Friday, August 1, was a really fun one for me because that day featured the workshop on labor and employment law which meant that all day long there were labor and employment law programs and that’s great for a couple of reasons. First of all, it’s just to stay enmeshed in the substance of labor and employment law, but also to see my colleagues from the section. I think I’ve mentioned several times before what great comradery there is and it was really fun to be able to hang out with them and hear their research ideas and presentations. The first one was a workshop on “The Federal Arbitration Act of 2008.” The members of that panel were Margaret Moses of Loyola, Richard Reuben of University of Missouri, Stephen Ware of Kansas City and Jean Sternlight of UNLV. The panelists began with a discussion of the definition of mandatory arbitration and they tended to disagree quite frankly in terms of what’s mandatory, but they talk about a third of the standard form contracts include mandatory arbitration language typically in health care, financial services, and insurance industry and that often the consumers are unaware of the existence of this language and the majority of the members of the panel found that problematic. Under the FAA (The Federal Arbitration Act) the only way to get out of that is unconscionability. That’s the only reason to deny enforcement of that clause, so the 2000 Act is the Arbitration Fairness Act which would invalidate pre-dispute arbitration agreements in the employment area, consumer or franchise disputes, or and then there’s broad language, a dispute arising under any statute intended to protect civil rights or regulated contracts or transactions between parties on unequal bargaining power. And so the rest of the presentation was about what that language might mean, the probability of that passing given the pending change of the administration and how that language might play itself out, so that was a pretty interesting panel.

The next panel was “Pedagogical Methods for Teaching Labor and Employment Law.” The moderator was Dean Steven Kaminshine. There was also me, Prof. Jeffrey Hirsch, Prof. Rick Bales and Prof. Rachel Arnow-Richman. First of all, let me say thanks to Professors Dodson and Ann and Mark Killenbeck for attending my panel to give me some support. I really appreciate their presence there. This panel was about ways of teaching labor and employment law. The description was how we might broadly reconceptualize the field to mirror the emerging nature of the discipline. Prof. Hirsch talked about weaving international and comparative law into the labor and employment law curriculum. It was a great idea. For example, you have students who feel that the Family Medical Leave Act is a big problem for employers which it is, something quite a challenge to manage. However, it’s not as challenging, comparatively, when you look at some of the Scandinavian countries and the very generous leave policies they have, so one of the things that we talked about is that if you weave in a comparative component to your class, it helps students to put our labor and employment laws in context and I think that’s a great idea.

Rick Bales talked about a simulation that he uses in his class. It was really cool. What he does is, he sets up his labor law class as a bargaining situation, in other words, students have to bargain for what they’ll be graded on, There are students who are management, students who are labor. He tells the management students that if they get a better deal for him they’ll get a better grade (of course he doesn’t do that) and they bargain throughout the course. They have to bargain in agreement and the syllabus, all that’s in play in terms of collective bargaining, so in addition to the substance of the class and a number of assignments along the way, the entire class itself is set up as a collective bargaining situation.

Prof. Arnow-Richman talked about again having a more experiential approach and transactional approach to employment law. She has students draft an employment law manual, severance packages, covenants not to compete, rather than just talking about those issues, she has the students draft them and that’s a really great idea as well.

And then I talked about using a rather controversial film to draw students into greater interest in the area of labor and employment law and that film is “Live Nude Girls Unite” and it is the story of women who work in a peep show setting who organize. One of the reasons I think this is an important film to show is that I think that people write off folks who work in that industry, but these women were very well educated, very articulate, and very much in ownership of their bodies and the choices they made and they faced some of the very same problems that workers in the plant or in an office setting, so there were sexual harassment issues, there were race issues, there were family leave issues, there were people terminated as they got to the top of the pay scale, so it really engages students in a way that a conversation about bargaining may not. It also raises a lot of issues about the right to picket, what concerted activity is, what is mandatory subject of bargaining, so that was a fun one.

After our panel, there was a panel on “Tackling Workplace Disputes: A Spectrum of Approaches.” The moderator for that panel was Prof. William Corbett. On that panel was Prof. Rachel Arnow-Richman of University of Denver, Prof. Melissa Hart from the University of Colorado School of Law and Prof. Paul Secunda of Marquette School of Law. This panel talked about how employers are handling workplace disputes. Prof. Arnow-Richman talked about how employers are addressing the accommodation issue under the ADA and she said that there are studies that show that employers are tending towards being very generous in terms of providing accommodations and she was very interested in that social science research and shared that with us. Prof. Hart talked about the social framework theory that is being used in class action employment discrimination litigation and how that theory plays an important roll in litigation although it’s being challenged repeatedly as being valid and whether it’s relevant to the litigation. Prof. Secunda talked about creating a cause of action for association in the workplace and he talked about a number of different areas where associational type claims have been litigated and that the jurisprudence is all over the place and so why not bundle them up and create a separate action that recognizes the right to workplace associations and have those protected.

The last panel of the day was entitled, “The Impact of Retaliation in the Workplace After Burlington v. White.” The moderator was Dean Rebecca White, University of Georgia School of Law. The speakers were Prof. Hank Chambers of University of Richmond School of Law, Prof. Michael Green of Texas Wesleyan, Prof. Rhonda Reaves of Florida A&M and Prof. Mike Zimmer of Seton Hall University School of Law. One of the problems with conferences like this is that sometimes there is a conflict between two interesting topics and our own Prof. Scott Dodson was presenting at the same time and his panel was entitled, “Frontier Issues in Civil Procedure” and the moderator was Prof. Louis Virelli from Stetson and on the panel with Prof. Dodson were Prof. Beth Burch from Samford University Cumberland School of Law, Prof. Lonny Hoffman from University of Houston Law Center and Dean Robert Klonoff from Lewis and Clark. So, I went in and attended Prof. Dodson’s presentation and then scooted back over to the labor and employment law discussion. Prof. Dodson talked about the fact that the courts have not resolved the issue of whether a rule of civil procedure is a jurisdictional requirement or not. He gave examples of, for example, the rule on one year bar on diversity cases, the forum defendant rule, the uniminity rule and the question of whether these are jurisdictional the fact that the lower courts are split. He gave an example of cases dealing with these issues where there are time prescriptions and a number of employees, again whether that’s a jurisdictional requirement, and he said one thing to do is to step back and look at what is the function of the rule, the effect, what the rule is directed to in terms of factors to consider when determining whether it’s jurisdictional and he suggested that courts need to come to terms with this issue because it’s likely to continue to arise and he encouraged scholars to examine this issue as well. Right now there’s doctrinal uncertainty because of the case law and that’s just going to continue to produce more litigation, hence the need for the courts to be more thoughtful on this issue. Oh, by the way, congratulations to Scott and Ami on their 5th anniversary.

After the programs were over there was a lot of collegiality and comradery amongst the members of the labor and employment law section and I feel compelled to point out the fact that it’s such a supportive and warm group that we stayed all the way until 6:30 p.m. until the last panel was completed on a beautiful sunny day in Florida. That gives you a sense of how much people in the section enjoy each other and support each other’s work.

Afterwards there was a reception sponsored by LexisNexis and there was about an hour in between to change and go to that. After spiffin’ up a little bit and checking e-mail, I went back to the reception. It was very crowded with not so much on the food and also there was very little seating, so I headed out right away for the labor and employment law dinner which had been planned about the same time. It was a come and go event and that was at the Key Lime House which was across a long bridge, but a very pleasant walk. I talked to my mom on the phone while I walked over to the restaurant. A good time was had by all. The Key Lime House was pretty casual with a lot of fried fish. You could get grilled, but basically it was fried fish platters and a number of appetizers were passed around and shared. Good comradery and fun amongst the members of the section. After that it was a walk back to the hotel and a little bit of conversation in the lobby which went pretty late and my idea was to ask for an extended check-out, to check out late, so that I could hang out by the pool and relax on that very last day in Florida. Unfortunately, there was a conference coming in right behind us and so we weren’t able to get a late check-out. Fortunately for me, my friend Mike Green (who is all over the blog) was at this conference as you know from the descriptions of the panels and what not and dinner earlier, had a rental car and he offered to drive me to the airport. As it turns out, he was on the same flight, so that was pretty fun. Our flight was not until 5:40 p.m., so we checked out at noon and on the advice of the concierge headed to CityPlace which was really just one exit up the road on the highway and walked around there a little bit and then had lunch at Legal Sea Foods in CityPlace. It was very good. I had been to Legal Sea Foods before in Washington, DC, but never down in Florida. In fact, I didn’t even know they existed there and Mike had never been at all. My original notes from this meeting got lost, so I don’t remember what Mike’s meal was, but I can tell you what my meal was and it was delicious. It was a pecan crusted snapper with plantains, black beans and rice. Afterwards Mike had a really interesting dessert which was chocolate bon bons, but they were ice cream bon bons and they had strawberry ice cream inside and that sounded bluhhh to me. Anyway, I had little chocolate mousses. I thought it was going to be chocolate mousse that usually comes in a little dish or in a little column glass, but instead  it was little separate servings of chocolate mousse and they were chocolate covered, so it was too rich to finish it all. It was a good meal, indeed. Mike and I were able to visit a little bit more before heading home. I’m so proud of him. A shout out to my good friend, Mike Green, and congratulations on becoming Associate Dean for Research at Texas Wesleyan.

Back home from the SEALS conference at 10:00 p.m. or so on Saturday night. The next day was church and I was the reader that day. I read the Old Testament and the epistle lesson and the epistle lesson was my very favorite verses from Romans 8, so that was pretty neat. Afterwards it was breakfast with the breakfast bunch and a little down time to relax and a few hours spent shopping with my mom as she searched for an outfit for my brother Elliott’s upcoming wedding and then down time again to prepare for another long week.