Workplace Prof Blog

Ohanesian on the Importance of Judicial Deference to the NLRB

Nick Ohanesian (ALJ; MSU adjunct) has just posted on SSRN his timely and important article Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board. Here's the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the what the world would look like without administrative deference and at the same time serve as a cautionary tale about how courts will behave when unrestrained. Labor law and the judicial treatment of labor unions provides a particularly vivid illustration in this regard. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. This article will show how the history of the Courts and Congress with respect to labor unions should support continuing administrative deference to the National Labor Relations Board.

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Ohanesian on Administrative Deference & the NLRB

Nicholas Ohanesian (ALJ, Social Security Administration) has just posted on SSRN his article Administrative Deference and the National Labor Relations Board: Survey and Analysis. Here's the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the impact of the existing deference apparatus upon the affected administrative agencies. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. What is mostly absent is an accounting of how deference is systematically applied to administrative agencies.

This article will examine how the existing deference regime is applied to the National Labor Relations Board. The NLRB is an interesting case study in the role of administrative deference in federal courts. It is a small agency in terms of its annual budget and the number of the employees. It is also an agency that originates in the New Deal and has a long history of litigation in federal courts, particularly before the United States Supreme Court. This article adds to the existing scholarship concerning the impact of deference on various agencies such as the Environmental Protection Agency, the Securities and Exchange Commission, the Federal Trade Commission, the Social Security Administration and the like.

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Conference Celebrating Karl Klare

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.

– Sachin S. Pandya

DC LERA Program: Labor Rights & Global Supply Chains, 12/15/21

Many thanks once again to Tequila Brooks for sending us this announcement from DC LERA:

The DC Chapter of LERA would like to invite you to attend (December 15, 2021 from 12:00 to 1:30 pm EST) a Virtual Event on Labor Rights and Global Supply Chains: Harnessing Technology to Eliminate Forced Labor. The event is co-hosted by the ILO Office for the US and Canada and will be moderated by Jeff Wheeler of the Global Trace Project.

• Speakers will include:Alex Nasri of the ILO
• Jen Cole of Fishwise
• Jason Judd of Cornell University ILR Conversations Project
• With comments by Janice Bellace of Wharton School of Management, University of Pennsylvania

Registration information can be found here: https://lerachapter.org/dclera/events/labor-rights-and-global-supply-chains/

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DCLERA: LEL in Healthcare, Airline Industries

Thanks to Tequila Brooks for letting us know that this November, DC LERA will host two webinars on labor relations in the US healthcare and Canadian airline industries. Co-sponsored by the ILO Office for the US and Canada, these webinars will address key labor and human resources concerns in critical industries post-COVID.

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• Nov. 10 (12 pm EST): Paul Clark of Penn State on Employment Relations in Healthcare.
• Nov. 17 (12 pm EST): Michael Abbott of Air Canada on Labor Relations in the Airline Industry.

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Harkavy's Annual LEL SCOTUS Review

Many thanks to Jonathan Harkavy (Patterson Harkavy) for sharing with us the 2021 edition of his annual review of the labor/employment decisions from the Supreme Court. As always, it's a great resource. Here's the abstract:

This article provides extended summaries and (separately) the author's take on every employment and labor law decision rendered by the Supreme Court during its most recent term. Also covered in this piece are abbreviated reviews of all grants of certiorari for the upcoming term and short summaries and analyses of all other employment-related opinions published by the Court this term, including those on the so-called shadow docket portion of the orders lists. The article concludes with additional commentary on the work of the Supreme Court as it affects the labor and employment law sector.

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Malin Announced Chair of FLRA Federal Services Impasse Panel

A huge congratulations to Marty Malin (Chicago-Kent)  and Joe Slater (Toledo), who the Biden Administration has announced will be appointed to the Federal Labor Relations Act Federal Impasse Panel. Marty will Chair the panel. Here's the announcement:

Today, President Joe Biden announced his intent to appoint the following members to the Federal Labor Relations Authority (FLRA) Federal Service Impasses Panel: ...

The Panel is a component of the FLRA that resolves impasses between federal agencies and unions representing federal employees. If bargaining between the parties, followed by mediation assistance, does not result in a voluntary agreement, then either party or the parties jointly may request the Panel’s assistance.

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COVID-Related Labor Arbitration Awards

My summer research project has been compiling and analyzing COVID-related labor arbitration awards. The result is an article that will be published this fall in the Ohio State Journal on Dispute Resolution. The title is COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis; here's the abstract:

The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and 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 labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.

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New Edition of Craver/Crain/Hayden's Labor Relations Law

Congratulations to Charlie Craver, Marion Crain, and Grant Hayden on the publication of the fourteenth (!!!) edition of Labor Relations Law: Cases and Materials (Caroline Academic Press). The book will be available for courses this fall. Here's a description:

The casebook is designed for an intensive examination of the union-management relationship throughout its major phases. Largely tracking the organization of the National Labor Relations Act, it covers the right of employees to join together for organizational purposes, the regulation of the union-organizing process including the use of economic weapons, the development of bargaining relationships, the negotiation and enforcement of collective agreements, and, more briefly, the law governing internal union affairs. The text responds generously to the most significant current developments in the field and provides a set of materials that will be truly manageable in the usual three- or four-hour courses. The fourteenth edition includes over sixty new hypothetical problems designed to test students’ knowledge of existing doctrines and push them to explore issues that don’t admit of ready answers (with detailed answers and explanations in the teacher’s manual). As with previous editions, the book will come with a comprehensive teacher’s manual and a biennial supplement to keep the book up-to-date.

Faculty should contact Erin Matthews at Carolina Academic Press for electronic review copies ([email protected] or 919-489-7486 ext. 123).

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[Un]Vaccinated Workers in the Labor Market

Chris 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.

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DC LERA: Bargaining Rights in the Public Sector

Many thanks to Tequila Brooks for sending us word of the DC LERA program on Wednesday, March 17, 2021. noon EST, It’s 2021 – Way Past Time for Collective Bargaining Rights in the Public Sector. The speaker is Elissa McBride, Secretary-Treasurer of AFSCME, who will discuss The Public Sector Freedom to Negotiate Act, Legislative priorities for public service workers, and AFSCME campaigns in the DC metro area. It's free; register here. rb

Katsabian on How Tech Can Undermine LEL Protections

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.

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Re-Thinking Service-Sector Work

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.

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Trade & Labor Policy in a Biden Administration

What has to change in U.S. trade policy to improve labor practices in global supply chains?

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.

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Webinar: International Trade and Labour Law: the USMCA

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.

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New Book: Worldwide Labor-Related Responses to COVID

Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.

Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.

Here's the publisher's description:

This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.

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Union Representation of NFL Players

DC LERA is hosting Understanding Union Representation for Professional Football Players: Mark Hyman in Conversation with Adam Richelieu of the NFLPA. It will be held Wednesday, December 16, 2020, 12:00 pm – 1:00 pm Eastern. There is no fee, but registration is required. Here's a description:

Join DC LERA for a conversation between Mark Hyman, Director of the Shirley Povich Center for Sports Journalism at the University of Maryland, and Adam Richelieu of the NFL Players Association – and one of the sport's leading experts on player compensation under the collective bargaining agreement – about Adam’s work behind the scenes to support players' rights. Adam will also tell a personal story, explaining his path from GWU graduate student to his current position.

Thanks to Tequila Brooks for sending this.

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Doorey/Sachs/Block Webinar on the Future of U.S. Labor Law

Join Professor David Doorey, Director of the Osgoode Professional Development LLM in Labour and Employment Law at York-Osgoode, for a conversation with Harvard Law School's Professors Ben Sachs and Sharon Block. The webinar will be November 21, 2020, 3:15 p.m. – 4:45 p.m. EST, and there is no charge.

In this interactive webinar, Professors Sachs and Block will:

• Discuss the future of labour law in the United States
• Analyze the recommendations for empowering working people, as outlined in their report, A Clean Slate for Worker Power: Building a Just Economy and Democracy, published by Harvard’s Labor and Worklife Program
• Discuss their early post-election thoughts on what we can expect in terms of work law reforms under President-elect Biden.

Register here.

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Liebman to Speak at DC LERA

Thanks to Tequila Brooks for letting us know that on Wednesday, 18 November at 5 pm EST, the DC Chapter of LERA @DCLERA will host a free webinar chat with Wilma Liebman, Former NLRB Chair and Incoming President of the US Labor and Employment Research Association. Details and registration are here.

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New Edition: Harris et al. Modern Labor Law

Congratulations to Seth Harris, Joseph E. Slater, Anne Marie Lofaso, Charlotte Garden, and Richard F. Griffin, Jr. on the imminent publication of the Third Edition of Modern Labor Law in the Private and Public Sectors: Cases and Materials. Here's the publisher's description:

This casebook adopts a truly modern approach to labor law in the United States, introducing students to the subject as it is practiced today. It is built around two important trends: the shift of union density from the private sector to the public sector and the growth of organizing outside the NLRA process. The third edition adds a new coauthor: Richard F. Griffin, Jr., who served as the NLRB’s General Counsel under President Obama. It also includes the numerous changes in private-sector labor law made by the NLRB under President Trump, Janus v. AFSCME, and more.

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