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July 10, 2005
Article: Prohibiting employee conversations
In both unionized and non-union workplaces employers may have work rules that forbid such things as:
- having "negative conversations" about managers
- making "false, vicious, profane or malicious statements toward or concerning [the employer] or any of its employees"
- using "abusive or profane language"
- "verbal, mental and physical abuse"
- "harassment . . . in any way"
No problem? Think again. These quotes were taken from actual NLRB decisions in which the employers were held to be in violation of the National Labor Relations Act.
It didn't matter whether the employers were unionized or non-union.
As this article points out:
There are numerous decisions by the NLRB holding that the mere maintenance of an overly broad work rule violates the law. The liberal members of the five-member NLRB, who were appointed by President Bill Clinton, penned many of these decisions. Despite the presence of a more conservative NLRB comprised of President George W. Bush's appointments, the decisions issued within the past year do not indicate an imminent change in the law.
The author: Alan Model, a principal at Grotta, Glassman & Hoffman, a management-side law firm.
My view: Many employers continue to believe they can ignore the NLRB. Sadly, some lawyers believe this also. Truth is, they can't. A significant percentage of NLRB decisions involve non-union employers. Alan Model's article focuses on work rules that restrict what employees can say about management and about other employees, but this is only one aspect of the workplace where the NLRB gets involved.
Policy on reviewing books and articles:
- I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
- Books: I'll need to see the actual book.
- Articles: I must be able to link to a no-charge digital source such as a web site.
Posted July 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
Article: Prohibiting employee conversations
In both unionized and non-union workplaces employers may have work rules that forbid such things as:
- having "negative conversations" about managers
- making "false, vicious, profane or malicious statements toward or concerning [the employer] or any of its employees"
- using "abusive or profane language"
- "verbal, mental and physical abuse"
- "harassment . . . in any way"
No problem? Think again. These quotes were taken from actual NLRB decisions in which the employers were held to be in violation of the National Labor Relations Act.
It didn't matter whether the employers were unionized or non-union.
As this article points out:
There are numerous decisions by the NLRB holding that the mere maintenance of an overly broad work rule violates the law. The liberal members of the five-member NLRB, who were appointed by President Bill Clinton, penned many of these decisions. Despite the presence of a more conservative NLRB comprised of President George W. Bush's appointments, the decisions issued within the past year do not indicate an imminent change in the law.
The author: Alan Model, a principal at Grotta, Glassman & Hoffman, a management-side law firm.
My view: Many employers continue to believe they can ignore the NLRB. Sadly, some lawyers believe this also. Truth is, they can't. A significant percentage of NLRB decisions involve non-union employers. Alan Model's article focuses on work rules that restrict what employees can say about management and about other employees, but this is only one aspect of the workplace where the NLRB gets involved.
Policy on reviewing books and articles:
- I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
- Books: I'll need to see the actual book.
- Articles: I must be able to link to a no-charge digital source such as a web site.
Posted July 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
July 02, 2005
Book review: "Labor Relations Law"
A law school coursebook for the traditional labor law class: Labor Relations Law: Cases and Materials (11th ed 2005) by Theodore J. St. Antoine (Michigan), Charles B. Craver (George Washington), Marion G. Crain (North Carolina).
This book has been a classic, and the new 11th edition is no exception. The authors take a straightforward approach and do not hide the ball. Most of the book is organized the way I like it: "chronologically" from organizing to bargaining to contract enforcement.
It is fully up-to-date, including recent cases in which the Bush Board has reversed some policies established by the Clinton Board, and including mention of cases pending at the Board such as Dana Corp.
There is a series of chapters not seen in most books, focusing on critiques of the current system and proposals for reform. These chapters can be used for a seminar, or parts of them can be assigned for a basic course.
The teacher's manual is actually helpful, both for the beginning and experienced teacher. Lots of good questions, plus helpful (and accurate) warnings about which concepts students find especially troublesome. It includes the syllabi the authors use when they teach, and some useful negotiation exercises.
Policy on reviewing books and articles:
- I will review books and article dealing with any aspect of labor or employment law, but I don't guarantee to review everything that comes in. [Contact information]
- Books: I'll need to see the actual book.
- Articles: I must be able to link to a no-charge digital source such as a web site.
Posted July 02, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
June 07, 2005
Article: How Employment Discrimination Plaintiffs Fare
Statistically, plaintiffs don't do well in employment discrimination cases, and here's an article that provides the details. Professors Kevin M. Clermont and Stewart J. Schwab of Cornell Law School published "How Employment Discrimination Plaintiffs Fare in Federal Court" in the Journal of Empirical Legal Studies, and it is now available on the web [here].
Authors' Abstract:
This article presents the full range of information that the Administrative Office's data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs.
Posted June 07, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
May 23, 2005
Article on Restatement Of Employment Law
Law Professor Matthew W. Finkin at the University of Illinois has a lot to say about the proposed Restatement Of Employment Law. Matthew W. Finkin, Second Thoughts On A Restatement Of Employment Law, 7 Journal of Labor and Employment Law ___ (2005). Download it [here].
Abstract: "The American Law Institute has circulated a draft of a proposed Restatement of the Law of Employment. The author takes a close look at what the project has chosen to cover and what it has chosen not to cover; and, in particular, undertakes a detailed examination of its proposed treatment of wrongful dismissal. The essay criticizes the lack of any explanation of the project's purposes, of the choices it has made in coverage and approach, and in failing to attend to the most pressing areas calling for law reform. It singles out the draft's approach to wrongful dismissal for failing to confront the real issue posed by the erosion of the at-will rule and, at best, as tending to ossify an as yet unsettled (and unsettling) body of law. The essay proposes alternatives on both accounts."
My view: The article justifiably rips the Restatement draft to shreds.
Posted May 23, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
