Workplace Prof Blog

Shu to Join Rothstein & McGinley on Disability Law Casebook

D'Andra Shu (South Texas) will be joining Laura Rothstein (Louisville, retired) and Ann McGinley (UNLV) on the 7th edition of Disability Law: Cases, Problems, and Materials (Carolina Academic Press, forthcoming in time for classes in fall 2024). Shu's a terrific addition to a terrific team and a critical casebook. Here's an excerpt from the authors' letter to adopters:

This message is being sent to you as a current or recent adopter of the 2017 edition of DISABILITY LAW: CASES, PROBLEMS AND MATERIALS. Except for this past summer, we have sent an annual Letter Update to all adopters. Our letter noted previously that until there was a significant number of changes to this area of law, a 7th edition was not contemplated. It is now time for the 7th edition, and we are scheduled to complete that edition for Carolina Academic Press in time for classroom use by Fall 2024. We will also be bringing in D’Andra Shu, Assistant Professor of Law at South Texas College of Law Houston, as a co-author.

Although there have been few Supreme Court decisions and no major statutory changes since 2017, a new edition makes sense now to address the range of COVID-related issues that have affected disability law and because of the current Supreme Court’s approach to areas of law that are highly regulated.

The 7th edition will retain what we believe to be key assets of our textbook—the Chapter Goals, Key Concepts and Definitions, and Hypotheticals (including some new ones). We do not contemplate any major reorganization of the text or adding or deleting any chapters. The Instructor Materials will be updated and will guide the faculty member through the changes and will continue to suggest areas where the instructor might wish to add material relevant to the state in which the course is being taught. The Power Points (and content for those with visual impairments) will be updated.

We would welcome any suggestions and thoughts from our adopters—including what you like about the text and what you would like to see more of. Are there parts of the book that you do not use? Are there topics you would like to see added?

For those of you using the textbook in fall 2023 or spring 2024, we are already working on the Letter Update and plan to make it available by July 1, 2023. This would incorporate issues from the previous letter updates and major new developments through this spring.

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Ohanesian on the Importance of Judicial Deference to the NLRB

Nick Ohanesian (ALJ; MSU adjunct) has just posted on SSRN his timely and important article Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board. Here's the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the what the world would look like without administrative deference and at the same time serve as a cautionary tale about how courts will behave when unrestrained. Labor law and the judicial treatment of labor unions provides a particularly vivid illustration in this regard. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. This article will show how the history of the Courts and Congress with respect to labor unions should support continuing administrative deference to the National Labor Relations Board.

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Bisom-Rapp's New BJELL Article

Congratulations to Susan Bisom-Rapp on the publication of her article The Role of Law and Myth in Creating a Workplace that 'Looks Like America', 43 Berkeley JELL 251 (2022)!!! Here's the abstract:

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection. 

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This Article builds upon that theory by arguing that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: (1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; (2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and (3) new social science research discussing which DEI efforts are most likely to succeed and those most likely to prompt backlash. 

To facilitate evidence-based EEO compliance, this Article advocates changes in liability standards. It also recommends the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the Article urges lawyers to more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias-free U.S. workplaces.

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Critical Wage Theory Panel at Brooklyn

RSVP here.

2023 Louis Jackson Student LEL Writing Competition

Nicole Porter (Chicago-Kent) is distributing a flyer for the 2023 Louis Jackson Memorial National Student Writing Competition in Employment & Labor Law, sponsored by Chicago-Kent’s Martin H. Malin Institute for Law & the Workplace and Jackson Lewis P.C. She encourages students writing papers in the labor and employment law field to submit. The deadline for submissions is January 17, 2023.

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Lobel's New Book: Equality Machine

Congratulations to Orly Lobel (San Diego) on the publication of her new book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022). Here's the author's description:

The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid examples, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets-that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.

 

Congrats, Orly!

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Universities Enable

On 12 October 2022, Paul Harpur (Queensland) will launch Universities Enable. It is a national disability steering group for the higher education sector. The group includes the Australian Federal Disability Human Rights Commissioner, a representative from Universities Australia, a Deputy Vice Chancellor from the University of Sydney, and Paul as founding chair. It aims to enable the university sector to enable it to realize disability equality and become disability champions of change. The workplace hook is because staff with disabilities is one of the main areas of interest. Universities have done reasonably well at training the disability leaders of tomorrow, but many have been less robust when it comes to policies and practices towards staff with disabilities – both academic and professional.

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2023 SEALS Conference

It's that time of year: SEALS is open for submissions for its 2023 conference, which will be held at the Boca Raton Resort  in Boca Raton, Florida from July 23 to July 29 (although our panels will be only a couple of days of that).

At this point, please let me know if a) you're interested in participating in a SEALS panel TBD, or especially b) you have any ideas for a panel or discussion group. As a reminder, we can have any mix we want of either/both traditional panels--which are more typical research--or discussion groups, which involve a larger group engaged in more of a back-and-forth.

Jeff Hirsch

 

Harkavy's Annual Update & Review of SCOTUS Arbitration Cases

Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN both his annual Employment Law Update and an essay on SCOTUS's four recent compelled arbitration decisions. Here are the abstracts:

 

 

 

2022 Supreme Court Commentary: Employment Law

This article is the author's longstanding annual review of the Supreme Court's employment-related decisions of the term just ended. This year's article about the 2021 Term first summarizes every employment-related decision rendered by the Court through the end of the term in July of 2022. Each case summary is followed by the author's comments about the decision's significance to workplace stakeholders. Also included in this section are abbreviated summaries of all opinions and orders from the so-called "shadow docket" that are of consequence to employment relations. Next, the article provides short statements about each grant of certiorari for the upcoming term on issues affecting employment and labor law. The article concludes with brief additional commentary on the Supreme Court's work as it affects the American workplace.

Fresh Focus: the Supreme Court Confronts Compelled Employment Arbitration

This essay examines briefly four 2022 decisions of the United States Supreme Court dealing with forced arbitration of workplace disputes. The paper summarizes the factual background of each case and posits the effect of each decision on both employers and employees. The paper concludes by relating these four decisions to the Court's continuing embrace of compelled arbitration of employee claims.

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DC LERA Upcoming Programs

Many thanks to Tequila Brooks for word on these programs:

 

 

• On Thursday, 8 Sept. 2022 (10-2 ET / 4-6 GMT+2), the Second Annual Virtual Labor Law Forum is co-sponsored by the African Labour Law Society and will focus on Constructing and Deconstructing Racism: Tales of Work and Life in Virginia, the U.S., Europe, and South Africa. The panel will begin with the construction of Jim Crow labor laws in colonial Virginia, move to the adoption of US Civil Rights style strategies by Roma in the EU, continue through workplace race discrimination in post-apartheid modern South Africa, and end with the legacy of U.S. slavery in the modern U.S. workplace. Register here.
• On Wednesday, 14 Sept. 2022 (12-2 pm ET, 6-8 GMT+2), DC LERA will hold a hybrid viewing of a brand new 2022 documentary on the 1968 Memphis Sanitation Workers Strike. Also co-sponsored by ALLS, the film will be introduced by John Higgins and Mark Pearce, both formerly of the U.S. National Labor Relations Board. Afterward, there will be what we hope will be an international discussion of the film. If you would like to host a simultaneous viewing of the documentary for your labor law class, organization, or university, please email Tequila to coordinate - and all participate in the discussion together. Registration link pending (still working out final details with our other co-sponsor, The Georgetown Law School Worker Rights Institute). 

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Call for Papers: Business Ethics and the Future of Work

Friend-of-Blog Leora Eisenstadt (Temple University, Fox School of Business) sends along the following Call For Papers (also available here):  The is a great opportunity for anyone researching and working in this area:

Call for Papers  

business ethics and the future of work 

The Center for Ethics, Diversity, and Workplace Culture in the Fox School of Business at Temple University, the Center for Legal Studies & Business Ethics in the Spears School of Business at Oklahoma State University, and the American Business Law Journal to Cohost 2023 Symposium:  

Business Ethics and the Future of Work 

The Center for Ethics, Diversity, and Workplace Culture, the Center for Legal Studies and Business Ethics, and the American Business Law Journal (ABLJ) welcome submissions on business ethics and the future of work. The ABLJ is rated an A journal on the Australian Business Deans Council (ABDC) journal quality list and is the premier peer-reviewed research journal in business law. The ABLJ anticipates publishing a special issue devoted to the symposium theme.  

The societal, economic, cultural, and public health challenges and opportunities of the last decade have dramatically altered the ways that workers around the globe conceive of their work and the workplace. The #MeToo and Black Lives Matter Movements, the global pandemic, innovations in technology and artificial intelligence, and a resurgence of labor organizing, among other forces, necessitate a reconsideration of ethical business practices particularly as they impact employees and the modern workplace. Organizations across industry sectors must contemplate “hybrid” work spaces, demands for corporate social responsibility, and serious calls for an equitable and inclusive workplace culture. While industry professionals are beginning to contemplate these large-scale changes, there is a need for legal and ethics research to help guide this conversation. This symposium hopes to generate a broad range of scholarship that develops thought leadership around business ethics and the future of work in this new reality.  

We are seeking submissions that may include topics related to legal and/or ethical perspectives on employment discrimination, changing technologies as they impact the workplace, hybrid and remote work, corporate social responsibility and/or ESG, labor organizing, and compliance. Application of the ethics literature to these issues is encouraged. Only submissions on the symposium theme will be considered for presentation. Interdisciplinary submissions are especially welcome. 

The symposium will be held February 24-25, 2023, in a virtual format (specific details to follow). We are mindful that many variables may influence someone’s decision to apply for the symposium, so we have chosen a virtual format to increase opportunities for participation from scholars worldwide. If selected, participants must commit to submitting a complete draft of their paper no later than Friday, February 10, 2023 (two weeks prior to the symposium), as participants will be expected to read and provide feedback on other papers in advance of the symposium. Coauthored papers are welcome, and all authors may participate in the symposium. 

If you are interested in participating, please send a one-page abstract of your proposed paper, along with your CV, by Monday, October 17, 2022, to Laurie Lucas at llucas@okstate.edu. 

-- Joe Seiner

New and Emerging Voices in Workplace Law Call for Papers

Daiquiri Steele writes us the e following call for papers:

 

Call for Papers: New and Emerging Voices in Workplace Law Session at 2023 AALS Annual Meeting

The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law is inviting submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2023 Annual Meeting in San Diego, California, January 3-6, 2023.

Overview: This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of scholars in the field. The session will provide new scholars a supportive environment in which to receive constructive feedback.

Eligibility: Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.

Submission Format: Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.

Submission Instructions: To be considered, proposals should be submitted electronically to Professor Matt Bodie, The University of Minnesota School of Law, at mbodie@umn.edu and Professor Daiquiri Steele, The University of Alabama School of Law, at dsteele@law.ua.edu. The deadline for submission is Friday, September 2, 2022.

Selection: Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 23, 2022. Presenters will be responsible for paying their annual meeting registration fee. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 9, 2022.

Questions: Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Daiquiri Steele, The University of Alabama School of Law, at dsteele@law.ua.edu and/or the Chair for the Section on Labor Relations and Employment Law, Matt Bodie, at mbodie@umn.edu.

 

Jeff Hirsch

COSELL 2022 Registration and Info

Jennifer Shinall and the folks at Vanderbilt now have the COSELL 2022 site up and running, which you can access here: https://law.vanderbilt.edu/phd/cosell2022/

The conference will be held at Vanderbilt Law School on Friday, October 21 and Saturday, October 22 and will be hybrid, held simultaneously in person at Vanderbilt Law School in Nashville, Tennessee and via Zoom.

The deadline for abstract submission is August 31, 2022, and the conference schedule will be posted by September 12, 2022.

The link listed above also includes an option to submit abstracts and hotel info.

Hope to see you all there!!

Jeff Hirsch

Ohanesian on Administrative Deference & the NLRB

Nicholas Ohanesian (ALJ, Social Security Administration) has just posted on SSRN his article Administrative Deference and the National Labor Relations Board: Survey and Analysis. Here's the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the impact of the existing deference apparatus upon the affected administrative agencies. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. What is mostly absent is an accounting of how deference is systematically applied to administrative agencies.

This article will examine how the existing deference regime is applied to the National Labor Relations Board. The NLRB is an interesting case study in the role of administrative deference in federal courts. It is a small agency in terms of its annual budget and the number of the employees. It is also an agency that originates in the New Deal and has a long history of litigation in federal courts, particularly before the United States Supreme Court. This article adds to the existing scholarship concerning the impact of deference on various agencies such as the Environmental Protection Agency, the Securities and Exchange Commission, the Federal Trade Commission, the Social Security Administration and the like.

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Faculty Hiring at UNLV!

Friend-of-blog Ann McGinley sends along this hiring announcement from UNLV, which will include consideration of those pursuing the worklaw field:

The William S. Boyd School of Law at the University of Nevada, Las Vegas, invites applications from both entry-level and lateral candidates for two tenure-track or tenured faculty positions expected to begin July 1, 2023. For these two positions, we seek creative and productive scholars: one with relevant expertise in teaching Legal Writing and one with experience teaching a live-client Clinic. Our faculty who teach legal writing or clinical courses are full members of our unified tenure system with all of the privileges and scholarly expectations associated with tenure; faculty who teach legal writing or clinical courses may teach a podium course as part of our standard 3-course teaching load. Subject matter needs for podium courses are broad and include, but are not limited to, business and commercial law, criminal law, evidence, and property. 

The William S. Boyd School of Law at UNLV is a leading public law school founded on a commitment to public service and community engagement. With its nationally ranked Lawyering Process Program, Saltman Center for Conflict Resolution, and the Thomas & Mack Legal Clinic, Boyd offers a dynamic curriculum designed to teach students critical thinking and lawyering skills. Boyd has an LL.M. in Gaming Law and Regulation and a variety of distinctive Programs in Health Law; Indian Nations Gaming and Governance; International, Transnational, and Comparative Law; and Race, Gender & Policing. Through its J.D. curriculum, students can pursue academic concentrations in Business and Commercial Law, Dispute Resolution, Health Law, Intellectual Property, and Workplace and Employment Law. The law school is located at the heart of the UNLV campus. UNLV is an R1 research university that is among the most diverse campuses in the nation and is also the state’s largest comprehensive doctoral degree granting institution with Schools of Business, Dental Medicine, Engineering, Hospitality, Medicine, Nursing, and Public Health, among many others.

Applicants for law school faculty positions should submit a letter of interest describing teaching interests and experience and providing a scholarly research agenda, along with a detailed resume, at least three professional references, and cites or links to published works. The Faculty Appointments Committee will begin interviewing candidates in August; candidates who submit applications by August 18 will be given priority.  Interested candidates should send their materials to: Faculty Appointments Committee, c/o Ms. Alicia Portillo, Appointments Committee Coordinator, William S. Boyd School of Law at UNLV, 4505 South Maryland Parkway, Campus Box 451003, Las Vegas, NV  89154-1003 or by email at alicia.portillo@unlv.edu

Members of the Appointments Committee are Professors Thomas Main (chair), Mary Beth Beazley, Frank Rudy Cooper, Mary LaFrance, Lydia Nussbaum, and Jean Sternlight.  UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

--Joe Seiner

Call for Papers: The Effect of Dobbs on Work Law

Nicole Porter, who just joined Chicago-Kent and is the new director of the  Martin H. Malin Institute for Law and the Workplace, writes about a really interesting symposium call for papers:

 

 Symposium Hosted by the Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law

The Effect of Dobbs on Work Law

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization is nothing short of monumental. It will undoubtedly have significant and far-reaching effects on almost all areas of life, including families (and family law), relationships, the criminal justice system, healthcare, travel, and state and federal politics, to name a few. It will also undoubtedly have significantly different effects based on race, ethnicity, class, gender identity, sexual orientation, age, and disability.

These issues are already being discussed and explored and will continue to be for years (if not decades). This symposium will explore the effect of Dobbs on work law. Potential issues might include: privacy in the workplace, pregnancy discrimination protections, state and federal maternity leave laws, employers’ liability for assisting employees in procuring abortions, implications for religiously affiliated employers, effects on workers with disabilities, racial and class differences regarding how Dobbs affects the workplace, sexual harassment law, implications for marital status discrimination, potential role of unions and other collective action, and undoubtedly many other potential issues not listed here.

The Martin H. Malin Institute for Law and the Workplace (“Institute”) at Chicago-Kent College of Law will sponsor an in-person symposium on Friday, March 3, 2023, at the College of Law. Out-of-town speakers’ reasonable travel expenses to Chicago will be paid for by Chicago-Kent. Papers will be published in a forthcoming issue of the Employee Rights & Employment Policy Journal, which is a peer-edited journal published jointly by the Institute at Chicago-Kent and the Labor Law Group.

If interested in submitting a proposal, please send a proposed title and one- or two-paragraph description to Professor Nicole Buonocore Porter, Director of the Institute, at nporter@kentlaw.iit.edu. Proposals can address other issues not mentioned above, as long as they are related to the workplace and/or work law. Please include “Symposium Proposal” on the subject line. Please make sure to also include your institutional affiliation and contact information. Proposals are due by Friday, August 12. I hope to have decisions regarding the acceptance of proposals by September 2. Initial drafts of papers will be due two weeks before the symposium.

Final drafts will be due one month after the in-person event. Questions can be directed to Nicole at the email above.

 

 

Jeff Hirsch

COSELL!

I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

COSELL!

be I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

COSELL!

be I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

San Diego Founds Employment Center

• San Diego Law School has founded a new Center for Employment & Labor Policy, and Orly Lobel will be the inaugural Director. The mission of CELP is to: (1) Work to elevate research, policy impact, and teaching in the field. (2) Provide a forum for engagement and debate on employment-related topics. (3) Sponsor speakers, workshops, roundtables, visitors, and fellows. (4) Provide opportunities for collaborative research by USD faculty, USD students, policymakers, and practitioners locally and nationally.

Congrats, Orly!

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