University of Louisville Law Faculty Blog

Current Scholarship - Central States Law Schools Association

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I had the pleasure of attending and presenting at the Central States Law Schools Association's annual conference this past weekend.  Attached are abstract and the slides of the presentation that I gave concerning the application of the Electronic Communications Privacy Act to the employment relationship.

I saw a number of interesting presentations across a broad range of subjects.  Many of the abstracts are posted here.  Several of the presentations that I heard may be of interest to those in the field of labor and employment. 

On the employment law panel with me was Susan Cancelosi, whose scholarship focuses on benefits.  She gave a very timely presentation on health care reform.  She reviewed the literature on VEBA's and on Medicare.  Based on what does and does not work well with those programs, she made recommendations as to health benefits.

Dennis Hirsch presented on green businesses and reflexive law.  His presentation may be interesting to those researching on, writing about, or trying to encourage the implementation of green jobs. 

Danshera Cords presented a realistic proposal to address the lack of timely reappointments to the tax court.    While she does not claim her proposal is transferable to other settings, the article definitely will cause labor lawyers to evaluate it in light of the situation at the National Labor Relations Board.

Jeremy Telman presented on his article about corporate social proposals, available by link here.  The story is an interesting one for those researching or writing about or participating in corporate campaigns.

 

Carpe Diem: Privacy Protection in Employment Act

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A first draft of my article Carpe Diem: Privacy Protection in Employment Act forthcoming in Akron Law Review is now available.  Here's the abstract.

Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent calls for privacy protection to address emerging technologies are to succeed, blueprints for legislation must be provided. This article, thus, contributes to the call for reform by proposing a federal statute to protect employees' privacy from technological monitoring by their employers.

The article surveys potential sources of law and legislation that, while inadequate on their own to protect employees' privacy, serve as a foundation for the proposed legislation. While each of these sources has been reviewed by scholars in the past, consideration of all as a potential source upon which to model legislation is a notable strength underlying the proposed statute. The basic framework of the proposed statute is to provide protection based on the degree of intrusiveness of the privacy invasion. The framework provides baseline protection for on-duty actions, intermediate protection for on-duty communications and use of employer communications technology, and the greatest protection for off-duty behavior. Other notable features of the proposal include the comprehensive nature of the proposal, in comparison to most prior scholarly proposals; the flexibility the statute provides to employers to engage in necessary monitoring; provisions designed to foster employee involvement in implementing and enforcing workplace technological monitoring policies; and the involvement of a government agency, the Department of Labor, in educating interested parties about employee privacy issues and in enforcing the statute. While passage of legislation protecting employees' privacy from employer technological monitoring may face an uphill battle, it is possible and should be done.

Legal Ethics in the Employment Law Context: Who is the Client?

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The first draft of my article Legal Ethics in the Employment Law Context: Who is the Client? forthcoming in 37 Northern Kentucky Law Review, Issue 1, is now available.  Here's the abstract.

The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte communications. Because Kentucky recently adopted new rules of professional conduct, this paper uses Kentucky law as a microcosm through which to think about this larger question. Kentucky's prior rules were based on the prior version of the ABA Model Rules of Professional Conduct, still at least partially in effect in approximately twenty-two states. And the current rules mirror, almost identically in pertinent parts, the current model ABA rules, known as Ethics 2000, on which approximately eighteen other states model the pertinent rules. This recent change permits scholars and attorneys from a wide variety of states to benefit from the insights about Kentucky law.

Section I discusses the law governing a corporate employer attorney's relationship to the client and summarizes the law applicable to a union attorney's relationship to the client. Section II describes the duty of confidentiality and its relationship to the attorney-client privilege. Section III considers how far down the chain of command an employer or a union can assert the attorney-client privilege. Among other topics, Section III discusses relevant rules of evidence, related authority dealing with employers, cases regarding unions asserting the privilege, and fiduciary exceptions to asserting the privilege. Section IV addresses privileges related to the attorney-client privilege that a union may, in some circumstances, be able to assert. Finally, Section V discusses the law governing ex parte communications with employees of a represented employer.

Industrial Justice: Privacy Protection for the Employed - final draft

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The final draft of my article Industrial Justice:  Privacy Protection for the Employed is now available.  Here's the abstract.

As the nineteenth century drew to a close, Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy. Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology. Moreover, employers are disciplining and terminating employees based on information uncovered by monitoring. Recently, many employees have been terminated for off-duty blogging. Employees are often disciplined for using e-mail for personal reasons while at work. And global positioning systems ("GPS") have been relied on to discipline drivers and other employees.

This is the first academic article to provide a detailed review of labor arbitration decisions governing the right to privacy from employer monitoring in over thirty years. The article uses the decisions, on employee privacy and technologies such as GPS, e-mail, and the Internet, as a springboard to propose privacy protections in the non-Union private sector workplace. It, thus, fills a gap in the academic literature. The framework suggested provides the greatest protection for off-duty behavior, intermediate protection for on-duty expression of thought, such as through computer usage, and baseline protection for on-duty actions. It could be implemented through legislation of minimum rights or mandates for employers to adopt safe-harbor policies.

Review of Barbara Kingsolver's Animal, Vegetable, Miracle

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The final draft of my book review is now available.  Here's the abstract.

Barbara Kingsolver's Animal, Vegetable, Miracle: A Year of Food Life is a must-read for lawyers and legal scholars in the areas of food law, environmental law, agricultural law, and education law. Indeed, I recommend it to anyone interested in the future of the planet or our children. The over-arching point of Kingsolver's book is that Americans should eat more locally-grown food. Kingsolver's position is that eating locally-grown food promises to be part of the solution to several of the major problems facing us at the start of the 21st century, such as global warming and childhood obesity. Many of the issues that Kingsolver addresses are legal ones, and many of the implications of her arguments also bear on legal topics. This review discusses the legal issues raised by the book and provides annotation to relevant legal articles, including articles on increasing opportunities for food production in local economies; global warming; childhood obesity; the Federal Farm Bill; the Plant Variety Protection Act of 1970; pesticide pollution and loss of wildlife habitat; lawsuits involving patented plant varieties; laws and regulations related to genetically modified foods; labeling laws governing Recombinant Bovine Somatotropin Hormone; proposals to reduce the public health risks of mad cow disease in the United States; green zoning; local ordinances governing community gardening; elimination of the regulatory quota system for tobacco; and the National Animal Identification System.

New British Supreme Court Sworn In

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Marking one of the more dramatic reforms in the British legal system, the new Supreme Court was sworn in yesterday.  Replacing the Law Lords on their ridiculously high benches, the new high court is more eye level but no less grand in gold trimmed robes and their £60 million new courtroom in the old Middlesex Guildhall.  The establishment of the new court fulfilled a long delayed Labour Party promise, although critics claim it was "dreamed up over a glass of whisky" by Tony Blair to replace the old Lord Chancellor as high court judge with Lord Falconer, Blair's old roommate. Nonetheless, it establishes more independence in the court system in a nation with fewer formal checks-and-balances than any other common law nation.

There is a good article in the Online Daily Mail with all the details and photos of the new judges and their new digs.

Photo: Online Daily Mail

Departing Hyphens

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The Shorter Oxford English Dictionary has eliminated thousands of hyphens, Reuters reports.  A new edition of the dictionary has combined some formerly hyphenated words into single words (bumblebee and chickpea) and others into two-word phrases (ice cream and test tube).  The decision was partly based on a visual consideration--the belief that hyphens in the middle of words look ungainly.  The editors had also observed that people are increasingly unsure about how to use hyphens, especially in the age of text messages and tweets.

     This does not change the rule that a compound adjective placed before a noun must be hyphenated, especially where its meaning would otherwise be unclear.  The modifier two-word, above, is an example of such a compound adjective.  It would be ambiguous without the hyphen. 

                                    --The Word Aficionado

Works In Progress of Interest to Labor and Employment Practitioners

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I had the great pleasure of attending the Fourth Annual Colloquium on Current Scholarship in Labor and Employment Law, hosted by Seton Hall University School of Law, this past weekend.  I heard a number of excellent presentations on works in progress.  These included the following presentations.  William Herbert's "Certification without an Election in the Public Sector," Brishen Rogers's, "Towards Third-Party Liability for Wage Theft,"  Harold Lewis Jr.'s "A New FRCP, Rule 68.1," Kevin Kolben's "Towards an Integrative Theory of Transnational Labor Regulation," Sara Slinn's "First Contract Arbitration:  Multi-Jurisdictional Evidence from Canada," Steve Wilborn's "Laval, Viking, and American Labor Law," Jeff Hirsch's "Communications Breakdown:  Regulating Employee Access to Information," Jarod Gonzalez's "Striking Preemptory Strikes from Civil Jury Trials," Marcia McCormick's "Agency Adjudication of Employment Discrimination," and Scott Moss's "Litigation Myths! Explaining Pervasive Gaps Between What Courts Say and What Courts Actually Do."

Several may be of particular interest to practitioners.  These included the following presentations.  Samuel Estreicher's "Improving the Administration of the National Labor Relations Act without Statutory Change,"  Keith Cunningham-Parmeter's "The Future Rights of Unauthorized Workers," Mitchell Rubinstein's "Employers in the Borderland:  Employers and Quasi-Employers,"  Suja Thomas's, "The Motion to Dismiss Under Iqbal and Twombly:  The New Summary Judgment Motion," and Joseph Seiner's "Employment Discrimination Implications of Iqbal and Twombly."

There were also reports on Chapter Six (Other Torts) and Chapter Two (Privacy) of the proposed Restatement of Employment.

I believe that Seton Hall University Law School intends to podcast at least some of the presentations.  I will post again if and when I discover that podcasts are available.

FREEdom to Read

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The American Libraries Association has designated September 26-October 3, 2009 as Banned Books Week. The annual celebration is designed to celebrate and show support for intellectual freedom, the First Amendment, and free and open access to information.

The University of Louisville’s Libraries celebrates each year with a read-in. Several UofL students and librarians will read samples from popular pieces of fiction as well as banned and challenged classics from a list of top 100 novels of the 20th Century. Some of my favorite authors are among them - Vonnegut, Tolkien, and Faulkner.

This year I read The Butter Battle Book by Dr. Seuss (1984), a clever satire about the nuclear arms race that was removed from the children’s collection of several school and public libraries because of its anti-war message. I recently checked out a copy of Thomas Paine’s writings from the Louisville Free Public Library. The collection includes Common Sense (1776) and Rights of Man (1791), both of which were challenged because of their subversive messages.

Elyn Saks

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Professor Elyn R. Saks of the Gould School of Law at the University of Southern California, who spoke at a Diversity Program at the Law School last October,
has been named a MacArthur Foundation fellow in recognition of past and future accomplishments.  The award is for $500,000.00 over 5 years.