Workplace Prof Blog

EEOC on 50th Anniversary of ADEA

To celebrate the 50th anniversary of the ADEA, the EEOC brought together experts on age discrimination from a number of different disciplines.  The panel looked at the continuing problem of age discrimination, even five decades after the statue was enacted. Older workers continue to report difficulties with obtaining employment, and outdated views of these employees continue to persist.  From the acting chair, Victoria A. Lipnic:

"With so many more people working and living longer, we can't afford to allow age discrimination to waste the knowledge, skills, and talent of older workers," . . . "Outdated assumptions about age and work deprive people of economic opportunity and stifle job growth and productivity. My hope is that 50 years after the enactment of the Age Discrimination in Employment Act (ADEA), we can work together to fulfill the promise of this important civil rights law to ensure opportunities are based on ability, not age."

Information on the panel and discussion is available here, and the EEOC plans to post a video of the proceedings shortly as well. 

--Joe Seiner

 

The Workplace and Mental Illness

There is a really interesting post over at the US Department of Labor blog on mental illness in the workplace. The author explores the various challenges workers can face in this area, and examines ways of addressing some of these issues.  From the piece:

"Living with a mental illness also includes being aware of the stigma that comes along with it. A misperception about people with mental health disabilities is that they are weak or have a flawed character, rather than recognizing the biological basis of these conditions. Sadly, attitudes like these prevent people from seeking the help that they need to live healthy lives, and may discourage employers from hiring skilled, productive workers."

Mental illness is an important part of the Americans with Disabilities Act, yet one that is often unexplored. The post is definitely worth taking a look at if you are interested in this area.

-- Joe Seiner

 

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4th Circuit Rules in Favor of NFL Player Disabled by Repeated Hits

Many thanks to Jon Harkavy (Patterson Harkavy) for forwarding yesterday's decision by the Fourth Circuit in Solomon v. NFL Player Retirement Plan. Here's Jon's description of the case:

[T]he context is a retired NFL player's challenge to a no-disability determination by the administrative review Board set up under the NFL's disability retirement plan. The Court affirms a decision by Judge Garbis in the District of Maryland reversing the Board's determination, and rules in favor of the player whose disabling condition is related to 69,000 hits he suffered during his 9 year NFL career.

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Eisenstadt and Geddes on Uber and the Workplace

Congrats to Friends-of-blog Leora Eisenstadt and Deanna Geddes (Temple) who have a fascinating op-ed in The San Francisco Chronicle on the troubles at Uber and the law's contribution to the creation of angry workers and unhealthy workplaces. The piece is based on an article they have forthcoming in the UPenn Journal of Business Law called Suppressed Anger, Retaliation Doctrine, and Workplace Culture.  This emerging issue has particular relevance for businesses in the on-demand economy (Jeff Hirsch and I recently posted a piece on the role unions can play in the technology sector, which is available here).  I definitely recommend their op-ed if you have the chance to take a look!

- Joe Seiner

The Conservative Case for Unions

Jonathan Rauch has written The Conservative Case for Unions in the Atlantic. Congratulations to Matt Dimick (Buffalo) for a prominent mention, and for Rauch's discussion of Dimick's work on the Ghent System. Here's an excerpt from the article:

All workers do not suffer equally from the decline of unions: In today’s fragmented, hypercompetitive, and globalized workplace, high-powered professionals enjoy more autonomy and respect than ever. Less educated workers, by contrast, have lost agency and, in many cases, dignity. Edward Luce of the Financial Times puts the problem well in his new book, The Retreat of Western Liberalism: “In survey after survey, the biggest employee complaint is being treated with a lack of respect. Whether they work in an Amazon warehouse, serve fast food, or sit in a … customer-service cubicle, they feel diminished by how they are treated.” That has implications not just for the well-being of workers, but for the health of capitalism and even of democracy.

In America, the modern conservative movement was founded on anticommunism and antiunionism. Senator Barry Goldwater (“Mr. Conservative”) built his career bashing unions. President Ronald Reagan, although a former union leader himself, made his bones by breaking the air-traffic controllers’ union. Just this past February, Republicans succeeded in their long push for a right-to-work law in Missouri. But the conservative war on unions is beginning to look like a Faustian bargain. If 2016 taught us anything, it was that miserable workers are angry voters, and angry voters are more than capable of lashing out against trade, immigration, free markets, and for that matter liberal democracy itself.

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Biagi Conference Call for Papers

The Call for Papers of the sixteenth International Conference in commemoration of prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19-21 March 2018, and will be entitled “Assessing Worker Performance in a Changing Technological and Societal Environment: an Interdisciplinary and Multifaceted Perspective”. Deadlines are as follows:

• submission of short expressions of interest, July, 20th 2017;
• submission of extended abstracts (in case of acceptance of expressions of interest): October, 13th 2017.

Further information will be available soon at the Marco Biagi Foundation’s website.

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Mitra & Kruse Find Huge Job Gaps for Disabled Workers

Sophie Mitra (Fordham Dep't Econ.) and Douglas Kruse (Rutgers - Management & Labor) have just published a significant new empirical study of the impact of disability on employment. The article is Are Workers with Disabilities More Likely to be Displaced?, and unfortunately their answer is "yes". The article is published at International Journal of Human Resource Management, Vol. 27(4), pp. 1550-1579, 2016; here's the abstract:

The literature on employment and disability has been relatively silent regarding the job loss experience of persons with disabilities. We document the gap in job displacement rates across disability status in the United States over the 2007–2013 period using data from the 2010, 2012 and 2014 Displaced Worker Supplements of the Current Population Survey. We find that men and women with disabilities are, respectively, 75 and 89% more likely to experience an involuntary job loss than men and women without disabilities in the United States over the 2007–2013 period, with gaps in displacement rates of eight and seven percentage points for men and women, respectively. A significant gap is found in most occupation-education subsamples. Using a logit decomposition, we find that differences in observable characteristics do not explain the gap in the job loss rate across disability status. Longitudinal tests following workers over a one-year period point to a causal effect of disability on the likelihood of displacement. While the disability gap may be due to unobservable characteristics, job mismatch and employer discrimination are also possible explanations, highlighting the potential importance of employer and public policies in improving the job security of workers with disabilities.

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Marvin Kaplan to be Nominated to NLRB

As predicted, Marvin Kaplan will be nominated as a member of the NLRB.  At the moment, Kaplan is counsel at the Occupational Safety and Health Review Commission. especially given his previous Capitol Hill experience as counsel for the House Workforce and Education Committee, I would expect his nomination to come relatively quickly, producing a 2-2 political split on the Board (of course, most cases will be heard by a randomly selected 3-member panel).

Stay tuned.

-Jeff Hirsch

DOJ Switches Sides on Murphy Oil

Over at On Labor, Vivian Dong describes the switch:

[T]he Department of Justice announced last Friday that it will switch over its support in the upcoming Supreme Court case, NLRB v. Murphy Oil, from the National Labor Relations Board to Murphy Oil. The issue in the case, set for the 2017 October term, is whether arbitration agreements with individual employees that ban employees from pursuing employment claims on a class or collective basis (class action waivers) violate the NLRA. Under President Obama, the DOJ wrote an amicus brief in support of the NLRB, which had ruled that such arbitration agreements did indeed violate the NLRA. But, as the DOJ states in its re-filed brief, “after the change in administration, the office reconsidered the issue and has reached the opposite conclusion.” The DOJ now argues that “nothing in the NLRA’s legislative history indicates that Congress intended to bar enforcement of arbitration agreements like those at issue here.” NLRB v. Murphy Oil was consolidated with Epic Systems Corp. v. Lewis (the 7th Circuit opinion that caused the circuit split), and Ernst & Young LLP v. Morris—all three cases received significant attention when their opinions were issued. Whatever the outcome, the case will be a landmark case for employment law.

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ABA JLEL Call for Papers

The ABA Journal of Labor & Employment Law now welcomes submission of manuscripts for possible publication in Volume 33 of the Journal for 2017-2018. The Journal, whose subscribers include the 20,000-plus members of the ABA Section of Labor & Employment Law, seeks articles of current practical interest to labor and employment attorneys written by attorneys, judges, government officials, and professors. Articles should not exceed forty pages with both text and footnotes double-spaced. Academics may submit manuscripts of immediate relevance to practicing attorneys derived from longer, previously-published articles if they are within this length limitation. Manuscripts should be submitted in Microsoft Word as an attachment to an e-mail sent to [email protected]. Inquiries to the Faculty Co-Editors, Stephen F. Befort and Laura J. Cooper, may also be sent to that e-mail address.

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Ware & Levinson on Arbitration Law

Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description:

The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine―from statutes, judicial decisions, and other sources―focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.

I haven't yet received a copy of the book, but know from reviewing the draft of the labor law chapter that it will be top-flight.

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Introducing the Equality Law Scholars’ Forum & Call for Proposals

In the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) introduce the Equality Law Scholars’ Forum to be held this Fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select three to four relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 17, 2017 at Berkeley Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 14, 2017.

 Full drafts must be available for circulation to participants by October 27, 2017.

Proposals should be submitted to:

Tristin Green, USF School of Law, [email protected].  Electronic submissions via email are preferred.

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New Center for Contemporary Labour Law (CCLL) Established in Tbilisi

The Center for Contemporary Labour Law (CCLL) is a new labor-focused Center directed by Professor Giorgi Amiranashvili of Tbilisi State University in Tbilisi, Georgia. The goals of CCLL include (1) educational and scientific research activities, (2) dialogue & collaboration with all actors in the labor field, (3) consultative activities, and (4) collaboration with foreign experts and institutions.

Founding members include Prof. Amiranashvili, Prof. Dr. Andrea Borroni (Italy); Assoc. Prof. Dr. Vakhtang Zaalishvili (Georgia); Ph.D. Candidate Tornike Kapanadze (Georgia). Other members include Assoc. Prof. Dr. Elena Sychenko (Russian Federation); Prof. Dr. Francesco Bacchini (Italy); Prof. Dr. Roberta Caragnano (Italy); Dr. Marco Seghesio (Italy); Assoc. Prof. Dr. Nicos Trimikliniotis (Cyprus); Prof. Rick Bales (U.S.).

 

CCLL has hosted several lectures at Tbilisi State, including:

• Prof. Dr. Andrea Borroni & Prof. Dr. Francesco Bacchini on “The position of Labour law in the private law system”.
• Assoc. Prof. Dr. Elena Sychenko was held at Ivane Javakhishvili Tbilisi State University on “The European Convention on Human Rights as a Source of Labour Law”.
• Mr. Kari Tapiola, Special Advisor to the Director General of the International Labour Organization, on “The Role of International Labour Standards in strengthening Social Justice and Economic Efficiency”.

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Bisom-Rapp & Coiquaud on the Role of Government in the Precarious Economy

Friends of the blog Susan Bisom-Rapp (Thomas Jefferson) and Urwana Coiquaud (HEC Montreal) have posted their latest paper on SSRN. This comparative law collaboration, examining the actions of the state in undermining the standard employment relationship and increasing nonstandard work, is called The Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States. Here is the abstract:

In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone.

Susan and Urwana note that their analysis is both descriptive, in that it reveals the government’s complicity in the rise of employment insecurity, and normative, because it provides a mechanism for applauding or indicting the actions of the state in the face of changing work relations in the 21st century.

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Gely Receives NAA Petersen Award

Congratulations to Rafael Gely (Missouri-Columbia),  who just received the David Petersen Award from the National Academy of Arbitrators.  In addition to all his labor/employment work, Rafael directs Missouri-Columbia's Center for the Study of Dispute Resolution.  He also is the founder of Workplace Prof Blog -- he created the blog and then handed it off to me way back when he was at Cincinnati. Here’s the announcement of the award, which is extremely well deserved:

The National Academy of Arbitrators conferred upon Rafael Gely the David Petersen Award at its annual meeting in Chicago, Illinois. The David Petersen Award recognizes and honors individuals who have given invaluable service to the Academy.

The Academy conferred the Petersen Award because of Professor Gely’s instrumental role in the startup and continual maintenance of arbitrationinfo.com, the neutral website which is a joint venture of the National Academy of Arbitrators and the University of Missouri School of Law.  Through Professor Gely’s work as an editor of the site, he has written content on a regular basis, designed and updated the site, supervised student assistants, and crucially connected with journals both before and after articles are written.  The Academy notes the creation of the website provided a source of information and education regarding arbitration for journalists, professionals, and the public. The Academy believes that the website has immeasurably improved the discourse and understanding of labor and employment arbitration in both United States and Canada.

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