Wednesday, March 27, 2013
Thanks to Carol Furnish for sending us this TRAC Report on a drop in civil rights lawsuits. As you can see from the excerpt below, claims are down on both a monthly and annual basis. The claim rate by far is the highest in D.C., followed by the Northern Districts of Alabama and Florida and the Sourthern District of New York.
The latest available data from the federal courts show that during February 2013 the government reported 950 new lawsuits filed under the category of Employment Civil Rights, according to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC). This number is down 7.9 percent from the previous month and is 13.2 percent lower than the same period one year ago. Such lawsuits are mainly filed for employment-related civil rights discrimination on the basis of race, gender, national origin, disability, age and religion. Read the full report, including a list of those districts in which lawsuits of this kind were filed with the greatest rates relative to population.
Geoffrey Fowler writes in this morning's Wall Street Journal You Won't Believe How Adorable This Kitty Is! Click for More! Companies Hire 'Ethical Hackers' To Dupe Employees; Crutches as Props. Here's an excerpt:
"Check out these kitties! :-)" read emails featuring the photo of a Turkish Angora cat with a purple mohawk, sent to nearly two million cubicle dwellers so far. It includes an attachment or link promising more feline photos. Those who click get a surprise: stern warnings from their tech departments.
The ... email is a simulated cyberattack. It is among the ploys companies are using to dupe employees into committing unsafe computing as a way to train them not to be so easily fooled.
Saturday, March 9, 2013
Rethinking Workplace Regulation: Beyond the Standard Contract of Employment
Editors: Katherine V.W. Stone and Harry Arthurs
(Russell Sage Foundation Press, 2013)
Contributors: Takashi Araki, Harry Arthurs, Thomas Bredgaard, Bruno Caruso, Alexander J.S. Colvin, Mark Freedland, Morley Gunderson, Thomas Haipeter, John Howe, Robert Kuttner, Julia Lopez Lopez, Keisuke Nakamura, Michio Nitta, Anthony O’Donnell, Michael Rawling, Ida Regalia, Katherine V.W. Stone, Kendra Strauss, Julie Suk, and
This volume, composed of chapters by leading scholars from ten countries representing eight disciplines, addresses the impact of globalization, technological change, new management HR strategies, and the financial crisis on the nature of employment relationships in advanced economies. It takes as it premise the fact that the employment relationship has undergone a profound transformation in the past 20 years. For most of the 20th century, employment was built around the standard employment contract, a social practice as well as a legal construct that assumed that workers would be employed with a single firm for an extended period of time, and that they would be provided with decent wages and benefits, and given reliable advancement opportunities within their employer’s internal labor market. That assumption has become untenable. Today many employers have found it to their advantage to outsource work and to reduce their core labor force by utilizing new recruits or temporary workers. They seek to lower labor costs by curtailing pay and benefits and breaking the link between pay and length of service. They are also expanding the use of “project work,” bringing in specialized skilled workers on an as-needed basis rather than developing skills in their own workforce. As a result, precarious employment is becoming common as workers move from the standard employment contract to temporary, part-time and agency work or to self-employment. These developments are documented in an appendix that brings together data from international and domestic sources.
The changes in the nature of employment have undermined many public policies and labor market practices that developed before and after the Second World War. In most industrial countries, collective bargaining arrangements, employment laws, workplace pensions, social security, health insurance and other social benefits assumed that workers will remain with a single employer for a protracted period. Job security has been typically protected through seniority and notice provisions and/or prohibitions against arbitrary or unjust dismissal, and workers have been insulated from the consequences of unemployment through a contributory insurance system. Finally, unions in most countries organize workers on a firm or sectoral basis, on the assumption that their members’ employment with the firm or within a sector is stable and on-going.
In response to the transformation in the nature of employment relations, many countries are experimenting with new regulatory responses to try to balance workers’ security with firms’ demand for flexibility. These experiments include “flexi-curity” strategies, new schemes of social protection, revised legal concepts of contract, innovative approaches to union organization and firm-based “total HR management”, and regional initiatives to stabilize local labor markets. This volume reports on some of these recent experiments, many of which are too new to have proven themselves. Moreover, they have been conducted in specific national contexts that it may be difficult to replicate elsewhere. Nonetheless, an important finding of our project is that some new labor regulatory and labor market policies are developing and that it is important for national policy makers to inform themselves about how other countries are addressing quite similar problems. Hopefully, new ideas derived from cross-national comparisons will inspire them to try things that are not part of mainstream thinking in their own country.
Monday, March 4, 2013
[T]his article demonstrates how extreme economic inequality in this country exacerbates the insecurity most people face. Four areas of labor and employment law are explored to show the risks workers carry and how economic inequality heightens them. While the increasingly globalized economy, and its resulting increase in business volatility, has contributed to economic inequality, in the United States much of that inequality is the consequence of government action and inaction. Government policy has moved from the goal of decreasing inequality after World War II to increasing it in the last forty years. That this has gone unchallenged until the Great Recession is the result of a general decline in focus on inequality in society generally, but also by many academic disciplines. The collective good has lost out to an idealized view of individualism, individualism divorced from the reality of the lives most people lead.
The richest segment of society has invested, and continues to invest, considerable effort to reinforce our focus on narrow individualism and to gain influence in government policy making. While that effort has been undertaken quite broadly, the investment in election outcomes has led to a bidding war between the two parties for campaign and electioneering money. In Citizens United, the Supreme Court opened unlimited electioneering spending to individuals, corporations and other organizations. The government has lost the power to regulate the present “gift economy” in Washington that now drives the establishment of government policy: Buying access to policy makers is not, as a matter of constitutional law, corruption or its appearance and so it cannot be regulated.
Recapturing public policy from the undue influence of money will be quite difficult in face of Citizens United. Further, our politicians and policy makers, without regard to party affiliation, fear change in the status quo and so far resist reforms that are possible even within the tight constraints of Citizens United. The article will discuss the work being done in several academic disciplines to refocus on economic inequality. But a change in academic focus is only one small step in the right direction. Given the momentum supporting the present system, it may take a broad-based social movement to force changes in election spending. That is a prerequisite for government policymakers to escape the overwhelming role that money now plays in establishing national policy to allow them to once again address the real needs of our nation.
Thursday, January 24, 2013
This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.
One of Bill's critical arguments is that the law school crisis is largely a labor market issue: too few law school graduates chasing too few jobs and a mismatch between the skill sets legal employers need and the skill sets that law schools provide.
[T]he financial viability of law schools depends upon three interrelated factors: (a) students wishing to enroll, (b) an ability to pay, and (c) professional employment upon graduation. Of these factors, the professional employment is the most important because, if present, the first two factors will take care of themselves.... If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the gradutes of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement.
If you plan to be involved in legal education for more than the next 3-5 years, I would highly recommend reading this article.
Monday, January 21, 2013
From Katharine Brooks at Psychology Today:
The recent story involving Notre Dame football player Manti Te’o’s fake internet girlfriend has brought the term “catfish” to a mainstream audience. The Urban Dictionary defines catfish as “someone who pretends to be someone they're not using Facebook or other social media to create false identities, particularly to pursue deceptive online romances.” But the loathsome practice of catfishing can also be applied to individuals who pretend to be employers and set up false identities to deceive or steal from vulnerable job seekers.
The least damage a catfish job scammer will do is waste your time. The worst is that they will empty your bank account and steal your identity. Catfish jobs are often phishing scams: thinly veiled attempts to get you to part with personal information that can then be used to steal your identity. Therefore, do not send your credit card numbers, social security number, birthdate, etc., unless you are absolutely sure the company and the opportunity are legitimate.
Wednesday, December 5, 2012
Congratulations to Michelle Miller and Jess Kutch, friends of the blog, who have just officially launched Coworker.org and its first official petition campaign on behalf of a fired Walmart worker in Arkansas.
Here is what I wrote about Coworker.org in my recent paper considering alternative models to the existing Wagner Model of labor law in the United States:
[Coworker.org] is an online platform that puts the power of collective bargaining into the hands of all workers, all over the world. It represents a scalable departure from traditional union organizing by providing ordinary people with online tools and training to organize their co-workers and advocate for changes on the job.
When coworker.org launches, it will be a petition-based internet service. The worker’s initial point of entry will be the creation of a petition centered on the change they would like to see in their workplace and would target their bosses. The process of procuring fellow employees to sign the petition would be how these employees would form their organizing committees going forward . . . [B]y using social media “share” functions on services like Facebook and Twitter, workers will be able begin to promote their workplace campaigns and gather coworker interest in the same workplace issues.
It is a fabulous idea which responds perfectly and timely to the challenges facing worker rights organizations in our global, mobile, and tech-savvy economy. Check out the site and if the spirit moves you, sign the petition to get the Walmart worker her job back!
Wednesday, November 14, 2012
Thanks to the good folks over at the U.S. Office of Special Counsel (OSC) for bringing to our attention that Congress just passed landmark legislation to strengthen protections for federal employees who blow the whistle on waste, fraud, and abuse in government operations.
The Whistleblower Protection Enhancement Act (WPEA) (S. 743) passed the U.S. Senate last night, and will be presented to the President for his signature soon. The House of Representatives passed identical legislation in September of this year.
Specifically, the WPEA provides OSC with additional tools to protect federal employees from unlawful retaliation. Provisions include:
• Overturning legal precedents that narrowed protections for government whistleblowers;
• Giving whistleblower protections to employees who are not currently covered, including Transportation Security Administration officers;
• Restoring the OSC’s ability to seek disciplinary actions against supervisors who retaliate; and
• Holding agencies accountable for retaliatory investigations.
Like OSC, I commend Congress and the President for promoting government accountability through enactment of this legislation. The hope is that federal employees will now be more willing to become the vanguard of the citizenry when it comes to shedding light on government abuse and waste, thereby ensuring more accountable and transparent government for all of us.
Thursday, November 8, 2012
This Psychology Today article describes why performance appraisals don't work. The article is sketchier on what should be substituted.
There are some fundamental problems with negative criticism, regardless of whether we clothe it politely as "constructive." First, [Tony] Schwartz contends, criticism "challenges our sense of value. Criticism implies judgment and we all recoil from feeling judged." Indeed, psychologists such as Daniel Goleman contend that threats to self-esteem and sense of self-worth in the form of criticism can feel like threats to our survival.
Part of our resistance to positive reactions to negative feedback is the way our brains work. Neuroscientists have clearly identified that our brains are fundamentally protective, defensive mechanisms. If your ego and sense of self is threatened, your brain unconsciously will act to protect and defend, either actively or passively.
Nowhere does negative or constructive criticism appear more frequently than in performance reviews of employees. The prevailing theory is that criticism, which invariably is part of the performance review, will improve the employee's performance, and in addition the employee will positively welcome it. Nothing can be further from the truth. The reality is that the traditional performance appraisal as practiced in the majority of organizations today is fundamentally flawed, and incongruent with our values-based, vision-driven and collaborative work environments.
Thursday, November 1, 2012
Nepotism can have advantages and disadvantages. For example, hiring relatives is easy and can lead to greater trust (what we call “swift trust”) if the relations get along and share a common purpose. Where nepotism becomes problematic is when non-relative employees feel that there is unfair favoritism, and when relatives are hired over more competent non-relatives. Unfortunately, there has been very little research on nepotism in the workplace.
Find a Therapist
Our research program is among the first investigating people’s perceptions of nepotistic practices in the workplace. For example, we have found that there are individual differences in perceptions of nepotism, with some people being accepting of nepotistic practices – thinking it is perfectly fine to have preferential treatment of relatives (“well, she is the boss’s daughter…”), and others completely rejecting of any sort of favoritism.
What we are finding, however, is that people tend to believe that there is favoritism whenever a relative is hired, regardless of whether they tolerate nepotism or not. Even when a relative is the most qualified person for the job, coworkers tend to believe that it was their family relationship, rather than their qualifications, that got the person the job.
What we intend to examine next is the impact that perceptions of nepotism may have on employee performance, motivation, and decisions to stay with the company.
Tuesday, October 30, 2012
Volume 34, Number 1 Fall 2012
- Einat Albin, Introduction: Precarious Work and Human Rights, p. 1.
- Nicola Kountouris, The Legal Determinants of Precariousness in Personal Work Relations: A European Perspective, p. 21.
- Bernd Waas, A Quid Pro Quo in Temporary Agency Work: Abolishing Restrictions and Establishing Equal Treatment-Lessons to Be Learned from European and German Labor Law?, p. 47.
- Guy Davidov, The Principle of Proportionality in Labor Law and Its Impact on Precarious Workers, p. 63.
- Kamala Sankaran, The Human Right to Livelihood: Recognizing the Right to be Human, p. 81.
- Judy Fudge, Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers, p. 95.
- Virginia Mantouvalou, Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor, p. 133.
- Deirdre McCann, New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms, p. 167.
- Einat Albin, Human Rights and the Multiple Dimensions of Precarious Work, p. 193.
- Guy Mundlak, Human Rights and Labor Rights: Why Don't the Two Tracks Meet?, p. 217.
Thursday, October 18, 2012
Ellen Cushing has written an extensive and nuanced essay in East Bay Express discussing, among other things, worker activism in San Francisco's sex industry. Here's an excerpt; the entire essay is worth reading.
If the East Bay's new sex-work community has a nucleus, it's probably the legendary downtown San Francisco peep-show The Lusty Lady, which unionized in 1996, became a cooperative in 2003, and is still the only business of its kind in the world to be fully unionized and worker-owned. That's where [Jolene] Parton said she "found female community for the first time," and where many people I spoke to said they first become steeped in the sex-positive, activist-oriented, third-wave-feminist ethos that underpins the local sex-workers' movement.
It's also a symbol just how long activism and sex work have been linked in the Bay Area. San Francisco was where the American sex-workers' rights movement first got started, according to activist and sex worker Carol Leigh; it was in fact Leigh herself who first coined the term "sex worker."
Orly Lobel (San Diego) was on Huff Post Live yesterday discussing unemployment insurance. Her discussions start about 4:00, 10:00, 17:00, and 21:00 into the segment. She does a nice job of explaining how unemployment insurance works, on a segment that overall is about fraud/abuse. She also does a nice job of turning the discussion from "how dare millionaires receive UI" to a reminder that UI is an insurance system that everyone who pays into the system is entitled to benefit from.
Wednesday, October 10, 2012
Stone explains that "[u]nder the Congressional budget compromise last year, if no budget deal is reached by January 2, there will be a mandatory cut in the budgets of all federal agencies, including a 10 percent cut in the Defense Department budget." Republican-leaning business groups and defense company executives are threatening to send out a million WARN Act notices 60 days before January 2 -- i.e., on November 2. This is notwithstanding a DOL letter advising companies not to issue such WARN notices. That letter states that any potential layoffs resulting from sequestration arespeculative and the particular workers who might be affected is unknown.
Stone warns that:
Obama is likely to bear the brunt of the blame if nearly one million workers receive layoff notices. If WARN notices are widely issued, it could provide Romney with concrete evidence of the precariousness of any asserted jobs recovery and the dangers of another Obama term.
Democrats need a strategy to stop this storm. They need to explain the facts to the American people and make it clear that any company that issues a WARNing is engaged in unwarranted scare-mongering and political manipulation.
Thursday, September 27, 2012
Michael Maslanka over at Work Matters discusses employment cases being brought by employers against former employees under the federal Computer Fraud and Abuse Act (CFAA). A typical scenario: the employer alleges that an employee accessed its computer system, took confidential information, and later used it on a competitor’s behalf.
Workplace Diva reports:
Adecco Staffing US/Braun Research polled hiring managers and found they're three times more likely to hire a "mature" worker (defined as a worker over age 50) over a 20-something Millennial because mature workers have a work ethic, don't text the whole time you're trying to talk to them, and, in general, have the know-how and proper social graces to get the job done.
Tuesday, September 18, 2012
The Northern Kentucky Law Review and Salmon P. Chase College of Law seek submissions for the Law + Informatics Symposium on February 15, 2013. The focus of the conference is to provide an interdisciplinary review of issues involving privacy, data aggregation, security, communications, social media management, and related topics affecting the legal and business practices involving labor and employment law.
The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law as it applies to working conditions and employment practices. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:
- Application of the Americans with Disabilities Act
- Federal/state employment regulations regarding privacy
- HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues
- EU & global privacy laws & policies
- Bioinformatics in the workplace
- Data mining of employee information
- Social media and political change
- Use of informatics tools for collective bargaining
- Collective bargaining positions on internet usage, data aggregation and social media
- Online dispute resolution
- Ownership of databases & data
- Contracting & enforcement of agreements over sharing of data
- Assessment of significant commercial expansions of informatics practices affecting public expectations & norms
- Employee discipline for internet and social media use
- NLRB responses to social media
- Use of social media in employee screening
- Implications for privacy and discrimination lawsuits
Training and Security
- Gamification in training
- Computer security
- Data protection & obligations regarding data breaches
- Data reliability, including people’s rights to review & correct collected data
- Retraining and employee obsolecense
- Discrimination and access to public and semi-public information
- Employee ownership of intellectual property and data information
- Post-termination obligations of employers and employees
- Employee contracting and end user license agreements
- Global issues for similarly situated employees in multiple jurisdictions
Submissions & Important Dates:
- Please submit materials to Nkylrsymposium@nku.edu
- Submission Deadline for Abstracts: October 1, 2012
- Submission Deadline for Articles: February 1, 2013
- Symposium Date: February 15, 2013
If you have any questions, feel free to drop me a note.
Thursday, September 6, 2012
- The California Senate passed AB 889 (Domestic Workers bill of rights) late last week. It goes to Governor Brown for signature. Then, of course, the workers have to know they have rights as New York is discovering.
- People stay in their jobs primarily because they like what they do and they feel connected to their coworkers and employer, according to the National Retention Survey.
- More on the EEOC's duty to conciliate from Molly DiBianca at the Delaware Employment Law Blog.
- Honest Tea ran an experiment on people's honesty across the country and have made the data available here. It's broken down in some very interesting ways: by geography, hair color, and more. Could/should employers use this information to make decisions about potential employees in hiring?
- Is business school culture to blame for sexual harassment in the workplace? Here and here.
- Women are more likely than men to see nuance in making decisions. Carol Gilligan made that point in moral judgments, but it's now backed up at an earlier stage of cognition: categorizing.
- It takes three kids to kill your career if you're a woman in Australia.
- Sometimes, it seems, women are paid less because they're women.
- Jerks make more money.
- The Seventh Circuit suggests that it may not show discrimination if a supervisor says that he (the supervisor ) got his job because he was white, calls a Hispanic employee a “gold-digger” when he asked for a raise, says “I’m white and I’m right”, yells at a Hispanic employee having a heart attack to “Get the hell out of my office. Go die somewhere else,” say on numerous occasions that he does not like Spanish people, and refer frequently to Hispanics as “dummies” and “stupid.” The "real trouble" comes when that supervisor stops hiring because only Hispanics are applying. Yay?
- Misrepresenting yourself on an insurance application doesn't allow an agency to find that you are what you said there when you said something different to the agency and where the agency has lots of evidence that the representation to it was accurate. Plus, employment immigration law is hard.
- Lawyers who contract with the federal government to provide general legal advice or other legal services are governed by federal executive orders requiring compliance with federal contractor reporting requirements -- and the OFCCP can come in and make you: Download OFCCP v. O'Melveny & Myers October 31, 2011 (h/t Patricia Schaeffer, EEOIMPACT LLC).
And if I don't start to get some balance between work and life (or cut down on work), I'm going to end up like this poor woman, who died at her desk, but no one noticed. Whew. To-do list cleared off for the moment. I feel better.
Wednesday, September 5, 2012
Companies’ demand for legal services is falling in nearly all areas of the law except labor and employment — the lone area where the fallout of the recession appears to be helping rather than hurting large law firms.
While demand for corporate-, real estate- and bankruptcy-related work all dropped 2 to 3 percent, labor and employment work rose nearly 5 percent during the second quarter of 2012 compared with the second quarter of 2011, according to a survey of the nation’s 135 largest law firms by the Hildebrandt Institute’s Peer Monitor Index, a unit of Thomson Reuters. Demand for legal services in the Washington market dropped 2 percent, compared to 0.2 percent nationally.
Although labor and employment work represents a relatively small chunk of the legal market — 8 percent, compared to litigation (33 percent) and corporate (23 percent) — it is the only practice area that has consistently posted growing demand for the past 18 months.