Law Commons^™

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

All Papers

An unprecedented COVID-19-induced explosion in digital surveillance has reconfigured power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the augmentation of 1

managerial prerogatives in physical and digital workplaces. It identifies excessive supervision as the common denominator of “essential” and “remotable” activities, besides discussing the various drawbacks faced by the two categories of workers during (and after) the pandemic. It also assesses the adequacy of the current European Union legal framework in addressing the expansion of data-driven management. Social dialogue, workers’ empowerment and digital literacy are identified as effective solutions to promote …

Bargaining Sectoral Standards: Towards Canadian Fair Pay Agreement Legislation, Sara Slinn, Mark Rowlinson

All Papers

This paper considers the recently introduced New Zealand Fair Pay Agreement (FPA) sectoral bargaining framework and offers a preliminary series of ideas and proposals setting out how an FPA model for bargaining sectoral standards could work in Canada. It is intended as the beginning of a more detailed discussion on the development of an FPA regime culminating in model legislation that could be adapted to different Canadian jurisdictions. Guided by principles of accountability, integration, and inclusivity, this proposal is intended to apply to all workers in an employment relationship – including dependent contractors and gig and platform workers. The proposed …

A New Morning In Higher Education Collective Bargaining, 2013-2019, William A. Herbert

Publications and Research

This book chapter appears in Julius, D. J. (ed.), Collective Bargaining in Higher Education: Best Practices for Promoting Collaboration, Equity, and Measurable Outcomes (Routledge, New York and London). The chapter analyzes and contextualizes data concerning the growth in unionization and collective bargaining involving faculty, postdoctoral scholars, and graduate assistants from 2013 to 2019, the period between the economic fallout from the Great Recession and the consequences of the COVID-19 pandemic. It discusses the democratic values underlying collective bargaining and the historical and legal development of unionization at public and private institutions over the decades. It identifies three significant new trends …

Graduate Student Employee Unionization In The Second Gilded Age, William A. Herbert, Joseph Van Der Naald

Publications and Research

In debates on the future of work, a common theme has been how work became
less secure through the denial of employee status. Though much of the attention
has focused on other industries, precarity has also affected those working in
higher education, including graduate student employees, contributing to what is
now called the “gig academy.” While universities have reassigned teaching and
research to graduate assistants, they have also refused to recognize them as
employees. Nevertheless, unionization has grown considerably since 2012, most
significantly at private institutions. Utilizing a unique dataset, this chapter
demonstrates that between 2012 and 2019, graduate student …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

Articles & Book Chapters

COVID-19-induced digital surveillance has ballooned in an unprecedented fashion, causing a reconfiguration of power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the managerial prerogatives augmentation in physical and digital workplaces. It portrays excessive control as the common denominator for “essential” and “remotable” activities, besides discussing the various drawbacks of the two categories of workers during the pandemic. It also assesses the adequacy of the current EU legal framework in addressing the expansion of data-driven management. Social dialogue, empowerment and digital literacy are identified as effective solutions to promote organisational flexibility, well-being …

Collective Representation And Bargaining For Self-Employed Workers: Final Report, Sara Slinn

Commissioned Reports, Studies and Public Policy Documents

This report seeks to identify and discuss feasible models for collective representation and bargaining for self-employed contractors in the federal jurisdiction. The term “self-employed contractors” refers to workers who would be classified as “independent contractors” under the Canada Labour Code (CLC) Part I and, consequently, be excluded from the ambit of CLC collective representation and bargaining provisions. The study utilizes fieldwork, in the form of interviews and focus group discussions, in four sectors of interest, namely, road transportation, broadcast media, technology, and telecommunications, in order to explore and assess potential models for statutory collective representation and bargaining for self-employed workers. …

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

All Faculty Scholarship

With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building …

A New Labor For Deep Democracy: From Social Democracy To Democratic Socialism, Mark Barenberg

Faculty Scholarship

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to …

A Different Set Of Rules? Nlrb Proposed Rule Making And Student Worker Unionization Rights, William A. Herbert, Joseph Van Der Naald

Publications and Research

This article presents data, precedent, and empirical evidence relevant to the National Labor Relations Board (NLRB) proposal to issue a new rule to exclude graduate assistants and other student employees from coverage under the National Labor Relations Act (NLRA). The analysis in three parts. First, the authors show through an analysis of information from other federal agencies that the adoption of the proposed NLRB rule would exclude over 81,000 graduate assistants on private campuses from the right to unionize and engage in collective bargaining. Second, the article presents a legal history from the past half-century about unionization of student employees …

Time Is Not On Our Side: Why Specious Claims Of Collective Bargaining Rights Should Not Be Allowed To Delay Police Reform Efforts, Ayesha Bell Hardaway

Faculty Publications

Many view the passage of the Violent Crime Control and Law Enforcement Act of 1994 as the best chance for police departments to make meaningful and lasting improvements. That legislation provides the federal government with the authority to investigate and sue local law enforcement agencies for engaging in a pattern or practice of policing that violates the rights of individuals. However, police unions have attempted to intervene in structural reform litigation designed to remedy unconstitutional policing practices. Those attempts have largely been based on employment rights conferred through collective bargaining laws and similar employment protections. The unions argue that the …

Regulating Strikes In Essential Services - Canada, Eric Tucker

Articles & Book Chapters

This chapter was written as a part of a comparative law project examining the regulation of strikes in essential services. It describes and analyses Canada's experience with strikes in essential services, including the historical development of essential service strike regulation, Canada's shifting understanding of essentiality and, most recently, the implications of constitutional labour rights, including the right to strike, for essential service strike regulation. It also looks at the law in action through a consideration of the application of these laws in their specific contest.

The Motive Power In Public Sector Collective Bargaining, Martin Malin

All Faculty Scholarship

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

The History Books Tell It? Collective Bargaining In Higher Education In The 1940s, William A. Herbert

Publications and Research

This article presents a history of collective bargaining in higher education during and just after World War II, decades before the establishment of applicable statutory frameworks for labor representation. It examines the collective bargaining program adopted by the University of Illinois in 1945, along with contracts negotiated at other institutions. The article also examines the role of United Public Workers of America (UPWA) and its predecessor unions in organizing and negotiating on behalf of faculty, teachers, and instructors. The first known collective agreements applicable to faculty, teachers and instructors, were negotiated by those unions before UPWA was destroyed during the …

Migrant Workers And Fissured Workforces: Cs Wind And The Dilemmas Of Organizing Intra-Company Transfers In Canada, Eric M Tucker

Articles & Book Chapters

Canadian temporary foreign worker programs have been proliferating in recent years. While much attention has deservedly focused on programs that target so-called low-skilled workers, such as seasonal agricultural workers and live-in caregivers, other programs have been expanding, and have recently been reorganized into the International Mobility Program (IMP). Streams within the IMP are quite diverse and there are few legal limits on their growth. One of these, intra-company transfers (ICTs), is not new, but it now extends beyond professional and managerial workers to more permeable and expansive categories. As a result, unions increasingly face the prospect of organizing workplaces where …

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Articles

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to …

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen F. Ross, Roy Eisenhardt

Journal Articles

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in labor contexts can agree to resolution by an impartial arbitrator, whose decision is reviewed deferentially by judges. Where employees are subject to rules of a private association, they are often contractually obligated to submit their claims to an internal association officer or committee; the common law provides for judicial review more limited than a civil contract but more searching than is the case for an impartial labor arbitrator. Recently, the National Football League and its players …

Collective Bargaining And Dispute System Design, Rafael Gely

Faculty Publications

This article seeks to reestablish the conversation between collective bargaining and dispute system design scholars. Part II provides a brief description of the system of collective bargaining by focusing on the three key steps of union organizing, contract negotiation, and contract administration. Part III does the same for the literature on dispute system design by identifying some of the seminal literature in the field as well as other work particularly relevant to workplace dispute resolution systems. In Part IV, the article seeks to achieve one modest goal and one that is more ambitious. As to the modest goal, this article …

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Faculty Publications & Other Works

No abstract provided.

Everything Passes, Everything Changes: Unionization And Collective Bargaining In Higher Education, William A. Herbert, Jacob Apkarian

Publications and Research

This article begins with a brief history of unionization and collective bargaining in higher education. It then presents data concerning the recent growth in newly certified collective bargaining representatives at private and public-sector institutions of higher education, particularly among non-tenure track faculty. The data is analyzed in the context of legal decisions concerning employee status and unit composition under applicable federal and state laws. Lastly, the article presents data concerning strike activities on campuses between January 2013 and May 31, 2017.

Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie

Articles

The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …

The Winds Of Changes Shift: An Analyis Of Recent Growth In Bargaining Units And Representation Efforts In Higher Education, William A. Herbert

Publications and Research

This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013. The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase …

The New Labor Law, Kate Andrias

Articles

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …

A Ticket To Ride? Not So Fast: Members-Only Collective Bargaining As A Possible State Response To A Judicially Recognized Right To Work, Chris Schmidt

Louis Jackson National Student Writing Competition

No abstract provided.

Minimum Fees For The Self-Employed: A European Response To The "Uber-Ized" Economy?, Eva Grosheide, Mark Barenberg

Faculty Scholarship

In advanced market economies in Europe and North America, a large and growing percentage of the workforce is self-employed. This group earns a contractual fee from clients, rather than a wage or salary from employers, one form of the so-called "Uberization" of the labor market. Through an analysis of the Court of Justice of the European Union's (CJEU) rulings, this Article explores whether minimum fees for the self-employed could be implemented without infringing European Union (EU) competition law. In particular, it lays out four possible legal mechanisms – what the paper dubs "U-turns" – that swerve around the social harms …

Our Uneasiness With Police Unions: Power And Voice For The Powerful?, Marcia L. Mccormick

All Faculty Scholarship

The police shooting of Michael Brown, and the other recent police shootings of black men and boys, gave rise to many important discussions about race, inequality, power, and policing. But one issue not as widely discussed was the the role and propriety of police unions. This Essay describes the history and uniqueness of public sector unions, such as police unions, and why they are both useful and problematic.

This Essay describes ways police unions might be used to help solve the current problems, such as helping to connect officers with the community. The Federal and State governments have provided recommendations …

Labor Law 2.0: The Impact Of New Information Technology On The Employment Relationship And The Relevance Of The Nlra, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as "employee," "employer," and "appropriate bargaining unit" were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of …

Trilogy Redux: Using Arbitration To Rebuild The Labor Movement, Ann C. Hodges

Law Faculty Publications

This Article analyzes the possibility of creating a program to provide representation to workers bound to arbitrate their legal disputes with their employers, while at the same time building a movement to challenge the practice of compulsory arbitration and its impact on workers' rights. First, I briefly review the Supreme Court's recent arbitration jurisprudence and its impact on workers, with a particular focus on the limitations on class actions. Then I move to a discussion of the advantages and challenges to the creation of such a program. Finally, I examine some alternative visions of what such a program might look …

Do You Believe He Can Fly? Royce White And Reasonable Accommodations Under The Americans With Disabilities Act For Nba Players With Anxiety Disorder And Fear Of Flying, Michael Mccann

Law Faculty Scholarship

This Article examines the legal ramifications of Royce White, a basketball player with general anxiety disorder and obsessive compulsive disorder, playing in the NBA. White's conditions cause him to have a fear of flying, thus making it difficult to play in the NBA. This subject is without precedent in sports law and, because of the unique aspects of an NBA playing career, lacks clear analogy to other employment circumstances. This dispute also illuminates broader legal and policy issues in the relationship between employment and mental illness.

This Article argues that White would likely fail in a lawsuit against an NBA …