Tuesday, April 13, 2021
Edward Zelinsky explains, in Is Bitcoin Prudent? Is Art Diversified?: Offering Alternative Investments to 401(k) Participants, 54 Connecticut L. Rev. ___ (forthcoming 2021). Here's the abstract:
Whether any category of alternative investments ought to be considered for the menus offered to 401(k) participants is a fact-intensive question.Central to this inquiry are ERISA’s legal tests of prudence, diversification and loyalty. These tests require such fact-driven inquiries as the acceptability of a particular category of investments to investors in general and to professional defined benefit trustees in particular and the trustee’s motivation for embracing such investments. Another important concern when making this inquiry is the financial unsophistication of many (perhaps most) 401(k) participants.
Real estate investment trusts (REITs) pass ERISA’s fiduciary tests because REITs now have a considerable track record amassed over six decades and have achieved broad acceptance, both among general investors and in the world of defined benefit pensions.In contrast, art funds, Bitcoin and other cryptocurrencies are today not prudent to offer to 401(k) participants in light of such investments’ novelty and the failure to date of defined benefit trustees to embrace such investments.
ESG funds are like art funds and Bitcoin, not objectively prudent under present circumstances and therefore not appropriate as a class for 401(k) investment menus. Hedge funds and private equity funds are closer to REITs in light of the widespread acceptance of these funds by defined benefit trustees.Consequently, as a class, such funds, if appropriately limited,qualify as prudent for 401(k) menus even if the trustee would not personally deploy his personal resources to such funds and even if some (perhaps many) such funds examined individually fail ERISA’s fiduciary standards.
These determinations may change over time with new factual circumstances, e.g., greater acceptance of a particular asset class by investors including professional defined benefit trustees as gatekeepers for the 401(k) universe; the emergence of robust markets which provide more experience with particular investment categories. But the approach is ultimately what counts as the norms of prudence, loyalty and diversification, applied to current facts, govern the construction of 401(k) investment menus.
Friday, April 9, 2021
I (Rick Bales) have just posted on SSRN my article (forthcoming PSU's Arbitration Law Review) Novel Issues in Canadian Labour Arbitration Related to COVID-19. Here's the backstory; the abstract is below:
In late spring or early summer 2020, Penn State’s Arbitration Law Review asked me to write an article for their February 2022 symposium on arbitration & COVID-19. I happily agreed. I began in late 2020 by focusing on U.S. awards. However, publication of U.S. awards is fragmented among three for-profit legal publishers, and few established arbitrators submit their awards for publication. By contrast, by law all Canadian awards are submitted to the Provincial ministries of labor, and then they are published by CanLII, the database of Canadian law provided by the Canadian Legal Information Institute. Searching CanLII in January and February 2021 yielded far more COVID-related awards than all three American publishers combined.
Consequently, I started by looking at Canadian awards. American awards re now starting to trickle into the American databases. A follow-up article – which I am working on now – will survey American awards and comparatively analyze both the subjects and the outcomes of these awards as compared to the Canadian awards.
The COVID-19 pandemic of 2020-21 changed working conditions for millions of Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labour arbitration. This article surveys those labour arbitration awards.
Thanks once again to Tequila Brooks for sending word of DC LERA's program Labor’s New Kids on the Block: Collaboration between Immigrant Worker Centers and Unions. It will be online, April 21, 2021, 11:00-noon. Here's a brief description:
Join DC LERA for a conversation between Dr. Ben Kreider, Policy Consultant, and Discussant Carlos Jimenez of the AFL-CIO about immigrant worker centers, new forms of organizing, and collaboration between immigrant worker centers and unions. Dr. Kreider will be presenting his dissertation research on the subject.
Wednesday, April 7, 2021
Chris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:
Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:
We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.
April 7, 2021 in Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor and Employment News, Labor Law, Workplace Safety, Workplace Trends | Permalink | Comments (1)
Tuesday, April 6, 2021
The Third Annual Equality Law Scholars’ Forum just posted a call for proposals. Here are the details from Professor Tristin Green:
Last year, we had to cancel our two-day, in-person Spring 2020 Equality Law Scholars’ Forum scheduled at the University of San Francisco Law School (we held a small feedback session virtually for several junior scholars in Fall 2020), but we’re back in full for Fall 2021! Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Fall 2021. We are planning for the even to be held in person at the Boston University School of Law.
This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Forum will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 12-13, 2021 at the Boston University School of Law.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 1, 2021.
Full drafts of papers must be available for circulation to participants by October 29, 2021.
Proposals should be submitted to: Tristin Green, University of San Francisco Law School, email@example.com. Electronic submissions via email are preferred.
-- Sandra Sperino
Friday, April 2, 2021
Blog readers will want to check out the latest article from Professor Tristin Green. I’ll See You at Work: Spatial Features and Discrimination will be published in UC Davis Law Review in fall 2021 and is available now on SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3811011
From the abstract:
We increasingly talk about HR practices and work cultures as mechanisms for discrimination in work with nary a thought given to one of the most obvious influences on our daily work lives: where we work. This article seeks to change that. In it, I delineate spatial features as a condition of discrimination in workplaces and develop an understanding of what spatial features might matter and why. Drawing together some seemingly disparate lines of research and literature—from social psychology and sociology to geographies and urban planning—I theorize three specific spatial feature categories: insularity, precarity, and permeability. Each of these categories is about place as it affects our interactions and our expectations around interactions in our work.
The Article also examines the law’s current stance toward spatial features, segregation, and discrimination. It turns out that we are at an important crossroad: Where once spatial segregation was an obvious form of discrimination, today courts are backpedaling. Segregation is downplayed as evidence of discrimination, and spatial features are often either ignored entirely or siphoned off into individualized allegations, where they are treated as passing, innocuous moments of subjective experience rather than as organization-driven causal contributors to systemic discrimination. I urge us to put work “place” on our research and advocacy agendas and to consider spatial features and segregation as casual mechanisms for discrimination in legal cases as well. I make several specific recommendations to this end.
-- Sandra Sperino
As many of you know, for the past two years, we have been moving toward launching a proposed AALS Section on Law Professors with Disabilities and Allies. I am pleased to announce that we are at the stage of having a petition and bylaws drafted, and can now collect signatures for provisional recognition. We need 50 signatures from 25 institutions in order to obtain provisional recognition, but we are hoping to obtain more to demonstrate to AALS the strong support for the proposed Section. (A note: under AALS rules, these signatures must be from full-time faculty or professional staff).
Please sign this form to support the recognition of the Section on Law Professors with Disabilities and Allies by AALS. You can email the form to me at firstname.lastname@example.org. Electronic signatures are acceptable. Anyone who signs will automatically be added as members to the new section and added to the Section listserv. I’d love to get enough signatures to submit to AALS by Wednesday April 14. But even if you are digging through your email later and still want to support the proposed Section, please send along your form even after that deadline. Please also feel free to forward this message on to your own faculties or other groups that may have interested members.
We are still awaiting final word from AALS on whether we will be able to have programming at the 2022 Meeting, but are hoping to be able to do so. We have already identified an awardee that we are hoping to honor (more on that soon once we know for sure if we can honor her this year), and are hoping to launch with a program titled “The Forgotten Demographic: Law Professors With Disabilities in Legal Academia.”
This has definitely been a group effort to get this launched. Many thanks to all of those involved in moving it forward, including our inaugural leadership (in addition to myself: Megan Wright, Chair-Elect; Stacey Tovino, Secretary; and our Executive Committee, Katherine Macfarlane, Pamela Foohey and Nicole Buonocore Porter). Kat Macfarlane deserves particular credit as the person who really nurtured this idea in its early stages and kept it moving forward. Thank you also to the others who have already expressed an interest in joining the leadership moving forward (and if you have not yet expressed such an interest, but are interested, please let me know, since we are keeping track of these names!)
Apologies for those of you who have received this message (or a version of it) on multiple lists. Please don’t hesitate to reach out to me if you have any questions, and I look forward to hearing from many of you!
All my best,
Tuesday, March 23, 2021
The situation in Myanmar continues to deteriorate, and labor leaders are major targets. Below is a summary by Jamie Davis, who served for the Solidarity Center in Myanmar for several years and currently is posted to Indonesia. The photo at left is of the plaza in front of a shopping mall in Yangon, about two blocks away from University of Yangon. When I visit there, I usually stay nearby.
Myanmar deserves to be kept in the spotlight to keep people caring about what is happening there. As far as I know, the current situation is that there are no labor relations at this point. The military has targeted labor unions given they have been on the front lines of protests against the coup. Last month, the military announced that 16 unions and labor organizations were listed as being illegal. CTUM and MICS refused to attend tripartite meetings called for by the military. Indeed, Maung Maung and many others are in hiding but several union leaders have been arrested, others have warrants for their arrest, and yet more leaders are rumored to be on a secret list of those targeted for arrest. All unions have called for a national, sustained strike starting a couple of weeks ago in an attempt to bring the entire economy to a halt. As you may know, the military poured troops into the industrial zones on 14 March to crush the unions there and roughly 50 people were killed that day and martial law was imposed in the industrial zones and continues today. Internet blockages designed to hide atrocities were put in place and killings in the industrial zones continue. Tens of thousands of workers have been trying to leave Yangon to return to their villages as food supplies in the zones dwindle and meager savings have dried up. Troops and police continue to search for union leaders and many have fled. I don't think any factories are in operation at this point. Workers attempting to collect their salaries a few days ago at a shoe production factory were denied a portion of their pay and the management called police, which resulted in the immediate execution of one of the labor leaders who continued to demand for their rightful pay and a subsequent massacre of 5 more people with more than 70 workers arrested and taken away.
Sunday, March 21, 2021
Jonathan Liljeblad (Australia National University) will be speaking at the University of Minnesota on "Teaching Human Rights in an Illiberal Context: Reflections of a Researcher in Myanmar". It's this Thursday, March 25, 3:45-5:30 Central. Jonathan has strong ties in Myanmar and will have lots of insight about the current status of the country.
Friday, March 19, 2021
Since many readers of this blog teach, I thought folks might enjoy this discussion of "the most useful teaching feedback I ever received". Mine was in my second year of teaching, when I put a video camera in front of the classroom facing me, and was appalled at what I saw. Sometimes we can be our own best teachers if we look at ourselves honestly.
Monday, March 15, 2021
Bill Herbert writes about the upcoming virtual NYC LERA event "Just Cause Discipline for Fast Food Workers in NYC." It will be from 6:00-7:30 on March 23 and you can find the registration and other info here. The description and panel of speakers look great (and CLE credits are available depsite there being no charge--although please consider becomeing a member):
The New York City Council recently passed a bill (Int. 1415-A) that limits when a fast food employer can discharge a fast food worker, only permitting terminations for “just cause” or a “bona fide economic reason.” The new law takes effect on July 4, 2021. It adds new sections to the previously passed Fair Workweek Law (the FWW), utilizing and building upon the enforcement mechanisms provided to New York City’s Department of Workplace and Consumer Protection (DCWP). The new law allows discharged fast food workers to take their case to arbitration or to bring a lawsuit. What do workers, unions, and employers need to know?
Brad Lander, New York City Councilmember, who represents the 39th District in Brooklyn and serves as City Council Deputy Leader for Policy
Paul Sonn, State Policy Program Director, National Employment Law Project
Lisa M. Griffith, Partner, Littler Mendelson, P.C.
William A. Herbert, Distinguished Lecturer, Hunter College and LERA NYC Chapter Secretary
Thursday, March 11, 2021
Thanks to Rafael Gely for sending us word of this new competition:
The Center for the Study of Dispute Resolution at the University of Missouri School of Law and the National Academy of Arbitrators (NAA) are pleased to announce an annual writing competition for best articles relating to labor and employment dispute resolution that will be published in the Law School’s Journal of Dispute Resolution (JDR). With a generous grant from the NAA Research and Education Foundation, this initiative encourages research and scholarship in the labor and employment field. Beginning in the Fall 2021, the annual competition will award a $3,000 prize for the best published article by an author in academia or professional practice and a $1,000 award for the best published comment by a current law student. A selection committee comprised of NAA and Missouri Law faculty members will select the winning articles and announce its decision by the end of the calendar year.
Articles for this competition should be submitted by email to: email@example.com, with “Labor/Employment DR” in the subject line. The deadline for submissions for the 2021 awards is August 15, 2021.
For more information, please contact: Professor Ilhyung Lee, Director, Center for the Study of Dispute Resolution, LeeIH@missouri.edu; or Katelyn Peters, Editor-in-Chief, JDR, firstname.lastname@example.org.
Many thanks to Tequila Brooks for sending us word of the DC LERA program on Wednesday, March 17, 2021. noon EST, It’s 2021 – Way Past Time for Collective Bargaining Rights in the Public Sector. The speaker is Elissa McBride, Secretary-Treasurer of AFSCME, who will discuss The Public Sector Freedom to Negotiate Act, Legislative priorities for public service workers, and AFSCME campaigns in the DC metro area. It's free; register here. rb
Tuesday, March 9, 2021
Yesterday's Wall Street Journal Business Section has a terrific profile of Liz Glazer. I remember Liz as a faculty member at Hofstra who wrote cutting-edge scholarship on LGBTQ and sex discrimination issues and who had a quick wit and synapses that fired much faster than mine. After getting tenure at Hofstra, she quit the academy in favor of stand-up comedy. Wow! Our loss; comedy's gain.
Sunday, March 7, 2021
This semester, the law students in Professor Lea VanderVelde’s Employment Law course have been doing cutting-edge research into how the pandemic is impacting work laws, as it re-arranges workplaces, requires business closures, transforms the ways we get goods, decimates the service sector, and sickens millions of workers.
As students studied the traditional topics in the employment law curriculum, they also researched how the COVID-19 pandemic was impacting these laws. They were introduced to the sources that experts in the field use to keep up on fast-moving changes, such as reading on-line sources like the Daily Labor Report, white papers of leading law firms, and current state and federal agency guidelines from the Department of Labor and EEOC.
“The sudden emergence of COVID-19 forced considerable changes in many aspects of life—and Professor Vandervelde’s paper addresses its impact on some key areas of employment law. Professor Vandervelde’s course provided us with the proper foundation to effectively address the pandemic’s effect in this area of law. It was an honor and a privilege being a part of this research,” said Iowa Law student Kevin Kim.
This research allowed VanderVelde’s students to witness change as it happened, to reflect on the likely direction the law would take, and to assess the pandemic’s lasting influence on employment law.
Each student produced a different report analyzing how the issue was changing under the new circumstances.
“The opportunity to write a paper involving employment law and the COVID-19 pandemic was my favorite part of this class with Professor VanderVelde. It gave me a chance to apply employment law doctrines I have learned in class to current events. This was not only a fantastic way to test my understanding, but it also provided a practical application of the same processes attorneys and legal scholars undergo,” said 2L Nicholas Day.
By studying their chosen issue over several weeks, students were able to watch changes as they evolved, a method that excellently prepares them for the field of employment law as it exists and prepares them to anticipate the changes to come.
Topics, complete with bibliographies, included the latest thinking on the following questions:
- How previous pandemics changed the baseline of employment laws.
- Implications of the pandemic on the gig economy.
- How COVID-19 has impacted OSHA.
- How will unemployment compensation funds be sustained under higher unemployment claims in various states, and what requirements are likely to be waived.
- Occupational-specific issues, such effects on public school teachers, medical licensure due to tele-practicing of medicine, and even whether the cancellation of college and national football are likely to affect current efforts to re-classify student players as employees.
- The pandemic’s effect on wage theft, and sick leave.
- How work-from-home affects monitoring employees and recording hours and whether work from home re-classifies employees as independent contractors.
- Employee privacy including what questions employers can ask? How much employers can mandate changes in their employees’ social lives and whether employers can legally mandate vaccinations?
- Do whistleblowers alerting others to dangerous practices get protection against retaliation?
- What is the legal significance of classifying workers as essential workers?
Altogether, the students’ reporting produced a 90-page white paper on where employment law stands at the current moment, and how one would expect it to change. You can read their research here.
CAS (thanks to Lea & Peyten Little)
Sunday, February 21, 2021
Thanks to Tequila Brooks for letting us know about this upcoming D.C.-LERA program: Addressing the Impact of the COVID-19 Pandemic on Workers in the German and US Metalworking Sectors. It will be February 24, 11:00 Eastern.
Join DC LERA for a comparative labor discussion with our guest Horst Mund, Director Transnational Department of the German trade union IG Metall, and DC LERA Board members Anja Wehler-Schoeck of the German Embassy in Washington, DC, and Stephen Silvia, Professor, School of International Service, American University, Washington, DC.
Tequila also tell us DC LERA has an exciting line-up of webinars for the spring: Germany in February, AFSCME in March, US Worker Centers in April, Spain in May, and Modern Labor Law Issues for Non-Standard and Excluded Workers in June. Stay tuned!
Friday, February 19, 2021
Tuesday, February 9, 2021
The California Lawyers Foundation has announced its Summer 2021 Law Student Scholarship Program, a joint program with the Labor and Employment Law Section of the California Lawyers Association -- scholarships for employment or labor related work in California for at least ten weeks during Summer 2021. More details from the posting:
The Labor and Employment Law Section of the California Lawyers Association, and the California Lawyers Foundation are committed to fostering the career growth of persons of color, women, members of the LGBTQ community, people with disabilities, and members of other underrepresented groups who are interested in practicing labor and employment law. We will be awarding summer scholarships to diverse law students for Summer 2021 in the amount of $8,000 each. The purpose of the scholarships is to provide funding to diverse law students to engage in legal endeavors in an employment or labor related field and may be non-compensated or undercompensated.
More information, including the online application, is here. The deadline: March 15, 2021.
-- Sachin Pandya (h/t Hina Shah)
Thursday, February 4, 2021
As the nation confronts multiple federal and state attacks on employee noncompetition agreements (NCAs), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs.
This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues implicated in the question. Ultimately, it sees the rule as rooted in concerns about fairness to employee that are typically given short shrift in current doctrine. This is true even for a Restatement that otherwise seems decided to opt for an economic approach that would validate NCAs that are “reasonably tailored” to defined legitimate employer interests.
Adoption of a rule denying enforcement in such situations also poses some interesting second-order questions, such as how to determine when a termination is performance-related and probable employer responses to a new dispensation. All are explored in the pages that follow.
Wednesday, February 3, 2021
Congratulations to Daiquiri Steele, who just accepted a tenure-track position at the University of Alabama School of Law. Professor Steele is currently a Forrester Fellow at Tulane University. She previously served as chief diversity officer at Alabama, where she taught Employment Discrimination, Education Law, Equal Educational Opportunity, and Legislation & Regulation.