Workplace Prof Blog

SEALS call for participants

The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: mzgreen@law.tamu.edu. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.

MM

Don't Stop at the Stop Sign

This post could be subtitled: Misadventures in Legal Research.  

Anyhow, a mildly amusing Case of the Disappearing Opinion.  The case, Foglia v. Renal Ventures Mgmt., LLC, is to be found at 2014 U.S. App. LEXIS 10549.  It's not an uninteresting decision in any event -- adopting the "nuanced" branch of the circuit split on pleading a False Claims Act case -- but that's not the point of the present posting.

The opinion is dated June 6, 2014 but has a Lexis stop sign to the left, suggesting a BIG PROBLEM. Clicking the "subsequent history" link takes one to an order, dated June 10th, stating:

It is hereby ORDERED that the Opinion filed on June 6, 2014 is vacated and an amended opinion shall be filed simultaneously with this Order. The revised opinion does not alter the June 6, 2014 judgment.

So far so good, except that there is no opinion dated June 10th and filed simultaneously with the order. 

With the June 6th opinion vacated, and nothing substituted, Foglia, which was intended to be a precedential opinion, has in effect disappeared from Lexis.

Not to worry. Further sleuthing (entailing the assistance of two colleagues and two research assistants) determined that the June 6th opinion posted on Lexis was in fact the amended opinion referred to in the June 10th order.  So all's well but for the stop sign.

A call to Lexis, hopefully, set the wheels in motion to correct that problem. Apparently, Westlaw simply posted the amended opinion, so there was no confusion there. 

If you're wondering, the reason for the amendment was the misidentification of one of the circuits in the split -- a single word change.

There are a few lessons to be learned from this:

1. Researchers should be wary of stop signs.

2. Courts maybe shoudn't simply swap out opinions -- any problem would have been obviated if the amended opinion had been dated June 10th.

3.  Law professors have an awful lot of time on their hands in the summer.

CAS

Thanks to my colleagues Ed Hartnett and Michael Risinger and my RAs John Dumnich and Angela Raleigh for their help.

UPDATE, July 18: I received a very gracious call today from Lexis but the bottom line is that the red stop sign remains in place. Even though the caller acknowledged that the opinion that one is cautioned to beware of is actually an uncriticized, precedential opinion.  The effect will be to mislead anyone researching on Lexis, but apparently that's OK. This has gone from being mildly amusing to being frustrating.

Ninth Annual Colloquium Registration

Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9^th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:

 https//cuboulder.qualtrics.com/SE/?SID=SV_ehPf2AWQ7ihhqfz.

 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).

MM

Transnational Perspectives in Equality

The AALS is hosting a Workshop June 22-24 in Washington DC on Transnational Perspectives on Equality Law. The full program is here, and this is a summary:

Workshop on Transnational Perspectives on Equality Law

 

Sunday, June 22 - Tuesday, June 24, 2014

The Renaissance Mayflower Hotel

Washington, DC

 

REGISTER HERE!

 

Antidiscrimination law is an American invention that has spread all around the world.  During the American civil rights movement of the 1960s, antidiscrimination law promised radical social transformations towards equality for women and minorities in the workplace, in politics, and in education.  But recent developments in Equal Protection and Title VII doctrine have paralyzed this trajectory.  Meanwhile, the last decade has seen the unprecedented globalization of antidiscrimination law, as well as its expansion and alternative development outside the United States, catalyzed largely by the European Union's two directives in 2000, on race equality and on equal treatment in employment.  Over the last few years, a new body of equality law and policy experimentation has emerged not only in the EU and in European countries, but also in South Africa, Canada, Latin America, and Asia. There is a range of public policies adopted to mitigate the disadvantages of vulnerable groups such as racial, ethnic, and religious minorities, women, the disabled, the elderly, and the poor, constituting an "equality law" that goes beyond norms prohibiting discrimination.  

 

At the same time, antidiscrimination law in the United States seems to be changing. U.S. Supreme Court decisions over the last several years (Ricci v. DeStefano, Parents Involved in Community Schools v. Seattle School District, Wal-Mart v. Dukes, and Shelby County v. Holder) have signaled the end of antidiscrimination law as envisioned by the civil rights movement in the United States.  In response, there is growing scholarly interest in finding new approaches to the persistent problem of structural inequality.  Comparative reflection is a productive tool, particularly when energy and optimism surrounds the trajectory of antidiscrimination law and equality policy outside of the United States.  Now that there is over a decade's worth of new antidiscrimination activity in the EU countries following the 2000 equality directives, the time is ripe for scholarly reflection and evaluation of these developments. From an intellectual, practical, and strategic perspective, antidiscrimination scholars in the United States can no longer ignore developments in antidiscrimination law in other countries.

 

While a growing number of American legal scholars are lamenting the limits of antidiscrimination law, the recent growth of this body of law outside of the United States has largely gone unnoticed. The central purpose of this mid-year meeting is to widen the comparative lens on U.S. equality law - its failures, its achievements, and its potential - across a variety of subject areas.  The meeting will provide a unique and much-needed opportunity to bring together scholars from various fields - constitutional law, employment discrimination law, comparative law, comparative constitutional law, election law, education law - to deepen and enrich the scholarship and teaching of equality.   The meeting will also provide a unique opportunity for U.S. scholars to interact with a wide, varied, and stimulating group of antidiscrimination scholars working around the world.

 

Additionally, law schools are increasingly making their curricula more transnational and comparative.  This conference will assist teachers in integrating comparative perspectives to illuminate constitutional law, employment discrimination law, employment law, and other traditional subjects.

 

This Workshop will explore a number of critical questions including what is at stake in looking comparatively when doing equality law; how affirmative action is understood in other legal systems; understanding disparate impact, accommodation, and positive rights.  There will be discussions of religion, profiling, and equality and social movements.  Transnational perspectives on equality law will be a greater component of antidiscrimination scholarship going forward. This meeting should not be missed.

 

AALS Planning Committee for 2014 AALS Workshop on Transnational Perspectives for Equality Law

• Timothy A. Canova, Nova Southeastern University Shepard Broad Law Center

• Guy-Uriel E. Charles, Duke University School of Law, Chair

• Richard T. Ford, Stanford Law School

• Reva B. Siegel, Yale Law School

• Julie C. Suk, Benjamin N. Cardozo School of Law Yeshiva University

 The program has a great lineup. Register by June 4 to get the early bird rate.

MM

Welcome to Guest Blogger Joseph Seiner

Please welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:

Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.

Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.

Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.

Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract: 

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.

Welcome, Joe!

MM

Jack Getman Retires

When our list of faculty moves went up last month, one item left of the list was the retirement of Julius (Jack) Getman from the University of Texas after 28 years on the faculty. The American Statesman did a nice story on Jack's career. Here's a part:

A sort of Johnny Appleseed of labor law, Getman has through the decades sprinkled proteges all over the country. Many of them followed Getman into academia. Many of them chose their professor’s specialty even if they’d planned on practicing another kind of law before they took Getman’s basic labor law class which, 2011 graduate Elliot Becker recalled, “some of us called ‘Story Time with Grandpa Jack.’”

“I don’t know where I’d be without him,” said Becker, who this fall will go to work in the general counsel’s office of the National Labor Relations Board.

“I didn’t go to law school thinking I wanted to do labor and employment,” said James Brudney, who teaches labor at Fordham Law School. “It was the exposure to him and the subject that converted me. He has a remarkable blend of realism, sardonic humor and remarkably perceptive insights analytically about the real world.”

While Getman may be sympathetic to workers and the labor movement, he’s not a dogmatic radical who has never missed a Pete Seeger concert.

“His perceptions of the struggles that ordinary shop floor workers had to go through made him sensitive to both the positive aspects of (union) leadership and the risks that leadership might separate from the rank and file,” Brudney said. “He’s obviously sympathetic to unions, but that has not restrained him from offering substantial and powerful critiques.”

Jack's book Restoring the Power of Unions was also the subject of the Section on Labor Relations and Employment Law program at the AALS annual meeting in 2011, which coincided with the UNITE HERE boycott of the conference hotel. The presentations were published in volume 15, issue 2 of the Employee Rights & Employment Policy Journal. 

h/t Michael Murphy and Harris Freeman

MM

Student Writing Competition

Laura Cooper (Minnesota) writes to remind us that students have about one more month to submit papers to this writing competition: 

Attention:  Law Professors and Law Students—Midnight (EDT) on May 15, 2014, is the deadline for submitting articles for the Annual Law Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers.  The competition offers monetary prizes and publication for the first-place winning article in the ABA Journal of Labor & Employment Law.  Full competition rules are available at:

http://www.law.umn.edu/abajlel/2013-2014-national-student-writing-competition.html

In addition to publication for the first place winner, note the monetary prizes: $1500 for first place, $1000 for second place, and $500 for third. Encourage your students to take advantage of this great opportunity!

MM

Teaching Employment and Labor Law

Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.

The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:

Forward

Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon

Teaching Employment and Labor Law

A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim

Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Rachel Arnow-Richman

Collaboration and Community: the Labor Law Group and the Future of Labor Employment Casebooks
Matthew T. Bodie

Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry

The Capstone Course in Labor and Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, and Professionalism
Laura J. Cooper

Constructing a Comprehensive Curriculum in Labor and Employment Law
Martin H. Malin

From Podcasts to Treasure Hunts—Using Technology to Promote Student Engagement
Marcia L. McCormick

Identifying (with) Disability: Using Film to Teach Employment Discrimination
Elizabeth Pendo

A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter

Teaching Private-Sector Labor Law and Public-Sector Labor Law Together
Joseph E. Slater

Teaching the Post-Sex Generation
Kerri Lynn Stone

You should check them out.

MM

Teaching Conference: Assessment Across the Curriculum

The Institute for Law Teaching and Learning is holding a conference on Saturday April 5 at the William H. Bowen School of Law, University of Arkansas at Little Rock. The conference, Assessment Across the Curriculum, looks great. Here is the outline of the program:

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place onSaturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

Conference Content:  Sessions will address topics such as

·         Formative Assessment in Large Classes
·         Classroom Assessment Techniques
·         Using Rubrics for Formative and Summative Assessment
·         Assessing the Ineffable: Professionalism, Judgment, and Teamwork
·         Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  Theconference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  Theconference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.”

MM

Handling Classroom "Gunners"

We normally keep posts on this blog strictly on the topic of labor/employment law, but this topic -- more generally applicabile to higher educators generally -- was too good to pass up. Over at Psychology Today, Mitchell Handelsman (U. Colorado - Denver - Psych.) asks Carl Pletsch (U. Colorado - Denver - History) how he handles gunners. Here's his response:

If the student seems prepared and focused on the topic of the day, I might say something like, “I appreciate your willingness to contribute to our class discussion!  But I want to challenge you to take your participation to the next level. Next class session, see if you can make a comment that addresses what another student has said, naming him or her, and showing that you are interested in what other students may be thinking. OK?”   I emphasize that this is a skill, taking participation to a higher level.

If the student seems generally ill-prepared, making comments that actually divert attention from the topic of the day’s session, I might still praise him or her for participating, but my challenge is for the student to come with comments on the reading next time, and to be prepared to refer to passages in the text to support the comments.

In the following sessions I’ll notice whether the student merely disagrees with another student, or whether he or she says something complimentary.  I can then revise the challenge to include the idea of saying something constructive that builds on another student’s comment.

If this works, I praise the student and suggest the next level of challenge: “Can you listen to the discussion until you have heard enough to discern a relationship among several students’ comments?  Then you might try to make a comment that compares or relates several other contributions.”  Again I suggest giving credit to others by name.  

My primary goal is to make the whole classroom safe for everyone to participate, but by challenging the loquacious students I am also encouraging them to develop new skills that may serve them well in life. I try not to discourage students from participating, but to channel their energy in more constructive ways—ways beneficial to both the class and to the students themselves.

rb

Advanced-level Apprenticeships, PhDs, and Industrial PhDs - ADAPT and the University of Bergamo

Michele Tiraboschi, ADAPT Scientific Coordinator at the University of Bergamo in Italy, writes to inform us that the call for applications for the International Doctoral School in Human Capital Formation and Labour Relations promoted by ADAPT and the University of Bergamo has been published.

40 positions are available, 22 of them will be funded through a scholarship and 4 through advanced-level apprenticeship contracts. The deadline to send applications is 18 November 2013 at 12.00 a.m.

This year, they are providing the opportunity to enter an Industrial PhD in Labour Productivity and Workplace Change, in order to strengthen the cooperation between employers and professionals within the productive system. In addition, by way of special agreements, a number of positions will be available to workers employed in highly qualified jobs at their own companies, provided that they pass the selection procedures and are admitted to the PhD Programme.

Employers who are interested in supporting the School or hosting interns, as well as prospective candidates, can send an email to tiraboschi@unimore.it for further enquiries.

PS

Louis Jackson National Law Student Writing Competition

Marty Malin (Chicago-Kent) writes:

I am pleased to advise you that the law firm Jackson Lewis is again sponsoring and IIT Chicago-Kent College of Law is again administering the annual Louis Jackson Memorial National Law Student Writing Competition in Employment and Labor Law.  Eligible are all students at ABA accredited law schools who have had at least one course in labor or employment law (defined broadly).  Students may submit papers up to 35 pages in length.  Entries are due January 21, 2014.

Entries are blind judged by a panel of five law professors.  Netiher Jackson Lewis nor Chicago-Kent plays any role in judging the entries.

Attached is a flyer announcing this year's competition.  Please
encourage your students to enter.

We use five judges and rotate one judge off the panel each year,.  If any full time labor/employment law professor is interested in judging, please email me off list and I will add you to the list of interested judges.

rb

LEL Student Writing Competition

Laura Cooper (Minnesota) sends word of the Annual Law Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and College of Labor and Employment Lawyers.  Here's the pertinent information:

The American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers have announced the rules and deadlines for their Annual Law Student Writing Competition.  J.D. students at accredited U.S. law schools are eligible to enter.  Entries may address any aspect of public or private sector labor and/or employment law relevant to the American labor and employment bar.  Three prizes may be awarded by the College of Labor and Employment Lawyers:  First Place:  $1500, Second Place:  $1000, Third Place:  $500.  The first-place winning article will be published in the ABA Journal of Labor & Employment Law and its author will be a guest at the annual CLE program of the ABA Section of Labor and Employment Law and honored at the Annual Induction Dinner of the College of Labor and Employment Lawyers.  The deadline for submission of articles is Midnight (EDT) on May 15, 2014.  Full competition rules are available here.

The first-place winner of the 2013 competition, Matthew S. Smith, a third-year law student at American University, will be honored November 9th at the College’s dinner in New Orleans for his article, A Matter of McKnight and ADAAA:  Why Title I Protects Former Employees with Disability Who Receive Fringe Benefits.

rb

Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed

I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications.  PS

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.

This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics.  In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.

HF

Death of an Adjunct Sparks Discussion on

the Challenge of Precarious Employment in Higher Ed

 

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

 

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

 

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

 

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets. 

Labor Law Makes an Appearance on The Good Wife

From Harris Freeman (Western New England), a lighter entry on pedagogy and popular culture. Harris writes:

A rare cultural phenomena – labor issues driving the plot of a prime-time TV show. This week’s episode of The Good Wife (#21), a legal drama on CBS starring Julianna Marguiles, featured a plot devoted to labor law:  Attorney Alicia Florick (Marguiles) was ‘tricked/coaxed’ into representing a group of computer coders at a software company who sought to form a union. 

Much to my surprise, a series of hearings before an administrative law judge at the NLRB provided the adjudicatory framework.  Legal issues included whether: workers were employees; engaged in concerted activity; suffered from discrimination because they chose to form a union, and; whether employer electronic surveillance was lawful. What’s more, the firm’s representation of these employees proved a catalyst for the law firm’s administrative staff to complain about their own workplace conditions and a justifiably cynical take on how employers “lawfully” handle employee dissatisfaction. 

If you can get a hold of the episode, excerpts would make for some effective use of popular TV culture for classroom teaching and conversation.   A summary of the episode is available at Entertainment Weekly here.  

Does all this also mean that labor law is again bubbling up in Americans' consciousness? Have the events of Wisconsin, Michigan, and the NLRB finally got some in Hollywood to take notice of the importance of these issues to the future of our country?

OK, probably not. But one can dream.

PS

ABA LEL Annual Student Writing Competition

Laura Cooper sends us word:

This is a reminder that the deadline of May 15, 2013 is approaching for submissions to the Annual Law Student Writing Competition sponsored by the ABA Section of Labor and Employment Law and the College of Labor and Employment Lawyers.  The winning essay receives $1500 and is published in the ABA Journal of Labor & Employment Law, a journal with a circulation of over 25,000 attorneys.  The author of the winning essay is also an honored guest of the College at its annual dinner conducted as part of the ABA's annual conference.  Both events will be in New Orleans in Fall 2013.  The second prize is $1000 and the third prize is $500.  See here for further information and competition rules.

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Whither LEL?

Paul's post yesterday listing labor/employment faculty moves and lamenting the apparent decline in law school LEL teaching has received some traction. Thompson Reuters News & Insight posted Law schools give labor and employment short shrift, professor says.  Brian Leiter responded in the same article.

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Labor Relations Internships at ADAPT in Italy

From Michele Tiraboschi, ADAPT Scientific Coordinator:

ADAPT is pleased to announce that it will start the selection procedures for 3-to-6 month internships in Italy in the areas of labour law, industrial relations and HRM, which will be hosted by ADAPT or its partners.

If selected, interns will be provided full accommodation in a cosy apartment in the Upper Town of Bergamo (Italy) plus an allowance amounting to 400 Euros.

ADAPT is a non-profit organization set up by Marco Biagi in 2000 with the aim of promoting research in the field of Industrial and Labour Relations from a comparative and an international perspective. Our purpose is to encourage and implement a new approach to academic research, by establishing long-term relationships with other universities and advanced studies institutes, and promoting academic and scientific exchange programs with enterprises, institutions, foundations and associations.

Those interested in joining the ADAPT community through an internship might send their CV and a cover letter to selezione@adapt.it. A Brochure for ADAPT can be found here and the Brochure for International Doctoral School in Human Capital and Labour Relations can be found here.    

PS

Henderson: Crisis in Law Schools is a Labor Market Issue

Bill Henderson (Indiana-Bloomington) has just posted on SSRN his article (forthcoming Pepperdine L. Rev.) A Blueprint for Change.  Here's the abstract: 

This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the “12% solution.” Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs.

One of Bill's critical arguments is that the law school crisis is largely a labor market issue: too few law school graduates chasing too few jobs and a mismatch between the skill sets legal employers need and the skill sets that law schools provide. 

[T]he financial viability of law schools depends upon three interrelated factors: (a) students wishing to enroll, (b) an ability to pay, and (c) professional employment upon graduation.  Of these factors, the professional employment is the most important because, if present, the first two factors will take care of themselves....  If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the gradutes of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement.

If you plan to be involved in legal education for more than the next 3-5 years, I would highly recommend reading this article.

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Kramer Sued over Law Review Article

Zachary Kramer (Arizona State) wrote a law review article describing an employment discrimination case in which a bank executive allegedly equated vegetarianism with homosexuality and taunted/harassed an employee on the basis of both.  Now the bank executive is suing Kramer for defamation and invasion of privacy.  The executive also is suing Washington University Law because its law review published the article, and Western New England College of Law because Kramer presented his article there.

Kramer's article is Of Meat and Manhood.  The discussion of the underlying discrimination case begins at page 305.  The article describes in detail the facts as alleged in the plaintiff's complaint that had been filed in a New York State court; the footnotes clearly indicate that Kramer's source is the complaint itself and that Kramer was not claiming an independent source of knowledge of the facts giving rise to the discrimination claim.

A plaintiff's recitation of facts in a complaint are of course subject to an absolute judicial privilege from defamation suits.  Kramer's republication of those facts, in a context in which he makes it clear that he is claiming no independent source of knowledge of the facts, should be similarly privileged.  A ruling to the contrary would stifle not only academic debate, but would preclude newspapers from reporting on just about any type of case filed in just about any type of court.  12(b)(6)?

On the upside: at least we know someone is reading our articles!

Here's the complaint; here's a detailed story in the ABA Journal; here's a note from Brian Leiter. 

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