Labor and Employment Relations Association
Labor and Employment Law News - March 1998
Labor and the Law:
News and Current Events from the IRRA Section on Labor and Employment Law (LEL)
Currently, one of the most controversial issues in labor and employment law is the increasing use of pre-dispute arbitration agreements to decide alleged violations of statutory rights. For unorganized workers, the key question is whether there has been a valid waiver of the worker’s statutory rights. For organized workers, the question is whether the Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) implicitly overruled Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). On the one hand, in Gilmer the Supreme Court stated that the decision did not address the questions raised in Gardner-Denver. On the other, more than twenty years have passed since Gardner-Denver was handed down, and Gilmer expressed such strong support for arbitration it seemed reasonable to believe that, were Gardner-Denver to have been decided along with Gilmer, the Court would have required arbitration and found that a collective bargaining agreement that includes an agreement for mandatory arbitration waives an individual employee’s right to have statutory claims, for example under Title VII or other anti-discrimination laws, decide in court and by a jury.
This question should soon be a closed one. The Supreme Court on March 2 agreed to hear Wright v. Universal Maritime Service Corp., No. 97-889. The case presents the question whether employees who are covered by a collective bargaining agreement can still sue their employers for violating their statutory rights, when the contract calls for mandatory arbitration of such disputes. Ceasar Wright was a South Carolina longshoreman who filed a case under the Americans with Disabilities Act. The Fourth Circuit agreed that Wright's ADA suit could be dismissed because his union contract contained a mandatory arbitration clause. In Gardner-Denver, the Supreme Court decided that the individual had not waived his statutory rights when the union agreed to mandatory arbitration and that the union could not waive these personal rights. Normally, one person cannot waive another’s right, and waivers must be clear, knowing, and voluntary.
There currently is a split among the Circuit Courts of Appeals on the issue.
If the Court decides to overrule Gardner-Denver, this will bring to the fore whether an employer can unilaterally implement mandatory arbitration upon impasse and thus force an employee to waive statutory rights. Over the past decade, this issue has arisen widely in collective bargaining. An extension of Gilmer into unionized workplaces will likely make this trend more pressing.
Research in Progress
Prof. Thomas C. Kohler, Boston College Law School
[1] I just completed a piece entitled, "The Transformation of Labor Law: Prolegomena to a Comparative Study." This will be published in the 1998 Propter Honoris Respectum issue of the Notre Dame Law Review, and is the sketch of a larger project in which I am engaged.
[2] With Matt Finkin, I recently completed a piece entitled "Flexibility and Bonding: Employment Ordering in a Relationless Age." This is the American Report for the XVth International Congress of Comparative Law, and will be published in a forthcoming issue of the American Journal of Comparative Law.
[3] I will be starting work on a project comparing the actual scope and effects of American and German discharge protection law. I am undertaking this work with a German colleague. Prof. Dr. Michael Kittner (Kassel). It is being supported by the Hans-Beckler-Stiftung of Dusseldorf.
[4] I have been named one of 5 members of the International Advisory Committee of the National College of Industrial Relations, Dublin Ireland.
[5] I have recently been named a member of the New York based Council on Families.
[6] I am also working on two forthcoming pieces, one which will be part of a conference on our notions of personhood, and their impact on our thinking on civil society. The other is a piece examining the work of Amatai Etzioni and his communitarian approach to moral dialogue.
[7] I am now the law book review editor for the Comparative Labor Law & Policy Journal.
Prof. Thomas C. Kohler
Boston College Law School
885 Centre Street
Newton Centre, MA 02159-1163
Tel. (voice): (617) 552-4321
Tel. (fax): (617) 552-4098
Recent Labor Law Publications
Larry Backer, The Many Faces of Hegemony: Patriarchy and Welfare as a Woman's Issue. (Reviewing Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare in the United States), 92 Nw. U. L. Rev. 327 (1997)
Steven C. Bednar, Employment Law Dilemmas: What to Do When the Law Forbids Compliance, 12 B.Y.U. J. Publ. L. 175 (1997)
Peter Blank & Mollie Marti, Attitudes, Behavior and the Employment Provision of the Americans with Disabilities Act, 42 Vill. L. Rev. 345 (1997)
John Boyle, Comment: The Error of Eckles: Why Seniority Rights Present an Undue Hardship for Employees With Disabilities, 35 Duq. L. Rev. 1023 (1997)
Robert Burgdorf, "Substantially Limited" Protection from Disability Discrimination: the Special Treatment Model and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 409 (1997)
Michael Curran, On Common Ground: Using Cultural Bias Factors to Deconstruct Asia-pacific Labor Law, 30 Geo. Wash. J. Int'l L. & Econ. 349 (1996-1997)
Dana Devon, Drug Testing of Health Care Workers: Toward a Coherent Hospital Policy, 23 Am. J.L. & Med. 399 (1997)
Mark Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals under the Americans with Disabilities Act? 42 Vill. L. Rev. 613 (1997)
Brian Dusek, Note: Ghost in the Machinists, 10 DePaul 103 (1997)
Barbara Gazeley, Venus, Mars, and the Law: On Mediation of Sexual Harassment Cases, 33 Willamette L. Rev. 605 (1997)
Lino Graglia, Lessons from the Ludicrous: How Employment Laws Are Destroying the American Workplace. (Reviewing Walter Olson, The Excuse Factory: How Employment Law is Paralyzing the American Workplace.), 2 Tex. Rev. L. & Pol. 129 (1997)
Christine Greenwood, Recent development. (O'Connor v. Consolidated Coin Caterers Corporation), 23 J. Contemp. L. 198 (1997)
David Harris, Note: Employment Law Eliminating the Replacement Outside the Protected Class Element in ADEA Hiring and Replacement Cases, 50 Okla. L. Rev. 283 (1997)
Tammy Harris, Case note: Employer and Employee. (Brodie v. General Chem.), 33 Land & Water L. Rev. 351 (1998)
Stanley Herr, Questioning the Questionnaires: Bar Admissions and Candidates with Disabilities. 42 Vill. L. Rev. 635 (1997)
Geoffrey Hoffman, Recent Development: The Supreme Court Declares That Under LHWCA Section 33(g) Survivors of Deceased Workers are Not "Persons Entitled to Compensation" Prior to Worker’s Deaths, 72 Tul. L. Rev. 1033 (1997)
Shahnaz Khan, Situating Muslim Women's Narratives, 21 Legal Stud. F. 407 (1997)
Daniel Kleinberger, "Magnificent Circularity" and the Churkendoose: LLC Members and Federal Employment Law, 22 Okla. City U. L. Rev. 477 (1997)
Catherine Lanctot, Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of "Disability" Undermines the ADA, 42 Vill. L. Rev. 327 (1997)
Peggy Mastroianni & Carol Miaskoff, Coverage of Psychiatric Disorders under the Americans with Disabilities Act, 42 Vill. L. Rev. 723 (1997)
Arlene Mayerson, Restoring Regard for the "Regarded As" Prong: Giving Effect to Congressional Intent, 42 Vill. L. Rev. 587 (1997)
Francis Moots, Insurance Coverage of Employment Discrimination Claims, 52 U. Miami L. Rev. 1 (1997)
Stanley Shapiro & Randy Rabinowitz, Punishment Versus Cooperation in Regulatory Enforcement: A Case Study of OSHA, 49 Admin L. Rev. 713 (1997)
Robert Shuck, Comment: Employment Law: After-acquired Evidence Doctrine -- An Affirmative Defense for Kansas Employers to Bar Relief for Wrongful Discharge. (Gassmann v. Evangelical Lutheran Good Samaritan Soc'y, Inc.), 38 Washburn L.J. 215-228 (1997)
Rodney Sorensen, Comment: Crossing a Picket Line in Support of the Union: The New Flavor of Salting, 38 Santa Clara L. Rev. 165 (1997)
Jody L. Spencer, Recent Development: The Court of Federal Claims Says No to Aggregate Income Estimates for Employer-Only FICA Taxes, 31 Ga. L. Rev. 1259 (1997)
Jan Sturner, Comment: Preemployment Medical Exams Under the ADA: Conditional Job Offers and the Application of the Mixed-Motives Framework, 50 Ark. L. Rev. 449 (1997)
Symposium: "Defining the Parameters of Coverage Under the Americans with Disabilities Act: Who Is `an Individual with a Disability?'" 42 Vill. L. Rev. 327-740 (1997)
Elizabeth Ternorio, Note: The Public Policy Exception: A Narrow Exception to Judicial Review or an Independent Means of Avoiding Arbitration Agreements, 1997 J. Disp Resol. 173
Melissa Weber, Note: Labor-Law – National Labor Relations Act - Auciello Iron Works, Inc. v. NLRB, 35 Duq. L. Rev. 1093 (1997)
Tung Yin, A Carbolic Smoke Ball for the Nineties: Class-based Affirmative Action, 31 Loy. L.A. Rev. 213 (1997)
Future Newsletters
To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin (ejd@cwsl.edu) or California Western School of Law, 225 Cedar Street, San Diego, CA 92101 or (619) 525-1449 or fax: (619) 696-9999.
The IRRA LEL Section Newsletter, Labor and the Law, is available via the IRRA discussion group (to subscribe send an email to listserver@relay.doit.wisc.edu, leave the subject line blank.
