New Article: Matthew Finkin, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, Indiana L.J. (forthcoming 2014). Abstract below:
The plight of low wage workers is drawing increased attention and with it proposals for a better address to the problem of wage theft. Giving workers legal voice via collective bargaining is not thought practicable. Consequently, the proposals offered thus far are directed to the labor inspectorates, federal and state, or call for better coordination with or reliance on voluntary groups in civil society, especially worker centers. This article essays a return to a model of representation geared to wage theft in coal mining a century ago. Thirteen states enacted such laws; some are still on the books. This essay proposes to revitalize this model as a means of assuring conformity with wage and hour laws and as a potential step toward collective representation.
Call for Papers and Conference: “Child poverty, youth (un)employment and social inclusion,” Nov. 19-21, 2014, Athens, Greece. Organized by CROP, the Institute of Labour, and Democritus University of Thrace. Deadline for Submission of Abstracts, May 30, 2014.
New Article: Samuel R. Bagenstos, Employment Law and Social Equality, 112 Mich. L. Rev. 225 (2013). Abstract below:
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.
This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Story for today: Steven Greenhouse, On Register’s Other Side, Little to Spend, N.Y. Times, Nov. 28, 2013.
New Article: Charlotte Garden & Nancy Leong, “So Closely Intertwined”: Labor and Racial Solidarity, 81 Geo. Wash. L. Rev. 1135 (2013). Abstract below:
Conventional wisdom tells us that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as predictably fraught with tension. For example, commentators assert that unions capture a wage premium that mostly benefits white workers while making it harder for workers of color to find work; that unions deprive workers of color of an effective voice in the workplace; and that unions are interested in workers of color only to the extent that they can showcase them to manufacture the appearance of racial diversity.
Like much conventional wisdom, the narrative of rivalry between unions and people of color is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests. This work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions can improve the lives of workers of color—whether or not they are union members—through activities that range from bargaining for better wages and working conditions to providing services like job training and continuing education to under-resourced communities.
We aim to replace the conventional wisdom with a narrative that more accurately describes the occasionally complicated but ultimately hopeful relationship between labor and race. In developing this narrative, we anchor our conclusions in an interdisciplinary literature that includes insights from legal, economic, psychological, and sociological scholarly research. This extensive body of scholarship indicates that union membership has significant benefits for workers of color in the form of higher wages and improved benefits, more racially congenial workplaces, and deeper cross-racial understanding. We complement this robust scholarly literature with real-world examples of union success at improving the well-being of workers and communities of color. In contrast to many other commentators, then, our account is largely optimistic, though we emphasize that there is still work for the labor movement to do.