Wednesday, October 31, 2012

Tucker: New Governance in OHS

TuckerOrly Lobel (San Diego; photo not at left)) sends word that Eric Tucker (York - Osgoode; photo left) has posted to SSRN his article Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom.  Orly points out that the article "is a nice engagement with the new gov[ernance] debates and with recent osha developments".  Here's the abstract:

New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism . In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.


October 31, 2012 in Scholarship, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

SLU Faculty Vote No Confidence in Biondi

BiondiMarcia posted here back in August about the turbulence at Saint Louis University, the resignation of SLU Law Dean Annette Clark, and the general value of scholarship.  Yesterday, following a student protest, the SLU Faculty Senate overwhelimingly voted no confidence in SLU President Biondi.  Best of luck to all faculty and students at SLU and SLU Law as this unpleasantess plays itself out. 


Thanks for the post, Rick,. Here is additional information about all of the steps in the middle. Before Dean Clark joined the law school, the University had been through some rather serious restructuring. Schools and departments were closed, and the graduate school was reorganized without any real faculty input. After Dean Clark resigned, the University proposed a new policy for all university faculty that seemed to require scholarship (or more scholarship) from all kinds of faculty, indcluding those on only yearly contracts and which effectively would have turned tenure into a system of six-year contracts at best. The new policy was slated to go into effect in January. After the University Faculty Senate and individual groups of influential faculty made the case that the proposal would hurt the University, that proposal was withdrawn. The faculty of the College of Arts and Sciences voted no confidence in the Vice President. The Trustees, possibly anticipating further faculty action, issued a letter in support of the President and Vice President and a committee established to move forward on how to improve SLU. Then, the full faculty senate voted no confidence in the Vice President. The President reaffirmed his support of the Vice President and said that he would not fire the VP. There were also various responses and further news stories about the no confidence vote and about the Vice President, some in response to a threatened student vote of no confidence: here, here, here, here. The Arts and Sciences faculty voted no confidence in the President a couple of weeks ago. Late last week and early this week, the faculty held teach-ins, and students held protests. This culminated in the no confidence vote by the full faculty senate yesterday.

Two more links to a student vote and to the letter written by the University faculty senate to the University Trustees.


October 31, 2012 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 30, 2012

Recently Published Scholarship: Comparative Labor Law & Policy J.


Volume 34, Number 1 Fall 2012

  • Einat Albin, Introduction: Precarious Work and Human Rights, p. 1.
  • Nicola Kountouris, The Legal Determinants of Precariousness in Personal Work Relations: A European Perspective, p. 21.
  • Bernd Waas, A Quid Pro Quo in Temporary Agency Work: Abolishing Restrictions and Establishing Equal Treatment-Lessons to Be Learned from European and German Labor Law?, p. 47.
  • Guy Davidov, The Principle of Proportionality in Labor Law and Its Impact on Precarious Workers, p. 63.
  • Kamala Sankaran, The Human Right to Livelihood: Recognizing the Right to be Human, p. 81.
  • Judy Fudge, Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers, p. 95.
  • Virginia Mantouvalou, Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor, p. 133.
  • Deirdre McCann, New Frontiers of Regulation: Domestic Work, Working Conditions, and the Holistic Assessment of Nonstandard Work Norms, p. 167.
  • Einat Albin, Human Rights and the Multiple Dimensions of Precarious Work, p. 193.
  • Guy Mundlak, Human Rights and Labor Rights: Why Don't the Two Tracks Meet?, p. 217.


October 30, 2012 in International & Comparative L.E.L., Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2012

NYSBA Conference on Social Media and the Public Sector Workplace

ComputerWorkplace Prof Blog readers may be interested in an upcoming program scheduled at Hofstra Law School on November 19, 2012: SOCIAL MEDIA AND THE PUBLIC SECTOR WORKPLACE. 

It is co-sponsored by New York State Bar Association (NYSBA) Labor and Employment Section’s Technology in the Workplace and Practice Committee and the Hofstra Labor & Employment Law Journal.

More details are included in this announcement.


October 29, 2012 in Conferences & Colloquia, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Mila Gumin, Ugly on the Inside: An Argument for a Narrow Interpretation of Employer Defenses to Appearance Discrimination, 96 Minn. L. Rev. 1769 (2012).
  • Iliza Bershad, Employing Arbitration: FLSA Collective Actions Post-Concepcion, 34 Cardozo L. Rev. 359 (2012).


October 29, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Johnson on Disparate Impact

Rusty Johnson (Cumberland) has posted on SSRN the most recent version of his article, "Disambiguating the Disparate Impact Claim," which will be published in the Temple Political and Civil Rights Review.  The abstract:

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional. Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education. To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions. Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or rectify the structural inequality resulting from centuries of de jure and de facto discrimination.

I argue that the origins of the disparate impact doctrine reveal another baseline proposition for the doctrine. Principally, the adoption of the business necessity prong of the doctrine reveals a concern with employment practices that contravene an established workplace governance process. This same concern exists in the present, as evidenced by the widespread efforts of employers to avow the values of fair and equitable processes in workplaces. Therefore, this article will demonstrate that a workplace governance baseline according fair and just procedures for workers exists in the modern employment context. Selection practices that distort fair procedures in the workplace contradict this normative baseline, and the disparate impact doctrine serves as a measure to remedy such procedural distortions. With this conceptualization of the reasons underlying the disparate impact doctrine, I provide an alternative basis for assessing the constitutionality of the doctrine and addressing Justice Scalia’s contentions.

Interesting stuff and worth checking out.


October 29, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 28, 2012

L&E Roundup

SmartiesI've been falling behind on posts, so here's a collection of some things worth checking out.

Hat Tips:  Michael Duff, Sierra Johnson, & Brishen Rogers


October 28, 2012 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Bodie on Labor, Corporate, and Political Speech

BodieMatt Bodle (St.Louis Univ.) recently published in the Columbia Law Review's Sidebar, his essay "Labor Speech, Corporate Spreech, and Polictical Speech:  A Response to Professor Sachs." The piece provides a rejoinder to Ben Sachs' argument that shareholders should be given similar objector rights to employees represented by unions. From the conclusion:

The ability of union consumers—those enjoying the fruits of representation—to opt out of political expenses is asymmetrical and improper. But Professor Sachs’s correction for this asymmetry is flawed. In order for his theory to be operationalized fairly, there would need to be opt-out rights for all economic participants who provided support for speech with which they disagree. Instead of attempting to separate these myriad intertwined strands, we should instead recognize that unions’ political activities are part of their business of providing representation services to employees. If represented employees are to pay their fair share of representation, these costs must be included as well. To provide otherwise is to unfairly restrict unions in their ability to participate in the marketplace for ideas. On this basic principle, Sachs and I agree.

This issue is likely to be important for a long time and this is another interesting take on the problem, so check it out.


October 28, 2012 in Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, October 25, 2012

Jury Splits on Political Discrimination Case against Iowa

JusticeYou may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.

Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues. 

This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.


October 25, 2012 in Employment Discrimination, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 24, 2012

Last month we were contacted by the plaintiff in a particularly interesting case involving tenure at a New Imagereligious institution.  While we don't ordinarily want to be a forum for disappointed litigants, the decision in Kant v. Lexington Theological Seminary by the Kentucky Court of Appeals is pretty interesting. Essentially, the issue was the effect of a declaration of financial exigency on tenure rights, with the twist that the tenure-granting institution was a seminary. The outcome was adverse to the plaintiff and, although the issues in the cases are very different, it's interesting that this is the second decision in the last few months that seem to undercut the historic protections of academic tenure. The earlier case was, of course, the Sixth Circuit's decision in Branham v. Thomas Cooley, which basically held that tenure at that law school meant a one-year contract.

Although given the Supreme Court's recent decision in Hosanna-Tabor, one might have expected deference to a religious-oriented employer, particularily a seminary, it's also true that the LTS case was one in which the problems of entanglement were at a minimum -- the issue was whether the tenure contact allowed for financial exigency modification and the ministerial exception was not obviously apposite since  a contract right was at stake and Professor Kant was a Jewish faculty member at a Christian school -- not exactly the sort of "minister" involved in Hosanna-Tabor.

Nevertheless, the appellate court had little trouble in concluding that it could not resolve the dispute without intruding too far into church matters.  The decision suggests that, despite the Supreme Court's refusal in Hosanna-Tabor to opine as to the effect of the now-established "ministerial exception" on tort or contract cases, the doctrine is likely to continue to expand. Further, Kant suggests the strong possibility of the expansion without regard to traditional concerns about avoiding court entanglement with religion.


October 24, 2012 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

Women in the Legal Profession: More Bad News

NawlThe 2012 Report of the National Association of Women Lawyers paints, yet again, a bleak picture of the status of women in the legal profession.  Here, via Above the Law, is a summary from Vivia Chen over at The Careerist:


  • That cursed 15 percent figure again. Women make up barely 15 percent of equity partners, and just 26 percent of nonequity partners.
  • There’s no shortage of women in lower-status positions. Women represent 46 percent of associates, 35 percent of counsel, and 70 percent of staff attorneys.
  • A big wage gap exists between women and men in median compensation. The worst gap is among equity partners, where women make about 89 percent of what men make.
  • Women associates get smaller bonuses. Although nearly 50 percent of all associates are women, they receive only 40 percent of the bonuses.
  • Women lag behind in business. “Women partners are credited with a smaller median book of business than men, even though their business development efforts may be substantial,” reads the report.
  • Compensation decisions are made in a black box. “The gap between the median compensation of male and female equity partners cannot be explained by differences in billable hours, total hours, or books of business.”
  • Women partners lack clout. Women hold only 20 percent of the positions on a firm’s highest governance committee, and only 4 percent of firms have a firmwide female managing partner.


October 23, 2012 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Indian Law News

PeabodyMathew Fletcher (Michigan St.) over at Turtle Talk posts on EEOC v. Peabody Western Coal Co. (D. Ariz. Oct. 17, 2012), a case rasing a number of unique issues:


  • The scope of 703(i) ("preferential treatment ... to any individual because he is an Indian living on or near a reservation");
  • Employment preferences predating the enactment of Title VII (when was the last time you saw one of these?!); and
  • A case pitting two federal agencies against each other: EEOC v. Interior.


October 23, 2012 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking

EeocThe EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:

Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. 

The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It's a good summary.

h/t Marcy Karin (ASU)


October 23, 2012 in Beltway Developments, Employment Discrimination, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

"Dying on the Job" about Workplace Violence

BooksRonald D. Brown sends us word about his new and timely book: Dying on the Job: Murder and Mayhem in the Workplace (press release flyer here).

From the press release:

Dying on the Job is the first book on workplace violence to focus exclusively on workplace murder. While some perpetrators are certainly mentally impaired, many workplace murders are committed by people considered to be “normal.” Brown explores the various motives and drives that spark workplace murder, and answers hundreds of questions that are usually asked only after a workplace murder rampage has already occurred.

Are men or women more likely to commit workplace homicide? How can people more easily spot those likely to commit workplace murder? What are some of the warning signs? How often is "suicide" used as workplace revenge? The answers to these questions and more are based on more than 350 actual cases of workplace murder, and the answers are often surprising.

Brown also addresses different areas of prevention, counseling, and rehabilitation, and analyzes different approaches to gun control for both management and employees to make their job a safer place to work.

The praise that this book has received from top names in the labor and employment law field like Bill Gould, Cindy Estlund, and Lance Liebman, strongly suggest that it is a book well worth a read.  Check it out!


October 23, 2012 in Book Club, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Exploiting Au Pairs and Domestic Workers

ChuangJanie Chuang (American U.) has just posted on SSRN her article (forthcoming 36 Harv. J. L. & Gender (2013)) The U.S. Au Pair Program: Labor Exploitation and the Myth of Cultural Exchange.  Here's the abstract:

The Article exposes how the legal categorization of au pairs as “cultural exchange participants” is strategically used to sustain – and disguise – a government-created domestic worker program to provide flexible, in-home childcare for upper-middle-class families at below-market prices. The “cultural exchange” subterfuge has created an underclass of migrant domestic workers conceptually and structurally removed from the application of labor standards and the scrutiny of labor institutions. On the one hand, the “cultural exchange” rubric enables the U.S. government to house the program under the Department of State rather than Labor, and to delegate oversight of this government program to private recruitment agencies that have strong financial incentives to overlook and even hide worker exploitation. On the other hand, the “cultural exchange” rhetoric used in the au pair program regulations and practice reifies harmful class, gender, racial biases and tropes that feed society’s stubborn resistance to valuing domestic work as work worthy of labor protection. Together these dynamics render au pairs vulnerable to abuse, and threaten to undermine the tremendous gains otherwise being made on behalf of domestic workers’ rights. The Article concludes with a proposal to reform the au pair program with an eye to promoting decent working conditions for all domestic workers.


October 23, 2012 in Scholarship, Wage & Hour | Permalink | Comments (6) | TrackBack (0)

Saturday, October 20, 2012

Recently Published Scholarship: EREPJ


Employee Rights and Employment Policy Journal

Volume 16, Number 1 (2012)

Symposium The Workplace Law Agenda of the Obama Admistration
Symposium Editor: Ruben J. Garcia

  • Ruben J. Garcia, Foreword.
  • Michael C. Harper, Reforming the Age Discrimination in Employment Act: Proposals and Prospects.
  • Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma.
  • Michael C. Duff, New Nip in the Bud: Does the Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategics?
  • E. Gary Spitko, Don't Ask, Don't Tell: Employment Discrimination as a Means for Social Cleansing.
  • Rona Kaufman Kitchen, Off-Balance: Obama and the Work-Family Agenda.


October 20, 2012 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, October 19, 2012

Recently Published Scholarship


  • Bradley A. Areheart, The Anticlassification Turn in Employment Discrimination Law, 63 Alabama L. Rev. 955 (2012).


October 19, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

A Stolen Idea

Big birdJoan Williams (Hastings) and Katherine Ullman write in Psychology Today about how Mitt Romney's "binders of women" concept represents a pernicious but often overlooked form of sex discrimination.  Here's an excerpt:

What Romney did the other night was a very public example of "The Stolen Idea," a phenomenon women regularly face at work. Here's how it usually happens on the ground: A woman mentions a potential solution to a problem in a meeting, perhaps timidly so as not to seem overly aggressive, and her idea is largely ignored. Minutes later, a male colleague pipes up and slightly rephrases the woman's idea to the group; the group is impressed with the idea, and agrees to implement it. The man is commended for his problem-solving skills and creativity.

... Mitt Romney took credit for the hard work of MassGAP—a bi-partisan coalition committed to increasing the number of women leaders within the Massachusetts government—which is the group actually responsible for the infamous "binders." According to a study the group co-authored with the University of Massachusetts' Center for Women in Politics & Public Policy, 42 percent percent of the new gubernatorial appointments made by Governor Romney between 2002 and 2004 were women. This was not because Governor Romney looked around and asked, "Where are the women?" This was because an organization dedicated to women's advancement took an active role in recruiting qualified women candidates prior to and following the results of the 2002 gubernatorial election.

Despite MassGAP's successes in the first years of the Romney administration, the percentage of new female appointees later fell to about 25 percent; Romney ended his tenure as governor with fewer women in senior-level positions than when he started. Of this, the report co-authored by MassGAP advised, "Continued efforts should be made to monitor administrations throughout the full course of a governor's term." This does not sound like a leader committed to appointing binders upon binders of women.


October 19, 2012 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2012

Secunda on Employer Pressure to Vote Republican

SecundaCongratulations to Paul Secunda (Marquette) on being extensively quoted in this article in theguardian on emploeyrs pressuring employees to vote Republican. Here's an excerpt:

Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."

Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.

* * *

"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.

Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.


October 18, 2012 in Employment Common Law, Scholarship | Permalink | Comments (2) | TrackBack (0)

LEL Student Writing Competition


Laura Cooper sends word that:

The American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers have announced the rules and deadline for their 2012-2013 Annual Law Student Writing Competition.  The competition offers prizes of $1500, $1000 and $500 for the winning essays and the first prize essay will be published in the ABA Journal of Labor & Employment Law.  The deadline is May 15, 2013.  Here are the full contest rules.


October 18, 2012 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)