Monday, July 30, 2012
Jon Harkavy (Harkavy & Patterson) sends us word of the recent Fourth Circuit case of WEC v. Miller. Rather than re-inventing the wheel I'll just copy-and-paste the text from Jon's email to me. The take-away is in bold.
[This] Fourth Circuit decision  deprives employers of a civil remedy for damages against their former employees under the federal Computer Fraud and Abuse Act where the employees used the employer's private data for the benefit of their new employers (and to the detriment of the former employer.) Whatever the former employer's remedies may be under state law for misuse of proprietary information, the Fourth Circuit holds that so long as the employees had authorization to use the computer to obtain data, they cannot be liable under the CFAA for using data obtained on a computer they were authorized to use. In so holding, the Fourth Circuit deepens a circuit split that may make this decision cert-worthy. In any event, the court's reluctance to turn an anti-hacking statute with both civil and criminal penalties into an employer weapon against trade secret abuse makes for interesting reading.
Jay Brown (Denver) has counted citations to blogs in cases and law journals. He finds that Workplace Prof Blog is the 20th most-cited blog in law journals. For the complete count, download from SSRN Law Faculty Blogs and Disruptive Innovation: The Data.
Thursday, July 26, 2012
David Foley over at LaborRelated has a terrific post about self-selecting race in the employment context, (dis)incentives to cheat, and fuzzy definitions of what it means to be Native American, Black, etc. It's well worth a read.
Wednesday, July 25, 2012
ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream
I am excited to share with readers of the blog information about the forthcoming ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream (hyperlink leads to conference website). The conference is scheduled to take place in Madison, Wisconsin at the University of Wisconsin School of Law on November 16-17, 2012. The audience participation sign-up deadline is October 15th.
More about the theme of the conference from its website:
This workshop, the fifth meeting of ClassCrits, takes on class and the American dream as its theme. The most quintessentially American trait may be our capacity to look past current misfortune and imagine a brighter future. Americans love a “rags to riches” story and have long believed that hard work and determination will pay off in the long run. Two years into a sluggish “recovery” from the Great Recession, however, many Americans have lost some of that earnest optimism. Faced with persistent unemployment, a nationwide foreclosure crisis, deep cuts to state and local budgets, and declining state support for public education, Americans are questioning the promise of upward mobility. Indeed falling backwards is now a recognized phenomenon affecting more and more of the “middle class,” arguably blurring the distinctions between the “middle class,” the “working classes” and “the poor.”
But, roused by economic insecurity and the political assault on workers’ rights, “ordinary” people from Madison to Zuccotti Park have taken to the streets to voice their dissent. Taking on the slogan “we are the 99%,” the protest movement has launched a national dialogue about income, wealth and structural inequality, race, gender and class divisions in society, and, fundamentally, what it will take to reclaim our vision of a good life. From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will therefore bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality.
I am excited to be providing a paper on the Wisconsin Public Sector Labor Dispute of 2011 and its relationship to the demise of the Wagner Act model of labor and to recent, class-based movements like Occupy Wall Street. Other worklaw profs scheduled to present include: Brishen Rogers (Temple), Charlotte Garden (Seattle), Nancy Leong (Denver), Ken Casebeer (Miami), Matt Dimick (Buffalo), Jim Pope (Rutgers-Newark), and Ahmed White (Colorado).
This should really be a great conference, so be sure to attend if you will be in the area, or even if you need to jet-hop in!
Monday, July 23, 2012
Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:
The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636 (Alaska, July 20, 2012). The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege." The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.
I agree with Mich that this is a "major decision." And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).
Finally, Mitch comments: "Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical."
Steven Greenhouse (NY TImes) has an article today about a recent strike at Caterpillar. The company, never afraid to fight a union, is bringing things up a notch by demanding significant cuts from workers at the same time it's making large profits. The union, not suprisingly, is not willing to go along. From the article:
Despite earning a record $4.9 billion profit last year and projecting even better results for 2012, the company is insisting on a six-year wage freeze and a pension freeze for most of the 780 production workers at its factory here. Caterpillar says it needs to keep its labor costs down to ensure its future competitiveness.
The company’s stance has angered the workers, who went on strike 12 weeks ago. . . . Caterpillar, which has significantly raised its executives’ compensation because of its strong profits, defended its demands, saying many unionized workers were paid well above market rates. To run the factory during the strike, the company is using replacement workers, managers and a few union members who have crossed the picket line.
The showdown, which has no end in sight, is being closely watched by corporations and unions across the country because it involves two often uncompromising antagonists — Caterpillar and the International Association of Machinists — that have figured in many high-stakes labor battles.
As the article states, Caterpillar seems to be trying to establish lower wages as the "new normal." Only time will tell if they suceed.
Friday, July 20, 2012
Jon Harkavy sends word of EEOC v. Ranstad, in which the Fourth Circuit yesterday reversed a district court judgment denying enforcement of an EEOC subpoena relating to the validity of an employment agency's English-only policy under both Title VII and the ADA.
Belinda Smith (Sydney) & Tashina Orchiston (law student - Sydney) have just posted on SSRN their article (forthcoming Australian Journal of Labour Law) Domestic Violence Victims at Work: A Role for Anti-Discrimination Law?. The downloadable article is an earlier version of the article that will be published this October. Here's the abstract:
For victims of domestic violence it is increasingly recognised that financial security is critical to their safety and ability to escape a violent relationship. The majority of victims of domestic violence are engaged in paid work, but are often reluctant to disclose their status. This reluctance can persist even when the worker needs some workplace flexibility in order to navigate the criminal justice system, make housing and/or financial arrangements or access support services. Two possible reasons for non-disclosure are: a fear that the widespread negative attitudes about victims of domestic violence will impair relationships with their colleagues and managers; and a belief that they have no rights to workplace flexibility or adjustments to deal with their circumstances. In this paper we explore whether federal anti-discrimination laws could be used to address these twin concerns and promote normative and behavioural change. By recognising ‘victims of domestic violence’ as a vulnerable group warranting protection against discrimination in the workplace, anti-discrimination laws could empower these workers to disclose their status and even expect reasonable adjustments to enable them to maintain their employment.
Thursday, July 19, 2012
David Doorey (York Univ. (Canada)) has posted on SSRN his forthcoming piece in the Osgoode Hall Law Journal called "A Model of Responsive Workplace Law". As David points out, this is the final (much revised) published version of a draft paper Mike Zimmer (Loyola-Chicago) reviewed previously on Jotwell.
Here is the abstract:
The North American workplace law model is broken, characterized by declining collective bargaining density, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether 'decentred' regulatory theory offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective today is no longer Pluralist or Neoclassical, but 'Managerialist.' Politicians with a Managerialist orientation reject the Pluralist idea that collective bargaining is always preferred, and the Neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers who mistreat their employees. The fact that Managerialists and Pluralists agree on this latter point creates a space for potential movement on workplace law reform. A law that encourages high road employment practices, while fast-tracking access to collective bargaining for low road employers could both encourage greater compliance with employment regulation, while also facilitate collective bargaining at high risk workplaces. This paper examines lessons from decentred regulatory scholarship for the design of a legal model designed to achieve these results. In particular, it develops and assesses a 'dual regulatory stream' model that restricts existing rights of employers to resist their employees' efforts to unionize once they have been found in violation of targeted employment regulation.
Although I count myself as one of the skeptics of the decentered/new governance approach to labor relations, I am a huge fan of David's work and encourage others to read in this piece his innovative ideas for getting Northern American labor law back on the right track.
Our friend, Dean Richard Gershon, sends along this hiring announcement:
The University of Mississippi School of Law invites applications from entry-level and lateral candidates for at least two tenure-track faculty positions beginning August 2013. Our primary curricular needs are in Intellectual Property, International Law, Employment Law, Labor Law, Real Estate, and Commercial/Transactional Law, but we welcome applications from outstanding candidates in all curricular areas. We may also have a need for visiting professors. All applicants should have a distinguished academic background, and either great promise or a record of excellence in both scholarship and teaching.
Located among the rolling hills of Northern Mississippi, the University of Mississippi’s main campus is centered in Oxford, Miss., about 70 miles south of Memphis, Tenn. Oxford has been listed among the 20 Best Small Towns in America by Smithsonian Magazine, and the University of Mississippi was chosen as the most beautiful college campus for 2011 by Newsweek magazine.
The University of Mississippi is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA employer.
Entry-Level Candidates Contact: Professor David W. Case, Co-Chair, Faculty Appointments Committee, University of Mississippi School of Law, 481 Coliseum Dr., University, MS 38677.
Laterals and Visitors Contact: Professor Donna Davis, Co-Chair, Faculty Appointments Committee, University of Mississippi School of Law, 481 Coliseum Dr., University, MS 38677.
I can attest, having spent the first six years of my academic life at Ole Miss Law, that the school is a wonderful place filled with great colleagues and students. This is a hidden gem of an opportunity for the right person.
Wednesday, July 18, 2012
Thanks to Dennis Nolan for sending a link to this New York Times article Unions’ Past May Hold Key to Their Future. The article points out that unions were extraordinarily weak in the early 1930s, but reinvented themselves and came roaring back a decade later. Perhaps they can pull off a repeat performance. Here's the article's take-away:
But if the prospects look grim for the unions of America’s industrial era, the precedent of the 1930s — when workers organized in droves — offers perhaps a hint of a path for organized labor as the economy works its way forward from the Great Recession, a role that perhaps better fits the nation’s corporate makeup.
The future labor movement may have to give up organizing work site by work site. Its biggest political fight in the last few years — pushing a law to make it easier to organize a workplace — may be irrelevant. And fighting to create new barriers to foreign competition is probably a lost cause. Instead of negotiating for their members only, unions might do better pulling for better wages and conditions for all workers.
Some scholars, like the economist Richard B. Freeman of the National Bureau of Economic Research, suggest the labor movement could take a page from the AARP’s playbook and become a lobbying group. German-like worker councils could discuss workplace issues with management, without negotiating over pay.
Maybe unions don’t have to entirely give up collective bargaining but broaden it. A model might be the alliance between the A.F.L.-C.I.O. and the Domestic Workers Alliance of New York City to push for a bill of rights for nonunionized nannies and maids.
In any event, 80 years from now, labor organizations will probably look as different as our current unions look when compared with the guilds of 80 years ago. Today’s strongest unions — of autoworkers and airline pilots — could easily be the weakest, decimated by international competition. Unions may well be strongest in hospitals, hotels and other businesses not exposed to international trade.
But are these reinventions or abdications?
Tuesday, July 17, 2012
Robin Runge (North Dakota School of Law) just had an article published in the Georgetown Journal on Poverty Law and Policy.
Here's the cite: Redefining Leave From Work, 19 GEO. J. ON POVERTY L. & POL’Y 445 (2012) (Westlaw Subscription required).
From the Introduction:
The concept of leave from work in the United States has been determined by a collection of social and cultural factors. Workplaces are manifestations of social and cultural beliefs about how work is done, what exceptions or modifications to those norms are acceptable, and how family life is to be conducted. Similarly, the justifiable reasons for taking leave and the qualifications necessary to access leave from work reinforce societal values regarding work and family.
The current leave-from-work laws and policies do not incorporate the work-life and non-work-life experiences of low-wage workers. As a result, the majority of low-wage workers do not have meaningful access to leave from work, and when they do, the leave is underutilized. In this way, the work and family lives of low income workers generally, and low-wage working women in particular, are devalued by effectively denying their existence in the workplace.
Although there has been extensive analysis of how to remedy work-family conflict and workplace discrimination against women as caregivers, there has been limited examination of the work-life experiences of low-wage workers outside their identity as caregivers. Framing low-income working women's issues as “work-family conflict” may not be appropriate or accurate to describe their experiences. Moreover, the focus on leave from work as a primary method for addressing gender equity without discussing employees' control over their work and family lives has ignored the work experience of many low-wage working women, thus rendering the efficacy of this tool less successful in achieving its goal of gender equity.
This Article contributes to this scholarship by incorporating an analysis of low-wage workers' experience with current leave from work laws and policies. This analysis demonstrates that current leave laws and policies have contributed to social and cultural norms about leave that result in inaccessibility and underutilization of leave from work by low-wage workers. Reasons for this underutilization include the lack of control low-wage workers have over their work and family lives, a lack of financial support or incentive to take leave from work, and the mismatch of the permissible reasons for taking leave from work with the lives of low-wage workers. By integrating the work and family life experiences of low-wage workers into leave from work laws and policies, they may become a more effective tool for addressing gender and class inequity in the workplace.
This is a very timely and important article at the intersection of employment, gender, and poverty law. Check it out!
As Republicans continue to call for smaller government, Sarah Damaske explains at Psychology Today that the labor-market effect of any such downsizing will be felt primarily by women:
Although men were more likely than women to lose jobs during the Great Recession, nearly three years later, women continue to be recovering jobs at a slower pace. Analysis released this month by the Institute for Women’s Policy Research shows that women have recovered approximately 40 percent of jobs lost from 2007-2010, while men have recovered approximately 46 percent of jobs lost during that period. The primary explanation behind this deficit: public sector job loss.
Women are more likely than men to be employed in the public sector—in jobs such as teachers, librarians, and municipal workers—and the public sector has steadily lost jobs since the official end of the recession three years ago. In fact, the National Women’s Law Center released a report this month found that for women, for every 10 jobs added by the private sector, 4 jobs have been lost in the public sector. Men, on the other hand, have lost only 1 job in the public sector for every 10 jobs added by the private sector.
Saturday, July 14, 2012
Friday, July 13, 2012
In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.
What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.
This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.
Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.
The same should be true for pension funds and corporate politics.
Hat tip to Joe Slater (Toledo) for posting a link to this article on facebook.
Thursday, July 12, 2012
My UNC colleagues, John Coyle and Gregg Polsky have just posted on SSRN their article, "Acqui-Hiring." The abstract:
Apple, Google, Facebook, and other prominent technology companies in Silicon Valley are buying start-up companies at a brisk pace. In many of these transactions, the buyer has little interest in acquiring the start-up’s projects or assets. Instead, the buyer’s primary motivation is to hire some or all of the start-up’s software engineers. These so-called “acqui-hires” represent a novel — and increasingly common — tool by which the largest and most successful technology companies in the world satisfy their intense demand for engineering talent.
To date, the acqui-hire has attracted no attention in the academic or professional legal literature. This Article aspires to fill this gap. Drawing on interviews with Silicon Valley entrepreneurs, start-up investors, buyer representatives, and lawyers, we offer the first formal description of the acqui-hire. In so doing, we seek to enrich the understanding of those already acquainted with the acqui-hire while also providing a comprehensive account of this transaction structure to the uninitiated.
The Article also identifies — and seeks to solve — a significant puzzle stemming from the acqui-hire phenomenon. If a large technology company wants to hire a team of software engineers, why go to all of the trouble and expense of acquiring the company that currently employs them? Why not simply hire away the individuals that it wants? We argue that the solution to the puzzle lies primarily in the way that social norms and the threat of informal sanctions shape the behavior of Silicon Valley software engineers. Although California law strongly supports the principle of employee mobility, social norms lead many engineers to pursue acqui-hires in lieu of defecting. We buttress this norms-based account with insights from prospect theory and tax law to show that the unique structure of the acqui-hire reduces its perceived and actual costs, which in turn promotes these transactions.
The Article then considers the most significant economic issue common to all acqui-hires: how to allocate the buyer’s aggregate purchase price between the software engineers and the start-up’s outside investors. We first predict that a money-back-for-the-investors norm will eventually develop and that this norm will drive allocation determinations. We then evaluate the effectiveness of potential contractual innovations that could be designed to augment the investors’ allocations in acqui-hires.
The article highlights what, to me at least, was an unknown and interesting phenomenon. It very well may be the result of a unique market, but it also describes a counter-intuitive employment scenario that is worth paying attention to. Software engineers in Silicon Valley are in high demand (and are free from worrying about covenants not to compete), but they seem to be forgoing a not-insignificant amount of compensation in these deals. The artice suggests some reasons why that may be the case, but I think (as do the authors) that the acqui-hiring phenomenon should lead to some questions about whether basic models of employee/employer behavior are always accurate.
Call for Papers: 2013 ERISA Conference: Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention
The co-organizers of the 2013 ERISA Conference, Dana Muir (Michigan Business) and Andrew Stumpff (Michigan Law) have issued a Call for Papers for Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention.
The conference is scheduled to take place on Friday, March 22, 2013 at the University of Michigan, Stephen M. Ross School of Business.
The conference organizes welcome your ideas and paper proposals. They also plan to have a lunch roundtable to discuss the disconnect between the perception people have of ERISA as a narrow field and its actual importance and breadth. Their goal is to develop strategies to remedy the misperception.
Here are some important dates for the conference:
1. September 21, 2012. Please submit an abstract of 150-250 words and an outline of up to 3 pages to both Dana and Andrew via email (firstname.lastname@example.org & email@example.com).
2. October 5, 2012. Dana and Andrew will notify people of decisions on acceptance. They hope that if your paper is accepted that you are able to commit on October 5 to finishing it by March 1 and presenting it on March 22.
For further information contact either Dana (firstname.lastname@example.org) or Andrew (email@example.com).
Tuesday, July 10, 2012
Sachin S. Pandya (Connecticut Law) has just posted on SSRN his new piece: Unpacking the Employee-Misconduct Defense. It appears in the University of Pennsylvania Journal of Business Law 14(4) (2012): 867-925.
Here is the abstract:
When a worker sues an employer, the employer sometimes learns thereafter that the worker had committed some misconduct at the time of hire or while on the job. In those cases, most American work laws provide the employer with a defense that precludes employer liability, or at least limits remedies, if the employer shows that, had it known of the worker’s misconduct at the time of its allegedly wrongful act, it would have fired the worker because of that misconduct. This Article evaluates the prevailing arguments for and against the employee-misconduct defense as it appears in the National Labor Relations Act, federal and state employment discrimination and retaliation statutes, state contract and tort law, as well as state workers’ compensation statutes. It finds that virtually all of these arguments (both for and against) are incomplete, incoherent, or rely on unverified empirical premises. This finding implies that, though pervasive, virtually no sound reason currently exists for adopting the defense or (apart from stare decisis) continuing to apply it.
I had the privilege of watching Sachin deliver this piece last month at the Warns Labor and Employment Law Institute in Louisville, KY. It is a thoughtful and comprehensive consideration of an employment law defense that re-occurs throughout different parts of labor and employment law. Sachin highlights some of the contradictions in the doctrine and makes some important suggestions for reform. Check it out!
Call for Papers and Young Scholars Workshop for Eleventh International Conference in Commemoration of Marco Biagi
The first is the call for papers for Eleventh International Conference in Commemoration of Marco Biagi, which will be held March 18-19, 2013. This year's theme is "The Transnational Dimension of Labour Relations: A New Order in the Making?"
The second is the call for papers for the Marco Biagi Foundation's Young Scholars Workshop, which will be held during the afternoon of March 19, 2013. Susan notes that the 2012 workshop, featuring 10 papers presented by doctoral and post-doctoral students from multiple countries, was an exciting and successful event. Questions about either event may be directed to Professor Iacopo Senatori at: firstname.lastname@example.org
Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.
Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When considering state claims, courts often construe state statutes to adhere to federal standards without any principled basis for doing so.
This article makes three central contributions. First, it describes how complex frameworks mold the federal discrimination inquiry. Second, it provides a historical narrative regarding the development of state employment discrimination law. This narrative demonstrates that much of the precedent used to justify importing federal standards to state claims should not apply to many of the cases in which it is used. It also shows that there are fundamental differences between state and federal statutes that militate in favor of interpreting them differently. Finally, the paper demonstrates how state law could become a model for further reform of federal anti-discrimination statutes.
Interpreting state statutes in tandem with federal law creates state regimes that are unmoored from their statutory language and ignores key differences between federal and state protections. More importantly, the ongoing dialogue regarding causation and harm is largely driven by underlying assumptions about whether discrimination is still happening, about how it manifests itself, and about how and whether society should address such concerns. The proof structures the courts have designed to think about these issues in the federal context frame the discrimination inquiry narrowly and are procedurally confusing. Ignoring that states may have different preferences raises serious concerns about the proper role of federalism in employment discrimination law.
Importantly, if courts would look at the way state statutes are constructed, they could discover a more elegant, unified way of considering discrimination claims, a way not marred by the recent disarray of federal law. Many states chose to prohibit a myriad of protected traits within one statutory regime. Further, many state employment discrimination statutes address not only employment, but also other areas such as fair housing.