Wednesday, January 27, 2021
Nicole Porter (Toledo) has just posted on SSRN her article #MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn. Here's the abstract:
The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?
Friday, January 22, 2021
President Biden has named Commissioner Charlotte Burrows as the Chair of the Equal Employment Opportunity Commission and Commissioner Joceyln Samuels as Vice Chair.
From the EEOC:
Burrows has served as an EEOC Commissioner since 2015, having been initially nominated by President Barack Obama. In 2019 she was re-nominated and unanimously confirmed for a second term ending in 2023. . . .
Chair Burrows' government experience includes service as Associate Deputy Attorney General at the U.S. Department of Justice, where she worked on a broad range of civil and criminal matters, including employment litigation, voting rights, combating racial profiling, and implementing the Violence Against Women Act, which was first co-sponsored in Congress in 1994 by then-Senator Biden, and reauthorized several times since. Before joining the Department of Justice, she served as General Counsel for Civil and Constitutional Rights to former Senator Edward M. Kennedy on the Senate Judiciary Committee and later on the Senate Committee on Health, Education, Labor and Pensions.
Vice Chair Jocelyn Samuels joined the EEOC as a Commissioner on Oct. 14, 2020. . . .
Immediately prior to joining the Commission, Vice Chair Samuels served as the Executive Director and Roberta A. Conroy Scholar of Law at the Williams Institute of the UCLA School of Law, focusing on legal strategies to attain equality for sexual and gender minorities. During the Obama Administration, she was the Director of the Office for Civil Rights at the U.S. Department of Health & Human Services, where she oversaw civil rights enforcement with respect to hospitals, health care providers, insurers, and human services agencies, and served as a political appointee at the Department of Justice, including as the Acting Assistant Attorney General for Civil Rights.
-- Sandra Sperino
Wednesday, January 20, 2021
The International Lawyers Assisting Workers (ILAW) Network has just published the inaugural issue of a new law journal – the Global Labour Rights Reporter. The journal is a forum primarily for labour and employment law practitioners globally, including ILAW Network members, to grapple with the legal and practical issues that directly affect workers and their organizations today. It takes a comparative approach, reflecting the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. The journal will be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues.
- WORKER-ENFORCEABLE SUPPLIER CODES OF CONDUCT AS A TOOL FOR ACCESS TO JUSTICE
IN GLOBAL SUPPLY CHAINS, by BETTINA BRAUN, AVERY KELLY & CHARITY RYERSON
- ACCESS TO JUSTICE IN LABOUR RELATIONS IN GEORGIA, by RAISA LIPARTELIANI & TAMAR GABISONIA
- ACCESS TO LABOUR JUSTICE AND PROCEDURAL BARRIERS IN COMMENCEMENT OF PROCEEDINGS: A PARADIGM SHIFT IN ZIMBABWEAN COURT PRACTICE OR A JUDICIAL MIRAGE?, by MUNYARADZI GWISAI
- EFFECTIVE JUDICIAL PROTECTION AND THE RIGHTS OF WORKING PEOPLE UNDER COVID-19: A VIEW FROM COLLECTIVE LAW, by MIGUEL ANGEL GARRIDO PALACIOS
- THE RIGHT TO FAIR AND SATISFACTORY WORKING CONDITIONS: RISK PREVENTION AND ACCESS TO JUSTICE, by MARÍA PAULA LOZANO & MATÍAS CREMONTE
- AUSTRALIA’S UNIQUE AWARD SYSTEM HAS BEEN TESTED BY THE COVID-19 PANDEMIC: IT HAS BEEN SHOWN TO BE READILY ADAPTABLE TO PROTECT EMPLOYER INTERESTS BUT LESS EFFECTIVE AT PROACTIVELY PROTECTING EMPLOYEES, by TREVOR CLARKE
- COVID-19 & NEOLIBERALISM: IMPACTS ON LABOUR JUSTICE IN BRAZIL, by PEDRO DANIEL BLANCO ALVES & MAXIMILIANO NAGL GARCEZ
- THE COVID-19 PANDEMIC AND THE WHISTLE-BLOWER PROTECTION IN POLAND, by ŁUCJA KOBROŃ-GĄSIOROWSKA
- LABOUR INSPECTION: MORE THAN AN EXERCISE IN ETHICS, by SAMANTHA RAMSAY & BERYL TER HAAR
Thursday, January 14, 2021
Tammy Katsabian (postdoc, Harvard Labor & Worklife Program) has just posted on SSRN her article The Rule of Technology – How Technology Is Used to Disturb Basic Labor Law Protections (forthcoming 25 Lewis & Clark L. Rev. ___ (2021). [Americans should note: she uses "labor" broadly to include what we usually refer to as "employment" law.] Here's the abstract of this timely article:
Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This article aims to contribute to the current scholarship by zooming it out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. This is done by referring to legal, sociological, and internet scholarship on the matter.
The main argument elaborated throughout this article is that digital technology is used to blur and distort many of the basic labor law protections. Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.
By providing four detailed examples, the article unpacks how employers, giant high-tech companies, and society use various forms of technology to constantly disturb legal categories in the labor field regarding time, sphere, and relations. In this way, the article demonstrates how social media sites, information communication technologies, and artificial intelligence are used to blur the traditional concepts of privacy, working time and place, the employment contract, and community. This increased blurriness and fragility in labor have created many new difficulties that require new ways of thinking about regulation. Therefore, the article argues that both law and technology have to be modified to cope with the new challenges. Following this, the article proposes three possible ways in which to start considering the regulation of labor in the digital reality: (1) embrace flexibility as part of the legal order and use it as an interpretive tool and not just as an obstacle, (2) broaden the current legal protection and add a procedural layer to the legal rights at stake, and (3) use technology as part of the solution to the dilemmas that technology itself has emphasized. By doing so, this article seeks to enable more accurate thinking on law and regulation in the digital reality, particularly in the labor field, as well as in other fields and contexts.
Tuesday, January 12, 2021
DC LERA has another great international labor program. Christy Hoffman is the General Secretary of UNI Global Union, the global union federation for workers in services which represents 20 million members in 150 countries. She will be speaking January 19, 2021, 11:00 am - 12:00 pm. on the topic Remaking the World of Work for the Service Sector. Registration is free -- follow the instructions at this link.
Thanks to Tequila Brooks for sending this along.
Monday, January 11, 2021
The Cornell ILR School’s New Conversations Project and Sandra Polaski, Senior Research Scholar at Boston University’s Global Development Policy Center, will hold a live discussion on Tuesday, 19 January 2021 from 9 – 10:15 EST on the topic of Sandra's recent paper, How Trade Policy Failed U.S. Workers--and How to Fix It. Register here.
A group of scholars and practitioners will debate the paper’s proposed changes and their possible impacts for workers. Participants include:
- Sandra Polaski, Senior Research Scholar in the Global Economic Governance Initiative at Boston University, and member of the Independent Mexico Labor Expert Board.
- Desiree LeClercq, Proskauer Employment and Labor Law Assistant Professor at Cornell University's School of Industrial and Labor Relations.
- Carlos Salas, Visiting Professor of Economics at Universidad Autónoma Metropolitana (UNAM), Azcapotzalco, Mexico City.
- Olabisi Akinkugbe, Assistant Professor at the Schulich School of Law, Dalhousie University, Canada.
- Dave Welsh, Country Director of the AFL-CIO Solidarity Center in Thailand.
- Jason Judd (Moderator), Executive Director of Cornell University's New Conversations Project in the School of Industrial and Labor Relations.
Saturday, January 9, 2021
We are pleased to present the fi rst issue of the scientific-practical journal Contemporary Labour Law Review, – published by the Center for Contemporary Labour Law. The journal has been launched on 29 November 2019. The launch event, hosted by Tbilisi State University, was attended by the representatives of government and non-governmental sectors working in the field of labour law, judges, legal practitioners, academics and students. The number of attendees at the event and subsequent feedback indicates how great the public interest in the journal has been, which, in turn, obliges us to satisfy the interest of readers and give them the opportunity to read useful information on current and problematic issues of contemporary labour law. We hope that together we will face this important challenge.
Salome Uglava, Victimization as a Mechanism to Protect Employees from Discrimination
Salome Beridze, The Practice of the Supreme Court of Georgia on Labour Disputes (Court’s Explanations About Some
Lado Chanturia, Important Research in Civil Law - Review on the Book by Giorgi Amiranashvili
Andrea Borroni, The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century – A Review
Giorgi Amiranashvili, Review on the Monograph by Dr. Zakaria Shvelidze - “The Scope of Civil Claims in Labour Discrimination Disputes”
Here's a PDF of the new issue.
Tuesday, January 5, 2021
Michelle Travis (San Francisco) has posted on SSRN her article (forthcoming 64 Wash. U. J. L. & Pub. Pol'y ___ (2021)) A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility. Here's the abstract:
The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a “full-time face-time norm,” which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.
I think Michelle is exactly right: "with [57%] of U.S. employers now offering their employees flextime or remote work options as a result of [COVID], it is no longer tenable for courts to define work as something done only at a specified time and place." We can do better.
Monday, January 4, 2021
Thanks to Vincenzo Pietrogiovanni (Lund University - Aarhus University) for alerting us to the webinar "International Trade and Labour Law: the USMCA", organised by the Labour Law Community - LLC together with the International Society for Labour and Social Security Law - ISLSSL, which will be held on Zoom on Thursday 14 January 2021 h 6.00 pm CET. To participate, follow this link starting at the time of the webinar. Here's a description:
The USMCA, an agreement between the United States, Mexico and Canada that has replaced the NAFTA and the side agreement on labour (NAALC), represents an important advance on the path of the virtuous link between regulation of international trade and promotion of social rights. The new agreement, in fact, contains chapter no. 23 entirely dedicated to work: here the Parties go beyond the generic list of "principles" contained in the previous NAALC and expressly refer to the principles and conventions of the ILO, thus aiming for regulatory harmonisation between States through international labour law.
The opportunity to deepen the knowledge of this important Treaty with Janice Bellace and Lance Compa, distinguished scholars of labour law, appointed by the US government as members of the panel that has the task of sanctioning the non-compliant parties, is also a chance to reflect on the European economic and social model, as well as on the resumption of international trade relations in the Biden era, with the aim of relaunching the instrument of the social clause at a macro-regional but also at global multilateral level.