Tuesday, May 26, 2020
Chris O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (forthcoming 12 William & Mary Business Law Review ___) Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act. Here's the abstract:
This article outlines the current state of the law regarding conduct that, while otherwise protected by Section 7 of the National Labor Relations Act, nonetheless involves workplace profanity or offensive speech that potentially violates employer civility rules and equal employment opportunity laws, whether at work, on social media, or on a picket line. The paper considers recent appellate court and National Labor Relations Board (NLRB) decisions on this important issue, highlighting the NLRB’s own reconsideration of its standards as announced in its call for amicus briefs in the General Motors case, September 2019. The author recommends a solution that balances the important public policies underlying both the National Labor Relations Act and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of respect and consideration for others.
This is a great topic and I'm very much looking forward to reading the article.
Monday, May 25, 2020
Desiree LeClercq (formerly Director for Labor Affairs at the Office of the United States Trade Representative; currently en route to Ithaca NY to teach at the Cornell ILR School) writes to tell us:
LERA has been hosting a series of webinars free to members and non-members that examine various labor elements of the COVID pandemic. This Thursday, May 28, from 10-11am, I will be moderating a panel on ""Global Governance During Pandemic: Implications of Force Majeure and National Emergency for Worker Rights Protections." Panelists will include representatives from the ILO, the World Bank, the World Maritime University, Solidarity Center, and Sustainable Enterprises. In case of interest, the link to register and receive the Zoom link may be accessed at: https://lera.memberclicks.net/lera-webinar-series--ler-during-covid-19.
This looks like a terrific program!
Dear labor and employment scholars,
We're writing to see if you'd be interested in writing a short essay on any COVID-related work law issue as part of an open-source web-based book.
The COVID-19 pandemic has raised many complex work-law issues that matter a lot to thousands of people in the US right now. As a result, we're hoping to develop a virtual “book” of short essays on COVID-19 work law issues for an audience of sophisticated lay readers. Because this "book" would be completely web-based, it'll be easy to revise and update the book's content quickly as the pandemic (and the response to it) unfolds. And anyone with an Internet connection can read it. We will set up the essays in such a way that contributors can cite to essays if desired.
Moreover, while some NGOs, law firms, and the press have been discussing COVID-19 work law issues online, that has been largely piecemeal. We believe that work-law scholars, working together, can add value by putting these issues in proper context (and in one place) in a way that would really make a difference. Whether it’s informing workers of their rights, assisting workers in obtaining the benefits they’re entitled to, or informing employers’ attempts to comply with increasingly complex and fast-changing regulations, this is a project that can have a meaningful impact.
If you are interested, feel free to consider or add to this incomplete list of topic areas:
- Safety & Health
- Unemployment Insurance Benefits
- Workers’ Compensation
- Leave Rights
- Labor Rights
- Retaliatory filings
- Immigrant Worker issues
These and other COVID-19 work law topics are broad and have both state and federal components, so there will be room for multiple essays in the same general area (for instance, different state unemployment systems, or case studies of particular laws as applied). If you are interested, please contact one or both of us (Jeff Hirsch: email@example.com; Sachin Pandya: firstname.lastname@example.org) and let us know.
Jeff Hirsch & Sachin Pandya
Wednesday, May 20, 2020
Professor Shirley Lin has a guest column in Jurist on this term's SCOTUS cases and their intersection with causation standards. You can find Professor Lin's guest column here:
Tuesday, May 19, 2020
While we wait for the SCOTUS opinion in Harris, Zarda, and Bostock, Naomi Schoenbaum has just posted her latest article, The New Law of Gender Nonconformity (forthcoming in the Minnesota Law Review). Her article critiques overreliance on stereotyping theory to adjudicate transgender discrimination claims.
The Article is available here https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=3546552.
Monday, May 11, 2020
A new journal created by some great Carolina Law students and the UNC Center for Civil Rights is now seeking submissions:
The North Carolina Civil Rights Law Review, a student-run journal at the University of North Carolina School of Law, is now accepting submissions for its inaugural volume. We invite legal scholarship on all variety of civil rights topics.
Priority Review: Submissions received before midnight on July 31, 2020, will receive priority review for publication. Offers will be extended on a rolling basis throughout the summer priority period. Earlier submissions are encouraged.
Standard Review: Submissions received after the priority period will be reviewed on a rolling basis. The editorial board reserves the ability to suspend this standard submissions period at any time after August 1, 2020, in order to best serve the needs of the journal and its staff.
About the Journal: The North Carolina Civil Rights Law Review is a newly formed journal at the University of North Carolina School of Law. It operates in collaboration with the UNC Center for Civil Rights and integrates the long-running annual Conference on Race, Class, Gender, and Ethnicity as its yearly symposium. The journal aims to publish innovative, important scholarship on current issues in civil rights law, with the goal of protecting and advancing individuals’ actual lived experience of civil rights, liberty, and equality today. Topics of general civil rights interest are welcome. Particular consideration will be given to topics related to law and conditions affecting North Carolina and the Mid-Atlantic and Southeastern United States.
Please submit your article along with a short cover letter and current CV or resume to Rachel Grossman, Editor-in-Chief, at email@example.com. Footnotes should comply with The Bluebook: A Uniform System of Citation (20th ed. 2015).
Today the Supreme Court heard oral argument in a ministerial exception case: Our Lady of Guadalupe School v. Morrissey-Berru. For those who did not catch the live audio feed this morning, the audio is available here: https://www.supremecourt.gov/oral_arguments/audio/2019/19-267
- Sandra Sperino
Professor Leora Eisenstadt had an op-ed in the Chicago Tribune last week discussing how the pandemic has shown that working from home is a realistic option for many employees. She discusses how this might impact disability accommodation requests in the future. The op-ed is available here:
Friday, May 8, 2020
The EEOC has created a new landing page for its COVID response. The EEOC is continuously updating and changing its guidance as the pandemic continues with the last guidance updated yesterday. Here is a summary from the EEOC of the materials available:
- The EEOC's Office of Federal Operations (OFO) issued instructions regarding the processing of federal sector EEO complaints covered by 29 CFR Part 1614. We do not intend this guidance to require any task that would increase risks to the health or safety of federal employees.
- EEOC Chair Janet Dhillon issued a statement about unlawful national origin and race discrimination against Asian Americans and people of Asian descent in the workplace during the pandemic.
- The EEOC posted information to inform the public we are continuing to enforce the nation's employment non-discrimination laws while ensuring that all of our activities are consistent with public health guidelines.
- The EEOC posted a short question and answer document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, last updated on May 7, 2020.
- The EEOC has provided guidance entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version] that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It was updated on March 19, 2020 to address examples and information regarding COVID-19; the new information appears in bold.
- To supplement these documents, the EEOC posted a pre-recorded webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The video can be seen on YouTube or in the video player below. A transcript of the webinar is also available.
The new landing page is here: https://www.eeoc.gov/coronavirus
Professor Deborah Widiss has posted her forthcoming article, Equalizing Parental Leave (to be published in the Minnesota L. Rev.). I highly recommend this Article. Professor Widiss argues that parental leave legislation in the United States often prioritizes treating mothers and fathers equally. In doing so, the legislation unintentionally disadvantages single-parent families. Those families as a family unit can access less leave than families with multiple parents. Professor Widiss writes:
"The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure — probably unintentionally — disadvantages single-parent families."
Professor Widiss draws on her comparative work to suggest a different way of approaching parental leave for single-parent families.
Here is a link to the article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587979
Wednesday, May 6, 2020
A group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:
We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.
Saturday, May 2, 2020
A special congratulations to prolific scholar and friend of blog Brad Areheart, who just posted his fascinating new piece on SSRN, Organizational Justice and Antidiscrimination, which was recently published in the Minnesota Law Review. From the abstract:
Organizational Justice and Antidiscrimination, 104 Minnesota Law Review 1921 (2020). Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice—a theory empirically grounded in behavioral science—provides novel guidance for how to proactively restructure workplace policies around the principles of fairness and equity. This Article further claims, based upon empirical evidence, that Organizational Justice can do the work of antidiscrimination by: (1) decreasing discrimination in the first place, (2) moderating the effects of discrimination, and (3) increasing internal reporting of harassment and discrimination. Finally, this Article provides insights for how to design policies that promote both actual justice and perceptions of justice in the workplace.
Brad’s work always makes substantive contributions to our field, and this article is another wonderful piece of scholarship. Definitely take a look if you have the time this spring or summer!