Friday, June 14, 2013
In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.
I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.
Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.
Congratulations to both Miriam Cherry (St. Louis) and Richard Carlson (Sout Texas) who were both mentioned in a recent article by AOL News discussing the importance of virtual workplace whistleblowers in light of the Snowden affair. The article is entitled: New Type Of Whistle-Blower: Young, Internet Savvy And Headed For Jail.
In particular, Miriam's latest article was written up by AOL News. Here are some highlights:
Miriam Cherry, a professor at Saint Louis University School of Law and author of the report, calls them "virtual whistle-blowers." Unlike past generations, they're blogging, dropping surreptitious videos onto YouTube or leaking documents to online groups such as WikiLeaks, as Bradley Manning allegedly did. Cherry points to a growing army of "whistle-bloggers," employees who blog -- usually anonymously -- about illegal activities at their places of work. No state so far, she notes, has whistle-blower laws on the books to explicitly protect bloggers -- let alone the people who post YouTube videos or leak to Wikileaks.
Here is a link to Miriam's featured article. Congratulations to both Miriam and Richard!
Thursday, June 13, 2013
Reuters recently did a survey of Wal-Mart's hiring in recent months and published the findings today. The results are making a fairly decent size buzz in other media outlets and on twitter. The survey revealed a big surge in hiring temporary workers, who are automatically terminated after 180 days, although they can reapply for their positions. About half the stores surveyed were hiring only temporary workers, while others were hiring a mix of temporary and non-temporary workers. It appears that all of the temporary workers were hired to work part time, and that Wal-Mart makes a distinction between regular part-time work, and temporary part-time work. Regular workers aren't automatically terminated at the 180-day mark. The stores explained that this strategy allows them to be more flexible, able to react more quickly to changes in demand. Of similar types of stores, only Dollar General does temporary hiring year round. Most only do temporary hiring at the holiday season.
I have a serious question about this news. What does the "temporary" designation get Wal-Mart? It is a term without legal effect. We all know that in reality, nearly all of Wal-Mart's workers, and most workers in the U.S., are effectively temporary workers. They can be terminated at any time for nearly any reason with no notice. We also know, though, from Pauline Kim's (Wash. U. St. L.) work, and our own experiences, that many if not most employees don't realize this.
Clearly, people do attach legal significance to the terminology. Most of the commentary on the Wal-Mart news suggests that this kind of terminology has legal significance, as if the default employment relationship gave employees some level of job security, and hiring workers labeled "temporary" outside of the busiest season for that business is some kind of break with the norms of employment relationships.
So why use this terminology that has no legal consequences? Is this designation a way to make the workers feel even more insecure? Does it make them less likely to assert rights during their employment or after because they are told up front not to expect to continue? Is this kind of like noncompete agreements in places they are not enforceable? I have the same problem with other HR terminology, too, like "probationary" employees in an at-will setting. Or even full or part-time in an at-will context before the FMLA or the ACA mandated some limited benefits based on the number of hours an employee worked.
I ask these questions because I genuinely want to know what the answers might be. I speak to non-lawyers a lot about employment law issues, and I find that nearly every discussion or presentation ends up with me giving them bad news, that they don't have job security unless they have an individual or collective contract (or some statutory rights like civil servants and public school teachers). Our students, like most people, also tend to believe employees have job security until they take our classes.
Maybe part of an answer is that even though at-will employees have no legal job security, they have practical job security because most employers have incentives to keep employees. Small employers and people with hiring and firing power often have personal relationships with those they have power over that make firing people difficult. And employers' own beliefs, which tend to overestimate the risk of liability mean that they rarely terminate people without a pretty good reason. Is that enough?
Feel free to weigh in on any of the questions in the comments.
Wednesday, June 12, 2013
Christine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her forthcoming article in the Oregon Law Review: The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies.
Here is the abstract:
Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act-protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.
Hard to think of a more relevant and timely topic in the area of American labor law. I was just explaining to one of my colleagues the other day that much of the action in traditional labor law in the next few years might be with regard to the Section 7 rights of non-union employees. This article provides much needed guidance of what those evolving rights might look like in the social media milieu.
Thursday, May 30, 2013
Ariana R. Levinson (University of Louisville - Louis D. Brandeis School of Law) has recently posted on SSRN her forthcoming article in the Spanish Labour Law and Employment Relations Journal (SLLERJ), Vol. 2, NO. 1 (2013): Social Media, Privacy, and the Employment Relationship: The American Experience.
Here is the abstract:
This article posits that privacy issues arising in the United States from the use of social media and the employment relationship are similar to those that have arisen around the world. It suggests, however, that the patchwork of governing legal claims arising under different laws in different jurisdictions may be unique. After a brief introduction, the second section describes the recent passage of legislation in several states that may protect the privacy of job applicants’ passwords to social media sites. The third section describes the various claims employees may bring under the federal Electronic Communications Privacy Act, in tort for invasion of privacy, pursuant to the Fourth Amendment, or to enforce just cause provisions in collective bargaining agreements. The fourth section describes protection from overbroad discovery of social media when employers and former employees are involved in litigation. The article concludes by assessing the likelihood of further legal reform.
This is a very timely article given all the recent developments surrounding privacy law and social media in the last months and years. Indeed, just yesterday, Wisconsin introduced its own social media privacy legislation. As someone who is working on an empirical project on workplace privacy expectation in light of technological advances, I am very much looking forward to reading Ariana's insights on this topic.
Monday, April 22, 2013
One of the areas that I have recently been researching regards the impact of technology of employees' expectations of privacy while at work or engaged in work outside of the workplace. Though not completely related, now comes word that a large law firm, King & Spalding, has put into place a very aggressive email policy. Here are some excerpts of that policy:
KING & SPALDING — FIRM-WIDE-ANNOUNCEMENT — EMAIL ACCESS
New Policy Prohibiting Access to Non-King & Spalding Email Accounts (“Personal Email Accounts”) from Firm Computers
The firm’s internal security experts, as well as our outside security experts, have advised us that accessing Personal Email Accounts from firm computers creates a significant security risk. Therefore, effective May 1, 2013, access to Personal Email Accounts (i.e., anything other than your kslaw.com email, including, but not limited, to personal email accounts like Gmail, Yahoo, Hotmail, cable company, etc.) from King & Spalding computers will no longer be permitted.
Most personal email sites will be blocked while you are on the firm’s network. However, you should not access Personal Email Accounts from a firm computer, even if you are not automatically blocked when trying to do so. For example, you should not access Personal Email Accounts from a firm laptop, even when the laptop is not connected to the firm’s network (i.e., from your home network, a hotel internet, etc.). The firm’s computer systems hold confidential information about our clients and the firm and, as you know from reading articles in the press, individual users who innocently click on malicious e-mails are often the cause of security breaches. We need your help in protecting our systems by following this and other security related policies, even when you can do things that you are not supposed to do . . . .
Permissible Ways of Accessing Personal Email Accounts
The prohibition against accessing Personal Email Accounts from firm computers does not impact your ability to access Personal Email Accounts such as Gmail, Yahoo or Hotmail from your own personal devices (e.g., smartphones, iPads, tablets, personal laptops, etc.) while at the firm . . . .
Clearly, K&S has acted decisively to protect against leaks of confidential information and perhaps against compromosing their system through viruses and other malware. Although this policy would appear to diminsih whatever expectations of privacy individuals have in personal email use during work, other cases, under the Electroic Communication Privacy Act (EPCA) stand for the proposition that whereas an employer has the ability to monitor work emails and other computer use for company violations, they do not have the same ability to monitor personal email accounts.
Perhaps because of the inability to monitor personal email accounts, the firm decided to just prohibit all access to such email period. I wonder whether there will be pushback from employees, or under current law, do employers like K&S have carte blanche when making these types of decisions in the workplace concerning email and use of technology?
Saturday, April 20, 2013
Ken Dau-Schmidt (Indiana-Bloomington) has just posted on SSRN a couple of new articles:
Promises to Keep: Ensuring the Payment of Americans’ Pension Benefits in the Wake of the Great Recession (forthcoming Washburn L.J.):
In this essay, I examine the problem of designing a pension plan within the context of our larger public policy of encouraging workers to save for retirement. I discuss the various problems and risks inherent in encouraging workers to adequately save for retirement, invest those assets efficiently, and ensure the planned level of retirement consumption for the remainder of their lives. I also discuss the three major types of pension plans in the American retirement system, defined benefit, defined contribution, and hybrid, and assess how well each of these types of plans deals with the problems encountered in designing a pension plan. I then examine the particular problems that have arisen because of our relatively recent transition from defined benefit to defined contribution plans, and the funding problems caused by the Great Recession. I close with a section discussing policy changes that might be made to improve our pension system and help ensure that workers receive not only the pension benefits they were promised, but also adequate benefits to sustain them comfortably during their retirement.
The Employment and Economic Advancement of African Americans in the Twentieth Century (with Ryland Sherman, IU-Bloomington Dep't Telecomm.):
The African American experience in the American economy in the Twentieth Century has been a story of many successes, and more than a few unfulfilled promises. Brought in chains to the poorest region of the United States to do the least desirable work, and purposely denied education in order to preserve their subjugation, African Americans began the Twentieth Century on the lowest rung of the American economic ladder doing predominantly low-skilled, low-wage agricultural labor in the poorest region of our country. However, over the course of the century, African Americans were able to overcome express and implicit discrimination to climb the economic ladder and achieve success in new regions and new occupations and professions. African Americans still suffer many disadvantages that diminish their economic success, particularly males and particularly in education, but certainly in comparison with the previous three centuries, the Twentieth Century marked important advancements in African American economic opportunity and success.
In this essay, we will examine how African Americans achieved the economic progress they made during the Twentieth Century. We do this by examining their progress along four vectors of economic opportunity - geographical distribution, labor force participation, occupational distribution, and educational attainment - and then examine the resulting improvement in relative economic rewards. We will also examine the impact that the Civil Rights Movement, the Civil Rights Act and affirmative action policies have had on this progress. We will see that, from an economic perspective, the story of African American success in the Twentieth Century is one of overcoming discrimination by moving from a situation of relatively constrained economic opportunities, to gain access to, and success in, an ever larger and more rewarding set of opportunities across the country. It is hoped that the recounting of the success of African Americans in achieving greater economic success by using the law and their own initiative to gain access to new geographic, occupational, and educational opportunities will serve as an inspirational and educational lesson for India’s Dalits in their own struggle for equal opportunities.
Thursday, April 11, 2013
Paul's post yesterday listing labor/employment faculty moves and lamenting the apparent decline in law school LEL teaching has received some traction. Thompson Reuters News & Insight posted Law schools give labor and employment short shrift, professor says. Brian Leiter responded in the same article.
Monday, April 8, 2013
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.