Blawg Review #124; Labor Day Special Historical Edition
About this post: Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together the Blawg Review carnival each week is called the “host.” This week, I have the honor, as I did for the mind-blowing, rockin’ #15.
- Fun and Games (Holiday Fun, Music, and Humor)
- New Beginnings (Self-Help)
- Introducing This Week’s Theme
- September 1882: First Labor Day Parade (Blawg Review Parade Led by Blawging Celebrities)
- May 1886: Haymarket Square Riot (Criminal Law)
- 1902-1949: States Adopt Workers’ Compensation Laws (Workers’ Comp.)
- July 5, 1935: Wagner Act Becomes Law (Negotiation and ADR)
- 1936-37: GM Sit-Down Strike, Flint, Michigan (Labor Law)
- 1938: Fair Labor Standards Act (FLSA) is Enacted (Blawgers Working Overtime — Potpourri)
- June 23, 1947: Taft-Hartley Act Passes Over Truman Veto (Law Practice Management)
- Employment Discrimination Based on Race, Sex, Color, Religion Banned — Finally (Employment Discrimination Law)
- Back to the Future (Coming Soon?)
- TV Time (YouTubes)
What does Labor Day mean to you?
To me, it means back-to-school time, the last day of summer, last hurrah at the swimming pool, a cookout, and maybe even time to dig some outdoor rock and roll.
Speaking of Labor Day rockin’, before getting serious, let’s watch and listen to a balding, gray-bearded Bob Weir, formerly of the Grateful Dead, play “Turn on Your Lovelight” at an outdoor Labor Day gig (looking quite Establishment in a navy blazer!):
I’m hoping to I will get away from this Blawg Review task long enough to go to the Big Muddy Blues Festival on the St. Louis riverfront, maybe even to see the legendary John Mayall and the Bluesbreakers, a band that launched many a rock and roll career in the sixties (including that of Eric Clapton).
Also having fun:
- Techolawyer: “The TechnoLawyer Summer Mix: 21 Pop Songs About Lawyers, Technology, Work, and More.”
- Dennis Crouch at Patently-O, for whom Labor Day is time for playing the patented outdoor games of bocce and disc golf.
- Legal Antics (“Chronicling legal humor–because let’s face it–lawyers take themselves far too seriously and the law is damn funny if you look at it through the right lens.”) “Lawsuit Decision Matrix” (“Although limited to RIAA, I think you’ll agree, this damn funny decision matrix is easily applicable to just about any situation:”)
- Josh Keesan, a Boalt Hall law school 2L, reported by the WSJ Law Blog to have penned and recorded legal-themed tunes like “Mens Rea” (chorus: “Oh, mens rea, it’s a guilty mind. The girl gives me mens rea, and actus reus isn’t far behind.”).
- Pogue’s Posts at the NYT presents essential new “Online Shorthand” for those who have mastered LOL, IMHO, and POS. I remember exactly where I was and what I was doing when I figured out the meaning of POS (no, it’s not “point of sale”). I was a Parent Over the Shoulder of a child IM-ing at the computer. Here are a few of my faves:
- JUOC — jacked up on caffeine
- 12OF — twelve-o’clock flasher (refers to someone less than competent with technology, to the extent that every appliance in the house flashes “12:00″)
- MBLO — much better-looking online
- TWD — typing while driving
- Jim Calloway, of the Law Practice Tips Blog, has his own faves from the Pogue shorthand post.
But see S. COTUS, an anonymous member of the group of federal law clerks and appellate lawyers that write Appellate Law & Practice: “If you are not working on law this weekend, you are not a real lawyer and you hate America. Have a happy Labor Day.”
As always, if you party this weekend, drink responsibly. According to the DC Metro Area Personal Injury Law Blog, there’s a “Labor Day Crackdown on Drunk Drivers.” (Coming soon, anti-drunk-driving cars.)
Maybe it’s just the fact that I went to school every fall for 20 years, and then sent kids to school every fall for another 15 (with the end of that not in sight), but I always think of September, rather than January, as the beginning of the year. (Maybe it’s a bit of my semi-dormant Jewish blood too, anticipating the Jewish New Year that I don’t actually celebrate.)
So back-to-school time always seems to me to be a great time for new beginnings, kind of like new-year resolutions. One of mine (besides the usual “I will work out and eat five a day“) is to keep my email deleted or properly foldered on a daily basis (after having spent hours this week pruning an inbox choked with 4500 old emails in order to make Outlook properly functional again!).
Penelope Trunk, at Brazen Careerist, has her own enticing suggestions for change: “Lose ten pounds in two weeks by changing how you work.” Avoid work habits that make you want to eat more junkfood. Makes sense.
Back to labor Day, per se. Unless we’re hard-core unionists, we tend not to think much about its original meaning. That’s a shame. Its original purpose of commemorating the role of the ordinary worker in the American economy, as well as U.S. labor history, is a worthy one.
So the theme for this week’s Blawg Review is American labor history. Each history section heading links to background material (often wikipedia.) (The editor has reminded me that Labor Day is celebrated in other countries, including Canada (with the Brit. spelling, Labour Day, of course).
Caveat:I’m using the whole theme book. The richness of the Blawgosphere is overwhelming. Serving as Blawg Review editor for a week drives home to me blogging lawyers’ tremendous intelligence, creativity, variety, and sheer investment of time, and is a task I highly recommend — so volunteer for a turn. . . .
In keeping with the theme I’ve chosen, I’m adding to the many excellent blawger submissions and suggestions from the editor the results of my own painstaking search through my employment-oriented blogroll.
Peter McGuire, leader of the Brotherhood of Carpenters and Joiners, first formally proposes a Labor Day at a meeting of the New York City Central Labor Union on May 18, 1882, saying “Let us have a festive day during which a parade through the streets of the city would permit public tribute to American Industry.”
The following September, more than 10,000 New York workers stage a parade up Broadway to Union Square, in spite of employers’ threats to fire them for it. Twelve years later, Grover Cleveland signs a Labor Day holiday bill, while he is fighting for his political life (RAWBLOG) in the wake of the disastrous Pullman strike.
See also Forbes: The History Of Labor Day.
Note: As my fellow employment law blawger from Canada, Michael Fitzgibbons, of Thoughts from a Management Lawyer, writes, Labour Day began in Canada on April 15, 1872. Echoing my thoughts, Michael says: “[T]his holiday is, today, more associated with fairs, the end of the summer and the start of a new school year. But it is important to reflect on what Labour Day is all about.”
The Blawg Review Labor Day Parade of Celebrities
Parades serve to show strength in numbers, of those marching as well as watching, which should be the case here. They also recognize achievement and leadership by giving deserving public officials and celebrities prominent positions in the procession.
Therefore, leading off our Blawg Review Labor Day parade are some grand old women and men of blawging, whose foresight, creativity, enthusiasm, and strong leadership have done so much to build today’s vigorous and fertile Blawgosphere.
First, riding high atop the lead float, is the Honorary Grand Marshal and Queen of Blawgers, Denise Howell, credited (or blamed) for originating the term “Blawg.”
Denise is towing no less than 5 smaller floats, one for each of her Blawgs and podcasts:
(1) Bag and Baggage (“Microcontent obsessed since 2001″), where she demonstrates her affinity for cutting-edge conferences, if not parades.
(2) Lawgarithms (another punny name), where her 8/27 link collection includes several on the developing controversy over “unlocking” Apple’s iPhone, allowing its use on networks other than AT&T, intended to be the only choice (are there antitrust as well as IP issues there?)
(3) Between Lawyers, where her latest post joins the chorus of chattering lawyers on this subject with a cheerful and common-sense suggestion for how Nixon Peabody should have handled the fiasco when its embarrassing firm song hit YouTube.
(4) This Week in Law podcast, where a new hour-plus podcast, “Patent Nonsense,” (also with Steve Nipper, Matt Buchanan, and Brad Frazer) has just been posted.
(5) Sound Policy podcast, where her most recent edition is an interview with the current editor of the ABA Journal regarding its revamped website.
(A George digression: this guy I went to college with [see 2nd and 3rd photos from top from those years] briefly wrote for the ABA Journal before becoming the 60-Second Novelist. Consider hiring him for a special occasion — he won’t disappoint!)
Denise is escorted by Guests of Honor Rick Bales and Paul Secunda, whose Workplace Prof Blog “is the Number One Most Popular Law Blog Among Academics, according to Justia,” says Professor Ross Runkel, himself a Labor Day Parade Guest of Honor for his multiple blogs (Ross’ Employment Law Blog, Ross’ Arbitration Blog,) and online newsletter/information products covering various labor and employment topics ( Employment Law 101, Employment Law Memo, Arbitration Law Memo, and NLRB Law Memo).
Joining Denise in her Queen’s Court of long-established blawging women are:
- Monica Bay, of The Common Scold, freshly returned from the festivities at the International Legal Technology Association’s (ILTA) annual conference, bearing a list of attendees who “live-blogged” from the conference.
- Carolyn Elefant of the aptly-named solo-lawyer blawg My Shingle, whose post on speculation about impending law firm layoffs appears at Legal Blog Watch.
- See also Adam Smith, Esq., “Has the Gravy Train Departed?”
- Carolyn also posts her thoughts on the Larry Craig bust at Legal Blog Watch (much more on that below).
- Carolyn’s recent My Shingle posts include super tips on leaving it all behind for a true vacation, even if you’re a solo whose practice can’t survive a week without you, and a reassertion of her view that ethics committees “pick on solos.”
- Sabrina Pacifici, of beSpacific, whose prolific daily outpouring of links and guest posts (since August 2002) defies any effort I could make to select a single item to feature here, and makes her one of the most dedicated web guides I have ever seen. Instead, here’s a listing of a handful that grabbed my attention from the last few days:
Grand old men of blawging spotted marching along in the parade include:
- Dennis Kennedy, who returned from the International Legal Technology Association conference with seven key points, and found that parts of our shared home city of St. Louis were suffering yet another weather-related power outage.
- Ernie the Attorney, thoughtfully remembering in a personal way, on its second annniversary, the day Katrina blew over his home city of New Orleans:
“I was in the city when Katrina hit, and I remember it vividly. . . . My mind was stuck between two clear choices: I could allow my fears of the unknown to overtake me, or I could focus on breathing. I opted for choice #2. The more violent the noises outside became, the more easily I was able to concentrate on my breathing. And I became very calm.”
- beSpacific: “New Orleans by the Numbers: A City Struggles to Rebuild”
- Abovethelaw: “Katrina + 2 Years = A Rebuilt Legal System In New Orleans?”
- HR Daily Advisor: “HR Lessons from Katrina”
- David Giacalone at f/ka/, “NOLA after Hurricane Katrina: two years treading water.” Note: David deserves his own spot in the leadership of this parade (blawging since 2003 and winner of 2005 Blawg Review “Creative Law Blog Award”). This Katrina/New Orleans post epitomizes his unique mix of links, commentary, and haiku.
- Howard Bashman of How Appealing, another dizzyingly prolific poster, returning from his beach-and-baseball Jersey vacation just to march along with his old compadres. (Also on vacation, with a road-trip story is “Milbarge” of Begging the Question)
- Kevin O’Keefe of Real Lawyers Have Blogs, banging the drum for LexBlog, his business of providing blog-related services to lawyers, which now has enough happily blogging clients to merit a daily summary, “Talk of the LexBlogosphere.”
- J. Craig Williams of May it Please the Court, with a pair of posts on lawyerly semantic distinctions: “service” vs. “contract,” and “strenuously” vs. “heavily”, and an insightful “Seven-point Personal Information Technology Property Manifesto”
- Evan Schaeffer, of The Legal Underground and The Illinois Trial Practice Weblog, marches along shouting sage advice about cross examination and leading questions based on a witnesses’ admissions in documents.
- Tom Mighell of Inter Alia, continuing to introduce new Blawgs on a near-daily basis, including a slew of law prof ones (the Law Professor Blogs Network is going forth and multiplying magnificently):
See also Victoria Pynchon, at Settle It Now, advising first-year associates on summary judgment motions (citing the summary judgment series in George’s Employment Blawg, and adding excellent deposition tips that complement Schaeffer’s cross-examination tips).
Many other familiar old-line bloggers are marching along with these folks at the head of the parade, but my poor recall for names precludes their mention. Forgive me my sins of omission.
Of course, while we honor these old-timers, we also recognize that much can be done in a short time to build a successful Blawg, as indicated by the growth of Abovethelaw, which just announced its first birthday (a mere babe), yet pulls down what look like pricey ads and has achieved Technorati rank 3,271. Congrats!
As the blawgosphere continues to evolve, it is interesting to watch how some new blawgs are extremely niche-focused, and often feature extensive original writing, while others, such as ATL, go for a big audience by offering a broad selection of up-to-the minute news in briefer tidbits. (I try to play it both ways, complementing my main posts with more frequent news updates in the center column, and including many employment-related items of interest to a non-lawyer audience).
This infamous incident of labor-related violence in Chicago begins on May 3, 1886, during a nationwide strike in support of an eight-hour workday. At a rally outside the struck McCormick Harvester Works, police open fire on the crowd and kill four workers.
The next day, over 3,000 attend a rally in Haymarket Square. After several speeches, 180 policemen arrive. As the police captain tells the crowd to “disperse immediately and peaceably,” someone throws a bomb into police ranks, killing eight and wounding sixty-seven. The police immediately attack the crowd, killing several and badly injuring over 200.
Though the bomber is never identified, the state tries and convicts eight men for conspiracy to commit murder, alleging they made speeches and wrote articles that incited and encouraged the bomber. Five men receive the death penalty, three life in prison.
Sadly, though perhaps one of the most extreme, the Haymarket riot is just one of many examples of deadly violence in the bad old days of labor-management relations.
“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars… Hate cannot drive out hate: only love can do that” (Martin Luther King Jr.).
The criminal law bloggers would have had a field day with the Haymarket case. The criminalization of speech that incited crime, as in the Haymarket case, and even nonverbal conduct that invited it, as in Larry Craig’s potty-stall adventure, is fascinating to me — and potentially threatening to constitutional rights. Are there any parallels between the Haymarket case and the recent Padilla conviction?
This week, we find criminal law bloggers writing about:
- The Larry Craig Scandal (a situation with many criminal law and political facets)
- TalkLeft: “Larry Craig Post-Arrest Statement: Listen and Read Along” (“MSNBC has obtained Sen. Larry Craig’s post arrest interview. You can listen to the audio and read the transcript (pdf). Shorter version: He never confessed.”)
- WSJ LawBlog: “A ‘Crim Pro’ Lesson, Courtesy of Sen. Larry Craig” (law prof. answers some good, basic questions)
- TalkLeft: “Does Sen. Craig really want a trial?” (“I have tried about a dozen cases involving men arrested in bathrooms or in similar situations. My record: 1 and 11. Why? These cases are hard to win because the credibility determination always favors the officer. Judges feel compelled to rid their communities of gay men trolling for anonymous sex in public bathrooms, as a “quality of life” crime.”)
- Instapundit,quoting Classical Values: “What is it with these guys that they can’t even run a proper sex scandal? Who ever heard of sex scandals without sex? At least when the Democrats have a sex scandal, it involves real, honest to goodness sex. . . . Had Bill tapped Monica’s foot, the most he’d have been accused of was playing footsie, and there’d have been little to no outcry, much less an impeachment. And as Matthew Sheffield makes clear, the double standard is appalling; Democrats keep their jobs after drowning women in cars or keeping male brothels, while Republicans are hounded out of office for sex scandals without even the component of sex.”
- TalkLeft: “Sen. Larry Craig Lawyers Up” [too late]
- Hugh Hewitt: “The Larry Craig Debate” (“[C]ruising for sex in a public Men’s Room and getting arrested for those cruising activities are things that disgust most people. Kids presumably use that restroom. So presumably do unsuspecting travelers, who unsuspectingly heeded nature’s call in Minneapolis’ smelly indoor version of a highway rest stop. Senator Tappy-Toes’ activities are not acceptable, not for a United States Senator, a person in a committed relationship, or for someone who purports to live up to our community’s standards.”)
- Professor Bainbridge: “Whatever else one thinks of the guy, he’s too dumb to be a US Senator. Did he really think nobody would notice a US Senator pleading guilty to a criminal charge? And you only need to watch one episode of Law & Order to know that the first thing you do is call your lawyer.”
- Ann Bartow, at Feminist Law Professors, expresses some of my own thoughts: “Larry Craig appears to be a hypocrite who actively makes life miserable for homosexuals, so he deserves the negative public attention . . . . On the other hand, I don’t understand why the police are arresting people who are (fairly discretely . . . ) looking for consensual sex partners. I understand that people prefer not to be subjected to unwanted advances in a public bathroom, but does anyone believe for a second that Craig would have been arrested for hitting on a woman with the same degree (or lack) of subtlety in the Minneapolis Airport, or anywhere else? And couldn’t the problem be solved with bathroom attendants, rather than police presence? Craig is a hypocritical jerk, but I don’t understand why what he did is criminal, and the homophobia permeating a lot of the coverage is pretty appalling too . . . .”
- IMHO, the hypocrisy charge is overstated. Sen. Craig’s actions were consistent with his beliefs to the extent he believes men who enjoy sexual activity with other men should marry women, not men; raise families with wives, not husbands; stay in the closet — and sometimes get off in the watercloset. And his claim of not being “gay” is less absurd if one does not buy into the current view that one is either straight or gay, with no shades of gray. Perhaps he considers “gay” to mean exclusively homosexual, and he has had a decent heterosexual sex life as well. The seven-point Kinsey scale — ranging from exclusively homo- to exclusively heterosexual — is not politically correct, perhaps frightening to many homophobes, and may be scientifically disputed, but check it out (Kinsey did have a scholarly approach — and reputedly male lovers in addition to a wife).
- Michael Vick
- Austin Criminal Defense Lawyer: “Should Michael Vick Be Forgiven?” (“Is there any real way we can know whether his apology is sincere? . . . Well, my wife reads this blog, and I feel the need to end this on something she will consider a positive note, so . . . I just donated $100 to the Humane Society. However you feel about my post, please take the time to donate as well.)
- Jose Padilla (last week’s news, but I feel still it’s pertinent and worthwhile)
- explore.georgetown.edu: “The Significance of the Padilla Verdict” (quoting quoting Peter S. Margulies, a law professor at Roger Williams University, in NYT: “The conspiracy charge against Mr. Padilla . . . ‘is highly amorphous, and it basically allows someone to be found guilty for something that is one step away from a thought crime.’” )
- LewRockwell.com: José, Can You See? (“According to all the news reports, the evidence the government produced consisted primarily of Padilla’s fingerprints all over an application form from someone seeking admission to an al-Qaeda training camp. . . . They have application forms for that? . . . I can only imagine what an al-Qaeda application form is like”)
- Criminal Defense: “Lessons From Padilla – We No Longer Have To Fear… Defense Lawyers” (“This entire debacle was engineered to keep him away from….a criminal defense lawyer. In essence, the government feared not terrorism, but……..criminal defense lawyers. Why? Because we do things like file motions, ask judges to look at government allegations, question law enforcement.”)
- How Appealing: “Padilla case lacked key piece of evidence” (“It looked like smoking-gun evidence: a suspected al Qaeda graduation list with Jose Padilla’s alleged Muslim name written on it.”)
- See alsoScott Horton in Harper’s (not a blawger, but very well thought-through): “Jose Padilla and the Unfinished Business of Justice” (“It doesn’t seem unreasonable for a prosecutor to have brought the charges . . . . Nor does it seem unreasonable for a jury to find against Padilla on the conspiracy charge . . . . [T]hose who are saying that the trial of Padilla was a gross miscarriage of justice are going way overboard. This is not to say that I am happy with the way the Justice Department managed the case. From the outset it was handled in a way that undermines the public’s confidence in the integrity and fairness of our law enforcement system, and was, in important ways, simply stupid. “)
- Bad Prosecutors, Gonzalez Resignation, and Justice Dept.
- Bennett Law Firm’s Bad Prosecutors blawg: The “10 WORST U.S. Prosecutors” 2007 (dissenting, in part, Appellate Law & Practice)
- blackprof.com: Noting that the Bush Administration’s in the market for a new top prosecutor (AG), and questioning “Chertoff’s Management Style” in view of his being put at the top of the list by some pundits. (“It’s going to take quite a bit of hands-on management to rebuild the wounded Civil rights division of the Justice Department alone. Has Chertoff demonstrated, as head of Homeland Security, that he’s up to the enormous management task facing the new AG? Let’s hope the folks in Congress still remember Michael Chertoff and Katrina.”)
- SOX First: “Good night Gonzo” (“So how will the Gonzales resignation go down with business? He has a mixed report card from Wall Street . . . . On one hand, he is seen as very pro-business and on the other, he has made no bones about prosecuting corporate wrong doers including backdaters and tax shelter peddlers.”)
- Balkinization:“A Quiet Rebellion” (“[U]p to a quarter of the Justice Department’s 56 civil division lawyers have ‘recently opted out of handling the government’s cases against detainee appeals.’ . . . [This] ‘quiet rebellion’ is apparently based on disagreement with the government’s legal approach.“)
- GovernmentExecutive.com: “After Gonzales, Justice seeks to regain trust of employees” (“Whatever the verdict on Gonzales, this much is clear: The next attorney general has a huge mess to clean up. Uppermost will be restoring credibility to a department dogged by allegations that partisan politics have subverted policies and hiring actions. Key senior leadership positions also remain unfilled, and career lawyers have been fuming over the turmoil. ‘When you bring the Justice Department into low repute,’ says Philip Heymann, a Harvard law professor who served as head of Justice’s Criminal Division in the Carter administration, ‘you sacrifice morale.’)
- Overzealous Prosecutors and Defense Attorneys
- Death Penalty
- A “humor blog” that “relied upon a very specific type of off-color humor,” joking “about killing people, degrading women, and more.” It got a college student suspended; he’s suing for reinstatement, claiming it was parody, not a sign he was a threat to fellow students like the Va. Tech. shooter. (The Legal Scoop.)
- Stupid Criminals and Their Quest for Lawful Employment
- QuizLaw: The shame of it is, now he can’t even use the bank as a reference (“Why does someone take their resume with them when they rob a bank, you ask? And that’s a perfectly valid question because in Florida, there are no stupid questions. Only stupid criminals.”).
- QuizLaw: “So I guess a recommendation is out of the question?” (rape/robbery victim tells assailant she might be able to help him get a job as a security or body guard. They arrange a job interview. He shows up for the interview and is busted).
The industrial workplace in turn-of-century America is a dangerous place indeed. It takes many horrible accidents, including the shocking 1911 Triangle Shirtwaist Co. fire in New York’s Garment District (headline pictured) to bring about legislative efforts to deal with the problem, including enactment of workers’ compensation laws.
Before workers’ compensation laws, injured workers sue under tort law, with the burden of proving employer negligence, and then surmounting one or more of a trio of oft-successful defenses: assumption of the risk, negligence of a fellow employee (fellow-servant defense), and contributory negligence.
Workers’ compensation laws are enacted to reduce the need for litigation, as well as the need for injured workers to prove that the injuries were the employer’s “fault.” The first state law is passed in Maryland in 1902, and the first law covering federal employees in 1906. By 1949, all states have enacted workers’ compensation.
This week, workers’ compensation lawyers are blogging about:
- Workers Comp Insider: To hell and beyond: Dave Holland’s terrible story (“Be warned, unless you are a physician or someone similarly inured to severe injuries, [t]his story of being scalped by an industrial drill is a difficult read.”) and News roundup: Health Wonk Review, OH, NY, fraud, BP and safety (including links on a judge indicted for insurance fraud, workers comp claimants in Texas sentenced for cheating the system, and online free compliance assistance resources from OSHA. )
- The New York Disability Law Blog: NY Workers’ Compensation Lawyer Quoted in AM NewYork (on questions: “Does or job affect your sleep patterns? Can you collect New York Workers’ Compensation benefits if it does?”) Hmmm. . . .
- The Georgia Workers Compensation Blog: What Can I Do if the Company Doctor Returns Me to Work But I am Still in Severe Pain?
- The Pennsylvania Worker’s Compensation Blog: Commonwealth Court Agrees that a Surviving Dependent Parent May Collect Workers’ Compensation Benefits for a Deceased Child
- The Workers Comp & Injury Law Blog: Does Confocal Microscopy Help Detect Acanthamoeba Keratitis? (whats that?)
- The Florida Workers’ Compensation Law Blog: Police Lieutenant Immune from Liability for Falsely Accusing Subordinate of WC Fraud (“public officials who make statements within the scope of their duties are absolutely immune from suit for defamation.”)
- The Oakland Workers Comp Blog: Are These the Good Ole Days? (for insurers and large self insureds, because they have seen a rapid decrease in workers’ comp payouts since 2004 and a large increase in profits) and Ralphs Markets, Bel-Air Markets and the Supremes (Calif. Sup. Ct. case on whether it is legal for an employer to deduct workers’ comp costs from store profit for purposes of computing entitlement to profit-based bonuses?)
Signed into law on July 5, 1935, the Wagner Act establishes the National Labor Relations Board, empowered to investigate and decide unfair labor practice charges and conduct union representation elections.
The Wagner Act legalizes the right to strike, prohibits discrimination against employees for engaging in union activities, and requires employers to negotiate with a properly-recognized or certified union.
It declares it “to be the policy of the United States to . . . encourag[e] the practice and procedure of collective bargaining and . . . protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”
In the decades following passage of the Wagner Act, labor strife is increasingly dealt with more peaceably through collective bargaining, mediation, and arbitration.
The modern practice of ADR (arbitration and mediation) in all areas of law owes much to the efforts of pioneering arbitrators and mediators in the collective bargaining arena.
Blogging this week about negotiation and ADR are:
- Geoff Sharp, of mediator blah…blah…, who reports some harsh criticism of court-ordered mediation: Mediation does NOT work … at least according to these folk at the sharp end.
- Victoria Pynchon, of Settle it Now, who writes two posts for new lawyers about negotiating terms of their first jobs — even with the AmLaw 100 (where she says the deal is “so apparently set in stone that negotiating terms has not even crossed young lawyers’ minds”).
- Negotiating Tip of the Week, which pauses to introduce a new offering: “learning services to complement our Negotiating Tip of the Week podcast with Josh Weiss, Associate Director of Harvard’s Global Negotiation Project.”
- The National Arbitration Forum Blog, which comments on how an arbitrator’s “dry sense of humor” can lubricate contentious proceedings, and ADR systems can help “colleges and universities . . . avoid money-draining lawsuits.”
- The New Jersey Employment Law Blog, which reports on an arbitrated age discrimination case in which the arbitrator denied a winning arbitration plaintiff the statutory attorneys’ fee remedy, and the plaintiff then “achieved the nearly impossible and got a court to order that the defendant pay his fees.”
- Diane Levin, of Online Guide to Mediation, who demonstrates her knack with headlines (and photos):
When this 44-day sit-down strike begins, GM workers in 35 cities in 14 states are already engaged in conventional strikes. The Flint sit-down begins with a refusal to load dies GM is shipping to less-militant plants. The company responds by turning off the heat. On January 11, 1937, police try to stop food delivery, causing a riot injuring 27. “The battle ended with the strikers in complete control of the gates,” says the Detroit News.
A second riot occurs at a Chevrolet plant in Flint, which the union tries to encourage to join the sit-down strike. Five hundred union men enter the plant and begin breaking windows. The National Guard surrounds the 80-acre grounds housing all 12 Chevrolet plants at Flint, with machine guns at strategic approaches. Food delivery is halted, but the Guard never moves to retake the plant. The strikers vow a hunger strike and appeal to the governor.
President Roosevelt asks GM to meet with the union again. Finally, GM signs a landmark agreement with the UAW, giving it bargaining rights in 17 GM plants, and providing 5 percent pay hikes, among other provisions.
Oh sit down
Sit down next to me
Sit down, down, down, down, down
Not sitting down on the job this week, but working hard, are many labor law bloggers:
- The AFL-CIO Weblog’s Labor Day message, “CEO Compensation: A Year’s Pay for a Day’s Work” pulls no punches: “Although Labor Day celebrates America’s workers, it seems that CEOs are getting all the gifts. CEOs of large U.S. companies last year made as much money in one day on the job as average workers made over the entire year, according to a new report. These top executives averaged $10.8 million in total compensation, over 364 times the pay of the average American worker.”
- From a non-employment-law blog, techdirt, comes criticism of the AFL-CIO position on, of all things, patent-law reform: “Unions Make Ridiculous Arguments Against Patent Reform” (“[T]he two specific things that the unions are complaining about are the two most reasonable things . . . . The first would change how damages are calculated, so that if the infringing component is only a small piece of a larger product, the damages shouldn’t be based on the value of the larger product, but the value of that small piece. That seems completely fair. . . . The second complaint is with making it easier to contest a patent after it’s been issued. This is also a no-brainer.”)
- Gruntled Employees writes about the good and bad (mostly good) of what he saw when he glanced at a job application form at his local Starbucks. “So you want to be a barista …” (“Starbucks is all about two things: coffee and customer service. To attract the best employees, Starbucks looks to hire people who get coffee and get customer service.” Assessment of these qualities begins right on the app., with two simple questions of a type normally deferred until an interview.)
- Turning to “traditional labor law” (i.e., unions and such),The NLRB Law Memo discusses a case on the long-established obligation of an employer, in a union election campaign, to provide employee names and addresses to the union (Excelsiorlist) The NLRB declined to require provision of email addresses, so unions will still be licking stamps for a while. See also Adjunct Law Prof Blog: “NLRB Refuses To Extend Excelsior List Requirements To E-Mail”
- Jottings By An Employer’s Lawyer, in “Blogging for Good, and Now Evil,” discusses the belief of unions and their activist blogger supporters in the power of blogging for their cause. They say: “Disseminating information, winning the war of ideas, digesting mountains of data, facilitating communications between all pro-worker stakeholders, educating union rank and file and workers on how to use the Internet to organize under the radar of union busters. We can do all this.” (Hmm, here in St. Louis it recently worked the opposite way. I say the power is in the message, not the medium.)
- The NLRB should be happy to hear that leaders of organized labor “have found ‘new ways to strengthen the freedom of workers to form unions without depending on [a now hostile] NLRB.’” (Concurring Opinions:) Happy Labor Day. Why do I say that? Because employers and their lawyers often think the NLRB is hostile to them. To my mind, that means the agency is actually managing to stay fairly neutral, on the whole.
- The Union Lawyer sets the record straight on a union’s duty of fair representation, in the context of sportswriter’s criticism of the NFL Players Association failure to stand behind Michael Vick, and that writer’s legally inaccurate assertion that Vick “deserves to go to prison, but the union’s job is to defend every player’s right to work.” (I mean the second clause, not the first, is legally inaccurate.)
A big labor law theme lately has been critiquing the NLRB election process, blaming it for the sorry state of the unions, and pushing legislation to “reform” this law, including eliminating the right to a secret ballot election. Never mind that unions win over half the elections, and the law has been essentially unchanged since the unions’ glory days.
Some people think it’s obviously a stupid, undemocratic idea to allow unions to gain exclusive bargaining representative status based on “card checks,” in which employees have to disclose their position in front of union organizers and their peers:
- The Workplace Prof Blog discusses a scholarly article on employer “captive audience meetings” in union election campaigns, in which the author says these meetings “are a rare example in which people in a democratic society are forced to listen to opinions of others with which they may strongly disagree” (but who happen to write their paycheck and therefore have a vital message to convey that it would make sense to listen to).
- The Workplace Prof Blog also discusses an article with a very objective title: “Fetishizing the Electoral Process: the NLRB’s Problematic Embrace of Electoral Formalism.”
- Kilpatrick Stockton LLP’s Employee Free Choice Act (EFCA) Updates, focuses on a single piece of proposed legislation against which the business community has lobbied hard (with KS assistance?) — and, for the moment, successfully.
I just discovered the KP EFCA blog, and take the liberty of citing an old June post for a real “gotcha” quote: “When labor’s allies immediately threaten all-out political war against United States Senators who disagree with them, is it hard to understand why some might be worried about union intimidation of an average worker who might not want to sign an authorization card? Second, when labor refers to 48% as a ‘small group,’ isn’t it reasonable to question the reliability of other statistics it might cite?”
Also strongly against the EFCA bill is the Center for Union Facts, whose blog Labor Pains displays the stunning propaganda piece at left (whether you agree or not, you gotta give ‘em credit for the design!)
As noted above in connection with the first Labor Day parade, the eight-hour work day had long been a goal of the labor movement. The outrage of child labor had also been a long-festering issue. Now, in the depth of the Depression, wages are stagnating and unemployment soaring, while many of those fortunate enough to be employed are overworked.
President Roosevelt fights a year-long legislative battle over the FLSA, which establishes a national minimum wage, guarantees time and a half for overtime in certain jobs (thus encouraging rather than mandating the 40-hour workweek), and prohibits “oppressive child labor.”
Concerned about the the bill’s length and complexity, Roosevelt asks Secretary of Labor Frances Perkins to boil it down to two pages. Although not making this goal, she cuts it from 40 to 10 pages. (Footnote: Perkins was the first woman ever appointed to the cabinet. She had earlier witnessed the Triangle Shirtwaist Fire, mentioned above, characterizing it as a pivotal event in her life. She kept her maiden name, defending in court her right to do so.)
Over a year after introduction, the bill finally passes, only after what a Labor Department historian describes as Roosevelt and Perkins going “four rounds” with Congress. Roosevelt’s persistent leadership in the face of congressional partisanship is an inspiring example of the kind of leadership we haven’t seen in a while. (As is the effort at conciseness in federal legislative drafting.)
Note: There were many compromises along the way. One deficiency, IMHO, is the failure to inflation-index the minimum wage. The above graph illustrates how its purchasing power has fluctuated wildly. Periodically, legislative time and political capital is wasted as the same old pro- and anti-minimum wage arguments are trotted out. Let’s either get rid of it or fix it, once and for all, and get on to bigger things — like global warming.
Blogging overtime (but exempt) are these bloggers, who have come in this week with interesting posts on a wide variety of topics:
- Simple Justice, though a criminal law blog, serves up an excellent and thoughtful post on serving as out-of-town counsel and working with local counsel (Practical Blawgosphere: The World Is Flatter.
- The Party of the First Part; Adventures in Legalese attempts to answer these questions: “Why do lawyers refer to long documents as briefs and 18-year olds as infants? Why do they use so much Latin when so few of their clients are Ancient Romans? Is it a conspiracy?” This blawg is offering The Golden Gobbledygook Award for “bad legalese. Exquisitely bad.” With prizes, of course.
- Offering another take on legal writing, Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout cautions: “Taste that contract before you steal it . . .” (“because if you don’t, having it rammed down your throat is going to be a mighty unpleasant experience. “)
- David J. Dawsey at Golf-Patents.com (talk about a niche specialty!) steps onto the green with: Don’t Putt Like This or You May Get Sued for Patent Infringement… Do You Need a Freedom-to-Practice Opinion before Changing Your Swing? (“A patent on a method of holding a golf club… amazing! Mind blowing, isn’t it? No, not really… there are several patents on methods of holding and swinging golf clubs (usually putters).”) Yes, it IS mind-blowing!
- David Bernstein, at The Volokh Conspiracy,writes briefly on a “long and honored tradition of New York City employees with non-office jobs working only part of the day.” Guess they don’t work much overtime, then.
- The New York Personal Injury Law Blog tell us of this nightmare: “New York Bar Examiners Still Can’t Find Complete Essay Answers.” It’s bad enough waiting for the results; imagine learning you have to take it over, not because you failed, but because your exam got lost!
- The law students at The Legal Scoop bring “[n]ews out of Australia regarding a seller on EBAY not wanting to live up to his end of the bargain.” The court enforced the contract of sale, for $128,640 on a WWII airplane, although the seller claimed he had agreed (apparently off-e-bay) to sell the plane to someone else for about $86,000 more. Proves two things: (1) you can buy anything on e-bay; and (2) despite all the potential complexities of contract law we all learn as 1-Ls, sometimes contract cases support the simple common-sense proposition that “a deal’s a deal.” See also Techdirt: Australian Court Says A Deal’s A Deal On eBay.
- The Legal Scoop also has a post disagreeing with this trite adage: “in the first year of law school, they scare you to death, in the second year, they work you to death, and in your third year, they bore you to death.” (“The blogosphere is full of articles discussing the problems with third year curriculum. Such has not been the case in my experience.”)
- Compare The Unreasonable Man (“The phrase really should be: In first year, they scare you, work you, and bore you to death. In second year, they work you and bore you to death. And in third year, they work you and bore you to death, and it is completely pointless because you don’t really learn anything anyway.”) with some things are better left unsaid (“Well, the first year and a half I wasn’t scared, exactly, but I was sick a lot, and a little depressed . . . . But I’m not complaining. After that first year and a half, things started to look up. I discovered areas of the law I actually liked . . . and ended up meeting the wonderful man I hope to spend the rest of my life with.”) and Seymour Wasserstrum (“Actually I would say that the first year succeeded in both scaring me and working me to death, although many times I was too scared to work. I can’t say that I loved law school, and I doubt that any truthful attorney . . . would say that his/her law school experience was absolutely wonderful, ecstatic, and fulfilling.”)
- Finally, a post from a non-legal blog, SharpBrains (we all think we have those, right?) “The Ten Habits of Highly Effective Brains.”
This Act amending the Wagner Act expressly adds a series of union unfair labor practices. It also provides for federal court jurisdiction to enforce collective bargaining agreements, leadingto the creation of a federal common law of collective bargaining agreements, which favors arbitration over litigation or strikes as the preferred means of resolving labor disputes.
The Taft-Hartley Act also expressly excludes supervisors from coverage, squarely placing them on the management side and solidifying the adversarial boss vs. worker model of labor relations.
To one degree or another, most lawyers are on the supervisory side of the fence. Management is part of what we do. On the flip side, many of us these days are also our own clerk-typists, performing document preparation work previously done by legal secretaries.
The Blawgosphere is buzzing this week with helpful information relevant to aspects of law practice management, ranging from the top-down management work of a corporate General Counsel supervising outside law firms to the nuts-and-bolts document prep. of a solo:
- It was earlier reported by the WSJ that some attorneys may begin charging clients $1,000 per hour for legal services. Mike Dillon,
Senior Vice President, General Counsel and Corporate Secretary for Sun Microsystems, Inc., apparently was quoted as stating there may be times when such a fee is warranted. He defends and qualifies his statement at The Legal Thing; notes from a General Counsel (“If you are embroiled in a complex, “bet the company” type of litigation, most GCs will happily pay this hourly rate – provided the value received is commensurate with the fee. This means the services of an attorney with very specific and unique skills, plenty of experience, and the ability to quickly drive a high exposure problem to a favorable resolution. The reality is that most companies will rarely, if ever, require these types of legal services.”).
- On another development in law firm economics, Concurring Opinions; the Law, the Universe, and Everything, comments on reports that Ford & Harrison has decided to suspend its minimum billable hour requirement for first year associates, to give them more time to train without worrying about whether they meet the billable minimums.
- The ever-stylish Connected Lawyer teaches us: How to Format a Word Document, Part 2: Creating a Style. Here’s the other part: How to Format a Word Document, Part 1: Unchecking Default Settings (“Don’t let Microsoft hold your documents hostage. Seize control and format the documents the way that you want.”)
- Ihearttech also offers clear, step-by-step instructions on expanding your use of Word in the law office, this time to include the digital printing of imaged signatures.
- Calloway also has what “may be one of [his] most valuable Website of the Week posts, about the Association of Legal Administrators’ Legal Management Archives
The bill that beomes the Civil Rights Act of 1964, including prohibitions on employment discrimination, and the creation the Equal Employment Opportunity Commission (EEOC) is proposed by President John F. Kennedy in his civil rights speech of June 11, 1963. It is reported out of the Judiciary Committee in November 1963, but referred to the Rules Committee, whose chairman indicates his intention to keep the bill tied up indefinitely.
Then Kennedy is assassinated. The new president, Lyndon Johnson, utilizes his experience in parliamentary politics, his bully pulpit, and his famous Texan arm-twisting to guide the bill through diificult procedural steps to ultimate passage. He signs it into law on on July 2, 1964, and supposedly says to an aide, “We have lost the South for a generation.”
We have some posts on employment discrimination and related topics.
- Docuticker: “Hidden in Plain Sight: Achieving More Just Results in Hostile Work Environment Sexual Harassment Cases by Re-examining Supreme Court Precedent” (faculty paper: “lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers jury instructions and guidelines to judges that reflect what the Supreme Court intended.”)
- Labor Law Center Blog: “Ohio Auto Dealership Pays $2.3 Million for Sex Discrimination” (“Thirty-nine qualified female auto sales people were denied jobs at 11 dealerships . . . . The suit alleged that the dealerships refused to hire any women for auto sales positions, acting as an integrated unit.”)
- Workplace Prof Blog: “Unconscious Discrimination Symposium at Connecticut Law Review” (“The Connecticut Law Review is hosting a symposium on November 2, 2007 celebrating, revisiting, critiquing and moving forward the ideas presented in Charles Lawrence’s influential article The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism.”)
- EDD Blog Online: “Erased E-Mails Return as Sanction in Harassment Case” (“Evidence tampering will hamper defense in sexual harassment trial against Connecticut community college instructor”)
- Immigration enforcement is raising tricky issues for employers, who must avoid unlawful national origin discrimination by casting undue suspicion on a foreign-born applicant or employee’s legal employment eligibility, but also risk acting unlawfully in employing illegal immigrants. The next three items deal with a recent regulatory development in this area: “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.”
- Ross’ Employment Law Blog: “No-Match Letters – new regulation” (“There is no requirement to fire non-matching workers. I see it all as merely a clarification. It spells out what steps an employer should take when the government notifies the employer that the SSN does not match. And if the employer takes those steps, it’s pretty hard for the government to later argue that the employer had knowledge (constructive or actual) that an illegal was on the payroll.”)
- Strategic HR Lawyer: “Final Approved Regulations for Social Security No-Match Letters” (“All of this puts employers in the hot seat to verify identity and places potential liability on them for retaining employees who cannot prove that they can lawfully work in the US”; includes key government links)
- TalkLeft: “Federal Judge Blocks Implementation of Bush’s ‘No Match’ Letters” (“A federal judge in California issued a nationwide restraining order yesterday against Bush’s plan to send “no match” letters to employers that would require them to fire workers whose social security numbers on their W-2 form didn’t match the number in the Social Security database, or face big fines and penalties, within 90 days of receiving the letter.”) This oversimplifies the regs, and I think the judge perhaps misunderstood them, so I doubt this is the last word.
- Law.com: “Is the Future of Legal Scholarship in the Blogosphere?” (“If you are looking for the future of legal scholarship, chances are that you may find it not in a treatise or the traditional law review but in a different form, profoundly influenced by the blogosphere.”) Do I hear a deafening “duh”?
- Jottings by an Employer’s Lawyer: Is the Blue Eagle Set to Fly? “Minority Bargaining for Unions” (“[M]inority bargaining, would work this way. If there were a bargaining unit of 100 and twenty-five joined a union and then requested that the employer bargain with them, the employer would have to. Any resulting agreement would cover only those 25 employees. Obviously that would be a major change from the status quo where it is all or nothing. Currently using the 100 employee bargaining unit, if 51 want to be represented by the union, the employer must bargain and any agreement covers all 100 employees. On the other hand, if 49 employees want to be represented by a union, the employer has no obligation to bargain with the union.”) “Blue Eagle” refers to a New Deal symbol.
- That’s What She Said: “Remember when I said that being a jerk wasn’t illegal? Well, that may change. [L]egislatures in New Jersey, New York, Vermont and Washington are considering bills which would give employees the right to seek damages if their employer creates an ‘abusive work environment.’ I’m not really sure what ‘abusive work environment’ will mean, but it looks like these bills may create a cause of action for bad manners.”
On bullying, see also this wisdom from “The divine Ms. Althouse”: “So what do you want then . . . ? A law so people can sue when they think anyone says anything mean at work or undercuts what they’re trying to do around here? Would threatening to sue under that law about what that woman is trying to do to me give that woman a basis to sue me for bullying her? I’m picturing an infinite regression of counterclaims.” Amen!
Labor may soon have a big ally in the Wite House, per this YouTube video: “Barack Obama Joins the Picket Line”
OMG (OhmyGod) . . . I stayed at the Congress Hotel, site of this picket line, back in November 2005. Always interested in an active labor-managment conflict, I spoke to some of the pickets and told them that if the owner hadn’t changed position in over a year, he wasn’t going to, so they ought to take his best offer and get back to work.
But they wouldn’t listen to me, nooo . . . . They had to keep picketing for another 19 months . . . . And the owner still hasn’t changed position. He’s got quite a deal going: great location, cheapest hotel in the neighborhood by $50 a night, and cheap marketing to price-sensitive out-of-towners (like me) through Orbitz. Why should he pay more? Because Obama says it would be “fair”? Frankly, though I’m quite likely to vote Democrat this time (I’m a GDI), his charm is wearing a bit thin on me.
Now, in closing, nothing reflects today’s workplace — indeed, today’s culture, including changing sexual mores — better than the NBC comedy, The Office. Check it out:
Office Summer Vacation
- Thanks to all the Blawgers out there. What I said following my experience editing Blawg Review #15 still holds true, though multiplied at least ten-fold, in terms of the number of blawgs: “[T]he mind-blowing experience of preparing it really opened up my eyes to the quality of blawgs out there; the dedication of so many blawgers to our craft, putting in tons of nonbillable hours; and the fact that so many of the blawgers are top-notch, highly experienced, and extremely thoughtful lawyers and legal scholars. Blawg Review is the best way to get a quick concentrated weekly dose of this wonderful medicine.”
- Special thanks to the Blawg Review editor for his frequent email contact, providing excellent suggestions and moral support.
- Colin Samuels also provided a helpful list of suggested posts.
- Many Blawgers provided submissions trhough the Blog Carnival system.
- Windsurfer photo by Steve Crane via flickr
- Web 2.0 tools that helped me through a long weekend of struggling with formatting, hyperlinking, etc.:
- Trailfire.com for gathering and organizing links during research (in this case blog posts for inclusion in Blawg Review. “A trail is a collection of web pages, assembled and annotated by any Trailfire member . . . . The basic concepts are simple. “Marks” with the author’s comments are placed on any web page. Trails are created when multiple marks are given the same name. This links the pages together, creating a sequential path for navigating the trail.”
- Pandora.com for an enjoyable listening experience during the long hours of putting this all together. “With Pandora you can explore [a] vast trove of music to your heart’s content. Just drop the name of one of your favorite songs or artists into Pandora and let the [Music] Genome Project go. It will quickly scan its entire world of analyzed music, almost a century of popular recordings – new and old, well known and completely obscure – to find songs with interesting musical similarities to your choice. Then sit back and enjoy as it creates a listening experience full of current and soon-to-be favorite songs for you.”