Monday, September 30, 2013

NAA Arbitration Grants

NAAThe National Academy of arbitrators is currently accepting grant applications.  They look to be a great oppuortunity.  The info:
.
The National Academy of Arbitrators (NAA) is a professional association of labor and employment arbitrators in the United States and Canada.  The NAA’s Research and Education Foundation supports research and education relevant to labor and employment arbitration. The Foundation welcomes grant applications of up $25,000 for any of the following purposes:
  1. The study and understanding of grievance procedures, the arbitration process and other forms of labor and employment dispute resolution and the impact of law on these processes. 
  2. The impact of law on grievance and arbitration processes.
  3. The education and training of persons engaged in the resolution of labor -management and employment disputes.  Included are the funding of lecture programs, symposiums, conferences and training seminars. 
  4. The preparation and publication of books, symposium materials, articles, and audio-visual materials (e.g. films; websites; CDs) designed to enhance the competence of persons engaged in the arbitration and mediation of labor-management and employment disputes. 
  5. The preparation of material designed to keep arbitrators, mediators, and students of labor-management and employment arbitration abreast of current research into the arbitration process.
  6. The development of procedures or techniques for the resolution of labor and employment disputes in this and in other countries.

Detailed information on how to apply for the REF grant can be found on the NAA website

Questions about these grants can be directed to Allen Ponak, REF President, and ponak@ucalgary.ca.

 

-JH

September 30, 2013 in Arbitration, Conferences & Colloquia, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Sunday, September 29, 2013

Religion & Disability

Just up on SSRN an article by Ioanna Tourkochoriti, a Fellow with the Labor and Worklife Program at Harvard Law School.

The article approaches critically the balancing between freedom of religion and the enforcement of disability anti-discrimination law followed by the Supreme Court in Hosanna-Tabor v. EEOC. Enforcing disability anti-discrimination law is a compelling interest, as it finds a very strong philosophical justification, making thus the result of the case contrary to the philosophical conception of a well-ordered society. Doing away with the social construct of disability is a compelling interest as it is a universalisable interest, an interest upon which there can be an over-lapping consensus independently of a person’s comprehensive, religious or not, vision of the good. Reference to the ministerial exception to justify exempting employers from the disability antiretaliation laws is of doubtful compatibility with Emp’t Div., Dep’t. of Human Resources of Or. v. Smith. Courts can distinguish between a doctrinal and a nondoctrinal issue and abstain from controlling the first while controlling the legality of nondoctrinal issues. If the case of a qualified minister is at stake, whose substantive qualifications the courts cannot control under the First Amendment, then disability anti-discrimination law should be enforced, as it is neutral law of general applicability.

CAS

September 29, 2013 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

California Acts on Overtime for Domestic Workers

Brownsigning

On September 26, 2013, Governor Jerry Brown signed into law AB 241,extending overtime protection for California domestic workers who spend a significant amount of time caring for children, elderly and people with disabilities.  Last week, the federal Department of Labor finalized rulesthat significantly extend federal minimum wage and overtime protections to domestic workers who care for the elderly and people with disabilities as well as those hired by third-party agencies.

These two significant changes to federal and state law will end nearly 75 years of exclusion of domestic workers from basic wage and hour protection. 

 The Women's Employment Rights Clinics of Golden Gate University School of Law has served as legal counsel to the California Domestic Workers Coalition, which sponsored AB 241.   It has been a momentous journey for its students and the Clinic to be part of grassroots worker-led movement to redress the unfair and unequal treatment of domestic workers. 

Thanks to Hina Shah for letting us know.

 CAS

September 29, 2013 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

Doorey and Leibman's Canadian and American Undergrad Survey on Views of Current Labor Issues

Graph upDavid Doorey (York Univ. (Canada)) and Wilma Leibman (former NLRB Chair, visiting at Cornell LER) completed a short survey of their Canadian and American undergrad business students taking employment law this term. The survey asked for their views on such things as minimum wages, unions, and income inequality.  David concedes the results are unscientific, but interesting nonetheless.  

Here's the blog post from David's blog on the results of the survey.

What I find most interesting about the results personally is that although both Canadian and American students support minimum wage increases, the Canadian students were much more in support of unions and collective bargaining rights than their American counterparts.

Check out the entire survey for all the results.

PS

September 26, 2013 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed

Harris-FreedmanI am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications.  PS

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.

This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics.  In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.

HF

Death of an Adjunct Sparks Discussion on

the Challenge of Precarious Employment in Higher Ed

 

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

 

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

 

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

 

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets. 

September 25, 2013 in Commentary, Labor Law, Teaching, Union News, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Fordham Urban Law Journal Cooper-Walsh Symposium on Legacy Liabilities and Municipal Financial Distress

ConfThe Fordham Urban Law Journal's Cooper-Walsh Symposium this year is entitled: Legacy Liabilities and Municipal Financial Distress.  It will be held on Friday, October 11th from 10:00 am to 4:30 pm at the Fordham Law School, 140 West 62nd Street, Room 430 B/C.

I have the good fortune of being part of this Symposium and will present a paper based on my recent research on how employment claims are treated in insolvency proceedings and guarantee schemes around the world.  The hope is the provide U.S. policymakers some international benchmarks for the treatment of pension and wage claims in both corporate and municipal bankruptcy situations.

I will provide more information on my paper in coming weeks once I have posted a draft of the article, but for now here are the particulars for the Cooper-Walsh Symposium from the Journal website (including the program line up):

The sixth annual Cooper-Walsh Colloquium will address the effects of the rising costs of healthcare and pension plans on municipalities and their residents.  Every year, the Colloquium is dedicated to bringing attention to the policies and legal frameworks that will shape the future of American cities.  The Colloquium is organized in conjunction with Professor Susan Block-Lieb, the Cooper Family Chair in Urban Legal Issues, and Vice Dean Sheila Foster, the Albert A. Walsh Chair of Real Estate, Land Use, and Property Law.

The presenters will introduce their papers, followed by responses from commentators and round table discussions. The Fordham Urban Law Journal will publish the articles and responses in its Spring 2014 Cooper-Walsh Book.

To register, please contact Kristy Eagan, Cooper-Walsh Editor, at colloquium@urbanlawjournal.com.

In addition to myself, other presenters include Jack Beerman (BU), Melissa Jacoby (UNC), and Christine Chung (Albany). Opening remarks will be delivered by Richard Ravitch (former Lieutenant Governor of New York).

PS

September 25, 2013 in Conferences & Colloquia, Pension and Benefits, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

EEOC and OFCCP win big in recent cases

Eeoc-logo1 Ofccp Two unusual big wins have been buzzing around the news in the last few days--a settlement between the EEOC and Abercrombie and Fitch, and an order by an administrative law judge at the Department of Labor to pay almost $2.2 million to African American job seekers who the judge found had been discriminated against.

The EEOC settlement involved two cases brought against Abercrombie and Fitch, challenging the application of its "look policy" to muslim teens who wore hijabs for religious reasons. From the press release

Clothing retailer Abercrombie & Fitch has agreed to pay $71,000 and to change its policies to settle two separate religious discrimination lawsuits on behalf of Muslim teens wearing hijabs (religious headscarves), the U.S. Equal Employment Opportunity Commission (EEOC) announced today.  This settlement follows last week's ruling finding Abercrombie liable for religious discrimination in one case, and an April 2013 ruling dismissing its undue hardship claims in the other suit.  

In an order issued Sept. 3, U.S. District Judge Yvonne Gonzalez Rogers found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her "impact associate" (stockroom employee) position solely for refusing to remove her hijab.  Abercrombie had claimed that the hijab violated its "Look Policy" and permitting employees to wear it would harm the Abercrombie brand.  Observing that Umme-Hani Khan had been interviewed and hired while wearing the hijab and had worked without incident at Abercrombie's Hollister store at the Hillsdale Shopping Center in San Mateo, Calif., for four months, the court dismissed Abercrombie's argument as "not linked to any credible evidence."  Khan intervened in the EEOC's lawsuit and was represented by the Legal Aid Society/Employment Law Center and the Council on American-Islamic Relations.

Similarly, in an April 2013 ruling on the EEOC's lawsuit on behalf of Halla Banafa, U.S. Judge Edward J. Davila also dismissed Abercrombie's undue-hardship claims on summary judgment, citing the "dearth of proof" linking store performance or the Abercrombie brand image to "Look Policy" compliance.  The EEOC lawsuit alleged that the 18-year old Muslim applicant was asked about her headscarf and religion during her interview, then denied a job as an "impact associate" in Abercrombie's Great Mall outlet in Milpitas, Calif., for discriminatory reasons. 

In a third lawsuit not part of this settlement, a district court in Tulsa, Okla., ruled on July 2011  that it was religious discrimination for Abercrombie not to hire a Muslim applicant for a sales position due to her hijab. That case is pending on appeal in the U.S. Court of Appeals for the 10th Circuit.

The OFCCP's action began in 1993 with a routine compliance review that culminated in a complaint filed by the Solicitor of Labor in 1997 for violation of the Executive Order that prohibits discrimination by federal contractors. From that press release:

U.S. Department of Labor Administrative Law Judge Linda S. Chapman has ordered Bank of America Corp. to pay 1,147 African American job applicants $ 2,181,593 in back wages and interest for race-based hiring discrimination at the company's Charlotte facility. In an earlier ruling, the judge determined that the bank applied unfair and inconsistent selection criteria resulting in the rejection of qualified African American applicants for teller and entry-level clerical and administrative positions. The ruling represents a major victory in a case that has spanned nearly two decades, during which Bank of America repeatedly challenged the authority of the department's Office of Federal Contract Compliance Programs. Bank of America is a federally-insured financial institution that provides a variety services and products, making it a federal contractor under the purview of OFCCP's regulatory requirements.

Both of these cases are noteworthy because of the systemic nature of the relief ultimately provided. Abercrombie is changing its look policy, and Bank of America has learned that it cannot systematically disadvantage African American applicants. Both too show the importance of agency enforcement to accomplish what individual actions might not. And the OFCCP case shows how employer reporting and agency compliance review (something the EEOC too can engage in) can be used to ensure that employers are following federal law.

MM

September 25, 2013 in Employment Discrimination, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Corbin on Corporate Religious Liberty

CorbinCaroline Mala Corbin has posted a new article on SSRN. It's entitled Corporate Religious Liberty and it focuses on claims that corporations have made recently that their religious liberty requires that they be exempt from the contraception mandate instituted by the Obama Administration in accordance with the Affordable Care Act. Here is the abstract:

Do for-profit corporations have a right to religious liberty? This question is front and center in dozens of cases challenging the Obama administration’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression, and one the Supreme Court is likely to answer in the next few years. Most scholars writing on this issue argue, “yes,” they do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United. 

This essay argues “no,” for-profit corporations do not and should not have religious liberty rights. As a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Citizens United changes nothing in religious liberty jurisprudence, as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers.

As a normative matter, for-profit corporations should not have free exercise rights. There is no principled basis for extending a purely personal right to profit-making corporations, and for-profit corporations cannot be equated to churches or other voluntary religious associations. Finally, granting religious exemptions to corporations risks trampling on the religious liberty of individual employees.

It looks like a very interesting read.

MM

September 24, 2013 in Employment Discrimination, Pension and Benefits, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

Western Ontario Law's Labour Law Lecture & Conference 2013: Rights at Work

RightsatWorkFriend of the blog, Michael Lynk (Western Ontario) sends news about the 8th Koskie Minsky University Lecture on Labour Law (Ocotber 25th) and the 8th Heenan Blaikie University Labour Law Conference on Saturday (October 26th), both of which will be held at Western Law School in London, Ontario on October 25-26, 2013.  The theme of this year's conference is Rights at Work. Here is the link to the conference website.   

And here is the conference blurb:

“We hired workers, and human beings came instead.”  — Max Frisch

Rights at work are among our most important and our most unacknowledged liberties in Canadian society. Important because work shapes our identity and occupies much of our waking hours. Unacknowledged because our workplace rights are seldom part of a larger public policy conversation. Yet advances in the workplace on such grounds as freedom of association, disability, gender, religion, race, sexual orientation, family status, contractual and statutory issues and international law have contributed greatly to the larger rights culture that Canada has embraced since we adopted the Charter of Rights and Freedoms in 1982.

The Lecture and Conference will explore the meaning and the sources of our rights at work, examine how these rights have grown and matured over the past 30 years, and assess how they interact with our rights in the broader society. Some of Canada’s most eminent judges, legal scholars and lawyers will share their insights and research. The discussions and debates from this event will contribute to the ongoing work of employers, unions, scholars, lawyers and industrial relations practitioners to define the ever-evolving nature of our rights and liberties at work. This event will be one of the most important dates on the national labour law and industrial relations calendar.

The 8th Koskie Minsky University Lecture on Labour Law will be delivered on the Friday evening (October 25th), to be given by Mr. Justice Thomas Cromwell of the Supreme Court of Canada. Before being appointed to the bench, Mr. Justice Cromwell was an academic and a labour arbitrator, making him one of three justices on the current SCC who have a labour law background.

The 8th Heenan Blaikie University Labour Law Conference on Saturday (October 26th)  will host four panels of scholars and practitioners who will explore a range of issues relating to Rights at Work, including sources of rights, constitutional sources and human rights sources.  Among the scholars who will be speaking are: Judy Fudge (University of Victoria), Keith Ewing (Ling’s College, London, UK), Nathalie des Rosiers (Dean, University of Ottawa) and Brian Etherington (University of Windsor).

The conference organizer would welcome labour law scholars from the US to attend. Registration forms can be found on the website.

So if you happen to be in Canada or have an interest in Canadian labor and employment law, this is a definite can't miss experience.

PS

September 23, 2013 in Conferences & Colloquia, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

SEC Issues Rule on CEO-to-Worker Pay Ratio Disclosures

Money_bag2Last week, the Securities and Exchange Commission (SEC) released a rule requiring companies to disclose the CEO-to-worker pay ratio.  Despite objections by many corporations, the rule covers all employees including seasonal, international, and part-time workers.  The SEC provides companies the option of using the entire workforce or a representative sample in the calculation. 

There will now be a 60-day comment period.  The SEC voted for the rule 3-2, with the two Republican Commissioners who voted against the proposal calling it a special interest provision and proclaiming “shame on the SEC.”

Proponents of the rule argue that it will give shareholders and other stakeholders a clear line of sight into human capital management and worker pay.  For instance, CalPERS, the California State Pension Plan, has issued a release, welcoming the rule as a valuable tool which will “help shareholders to keep management accountable” and “shed light on an element of pay which is currently shrouded from view.”  John Liu, the NYC Comptroller, stated that the rule would allow “shareowners to make informed decisions about compensation and may rein in excessive corporate practices.”

Numerous news outlets have covered this story, including the Wall Street Journal, Bloomberg, and the New York Times.  Things are only going to get more interesting from here on out.

From my point of view, and quoting Justice Brandeis, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

PS

September 23, 2013 in Beltway Developments, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Call for Papers for Hofstra Labor & Employment Law Journal Symposium Issue on ACA and ADA

BooksOn behalf of the Hofstra Labor & Employment Law Journal, Jamie Haar (Managing Editor of Articles) invites interested law professors and practitioners to submit original articles for publication in the Journal’s symposium issue.

The Journal will be devoting its Spring 2014 issue to the topics that will be discussed at this year’s Symposium.  The Symposium will be dedicated to a practice-oriented and scholarly discussion on employer-regulated healthcare and the implications of employee leave and disability accommodations in the labor and employment law context.  The Jounral is seeking articles on the impacts and implications of the Affordable Care Act and the recent amendments to the Americans with Disabilities Act on labor and employment law. 

Submissions for article proposals or completed articles must be made by October 11th. Articles that need to be written should be completed by January 8, 2013.  Articles may not exceed fifty pages and must be a minimum of fifteen pages. Please send all submissions to Jamie Haar, Managing Editor of Articles, via email to laboremploymentlaw@hofstra.edu.

PS

September 23, 2013 in Conferences & Colloquia, Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

DOL Excuses Law Firms From Paying Student Interns


DOL On September 12, 2013, the Solicitor of Labor, M. Patricia Smith, issued a letter to the American Bar Association responding to the ABA’s request for confirmation that law students interning at for-profit law firms and working on pro bono matters need not be paid.  The Solicitor concluded that such internship programs would fall under the FLSA’s narrow “intern exclusion.”  In so finding, she noted:

Where the program is designed to provide a law student with professional practice in the furtherance of his or her education and the experience is academically oriented for the benefit of the student, the student may be considered a trainee and not an employee.  Accordingly, where a law student works only on pro bono matters that do not involve potential fee-generating activities, and does not participate in a law firm’s billable work or free up staff resources for billable work that would otherwise be utilized for pro bono work, the firm will not derive any immediate advantage from the student’s activities, although it may derive intangible, long-term benefits such as general reputational benefits associated with pro bono activities.

While the need to have our students gain practical experience while in law school is of growing importance, the DOL’s position too quickly discounts the benefits accruing to these law firms from this source of unpaid labor.  The ABA’s own Model Rule of Professional Conduct 6.1 makes clear that “every lawyer has a professional responsibility to provide legal services to those unable to pay” and “should aspire to render at least (50) hours of pro bono publico legal services per year.”  It would seem that these firms are discharging their ethical obligation under Rule 6.1 by using these unpaid interns.  Further, unless the firm was providing more than 50 hours of pro bono services prior to the internship, the pressence of the unpaid intern doing pro bono work is always freeing up staff resources for billable work.  The Solicitor never explains why that is not “an immediate advantage” from the intern’s activities which would make the unpaid internship unlawful.  Nor is the more basic question addressed: Is paying a law student $7.25 per hour too much to ask?

Joe Mastrosimone
Washburn University School of Law

September 20, 2013 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Thursday, September 19, 2013

4th Cir: Liking on Facebook is Protected First Amendment Activity

ComputerSome of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment  case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech.  I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.

Yesterday, the Fourth Circuti made the world right again by finding that liking a candidate's campaign page on Facebook was in fact protected First Amendment speech.

Here is the link to the 4th Circuit’s decision (2-1) in Bland v. RobertsAnd here is the pertinent language from the Court's opinion:

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory:  Social Media and Public Sector Labor Law.  The article has now been published in North Kentucky Law Review as part of the  Law + Informatics Symposium on Labor and Employment Issues.  A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.

PS

September 19, 2013 in Public Employment Law, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Griffin's NLRB General Counsel Nomination Advances Out of Senate Committee

NLRBIn spite of some initial doubts about its viability, Richard Griffin's nomination as NLRB General Counsel is looking up.  Today, it advanced out of the Senate Labor Committee on a 13-9 vote (only one Republican voted "yes").  But even Sen. Alexander, who voted "no," stated that he had "no doubt" that Griffin's will be confirmed.  This seems to indicate that Republicans have no plans to filibuster or otherwise block the nomination.  Apparently, there's no timetable on bringing his nomination for a full vote in the Senate.

Hat Tip: Patrick Kavanagh

-JH

 

September 18, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

New Guidance on Same-Sex Marriage from DOL

Wedding ringsThe Employee Benefits Security Administration (EBSA) released today guidance (Technical Release 2013–04) defining the meaning of the terms “spouse” and “marriage” under ERISA in light of the U.S. Supreme Court's decision in June in U.S. v. Windsor

Here is the pertinent text from the Technical Release:

In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department's regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term 'spouse' will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term 'marriage' will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms 'spouse' and 'marriage,' however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law.

DOL Secretary Thomas Perez suggests that the DOL plans to issue additional guidance in the near future.

PS

September 18, 2013 in Beltway Developments, Pension and Benefits, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Lobel on TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding

Talent wants to be free new coverOrly Lobel (San Diego) is about to release (on Sept. 30, 2013) her new book through Yale University Press: TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Amazon link where to find book).


From the press release:
In today’s fiercely competitive business environment, the “War for Talent” is one of the most significant organizational challenges of the decade. The term, coined by McKinsey & Company in 1997, describes an increasingly competitive landscape for recruiting and retaining talented employees in our innovation-driven economy. Today, the talent wars have become characterized by a singular factor: the control of human capital, or, people and the knowledge they carry. The belief is that if an organization can control these assets – that is, if Google, for example, can prevent its employees from defecting to Facebook, taking critical skills knowledge with them – it will acquire an advantage and become a top player in the industry.
But in her new book, TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press; hardcover; September 24, 2013), University of San Diego Law Professor Orly Lobel argues that we’ve got the logic all wrong. Far from promoting innovation, too much control of talent – through tactics such as harsh non-compete agreements and strict protection of trade secrets, patents, and copyright – backfires and ultimately stifles the very innovation that organizations so desperately seek. Drawing on original research into motivating employee creativity, analysis of recent litigation, and empirical data from economics, psychology, and network science, Lobel explores how the ways in which we fight over talent can either enhance or inhibit the innovative spirit of an organization. Based on her research, as well as well as her experiences consulting for businesses, inventors and entrepreneurs, Lobel offers leaders a new paradigm for managing people and their ideas in the 21st century.  

Looks to be a great and timely read and makes a persuasive argument why restrictive covenants in employment may be squelching worker innovativation America needs to complete in the global economy of the 21st Century. Pick up a copy!

            PS

September 18, 2013 in Book Club, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

New FLSA Home Health Care Rule

DOLThe Department of Labor has just announced a significant change for home-health care workers.  As  many readers know, these workers have thus far been excluded from the FLSA minimum wage and, more importantly, overtime protections.  Under the rule, home care workers will no longer be treated as excluded babysitters and others who provide "companionship services" under the FLSA.  However, perhaps recognizing the impact of the change, the rule isn't to take effect until January 1, 2015 (that's not a typo).

This change was propsed in 2011 as part of the rulemaking process.  The operative part of the rule, described by Steven Greenhouse in a NY Times article:

Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services” — defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance — are limited to the individual, family or household using the services.

If an aide or companion provides “care” that exceeds 20 percent of the total hours er or she works each week, then the worker is to receive minimum wage and overtime protections.

For more info, see the DOL's special web portal on the rule and the rule itself.

-JH

September 17, 2013 in Labor and Employment News, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Monday, September 16, 2013

Feuer on How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?

ErisaAlbert Feuer has completed the final article of a trilogy discussing the benefit rights of an ERISA plan participant or beneficiary.  The third piece is: “How Should ERISA Plans Handle Powers of Attorney and Court-Appointed Guardians and the Absence of Such Agents for Participants Lacking Capacity?,” 54 Tax Mgmt. Memo. 351 (September 9, 2013) .

Albert explains that this newest piece describes some of the ERISA benefit rights that a participant or beneficiary may exercise and (1) argues that ERISA plans may, but need not, disregard state law agents seeking to exercise such rights other than pursuing a benefit claim, (2) makes suggestions for plan powers of attorneys that are likely to be understood by participants and may minimize plan risks, and  (3) observes that participant directed plans will be responsible for investment decisions when a participant or beneficiary lacks the capacity to exercise investment rights, but has not appointed a third party agent to act on his or her behalf (this often occurs during the time between the time a participant dies and a beneficiary assumes such responsibilities).

Another welcome addition to the ERISA literature in this important area of the law.

PS

September 16, 2013 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 13, 2013

Porter: Blaming Women for the Pay/Achievement Gap in the Workplace

PorterNicole B. Porter (Toledo) has just posted on SSRN her symposium article (8 FIU L. Rev. 447, 2013) The Blame Game: How the Rhetoric of Choice Blames the Achievement Gap on Women.  Here's the abstract:

In 2013, fifty years after the Equal Pay Act guaranteed women equal pay for equal work, almost fifty years since Title VII made discrimination based on sex unlawful, thirty-five years since the Pregnancy Discrimination Act made it unlawful to discriminate against women because of pregnancy, and nineteen years after the Family and Medical Leave Act provided twelve weeks of unpaid leave for some caregiving reasons, there is still a significant achievement gap between men and women in the workplace. Women still make less money, and rise more slowly and not as high in workplace hierar-chies. Why? The common narrative states that because these laws have given women access to formal equality for many years, the fact that women have not achieved equality in the workplace must be blamed on something else. Specifically, the “something else” relied upon by society, the media, employ-ers, and courts, is that women’s own choices are to blame for the achieve-ment gap. The blame game asserts that women’s relative lack of success in the workplace is caused by three interrelated choices: (1) women’s decision to not pursue high-pressure, high-status professions, or jobs that are seen as “men’s work”; (2) women’s unwillingness to negotiate on their own behalf; and (3) women’s decision to devote more time and effort to caregiving and homemaking tasks.

rb

September 13, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Rothstein on Disability Law, Legal Ed, and the Legal Profession

RothLaura Rothstein (Louisville) has just posted on SSRN her essay Disability Discrimination Law: The Impact on Legal Education and the Legal Profession.  Here's the abstract (the much-longer version of this article will be published by the American University Journal of Gender, Social Policy, and the Law in the spring as the lead article in a symposium issue):

Disability discrimination law affects every lawyer, even those who do not plan to represent clients with disabilities or practice in the area of discrimination law. It also affects every law school and every institution of law, from the courts to federal governmental agencies. It affects gatekeepers to legal practice - the Law School Admission Council and the state bar admission authorities. It applies to areas of concern for the American Bar Association accreditation process and the Association of American Law Schools membership requirements. The fortieth anniversary of the beginning of federal policy prohibiting discrimination on the basis of disability is a good time to reflect on the impact on legal education and the legal profession.

I've had the pleasure of knowing Laura as a disability expert and advocate since the days I was still practicing in Houston and we served together on the Texas Bar Association Disability Committee together.  What Laura doesn't say in her essay -- but I will say here -- is that many if not most of the changes she describes in her essay have happened in large part because she pushed hard for them -- not just in her scholarship but in the trenches -- and often despite fierce opposition from entrenched interests or from equally powerful inertia.  Laura is a law school professor who has made a profound difference in the lives not only of her students, but in society at large.

rb

September 12, 2013 in Disability, Faculty News, Scholarship | Permalink | Comments (1) | TrackBack (0)