Workplace Prof Blog

Lin Reconceptualizes Work Law

Shirley Lin (Brooklyn) has just published her article Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Ariz. St. L.J. 813 (2023). Here's a summary:

Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.

This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, I demonstrate how public/private dyads within work law have generated unworkable and often divisive understandings of race, solidarity, and commerce. The Article then theorizes the links between work law’s capture by public/private divides and the harms they pose to our centuries-long pursuit of a thriving, multiracial democracy. Reexamining the development of labor and employment law in this light recovers a crucial point of synergy between Critical Race Theory and law and political economy (LPE) analysis.

Building on these insights, I describe work law’s current state as privatized public law. The term historicizes and, for the sake of argument, facilitates closer study of the link between legal liberal conceptions of commerce and the law’s maintenance of racial subordination. Conversely, it allows us to recognize the small- and large-scale frame transformations ordinary people have achieved through mass social movements, with the goal of strengthening all labor movements from within.

Centering race in a reassessment of work law opens up possibilities for unifying the field’s development, charts alternatives to liberal tenets within political economic thought, and provides a starting point for unraveling similarly contested fields of law. We may then “see” how the countertheories that popular movements pose against legal liberalism not only bear epistemic, doctrinal, and political importance, but also foreground the law’s normative distribution of power between public and private, racially solidaristic or radically individualistic. Work law’s tension with popular movements on matters of race, solidarity, and commerce therefore suggests how we may break the theoretical impasse over how to build more just economic and political systems over time.

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COSELL 2024 in San Diego

The annual Colloquium on Scholarship for Employment and Labor Law will be in San Diego next year, with Orly Lobel (San Diego) and Susan Bisom-Rapp (Cal Western) hosting. Here's the announcement:

Dear Colleagues,

We are pleased to announce that the 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be co-hosted by the University of San Diego School of Law and California Western School of Law. Please save the dates: Friday, Sept. 13 - Saturday, Sept. 14, 2024. The conference organizers are Orly Lobel, Warren Distinguished Professor of Law & Director of the Center for Employment and Labor Policy (University of San Diego) and Susan Bisom-Rapp, Dean Steven R. Smith Professor of Law (California Western School of Law).

Details will follow, but in the meantime, please calendar the dates. We look forward to seeing you in sunny San Diego!

Warm regards,

Orly and Susan

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Harkavy's Annual LEL SCOTUS Update

Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN his annual 2023 Supreme Court Commentary: Employment Law. Here's the abstract:

This paper summarizes and comments on all Supreme Court opinions issued during the 2022-2023 term that deal with labor and employment law and the employment relationship. The paper also provides information on all cases accepted for argument during the 2023-2024 term as of July 29, 2023.

As always, this is a great summary of the LEL cases from the most recent SCOTUS term.

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Chicago-Kent "All About Accommodations" Symposium: Call for Papers

Nicole Porter, the new director of the Malin Institute for Law & the Workplace at Chicago-Kent writes to invite submissions for "All About Accommodations" Symposium:

Call for Papers: Symposium Hosted by the
Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law

All About Accommodations

The COVID-19 pandemic brought renewed attention to the fact that our diverse workforce often needs modifications of how the job is done or when and where the work is performed. We most commonly think of employees with disabilities as needing accommodations. But as recent developments have demonstrated, pregnant workers might be entitled to accommodations under the new Pregnant Workers Fairness Act (PWFA), and employees have a better chance of having their religious practices accommodated after the Supreme Court’s 2023 decision, Groff v. DeJoy

This symposium will explore the current state and future development of accommodations in the workplace. Selected participants might focus on the Americans with Disabilities Act, the PWFA, religious accommodations, the FMLA, state laws, or the lack of protection for employees who might need but are not entitled to accommodations in the workplace, such as employees with caregiving responsibilities. More broadly, we hope to have conversations about the similarities and differences between various accommodation laws, the pros and cons of targeted (versus universal) accommodation mandates, the theoretical justifications for accommodations, the effect of accommodations on coworkers, how COVID-19 has affected accommodations in the workplace, and how workplace accommodations (or the lack thereof) contribute to (or perhaps harm) workplace equality and the well-being of all workers.

The Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law will sponsor an in-person symposium on Friday, March 22, 2024, at Chicago-Kent. Out-of-town speakers’ reasonable travel expenses to Chicago will be paid for by Chicago-Kent. Papers will be published in a forthcoming issue of the well-respected, peer-edited Employee Rights & Employment Policy Journal, published by the Malin Institute at Chicago-Kent.

Interested participants should send a proposed title and one- or two-paragraph description of your proposal to Professor Nicole Buonocore Porter, Director of the Institute, at [email protected]. Please include “Symposium Proposal” on the subject line and include your institutional affiliation and contact information. Proposals are due by Friday, August 18, 2023. Selected participants will be notified by Friday, September 15. Questions can be directed to Nicole at the email above.

Jeff Hirsch

 

Fifth Annual Equality Law Scholars' Forum

A great opporutnity for junior scholars:

 

Call for Proposals for the Fifth Annual Equality Law Scholars’ Forum

November 10-11, 2023 – Boston University School of Law

Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, at Boston University Law in 2021, at Loyola Los Angeles Law in 2022, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, Loyola Los Angeles; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fifth Annual Equality Law Scholars’ Forum  and Reunion, to be held in Fall 2023. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

This year, because this year’s gathering also will include a reunion, we will be selecting fewer Equality Law Scholars than in prior years. Specifically, we will select three to five relatively junior scholars (untenured, newly tenured, or prospective professors) in the United States. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum and Reunion will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum and Reunion. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening. 

This year’s Forum will be held on November 10-11, 2023, at Boston University School of Law.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 15, 2023.   

Full drafts of papers must be available for circulation to participants by October 20, 2023. 

Note: We urge submission of proposals for drafts that will still be substantially in progress in October/November 2023 over drafts that will be in late-stage law review edits at that time.

 

Proposals should be submitted to:

Leticia Saucedo, UC Davis School of Law, [email protected].  Electronic submissions via email are preferred.

 

 

Jeff Hirsch

Reddy on Reclaiming the Normative Stakes of Labor Unions

Diana Reddy (who is starting full-time next year at Berkeley--congrats!) just had her article, After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions, published in the Yale Law Journal. The abstract:

It is a consequential moment for American labor unions. Over the past decade, public support for labor unions has skyrocketed. Yet even in this moment of renewed public interest, I argue that the American conversation about unions remains constrained by the legacy of past legal decisions. Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. I refer to this jurisprudential paradigm and the sociolegal accommodations that followed as the “law of apolitical economy.” Synthesizing labor history, legal doctrine, sociological theory on social movements, and original empirical work, this Feature traces the trajectory of the law of apolitical economy in courts, identifies its broader cultural reverberations, and marshals new evidence to show that it still matters today.

When liberal lawyers made the political and constitutional case for labor unions in the 1930s, they operated within a socioeconomic context radically altered by the Great Depression. Instead of arguing, as labor movement leaders had in the 1800s and early 1900s, that democracy required people to have autonomy and self-determination in their working lives, and instead of advancing unions’ own emergent fundamental rights claims, they emphasized labor law as sound economic policy, boosting aggregate demand and promoting industrial peace. In the new constitutional equilibrium that emerged after the New Deal, labor-union advocacy within the workplace was treated as transactional rather than normative.

This choice had benefits, but it also had costs. Under the law of apolitical economy, labor unions increasingly found themselves denied First Amendment protection for the forms of broad, solidaristic protest that built the labor movement. And as new social movements began pressing rights claims in the public sphere, labor unions came to be seen as categorically distinct, as interest groups rather than social-movement organizations. When supply-side economics gained prominence in the late 1970s, it was devastating for union legitimacy. New economic theories and the on-the-ground realities they facilitated undermined the New Deal-era economic arguments that had justified labor law. At the same time, unions’ ability to counter with broadly resonant normative arguments was hampered by the detritus of their previous legal bargain. In a moment when rights had become, in sociological parlance, the “master frame” for articulating justice claims, it was well-established that bread-and-butter unionism had little to do with rights, or even right and wrong.

Returning to the present day, I argue that the legacy of the law of apolitical economy continues to shape contemporary discourse, even with public approval at a sixty-year high. Faced with a decimated membership and a legitimacy crisis, labor-movement organizations have sought over the past decade to reassert the normative stakes of unionization. They have used what social scientists call “collective action frames” to show that unions further causes with defined normative stakes. These frames underscore the inherently intersectional role of labor unions in an unequal economy—as institutions that advance society-wide economic equity, racial and gender justice, and community well-being. Yet, they too often discount the value of unions’ primary statutory role: bringing workers together to improve their working conditions. In so doing, they fail to reclaim the inherently political vision of work and workers lost to the law of apolitical economy.

In conclusion, I reflect on the broader implications of this project. The dialogic relationship between law and social movements over the twentieth century—how labor unions were steered away from rights claims while other social movements were steered toward them—continues to shape American law and politics today. In turn, upending the law of apolitical economy can be about more than reclaiming the normative stakes of labor unions; it offers an opportunity to reclaim a transformative vision of rights.

Check it out!

Jeff Hirsch

 

Shu to Join Rothstein & McGinley on Disability Law Casebook

D'Andra Shu (South Texas) will be joining Laura Rothstein (Louisville, retired) and Ann McGinley (UNLV) on the 7th edition of Disability Law: Cases, Problems, and Materials (Carolina Academic Press, forthcoming in time for classes in fall 2024). Shu's a terrific addition to a terrific team and a critical casebook. Here's an excerpt from the authors' letter to adopters:

This message is being sent to you as a current or recent adopter of the 2017 edition of DISABILITY LAW: CASES, PROBLEMS AND MATERIALS. Except for this past summer, we have sent an annual Letter Update to all adopters. Our letter noted previously that until there was a significant number of changes to this area of law, a 7th edition was not contemplated. It is now time for the 7th edition, and we are scheduled to complete that edition for Carolina Academic Press in time for classroom use by Fall 2024. We will also be bringing in D’Andra Shu, Assistant Professor of Law at South Texas College of Law Houston, as a co-author.

Although there have been few Supreme Court decisions and no major statutory changes since 2017, a new edition makes sense now to address the range of COVID-related issues that have affected disability law and because of the current Supreme Court’s approach to areas of law that are highly regulated.

The 7th edition will retain what we believe to be key assets of our textbook—the Chapter Goals, Key Concepts and Definitions, and Hypotheticals (including some new ones). We do not contemplate any major reorganization of the text or adding or deleting any chapters. The Instructor Materials will be updated and will guide the faculty member through the changes and will continue to suggest areas where the instructor might wish to add material relevant to the state in which the course is being taught. The Power Points (and content for those with visual impairments) will be updated.

We would welcome any suggestions and thoughts from our adopters—including what you like about the text and what you would like to see more of. Are there parts of the book that you do not use? Are there topics you would like to see added?

For those of you using the textbook in fall 2023 or spring 2024, we are already working on the Letter Update and plan to make it available by July 1, 2023. This would incorporate issues from the previous letter updates and major new developments through this spring.

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Ohanesian on the Importance of Judicial Deference to the NLRB

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

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

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Bisom-Rapp's New BJELL Article

Congratulations to Susan Bisom-Rapp on the publication of her article The Role of Law and Myth in Creating a Workplace that 'Looks Like America', 43 Berkeley JELL 251 (2022)!!! Here's the abstract:

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection. 

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This Article builds upon that theory by arguing that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: (1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; (2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and (3) new social science research discussing which DEI efforts are most likely to succeed and those most likely to prompt backlash. 

To facilitate evidence-based EEO compliance, this Article advocates changes in liability standards. It also recommends the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the Article urges lawyers to more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias-free U.S. workplaces.

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2023 Louis Jackson Student LEL Writing Competition

Nicole Porter (Chicago-Kent) is distributing a flyer for the 2023 Louis Jackson Memorial National Student Writing Competition in Employment & Labor Law, sponsored by Chicago-Kent’s Martin H. Malin Institute for Law & the Workplace and Jackson Lewis P.C. She encourages students writing papers in the labor and employment law field to submit. The deadline for submissions is January 17, 2023.

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Lobel's New Book: Equality Machine

Congratulations to Orly Lobel (San Diego) on the publication of her new book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022). Here's the author's description:

The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid examples, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets-that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.

 

Congrats, Orly!

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Harkavy's Annual Update & Review of SCOTUS Arbitration Cases

Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN both his annual Employment Law Update and an essay on SCOTUS's four recent compelled arbitration decisions. Here are the abstracts:

 

 

 

2022 Supreme Court Commentary: Employment Law

This article is the author's longstanding annual review of the Supreme Court's employment-related decisions of the term just ended. This year's article about the 2021 Term first summarizes every employment-related decision rendered by the Court through the end of the term in July of 2022. Each case summary is followed by the author's comments about the decision's significance to workplace stakeholders. Also included in this section are abbreviated summaries of all opinions and orders from the so-called "shadow docket" that are of consequence to employment relations. Next, the article provides short statements about each grant of certiorari for the upcoming term on issues affecting employment and labor law. The article concludes with brief additional commentary on the Supreme Court's work as it affects the American workplace.

Fresh Focus: the Supreme Court Confronts Compelled Employment Arbitration

This essay examines briefly four 2022 decisions of the United States Supreme Court dealing with forced arbitration of workplace disputes. The paper summarizes the factual background of each case and posits the effect of each decision on both employers and employees. The paper concludes by relating these four decisions to the Court's continuing embrace of compelled arbitration of employee claims.

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New and Emerging Voices in Workplace Law Call for Papers

Daiquiri Steele writes us the e following call for papers:

 

Call for Papers: New and Emerging Voices in Workplace Law Session at 2023 AALS Annual Meeting

The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law is inviting submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2023 Annual Meeting in San Diego, California, January 3-6, 2023.

Overview: 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 scholars in the field. The session will provide new scholars 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 Professor Matt Bodie, The University of Minnesota School of Law, at [email protected] and Professor Daiquiri Steele, The University of Alabama School of Law, at [email protected]. The deadline for submission is Friday, September 2, 2022.

Selection: Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 23, 2022. Presenters will be responsible for paying their annual meeting registration fee. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 9, 2022.

Questions: Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Daiquiri Steele, The University of Alabama School of Law, at [email protected] and/or the Chair for the Section on Labor Relations and Employment Law, Matt Bodie, at [email protected].

 

Jeff Hirsch

Ohanesian on Administrative Deference & the NLRB

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

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

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

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Prince on the Current State of Employee Classification Laws

Samantha Prince now has the final version of her new article, The Shoe Is about to Drop for the Platform Economy: Understanding the Current Worker Classification Landscape in Preparation for a Changed World, up on SSRN and it looks very informative. The abstract:

Whether a worker is an independent contractor or employee is of great significance in many countries, including the United States. This label drives whether a worker is entitled to many protections and benefits, including, minimum wage, overtime, workers’ compensation, unemployment compensation, anti-discrimination protection, NLRA protection, etc. The difficulty inherent in accurately classifying workers as either independent contractors or employees cannot be overstated. First, there are so many tests spanning all levels of our government. Second, there are so many ways that people work and with the increased popularity of app-based work, classification becomes even more difficult. Simply, some of the tests have not been working well when applied to precarious app-based work. As a result, policymakers are forced to finally bring these issues to the forefront.

Worldwide policymakers and leaders are implementing changes to protect app-based workers. In the United States, the federal government is evaluating whether these changes in the workforce require changes in national labor and tax laws. While campaigning, President Biden pledged to establish a uniform worker classification test for purposes of all federal labor, employment, and tax laws. Subnational governments – states and cities – are also evaluating and making changes in their policies and laws.

In order to make these decisions, policymakers will need to be familiar with the current landscape of tests and statutes. Policymakers should evaluate the approaches that currently are being used and how they have fared so that they can decide whether to strike out with a novel test or adopt one already in use. Although prior articles have considered worker classification laws, and the benefits associated with various classification approaches, things have evolved so quickly that in some respects most of those articles are at least partially out of date. And, having all of this information in one place is critical for ease in policymaking research and deliberations.

This Article fills the current knowledge gap by providing an up-to-date compendium of the current state of worker classification laws. The Article starts with a segment on instabilities and health issues experienced by app-based workers. Then it covers the latest on worker classification laws around the world including the EU Commission's Proposed Directive. It then turns to tests that the U.S. is using, which include traditional tests and new tests from both the state and city levels. The Article explains how these tests are used and summarizes commentary about the strengths and weaknesses of each of these tests. As national, state, and local policymakers consider how best to move forward in regulating the app-based economy and its workers, they are likely to find the information in this Article useful to their deliberations.

Check it out!

Jeff Hirsch

Shnitser: Professional Employer Organizations & Workplace Benefits

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.

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Duff Rethinks Workers' Comp

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.

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Conference Celebrating Karl Klare

From Northeastern University comes word of a conference on April 8, 2022, celebrating the vision and advocacy of labor law scholar Karl Klare.

The conference will be in-person with a live stream for a virtual audience. The four conference panels are titled “Transformative Constitutionalism”, “Unions and Workers (Solidarity Forever)”, “The Law School Classroom (Teaching as a Tool of Progress)”, and “Critical Legal Studies (Why Karl Starts with K)”. For details, including the extraordinary list of speakers and how to register, see here.

– Sachin S. Pandya

Labor & Green New Deal Symposium

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 [email protected].  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.

Jeff Hirsch

Call for Papers: “What has Critical Race Theory Contributed to the Law of the Workplace?”

César F. Rosado Marzán writes to inform us about a great call for papers:

 

CALL FOR PROPOSED PAPERS:

Final papers due February 1, 2022

Employee Rights & Employment Policy Journal, Annual Symposium:

“What has Critical Race Theory Contributed to the Law of the Workplace?”

 

Some influential media pundits, politicians, state legislatures, and the administration of Donald J. Trump launched a frontal attack on Critical Race Theory (CRT). Reasons for the assault on CRT include that CRT theorists allegedly argue that the United States, white people, and other racial groups are inherently and irremediably racist and evil. Attacks include banning teaching CRT in public schools and other institutions of learning and forbidding implicit bias training.

But CRT has, for the most part, been a scholarly theoretical perspective focused mostly on exploring structures of race and racism. It has inspired a large body of work identifying how race and racism pervade in U.S. society despite the end of slavery and Jim Crow. As such, it has contributed to correcting our understandings of bias and to making U.S. law more sensitive to overt and hidden forms of discrimination. Far from arguing that groups are irremediably racist, it has also inspired research on how bias can change and how racism can be transcended, including by law and through worker training.

Unsurprisingly, labor and employment law has been affected by CRT. It has helped expand and historicize legal perceptions of race, color, and national origin; guide legislatures and courts on how appearance, grooming, and hair rules are colored by racist perceptions; understand how immigration status might be racialized; and explore intersectional realities, among other contributions.

In this light, the Employee Rights and Employment Policy Journal is calling for submissions for its annual 2022 symposium related to the contributions of CRT to the law of the workplace. Contributions can also focus on the legal rights that school and university administrators and educators have to resist political intrusions into academic freedom, such as those banning instruction of CRT.

We are seeking abstract submissions to be sent to us by November 12, 2021. Please submit to César F. Rosado Marzán ([email protected]) an abstract that is developed enough to allow the editors to evaluate the thesis and proposed execution of the project as a proposal. Please send the document in Microsoft Word format. Selected authors will be notified by Nov. 23, 2021, if not sooner, of the interest in potential publication. Completed papers will be expected by February 1, 2022. Any inquiries about the Call for Papers should be submitted to [email protected].

This Symposium is sponsored by The Labor Law Group, a non-profit trust of labor and employment law scholars who collaborate on various educational projects. Labor Law Group member César F. Rosado Marzán (Iowa Law) will serve as symposium editor working with journal co-editors Michael Green (Texas A&M) and Noah Zatz (UCLA).

Employee Rights and Employment Policy Journal is a faculty-edited, peer-reviewed journal co- published by The Labor Law Group and IIT Chicago-Kent College of Law. Authors uniformly praise the Journal’s editing process. The Journal has a student staff who provide cite checking and Bluebooking, but their work is reviewed by the faculty editors, and authors do not deal directly with students.

 

-Jeff Hirsch