Monday, September 2, 2019
There has been some recent reporting that the tragic events in Texas occurred after the alleged shooter had been terminated from employment. Unfortunately, workplace violence is all too common. We often place a strong emphasis on our employment and emotions can run high when individuals are fired or otherwise treated adversely in the workplace. A couple of years ago (after the horrific events in San Bernardino, Calif. and Roanoke, Va.) I had posted some suggestions for handling violence in the workplace and I am re-posting that post below in case it might prove useful now:
Every year this country sees almost two million incidents of workplace violence. Federal data reveals that over a 13-year period, almost 10,000 murders occurred in the workplace. These numbers are startling, particularly when put in the context of recent horrific workplace related violence....
These tragic events often lead to heated public discussion over gun laws and weapon accessibility. While dialogue over gun control dominates public debate, it only addresses part of the question. An often forgotten facet of this type of violence is the workplace component that is frequently involved. The [recent] incidents  emphasize the importance of this workplace connection.
Few things in our lives go more to the core of our identity than our jobs. When people are unsatisfied in the workplace, or feel threatened in their employment security, they may act out in aggressive ways. This is why employers must be more vigilant today than ever before. We need only to look at the “Five C’s” that span the entire period of employment for answers in preventing workplace violence:
Character Checks. Background checks are perhaps the most important opportunity employers will have to prevent workplace violence. Employers should carefully investigate the background of any prospective employee for potential aggressive characteristics. This is particularly important where these workers will be put in sensitive situations or in the homes of customers.
Counseling. Employers must make mental health counseling available to all workers when needed. Such employee assistance programs are critical to helping workers get through difficult emotional times. This type of counseling must be kept confidential to encourage workers to avail themselves of this avenue of assistance.
Communication. Employers must create an environment which promotes an open dialogue of how to respond to active shooters or other violent individuals. Similarly, employers should establish appropriate complaint mechanisms to allow workers to notify management of potential workplace issues.
Cautious Cutbacks. When the need to terminate a worker arises, employers must be particularly cautious in conveying the separation. Far too frequently employers are cavalier about the process, and fail to even acknowledge or recognize the devastating effect a termination can have on an individual’s life and family.
Community Involvement. An employer cannot operate in isolation and must become part of the local community. There are many times where an employer will have critical information concerning a worker’s violent propensities, but fail to share this with law enforcement personnel.
These straightforward reminders help create an important framework for employers to eradicate workplace violence, though the framework is obviously not exhaustive. The most important lesson here is that employers must be engaged in all aspects of an individual’s working life – assuring that the potential for violence is minimized before, during and after employment.
Workplace violence cannot be completely eliminated. And employers must often balance the privacy rights of individuals battling mental or other health-related problems with the potential risk of workplace danger. [Recent] tragic events serve as an important reminder that employers must try to do more to help prevent this type of horrific violence.
Please feel free to share any additional thoughts on what employers can do to help prevent workplace violence in the comments below.
-- Joe Seiner
Saturday, August 31, 2019
Last week I received an offer from a law review. As per usual, it provided me with about a week to respond. I immediately thanked the editor and went about other business. The offer was received at 11:27. At 12:59, it was revoked.
No, the journal hadn't discovered some problem with the piece in that hour and a half. When I went back to the original offer, I discovered that I had not (shame on me) read the whole message:
Please be advised that we can only accept one more article for publication in [the specified issue] We reserve the right to revoke our offer prior to its expiration if another author accepts our publication offer before you make your decision.
So I had fair warning that some hungrier academic might preempt me by accepting before I did. I had, it seems, only myself to blame in losing this particular race to publication.
I admit to, nevertheless, being a little irritated. The norm is to provide authors the specified time to consider the offer (read "expedite to a higher ranked journal"), and the norm was being discarded. But on reflection, it's hard to get too upset: the expedite game plays journals off against each other and this strategy tries to play authors off against each other.
Still, it will make things much more complicated going forward if broadly adopted. As for whether it will be, I have only two additional data points. First, a colleague got a similar message from another law journal this submission season (hers hasn't yet been revoked) and in October 2015 another blog reported a couple of instances of the same thing. Maybe it should be reassuring that the practice apparently hasn't become commonplace in the last four years! And it may be that the strategy is being deployed only in the August window where journals are scurrying to fill their last slots.
If you're worried about my placement, however, you can rest easy. In the interval between being accepted and rejected by that journal, I was fortunate enough to get another offer. That one gave me two weeks, and I breathed a sigh of relief.
Until I remembered a fundamental principle of contracts law: promises to keep offers open for a specified period of time are unenforceable without consideration; thus, such offers are always revocable!
Wednesday, August 28, 2019
Bill Herbert (CUNY - Hunter College) and Jacob Apkarian (CUNY - York College) have just posted on SSRN their empirical article You’ve Been with the Professors: An Examination of Higher Education Work Stoppage Data, Past and Present (forthcoming 23 EREPJ ___ (2019)). Here's the abstract:
This article analyzes work stoppage data in calendar years 2012-2018 involving academic and non-academic employees at higher education institutions. It contextualizes the recent data through a review of the history of unionization and strikes in the field of education along with faculty strike data for the period 1966-1994. The study contributes to the literature concerning unionization and collective bargaining in higher education and will be of value to those who study or are engaged in labor relations at colleges and universities.
We find that there was a total of 42 strikes and one lock-out involving faculty, graduate assistants, and non-academic employees in higher education during the seven-year period from 2012 to 2018. The largest number of strikes per annum was in 2018, which was more than double the number in 2017. Exactly one-half of all strikes during the seven-year period were by non-academic employees, one-third of the strikes by faculty, and one-sixth by graduate assistants. The states with the greatest number of strikes were Illinois, California, and Washington.
Faculty units affiliated solely with AFT participated in 29% of all faculty strikes during the period. An additional 13% of the faculty strikes involved units co-affiliated with AAUP and AFT. AFSCME and UAW played leading roles in strikes involving staff and graduate assistants during the period with AFSCME averaging one strike per year over the period.
There was a total of 14 faculty strikes with an average of 2.0 per year in the period 2012-2018, compared to a total of 172 faculty strikes with an average of 5.9 per year during the period 1966-1994. The average duration of faculty strikes during the 2012-2018 period was 2.9 days with a median of 3 days, as compared to the average strike duration of 13.9 days and median duration of 8.5 days for the period 1966-1994. Non-tenure-track faculty were involved in 93% of all faculty strikes in 2012-2018, seven strikes with tenure-track faculty and six without.
Tuesday, August 27, 2019
Thanks to Sara Slinn (Osgoode Hall) for alerting us that the The Relations Industrielles/Industrial Relations (RI/IR) Journal has issued a call for papers on Digitization and the Regulation of Work and Employment. Here's a brief description:
This special issue seeks to understand how digitization may be disrupting and reordering the regulation of work and employment. We are interested in proposals that contribute to our understanding of the social and economic impacts of digitization at various levels (workplace, firms, sector, regional, national and international), and how they lead to organizational and institutional experimentation.
Friday, August 23, 2019
Today, the NLRB issued another major reversal, this time with regard to employees’ access to their worksite. The case is Bexar Performing Arts Center Foundation, which involved symphony employees who tried to peacefully hand out leaflets on the sidewalk outside the performing arts center where they usually worked. The problem? Their employer leased space from a third-party property owner, who called the police to remove them from the sidewalk.
In Bexar, the Board overruled two of its cases--New York New York and Simon DeBartolo—which held that employees in these generally had access rights to public areas of the worksite if they regularly worked for the employer (the symphony in Bexar), even if they did not work exclusively at the property in question. The property owner (the performing arts center) could still exclude those employees if it showed that the employees’ activity significantly interfered with the use of the property or was otherwise justified by other legitimate business reasons. The Board stated its new rule as follows:
[W]e hold that a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, we will consider contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, we will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.
There are several important aspects to this rule. First, because it’s using the Supreme Court’s definition of “alternate means” from Lechmere, what the Board is really saying is “virtually never.” If you’re not regularly immersed in labor law, let me assure you that this is not an exaggeration. The Court has made clear that “reasonable alternate means” means any means to contact employees, no matter how ineffective. By way of example, the Court expressly cited that off-shore oil rigs or remote lumber camps might qualify, although with the better communications that exist now I’m not so sure that would even do it anymore.
Although it relies heavily on Lechmere, it completely mangles the reasoning behind the decision. The Supreme Court's holding in that case that non-employees (typically union organizers) almost always lack the right to access the employer's property for NLRA-protected activity was based on the premise that those non-employees only have an "indirect" Section 7 right to communicate with employees (a holding often, and justly, criticized, but one that I'm accepting as current law.) But, as McFerran’s dissent here and the Board in New York New Yorkemphasized, the "non-employees" in Bexararen't in the same position as the non-employee union organizers in Lechmere. These are employees of the employer with whom there is a labor dispute. And the only way for them to access their workplace is to access the third-party's property. In other words, these employees have a "direct" Section 7 interest under Lechmere.
This decision will have a significant impact, which I don’t always say (many reporters have heard me utter something along the lines of “although the labor law community, including me, may be up in arms about X decision, I’m not sure it will have that widespread of an impact . . . ."). But this decision substantially limits employees’ ability to access their worksite for NLRA activity if their employer leases the worksite. In other words, such employees may have effectively no option to handbill, picket, or engaging in any other NLRA-protected purposes at work. Think, for a moment, how many workplaces this impacts. Every mall, shopping center, apartment building with commercial space, etc. (heck, the number of Starbucks alone that fit the bill boggles the mind). Then think about employees who work at multiple sites, like janitors. None of them will be able to access the workplace to leaflet or engage in other protected conduct unless the property owner agrees. And few will in the face of resistance from the employer/lease who is paying rent.
In addition to drastically minimizing employees’ NLRA rights, it doesn’t make much sense from even a property rights view. If you're a property owner--say a mall--who leases to businesses, you should expect your property to be used for valid businesses uses. And those uses should include employee activity that is protected but the NLRA. Otherwise, what's to stop union-phobic employers from ensuring that they only lease their worksites from third-parties who will do the employers' bidding by excluding all off-duty employees engaging in NLRA activity? Or an employer with multiple worksite could ensure that its employees work at least once at another site, thereby violating the “exclusively” requirement (like the symphony employees here, who sometimes perform elsewhere).
Finally, this is part of a larger trend of elevating property interests above all others. Not a new trend to be sure (the Lochner-era being the most notable), but one that has picked up speed in recent decades. It's troubling, not only because there's no reason why property rights--which derive entirely from state law--should trump federal statutory rights. But also because they invariably, and no doubt intentionally, favor wealthy property owners over employees and others who are not so financially fortunate.
If you’re interested in this topic, you can read more about the background of Lechmere and other cases in my articles, Communication Breakdown: Reviving the Role of Discourse in Regulating Employee Collective Action and Taking State Property Rights Out of Federal Labor Law, or a more modern take on the tension between NLRA rights and property rights in these pieces: Worker Collective Action in the Digital Age; The Silicon Bullet: Will the Internet Kill the NLRA?; and Amicus Curae Brief to the NLRB in Rio All-Suites Hotel & Casino. As you can tell, this topic hits home for me (I actually excluded several other pieces). And I'm still waiting for the shoe to drop in Rio All-Suites, which deals with employees' use of its employer's electronic communications systems.
Tuesday, August 20, 2019
I have it on good authority from an Uber driver in Miami that Uber drivers have been using social media to organize what I will characterize as a "slowdown". Here's how it works: periodically throughout the day, Uber drivers pre-arrange with each other to shut off their Uber apps. This creates an immediate shortage of drivers (supply) relative to passengers (demand), resulting in surge pricing. Immediately after the surge pricing kicks in, the drivers turn their apps back on, thus capitalizing on the higher fares.
I'm not sure whether this has a direct impact on Uber, since the surge pricing is passed on to consumers -- and Uber's profit may be even higher with surge pricing. But if drivers are targeting Uber only, but not (e.g.) Lyft, that will put Uber at a competitive disadvantage. Even if not, the surge pricing may make traditional taxis more competitive.
Regardless, there are obvious labor law implications. My initial reaction is that this would not be an impermissible slowdown under the NLRA, since the drivers are nonunion and Uber calls them independent contractors. Is it "protected, concerted activity" -- i.e., does the NLRA protected the concerted, otherwise-protected activity of independent contractors?
Reactions are welcome!
Thursday, August 15, 2019
Several discrimination claims against law firms have made the news recently, but this complaint filed against Jones Day on August 13 is a doozy. It involves a married woman and man (to each other) who were both discriminated against on the basis of sex in different ways, in part connected with the firm's parental leave policy. There are facts about intersectional sex and race discrimination as well. At the very least, it's a fact pattern made for a final exam. For an entertaining read in a nutshell, read this thread on Twitter by @gokpkd. For a more nuanced one, see Melissa Murray's (NYU). Jones Day has also responded.
Wednesday, August 14, 2019
Today marked a personal milestone for us at the Workplace Prod Blog, with our 5,000,000th page view. It's hard to fathom that many views over the years, not to mention a bit humbling. I personally want to thank Rick Bales & Paul Secunda for inviting me to co-edit the blog more years ago than I can remember, as well as all of my new bloggers: Charlie, Joe, Marcia, and Sachin. And, of course, all of our readers who quite literally has made this all possible. The blog has been instrumental in introducing me to many of you in the labor and employment law community, and for that I'll be forever grateful.
The Department of Labor's Office of Federal Compliance Programs announced today that it will be issuing a proposed rule tomorrow on discrimination by religious organizations. The OFCCP enforces antidiscrimination rules (pursuant to Executive Order 11246) against federal contractors and has more affirmative power, by, for example doing audits, than the EEOC.
The proposed rule will come as no surprise to those who have had a chance to keep up with things like the DOJ's memo on religious liberty, issued in late 2017, or the DOJ's positions on whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The proposed rule currently posted addresses a number of things related to religious organizations.
First, it makes clear that religious organizations can discriminate on the basis of religion and that religion is not just belief but also religious practices. So religious organizations can require employees to conform their behavior to the organization's religiously motivated rules. In defining religion, the proposed rule draws on Title VII and adopts definitions from the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act.
Second, it defines what counts as a "religious corporation, association, educational institution, or society." The key changes are to what counts as a religious corporation. The EEOC's guidance has long provided that for-profit entities cannot be religious organizations for purposes of Title VII, taking the definition from court decisions. The proposed rule removes that limitation, citing the Hobby Lobby case and suggesting that Hobby Lobby would be considered a religious corporation--despite the fact that the question in Hobby Lobby was whether corporations were persons for purposes of the Religious Freedom Restoration Act. Title VII does not use "person," so the logic does not necessarily apply. Now, a religious organization will be any entity including a for-profit corporation that:
- is organized for a religious purpose;
- holds itself out to the public as carrying out a religious purpose; and
- exercises religion consistent with and in furtherance of a religious purpose.
One limitation in the proposed rule is this sentence: "With that said, OFCCP does not see a scenario in which an entity’s single religiously motivated employment action, standing alone, would be sufficient to satisfy [the third] element of the definition, if that were the only religiously motivated action the entity could identify. "
The proposed rule states that this does not allow federal contractors to discriminate on bases other than religion, but then says "where a contractor that is entitled to the religious exemption claims that its challenged employment action was based on religion, OFCCP will find a violation of Executive Order 11246 only if it can prove by a preponderance of the evidence that a protected characteristic other than religion was a but-for cause of the adverse action," citing Nassar and Gross.
This certainly tees up conflicts with protection against sex discrimination versus religious beliefs of employers, particularly when it comes to pregnancy and sexual minorities.
Monday, August 12, 2019
Ann McGinley and Ruben Garcia at UNLV wish to remind you that registration for the 14th Annual Colloquium on Scholarship on Labor and Employment Law (COSELL) is still open, BUT IT IS CLOSING SOON (August 31).
The colloquium takes place from October 10-12 in Las Vegas. Remember to register and get your hotel rooms now before the prices go up! Here's the link to the website for registration and other information:
Friday, August 9, 2019
This morning, the NLRB released a notice or proposed rulemaking affecting union elections. (Thanks to Robert Iafolla at Bloomberg Law for sending them my way and providing a good description of them.) At the outset, I'll note that these proposals, while important, aren't as central as the rules that govern how the more typical union elections are run and challenged. On to the proposals . . . .
1. Blocking Charge Policy. You can read more about this policy in my article discussing the current elections rules. The short version is that the NLRB has long had a policy refusing to hold an election until any alleged, non-trivial unfair labor practice charges have been dealt with. The rationale is that unresolved ULPs can interfere with a free and fair election (for instance, imagine if the employer was firing union supporters--that would improperly influence an election). The blocking charge policy has the most traction in union decertification elections because unions have effectively used this policy to delay those elections (sort of the flip side of employers dragging out initial union certification elections). As the Board majority noted in its proposed rules today, I'm sympathetic to the concern about union abuse of blocking charges and have been open to amending that policy as part of broader, substantive election reforms, but I'm not a fan of where the Board seems to be going.
The Board has announced that it proposes to adopt the General Counsel's "vote-and-impound" procedure, in which the Board would still hold the election, impound the ballots, and wait until after the ULP charges have been resolved to determine whether to open them. If the Board was quick to throw out ballots and rerun the election if it found merit to ULP charges, this rule might be OK, but I don't see that happening (and the proposal does say that if the Regional Director finds no merit to the ULP allegations, the ballots will be counted immediately). Instead, what I envision happening is the Board will be willing to use impounded ballots even in the presence of ULPs or other behavior that likely affected the election. For instance, if it finds a ULP and remedies it, will the Board rerun the election? If not, then the original ballots will remain tainted. The notice of proposed rule making obviously doesn't get into the details, but until I see something otherwise, color me skeptical. I would prefer instead new rules that made it somewhat harder to use a blocking charge to delay an election and/or capping the amount of time that a stay would remain in effect.
2. Voluntary Recognition Bar. Again, we don't know for sure what the Board will end up doing, but this sounds like deja vu all over again. As a reminder, the voluntary recognition bar is the NLRB's policy that mirrors the statutory election bar, which prevents a union election within 12 months after a prior one. The purpose of the bar is both to avoid too many disruptions to the workplace (usually after a union loss) and (if the union won) to give the union some time to work with an often-resistant employer to produce results before facing a potential decertification vote. But, if the employer voluntarily recognizes a union, rather than going through an NLRB-run election, then things are more malleable. Traditionally, the Board barred an election for a "reasonable period" after voluntary recognition (usually about 6 months). The Bush Board reversed that in Dana Corp., by allowing a decert petition immediately after voluntary recognition, for up to 45 days; the Obama Board then shifted back to the original rule in Lamon Gasket.
In the proposed rulemaking, the Board states it intends to reinstate the Dana Corp. rule. More troubling, the Board also makes a point to note that some commentators believe they should eliminate the bar in its entirety, which is disturbing. As the Board is well aware, unions have increasingly sought voluntary recognition because of their belief that the NLRB election process remains stacked against them. Eliminating the voluntary recognition bar will make that avenue less appealing . . . although probably still better than the NLRB process for unions that want to avoid it. So, while I'm not fan of Dana Corp., it's much better than eliminating discretionary election bars altogether.
3. Construction Pre-Hire Agreements. Section 8(f) of the NLRA provides a unique avenue for union recognition in the construction industry. Because that industry often involves numerous, short-term projects, the typical union recognition process doesn't fit well. In short, Section 8(f) allows an employer and union to enter into a "pre-hire" agreement that involves recognizing the union, even if there isn't a showing of majority union support (this is why you often see certain construction employers considered either "union contractors" or "non-union contractors"). Those agreements, however, can not permit any election bars. The Board has fluctuated over the years on how a union can convert an 8(f) recognition status to a more traditional Section 9(a) one, with the accompanying election bars. Currently, Board policy allows, under certain conditions (including the union's claim that it has evidence of majority support), for a union contract to provide 9(a) status. The D.C. Circuit has rejected this policy, and the Board is indicating that it is going to follow suit--requiring an actual showing of majority support.
Member McFerran has a length dissent, which is worth a read and explains some of the criticisms I've raised in more detail. And, to reiterate my self-plug, check out my article on NLRB elections, NLRB Elections: Ambush or Anticlimax?, for more explanation of some of these topics and as a preview of what might be another set of election rule proposals.
Monday, July 29, 2019
Kate Griffith at Cornell's ILR school writes about this exciting job search:
Tenure-Track Position in International and Comparative Labor & Employment Law
Cornell University’s School of Industrial and Labor Relations (ILR) invites applications to fill a tenure-track faculty position (at the assistant, associate or full professor level) in International and Comparative Labor & Employment Law to begin August 2020. Applicants should have research and teaching interests related to international and comparative labor & employment law. A demonstrated potential for high quality teaching and research leading to publication in top-tier journals is essential. Policy-oriented experience in the field of international and comparative labor & employment law is desirable. At the time of appointment, applicants must have completed a J.D. and/or a Ph.D. in industrial relations, sociology, political science, management, or other related disciplines. Interested candidates should submit a cover letter, vita, research statement, teaching statement, diversity and inclusion statement, writing sample, and three reference letters. Review of applications will begin October 1, 2019. Inquiries about this position should be directed to Prof. Virginia Doellgast (firstname.lastname@example.org), Prof. Kate Griffith (email@example.com), Prof. Shannon Gleeson (firstname.lastname@example.org), or Prof. Sarosh Kuruvilla (email@example.com).
Diversity and Inclusion are a part of Cornell University’s heritage. We are a recognized employer and educator valuing AA/EEO, Protected Veterans, and Individuals with Disabilities.
Tuesday, July 23, 2019
Although employers are more resistant to agreeing to mutual nondisparagement obligations after employment than they used to be, such agreements remain important in one situation: where ending the relationship is conditioned on a good reference and no bad mouthing of the soon-to-be-ex-employee.
But there are complications when it is the corporate employer who is being gagged as compared to the more common situation where an individual employee agrees not to disparage her former employer. The problem arose in Bissette v. University of Mississippi Medical Center, where Garth Bissette, a professor at the Medical Center, ran into difficulties leading to possible detenuring. Before UMMC’s review process was completed, Bissette entered into a settlement agreement providing for his departure but containing a clause requiring UMMC to give Bissette a favorable recommendation and also requiring mutual non-disparagement and confidentiality.
As you might guess, Bissette was later bad mouthed by one Woolverton, a UMMC employee (who hadn’t been told about the agreement). There wasn’t much doubt that Woolverton’s comments were disparaging: he allegedly attended a NIH conference at which he told participants from other universities that, among other things, Bissette had no professional accomplishments during his tenure, did nothing with his scholarship or professional service, and was often intoxicated after returning from lunch.
Although Bissette brought several claims, the most interesting was the breach of contract cause of action. The Mississippi Court of Appeals first found that the individual defendants were not bound because of the wording of the clause in question, which provided that “This agreement is being entered into …. between [....UMMC] for the benefit of itself, all related corporate entities, its and their officers, directors, employees, agents, successors, and assigns . . . . and Dr. Garth Bissette.” According to the court, “employees” such as Woolverton were not individually bound by the agreement since they were merely its third-party beneficiaries. Under this construction, UMCC had not made any promises as to them not disparaging Bissette. Had the University agreed “on behalf of” such persons, the result might have been different. But the court also indicated that reading the commitment so broadly would lead to odd results, such as embracing “even a receptionist” at a UMMC clinic.
This is all pretty odd. How could an agreement between A and B bind C contractually? There’s no indication that UMCC was acting as its employees’ agent. Plus, of course, Woolverton didn’t even know about the settlement! The more sensible reading of the clause is that UMCC is promising that none of its employees, etc. will bad mouth Bissette. And the confidentiality clause seemed to confirm this: it permitted UMMC to disclose to those “necessary to carry out the terms and conditions of this Agreement.”
No matter: the court also rejected the argument that UMCC was vicariously liable by virtue of Woolverton’s acting as its agent (even if he were not personally liable). “Employee” is not synonymous with “agent,” and there was no evidence that Woolverton was furthering UMMC goals at the conference, so the university wasn’t responsible for what he said. That may be true (although the court’s stress on the fact that NIH (not UMMC) paid for the conference seems dubious given how often university work is grant -funded), but if UMCC had committed that none of the named persons would disparage Bissette, it’s not clear that such a promise should be read to be limited to actions taken on the employer’s dime and time.
The net effect was that Bissette walked away with considerably less than he had thought he’d gotten for not continuing to fight his detenuring. Even the “good recommendation” Bissette bargained for seems of doubtful value in light of this story. The lesson for plaintiffs’ attorneys looking for this kind of protection is to work through more carefully exactly what it means for an organization not to disparage or at least the steps the organization will take to inform its employees about what is expected of them.
And there are broader issues this scenario raises. Practically speaking, anyone familiar with academia might doubt both the efficacy of a promise that no one will tell tales out of school at scholarly conferences and the ability of a plaintiff to prove damages should such a breach occur. More theoretically, there’s the question of whether gag clauses really are a societally good idea: what if Bissette really was frequently intoxicated after lunch? Finally, there’s a not insignificant policy question of whether employers, especially public ones., should be free to constrain their employees’ speech, especially when not acting within the scope of their employment.
Thanks to Kamille Perry, Seton Hall class of 2021.
Friday, July 19, 2019
Thanks to Susan Bisom-Rapp for forwarding the following call for papers:
[T]he call for papers of the 18th International Conference in commemoration of Prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19 and 20 March 2020, and will be entitled "Beyond Employment: Protecting Autonomous Work".
The Scientific Committee welcomes the submission of proposals for papers or panels by the members of the international scholarly community.The proposals should be submitted by 9 September 2019 by email to the address: firstname.lastname@example.org. More details on the call and the conference are available here.
Wednesday, July 17, 2019
Apart from the COSELL and the AALS session described in the post below, I'm not aware of any LEL-themed academic conferences or live symposia in the U.S. for AY 2019-20. If you know of any, would you please add a brief description and link as a comment to this post? Many thanks,
Thanks to Stephanie Bornstein for sending along this CFP:
The AALS Section on Employment Discrimination Law and the AALS Section on Labor Relations and Employment Law invite submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2020 Annual Meeting in Washington, DC, on Saturday, January 4, 2020, from 3:30-5:15 p.m.
About. This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of other scholars in the field. The session will provide newer scholars with a supportive environment in which to receive constructive feedback.
Eligibility. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.
Submission Format. Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.
Submission Instructions. To be considered, proposals should be submitted electronically to Professors Stephanie Bornstein, at email@example.com, and Michael Oswalt, at firstname.lastname@example.org. The deadline for submission is Sunday, September 1, 2019.
Selection. Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 27, 2019. Presenters will be responsible for paying their annual meeting registration fee and travel expenses. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 1, 2019.
Questions. Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Stephanie Bornstein, at email@example.com, and/or the Chair for the Section on Labor Relations and Employment Law, Michael Oswalt, at firstname.lastname@example.org.
Friday, July 12, 2019
... two or more entry-level or pre-tenure lateral new faculty, including in labor/employment law. Below is a brief summary of the position announcement; here's the full copy. Thanks to César Rosado for the heads-up.
Chicago-Kent College of Law expects to hire two or more entry-level or pre-tenure lateral faculty to join our vibrant and nationally recognized intellectual community. We are especially interested in candidates with a demonstrated commitment to scholarship and teaching in ... fields [which include] first-year subjects (including Legislation) and Labor/Employment law.
Thursday, July 11, 2019
Ruben Garcia and Ann McGinley (UNLV) wish to remind you that registration for the 14th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) is still open. The colloquium takes place from October 10-12 in Las Vegas. They recommend that you register and get your hotel rooms now before the prices go up!
Here's the link to the website for registration and other information: (https://law.unlv.edu/event/14th-annual-colloquium-scholarship-employment-and-labor-law
Tuesday, July 2, 2019
New Jersey recently passed a law declaring nondisclosure agreements “with the purpose or effect of concealing the details relating to a claim of discrimination, harassment, or retaliation” to be against public policy and therefore unenforceable against the employee. N.J.S.A. § 10:5-12:8(a). According to state Senate Majority Leader Loretta Weinberg, the law aims to allow victims of such abuse “to speak out about their experiences if they so choose.” While a parallel promise by the employer would generally remain enforceable against it, the employer would be permitted to respond if the employee goes public. The law explicitly excludes noncompete agreements or NDAs intended to protect trade secrets.
An outgrowth of the national #MeToo movement, New Jersey’s law will be a test case for competing predictions about the effects of preventing victims from bargaining away their right to speak out. While no one seems to doubt that gag clauses have enabled serial harassers to continue their predations, the defenders of such provision include not only employer-side counsel but many plaintiff-side attorneys who fear that victims will be deprived of one of their more valuable bargaining chips and therefore disadvantage the employees it intended to protect.
In any event, the prospective effects of the new law will largely depend on how employers in the state will respond. For them, settlement agreements are a transactional means of protecting their reputations from the large-scale backlash that has made the Me-Too movement so palpable. Nothing about New Jersey’s new stance changes this reality.
But the new law doesn’t allow them much wiggle room. Two possibilities for creative avoidance are possible, but neither seems likely to be successful. The first is for employers to seek to recover in restitution amounts paid for a now-unenforceable promise once the employee goes public. But § 197 of the Restatement Second of Contracts tells us that courts will normally leave parties as it finds them in such cases, even if this may result in one party retaining a benefit it received as a result of a transaction based on an unenforceable promise. Employers thus have no claim in restitution for payments rendered in return (in part) for the unenforceable promise of their employee’s silence. The Restatement recognizes an exception for “disproportionate forfeiture,” but it seems unlikely to apply here, especially given the strong statutory language disapproving such agreements.
A second possible way for employers to try to work around the statute would be to structure settlement agreements to space out payments over time to create a financial incentive for employees to remain silent. The agreement would be drafted such that the employee does not promise nondisclosure but her silence is a condition on the employer’s promise to make future payments. In other words, there’s never an employee promise to enforce to begin with.
Clever, but probably no cigar in a state whose supreme court has a tendency to read statutes – especially employment regulations – to achieve their purposes regardless of the technical language. In any event, the statute deems any contract or settlement against public policy if it has the “purpose or effect” of concealing discrimination, harassment, or retaliation. Clearly, the legislature’s intent in passing this law was to enable victims to speak publicly about their experiences to guard against serial harassers. By conditioning future payments on silence, such a settlement could certainly have the effect (not to mention the purpose) of concealing discrimination, at least temporarily, by creating a strong financial incentive for the employee to be silent.
A few other points. First, the bar on nondisclosure agreements is only a part of a statute that, on its face, might be read to bar mandatory arbitration agreements. So read, that provision would almost certainly be preempted by the Federal Arbitration Act, and a reviewing court would have to decide whether the ban of nondisclosure agreements could be severed to could survive such invalidation. Second, while the focus of #MeToo and the commentary on this law has been on disclosure of sexual harassment claims, the statute also bars gag rules for discrimination and retaliation claims, which substantially increases its reach. Third, the statute bars retaliation for refusing to enter into an agreement that would be unenforceable under it, but, given that such an agreement is unenforceable, one wonders why a well-advised employee would refuse to sign it in the first place.
Hat tip to Luke Dodge, Seton Hall class of 2021, for his help with this post.
UPDATE: The statute is not retroactive, and this post has been modified to correct a mistake as to that in the original.
Monday, July 1, 2019
Rick Bales &Kathy Stone has just published on SSRN their article, The Invisible Web of Work: The Intertwining of AI, Electronic Surveillance, and Labor Law. The abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by A-I will accompany workers from job to job as they move around the boundaryless workplace. Thus A-I and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.
This article describes the many ways A-I is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on four areas of law in which A-I threatens to undermine worker protections: anti-discrimination law, privacy law, antitrust law, and labor law. Finally, this article maps out an agenda for future law reform and research.
Obviously a hot topic (and one close to my heart), so check it out!