Thursday, August 31, 2017
Courtesy of Prawfsblawg, the following schools are in the market this year for faculty in the labor and employment law area. Feel free to add any schools in the comments section.
School: University of Alabama
Information in spreadsheet contained in post
School: Brooklyn Law School
Chairs: Minor Myers (entry levels); Alex Stein (laterals)
Committee Members: Bill Araiza, Julian Arato, Miriam Baer, Jocelyn
Simonson (entry levels); Dana Brakman Reiser, Christopher Beauchamp,
Robin Effron (laterals)
Subject Areas: securities regulation and corporate law; academic success;
and potentially civil procedure, constitutional law, labor law, antitrust, and
Communications: firstname.lastname@example.org; email@example.com
Number of positions: 2
Direct applications by email are welcome
School: University of Kansas School of Law
Chair: Lou Mulligan
Other Committee Members: Chris Drahozal, Laura Hines, Elizabeth Kronk-Warner
Subject Areas: We are particularly interested in evidence, but will consider other subject areas including: employment law, health law, real estate/commercial land use/housing law.
We are currently authorized to make one hire.
Applications should be made online at https://employment.ku.edu/academic/9594BR and should include cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.
The law school will participate in the AALS Recruitment Conference in D.C. November 2-4, 2017.
For further information, contact Professor Lou Mulligan, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS 66045-7608, 785-864-9219, firstname.lastname@example.org
School: University of Richmond School of Law
Chair: Jessica Erickson
Other Committee Members: Jim Gibson, Hank Chambers, Carol Brown, Andy Spalding, and Allison Tait
Subject areas: Our primary areas of interest are employment law and corporate & securities law. We are also open to candidates in other areas, including critical theory, torts, professional responsibility, property law, and civil procedure.
Packets: We are happy to receive individualized expressions of interest from candidates via email.
Communication: You can email email@example.com.
Positions available: We have three open positions, and we are focused primarily on entry-level or junior lateral candidates.
School: The Wharton School
Chair: William Laufer
Committee: Eric Orts, Diana Robertson, David Zaring
Subject Areas: From the announcement: Applicants must have a demonstrated research interest in an area of law relevant to the Wharton School’s business education and research missions. Examples of such fields include, without limitation, corporate law, employment and labor law, financial regulation, securities regulation, and global trade and investment law.
Communications: firstname.lastname@example.org, apply through https://facultyrecruiting.wharton.upenn.edu/ApplicationPage.aspx?form_id=30088
The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:
- Allows small employers to bargain directly with employees;
- Creates bigger bargaining units at a workplace;
- Increases severance pay;
- Lowers cap on wrongful dismissal awards;
- Lowers statute of limitations on wrongful dismissal claims; and
- Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.
I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.
In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.
Wednesday, August 30, 2017
In an interesting move, the current administration appears to be rescinding the new rule on pay transparency that was rolled out during the Obama administration. We had blogged about that new rule here. The rule was to require employers with 100 or more employees to report certain wage and demographic data to the EEOC. From Newsweek:
"The White House, with the backing of Ivanka Trump, will end an Obama-era policy that would have required business owners to document how much they pay their workers alongside their gender, race and ethnicity. . . The Trump administration is scrapping the scheme, which was due to come into force in the spring this year, on the basis that it will be a burden to employers."
It is not surprising to see this rule rescinded under the current administration, and we will continue to follow other changes as they arise.
Saturday, August 26, 2017
Friday, August 25, 2017
Congratulations to our friend Wendy Greene (visiting at Iowa), whose most recent "hair piece" has just been published by the Miami Law Review: Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions. From the abstract:
What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.
This article is a great addition to Wendy's prior work and the work of others on how cultural norms of white femininity burden Black women. Wendy's work, along with the work of several other scholars, had been cited by the Eleventh Circuit in the case in a discussion about whether cultural or behavioral aspects of identity ought to be part of what Title VII protects. I can't wait to read this.
Tuesday, August 22, 2017
"If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination — a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.
In doing so, the Article seeks to revive the importance of social science research on bias — research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII."
As many of you will recall, this article was selected as a winner of the 2017 Southeastern Association of Law Schools (SEALS) Call for Papers competition. Definitely take a look at this paper if you have the chance.
-- Joe Seiner
Thursday, August 17, 2017
Friend-of-Blog Caroline Mala Corbin (Miami) has just posted on SSRN a wonderful new article on the intersection of government employees and religion. From the Abstract of "Government Employee Religion":
"Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.
There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine.
Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other."
Congratulations to Caroline on this great piece, and I hope that you will all add it to your end-of-summer reading list!
Monday, August 14, 2017
Charlotte Alexander (Georgia State) and Liz Tippett (Oregon) have just posted on SSRN their article (forthcoming Missouri L. Rev.) The Hacking of Employment Law. Here's the abstract of this timely (pun intended!) article:
Employers can use software in ways that erode employment law, through noncompliance and avoidance. The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship. Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin. Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law. However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided. Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market. Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few. The result is a weakened employment law regime, where legal rules struggle to keep up with employers’ software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach. We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.
David Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist? The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.
Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But
[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.
That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.
Friday, August 11, 2017
This is a final notice about registration for the 12th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) to be held at Texas A&M University School of Law September 14-16, 2017. If you have not registered, please do so as soon as possible as the deadline for registration is August 16, 2017. Please go to the following website page to register and find additional information about the COSELL conference: http://law.tamu.edu/cosell or http://law.tamu.edu/faculty-staff/news-events/conferences-and-symposia/cosell.
Although we have reserved a block of hotel rooms at the Sheraton, that block is getting close to being full. And although we have listed a number of other hotels in the area, it is most convenient to be at the Sheraton, which is right next door to the law school where most activities will occur. Also, we are discovering that if you are trying to stay an extra day after the conference ends, with check-out on September 17th, even the Sheraton is no longer able to accommodate that request and a number of other hotels seem booked on the September 17th date as well.
Again, we suggest you register by the August 16 deadline and make your hotel reservations as soon as you can if you have not already done so. Once registration closes on August 16, we will put together the program based upon your submissions. As previously noted, there may be publication opportunities with the Texas A&M Law Review or the Employee Rights and Employment Policy Journal for some of the papers presented at the conference. We look forward to seeing you at the 12th Annual COSELL. Do not hesitate to contact me at email@example.com or 817-212-4140 if you have any questions.
Bill Hebert (Hunter College) and Joshua Freeman (Queens College and CUNY Graduate Center) appeared on New York Public Radio's Brian Lehrer Program on Wednesday to discuss New York's public sector collective bargaining law, which is celebrating its 50th anniversary on September 1, 1967. The segment is tied with a program that will be taking place at Hunter College's Roosevelt House Public Police Institute in Manhattan on September 26. The program is being co-sponsored by Roosevelt House, the National Center for the Study of Collective Bargaining in Higher Education and the Professions, and the Joseph S. Murphy Institute for Worker Education and Labor Labor Studies. Other participants in the Taylor Law program will be Marty Malin, Joe McCartin, Kim Philips-Fein and Marilyn Sneiderman.
Wednesday, August 9, 2017
Yesterday, Jeff posted on Google Engineer Files NLRB Complaint Regarding Post-Memo Termination. Today's Wall Street Journal quotes Susan Bisom-Rapp (TJSL) and Matt Bodie (SLU) extensively on the viability of the engineer's claims. Here's an excerpt:
Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore’s views, she could envision potential legal arguments he could make to invoke the NLRA.
That Mr. Damore’s letter doesn’t appear to be drafted in concert with other Google employees doesn’t in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.
Mr. Damore could try to argue that he’s “protected in expressing himself in an effort to engage in dialogue with co-workers about Google’s diversity efforts,” said Prof. Bisom-Rapp.
However, “an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough,” said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.
Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore’s formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.
Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing “special treatment for ’diversity’ candidates.” Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.
“You would have to show what Google is doing is illegal. That would be difficult,” said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.
The NLRB generally doesn’t impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.
The full WSJ article is available at Jacob Gershman & Sara Randazzo, Fired Engineer Likely to Face Obstacles in Challenging Google, WSJ 8/9/17.
Tuesday, August 8, 2017
This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.
Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.
All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.
Americans are less likely to be laid off than at any point in at least 50 years. For every 10,000 people in the workforce, 66 claimed new unemployment benefits in July, trending at the lowest point on record going back to 1967. The previous low point, 83 per 10,000, was touched in April 2000, at the height of a tech boom. Separate Labor Department data shows the rate of layoffs and other discharges as a share of total employment this year is at the lowest level on records back to 2000.
The steep fall in layoffs is mainly a result of a vastly improved labor market. It means Americans have more job security than they may realize less than a decade after dismissals spiked in the 2007-2009 recession. But other factors with more mixed implications are at play, including elevated levels of long-term unemployment, an aging workforce, a decline in manufacturing work and more risk-averse businesses, which also point to a less dynamic economy.
For the full story, see Eric Morath, You're Fired! No, Wait, Keep Working.
Wednesday, August 2, 2017
Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
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