Tuesday, February 28, 2012

Facebook as Job Predictor

FbI am cross-posting, with permission, Bill Henderson's post on The Legal Whiteboard (if you haven't checked out the Whiteboard blog, take a look -- it's a great resource on the marketplace for legal education; if you haven't heard Bill speak on the economics of legal education, invite him to speak at your school.  His data-driven message is sobering to say the least.).

An interesting study on Facebook as a job predictor is making the rounds on the internet.  It is a serious study published in the Journal of Applied Social Psychology.   Perhaps its most interesting feature is that it maps the content of participants' Facebook pages onto scales for the Big Five personality traits.

The Big Five are the five very broad but stable personality traits that have emerged from over 50 years of psychological research on personality and job performance.  The Big Five are sometimes summarized by the acronym OCEAN:  Openness to Experience, Conscientiousness, Extroversion, Agreeableness, and Neuroticism (this last measure is often referred to as Emotional Stability, which has a less clinical ring).  Each of the Big Five traits is typically comprised of four of five subconstructs.  (Go to this link to take for free the same Big Five assessment used in the study.)

The Big Five are connected to research on lawyers through the landmark Shultz-Zedeck Predicting Lawyer Effectiveness study.  One of the personality assessments utilized by Shultz and Zedeck was the Hogan Personality Inventory (HPI), which is seven-scale instrument based on the Big Five.   Shultz and Zedeck identified 26 lawyer effectiveness factors and subsequently assembled a sample of peer and supervisor evaluations on over 1,100 graduates of UC Berkeley and UC Hastings.  The HPI scales were positively correlated at statistically significant levels with a combined 25 of 26 effectiveness factors.   In contrast, academic predictors (UGPA, LSAT and 1st year grades) were correlated with a combined total of 11 effectiveness factors, albeit two of the correlations were negative.

One of the limitations of most personality tests is the self-reported nature of the data.  The test-taker is often interested in managing impressions.  In contrast, the test adminstrators are trying to measure the respondents' actual attitudes and behaviors.  Well, on that count, Facebook reveals quite a bit.  In fact, raters with a mere two hours of training obtained Big Five measures of study participants' personalities that were (a) strongly correlated with the self-reported measures but (b) better predictors of subsequent job performance.

The implication?  Someday a computer spider may be mining Facebook pages to create employability profiles on job candidates.  Such a product may be too cheap and too useful for employers to ignore -- potentially better and faster, and less discriminatory, than the current ubquitious Google search.

(emphasis added)


February 28, 2012 in Employment Common Law, Labor and Employment News, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Slater on Public Sector Bargaining Rights

JslaterJoe Slater (Toledo) has just posted on ssrn his article (forthcoming 87 Indiana L.J. 2012) Public Sector Labor Law in the Age of Obama.  Here's the abstract of this timely and important article:

The attacks on public sector collective bargaining rights during the past year have arguably been the most important development in U.S. labor and employment law in recent memory. While the most famous and radical moves took place in Wisconsin and Ohio, over a dozen states have enacted significant restrictions on the rights of government employees and their unions. This is important, not least because public sector workers now comprise more than half the total number of union members in the U.S., and because of the broader political implications of “defunding” and otherwise crippling a major constituent of the Democratic Party.

This article, based on a symposium paper, discusses not only these developments but also other key events in public sector labor relations in recent years: the battle for collective bargaining rights at the Transportation Safety Administration; and recent cases interpreting a 2007 decision of the Missouri Supreme Court which held that the Missouri Constitution provided a right to collective bargaining for all public employees in the state (without defining what that right specifically entails).


February 28, 2012 in Labor and Employment News, Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 27, 2012

Areheart to Tennessee

AreheartCongratulations to University of Tennessee College of Law (and Alex Long) on the addition of Brad Areheart to the faculty.  I've had the pleasure of knowing Brad for several years -- he's been a regular at the annual Colloquium on Current LEL and at several other conferences -- and I've found that he is as terrific a person as his scholarship is strong.  Brad will finish out the semester as a VAP at Stetson before moving to Knoxville.

Here's Brad's bio from bepress:

Professor Bradley A. Areheart is a Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law, where he teaches Contracts, Disability Law, Health Law, and Intellectual Property. His research focuses on civil rights, and thus far has included scholarship on antidiscrimination theory, cyberbullying, disability theory and discrimination, genetic discrimination, privacy, and Title VII. Professor Areheart’s recent articles have appeared or will appear in the Indiana Law Journal, Georgia Law Review, Alabama Law Review, and Yale Law & Policy Review.

Before joining Stetson as an inaugural Bruce R. Jacob Visiting Assistant Professor of Law, Professor Areheart worked as a litigation associate at DLA Piper in Austin, Texas, where his practice included complex commercial and intellectual property litigation.  Before that, he was an associate at Jenner & Block in Dallas, Texas. Professor Areheart graduated cum laude from Baylor University with a degree in philosophy. He earned his law degree from the University of Texas School of Law, where he graduated with honors and was a member of the Texas Law Review.


February 27, 2012 in Faculty Moves, Faculty News | Permalink | Comments (1) | TrackBack (0)

ABA Symposium on Technology in LEL

TechThanks to friend of the Blog Bill Herbert for passing along news of this Symposium:

On April 25-27, 2012, the National Symposium on Technology and Labor and Employment Law will be taking place at NYU School of Law.  The Symposium is an annual event organized by the ABA Labor and Employment Section's Technology in the Practice and Workplace Committee.  The Symposium is being co-sponsored this year by the Center for Labor and Employment Law at NYU School of Law.  The Symposium brings together practitioners, academics, judges and technology experts to examine cutting edge technology issues in labor and employment law.  Panel discussions at the April conference will include Cyber Crimes and the Workplace, Workplace Technologies and Implications for the Financial Services Industry, Technology-Enabled Representational Elections, Workplace Legal Issues Related to Social Media, and Developments in the Use of Technology for Workplace Accommodations.  NYU Professor Stephen Gillers will be headlining a discussion of the legal ethical issues associated with cloud computing, outsourcing and attorney online marketing.

Here's the Agenda; here's the Registration Information.


February 27, 2012 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Sarah Marsden, Assessing the Regulation of Temporary Foreign Workers in Candada, 49 Osgoode Hall L.J. 39 (2011).
  • Victoria Schwartz, Title VII: A Shift from Sex to Relationships, 35 Harv. J. L. & Gender 209 (2012).
  • Matthew D. Moderson, The NLRB After New Process Steel: The Case for Amending Quorum Requirements Under the NLRA, 80 UMKC L. Rev. 463 (2011).



February 27, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sullivan on the Tortification of Discrimination Law

SullivanCharlie Sullivan (Seton Hall) has just posted on SSRN his article Tortifying Employment Discrimination.  Here's the abstract:

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.

First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur.

Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine.

After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.


February 27, 2012 in Employment Common Law, Employment Discrimination, Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, February 24, 2012

General Counsel Solomon and the Boeing Case

SolomonThe Seattle Times recently had a story on Lafe Solomon, the NLRB's General Counsel, with a focus on the controversy surrounding the Boeing case.  It also provides a nice background of how he first started with the NLRB.  If nothing else, and whether you agreed with his decision to pursue a complaint or not, you can't deny that he showed courage in doing what he thought was best.  From the article:

Last year, just before the National Labor Relations Board accused Boeing of illegally punishing strike-prone Puget Sound-area Machinists by building a new 787 assembly plant in South Carolina, that state's senior senator privately warned the agency's top lawyer of "nasty, very very nasty" consequences if he didn't yank the complaint.

Otherwise, Sen. Lindsey Graham pledged, he would go "full guns ablazing," according to notes taken at the time by Lafe Solomon, the NLRB's acting general counsel.

Nine days later, in April 2011, Solomon greenlighted the unfair-labor practice case against Boeing. Graham — along with many of his fellow conservatives — was furious. . . . 

Hat Tip:  Patrick Kavanagh


February 24, 2012 in Labor and Employment News, Labor Law | Permalink | Comments (3) | TrackBack (0)

Live Blogging from Symposium on Democracy in the Workplace

DemoworkI'm live blogging today from UNLV's symposium on Democracy in the Workplace.  Joel Rogers (Wisconsin PoliSci) and Cynthia Estlund (NYU) have given terrific keynotes; here's a description of the program:

Collective bargaining has become an issue in the United States, riots have roiled Britain, and the Arab spring continues to change politics in many ways. Protests by people who work and who are out of work are becoming more common. To explore the connection between having a voice at work and a voice in democracy, the Saltman Center will host a symposium at the William S. Boyd School of Law at the University of Nevada, Las Vegas from Thursday, Feb. 23 to Saturday, Feb. 25. Leading scholars and practitioners in labor and employment law, human resource management, dispute resolution, dialogue and deliberation, and democracy will speak on the topic.


February 24, 2012 in Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2012

Call for Papers for Seventh Annual Labor and Employment Law Colloquium

ConfMy, how times flies when we are all having so much fun. But it is time to start thinking about submitting paper proposals for the Seventh Annual Labor and Employment Law Colloquium, to be held in Chicago this year on September 15-16, 2012.  Mike Zimmer and Kim Yuracko, the co-organizers, especially encourage new and junior members of the labor and employment law prof community to come and participate.

Here are the details:

Northwestern University School of Law and Loyola University Chicago School of Law are pleased to announce that they will co-host the Colloquium on Current Scholarship in Labor and Employment Law on September 14 and 15, 2012 in Chicago, IL. Registration is available here.

The Colloquium provides an opportunity for labor and employment law scholars to present works-in-progress and receive feedback from their colleagues in the field.

Participants are expected to pay their own travel expenses. The law schools will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.


Friday, September 14, 2012 - Loyola University Chicago School of Law
Saturday, September 15, 2012 - Northwestern University School of Law

Both Northwestern and Loyola law schools are located near Michigan Avenue’s Magnificent Mile
Hotels. There are reasonably priced hotels located near the law schools:

Tremont: 100 E. Chestnut, 312.751.1900
Allerton: 701 N. Michigan, 312.440.1500
Affinia: 166 E. Superior, 312.787.6000
Talbott: 20 E. Deleware: 312.944.4970
Seneca: 200 E. Chestnut, 312.787.8900

Conference Organizers

Kimberly Yuracko, Professor of Law, Northwestern University School of Law
Michael Zimmer, Professor of Law, Loyola University Chicago School of Law

For more information please contact Michael J. Cooper at (312) 503-1570 or michael-cooper@law.northwestern.edu.  Also please visit the Colloquium webpage here.


February 23, 2012 in Conferences & Colloquia | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 22, 2012

DOMA Unconstitutional and Gendered Legos

GenderThese have nothing to do with each other except that they both relate to issues relevant to my gender seminar--and in part to employment discrimination. First, the District Court for the Northern District of California has struck down the defense of marriage act, applying heightened scrutiny to the federal office of personnel management's refusal to award spousal benefits to an employee married to someone of the same sex. The woman whose benefits are at issue is an employee of the Ninth Circuit Court of Appeals, and the Chief Judge had ordered OPM to provide the benefits on the grounds that not doing so violated the Ninth Circuit's policy of nondiscrimination on the basis of sexual orientation. When OPM continued to refuse, Lambda Legal filed the law suit that was just decided, challenging DOMA.

And for a fun diversion, see here (and follow the link) to swap the audio for Lego ads for boys and girls. You can probably guess how I feel about "girl" toys and "boy" toys. . . . . Let's just say, one of my favorite acts of civil disobedience was when the Barbie Liberation Organization swapped the voices for Barbie and G.I. Joe in toys in at least two states. 


February 22, 2012 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Live Blogging from Symposium on Concepcion


I'm live blogging from Penn State's symposium on U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.  The Symposium is sponsored by the Penn State University Yearbook on Arbitration and Mediation.  Hiro Aragaki (Loyola), Jill Gross (Pace), Richard Reuben (Missouri), Ian Mitchell (NKU Chase 2L), and I all spoke on various aspects of Concepcion's antifederalism.  Sandra Partridge (AAA) is speaking now on the practical impact of Concepcion -- she just made the point that a sizeable minority of class-action cases that have been filed with AAA are employment cases.

The panels at today's conference will cover:

  • The Impact of AT&T Mobility on Federalism Interests.
  • The Consequences of AT&T Mobility on Procedure in Multi-Party Litigation.
  • Procedural Fairness After AT&T Mobility.
  • The Likely Legacy of AT&T Mobility.

Here's a description of the symposium:

The 2011 Supreme Court decision in AT&T Mobility vs. Concepcion last year has potentially changed the legal landscape in a number of areas including class actions and arbitration agreements between consumers and businesses. Renowned U.S. Legal Scholars will convene for the U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.

Speakers this afternoon will include: Arthur W. Rovine (Fordham), Chris Drahozal (Kansas), Steve Bennett (Jones Day), Terry F. Moritz (Goldberg Kohn), & Michael Helfand (Pepperdine).


February 22, 2012 in Arbitration | Permalink | Comments (0) | TrackBack (0)

EREPJ Call for Papers on Disability Discrimination

ErepjSteve Willborn sends us the following call for papers:

The Employee Rights & Employment Policy Journal is sponsoring a symposium issue dedicated to disability discrimination and the law.  Although all papers within this topical area will be considered, papers with particular emphasis on the ADA Amendments will be given special consideration.  The symposium issue is scheduled for publication as the first issue of 2013.  The symposium editor is Professor Ramona L. Paetzold of Texas A & M University.  Please submit all manuscripts to her no later than Friday, August 24, for consideration in the symposium issue.  Papers should be submitted in Word via email attachment to Prof. Paetzold.  Please direct all questions to this email address as well.


February 22, 2012 in Disability, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 21, 2012

More Time to Comment on FLSA Protections for Home Care Workers

DolUS Labor Department extends comment period on proposed rule to provide minimum wage and overtime protections for in-home care workers to March 12.

The proposed rule would expand minimum wage and overtime protections by ensuring that all home care workers employed by third parties such as staffing agencies receive these protections. It also would clarify that individuals performing skilled in-home care work are entitled to minimum wage and overtime pay. However, families that engage individuals for true companionship or fellowship activities, such as visiting with friends or pursuing hobbies, still would be considered "companions" and not be required to meet the act's labor standards provisions. To learn more about the proposed rule, visit http://www.dol.gov/whd/flsa/companionNPRM.htm.


February 21, 2012 in Beltway Developments, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Monday, February 20, 2012

Recently Published Scholarship


  • Emily Nolan Litzinger, Willfulness, Good Faith, and the Fair Labor Standards Act, 12 Nevada L.J. 112 (2011).
  • Christine Neylon O'Brien, The First Facebook Firing Case Under Section 7 of the NLRA: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media, 45 Suffolk U. L. Rev. 29 (2011).
  • Larry A. DiMatteo, Robert C. Bird, & Jason A. Colquitt, Justice, Employment, and the Psychological Contract, 90 Oregon L. Rev. 449 (2011).
  • Alex B. Long, Employment Retaliation and the Accident of Text, 90 Oregon L. Rev. 525 (2011).
  • Andrew Powell & Richard Bales, Ethical Problems in Class Arbitration, 2011 J. Disp. Resol. 309.
  • Laura Browne, Missouri Courts Side with Employees Against the Eight Circuit: Continued Employment Does Not Constitute Acceptance and Consideration for Mandatory Arbitration Agreements, 2011 J. Disp. Resol. 447.


February 20, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, February 19, 2012

Porter on ADA Coverage

PorterNicole Porter (Toledo) has just posted on SSRN her article Martinizing Title I of the Americans with Disabilities Act.  Here's the abstract:

Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer’s obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for a plaintiff to prove he has a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is reasonable, and making it impossible to discern any unified principle to explain the chaotic results. This Article does just that. It identifies the scope of an employer’s obligation to reasonably accommodate its employees by proposing a unified approach to the reasonable accommodation provision.

I am facilitated in this endeavor by relying on a case under Title III, the public accommodations Title of the ADA. In PGA Tour, Inc. v. Martin, ...

Continue reading

February 19, 2012 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

OSJDR Symposium on Public Sector Bargaining

OsjdrCongrats to the folks at the Ohio State Journal on Dispute Resolution for hosting a terrific symposium Friday on The Role of ADR Mechanisms in Public Sector Labor Disputes.  I have never seen a larger -- or more participatory -- audience at a law review symposium before.  The room was packed, and not just with folks there to get inexpensive CLE credit, but with folks who feel passionately about the topic -- and there was an even mix of union folks, management folks, and neutrals.  Congrats also to the excellent presenters, who included Joe Slater, David Lipsky, Anne Lofaso, Charlie Craver, Mike Carrell, Marty Malin, and Michael Green.


February 19, 2012 in Conferences & Colloquia, Labor Law | Permalink | Comments (2) | TrackBack (0)

Thursday, February 16, 2012

Washington University Law School ERISA Conference: Employee Benefits in an Era of Retrenchment

Wash u. logoPeter Wiedenbeck (Wash U.) and I, as co-organizers, are happy to announce a one-day national conference for leading scholars and policy makers on ERISA: Employee Benefits in an Era of Retrenchment.

Here is a link to the conference web page with participants and panels. You will also find there information on travel and accommodations.  Papers will be published in the ABA Journal of Labor and Employment Law later this year.

When:  Thursday, March 29, 2012
Where:  Washington University School of Law, St. Louis, Missouri
Sponsored by:  Center for the Interdisciplinary Study of Work and Social Capital and Washington University School of Law

For further information contact Shelly Henderson-Ford, Administrative Coordinator for the Center for the Interdisciplinary Study of Work and Social Capital, shenderson@wulaw.wustl.edu, (314) 935-6161.


Employee Benefits in an Era of Retrenchment

Announcing a one-day national conference for leading scholars and policy makers.

When:  Thursday, March 29, 2012
Where:  Washington University School of Law, St. Louis, Missouri
Sponsored by:  Center for the Interdisciplinary Study of Work and Social Capital and Washington University School of Law

February 16, 2012 in Conferences & Colloquia, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Electronic Drafts of Restatement of Employment Law Available

Ali logo

My friend and mentor, Sam Estriecher (NYU) writes to tell the readers of this blog that the American Law Institute (ALI) employment restatement chapters are now available free of charge – go to ali.org/publications.


February 16, 2012 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2012

Secunda Reviews Monahan's Public Pension Reform Piece

PaulSecundaPaul Secunda has just posted "Public Pension Plan Problems," on Jotwell--his review of Amy Monahan's "Public Pension Plan Reform:  The Legal Framework," which appeared in Education, Finance & Policy. An excerpt:

All this chaos in the public pension plan world requires some ordering principles. At least as far as organizing states’ various legal approaches to public pension plans, AmyMonahan’s paper, Public Pension Plan Reform: The Legal Framework, does exactly that.  Understanding that many states are either currently going through a process, or contemplating a process, to amend their public pension plans to save money in these difficult economic times, Monahan first explains the difference between private pension plans and public pension plans, and then effectively explains the primary legal approaches states have taken to protect public employee pension rights.

Check it out!



February 15, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

NELP Launches Immigrant Worker Justice Blog

NelpEunice Hyunhye Cho (Skadden Fellow – Immigrant Worker Justice Project) tells us that the National Employment Law Project has launched the Immigrant Worker Justice Blog.  The blog will provide thoughtful analysis, informative articles, updates on the latest immigrant worker news, and the ability to connect with others in the immigrant worker justice movement.  It's run by NELP’s Immigrant Worker Justice Project, which works at the intersection of labor and immigration law and policy to promote justice and fairness for immigrant workers, in partnership with economic and immigrant justice movements.

Check it out!


February 15, 2012 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)