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Topic: "Articles and books" | Main

Article: When Does Foreign Law Compel US Employer to Discriminate
March 20, 2009 by Ross Runkel at LawMemo

Littler MendelsonA new article by Littler Mendelson lawyer Tyler M. Paetkau raises a number of issues relating to the “foreign compulsion” defense to claims of intentional discrimination. The concept is that a US employer can discriminate against its employees with regard to transfers to certain foreign countries in order to avoid violating the laws of those foreign countries.

When Does a Foreign Law Compel a U.S. Employer to Discriminate Against U.S. Expatriates?: A Modest Proposal for Reform identifies flaws in the law and inconsistencies in its interpretation, and makes a sensible proposal for reform.

You can get a taste from the introduction:

A large U.S. multinational corporation announces a major joint venture in Saudi Arabia and strongly encourages certain employees to relocate there for three to four years. It could be a smart career move. It could be a terrific experience, both professionally and personally. The Saudi Government, however, refuses to process work visas for young, single women; openly homosexual employees; Jews; disabled employees; and all employees over the age of 50. Can the U.S. employer intentionally discriminate on the basis of gender, marital status, sexual orientation, religion, disability and age, by denying transfers to all employees on these protected bases? Unfortunately, despite Congress’ amendments of Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (“ADA”) in 1991, and the Age Discrimination in Employment Act (“ADEA”) in 1984, to provide for extraterritorial application of these landmark antidiscrimination laws, the answer is still unclear.

As the global economy continues to develop rapidly, more and more courts will grapple with the contours of the so-called “foreign compulsion” defense. Under what circumstances will U.S. multinational employers get a pass on intentional discrimination? Does the foreign law truly compel the U.S. employer to discriminate against U.S. citizens, or is the U.S. employer instead using this foreign law compulsion defense as a smokescreen to legitimatize discrimination? How well-defined must the foreign law be to compel such blatant discrimination? How hard must the U.S. employer push the foreign government before acceding to the discriminatory foreign law?

This Article analyzes the legislative history and some of the evolving case law interpreting the foreign compulsion defense to otherwise clear violations of Title VII, the ADEA and the ADA. Neither Congress nor the courts have provided clear guidance to multinational employers and expatriates as to when the “foreign laws” defense permits employers to deny employment opportunities to employees in protected classes. Such lack of clarity necessarily results in increased litigation expenses, not to mention strained foreign relations and other attendant social costs. This Article proposes a practical solution to help employers, employees and the courts determine when the foreign compulsion defense applies to immunize U.S. employers from liability under Title VII, the ADEA and the ADA. Congress ought to amend these three antidiscrimination statutes again to permit employers and employees to seek intervention by the U.S. Department of State in cases of conflict or perceived conflict between U.S. and foreign employment discrimination laws.




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Cat's Paw - A new approach is suggested
January 22, 2009 by Ross Runkel at LawMemo

Professor Stephen F. Befort of the University of Minnesota Law School and Alison L. Olig of Best & Flanagan LLP are proposing a whole new analytical approach to the cat's paw issue - subordinate bias liability under antidiscrimination statutes.

Their article is Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 South Carolina Law Review ___ (2009).

Here is their main concept:

The topic of subordinate bias liability is beset with layers of complexity. Some of the layers flow from the multiplicity of actors in such cases. Subordinate bias cases invariably implicate at least two actors: a biased subordinate—usually a lower level supervisor—and a higher ranked formal decisionmaker. But, it is not uncommon for additional actors to play roles in these cases, such as other supervisors and managers in a vertical hierarchy, or committee members who participate on a horizontal level.258 The possibility of an independent investigation offers the potential for yet another actor or team of actors. These many participants pose a daunting challenge for a court in determining the ultimate causal role of subordinate bias in the particular circumstances.

Subordinate bias liability also implicates layers of important policy issues. Concerns related to causation, agency principles, and the role of employer investigations serve as portals to many critical policy concerns.

Finally, the appellate courts themselves have contributed to this layering effect by providing several layers of confusion. As this Article demonstrates, the circuit courts have adopted at least three different standards for determining subordinate bias liability. In actuality, far more than three viewpoints currently exist, as several gradations in approaches appear within the lenient and intermediate standards.

A striking feature of the various liability standards is that each serves legitimate and substantial policy interests. The lenient standard legitimately recognizes that liability should be possible for subordinate liability that is causally linked to an adverse employment action. The strict standard legitimately recognizes that an employer should be vicariously liable only for the acts of its agents who have been empowered by delegated authority. The intermediate standard, meanwhile, legitimately recognizes the important role that employer investigations can play in furtherance of both discrimination deterrence and litigation avoidance goals.

Given the positive underpinnings of all three standards, our proposed solution is not to choose one standard and one policy to the exclusion of the others, but to attempt an appropriate balance among all three approaches. With that goal in mind, our recommendations may be summarized as follows:

(A) An employer may be liable under federal antidiscrimination statutes for the biased acts of a subordinate employee if
(1) the employee acting with bias is a supervisor or otherwise acts in furtherance of authority delegated by the employer, and

(2) the biased acts are a motivating factor in a resulting adverse employment action taken by the employer.

(B) An employer, nonetheless, may avoid liability if it establishes a two-part affirmative defense showing that

(1) it has taken reasonable measures to prevent and to correct such bias, such as by the implementation of a meaningful anti-bias policy, and

(2) the plaintiff, unreasonably, has failed to take advantage of the preventative or corrective opportunities provided by the employer or otherwise to avoid harm.

(C) Alternatively, where the plaintiff has taken advantage of such measures, or where the employer has not established an anti-bias policy, an employer may avoid liability if it has dissipated the taint of subordinate bias by undertaking a fair, independent, and bias-conscious investigation into the circumstances underlying the contemplated employment action.

This set of recommendations provides a balanced, policy-based analytical framework for addressing the issue of subordinate bias liability. It represents the appropriate grasp of the cat’s paw theory.




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Criminal prosecution for en mass resignation?
January 20, 2009 by Ross Runkel at LawMemo

Yesterday I wrote about Vinluan v. Doyle (New York App Div 01/13/2009), which held that it would violate the 13th amendment to criminally prosecute a group of nurses who resigned in the belief that their contracts had been breached.

Mitchell H. Rubinstein has written a whole article on this case already. Here it is:

A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.

Professor Rubinstein's summary:

Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep't. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be "profoundly disturbing." The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.




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The end of the Restatement of the Law of Employment?
May 20, 2008 by Ross Runkel at LawMemo

The Labor Law Trust Group has petitioned the Council of the American Law Institute to terminate the Restatement of the Law of Employment project. Pretty heavy group of law professors proposing that the whole idea simply be trashed.

Here is the petition:


To the Council of the American Law Institute:

The undersigned are professors of labor and employment law in accredited schools of law in the United States. Institutional affiliation is given for identification purposes only; American Law Institute membership is denoted by an asterisk.

We have followed the development of the proposed Restatement of the Law of Employment—notably Parts 3 (on contractual job security), 4 (on public policy as a limit on discharge), and 5 (on employee privacy)—with increasing concern. As with all Restatements, the purpose is to provide simple blackletter rules that better adapt the law to changing social and economic conditions. However, we believe the Restatement methodology, in this setting, to be not only inadequate but counterproductive.

When the idea of restating the law was proposed in 1923, the Report admonished that contentious issues of “social and industrial . . . policy,” such as the improvement of the “relations between labor and capital,” were not suitable for restatement: the ends to be achieved were too much in controversy, the law too much in flux. The 1923 Committee’s insight has continuing vitality today. The velocity of change in the areas of the common law addressed in Parts 3 and 4 has been rapid, the law is still very much in flux. Yet the project proposes to take a firm stand, projecting its rules into an indefinite future.

No doubt the law of employment should adapt to demonstrable social or economic change; but the project fails to engage in any analyses, or even description, of what the changes are that summon the need for the rules it proposes. Part 3 states, for only one example, that an employer should be free retroactively to abandon its unilateral contractual commitment to job security. This is done without any acknowledgement that the role of job security in the labor market of the future is a subject of intense economic and ethical debate. Undeterred, the draft proposes to have the law come down on one side of this contentious issue without acknowledging the existence of that debate, let alone its terms of reference. Part 4 states, for one further example, that an employer should be able to discharge an employee for the exercise of his or her rights as a stockholder in the employing company because these rights do not arise out of employment. This without acknowledging the rich and intense debate worldwide on the role of employees in corporate governance. Again, the draft would have the law come down on one side of a highly controversial economic and ethical question without acknowledging that the controversy exists let alone what the stakes in it are.

The point we wish to emphasize by these two illustrations—only two of a great many more we could essay—is not that we disagree with one or another of the draft’s blackletter rules, comments, or illustrations. The reason we approach the Council is that we believe the whole thrust of the project to be misplaced. We submit that the velocity and direction of legal change in the employment relationship is incapable of being addressed by a Restatement; that the Restatement method, if it proves influential (as the Institute would surely wish it to be), will stultify legal experimentation and growth.

This consequence is evident in the Restatement (Second) of Torts’ provision on privacy, which Part 5 adopts. Although the Restatement of Torts expressly anticipated the growth of the law transcending the categories of privacy it set out, that has not happened. The categories have hardened. As a result, the tort of invasion of privacy has almost no purchase on the critical privacy issues that have emerged in contemporary society generally, nor does it address the most pressing issues in the workplace: deploying sophisticated methods of screening prospective employees; monitoring employee behavior and performance by advanced technology; collecting, collating, and disseminating personal data by electronic means; imposing controls on private life. Of course, these may be ill suited for resolution by tort; but if so, we fail to see any purpose served by restating a body of law that, in the work setting, is largely irrelevant.

There is a need to think afresh about the role of law in the workplace. But the methodology of restatement is unsuited for, and can actually retard what should be a serious effort at law reform. As scholars who have thought deeply about these issues, we strongly urge the Council to terminate this project.

For a list of signers, go here.

Thanks to Workplace Prof Blog for bringing this to light.



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The Future of Labor and Employment Law
May 03, 2008 by Ross Runkel at LawMemo

The Future of Labor and Employment Law in the United States by Katherine V.W. Stone at UCLA School of Law is a bold look at the future.

Stone sees two possible futures:

  1. "Labor law will continue to atrophy, unions will continue to decline, and individual employment rights will be chipped away."
  2. - or -

  3. "Labor laws will evolve in a way that represents a marked break with the present in order to address the needs and concerns of individuals in the new workplace."

The abstract (a chapter in the forthcoming ENCYCLOPEDIA OF LABOR AND EMPLOYMENT LAW AND ECONOMICS, Kenneth Dau-Schmidt, S. Harris, and O. Lobel, eds., Elgar Publishing Company, 2008):

There is a serious problem with the labor and employment law system in the United States today: Unions have declined to the point where they represent less than 8 per cent of the private sector workforce, employee wages have stagnated for more than three decades, employers are cutting back on workers' health insurance and pensions, and there is a dramatic growth in the numbers of the working poor. At the same time, there has been a rising chorus of complaints from labor scholars and activists that the labor law has become an obstacle to rather than a facilitator of workplace justice.

This essay offers an analytic understanding of the history of labor law to explain why the field of labor and employment law is in such dire straits. It contends that the labor and employment laws no longer provide redress for the most pressing problems of workers today. The changing nature of work has caused new problems to arise in the operation of the labor market, problems that call for new kinds of regulatory interventions.

According to the author, there are two possible scenarios for the future of labor law. One scenario is that labor law will continue to atrophy, unions will continue to decline, and individual employment rights will be chipped away. The other scenario is that labor laws will evolve in a way that represents a marked break with the present in order to address the needs and concerns of individuals in the new workplace.

The author discusses the prospect of chances such as

  • (1) a collapse of the distinction between labor law and employment law;
  • (2) an expanded use of legislation rather than collective bargaining to set employment conditions;
  • (3) an expansion of collective bargaining to new groups, such as independent contractors, atypical workers, immigrants, unemployed workers, and geographically-defined groups;
  • (4) a broadening the field of labor and employment law to include issues such as health care policy, training and education, welfare, intellectual property protection, pensions and social security, housing policy, and other areas of social law; and
  • (5) the creation of a new type of social safety net to focus on the problem of transitions and gaps in people's labor market experiences.


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Mike Maslanka: Dealing With Dysfunctional Counsel
January 26, 2008 by Ross Runkel at LawMemo

You've been there. The lawyer on the other side takes no prisoners, runs to the courthouse whenever their hair gets mussed up, and otherwise engages in grandstanding, hyperbole, and other unprofessional conduct they must have picked up from bad TV shows.

What to do?

Michael P. Maslanka has written Dealing With Dysfunctional Counsel, which has some answers. We reproduce it here from the January edition of In-House Texas.

The article is written for general counsel.

Mike suggests that GC use their positions as bully pulpits to urge judges to be judges.

He also has some cute advice that he derives from two of my favorites: Muhammad Ali and Buddha.

Michael P. Maslanka is an employment law expert who manages Ford & Harrison's Dallas, Texas office, and is an all-around nice guy.



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Understanding Employment Law
October 14, 2007 by Ross Runkel at LawMemo

All in 254 pages, by three thoughtful experts: Richard Bales (Northern Kentucky University), Jeffrey M. Hirsch (University of Tennessee), and Paul M. Secunda (University of Mississippi).

   

Bales, Hirsch, Secunda, Understanding Employment Law (LexisNexis 2007).

Destined to become a popular resource for law students and lawyers alike, the book strikes a nice balance between being comprehensive and selective. It takes on the impossible task of summarizing a complex web (or checkerboard, if you like) of common law, statutory, and constitutional provisions.

The book is written in a clear and uniform style, with good examples taken from court cases. The writing is objective, and does not carry the personal opinions of the authors. The organization is clear, with useful headings and subheadings.

These authors clearly know what they are talking about. They raise the key legal issues, clearly separate the black letter from the gray areas, give both sides of current controversies, and provide useful citations for further reading.

For me, the main flaw is that some of it is organized in historical order - the way one might teach a course in law school. This can create analytical difficulties. For example, employer torts are under the heading of "Tort Erosions of Employment at Will" even though employment-at-will is a contracts doctrine. And Garcetti v. Ceballos (the most recent free speech case) is presented at the end of the free speech section even though it probably is now a threshold issue.

If I were still teaching employment law, I would strongly recommend this book to my students. And I recommend it to any lawyer who wants to get a reliable overview of the legal tangle we call employment law.




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7 steps for a termination meeting
September 18, 2007 by Ross Runkel at LawMemo

Avoiding Long Goodbyes: Seven Steps For Conducting Successful Termination Meetings by Jones Walker attorney H. Mark Adams contains some pithy and useful advice for employers.

The article provides "seven field-tested steps for conducting termination meetings will help reduce your risk of being sued, increase your chances of winning if you are sued, lower your anxiety level in the process, and avoid long goodbyes."

The article [click here] elaborates on these seven principles:

  1. Figure Out What You’re Going to Say Ahead of Time.
  2. Pick the Best Time and Place.
  3. Get a Witness.
  4. Get to the Point.
  5. Don’t Argue.
  6. Show Your Employee the Money.
  7. Document What Happened.

Mark Adams founded Jones Walker's Labor Relations & Employment Practice and served as its chair for more than twenty years. His office is in New Orleans.



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Immigration-related questions in employment litigation
July 25, 2007 by Ross Runkel at LawMemo

During litigation, employers ask plaintiffs about their immigration status, thus chilling immigrant employees who might want to pursue their rights in employment law cases.

That's the problem seen by Willamette University Law Professor Keith Cunningham-Parmeter.

Cunningham-Parmeter's proposed solution involves the use of the 5th amendment privilege against self-incrimination.

The article: Fear of Discovery: Immigrant Workers and the Fifth Amendment, to be published in the Cornell International Law Journal. Quite an interesting article by Cunningham-Parmeter, whose research focuses primarily on the contingent workforce, as well as the intersection of employment law and immigration law.

Abstract:

Do you have papers? Immigrant workers increasingly face this question in civil litigation. Citing the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, which stated that undocumented immigrants cannot recover monetary damages for labor law violations, employers argue that many employment protections no longer apply to this group of workers. Consistent with this argument, employers pose immigration-related questions during discovery, causing an already uneasy class of plaintiffs to cease suing employers in order to avoid answering questions about their immigration status.
Professor Cunningham-Parmeter explains how status-based discovery not only inhibits immigrant employees from vindicating their workplace rights but also undermines the employment protections at issue. Without an effective method for stemming the flood of status-based inquiries born of Hoffman, immigrants will continue to opt-out of civil litigation, unwilling to assert even the strongest claims for workplace violations. Cunningham-Parmeter argues that the Fifth Amendment privilege against self-incrimination provides the most effective method for serving immigrants' competing litigation interests: protection from intimidation and vindication of substantive employment rights.
He contends that the policies in support of extending the privilege to the civil context play a prominent role in immigrant-initiated litigation. Civil libertarian values traditionally ascribed to the privilege such as fairness, privacy, and the prevention of cruelty are threatened when courts grant defendants unfettered access to status-based discovery.
After outlining the policies and principles of the privilege, Cunningham-Parmeter explains the process and potential consequences of invocation, including the adverse inferences a court may draw from the witness's silence. Cunningham-Parmeter outlines factors counseling against adverse inferences such as the unreliability of silence and the irrelevance of immigration status to most employment claims. Even if courts infer that silent plaintiffs are undocumented immigrants, Cunningham-Parmeter argues the outcome would improve the current state of affairs by clarifying the courts' position on the relevance of status. Thus, the privilege serves both protective and explanatory functions by guarding the witness's status-based information, while requiring a determination of immigrant-based employment rights in the post-Hoffman era.

Thanks to Workplace Prof Blog, who got this story before I did.



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3.6% winners under Sarbanes-Oxley
May 27, 2007 by Ross Runkel at LawMemo

Ever wonder why so few whistleblowers win under the Sarbanes-Oxley Act of 2002?

Perhaps here's the answer: Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win by Professor Richard Moberly, University of Nebraska College of Law. To be published in William & Mary Law Review, Vol. 49, Fall 2007.

The Abstract:

Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process.

This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases misapplied, Sarbanes-Oxley's substantive protections to the significant disadvantage of employees. These data-based findings assist in identifying the provisions and procedures of the Act that do not work as Congress intended as well as suggest potential remedies for these statutory and administrative deficiencies.




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Attorney Labor Unions
January 27, 2007 by Ross Runkel at LawMemo

When lawyers decide to unionize, are they excluded from the process because they are confidential employees, supervisors, or managers - or simply by the ethical standards of the legal profession?

Attorney Labor Unions provides analysis and answers. Written by Mitchell H. Rubinstein, Senior Counsel, New York State United Teachers, 52 Broadway, 9th floor, New York, NY 10004, phone 212-533-6300, email mrubinst@nysutmail.org. The article is published in the January 2007 issue of the New York State Bar Association Journal .

Here's the abstract:

Attorneys may be interested in joining a labor union for the same reasons as other employees. Although there is relatively little precedent or history in the area of attorney unions, the federal National Labor Relations Board (NLRB or “Board”) has asserted jurisdiction over law firms since 1977, provided a firm has $250,000 in gross revenue. The general process of establishing a union would be the same as it is for employees in other fields.

There are instances where such unionization has occurred without contest. Many reported cases involving law firms actually concern support staff, although there are those that also involve attorneys.

What if there is a contest? As a general proposition, attorneys enjoy the same legal rights as other employees in deciding whether or not they want to be represented by a union. The employer’s or law firm’s desires are irrelevant. However, attorney-employers are likely to raise certain points in opposition to attorney unionism. They may argue that staff attorneys are not eligible to unionize because they are either confidential employees, or supervisors, or managerial employees. They might also claim that attorneys should not organize because the ethics of the legal profession will impede the collective bargaining process. Each of these is discussed in turn.



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A call to end pre-dispute arbitration agreements
January 27, 2007 by Ross Runkel at LawMemo

Number One on the SSRN list of Employment Law downloads for last week was an essay by Symeon Symeonides, Dean at Willamette University College of Law in Salem, Oregon. The hefty title: Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria that Isn't.

Of great interest to employment lawyers is this essay's suggestion that pre-dispute arbitration agreements - as they relate to employment contracts in which presumptively one party is in a weak bargaining position - should be made non-enforceable.

Although written by a conflicts of laws expert, this article has a lot to say about arbitrators using rules put out by private organizations as opposed to "legal" rules adopted courts or legislatures.

The abstract:

This essay discusses “non-state norms” from the perspective of American conflicts law. Commonly referred to as the “new lex mercatoria,” these norms are drafted by various international or intra-national non-governmental organizations and are proposed for incorporation by contracting parties or for application by arbitrators, with or without the parties' prior consent.

Understandably, these norms are popular among many arbitrators who tend to place them on the same footing as law. Current U.S. arbitration law uncritically permits this treatment to the extent it does not allow judicial review of an arbitrator's choice of law (or non-law). The fact that, unlike the law of most countries, American law generally enforces pre-dispute arbitration clauses in consumer contracts and most employment contracts can further exacerbate the situation. In contrast, in contracts that are not subject to arbitration, American courts apply non-state norms only to the extent they have been expressly incorporated into the contract and only if their application would not displace non-waivable rules of the law that would otherwise govern the contract.

This essay applauds the latter position of American conflicts law but suggests that U.S. arbitration law should be reformed so as to provide needed protection to consumers, employees, and other presumptively weak parties.



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Forgotten Workers: Unprotected Volunteers
January 24, 2007 by Ross Runkel at LawMemo

What's an "employee"? What's a "volunteer"? If a volunteer is sexually harassed, is there a Title VII claim?

Find out in Our Nation’s Forgotten Workers: The Unprotected Volunteers by Mitchell H. Rubinstein, Senior Counsel, New York State United Teachers, 52 Broadway, 9th floor, New York, NY 10004, phone 212-533-6300, email mrubinst@nysutmail.org. The article is published in the University of Pennsylvania Journal of Labor and Employment Law.

Here's the abstract:

Public policy strongly supports voluntarism as it fuels interests that are critically important to society and the health of this country, particularly in these days of ever-increasing budget cuts. It has also created many unique legal dilemmas. Unfortunately, however, the volunteer experience for the individual may not always work out. This article addresses the consequences of a failed voluntary service relationship. For instance, can a volunteer who is sexually harassed maintain a cause of action for sex discrimination under Title VII? Is a volunteer an employee with other rights? What is the definition of an employee anyway?

There is still great variation in this country with respect to which employment test should be utilized to determine whether or not someone is an independent contractor or an employee. Additionally, courts have reached conflicting decisions with respect to whether other workers, such as graduate students, are employees. Therefore, it should not be surprising that there is also great variation in the case law distinguishing between volunteers and employees.

As discussed in this article, a two-step analysis should be utilized to distinguish between volunteers and employees. In general, to be an employee, the individual must (1) be hired which involves an examination of whether the individual receives some form of remuneration, and (2) have his or her work controlled by the employer.

Though there is virtually no scholarly work that analyzes the rights of volunteers in employment, the question of whether volunteers should be treated as employees is becoming an increasingly important legal issue as there are a number of recent decisions addressing this issue. See, e.g., Hallissey v. America Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. Lexis 12964 (S.D.N.Y. Mar. 10, 2006) (refusing to grant summary judgment because “community leaders” who serviced internet message boards and chat rooms in return for free internet access, a compact disc case, expanded web space, anti-virus software, and employee discounts could be employees under the FLSA); Lowery v. Klemm, 845 N.E.2d 1124 (Mass. 2006) (denying a state claim for sexual harassment as the plaintiff was a volunteer and not an employee).



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Employment law verdict reports
June 13, 2006 by Ross Runkel at LawMemo

In my law practice days I liked knowing what juries were doing with cases similar to mine.

For employment lawyers, there is a new publication providing information about jury verdicts in employment law cases in federal courts.

  • Publication: The Labor & Employment Verdict Reporter
  • Sample: 1 LEVR 1 (July 2006)
  • Format: Monthly. Print or pdf file via email
  • Publisher: Jury Verdict Publications
  • Publisher's description:

    The Labor & Employment Reporter is a new publication that fills a labor and employment void regarding verdict results -- we publish more verdict results than anyone -- in our premiere issue, we've chronicled fifty-eight labor and employment verdicts from all over the country. These aren't settlements or mediations -- these are jury trial results from federal court throughout the U.S. involving discrimination, retaliation, harassment and other employment civil-rights and tort claims.

My source: Workplace Prof Blog - New Newsletter



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Employment law resources
May 21, 2006 by Ross Runkel at LawMemo

LawMemo is the premiere provider of up-to-date information on employment law.

  • Employment Law Memo
  • emailed three times per week.
  • Summaries of court decisions on employment law.
  • All federal and state appellate courts.
  • Hot links to full text of court decisions.
  • $300 for one year. Includes on-line caselaw database. Free 4-week trial.
  • NLRB Law Memo
  • Published weekly.
  • Summaries of decisions of the National Labor Relations Board.
  • Hot links to full text of NLRB decisions.
  • .
  • Free online.
  • Free RSS feed.
  • Arbitration Law Memo
  • Published monthly.
  • Summaries of court decisions on employment arbitration and labor arbitration.
  • Hot links to full text of court decisions.
  • .
  • Free online.
  • Free RSS feed.


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Article: Prohibiting employee conversations
July 10, 2005 by Ross Runkel at LawMemo


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 article: "National Labor Relations Board Holds That Union-Free and Unionized Employers Cannot Prohibit Employees From Having “Negative Conversations” About Their Managers"

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.



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Article: Prohibiting employee conversations
July 10, 2005 by Ross Runkel at LawMemo


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 article: "National Labor Relations Board Holds That Union-Free and Unionized Employers Cannot Prohibit Employees From Having “Negative Conversations” About Their Managers"

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.



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Book review: "Labor Relations Law"
July 02, 2005 by Ross Runkel at LawMemo

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.



28 Day Free Trial

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Article: How Employment Discrimination Plaintiffs Fare
June 07, 2005 by Ross Runkel at LawMemo

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.


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Article on Restatement Of Employment Law
May 23, 2005 by Ross Runkel at LawMemo

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.




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