Wednesday, July 29, 2020
Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy have published a piece through the Center for Progressive Reform on the need to provide a private right of action under OSHA. An excerpt from the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation's workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation.
The handling of the coronavirus pandemic is emblematic of several decades of choices by our national and state leaders that prioritize short-term profits ahead of people. At this very moment and in plain view, President Trump and his Occupational Safety and Health Administration (OSHA), conservatives in Congress, and many state leaders are failing to protect workers from the potentially fatal risks of COVID-19. Significantly, this increased burden is not equally shared by all. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, child care, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic. . . .
Agencies like OSHA should play a key role in setting policies that ensure health, safety, stability, and power for workers in addressing workplace hazards. But since 1970, Congress and the White House have hollowed out the agency, denying it resources and trimming its authority, leaving it in a weak state. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies. . . .
Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans. . . .
Check it out!
Friday, July 24, 2020
Ariana Levinson (Louisville) writes to remind us:
The 15th Annual Colloquium on Scholarship in Employment and Labor Law will be held virtually Friday, October 9 and Saturday, October 10. The registration deadline is Friday, July 31. Once we know the number of people participating we will be able to determine which platform or platforms will best permit us to have the number of “rooms” we need for presentations. At that point we will update the web page. In addition to the usual workshopping of papers, we have the following planned, and apologize our web page does not yet reflect this.
- A Friday lunch panel about human trafficking with those in Louisville working to combat the problem.
- A Friday evening reception with different Kentucky themed rooms that you can “stroll” through and mingle with others.
- A Thursday evening kick-off with a video series where professors share a teaching tip using a clip from American Factory
For the Thursday night video series, you can sign up to participate whether or not you are joining the rest of the conference. Use the registration selection for the American Factory screening. You simply come up with a clip that you would play to your class to illustrate a concept or for students to engage with to answer questions, or really any way you would suggest to another teacher to use the clip. We hope to have a couple of professors who teach different classes, Employment Law, Labor Law, Employment Discrimination, and others, each provide a video clip showing or explaining what portion of the video you would use and how. We will put the videos on YouTube as part of a COSELL project so that teachers could use them. The film directors, Julia and Steve, intended the movie to be used as a teaching tool. Anyone who has Netflix has the educational license to show the entire film or parts to their class. I hope many of you will volunteer!
Monday, July 13, 2020
Congratulations to Michael Green, who announced today that he is leaving Fort Worth in fall 2021 to join the faculty at Chicago-Kent. At Chicago-Kent he will work with Marty Malin over the next year as Marty phases into a well-deserved retirement. When Marty retires, Michael will step into some really large shoes and become Director of the Institute for Law and the Workplace. Congratulations to all, and most especially to Chicago-Kent on a fantastic hire.
Thursday, July 9, 2020
Mark Gough (Penn St. School of Labor & Employment Relations) has posted on the ILR Review website his article A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation, Industrial & Labor Relations Rev. (forthcoming 2020). Rather than just posting his abstract, I'll post instead a summary I asked Mark to draft for me, which helps situate this empirical work among other empirical work on similar topics:
Most of the empirical literature comparing outcomes between forums uses relatively crude descriptive statistics to show stark differences in employee win rates and monetary award amounts within the populations cases disposed of in arbitration and litigation. Indeed, scholars have provided robust evidence on the resolution of employment disputes within individual forums such as:
- The American Arbitration Association (AAA) – see, e.g., Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Studies 1 (2011); Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 McGeorge L. Rev. 223 (1998).
- The Financial Industry Regulatory Authority (FINRA) – see, e.g., J. Ryan Lamare & David B. Lipsky, Employment Arbitration in the Securities Industry: Lessons Drawn from Recent Empirical Research, 35 Berkeley J. Employ. & Labor L. 113 (2014); J. R. Lamare, & D. B. Lipsky, Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry, Industrial & Labor Relations Rev. (2018).
- Federal court – see, e.g., Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Studies 429 (2004).
- State court – see, e.g., Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, 58 Dispute Resolution J. 44 (2003).
These studies often are used to support the perceptions of arbitration as an employee-unfriendly forum. See, e.g., Mark Gough, How Do Organizational Environments and Mandatory Arbitration Shape Employment Case Selection? Evidence From an Experimental Vignette, 57 Industrial Relations 541 (2018); Mark Gough, Employment Lawyers and Mandatory Employment Arbitration: Facilitating or Forestalling Access to Justice, 16 Advances in Industrial Relations 133 (2016). And while informative, a limitation of this literature is it provides minimal controls to account for systematic variation between forums. It is clear that the average monetary award and employee success rates at trial are lower in arbitration than litigation, but are employee claimants genuinely at a disadvantage in arbitration? Or does systematic variation exist within the underlying merits of cases, presence or quality of counsel, party resources, or other case characteristics which account for differences in outcomes between arbitration and litigation? In short, one must be careful to compare “apples to apples” when drawing evaluative conclusions about arbitration’s effect(s) on access to justice.
In a 2020 empirical study, Mark Gough attempts such apples-to-apples comparisons by surveying 1,256 employment plaintiff attorneys about their most recent cases adjudicated in arbitration, state court, or federal court. Even while accounting for claim, plaintiff, defendant, and attorney characteristics, Gough finds employment discrimination plaintiffs in arbitration are less likely to receive a judgment in their favor and smaller awards compared to similar cases disposed in state and federal court. Specifically, he reports, “compared to arbitration, employees' odds of winning increase by 70.7 percent in a federal jury trial, 183.7 percent in a state judge-only bench trial, and 146.0 percent in a state jury trial…[and] relative to arbitration, monetary damages awarded to success
Lance Compa, Senior Lecturer, Cornell ILR, sends this invitation to participate in a presentation and panel discussion of a new arbitration template for stakeholder-brand agreements in the global supply chain. If you want to ensure that the food you eat, and clothes and products you buy, are made with fair labor, you will want to sign up for this.
A new proposal aims to provide a streamlined and cost-effective dispute resolution system that “puts the enforcement” into enforceable brand agreements between labor advocates and global firms.
Drawing on their experience under the Bangladesh Accord and similar labor standards agreements, four prominent labor rights advocacy groups – International Labor Rights Forum, Worker Rights Consortium, Clean Clothes Campaign and Global Labor Justice – unveiled in June 2020 model arbitration clauses for disputes.
Join us on Friday 17 July from 11 a.m. to noon EST for a live presentation from drafters of the proposal--Katerina Yiannibas of Columbia Law School, Lance Compa of Cornell University ILR School and Ben Hensler of the Worker Rights Consortium--plus a panel discussion on its uses in apparel, food and other sectors.
The New Conversations Project is organizing this event as part of the Cornell ILR School’s Scheinman Institute on Conflict Resolution.
We hope you’ll join us on 17 July. Remember to register here.
Wednesday, July 1, 2020
Edward Zelinsky (Cardozo) has posted on SSRN CalSavers and ERISA Redux: The District Court’s Second Opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program, New York University Review of Employee Benefits and Executive Compensation, David Pratt (ed.) (2020). Here's the abstract:
On March 10, 2020, the U.S. District Court for the Eastern District of California (Morrison C. England, Jr., J.) issued its second substantive opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program.Confirming its initial decision, the district court again held that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt the statute creating the California Secure Choice Retirement Savings Program (CalSavers).
This second opinion is important for two reasons. First, it confirms that ERISA does not preempt California’s retirement savings program for the private sector. Taken together, the district court’s opinions about CalSavers provide a roadmap of the ERISA status, not just of CalSavers, but also of other states’ similar retirement security programs. ERISA does not preempt these government-operated programs.
Second, the district court decisions exemplify ERISA’s relatively limited preemptive effect in the wake of the Supreme Court’s decision in Gobeille v. Liberty Mutual Insurance Co. This restricted interpretation of ERISA preemption contrasts with the broader understanding which the Supreme Court first embraced. The district court was right to reject the plea that it return to that original, more expansive approach to ERISA preemption.