Wednesday, July 31, 2013

Call for Papers for Third Annual ERISA, Employee Benefits, and Social Insurance National Conference

ConfI am happy to issue this invitation and call for papers for the Third Annual ERISA, Employee Benefits, and Social Insurance National Conference: Benefits Law at the Crossroads: Whither U.S. Employee Benefits and Social Insurance Law, a conference to be held on Friday, March 28, 2014, at Marquette University Law School in Milwaukee.

The conference is intended to provide an invited group of leading scholars and policy makers the opportunity to discuss current research and topics of interest involving employee benefit plans and social insurance.  You are welcome to participate either by presenting work in progress, moderating a panel, or simply by attending and participating in the discussion. The following are tentative topics to be discussed by separate panels:

Public Pensions, Bankruptcy and Federalism

Emerging Issues Surrounding Implementation of the Affordable Care Act

Theoretical Challenges to Current Retirement and Benefits Law Systems

Emerging ERISA Issues

Space on the program will also be provided for other benefits law-related topics that do not fit readily within any of the above descriptions.

If you are interested in attending the conference, I would greatly appreciate your indicating, as early as you can, the likelihood of your attendance.  Please email me at [email protected].  While of course your plans may change, this preliminary information, however tentative, will help us in planning and making the conference arrangements.

To propose inclusion of your work on the conference program, please submit an abstract of 200-300 words and an/or outline of up to 3 pages to me via email and indicate which panel(s) your proposal fits within.  As indicated in the attached call for papers, the deadline for submitting an abstract is September 20, 2013.  Those participants whose papers are accepted will be asked to commit to finishing their manuscripts by March 1, 2014, in time to permit distribution to and review by other participants by the March 28th conference.


July 31, 2013 in Conferences & Colloquia, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

The NLRB Is Back

NLRBI honestly didn't think I'd be writing those words this early, but it's true: today, the Senate confirmed five members for the NLRB, which is now full strength.  Kent Hirowaza and Nancy Schiffer were confirmed 54-44; Chairman Pearce was reconfirmed 59-38; and the two Republicans, Harry Johnson and Phillip Miscimarra were confirmed on a voice vote.

I very pleased to see the Board at full strength--and in a manner that should keep it stable for a few years at least.  I'm sure it's a great relief to employees at the Board.

Hat Tip: Patrick Kavanagh


July 30, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 29, 2013

Secunda on Detroit Bankruptcy

SECUNDAPaul Secunda is back in the news again--this time on Detroit's filing for bankruptcy.  In particular, the filing raises the question of what will happen to the city's pension promises, which are guaranteed by Michigan's constitution.  Should they have a higher priority or should they be treating like any other creditor?  Paul comments on this issue in the Montreal Gazette and ABA Journal:

"There's not a lot of previous case law that tells us what's going to happen here," said Paul Secunda, a Marquette University law professor who specializes in labour and benefits issues.

"It's not just an issue of bankruptcy law and pension law, it's also an issue of federalism," Secunda said. "Can a federal bankruptcy court basically ignore a state constitutional provision and allow a city like Detroit to ignore its previous promises concerning public employee pensions?" . . . 


July 29, 2013 in Labor and Employment News, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Friday, July 26, 2013

Sperino, Grover and Gonzalez Statutory Supplement for Employment Discrimination Law Courses

Sandra Sperino (Cincinnati) writes to remind us that Susan Grover (William & Mary), Jarod Gonzalez (Texas Tech) and herself created a free statutory supplement for employment discrimination law courses. 

The statutory supplement contains relevant portions of Title VII, the ADEA, the ADEA, section 1981, section 1981(a), the Civil Rights Act of 1991, the Congressional Accountability Act, the Equal Pay Act and Fair Labor Standards Act (provisions related to employment discrimination), the FMLA, the Federal Arbitration Act, GINA, IRCA and the Portal-to-Portal Act. 

The authors give permission for this supplement to be used with attribution for any educational purpose, as long as the materials are provided to students for free or for copying costs.  Instructors may also edit the available document to meet their course needs.  The statutory supplement is available here in Word and pdf formats.
Bonus: the website also contains edited versions of Vance v. Ball State University and University of Texas Southwestern v. Nassar.


July 26, 2013 in Book Club, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

Penn State's "Health Tax"

PsuFrom Legal Skills Prof Blog, referring to a story in Inside Higher Ed:

Beginning in the fall, Penn State will levy a "health tax" (they're calling it a "surcharge") of $100 per month against any employee, including faculty, who fails a healthcare screening that includes a “full lipid profile,” blood-glucose test, body mass index and waist circumference measurement.  Yeow!  So even if you're in relatively good shape but pound Twinkies between work-outs which sends your lipids rocketing past the Dow Jones Industrial Average, you're going to have to pay-up.


July 23, 2013 in Pension and Benefits | Permalink | Comments (5) | TrackBack (0)

LEL Articles in Today's Wall Street Journal


Today's Wall Street Journal has a trio of labor/employment related articles worth reading:

  • A Backdoor Approach to Union Organizing  (using community groups to reach workers).
  • More Workers Say Firms Retaliate for Injury Claims (workers' comp and OSHA).
  • Genetic Tests Create Pitfalls for Employers (GINA).

A subscription is required, which is why there are no links.


July 23, 2013 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Thomas & Molk on the Affordable Care Act

Sthomas MolkSuja Thomas & Peter Molk (both Illinois) have just posted on SSRN their article (forthcoming 99 Cornell Law Review Online __ (2013)) Employer Costs and Conflicts Under the Affordable Care Act.  Here's the abstract:

In January 2015, qualified employers must provide health care coverage under the Patient Protection and Affordable Care Act of 2010 or face a fine. As employers actively attempt to minimize the costs that they will incur, the possibility emerges that employers will retaliate against or harass employees who seek coverage. This Essay discusses the protections for employees under the law and the possible deficiencies in the law. It shows that employers and employees often have contrasting incentives – employers to avoid coverage, and employees to take coverage – and these incentives may result in employer harassment and retaliation of employees. Presently, in an analogous context, employees often raise retaliation claims after they have complained of discrimination, and these claims have had significant success. Because of similarities between these situations, comparable retaliation under the ACA is likely, and perhaps it will occur even more due to the significant specific costs that employers face under the ACA.


July 23, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, July 22, 2013

Secunda Doesn't Buy Walker's Politicspeak

SecundaCongratulations to Paul Secunda, who is quoted extensively in this Milwaukee Journal Sentinel article about Governor Scott Walker's evisceration of public sector unions in Wisconsin  Here's an excerpt:

Walker rejected any suggestion that he had effectively handicapped the once-powerful labor groups with his legislation.

"People said at the time, 'Oh, you're trying to get rid of the unions,'" Walker recalled. "I said, 'No, I'm trying to have them show value.' Workers are making their value assumptions."

One labor law expert challenged Walker's statement on his motives.

"Absolutely disingenuous," said Paul Secunda, an associate professor at Marquette University Law School.

Secunda, who hasn't given to Democratic or Republican candidates in recent years, said it's clear that Act 10 was part of an orchestrated effort to undermine public employee unions, noting that GOP governors in Indiana, Ohio and Michigan had made similar proposals.

Walker's plan, the professor said, contains such punitive measures as requiring unions to recertify annually and barring employees from paying their union dues through payroll deductions.

Beyond that, the governor reduced the importance of these unions by prohibiting collective bargaining on anything but wage increases — and then only up to the rate of inflation. Secunda said even those public employees who agree with the idea of unions must be asking why they should pay dues to get the same pay raise as everybody else in government.

"It's not about liking or disliking unions," Secunda said.


July 22, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (10) | TrackBack (0)

Saturday, July 20, 2013

Fink Defends Snooping Employers

FinkJessica_200Jessica Fink (Cal Western) has just posted on SSRN her article In Defense of Snooping Employers.  Here's the abstract:

In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the "social media privacy" of individuals in their states. ... In a world where technological advancements have made it easier than ever to collect massive amounts of information about those in the workforce and where employers feel an increasing need to collect such information, looming questions continue to exist regarding the proper scope and limits of employees’ privacy.

This article represents one effort to answer these questions while taking the employers’ perspective into account, explaining both the motivations behind and justifications for employers’ efforts to "snoop" into their employees’ private lives. The article describes the means through which employers gather information about their employees, including through some recent, rather novel approaches to collecting such data. In addition, this article discusses the financial, legal and practical concerns that motivate employers to snoop in the first place, arguing that employers engage in this conduct for what frequently amount to very legitimate reasons. More significantly, this article places substantial responsibility for employer snooping with the courts themselves, highlighting particular decisions and doctrines that not only permit, but in fact encourage, employers to engage in these efforts to monitor employees.

At bottom, this paper attempts to put the "problem" of employer snooping into a broader context. While employers certainly should not have access to every aspect of their prospective and current employees’ private lives, and while abuses of the boundaries undoubtedly exist, much of the snooping behavior for which employers have been condemned represents more than just senseless meddling, but rather is part of a sound business plan designed to protect employers, employees and the public at large.


July 20, 2013 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

Call for Papers

The AALS Section on Women in Legal Education submits this call for papers that might be of interest to some of our readers:

Call for Papers Announcement

AALS Section on Women in Legal Education

"New Voices in Gender Studies"

AALS Annual Meeting

January 2-5, 2014

New York, New York

The AALS Section on Women in Legal Education will hold a program,  New Voices in Gender Studies, during the AALS 2014 Annual Meeting in New York City, whereby selected panelists Submissions should be of scholarship relating to: (1) women in legal education; (2) any aspect of women’s or men’s relationship to the law; or (3) gender, sexuality and the law.  There is a maximum 30,000 word limit (inclusive of footnotes) for the submission. Since this is a paper presentation opportunity, and not one for publication, submitted papers can be committed for publication prior to their submission, but cannot be actually in print prior to their submission. Each professor may submit only one paper for consideration.

Full-time faculty members of AALS member and fee-paid law schools, who have been teaching seven (7) or fewer years as of August 1, 2013, are eligible to submit papers. Foreign, visiting (and not full-time on a different faculty) and adjunct faculty members, graduate students, and fellows are not eligible. Faculty members who have presented their papers during previous New Voices in Gender Studies programs are also ineligible.

Papers will be reviewed anonymously. The manuscript should be accompanied by a cover letter with the author’s name and contact information. The manuscript itself, including title page and footnotes, must not contain any references that identify the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.

To be considered, papers must be submitted electronically to Professor Wendy Greene, Samford University’s Cumberland School of Law, at [email protected]. The deadline for submission is Friday, August 30, 2013. Authors of selected papers will be notified by September 28, 2013.  Call for Paper participants will also be responsible for paying their annual meeting registration fee and travel expenses.

Papers will be selected after review by a sub-committee composed of Section on Women in Legal Education members. This is a wonderful showcase for junior scholars’ work on gender and women’s issues; therefore, if you have been teaching for seven (7) or fewer years, please consider submitting a paper.

Any inquiries about the Call for Papers should be submitted to:  Professor Wendy Greene, Samford University’s Cumberland School of Law, 205. 726. 2419 or [email protected].


July 19, 2013 in Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

More Recess Appointment News

NLRBThe developments on the NLRB appointments are coming in fast this week.  First is the Fourth Circuit joining the D.C. Circuit and Third Circuit to find that the recess appointments were invalid, albeit over a dissent.  The case is huge, so I haven't had a chance to read it yet, but it appears to follow the other holdings that only intersession recess appointments are valid.

Of more immediate interest is news on the new NLRB appointments.  I've copied the White House bios on Kent Hirowaza and Nancy Schiffer below.  According to an earlier announcement, Hirowaza is to get Liebman's old term, which expires in Aug., 2016 and Schiffer is to get Becker's, which expires in 2014.  You might be forgiven for raising an eyebrow at that, in expectation of the same process happening next year, but apparently, Republicans have promised not to filibuster the nominee for the new 2014 term.  In other words--and, honestly, I didn't think I'd actually be writing this anytime soon--the NLRB should have a full Board in the very near future and stay that way for a couple of years, at least.

Finally, word is out that Richard Griffin will be the new nominee for NLRB General Counsel. No word on the fates of Sharon Block or current Acting GC Lafe Solomon, although both are excellent officials who I strongly believe will land on their feet.

Kent Hirozawa, Nominee for Member, National Labor Relations Board

Kent Hirozawa is currently chief counsel to National Labor Relations Board (NLRB) Chairman Mark Pearce. Before joining the NLRB staff in 2010, Mr. Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP, where he advised clients on a variety of legal and strategic issues, including Federal and state labor and employment law matters. Mr. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986. He was a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D. from New York University School of Law.

Nancy Schiffer, Nominee for Member, National Labor Relations Board

Nancy Schiffer was Associate General Counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) from 2000 to 2012.  Prior to working for the AFL-CIO, she was Deputy General Counsel to the United Auto Workers (UAW) from 1998 to 2000.  She had previously worked as Associate General Counsel for the UAW from 1982 to 1998.  Earlier in her career, Ms. Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice.  Ms. Schiffer received her B.A. from Michigan State University and her J.D. from the University of Michigan Law School.

Hat Tips:  Joshua Glick, Jonathan Harkavy, & Patrick Kavanagh


July 17, 2013 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Recently Published Scholarship: NYU JLPP Symposium

NYU Journal of Legislation & Public Policy

vol. 16 #2 (Spring 2013)

A Celebration of Baseball Unionism

  • Paul D. Brachman & Bert Forsythe, Preface
  • Ross E. Davies, Along Comes the Players Association: The Roots and Rise of Organized Labor in Major League Baseball
  • Peter Miller, Introducing Marvin Miller
  • Marvin Miller, Remarks: Reflections on Baseball and the MLBPA
  • Roundtable Discussion on Marvin Miller, the MLBPA, and Baseball
  • Michael Weiner, Marvin Miller’s Lasting Legacy


  • The Honorable Nicholas M. Ohanesian, Trying the Carrot and Sparing the Stick: An Incentive Based Reform Proposal for NLRB Elections, Voluntary Recognition, and Withdrawal of Recognition


  • Cynthia Estlund, Labor Law Reform Again? Reframing Labor Law as a Regulatory Project



July 17, 2013 in Labor Law, Labor/Employment History, Scholarship | Permalink | Comments (0) | TrackBack (0)

BJELL Call for Papers on Forced Arbitration

BerkeleyThe Berkeley Journal of Employment and Labor Law (BJELL) and The Employee Rights Advocacy Institute For Law & Policy (The Institute) will be holding a symposium on February 27, 2014 at the University of California, Berkeley School of Law to examine forced arbitration of employment disputes and to explore the impact of this phenomenon on workplace rights. The goal of this symposium is to bring together academics, practitioners, and others in the legal community to engage in a thoughtful dialogue and help raise awareness about forced arbitration of workplace disputes.  The symposium is entitled Forced Arbitration in the Workplace: A Symposium.  Article drafts are due October 31, 2013; final articles are due January 3, 2014.  Here's the call for papers.  This looks fantastic!



July 17, 2013 in Arbitration, Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

Recess Appointments


NEW UPDATE:  The two new picks to replace Block and Griffin are to be Nancy Shiffer and Kent Hirozawa.  More to come tomorrow it seems.


UPDATE:  It looks like the unfortunate deal will happen, as the Senate is nearing a compromise that would put aside Block's and Griffin's nominations and allow new Democratic nominees.  Really unfortunate for those two members, as they've done nothing to deserve that outcome, but it's great if the NLRB will finally have an unquestioned quorum.  What's not been explicit is the fate of the two Republican NLRB nominees, although I assume they'll get votes too and they simply aren't part of the conversation because they haven't been filibustered.

As anyone who has looked at the news is well aware, the nuclear option is front and center in the Senate, with the NLRB appointments as a major focus of the battle.  I won't repost the hundreds of articles on the topic, but will note a couple of particular interest.  First in the NY Times piece on why the Board is a central part of the dispute.  Second, SCOTUSblog is holding a symposium on Noel Canning; all the pieces aren't up yet, but should be soon (including yours truly), but there's already some good ones.

Bottom line:  it's looking like the NLRB will have new members soon.  Whether they get there through a deal to stave off the nuclear option or as part of the first nuclear blast remains to be seen.  Also unclear is if there is a deal whether Members Block and Griffin will be dropped as part of that deal.  I hope not (the argument that they're unqualified because they were once recess appointees is ridiculous), but it's a possibility.

Hat Tip: Patrick Kavanagh


July 16, 2013 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Friday, July 12, 2013

Adams on The Right to Strike in Canada – Recent Developments

CanadianflagAt my request, Roy Adams (Ariel F. Sallows Chair of Human Rights (Emeritus), U. of Saskatchewan; Professor of Industrial Relations (Emeritus), McMaster University) has provided an update on the legal status of the right to strike in Canada.  This has been a hot area in Canadian labor law and a recent decision by the Saskatchewan Appellate Court has only added flames to that fire.  You can read Roy's entire commentary here.

Here is a taste of the piece:

After many years in power Saskatchewan’s moderately leftist New Democratic Party was defeated by the conservative “Saskatchewan Party” in 2007. The new government immediately introduced labor law changes one of which put considerable constraints on the right of public sector workers to strike.

Organized labor immediately went to court, claiming that the legislation offended the Freedom of Association clause in Canada’s Charter of Rights and Freedoms. At the first level (Court of the Queen’s Bench) the judge (Ball) agreed and ordered the government to revise the law (see Saskatchewan v. Saskatchewan Federation of Labour 2012 SKOB 62). Instead, the government appealed and, very recently, Ball’s ruling was reversed (see Saskatchewan v. Saskatchewan Federation of Labour 2013 SKCA 43).

Whereas most Canadian governments, even those controlled by conservative parties, are more cautious than governments in the USA about attacking organized labor, the urge to weaken unions and especially public sector unions – is on the rise. (Private sector unions are already weaker than they have been in decades).  But in the Canadian environment there is a counter force to be contended with – international labor law which has grown in importance over the past half-dozen years primarily as a result of the Supreme Court finding it to be a persuasive source in interpreting the Charter’s Freedom of Association Clause (see Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; aka BC Health Services).

Read the whole piece when you get the chance. It does a great job explicating the current status of the right to strike in Canada. I remarked to Roy that although Canadian labor proponents may feel that things have been rough for them in recent years, their American colleagues would feel lucky to even have freedom of association in the labor context or the freedom to strike given any form of constitutional consideration. Ditto any legal recognition by US Courts of (gasp!) international labor standards!


July 12, 2013 in Commentary, International & Comparative L.E.L., Labor Law | Permalink | Comments (1) | TrackBack (0)

Thursday, July 11, 2013

Law Prof Alleges Unequal Pay at Denver Law

MarshThe Denver Post reports that Denver Law professor Lucy Marsh has filed an EEOC charge alleging she is paid less than male professors.  The news elicited a withering post at Above the Law, and likely will be a major thorn in the side of Dean Marty Katz.


July 11, 2013 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 9, 2013

Update on Eighth Annual Colloquium on Labor and Employment Law at UNLV: Abstract Deadline July 15th

UnlvFrom Ruben Garcia (UNLV) and Ann McGinley (UNLV), co-organizers of the Eight Annual Colloquium:

The Eighth Annual Colloquium on Current Scholarship in Labor and Employment Law will take place at the Boyd School of Law, University of Nevada Las Vegas, on Sept. 27-28. Monday July 15 is the deadline to submit an abstract for presentation! 

Once you register here, the system will send you a confirmation e-mail with a username and password to upload your abstract here.  

We are excited to welcome you to Las Vegas, a city that is a true laboratory for the 21st Century workplace. On Friday September 27 will be a special lunch panel on the 40th Anniversary of Title VII and a special dinner event that evening at the Culinary Workers Union Local 226 Hall.  The Colloquium continues Saturday September 28 with the lunchtime presentation of the Paul Steven Miller Scholarship Award.  The Colloquium will end by mid-afternoon on Saturday.

Title VII Symposium

A special part of the colloquium this year is an embedded symposium on Title VII at 50 Years.  We are having a special lunch panel that will discuss Title VII issues on Friday, September 27.  There will also be other panels on Title VII which will be part of the symposium.  If you are writing on a Title VII issue, we would love to have you submit a paper for the symposium.  The symposium will be published by the Nevada Law Journal in the Spring of 2014.  Colloquium attendees have publication priority in the Title VII symposium issue.  If you are interested in getting the priority treatment, submit your paper for the Title VII symposium by August 15. Submit the paper by visiting here.   

If your paper is not ready by August 15, we may still be able to accommodate you.  Please send an e-mail to Ann McGinley at [email protected] to let me know the title, your intention to submit your paper for the Title VII symposium, and the date when your paper will be ready for submission. Papers should run about 20-30 law review pages in length.


If you have not already booked your hotel, we encourage all attendees to consider staying at the Elara Hotel, 80 E. Harmon Avenue, a unionized Hilton Grand Vacations Property in the center of the famous Las Vegas Strip. This is the only location on the Strip where shuttle buses to campus and the Culinary Union will pick up and drop off.  While negotiations with the Culinary Union are continuing with many of the other properties on the Strip, the Elara’s contract with the Union expires October 1, so we anticipate no labor problems with the Elara during the colloquium.  Other properties are classified by the Culinary as “at risk venues,” because the contract extensions that the Union has negotiated with other Strip properties can be terminated by either party with 14 days notice. Please see for more details.

Rooms in our block at the Elara can be reserved at conference rates by calling 1-877-651-4482, asking for the "William S. Boyd School of Law" rate.  A one night deposit is required.


July 9, 2013 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

Pasquale on From Status to Contract to Fealty

ContractThanks to Mike Zimmer (Loyola-Chicago) for bringing to my attention this post on the Concurring Opinion Blog from Frank Pasquale entitled: From Status to Contract to Fealty.

Here's a taste:

“Consent” can be a near-universal solvent in employment law, eviscerating rights that would be considered basic outside the workplace. Soon after Independence Day, Alana Semuels reported a new twist on the trend: contracts to tie even low-wage employees to a given workplace, on penalty of not working at any competing business for months or a year afterward:

Mazhar Saleem is bound to his employer by a number of contracts that made it hard to earn enough money to live, but also hard to go work anywhere else. He drives a town car for a company in New York as an independent contractor, rather than as a full-time employee. That means he doesn’t get benefits, never gets overtime, and isn’t guaranteed set hours.

But he also signed a non-compete contract when he started working, meaning he can’t drive a car for anyone else in New York. So even if his employer doesn’t give him any work, he’s not allowed to go find it elsewhere. . . .

In a recent case in Worcester, Mass., three women working at a hair salon tried to leave after theirconditions at work deteriorated. All three received cease and desist letters when they started working elsewhere, because they had signed non-compete clauses. They had to wait a year for the clauses to expire before they could work in the area again.

In fact, these exclusivity clauses even extend to the hunt for temporary, no-benefits work, as Fed governor Sarah Bloom Raskin found out at a job fair:

‘So what I need to do is put in my resume and then I’ll be able to get this job?’ And she said ‘yes.’ And I said: ‘while I’m waiting can I go to some other firms and throw my resume into their databases as well?’ And she said ‘oh no, you can’t do that, because you’re going to sign a letter of intent.’ And that letter of intent is basically an exclusivity agreement that says that by putting your resume in here you agree to not put your resume anywhere else.

Corey Robin explains the tricky issues these cases raise for advocates of “freedom of contract.” Libertarians often point out a paradox of democratic theory: a dictatorial party could win an election, then decide “no more elections.” Is not something similar happening when bosses, emboldened by a terrible job market and a near-infinite supply of cheap labor, bind employees like the hair salon did? If workers have neither voice (no union) nor exit (no chance to seek better employment), what’s left but loyalty? Or, to put it feudally, fealty?

I appreciate Frank' post, but wonder whether these covenants for lower paying jobs would be enforceable in most states given the lack of unqiue protectible legitimate business interests (though the hair stylist situation may be a closer situation).  I am also skpetical that the letters of intent can keep the employees from applying to other employers in the at-will world in which we live.

Of course, the lack of employee sophistication and lack of access to knowledgeable attorneys who know the employment law in this area makes these developments troubling nonetheless.


July 8, 2013 in Commentary, Workplace Trends | Permalink | Comments (4) | TrackBack (0)

Friday, July 5, 2013

Morris's Comment on 4th Circuit Panel’s Notice Posting Decision in U.S. Chamber v. NLRB

CharliemorrisToday, we are happy to present a second piece of commentary by Charlie Morris (SMU Emeritus) on another federal appellate court decision, this time the Fourth Circuit Court of Appeals decision in U.S Chamber v. NLRB, striking down the NLRB's notice posting rules.  You can downloand the full commentary here and you can also find it as well on Charlie's own blog.

Here is a taste from the introduction of the commentary:

This decision, issued June 14, 2013, holds that in promulgating the NLRA rule requiring employers to post notices advising employees of their rights under the National Labor Relations Act “the Board exceeds its authority” pursuant to step one of the two-step rule of Chevron U.S.A., Inc. v. NRDC, Inc.,467 U.S. 837 (1984), that governs judicial review of an agency’s interpretation of its enabling statute.  That holding of an absence of statutory authorization is not only incorrect for a variety of valid reasons, it is directly contrary to the Supreme Court’s recent decision in City of Arlington v. FCC, Nos. 11-1545 & 11-1547, May 20, 2013, which the panel’s opinion (by Judge Duncan) acknowledged but―without explanation―chose not to follow. 

The decision in City of Arlington responded to the question of “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the agency’s statutory authority (that is, its jurisdiction).”  Justice Scalia’s majority opinion stressed that “the distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretation is a mirage” and noted that “there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and its exceeding authorized application of authority that it unquestionably has.” . . . .

Charlie again makes an exceedingly persuasive argument why the Fourth Circuit's decision in U.S. Chamber v. NLRB does not withstand closer scutiny.  In the meantime, we all await to see if the en banc 4th Circuit or the U.S. Supreme Court may become enmeshed in this notice posting/compelled employer speech debate.


July 5, 2013 in Commentary, Labor Law | Permalink | Comments (2) | TrackBack (0)

Monday, July 1, 2013

New Issue of E-Journal of International and Comparative Labour Studies

AdaptOur friends at ADAPT are pleased to announce the latest issue of the E-Journal of International and Comparative Labour Studies, the open-access review promoted by ADAPT University Press.

Volume 2, No. 2 May-June 2013 contains the following:

Antonio Ojeda Avilés, The Primacy of Company level Agreements in Spain. An Unusual Approach for Continental Europe

Mirella Baglioni, The European Social Model: Revitalizing the Debate about its Prospects

James L. Tierney and Christina Cregan, A Blueprint for Union Revival? Strategy and Structure in a Successful Organising

Ismail Idowu Salih, Domestic Work in the UK: A Raw Deal for Migrants

Katherine Bischoping and Elizabeth Quinlan, Health and Safety Issues in Precarious Cultural Work

Emmanuel Unimke Ingwu and Joseph Idagu Ogah, The Impact of Wage Reform Policies on Industrial Relations in Nigeria’s State Universities: A Case for Multi-Employer Bargaining


Éric L'Italien,Workplace Dress Code and Fundamental Rights

Book Reviews

Donella Caspersz, Ethnic Diversity in European Labor Markets: Challenges and Solutions ,by Martin Kahanec and Klaus F. Zimmermann. A Review

John Martin, Labour Markets at a Crossroads: Causes of Change, Challenges and Need to Reform, by Henrik Lindberg and Nils Karlson. A Review


July 1, 2013 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)