Friday, February 28, 2014

Secunda Out: Departing Workplace Prof Blog

PaulSecundaAlthough I stopped blogging one time before about five years ago, and of course restarted a number of months later, I have decide once and for all to take a permanent vacation from blogging.  Today is my last day on the "job." 

There are a number of reasons which led to this decision (as there always are with a decision such as this one), but none have anything to do with my wonderful co-bloggers, Rick, Jeff, Marcia, and Charlie.  They have been supportive colleagues throughout this adventure together and I thank each of them for providing some of the best blogging content around to the labor and employment law community.

No, for me, it is simply just time to move on to a new phase of my legal and academic career. I no longer have the time or energy to do the numerous posts a week that a blog such as this demands.  It's hard to believe, but I have been blogging for almost ten years now (Rick and I started blogging together in the fall of 2004).  I still enjoy learning about labor and employment law developments, new papers, conferences, and faculty news from all of you, and I love the great virtual community we have built together through this blog.  But now I will become, like the rest of you, solely a reader (and sometime commenter). 

If you have the inclination, you will still be able to find some commentary and other such stuff from me concerning labor and employment law on my Twitter feed (@psecundawrkprof).

In the meantime, my four co-bloggers will "labor" on and continue to provide the top-notch news and analysis you have come to expect from this platform.  And I suspect that there will be opportunities as well for new voices to emerge on this blog.  Please note that a new Twitter Feed has been started for this blog - @WorkProfBlog - and I hope you will consider following it.

I look forward to continuing interacting with many of you by email, during conferences, and in other assorted venues.  Thank you for making my time as a blogger here at Workplace Prof Blog so much fun. 

To quote Garrison Keillor: "Be well, do good work, and keep in touch."

PS

February 28, 2014 in About This Blog, Faculty News | Permalink | Comments (8) | TrackBack (0)

New ImageThis is a pretty sad day for me in particular, the other editors of the blog more generally, and the wider world of legal academia and practicing attorneys that have come to rely on Paul's indefagitable contributions to a wide range of topics within our discipline.  "Benefits" might have been his first love here, but here and elsewhere he has been a strong voice in the legal academy.  I take some considerable comfort in his assurances that he will continue to be that strong voice, albeit in other forums.  Heck, I might actually have to join Twitter in order to get my daily fix of Paul's musings!

CAS

 

February 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

Third Annual ERISA, Employee Benefits, and Social Insurance National Conference

This has been a busy semester for the Labor and Employment Law Program at Marquette University Law School.  In addition to the Speaker Series I wrote about this past Tuesday, we are also honored to be hosting the Third Annual ERISA, Employee Benefits and Social Insurance National Conference (program at this link) on March 28, 2014 (this follows up to wonderful ERISA conferences at Washington University Law and Michigan Business the two previous years).

To say we have an embarassment of riches does not quite capture the remarkable array of papers that are to be presented.  When you add a terrific luncheon keynote speaker in the person of Assistant Secretary of Labor for the Employee Benefit Security Administration, Phyllis Borzi, the cool factor (even for ERISA) is off thc charts.

Panels include papers on ERISA claim and plan issues, the Affordable Care Act and ERISA, the future of public pension plans and other non-ERISA pension plans here and abroad, bankruptcy issues surrounding pensions and other legacy costs, and emerging challenges for social insurance and pension programs. 

Should be a great program!

PS

February 27, 2014 in Conferences & Colloquia, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

The Political Economy of Regulating Contracts

A new piece by Aditi Bagchi on SSRN. The abstract:
 
Contracts can be regulated through either ex ante mandatory rules or ex post default rules. Most explanations for why particular classes of contract should be regulated in one manner or the other study microeconomic features of the transactions at issue. The focus is on the dynamics by which terms are privately set, and there is little attention to differences between prospective parties except their level of information and bargaining power, properties they bear as individuals in relation to the transaction at hand. Such explanations are inherently limited in their ability to explain systematic differences between the regulatory strategies of continental Europe and the United States. 

This Article takes a different approach. It explains a regime’s preferred method of regulating contracts, especially in the employment and consumer contexts, by reference to macro features of its political economy. Both the normative question of whether a mandatory or default approach is superior, and the positive question of which approach is probable, turn on characteristics of the population set that will be subject to the rule, characteristics of market structure in that jurisdiction, and various political institutions. Unlike others commenting on the mandatory-default divide, this Article emphasizes the importance of political and economic features of the transactional environment, not the microeconomics of the transactions themselves. The four environmental factors I study here are heterogeneity, mobility, sectoral composition and institutional capacity. After exploring their effects on domestic regulatory strategy, I discuss the limitations they pose for transnational regulation. Although “private regulation” might appear a third regulatory mode suitable in the transnational context, I argue that private agreements that constrain other private agreements are not properly regarded as an alternative to either ex ante mandatory rules or ex post interpretive defaults imposed by the state.

 Looks worth a read!

CAS

 

February 27, 2014 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

EEOC seeks comment on proposed directive on federal sector process

EeocThe EEOC has asked for public comments to its proposed revised management directive in federal sector proceedings. The EEOC acts as an adjudicator for federal sector claims. From the press release,

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the Regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.

These revisions represent the first major changes to MD-110 since 1999; they can be categorized into three areas:

  1. Implementation of Revised Regulations:
    • new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
    • revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
    • a new compliance section;
    • updated retaliation language in the dismissal section;
    • notice to complainant when an agency is untimely in completing an investigation; and
    • information on digital filings of appeals and complaint files.
  2. Conflict of Interest:
    • addressing EEO director reporting relationship;
    • EEO and HR conflicts;
    • complaint processing of matters involving EEO officials or high-level agency officials; and
    • conflicts between agency legal and EEO programs.
  3. General Updates & Clarification:
    • revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.

These revisions are a part of the EEOC's ongoing efforts to improve the federal sector process. The agency encourages interested parties to review these proposed changes and provide feedback for EEOC consideration. The agency specifically urges stakeholders to provide feedback on the conflict-of-interest section, as this is the EEOC's first attempt to provide clarity in this area, and stakeholder input will be valuable in determining the final approach.

Public comments on revisions to MD-110 should be provided through Regulation.gov (http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001) no later than April 25, 2014 for appropriate consideration.

Further information about EEOC is available on its website www.eeoc.gov. The EEOC's Office of Federal Operations also maintains a Twitter handle @EEOC_OFO for general news and information updates.

MM

February 26, 2014 in Beltway Developments, Employment Discrimination, Government Reports, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

New Speaker Series in Labor and Employment Law at Marquette Law School

I am excited to announce the kick-off of a new speaker series in labor and employment law, sponsored by the Labor and Employment Law Program at Marquette University Law School.

We are really starting the program off with a bang.  

On March 17th, Sam Estreicher (NYU Law) will be debating yours truly on his new labor law reform proposal, "Easy In, Easy Out" (details about that proposal here). You can register here.

On March 27th, in conjunction with the Third Annual ERISA National Conference at Marquette, Assistant Secretary of Labor and head of the Employee Benefit Security Administration (EBSA) Phyllis Borzi will be speaking about the Affordable Care Act. You can register here.

Finally, on April 8th, Professor Takashi Araki, former Dean and Professor of Law at the University of Tokyo Law School and Visiting Professor this semester at Harvard Law School, will be coming to speak about contemporary topics in Japanese employment law.  You can register here.

All events are scheduled at noon and include lunch.

PS

February 25, 2014 in Conferences & Colloquia, International & Comparative L.E.L., Labor Law, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Updated edition of ADR in the Workplace

Cooper ADR 3d- Front CoverCongratulations to Laura Cooper (Minnesota), Dennis Nolan (South Carolina, Emeritus), Stephen Befort (Minnesota), and our own Rick Bales on publication of the third edition of their casebook (from the Labor Law Group), ADR in the Workplace. From West's announcement: 

West Academic has just published the Third Edition of ADR in the Workplace, a casebook that covers substantive and procedural issues of arbitration and mediation in both the union and non-union workplace.  On behalf of The Labor Law Group, authors Laura J. Cooper, Dennis R. Nolan, Richard A. Bales and Stephen F. Befort, have updated the 2005 Second Edition in many respects including recent court and arbitration decisions, new scholarly analysis, and current notes and questions.  Changes include new empirical and statistical information, a significant number of new labor and employment arbitration cases illustrating contemporary developments, a look at the effects of the recent upheavals in state regulation of public sector collective bargaining, and an expanded section on federal sector arbitration.  Among the book’s appendices is an extensive research guide on labor arbitration and alternative dispute resolution in employment.  West Academic plans to publish in Summer 2014, for professors adopting ADR in the Workplace, a book of materials and teacher’s guidance for classroom simulations of arbitration and mediation in both union and non-union settings.

 

MM

February 25, 2014 in Arbitration, Books, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

The Aftermath of the VW-UAW Vote

VWGiven the amount of attention leading up to the VW-Chattanooga vote, it's no surprise that the aftermath has been heated as well.  Following the UAW's narrow loss, the biggest news is the union's filing of eletcion objections with the NLRB.  The actual objections petition is well worth a read.  I followed the election pretty closely, but was still amazed at some of the statements by Tennessee politicians, especially Sen. Corker who might feel especially charged given his role in bringing VW to Chattanooga while he was mayor.  In any event, there's a plausible third-party interference claim here, especially given Corker's repeated statements that he heard from VW itself that it would decide against expanding production at the plant if the union won.  It'll be interesting to see if VW takes any position before the Board.

In related news, Steven Greenhouse has a good recap on the events as of last week,primarily from the UAW's viewpoint.  Also, Cesar Rosado Marzan (Chicago-Kent) takes the glass-half-full view by stressing the possibility of filing ILO charges and VW bargaining with the UAW as a minority union.  Given the outcry leading up to the vote, could you imaging the reaction if VW started dealing with the union after it lost a vote?

Hat Tip:  Tom Cochrane

-JH

February 24, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Friday, February 21, 2014

Teaching Employment and Labor Law

TeachingLast spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.

The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:

Forward

Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon

Teaching Employment and Labor Law

A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim

Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Rachel Arnow-Richman

Collaboration and Community: the Labor Law Group and the Future of Labor Employment Casebooks
Matthew T. Bodie

Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry

The Capstone Course in Labor and Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, and Professionalism
Laura J. Cooper

Constructing a Comprehensive Curriculum in Labor and Employment Law
Martin H. Malin

From Podcasts to Treasure Hunts—Using Technology to Promote Student Engagement
Marcia L. McCormick

Identifying (with) Disability: Using Film to Teach Employment Discrimination
Elizabeth Pendo

A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter

Teaching Private-Sector Labor Law and Public-Sector Labor Law Together
Joseph E. Slater

Teaching the Post-Sex Generation
Kerri Lynn Stone

You should check them out.

MM

February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, February 20, 2014

Final rule on waiting periods for employer-sponsored healthcare plans

HealthcareThe Departments of Labor, Treasury, and Health and Human Services have announced the publication of final regulations implementing a 90-day limit on waiting periods for employer provided health coverage. 

The final regulations require that no group health plan or group health insurance issuer impose a waiting period longer than 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals, and it doesn't affect non-time-period conditions for eligibility, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period. Requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.

The departments are issuing a companion proposed rule for comment. That rule  would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment. Comments must be filed by April 25, 2014.

Both the final and proposed rule are scheduled to be published on Monday, February 24, 2014.

MM

February 20, 2014 in Beltway Developments, Labor and Employment News, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 19, 2014

Teaching Conference: Assessment Across the Curriculum

IltlThe Institute for Law Teaching and Learning is holding a conference on Saturday April 5 at the William H. Bowen School of Law, University of Arkansas at Little Rock. The conference, Assessment Across the Curriculum, looks great. Here is the outline of the program:

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place onSaturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

Conference Content:  Sessions will address topics such as

·         Formative Assessment in Large Classes
·         Classroom Assessment Techniques
·         Using Rubrics for Formative and Summative Assessment
·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork
·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  Theconference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  Theconference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.”

MM

February 19, 2014 in Teaching | Permalink | Comments (0) | TrackBack (0)

Faculty Strike at UIC

StrikeFaculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.

The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.

These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there? 

MM

February 19, 2014 in Labor and Employment News, Labor Law, Public Employment Law, Union News | Permalink | Comments (0) | TrackBack (0)

Déjà vu

New ImageA few weeks ago, I was passing the newspaper rack in the law library (yes, we still have newspapers), and had a deja vu moment when I saw the headline in the New Jersey Law Journal:

NJ Legislature Clears Ban on Discrimination Over Pregnancy

Shades of 1978.  Of course, the NJLJ was reporting a new statute that not only bars sex discrimination on account of pregnancy (which has long been held illegal under NJ's Law Against Discrimination under the heading of discrimination on account of sex) but also imposing for the first time a duty of reasonable accommodation for pregnancy. So it was, after all, headline-worthy in 2014.

The federal Pregnancy Discrimination Act, which amende onlyd Title VII in 1978 to equate pregnancy discrimination  with sex discrimination, has long been held to bar disparate treatment of pregnant women only  when they are like other employees in "their ability or inability to work" (and, as Deborah Widiss recently reiterated, even that equal treatment command  has been applied grudgingly). The New Jersey Supreme Court interpreted LAD similarly: no discrimination, but no need to accommodate.

The new statute, however, requires "reasonable accommodation" in the workplace, "such as bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring, or modified work schedules or transfers to less strenuous or hazardous work." The accommodation must be "needs related to pregnancy" and "based on the advice of {the employee's] physician."  

Needless to say, there is also an undue hardship exception, with the employer explictly assigned the burden of showing such a hardship. The statute lists a number of factors relevant to that determination, and, while it does not weight them, does include "the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement."

What "reasonable accommodation" conspicuously does not require in the new statute is any leave of absence, and the amendment explicitly states that it does not affect rights to paid or unpaid leave.  Leave, therefore, remains controlled by the FMLA and NJ's FLA.

Despite that provision, many employers might well prefer to offer unpaid leave to workers (who were financially able to take it) rather than engage in the kind of accommodations the statute anticipates. But, of course, since the new law explicitly bars discrimination on account of pregnancy, such leave cannot be forced on employees who would prefer, and "need," one of the other kinds of accommodations.

How this will actually play out in the workplace remains to be seen, but it certainly changes the default position radically in the Garden State.  Probably the biggest problem for employees seeking accommodation is the extent to which their bosses can credibly claim that a given accommodation would, in essence, waive "an essential requirement of a job," presumably more likely for small employers than for larger ones who can more easily shift assignments to cover particular functions.

CAS 

 

February 19, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

VW Chattanooga Employees Vote Against UAW Works Council

VW  UAWThe votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%).   As has been frequently noted in the news, this could have been a ground-breaking vote in many ways.  One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry.  Moreover, the labor-management relationship was to model itself on a German-style works council.

Although important, I found the "foothold" point to be the less important one.  In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal).  Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.

More interesting was that the proposed relationship between VW and the UAW looked extremely promising.  Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed.  But it was not to be.

-JH

February 14, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Dimick and Rao on Wage-Setting Institutions

Dimick RaoMatthew Dimick (Buffalo-Law) and Neel Rao (Buffalo-Economics) have just posted on SSRN their paper, Wage-Setting Institutions and Corporate Governance, which examines  how wage-setting institutions influence the concentration of ownership and investor=protector legislation.  The abstract:

Why do corporate governance law and practice differ across countries? This paper explains how wage-setting institutions influence ownership structures and investor protection laws. In particular, we identify a nonmonotonic relationship between the level of centralization in wage-bargaining institutions and the level of ownership concentration and investor protection laws. As wage setting becomes more centralized, ownership concentration within firms at first becomes more, and then less, concentrated. In addition, the socially optimal level of investor protection laws is decreasing in ownership concentration. Thus, as wage-setting institutions become more centralized, investor protection laws become less and then more protective. This explanation is consistent with the observable pattern of wage-setting structures, ownership concentration, and investor protection legislation across developed countries. While agreeing with recent research that highlights labor as an important corporate stakeholder in shaping corporate governance, a focus on bargaining structures can resolve an important puzzle this research confronts, namely, why Scandinavian countries with higher than average labor strength also have higher than average investor protection legislation.

 

Looks really interesting, so check it out!

-JH

February 14, 2014 in Labor and Employment News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Causation, Again

New ImageThere's an interesting post from the Whistleblower Law Blog, Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?, the theme of which is that the but-for causation standard that emerged in Gross and Nassar is likely to spread across all federal statutes that do not explicitly adopt a lower standard.

I think that's correct. Although Burrage, a unanimous decision,  can be distinguished as involving a criminal statute and thus subject to the rule of lenity, the pattern across recent cases is pretty clear.  

However, there are a number of employment-related statutes that explicitly employ language suggesting lesser causation -- Title VII status discrimination cases and USERRA (for "motivating factor") and a whole raft of newer federal whistleblower laws, starting with SOX, that not only use "contributing factor" but also require proof of the "same decision anyway" by the employer to be by "clear and convincing evidence."

And then there are the older Supreme Court cases that, in the §1983 context (Mt. Healthy for First Amendment and Texas v. LeSage for the Equal Protection Clause) or under the NLRA (Transportation Management) that adopt a lower causation/burden shifting approach.  The lower courts aren't supposed to "predict" what the Supreme Court would do when there's a precedent on point, even if later precedents seem to undermine it, which suggests that that authority should remain good law unless and until the Supreme Court gets around to overruling it. (The Court did advert to those cases in a footnote in Gross, but did so in atempting to distinguish them rather than cast doubt on their authority, which would seem to reinforce the need for lower courts to follow them until instructed otherwise).

And, then, of course, there are statutes, such as §1981, which don't use causation language to begin with.

It's not that I doubt where the current majority wants to go; I'm just pointing out that the path is more rocky than it might seem at first.

CAS 

 

 

February 14, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, February 13, 2014

Duff on ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain

DuffMichael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.

Here is the abstract:

Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy.  Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose.  Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker.  This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.

Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.

The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.

The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.

This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.

Check it out!

PS

February 13, 2014 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Race, Labor, & the Law at UCLA

Graphic_000Friend of the blog Wendy Greene (Cumberland, Samford U) writes to tell us of an upcoming conference at UCLA that might interest our readers. The topic is Race, Labor, and the Law, the sponsor is the UCLA Institute for Research on Labor and Employment, and the program looks great:

Friday, February 28, 2014

8:00 AM - 8:10 AM

Welcome

  • Chris Tilly, Ph.D. | Director, UCLA Institute for Research on Labor and Employment; Professor of Urban Planning, UC Los Angeles

8:10 AM - 8:55 AM

Opening Keynote

  • Ruben J. Garcia, J.D., LL.M. | Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
    • "The Relationship Between Racism and Anti-Union Animus"

9:00 AM - 10:30 AM

Transformation of the Labor Movement

  • Héctor Cordero-Guzmán, Ph.D. | Professor of Sociology and Urban Education, School of Public Affairs, Baruch College, City University New York
    • "Worker Center, Worker Center Networks, and the Promise of Protections for Low Wage Workers under the FLSA"
  • Victor Narro, J.D. | Project Director, Center for Labor Research and Education, Institute for Research on Labor and Employment, UC Los Angeles
  • Saru Jayaraman, M.P.P., J.D. | Director, Food Labor Research Center, University of California, Berkeley; Co-Founder & Co-Director, Restaurant Opportunities Center United
    • "Racial Segregation in the Restaurant Industry: Challenges & Opportunities"

10:35 AM - 12:05 PM

Concurrent Panels

Panel A: The Politics of Prison and Labor: How Incarceration Affects Reentry, Employment Opportunities, and the Labor Movement as a Whole

  • Kelly Lytle Hernandez, Ph.D. | Associate Professor of History, UC Los Angeles; Director, UCLA Department of History's Public History Initiative
  • Marta Lopez Garza, Ph.D. | Professor of Gender and Women's Studies and Chicana/o Studies, California State University, Northridge
    • "When Will the Punishment End?"
  • Heather Ann Thompson, Ph.D | Associate Professor of History and African American Studies, Temple University
    • "Making Mass Incarceration Matter to the American Labor Movement"

Panel B: Bringing Workers Into Focus: Worker Cooperatives, Black-Latino Relations in the Workplace, and Racial Alliance Building in the Labor Movement

  • Jassmin Poyaoan | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Vanessa Ribas, Ph.D. | Assistant Professor of Sociology, UC San Diego
    • "The Value of Being Negro, the Cost of being Hispano: 'Disposability' and Challenges for Cross-Racial Solidarity in the Workplace"
  • Alexandra Suh, Ph.D. | Executive Director, Koreatown Immigrant Workers Alliance (KIWA)

12:05 PM - 1:05 PM   Lunch

1:05 PM - 2:35 PM     Concurrent Panels

Panel A: Intimate Labor

  • Mireille Miller Young, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
    • "Illicit Eroticism: The Politics of Intimate Labor in Black Women's Porn Work"
  • Grace Chang, Ph.D. | Associate Professor of Feminist Studies, UC Santa Barbara
  • Elena Shih | Ph.D. Candidate in Sociology, UC Los Angeles
    • "Rehabilitating Intimate Labor: Transnational Racial Formations of 'Good Work' in Human Trafficking Rescue"

Panel B: Labor Law Through a Critical Race Theory Lens

  • Maureen Carroll, J.D. | Greenberg Law Review Fellow, UCLA School of Law, UC Los Angeles
    • "Privilege and Invisibility in Labor Practice"
  • Nayla Wren | J.D. Candidate, UCLA School of Law, UC Los Angeles
  • Sanjukta Paul, M.A., J.D. | Attorney & Clinical Teaching Fellow, UCLA School of Law, UC Los Angeles
    • "Normative Obstacles to Empowerment Lawyering in the Workers Rights Context"

2:40 PM - 4:40 PM     Concurrent Panels

Panel A: Intersectional Analysis of Women in Low Wage Labor, Organizing, and Combating Workplace Discrimination

  • Sarah Haley, Ph.D. | Assistant Professor of Gender Studies, UC Los Angeles
  • Eileen Boris, Ph.D. | Hull Professor and Chair, Department of Feminist Studies, UC Santa Barbara
    • "(In)Visibility and the Color of Home Care: Law, Recognition, Justice"
  • D. Wendy Greene, J.D., LL.M. | Professor of Law, Cumberland School of Law, Samford University
  • Ellen Reese, Ph.D. | Professor of Sociology and Chair of Labor Studies, UC Riverside
    • "Intersecting Inequalities Among Latina/o Warehouse Workers in Inland Southern California: Challenges and Prospects for Justice"

 

Panel B: Safe Jobs, Healthy Jobs, Good Jobs

  • Anne E. Fehrenbacher MPH | Ph.D Student in Community Health Sciences, UC Los Angeles
    • "Job Insecurity and Quality of Life: Testing a Causal Model of Job Stress Proliferation Moderated by Race, Gender, and Education"
  • Kevin Riley, MPH, Ph.D | Director of Research and Evaluation, UCLA Labor Occupational Safety & Health (LOSH), Institute for Research on Labor and Employment, UC Los Angeles

4:45 PM - 5:45 PM     Wine and Cheese Reception

Saturday, March 1, 2014

9:20 AM - 9:25 AM

Welcome

  • Pamela A. Izvănariu, J.D., LL.M. | Director of Research & Development, UCLA Institute for Research on Labor and Employment, UC Los Angeles

9:25 AM - 11:15 AM

Labor and Employment Issues Facing Indigenous Peoples in the U.S.

  • Matthew L.M. Fletcher, J.D. | Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University
    • "On Treaties and Internal Tribal Sovereignty"
  • James Kawahara, J.D. | Adjunct Professor in Practice, UCLA School of Law, UC Los Angeles; Attorney, Kawahara Law P.C.
    • "Judicial Application of Federal Labor and Employment Laws to Indian Tribes When Congress is Silent: What Fills the Vacuum?"
  • Lynn Stephen, Ph.D. | Professor of Anthropology and Director of the Center for Latino/a and Latin American Studies, University of Oregon
    • "Indigenous Mexican Workers in the U.S.: Labor Conditions, Health, and Identity"
  • David Kamper, Ph.D. | Associate Professor and Chair of American Indian Studies, San Diego State University
    • "The Work around Tribal Sovereignty: Negotiating Notions of Labor, Jobs, & Class in Tribal Governmental Gaming and Economic Development"

11:20 AM - 1:10 PM

Race, Labor, and Immigration

  • Hiroshi Motomura, J.D. | Professor of Law, UCLA School of Law, UC Los Angeles
    • "Race, Labor, and the Making of Immigration Outside the Law"
  • Sameer Ashar, J.D. | Clinical Professor of Law, Irvine School of Law, UC Irvine
    • "Immigration Enforcement, Race, and Resistance"
  • Shannon Gleeson, Ph.D. | Associate Professor of Latin American and Latino Studies, UC Santa Cruz
    • "Precarious Labor, Tenuous Rights: Lay v. Legal Conceptions of Justice at the Workplace"
  • David Cook-Martin, Ph.D. | Associate Professor of Sociology, Grinnell College
    • "A House Divided: Labor and its Contrasting Roles in Shaping Ethnically Selective Immigration Law in the Americas"

1:10 PM - 2:10 PM     Lunch

2:10 PM - 4:00 PM     Worker Voice, Labor Speech

  • Leticia M. Saucedo, J.D. | Professor of Law, UC Davis
  • Camille Gear Rich, J.D. | Associate Professor of Law, Gould School of Law, University of Southern California
    • "Post-Racial Hydraulics: The Role of the Fair Labor Standards Act in the Repackaging of Race and Gender Discrimination Claims"
  • Nicholas Espiritu, J.D. | Staff Attorney, National Immigration Law Center
  • Catherine Fisk, J.D. | Chancellor's Professor of Law, Irvine School of Law, UC Irvine
    • "Worker Voice and Labor Speech After Harris v. Quinn and Citizens United: Why Unions Should Have the Same Free Speech Rights as Corporations and Why the Supreme Court Thinks They Do Not"

4:00 PM - 4:45 PM

Closing Keynote

  • Ian F. Haney-López, J.D., M.P.A. | John H. Boalt Professor of Law, UC Berkeley
    • "Dog Whistle Politics/Dog Whistle Racism"

If you will be in the area, it seems like a great opportunity to hear from a broad mix of subject areas, disciplines, topics, academics, and people in the field. For more information and to register, see here.

MM

February 11, 2014 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

NLRB Invitation for Briefs

NLRBIn another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities.  All of these are perennial issues that have been hard fought over the years.  The announcements (links above) contain more info on filing briefs.

The announcement for the deferral issues states, in part:

The National Labor Relations Board (NLRB) invites interested parties to file briefs . . .  to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.

Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act.  Spielberg Mfg. Co., 112 NLRB 1080 (1955).  Further, the arbitral forum must have considered the unfair labor practice issue.  The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue.  Olin Corp., 268 NLRB 573 (1984).  The burden of proof rests with the party opposing deferral.

The NLRB General Counsel has asked the Board to adopt a different standard.  Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act. 

The announcement for the regious university jurisdiction and faculty status states, in part:

The National Labor Relations Board is inviting briefs from interested parties on two questions:  whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.

The case is Pacific Lutheran University (19-RC-102521).  . . .  In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case.  The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980). 

It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.

-JH

 

February 10, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Harthill Leaves Florida Coastal for U.S. Department of Labor

HarthillSusan Harthill sends word that she left her faculty position at Florida Coastal Law School in Jacksonville this past December in order to start a new job today as Deputy Solicitor of Labor for National Operations in Washington D.C.
 
Among her other responsbilities, Susan's position oversees the Division of Plan Benefits Security, so I hope to see her in Washington in my role as a member of the ERISA Advisory Council in the coming years.

Good luck, Susan, on your exciting new job!

PS

February 10, 2014 in Faculty Moves, Faculty News | Permalink | Comments (0) | TrackBack (0)