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,
Thursday, May 13, 2021
Tequila Brooks writes to tell us about another great DC LERA webinar: Worker Cooperatives in Spain. It will be Wednesday, May 19, 2021, 11AM - 12 pm Eastern Time. The webinar will be in the form of a conversation between Oskar Goitia, Chairman of the Mondragon Corporation, and Lucia Ortiz Sanz of the Embassy of Spain to the United States, about worker cooperatives in Spain and around the world. It's free; register here.
Tuesday, May 11, 2021
Janice Bellace (U. Penn. - Wharton) and George Dragnich (DC LERA) published yesterday an op-ed in “The Hill” entitled A path for business out of the China forced labor dilemma. Here's Janice's description of the op-ed:
It addresses the China Uyghurs forced-labor situation and the role the ILO could play. It is written to attract the attention of companies by pointing out why companies might want to explore this possibility and explaining one way employers could pursue this route could be in June at the International Labour Conference.
George and I wrote this to draw attention to the ILO and its role regarding the abolition of forced labour. As you know, in the U.S., the media nearly always totally ignore the ILO. Even though Kevin Cassidy in the Washington office of the ILO has done terrific work in trying to close this recognition gap, it is an uphill slog. For instance, truly annoying is when they are discussing ILO labor standards (as was done recently in an article about the Xinjiang situation) and they refer to "a UN agency" rather than "the ILO." Since the dilemma facing companies has received coverage recently, we thought this and the timeliness of the issue would be “the hook” for a piece (since newspapers and other media typically want to see what will attract readers to the item, what will hook them in).
George and I both believe that the ILO has an important role to play and in fact, the most useful role with regard to the abolition of forced labour in Xinjiang. We hope this op-ed piece makes a helpful contribution.
Friday, May 7, 2021
Ariana Levinson (Louisville) sends word of this international and interdisciplinary webinar on labor rights and geospatial data that will be taking place on June 1 at 11 a.m.- 1:30 p.m. EST. The webinar is being sponsored by the American Association of Geographers as part of its GeoEthics series.
The panelists will be:
- Jenny Chan (China Research and Development Network, The Hong Kong Polytechnic University) will discuss Independent Contractors in China’s Last-Mile Delivery (Buy with 1-Click).
- Christina Jayne Colclough (Why Not Lab) will discuss Why Workers Need Much Stronger Collective Data Rights (In Defense of the Right to be Human).
- Dragana Kaurin (Localization Lab) will discuss the Use of Geospatial Data in Workplace Immigration Raids (Tracking People and Movement).
- Ariana Levinson (University of Louisville Brandeis School of Law) will discuss Workers’ Rights, Legislation, and Creative Litigation.
- The webinar will be co-moderated by Richard P. Appelbaum (University of California, Santa Barbara) and William A. Herbert (Hunter College, City University of New York.
Thursday, May 6, 2021
In Young v. United Parcel Service, Inc., the Supreme Court created a modified McDonnell Douglas standard to evaluate pregnancy accommodation cases. If you are wondering how courts are handling these claims post-Young, I highly recommend an article by Joanna Grossman and Gillian Thomas. Their article, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., discusses appellate and trial court opinions post-Young and shows how Young affected how courts analyze these claims.
The article is published at 14 Harv. L. & Pol'y Rev. 319, 330 (2020) and is also available here.
Wednesday, April 28, 2021
I am catching up on reading cases and want to highlight a concurring opinion in Chambers v. D.C., 988 F.3d 497, 502 (D.C. Cir. 2021). The case holds that lateral transfer decisions are not adverse actions for purposes of Title VII. However, two judges argue in a concurring opinion that this outcome is only driven by current circuit precedent and that this circuit precedent is incorrect for a number of reasons.
The concurring opinion argues that the adverse action doctrine is inconsistent with the text of Title VII because Title VII's text does not contain an adverse action limit. In addition, the concurring opinion argues that making lateral transfer decisions based on race or other protected traits is inconsistent with the purposes of Title VII.
A link to the opinion is available here.
-- Sandra Sperino
Tuesday, April 27, 2021
The Eleventh Circuit issued an opinion earlier this month holding that neither McDonnell Douglas nor the Eleventh Circuit's convincing mosaic test apply in federal sector ADEA cases. The Court held that because those tests require a showing of “but for” cause, those tests set too high of a burden for the federal sector provision of the ADEA (which does not require "but for" cause). Instead, the Court held that a plaintiff can prevail by showing that age or protected activity played any part in the way a decision was made. The case is Durr v. Sec'y, Dep't of Veterans Affs., No. 19-13153, 2021 WL 1291135, at *1 (11th Cir. Apr. 7, 2021).
Many thanks to Alvin Goldman (retired, U. Kentucky) for contributing this tribute to Paul Tobias:
Paul H. Tobias, a graduate of Harvard College (AB 1951) and Harvard Law School (LLB 1958) died early this year. He spent the majority of his long career representing individual employees. Paul was a founder and first Executive Director of the National Employment Lawyers Association, an employee rights organization that with its affiliates now has over 4000 members. Mr. Tobias authored 15 published articles and 3 book chapters in the field of labor and employment law, was an employee advisor for the American Law Institute’s Restatement of Employment Law, and a frequent speaker at bar and other programs examining employee rights.
Paul Tobias was perhaps best known as an innovative litigator who challenged the traditional American approach to dismissals and urged colleagues to battle against what he characterized as the “just cause conspiracy”. His efforts in this area prompted him to study and to urge others to study how other employment law systems do so much more to protect workers from unfair dismissal.
I initially met Paul when I was teaching at Northern Kentucky -- Paul's firm is across the river in Cincinnati. Such was his humility that I did not realize until later that I had met a giant in the field. He is sorely missed. The world is a better place because of him.
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.