Wednesday, March 20, 2019

The NLRB Decision on Northwestern Football: Corrada Writes the Missing Dissent

Roberto-corrada-fullRoberto Corrada (Denver) has just published on SSRN Northwestern Football Case Essay. Here's the abstract:

In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.

Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.

rb

March 20, 2019 in Labor Law, Scholarship | Permalink | Comments (0)

Monday, February 25, 2019

Secunda on Hybrid Federalism, OSHA, and the Right to Disconnect

5431766Paul Secunda (Marquette) just posted on SSRN his article (46 Pepperdine L. Rev.) Hybrid Federalism and the Right to Disconnect. Here's the abstract:

The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.

This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.

In a forthcoming book chapter, Charlotte Garden argues similarly that NLRA preemption should be reformed to let state and local governments enact more worker-friendly labor laws.

rb

February 25, 2019 in Scholarship, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Friday, February 15, 2019

Emerging Technology in the Workplace: AI, Robotics, Virtual Reality, & Monitoring

I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:

The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work. 

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

Thanks.

-Jeff Hirsch

 

February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Saturday, February 9, 2019

Porter Posts ADA Articles

NicoleNicole Porter (Toledo) has just posted on SSRN a pair of articles well worth reading. Here's the abstract for the article A New Look at the ADA's Undue Hardship Defense (forthcoming Missouri L. Rev.):

Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense, but also help to more broadly illuminate the scope of an employer’s obligation to provide reasonable accommodations.

Here's the abstract for Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era? (forthcoming Touro L. Rev.):

The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.

rb

February 9, 2019 in Disability, Scholarship | Permalink | Comments (0)

Wednesday, January 9, 2019

Flake Advocates Interactive Process for Religious Accommodations

DallanMy prolific colleague Dallan Flake has just posted on SSRN his most recent article, Interactive Religious Accommodations. Some of you may have seen him discuss it at AALS. Here's the abstract:

This Article argues employers should be required to engage in the same interactive process with employees seeking religious accommodations as they are with employees seeking disability accommodations. The interactive process generally obligates the employer and employee to work together in good faith to determine whether the employee can be reasonably accommodated. Neither the Americans with Disability Act nor Title VII of the Civil Rights Act explicitly mandates the interactive process, yet courts routinely read this requirement into the former statute but not the latter. The practical effect of this distinction is that religious accommodations generally are more difficult to obtain, and employees seeking such accommodations have less control over the process and outcome. Consequently, employees may be forced to choose between their jobs and their religious beliefs—the very conundrum Title VII seeks to avoid.

The legal justification for mandating the interactive process for disability accommodations but not religious accommodations is uncompelling, prompting a handful of courts to require the interactive process for both types of accommodations. More courts should follow suit. There is considerable upside, and virtually no downside, to extending the interactive-process requirement to religious accommodations. It benefits employees and employers alike by increasing the odds of a mutually agreeable accommodation, which in turn reduces the risk of litigation. Moreover, good-faith participation in the interactive process better positions a party to prevail when litigation does ensue. The interactive process also benefits courts, not only by lightening dockets through reduced litigation, but also by providing a straightforward, highly adaptable, and familiar framework through which to more effectively evaluate accommodation claims. As religious-accommodation requests increase, both in number and types, the interactive process can help reduce conflict by ensuring employers and employees work together to determine whether a reasonable accommodation is possible.

rb

 

January 9, 2019 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Tuesday, October 30, 2018

Seiner on the Discrimination Presumption

Joe Seiner just his latest article, The Discrimination Presumption, 94 Notre Dame L. Rev. __ (2019) (Forthcoming), on SSRN.  The short version--everyone's had it wrong and Twombley & Iqbal don't apply to Title VII.  The abstract:

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.

Check it out!

-Jeff Hirsch

October 30, 2018 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Wednesday, September 5, 2018

Yelnosky on "Labor Law Illiteracy"

Michael Yelnosky has just published on SSRN an new essay essay, "Labor Law Illiteracy.”  The abstract:

Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.

I'm sure many readers will be nodding their heads along with this one. So check it out.

-Jeff Hirsch

September 5, 2018 in Labor Law, Scholarship | Permalink | Comments (0)

Sunday, September 2, 2018

ILR Review Special Issue: Immigration and the World of Work

Kate Griffith (Cornell, ILR) writes to share the August 2018 Special Issue of the ILR Review, which focuses on workplace conditions and immigration legalization initiatives cross nationally.

Below is an excerpt from the introduction entitled “Introduction to a Special Issue on the Impact of Immigrant Legalization Initiatives: International Perspectives on Immigration and the World of Work,” (authors are Maria Lorena Cook, Shannon Gleeson, Kati L. Griffith, and Lawrence M. Kahn)

“The articles in this special issue draw on studies of legalization initiatives in major immigrant destinations: Canada, Italy, and the United Kingdom. Together they underscore the importance of cross-national perspectives for understanding the range of legalization programs and their impact on immigrant workers, the workplace, and the labor market”

For more from this special issue, which will be free to read for a limited amount of time, click here.

-Jeff Hirsch

 

September 2, 2018 in International & Comparative L.E.L., Labor and Employment News, Scholarship | Permalink | Comments (0)

Tuesday, August 28, 2018

Greene & O'Brien Deliver Requiem for Workers' Class Actions

Greene O'brienStephanie Greene and Christine O'Brien (both Boston College-Management) have just posted on SSRN their article (forthcoming Stanford J. Civil Rights & Civil Liberties) Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements, #Timesup on Workers' Rights. Here's the abstract:

The United States Supreme Court dealt a serious blow to workers’ rights in Epic Systems Corp. v. Lewis, 584 U.S. __(May 21, 2018) when it held that employers may require employees to waive their rights to class or collective action. Employees had hoped the Court would find that mandatory individual arbitration provisions are illegal because Section 7 of the National Labor Relations Act guarantees employees the right to engage in concerted activities for mutual aid or protection. The Court, however, held that the Federal Arbitration Act requires arbitration provisions to be enforced as written. While the three cases before the Court involved wage and hour claims, the Court’s Epic decision impacts many other types of employment disputes that are diverted from courts to individual arbitration – including sexual harassment and other forms of discrimination in the workplace. In the era of #MeToo, some employers may choose to exempt sexual harassment claims from these mandatory private arbitration agreements due to public pressure to do the right thing. Nonetheless, mandatory arbitration provisions cover at least 60 million U.S. workers, and those requiring individual arbitration keep labor and employment claims hidden, and foreclose assertion of rights and achievement of appropriate remedies. This paper discusses the Court’s decision in Epic Systems, what worker rights remain after the decision, and what steps employee advocates and Congress might take to remedy the negative impact of the Court’s decision on workers’ right to act collectively.

I can't bear to write on employment arbitration any more -- theSCOTUS cases are just so bad on both policy and statutory-interpretation grounds. I'm glad others like Stephanie & Christine are fighting the good fight.

rb

August 28, 2018 in Arbitration, Scholarship | Permalink | Comments (0)

Friday, August 3, 2018

Harkavy Publishes Annual LEL SCOTUS Review

HarkavyJon Harkavy (Patterson Harkavy) has just posted on SSRN the 2018 edition of his annual Supreme Court Commentary reviewing all employment and labor decisions of the recent term and summarizing the employment-related cert grants for the upcoming term. 

rb

August 3, 2018 in Scholarship | Permalink | Comments (0)

Thursday, July 19, 2018

AALS Call for Papers: Labor & Employment Law Protections and Religious Accomodations

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts as part of a Call for Papers to be presented at the 2019 Annual Meeting program in New Orleans. The program, titled Increasing Tension: Labor and Employment Law Protections and Religious Accommodations, will take place on Friday, January 4, 2019, from 10:30 am to 12:15 pm, and it is co-sponsored by the AALS Employment Discrimination Law and Law and Religion Sections. This program will follow the Labor Relations and Employment Law and Employment Discrimination Sections breakfast held from 7:00 a.m. to 8:30 that morning.

This program will focus on the increasing tension between workplace and antidiscrimination laws and religious freedom.  Panelists will explore the challenges presented by this tension when religious exemptions from workplace and antidiscrimination laws are provided to religious organizations, employers with deeply held religious beliefs, and individual employees.  A panel of leading labor and employment law and law and religion scholars will address that issue from varying perspectives, including constitutional law (religious freedom and/or compelled speech and association in the workplace), traditional labor law (NLRB’s jurisdiction over religiously affiliated employers and the impact on employee organizing drives), and employment discrimination law.

We are seeking an additional speaker or speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Joseph Mastrosimone, at joseph.mastrosimone@washburn.edu by Friday, September 17, 2018. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 4, 2019. 

 

-Jeff Hirsch

July 19, 2018 in Conferences & Colloquia, Employment Discrimination, Labor and Employment News, Religion, Scholarship | Permalink | Comments (0)

Tuesday, May 15, 2018

Flake on the Efficacy of Ban-the-Box Laws

FlakeCongratulations to my ONU Law colleague Dallan Flake on the placement of his new article Do Ban-the-Box Laws Really Work? at 104 Iowa L. Rev. ___ (forthcoming 2019). Here's the abstract:

Ban-the-box laws, which delay an employer’s inquiry into an applicant’s criminal record until later in the hiring process, are gaining remarkable traction at the local, state, and even federal levels. But the assumption that employers will be more likely to hire ex-offenders if forced to evaluate their qualifications before discovering their criminal record has gone largely untested. Empirical uncertainty has given rise to various criticisms of ban-the-box laws, chiefly that they merely postpone the inevitable decision not to hire the ex-offender — often at considerable cost to both the employer and applicant — and, worse yet, that they may actually harm racial minorities by causing employers to assume all minority applicants have a criminal record and eliminate them from consideration on that basis.

This Article reports the findings of a field experiment I conducted during the summer of 2017 that tested whether ban-the-box laws are working, and if so, for whom. The experiment entailed applying to over 2,000 food-service job openings in Chicago, which bans the box, and Dallas, which does not, using a fictitious ex-offender applicant profile. One-third of the applications in each city used a black-sounding name, one-third used a Latino-sounding name, and the other third used a white-sounding name. The experiment tracked each application for ninety days to determine whether it elicited an employer callback (i.e., a request for an interview or additional information). I then utilized multiple regression modeling to analyze callback differentials between cities and across races.

The results from this study support the claim that ban-the-box laws increase employment opportunities for ex-offenders, as an applicant was 27 percent more likely to receive a callback in Chicago than in Dallas. The results refute the contention that banning the box harms racial minorities. All three applicants had higher callback rates when the box was banned, with the black applicant experiencing the largest increase. Still, the black applicant had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.

In light of these key findings that banning the box increases an ex-offender’s odds of employment without harming racial minorities, this Article considers the potential costs and benefits of ban-the-box laws, both standing alone and as part of broader efforts to successfully reintegrate ex-offenders into society. Although banning the box may prove helpful in improving ex-offenders’ job prospects, it is hardly sufficient; more is required to ensure that upon release, an ex-offender’s prison sentence does not become a life sentence.

rb

May 15, 2018 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Thursday, March 1, 2018

How Does the NLRB Read Its Statute?

How does the NLRB typically do statutory interpretation? For her paper An Empirical Examination of Statutory Interpretation, forthcoming in the Minnesota Law Review, Amy Semet looked closely at the less than 2 percent of NLRB opinions issued from 1993 to 2016 in which the Board majority didn't just refer to prior case decisions, but itself explicitly engaged in some kind of statutory interpretation of the National Labor Relations Act.

Among other things, for the 121 cases in which NLRB majority opinions interpreted the NLRA “as a matter of first impression,” Semet reports the kinds of statutory-interpretation arguments that appeared (p. 31, tbl. 1):


Statutory-Interpretation Method by Case Type (Percent)
Case Type Text-Partial Text-Primary Language Canons Leg. History
All 63 8 20 39
Vs Employer 60 8 20 31
Vs Unions 71 10 19 57
Election/Bargaining Unit 62 8 22 43

And here, from the paper abstract, on what Semet ultimately found:

Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history.

In short, Semet concludes that “despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do.”

Sachin Pandya

March 1, 2018 in Labor Law, Scholarship | Permalink | Comments (4)

Widiss on Intimate Liberties and Antidiscrimination Law

WidissDeborah Widiss (Indiana) has a really interesting new article on SSRN: Intimate Liberties and Antidiscrimination Law, published in the Boston University Law Review. From the abstract:

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several state supreme courts held that landlords who refused to rent to unmarried couples were responding to unprotected conduct (i.e., non-marital intimacy) rather than engaging in impermissible discrimination on the basis of marital status. Similar arguments are made today in cases concerning same-sex couples who are denied wedding-related services or unmarried pregnant women who are fired. This Article argues such decisions misconstrue the relevant statutory language, and it shows how modern constitutional doctrine should inform the interpretation of private antidiscrimination law to offer more robust protections for intimate liberties. 

This Article also addresses whether antidiscrimination protections related to intimacy can be enforced despite objections premised on religious beliefs. Some courts, as well as the Trump Administration, have suggested that statutes prohibiting discrimination on the basis of marital status or sexual orientation serve less “compelling” interests than provisions prohibiting race discrimination. This argument is deeply flawed. Courts have long recognized that statutes intended to eliminate discrimination serve compelling purposes, even when they address factors that do not trigger strict scrutiny under the Equal Protection Clause. The compelling nature of antidiscrimination laws related to intimate liberties should be especially obvious: They protect individuals’ freedom to make fundamentally important choices that are central to personal dignity and autonomy.

In my view, the interconnectedness of liberty and equality is not given enough scholarly attention. This article is a welcome contribution, and I'm excited to read the whole thing.

MM

March 1, 2018 in Employment Discrimination, Religion, Scholarship | Permalink | Comments (0)

Wednesday, January 31, 2018

Feminist Judgments: Employment Discrimination Opinions Rewritten

Just in from Friends-of-Blog Ann McGinley (UNLV) and Nicole Porter (Toledo), the information to apply can be Downloaded Here:

 

Dear Colleagues,

 

Ann McGinley and I (Nicole Porter) invite you to apply to our Revised Call for Authors for an exciting new project we are working on: Feminist Judgments: Employment Discrimination Opinions Rewritten. Details about the project and how to apply to be one of the authors of a rewritten opinion or commentary are all in the Revised Call for Authors.  Please distribute to anyone who might be interested. And if you have already applied to us, please note that there is no need to do so again. 

 

Thank you!

Nicole Porter

January 31, 2018 in Scholarship | Permalink | Comments (0)

Sunday, January 28, 2018

Labor Law & Practice in SE Asia

TrangAs many of you know, I spent the better part of winter break in Southeast Asia, teaching or conferencing in Viet Nam, Myanmar, and Cambodia. If any of you have an interest in visiting the area or contacting folks in the labor/academic community there, let me know and I'll be happy to help make connections.

Meanwhile, I've just posted on SSRN an article I've co-authored with Trần Thị Kiều Trang (Hanoi Law University) On the Precipice: Prospects for Free Labor Unions in Vietnam (forthcoming San Diego Int'l L.J.). Here's the abstract:

Viet Nam is rapidly transitioning economically, in large part due to the pro-trade policies that have attracted international capital. A necessary component for Viet Nam to further integrate into the world economy is to develop a system of industrial relations that will ensure industrial stability and reassure international manufacturers that there is no risk of embarrassment resulting from revelations of brutal or unsafe working conditions. Positive signs for rapid labor reform were visible as recently as early 2016 with the Trans-Pacific Partnership (“TPP”), a trade agreement intended to integrate trade among twelve countries (including Viet Nam), which would have set international benchmarks and a fixed deadline for labor reform.

Notwithstanding the withdrawal of the U.S. from TPP negotiations, labor reform in Viet Nam continues, as there is currently a vigorous debate within the country over which direction reform should take. This article describes the existing labor regime in Viet Nam, and how the ILO and the TPP jump-started the most recent wave of labor reform. It then analyzes Vietnamese labor law, specifically as compared to ILO norms, and evaluates current proposals for reform.

rb

January 28, 2018 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Friday, January 12, 2018

Student Writing Competition on Employee Benefits

AcebPaul Caron over at TaxProf Blog sends word that the American College of Employee Benefits Counsel is sponsoring its 14th Annual Employee Benefits Writing Competition on any topic in the field of employee benefits law. The competition is open to any J.D. and graduate (L.L.M. or S.J.D) law students enrolled at any time between August 15, 2017 and August 15, 2018. Two $1,500 prizes may be awarded. The submission deadline is June 1, 2018.

rb

January 12, 2018 in Pension and Benefits, Scholarship, Teaching | Permalink | Comments (0)

Tuesday, December 19, 2017

Labor and Higher Education Paper and Conference

HunterSome news from friend-of-the-blog, Bill Herbert (Hunter College):

This article begins with a brief history of unionization and collective bargaining in higher education. It then presents data concerning the recent growth in newly certified collective bargaining representatives at private and public-sector institutions of higher education, particularly among non-tenure track faculty. The data is analyzed in the context of legal decisions concerning employee status and unit composition under applicable federal and state laws. Lastly, the article presents data concerning strike activities on campuses between January 2013 and May 31, 2017.

  • On-registration has begun for the National Center's 45th annual higher education labor-management conference in New York City on April 15-17, 2018.  The theme of the conference is Facing New Realities in Higher Education and the Professions.

    The keynote speaker will be Dean David Weil of the Heller School for Social Policy and Management, Brandeis University, and author of the Fissured Workplace.

    The conference plenary will discuss Dr. Martin Luther King, Jr. and his legacy for our times withWilliam P. Jones, University of Minnesota; Derryn Moten, Alabama State University, and Jeanne Theoharis, Brooklyn College, CUNY.

    The following are the subjects of some of the confirmed conference workshops and panels:

    -Workshops on April 15, 2018:  Unionization and collective bargaining for administrators and academic labor; bargaining over health care in higher education; preparing, presenting, and defending at arbitration; financial analysis in higher education; effective lobbying for higher education

    -Panels on April 16-17, 2018: Responding to Janus: collective bargaining and membership engagement; recently negotiated first contracts for adjunct faculty; bargaining a first contract for graduate student employees; interest-based bargaining at community colleges; wage discrimination at universities and professional schools; creative solutions for resolving wage compression; unionization at religiously-affiliated colleges and universities; unionized environments at academic libraries; and unionization of doctors and nurses.

 

-Jeff Hirsch

 

December 19, 2017 in Conferences & Colloquia, Labor and Employment News, Scholarship | Permalink | Comments (0)

Friday, December 8, 2017

Bornstein on Equal Work

BorensteinStephanie Bornstein (Florida) has just posted to SSRN her article Equal Work (forthcoming Maryland L. Rev.), which discusses how existing law allows both racial and gender pay gaps to persist. Here's the abstract:

Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average 80 cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only 71 cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was 35 years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in hours worked and childbearing time off for women and in education and experience levels for minority workers), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?

 

Continue reading

December 8, 2017 in Employment Discrimination, Scholarship | Permalink | Comments (1)

Wednesday, November 15, 2017

Widiss on Workplace Effects of Intimate Partner Violence

WidissDeborah Widiss (Indiana) has just posted a new book chapter on SSRN: Addressing the Workplace Effects of Intimate Partner Violencein Violence and Abuse in the Workplace (Cary Cooper & Ronald Burke eds., forthcoming 2018).

Here's the abstract:

Although most physical violence against intimate partners occurs in the home, intimate partner violence (IPV) also affects workplaces. It often causes absences, productivity losses, and employee turnover; less commonly, perpetrators physically attack their intimate partners at work. This book chapter discusses best practices for decreasing workplace disruptions and the risk of workplace violence caused by IPV, and it explains legal standards that may apply. The primary focus is the United States, but research and legislation from other countries is also included. It also identifies websites that provide research, model policies, and other tools for organizations seeking to address IPV, including resources regarding employment of perpetrators of IPV.

This topic feels especially salient given the role of family violence in recent high profile shootings. This chapter looks like a helpful resource, and I'm looking forward to the book's release.

MM

November 15, 2017 in Books, Scholarship, Worklife Issues, Workplace Safety | Permalink | Comments (0)