Friday, March 22, 2019
Liz Morris (U.C.-Hastings Center for WorkLife Law), Jessica Lee (U.C.-Hastings Center for WorkLife Law), and Joan Williams (U.C.-Hastings) have posted on SSRN their report Exposed: Discrimination Against Breastfeeding Workers. Here's the abstract:
Due to the medical consensus that breastfeeding reduces major health risks to both babies and mothers, the United States is waging an ongoing struggle to improve breastfeeding duration rates. Yet legal protections for breastfeeding parents in the workplace have not kept pace with the U.S.’s public health goals. Based on a review of workplace breastfeeding legal cases from the last decade, an analysis of all federal and state workplace laws protecting breastfeeding workers including coverage statistics, and interviews with women who faced workplace discrimination, this report documents the anemic legal landscape of breastfeeding rights at work. Discrimination against breastfeeding workers often forces them to stop breastfeeding or lose their jobs, at a devastating cost to their families. Almost three-fourths of breastfeeding discrimination cases studied involved economic loss, and nearly two-thirds ended in job loss. The legal tools to prevent and respond to such discrimination are lacking in both efficacy and scope. The report offers policy solutions to fix the gaps in our patchwork of laws to protect breastfeeding workers.
Monday, February 25, 2019
The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.
This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.
In a forthcoming book chapter, Charlotte Garden argues similarly that NLRA preemption should be reformed to let state and local governments enact more worker-friendly labor laws.
Friday, February 15, 2019
I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.
This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.
Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.
February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Friday, January 18, 2019
The Wall Street Journal reports today that data from the Department of Labor show union density continuing to fall. Total density in 2018 was 10.5%, down from 10.7% in 2017. Density in the public sector fell from 34.4% to 33.9%). Here's a link to the DOL BLS press release with links to the relevant tables; below is an excerpt from the WSJ article:
The overall rate of union membership in the U.S. fell last year, largely reflecting a decline in the rate of state employees’ unionization, according to the latest Labor Department data.
The union membership rate, or the percent of wage and salary workers who were members of unions, dropped to 10.5% in 2018 from 10.7% a year earlier, the Labor Department said Friday.
The decline stems mainly from a decrease in union membership among state employees, whose membership rates fell to 28.6% in 2018 from 30.3% a year earlier.
Tuesday, January 15, 2019
Yes, says Erin McHenry-Sorber (Assistant Professor of Higher Education, West Virginia University -- and thanks to Paul Harpur for sending me the link). Here's an excerpt from her recent article in The Conversation:
The Los Angeles teachers strike suggests that the wave of teacher protests is not over.
Teacher strikes and work stoppages have been preceded by a nationwide teacher shortage that continues to grow across many states, which do not have enough certified math, special education, science, and in increasing cases, elementary teachers – to meet the needs of their students. In California 80 percent of districts reported a teacher shortage in the 2017 to 2018 school year.
Teacher shortages are most often blamed on low teacher pay, one of the commonalities across teacher strikes. These shortages are arguably exacerbated by an increase in the “teacher pay penalty,” the term used to describe disparities in teacher salary compared to professions requiring comparable levels of education.
At the same time teachers find themselves increasingly undervalued, most states are still funding their public education systems at levels below that of the 2008 recession. This includes California, which is ranked 41st nationwide in per pupil spending when adjusted for cost of living. As long as public schools remain underfunded, the nation can expect to see more teacher strikes in other school districts and states in the near future.
Tuesday, October 16, 2018
Amazon has long been known as a high-tech Moneyball employer, striving to make data-driven decision when possible. But this week shows that there are limits to that approach. After working since 2014 to develop AI-driven hiring algorithms, Amazon recently abandoned that approach. The reason? The algorithms were biased against women. This is an issue that several folks, including Rick Bales, have been talking about (and is a small part of a larger tech project I'm working on), and isn't a surprise given the dearth of women in the tech industry. This is the classic garbage-in-garbage-out issue. Amazon was training its algorithms based on resumes it has received, and because men disproportionally applied to the company, the algorithms were spitting out decisions that undervalued women; indeed, they were specifically penalizing resumes that included references to women. If Amazon or other companies want to use AI (really Machine Learning) for hiring, they should first use the technology to analyze its current hiring practices to try to root out pre-existing bias. Only once that's addressed does AI have even the hope of being effective.
To be clear: Amazon says that it never actually used the algorithms for actual hiring decisions. It wasn't for a lack of trying though. Amazon realized what was going on in 2015, but didn't disband the program until the start of last year. In other words, despite working for quite a while to eliminate the bias, they couldn't do it to their satisfaction. That a company like Amazon couldn't pull this off should serve as a strong warning to everyone about the limits of AI. I'm actually more optimistic on AI's eventual potential to reduce employment discrimination than many, but I am still extremely cautious about the technology. There's definitely a right way and wrong way to use it and, as Amazon shows, the right way can be really hard. As a result, I think the greatest risk of AI in personnel decisions is its misuse by companies that are too lazy, cheap, or blinded by the shiny object that is AI to realize that is is only a tool and, like other tools, can be used the wrong way.
Thursday, August 9, 2018
NYC's City Council just passed legislation to stop issuing new ride-hailing licenses for one year. The legislation also requires Uber and similar companies to ensure that drivers earn at least $17.22 per hour (calculated over a week)--like the FLSA tip rule, if drivers don't make that much, the companies must pay the drivers the difference. This can be significant especially in a city like NYC, where almost 85% of drivers make below $17.22/hour and two-thirds of drivers work full-time for ride-hailing companies.
I find the minimum pay provision to be interesting because it puts in motion something I've been thinking about for a while. One of the difficulties in the current "employee"/"not-employee" dichotomy is how much rides on that distinction (pun intended). It's always struck me that this definitional question misses the point. We're stuck with this outmoded definitional hang-up because of current law, but the real question we should be asking is what type of protections do we want for which type of workers. There will always be difficult line drawing, but I think there are areas of agreement. For instance, we've got a long-standing policy of ensuring a minimum pay for the vast majority of "employees." Are there many workers--even those currently classified as independent contractors--who shouldn't also receive at least $7.25/hour? I don't think so. Same for workplace safety and other protections. The devil's in the details, to be sure, but NYC's new legislation represents one step in the direction of ensuring worker rights, rather than just employee rights. And it's a move I'm glad to see.
Finally, a brief plug for a recent article I co-authored with Joe Seiner exploring non-traditional collective action in ride sharing and other modern industries. There's a lot of interesting things going on, but also a lot of legal questions prompted by new activity fitting into old laws.
Monday, May 21, 2018
Congratulations to David Yamada (Suffolk) on a couple of fronts. First, check out his new book, Workplace Bullying and Mobbing in the United States (Maureen Duffy & David C. Yamada eds., Praeger/ABC-CLIO, 2018), a two-volume, multidisciplinary book set for scholars and practitioners, featuring 25 chapters and 27 contributors. Here's a brief description:
With over two dozen contributors (including a Foreword by Dr. Gary Namie of the Workplace Bullying Institute) and some 600 pages packed into two volumes, we believe this will be an important, comprehensive contribution to the growing literature on workplace bullying and mobbing, useful for scholars and practitioners alike. The project deliberately takes a U.S. focus in order to take into account the unique aspects of American employment relations.May 9 issue of
Second, David was quoted in Bloomberg Business Week in the article Companies Have an Aha! Moment: Bullies Don’t Make the Best Managers. Here's an excerpt:
The surprise announcement in March that 55-year-old Nike brand president Trevor Edwards—who had a reputation for humiliating subordinates in meetings—would leave following an internal investigation about workplace behavior issues suggests the coddling of tough guys may have come to an end. “Some companies are realizing that a bullying boss isn’t the best way to manage a company,” says David Yamada, a professor at Suffolk University Law School in Boston who’s authored antibullying legislation. “Maybe we’re starting to see a tipping point.”
Tuesday, February 20, 2018
Thanks to Aaron Halegua for passing along this feature story from last week's Bloomberg BusinessWeek about a Chinese casino in Saipan. It gives a very compelling account of the labor and safety issues concerning the Chinese construction workers there. And, these issues became the subject of many questions during a Senate hearing earlier this month about a bill concerning the future of a CNMI-specific guest worker program. For those who want further information about the labor situation in Saipan and the response by the federal authorities, see Aaron's short piece in ChinaFile.
Sunday, January 28, 2018
This guest post is courtesy of Jack Harrison (NKU-Chase):
On Thursday, January 25, 2018, the United States Court of Appeals for the First Circuit upheld a 2016 jury verdict of more than $700,000, plus $184,000 in legal fees, in a Title VII case involving Lori Franchina, a lesbian firefighter for the City of Providence, Rhode Island. This case is important because it represents yet another decision by one of the Courts of Appeals calling into question precedents in the circuit holding that sexual orientation discrimination is not prohibited by Title VII’s prohibition of discrimination “because of sex.” While Franchina was decided on a sex-plus theory, rather than a sexual orientation theory, the “plus” in the case was Franchina’s sexual orientation.
The Court of Appeals described the horrendous treatment that Franchina had endured in the workplace as follows:
‘Cunt,’ ‘bitch,’ ‘lesbo’: all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department (‘the Department’). She was also spit on, shoved, and — in one particularly horrifying incident — had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.
The First Circuit flatly rejected the city’s argument “that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.” In rejecting this argument, the First Circuit seemed to embrace the broader comparator analysis adopted by the Seventh Circuit in its decision in Hively, finding that sexual orientation discrimination was, indeed, discrimination “because of sex” prohibited by Title VII. The First Circuit also indicated that nothing in its prior decision addressing sexual orientation discrimination, Higgins v. New Balance Athletic Shoe Inc., “forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.” The discussion by the court of this precedent appears to call into question the court’s commitment to the position held in Higgins. Such questioning is certainly consistent with language used by other Courts of Appeals in decisions over the last year, including decisions by the Seventh, Eleventh, and Second Circuits, addressing the reach of Title VII in the sexual orientation discrimination context.
Currently, the en banc United States Court of Appeals for the Second Circuit is considering Zarda v. Altitude Express, a case that, like Hively, squarely asks the question of whether Title VII’s prohibition against discrimination “because of sex” includes discrimination based on sexual orientation. Oral argument was held in Zarda on September 26, 2017. While scheduled for only one hour, the arguments actually lasted for almost two hours. The questions asked and the tone of the oral argument would suggest that the Second Circuit is likely to follow the lead of the Seventh Circuit in Hively, concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation. The Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit that raised this question, but with a decision in Zarda expected any day, the Supreme Court may ultimately have to address this issue.
Monday, January 15, 2018
Shu-Yi Oei & Diane M. Ring (both of Boston College Law) have just posted on SSRN their essay Is New Code Section 199A Really Going to Turn Us All into Independent Contractors? Here's the abstract:
There has been a lot of interest lately in new IRC Section 199A, the new qualified business income (QBI) deduction that grants passthroughs, including qualifying workers who are independent contractors (and not employees), a deduction equal to 20% of a specially calculated base amount of income. One of the important themes that has arisen is its effect on work and labor markets, and the notion that the new deduction creates an incentive for businesses to shift to independent contractor classification. A question that has been percolating in the press, blogs, and on social media is whether new Section 199A is going to create a big shift in the workplace and cause many workers to be reclassified as independent contractors.
Is this really going to happen? How large an effect will tax have on labor markets and arrangements? We think that predicting and assessing the impact of this new provision is a rather nuanced and complicated question. There is an intersection of incentives, disincentives and risks in play among various actors and across different legal fields, not just tax. Here, we provide an initial roadmap for approaching this analysis. We do so drawing on academic work we have done over the past few years on worker classification in tax and other legal fields.
Monday, December 11, 2017
The Supreme Court denied cert today in Evans v. Georgia Reg'l Hosp. (ScotusBlog page); Lambda Legal had filed a cert petition from the Eleventh Circuit's decision. The Eleventh Circuit had held that it was bound by prior circuit authority that Title VII did not prohibit sexual orientation discrimination, and the full court had denied rehearing en banc. There is something of a circuit split on the issue. The Seventh Circuit, en banc in Hively v. Ivy Tech, held that Title VII did prohibit sexual orientation discrimination, and the Second Circuit is considering the issue en banc right now (here's the audio of the argument).
It's hard to read too much into the denial--it's entirely possible that the Court didn't take the case because the respondent took no position on either the grant of cert or the Eleventh Circuit's opinion, arguing that it had never been served with process. It had not participated in the case below. The case file is a good preview of the stakes, though. The lineup of amici had 76 major companies and several states urging the Court to take cert. To read more, see this Daily Report posting by Marcia Coyle and the ScotusBlog posting by Amy Howe.
Wednesday, November 29, 2017
In the flood of harassment news the last few weeks, one of the themes that has emerged is that the guys involved got away with bad behavior for a really long time. For at least some of them, the lecherous behavior was something of an open secret in their workplaces or communities. There are a number of reasons that this conduct went on for so long, but one that isn't being addressed as much is how the legal threshold for actionable harassment leaves room for so much bad conduct. This is why the fantastic editorial in the New York Times, Boss Grab your Breasts? That's Not (Legally) Harassment by Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) is so important and timely.
Sandra and Suja trace the development of the severe or pervasive standard the Court adopted in Meritor Savings Bank v. Vinson, through the lower courts, noting the margins--what is clearly actionable and what is clearly inactionable--leave a large middle ground. In that middle ground, courts lean towards dismissal. This is just one more important way that Sandra and Suja are documenting how the legal rules governing discrimination claims have moved to systematically disadvantage workers.
Sunday, November 12, 2017
Shu-Yi Oei and Diane Ring (both Boston College) have just posted on Tax Prof Blog The Senate Tax Bill and the Battles Over Worker Classification. Their post is extensive and detailed and well worth a full read. Here's a quick summary; the take-away is in bold at the bottom:
Senate Republicans released their version of tax reform legislation on Thursday, November 9. The legislative language is not available yet, but the Description of the Chairman’s Mark (prepared by the Joint Committee on Taxation) suggests that one of the key provisions in the bill will clarify the treatment of workers as independent contractors by providing a safe harbor that guarantees such treatment. The JCT-prepared description tracks the contents of the so-called “NEW GIG Act” proposed legislations introduced by Congressman Tom Rice (R-S.C.) in the House and Senator John Thune (R-S.D.) in the Senate in October and July 2017, respectively. “NEW GIG” is short for the “New Economy Works to Guarantee Independence and Growth (NEW GIG) Act.” But notably, and as we further discuss below, the legislation is not limited in its application to gig or sharing economy workers.
Assuming the Senate Bill adopts the basic parameters of the NEW GIG proposed legislation — which looks to be the case based on the JCT-prepared description — we have some concerns. In brief, this legislation purports to simply “clarify” the treatment of workers as independent contractors and to make life easier for workers by introducing a new 1099 reporting threshold and a new withholding obligation. But the legislation carries potentially important ramifications for broader fights over worker classification that are raging in the labor and employment law area. Despite possibly alleviating tax-related confusion and reducing the likelihood of under-withholding, we worry that there are quite a few underappreciated non-tax hazards for workers if these provisions go through.
The legislation (assuming the Senate Bill more or less tracks the NEW GIG Act language) purports to achieve such “clarification” of worker classification status by [, among other things, introducing] a safe harbor “which, if satisfied, would ensure that the worker (service provider) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer.”...
At first blush, this legislation looks like it does good things for workers by clarifying their tax treatment, providing peace of mind, lowering previously unclear information reporting thresholds, and solving some of their estimated tax/mis-withholding issues.... The problem is that it’s not just about tax....
Our worry is that tax clarification of independent contractor status is a strategic step designed to win this broader (non-tax) regulatory war over worker classification. The risk is that “clarifying” the independent contractor status of workers for tax purposes through the introduction of an easy-to-meet safe harbor risks influencing and tilting the worker classification battle that is occurring in labor and employment law. While determinations of independent contractor status in other areas are theoretically independent from the tax determination, clarification on the tax side may help create presumptions elsewhere that independent contractor classification is normatively correct. While the precise legal tests governing worker classification differ across areas — we have, for example, the common law agency test, the ABC test, the economic realities test, and the IRS 20-factor test — the tests have elements in common: They all examine to some degree the nature of the relationship between the business and the worker, and they all pay attention to the control exercised by the business over the worker. If one field decides the classification question a certain way, there is likely to be some reverberation for the analysis in other fields.
Our specific concern is that “forced clarity” in tax can tilt the direction of the worker classification debate in a way desired by the platform businesses, industry lobbyists and the legislation’s supporters....
Thursday, November 2, 2017
Arthur Pearlstein (FMCS) sends word that FMCS is ...
participating in the production and program of the Labor and Employment Relations Association (LERA) 70th Annual Meeting, June 14-17, 2018, in Baltimore, MD at the Hilton Baltimore, with the theme “Shaping the Future of Work: Challenges, Opportunities and New Models.” Conference organizers and the program committee have issued a call for proposals for papers, symposia, panels, workshops, posters, skill-building debates, roundtable discussions, and other formats for the conference program. The deadline for conference proposals is fast approaching. It is Nov. 15, 2017.
According to organizers, the conference will feature more than 80 workshops, sessions, and events where more than 250 speakers will present. The conference is intended to provide practical workshops, debates on the latest research in labor and employment relations. Attendees will hear from experts on how their companies, organizations, and unions have successfully navigated workplace issues critical to their success.
Monday, October 9, 2017
Hi fellow Employment and Labor scholars:
I am excited to share California Western School of Law’s Call for Proposals for an innovative Gender Sidelining Symposium to be held in San Diego on April 26 & 27, 2018. As detailed in the attached Call for Proposals, we are seeking individuals both to serve as primary presenters in various “salons,” as well as to serve as commentators on these presentations. Please see the attached Call for Proposals for more information.
We are thrilled that our keynote speaker will be Dean Camille Nelson from American University Washington College of Law, a widely published and well-respected scholar. We further are excited to be hosting a “Judge’s Panel” on the opening night of the Symposium – including Justice Judith Haller (Associate Justice, CA 4th Dist. Court of Appeals) and Judge Margaret McKeown (U.S. Court of Appeals, 9th Cir.) – during which these respected jurists will discuss issues related to our Symposium topic.
We hope that you will strongly consider submitting a proposal to join us at the Symposium this April.
The call for proposals gives more details, also:
The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic. The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality. The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response. Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.
In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture. Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme. Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons.
Proposals should be submitted to email@example.com no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line. Please use Microsoft Word or the equivalent, but do not use PDF. By submitting an application, you are agreeing that you will be present at the symposium to present your work. Questions should be directed to Prof. Jessica Fink at firstname.lastname@example.org.
Read the whole call for proposals for more complete descriptions of the salon sessions: Download CFP-Revised.doc It looks really interesting.
Tuesday, September 12, 2017
A huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Monday, August 14, 2017
David Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist? The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.
Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But
[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.
That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.
Tuesday, August 8, 2017
Americans are less likely to be laid off than at any point in at least 50 years. For every 10,000 people in the workforce, 66 claimed new unemployment benefits in July, trending at the lowest point on record going back to 1967. The previous low point, 83 per 10,000, was touched in April 2000, at the height of a tech boom. Separate Labor Department data shows the rate of layoffs and other discharges as a share of total employment this year is at the lowest level on records back to 2000.
The steep fall in layoffs is mainly a result of a vastly improved labor market. It means Americans have more job security than they may realize less than a decade after dismissals spiked in the 2007-2009 recession. But other factors with more mixed implications are at play, including elevated levels of long-term unemployment, an aging workforce, a decline in manufacturing work and more risk-averse businesses, which also point to a less dynamic economy.
For the full story, see Eric Morath, You're Fired! No, Wait, Keep Working.
Sunday, July 9, 2017
Many thanks to Dennis Nolan (South Carolina emeritus; NAA) for forwarding Sylvain Cypel, Macron’s California Revolution, which has a detailed discussion of French President Emmanuel Macron's plans for French labor law. Here's an excerpt:
Continuing deindustrialization has shut millions of older employees out of the job market. And unemployment among the young is beating all records: at the end of April 2017, the number of officially registered jobseekers hit 5,836,000—the same number as in the United States, a country with five times France’s population! For the past forty years, whether governed by the right or the left—or even during short periods of “cohabitation”—neither side has been able to curb unemployment.
[N]ew macroniste politicians closely follow their leader’s core socioeconomic philosophy: that in today’s world, the people who rise to the top, or at least stay afloat, are those who’ve succeeded in adapting to the relentless process of globalization and its technological disruptions. There will be less and less room for job security and more and more for people who have a capacity for innovation and adaptation. Gone are lifelong professional careers. Likewise gone are rigid job descriptions and fixed work schedules. In this, Macron once again embodies a very American way of thinking. And he believes that France has to catch up to the current reality of the labor force.
But the first real test of the new president’s mandate will be the new labor law that he intends to issue as an executive order, before asking France’s parliament to vote on it. Macron wants to move fast. He wants to take advantage of the “big bang” of his election and his opponents’ stunned paralysis to abolish much of the existing French labor code, which, because of powerful labor unions, was designed to cater to the best-protected employees—especially those in heavy industry—and has long been skewed toward the interests of workers in general at the expense of greater flexibility and efficiency for private enterprise. Just how far does he mean to take this? Clearly, as far as he can.
The real question is whether Macron is ready to take on the unions or will seek to compromise with them. His approach to economic reform has been well known since his tenure as economics minister (2014–2016): a major deregulation of existing laws to allow employers to practice less “rigid” employment and hiring policies, including fewer restrictions on salaries and working conditions. These measures, he argues, are essential if there is to be a revival of the French job market. Employers, who are also asking for a freer hand in firing workers, claim these measures will bring a reduction in labor costs. The corollary to these ambitions, and the condition for their success, is a significant reduction of what remains of the unions’ power, already enormously diminished. (Fifty years ago, 22 percent of all employees were union members, while that number is currently 7.7 percent, according to the OECD).
When Macron tried to put these reforms into effect as economics minister under François Hollande, he encountered very strong resistance from the unions and from the public itself. After a series of protest marches and demonstrations, the law had to be issued by Prime Minister Valls, through a procedure designed to avoid a parliamentary vote, which it seemed quite unlikely to pass. Today the basic problem is much the same. The unions are so hostile to reforming the labor market because, behind the apparent “change,” it is possible to glimpse a policy that’s been at work for a long time already. Ever since 1984, all governments, right and left, have worked tirelessly to shatter administrative and legal “rigidity” with respect to hiring and firing. And yet, France’s steadily worsening joblessness has never been brought under control. Even worse, in France as in nearly all the rest of the Western world, inequality has become ever more deeply entrenched, in lockstep with the deterioration of middle-class purchasing power. It’s not hard to imagine, therefore, that the unions might once again be the front line of resistance to still more radical measures to deregulate the labor market.