Monday, October 17, 2016

Lobel on the Gig Economy & LEL

LobelOrly 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.


October 17, 2016 in Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, September 20, 2016

Co-Authoring with Non-American Profs & Practitioners

TransnationalI 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.


September 20, 2016 in Employment Common Law, International & Comparative L.E.L., Workplace Trends | 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.


September 9, 2016 in Employment Common Law, Employment Discrimination, Scholarship, Workplace Trends | 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.


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!


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

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.


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

Tuesday, March 1, 2016

EEOC Sues for Sexual Orientation Discrimination

EEOC 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.


March 1, 2016 in Beltway Developments, Employment Discrimination, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Tuesday, January 12, 2016

Not Exactly Employment, But....

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.



January 12, 2016 in Workplace Trends | Permalink | Comments (0)

Friday, October 9, 2015

The Restorative Workplace

Deborah Thompson Eisenberg just posted her piece on The Restorative Workplace:  An Organizational Learning Approach to Discrimination. Here's the abstract:

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach — restorative practices — that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in the organization with a sense of ownership in and commitment to the mission of building an inclusive, egalitarian workplace. 

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!




October 9, 2015 in Workplace Trends | Permalink | Comments (0)

Thursday, September 10, 2015

Robots in the workplace

There is a very, very interesting article on 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. 

- Charlotte AlexanderCbd7fc5680db457f32f5d6f34c07610e

September 10, 2015 in Workplace Trends | Permalink | Comments (0)

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 DealIt 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. 


September 9, 2015 in Workplace Trends | Permalink | Comments (0)

Thursday, August 13, 2015

Rogers on "Sharing Economy"-Workers and Defining Employment

RogersBrishen Rogers (Temple) recently posted on SSRN his essay Employment as a Legal Concept. Here's the abstract to this timely piece:

The employment status of workers for “sharing economy” firms such as Uber, Lyft, TaskRabbit and Handy is becoming a major legal and political issue. This essay takes up that question, building on the ongoing cases against Uber and Lyft. Against most commentators, it first argues that the ambiguous legal status of Uber and Lyft drivers is not a symptom of outdated legal tests. Rather, that ambiguity reflects a deeper conceptual problem: that our laws lack a satisfactory definition of employment in the first place. The solution to that problem, the essay argues, lies in recognizing employment as a legal concept through and through, and thus recognizing that questions of employment status inevitably involve contestable value judgments. The Uber and Lyft cases, for example, present a conflict between two important sets of social goods: on the one hand, distributive justice and a more egalitarian political economy; on the other hand, the substantial welfare benefits promised by the companies’ innovations. While reasonable people will disagree, the essay argues that imposing employment duties would strike an appropriate balance between these goals — ensuring that the benefits of disruptive technologies are fairly shared with those whose labor makes those technologies profitable.


August 13, 2015 in Employment Common Law, Workplace Trends | Permalink | Comments (0)

Friday, July 31, 2015

Silicon Valley, Meet Labor Law

WhitneyThis is cross-posted from PrawfsBlawg with permission of the author, Heather Whitney (Bigelow Fellow, Chicago).

I worked on Google’s Global Ethics & Compliance team from 2007-2010 and at that time the thought of labor law having anything to say about the happenings of the Bay Area tech scene seemed unimaginable to most people – including those practicing law. Employment, sure, but not labor. (I’ve found this to be a bit true in academia as well – labor conjures up visions of coalminers or public school teachers but definitely not anybody working at tech companies.) Well, the other day a friend sent me a Wired article titled, “what happens when you talk about salaries at Google” and it reminded me of why that view can get companies into some real trouble.

The article itself is just a string of tweets from a former Google talking about what happened when she decided to conduct a salary transparency experiment at Google. Long story short, she and some coworkers got talking about salaries on the internal social network (I take it she’s talking about one of Google’s many internal email list, like misc), decided to make a spreadsheet where employees could add their own salary information, and then posted a link to the form on her internal profile.

The thing took off. Other people built the spreadsheet out to include fields on gender and a bunch of other stuff that made it possible to get even more out of the data, as it wont to happen when a bunch of smart people get going on something they find interesting (this quality is also a big part of what makes working at Google great). The next week the Googler who started the project was “invited” (I love that) to talk with her manager. Apparently her manager and the higher ups weren’t happy about the project. And, according to this Googler, her manager said “don’t you know what could happen?” And then something else interesting happened, though it takes a second to explain.

At Google, Googlers can give each other what are called “peer bonuses.” Basically, if someone else did something cool and you want to recognize them for it, you can easily click a few things, say a few words about why they’re great, and bam – the person gets $150 in their next paycheck. It’s pretty cool and, though my memory is hazy, people give them for all sorts of reasons. Someone helped you with a work project? Send away. Someone organized a fun bike ride or group outing? That can be peer bonus worthy, too. While the manager of the person receiving the award has to approve it, it was basically a sure thing. (NB: like the Googler writing, I also didn’t realize until reading this article that there was any manager approval of peer bonuses at all. No doubt because I, too, had never heard of one being rejected.) Anyway, while this Googler was receiving peer bonuses for creating this salary sheet, her manager was rejecting them all. Interestingly, while the Googler in question, a (I believe) black woman, was having her peer bonuses denied by her manager, a white man who was also involved in setting up the sheet was getting peer bonuses and those were all approved. Meanwhile, the spreadsheet continues, people use it to talk to their managers about getting raises, and some actually succeed in getting them.  

This entire story is full of labor law (and internal compliance training) issues, some easier than others. Here are a couple:

  • Could the company prohibit employees from using the internal system to talk about salaries? From creating a spreadsheet, using internal tools, that discusses that? What about prohibiting employees from putting up status messages that direct other employees to the spreadsheet?
  • Can a manager call an employee in for a meeting about her promotion of salary transparency? And if so, can the manager say “don’t you know what could happen” about it?
  • If the company has a peer bonus system where bonuses are virtually automatic though have nominally required manager approval, can a manager start rejecting bonuses if they are tied to the employee promoting salary transparency? What if bonuses are supposed to be given only for work-related activities (even though that hasn’t been enforced much, if at all, in the past)

Whether tech companies realize it or not, Section 7 rights are alive and well. And with the unionization of tech shuttle drivers and 140 Google Express workers seeking the same, I wouldn’t be surprised if labor issues start coming up more and more in the Bay Area – including, perhaps most interestingly, for those who we often forget might have them at all.


July 31, 2015 in Labor Law, Workplace Trends | Permalink | Comments (1)

Tuesday, April 28, 2015

Tenth Annual Colloquium Registration Open

WPBDeborah Widiss (Indiana) has good news to share:

The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.

 Registration is now open at:

 If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.

 The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.

 Please feel free to contact any of us with questions.

 We will look forward to hosting you in Bloomington!


April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Saturday, December 6, 2014

Zero-Hour Contracts: The Newest Way Workers Are Getting Screwed

0A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.

Ewan McGaughey (King's College London) has just posted on SSRN his essay Are Zero Hours Contracts Lawful? Here's the abstract:

Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?



December 6, 2014 in International & Comparative L.E.L., Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

SEALS call for participants

SEALS 2015The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.


October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

Work Hour Insecurity

In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity.  An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works.  The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work.   And more and more workers are struggling, particularly in service-sector jobs.  Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand. 

A recent New York Times article describes the effects of just-in-time scheduling:

  • "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
  • As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
  • An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."

The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions.  These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early.  These requirements are supposed to disincentivize just-in-time scheduling.  However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.

Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity.  In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.

-- Charlotte Alexander

August 8, 2014 in Wage & Hour, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Monday, July 7, 2014

Call for Papers

AalsRebecca Lee, Chair of the AALS Section on Labor Relations and Employment Law sends along the following call for papers:

AALS Section on Labor Relations and Employment Law

"Emotions at Work: The Employment Relationship During an Age of Anxiety"

2015 AALS Annual Meeting

January 2-5, 2015

Washington, DC

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.

The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns?

A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.

The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.

Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at by September 1, 2014. Authors of selected abstracts will be notified before October 1, 2014.

Looks like a great opportunity and a good program.


July 7, 2014 in Conferences & Colloquia, Faculty Presentations, Labor and Employment News, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Ninth Annual Colloquium Registration

WPBJust a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:


 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).


June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.


April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)