Sunday, February 26, 2017
Kathy Stone (UCLA) has just published Unions in the Precarious Economy:
How collective bargaining can help gig and on-demand workers (American Prospect, 2/21/17). In it, she discusses various types of precarious workers, including workers in the retail, restaurant, and hospitality industries, as well as workers who perform "gigs" as independent contractors for internet platform companies. She gives examples to show how various types of precarious workers can benefit from forming unions and bargaining collectively. Here's an excerpt:
The various forms of on-demand work tend to defeat the protections of our system of labor regulation, which assumes that employees have regular payroll employment. Seemingly, unions are also not much help, since they, too, are based on the assumption of regular jobs. But if we dig a little deeper, there is a long history of unions protecting their members from employers’ efforts to force workers to bear all the risks and costs of fluctuating demand. This is true in industries as varied as construction, airlines, hotels, and entertainment.
If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important. Some of these are unions that organize and collectively bargain under the terms of the National Labor Relations Board. But others, in the world of so-called alt-labor, use worker centers, associations, and other worker-empowerment strategies that are not technically unions. If the Trump administration changes rules and laws to weaken traditional unions—which it is almost certain to do—these new strategies become that much more important.
Thursday, February 23, 2017
Many thanks to Matthew Dimick for contributing this guest post:
A few weeks ago, OnLabor.org featured a post I wrote about the Ghent system and progressive federalism. At the end of that post, I referred to “other avenues for Ghent-type experiments” beyond the main one discussed in the article, which would require changes in the current federal-state cooperative system of unemployment insurance. Mentioning these “other avenues” prompted several queries from readers, and I will use this opportunity here at the Workplace Prof Blog to talk about those.
First, some background. To remind readers, the Ghent system is a form of union-administered (but government paid-for) unemployment insurance that has a substantial, positive impact on the rate of union membership in the countries that have it. What makes the Ghent system a prospect for union revitalization in the US is the system of unemployment insurance we have here, which basically incentivizes states to adopt, finance, and administer their own unemployment-insurance systems subject to federal guidelines and oversight by the Secretary of Labor. It also helps that states are given more latitude under federal labor law preemption when it comes to the design and administration of unemployment insurance.
I originally wrote about the Ghent system for a law review article in 2012, after Democrats had lost control of Congress, which had effectively ended any prospect of passage for the Employee Free Choice Act. Yet as long as a Democrat remained in the White House, a reform like the Ghent system at the state level didn’t need approval from a Republican Congress. I doubt Obama’s tenure is the last we will see of divided government, so I still think it is worth thinking about a progressive-federalist reform like the Ghent system. Yet since a Trump administration probably forestalls that avenue for now, it is also worth dwelling on “other avenues,” as I suggested in my other post.
One alternative is take a purely private route to a Ghent system. Despite its weakness in terms of union density, the US labor movement still has vast resources and expertise gained through administering health and pension funds. Can these resources be leveraged to create a subsidized and supplemental system of unemployment insurance for workers? Without the government subsidy and because it wouldn’t be a worker’s exclusive source of unemployment insurance, this proposal certainly wouldn’t have the impact of a full-blooded Ghent system. Yet historically, unions have filled this function, and it played an important part in the origins of the Ghent system, which was created when a municipal government came to the rescue of a union unemployment insurance fund depleted by an economic downturn.
A private option need not supply unemployment insurance. The Freelancers Union has had notable success in providing health, dental, life, and disability insurance to workers who join the union. The main difference between the Freelancers Union and a traditional labor union is that the former does not collectively bargain. It is understandable why the Freelancers Union has made this choice. At the same time, a labor organization that combined both mutual aid and bargaining functions is a powerful ideal.
Moving even further from the insurance realm, union-administered and employer- or government-funded job training also seems like a possibility. Workforce development is a goal the business community can get behind. And unions already have a template in the highly successful Culinary Academy of Las Vegas, a consortium of local hotel casinos and unions that provides job training to union members. Working closely with the union’s hiring hall, the CHA does many things the Ghent system does in terms of cultivating union membership.
In short, there are indeed many other avenues available for experimenting with Ghent-type institutions that worker advocates should consider—even with a Trump in the White House.
Wednesday, February 22, 2017
In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.
The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.
Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”
Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’
The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:
- The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
- The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”
Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.
Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.
Tuesday, February 21, 2017
There have been numerous news stories over the last 48 hours regarding the sexual-harassment allegations against Uber. For example, articles can be found discussing the issue in the LA Times, on CNN, and in the USA Today just to name a few. And earlier today it was announced that the company will be employing Eric Holder to defend against the allegations. Sexual harassment is a very personal and sensitive topic within employment discrimination law, and one certainly worth following here.
Paul Harpur (Melbourne) sends word that the Australian Government has announced the launch of a broad inquiry into establishing a Modern Slavery Act in Australia. The inquiry will consider whether the introduction of anti-slavery legislation would help combat supply-chain-based slavery and human trafficking. Paul explains:
Human trafficking, slavery and slavery-like practices are already criminal offences in Australia. Recent slavery-like practices in Australian supply chains has motivated a new inquiry.
the Australian Federal Attorney-General referred an inquiry into establishing a Modern Slavery Act in Australia to the Foreign Affairs and Aid Sub-Committee of the Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade on February 15, 2017. The committee is tasked with strengthening and improving Australia's current regulatory regime to prevent slavery occurring in Australia and Australian natural and corporate persons engaging in slavery overseas. The Committee has called for submissions to be lodged by interested parties by 28 April 2017.
For more, see this discussion by the Australian law firm Allens.
My colleague Dallan Flake (ONU) has just posted on SSRN his article When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? Here's the abstract:
In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor such feedback into a host of decisions, including employment-related decisions such as whom to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their implicit biases have skewed their perceptions, and consequently their ratings, of service exchanges.
When firms rely on tainted customer feedback to make employment decisions, they indirectly discriminate against employees. Although the law makes clear that employers cannot discriminate against employees based on customers’ discriminatory preferences, it has yet to address whether and to what extent employers are liable for factoring biased customer feedback into employment decisions. I argue that employers should not get a free pass to discriminate simply because it is the customers rather than themselves who bear the discriminatory animus; but nor should employers be liable in every instance where customer feedback is shown to be biased.
To strike an appropriate balance, employers should be held to a negligence standard whereby their liability for using tainted feedback depends on whether they knew or reasonably should have known the data was compromised and if so, whether they acted reasonably in response by taking appropriate preventive or corrective measures. A major advantage of this framework is that it works in both the easy and the hard cases by tying employer liability to the ease with which customer bias can be detected. If bias is explicit, the law would hold employers to a heightened duty in terms of both knowledge and response, whereas if bias is implicit, and thus harder to detect, employers would be held to a lower standard.
Saturday, February 18, 2017
The Department of Labor is publicizing its Occupational Outlook Handbook on its website. This is a great resource (maintained by the Bureau of Labor Statistics) which includes salary data and growth information for numerous occupations. If you are researching or writing in this area, there is some great data available in this free resource.
-- Joe Seiner
Thursday, February 16, 2017
I really like this choice. Although we have substantive differences, I have a great deal of respect for Acosta. We were both at the NLRB during his short time there and it seemed to me that he always took his job and the role of the NLRA seriously; even when I disagreed with his vote, his decisions were thoughtful and reasonable.
Wednesday, February 15, 2017
This just in: Andrew Puzder has withdrawn his name from consideration as Secretary of Labor. It sounds like the writing on the wall showed that he lacked enough Republican support in the Senate. It's interesting that this is the one cabinet nominee that failed. Allegations of domestic abuse was probably a factor, but his hiring of an undocumented domestic worker (and failure to pay her taxes) seemed to play a role for conservatives as well.
Tuesday, February 14, 2017
The following conference may be of interest to readers:
The Santa Clara University School of Law, the Leavey School of Business at Santa Clara University, the University of Washington School of Law, the NYU Stern Center for Business and Human Rights, the Rutgers Center for Corporate Law and Governance and the Business and Human Rights Journal announce the Third Business and Human Rights Scholars Conference, to be held September 15- 16, 2017 at Santa Clara University in Santa Clara, California. Conference participants will present and discuss scholarship at the intersection of business and human rights issues. Upon request, participants’ papers may be considered for publication in the Business and Human Rights Journal (BHRJ), published by Cambridge University Press.
The Conference is interdisciplinary: scholars from all disciplines are invited to apply, including law, business, human rights, and global affairs. The papers must be unpublished at the time of presentation. Each participant will present his/her own paper and be asked to comment on at least one other paper during the workshop. Participants will be expected to have read other papers and to participate actively in discussion and analysis of the various works in progress.
To apply, please submit an abstract of no more than 250 words to email@example.com with the subject line “Business & Human Rights Conference Proposal.” Please include your name, affiliation, contact information, and curriculum vitae. The deadline for submission is March 15, 2017. We will begin reviewing submissions on a rolling basis on March 1, 2017. Scholars whose submissions are selected for the symposium will be notified no later than April 15, 2017. Final papers will be due August 25, 2017.
Doctoral candidates not holding current academic/research positions are not eligible for this conference, but are welcome to apply to the Young Researchers Summit (more information is available here: http://www.iwe.unisg.ch/en/initiativen+und+veranstaltungen/bhr or http://bhr.stern.nyu.edu/young-researchers).
About the BHRJ
The BHRJ provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice.
BHRJ strives for the broadest possible scope, authorship and readership. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Editors welcome theoretical, empirical and policy/reform-oriented perspectives and encourage submissions from academics and practitioners in all global regions and all relevant disciplines.
A dialogue beyond academia is fostered as peer-reviewed articles are published alongside shorter “Developments in the Field” items that include policy, legal and regulatory developments, as well as case studies and insight pieces.
Sunday, February 12, 2017
Aaron Halegua (NYU) writes to give us the heads-up on a free, downloadable book by the ILO: Resolving Individual Labour Disputes: A Comparative Overview. Here's the ILO's description of the book:
The number of individual disputes arising from day-to-day workers’ grievances or complaints continues to grow in many parts of the world. The chapters in this book cover individual labour dispute settlement systems in Australia, Canada, France, Germany, Japan, Spain, Sweden, the United Kingdom and the United States.
Each chapter examines and assesses the institutions and mechanisms for settlement of individual labour disputes, including the procedures and powers available, the interaction of these institutions and mechanisms with other labour market institutions (e.g. collective bargaining and labour inspection) and the broader system for resolution of legal disputes (e.g. courts of general jurisdiction, specialist commissions and tribunals).
And here's Aaron's description of the chapter he wrote on the U.S.:
I contributed a chapter on the United States, which I think provides a good overview of the role played by administrative agencies (USDOL, EEOC, NLRB, New York State DOL, NYS Division of Human Rights, etc.), federal and state courts, firm's internal efforts, and both labor and employment arbitration -- as well as how ADR is used in all those contexts. It also seeks to evaluate each one and pulls together statistics on the performance of each institution. I think that people already familiar with the United States might find the evaluation/statistics part and use of ADR in these institutions useful. I also think it would be particularly useful for people trying to understand our complex system with its web of overlapping institutions, or professors ... who might be teaching such students.
Thursday, February 9, 2017
The Federal Occupational Safety and Health Administration has issued an information request to help evaluate a "potential standard to prevent workplace violence in healthcare and social assistance settings." Details on the standard and making a submission can be found here. The deadline to submit information is April 6, 2017.
-- Joe Seiner
Paul Harpur's (Queensland) has been working recently on a cross-disciplinary project analysing the regulation of disability assistance animals/service animals in Australia, Canada, Ireland, the UK, and the U.S. Yesterday, he was interviewed on Australia's Channel 10. Though apparently the segment can't be viewed outside Australia, here's an excerpt from the interview.
What do a bird, a miniature horse, a cat and pig have in common with a guide dog? They’re all legal assistance animals…and it’s causing a headache for authorities.
Aged 11 years old and weighing in at around a kilo, Tiberius is a blue and gold Macaw and is much more than an exotic pet.
He is a lifeline for Alicia, who suffers complications from a chronic pain condition. "[Tiberius's] job is to monitor my heart and pain condition and warn me of incoming attacks."
Tiberius monitors her pulse for changes and Alicia says she can’t live without him. Twice, he has saved her life of an actual heart attack. “I was on the phone saying I’m going to have a heart attack. My service animal has sensed it and warned me. I got laughed at.”
As well as mockery, Alicia has had to contend with outright hostility from people not used to seeing a working disability parrot. “I’ve been escorted out, I’ve been demanded out, I’ve had people swearing at me, spit coming off them.”
While local and state laws prevent non-canines like Tiberius being used as assistance animals, federal laws don’t: and people are starting to cotton on .
When the act was passed in 1992 it used the term “disability assistance animals” and it’s always used the term “animals”. Back in the day 99% of animals were dogs so no one’s really noticed it. But with the growth of animal assisted therapy there is an increase in people wanting to bring other animals into public spaces.
And Federal laws also lack the strict training standard found in state laws. Individuals can train their own animals and associations that have nothing to do with disability can train animals. It’s a mess.
Professor Paul Harpur, who relies on a seeing eye dog, has studied the trend towards non-canines. He worries people are fraudulently claiming their pets as disability assistance animals.
It’s already a big issue in US: with turkeys, ducks, kangaroos and pigs turning up on planes and restaurants as “emotional support animals”. Transport authorities here [in Australia] have had to contend with a miniature horse approved for travel on Melbourne’s trams; as well as an assistance dingo, a “stress rabbit”, plus assistance cats, rats, birds and pigs.
Wednesday, February 8, 2017
Susan Bisom-Rapp (Thomas Jefferson), member of the Marco Biagi Foundation Academic Advisory Board writes to let us know that annual conference in Modena, Italy is coming next month. the Fifteenth International Conference in Commemoration of prof Marco Biagi is entitled "Digital and Smart Work." Organized by the Marco Biagi Foundation at the University of Modena and Reggio Emilia, it will take place in Modena (Italy) on March 20th and 21st, 2017.
As usual, attendance to the conference is free. Further information, including the Conference programme and the registration form, is available on the Marco Biagi Foundation's web site, at the link:
Tuesday, February 7, 2017
The course is “International Labour Standards for Judges, Lawyers and Legal Educators”, and will take place in Turin, Italy, from 22 May to 2 June. Here's a brief description:
International labour standards are legal instruments that establish basic minimum social standards agreed upon by governments, employers and workers.
Our mission is to support the development of knowledge and skills to promote international labour standards (ILS) and rights at work, to strengthen their application and to advance the achievement of decent work for all women and men.
We do this by designing and implementing training and capacity development activities for constituents, ILO staff, partners and other national and international actors.
The U.S. Equal Employment Opportunity Commission recently opened registration for enrollment in its EXCEL Training Conference. The conference, which is celebrating its 20th anniversary, will be held in Chicago, Illinois on June 27-29. From the EEOC's press release on the conference:
"EXCEL is the EEOC's premier training conference and features comprehensive training workshops and events specifically designed for federal EEO managers, supervisors and practitioners. EXCEL also features the most up-to-date guidance and information for private-sector human resource professionals, attorneys, ADR specialists and EEO consultants. . . details about the conference, including agendas, pricing information and online registration are available at http://eeotraining.eeoc.gov/excelmain.html".
Wednesday, February 1, 2017
Rebecca Lee (Thomas Jefferson) writes to remind readers that if you are in San Diego this Friday, February 3, you might be interested in this conference on Pursuing Inclusion: Diversity in the workplace, co-organized by Rebecca and Susan Bisom-Rapp (Thomas Jefferson). Advance registration is closed but walk-in registration will be available. Here are details:
We are pleased to let you know about an upcoming conference scheduled for Friday, February 3rd at Thomas Jefferson School of Law: our annual Women and the Law Conference and Ruth Bader Ginsburg Lecture.
This year's all-day conference, Pursuing Inclusion: Diversity in the Workplace, brings together leading experts and practitioners to examine the challenges to and strategies for achieving workplace diversity and inclusion. At a time of polarized public discourse on matters involving race, ethnicity, national origin, gender, religion, sexual orientation, gender identity, disability, age, and socio-economic status, this event will highlight a number of critically important topics, including: developing cultural competency; the strengths and weaknesses in employment and civil rights law; identifying and overcoming unconscious bias; how strategic efforts can inform public policy; and how other countries confront diversity at a time when work is changing rapidly.
Our 15th Ruth Bader Ginsburg Lecture, the conference keynote, will be delivered by our colleague UC Davis Professor Leticia Saucedo.
Information is available below and via this link - http://www.tjsl.edu/
Questions may be addressed to faculty assistant Lillian Blackburn (firstname.lastname@example.org) .
Looks like a great event!