Friday, June 23, 2017
Jonathan Rauch has written The Conservative Case for Unions in the Atlantic. Congratulations to Matt Dimick (Buffalo) for a prominent mention, and for Rauch's discussion of Dimick's work on the Ghent System. Here's an excerpt from the article:
All workers do not suffer equally from the decline of unions: In today’s fragmented, hypercompetitive, and globalized workplace, high-powered professionals enjoy more autonomy and respect than ever. Less educated workers, by contrast, have lost agency and, in many cases, dignity. Edward Luce of the Financial Times puts the problem well in his new book, The Retreat of Western Liberalism: “In survey after survey, the biggest employee complaint is being treated with a lack of respect. Whether they work in an Amazon warehouse, serve fast food, or sit in a … customer-service cubicle, they feel diminished by how they are treated.” That has implications not just for the well-being of workers, but for the health of capitalism and even of democracy.
In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself.
Monday, June 19, 2017
The ABA Journal of Labor & Employment Law now welcomes submission of manuscripts for possible publication in Volume 33 of the Journal for 2017-2018. The Journal, whose subscribers include the 20,000-plus members of the ABA Section of Labor & Employment Law, seeks articles of current practical interest to labor and employment attorneys written by attorneys, judges, government officials, and professors. Articles should not exceed forty pages with both text and footnotes double-spaced. Academics may submit manuscripts of immediate relevance to practicing attorneys derived from longer, previously-published articles if they are within this length limitation. Manuscripts should be submitted in Microsoft Word as an attachment to an e-mail sent to firstname.lastname@example.org. Inquiries to the Faculty Co-Editors, Stephen F. Befort and Laura J. Cooper, may also be sent to that e-mail address.
Friday, May 5, 2017
William Baumol (econ.; NYU, Berkeley, Princeton) died yesterday. He informed the way many of us think about higher-ed financing and professional labor. I am re-posting here an excerpt from Dean Dad's tribute this morning:
Longtime readers know that I consider [Baumol's] signature contribution to economic thought -- Baumol’s Cost Disease -- one of the foundational truths of higher education. (The same could be said for health care and live entertainment.) He waited until late in life to commit the idea to book form; his book The Cost Disease should be required reading for anybody who presumes to comment or work on the economics of higher education....
His idea is generally downplayed or ignored in discussions of higher ed financing. That’s everyone’s loss. He never really solved the issue, but he gave us a map to understand it. That’s a genuine contribution. Well done, sir.
Baumol’s insight helps us understand, too, the broad-based assault on the professions. Why are “disruptors” so intent on undermining the educated professional middle class? Because until now, people in those jobs were able to demand significant salaries due to scarcity. If you’re the first to break that scarcity, whether through automation, disaggregation, or some other variation, you can hoover up those gains for yourself. Which is exactly what’s happening.
When you break the link between labor and production, it becomes much easier to hoard value in a few hands. We’re only beginning to grasp the implications of that.
Friday, March 17, 2017
Jeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:
Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.
This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.
This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.
Thursday, March 16, 2017
Last night Kathy Stone (UCLA) served on a panel (moderated by Steven Greenhouse) at the Zocalo Public Forum in downtown Los Angeles on the Topic: Does Globalization Only Serve the Elites? She took the position that globalization as currently structured primarily helps elites, and that here in the U.S., we need to introduce redistributional social policies to ensure that working people and other disadvantaged groups share in globalization’s benefits. The event was taped and will air on C-Span in the near future.
Wednesday, March 15, 2017
Charlotte Garden (Seattle U.) has just published in The Atlantic Unions Are Wondering: Resist or Assist? Congrats to Charlotte for taking this topic -- which we all know is important -- to a wider audience (or, as she said in a Facebook post: "in which I convinced The Atlantic to let me write about NLRA Section 8(b)(4) for them"). Here's an excerpt:
The first month of the Trump administration was mostly a discouraging one for labor unions. Since taking office, the president has frozen federal hiring (though he did pledge to hire 15,000 border patrol agents) and restated his support for a national “right to work” law that would disrupt unions’ funding mechanisms. He also sought the confirmation of Andy Puzder, a fast-food CEO who’s not fond of minimum-wage or overtime rules, to head the Department of Labor, only to see him withdraw amid public outcry.
Still, some within the labor movement have cheered Trump’s use of the presidential bully pulpit to harangue employers who send jobs overseas, and voiced optimism about Trump’s stated desire to “buy American and hire American.”
This has left many labor unions with a decision about how best to serve their members going forward: Should they try to get along with Trump, in the hope that they will be able to help guide his efforts to court working-class voters? Or should they take to the streets alongside progressives calling for workplace-based actions, like the recent nationwide strikes by women and by immigrants?
Friday, March 10, 2017
Last week's The Economist ran a couple of stories on how "gender budgeting" can help persuade governments to pay more than lip service to women's rights. Below is an excerpt from the summary Making Women Count; an extended-play version is Tax is a Feminist Issue: Why National Budgets Need to Take Gender into Account.
... [S]ome policymakers have embraced a technique called gender budgeting. It not only promises to do a lot of good for women, but carries a lesson for advocates of any cause: the way to a government’s heart is through its pocket.
At its simplest, gender budgeting sets out to quantify how policies affect women and men differently. That seemingly trivial step converts exhortation about treating women fairly into the coin of government: costs and benefits, and investments and returns. You don’t have to be a feminist to recognise, as Austria did, that the numbers show how lowering income tax on second earners will encourage women to join the labour force, boosting growth and tax revenues. Or that cuts to programmes designed to reduce domestic violence would be a false economy, because they would cost so much in medical treatment and lost workdays.
Partly because South Korea invested little in social care, women had to choose between having children, which lowers labour-force participation, or remaining childless, which reduces the country’s fertility rate. Gender budgeting showed how, with an ageing population, the country gained from spending on care. Rwanda found that investment in clean water not only curbed disease but also freed up girls, who used to fetch the stuff, to go to school. Ample research confirms that leaving half a country’s people behind is bad for growth. Violence against women; failing to educate girls properly; unequal pay and access to jobs: all take an economic toll.
Sunday, February 26, 2017
Kathy Stone (UCLA) has just published Unions in the Precarious Economy:
How collective bargaining can help gig and on-demand workers (American Prospect, 2/21/17). In it, she discusses various types of precarious workers, including workers in the retail, restaurant, and hospitality industries, as well as workers who perform "gigs" as independent contractors for internet platform companies. She gives examples to show how various types of precarious workers can benefit from forming unions and bargaining collectively. Here's an excerpt:
The various forms of on-demand work tend to defeat the protections of our system of labor regulation, which assumes that employees have regular payroll employment. Seemingly, unions are also not much help, since they, too, are based on the assumption of regular jobs. But if we dig a little deeper, there is a long history of unions protecting their members from employers’ efforts to force workers to bear all the risks and costs of fluctuating demand. This is true in industries as varied as construction, airlines, hotels, and entertainment.
If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important. Some of these are unions that organize and collectively bargain under the terms of the National Labor Relations Board. But others, in the world of so-called alt-labor, use worker centers, associations, and other worker-empowerment strategies that are not technically unions. If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important.
Wednesday, November 16, 2016
One of my favorite higher-ed bloggers, Matt Reed (aka "Dean Dad"), posts today on the disconnect between the increasing decriminalization private-sector drug testing, and the consequent labor-market distortions. Here's an excerpt; his entire post When Did We Decide That? is well worth the read:
Without ever really having the conversation, as a society, we seem to have decided to outsource the war on drugs to private employers.
Referenda legalizing marijuana for recreational use passed in several states, having already passed in several others. It’s legal for documented medicinal use in many more, and I’m told that getting the relevant documentation is less strenuous in some places than others. The culture seems to be saying, albeit in stages and regionally, that it has better things to worry about.
But during the same period that many state legal barriers have fallen, employer drug screening has become widespread.
In talking with some local employers about the gaps they’re struggling to fill, I’ve heard repeatedly that the single biggest barrier to finding good people is getting candidates who can pass a drug test. Tests snag an alarming number of people. That’s especially true in the jobs that don’t require graduate degrees but that do pay pretty well, such as the skilled trades.
Monday, October 17, 2016
Orly Lobel (San Diego) has posted on SSRN her article (forthcoming U. San Francisco L. Rev.) The Gig Economy & The Future of Employment and Labor Law. The article is part of a duo – she has a longer article forthcoming in Minn. L. Rev. called The Law of the Platform which looks at a wide variety of sharing companies and their regulatory challenges. Here's the abstract of the Gig Economy article:
In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.
Tuesday, September 20, 2016
I just uploaded my most recent article, Transnational Employment Trends in Four Pacific Rim Countries, 34 UCLA Pacific Basin Law Journal ___ (forthcoming 2017) (co-authored with Lia Alizia, Masako Banno, Maria Jockel, Melissa Pang, and Catherine Tso). I mention this not because this is a groundbreaking work of legal scholarship, but instead to encourage others to consider co-authoring scholarship with non-American faculty members and practitioners. This article, for example, had its genesis in a panel I served on at a LawAsia Employment Conference. I find it rewarding to bring together a disparate group of folks to pool their interest and expertise in topics related to labor/employment law, and a huge side benefit is creating relationships that can far outlast a specific project.
Friday, September 9, 2016
Jon 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.
Friday, July 29, 2016
David 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.
Tuesday, July 19, 2016
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!
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, March 30, 2016
Our 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.
Tuesday, March 1, 2016
The EEOC issued a press release today, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:
The federal agency's Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
These cases are an outgrowth of the agency's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC held that Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation because:
(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit. Accepting it would mean that the courts could stop struggling with trying to distinguish between sex stereotyping cases that are cognizable because they are really about sex and sex stereotyping cases that are not cognizable because they are about sex but also sexual orientation.
Tuesday, January 12, 2016
A very interesting post on SSRN by Benjamin Edelman, Michael Luca, and Dan Svorsky entitled Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment. Here's the abstract:
Online marketplaces increasingly choose to reduce the anonymity of buyers and sellers in order to facilitate trust. We demonstrate that this common market design choice results in an important unintended consequence: racial discrimination. In a field experiment on Airbnb, we find that requests from guests with distinctively African-American names are roughly 16% less likely to be accepted than identical guests with distinctively White names. The difference persists whether the host is African-American or White, male or female. The difference also persists whether the host shares the property with the guest or not, and whether the property is cheap or expensive. We validate our findings through observational data on hosts’ recent experiences with African-American guests, finding host behavior consistent with some, though not all, hosts discriminating. Finally, we find that discrimination is costly for hosts who indulge in it: hosts who reject African-American guests are able to find a replacement guest only 35% of the time. On the whole, our analysis suggests a need for caution: while information can facilitate transactions, it also facilitates discrimination.
The quantification of the costs of owners for indulging their taste for discrimination is interesting, and suggestive of the difficulties of eradicating bias. Not only is the article a useful addition to the literature on bias in commercial transactions but it also serves as a caution to those who view internet-based applications as providing an important corrective. As the article suggests, Amazon and Ebay provide anonymity, which should prevent most kinds of discrimination. Airbnb, in contrast, provides sufficient information for each side in a transaction to know (or at least perceive) the race of the counterparty. It's not so clear to me how this applies -- or doesn't --to more serviced-based transactions, but it's worth keeping an eye on.
Friday, October 9, 2015
Deborah Thompson Eisenberg just posted her piece on The Restorative Workplace: An Organizational Learning Approach to Discrimination. Here's the abstract:
Merging research from the fields of employment law, organizational management, and cognitive psychology, this article analyzes how restorative practices can facilitate an organizational learning approach to workplace discrimination. Proactively, restorative dialogue helps to build social capital, reduce explicit and implicit biases, and cultivate a shared commitment to egalitarian norms. Reactively, restorative practices can manage defensive routines often triggered by discrimination complaints and provide a process that can transform conflict into greater understanding and change. A restorative approach makes it more likely that the individuals involved — and the larger organization — can repair the harms caused by discrimination, correct systemic issues underlying the problem, and learn to prevent inequities in the future.
I'm looking forward to reading it!
Thursday, September 10, 2015
There is a very, very interesting article on Wired.com by Emily Dreyfuss about her experience teleworking via an iPad robot on wheels. I haven't thought deeply about technology in the workplace, so this article was rather mind-blowing for me, and opens up all sorts of avenues for employment law inquiry. Ms. Dreyfuss discusses, for example, how violated she felt when a co-worker moved or touched her robot without her permission; how freeing it felt to be very pregnant at her home yet not pregnant at all in her robot incarnation at work; how she and her co-workers had to negotiate accommodations to account for her robot's mobility or lack thereof. Harassment law?!? Identity at work?!? Analogs to disability law?!? Fascinating.
Wednesday, September 9, 2015
1. There's an interesting article in the Chronicle of Higher Education on an antitrust suit challenging an alleged no-poaching agreement between Duke and UNC. Cooperation or Collusion? Lawsuit Accuses Duke and UNC of Faculty Non-Poaching Deal. It may not match the hype about the Silicon Valley no-poaching litigation, but it does strike pretty close to home. And, crediting the Chronicle's report, there's apparently a dispute about whether the schools have a policy or just a practice. Conscious parallelism, anyone. Not to mention the reality that there is some movement between the professoriat at the two universities.
2. Jonathan Harkavy has posted his always-interesting annual review of Supreme Court employment decisions.