Synergies for HR in Hospitality

[Excerpt] I am looking forward to March, not only because winter is nearly over here in the Northern Hemisphere, but because it means that we will attend the Annual National HR in Hospitality Conference and Exposition to be held March 16 to 19 at the Wynn Hotel in Las Vegas. This year’s conference, the second of its kind, represents the culmination of a vision shared by the leaders of Cornell’s Hotel School and its ILR School, as well as two prominent alumni. Before identifying these people and explaining the conference, a little background is necessary. Cornell’s School of Hotel Administration has for eighty-five years enjoyed the reputation as the world’s preeminent hospitality management school. Similarly, Cornell’s School of Industrial and Labor Relations, now known as the ILR School, has been regarded as the best school of its kind since being founded in 1948. The germ for the idea of a cosponsored conference began in spring 2006 when the ILR School named Harry Katz as dean. Dean Katz built bridges between the two schools when he agreed to become a cosponsor of the Hotel School’s Labor and Employment Law Roundtable and its Human Resource Roundtable. In July 2006, Michael Johnson became dean of the Hotel School. Around that same time, ILR alumnus Bruce Raynor, president of Unite Here (the hospitality industry’s largest union), and Ken Kahn, president of LRP Publications (a Center Partner that, in addition to its publications, develops and runs conferences on variety of topics), agreed to work with both the Hotel School and the ILR School to develop an HR in Hospitality Conference

The Effect of Labor Law Changes under the New Administration: Too Soon to Tell

With a new administration in place, experts in labor law joined union leaders and management to observe the straws in the wind regarding what changes might occur in labor laws and regulations. Changes seem inevitable in the National Labor Relations Board, and existing NLRB rulings may be altered as time goes on. On the other hand, it seems nearly certain that franchisors and firms that contract for employees will continue to considered joint employers. The “fissuring” of the hospitality industry invites such an outcome, even as different firms are responsible for specific aspects of a venture. Union leaders anticipate that they will continue to do their best to organize employees and work with their members, and de-emphasize political activity

Progress Report: The Center at Fifteen

[Excerpt] The Center for Hospitality Research, publisher of this journal, is celebrating its fifteenth anniversary this year. Though we will note this occasion at the Cornell Hotel Society’s annual New York Hotel Show Reception, I wanted to offer a progress report to the readers who cannot be in New York in November. The Center began in 1992 when a young professor, Steve Carvell, now the Hotel School’s associate dean, brought the idea to the faculty. After the initial angst associated with all new ideas, the faculty agreed to endorse the idea and selected Professor Jack Corgel as the Center’s first director. Jack got the Center going by bringing in a number of partners and organizing a conference. After Jack stepped down in 1994, however, the Center struggled. By 2000 the Center had no partners, no conferences, and no research. Professor Cathy Enz took over the Center in fall 2000. With a goal of revitalizing the Center, she hired a small staff, including our director of corporate relations Joe Strodel, created an advisory board, began bringing in partners and data providers, developed the concept of Cornell Hospitality Reports, began funding summer research fellows, and began sponsoring the Center’s roundtables. In addition, under Cathy’s leadership the Center engaged Sage Publications to manage this journal, which we have just renamed the Cornell Hospitality Quarterly (CQ). Since Sage became our journal manager, CQ has increased its readership, decreased its acceptance rate (due to a stronger field of article submissions), and is now listed in the Thompson Scientific Journal Citation Index (as explained elsewhere in this issue by editor Linda Canina)

Sexual Harassment: A Doctrinal Examination of the Law, An Empirical Examination of Employer Liability, and A Question About NDAs— Because Complex Problems Do Not Have Simple Solutions

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees may be better off with a nondisclosure agreement (NDA) in many instances. Our conclusion sketches out the basic contours of an alternative legal standard, a new affirmative defense, and related policy initiatives that call into question the common perception that privacy benefits employers and not employees

The United States Supreme Court Rules in Favor of Employees in the Young and Abercrombie Cases: What Do They Really Hold?

Two recent decisions by the U.S Supreme Court have been characterized as “losses” for employers, and “wins” for employees who wish to have workplace accommodations due to their particular situations. Those perceptions are demonstrated in the popular press reports regarding the decisions, shown in the sidebar on the next page. While the employee indeed prevailed in both of those Supreme Court holdings, neither one indicates that the sky is falling for employers nor that nirvana has been reached for employees. Instead, the Young and Abercrombie decisions are so narrow that it is nearly impossible to determine what they really stand for. With that in mind, the purpose of this article is to dispel any myths regarding these cases, to set forth a detailed analysis of the Supreme Court’s holdings, and to outline how employers should react, subject to advice of counsel

A Moral Contractual Approach to Labor Law Reform: A Template for Using Ethical Principles to Regulate Behavior Where Law Failed to do so Effectively

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties\u27 reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The paper explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down

Experimental Evidence that Retaliation Claims Are Unlike Other Employment Discrimination Claims

The type of discrimination claim that strikes fear in the hearts of all employers is the dreaded retaliation claim. While employers contend, and plaintiffs admit, that retaliation is different from other discrimination complaints, employee advocates have put forth legislation that would equalize retaliation with the other types of discrimination. This bill, Protecting Older Workers against Discrimination Act (POWADA), would expand the so-called mixed-motive jury instruction to age, and disability, as well as retaliation. Moreover, it would allow plaintiffs, not judges, to decide which types of instruction the jury would receive. In this article, the authors argue that retaliation claims should not receive the same treatment as other discrimination claims (including age and disability), because it’s easy for juries to believe that retaliation is a factor, regardless of other facts. Once a fact-finding jury checks the box to indicate that an employer’s motive might include retaliation, the employer will likely have to pay fees and costs, at minimum, regardless of the claim’s final resolution

A Moral Contractual Approach to Labor Law Reform: A Template for Using Ethical Principles to Regulate Behavior Where Law Failed to do so Effectively

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties\u27 reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The paper explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down

When Rules Are Made to Be Broken: The Case of Sexual Harassment Law

Judicial holdings regarding sexual harassment actions have put judges who want to ensure what they view as a just outcome in the awkward position of having to choose between following precedent or “breaking the rules.” This article presents a theoretical assessment and empirical analysis of judicial rule-breaking with regard to two rules relating to sexual harassment. The first such rule, established in the Oncale decision, opened the door to the “equal-opportunity harasser” who treats everyone badly and thus escapes the prohibition on harassment “due to sex.” The other rule, set forth in the Ellerth and Faragher decisions, establishes a two-prong requirement for companies to demonstrate that they should not be held liable in the case of sexual harassment of an employee. The requirements for the so-called affirmative defense are, first, that the employer acted reasonably in relation to a complaint, and second that the employee acted unreasonably, usually indicated by a tardy complaint. Our analysis of 131 cases finds that the likelihood of rule-breaking increases when judges perceive that an employer that is otherwise meritorious (that is, responds effectively to the complaint) could be held liable (in the case of Ellerth and Faragher). On the other hand, courts have followed the rule when an unjust outcome has small repercussions (as in Oncale). Of interest in this context is how the courts will treat a new sexual harassment rule, as outlined in the Supreme Court’s Vance decision

Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a Mandatory Arbitration Act

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana