Category Archives: Employment
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.
Not Enough Hours in the Day: Work Hour Insecurity and a New Approach to Wage and Hour Regulation by Charlotte Alexander, Anna Haley-Lock :: SSRN
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.
New Article: “Womenomics for Nursing Growth: Making the Case for Work Time Flexibility and Mother-Friendlier Workplaces”
New Article: Gabriela Steier, Womenomics for Nursing Growth: Making the Case for Work Time Flexibility and Mother-Friendlier Workplaces, 21 Buffalo Journal of Gender, Law & Social Policy 111 (2013). Abstract below:
Gender bias at work often coerces breastfeeding working mothers to choose between their baby or their job. The forced choice between private and work life irreconcilably separates motherhood from a woman’s career, giving rise to the Mommy Wage Gap and the Maternal Wall. Consequently, the separation of work and family life has negative impacts on both the mother and her child. These negative impacts also bear on public health and the economy on a large scale. The more unaccommodating workplaces are, the stricter the separation between work and family life and the more permanent the choice a working mother has to make. Such unaccommodating workplaces thus force breastfeeding working mothers to either wean their children too early or to opt-out. Thus, increasing work-time flexibility for working parents, and especially breastfeeding mothers, would allow working mothers to breastfeed their children for the recommended period of at least six months after birth. The current federal labor laws, the Family and Medical Leave Act (FMLA) and the Patient Protection and Affordable Care Act (PPACA), are insufficient in protecting breastfeeding-working mothers from the gender bias and aggravated work-life conflict. If more working mothers were able to breastfeed their babies for the recommended six months, the government could save public health care costs and use these savings for reinvestments to fuel economic recovery. By allowing working breastfeeding mothers to bring the private and public spheres closer together, and to thereby attain greater work-life life, businesses and companies will be empowered to increase efficiency, productivity, and eventually profitability. This paper evaluates some strategies to increase profitability by providing greater work-time flexibility.
New Article: “The Second-Class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules”
New Article: Nantiya Ruan & Scott A. Moss, The Second-Class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules, 61 Am. U. L. Rev. 523 (2012). Abstract below:
Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion proving strict commonality among members.
But conditioning § 216(b) collective actions on certification motions proving commonality is fundamentally incorrect. Section 216(b) is not an opt-in version of Rule 23; it is a liberalized form of simple Rule 20 joinder, which permits joint suit whenever claims share one common issue and address related events. No text authorizes any § 216(b) certification inquiry like Rule 23 does. Nor is judicial gatekeeping justified by economic logic: Rule 23 classes present principal-agent and asymmetric information problems because lead plaintiffs may inadequately represent unengaged members; but all § 216(b) collective actions members are full plaintiffs with individual claims, obviating the need for judicial scrutiny.
These cases commonly are high-impact challenges to entire industry pay practices, seeking millions in unpaid wages for thousands of workers. Especially for low-wage workers, disallowing collective actions ends the claims; individual suits are cost-prohibitive. Even when collective actions proceed, certification motions yield cost and delay, thwarting claims and deterring attorneys.
With certification motions improper, courts should presumptively allow collective actions whenever workers at the same employer press the same statutory claims. Defendants should bear the burden of challenging collective actions in a Rule 21 misjoinder or Rule 12 dismissal motion. Courts, lacking Rule 23 gatekeeping powers, still would wield three more modest powers: deciding defendants’ motions; supervising requested notice to potential opt-ins; and policing whatever modest asymmetric information and principal-agent problems may arise in multiple-plaintiff representation, by enforcing ethics rules on avoiding conflicting interests and keeping clients informed decision-makers.
The Article concludes with two explanations for such pervasive judicial error. In a complex, once-obscure field, courts heavily relied upon early precedent that proved incorrect, yielding path-dependent “lock-in” of bad law. Less charitably, courts’ mishandling of collective actions is just another example of federal courts erecting procedural hurdles to rights-vindicating litigation.
Michele E. Gilman, The Class Differential in Privacy Law, 77 Brooklyn L. Rev. 1389 (2012). Abstract below:
This article analyzes how privacy law fails the poor. Due to advanced technologies, all Americans are facing corporate and governmental surveillance. However, privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to be stigmatizing and humiliating, and it thus not only compounds the harmful effects of living in poverty, but also dampens democratic participation by the poor. The poor interact with the government and low-wage employers in ways that are on-going and interpersonal, and as a result, the “right to be left alone” embodied in current privacy law does not protect their interests in dignity and autonomy. This article argues that poor Americans experience privacy differently than persons with greater economic resources and that the law, in its constitutional, statutory and common law dimensions, reinforces this differential. This class differential in privacy law has costs not only for the poor, but for all citizens.
Call-for-Papers: “Work and Vulnerability” Conference at Emory Apr. 5-6, 2013 with a deadline of Feb. 8, 2013.