Wednesday, March 31, 2010

Workplace Flexibility

Working Mother Yesterday, the Presidential Council of Economic Advisers released the report, "Work-Like Balance and the Economics of Workplace Flexibility."  The New York Times' Economix has a nice summary of the report, including a chart on the industries that provide the most flexibility.  Of note:  "educational and health" is low on the list, although that's a really broad term.

This is obviously an important issue to working parents, but one that is often not easy for employers.  Some simply resist because it represents a change, while others have struggled to deal with the complications that new work arrangements can cause. One issue that I'm particularly interested in is how workplace norms can affect the availability and use of flexibility measures.  For instance, the University of Tennessee, where I am, has recently established a parental leave system for new parents that can include a semester off and an extra time before going up for tenure.  One thing they're dealing with, however, is faculty members not taking advantage of the program.  Of particular concern is pressure from more senior faculty.  But workplace norms against such leave can also play a role.  Indeed, I recently declined to invoke the semester-off leave--largely out of respect for my law school adminstration's strong support for other recent leave I've had.  However, I'll concede that even as a tenured faculty member, it did occur to me that some of my colleagues who didn't have this option available, may not look favorably at others taking it.  That wasn't a serious factor, as I don't think that attitude would be widespread, if it existed at all, but I certainly thought about it.  And if someone with tenure is thinking about it, you can be sure that it's a big issue for many others.


March 31, 2010 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Privacy, Privilege, and Professionalism

     New Image

The New Jersey Supreme Court just weighed in on the conflict between employer rights in the computers they provide and employee privacy rights. In a man--bites-dog turn of events, the employee won -- at least when the privacy interest at stake is attorney-client privileged communications.

In Stengart v. Loving Care Agency (the name of the defendant apparently is aspirational), plaintiff sued for harassment, retaliation and a variety of other claims after she had left her employment.  She had also left behind her employer-provided laptop, from which (while still employed) she had e-mailed her attorney. In doing so, she had used a private, password-protected Yahoo! account to send and receive messages from her attorney, but she had accessed that account using the employer's laptop.She had not saved her ID or password on the laptop, but that was no problem for a computer expert, who created a forensic image of the hard drive, from which the employer's attorneys were able to retrieved a number of e-mails between plaintiff and her attorney. Although that attorney's e-mails contained the usual warning about privilege, the employer's law firm, Sills, Cummis (headquartered right across the street from where I'm writing this), reviewed the communications -- notifying the plaintiff only months later.

Loving Care, of course, had a policy reserving the right to review all e-mail accessed from company computers, which it claimed deprived plaintiff of any expectation of privacy in her communications in the first place and/or waived any privilege that would otherwise exist. The trial court bought the argument, but the Appellate Division reversed, focusing on the language of the policy, The NJ Supreme Court agreed but went further.

It began by noting that the employer's policy neither explicitly addressed accessing private e-mail accounts nor explicitly warned that the contents of such e-mails are stored on hard drives and can be later accessed.  It then noted that the plaintiff had taken steps -- using a personal, password-protected account -- to protect her privacy, which indicated that she had a subjective expectation of privacy.  Given the failure of the policy to explicitly reach the communications in question, that expectation was also objectively reasonable. Nor were the e-mails "illegal or inappropriate material." In light of the nature of the communications and the standard warning, the privilege attached and was not waived. "The Policy did not give Stengard, or a reasonable person in her position, cause to anticipate that Loving Care would be peering over her shoulder as she opened e-mails from her lawyer on her personal, password-protected Yahoo account."

So far, a ringing endorsement of employee privacy rights. But, of course, one that any competent attorney could easily draft around. I can almost see the management firms gearing up to redraft appropriate use policies to ensure that Stengart will protect few future employees in the Garden State, Or can they.

Section V B of the opinion begins  by reaffirming the right of employers "to adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of the business and to ensure compliance with legitimate corporate policies." It even suggests that an employee who spends "long stretches of time" communicating with his lawyer can be disciplined for violating a policy allowing "only occasional personal use." It then goes on: "But employers have no need or basis to read the specific contents of personal, privileged, attorney client communications in order to enforce corporate policy." At least with respect to privileged communications, "even a more clearly written policy -- that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications if accessed on a personal, password-protected e-mail account using a company's computer system -- would not be enforceable.

So a pretty clear victory for employees -- if on narrow grounds.

Oh, and the Sills, Cummis firm? It violated the rules of professional responsibility (NJ's version of RPC 4.4(b)) by reading the e-mails. While there was no evidence of bad faith (presumably because of the Loving Care policy), the firm acted inappropriately. Sanctions, and potential disqualification from the case, were left to the trial court. One might predict little sanction by a trial court which, you might recall, didn't think the firm did anything wrong in the first place.   

I'd put in a link to the case, but there's something wrong with the court's website. The case is not available on Lexis at the moment, but it should be up shortly.


March 31, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 30, 2010

Employers Must Now Provide Lactation Breaks and Facilities

BreastfeedingWe haven't posted much about the Patient Protection and Affordable Care Act because it focuses so much on regulating the insurance industry and to a lesser extent regulates employers. There's an important protection in it, though, for women who breastfeed their children. Section 4207 amends the Fair Labor Standards Act to require employers to give women reasonable breaks and a location that is not a bathroom to express breast milk. Here's the text.

      Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
      `(r)(1) An employer shall provide--
            `(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and
            `(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
      `(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
      `(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
      `(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.'.

While promoting expressing milk may not be problem free as a policy matter, many women rely on the ability to do so to feed their children, and this is a very important step forward that will support more women of more classes who want to breastfeed their children. I heartily applaud it.


March 30, 2010 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Recently Published Scholarship


  • Paul A. Race & Seth M. Dornier, ADA Amendments Act of 2008: The Effect on Employers and Educators, 46 Willamette L. Rev. 357 (2009).
  • Robert J. Tepper & Craig G. White, Academic Early Retirement: Do Tenure Buyout Payments Warrant Unique Employment Tax Treatment?, 35 Oklahoma City U. L. Rev. 169 (2010).
  • Sean L. McLaughlin, Controlling Smart-Phone Abuse: The Fair Labor Standards Act's Definition of "Work" in Non-exempt Employee Claims for Overtime, 58 U. Kansas L. Rev. 737 (2010).

March 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 28, 2010

Top-10 Labor & Employment Recent SSRN Downloads

Saturday, March 27, 2010

Becker, Feldblum, and Others Given Recess Appointments

White house As predicted, President Obama made several recess appointments today, including Craig Becker to the NLRB.  What was interesting was that Obama recessed only the two Democratic nominees to the NLRB, but recessed two Democrats (including Chai Feldblum of Georgetown) and one Republican to the EEOC.  That could be the result of Obama's need to placate increasing irritable labor leaders, genuine frustration with Republican tactics on Becker's nomination, or a combination of both (not to mention other factors).  One hint comes from the White House announcement of the appointments, including the statement:

The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.

Clearly, the political fireworks will continue until--at a minimum--the November elections.  The bigger question is how this fits in with labor and employment reform efforts, such as EFCA or ENDA.  I don't know if variations on those bills were possible this year anyway, but I wonder whether today's action indicates that the White House will try to jam some bills through or whether this is a bone to throw to labor in lieu of legislative action this year.


March 27, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Friday, March 26, 2010

Fall Seton Hall Forum Call for Proposals

Building on the successes of the last four years, the Fifth Annual Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents.


For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.


The event will be held at Seton Hall Law School, October 22-23, 2010 (we have moved it back to the fall semester).  As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere.  Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.  

Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, May 3, 2010.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or [email protected]

Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by October 1, 2010.

For further information, including past participants, visit our Forum website: 



March 26, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Rothstein Elected to ALI

Rothstein We posted yesterday on Paul Secunda's election to the American Law Institute.  I did not know it at the time, but Laura Rothstein (Louisville - Brandeis) also has been elected to ALI.  Laura has worked on disability law for more than three decades.  Congrats, Laura!  Hat tip: Paul.


March 25, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Looking More Likely Becker Will Be Recessed Appointed to the NLRB

Nlrblogo Well, I for one, hope so. Not only because he is eminently qualified for the position, but because his confirmation process indicated that there was nothing fair or impartial about the way John McCain and his fellow Republicans handled the process.  As many have pointed out, a dysfunctional NLRB serves the interests of employers just fine.

Indeed, perhaps Obama should make three recess appointments, because it is unclear whether the other two nominees (Senate Republican staffer Brian Hayes and Buffalo Democratic labor lawyer Mark Pearce) will be able to get an up-or-down vote in the Senate through the normal procedure. 

Here is the Blog of the Legal Times on the current situation:

As members of Congress prepare to head out of town for a two-week break, pro- and anti-union forces are readying for a possible recess appointment of labor lawyer Craig Becker to the National Labor Relations Board.

Republican senators sent a letter to President Barack Obama today asking him not to use his authority to appoint Becker.

“To do so would bypass the advice and consent traditions of the Senate,” reads the letter, which was organized by Sens. Orrin Hatch (R-Utah) and John McCain (R-Ariz.). It goes on, “We oppose Mr. Becker’s recess appointment because of his extensive, highly controversial writings, and his entire legal and scholarly career, all of which indicate that he could not be viewed as impartial, unbiased, or objective in deciding cases before this quasi-judicial agency.” .  . . .

Pot calling the kettle black, anyone?

On the other side are union-backed groups that have supported Becker since Obama nominated him 11 months ago. Kimberly Brown, executive director of American Rights at Work, said in a statement this week that Obama should “use the same power of recess appointment exercised by his five predecessors — including George W. Bush — and appoint his nominees to the National Labor Relations Board over the Easter congressional recess. America’s working families, struggling to make ends meet in the worst economy since the Great Depression, deserve no less.”

In legal terms, Hatch and McCain come to this point in this political drama with extremely unclean hands, having decided even after the unprecedented step of having a confirmation hearing that Becker could not be impartial, his protestations to the contrary notwithstanding.  The fact that someone writes innovative scholarly opinions does not go to how that person will be in that government office. Those are the exact people we want on both sides thinking long and hard about what ails American labor law.  What is more important is whether the person will support the NLRB as an institution and decide cases in line with nearly 75 years of Board law and policies. 

Look, if you abuse the advice and consent process in the Senate, you can't be expected to be taken seriously when you say to the President: "hey, you shouldn't use your recess appointment power."  Even Chief Justice Roberts asked during oral argument in New Process Steel yesterday why didn't the President just use his recess power given the current crisis at the NLRB? Why indeed.

President Obama should and he should do so by appointing all three nominees so that the full Board can get on with its important work after more than two years and decide the critical issues that arise in the workplace on a daily basis.  Senate Republicans will then be on notice that there is a price to be paid for their shenanigans and obstruction and losing an election decisively means you don't always get to have your way with these things.


March 25, 2010 in Beltway Developments, Labor Law | Permalink | Comments (1) | TrackBack (1)

ABA Section on Labor and Employment Law Ethics Committee Meeting

Ethics The ABA Section on Labor and Employment Law Ethics and Professional Responsibility Committee will be meeting this weekend in Coronado California for a midwinter meeting.  Among myriad other speakers will be:


  • Gwen Handelman (Nova Southeastern), moderating a panel on Attorney-Client Privilege in Employee Benefits Practice: Who's Your Client and When?
  • Michael Green (Texas Wesleyan), moderating a panel on The Allure of Electronic Communications: Forgetting Your Professional Responsibilities When Involved with Email, Facebook, Twitter, and Blogging.
  • Ruben Garcia (Cal Western), moderating a panel on The Role of Attorneys in Policing Professionalism.

March 25, 2010 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Secunda & Oborne: Webinar on State Captive Audience Legislation

Secunda Oborne Paul Secunda (Marquette) and Scott Oborne (Jackson Lewis - Portland) are teaming up to offer an ALI-ABA webinar on State Captive Audience Legislation, Union Organizing Campaigns, and NLRA Preemption.  Here's a summary of the program:

"[C]aptive audience meetings” ... are mandatory meetings the primary purpose of which is to communicate employer opinions on religious or political matters.  Several state legislatures have recently debated whether such practices should be banned, and Oregon has recently done so. Are such state laws preempted by the National Labor Relations Act, since they could have a substantial impact on union-organizing campaigns?

Find out how various state laws--proposed and enacted--could penalize employers for forcing their employees to attend “captive audience meetings”. Will such laws be preempted by the NLRA, since they could potentially have a substantial impact on union-organizing campaigns?

This course will cover the various aspects of federal preemption in this area of law including:

  • The various arguments being advanced by both sides of this federal preemption debate.
  • The implications that this dispute could have on the enforceability of state captive audience laws nationwide.
  • The future of union organizing in the face of these developments.


March 25, 2010 in Faculty News, Labor Law | Permalink | Comments (0) | TrackBack (0)

California Employment Law

Kadue Defense firm Seyfarth Shaw has published the 2010 edition of Cal-Peculiarities: How California Employment Law is Different, which is available by request from the firm.  Here's an excerpt from a promotional summary:

A critical reference for any employer doing business in the Golden State, Peculiarities examines the ever-growing thicket of employment laws and regulations that make California “the most burdensome state” to operate a business, as noted by author David Kadue [photo left], an employment attorney in Seyfarth Shaw’s Los Angeles office.

At over 200 pages, the book covers dozens of areas of employment law issues – from discrimination and harassment claims to privacy protection, family leave policies, third-party injury, independent contractor status, non-competes and of course, wage-and-hour disputes.

Also addressed are more exotic topics in California workplace law, such as lactation accommodation and time off allowed for addicts and certain volunteer workers; HIV and drug testing; and excessive cell phone and BlackBerry usage. Peculiarities looks at recent court developments, such as the limiting of the protection offered by the state’s Good Samaritan law, as well as employee compensation as a class for time spent undergoing security checks. And, this being California, there is also a chapter devoted to agricultural workers.


March 25, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Moffat v. Noncompetes

Moffat Viva Moffat (Denver) has just posted on SSRN her article (forthcoming William & MaryL. Rev.) The Wrong Tool for the Job: The IP Problem with Non-Competition Agreements.  Here's the abstract:

In this article, I argue that non-competition agreements should be unenforceable. Although various attacks have been launched at non-competes, most of them have been aimed at reforming the doctrine rather than eliminating enforcement of the agreements entirely. This is because the justifications for non-competes have been left mostly unchallenged, and I undertake that task here.

The most problematic and least examined of these is the IP justification: in an increasingly knowledge-based economy, many argue that non-competes are necessary to protect trade secrets and other intangibles or that non-competes provide an incentive for invention and investment, a classic IP justification. Though rhetorically compelling, perhaps, this justification is flawed. First, trade secret and other IP protections are intentionally limited to provide a certain amount of, but not too much, protection. Allowing enforcement of non-competes in order to protect IP interferes with the contours of IP protection. Second, even to the extent that IP law is insufficient – that is, unintentionally limited – non-competes are not the right tool for the IP job. A prohibition on the enforcement of non-competes would thus serve a channeling function, directing efforts to protect intangibles to the IP regimes and encouraging the development of the appropriate IP balance (which is, of course, a work in progress).

Other justifications for non-competes are similarly weak. The general claim of a “business necessity” to guard “protectable interests” is often cited with no evidence to back it up. When there is something more put forth, it collapses into another version of the IP justification and is similarly problematic. Finally, the freedom of contract justification is also rhetorically compelling but at odds with the realities of employment contracting. Combined with the classic critiques of non-competes, the weakness of the justifications for the use of non-competes leads to the conclusion that they should simply be unenforceable.


March 25, 2010 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Holds Mixed Motives Available in Title VII Retaliation Case

GavelThe Fifth Circuit decided an important retaliation case yesterday. In Smith v. Xerox, the court held that a plaintiff could use a mixed motives theory in a retaliation case under Title VII.

Kim Smith won a jury verdict against Xerox for her claim that she was fired for filing an EEOC charge. Smith had supported Xerox dealers, and had been a great employee until her territory was changed without a corresponding change in her sales goals. She was disciplined for her failure to meet these goals, with an eye towards further discipline after a set period of probation if her performance didn't improve. She filed her charge before that period expired, and it appears that Xerox began termination proceedings within seven days of that, well before the probationary period ended. Xerox also failed to follow its own procedures in connection with the probation after that point. At trial, Smith requested and the jury was given a mixed motives instruction. The jury found that Xerox was motivated to terminate her in part by the EEOC charge and also found that it would not have made the same termination decision had she not filed the charge. She was awarded compensatory and punitive damages.

While the case was on appeal, the Supreme Court's decision in Gross was issued, and Xerox argued that the case controlled, making the mixed motives theory unavailable in retaliation cases. The Fifth Circuit disagreed. The court noted that as was significant in Gross, the amendment to Title VII that added the "motivating factor" language, codifying that part of Price Waterhouse, did not refer to retaliation. However, the court noted that Price Waterhouse interpreted what the terms "because of" meant in Title VII. The Court in Gross interpreted the same term, but in the ADEA. The Fifth Circuit felt bound to follow the line of cases interpreting the language in Title VII and likewise felt bound to interpret the "because of" in the retaliation provision the same way it was interpreted for the substantive provision. And following the logic of the Court in Desert Palace v. Costa, the Fifth Circuit held that there was no need for direct evidence of retaliation to shift the burden.

The Fifth Circuit thus upheld the verdict of retaliation, but reversed the award of punitive damages, finding that there was not sufficient evidence to show that her managers acted with malice or reckless indifference that the termination would violate Title VII.

The Fifth Circuit's analysis harmonizes Gross and Price Waterhouse in an interesting way. It seems that many of us have taken for granted that Gross would control the motive question for retaliation questions, but that does create a real problem within Title VII, given the fact that the Court in Price Waterhouse had interpreted what "because of" means in Title VII, not limiting its analysis to the substantive provision. Drawing the line at the borders of the ADEA or at the very least, the borders of Title VII is a middle ground. We'll have to see whether the other circuits or potentially the Supreme Court agree.


March 25, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

KBR Withdraws Cert. Petition

JljWe reported in early February that KBR/Halliburton had filed a cert petition in the Jones case, which, you may recall, involved allegations by employee Jamie Leigh Jones that she was drugged and raped by several of her coworkers in her quarters in Iraq. According to Scotusblog, KBR has now withdrawn that petition.

A spokesperson for KBR said that the company did not want to risk running afoul of the Franken Amendment, which precludes a defense contractor (for certain contracts) from receiving 2010 Defense Appropriation funds if the contractor enforces an existing arbitration agreement that would require the arbitration of claims under Title VII of the Civil Rights Act of 1964 or any tort claim related to or arising out of sexual assault or harassment. KBR had insisted in its petition that the amendment did not affect this case, but apparently has now changed its mind out of concern that at least one of its current federal contracts might be jeopardized by asking the Supreme Court to force Jones to arbitrate her claims. So at least some of Jones' claims will now go forward at the trial court.


March 24, 2010 in Arbitration, Employment Discrimination, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

CLE on Plausibility in Labor and Employment Cases

AbaThe ABA Section of Labor and Employment Law and Center for Continuing Legal Education are presenting a CLE program (teleconference and live audio webcast) on the effect of Iqbal and Twombly on labor and employment cases. According to the program description:

The pleading standard for a viable cause of action, as defined by the Federal Rules of Civil Procedure, requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”  In 2007, the United States Supreme Court’s Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007),decision re-examined the pleading standard and rejected Conley v. Gibson’s “no set of facts” test. 

In 2009, the Supreme Court expanded Twombly’s reach in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), holding Rule 8’s newly-crafted pleading standard applies to all civil cases. No matter your focus and no matter who your client is, the Court’s decision in Iqbal marks an abrupt shift in pleading standards, and that shift has affected all labor and employment cases.  Hear from our panel of employment law experts, who will cover such critical areas as: 

  • The impact of Iqbal on labor and employment law cases to date;
  • How labor and employment practitioners are adjusting to the new pleading standard;
  • What the future trend in labor and employment adjudications holds; and
  • The proposed legislation to overturn Iqbal.

Panelists include Suja Thomas (Illinois), Josh Civin (NAACP LDF), and Jonathan Youngwood (Simpson & Thatcher), and the moderator is Samuel Miller (Outten & Golden). It should be an interesting discussion.


March 24, 2010 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Secunda Elected to ALI

Secunda Many congratulations to Paul Secunda, who has been elected to the American Law Institute.  If any other readers of Workplace Prof Blog have been similarly elected, let me know so I can post the good news.




March 24, 2010 in Faculty News | Permalink | Comments (1) | TrackBack (0)

Befort on "Regarded As" as a Congressional Do-Over

Befort Steve Befort (Minnesota) has just posted on SSRN his article (forthcoming Utah L. Rev.) Let's Try this Again: the ADA Amendments Act of 2008 Attempts to Reinvigorate the 'Regarded As' Prong of the Statutory Definition of Disability.  Here's the abstract:

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.”

Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong.

This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise.


March 24, 2010 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tucker: Should Labour Law be Pro- or Anti-Competitive?

Tucker Eric Tucker (York - Osgoode Hall) has just posted on SSRN his article (forthcoming Industrial L.J.) Re-Norming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?  Here's the abstract:

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid regulatory dilemmas. This article reviews the concept of regulatory dilemmas as formulated in the three major traditions of labour law scholarship, critically assesses recent work by Deakin and Wilkinson and by Hyde that proposes to renorm labour law and overcome regulatory dilemmas, and proposes an alternative approach to understanding regulatory dilemmas based on the work of Wright. 


March 24, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

FIU Symposium on the NLRB's 75th Anniversary

FIU FIU's Symposium, "Whither the Board?  The National Labor Relations Board at 75" is occurring this week, on March 26-27.  Papers will appear in a special symposium issue of the FIU Law Review.  According to the symposium's description:

As the National Labor Relations Board approaches its 75th anniversary, its continued vitality has been questioned.  It has operated with only two members since December 28, 2007.  Two calendar years have passed, and yet there are few signs that the public or the workforce has noticed.  Is this a temporary matter, or has one of the original New Deal agencies lost focus?  If it has, what should the Board do to reinvigorate its traditional role as the primary regulator of private-sector labor relations? 

The line-up of speakers and commentators is impressive and includes top academics as well as both of the current NLRB members, as well as former Board member and current Dean of FIU, Alex Acosta.  To see the program click of the following link:  Download FIU Symposium Schedule.

Kudos to Dean Acosta, Kerri Stone, and others at FIU for organizing such a great program.


March 23, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)