Sunday, June 30, 2013

Garden on Non-Labor Litigation by Unions

GardencCharlotte Garden (Seattle U.) has just posted on SSRN her article (forthcoming Tulane L. Rev.) Union Made: Labor's Litigation for Social Change.  Here's the abstract:

Unions are key repeat players before the Supreme Court. Their involvement extends beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others. Though scholars have written about how other union activity, like collective bargaining, impacts non-union workers, the role and impact of union participation in non-labor litigation has largely been ignored in the public debate over unions in America and in the academic literature about what unions do. This Article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional labor law; in order to show how union-made law affects interests beyond those of the labor movement, its members, and unionized employers. It reveals how union-made law has had significant effects on the structure of American government and society.

This Article first describes the many areas in which union Supreme Court litigation has had important social effects extending far beyond core labor interests, and explains why, as a practical matter, unions are well situated to bring or fund these cases. Next, the Article explores three characteristics that have the potential to shape unions’ litigation positions: First, unions are more likely than other social movement litigators to litigate defensively, as well as offensively; second, unions operate based on majority rule; and third, unions may use litigation to support bargaining positions. The Article shows how these dynamics have played out in past cases, sometimes with surprising results. Finally, the article concludes with some observations regarding declining union density in this country.


June 30, 2013 in Labor Law, Labor/Employment History | Permalink | Comments (0) | TrackBack (0)

Many thanks ...

Thanks... to my co-bloggers Paul, Jeff, Marcia, and Charlie for covering for me on Workplace Prof Blog as I transitioned to Ohio Northern.  I look forward to getting back into the blogging saddle.


June 30, 2013 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, June 28, 2013

Windsor's Effect on Federal Employment

Supreme CourtThis was fast.  Windsor is only a few days old, and OPM has already come out with this memo for federal executives: "Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and Their Families."  The introduction:

As you already know, on June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  As a result of this decision, the United States Office of Personnel Management (OPM) will now be able to extend benefits to Federal employees and annuitants who have legally married a spouse of the same sex. 

There are numerous benefits that are affected by the Supreme Court’s decision, and it is impossible to answer today every question that you may have.  Nevertheless, I want to assure you that the U.S. Office of Personnel Management is committed to working with the Department of Justice to ensure swift and seamless implementation of the Court’s ruling. 

A big deal for same-sex couples that include a federal employee.

Hat Tip: Patrick Kavanagh

June 28, 2013 in Pension and Benefits, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Lurie on the Fiscal Cliff

LurieAlvin Lurie has a guest post on BenefitsLink on the fiscal cliff.  Here's the introduction:

The final days of the first Obama Administration provided him and the Democratic and Republican leadership of the Congress with a unique challenge to resolve what had by then become the most critical domestic problem of the Nation: averting the fiscal cliff. To do so required them to achieve what they had been unable to accomplish in the President's entire initial term in office, namely, overcoming the obstacles posed by their sharply contrasting philosophies of government regarding the issues that underlie the fiscal cliff, i.e., tax policy and government expenditures. Resolving the problem was further compounded by what had become the President's mantra in his bid for reelection: "tax the rich" to diminish cuts in programs benefiting the middle and lower classes. The argument of this piece is that there had already been enacted as part of the Affordable Care Act new tax measures that were scheduled to begin in 2013, falling only on the very taxpayers who were in the President's target area, and that counting them would accomplish to a large extent his goal, thereby possibly removing the principal obstacle to the parties' ability to agree on how to avert the fiscal cliff. That didn't happen. Instead they came up with a last-minute set of tax measures, called the American Taxpayer Relief Act, to cushion the effects of the end of the Bush tax cuts on all but the "rich" American taxpayers. Much of the cliff-effect is still there. Recent events, principally an outbreak of scandals in Washington that have become the preoccupation of the government leaders, have put into serious question whether Washington will be able to engage in constructive efforts to resolve the differences over the cliff.


June 28, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Thursday, June 27, 2013

Morris on Employee-Rights Posters and Employers’ Free Speech

CharliemorrisWe are thrilled to welcome as a guest commentator to the Workplace Prof Blog our distinguished colleague, Charlie Morris.  As many of you know, Charlie is professor of law emeritus at the Dedman School of Law at SMU. He is an internationally renowned labor law scholar and authority on the NLRA and well-known for his take on members-only bargaining units.  He wrote about minority-bargaining in 2005 in The Blue Eagle At Work: Reclaiming Democratic Rights In The American WorkplaceMore recently, Charlie has started his own blog, Charles J. Morris on Labor Relations, featuring his thoughts on various labor law topics.

Here, Charlie shares with us his thoughts on the recent DC Circuit decision concerning employee-rights posters and employer's free speech.  Here is a taste of his commentary (which you can download in full at this link here):

A recent decision by a panel of  judges of the District of Columbia Circuit Court of Appeals in National Association of Manufacturers (NAM) v. NLRB, in an Opinion by Judge A. Raymond Randolph, holds that a rule issued by the National Labor Relations Board (NLRB or Board) on August 30, 2011, that requires employers to display a poster that advises employees of their rights under the National Labor Relations Act (NLRA or Act) is unconstitutional because it violates the First Amendment free-speech rights of employers.  The New York Times’ characterization of that decision as “outrageous” expresses the natural reaction to a ruling that uses the cover of free speech to suppress free speech.  Judge Randolph’s decision raises the critical question of whether by final judicial determination this notice-posting rule will be deemed a violation of the Constitution, for if so, most governmentally required notice postings (both federal and state) that are commonly displayed in millions of American workplaces will no longer be mandatory.  Based on established case law, the final answer to that question should be that the rule does not violate the First Amendment; thus the existing familiar notice- postings will safely continue. 

This is an excellent piece for both those who are unfamiliar with this area of labor law, as well as those who know much about this decision and are interested in a well-thought out and comprehensive perspective. We look forward to Charlie sharing more of his posts with us as a guest commentator in the days and weeks to come.


June 27, 2013 in Commentary, Labor Law | Permalink | Comments (3) | TrackBack (0)

Tuesday, June 25, 2013

O'Donnell Bibliography on Workers, the World of Work, and Labor Law

MinersPatrick O'Donnell (Philosophy, Santa Barbara City College) may be known to some of you through his blogging at Ratio Juris and Religious Left Law or other places. He is also a compiler of bibliographies extraordinaire. He has sent us an updated version of his bibliography on Workers, the World of Work, and Labor Law: Download World of Work and Labor Law Bibliography

Patrick has other bibliographies available that might be of interest to readers, as well, including:

  • Animal Ethics, Rights, and Law
  • Death and Dying
  • Dreams and Dreaming
  • The Emotions
  • Environmental and Ecological Worldviews
  • The Ethics, Economics, and Politics of Global Distributive Justice
  • Freudian and Post-Freudian Psychology
  • Human Rights
  • Mass Media: Politics, Political Economy, and Law
  • Punishment and Prison
  • Socio-Political Conflict Resolution and Nonviolence
  • Terrorism
  • Torture
  • Vietnam War

If you are interested in any of those other topics, I'm sure Patrick would be willing to share them.



June 25, 2013 in Labor Law, Labor/Employment History, Scholarship | Permalink | Comments (1) | TrackBack (0)

Stone on Italian Colors

StoneKatherine V.W. Stone (UCLA) has a nice blog post at the Huffington Post on American Express v. Italian Colors Restaurant. A bit from the post:

Today the Supreme Court put another nail in the coffin of the withering body of consumer rights. In the American Express v. Italian Colors case, the Court furthered its trend that permits corporations to use arbitration to prevent consumers from challenging their unlawful conduct. The case arose when a group of merchants brought a class action against American Express alleging that the credit card company imposed on them an illegal tying arrangement, in violation of the antitrust law. The merchants' contracts with Amex contained a clause that required all disputes be subject to arbitration and that all disputes be arbitrated on an individual basis. It also prohibited parties from sharing the costs of any litigation or otherwise consolidating their legal claims. The merchants wanted to void the class action waiver and arbitrate as a group because it would cost many hundreds of thousands of dollars to mount an antitrust action yet the average recovery would be only $5000. Hence, they argued, without the ability to bring a class or collective action, they would lose their substantive rights. The Second Circuit agreed. It held that the class action ban could not be enforced "because to do so would grant Amex de facto immunity from antitrust liability by removing the plaintiffs' only reasonably feasible means of recovery."

The Second Circuit decision rested on an established Supreme Court precedent that says that under the Federal Arbitration Act, arbitration is only appropriate when it entails no loss of substantive rights. The Supreme Court first expressed this principle in 1985 in Mitsubishi Motors v. Solar Chrysler-Plymouth, a case in which a party was required to arbitrate a claim arising under the Sherman Antitrust Act. In Mitsubishi, the Court stated that arbitration could be ordered only if the litigant "may vindicate its statutory cause of action in the arbitral forum." The Court further explained that "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute."

There is a lot more good analysis. You should read the whole thing.


June 25, 2013 in Arbitration, Beltway Developments, Commentary | Permalink | Comments (0) | TrackBack (0)

Call for Papers for the Twelfth International Conference in Commemoration of Marco Biagi and Young Scholars' Workshop

ItalyflagSusan Bisom-Rapp (Thomas Jefferson) writes to encourage Americans to attend the Biagi conference in Italy this coming March 2014.

Here is the Call for Papers for the Twelfth International Conference in Commemoration of Marco Biagi, which will be held in Modena, Italy at the Marco Biagi Foundation of the University of Modena and Reggio Emilia, on Tuesday, March 18 – Wednesday, March 19, 2014.  The theme of the conference is “Employment and Social Rights: An Evolving Scenario.”  More information about the conference is contained within the call.

Additionally, Susan tells us about a Call for Papers for the Third Young Scholars' Workshop in Labour Relations, which will be held at the Marco Biagi Foundation on Monday, March 17, 2014, the day before the conference begins.  This programming is designed for PhD candidates and post-doctoral researchers.  Those selected will present a paper for discussion at the workshop.  Those not selected may nonetheless be invited for a poster session, which will be held during the conference.

Questions should be directed to Susan's good friend and colleague Professor Iacopo Senatori: [email protected].  Iacopo is handling the organizational aspects of the conference and the Young Scholars’ Workshop.


June 25, 2013 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

Two Big Employer Title VII Wins at the Supreme Court Today

ScotusThe Supreme Court handed down opinions in two Title VII cases today, both of which will benefit employers. You should read both cases because they are really interesting. I'll just offer a general overview here.

First was Vance v. Ball State. In Vance, the Court considered who would be a supervisor for purposes of vicarious employer liability under Title VII. It held that only those employees empowered to take tangible employment action would be supervisors. Other employees with some supervisory authority are "merely" co-employees even if they are labeled supervisors by the employer. And an employer is liable for harassment by coworkers only if the employer is negligent in allowing the harassment to happen. The negligence inquiry must take into account the degree of authority and control the harasser had, and the greater the amount, the more likely the employer may be found negligent, as long as it also had constructive notice of that harassment. Thus, the Court reaffirmed the agency principles it had adopted in Farragher and Ellerth

The second case was University of Texas Southwestern Medical Center v. Nasser. That case involved the causation standard for retaliation cases under Title VII. The Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action taken against them, using the reasoning we are familiar with from Gross v. FBL Fin. Servs. The Court presumed that Congress incorporated the general tort causation standard in Title VII when it enacted the law, and the 1991 amendments which adopted the motivating factor standard used it in connection with discrimination on the basis of protected status and did not mention the word retaliation. The Court further relied on its decision in Gross, holding that if "because" meant but-for there, it must mean but-for in the retaliation context. Although the Court had previously held in Price Waterhouse that "because" could mean motivating factor or substantial factor, it said in this case that decision had no continuing effect. Congress essentially erased Price Waterhouse with the Civil Rights Act of 1991.  

In both decisions, the Court rejected interpretations provided by the EEOC as unpersuasive, giving them no deference. Both decisions were decided 5-4, and Justice Ginsburg wrote the dissents for both. In both cases, Justice Ginsburg charged the majority with ignoring the realities of the workplace--the conditions under which people work--and of narrowing Title VII's protection well beyond what Congress had intended. She called on Congress to remedy both decisions. 

My impression on reading both cases is that the decisions read as fairly instrumental, adopting highly technical statutory readings only when convenient and playing somewhat loose with prior precedent and lower court decisions. Clearly, the majority views Title VII cases as a problem for employers, a problem Congress must not have intended to cause, and a problem that the Court has to fix. I'm not sure that Justice Ginsburg's solution is workable, either. In the current climate, I would be surprised if Congress could do anything. And, it seems, no matter what Congress does, it seems that the Court has its own picture of what Congress should do. That motivated reasoning would be difficult to overcome even if the statute is amended. Consider what the Court did with the 1991 amendments. Instead of codifying the reasoning behind the causation analysis from Price Waterhouse, something Congress must have believed it was doing, those amendments were considered by the Court to have erased it completely.


June 24, 2013 in Beltway Developments, Employment Discrimination, Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Supreme Court Grants Cert. in Noel Canning & Section 302 Cases

NLRBIn what can probably be described as among the least surprising news to come out of the Supreme Court this week, the Court today granted cert. in Noel Canning.  You can read our previous posts on the case here, here, here, and here.

The briefing and arguments in this case should be interesting.  I'll be especially curious about the extent to which the government will try to defend the pro forma session appointments rather than just attacking the D.C. Circuit's incredibly broad decision. 

Also, the Court granted cert. in UNITE HERE v. Mulhall.  This deals with Section 302, which makes it unlawful for an "“employer . . . to pay, lend, or deliver, any money or other thing of value . . . to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employees of such employer . . . ."  Anti-union folks have argued that certain nuetrality agreements and other promises to give employee contact info violate this provision.  Most courts have rejected that.  In Mulhall, the Eleventh Circuit was more open to the argument, although still stressed that there's only a problem if the agreements implicate Section 302's policy by showing evidence of an intent to corrupt a union or were made in the face of extortion.  This grant of cert. worries me.  I don't see a reason to take cert. unless the Court wants to expand Section 302 (theoretically they could say Mulhall went too far, but I'm guessing that's not the case).  I don't think Section 302 was intended to prohibit neutrality agreements, but that may be too juicy a target for the Court majority.  Stay tuned.


June 24, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

Thursday, June 20, 2013

U.S. Supreme Court Ruling in American Express Case Upholds Class Action Arbitration Waivers

4United States Supreme Court 112904Today, we have a guest post from Lise Gelernter (Buffalo) on the United States Supreme Court's latest decision on arbitration in American Express v. Italian Colors Restaurant.  The decision can be found  on the Supreme Court website here under the name of the case.

Here's Lise's overview of the decision:

The Court, four in the majority (Justice Scalia writing the decision), one in concurrence (Justice Thomas) and three in the dissent (Justice Kagan writing the opinion with Breyer and Ginsburg joining her – Justice Sotomayor took no part, presumably because she was on the 2d Cir. when it decided the case that the Supreme Court reviewed), said that the Federal Arbitration Act prohibited a court from invalidating an arbitration agreement that barred class actions, even if the practical effect was that the plaintiffs would find it impossible to vindicate their antitrust claim. 

An economic analysis had shown that the cost of an expert witness to show that American Express had used improper monopolistic power to impose fees on the plaintiffs would far exceed the economic recovery that any one individual plaintiff could hope to have.  As the dissent pointed out, the pluarlity and concurrence basically responded by answering that that was just “too darn bad.”
The impact in the labor and employment context is that unrepresented employees can not only be required to waive access to a court to vindicate statutory rights, but can also be required to waive their right to class actions.   Thus, minimum wage, employment discrimination and other types of employment actions will have to be pursued on an individual basis if that waiver exists in a pre-hire agreement. 

On the collective bargaining side of things, it will be interesting to see if an employer tries to compel individual arbitration of a contract grievance that was brought on behalf of a whole bargaining unit (e.g., a violation of a contractual provision on overtime scheduling).  I don’t know that it would make much of a difference in the long run in terms of the practical effect of an arbitration award, which probably means it is not worth it for an employer to pursue that kind of argument.

Great commentary, Lise, and looking forward to others' comments on this important new arbitration law case.


June 20, 2013 in Arbitration, Commentary | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 19, 2013

Mastrosimone on the NLRB's Election Rules

MastrosimoneJoe Mastrosimone (Washburn) has just posted on SSRN his article, "Limiting Information in the Information Age: The NLRB's Misguided Attempt to Squelch Employer Speech," which will appear int he Washburn Law Journal.  The abstract:

The central promise of the National Labor Relations Act is freedom of choice to American workers to decide whether they wish to be represented by a labor union. At the same time, studies show that employees’ choices are not always the product of uncoerced freewill. Many attribute employer coercion as hampering employee choice. That choice had traditionally been made through a secret ballot election conducted by the National Labor Relations Board. That election has generally been held approximately six to eight weeks after the petition for an election and after the union and the employer have “campaigned” for employee support. 

To correct employer coercion problems, the NLRB has altered its representation process to drastically shorten the period from petition to election. That shortened window significantly reduces the time in which an employer can communicate with his or her employees about the choice they are about to make in the soon-to-come election. 

The article concludes that attempts to shorten the campaign and cut out the employer’s role in the process are contrary to Congressional intent, to the First Amendment, and to the information gathering purpose of the campaign. Those conclusions are based on an examination of the legislative history of the Taft-Hartley Act’s inclusion of “the employer free speech provision” in Section 8(c), the court’s longstanding treatment of employer and union campaign speech as protected by the First Amendment, and studies of political campaigns that show that the information gathered by voters during a campaign is meaningful and helpful to the electorate and that the gathering of information is related to the length of the campaign. 

The article concludes that (1) the shortened campaign seeks to prevent unlawful coercion by improperly and unwisely limiting this protected and valuable information and (2) offers other means to combat unlawful coercion that respect the employer’s right and the employees’ need for information from both the employer and the union.

Joe's criticism of quicker elections is well thought out, even though many will disagree with him (I've come out somewhere in the middle by advocating for shorter elections, but not too short).  No matter your views on the timetable, he makes some interesting proposals as replacements for quick elections, including staying employer's ability to terminate employees during the critical period and requiring employers to provide information to support predictions of plant closures and similar costs of unionization.  

A very interesting article--check it out.


June 19, 2013 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 17, 2013

AALS Section on Employment Discrimination Law – Call for Papers for Panel on “Title VII at 50: Looking Forward, Looking Back"

ConfDeborah Widiss (Indiana-Bloomington) passes on a call for paper for the upcoming program of the AALS Section on Employment Discrimination Law – Title VII at 50: Looking Forward, Looking Back.”

Here is the annoucement:

The AALS Section on Employment Discrimination invites submissions for participation in a panel at the annual conference (Jan. 2-5, 2014) focused on Title VII’s fiftieth anniversary. The panel will bring together key leaders who helped shape Title VII’s early implementation, a current EEOC commissioner, and scholars to use this milestone year as an opportunity for looking both forward and backward at Title VII’s impact and its potential. Confirmed panelists include Alfred Blumrosen, Chai Feldblum, Trina Jones, and Bill Robinson. One additional panelist will be selected from the call-for-papers; junior scholars are particularly encouraged to submit proposals. Presenters may opt to publish their papers in the Employee Rights and Employment Policy Journal.  

The deadline for submissions is August 15, 2013. More details are available here. For more information, contact Deborah Widiss, [email protected].


June 17, 2013 in Conferences & Colloquia, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, June 14, 2013

Fourth Circuit Strikes Down NLRB's Notice Posting Rule


UPDATE:  I was informed by someone at the Department of Labor that, since 2010, DOL requires federal contractors to post virtually the identical notice; indeed, the NLRB used the DOL rule as a model.  Given the numebr of such contractors, this is nothing to sneeze at.  But it would be nice if other employees also knew what their legal rights were.

The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB's notice posting rule, in Chamber of Commerce v. NLRB (a 3-0 decision, with 2 Obama nominees).  Unlike the D.C. Circuit's broad, quasiiconstitutional decision, the Fourth Circuit limited its holding to whether the NLRA gave the NLRB power to require employers that have acted unlawfully to post informational notices.  The court concluded that it did not.

The short version of the holding is that, unlike other statutes that gave agencies the power to require notices, the NLRA limited the NLRB to a reactive role.  In other words, the Board cannot act unless it is acting on a ULP charge or representational matter; thus, it is unable to impose an independent duty on employers that have not otherwise violated the Act (like the D.C. Circuit, the Fourth Circuit did not strike down the NLRB's practice of requiring notices in case-by-case determinations as a ULP rememdy or prior to an election).  I find this view of the NLRA too narrow and think the court was too quick to dismiss the Board's attempt to fit the rule under its power to "necessarily carry out" the provisions of the Act.  That said, it is a far more defensible holding that the broad one from the D.C. Circuit.  Unfortunately, the result is the same--assuming these cases stand, the NLRB won't be able to punish employers for not posting notices absent an amendment of the NLRB.  Although I still think the NLRB should ask employers to voluntarily post notices (and sweeten the pot by changing the notice to add more language about the right not to join a union, whcih it should have had in the first place).  Even if a small number of employers use it, it's better than none.

Hat Tip:  Patrick Kavanagh


June 14, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Shout Out to Richard Moberly's New Blog: Law of Secrecy Blog

MoberlyRichard Mobely (Nebraska) writes to tell us that he is finally dipping his toes in the blogging world (yes, he realizes it is 10 years too late!).

In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.

I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.

Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.


June 14, 2013 in Faculty News, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Cherry and Carlson on Virtual Workplace Whistleblowers

WhistleCongratulations to both Miriam Cherry (St. Louis) and Richard Carlson (Sout Texas) who were both mentioned in a recent article by AOL News discussing the importance of virtual workplace whistleblowers in light of the Snowden affair.  The article is entitled: New Type Of Whistle-Blower: Young, Internet Savvy And Headed For Jail.

In particular, Miriam's latest article was written up by AOL News.  Here are some highlights:

Miriam Cherry, a professor at Saint Louis University School of Law and author of the report, calls them "virtual whistle-blowers." Unlike past generations, they're blogging, dropping surreptitious videos onto YouTube or leaking documents to online groups such as WikiLeaks, as Bradley Manning allegedly did. Cherry points to a growing army of "whistle-bloggers," employees who blog -- usually anonymously -- about illegal activities at their places of work. No state so far, she notes, has whistle-blower laws on the books to explicitly protect bloggers -- let alone the people who post YouTube videos or leak to Wikileaks.

Here is a link to Miriam's featured article. Congratulations to both Miriam and Richard!


June 14, 2013 in Labor and Employment News, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, June 13, 2013

Wal-Mart makes news for focus on temp hiring

WalmartReuters recently did a survey of Wal-Mart's hiring in recent months and published the findings today. The results are making a fairly decent size buzz in other media outlets and on twitter. The survey revealed a big surge in hiring temporary workers, who are automatically terminated after 180 days, although they can reapply for their positions. About half the stores surveyed were hiring only temporary workers, while others were hiring a mix of temporary and non-temporary workers. It appears that all of the temporary workers were hired to work part time, and that Wal-Mart makes a distinction between regular part-time work, and temporary part-time work. Regular workers aren't automatically terminated at the 180-day mark. The stores explained that this strategy allows them to be more flexible, able to react more quickly to changes in demand. Of similar types of stores, only Dollar General does temporary hiring year round. Most only do temporary hiring at the holiday season.

I have a serious question about this news. What does the "temporary" designation get Wal-Mart? It is a term without legal effect. We all know that in reality, nearly all of Wal-Mart's workers, and most workers in the U.S., are effectively temporary workers. They can be terminated at any time for nearly any reason with no notice. We also know, though, from Pauline Kim's (Wash. U. St. L.) work, and our own experiences, that many if not most employees don't realize this.

Clearly, people do attach legal significance to the terminology. Most of the commentary on the Wal-Mart news suggests that this kind of terminology has legal significance, as if the default employment relationship gave employees some level of job security, and hiring workers labeled "temporary" outside of the busiest season for that business is some kind of break with the norms of employment relationships.

So why use this terminology that has no legal consequences? Is this designation a way to make the workers feel even more insecure? Does it make them less likely to assert rights during their employment or after because they are told up front not to expect to continue? Is this kind of like noncompete agreements in places they are not enforceable? I have the same problem with other HR terminology, too, like "probationary" employees in an at-will setting. Or even full or part-time in an at-will context before the FMLA or the ACA mandated some limited benefits based on the number of hours an employee worked.

I ask these questions because I genuinely want to know what the answers might be. I speak to non-lawyers a lot about employment law issues, and I find that nearly every discussion or presentation ends up with me giving them bad news, that they don't have job security unless they have an individual or collective contract (or some statutory rights like civil servants and public school teachers). Our students, like most people, also tend to believe employees have job security until they take our classes. 

Maybe part of an answer is that even though at-will employees have no legal job security, they have practical job security because most employers have incentives to keep employees. Small employers and people with hiring and firing power often have personal relationships with those they have power over that make firing people difficult. And employers' own beliefs, which tend to overestimate the risk of liability mean that they rarely terminate people without a pretty good reason. Is that enough?

Feel free to weigh in on any of the questions in the comments.


June 13, 2013 in Commentary, Labor and Employment News, Workplace Trends | Permalink | Comments (8) | TrackBack (0)

Wednesday, June 12, 2013

EEOC Sues BMW and Dollar General for Improper Use of Criminal Background Checks

EeoclogoThe Wall Street Journal has the story of how the EEOC yesterday filed cases against two companies, BMW and Dollar General, who are accused of improperly using criminal background checks to discriminate against black applicants.

From the Wall Street Journal:

Federal regulators Tuesday accused two large employers of improperly using criminal-background checks in hiring, the latest salvo in a contentious debate over whether such screening amounts to discrimination against black applicants.

In complaints filed in federal courts in Illinois and South Carolina, the Equal Employment Opportunity Commission said two companies discount retailer Dollar General Corp. and a U.S. unit of German auto maker BMW generally barred potential employees based on the criminal checks, when they should have reviewed each applicant. The commission said the policies had the effect of discriminating against black applicants.

The suits underscore increasing government scrutiny of criminal and credit checks, which are widely used to screen job applicants. Some 92% of employers use criminal-background checks for some or all job openings, according to a 2010 survey by the Society of Human Resource Management.

The EEOC issued guidance to employers last year, shortly after a unit of PepsiCo Inc. agreed to pay $3.1 million and change its screening policy to settle charges of discriminating against blacks by improperly using criminal checks. In some cases, the Pepsi bottling unit screened out applicants who had been arrested but never convicted.

The guidelines don't bar the use of criminal checks, but urge employers to consider the crime, its relation to an applicant's potential job, and how much time that has passed since the conviction. The guidelines also recommend that employers review each case individually, and allow applicants to show why they should be hired despite a conviction.

Because this is an area of the law where the EEOC recently issued guidance and has had success in winning these cases against other large companies, I would suspect this is going to be a hot area of employment discrimination litigation for many years to come. Or at least until some of these employers adopt criminal background check practices that comply with EEOC guidelines.

Hat Tip: Liz Tippett


June 12, 2013 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

O'Brien on The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies

ObrienneylonChristine Neylon O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her forthcoming article in the Oregon Law Review: The Top Ten NLRB Cases on Facebook Firings and Employer Social Media Policies.

Here is the abstract:

Social media have profoundly changed communications for our personal and professional lives, from social networking to job searching, to social movements and more. Facebook, Twitter, Linkedin, Pinterest, tumblr, instagram, blogs, as well as emerging social media concepts, have re-imagined our methods and means for speech, interaction and connection. Computers, iPads and smartphones are the means for this intense multi-platform engagement in social media, resulting in the blurring of work and personal time, on work and personal equipment as well as accounts. This further complicates the employment relationship as companies seek to protect their brand, trade secrets and employee communications by publishing social media policies (SMPs). In the context of unfair labor practice cases, the National Labor Relations Board has been reviewing employer social media policies and actions that interfere with rights that apply whether employees are in a union or not. This article outlines the top ten cases in this area to instruct employers and employees on what policies and comments are lawful or protected. The cases encompass employer policies that an employee would reasonably perceive to infringe upon employee rights to engage in National Labor Relations Act-protected concerted activities, and instances where an employee is disciplined or discharged for engaging in protected activity.

Hard to think of a more relevant and timely topic in the area of American labor law. I was just explaining to one of my colleagues the other day that much of the action in traditional labor law in the next few years might be with regard to the Section 7 rights of non-union employees.  This article provides much needed guidance of what those evolving rights might look like in the social media milieu.


June 12, 2013 in Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

ADAPT Forum on Internships: Internships and Traineeships: Occupational Transition or Exploitation?

AdaptLots of news and cases these days around the world about the plight of unpaid interns.  Our friends at ADAPT send us word that they will be holding a forum on the issues surrounding this important labor and employment law topic.  The name of the forum is: Internships and Traineeships: Occupational Transition or Exploitation? Here is a description:

We are pleased to inform you that the Association for International and Comparative Labour Studies (ADAPT) has launched a new discussion forum on the contentious issues of internships and traineeships. In our opinion, debating this matter from an international and comparative perspective is the best way to reflect upon the central questions related to labour market regulation: What is the meaning and value of labour and which is its proper legal definition? In reference to internships and training, are we talking about work or a simple learning experience? Which is the legal definition and, consequently, the most effective way to regulate internship? According to the different definitions and purposes, shoul d internships be paid or unpaid? How to evaluate and certificate the competence gained after a period of an internship? Who monitors and controls the regularity and the quality of internships? Should internships be limited to school alternation or school-to-work transition only? Is it possible to utilize people’s work without a formal contract?

We do not have pre-determined answers to all these questions, yet we strongly believe that today’s improper use of internships will have serious consequences not only on young people but also on the future of our economies and on the development of a sound society. This is why we want to open this forum and ask your contribution and suggestions, in order to provide the right answers to such a complex issue. We are aware that an international and multi-disciplinary approach could help us to devise a theoretical framework and some practical solutions in order to avoid that such an important lever in terms of school-to-work transition degenerates into forms of exploitation of young people.

This is an open access 2.0 forum. A simple registration is required.

The solutions provided in this forum will be discussed during the upcoming international conference, Internship and Traineeship for Students and Young People, Training, School-to-Work Transition or Exploitation?, organised by our International PhD School on Human Capital Formation and Labour Relations on October 25-26, 2013 in Bergamo.

You are welcome to join us in this forum and attend the conference, also by submitting a contribution in response to our call for papers.

For further information, make contact with our staff at [email protected]


June 12, 2013 in Conferences & Colloquia, International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)