Tuesday, October 20, 2020

Call for L&E Participants at SEALS 2021

It's that time of year again (actually it's a bit late, but ... 2020): SEALS is open for submissions for its 2021 conference. The dates are July 26-August 1 (although our panels will be only a couple of days of that) and it's tentatively planned to be at the Boca Resort, although if things still aren't safe then I'm sure they do remote again, which worked well this summer.

At this point, please let me know if a) you're interested in participating in a SEALS panel TBD, or (especially) b) you have any ideas for a panel or discussion group. As a reminder, we can have either or both of panels--which are more traditional presentations--or discussion groups, which involve a larger group engaged in more of a back-and-forth. One obvious area that I'd like to organize is something on COVID's impact on the workplace. So if that's of interest, please reach out!

Jeff Hirsch

 

 

October 20, 2020 in Scholarship | Permalink | Comments (0)

Thursday, October 1, 2020

Slinn on Protected Concerted Activity in Canada & the U.S. During a Time of COVID

SlinnSara 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.

rb

October 1, 2020 in International & Comparative L.E.L., Labor Law, Scholarship, Workplace Safety | Permalink | Comments (0)

Monday, September 28, 2020

Fisk to Deliver Genest Lecture at York-Osgoode

FiskSara 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.

rb

September 28, 2020 in Commentary, Faculty Presentations, Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Wednesday, September 23, 2020

Cambridge Handbook of U.S. Labor Law ... Now in Paperback

HandbookThe 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.

rb

September 23, 2020 in Books, Labor Law, Scholarship | Permalink | Comments (1)

LEL Arbitration Nutshell

NutshellThe new (4th) edition of Nolan & Bales, Labor & Employment Arbitration in a Nutshell, is now available for pre-order. No doubt your loved ones all will enjoy a copy in their holiday stockings!

rb

.

.

.

September 23, 2020 in Arbitration, Books, Scholarship | Permalink | Comments (0)

Tuesday, September 8, 2020

Bisom-Rapp on Bostock

SusanSusan Bisom-Rapp (TJSL; visiting Cal Western) has posted on SSRN her essay The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law. The essay was solicited by and written for the Comparative Labor Law & Policy Journal (CLL&PJ). Valerio De Stefano (KU Leuven) and Sean Cooney (University of Melbourne) are editors of the dispatch section of the CLL&PJ. Dispatches are relatively short essays summarizing a "significant development in national labor [and employment] law." A dispatch explains the import of a domestic development and "the reasons for transnational interest…." CLL&PJ posts the dispatches on the journal’s website and the dispatches are open access. Here is a link to the dispatch section of the CLL&PJ, where the essay can also be found. Here is the abstract:

On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.

rb

September 8, 2020 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Thursday, September 3, 2020

"The Many Facets of Bostock" at University of Florida

Rachel Arnow-Richman, the University of Florida's new Gerald Rosenthal Chair in Labor & Employment, has just announced an upcoming event: The Many Facets of Bostock. This is a Moderated Q&A program with an outstanding lineup, including Nan Hunter, Suzanne Goldberg, Cary Franklin, Catherine Smith, Alex Chen, Shannon Minter, Stephanie Bornstein, and of course, Rachel.

It takes place on Thursday, Sept. 10 from noon-1:30pm ET and is open to the rull academic community. You can register at this link.

Looks like a really good one.

Jeff Hirsch

September 3, 2020 in Scholarship | Permalink | Comments (0)

Saturday, August 29, 2020

Harris on Unconscionability in Worker Training and the Right to Job Quality

Jonathan Harris has a twofer of new pieces posted on SSRN, both of which are definitely worth checking out.

The first, Unconscionability in Contracting for Worker Training, 72 ALA. L. REV.  __ (forthcoming 2021), provides a really interesting take on worker training--with the added bonus of contract law thrown in! He did a great presentation on this at SEALS recently, and for those of you on appointments committees it's also his job talk. The abstract:

Despite urgent calls for retraining and upskilling workers amidst the threat automation poses to many existing jobs, a forty-year-long reduction in public and private worker training programs means that some firms offer training only with contractual strings attached. This Article exposes the dangers of these conditional training contracts and proposes the law of unconscionability as a more effective framework for legal challenges than the statutory-based claims more commonly advanced by plaintiffs.

The second piece is Is There a Right to Job Quality? Reenvisioning Workforce Development (with Livia Lam), 11 CALIF. L. REV. ONLINE 339 (2020), which provides a timely look at "quality work." The abstract:
The coronavirus crisis has led to the unemployment of millions of workers and exposed a labor market that is full of poor-quality jobs. Policymakers intuitively resort to upgrading worker skills as a workforce response to the pandemic; however, the problem isn’t with retraining. The nation’s workforce development system is in shambles. It lacks appropriate accountability mechanisms to ensure workers are matched to decent work and instead steers training for any in-demand job including those that offer low pay and poor working conditions. Enabling the changes needed requires a new legal regime that establishes a right to training for a quality job.
Jeff Hirsch

August 29, 2020 in Scholarship | Permalink | Comments (0)

Thursday, August 27, 2020

Flake on Sports-Spectator Harassment

FlakeDallan Flake (ONU)  has just posted on SSRN his article Protecting Professional Athletes from Spectator Harassment. I had the pleasure of reading an earlier draft and highly recommend it. Here's the abstract:

Instances of spectators harassing professional athletes because of their race, color, religion, sex, or national origin are well documented. This is not a new problem, but it is becoming worse in this age of emboldened bigotry. Fans are sometimes punished for such behavior, as are players who retaliate in response. Meanwhile, the teams and leagues that allow it to occur face no repercussions. This must change for there to be any hope of eradicating this egregious form of discrimination. The logical starting point is Title VII of the Civil Rights Act of 1964, under which employers can be liable for harassment perpetuated against employees on the basis of certain protected traits. This statute is rarely utilized in the context of spectator harassment, in no small part because the standard for holding a team or league liable for the conduct of fans may seem impossibly high. This Article argues there is room within the extant legal framework for an athlete to prevail on such a claim and provides a blueprint for how to do so. Specifically, it asserts that (1) an athlete is entitled to a presumption that spectator harassment is unwelcome; (2) spectator harassment is sufficiently severe to be actionable because it is publicly humiliating, causes far-reaching harm, and is specifically intended to undermine job performance; and (3) spectator harassment is imputable to teams and leagues because they have the resources to implement more effective measures to protect athletes but choose not to. Holding sports organizations to account is necessary to bring about changes that will better safeguard athletes from this demeaning and degrading type of abuse.

rb

August 27, 2020 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Wednesday, August 5, 2020

ILAW Journal Call for Papers

Ilaw123Jeff Vogt (Solidarity Center, Rule of Law Dept.) sends word of this call for papers:

The ILAW Network is excited to be publishing a new law journal – the Global Labour Rights Reporter. The journal intends to be a forum primarily for labour and employment law practitioners globally to grapple with the legal and practical issues that directly affect workers and their organizations today. We see the strength of the journal being its comparative approach, given the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. We intend for the journal to be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues. The journal will run editions in English, Spanish and French. Here's the full ILAW Journal Call for Papers.

rb

August 5, 2020 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Wednesday, July 29, 2020

Private Right of Action for OSHA

Michael Duff, , , and An excerpt from the executive summary:

Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation's workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation.

The handling of the coronavirus pandemic is emblematic of several decades of choices by our national and state leaders that prioritize short-term profits ahead of people. At this very moment and in plain view, President Trump and his Occupational Safety and Health Administration (OSHA), conservatives in Congress, and many state leaders are failing to protect workers from the potentially fatal risks of COVID-19. Significantly, this increased burden is not equally shared by all. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, child care, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic. . . .

Agencies like OSHA should play a key role in setting policies that ensure health, safety, stability, and power for workers in addressing workplace hazards. But since 1970, Congress and the White House have hollowed out the agency, denying it resources and trimming its authority, leaving it in a weak state. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies. . . .

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans. . . .

Check it out!

Jeff Hirsch

July 29, 2020 in Labor and Employment News, Scholarship, Workplace Safety | Permalink | Comments (0)

Thursday, July 9, 2020

Gough: New Empirical Work on Employment Arbitration

GoughMark Gough (Penn St. School of Labor & Employment Relations) has posted on the ILR Review website his article A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation, Industrial & Labor Relations Rev. (forthcoming 2020). Rather than just posting his abstract, I'll post instead a summary I asked Mark to draft for me, which helps situate this empirical work among other empirical work on similar topics:

Most of the empirical literature comparing outcomes between forums uses relatively crude descriptive statistics to show stark differences in employee win rates and monetary award amounts within the populations cases disposed of in arbitration and litigation. Indeed, scholars have provided robust evidence on the resolution of employment disputes within individual forums such as:

  • The American Arbitration Association (AAA) – see, e.g., Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Studies 1 (2011); Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 McGeorge L. Rev. 223 (1998).
  • The Financial Industry Regulatory Authority (FINRA) – see, e.g., J. Ryan Lamare & David B. Lipsky, Employment Arbitration in the Securities Industry: Lessons Drawn from Recent Empirical Research, 35 Berkeley J. Employ. & Labor L. 113 (2014); J. R. Lamare, & D. B. Lipsky, Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry, Industrial & Labor Relations Rev. (2018).
  • Federal court – see, e.g., Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Studies 429 (2004).
  • State court – see, e.g., Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, 58 Dispute Resolution J. 44 (2003).

These studies often are used to support the perceptions of arbitration as an employee-unfriendly forum. See, e.g., Mark Gough, How Do Organizational Environments and Mandatory Arbitration Shape Employment Case Selection? Evidence From an Experimental Vignette, 57 Industrial Relations 541 (2018); Mark Gough, Employment Lawyers and Mandatory Employment Arbitration: Facilitating or Forestalling Access to Justice, 16 Advances in Industrial Relations 133 (2016). And while informative, a limitation of this literature is it provides minimal controls to account for systematic variation between forums. It is clear that the average monetary award and employee success rates at trial are lower in arbitration than litigation, but are employee claimants genuinely at a disadvantage in arbitration? Or does systematic variation exist within the underlying merits of cases, presence or quality of counsel, party resources, or other case characteristics which account for differences in outcomes between arbitration and litigation? In short, one must be careful to compare “apples to apples” when drawing evaluative conclusions about arbitration’s effect(s) on access to justice.

In a 2020 empirical study, Mark Gough attempts such apples-to-apples comparisons by surveying 1,256 employment plaintiff attorneys about their most recent cases adjudicated in arbitration, state court, or federal court. Even while accounting for claim, plaintiff, defendant, and attorney characteristics, Gough finds employment discrimination plaintiffs in arbitration are less likely to receive a judgment in their favor and smaller awards compared to similar cases disposed in state and federal court. Specifically, he reports, “compared to arbitration, employees' odds of winning increase by 70.7 percent in a federal jury trial, 183.7 percent in a state judge-only bench trial, and 146.0 percent in a state jury trial…[and] relative to arbitration, monetary damages awarded to success

rb

July 9, 2020 in Arbitration, Employment Common Law, Employment Discrimination, Scholarship | Permalink | Comments (1)

Wednesday, July 1, 2020

Zelinsky on Narrowing ERISA Premption

ZEdward Zelinsky (Cardozo) has posted on SSRN CalSavers and ERISA Redux: The District Court’s Second Opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program, New York University Review of Employee Benefits and Executive Compensation, David Pratt (ed.) (2020). Here's the abstract:

On March 10, 2020, the U.S. District Court for the Eastern District of California (Morrison C. England, Jr., J.) issued its second substantive opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program.Confirming its initial decision, the district court again held that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt the statute creating the California Secure Choice Retirement Savings Program (CalSavers).

This second opinion is important for two reasons. First, it confirms that ERISA does not preempt California’s retirement savings program for the private sector. Taken together, the district court’s opinions about CalSavers provide a roadmap of the ERISA status, not just of CalSavers, but also of other states’ similar retirement security programs. ERISA does not preempt these government-operated programs.

Second, the district court decisions exemplify ERISA’s relatively limited preemptive effect in the wake of the Supreme Court’s decision in Gobeille v. Liberty Mutual Insurance Co. This restricted interpretation of ERISA preemption contrasts with the broader understanding which the Supreme Court first embraced. The district court was right to reject the plea that it return to that original, more expansive approach to ERISA preemption.

rb

July 1, 2020 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Monday, June 29, 2020

Duff on Non-Union Strikes and Protecting Workers in a Pandemic

A twofer from Michael Duff (Wyoming). He's got two papers published on SSRN, both particularly relevant in the current pandemic economy.

One is New Labor Viscerality? Work Stoppages in the 'New Work,' Non-Union Economy, which is forthcoming in the St. Louis Univ. Public Law Rev. The abstract:

The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.

Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.

Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.

Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.

The second paper, co-authored with Thomas McGarity (Texas) and Sidney Shapiro (Wake Forest), is Center for Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing. The abstract:

The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government's many missed opportunities to stem the spread of the virus in the nation's workplaces, and make recommendations for what needs to happen next to protect employees on the job.

Both are well worth the read!

Jeff Hirsch

June 29, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, June 24, 2020

Employer Access to Salary History Helps Explain Gender & Racial Wage Gaps

ShiJames E. Bessen, Chen Meng, & Erich Denk, all of the Boston U. Technology & Policy Research Initiative, have just posted on SSRN their important empirical article Perpetuating Inequality: What Salary History Bans Reveal About Wages. Here's the abstract:

Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and on the pay of job changers in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers by about 5%, with larger increases for women (8%) and African-Americans (13%). Salary histories appear to account for much of the persistence of residual wage gaps.

rb

June 24, 2020 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Friday, June 19, 2020

Senn Proposes Good Faith Defense to Disparate Impact

SennCraig Senn (Loyola Los Angeles) has just posted on SSRN his article Accommodating Good-Faith Employers in Title VII Disparate Impact Cases (94 Tulane L. Rev. forthcoming fall 2020). Here's the abstract:

This article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer’s facially neutral job policy or criterion inadvertently but disproportionately affects individuals based on sex, race, color, national origin, religion, age, or disability.

Unfortunately, our federal employment discrimination laws do not provide comparable defenses or accommodations for good-faith employers in these disparate impact (and related) cases. First, Title VII provides a “business necessity” defense. This complete defense is a narrow accommodation available only for a smaller subset of these good-faith employers – namely, those that can show that their job policy or criterion was related to successful performance of the job.

Next, the ADEA provides a “reasonable factors other than age” defense. This complete defense is a broad accommodation generally available for all good-faith employers that can show that their job policy or criterion stemmed from reasonable, non-age considerations.

Finally, the ADA provides not only a business necessity defense in disparate impact cases but also a supplemental “good-faith efforts” defense in closely related reasonable accommodation cases. This latter, partial defense is another broad accommodation generally available for all good-faith employers that make such efforts to adjust their policy or criterion for (or otherwise accommodate) a disabled individual.

Addressing this unique asymmetry, this article makes two new contributions to existing employment discrimination literature. First, it proposes a partial “Good-Faith Defense” for such employers in Title VII disparate impact cases – a defense that reduces (rather than eliminates) employer liability. Second, this article uses a comprehensive, cross-contextual argument that explores fourteen different examples of good-faith accommodations (by Congress and the Supreme Court) under eight different federal employment laws. Ultimately, these multiple examples evidence a clear legislative and judicial “Good-Faith Accommodation Philosophy” that lies at the heart of the Good-Faith Defense.

rb

June 19, 2020 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Tuesday, May 26, 2020

O'Brien on EEO Civility Rules & Concerted Activity

ObrienChris 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.

rb

May 26, 2020 in Employment Discrimination, Labor Law, Scholarship | Permalink | Comments (0)

Monday, May 25, 2020

"Work Law Under COVID-19" Seeking Contributions

Dear labor and employment scholars,

We're writing to see if you'd be interested in writing a short essay on any COVID-related work law issue as part of an open-source web-based book.

The COVID-19 pandemic has raised many complex work-law issues that matter a lot to thousands of people in the US right now. As a result, we're hoping to develop a virtual “book” of short essays on COVID-19 work law issues for an audience of sophisticated lay readers. Because this "book" would be completely web-based, it'll be easy to revise and update the book's content quickly as the pandemic (and the response to it) unfolds. And anyone with an Internet connection can read it. We will set up the essays in such a way that contributors can cite to essays if desired.

Moreover, while some NGOs, law firms, and the press have been discussing COVID-19 work law issues online, that has been largely piecemeal. We believe that work-law scholars, working together, can add value by putting these issues in proper context (and in one place) in a way that would really make a difference. Whether it’s informing workers of their rights, assisting workers in obtaining the benefits they’re entitled to, or informing employers’ attempts to comply with increasingly complex and fast-changing regulations, this is a project that can have a meaningful impact.

If you are interested, feel free to consider or add to this incomplete list of topic areas:

  • Safety & Health
  • Unemployment Insurance Benefits
  • Workers’ Compensation
  • Leave Rights
  • Discrimination
  • Labor Rights
  • Retaliatory filings
  • Immigrant Worker issues

These and other COVID-19 work law topics are broad and have both state and federal components, so there will be room for multiple essays in the same general area (for instance, different state unemployment systems, or case studies of particular laws as applied). If you are interested, please contact one or both of us (Jeff Hirsch: jmhirsch@email.unc.edu; Sachin Pandya: sachin.pandya@uconn.edu) and let us know.

Thanks,

Jeff Hirsch & Sachin Pandya

May 25, 2020 in Labor and Employment News, Scholarship | Permalink | Comments (0)

Monday, May 11, 2020

The New North Carolina Civil Rights Law Review is Seeking Submissions

A new journal created by some great Carolina Law students and the UNC Center for Civil Rights is now seeking submissions:

The North Carolina Civil Rights Law Review, a student-run journal at the University of North Carolina School of Law, is now accepting submissions for its inaugural volume. We invite legal scholarship on all variety of civil rights topics.

Priority Review: Submissions received before midnight on July 31, 2020, will receive priority review for publication. Offers will be extended on a rolling basis throughout the summer priority period. Earlier submissions are encouraged.

Standard Review: Submissions received after the priority period will be reviewed on a rolling basis. The editorial board reserves the ability to suspend this standard submissions period at any time after August 1, 2020, in order to best serve the needs of the journal and its staff.

About the Journal: The North Carolina Civil Rights Law Review is a newly formed journal at the University of North Carolina School of Law. It operates in collaboration with the UNC Center for Civil Rights and integrates the long-running annual Conference on Race, Class, Gender, and Ethnicity as its yearly symposium. The journal aims to publish innovative, important scholarship on current issues in civil rights law, with the goal of protecting and advancing individuals’ actual lived experience of civil rights, liberty, and equality today. Topics of general civil rights interest are welcome. Particular consideration will be given to topics related to law and conditions affecting North Carolina and the Mid-Atlantic and Southeastern United States.

Please submit your article along with a short cover letter and current CV or resume to Rachel Grossman, Editor-in-Chief, at regrossm@live.unc.edu. Footnotes should comply with The Bluebook: A Uniform System of Citation (20th ed. 2015).

Jeff Hirsch

May 11, 2020 in Disability, Employment Discrimination, Scholarship | Permalink | Comments (0)

Wednesday, May 6, 2020

Using Hurricane Data to Predict Covid-19 UI Clams

FedresA group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:

We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.

rb

May 6, 2020 in Government Reports, Labor and Employment News, Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0)