Inside USD

Getting to Know Your Professors: Orly Lobel

Tuesday, December 17, 2013

Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at the University of San Diego School of Law. She teaches and writes in the areas of employment law, intellectual property law, regulatory and administrative law, torts, behavioral economics, health policy, consumer law and trade secrets. Her current research focuses on innovation policy and intellectual property. She talks with Inside USD about her areas of expertise, what she’s passionate about, and the sentiment behind her new book that’s receiving stellar reviews, Talent Wants to Be Free.

Q: One of your areas of expertise is employment law. What are the current frontiers of the field? Have the recent financial crisis affected the labor market policies?

The field of employment law is always evolving: our patterns of work have transformed so significantly – partly accelerated by waves financial crises, partly due to the shifts of the way we produce and compete globally, and partly due to our changing preferences and expectations from our careers. These days, people can’t expect to begin and retire at one workplace. They need to manage their careers, re-skill, become more active in job seeking and professional networking. Employers too need to hire more frequently and adapt more rapidly to changing markets. These patterns hold a whole host of labor market challenges: how to address waves of unemployment, how to accelerate re-entry to the job market.

At the same time, we need to ask who are the winners and losers of the more flexible work patterns: for anti-discrimination policy, discrimination is often structural and built into company patterns and practices rather than overt and direct. So we need to think about whether our traditional ways of analyzing discrimination laws are sufficient in eradicating ongoing gender inequities for example. Work/family balance and privacy issues are evolving as technology allows intense monitoring of on- and off-the-job activities.

And another aspect of employment law that has come into focus after the financial crisis is the role of reporting unethical behaviors both in corporate America and in the public sector and how whistleblowing laws shape resistance to corporate misconduct. And of course, a main focus of my research these days has to do with a huge area of contemporary employment law: human capital law – all the laws that pertain to intellectual property, skills, and knowledge within the employment relationship.

Q: The title of your new book Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press 2013) is intriguing. What would it mean to “free talent” and what are free-riding and raids?

The talent wars are heated. These days companies understand that their number one asset is their people. But as businesses realize they need to constantly innovate in order to compete, they also attempt to control their most valuable asset– talented individuals: non-competes agreements that prevent former workers from taking new jobs in their profession, broad non-disclosure agreements that prevent former employees from using the knowledge and skills they’ve gained at work, and over-reaching invention assignment contracts that attempt to appropriate all creativity of the employee as owned by the employer.

The book shows that talent wants to be free in a lot of different ways: from a motivational standpoint, regional development, and industry innovation. I show how free-riding – allowing the flow of knowledge and ideas is often a win-win for all involved. And I show how everybody – businesses, cities, workers – in the long-run benefits from being able to raid each other’s talent.

The book is meant for every person who experiences the occasional spark of creativity – whether in the sciences, arts, or business. It’s about motivation and the entrepreneurial spirit. The book combines fascinating stories about how innovation happens in different settings along with “war stories” between such giants like Coca-Cola and Pepsi, Google and Facebook, JetBlue and Southwest, and research insights from law, economics, psychology, and business. You will be surprised how irrational some of these battles become and how often the best way to get to the next creativity breakthrough is the counter-intuitive.

Q: Teaching law students in a highly competitive environment must have its challenges. What inspires you inside the classroom?

My students are brilliant and engaged. They bring to the classroom curiosity and commitment and they are the ones who inspire me. I teach courses in a wide range of fields – employment law, law and social change, behavioral law and economics, intellectual property – and each subject raises issues that we should all care about: justice and welfare, equality and distribution, policy and economic growth, inventiveness, creativity and progress. These are politically and ethically charged issues but I tell my students in the beginning of each semester that I want them to challenge themselves to not come to the classroom with preconceived notions on what the law is and should be on any of these issues. The law continues to evolve and is pervasively charged with normative concerns about our society’s private and public ordering. It inspires me when I see my students discovering how their own beliefs and values are translated into current legal issues and how they creatively think and analyze. These students are the next generation of lawyers and whatever they will end up doing in their professional careers, they will be shaping the laws of the 21st century.

Q: One word to describe yourself?

Passionate. I love academic life because in a way you remain a student forever. I constantly learn from my students and colleagues, we live in the world of ideas but we keep it real and engaged, and I simply love the combination of scholarship, teaching and intellectual community that exists at the university.

Q: What are your passions outside of the classroom?

My family first and foremost: thanks to my three amazing kids and my husband, we continue to discover all that San Diego has to offer: the beaches, the bay, kayaking, hiking, running, the symphony, the theatre, modern dance. We also enjoy quiet down time of reading. And yoga for me is a daily constant.

– Melissa Wagoner

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