Wednesday, April 28, 2021

D.C. Circuit Judges Urge Full Circuit to Consider Lateral Transfer/Adverse Action

I am catching up on reading cases and want to highlight a concurring opinion in Chambers v. D.C., 988 F.3d 497, 502 (D.C. Cir. 2021). The case holds that lateral transfer decisions are not adverse actions for purposes of Title VII. However, two judges argue in a concurring opinion that this outcome is only driven by current circuit precedent and that this circuit precedent is incorrect for a number of reasons.

The concurring opinion argues that the adverse action doctrine is inconsistent with the text of Title VII because Title VII's text does not contain an adverse action limit. In addition, the concurring opinion argues that making lateral transfer decisions based on race or other protected traits is inconsistent with the purposes of Title VII.

A link to the opinion is available here

-- Sandra Sperino

April 28, 2021 | Permalink | Comments (0)

Tuesday, April 27, 2021

New Eleventh Circuit Case on ADEA Federal Sector Framework

The Eleventh Circuit issued an opinion earlier this month holding that neither McDonnell Douglas nor the Eleventh Circuit's convincing mosaic test apply in federal sector ADEA cases. The Court held that because those tests require a showing of “but for” cause, those tests set too high of a burden for the federal sector provision of the ADEA (which does not require "but for" cause). Instead, the Court held that a plaintiff can prevail by showing that age or protected activity played any part in the way a decision was made. The case is Durr v. Sec'y, Dep't of Veterans Affs., No. 19-13153, 2021 WL 1291135, at *1 (11th Cir. Apr. 7, 2021).

-Sandra Sperino

April 27, 2021 | Permalink | Comments (0)

RIP Paul Tobias

TobiasMany thanks to Alvin Goldman (retired, U. Kentucky) for contributing this tribute to Paul Tobias:

Paul H. Tobias, a graduate of Harvard College (AB 1951) and Harvard Law School (LLB 1958) died early this year. He spent the majority of his long career representing individual employees. Paul was a founder and first Executive Director of the National Employment Lawyers Association, an employee rights organization that with its affiliates now has over 4000 members. Mr. Tobias authored 15 published articles and 3 book chapters in the field of labor and employment law, was an employee advisor for the American Law Institute’s Restatement of Employment Law, and a frequent speaker at bar and other programs examining employee rights.

Paul Tobias was perhaps best known as an innovative litigator who challenged the traditional American approach to dismissals and urged colleagues to battle against what he characterized as the “just cause conspiracy”. His efforts in this area prompted him to study and to urge others to study how other employment law systems do so much more to protect workers from unfair dismissal.

I initially met Paul when I was teaching at Northern Kentucky -- Paul's firm is across the river in Cincinnati. Such was his humility that I did not realize until later that I had met a giant in the field. He is sorely missed. The world is a better place because of him.

rb

April 27, 2021 | Permalink | Comments (3)

Tuesday, April 13, 2021

Can you Invest Your 401k in Bitcoin?

ZEdward Zelinsky explains, in Is Bitcoin Prudent? Is Art Diversified?: Offering Alternative Investments to 401(k) Participants, 54 Connecticut L. Rev. ___ (forthcoming 2021). Here's the abstract:

Whether any category of alternative investments ought to be considered for the menus offered to 401(k) participants is a fact-intensive question.Central to this inquiry are ERISA’s legal tests of prudence, diversification and loyalty. These tests require such fact-driven inquiries as the acceptability of a particular category of investments to investors in general and to professional defined benefit trustees in particular and the trustee’s motivation for embracing such investments. Another important concern when making this inquiry is the financial unsophistication of many (perhaps most) 401(k) participants.

Real estate investment trusts (REITs) pass ERISA’s fiduciary tests because REITs now have a considerable track record amassed over six decades and have achieved broad acceptance, both among general investors and in the world of defined benefit pensions.In contrast, art funds, Bitcoin and other cryptocurrencies are today not prudent to offer to 401(k) participants in light of such investments’ novelty and the failure to date of defined benefit trustees to embrace such investments.

ESG funds are like art funds and Bitcoin, not objectively prudent under present circumstances and therefore not appropriate as a class for 401(k) investment menus. Hedge funds and private equity funds are closer to REITs in light of the widespread acceptance of these funds by defined benefit trustees.Consequently, as a class, such funds, if appropriately limited,qualify as prudent for 401(k) menus even if the trustee would not personally deploy his personal resources to such funds and even if some (perhaps many) such funds examined individually fail ERISA’s fiduciary standards.

These determinations may change over time with new factual circumstances, e.g., greater acceptance of a particular asset class by investors including professional defined benefit trustees as gatekeepers for the 401(k) universe; the emergence of robust markets which provide more experience with particular investment categories. But the approach is ultimately what counts as the norms of prudence, loyalty and diversification, applied to current facts, govern the construction of 401(k) investment menus.

rb

April 13, 2021 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Friday, April 9, 2021

Canadian Labor Arbitration Awards Related to Covid-19

CaI (Rick Bales) have just posted on SSRN my article (forthcoming PSU's Arbitration Law Review) Novel Issues in Canadian Labour Arbitration Related to COVID-19. Here's the backstory; the abstract is below:

Back story:

In late spring or early summer 2020, Penn State’s Arbitration Law Review asked me to write an article for their February 2022 symposium on arbitration & COVID-19. I happily agreed. I began in late 2020 by focusing on U.S. awards. However, publication of U.S. awards is fragmented among three for-profit legal publishers, and few established arbitrators submit their awards for publication. By contrast, by law all Canadian awards are submitted to the Provincial ministries of labor, and then they are published by CanLII, the database of Canadian law provided by the Canadian Legal Information Institute. Searching CanLII in January and February 2021 yielded far more COVID-related awards than all three American publishers combined.

Consequently, I started by looking at Canadian awards. American awards re now starting to trickle into the American databases. A follow-up article – which I am working on now – will survey American awards and comparatively analyze both the subjects and the outcomes of these awards as compared to the Canadian awards.

Abstract:

The COVID-19 pandemic of 2020-21 changed working conditions for millions of Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labour arbitration. This article surveys those labour arbitration awards.

rb

April 9, 2021 | Permalink | Comments (0)

DC LERA: Collaboration between Immigrant Worker Centers and Unions

Dc leraThanks once again to Tequila Brooks for sending word of DC LERA's program Labor’s New Kids on the Block: Collaboration between Immigrant Worker Centers and Unions. It will be online, April 21, 2021, 11:00-noon. Here's a brief description:

Join DC LERA for a conversation between Dr. Ben Kreider, Policy Consultant, and Discussant Carlos Jimenez of the AFL-CIO about immigrant worker centers, new forms of organizing, and collaboration between immigrant worker centers and unions. Dr. Kreider will be presenting his dissertation research on the subject.

rb

April 9, 2021 in Beltway Developments, Conferences & Colloquia, Union News, Wage & Hour | Permalink | Comments (0)

Wednesday, April 7, 2021

[Un]Vaccinated Workers in the Labor Market

VaccChris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:

Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:

We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.

***

rb

 

April 7, 2021 in Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor and Employment News, Labor Law, Workplace Safety, Workplace Trends | Permalink | Comments (1)

Tuesday, April 6, 2021

Third Annual Equality Law Scholars’ Forum

The Third Annual Equality Law Scholars’ Forum just posted a call for proposals. Here are the details from Professor Tristin Green:

Last year, we had to cancel our two-day, in-person Spring 2020 Equality Law Scholars’ Forum scheduled at the University of San Francisco Law School (we held a small feedback session virtually for several junior scholars in Fall 2020), but we’re back in full for Fall 2021! Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Fall 2021. We are planning for the even to be held in person at the Boston University School of Law.

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 five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. 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 Forum will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum. 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 12-13, 2021 at the Boston University School of Law.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 1, 2021.

Full drafts of papers must be available for circulation to participants by October 29, 2021.

Proposals should be submitted to: Tristin Green, University of San Francisco Law School, [email protected]. Electronic submissions via email are preferred.

-- Sandra Sperino 

April 6, 2021 | Permalink | Comments (0)

Friday, April 2, 2021

Green on Spatial Features and Discrimination

Blog readers will want to check out the latest article from Professor Tristin Green. I’ll See You at Work: Spatial Features and Discrimination will be published in UC Davis Law Review in fall 2021 and is available now on SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3811011

From the abstract:

We increasingly talk about HR practices and work cultures as mechanisms for discrimination in work with nary a thought given to one of the most obvious influences on our daily work lives: where we work. This article seeks to change that. In it, I delineate spatial features as a condition of discrimination in workplaces and develop an understanding of what spatial features might matter and why. Drawing together some seemingly disparate lines of research and literature—from social psychology and sociology to geographies and urban planning—I theorize three specific spatial feature categories: insularity, precarity, and permeability. Each of these categories is about place as it affects our interactions and our expectations around interactions in our work.

The Article also examines the law’s current stance toward spatial features, segregation, and discrimination. It turns out that we are at an important crossroad: Where once spatial segregation was an obvious form of discrimination, today courts are backpedaling. Segregation is downplayed as evidence of discrimination, and spatial features are often either ignored entirely or siphoned off into individualized allegations, where they are treated as passing, innocuous moments of subjective experience rather than as organization-driven causal contributors to systemic discrimination. I urge us to put work “place” on our research and advocacy agendas and to consider spatial features and segregation as casual mechanisms for discrimination in legal cases as well. I make several specific recommendations to this end.

-- Sandra Sperino

April 2, 2021 | Permalink | Comments (0)

Petition for New AALS Section on Law Profs with Disabilities & Allies

LogoNicole Porter (Toledo) sends this letter from Katie Eyer (Rutgers):

As many of you know, for the past two years, we have been moving toward launching a proposed AALS Section on Law Professors with Disabilities and Allies. I am pleased to announce that we are at the stage of having a petition and bylaws drafted, and can now collect signatures for provisional recognition. We need 50 signatures from 25 institutions in order to obtain provisional recognition, but we are hoping to obtain more to demonstrate to AALS the strong support for the proposed Section. (A note: under AALS rules, these signatures must be from full-time faculty or professional staff).

Please sign this form to support the recognition of the Section on Law Professors with Disabilities and Allies by AALS. You can email the form to me at [email protected]. Electronic signatures are acceptable. Anyone who signs will automatically be added as members to the new section and added to the Section listserv. I’d love to get enough signatures to submit to AALS by Wednesday April 14. But even if you are digging through your email later and still want to support the proposed Section, please send along your form even after that deadline. Please also feel free to forward this message on to your own faculties or other groups that may have interested members.

We are still awaiting final word from AALS on whether we will be able to have programming at the 2022 Meeting, but are hoping to be able to do so. We have already identified an awardee that we are hoping to honor (more on that soon once we know for sure if we can honor her this year), and are hoping to launch with a program titled “The Forgotten Demographic: Law Professors With Disabilities in Legal Academia.”

This has definitely been a group effort to get this launched. Many thanks to all of those involved in moving it forward, including our inaugural leadership (in addition to myself: Megan Wright, Chair-Elect; Stacey Tovino, Secretary; and our Executive Committee, Katherine Macfarlane, Pamela Foohey and Nicole Buonocore Porter). Kat Macfarlane deserves particular credit as the person who really nurtured this idea in its early stages and kept it moving forward. Thank you also to the others who have already expressed an interest in joining the leadership moving forward (and if you have not yet expressed such an interest, but are interested, please let me know, since we are keeping track of these names!)

Apologies for those of you who have received this message (or a version of it) on multiple lists. Please don’t hesitate to reach out to me if you have any questions, and I look forward to hearing from many of you!

All my best,
Katie

rb

April 2, 2021 in Disability, Teaching | Permalink | Comments (1)