Workplace Prof Blog

Lobel's New Book: Equality Machine

Congratulations to Orly Lobel (San Diego) on the publication of her new book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022). Here's the author's description:

The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid examples, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets-that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.

 

Congrats, Orly!

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NYC LERA: NYC’s Worker Protection Laws and its Impact on the Workplace

Bill Herbert (Hunter College, CUNY) tells us about the upcoming NYC LERA program NYC Workplace and Labor Law Update: A Look at NYC’s Worker Protection Laws and its Impact on the Workplace, April 26, 2022, 6 – 7:30 pm ET. Here's a description:

NYC regulatory agencies are charged with administering and/or enforcing municipal workplace laws intended to protect workers across various industries. These laws apply to workers of different socio-economic groups, tackling matters such as pay equity, workplace safety and other worker rights and protection issues. Our panel will address recent enforcement initiatives and its impact on employers, employees and the workplace.

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Forum: Labor Rights of Non-Standard and Excluded Workers

Tequila Brooks sends word that DC LERA will be hosting its first annual Labor Law Forum on June 16, 2021 11:00 a.m. Eastern. The forum features Mark Gaston Pearce of the Georgetown Law School Workers’ Rights Institute, Tonia Novitz of the University of Bristol Centre for Law at Work (UK), and Matt Ginsburg of the AFL-CIO for a discussion of legal issues affecting non-standard and gig economy workers under U.S. and English law, recent union organizing campaigns in the U.S. platform economy, and using university procurement to improve workplace safety and equity. The Forum is free but registration is required.

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Hayden & Bodie: New Article, Book on Codetermination & Corporate Governance

Grant Hayden (SMU) and Matt Bodie (SLU) have both a new article and a new book out. The article is Codetermination in Theory and Practice, 73 Fla. L. Rev. 321 (2021). Here's the abstract:

Codetermination—a system of shared corporate governance between shareholders and workers—has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and as an example of corporate deviance. However, over the last fifteen years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders.

This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted by our law-and-economics framework of shareholder primacy, codetermination has fared better than alternative systems, particularly with respect to the ravages of the Global Financial Crisis of 2008. At a time when corporate leaders, politicians, and academics are rethinking the shareholder primacy model, this Article presents an updated perspective on codetermination and invites U.S. scholars to reexamine their prior assumptions.

The new book is Reconstructing the Corporation: From Shareholder Primacy to Shared Governance (Cambridge Univ. Press, 2021). Here's a description:

Modern corporations contribute to a wide range of contemporary problems, including income inequality, global warming, and the influence of money in politics. Their relentless pursuit of profits, though, is the natural outcome of the doctrine of shareholder primacy. As the consensus around this doctrine crumbles, it has become increasingly clear that the prerogatives of corporate governance have been improperly limited to shareholders. It is time to examine shareholder primacy and its attendant governance features anew, and reorient the literature around the basic purpose of corporations. This book critically examines the current state of corporate governance law and provides decisive rebuttals to longstanding arguments for the exclusive shareholder franchise. Reconstructing the Corporation presents a new model of corporate governance - one that builds on the theory of the firm as well as a novel theory of democratic participation - to support the extension of the corporate franchise to employees.

Congratulations!!!

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Conference: Future of Work & AI

Desiree LeClerq (Cornell ILR) sends word of an upcoming (free to register) video conference on 3 June at 4pm CET for a joint conference series on the Future of Work and AI. Here is the description:

Big data and artificial Intelligence have started to impact Human Resource management. Hiring, firing, performance appraisal, competence development and talent management have all seen an increasing use of AI-based tools. Where do we stand at the moment in this process? What can AI already achieve today and what may it achieve in the near future? And will the employment of AI also create more opportunities and bestow us with better jobs?

Join us on 3 June at 4pm CET for a discussion with top speakers Peter Cappelli (Wharton School), Ashutosh Garg (Eightfold.AI) and Janine Berg (International Labour Organization) as well as many other experts during the first event of our joint conference series on the Future of Work and AI. Register here,

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[Un]Vaccinated Workers in the Labor Market

Chris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:

Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:

We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.

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Keeping Up With COVID, Legally Speaking

This semester, the law students in Professor Lea VanderVelde’s Employment Law course have been doing cutting-edge research into how the pandemic is impacting work laws, as it re-arranges workplaces, requires business closures, transforms the ways we get goods, decimates the service sector, and sickens millions of workers.

As students studied the traditional topics in the employment law curriculum, they also researched how the COVID-19 pandemic was impacting these laws. They were introduced to the sources that experts in the field use to keep up on fast-moving changes, such as reading on-line sources like the Daily Labor Report, white papers of leading law firms, and current state and federal agency guidelines from the Department of Labor and EEOC.

“The sudden emergence of COVID-19 forced considerable changes in many aspects of life—and Professor Vandervelde’s paper addresses its impact on some key areas of employment law. Professor Vandervelde’s course provided us with the proper foundation to effectively address the pandemic’s effect in this area of law. It was an honor and a privilege being a part of this research,” said Iowa Law student Kevin Kim.

This research allowed VanderVelde’s students to witness change as it happened, to reflect on the likely direction the law would take, and to assess the pandemic’s lasting influence on employment law.

Each student produced a different report analyzing how the issue was changing under the new circumstances.

“The opportunity to write a paper involving employment law and the COVID-19 pandemic was my favorite part of this class with Professor VanderVelde. It gave me a chance to apply employment law doctrines I have learned in class to current events. This was not only a fantastic way to test my understanding, but it also provided a practical application of the same processes attorneys and legal scholars undergo,” said 2L Nicholas Day.

By studying their chosen issue over several weeks, students were able to watch changes as they evolved, a method that excellently prepares them for the field of employment law as it exists and prepares them to anticipate the changes to come.

Topics, complete with bibliographies, included the latest thinking on the following questions:

1. How previous pandemics changed the baseline of employment laws.
2. Implications of the pandemic on the gig economy.
3. How COVID-19 has impacted OSHA.
4. How will unemployment compensation funds be sustained under higher unemployment claims in various states, and what requirements are likely to be waived.
5. Occupational-specific issues, such effects on public school teachers, medical licensure due to tele-practicing of medicine, and even whether the cancellation of college and national football are likely to affect current efforts to re-classify student players as employees.
6. The pandemic’s effect on wage theft, and sick leave.
7. How work-from-home affects monitoring employees and recording hours and whether work from home re-classifies employees as independent contractors.
8. Employee privacy including what questions employers can ask? How much employers can mandate changes in their employees’ social lives and whether employers can legally mandate vaccinations?
9. Do whistleblowers alerting others to dangerous practices get protection against retaliation?
10. What is the legal significance of classifying workers as essential workers?

Altogether, the students’ reporting produced a 90-page white paper on where employment law stands at the current moment, and how one would expect it to change. You can read their research here.

CAS (thanks to Lea & Peyten Little)

Sullivan on Noncompetes & Laid-Off Workers

Our own Charlie Sullivan (Seton Hall) has just posted on SSRN his timely article Noncompetes in a Downsizing World. Here's the abstract:

As the nation confronts multiple federal and state attacks on employee noncompetition agreements (NCAs), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs.

This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues implicated in the question. Ultimately, it sees the rule as rooted in concerns about fairness to employee that are typically given short shrift in current doctrine. This is true even for a Restatement that otherwise seems decided to opt for an economic approach that would validate NCAs that are “reasonably tailored” to defined legitimate employer interests.

Adoption of a rule denying enforcement in such situations also poses some interesting second-order questions, such as how to determine when a termination is performance-related and probable employer responses to a new dispensation. All are explored in the pages that follow.

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Porter: The Process Due for Sexual Misconduct in Workplace v. Schools v. Criminal Cases

Nicole Porter (Toledo) has just posted on SSRN her article #MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn. Here's the abstract:

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?

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Katsabian on How Tech Can Undermine LEL Protections

Tammy Katsabian (postdoc, Harvard Labor & Worklife Program) has just posted on SSRN her article The Rule of Technology – How Technology Is Used to Disturb Basic Labor Law Protections (forthcoming 25 Lewis & Clark L. Rev. ___ (2021). [Americans should note: she uses "labor" broadly to include what we usually refer to as "employment" law.] Here's the abstract of this timely article:

Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This article aims to contribute to the current scholarship by zooming it out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. This is done by referring to legal, sociological, and internet scholarship on the matter.

The main argument elaborated throughout this article is that digital technology is used to blur and distort many of the basic labor law protections. Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.

By providing four detailed examples, the article unpacks how employers, giant high-tech companies, and society use various forms of technology to constantly disturb legal categories in the labor field regarding time, sphere, and relations. In this way, the article demonstrates how social media sites, information communication technologies, and artificial intelligence are used to blur the traditional concepts of privacy, working time and place, the employment contract, and community. This increased blurriness and fragility in labor have created many new difficulties that require new ways of thinking about regulation. Therefore, the article argues that both law and technology have to be modified to cope with the new challenges. Following this, the article proposes three possible ways in which to start considering the regulation of labor in the digital reality: (1) embrace flexibility as part of the legal order and use it as an interpretive tool and not just as an obstacle, (2) broaden the current legal protection and add a procedural layer to the legal rights at stake, and (3) use technology as part of the solution to the dilemmas that technology itself has emphasized. By doing so, this article seeks to enable more accurate thinking on law and regulation in the digital reality, particularly in the labor field, as well as in other fields and contexts.

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Re-Thinking Service-Sector Work

DC LERA has another great international labor program. Christy Hoffman is the General Secretary of UNI Global Union, the global union federation for workers in services which represents 20 million members in 150 countries. She will be speaking January 19, 2021, 11:00 am - 12:00 pm. on the topic Remaking the World of Work for the Service Sector. Registration is free -- follow the instructions at this link. 

Thanks to Tequila Brooks for sending this along.

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Trade & Labor Policy in a Biden Administration

What has to change in U.S. trade policy to improve labor practices in global supply chains?

The Cornell ILR School’s New Conversations Project and Sandra Polaski, Senior Research Scholar at Boston University’s Global Development Policy Center, will hold a live discussion on Tuesday, 19 January 2021 from 9 – 10:15 EST on the topic of Sandra's recent paper, How Trade Policy Failed U.S. Workers--and How to Fix It. Register here.

A group of scholars and practitioners will debate the paper’s proposed changes and their possible impacts for workers. Participants include:

• Sandra Polaski, Senior Research Scholar in the Global Economic Governance Initiative at Boston University, and member of the Independent Mexico Labor Expert Board.
• Desiree LeClercq, Proskauer Employment and Labor Law Assistant Professor at Cornell University's School of Industrial and Labor Relations.
• Carlos Salas, Visiting Professor of Economics at Universidad Autónoma Metropolitana (UNAM), Azcapotzalco, Mexico City.
• Olabisi Akinkugbe, Assistant Professor at the Schulich School of Law, Dalhousie University, Canada.
• Dave Welsh, Country Director of the AFL-CIO Solidarity Center in Thailand.
• Jason Judd (Moderator), Executive Director of Cornell University's New Conversations Project in the School of Industrial and Labor Relations.

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Travis on Rethinking the Post-Pandemic Workplace

Michelle Travis (San Francisco) has posted on SSRN her article (forthcoming 64 Wash. U. J. L. & Pub. Pol'y ___ (2021)) A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility. Here's the abstract:

The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a “full-time face-time norm,” which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.

I think Michelle is exactly right: "with [57%] of U.S. employers now offering their employees flextime or remote work options as a result of [COVID], it is no longer tenable for courts to define work as something done only at a specified time and place." We can do better.

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New Book: Worldwide Labor-Related Responses to COVID

Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.

Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.

Here's the publisher's description:

This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.

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Acevedo & others on Regulating the Gig Economy

Congratulations 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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Arnow-Richman on Remote Work & Temporary Termination

Rachel 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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Fisk to Deliver Genest Lecture at York-Osgoode

Sara 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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Royals Take Advantage of Market Inefficiency: Not Treatring Low-Paid Workers Like Garbage

Major League Baseball implemented a temporary rule limiting signing bonuses for new players as a cost-saving measure when teams are bringing in no revenue. One result: teams with a history of treating their workers well are attracting talent they otherwise would have had little chance of luring. Here's the take-away:

The Royals jumped to the top of many players’ lists because of their demonstrated commitment to their minor leaguers. While most of Kansas City’s competitors wavered on paying minor leaguers at all this summer—and then released scores of them—only the Royals and Minnesota Twins said they would keep every prospect. Royals general manager Dayton Moore justified that action by telling reporters, “The minor-league players, the players you’ll never know about, the players that never get out of rookie ball or High-A, those players have as much impact on the growth of our game as 10-year or 15-year veteran players.”

In saying that, the Royals positioned themselves to take advantage of a very simple market inefficiency: not treating your lowest-paid employees like garbage.

Jared Diamond, The Royals Are Taking Advantage of a New Market Inefficiency Wall St. J. (June 19, 2020).

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Webinar: Global Governance & Worker Protection During the Pandemic

Desiree LeClercq (formerly Director for Labor Affairs at the Office of the United States Trade Representative; currently en route to Ithaca NY to teach at the Cornell ILR School) writes to tell us:

LERA has been hosting a series of webinars free to members and non-members that examine various labor elements of the COVID pandemic. This Thursday, May 28, from 10-11am, I will be moderating a panel on ""Global Governance During Pandemic: Implications of Force Majeure and National Emergency for Worker Rights Protections." Panelists will include representatives from the ILO, the World Bank, the World Maritime University, Solidarity Center, and Sustainable Enterprises. In case of interest, the link to register and receive the Zoom link may be accessed at: https://lera.memberclicks.net/lera-webinar-series--ler-during-covid-19.

This looks like a terrific program!

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Using Hurricane Data to Predict Covid-19 UI Clams

A group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:

We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.

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