Monday, November 8, 2021
Friend-of-Blog Michael Oswalt (Interim Director, Institute for Law and the Workplace at Chicago-Kent) sends along the notice below (and Flyer Here) for the Louis Jackson student writing competition:
2021-2022 Louis Jackson Memorial National Student Writing Competition in Employment and Labor Law
Co-Sponsored by Jackson Lewis P.C. and The Institute for Law and the Workplace at Chicago-Kent College of Law
Manuscripts are now being accepted for the 24th annual Louis Jackson Memorial National Student Writing Competition in Employment and Labor Law. The competition is supported by Jackson Lewis P.C. in honor of founding partner Louis Jackson and administered by the Institute for Law and the Workplace at Chicago-Kent College of Law. The top three winners receive scholarships: $3000 for the first-place winner, and $1000 each for the two second-place winners.
The competition is open to all current law students who submit a scholarly paper on a topic related to laws governing the workplace. Entries must be received by midnight on Tuesday, January 18, 2022. Judging is doubly anonymous and performed by a panel of law professors from across the country; neither Jackson Lewis nor Chicago-Kent is involved in that part of the process.
Papers must conform to current Bluebook style and not exceed 35 pages in length, double-spaced.
For any questions, or to submit an entry, please go to: kentlaw.iit.edu/louis-jackson-writing-competition
Wednesday, November 3, 2021
Thanks to Tequila Brooks for letting us know that this November, DC LERA will host two webinars on labor relations in the US healthcare and Canadian airline industries. Co-sponsored by the ILO Office for the US and Canada, these webinars will address key labor and human resources concerns in critical industries post-COVID.
- Nov. 10 (12 pm EST): Paul Clark of Penn State on Employment Relations in Healthcare.
- Nov. 17 (12 pm EST): Michael Abbott of Air Canada on Labor Relations in the Airline Industry.
Friday, October 22, 2021
The University of Nevada, Las Vegas, invites applications and nominations for the position of Dean of the William S. Boyd School of Law. This year, Boyd secured its position as one of the country's top 30 public law schools for the 15th consecutive year. The school’s Lawyering Process Program ranked first among legal writing programs in the nation, its part-time program is rated among the top 20 in the country, and its Saltman Center for Conflict Resolution ranked fifth among the top dispute resolution programs, according to U.S. News & World Report's 2022 rankings. Dedicated to serving both the city of Las Vegas and the state of Nevada as its only law school, Boyd is an integral component of one of the fastest growing and most diverse universities in the nation. Boyd is committed to nurturing a learning community of excellence and diversity, and strongly encourages applicants from a wide range of backgrounds to explore this exceptional opportunity.
Founded in 1957, UNLV is a thriving urban research institution of more than 31,000 students that is supported by over 4,500 faculty and staff dedicated to exceptional teaching, research, and service. The University offers professional degrees in business, law, engineering, medicine, architecture, dental medicine, and hotel administration and leading programs in liberal arts, nursing, urban affairs, public health, fine arts, sciences, engineering, and education. From its founding in 1998, Boyd has been a law school committed to scholarship, experiential learning, and skills education in which all tenure-stream faculty—podium, clinic, and legal writing—are evaluated the same way.
The University has become an indispensable resource in one of the country's most diverse, enterprising, and rapidly growing cities. The UNLV campus mirrors the diversity of the community in which it sits, ranked among the most diverse undergraduate campuses in the country by U.S. News & World Report. UNLV prides itself on being an institution of opportunity where students traditionally underrepresented in higher education can receive the support that they need to achieve their educational and professional goals. As a Minority-Serving Institution (MSI), Hispanic-Serving Institution (HSI), and Asian American Native American and Pacific Islander Serving Institution (AANAPISI), UNLV enrolls a high percentage of minority students and is committed to reducing barriers to their academic success.
The Dean of Boyd is the chief academic and administrative officer, with the overall responsibility for providing the vision and leadership needed to maintain and enhance the stature of Boyd. As such, the Dean is accountable for the conduct and outcomes of its programs and activities. The Dean, who reports to the Provost of the University, is also Boyd’s principal participant in university governance and functions as Boyd’s lead representative to internal and external constituencies, including the University community, the legal profession in Nevada and beyond, the state legislature, and the larger community.
The University has retained Isaacson, Miller, a national executive search firm, to assist the provost and search committee in the recruitment of the new Dean. All inquiries, applications, and nominations should be directed in confidence to Isaacson, Miller as noted in the attached.
Friday, October 15, 2021
The program today at COSELL (hosted, wonderfully, by Vanderbilt Law School and Jennifer Shinall) featured a number of fascinating panels on workplace issues, and tomorrow's program looks equally engaging. I am also pleased to report that at the awards ceremony this evening, Jamillah Bowman Williams (Georgetown Law) was the very-well deserved recipient of the Michael J. Zimmer Memorial Award (for a rising scholar who values workplace justice and community, and who has made significant contributions to the field of labor and employment law scholarship) and Workplace Prof Blog's very own Jeffrey Hirsch (North Carolina) was the well-deserved recipient of the Paul Stephen Miller Award (for outstanding academic and public contributions to the field of labor and employment law scholarship). Please join mean in congratulating Jamillah and Jeff who are both prolific scholars and wonderful colleagues!
Thursday, October 14, 2021
Many thanks to Tequila Brooks for sending word of this program. Speakers are Dan Pedrotty, who spent the last four months working on the White House Task Force on Worker Organizing and Empowerment to be released next month; and Daniel Francis Pedrotty, Staff Director, White House Task Force on Worker Organizing and Empowerment & Labor Policy Advisor, Vice President Kamala Harris. Register here.
Wednesday, October 6, 2021
Last week, Seton Hall held a retirement party for our friend, Charlie Sullivan. It's truly bittersweet, as I'm very happy for Charlie but sad to see him retire. As readers of the blog know, Charlie has been an extraordinary contributor to the field, especially in employment discrimination, and through all the students he's taught. In 2020, the Seton Hall Law Review held a symposium on Charlie’s scholarship, which highlighted many of his contributions. Finally, Steve Willborn was kind enough to send some pictures, which are below (I know two are sideways, but I'm having a battle with Typepad's photo editor ... and losing badly).
Best of luck Charlie!!
César F. Rosado Marzán writes to inform us about a great call for papers:
CALL FOR PROPOSED PAPERS:
Final papers due February 1, 2022
Employee Rights & Employment Policy Journal, Annual Symposium:
“What has Critical Race Theory Contributed to the Law of the Workplace?”
Some influential media pundits, politicians, state legislatures, and the administration of Donald J. Trump launched a frontal attack on Critical Race Theory (CRT). Reasons for the assault on CRT include that CRT theorists allegedly argue that the United States, white people, and other racial groups are inherently and irremediably racist and evil. Attacks include banning teaching CRT in public schools and other institutions of learning and forbidding implicit bias training.
But CRT has, for the most part, been a scholarly theoretical perspective focused mostly on exploring structures of race and racism. It has inspired a large body of work identifying how race and racism pervade in U.S. society despite the end of slavery and Jim Crow. As such, it has contributed to correcting our understandings of bias and to making U.S. law more sensitive to overt and hidden forms of discrimination. Far from arguing that groups are irremediably racist, it has also inspired research on how bias can change and how racism can be transcended, including by law and through worker training.
Unsurprisingly, labor and employment law has been affected by CRT. It has helped expand and historicize legal perceptions of race, color, and national origin; guide legislatures and courts on how appearance, grooming, and hair rules are colored by racist perceptions; understand how immigration status might be racialized; and explore intersectional realities, among other contributions.
In this light, the Employee Rights and Employment Policy Journal is calling for submissions for its annual 2022 symposium related to the contributions of CRT to the law of the workplace. Contributions can also focus on the legal rights that school and university administrators and educators have to resist political intrusions into academic freedom, such as those banning instruction of CRT.
We are seeking abstract submissions to be sent to us by November 12, 2021. Please submit to César F. Rosado Marzán (email@example.com) an abstract that is developed enough to allow the editors to evaluate the thesis and proposed execution of the project as a proposal. Please send the document in Microsoft Word format. Selected authors will be notified by Nov. 23, 2021, if not sooner, of the interest in potential publication. Completed papers will be expected by February 1, 2022. Any inquiries about the Call for Papers should be submitted to firstname.lastname@example.org.
This Symposium is sponsored by The Labor Law Group, a non-profit trust of labor and employment law scholars who collaborate on various educational projects. Labor Law Group member César F. Rosado Marzán (Iowa Law) will serve as symposium editor working with journal co-editors Michael Green (Texas A&M) and Noah Zatz (UCLA).
Employee Rights and Employment Policy Journal is a faculty-edited, peer-reviewed journal co- published by The Labor Law Group and IIT Chicago-Kent College of Law. Authors uniformly praise the Journal’s editing process. The Journal has a student staff who provide cite checking and Bluebooking, but their work is reviewed by the faculty editors, and authors do not deal directly with students.
Saturday, September 18, 2021
Hot off the SSRN presses is Susan Bisom-Rapp's trenchant article, The Role of Law and Myth in Creating a Workplace that "Looks Like America." It deals efficiently and perceptively with the past, present, and potential future of employer programming to deal with DEI, discrimination, and harassment. Download available here and abstract below.
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 that employers embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful blindness prevents the admission that some policies and programming, although not all, harm those most in need of protection.
This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in anti-discrimination 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 argues 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 on those organizational efforts most likely to succeed and those most likely to prompt backlash.
To facilitate evidence-based EEO compliance, this article advocates changes in liability standards. Also recommended is 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 suggests lawyers 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 American workplaces.
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.