Monday, December 30, 2013

Opting Out of Workers' Compensation

Opt outFor many years, Texas has been the only state that permits employers to opt out of workers compensation. Peter Rousmaniere (workers comp columnist and consultant) and Jack Roberts (former EIC of Risk & Insurance) have put together  Workers' Compensation Opt-Out: The Texas Experience and the Oklahoma Proposal.  It's worth checking out.

rb

December 30, 2013 in Workplace Safety | Permalink | Comments (1) | TrackBack (0)

EEOC Issues Report on Women in the Federal Workforce

EeocThe EEOC has issued the EEOC Women's Work Group Report addressing major obstacles hindering equal opportunities for women in the federal workforce. The report, prepared by an internal agency work group, is based on in-depth research and widespread consultations with key stakeholder groups representing working women, as well as other affinity organizations.

Following are the six obstacles identified in the EEOC Women's Work Group Report:

  • Inflexible workplace policies create challenges for women with caregiver obligations in the federal workforce.
  • Higher-level and management positions remain harder to obtain for women.
  • Women are underrepresented in the science, technology, engineering and mathematics fields in the federal workforce.
  • Women and men do not earn the same average salary in the federal government.
  • Unconscious gender biases and stereotypical perceptions about women still play an important role in employment decisions in the federal sector.
  • There is a perception that federal agencies lack commitment to achieving equal opportunities for women in the federal workplace.

rb

December 30, 2013 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, December 27, 2013

Handling Classroom "Gunners"

Gunner1We normally keep posts on this blog strictly on the topic of labor/employment law, but this topic -- more generally applicabile to higher educators generally -- was too good to pass up. Over at Psychology Today, Mitchell Handelsman (U. Colorado - Denver - Psych.) asks Carl Pletsch (U. Colorado - Denver - History) how he handles gunners. Here's his response:

If the student seems prepared and focused on the topic of the day, I might say something like, “I appreciate your willingness to contribute to our class discussion!  But I want to challenge you to take your participation to the next level. Next class session, see if you can make a comment that addresses what another student has said, naming him or her, and showing that you are interested in what other students may be thinking. OK?”   I emphasize that this is a skill, taking participation to a higher level.

If the student seems generally ill-prepared, making comments that actually divert attention from the topic of the day’s session, I might still praise him or her for participating, but my challenge is for the student to come with comments on the reading next time, and to be prepared to refer to passages in the text to support the comments.

In the following sessions I’ll notice whether the student merely disagrees with another student, or whether he or she says something complimentary.  I can then revise the challenge to include the idea of saying something constructive that builds on another student’s comment.

If this works, I praise the student and suggest the next level of challenge: “Can you listen to the discussion until you have heard enough to discern a relationship among several students’ comments?  Then you might try to make a comment that compares or relates several other contributions.”  Again I suggest giving credit to others by name.  

My primary goal is to make the whole classroom safe for everyone to participate, but by challenging the loquacious students I am also encouraging them to develop new skills that may serve them well in life. I try not to discourage students from participating, but to channel their energy in more constructive ways—ways beneficial to both the class and to the students themselves.

rb

December 27, 2013 in Teaching | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 25, 2013

Request for LawProfs to Join Amicus Brief in Harris v. Quinn Labor Law Case

4United States Supreme Court 112904Charlotte Garden (Seattle) and Matt Bodie (SLU) write to tell us that a group of labor law professors is submitting an amicus brief in support of the union and state respondents in Harris v. Quinn, currently pending before the U.S. Supreme Court.  As many of you may know, the case is about whether Illinois may allow certain home health care workers to elect a union as their exclusive representative and require represented workers to pay an agency fee.  

If you would like to see a copy of the brief in order to decide whether you would like to sign on to it, please contact Charlotte at gardenc@seattleu.edu by Saturday, Dec. 28.

PS

December 25, 2013 in Faculty News, Labor Law, Union News | Permalink | Comments (2) | TrackBack (0)

Friday, December 20, 2013

Helping Transgender Employees Find Acceptance in the Workplace

CohenSteve Cohen (Labor Management Advisory Group) has posted the first in a series of articles at Psychology Today about transgender individuals in the workplace. The transgender population, he says, "is the next frontier in social justice". He points out that transgender employees who come out are worried not just about discrimination, but about rejection. See Fairness in the Employment Setting Can Be Everything.

rb

 

December 20, 2013 in Employment Discrimination, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Zimmer on Saving Title VII

ZimmerMike Zimmer (Loyola - Chicago) just posted on SSRN his article (forthcoming U. Chicago Legal Forum) Title VII's Last Hurrah: Can Discrimination Be Plausibly Pled?.  Here's the abstract:

The Roberts Supreme Court appears to be somewhat schizophrenic in how it approaches antidiscrimination law. One recent decision, Ricci v. DeStefano, involves a potentially expansionist development making proof of intent to discriminate, a key element in most antidiscrimination cases, simply a question of fact of whether the employer was aware of the racial (or gender) consequences of its action. Other decisions push Title VII cases out of court into arbitration, further complicate procedural law and diminish the scope of substantive protections of the law, thereby making Title VII cases that remain in court more difficult to bring as class actions or to advance even individual cases beyond the pleading stage of litigation. Given the breadth of the onslaught against a robust antidiscrimination jurisprudence, it appears likely that the thrust limiting antidiscrimination law will win out over the alternative expansionist approach that would follow the application of Ricci to disparate treatment discrimination cases beyond “reverse” discrimination claims. If that is true, the Supreme Court will be bringing to an end the availability of Title VII to help redress our society’s longstanding and continuing problems of employment discrimination.

This paper argues for the extension of the simplified proof standard of what constitutes intent to discriminate and for the acceptance at the pleading stage of discrimination cases of social science research, including implicit bias studies, that show why discrimination persists. Establishing a more realistic set of background assumptions about that persistence would assist judges making the plausibility finding necessary for discrimination claims to survive motions to dismiss. These two paths seem to be what the Court has so far left open so that the antidiscrimination project can continue to have some life.

rb

December 20, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 17, 2013

Forced Arbitration in the Workplace: A Symposium

ConfHere is information about a timely symposium at Berkeley Law on mandatory predispute arbitration in the workplace, a trend that has taken off with all the recent pro-arbitration Supreme Court opinions:

Please join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the Berkeley Journal of Employment and Labor Law (BJELL) on February 27, 2014 for Forced Arbitration In The Workplace: A Symposium at the University of California, Berkeley School of Law (Boalt Hall).

Convened by The Institute in collaboration with the Berkeley Journal of Employment and Labor Law, the Symposium is designed 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. Articles from the Symposium will be published in BJELL’s Spring 2014 issue.

Program highlights include a keynote address by former Secretary of Labor Robert B. Reich, the Chancellor’s Professor of Public Policy at the University of California, Berkeley.

You can register here, find more information here, and the symposium program is here.

PS

December 17, 2013 in Arbitration, Conferences & Colloquia, Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Monday, December 16, 2013

Crowdsourcing Illustrative Examples of "At-Will Employment"

FiredOver the last several years I frequently have found myself explaining at-will employment to law faculty/students in foreign countries who are incredulous at how little protection American law provides to employees.  Now, I'm writing an article for a non-American audience, and I want to make the point that under the at-will rule, employees legally can be fired for bizarre or idiosyncratic reasons. If you have illustrative examples of cases that help illustrate this, please leave a comment. I'd love to collect some good examples to help illustrate the point.

rb

December 16, 2013 in Employment Common Law | Permalink | Comments (9) | TrackBack (0)

Redefining Sex Discrimination

KramerZach Kramer (Arizona State) has just posted on SSRN his article (forthcoming Duke L.J.) The New Sex Discrimination. Here's the abstract:

Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.

This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.

Let's just hope that judges don't get any de minimis ideas about sex discrimination.

rb

December 16, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Unanimous Supreme Court in Heimeshoff Permits Contractually-Based SOLs in ERISA Denial of Benefit Cases

4United States Supreme Court 112904This morning, the United States Supreme Court issued its decision in  Heimeshoff v. Hartford Life & Accidental Life Ins. Co., concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.

The Court unanimously held that Hartford's Long Term Disability Plan's requirement that any suit to recover benefits be filed within three years after “proof of loss” is due is enforceable.  More specifically, "[a]bsent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limita­tions period, even one that starts to run before the cause of action accrues, as long as the period is reasonable."  Causes of action for benfit under ERISA do not start to accrue until a final internal appeal decision.  Because Heimeshoff failed to file a claim for long-term disability ben­efits with Hartford within the contractual SOL period, the Court concluded her claim was rightfully denied by Hartford. 

While ERISA does not provide a statute of limitations for denial of benefit claims, many plan administrator have in place a contractual 3-year limitations period like Hartford's.  Writing for the unanimous Court, Justice Thomas held the Plan’s limitations provision enforceable under the rule set forth in Order of United Commercial Travelers of America v. Wolfe, 331 U. S. 586, 608, which provides that a contractual limi­tations provision is enforceable so long as the limitations period is of reasonable length and there is no controlling statute to the contrary.  This conclusion was especially supported, according to the Court, by the ERISA principle that contractual limitations should be enforced as written under ERISA's written plan rule.

There may still be limitations in place in the future to finding these contractual SOLs valid.  If the limitations period is unreasonably short or if there is a controlling statute to the contrary, the Plan’s limitations provision can be overridden. Moreover, the Court held that courts are well equipped to apply traditional doctrines, such as waiver or estoppel and equitable tolling that nevertheless may allow partic­ipants to proceed on stale claims. However, consider in this regard Heimseshoff in light of U.S. Airways vs. McCutcheon. 

Although Heimeshoff says traditional equitable doctrines may circumscribe application of statutes of limitations to protect participants, McCutcheon said plans can include terms that explicitly preclude application of traditional equitable doctrines.  So does this mean that employers will quickly amend their plans to preclude application of equitable doctrines? It very well could be the case.

Here, in any event, the period was not unreasonably short and, in fact, most internal benefit appeals are completed within one year so that there should be sufficient time for most ERISA plaintiffs to bring their suit in a timely manner.  Even Justice Ginsburg remarked in oral argument that there might have been essentially legal malpractice in this case in that Heimeshoff's attorney may have failed to diligently pursue her claim (she had about a year to file her case even after her internal appeal had been finally denied).

Although this decision may not be that important in the long-run as there is not much evidence that plan administrators have used these SOLs to prevent participants to bring claims, the one part of the decision that seemed fanciful to me was this idea that plan participants and beneficiaries "agree" with their plans to these SOLs.  The Court said this with regard to this critical aspect of the case: "the parties have agreed by contract to commence the limitations period at a particular time."

As I wrote previously when oral argument occurred in this case in October, benefit plans are classic contracts of adhesion with usually no bargaining between the parties taking place.  It is legal fiction to say that most participants consented to this provision.  Nevertheless, it is hard to argue, under the circumstances, that this unilateral term is unreasonable, as long as equitable principles and regulations exist to prevent plan administrators from gaming the system to prevent judicial review of claims decisions. Whether such equitable principles will continue to exist, however, post-Heimeshoff and McCuthcheon is anyone's guess but I am skeptical.

Somwhat called this case. Here is what I wrote in October: "I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations."

PS

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

Harris Leaving the DOL

Seth-HarrisAccording to Fedscoop, Seth Harris, Deputy Secretary of Labor for the last four-and-a-half years is stepping down to return to teaching, writing, and practice. Seth had been at NYLS before his appointment, but according to BNA's Daily Labor Report (241 DLR A-5), he will be remaining in the DC area. Thank you for your great work, Seth, I hope the DOL continues to benefit from your voice, and keep us all posted on your plans.

MM

h/t Susan Bisom-Rapp (Thomas Jefferson) 

December 16, 2013 in Beltway Developments, Faculty Moves | Permalink | Comments (0) | TrackBack (0)

Kramer's New Paradigm for Sex Discrimination Law

Zak KramerZak Kramer (Arizona State) has a new paper on SSRN that I can't wait to read. The New Sex Discrimination is an attempt to rationalize our view of sex discrimination, taking into account the reality that people perform their gender identities in different ways. From the abstract:

Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.

This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.

Provocative and timely.

MM

December 16, 2013 in Employment Discrimination, Religion, Scholarship, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Bisom-Rapp and Sargeant on Sex Discrimination in the US and UK

Susan Bisom-Rapp and Malcolm SargeantSusan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:

This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK. 

To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. 

An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.

Really interesting work. 

MM

December 16, 2013 in Employment Discrimination, International & Comparative L.E.L., Pension and Benefits, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

U.S. Supreme Court Accepts Cert in Dudenhoeffer ERISA Moench Presumption of Prudence Case

4United States Supreme Court 112904Today, the United States Supreme Court granted certiorari in a case where the 6th Circuit found that a company may have breached its fiduciary duties under ERISA by continuing to offer company stock as a retirement plan investment option even after the value of the stock plunged.

The case is Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (don't ERISA cases have the best names?) and here is the decision below in the 6th Circuit.  SCOTUSBlog says the case is likely to be heard in March.  The Solicitor General had urged the Court to hear the case.

The issue is whether courts should apply a presumption of prudence or reasonableness (sometimes called the Moench presumption based on a similar case by that name in another circuit court) when a company,  like Fifth Third, decides to retain investments in its own securities for its ESOP (employee stock ownership plan) when the stock's price dropped 74 percent because of the company's involvement in subprime mortgage lending.  The employees in the retirement plan claim they were never alerted to the company's new riskier investment course.

Participants in Fifth Third's ESOP filed an ERISA class action, asserting that the company's actions  violated their fiduciary responsibilities to plan participants and beneficiaries by imprudently investing in company stock.  Initially, the U.S. District Court for the Southern District of Ohio had determined that Fifth Third did not violate ERISA because plan fiduciaries are entitled to a “presumption of prudence” permitting investment in their own stock and the plaintiffs had not overcome that presumption by showing that the company had plausibly abused their discretion in investing the ESOP money in the company stock.

The participants appealed to the 6th Circuit, supported by an amicus brief by the Department of Labor (DOL).  The DOL maintains that the presumption of prudence should not apply and that plaintiffs had plausibly alleged a breach of fiduciary duty.  The 6th Circuit agreed, at least as far as holding that the presumption should not be applied at the pleading stage of the lawsuit.

The 6th Circuit also held that Fifth Third acted as an ERISA fiduciary when it incorporated its Securities and Exchange Commission (SEC) filings into the ESOP's plan documents. The Court did not take cert. on a challenge to this finding.

The case law had been trending in favor of the presumption of prudence in these stock-drop cases in recent years, with the Sixth Circuit being a notable exception. It is always hard to predict where the Court will come out on ERISA fiduciary cases, but given that the Court granted cert. on the question as presented by the company (and did not re-write the question as requested by the Solicitor General), we may gain some insight. The question presented is:

Whether the Sixth Circuit erred by holding that respondents were not required to plausibly allege in their complaint that the fiduciaries of an employee stock ownership plan abused their discretion by remaining invested in employer stock, in order to overcome the presumption that their decision to invest in employer stock was reasonable, as required by the Employee Retirement Income Security Act of 1974 . . . and every other circuit to address the issue.

Phrasing the question presented in such a leading manner suggests only one possible reasonable answer upholding the presumption of prudence in ERISA stock drop cases.  But we shall see.

PS

December 13, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law 2013 Newsletter

Aals_logoThanks to Jason Bent (Stetson) and Brad Areheart (Tennessee) for sending us the combined  AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law 2013 Newsletter.

From the Introduction:

The AALS Section on Employment Discrimination and the AALS Section on Labor Relations and Employment Law once again worked together to produce this year’s annual AALS Newsletter. This newsletter begins with a list of relevant AALS presentations. It continues with a list of new hires, promotions, moves, administrative appointments, visits, honors and awards, followed by a list of publications from the members of both sections. The newsletter concludes with a roundup of recent Supreme Court decisions in the area of employment law, prepared by members of the section.

Check it out and see what all of your LEL law prof friends have been up to this past year and what great panels are planned for the upcoming AALS January conference.  Hope to see many of you in New York at AALS!

PS

December 13, 2013 in Conferences & Colloquia, Faculty Moves, Faculty News | Permalink | Comments (0) | TrackBack (0)

Feldblum Re-Confirmed to EEOC

FeldblumEarly yesterday morning, Chai Feldblum was re-confirmed to another 5-year term at the EEOC. Congratulations, and great news for the EEOC, which will remain fully staffed. Chai has been a great resource for the Commission, having been instrumental in negotiating the ADA and ADAAA, an expert on ENDA, and a voice for cooperation and public outreach with Commissioner Lipnic. 

MM

December 13, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Internships, Books, and Bulletins at ADAPT

AdaptOur international labor law friends at ADAPT in Italy have been very busy with many different types of exciting endeavors. Here is a summary of each:

1. New Book Volume: Labour Law and Industrial Relations in Recessionary Times. The Italian Labour Relations in a Global Economy, edited by Michele Tiraboschi, Cambridge Scholars Publishing - ADAPT Labour Studies Book Series.

This volume includes a number of papers written in English and published in the last fifteen years in which the Italian labour market underwent many changes. The intent here is to provide the international readership with a frame of reference - in both conceptual and legal terms - that helps to appreciate current Italian Labour Law.

2. Internships: In 2014, ADAPT will commence another selection procedure involving international students and recent graduates in law, economics, sociology and languages to undertake internships or research periods lasting 3 to 6 months in Bergamo (Italy).

Selected candidates will be involved in numerous ADAPT international projects and they will be offered a reimbursement of expenses - the amount of which will vary depending on their age and previous experience - as well as accommodation in our guest apartment in the upper town of Bergamo.

Those interested in undertaking an internship or research period at ADAPT may send their CV/resume and cover letter to: selezione@adapt.it.

3. New Bulletin: new Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published in the last two weeks.

The bulletin includes three commentary notes: "The New Deal for Apprenticeship in England and USA" by Alfonso Balsamo, "The Internationalisation of Education: Causes and Effects" by Alessandra Sartore and "Understanding regulations for small and medium-size enterprises (SMEs)" by Meysam Salimi, all from the International doctoral school in Human Capital Formation and Labour Relations promoted by ADAPT and CQIA (University of Bergamo).

PS

December 13, 2013 in Book Club, International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Estreicher on “Easy In, Easy Out”: A Future for U.S. Workplace Representation

EstreicherSam Estreicher (NYU) has brought to our attention a draft of a paper, emanating from the text of his remarks at the University of Minnesota Law Review Symposium on the Future of Organized Labor this past fall, entitled: Easy In, Easy Out: A Future for U.S. Workplace Representation.

Here is the Introduction:

This paper proposes an amendment to our basic labor laws that I call “easy in, easy out.” Essentially, representation elections—secret-ballot votes to decide whether employees want union representation and whether they want to be represented by the particular petitioning labor organization(s)—in relatively broad units, would, over time, become automatic. Every two years (unless the union achieved a collective bargaining agreement, in which case every three years) the employees in the unit would have, after a required showing of interest, an opportunity to vote in a secret ballot whether they wish to continue the union’s representation, select another organization, or have no union representation at all. Petitioning labor organizations and employers would be required to share certain specified information, in electronic form, with the voting employees. The theory is to make representation elections more like general political elections, to make it easier to vote in a union (if that is the employees’ preference), and to vote the union out if the employees no longer believe the bargaining agent is accountable to them or worth the dues they pay. Other aspects of the labor laws would continue unchanged.

This is clearly a provocative proposal and one that is likely to have supporters and detractors alike.  For his part, Sam does admit this is somewhat of a quixotic enterprise, given the current state of American labor law.  Nevertheless, the paper offers an interesting mixture of labor law theory, comparative analysis, and out-of-the-box thinking, and all should give it a read.

PS

December 13, 2013 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tippett on Child Abuse and the Workplace

TippettElizabeth Tippett (Oregon) just posted on SSRN her article Child Abuse as an Employment Dispute. Here's the abstract:

Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.

Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.

A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.

rb

December 13, 2013 in Employment Common Law, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 10, 2013

NLRB Voluntarily Dimisses Election Rules Appeals

NLRBToday, the NLRB agreed to voluntarily dismiss its D.C. Circuit appeal of a district court's dimissal of its election rules.  As former NLRB General Counsel, Ronald Meisburg, wrote about the dismissal, this is probably an indication that the NLRB is planning on re-doing the election rules.  

The district court opinion relied on the objecting NLRB member's refusal to participate in the promulgation process which, according to the court, denied the NLRB a quorum (there were a total of three memebrs at the time).  This issue, plus the Noel Canning dispute, has put many NLRB actions under a procedural cloud for a while.  I completely agree with Meisburg that taking another look at the election rules and promulgating them with a Board that is free of doubt is the best path.  Indeed, opponents of the new rule may find themselves with reforms they like even less, with fewer procedural objections.

Stay tuned.

Hat Tip: Patrick Kavanagh

-JH

 

 

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