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 Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.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.
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.
Tuesday, December 15, 2020
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.
December 15, 2020 in Books, International & Comparative L.E.L., International Contacts, Labor and Employment News, Labor Law, Scholarship, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Wednesday, December 9, 2020
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.
Friday, November 13, 2020
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.
Monday, November 9, 2020
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.
Friday, November 6, 2020
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.
Tuesday, October 13, 2020
Desiree LeClerq (Cornell ILR) sends an invitation to an online fireside chat with ILO Director General Guy Ryder this Thursday, 15 October, 08:30am Eastern Time. The discussion will address a range of issues, including rising unemployment, the impact of the crisis on migrant and informal workers, the impact of trade agreements on workers, and gaps in social protection. The final portion will be open to audience questions. Desiree will moderate. Registration is free and is available here.
Sunday, October 11, 2020
Thanks to Lance Compa for circulating this: The AFL-CIO and SEIU have filed a complaint with the ILO Committee on Freedom of Association against the Trump administration for violations of ILO standards on Freedom of Association in connection with the Covid-19 crisis in the workplace. Here is a Washington Post article on the complaint; here is the complaint itself.
Thursday, October 1, 2020
Sara Slinn (York - Osgoode) has posted on SSRN her timely and well-written article Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19, 57 Osgoode Hall L.J. ___. Here's the abstract:
During the pandemic employees in the US have engaged in a wave of strikes, protests and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system.
Monday, September 28, 2020
Sara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.
Wednesday, September 23, 2020
The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century is now available in paperback. The list price is $34.99, but there's a 20% discount for ordering from this site and entering the code LAW3820 at checkout. Here's the publisher's description:
Over the last fifty years in the United States, unions have been in deep decline, while income and wealth inequality have grown. In this timely work, editors Richard Bales and Charlotte Garden - with a roster of thirty-five leading labor scholars - analyze these trends and show how they are linked. Designed to appeal to those being introduced to the field as well as experts seeking new insights, this book demonstrates how federal labor law is failing today’s workers and disempowering unions; how union jobs pay better than nonunion jobs and help to increase the wages of even nonunion workers; and how, when union jobs vanish, the wage premium also vanishes. At the same time, the book offers a range of solutions, from the radical, such as a complete overhaul of federal labor law, to the incremental, including reforms that could be undertaken by federal agencies on their own.
Wednesday, September 9, 2020
I hope many of you will join me in attending [virtually] the webinar The USMCA (the new NAFTA): Moving to Effective Enforcement of Labor Rights, on Thursday, 17 September 2020 12:30-1:30 (EST). Here's a brief description:
The United States-Mexico-Canada Agreement, replacing NAFTA, came into force on July 1. There are important changes to the Labor chapter and the introduction of a rapid response mechanism in the Dispute Resolution chapter. This novel mechanism provides a new labor rights enforcement approach and it is the first of its kind in a U.S. free trade agreement. The panelists will cover topics including the complaints mechanisms, burden of proof, the ILO fundamental rights and core conventions link, and the impact on national labor laws.
The webinar is being offered by the U.S. Branch of the ISLSSL and the International Interest Section of U.S. - LERA. Here's a more detailed description of the program is available here; you can register here. Membership in neither organization is required.
Thursday, July 9, 2020
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.
Friday, June 12, 2020
In March 2020, many states imposed stay-at-home orders because of the covid-19 pandemic. Most labor arbitration hearings were postponed. However, as it became clear that the pandemic would not be going away quickly, arbitrators and parties began to consider online hearings. A consensus quickly emerged that Zoom would be the online platform of choice because it, unlike most other platforms, has the functionality to create breakout rooms. The National Academy of Arbitrators (NAA) and Federal Mediation and Conciliation Service (FMCS) quickly organized a series of online tutorials for arbitrators on how to schedule and run a Zoom hearing.
One issue that quickly arose was whether an arbitrator could require a hearing to be conducted online over the objection of one of the parties. The position of the American Arbitration Association currently is that such a decision should be left to the discretion of the arbitrator. The NAA has provided this guidance in Opinion No. 26 (April 1, 2020):
In the absence of a collective bargaining agreement or an ad hoc agreement of the parties prohibiting such an arrangement, an arbitrator in exceptional circumstances, without violating the Code [of Professional Responsibility for Arbitrators of Labor-Management Disputes], may order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party. In doing so, the arbitrator must determine that a video hearing is necessary in order to provide a fair and effective hearing. * * *
When the issue arises, the arbitrator’s first recourse should be to assist the parties in reaching a mutually acceptable resolution in the prehearing process. * * *
If agreement is not reached and it is necessary for the arbitrator to decide the issue of whether a matter will proceed by way of a video hearing over an objection, the arbitrator must consider the applicable circumstances and context of the request. Where, for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters, such as an emergency health and safety issue. Government travel restrictions and family and health considerations of counsel or witnesses may also weigh in the arbitrator’s decision to order or not order a video hearing. The factors favoring a video hearing may, in the arbitrator’s judgment, be offset by countervailing factors, such as a party’s lack of necessary equipment, difficulty in preparing and marshaling witnesses, or other limiting considerations. Further, the substance of the grievance might suggest to the arbitrator that a delay to allow for an in-person hearing does not seriously prejudice the rights of the parties.
As a practical matter, labor arbitrators have been reluctant to order online arbitration hearings over the objection of a party absent a showing that delay would result in significant prejudice. However, it is not yet clear whether this trend will continue. Some states have almost completely re-opened. Even in these states, however, arbitrators, advocates, parties or witnesses may be older or immunocompromised and therefore reluctant to meet in person. Many courts have postponed civil hearings and trials or moved them online, and arbitrators sometimes follow the practice of local courts. But if there is a new surge in cases, parties may become frustrated with further delay and more amenable to online hearings.
It also is not yet clear whether any move toward online hearings will be permanent or merely a temporary response to what we hope will be a short-lived pandemic. Most arbitrators and advocates still seem to strongly prefer in-person hearings, believing that such hearings give the advocates and witnesses a better opportunity than online hearings to “tell their story”. However, as arbitrators and advocates become more proficient with the technology, and experience firsthand the cost savings (especially in reduced travel) and convenience of online hearings, such hearings likely will become much more common than they were before the pandemic even if in-person hearings remain the norm.
Tuesday, May 26, 2020
Chris O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (forthcoming 12 William & Mary Business Law Review ___) Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act. Here's the abstract:
This article outlines the current state of the law regarding conduct that, while otherwise protected by Section 7 of the National Labor Relations Act, nonetheless involves workplace profanity or offensive speech that potentially violates employer civility rules and equal employment opportunity laws, whether at work, on social media, or on a picket line. The paper considers recent appellate court and National Labor Relations Board (NLRB) decisions on this important issue, highlighting the NLRB’s own reconsideration of its standards as announced in its call for amicus briefs in the General Motors case, September 2019. The author recommends a solution that balances the important public policies underlying both the National Labor Relations Act and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of respect and consideration for others.
This is a great topic and I'm very much looking forward to reading the article.
Sunday, March 22, 2020
Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius
A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights
William A. Herbert and Joseph van der Naald
Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih
Does a Prolonged Faculty Strike in Higher Education Affect Student Achievement in First Year General Education Courses?
Stephen J. Jacquemin, Christine R. Junker, and Mark Cubberley
Maintaining peer-based faculty evaluation: a case study involving student surveys of teaching
Laura Murphy and Leah M. Akins
Examining the Employment Profile of Institutions Under the Mission-Driven Classification System and the Impact of Collective Bargaining
Louis Shedd, Stephen G. Katsinas, and Nathaniel Bray
Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak
Monday, January 27, 2020
Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:
An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.
The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.
Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.