University of Louisville Law Faculty Blog

Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them


  My article, What Hath the Twenty First Century Wrought?  Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them, forthcoming in Transactions:  Tennessee Journal of Business Law is now available on SSRN.

Here's the abstract. 

Employees are using new technologies.  They are using GPS, electronic mail, the Internet, cell phones and other handheld devices, blogs, Twitter, texting and social networking sites.  They are using new technologies while at the workplace and while away from the workplace, while working and while engaging in personal pursuits.  They may be using the technologies appropriately or to the detriment of their employers.  Employers are also using new technologies.  They are monitoring their employees, both in the workplace and away from it.  They too may be doing so appropriately, or they may be doing so in a manner invasive of their employees' privacy or dignity.

Needless to say, the use of these new technologies gives rise to employment disputes that differ in kind from those of times past.  Many scholars have written about the failure of the law to keep pace with the workplace changes brought about by new technologies.  Many have also written about the failure of the federal and state statutory laws and of the common law to systematically and sensibly resolve employment disputes arising out of the use of new technologies.  But one place that disputes arising out of new technologies are being grappled with in a systemic manner, and handled in a relatively sensible manner, is by arbitrators in the union sector.

This article surveys the types of issues being arbitrated, the criteria arbitrators use to decide the cases, and the outcomes of the cases.  It builds on and updates my prior work in the area. Section I provides an introduction to the article.  Section II provides an overview of my research.  Section III addresses the types of cases involving new technologies arising as challenges to discipline for lack of just cause.  Section IV addresses the related issue of employer monitoring of employees.  Section V focuses on cases involving new technologies that have arisen under provisions of the collective bargaining agreement other than a just cause provision.




Split decision in Ebay v. Tiffany: eBay Wins on Trademark Issues, Looses on Advertising Claims

The Second Circuit Court of Appeals today issued its ruling in the eBay v. Tiffany case. TIffany sued eBay claiming that eBay was liable for trademark infringement and false advertising because sellers sold counterfeit merchandise on eBay's site. The basic trademark argument was that eBay was contributorily liable for the infringement because it did not do enough to prevent fakes being sold on its site. The court upheld the judgment of no infringement of trademarks by eBay, but reversed on the question of whether eBay's advertising that consumers can purchase Tiffany products on the auction site was misleading. I haven't been able to read a copy of the opinion yet, but here is a nice summary.

Ivy Tech Community College Speech


On March 16, on behalf of the MHAKY Speaker's Bureau, I addressed a group at the Ivy Tech Community College of Southern Indiana's Listen and Learn Speakers Series in Sellersburg, Indiana.  Today I received the following communication:



Dear Professor Jones: I wanted to thank you for addressing our Listen and Learn Speakers Series this week on the topic, “Severe Mental Illness, Stigma, and the Value of Treatment”. As was evidenced by the number of questions asked during and following the presentation and the number of individuals who remained to speak with you one-on-one, I would say the audience found the presentation very helpful. 

I appreciate you sharing your time with our group.

 Sincerely, Mark Kinkle, MHA, RRT, CPFTAssistant ProfessorDean, School of Health Sciences            School of Public and Social Services

Bellarmine College Nursing School Talk


Today I spoke to around 20 nursing students in the Psychiatric Mental Health Nursing class at the Lansing School of Nursing and Health Sciences at Bellarmine University in Louisville.  Afterwards I received the following from the professor for the course, Dr. Vicki Burns:



Dear Jim,
I just wanted to formally thank you again for the wonderful and informative presentation to my Psychiatric/Mental Health nursing class today. I've been teaching this topic for many years and have also worked both inpatient and outpatient psychiatric facilities in the past, and I have to say I learned volumes myself. Many of my students told me after your talk that it was one of the best classes they've attended in the program. Thanks so much!
Vicki Ellison Burns, PhD, RN, FNP-BC
Assistant Professor
Lansing School of Nursing
Bellarmine University

Advocating for Unpopular Clients


Recently, a group called Keep America Safe posted a web ad asking, "Who are the al Qaeda Seven?"  The ad's apparent purpose is to besmirch lawyers who had advocated for detainees at Guantanamo Bay and are now working for the justice department.  The ad implies that, by representing Guantanamo detainees, these lawyers were somehow connected to al Qaeda and disloyal to the United States.


But that flawed position ignores some of the key values that undergird our legal system.  Our system of justice requires that both parties to a controversy have the opportunity to be represented by counsel.  As a society, we value this adversarial process highly, because we believe that allowing opponents to grapple with cases in the courtroom is the best way to uncover the truth.  This means lawyers must sometimes represent unpopular parties or causes.  For this reason, professional rules have long urged lawyers not to turn down a cause just because it is unpopular.


Meanwhile, the world is watching to see how we deal with the Guantanamo detainees.  If we sentence a detainee to prison or death, his trial should be fair, with no implication that he was framed or railroaded.  A primary way to defuse any such implication is to allow him the full benefit of a vigorous defense by counsel. 


It is worth noting that some detainees' lawyers successfully argued their causes in the United States Supreme Court.  One such lawyer, for example, prevailed in the Hamdan v. Rumsfeld case, which challenged the legality of the Bush administration's military commissions.  A majority of the Supreme Court agreed with him.  That lawyer fought for the ideals of our legal system.


It is also worth noting that some Guantanamo detainees were released without ever being tried, which suggests that they were not guilty of a crime.


We should highly value those lawyers who present a strong defense for unpopular clients, including Guantanamo detainees. By lessening the possibility that the innocent might be wrongly convicted, those lawyers allow us to be proud of the fairness of our legal system and to proclaim that fairness to the world.  We do ourselves no service if we try to frighten them into inaction. 

ADR & the Economic Crisis - Materials Posted

The Conflict Resolution and the Economic Crisis conference materials are now available online.

Save the Date - 27th Annual Warns Labor & Employment Law Institute


The 27th Annual Warns Labor & Employment Law Institute will be held on June 24 and June 25 at the Galt House in Louisville, KY.

William Gould, a Professor of Law at Stanford University and former Chair of the National Labor Relations Board, is the keynote speaker. Mr. Gould is a prolific scholar of labor and discrimination law as well as a critically acclaimed author of nine books and more than sixty law review articles.

Complimentary wireless access, as well as hard wired Internet connections, will be available in the meeting rooms.

Save the date! More details are forthcoming.


"Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them"

I had the honor of serving as the ABA Labor and Employment Law Section ADR Committee's Scholar in Residence at their mid-winter meeting.  Attached are the slides of my closing presentation, "What Hath the Twenty-First Century Wrought? Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them." All conference papers are available on the Committee's web-page

"A Scholar's Guide to Lawyering Skills that Just Might Tip the Scales in Close Arbitration Cases"

I had the honor of serving as the ABA Labor and Employment Law Section ADR Committee's Scholar in Residence at their mid-winter meeting.  Attached are the slides of my opening presentation, "A Scholar's Guide to Lawyering Skills that Just Might Tip the Scales in Close Arbitration Cases."  All conference papers are available on the Committee's web-page

ADR and the Economic Crisis


Last weekend I attended A Conference on Conflict Resolution and the Economic Crisis at The Saltman Center for Conflict Resolution at the William S. Boyd School of Law at UNLV.  It was a great opportunity for those practicing and writing about alternative dispute resolution in a variety of disciplines and legal areas to share their thoughts with each other.  I attended panels on foreclosure mediation and on bankruptcy and dispute resolution. 

I also served as the commentator on the panels on Cost-Effective Dispute Resolution.  The first panel included the following presentations: Justin Corbett, Executive Director, INDYSPUTE Resolution & Dialogue Center, & Wendy Hollingshead, Vice Chair NAFCM Board of Directors & Program Coordinator, Solve-It! Community Mediation Service spoke about "Budgets, Staffing and Cases, Oh My: The Scary (and Hopeful) State of Community Mediation."  David Larson, Professor, Hamline University School of Law, spoke about "Using Technology to Resolve Disputes More Efficiently and Effectively."  Michael Colatrella, Assistant Professor, University of the Pacific, McGeorge School of Law, spoke about "Cutting the Cost of Conflict by Creating a Dispute-Wise Organization."  The second panel included the following presentations:  Becky Jacobs, Professor, University of Tennessee College of Law, spoke about "The Power of Community Mediation and the Use of Volunteers."  Rebecca Golbert, Executive Secretary, Los Angeles Center for International Conciliation & Arbitration, spoke about "The Global Dimension of the Economic Crisis and the Benefits of ADR."  Nathan Reeve, Legal Assistant, Law Office of Christopher W. Edwards, spoke about "Dispute Resolution on a Dime."

The notes of my comments, which produced a lively discussion, are attached.  Once all of the papers or slides from the presentations are posted, I will provide a link to them.  Stay tuned.