Tuesday, December 8, 2020

Bornstein on Pregnancy Discrimination & the Meaning of Equaltiy

BornsteinStephanie Bornstein has just posted on SSRN her article The Politics of Pregnancy Accommodation, 14 Harv. Law & Policy Rev. 293 (2020). It's a great description of the history -- and likely future -- of the meaning of "equality" in the context of pregnancy. Here's the abstract:

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.

This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.

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December 8, 2020 in Employment Discrimination, Scholarship | Permalink | Comments (2)

Thursday, December 3, 2020

Ajunwa on COVID-Immunity Work Requirements and Economic Inequility

Ifeoma Ajunwa (my soon-to-be new colleague!) has just published a short piece in Harvard's Bill of Health, "OVID-19 Immunity as Passport to Work Will Increase Economic Inequality."  Some excerpts:

As scientists develop increasingly accurate tests for COVID-19 immunity, we must be on guard as to potential inequities arising from their use, particularly with respect to their potential application as a prerequisite for returning to the workplace.

A focus on immunity as a yardstick for return to work will only serve to widen the gulf of economic inequality, especially in countries like the U.S., which has severe racial health care disparities and uneven access to effective healthcare. This focus could also serve to diminish societal support for further understanding and curtailing the disease....

History has shown that immunity to disease as passport to work can draw a dividing line based on both socio-economic factors and racial group memberships. Writing for Slate, Rebecca Onion notes that “[w]hen yellow fever ravaged 19th-century New Orleans, wealthy white people who ‘acclimated’ [i.e., developed immunity] were rewarded.” White people who had survived yellow fever benefited from “immunoprivilege,” while others suffered social and economic repercussions. In the 21stcentury, a focus on coronavirus immunity rather than prevention of infection could play out similarly.

To acquire immunity, an individual must first survive the disease. Surviving the disease necessities adequate healthcare. Yet, access to healthcare services in the U.S. is unequal. While some COVID-19 patients, like President Trump, are able to receive high levels of healthcare (and even experimental drugs), others lower on the socio-economic spectrum do not have health insurance and can only receive emergency care. Thus, immunity as passport to work would only serve to increase inequality as it would reward those who could afford the care needed to survive.

It is also worth noting that people of color are generally more likely to die of the disease than their white counterparts. Could this lead to a social (even if not scientifically proven) view that white people have greater immunity to the disease than others? If so, imagine how this social view could play out in racial employment discrimination as businesses re-open. Past research shows that racial minorities have had to contend with genetic discrimination in the workplace. ...

It's definitely worth reading the entire piece, so check it out!

Jeff Hirsch

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

Saturday, November 28, 2020

NYU Conference: Re-Training America for the Future of Work

NYU Law School's Center for Labor & Employmet Law is holding an interesting conference this week on "Re-Training America for the Future of Work." The info:

Thursday, December 3 | 9:00 a.m. - 12:00 p.m. (Eastern) -- Zoom 
Co-Organizers: Profs. Samuel Estreicher and Jonathan Harris.

The introduction of artificial intelligence, and machine learning in the workplace has sparked vigorous debate around the extent of worker displacement that could result. Imbedded in these conversations is a consensus on the need for major efforts at worker training, retraining, upskilling, and reskilling. The discussants will cover varying approaches to workforce training to meet the demands of employers for skilled workers while ensuring that high quality career paths await the trainees. The discussants will highlight barriers to quality jobs, including unnecessary licensure requirements, and obstacles to establishing effective training programs. They will also evaluate various approaches to workforce development, including private-sector initiatives, community college-led training, training intermediaries, union and DOL-backed Registered Apprenticeship, a new Industry-Recognized Apprenticeship Program, regional investment, and other models that encourage collective investment in training today’s and tomorrow’s workers. REGISTER

Hon. John P. Pallasch, Assistant Secretary for Employment and Training at the U.S. Department of Labor, will share opening remarks. Other confirmed discussants include:
  • Daniel Bustillo, Director, Healthcare Career Advancement Program (H-CAP)
  • Robert Chiapetta, Director of Government Relations, Toyota USA
  • Prof. Morris Kleiner, AFL-CIO Chair in Labor Policy, University of Minnesota Humphrey School of Public Affairs
  • Dr. Livia Lam, Senior Fellow and Director of Workforce Development Policy, Center for American Progress
  • James Murphy, Esq., Spivak Lipton 
  • Amy Peterson, Executive Director, NYC Mayor's Office of Workforce Development
  • Paul Salvatore, Esq., Proskauer
  • Teresita Wisell, Vice President and Dean for Workforce Development and Community Education, Westchester Community College

Jeff Hirsch

November 28, 2020 in Labor/Employment History, Scholarship | Permalink | Comments (0)

Saturday, November 21, 2020

EREPJ Call for Papers!

Great call for papers opportunity with EREJP!  From Michael Green...

CALL FOR PROPOSED PAPERS: Final papers due February 1, 2021, Employee Rights & Employment Policy Journal, Annual Symposium: “What Matters for Black Workers after 2020?” As we approach the end of a tumultuous year for all of us and, in particular for black workers, we are seeking papers for publication in Issue 1, Volume 25 of the Employee Rights & Employment Policy Journal on the topic of “What Matters for Black Workers after 2020?”

In 2020, we saw the senseless killings of George Floyd, Breonna Taylor and so many others that led to national and international protests in support of Black Lives Matter (BLM). Unions and many black workers joined in further BLM solidarity during the Strike for Black Lives Matter held on July 20, 2020. Black athletes have engaged in several prominent acts supporting BLM, including kneeling by Colin Kaepernick and other NFL players, the longstanding activism efforts by members of the WNBA, and the NBA wildcat strike in response to the Jacob Blake shooting. Likewise, COVID-19 disproportionately affected black individuals, many of whom were considered essential workers, in substantial and different ways than other groups.

Divisive political actions created many hostilities for black workers in 2020, including the issuance of an executive order banning discussions of implicit bias and critical race theory in training programs of federal contractors as well as the increasing prevalence of white supremacist and militias groups who openly carried weapons threatening many black protesters and poll workers. Unfortunately, 2020 resulted also in the loss of many black civil rights leaders including John Lewis, Elijah Cummings, C.T. Vivian, and Joseph Lowery. After the 2020 election, there remains considerable uncertainty about legislative, executive, and judicial actions in response to the political appointments and agendas of the last four years that may create significant benefits or burdens for black workers. Black persons also continue to have lower salaries and levels of employment with greater opportunities to be arrested or imprisoned.

With these topics and any others that may affect black workers in mind, we ask all the phenomenal, experienced, developing, and budding scholars who have an intellectual interest in matters that affect black workers as we end 2020 to consider this call for proposals to submit a paper. If you are working on or contemplating writing about the above issues or any other key issues that black workers will have to face after 2020, please consider submitting your work for publication. We would like to have initial proposals by December 11, 2020 and final drafts, by Monday, February 1, 2021. This Symposium on “What Matters for Black Workers after 2020?” is sponsored by The Labor Law Group, a non-profit trust of labor and employment scholars who collaborate on various educational projects. Labor Law Group member Michael Green (Texas A&M) will serve as Symposium editor working with journal co-editors and Labor Law Group members, Martin Malin (Chicago Kent) and Noah Zatz (UCLA).

Submission Format and Instructions. We know this is a short window. But to know what the prospects for consideration are, we ask you by Friday, December 11, 2020 to please submit a Microsoft Word document as an abstract, précis, and/or introduction of the article that is developed enough to allow the editors to evaluate the thesis and proposed execution of the project as a proposal to Michael Z. Green, at mzgreen@law.tamu.edu and Andrea Hudson at ahudson@law.tamu.edu. Selected authors of proposals will be notified by December 21, 2020, if not sooner, of the interest in potential publication. Completed papers will be expected by the Monday, February 1, 2021 deadline. Any inquiries about the Call for Papers should be submitted to Michael Z. Green at mzgreen@law.tamu.edu.

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’s Institute for Law and the Workplace. 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.

November 21, 2020 in Conferences & Colloquia, Scholarship | Permalink | Comments (0)

Friday, November 20, 2020

Acevedo & others on Regulating the Gig Economy

BeyondCongratulations to Deepa Das Acevedo (Alabama) on the publication of her edited volume Beyond the Algorithm: Qualitative Insights for Gig Work Regulation (Cambridge University Press, 2020). Here's the publisher's description:

In Beyond the Algorithm: Qualitative Insights for Gig Work Regulation, Deepa Das Acevedo and a collection of scholars and experts show why government actors must go beyond mass surveys and data-scrubbing in order to truly understand the realities of gig work. The contributors draw on qualitative empirical research to reveal the narratives and real-life experiences that define gig work, and they connect these insights to policy debates being fought out in courts, town halls, and even in Congress itself. The book also bridges academic and non-academic worlds by drawing on the experiences of drivers, journalists, and workers' advocates who were among the first people to study gig work from the bottom up. This book is a must-read for anyone interested in gig work, the legal infrastructure surrounding it, and how that infrastructure can and must be improved.

Look for a paperback edition to be published in about six months, priced at about $35-40.

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November 20, 2020 in Books, Employment Common Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (0)

Tuesday, November 17, 2020

Arnow-Richman on Remote Work & Temporary Termination

A-rRachel Arnow-Richman (Florida) has just posted on SSRN a pair of timely articles related to the pandemic: Temporary Termination: A Layoff Law Blueprint for the COVID Era (forthcoming ABA JLEL) , and Is There An Individual Right to Remote Work? A Private Law Analysis (forthcoming Wash. U. J. L. & Pub. Policy). Here are the abstracts:

Remote Work: One of the gnawing legal questions of the COVID-19 pandemic is the status of remote work. Since the expiration of the first round of government shut-down orders in the summer of 2020, companies have been calling workers back to the job, prompting serious concerns about the risk of workplace transmission. As a consequence, many workers have asked to continue the remote arrangements their employers adopted when forced to close under executive orders. Some employers are acceding to these requests; others are not. This brief essay, prepared for the ABA Journal on Labor & Employment Law, considers this problem from a private law perspective. It concludes that public law offers little protection to individual employees other than those with qualifying disabilities. Companies, however, may be in breach of contract if they terminate employees who have enforceable job security rights for refusing to return to in- person work. Rather than rely on guesswork, the prudent and compassionate choice for employers is to continue temporary remote arrangements to the extent feasible. 

Temporary Termination: This paper, prepared for a forthcoming Washington University of Saint Louis symposium on COVID-19, responds to the pandemic-induced unemployment crisis with a strategy for addressing temporary, economic-based terminations. Workplace regulation has long neglected workers separated for economic reasons, leaving the problem to the social welfare system, which is now overwhelmed by record numbers of unemployment applicants. In prior articles, I have drawn on comparative law models to argue for laws requiring employers to provide mandatory advance notice of termination or commensurate severance pay to laid off workers. Building on that work, and drawing specifically on Canadian law, this paper argues for recognizing “temporary separation” as a distinct legal status that confers individual rights to affected employees within the context of a comprehensive law of layoffs. Under this system, all employees terminated for economic reasons would be entitled to advance notice or its equivalent in severance pay. However, employers could suspend such obligations by classifying workers as temporarily separated. Affected individuals would retain their status as employees, obtain fast-track access to unemployment benefits, and enjoy a right to reinstatement when their jobs resume. Should the employer choose not to recall a temporarily separated worker, or if the lack of work becomes permanent, the employer would be required to fulfill its deferred severance obligation. 

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November 17, 2020 in Employment Common Law, International & Comparative L.E.L., Scholarship, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Friday, November 6, 2020

Lin & Cukor: Litigating LGBTQIA+ Discrimination

DiscrimShirley Lin (NYU) & Ezra Cukor (Staff Attorney, Center for Reproductive Rights) have posted on SSRN their chapter LGBTQIA + Discrimination in Employment Discrimination Law & Litigation (Thomson West 2020). Here's the abstract:

Asserting and defending the employment rights of lesbians, gay men, bisexual, and transgender, queer, intersex, and asexual people (LGBTQIA+) is a decades-long civil rights struggle. Increasing awareness and acceptance of LGBTQIA+ individuals in U.S. society does not mean that society has not always been sexually diverse, or that sex has only recently been recognized as socially, rather than “biologically,” defined.

In June 2020, The Supreme Court decided a trio of cases wherein it acknowledged for the first time that federal workplace protections reach anti-LGBTQIA+ discrimination. In the landmark decision Bostock v. Clayton County, the Court held that because under Title VII an employer cannot rely on sex as a but-for cause, even if not the sole or primary cause, to fire an employee, an employer who fires someone for being gay or transgender “defies the law.” The landmark decision is a result of generations of advocacy by LGBTQIA+ communities and their advocates inside and outside of the courtroom. Although Title VII has prohibited sex discrimination since its enactment, early decisions rejected claims by LGBTQIA+ people as outside the statute’s ambit. Even as the doctrine generally reflected a broader understanding of sex discrimination, leading up to Bostock there existed only a patchwork of lower-court and agency precedent that Title VII covered LGBTQIA+ people (see §§ 27:2, 27:3, 27:5, 27:7.25). As a result, a LGBTQIA+ employee’s ability to seek redress for discrimination against a private employer depended on her zip code, even under federal law. The Supreme Court’s forthright decision opened courthouse doors throughout the country to LGBTQIA+ workers.

The achievement of Title VII protection is a vital milestone but not the end point in addressing discrimination: LGBTQIA+ people have long faced unacceptable levels of workplace discrimination. Despite a dramatic increase in public acceptance post the Supreme Court’s decision in Obergefell, during the administration of President Trump, the hateful rhetoric, and the policy positions taken by the President and his administration concerning LGBTQIA+ people, public tolerance for accepting LGBTQIA+ individuals declined. Moreover, because LGBTQIA+ workers who are Black, Indigenous, or people of color face disproportionate employment discrimination, the ongoing struggle for racial justice is integral to achieving meaningful equality for LGBTQIA+ people. Winning a workplace discrimination case can be devilishly difficult, especially for low-income workers who often face formidable barriers even to accessing counsel. Because LGBTQIA+ people face significant hostility and misunderstanding from a variety of social forces, including some courts, lawyers litigating for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. Not only does discrimination in the workplace injure and deprive individual LGBTQIA+ workers of their livelihoods, it stigmatizes LGBTQIA+ people as a group.

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November 6, 2020 in Books, Employment Discrimination, Scholarship | Permalink | Comments (0)

New Edition: Harris et al. Modern Labor Law

ModernCongratulations to Seth Harris, Joseph E. Slater, Anne Marie Lofaso, Charlotte Garden, and Richard F. Griffin, Jr. on the imminent publication of the Third Edition of Modern Labor Law in the Private and Public Sectors: Cases and Materials. Here's the publisher's description:

This casebook adopts a truly modern approach to labor law in the United States, introducing students to the subject as it is practiced today. It is built around two important trends: the shift of union density from the private sector to the public sector and the growth of organizing outside the NLRA process. The third edition adds a new coauthor: Richard F. Griffin, Jr., who served as the NLRB’s General Counsel under President Obama. It also includes the numerous changes in private-sector labor law made by the NLRB under President Trump, Janus v. AFSCME, and more.

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November 6, 2020 in Book Club, Labor Law, Scholarship | Permalink | Comments (0)

Tuesday, October 20, 2020

Call for L&E Participants at SEALS 2021

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

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

Jeff Hirsch

 

 

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

Thursday, October 1, 2020

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

SlinnSara Slinn (York - Osgoode) has posted on SSRN her timely and well-written article Protected Concerted Activity and Non-Unionized Employee Strikes: Worker Rights in Canada in the Time of COVID-19, 57 Osgoode Hall L.J. ___. Here's the abstract: 

During the pandemic employees in the US have engaged in a wave of strikes, protests and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and compares the situation of, and consequences for, three categories of workers engaging in a strike over fears of workplace safety: unionized employees, non-unionized employees, and non-employees, such as independent contractors under the NLRA compared to under the Ontario Labour Relations Act (OLRA), as generally representative of Canadian labour legislation. In the final section, this article considers how a statutory provision similar to the NLRA protected concerted activity provision might be incorporated into Canadian labour legislation such as the OLRA. It also considers some more fundamental questions that such changes might prompt policymakers to reconsider, including: the focus of our statutory system on “organizing” collective action to the exclusion of “mobilizing” collective action, and questions about the potential role of minority unionism in our labour legislation system.

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

Monday, September 28, 2020

Fisk to Deliver Genest Lecture at York-Osgoode

FiskSara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.

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

Wednesday, September 23, 2020

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

HandbookThe Cambridge Handbook of U.S. Labor Law for the Twenty-First Century is now available in paperback. The list price is $34.99, but there's a 20% discount for ordering from this site and entering the code LAW3820 at checkout. Here's the publisher's description:

Over the last fifty years in the United States, unions have been in deep decline, while income and wealth inequality have grown. In this timely work, editors Richard Bales and Charlotte Garden - with a roster of thirty-five leading labor scholars - analyze these trends and show how they are linked. Designed to appeal to those being introduced to the field as well as experts seeking new insights, this book demonstrates how federal labor law is failing today’s workers and disempowering unions; how union jobs pay better than nonunion jobs and help to increase the wages of even nonunion workers; and how, when union jobs vanish, the wage premium also vanishes. At the same time, the book offers a range of solutions, from the radical, such as a complete overhaul of federal labor law, to the incremental, including reforms that could be undertaken by federal agencies on their own.

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

LEL Arbitration Nutshell

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

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

Tuesday, September 8, 2020

Bisom-Rapp on Bostock

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

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

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

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

Thursday, September 3, 2020

"The Many Facets of Bostock" at University of Florida

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

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

Looks like a really good one.

Jeff Hirsch

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

Saturday, August 29, 2020

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

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

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

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

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

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

Thursday, August 27, 2020

Flake on Sports-Spectator Harassment

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

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

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

Wednesday, August 5, 2020

ILAW Journal Call for Papers

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

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

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

Wednesday, July 29, 2020

Private Right of Action for OSHA

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

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

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

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

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

Check it out!

Jeff Hirsch

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

Thursday, July 9, 2020

Gough: New Empirical Work on Employment Arbitration

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

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

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

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

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

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