Monday, January 16, 2017
On her blog, Friend of the Court, Sandra Sperino discusses the new Third Circuit decision in Karlo v. Pittsburgh Glass Works. In that case, the Third Circuit held that the ADEA permits "subgroup" disparate impact claims--that is, claims that an employer policy creates an unlawful disparate impact against a certain subgroup of a protected class.
Check it out, definitely worth a read.
Friday, January 13, 2017
Today, the Supreme Court announced that it would review the NLRB's D.R. Horton rule, which concludes that employment class action waivers can violate Section 8(a)(1) of the NLRA. The Court consolidated a group of cases under review that we be familiar to readers of the blog: NLRB v. Murphy Oil, Ernst & Yong v. Morris, and Epic System v. Lewis. Should be an interesting case and here's hoping that my follow blogger Charlie Sullivan and his co-author Tim Glynn picks up a Supreme Court citation on the way.
We'll keep you posted on the oral argument and developments that follow.
Thursday, January 12, 2017
The EEOC just announced that the public input period is now open for its proposed Anti-Harassment Guidance. The guidance is available here, and the input period ends on February 9, 2017. From the press release:
"The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number."
This is a great opportunity to review and weigh in on this important guidance.
Wednesday, January 11, 2017
Last week, outgoing Labor Secretary Thomas Perez authored an exit memorandum outlining the present and future of employment rights. The memo is very well written and makes some compelling arguments in a number of areas. The Secretary touches on several of the high-profile topics of the day, including wages, equal pay, retirement benefits, worker compensation, child labor, family leave and worker categorization in the modern economy. A brief excerpt, which discusses the future of employment in the gig sector:
“The largest question for the next administration and beyond is how we embrace innovation in this dynamic economy while ensuring that the changing nature of work continues to honor the bedrock principle that workers are not in it alone in securing basic protections. Today, due in part to new business models and the more transient and attenuated employment relationships that characterize the fissuring of work, we are seeing more workers lose the assurance of a fair wage guaranteed by the FLSA, the support promised by the workers’ compensation system when they are injured on the job, and the promise of a secure retirement provided by defined benefits plans.”
Because it covers such a broad range of areas, I recommend taking a look at this memo to those who have any interest in labor and employment law.
-- Joe Seiner
Thursday, January 5, 2017
A city in Sweden experimented with a six-hour work day for a group of nurses working in elder care. The city has decided to scrap the approach, however, citing the excessive costs. From MSN/Bloomberg news:
“The take away was largely positive, with nurses at the home feeling healthier, which reduced sick-leave, and patient care improving. . . But the city has no plans in making the measure permanent or broadening it to other facilities. To do that it would need much more money and even help from the national government. To cover the reduced hours for the 68 nurses at the home it had to hire 17 extra staff at a cost of about 12 million kronor ($1.3 million).”
It is interesting to see local governments looking into cutting worker hours as well as the impact of these types of approaches.
-- Joe Seiner
Wednesday, January 4, 2017
The EEOC issued regulations yesterday on the role of the federal government to engage in affirmative action for workers with disabilities. The EEOC notes the government's role as a "model employer," and provides regulations on how the government can achieve this standard. The EEOC also provides a question and answer document to further assist with compliance issues. From the press release:
"The regulations set goals for federal agency workforces of 12 percent representation for individuals with disabilities and 2 percent for individuals with "targeted" disabilities. Targeted disabilities are defined as disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others. The goals apply at both higher and lower levels of federal employment.
The regulations also require federal agencies to provide personal assistance services to employees who need them to perform basic human activities at work, such as eating and using the restroom. These services will allow individuals with significant disabilities to enjoy the opportunity and independence of paid employment, which may reduce the amount of taxpayer funds spent on public disability benefits."
These regs are definitely worth taking a look at if you research or write in these important areas.
Wednesday, December 28, 2016
Paul Caron over at TaxProf Blog posts on Lauren Rivera (Northwestern) & András Tilcsik (Toronto), How Subtle Class Cues Can Backfire on Your Resume, Harvard Business Review. The article describes the authors' study of the hiring practices of large U.S. law firms. I've excerpted the take-away from the abstract, but the entire abstract (and article) are well worth reading:
Even though all educational and work-related histories were the same, employers overwhelmingly favored the higher-class man. He had a callback rate more than four times of other applicants and received more invitations to interview than all other applicants in our study combined. But most strikingly, he did significantly better than the higher-class woman, whose resume was identical to his, other than the first name.
. . .
But even though higher-class women were seen as just as good “fits” as higher-class men, attorneys declined to interview these women because they believed they were the least committed of any group (including lower-class women) to working a demanding job. Our survey participants, as well as an additional 20 attorneys we interviewed, described higher-class women as “flight risks,” who might desert the firm for less time-intensive areas of legal practice or might even leave paid employment entirely. Attorneys cited “family” as a primary reason these women would leave....
The New York State Bar Association has just published Lefokwitz on Public Sector Labor & Employment Law (4th ed. 2016), edited by William A. Herbert, Philip L. Maier, and Richard K. Zuckerman. Here's the publisher's description:
This landmark text is the leading reference on public sector labor and employment law in New York State. Editors William Herbert, Philip Maier, and Richard Zuckerman bring together leading attorneys in the field to contribute their expertise to this two-volume work.
Covering all aspects of this area of law, Lefkowitz on Public Sector Labor and Employment Law includes chapters on the Taylor Law, the representation process, the duty to negotiate, improper practices, strikes, mini-PERBS, arbitration and contract enforcement, and more. Much of the discussion in this two-volume resource has been revised and contains updated case and statutory references throughout. Practitioners new to the field, as well as the non-attorney, will benefit from the book's clear, well-organized coverage of what can be a very complex area of law. All practitioners will benefit from the exhaustive coverage of this book, whether they represent employees, unions or management.
With this edition, this treatise has been renamed to recognize Jerome Lefkowitz, who served as former Public Employment Relations Board chair, as Editor-in-Chief of the first three editions, and who transformed New York's labor landscape by helping to write the Taylor Law.
Monday, December 26, 2016
As the New Year approaches there is good news for many workers across the country. Numerous states and cities are set to raise the minimum wage for workers (though the exact date of the increase varies). The amount of the raise depends on the particular jurisdiction, and as we are all well aware, there has been no increase to the minimum wage under federal law. CNN has an interesting article about these wage hikes, including a list of those states and cities raising the rate.
Thursday, December 22, 2016
There is an interesting article in the LA Times today which looks at some purported policies at Google that address worker communications. Recent litigation argues that these alleged company policies prevent employees from engaging in proper whistleblowing activities. From the article:
"The lawsuit alleges that Google has wide-ranging confidentiality agreements and employee communication policies that prevent employees from disclosing violations both internally and externally. According to the lawsuit, Google restricts what employees say, even in internal emails, advising employees not to say 'I think we broke the law' or 'I think we violated this contract.' . . . The policies, according to the lawsuit, go so far as to prevent employees from discussions with a spouse or friends 'about whether they think their boss could do a better job,' [or] talk of wages . . . without prior approval from Google."
This is an interesting case and set of allegations. If you are interested in this area of employment law, I recommend taking a look at the article, which also includes a company response to the case.
-- Joe Seiner
Tuesday, December 20, 2016
In June, I posted on Pauline Kim's forthcoming article arguing that employer use of algorithms in evaluating applicants and employees could hard-wire discrimination into the evaluation process. For a different take on the issue, I've teamed up with 3L David Savage in an article arguing that if algorithms are carefully used and periodically evaluated, they can avoid causing both disparate treatment and disparate impact discrimination and address the discriminatory concerns created by unconscious bias. The article is David D. Savage & Richard A. Bales, Video Games in Job Interviews: Using Algorithms to Minimize Discrimination and Unconscious Bias, 32 ABA J. Labor & Employment Law (forthcoming 2017); here's the abstract:
As the number of applicants for many job openings grows into the thousands, employers have searched for methods to efficiently sort through these applications and compile a shorter list of individuals to interview for open positions. One method growing in popularity is using algorithms to analyze statistical information and determine the candidates that will perform the best if hired based on factors such as cognitive ability, management skills, and workplace performance. Predictive analytics involving algorithms are being used by 8% of companies in the United States. Some of these employers have had applicants play video games created by developers that use these algorithms to analyze their performance and select the best candidates for the job. Scholars have argued that the use of algorithms in general and in video games may lead to discrimination in the workplace. Although any type of employment practice can cause discrimination, this article argues that the use of algorithms in video games to evaluate job candidates may be a cost-effective and beneficial business method that can help avoid discrimination. If created and administered carefully, video games using algorithms have the ability to minimize human bias, including unconscious bias, from the initial job hiring process.
Saturday, December 17, 2016
Paul Harpur (Queensland) writes to tell us that an Australian disability wage-setting tool has been found discriminatory, and that the Australian government has agreed to pay 9,735 intellectual disabled workers entitlements which may reach $100 million AUD. Here's Paul's analysis:
An Australian government disability wage setting tool used to assess the wages of intellectually disabled workers who were employed in an Australian Disability Enterprise (a form of government subsidized employment) resulted in people with certain disabilities being under paid.
The tool in question, the Business Services Wage Assessment Tool, was used to determine how much each worker should be paid and if they were entitled to wage increases.
It was alleged that the imposition of the condition or requirement that wages be fixed using the tool amounted to indirect disability discrimination within the meaning of s 6 of the Disability Discrimination Act 1992 (Cth).
The tool fixed the amount of a wage by an assessment of competency and of productivity. The assessment of competency was made by reference to eight elements. Some of these competencies were irrelevant to the work actually undertaken by workers and the assessment processes relating to other competencies was flawed. The assessment processes used abstract answers in an interview situation with intellectually disabled workers. If workers did not provide a prescribed response they scored zero.
The Australian government accepted that this tool was discriminatory and has agreed to pay back wages for thousands of workers. The government introduced legislation to create a framework to repay wages in the Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth) (see also the Business Services Wage Assessment Tool Payment Scheme Bill 2014 (Cth) Explanatory Memorandum) and on 16 December 2016 the wage claims and discrimination claims by a class of 9,735 workers was approved by the Federal Court of Australia in Duval-Cowrie v Commonwealth of Australia (2016) FCA 1523. The length and size of these under payments are substantial and are estimated to cost the Australian government $100 million AUD.
Friday, December 16, 2016
Congratulations to Rachel Arnow-Richman and Nantiya Ruan (both at Denver) on the publication of their new book Developing Professional Skills: Workplace Law (West 2016). Here's the author's description:
Incorporating professional skills and ethics into the traditional workplace law course is a critical but challenging undertaking. This easy-to-use book simplifies the effort, offering eleven discrete exercises designed to help students develop skills in the key areas of drafting, counseling, negotiation and advocacy. Each exercise involves a different substantive area of workplace law, including covenants-not-to compete, wage and hour law, employment discrimination, whistleblower protection and general common law and tort principles. The book is flexible enough to supplement any doctrinal casebook, or can be used to teach a stand-alone skills course.
Fortunately for us in the field of workplace law, Rachel Arnow-Richman and Nantiya Ruan have just eliminated a tremendous amount of that work. Over several iterations, they developed a first-rate experiential course in this field. And they are willing to share their work, so that we do not have to reinvent this well-designed wheel. The result is their forthcoming book (due for release in the next week or so), Developing Professional Skills: Workplace Law.
This narrow volume provides a rich set of workplace law problems that can be used, off the shelf, to teach a problem-based course. There are 11 chapters, each of which contains a detailed but manageable workplace law scenario. And while all of the scenarios are fun and thoughtfully crafted, you might consider using even a subset of them, given the book’s low price point ($25, from what I understand).
This is terrific. Developing the material for teaching skills is by far the hardest and most time-consuming part.This book is a very welcome addition to our pedagogical toolbox.
Wednesday, December 14, 2016
Deborah Brake (Pittsburgh) has just posted on SSRN her article (forthcoming Georgetown L.J.) The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay. Here's the abstract:
In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and relaxing the strictness of the similarity required between comparators in order to establish discriminatory intent. This article situates the newly-minted pregnancy discrimination claim in Young against the backdrop of employment discrimination law generally and argues that the Court’s hybrid treatment-by-impact claim is in good company with other outlier cases in which courts blur the boundaries of the impact/treatment line. The article defends the use of unjustified impact to prove pregnancy discrimination as well-designed to reach the kind of implicit bias against pregnant workers that often underlies employer refusals to extend accommodations to pregnant workers. While Young is not likely to prompt an earthquake in employment discrimination doctrine, this article identifies and defends a parallel development in the law governing pay discrimination that similarly incorporates unjustified impact into a disparate treatment framework.
Tuesday, December 13, 2016
The suit is brought by former faculty member Patrice Fulcher. Paul Caron has the details over at Tax Prof Blog, via National Jurist (paywalled). The Complaint alleges that Fulcher was steered toward a legal writing position rather than a doctrinal position and paid less than doctrinal colleagues, and that a year after getting tenure she was denied the salary raise that customarily accompanied tenure.
As Caron notes, this is the second time in four years JMLS-Atlanta has been sued for race discrimination. The former suit, by two former faculty members, was settled after the plaintiffs survived a motion dismiss.
Monday, December 5, 2016
Congratulations to Tristin Green (San Francisco) on the publication of her new book Discrimination Laundering: The Rise of Organizational Innocence and the Crisis of Equal Opportunity Law by Cambridge University Press. Here's the publisher's description:
While discrimination in the workplace is often perceived to be undertaken at the hands of individual or ‘rogue’ employees acting against the better interest of their employers, the truth is often the opposite: organizations are inciting discrimination through the work environments they create. Worse, the law increasingly ignores this reality and exacerbates the problem. In this groundbreaking book, Tristin K. Green describes the process of discrimination laundering, showing how judges are changing the law to protect employers, and why. By bringing organizations back into the discussion of discrimination, with real-world stories and extensive social science research, Green shows how organizational and legal efforts to minimize discrimination – usually by policing individuals over broader organizational change – are taking us in the wrong direction, and how the law can do better by creating incentives for organizational efforts that are likely to minimize discrimination, instead of inciting it.
And here's just one of the many strong endorsements:
Tristin Green brilliantly illuminates the origins and effects of disturbing new trends in employment discrimination law that serve to protect high-level officials and their organizations – while leaving those who experience discrimination and lose opportunities more vulnerable. Green is an excellent guide, combining both a readable writing style with technical expertise.
-John Skrentny, University of California, San Diego
Conveniently timed for end-of-year gift-giving and library acquisitions, Tristin's book is available from Cambridge in softback for $34.99 and hardback for $151, and from Amazon in both hard copy forms and in kindle form ($21.49).
Wednesday, November 30, 2016
Jake Rosenfeld (Wash U. - Sociology) has just posted the essay Labor and Politics: Learning the Right Lessons from 2016 over at onlabor. H argues that the Democratic Party's take-away from the 2016 election results -- that they need to refocus on white/male/working-class/Rust-Belters, is exactly wrong. His entire essay is well worth a read; here's an excerpt:
The election postmortems paint a picture of the U.S. labor movement as a set of beleaguered organizations made up of white, male, manufacturing workers. That would have been an accurate representation of organized labor a century ago. More recently, the demographic and occupational composition of organized labor changed dramatically, bringing millions of women and racial and ethnic minorities into its ranks. During the latter half of the 20th Century no population was more over-represented in labor unions than African-Americans. In the Detroit metropolitan area three decades ago, unions had organized nearly 1 out of every 3 workers; by 2015, the rate had fallen by more than half. In the Milwaukee metro area, 1 out of every 4 workers belong to a labor union back in the mid-1980s. Today, less than 1 in 15 do.
Democrats’ newfound attention to the electoral consequences of organized labor’s plight is welcome, although several decades overdue. Alongside churches, unions remain the only set of mass-based organizations that connect working-class Americans to politics. If 2016 has taught us anything, it is that all the advanced analytics in the world can’t compensate for desiccated political organizations that engage workers biennially, at best. But looking to convince white working-class Republican voters in Sheboygan or Kenosha Counties to join the Democrats makes sense only if Democrats had turned out all their potential voters. A more fruitful way forward would be for Democrats, labor unions, and progressive allies to reinvigorate remaining unions, especially in urban areas, and to coordinate resources and activities with state and local political organizations.
Tuesday, November 29, 2016
Friend of the Blog Bill Herbert sends word that registration is now open for the National Center's 44th Annual Conference on March 26-28, 2017 in New York City. The conference keynote speaker is NLRB Chair Mark G. Pearce. The number and breadth of panels and workshops is far too long to list and describe here, but is available at the Conference Registration Website.
Tuesday, November 22, 2016
District Court Enjoins New Overtime Salary Threshold (and Basically Holds that Salary-Basis Test is Unlawful)
Today, the Eastern District of Texas just issued a nationwide preliminary injunction barring application of the Department of Labor's (DOL) new minimum salary threshold for overtime exclusions under the Fair Labor Standards Act.
The decision is stunning. The court relies almost exclusively on dictionary definitions of the terms of the FLSA's overtime provisions. In so doing it states repeatedly that the FLSA's statement that the DOL may define and delimit the meaning of "administrative, exccutive, and professional" does not include the authority to set minimum salary thresholds. According to the court, the DOL can only update the duties. Thus, if an employee meets the duties of, say, an administrative employee, they should be excluded no matter their salary. However, perhaps recognizing that this line of reasoning runs contrary to decades of overtime law, the court drops a footnote saying it wasn't questioning the salary-basis test generally -- the court was addressing only the new salary threshold was under issue. But as far as I can tell, the only logical conclusion from the court's reasoning is that the salary-basis test in general is illegal (if someone sees a way around this in the decision, definitely let me know). In other words, if this decision stands, I think the only logical conclusion is that there will no longer be a salary-basis test for overtime exemptions.
Friday, November 18, 2016
Introduction: Ken Dau-Schmidt, Indiana University
Chapter 1: Existence of the Employment Relationship
- Joe Slater, Toledo
- Charlotte Garden, Seattle Univ
Chapter 2: Employment Contracts: Termination
- Steve Befort, Minnesota
- Lea Vandervelde, Iowa
- Ken Casebeer, U of Miami
Chapter 3: Employment Contracts: Compensation and Benefits
- Scott Moss, Colorado
- Nadelle Grossman, Marquette
Chapter 4: Principles of Employer Liability for Tortious Harm to Employees
- Jason Bent, Stetson
- Michael C. Duff, Wyoming
Chapter 5: The Tort of Wrongful Discharge in Violation of Public Policy
- Nicole Porter, Toledo
- Ann McGinley, UNLV
Chapter 6: Defamation, Wrongful Interference, and Misrepresentation
- Ruben Garcia, UNLV
- Helen Norton, Colorado
Chapter 7: Employee Privacy and Autonomy
- Matt Finkin, Illinois
Chapter 8: Employee Obligations and Restrictive Covenants
- Alan Hyde, Rutgers Newark
Chapter 9: Remedies
- Marley Weiss, Maryland
- Judge David Hamilton, Seventh Circuit Court of Appeals
- Judge Terry A. Crone, Third District Court of Appeals (Indianapolis)
- Michael W. Padgett, Jackson and Lewis (Indianapolis)
- Ryan H. Vann, Baker & McKenzie LLP (Chicago)
- Michael D. Ray, Ogletree and Deakins (Chicago)
- Jeffrey A. Macey, Macey, Swanson and Allman (Indianapolis)
- John Roche, Senior Attorney, Ill FOP Labor Council
- Dale Pierson, IUOE, Local 150 General Counsel
- Daniel J. Kaspar, Assistant Counsel, Nat'l Treasury Employees Union