Monday, October 31, 2011
I am happy to anounce that the UNLV Boyd School of Law has been unanimously selected to be the host of the 8th Annual Colloquium on Labor and Employment Law in Fall 2013. Ann McGinley, Ruben Garcia, and their colleagues will be organizing the conference.
In the meantime, the 7th Annual Colloquium will be in Chicago on Friday, September 14, and Saturday, September 15, 2012, at Loyola Chicago and Northwestern law schools. Friday's program will be held at Loyola with Northwestern taking over on Saturday. There will be breakfast and lunch both days and a dinner on Friday night. More announcements will be made, but in the meantime, mark your calendars!
Saturday, October 29, 2011
- Michael C. Duff, Union Salts as Administrative Private Attorneys General, 32 BJELL 1 (2011).
- Kevin Banks, Trade, Labor and International Governance: An Inquiry into the Potential Effectiveness of teh New International Labor Law, 32 BJELL 45 (2011).
- Alek Felstiner, Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry, 32 BJELL 143 (2011).
- Adam B. Gartner, Protecting the ERISA Whistleblower: The Reach of Section 510 of ERISA, 80 Fordham L. Rev. 235 (2011).
- Richard Bales & Lindsay Mongenas, Defining Independent Contractor Protection Under the Rehabilitation Act, 34 Hamline L. Rev. 435 (2011).
- Grant T. Collins & Penelope J. Phillips, Overview of Reasonable Accommodation and the Shifting Emphasis from Who is Disabled to Who Can Work, 34 Hamline L. Rev. 469 (2011).
- Robert C. Bird, The Power of Uncertainty in Disability Law, 34 Hamline L. Rev. 605 (2011).
- Richard Bales & Melanie A. Goff, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, 115 Penn St. L. Rev. 539 (2011).
Thursday, October 27, 2011
Today, several of the named plaintiffs in Wal-Mart v. Dukes, including Betty Dukes, filed an amended complaint against Wal-Mart, alleging pay and promotion discrimination on the basis of sex in Wal-Mart's California stores. According to the L.A. Times, Wal-Mart contends that the amended complaint simply rehashes the arguments the Court rejected. One of the attorneys for the women said this was just the first of an "armada" of cases to follow. I'm not sure it helps Wal-Mart to have resisted this class action if it now must defend thousands and maybe even tens of thousands of individual suits. For more see the NYT, and the complaint. I wonder if this will take another ten years to get past the certification question.
Guy Davidov (Hebrew U. Jerusalem), on behalf of the Labour Law Research Net Steering Committee, writes:
I am happy to report that a new network has been formed to advance research in labour law and facilitate contacts and exchange of ideas between labour law scholars. The network is based on cooperation between 30 labour law research centers from all over the world. All individual labour law scholars are welcome to join, whether affiliated with a research center or not. Please visit our website at http://www.labourlawresearch.net -- it is intended to provide a forum for posting labour law papers (you are welcome to send in your own) and information on relevant events. There is also a page for discussion forums on current substantive labour law topics. Please sign up at the website for the mailing list, which is designed to allow all labour law scholars to send and receive relevant information (it will be moderated to prevent spam or otherwise inappropriate messages). Please also forward this invitation to other labour law scholars (including PhD students) that might be interested.
Several terrific new articles have just been posted on SSRN:
- Charlie Morris, Restoring the Policy and Meaning of the National Labor Relations Act: Countering Taft-Hartley Revisionism and Distortion of the NLRB Appointment Process (forthcoming BJELL 2012).
- Michelle Travis, Impairment as Protected Status: A New Universality for Disability Rights, forthcoming Georgia L. Rev. (2012).
- Charlotte Garden, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, Fordham L. Rev. (2011).
- George & Joanna Shepherd, Baseball’s Accidental Racism: The Draft, African-American Players, and the Law, forthcoming Connecticut L. Rev. (2012).
Wednesday, October 26, 2011
Amid all the criticism of the NLRB comes news that the agency has just won the John C. Cruden Federal Agency Pro Bono Leadership Award, which recognizes the agency's encouragement of pro bono work by its employees. According the the Board's press release:
The award, which is administered by the Federal Government Interagency Pro Bono Working Group, is given every two years and the Agency will be the third recipient. NLRB lawyers have donated hundreds of hours of their own time to work with various legal clinics, primarily the D.C. Bar’s Advocacy and Justice Clinic and the Montgomery County Bar Association’s Pro Bono Legal Advice & Referral Clinic. They have represented the area’s poor in cases involving child support, child custody and visitation, evictions, wills, personal injury defense, home repair disputes, and hour and wage claims.
The Agency was selected for a variety of reasons, among them: Hosting pro bono training events for federal lawyers in the area; playing an important role in establishing a federal pro bono legal program in San Francisco; adopting a recent policy granting lawyers at NLRB headquarters up to 40 hours of administrative leave for trial appearances and other work that cannot be done on a lawyer’s own time; and long-time involvement and a strong leadership role in the Interagency Working Group begun in 1998.
Congratulations to the Board and all of the attorneys who helped earn the award. See the link above for more details on the presentation, which will be given by Chief Judges Royce Lamberth and David Sentelle.
It's on-campus interview season at law schools around the country, so I thought I'd try to spark a discussion about interview questions. By the time most faculty candidates have finished a day's worth of interviewing, they've probably heard the standard "Tell me about your scholarship" and "Describe your approach to the classroom" a dozen times or more. As LEL folks, I think we can do better.
What are your favorite questions to ask in a faculty interview, and what do you hope to accomplish with those questions? I'll lead off with a few of my own:
- Give me an example of a time when you went above and beyond the call of duty. [I'm looking for someone who is internally motivated. If a candidate can't think of an example, that's a bad sign. If the candidate's example doesn't sound very exemplary to me, that's also a bad sign. Nearly everyone who goes through the AALS hiring process is capable of terrific scholarship, but not all of them are sufficiently self-motivated to follow through, especially after receiving tenure.]
- Have you ever had to "sell" an idea to your co-workers or group? How did you do it? Did they buy it? [I'm looking for someone who's creative enough to think outside the box, and who has the communication and people skills to turn an idea into an accomplishment; I'd also be impressed by someone who had an outside-the-box idea, proposed it, then had the open-mindedness to withdraw it if circumstances warranted that.]
- What have you done in the past to contribute toward a teamwork environment? [I think this one's fairly self-explanatory.]
Please comment to add your favorites.
Older workers could face being sacked or told to consider retirement by their employers and not be able to launch ageism legal action under sweeping government plans announced by Nick Clegg.
The Deputy Prime Minister said that businesses should be free to have "frank discussions" with underperforming workers without any consideration for their age or fears about pending employment tribunal proceedings.
Mr Clegg's comments came as he announced a ''major shake-up'' of business inspection so that firms would be offered advice and support but would also be allowed to ''get on'' with their work.
The proposed change means introducing a new law that will allow "protected conversations" - meaning staff will not be able to use them against employers later.
Tuesday, October 25, 2011
The following request for faculty information from labor and employment law professors is from both the AALS Section on Labor Relations and Employment Law and the AALS Section from Employment Discrimination Law:
Apologies in advance for crossposting.
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law and we want to enlist the help of readers. First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here, please email Peggie at email@example.com.
Second, we want to include a list of your relevant employment or labor law-related publications published in 2011. These can be books, articles, and chapters. Please save any forthcoming entries that will not have a 2011 publication date for next year's newsletter. Please send a list of your 2011 publications to Peggie as well.
Third, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision, but it doesn't have to be—a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law could also be good choices. The description should be pretty short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Please send submissions to Deborah at firstname.lastname@example.org.
Please send all submissions by November 21, 2011.
Peggie Smith and Deborah Widiss
The New York Law School Law Review and the Employee Rights Advocacy Institute For Law & Policy present the symposium Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination. The symposium will be held Monday, April 23, 2012, 8:30 a.m. – 4:45 p.m. The keynote speaker will be Judge Denny Chin, U.S. Court of Appeals for the Second Circuit. Here's a description of the symposium:
Federal judges, practitioners, and legal scholars will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases. The increasing prevalence of pre- and post-trial dispositive motions in litigation has had a demonstrably unique effect in cases alleging violations of employment discrimination laws. A substantial and growing body of evidence, both empirical and anecdotal, shows that cases alleging employment discrimination are disproportionately susceptible to dismissal before trial as well as to unfavorable JNOV motions after trial.
Encouraging this movement towards pre-trial adjudication of employment discrimination cases are the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, through which the Supreme Court appeared to raise the quantum of facts that a plaintiff must plead to avoid successfully a motion to dismiss. As summary judgment is a primary mechanism for evaluating a case, these rulings raise questions as to whether the Court has blurred the line between motions to dismiss and motions for summary judgment. The program will explore potential strategies to reverse this growing trend.
The terrific cast of speakers includes Ann McGinley (UNLV), Minna Kotkin (Brooklyn), Arthur Leonard (NYLS), Suzette Malveaux (Catholic U.), Scott Moss (Colorado), Elizabeth Schneider (Brooklyn), Joe Seiner (South Carolina), & Suja Thomas (Illinois).
Monday, October 24, 2011
- Christine W. Westphal, Restrictive Covenants in Employment Contracts: Regulating Employee Solicitation, 37 J. Legislation 108 (2011).
- Angela K. Herring, Untangling the Twombly-McDonell Knot: The Substantive Impact of Procedural Rules in Title VII Cases, 86 NYU L. Rev. 1083 (2011).
- Deborah L. Rhode, From Plattitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown J. Leg. Ethics 1041 (2011).
- Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why, 24 Georgetown J. Leg. Ethics 1079 (2011).
- Elizabeth Weeks Leonard, Can You Really Keep Your Health Plan? The Limits of Grandfathering Under the Affordable Care Act, 36 J. Corp. L. 753 (2011).
- Richard Moberly, The Supreme Court's Antiretaliation Principle, 61 Case Western Res. L. Rev. 375 (2010).
Friday, October 21, 2011
After years of troubled leadership, the Office of Special Counsel appears to be finging its groove again. According to the Washington Post, new agency head Carolyn Lerner has been actively pursuing whistleblowing cases, including filing requests with the MSPB to stay adverse personnel actions.
Once more stats are released it will be interesting to compare the OSC's numbers over the last several years.
Today's New York Times reports that Wal-Mart is substantially "rolling back" health care coverage for part-time workers and raising premiums for full-timers:
Citing rising costs, Wal-Mart, the nation’s largest private employer, told its employees this week that all future part-time employees who work less than 24 hours a week on average will no longer qualify for any of the company’s health insurance plans.
In addition, any new employees who average 24 hours to 33 hours a week will no longer be able to include a spouse as part of their health care plan, although children can still be covered.
In Wal-Mart’s 2012 health offerings, premiums will increase for some plans by more than 40 percent, although many of their workers pay relatively low premiums in comparison to more generous plans offered by other employers. But many Wal-Mart employees complain that their low premiums are accompanied by high deductibles that sometimes exceed 20 percent of their annual pay.
Wal-Mart’s new health offerings will require many employees who smoke to pay a significant penalty. They will be required to pay an extra $10 to $90 each pay period — $260 to $2,340 a year — if they want health coverage.
If it were just Wal-Mart, this would be bad enough. But I strongly suspect that this will put pressure on -- or give excuses to -- other retailers (almost all of whom have huge part-time salesforces) to cut benefits for their part-time workers as well.
Hat tip: Jennifer Clemons.
Thursday, October 20, 2011
Here's a great article from Psychology Today that helps explain at least part of the reason why women still earn less than men:
... Despite all the advice women receive telling them that they fall behind men in the workplace because they don't ask for raises; because they don't network; because they don't promote themselves, it turns out that women actually do all of these things, as much as or more than men. The problem isn't us, it's them.
The Catalyst report takes aim at the claim - now almost taken for a truism in business literature - that women don't ask for promotions and salary increases at the same level as men. According to the Catalyst report, women were actually found to ask more than men for both increased compensation (63% of women to 54% of men) and a higher job position (19% of women and 17% of men) when they moved on from their first job. And yet, despite the popular wisdom that an employee willing to move to a new company has more negotiating power, women who moved around in their career earned an average of $53,472 less than their counterparts who stayed at the same company.
What the Catalyst report doesn't say is that not only does a lot of the advice out there not help women, much of it actually hurts them. Social scientists [explain that this is the result of a] the Backlash Effect. If you're seen as too feminine, you won't get the same opportunities as men in the first place. If you're seen as too masculine, you'll be seen as capable, but judged as undeserving of realizing the opportunities you would otherwise merit, on account of your personality problems. It's a classic damned-if-you-do, damned-if-you-don't situation. Unfortunately, much of the advice out there only addresses one side of the problem.
The Catalyst Report referred to in the excerpt above is The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?
Jason Bent (Stetson) has just posted on SSRN his article on a much-neglected topic of LEL scholarship: workplace safety. Some of you may recall that he presented it at the Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law. His article is An Incentive-Based Approach to Regulating Workplace Chemicals, and I hope it will spur some action.
Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.
The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.
Tuesday, October 18, 2011
The Dail Kos has a piece describing how the Occupy Wall Street movement may provide fertile ground for union organizing. Not necessarily traditional organizing--although that's possible too--but some of the newer techniques that unions have been using outside of the collective representation area. The piece quotes a Washington Post blog story on the AFL-CIO's Working America affiliate, which signed up 25,000 new recruits over one weekend. It remains to be seen whether this translates into concrete action, but it should be interesting to watch.
Hat Tip: Michael Duff
- James Leonard, The Zero-Sum Game of Language Accommodations in the Workplace, 33 Cardozo L. Rev. 1 (2011).
- Stephen A. Plass, Mandatory Arbitration as an Employer's Contractual Perogative: The Efficiency Challenge to Equal Employment Opportunity, 33 Cardozo L. Rev. 195 (2011).
- Michal Kukreja, Employees Should be Treated Fairly: A Plea to Change the [Ohio] Workers' Compensation Retaliation Statute, 39 Capital U. L. Rev. 961 (2011).
Monday, October 17, 2011
Update: Thanks to Ross Runkel for providing background materials for the Elgin case.
Hooray for public sector employment law!
The United States Supreme Court granted cert. today in Elgin v. Dep't of the Treasury, No. 11-45, cert. granted (opinion below at 641 F.3d 6 (1st Cir. 2011)), asking whether former federal employees may bring claims for reinstatement for constitutional violations directly into federal court. The claims here were for violations of the bill of attainder provision and equal protection clause under the Fifth Amendment because the employees were removed from the federal service for failure to register for the draft by age 26, in violation of a federal statute.
The federal employees did not first file their claim with the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 and so the First Circuit majority dismissed the claim on jurisdictional grounds without reaching the merits. Interestingly, although the concurring judge disagreed with the jurisdictional argument, he would have dismissed the claims on the merits.
I think I am one of the few people to discuss the ability of federal employees to bring Bivens claims (albeit under the First Amendment's freedom of speech clause), though my argument in that article was basically the same as petitioners here: such plaintiffs should not have to go the CSRA route and the MSPB before bringing their constitutional claim in federal court where there is no adequate remedy under the CSRA. (Here is my article: Whithering the Pickering Rights of Federal Employees).
The Supreme Court has already ruled that Bivens-type constitutional claims for damages cannot bypass CSRA limitations, see Bush v. Lucas (U.S. 1983) , but as to equitable constitutional claims, there is a circuit split.
Way too early for predictions, but it is interesting that the Court took the petition from the employees, who lost, 2-1, in the First Circuit. Also, the Justice Department had urged that cert be denied.
Friday, October 14, 2011
Mark Barenberg (Columbia), Jim Brudney (Fordham), and Karl Klare (Northeastern) have a guest op-ed in today's New York Times on the Boeing case. As readers well know, the attack on the NLRB's pending litigation in this case has gotten under my skin (see here and here), so in my view, the more defenses of the Board the better. I particularly like the following analogy, which nicely sums up the larger issue at stake here:
Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.
But read the entire piece, it's worth it.
Wednesday, October 12, 2011
Frank Kameny died yesterday, on National Coming Out Day. I don't know if that's fitting or ironic for an icon in the gay rights movement. Kameny was one of thousands of men and women fired from military and government jobs in the mid-twentieth century, but he did not go quietly. He sued to get his job back. Kameny was a specialized astronomer, employed by the U.S. Army Map Service. While he did not win in court, he nonetheless helped start the Gay Rights Movement.
Kameny joined Jack Nichols, and together, they launched the Washington, D.C. Mattachine Society, one of the first and loudest Gay Rights Groups in the country. Kameny fought to get the federal government to change its policy, and in 1975, the federal government stopped excluding homosexuals from government employment. Kameny also fought the Pentagon on security clearance denials on the basis of homosexuality, a policy that was changed in 1995. And he fought the American Psychiatric Association for listing homosexuality as a mental disorder; they agreed in 1973. For more on Kameny, check out this interview with him from last year in the Washingtonian.
That makes three important figures in equality movements to have passed away in the last week--the Rev. Fred Shuttlesworth, one of the most influential figures in the Civil Rights movement, and Derrick Bell, one of the most influential critical race theorists. I hope that the next few years see some excellent memorial symposia in their individual and collective honor.