William A. Herbert

Reasonable Expectation of Privacy When Using Employer Email

William A. Herbert — Sat, 25 Jun 2011 11:19:28 PDT

Public Sector Labor Law and History: The Politics of Ancient History?

William A. Herbert — Mon, 13 Jun 2011 03:15:28 PDT

This article discuss three books that address various aspects of public sector labor history. It seeks to contextualize the current debate over public sector labor law and relations through the lessons of relevant history. The first book discussed is entitled The Man Who Saved New York: Hugh Carey and the Great Fiscal Crisis of 1975, by Seymour P. Lachman and Robert Polner. It recounts the leadership of Governor Carey and public sector labor leaders in reaching negotiated solutions through collective bargaining that helped solve New York City's fiscal crisis in 1975. The second book is a long-forgotten 1948 treatise Government as Employer by Sterling D. Spero, published at the dawn of public sector collective bargaining in the United States. Unlike most histories of American labor, Spero's book focuses on the public sector, providing an important antidote to the dominance of the private sector narrative in United States labor historiography. The final book examined is a labor history published last year: There is Power in a Union: The Epic Story of Labor in America by Philip Dray. Dray's book presents an episodic labor history of America's private sector from the rise of industrialization to today, which touches upon certain events in public sector labor history.

Some Think of the Future: Internet, Electronic and Telephonic Labor Representation Elections

Sara Slinn et al. — Mon, 09 May 2011 02:29:12 PDT

Amid the scholarly dialogue regarding amending labor certification procedures, there have been calls for the adoption of internet, electronic and/or telephonic representation voting (IETV) procedures in representation elections. To date, most labor relations agencies in the United States and Canada have not implemented IETV. Three notable exceptions are the National Mediation Board (NMB) and the Federal Labor Relations Authority (FLRA) in the United States, and the Canada Industrial Relations Board (CIRB). This article explores the strengths and weaknesses of IETV and the potential for wider adoption of this technology in the representation election context. The article examines NMB’s rationale in adopting IETV, and its experience with this new election format. Insights and experiences from interview participants provide a fuller examination of the prospects and pitfalls of IETV than previous research. The primary rationale for adopting IETV has been premised on pragmatic administrative decision-making, rather than minimizing employer and union interference in voting. Findings also show that IETV has been adopted as a substitute for mail-ballot elections, and not as a replacement for manual elections. These findings have implications for extending the adoption of IETV to other labor relations agencies. This article posits that while IETV is an important innovation in the representation electoral process, it is too early for there to be universal adoption of the format without additional research and experimentation. In experimenting with IETV, the focus should be on determining whether IETV fulfills the fundamental purpose of a representation election: to accurately reflect whether or not employees in a unit wish to be represented by the applicant union. Moreover, in introducing IETV, an agency must explore new means of communicating with unit employees aimed at maximizing participation under the new election format,

Card Check Labor Certification: Lessons from New York

William A. Herbert — Fri, 25 Mar 2011 16:17:45 PDT

During the debate over the card check proposal in the Employee Free Choice Act of 2009 (EFCA), there has been a notable lack of discussion about New York’s fifty-year history and experience with card check certification. This article challenges and contradicts much of the prior scholarship and debate over EFCA by examining New York’s development and administration of card check procedures. The article begins with an overview of the history of New York public sector labor relations prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes, and the establishment of formal grievance procedures by public employers which were the precursors of collective negotiations. It then describes the largely untold story behind the development of New York City’s collective bargaining system for municipal employees, which included a card check procedure similar to the one that had existed under the National Labor Relations Act. Following the description of New York City’s adoption of card check, the article analyzes the history, procedures, and precedent with respect to the use of card check under New York’s Public Employees’ Fair Employment Act, the New York City Collective Bargaining Law, and New York’s Labor Law. Finally, the article sets forth the important lessons to be learned from New York’s history, precedent, and experience, which can enhance the debate over card check.

Procedural and Substantive Issues in Employment Retaliation Claims “Whistleblower Jurisdiction”

William A. Herbert — Tue, 28 Sep 2010 17:23:05 PDT

The following is the powerpoint presentation given at the 2010 Court of Claims Judges’ Association Meeting in West Point. The presentation was given following passage of legislation that granted jurisdiction to the New York Court of Claims to hear claims of retaliation in employment by individuals who have engaged in whistleblowing.

Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert — Sun, 31 Jan 2010 02:48:06 PST

The popularity of email, blogging and social networking raises important issues for employers, employees and labor unions. This article will explore contemporary workplace issues resulting from the related social phenomena of electronic exhibitionism and voyeurism. It will begin with a discussion of the international social phenomenon of individuals electronically distributing their personal thoughts, opinions, and activities to a potential worldwide audience while at the same time retaining a subjective sense of privacy. The temptation toward such exhibitionism has been substantially enhanced by the advent of Web 2.0. The article then turns to the legal implications of electronic voyeurism including employer surveillance of employee workplace computer use and employee off-duty blogs and social networking pages. It will also examine the issues associated with employers and recruiters conducting internet searches for information about job applicants. In the conclusion, the article will discuss various means for responding to the workplace issues resulting from electronic exhibitionism and voyeurism on and off the job.

Caveat Loquens: Let the Speaker Beware

William A. Herbert — Fri, 17 Apr 2009 16:22:22 PDT

This article discusses the gap between First Amendment expectations and realities with respect to the scope of protected speech in the public sector workplace. While it is highly unlikely that the courts will recognize a qualified immunity against adverse action for traditional First Amendment activities, the article highlights the difficulty that both public employers and employees face in trying to discern the scope and limitations of protections emanating from the First Amendment.

Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching

William A. Herbert — Sat, 28 Feb 2009 12:52:51 PST

Legal and public policy ideas and concepts are known to traverse national borders. The rapidity of this multinational exchange of ideas has been substantially enhanced through the technological revolution over the past two decades. How a nation adopts or rejects particular ideas and concepts reflects on its particular history, culture and priorities.

The establishment of legal protections for privacy against intrusions by governments, employers, companies and individuals represents a concept that has been adopted in different ways by other nations. This article will focus on how the European Union and certain Western countries have approached the issue of protecting individual privacy in the electronic age with a primary emphasis on workplace privacy. Such an examination of the legal and policy choices by these other jurisdictions can provide alternative perspectives about the proper balance between individual rights and governmental power, as well as, the proper balance between employer and employee interests in the electronic workplace.

The Impact of Emerging Technologies in the Workplace: Who's Watching the Man (Who's Watching Me)?

William A. Herbert et al. — Wed, 18 Feb 2009 02:29:17 PST

The NLRA in a Technological Society: A Law Not Busy Being Born, Is Busy Dying

William A. Herbert — Fri, 16 Jan 2009 02:05:42 PST

Advanced Employment Retaliation Issues

William A. Herbert — Fri, 05 Dec 2008 18:08:05 PST

Balancing Test and Other Factors Assess Ability of Public Employees to Exercise Free Speech Rights

William A. Herbert — Fri, 05 Dec 2008 17:00:35 PST

Protections for Public Employees Who 'Blow the Whistle" Appear to Be Inadequate

William A. Herbert — Fri, 05 Dec 2008 16:56:02 PST

The First Amendment and Public Sector Labor Relations

William A. Herbert — Fri, 05 Dec 2008 16:47:28 PST

The Electronic Workplace: To Live Outside the Law You Must Be Honest

William A. Herbert — Thu, 04 Dec 2008 14:53:04 PST

No Direction Home: Will the Law Keep Pace With Human Tracking Technology to Protect Individual Privacy and Stop Geoslavery

William A. Herbert — Thu, 04 Dec 2008 14:49:29 PST