Monday, September 13, 2021
A huge congratulations to Friend-of-Blog Leora Eisenstadt (Temple) on her wonderful new piece, #MeTooBots and the AI Workplace, which is forthcoming in the University of Pennsylvania Journal of Business Law. This paper, which looks at the intersection of technology and the #MeToo movement, is definitely worth adding to your early semester reading list! Professor Eisenstadt wanted me to make sure to acknowledge two of my wonderful colleagues, Marcia McCormick and Matt Bodie, for their extraordinary efforts and help with this great new Article, which is available on SSRN. The abstract is below:
"Responding to the #MeToo Movement, companies across the United States and Europe are beginning to offer products that use AI to detect discrimination and harassment in digital communications. These companies promise to outsource a large component of the EEO compliance function to technology, preventing the financial costs of toxic behavior by using AI to monitor communications and report anything deemed inappropriate to employer representatives for investigation. Highlighting the problem of underreporting of sexual harassment and positing that many victims do not come forward out of a fear of retaliation, these “#MeTooBots” propose to remove the human element from reporting and rely on AI to detect and report unacceptable conduct before it contaminates the workplace.
This new technology raises numerous legal and ethical questions relating to both the effectiveness of the technology and the ways in which it alters the paradigm on which anti-discrimination and anti-harassment doctrine is based. First, the notion that AI is capable of identifying and parsing the nuances of human interactions is problematic as are the implications for underrepresented groups if their linguistic styles are not part of the AI’s training. More complicated, however, are the questions that arise from the technology’s attempt to eliminate the human reporter: (1) How does the use of AI to detect harassment impact employer liability and available defenses since the doctrine has long been based on worker reports? (2) How does this technology impact alleged victims’ vulnerability to retaliation when incidents may be detected without a victim’s report? (3) What is the impact on the power of victim voice and autonomy in this system? and (4) What are the overall consequences for organizational culture when this type of technology is employed?
This Article examines the use of AI in EEO compliance and considers whether the elimination of human reporting requires a reconsideration of the U.S.’s approach to discrimination and harassment. Appearing on the heels of revelations about the use of non-disclosure agreements and arbitration clauses to silence victims of sexual harassment, this Article posits that the use of AI to detect and report improper communications, an innovation that purports to help eradicate workplace harassment, may, in reality, be problematic for employers and employees alike, including functioning as a new form of victim abuse. Lastly, the Article considers the difficult work of creating open, healthy workplace cultures that encourage reporting, and the impact of outsourcing this work to Artificial Intelligence. Rather than rejecting what may be an inevitable move towards incorporating artificial intelligence solutions in the workplace, this Article suggests more productive uses of AI at work and adjustments to employment discrimination doctrine to be better prepared for an AI-dependent world."
-- Joe Seiner
Many thanks to Jonathan Harkavy (Patterson Harkavy) for sharing with us the 2021 edition of his annual review of the labor/employment decisions from the Supreme Court. As always, it's a great resource. Here's the abstract:
This article provides extended summaries and (separately) the author's take on every employment and labor law decision rendered by the Supreme Court during its most recent term. Also covered in this piece are abbreviated reviews of all grants of certiorari for the upcoming term and short summaries and analyses of all other employment-related opinions published by the Court this term, including those on the so-called shadow docket portion of the orders lists. The article concludes with additional commentary on the work of the Supreme Court as it affects the labor and employment law sector.
Wednesday, September 1, 2021
Congratulations to Andrew Elmore (Miami) and Kati Griffith (Cornell) on the publication of their new piece, Franchisor Power as Employment Control, in the California Law Review! The piece can be downloaded here. This Article provides a wonderful analysis of this issue, and is an excellent read and contribution to the scholarship in the field. The abstract is below:
Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers’ rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility that franchisors and their subordinate companies (franchisees) are joint employers. Recent political developments mirror this foreclosure and pose a historic narrowing of the scope of joint employer liability. This Article challenges courts, administrative agencies, and legislators to take more seriously franchisors’ power over their franchisees and the working conditions of low-wage fast-food workers. To advance this argument, we rely on insights from an original empirical data set of (1) forty-four contracts between leading fast-food franchisors and franchisees in 2016 and (2) comprehensive documentation provided in joint employer legal proceedings against two major fast-food franchisors in the United States: McDonald’s and Domino’s Pizza. Our proposed “power as employment control” construct considers, within the confines of existing doctrines, the cumulative effects of lead franchisor firms’ reserved (unexercised) and exercised influence over the working conditions in their subordinate businesses. By giving power more consideration in analyses of joint employer liability, courts, administrative agencies, and policy-makers can bring more justice and consistency to this hotly contested area.
For those of you that are interested in some cutting edge scholarship in the employment law area, there are some great recent reviews on JOTWELL's Worklaw Section. In the last three months alone, the following wonderful reviews have been posted:
Kerri Stone's review of Kimberly Bailey's piece, Male Same-Sex "Horseplay": The Epicenter of Sexual Harassment, which is available here;
Alex Long's review of Michelle Travis's article, A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility, which is available here; and
Jotwell is a great way to keep up on some of the most important and emerging scholarship in our field. You can take a look at all of the Worklaw Jotwell reviews here.
Monday, August 30, 2021
Thanks to Ryan Nelson for sending word of an upcoming Zoom panel sponsored by South Texas College of Law. The Zoom panel is Employment 2021: Contract v. Competition. The panel is on Friday, October 1, from 2 p.m. to 4 p.m. central time. The panel participants, their topics, and registration information are below.
Jonathan F. Harris, Unconscionability in Contracting for Worker Training
Evan Starr, Bundling Postemployment Restrictive Covenants: When, Why, and How It Matters
Orly Lobel, Boilerplate Collusion: Clause Aggregation, Antitrust Law and Contract Governance
With remarks by Eric A. Posner.
To reserve a spot, please RSVP:
After registering, you will receive a confirmation email containing information about joining the meeting.
-- Sandra Sperino
Tuesday, August 24, 2021
A huge congratulations to Marty Malin (Chicago-Kent) and Joe Slater (Toledo), who the Biden Administration has announced will be appointed to the Federal Labor Relations Act Federal Impasse Panel. Marty will Chair the panel. Here's the announcement:
Today, President Joe Biden announced his intent to appoint the following members to the Federal Labor Relations Authority (FLRA) Federal Service Impasses Panel: ...
The Panel is a component of the FLRA that resolves impasses between federal agencies and unions representing federal employees. If bargaining between the parties, followed by mediation assistance, does not result in a voluntary agreement, then either party or the parties jointly may request the Panel’s assistance.
Monday, August 23, 2021
Saturday, August 21, 2021
Below is helpful info about the ever-popular COSELL this fall from Jennifer Shinall. Bottom line is that an in-person option is up in the air, but at a minimum, we'll have a remote option, whether exclusively remote or hybrid. So get in those submissions. Also, much thanks goes to Jennifer for taking on the never-ending hosting duties!
I am writing to provide an update on the format of the 2021 Colloquium on Scholarship in Employment and Labor Law (COSELL), which will be hosted this year by Vanderbilt Law School on October 15-16, 2021.As I'm sure you are aware, the COVID-19 situation has changed rather dramatically since Vanderbilt committed to hosting the event in-person back in June. Vanderbilt has returned to a mask mandate, even for vaccinated individuals. Our campus regulations regarding in-person gatherings are becoming stricter each week, as the local public health situation here continues to decline.
All that being said, here is where we currently stand: at this time, Vanderbilt University will still technically permit us to host COSELL in-person. The university, of course, could change its mind at any moment. An additional complication is that the university finance department is currently prohibiting us from signing any vendor contracts, out of concern that the university will still be on the hook financially even if the conference will not be able to go forward in-person. That complication prohibits us from booking a conference dinner venue, hiring a caterer, and reserving hotel blocks at this time.
Thursday, August 12, 2021
A huge congratulations to Paul Harpur (U. Queensland), who this week was awarded a four-year $1.1M Future Fellowship. His project is entitled Normalizing Ability Diversity through Career Transitions: Disability at Work.
The project, with Phd candidates funded, fellows, and a buyout of teaching, aims to investigate how the higher education sector can better support people with disabilities to transition from economic exclusion to work. Here's a description:
One in five Australians have a disability and of these 47.3% are not employed. This is a significant issue with regulatory failures and challenges often affecting rights to education and work being exercised on an equal basis. This project seeks to examine international legal norms, theories and strategic and operational practices in the higher education sector. Expected outcomes include advances in scholarship on ableism, informed policy reform, and transferable operational processes for the education and employment sectors, to improve the transition of people with disabilities to work.
Paul will be working on this project in close collaboration with the Harvard Law School Project on Disability and the Burton Blatt Institute at Syracuse University.
Additionally, Paul recently published a TEDx speech Universities as Disability Champions of Change.
Tuesday, August 10, 2021
My summer research project has been compiling and analyzing COVID-related labor arbitration awards. The result is an article that will be published this fall in the Ohio State Journal on Dispute Resolution. The title is COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis; here's the abstract:
The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and 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 labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.
Wednesday, July 21, 2021
Kate Griffith writes to let us know about an open position at Cornell's ILR School:
Assistant, Associate, or Full Professor Position Labor and Employment Law - ILR School, Cornell University
The Cornell University School of Industrial and Labor Relations (ILR) invites applications to fill a tenure-track/tenured faculty position (at the assistant, associate or full professor level) in Labor and Employment Law, to begin August 2022. The ILR School is looking for candidates who can support our growing diverse student body through advising and inclusive teaching approaches. This is a tenure-track or tenured position at a rank fitting with the candidate’s record of accomplishments. Candidates should have a record of high-quality research published in leading academic journals, or the potential for such research publications. Candidates should also have the ability to teach effectively to both undergraduates and graduate students on the Cornell Ithaca campus.
At the time of appointment, applicants must have completed a J.D. and/or a Ph.D. in law, labor relations, sociology, political science, or other related disciplines. We especially welcome candidates who are able to teach the undergraduate and graduate-level course requirement on U.S. Labor and Employment Law (covering primarily the NLRA and employment discrimination law). Faculty elective courses, as well as faculty research agendas, are based on their expertise and interests, which may include labor law, employment discrimination, wage and hour, health and safety, international labor law, and other areas related to labor and employment law.
The ILR School (www.ilr.cornell.edu) is the world’s leading college focused on work, employment, and labor issues. Our faculty come from a number of disciplinary backgrounds and study a broad range of issues related to labor, employment, and organizations. Cornell University is committed to supporting the work-life balance of its faculty.
We seek applicants whose record in research, teaching or service has prepared them to contribute to Cornell’s historical commitment to diversity.
Interested candidates should submit a cover letter, vita, statements explaining research and teaching capabilities, diversity and inclusion statement, and three reference letters. Applications from women and minority candidates are strongly encouraged.
Candidates can apply at https://academicjobsonline.org/ajo?joblist---3292-18974
Review of applications will begin on September 1, 2021 and continue until the position is filled. Inquiries about this position should be directed to Professor Risa Lieberwitz at RLL5@cornell.edu
Diversity and Inclusion are a part of Cornell University’s heritage. We are a recognized employer and educator valuing AA/EEO, Protected Veterans and Individuals with Disabilities. We also recognize a lawful preference in employment practices for Native Americans living on or near Indian reservations. Cornell University is an innovative Ivy League university and a great place to work. Our inclusive community of scholars, students, and staff impart an uncommon sense of larger purpose, and contribute creative ideas to further the university's mission of teaching, discovery, and engagement.
Monday, June 28, 2021
Join me in congratulating Joe Seiner (South Carolina) on the publication of his new book The Virtual Workplace: Public Health, Efficiency, and Opportunity (Cambridge U. Press). Here's the publisher's description:
The recent pandemic has clarified the overwhelming connection between the workplace and technology. With thousands of employees suddenly forced to work at home, a large segment of the workforce quickly received crash courses in videoconferencing and other technologies, and society as a whole took a step back to redefine what employment actually means. The virtual workplace is the blending of brick-and-mortar physical places of business with the advanced technologies that now make it possible for workers to perform their duties outside of the office. Trying to regulate in this area requires the application of decades old employment laws to a context never even contemplated by the legislatures that wrote those rules. This book explores the emerging issues of virtual work—defining employment, litigating claims, aggregating cases, unionizing workers, and preventing harassment—and provides clarity to these areas, synthesizing the current case law, statutory rules, and academic literature to provide guidance to workers and companies operating in the technology sector.
Friday, June 25, 2021
Each year I read all of the cases citing McDonnell Douglas to update my treatise, McDonnell Douglas: The Most Important Case in Discrimination Law (available electronically on Bloomberg). The treatise provides comprehensive coverage of all things McDonnell Douglas. Here are the most important takeaways from this year’s updates.
(1) While most courts articulate a four-part prima facie case, it is worth noting that several appellate courts use a three-part prima facie case. For example, in Chambers v. D.C., 988 F.3d 497, 501 (D.C. Cir. 2021), the court stated that the plaintiff must do the following related to the prima facie case: “allege she is part of a protected class under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination. The Tenth Circuit articulated a similar test in Throupe v. Univ. of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021). This prima facie case eliminates the prong of the test that would require a plaintiff to establish she met the employer’s objective, minimum qualifications for the contested position.
(2) In Babb v. Wilkie, the Supreme Court held that a plaintiff is not required to establish “but for” cause to prevail on a federal-sector ADEA claim. In one case, the Eleventh Circuit held that McDonnell Douglas should not apply to federal sector claims after Babb. Malone v. U.S. Att’y Gen., No. 20-12527, 2021 WL 2134850, at *4 (11th Cir. May 26, 2021). In another case, the Eleventh Circuit noted that McDonnell Douglas does not fully capture all the ways a plaintiff can prevail under the ADEA federal sector provision. Troupe v. DeJoy, No. 20-12019, 2021 WL 2530188, at *2 n.4 (11th Cir. June 21, 2021). This issue not only affects the ADEA, but also may come into play with respect to Title VII’s federal-sector provision.
(3) The courts continue to struggle with how to incorporate “but for” cause into McDonnell Douglas for claims under Title VII’s retaliation provision, the ADEA, and Section 1981.
(4) The Tenth Circuit has held that there is no adverse action requirement for a failure to accommodate claim under the Americans with Disabilities Act. Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 784, 797 (10th Cir. 2020).
(5) I found several recent articles helpful when working on the treatise.
William R. Corbett, Intolerable Asymmetry and Uncertainty: Congress Should Right the Wrongs of the Civil Rights Act of 1991, 73 Okla. L. Rev. 419, passim (2021) (discussing McDonnell Douglas and causation).
Joanna Grossman & Gillian Thomas, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., 14 Harv. L. & Pol’y Rev. 319, 330 (2020) (discussing courts’ use of McDonnell Douglas in pregnancy accommodation cases post-Young).
Charles A. Sullivan, Making Too Much of Too Little?: Why "Motivating Factor" Liability Did Not Revolutionize Title VII, 62 Ariz. L. Rev. 357, 387 (2020) (briefly discussing intersection of motivating factor and McDonnell Douglas).
Suja A. Thomas, The Customer Caste: Lawful Discrimination by Public Businesses, 109 Cal. L. Rev. 141, 161, 193-94 (2021) (discussing use of McDonnell Douglas in public accommodation cases).
Deborah A. Widiss, Proving Discrimination by the Text, __ Minn. L. Rev. __ (forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921.
Congratulations to Charlie Craver, Marion Crain, and Grant Hayden on the publication of the fourteenth (!!!) edition of Labor Relations Law: Cases and Materials (Caroline Academic Press). The book will be available for courses this fall. Here's a description:
The casebook is designed for an intensive examination of the union-management relationship throughout its major phases. Largely tracking the organization of the National Labor Relations Act, it covers the right of employees to join together for organizational purposes, the regulation of the union-organizing process including the use of economic weapons, the development of bargaining relationships, the negotiation and enforcement of collective agreements, and, more briefly, the law governing internal union affairs. The text responds generously to the most significant current developments in the field and provides a set of materials that will be truly manageable in the usual three- or four-hour courses. The fourteenth edition includes over sixty new hypothetical problems designed to test students’ knowledge of existing doctrines and push them to explore issues that don’t admit of ready answers (with detailed answers and explanations in the teacher’s manual). As with previous editions, the book will come with a comprehensive teacher’s manual and a biennial supplement to keep the book up-to-date.
Faculty should contact Erin Matthews at Carolina Academic Press for electronic review copies (email@example.com or 919-489-7486 ext. 123).
Tuesday, June 8, 2021
Kerri Stone (FIU) has a terrific post over at PrawfsBlawg using Naqomi Osaka's withdrawal from the French Open to analyze the issue of "what would happen if someone who claim[ed] that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health"?
I thought about excerpting Kerri's post here, but her post is so dense and well-written that there's nothing I would omit. So ... I strongly recommend following the link above and reading it in full.
Wednesday, June 2, 2021
As the deadline quickly approaches, this is a reminder about the great call for papers from the Nevada Law Journal related to how state legislation can enhance civil rights protections. That Call for Papers is available via download here. This is an immensely important topic as so much civil rights work is done on a state and local, rather than federal, level. Please let Ann McGinley (UNLV) know if you have any questions.
This is a great opportunity for anyone doing research in this critical area of worklaw!
Tuesday, June 1, 2021
Tequila Brooks sends word that DC LERA will be hosting its first annual Labor Law Forum on June 16, 2021 11:00 a.m. Eastern. The forum features Mark Gaston Pearce of the Georgetown Law School Workers’ Rights Institute, Tonia Novitz of the University of Bristol Centre for Law at Work (UK), and Matt Ginsburg of the AFL-CIO for a discussion of legal issues affecting non-standard and gig economy workers under U.S. and English law, recent union organizing campaigns in the U.S. platform economy, and using university procurement to improve workplace safety and equity. The Forum is free but registration is required.
Saturday, May 29, 2021
From Marty Malin, one of the editors of the Employee Rights and Employment Policy Journal (along with Michael Green and Noah Zatz). Note that this is one of the few, peer-reviewed law journals. I may be biased, as I'm on the board of the journal and participate in the editing process, but I think they do a very good job of providing quick and useful reviews of submissions--especially with its accelerated review process.
Employee Rights and Employment Policy Journal invites you to submit your work for publication. This summer we are again using a special review process for submissions received by Thursday, July 1. For these submissions, we will complete our peer-review selection process by Friday, August 13. Selected articles will be published in the final issue of 2021 (volume 25). For more than twenty-four years, EREPJ has been a faculty-edited, peer-reviewed journal based at Chicago-Kent College of Law. Since 2016, it has been a joint project of Chicago-Kent and The Labor Law Group. Our process is quite different from the sometimes frustrating one typical of student-run law reviews. Our peer-review process provides authors with editorial suggestions from their peers who are knowledgeable about the areas in which the authors are writing, as well as light editing and rapid publication post-acceptance.
The one downside to the peer review process is that it often takes more time than the typical student-run law journal review process. To address this, EREPJ is committing itself to an accelerated review process: you send us your work by July 1, and we will give you an answer on or before August 13. This rapid turnaround means that if we do not offer to publish your work, you will still be able to submit it to student-run journals in the late summer/early fall submission season. During our review period, out of respect for the time of our colleagues who will be conducting the double-blind review, we ask that you not submit your article for consideration by another journal.
Submissions to EREPJ are treated to a double-blind review by members of the editorial board (a group of distinguished professors in labor and employment law and related disciplines) and edited by your peers—people who can help you improve your work, not just publish it. You receive suggestions that you may use at your discretion—we do not rewrite your article (although we do correct errant citations, grammar mistakes, typos, and the like). We have a student staff that performs Bluebooking and cite-checking but our authors never have to deal with them—we do!
Finally, under our standard publication agreement, you retain the copyright and give us a nonexclusive license to publish and to sublicense others. We respect our authors' time, we respect their expertise, we respect their writing styles, and we respect their intellectual property rights. We encourage you to publish with us.
Please submit articles by e-mail to firstname.lastname@example.org or use the submission portal at http://go.iit.edu/erepj (n.b. to facilitate the double-blind review, make sure that all identifying information—your name; institutional affiliation; postal and email addresses; and phone number—is on a separate cover).
Monday, May 24, 2021
Codetermination—a system of shared corporate governance between shareholders and workers—has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and as an example of corporate deviance. However, over the last fifteen years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders.
This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted by our law-and-economics framework of shareholder primacy, codetermination has fared better than alternative systems, particularly with respect to the ravages of the Global Financial Crisis of 2008. At a time when corporate leaders, politicians, and academics are rethinking the shareholder primacy model, this Article presents an updated perspective on codetermination and invites U.S. scholars to reexamine their prior assumptions.
The new book is Reconstructing the Corporation: From Shareholder Primacy to Shared Governance (Cambridge Univ. Press, 2021). Here's a description:
Modern corporations contribute to a wide range of contemporary problems, including income inequality, global warming, and the influence of money in politics. Their relentless pursuit of profits, though, is the natural outcome of the doctrine of shareholder primacy. As the consensus around this doctrine crumbles, it has become increasingly clear that the prerogatives of corporate governance have been improperly limited to shareholders. It is time to examine shareholder primacy and its attendant governance features anew, and reorient the literature around the basic purpose of corporations. This book critically examines the current state of corporate governance law and provides decisive rebuttals to longstanding arguments for the exclusive shareholder franchise. Reconstructing the Corporation presents a new model of corporate governance - one that builds on the theory of the firm as well as a novel theory of democratic participation - to support the extension of the corporate franchise to employees.
Big data and artificial Intelligence have started to impact Human Resource management. Hiring, firing, performance appraisal, competence development and talent management have all seen an increasing use of AI-based tools. Where do we stand at the moment in this process? What can AI already achieve today and what may it achieve in the near future? And will the employment of AI also create more opportunities and bestow us with better jobs?
Join us on 3 June at 4pm CET for a discussion with top speakers Peter Cappelli (Wharton School), Ashutosh Garg (Eightfold.AI) and Janine Berg (International Labour Organization) as well as many other experts during the first event of our joint conference series on the Future of Work and AI. Register here,