Thursday, April 21, 2022
As many readers know, Minnesota Law School two great labor and employment faculty members--Steve Befort (who is still teaching on an emeritus basis) and Laura Cooper--retired over the last couple of years. The school just hired their replacements and hit home runs for both: Matt Bodie (St. Louis) and Charlotte Garden (Seattle).
Congratulations to Matt & Charlotte!!
Monday, April 18, 2022
Bill Herbert (Hunter College, CUNY) tells us about the upcoming NYC LERA program NYC Workplace and Labor Law Update: A Look at NYC’s Worker Protection Laws and its Impact on the Workplace, April 26, 2022, 6 – 7:30 pm ET. Here's a description:
NYC regulatory agencies are charged with administering and/or enforcing municipal workplace laws intended to protect workers across various industries. These laws apply to workers of different socio-economic groups, tackling matters such as pay equity, workplace safety and other worker rights and protection issues. Our panel will address recent enforcement initiatives and its impact on employers, employees and the workplace.
Monday, April 11, 2022
Tequila Brooks tells us of the program Gig Economy in Europe: Examples from Sweden, Netherlands and Germany on Tuesday, April 26th, 2022, 12:00 pm – 1:30 pm ET. Topics to be discussed include working conditions in the gig economy in Europe; policy proposals put forward by the European Commission; protection of gig workers under Swedish, Dutch, and German labor law; and employee participation in algorithmic systems in the context of work.
Monday, April 4, 2022
Monday, March 21, 2022
Natalya Shnitser (Boston College) has just posted on SSRN her article "Professional" Employers and the Transformation of Workplace Benefits (39 Yale Journal on Regulation Bulletin 99 (2021)). Here's the abstract:
Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business.
While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States.
Thursday, March 17, 2022
This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a discussion of the many changes in harassment law and the impact of the #MeToo movement, a look at the recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status, an examination of the trend toward a more virtual economy and platform-based work, and a description of the changes in how employees work, and the terms of that work, in the face of an ongoing health pandemic.
Here's what's new for the 5th edition:
The fifth edition takes on a number of transformative changes that have occurred in the last several years in the area of workplace law, including: (1) The impact of the #MeToo moment on claims of gender discrimination and harassment; (2) The changing ways employment status is considered in the face of an ongoing health pandemic; (3) The move toward a more virtual workplace and employment that relies more heavily on technology; and (4) The recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status.
Thursday, March 3, 2022
Tuesday, March 1, 2022
Michael Duff (Wyoming, en route to SLU) has just posted on SSRN his new article (forthcoming Kentucky L.J.) Fifty More Years of Ineffable Quo?: Workers' Compensation and the Right to Personal Security. I usually edit down abstracts to one paragraph, but one paragraph won't do justice to this critically important article. Here's the full abstract:
During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”
Lost in discussions of workers’ compensation is any sense of a baseline. Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.
In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.
Well-done, Michael -- I can't agree more.
Thursday, February 24, 2022
Employment law scholars and practitioners might be interested in this new article by Professor David Horton, Forced Remote Arbitration. Here is the abstract:
Courts responded to COVID-19 by going remote. In early 2020, as lockdown orders swept through the country, virtual hearings—which once were rare—became common. This shift generated fierce debate about how video trials differ from in-person proceedings. Now, though, most courts have reopened, and the future of remote trials is unclear.
However, the pandemic also prompted a sea change in alternative dispute resolution. Arbitration providers pivoted away from in-person adjudication and heard cases online. Yet unlike virtual trials, which coexist uneasily with norms in the court system, remote hearings fit snugly within arbitration’s tradition of procedural and evidentiary informality. Thus, while virtual trials may prove to be temporary, virtual arbitration is gaining steam. Online-only arbitration startups have emerged, established providers are marketing their virtual options, and firms are mandating that plaintiffs resolve disputes without setting foot in the same room as the decision-maker. This trend threatens to make the controversial topic of forced arbitration even more fraught. Nevertheless, we do not know how remote procedures impact win rates, case length, and arbitration fees.
This Article shines light on these issues by conducting an empirical study of forced remote arbitration. It analyzes 70,150 recent filings and reaches three main conclusions. First, since July 2020, roughly 67% of all evidentiary hearings have been held virtually. Even though this figure will likely decline as the pandemic re-cedes, online arbitration has become entrenched. Second, plaintiffs who participate in virtual proceedings generally win less often and recover lower damage awards than individuals who arbitrate in person. This “remote penalty” exists in some set-tings even after controlling for variables such as claim type, pro se status, and the experience of the defendant, the lawyers, and the arbitrators. Third, even though proponents of forced remote arbitration contend that it streamlines cases, the data only partially support this claim. Some remote modes, such as documents-only proceedings, seem to save time and money, while others, like video hearings, do not. Finally, the Article explains how its findings can help lawmakers and judges regulate and monitor forced remote arbitration.
The article is available on SSRN.
-- Sandra Sperino
Wednesday, February 23, 2022
The McDonnell Douglas test is one framework that courts use to analyze discrimination cases. The Supreme Court enunciated the test in 1973, and even though the Court has decided several cases to clarify the test, confusion remains. Two recent articles explore the tension between McDonnell Douglas and how the Supreme Court discussed causation in the Bostock opinion. One way of looking at McDonnell Douglas is that it helpfully avoids the specific factual cause inquiry in favor of a sometimes looser, less-defined causal inquiry. However, it may also unhelpfully limit how the courts view causation and discrimination.
Professor Deb Widiss takes the latter view in her excellent new article, Proving Discrimination by the Text, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921, and Noelle Wyman's student note argues that Bostock signals the end of McDonnell Douglas in Because of Bostock, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913277.
Monday, February 21, 2022
Thanks once again to Tequila Brooks for sending word of Enforcing Global Labor Rights in 2022: M-POWER and Other Tools (Virtual Meeting). The program will be Wednesday, February 23, 2022 12 pm ET. Speaking will be Thea Lee, Deputy Undersecretary for International Affairs of the U.S. Department of Labor, and the moderator will be DC LERA Board Member Jeff Wheeler. It's free; register here.
Tuesday, February 15, 2022
Dean Anita Krug from Chicago-Kent has just announced the official renaming of the Martin H. Malin Institute for Law and the Workplace. Anyone in the labor law field is well aware that a more fitting name and tribute could not be had. Indeed, as evidence of the widespread appreciation that Marty earned over his career, the institute successfully raised over $1 million in his honor. Congratulations Marty, well deserved!
Below is the full announcement from Dean Krug, including an invitation for a "virtual toast" on March 10:
I am pleased to announce the official renaming of the Martin H. Malin Institute for Law and the Workplace for founding director Martin "Marty" Malin at Chicago-Kent College of Law. Since 1996, the ILW has been a leader in research, training, dialogue, and reflection on the law that governs the workplace, and was named the nation's top program in employment law by preLaw Magazine. Now the Malin Institute for Law and the Workplace will continue that work. We plan to mark this significant moment in our history on March 10, 2022 at 6 pm for a virtual toast where you can hear from Marty, and we can celebrate this successful history together. For more information and to register, please visit here.
Marty and all of us at Chicago-Kent are grateful for the support from our community in developing ILW from an innovative idea to its current status as a leader in the workplace law community. With gifts and pledges from community members, we created an endowment in Marty's honor that will support the Institute in perpetuity. I'm pleased to share with you that the endowment commitments now exceed $1 million. We could not have attained this milestone without the labor and employment law community’s commitment to the ILW’s mission. There is still much work to do, however, and if you haven't done so already, I invite you to join other members of the community in making a gift or pledge to support the Martin H. Malin Institute for Law and the Workplace. Your gift will help us continue to be the go-to law school for aspiring labor and employment lawyers and to continue our mission of serving the current labor and employment law community and the next generation of workplace law attorneys. You can contribute online here. If you would prefer to send a check or consider other ways to give, please contact our Assistant Dean of Advancement, Chrissy Brown, at email@example.com or by phone at (312) 906-5236.
Congratulations to Marty and to everyone who supported this significant achievement. I can't wait to see what the Martin H. Malin Institute for Law and the Workplace will accomplish. I hope you can join us for the virtual toast to celebrate this successful campaign!
Saturday, February 5, 2022
The International Studies Committee of the National Academy of Arbitrators (NAA) has announced a groundbreaking international seminar on Labour Rights and Remedies under Globalization-Implementing the United Nations’ Protect, Respect and Remedy Framework, to held in Toronto on Wednesday May 11, 2022.
Topics will include: Trade and Labour Arbitration; The USMCA Rapid Response Arbitration (the United States-Mexico-Canada Agreement, the “new NAFTA”); enforcement of the United Nations’ Guiding Principles on Business and Human Rights; Enforceable International Brand Agreements; and Domestic Litigation of International Workplace Disputes.
This exciting seminar is being held as part of the Annual NAA Conference held May 11-14, 2022. There is no additional cost to attend this international labor seminar for those attending the NAA conference. It is possible to attend only the international labor seminar at a reduced fee. The student registration for the international seminar is $100.
The NAA conference itself will draw speakers from labour, management, government and international organizations around the world to discuss dispute resolution and the growth in stronger and enforceable international labour standards. Sessions will focus on the developing role of labour arbitrators, including NAA members, in adjudicating disputes over these standards.
The NAA conference will be held at the Fairmont Royal Hotel in Toronto.
From Northeastern University comes word of a conference on April 8, 2022, celebrating the vision and advocacy of labor law scholar Karl Klare.
The conference will be in-person with a live stream for a virtual audience. The four conference panels are titled “Transformative Constitutionalism”, “Unions and Workers (Solidarity Forever)”, “The Law School Classroom (Teaching as a Tool of Progress)”, and “Critical Legal Studies (Why Karl Starts with K)”. For details, including the extraordinary list of speakers and how to register, see here.
Friday, February 4, 2022
Lisa Bernt's article on workplace transparency may be of interest to readers. The article is Workplace Transparency Beyond Disclosure: What’s Blocking the View?, 105 Marquette Law Review 73 (2021). Here is the abstract.
Recent developments have exacerbated informational asymmetry between employers and workers. Employers increasingly use “black box” automated decision systems, such as machine learning processes where algorithms are used in recruitment and hiring. They have technological tools that enable intense monitoring of workers. Contemporary work relationships have changed, with trends toward remote and scattered worksites. Employees are more frequently bound by nondisclosure agreements, non-disparagement provisions, and mandatory arbitration agreements. These developments have made it more difficult for workers to communicate with each other and to act collectively. The result is that workers are kept in the dark when it comes to much of an employer’s decision-making. How might an employee know, for example, if she is being paid less than her male coworkers if she is being closely watched and is afraid of speaking? How might someone turned down for a job know whether the hiring process was discriminatory? We need to look beyond disclosure mandates, take a closer look at channels of communication in today’s workplaces, and consider the vantage point of workers. Developing effective transparency measures requires greater attention to the sightlines of workers who cannot get information they need to spot, articulate, and prove violations of workplace protections.
The article is available on SSRN here.
Thursday, January 27, 2022
Two hospitals, the seven workers who quit one hospital to join the other, and a short-lived temporary restraining order. According to the complaint in Thedacare, Inc. v. Ascension N.E. Wisconsin, Inc. (and not much else), this is their story, plus a Thirteenth Amendment puzzle that never got fully litigated.
Our story begins in Wisconsin’s Fox River Valley. There, ThedaCare owns and operates the Neenah Medical Center, which provides high-level trauma and stroke care, thanks in part to an interventional radiology and cardiovascular team (“IRC team”) based there.
Between December 21, 2021, up through January 7, 2002, ThedaCare learned that four invasive radiology technicians on its IRC team at Neenah (all of them), plus three Thedacare nurses, intended to quit to go work for Ascension at its St. Elizabeth Hospital facility in Appleton. From work emails ThedaCare found, it believed that Ascension had interviewed and negotiated employment terms with the departing employees throughout November and December 2021. The departing IRC team workers were all scheduled to exit Thedacare at the same time. Their last day was January 21, and they’d begin working at Ascension on January 24.
Before that happened, Thedacare had asked Ascension for “ninety days of access to one invasive radiological technician per day and one nurse with radiology training to provide ThedaCare sufficient time to hire replacement staff for the departing IRC team members.” Ascension declined.
So, on January 20, 2022, Thedacare sued Ascension in Wisconsin state court, arguing that Ascension committed tortious interference with contract “by poaching the resigning IRC team members from their continuing employment with ThedaCare and arranging for their simultaneous resignation.” As a remedy, Thedacare asked for an injunction ordering Ascension to either (1) “make available one invasive radiology technician and one registered nurse” per day from among the exiting workers; or (2) stop hiring those workers until Thedacare had hired “adequate” staff to replace them. That same day, Thedacare got from a Wisconsin Circuit Court judge (Mark J. McGinnis) a temporary restraining order that ordered Ascension to do just that.
In turn, Ascension’s lawyers pressed the judge about this TRO, citing in part the Thirteen Amendment’s Involuntary Servitude Clause and a parallel provision in Wisconsin’s Constitution that barred “involuntary servitude in this state,” Wis. Const. art. I, sec. 2. The judge amended the TRO, striking the “make available” part but keeping the stop-hiring proviso. But a few days later (January 24), that judge, after a hearing on the matter, dismissed the TRO in its entirety, because, according to one press account, “ThedaCare could rely on alternate staffing solutions it already is pursuing to preserve care, including cross-training employees who do similar jobs at ThedaCare’s Appleton hospital.”
Now, the puzzle that never got fully litigated: Suppose that because the seven workers left, Thedacare could no longer provide the same level of trauma and stroke care at its Neenah facility. If so, would a Wisconsin appellate court have upheld a court order enjoining Ascension in the way Thedacare originally wanted? Answer: Not likely.
Had Thedacare sought to enjoin not Ascension but the departing workers to keep working for it, Thedacare would have faced a serious Thirteenth Amendment problem. Since Bailey v. Alabama (1911), courts have read the Thirteen Amendment’s Involuntary Servitude Clause to ban most laws that, upon the threat of criminal sanction, coerce workers into staying with their current employers when they would otherwise quit. Wisconsin’s parallel provision has been similarly read, see State v. Brownson, 157 Wis. 2d 404, 411-13 (Ct. App. 1990), and, in dicta, taken also to prohibit the compulsion of “an individual to labor against his or her will as part of the remedy of specific performance.” Id. at 412 n. 4. The idea: injunctions to compel work, while not criminal law, are still backed by a court’s contempt power and thus coercive enough to justify the protections of Involuntary Servitude Clause doctrine.
Here, of course, Thedacare sued Ascension, not the exiting workers. But there are some razor thin lines between (a) directly ordering the workers here to go back to work for Thedacare; (b) ordering Ascension to direct those workers to go work for Thedacare; and (c) ordering Ascension to not employ those workers until Thedacare gets enough staff to make up for their departure. The worry: In any of these cases, because of the court order, the cumulative coercive effect on the quitting workers to keep working for Thedacare is similar enough to the coercion that justifies Bailey and progeny. Sure, those workers could escape the indirect coercion – options (b) and (c) – by immediately quitting Ascension, but not really unless they had a third employer ready to hire them.
More generally, the court’s order here cut against an old idea: Involuntary Servitude Clause doctrine protects workers from legal coercion that unduly impedes labor mobility. Pollock v. Williams, 322 U.S. 4, 18 (1944) (“in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers”). For commentary, see, e.g., Pandya (2020); Pope (2010); and Oman (2009). This doctrine has exceptions, but not any “hospital worker” or “continuity of care” exceptions. So if Wisconsin appellate judges take this doctrine seriously, then the court order here, if not dismissed, would likely not have survived on appeal.
Tuesday, January 25, 2022
Thanks again to Tequila Brooks for sending word about this program: David Jacobs, DC LERA Board President, will be speaking with Dr. Melissa Fisher of the NYU Institute for Public Knowledge - online only, complementary. January 26, 2022, noon eastern, registration here.
In February, the guest speaker will be Thea Lee, Deputy Under Secretary for International Labor Affairs, also online only.
DC LERA is particularly encouraging law students to attend.
Sunday, January 16, 2022
Shirley Lin (Pace) write to let us know about the 2022 Labor and Green New Deal Symposium:
The Pace Environmental Law Review is accepting submissions for its 2022 Symposium, “Labor and the Environment – Envisioning a Green New Deal.” On April 1, 2022, the symposium will gather regulators, law makers, policymakers, and academics to discuss the possibility of a comprehensive and effective Green New Deal (GND). Abstracts are due February 13, 2022 (extended deadline). Submission details are provided here.
Please send (1) an abstract of 300-500 words with anticipated wordcount for the final article; and (2) a CV to firstname.lastname@example.org. If accepted, articles may be 6,250-19,000 words, and essays may be 2,500-6,250 words. Final article deadline: May 4, 2022.
Monday, December 6, 2021
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/
Monday, November 8, 2021
Friend-of-Blog Michael Oswalt (Interim Director, Institute for Law and the Workplace at Chicago-Kent) sends along the notice below (and Flyer Here) for the Louis Jackson student writing competition:
2021-2022 Louis Jackson Memorial National Student Writing Competition in Employment and Labor Law
Co-Sponsored by Jackson Lewis P.C. and The Institute for Law and the Workplace at Chicago-Kent College of Law
Manuscripts are now being accepted for the 24th annual Louis Jackson Memorial National Student Writing Competition in Employment and Labor Law. The competition is supported by Jackson Lewis P.C. in honor of founding partner Louis Jackson and administered by the Institute for Law and the Workplace at Chicago-Kent College of Law. The top three winners receive scholarships: $3000 for the first-place winner, and $1000 each for the two second-place winners.
The competition is open to all current law students who submit a scholarly paper on a topic related to laws governing the workplace. Entries must be received by midnight on Tuesday, January 18, 2022. Judging is doubly anonymous and performed by a panel of law professors from across the country; neither Jackson Lewis nor Chicago-Kent is involved in that part of the process.
Papers must conform to current Bluebook style and not exceed 35 pages in length, double-spaced.
For any questions, or to submit an entry, please go to: kentlaw.iit.edu/louis-jackson-writing-competition