Kremalis, Public Sector Collective Bargaining and the Distortion of Democracy: Do Public Sector Unions Have "Too Much" Power?
- Lorenzo Bordogna, Employment Relations and Union Action in the Italian Public Services - Is There a Case of Distortion of Democracy?
- Adriana Topo, Public Sector Collective Bargaining and the Distortion of Democracy: The Italian Case
- Shireen Ally, From Servants to Workers: South African Domestic Workers and the Democratic State, reviewed by Kelly I. Pike.
March 07, 2013
New Issue of ILR Review Out
The most recent issue of the Cornell University School of Industrial and Labor Relations Schools' ILR Review is now available online. It is chocked full of timely and relevant articles of all aspects of the domestic and international workplace.
Here are the Contents of Volume 66, No. 1:
Is the Clock Still Ticking? An Evaluation of the Consequences of Stopping the Tenure Clock. By Colleen Flaherty Manchester, Lisa M. Leslie, and Amit Kramer
Extra Status and Extra Stress: Are Promotions Good for Us?By David W. Johnston and Wang-Sheng Lee
Temporary Contracts and Work–Family Balance in a Dual Labor Market. By Rocio Bonet, Cristina Cruz, Daniel Fernández Kranz, and Rachida Justo
Coal Mine Safety: Do Unions Make a Difference?By Alison D. Morantz
Unionization and Certified Sickness Absence: Norwegian Evidence. By Arne Mastekaasa
Labor Unions, Alternative Forms of Representation, and the Exercise of Authority Relations in U.S. Workplaces. By John Godard and Carola Frege
Union Density and Varieties of Coverage: The Anatomy of Union Wage Effects in Germany. By Bernd Fitzenberger, Karsten Kohn, and Alexander C. Lembcke
The Hidden Costs of High-Performance Work Practices: Evidence from a Large German Steel Company. By Bernd J. Frick, Ute Goetzen, and Robert Simmons
Computerization and Skill Bifurcation: The Role of Task Complexity in Creating Skill Gains and Losses. By Avner Ben-Ner and Ainhoa Urtasun
Social Pacts in Europe: Emergence, Evolution and Institutionalization.Edited by Sabina Avdagic, Martin Rhodes, and Jelle Visser. Reviewed by Paul Teague.
Parties, Elections, and Policy Reforms in Western Europe: Voting for Social Pacts.By Kerstin Hamann and John Kelly. Reviewed by Oscar Molina.
Social Failures of EU Enlargement: A Case of Workers Voting with Their Feet.By Guglielmo Meardi. Reviewed by Dorothee Bohle.
Models of Economic Liberalization: Business, Workers, and Compensation in Latin America, Spain, and Portugal.By Sebastián Etchemendy. Reviewed by Sebastián Royo.
The Strange Non-Death of Neoliberalism. By Colin Crouch. Reviewed by Mark Blyth.
Quiet Politics and Business Power: Corporate Control in Europe and Japan.By Pepper Culpepper.Reviewed by Alexander Kuo.
The International Handbook of Labour Unions: Responses to Neo-Liberalism.Edited by Gregor Gall, Adrian Wilkinson, and Richard Hurd. Reviewed by Edward Webster.
March 06, 2013
Recently Published Scholarship: BJELL
Berkeley Journal of Employment and Labor Law
- Charlotte S. Alexander, Explaining Peripheral Labor: A Poultry Industry Case Study, 33 Berkeley J. Emp. & Lab. L. 353 (2012).
- Ming H. Chen, Where You Stand Depends on Where You Sit: Bureaucratic Politics in Federal Workplace Agencies Serving Undocumented Workers, 33 Berkeley J. Emp. & Lab. L. 227 (2012).
- Leora F. Eisenstadt, The N-Word at Work: Contextualizing Language in the Workplace, 33 Berkeley J. Emp. & Lab. L. 299 (2012).
- David Feller Annual Memorial Labor Law Lecture: Craig Becker, The Continuity of Collective Action and the Isolation of Collective Bargaining: Enforcing Federal Labor Law in the Obama Administration, 33 Berkeley J. Emp. & Lab. L. 401 (2012).