Wednesday, July 1, 2020
Edward 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.
Monday, June 29, 2020
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!
Wednesday, June 24, 2020
James 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.
Friday, June 19, 2020
Craig 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.
Tuesday, May 26, 2020
Chris 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.
Monday, May 25, 2020
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
- 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: firstname.lastname@example.org; Sachin Pandya: email@example.com) and let us know.
Jeff Hirsch & Sachin Pandya
Monday, May 11, 2020
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 firstname.lastname@example.org. Footnotes should comply with The Bluebook: A Uniform System of Citation (20th ed. 2015).
Wednesday, May 6, 2020
A 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.
Saturday, May 2, 2020
A special congratulations to prolific scholar and friend of blog Brad Areheart, who just posted his fascinating new piece on SSRN, Organizational Justice and Antidiscrimination, which was recently published in the Minnesota Law Review. From the abstract:
Organizational Justice and Antidiscrimination, 104 Minnesota Law Review 1921 (2020). Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice—a theory empirically grounded in behavioral science—provides novel guidance for how to proactively restructure workplace policies around the principles of fairness and equity. This Article further claims, based upon empirical evidence, that Organizational Justice can do the work of antidiscrimination by: (1) decreasing discrimination in the first place, (2) moderating the effects of discrimination, and (3) increasing internal reporting of harassment and discrimination. Finally, this Article provides insights for how to design policies that promote both actual justice and perceptions of justice in the workplace.
Brad’s work always makes substantive contributions to our field, and this article is another wonderful piece of scholarship. Definitely take a look if you have the time this spring or summer!
Friday, April 10, 2020
Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis
Having a hard time making sense of all of the economic measures that Congress is using to address the COVID-19 crisis? Then check out "Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis," by Hiba Hafiz, Shu-Yi Oei, Diane Ring, and Natalya Shnitser. The abstract:
The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance and a social safety net to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire.
This Working Paper — which will be continually updated to reflect current developments — will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020, subject to subsequent Technical Corrections of March 16, 2020, and then passed by the Senate without amendment and signed by the President on March 18, 2020. Next, it analyzes the provisions of H.R. 748 (the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES” Act) enacted into law on March 27, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.
Sunday, March 22, 2020
Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius
A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights
William A. Herbert and Joseph van der Naald
Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih
Does a Prolonged Faculty Strike in Higher Education Affect Student Achievement in First Year General Education Courses?
Stephen J. Jacquemin, Christine R. Junker, and Mark Cubberley
Maintaining peer-based faculty evaluation: a case study involving student surveys of teaching
Laura Murphy and Leah M. Akins
Examining the Employment Profile of Institutions Under the Mission-Driven Classification System and the Impact of Collective Bargaining
Louis Shedd, Stephen G. Katsinas, and Nathaniel Bray
Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak
Tuesday, March 17, 2020
Edward A. Zelinsky (Cardozo) has just posted on SSRN his article (forthcoming 70 Catholic U. L. Rev.) Defining Who Is An Employee After A.B.5: Trading Uniformity and Simplicity for Expanded Coverage. Here's an excerpt from the abstract of his thoughtful and nuanced article:
My assessment of California’s A.B.5 differs from the evaluation advanced by the advocates and opponents of that legislation: I conclude that A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. ...
A review of A.B.5 and the background from which it emerged leads to a more nuanced story than either of the simple pro/con narratives. For those who assert that current law is uncertain and too complex, A.B.5 makes matters worse. A.B.5 is replete with exceptions, exemptions and interpretive challenges which make the law of employee status even more complicated and unclear than it was before. For those who seek expanded employment-based protection for workers in the modern economy, the myriad exceptions and exemptions of A.B.5 are a sobering warning of the practical and political realities standing in the way of such expansion. For those defending the status quo, A.B.5 is an equally sober warning of considerable dissatisfaction with that status quo.
A.B.5 is thus an important data point which indicates that those who seek to reform the law of employee status face a trade-off: Efforts to expand the coverage of employment-based protection laws will make the law more complex and less uniform – as did A.B.5. Given the relevant political forces and policy considerations, legislators can broaden the reach of employment-based regulatory laws to cover more workers in the modern economy or they can simplify and unify the legal definition of employee status. They cannot do both.
Thursday, February 13, 2020
Suja Thomas (Illinois) has just posted on SSRN yet another blockbuster (and highly disturbing) article, The Customer Caste: Lawful Discrimination by Public Businesses. Here's the article:
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.
Hopefully this article sparks change.
Thursday, January 16, 2020
My Akron colleague Mike Gentithes gives us yet another reason to hate the Janus decision -- the way it undermines stare decisis generally, with potentially dire consequences for abortion rights, civil liberties, labor/employment rights generally, etc. etc. The article is Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis; it is a depressing but persuasive read. Here's the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.
This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.
Monday, December 2, 2019
Zach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:
Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.
We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.
We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).
Monday, October 21, 2019
César Rosado writes to tell us about an upcoming symposium at Chicago-Kent on Thursday, November 14, 2019: Alt-Labor Law: The State of the Law of the New Labor Movement. Here's a schedule of the symposium; here's a description:
This proposed symposium will bring together a group of highly accomplished scholars who have been writing about nontraditional labor organizing and other ways to break and redistribute economic power to describe the current state of the law pertaining to “alt-labor,” or what the volume will refer to as “alt-labor law.” Parts of alt-labor law lie within traditional labor and employment law, but a lot of it does not. Alt-labor law includes first amendment protections used by non-employee labor unions and worker centers, laws regulating non-for-profit associations, state laws dealing with industry wide-minimum wage setting and voluntary dues deduction, and anti-trust laws that impinge on the rights of independent contractor unions, among others.
This proposed volume of the Chicago-Kent Law Review volume will serve as a research tool for academics, policy makers, and legal practitioners. They will have, in one place, the state of the law of this fledgling legal field. The live discussion at Chicago-Kent will help these scholars learn about the disparate and discreet pieces of the law of alt-labor to enrich the final drafts of their articles. It will also attract a public interested in alt-labor, not least in Chicago, home of many very active alt-labor groups.
Thursday, October 10, 2019
The Southeastern Association of Law Schools is now accepting panel proposals for its 2020 conference. For anyone who typically goes to SEALS, you know that there are typically several labor and employment law panels, in large part thanks to the work of Michael Green. Iif you're planning on attending this summer or are just thinking about it (and if you are, you should go--email me and I can tell you why), I'm writing to encourage you to let me know if you're interested in participating in panels or--even better--putting together one. The process is very easy and discussion groups leave a lot of room for flexibility on both topics and participants.
So, email me at email@example.com if you have any interest--no need to commit fully yet. And while I look forward to hearing from people who come regularly, I'd also love to hear from newcomers, especially more junior academics.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Tuesday, September 10, 2019
Just a scholarly note that Duke's Law and Contemporary Problems journal symposium issue on "Work After the End of Employment" is now published. I was lucky enough to moderate part of the symposium, which was really interesting and features Catherine Fisk (who was the special editor for the issue), Sameer Ashar, Cynthia Estlund, Michael Oswalt, Sanjukta Paul, and Marshall Steinbaum. There's also a student note by William Sowers.
Wednesday, August 28, 2019
Bill Herbert (CUNY - Hunter College) and Jacob Apkarian (CUNY - York College) have just posted on SSRN their empirical article You’ve Been with the Professors: An Examination of Higher Education Work Stoppage Data, Past and Present (forthcoming 23 EREPJ ___ (2019)). Here's the abstract:
This article analyzes work stoppage data in calendar years 2012-2018 involving academic and non-academic employees at higher education institutions. It contextualizes the recent data through a review of the history of unionization and strikes in the field of education along with faculty strike data for the period 1966-1994. The study contributes to the literature concerning unionization and collective bargaining in higher education and will be of value to those who study or are engaged in labor relations at colleges and universities.
We find that there was a total of 42 strikes and one lock-out involving faculty, graduate assistants, and non-academic employees in higher education during the seven-year period from 2012 to 2018. The largest number of strikes per annum was in 2018, which was more than double the number in 2017. Exactly one-half of all strikes during the seven-year period were by non-academic employees, one-third of the strikes by faculty, and one-sixth by graduate assistants. The states with the greatest number of strikes were Illinois, California, and Washington.
Faculty units affiliated solely with AFT participated in 29% of all faculty strikes during the period. An additional 13% of the faculty strikes involved units co-affiliated with AAUP and AFT. AFSCME and UAW played leading roles in strikes involving staff and graduate assistants during the period with AFSCME averaging one strike per year over the period.
There was a total of 14 faculty strikes with an average of 2.0 per year in the period 2012-2018, compared to a total of 172 faculty strikes with an average of 5.9 per year during the period 1966-1994. The average duration of faculty strikes during the 2012-2018 period was 2.9 days with a median of 3 days, as compared to the average strike duration of 13.9 days and median duration of 8.5 days for the period 1966-1994. Non-tenure-track faculty were involved in 93% of all faculty strikes in 2012-2018, seven strikes with tenure-track faculty and six without.