Sunday, September 3, 2006

Blawg Review #73

Laborday The Workplace Prof Blog is thrilled to be hosting the 73rd edition of the esteemed Blawg Review for Labor Day 2006 (we didn't need no stinkin' vacation anyway) and thought that we would look at this holiday from a distinctly legal perspective (but still make it a fun time for all nonetheless).

In this vein, it has been said that American labor law is about placing industrial combatants on equal footing so that the sides, labor and management, can have at one another in a high stakes game of economic warfare in order to hammer out mutually-agreeable terms and conditions of employment.

So who is exactly winning the war these days?  There are probably more scientific ways to decipher this on-going tit-for-tat, but we thought what better way to do this (given the constraints of a blog carnival) than to review recent labor-related blog posts and determine whether the story's outcome favors labor or management.  For the sake of keeping the sides straight, we'll call the labor side, "Norma Rae," and the management side, "Wall Street."

So here goes:

It makes sense to start all this with an example of what we mean when we talk about the battle between labor and management: Jordan Barab of Confined Space has the details of one particularly nasty fight over the "Taxpayer Bill of Rights" and public employment between AFSCME and Richard Berman's Center for Union Facts. Advantage: On-going

Bruce MacEwen at Adam Smith, Esq. wonders, in thinking about law firm laterals, whether just because superstar employees bring in more revenue, does that make the venture more profitable? Or, do expenses associated with the superstar capture essentially all the added value they bring, leaving no extra profit for the business?  Advantage: Norma Rae (given that it appears that these superstar employees likely retain the compensation they bring to the firm)

There is a lot of disagreement over the exact meaning of the stock option back-dating scandal with Bruce MacEwen at Adam Smith, Esq., not necessarily seeing the harm and Matt Bodie at PrawfsBlawg not necessarily agreeing. Advantage: No one. A wash until we can figure out what the heck is going on.

No issue who's the winner in this one: ContractsProf Blog reports that employee noncompetition clauses are not enforceable in California.  Advantage: Norma Rae

Greg Mankiw's Blog provides evidence from an economist's study that establishes, contrary to popular belief, that there are still many employees who have stable long-term employment relationships with one employer.  Then why are so many workers pessimistic according to the Pew Research Center as Brent Hunsberger at The Oregonian At Work Blog reports?  Advantage: No one. A wash.

Pot-smoking not enough to get you fired in Iowa?  Apparently not, if you don't receive a copy of the drug testing policy, according to Rosario Vega Lynn at the New Mexico Labor and Employment Law Blog.  But as Mark at The Sportsbiz Blog points out, drug testing for performance enhancing drugs may be coming, with the support of Tiger, soon to the PGA Tour. Advantage: Another wash.

Breast-feeding accommodations at work?  Brent Hunsberger at The Oregonian At Work Blog tells us it is more likely if you are a white-collar worker than a blue-collar one.  Advantage: No one, since employees at different income levels are being treated differently

Diane Pfadenhauer of Strategic HR Lawyer recommends that Radio Shack, with its recent firing of 400 employees by email, can serve as the poster child for how NOT to fire employees.  Advantage: Wall Street (Ross Runkel just flat out persuaded me. He's very persuasive).

The true meaning of Labor Day? Julie Ferguson at Workers Comp Insider reminds us that it's a celebration for the contributions that workers have made to the prosperity of American society. You go American Worker! Advantage: Norma Rae

Chris McKinney at The HR Lawyer's Blog has advice from an article for management on how to navigate the turbulent waters surrounding workplace retaliation suits in light of the Supreme Court's recent Burlington Northern decision.  Advantage: Wall Street

Does a law firm that encourages lawyers to take a nap when tired deserve an award or its collective head checked? cites a Newsday article that explains in New Zealand you get a "work-life balance" award.  Arnie Herz of Legal Sanity is on the same wave length in embracing the idea of learned optimism for lawyers, who should carve out "sacred time" for themselves during the day. Advantage: Norma Rae

Next up, George of George's Employment Blawg (writing for considers whether it is illegal for employers to make employment decisions about employees and potential employees based on what they read about a person on  Short answer: probably not.  Advantage: Wall Street

Keeping with the spirit of Labor Day, David Giacalone, of ethicalEsq and f/k/a, puts out a virtual help wanted sign for some new co-editors for his newest venture: shlep: the Self-Help Law ExPress, which will cover the world of self-representation, pro se litigation and do-it-yourself legal services.  Advantage: Norma Rae (bloggers) fills us in on an on-going sexual harassment suit by a partner against her law firm.  The law firm is defending on the ground that the partner is not an employee for purposes of Title VII.  Advantage: To Be Determined (my guess, eventually Norma Rae)

Apparently, the YUPPY of the 80's is passe. Legal IT explains the GOSSIP (Gadget Obsessed, Status Symbol Infatuated Professional) employees of the new millennium have taken over with their nano iPods, memory sticks, and cell phones.  More toys for labor = advantage for Norma Rae, but more connections to work all the time can lead to workalcoholism and even liability for the employer for promoting addiction in its employees, according to this post by Chris McKinney at The HR Lawyer's Blog. Advantage: Apparently no one

I'm with Troy Rosasco at The Disabled Worker Law Blog in taking my hat off to Governor Pataki of New York for signing into law a workers comp bill that will provide medical and lost wage benefits to Ground Zero rescuers and first responders. Advantage: Norma Rae

Howard Bashman at How Appealing points to an article in the Wall Street Journal for the proposition that bloggers have trouble relaxing and many times even blog while on vacation. I would say that's sick, but I would only be putting myself down. Advantage: Wall Street (within the same person, management is beating up on labor).

Don't look now, but the Labor and Employment Law Blog has the low down on a new web-site established for the sole purpose of reporting employers who hire illegal immigrants. The website was set up by a network of law firms, labor organizations, immigration reform advocates and others working to eliminate the incentive for illegal immigration. On the same topic, both George at George's Employment Blawg and J. Craig Williams of May It Please The Court have the scoop on employers suing other employers under unfair competition laws for using illegal immigrant workers   Advantage: Norma Rae (many unions support the rights of immigrant workers, but employers are facing lawsuits in these cases and losing cheap sources of labor).

Michael McCann over at the Sports Law Blog details the Deion Branch/New England Patriots story, in which Branch would like to be traded to another team, but the Patriots aren't budging.  Branch has filed an arbitration claim, but as one of the comments to the post points out, under an exclusive rights contract, Branch probably has no chance.  Advantage: Wall Street

Pay up, Donut Boy!'s In-House Counsel has the scoop on the $4.7 million dollar class action settlement Krispy Kreme agreed to based on allegations of ERISA fiduciary breaches concerning employee retirement plans. And perhaps Krispy Kreme execs should consider themselves lucky, as poor pension governance may lead some fiduciaries to jail, according to Susan Mangiero at Pension Risk MatterAdvantage: Norma Rae

Lawyers may be the butt of many jokes in this country, but at least they are not being harassed, intimidated, and generally having the crap beat out of them for filing a class action as in China. Matt Barr of the Socratic Rhythm Method has the details.  Advantage: Tie (time to take a step back from the fray and realize that American labor and management have it good in relative terms).

Walter Olson at has the skinny on how anti-Wal-Mart groups are petitioning state attorney generals to apply false advertising laws to stymie Wal-Mart from issuing TV commercials defending themselves against union attacks. Such far-fetched legal attacks can only make Wal-Mart look sympathetic.  Advantage: Wall Street

Finally, David Maister at Passions, People, Principles has a nice piece of advice for how staff people can help partners and other superiors make their law firms better places to work. Advantage: Norman Rae

Final Tally:

Norma Rae:  9

Wall Street:   6

Tie, on-going, to be determined, etc.:  8

SO, putting to one side the fact that only 7.8% of the private sector workforce is presently unionized in this country, labor can take solace in the fact that they had a pretty blogorific week heading into Labor Day (though the fact that there are a significant number of disputes which have no winners makes you wonder whether a little less industrial combat and a little more industrial cooperation would go a long way in the American workplace). 

In any event, thanks for playing along at home everybody and Happy Labor Day!

Next week, check out Blawg Review #74 which will be hosted at Case School of Law's Institute for Global Security Law and Policy on September 11th.

Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.

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