Thursday, February 24, 2022
Employment law scholars and practitioners might be interested in this new article by Professor David Horton, Forced Remote Arbitration. Here is the abstract:
Courts responded to COVID-19 by going remote. In early 2020, as lockdown orders swept through the country, virtual hearings—which once were rare—became common. This shift generated fierce debate about how video trials differ from in-person proceedings. Now, though, most courts have reopened, and the future of remote trials is unclear.
However, the pandemic also prompted a sea change in alternative dispute resolution. Arbitration providers pivoted away from in-person adjudication and heard cases online. Yet unlike virtual trials, which coexist uneasily with norms in the court system, remote hearings fit snugly within arbitration’s tradition of procedural and evidentiary informality. Thus, while virtual trials may prove to be temporary, virtual arbitration is gaining steam. Online-only arbitration startups have emerged, established providers are marketing their virtual options, and firms are mandating that plaintiffs resolve disputes without setting foot in the same room as the decision-maker. This trend threatens to make the controversial topic of forced arbitration even more fraught. Nevertheless, we do not know how remote procedures impact win rates, case length, and arbitration fees.
This Article shines light on these issues by conducting an empirical study of forced remote arbitration. It analyzes 70,150 recent filings and reaches three main conclusions. First, since July 2020, roughly 67% of all evidentiary hearings have been held virtually. Even though this figure will likely decline as the pandemic re-cedes, online arbitration has become entrenched. Second, plaintiffs who participate in virtual proceedings generally win less often and recover lower damage awards than individuals who arbitrate in person. This “remote penalty” exists in some set-tings even after controlling for variables such as claim type, pro se status, and the experience of the defendant, the lawyers, and the arbitrators. Third, even though proponents of forced remote arbitration contend that it streamlines cases, the data only partially support this claim. Some remote modes, such as documents-only proceedings, seem to save time and money, while others, like video hearings, do not. Finally, the Article explains how its findings can help lawmakers and judges regulate and monitor forced remote arbitration.
The article is available on SSRN.
-- Sandra Sperino
Wednesday, February 23, 2022
The McDonnell Douglas test is one framework that courts use to analyze discrimination cases. The Supreme Court enunciated the test in 1973, and even though the Court has decided several cases to clarify the test, confusion remains. Two recent articles explore the tension between McDonnell Douglas and how the Supreme Court discussed causation in the Bostock opinion. One way of looking at McDonnell Douglas is that it helpfully avoids the specific factual cause inquiry in favor of a sometimes looser, less-defined causal inquiry. However, it may also unhelpfully limit how the courts view causation and discrimination.
Professor Deb Widiss takes the latter view in her excellent new article, Proving Discrimination by the Text, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921, and Noelle Wyman's student note argues that Bostock signals the end of McDonnell Douglas in Because of Bostock, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913277.
Monday, February 21, 2022
Thanks once again to Tequila Brooks for sending word of Enforcing Global Labor Rights in 2022: M-POWER and Other Tools (Virtual Meeting). The program will be Wednesday, February 23, 2022 12 pm ET. Speaking will be Thea Lee, Deputy Undersecretary for International Affairs of the U.S. Department of Labor, and the moderator will be DC LERA Board Member Jeff Wheeler. It's free; register here.
Tuesday, February 15, 2022
Dean Anita Krug from Chicago-Kent has just announced the official renaming of the Martin H. Malin Institute for Law and the Workplace. Anyone in the labor law field is well aware that a more fitting name and tribute could not be had. Indeed, as evidence of the widespread appreciation that Marty earned over his career, the institute successfully raised over $1 million in his honor. Congratulations Marty, well deserved!
Below is the full announcement from Dean Krug, including an invitation for a "virtual toast" on March 10:
I am pleased to announce the official renaming of the Martin H. Malin Institute for Law and the Workplace for founding director Martin "Marty" Malin at Chicago-Kent College of Law. Since 1996, the ILW has been a leader in research, training, dialogue, and reflection on the law that governs the workplace, and was named the nation's top program in employment law by preLaw Magazine. Now the Malin Institute for Law and the Workplace will continue that work. We plan to mark this significant moment in our history on March 10, 2022 at 6 pm for a virtual toast where you can hear from Marty, and we can celebrate this successful history together. For more information and to register, please visit here.
Marty and all of us at Chicago-Kent are grateful for the support from our community in developing ILW from an innovative idea to its current status as a leader in the workplace law community. With gifts and pledges from community members, we created an endowment in Marty's honor that will support the Institute in perpetuity. I'm pleased to share with you that the endowment commitments now exceed $1 million. We could not have attained this milestone without the labor and employment law community’s commitment to the ILW’s mission. There is still much work to do, however, and if you haven't done so already, I invite you to join other members of the community in making a gift or pledge to support the Martin H. Malin Institute for Law and the Workplace. Your gift will help us continue to be the go-to law school for aspiring labor and employment lawyers and to continue our mission of serving the current labor and employment law community and the next generation of workplace law attorneys. You can contribute online here. If you would prefer to send a check or consider other ways to give, please contact our Assistant Dean of Advancement, Chrissy Brown, at [email protected] or by phone at (312) 906-5236.
Congratulations to Marty and to everyone who supported this significant achievement. I can't wait to see what the Martin H. Malin Institute for Law and the Workplace will accomplish. I hope you can join us for the virtual toast to celebrate this successful campaign!
Saturday, February 5, 2022
The International Studies Committee of the National Academy of Arbitrators (NAA) has announced a groundbreaking international seminar on Labour Rights and Remedies under Globalization-Implementing the United Nations’ Protect, Respect and Remedy Framework, to held in Toronto on Wednesday May 11, 2022.
Topics will include: Trade and Labour Arbitration; The USMCA Rapid Response Arbitration (the United States-Mexico-Canada Agreement, the “new NAFTA”); enforcement of the United Nations’ Guiding Principles on Business and Human Rights; Enforceable International Brand Agreements; and Domestic Litigation of International Workplace Disputes.
This exciting seminar is being held as part of the Annual NAA Conference held May 11-14, 2022. There is no additional cost to attend this international labor seminar for those attending the NAA conference. It is possible to attend only the international labor seminar at a reduced fee. The student registration for the international seminar is $100.
The NAA conference itself will draw speakers from labour, management, government and international organizations around the world to discuss dispute resolution and the growth in stronger and enforceable international labour standards. Sessions will focus on the developing role of labour arbitrators, including NAA members, in adjudicating disputes over these standards.
The NAA conference will be held at the Fairmont Royal Hotel in Toronto.
From Northeastern University comes word of a conference on April 8, 2022, celebrating the vision and advocacy of labor law scholar Karl Klare.
The conference will be in-person with a live stream for a virtual audience. The four conference panels are titled “Transformative Constitutionalism”, “Unions and Workers (Solidarity Forever)”, “The Law School Classroom (Teaching as a Tool of Progress)”, and “Critical Legal Studies (Why Karl Starts with K)”. For details, including the extraordinary list of speakers and how to register, see here.
Friday, February 4, 2022
Lisa Bernt's article on workplace transparency may be of interest to readers. The article is Workplace Transparency Beyond Disclosure: What’s Blocking the View?, 105 Marquette Law Review 73 (2021). Here is the abstract.
Recent developments have exacerbated informational asymmetry between employers and workers. Employers increasingly use “black box” automated decision systems, such as machine learning processes where algorithms are used in recruitment and hiring. They have technological tools that enable intense monitoring of workers. Contemporary work relationships have changed, with trends toward remote and scattered worksites. Employees are more frequently bound by nondisclosure agreements, non-disparagement provisions, and mandatory arbitration agreements. These developments have made it more difficult for workers to communicate with each other and to act collectively. The result is that workers are kept in the dark when it comes to much of an employer’s decision-making. How might an employee know, for example, if she is being paid less than her male coworkers if she is being closely watched and is afraid of speaking? How might someone turned down for a job know whether the hiring process was discriminatory? We need to look beyond disclosure mandates, take a closer look at channels of communication in today’s workplaces, and consider the vantage point of workers. Developing effective transparency measures requires greater attention to the sightlines of workers who cannot get information they need to spot, articulate, and prove violations of workplace protections.
The article is available on SSRN here.