Thursday, December 14, 2017
Congratulations to Melissa Hart, who was just named to the Colorado Supreme Court! Apparently, she will continue to teach, which I'm sure her colleagues and students at University of Colorado will be happy to hear.
Well, that didn't take long. A mere day after our post about possible changes from the new NLRB, the Board has announced two major rule reversals.
The second case announced, as will surprise exactly no one, reverses the NLRB's Browning-Ferris decision on joint employer status. In Hy-Brand Industrial, the NLRB returned to the pre-Browning standard, under which joint employment is found only if actual control is exercised in a "direct and immediate" manner that is not limited or routine. You can see our previous coverage of the standards here. This has been a major issue for many employers, such as franchise businesses, and the subject of a lot of activity in Congress, so this move was expected.
The first case announced reversed a 2004 decision, Lutheran Heritage, which concluded that an employer's facially neutral workplace rule will be unlawful if employees would reasonably construe it as prohibiting the exercise of NLRA, Section 7 rights. Under the new case, The Boeing Co., the NLRB will only find facially neutral rules to be unlawful by weighing the nature and extent of the potential impact of the rule on NLRA rights, and the employer's legitimate justifications for implementing the rule. The Board also emphasized that an otherwise lawful rule could still be applied in an unlawful fashion. To provide more clarity, the Board is establishing three categories; according to the NLRB announcement:
Wednesday, December 13, 2017
Charlotte Garden (Seattle) has just posted on Take Care Blog that there were plenty of red flags at Judge Kozinski's confirmation hearings -- and that the Senate ignored them. She provides extensive excerpts from the Senate record, then concludes:
It is impossible not to read the Senate record on Kozinski’s time at the MSPB as a precursor to last week’s Post story and subsequent reports about his behavior. That is, disturbing reports about Judge Kozinski are not just an open secret – they are also a matter of congressional record.
With the benefit of hindsight, we should ask whether the Senate failed in executing its responsibility to assess nominees’ temperament to serve, thereby failing the clerks and other employees who have now come forward reporting abusive behavior. There is a lesson here: The Senate’s confirmation process should be attentive to warning signs about nominees’ managerial temperaments; if a nominee’s track record shows a pattern of abusive intra-office behavior, the Senate should not confirm.
Tuesday, December 12, 2017
Diane Ring (Boston College) and Shu-Yi Oei (Boston College) have a fascinating new post which is now available at onlabor. The post examines some of the many workplace implications and distortions of the tax-reform bills in the house and senate. Tax issues obviously pervade employment law, and the proposed changes will undoubtedly have important implications for both employers and workers. Professors Ring and Oei do a superb job in this post of examining these issues and explaining them for us. The two-part post is available here and here.
With the new Republican majority at the NLRB, changes from the prior Board were to be expected and now we're beginning to see that pay out. For instance, yesterday, by a 3-2 vote, the NLRB flipped its policy on settlements yet again. Last year, in USPS, the Board concluded that ALJs should accept a proposed settlement over the General Counsel's and charging party's objections only if the offer provided a full remedy for all alleged complaints. In Presbyterian Shadyside, the new Board reversed USPS and will now allow ALJs to accept settlement proposals over the other parties' objections if the settlement is viewed as reasonable, using the Independent Stave factors.
Today, the Board also raises the prospect of reversing the new representation rules that were so contentious the earlier half of this decade. The Board released a request for information regarding these rules. In addition to what sounds like a fair amount of sniping among the Board members, the request asks the following three questions: "the Board has an interest in reviewing the Election Rule to evaluate whether the Rule should be
(1) retained without change,
(2) retained with modifications, or
(3) rescinded, possibly while making changes to the prior Election Regulations that were in place before the Rule’s adoption.
Regarding these questions, the Board believes it will be helpful to solicit and consider public responses to this request for information."
For a description of the new rules and how they changed the process, check out my article on the topic, NLRB Elections: Ambush or Anticlimax?, 64 Emory L.J. 1647 (2015). As I described, the new rules were actually a fairly modest change to procures. NLRB statistics following their implementation support that conclusion as well. The election timeline was shortened some, but the new rules seem to have no appreciable effect on election outcomes. Given all of this, it will be interesting to see if the Board feels like this is an issue worth the time to tackle.
Monday, December 11, 2017
The Supreme Court denied cert today in Evans v. Georgia Reg'l Hosp. (ScotusBlog page); Lambda Legal had filed a cert petition from the Eleventh Circuit's decision. The Eleventh Circuit had held that it was bound by prior circuit authority that Title VII did not prohibit sexual orientation discrimination, and the full court had denied rehearing en banc. There is something of a circuit split on the issue. The Seventh Circuit, en banc in Hively v. Ivy Tech, held that Title VII did prohibit sexual orientation discrimination, and the Second Circuit is considering the issue en banc right now (here's the audio of the argument).
It's hard to read too much into the denial--it's entirely possible that the Court didn't take the case because the respondent took no position on either the grant of cert or the Eleventh Circuit's opinion, arguing that it had never been served with process. It had not participated in the case below. The case file is a good preview of the stakes, though. The lineup of amici had 76 major companies and several states urging the Court to take cert. To read more, see this Daily Report posting by Marcia Coyle and the ScotusBlog posting by Amy Howe.
Friday, December 8, 2017
Stephanie Bornstein (Florida) has just posted to SSRN her article Equal Work (forthcoming Maryland L. Rev.), which discusses how existing law allows both racial and gender pay gaps to persist. Here's the abstract:
Most Americans have heard of the gender pay gap and the statistic that, today, women earn on average 80 cents to every dollar men earn. Far less discussed, there is an even greater racial pay gap. Black and Latino men average only 71 cents to the dollar of white men. Compounding these gaps is the “polluting” impact of status characteristics on pay: as women and racial minorities enter occupations formerly dominated by white men, the pay for those occupations goes down. Improvement in the gender pay gap has been stalled for nearly two decades; the racial pay gap is actually worse than it was 35 years ago. Both pay gaps exacerbate growing income inequality in the United States. While demographic differences contribute to pay disparities (in hours worked and childbearing time off for women and in education and experience levels for minority workers), economists now find that fully one-third to one-half of both pay gaps is caused by two other factors: occupational segregation—meaning the unequal distribution of women and racial minorities across job fields—and discrimination. To what extent are these factors due to stereotypes about the value of women and racial minorities’ work, and what, if anything, can antidiscrimination law do to respond?
Monday, December 4, 2017
Save the Date!!!
The Thirteenth Annual Colloquium On Scholarship in Employment and Labor Law (COSELL) will be held at the University of South Carolina School of Law in Columbia, South Carolina. We are celebrating our move into a completely new legal facility, and look forward to you joining us for the conference on September 27th-September 29th, 2018. Information on registering and participating in the conference will follow shortly. Some general information on travel/airports is available here, and information on the conference hotel (The Inn at USC) is available here.
More details to follow soon, we look forward to seeing everyone in South Carolina next fall!
Wednesday, November 29, 2017
In the flood of harassment news the last few weeks, one of the themes that has emerged is that the guys involved got away with bad behavior for a really long time. For at least some of them, the lecherous behavior was something of an open secret in their workplaces or communities. There are a number of reasons that this conduct went on for so long, but one that isn't being addressed as much is how the legal threshold for actionable harassment leaves room for so much bad conduct. This is why the fantastic editorial in the New York Times, Boss Grab your Breasts? That's Not (Legally) Harassment by Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) is so important and timely.
Sandra and Suja trace the development of the severe or pervasive standard the Court adopted in Meritor Savings Bank v. Vinson, through the lower courts, noting the margins--what is clearly actionable and what is clearly inactionable--leave a large middle ground. In that middle ground, courts lean towards dismissal. This is just one more important way that Sandra and Suja are documenting how the legal rules governing discrimination claims have moved to systematically disadvantage workers.
Wednesday, November 15, 2017
Deborah Widiss (Indiana) has just posted a new book chapter on SSRN: Addressing the Workplace Effects of Intimate Partner Violence, in Violence and Abuse in the Workplace (Cary Cooper & Ronald Burke eds., forthcoming 2018).
Here's the abstract:
Although most physical violence against intimate partners occurs in the home, intimate partner violence (IPV) also affects workplaces. It often causes absences, productivity losses, and employee turnover; less commonly, perpetrators physically attack their intimate partners at work. This book chapter discusses best practices for decreasing workplace disruptions and the risk of workplace violence caused by IPV, and it explains legal standards that may apply. The primary focus is the United States, but research and legislation from other countries is also included. It also identifies websites that provide research, model policies, and other tools for organizations seeking to address IPV, including resources regarding employment of perpetrators of IPV.
This topic feels especially salient given the role of family violence in recent high profile shootings. This chapter looks like a helpful resource, and I'm looking forward to the book's release.
Sunday, November 12, 2017
Shu-Yi Oei and Diane Ring (both Boston College) have just posted on Tax Prof Blog The Senate Tax Bill and the Battles Over Worker Classification. Their post is extensive and detailed and well worth a full read. Here's a quick summary; the take-away is in bold at the bottom:
Senate Republicans released their version of tax reform legislation on Thursday, November 9. The legislative language is not available yet, but the Description of the Chairman’s Mark (prepared by the Joint Committee on Taxation) suggests that one of the key provisions in the bill will clarify the treatment of workers as independent contractors by providing a safe harbor that guarantees such treatment. The JCT-prepared description tracks the contents of the so-called “NEW GIG Act” proposed legislations introduced by Congressman Tom Rice (R-S.C.) in the House and Senator John Thune (R-S.D.) in the Senate in October and July 2017, respectively. “NEW GIG” is short for the “New Economy Works to Guarantee Independence and Growth (NEW GIG) Act.” But notably, and as we further discuss below, the legislation is not limited in its application to gig or sharing economy workers.
Assuming the Senate Bill adopts the basic parameters of the NEW GIG proposed legislation — which looks to be the case based on the JCT-prepared description — we have some concerns. In brief, this legislation purports to simply “clarify” the treatment of workers as independent contractors and to make life easier for workers by introducing a new 1099 reporting threshold and a new withholding obligation. But the legislation carries potentially important ramifications for broader fights over worker classification that are raging in the labor and employment law area. Despite possibly alleviating tax-related confusion and reducing the likelihood of under-withholding, we worry that there are quite a few underappreciated non-tax hazards for workers if these provisions go through.
The legislation (assuming the Senate Bill more or less tracks the NEW GIG Act language) purports to achieve such “clarification” of worker classification status by [, among other things, introducing] a safe harbor “which, if satisfied, would ensure that the worker (service provider) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer.”...
At first blush, this legislation looks like it does good things for workers by clarifying their tax treatment, providing peace of mind, lowering previously unclear information reporting thresholds, and solving some of their estimated tax/mis-withholding issues.... The problem is that it’s not just about tax....
Our worry is that tax clarification of independent contractor status is a strategic step designed to win this broader (non-tax) regulatory war over worker classification. The risk is that “clarifying” the independent contractor status of workers for tax purposes through the introduction of an easy-to-meet safe harbor risks influencing and tilting the worker classification battle that is occurring in labor and employment law. While determinations of independent contractor status in other areas are theoretically independent from the tax determination, clarification on the tax side may help create presumptions elsewhere that independent contractor classification is normatively correct. While the precise legal tests governing worker classification differ across areas — we have, for example, the common law agency test, the ABC test, the economic realities test, and the IRS 20-factor test — the tests have elements in common: They all examine to some degree the nature of the relationship between the business and the worker, and they all pay attention to the control exercised by the business over the worker. If one field decides the classification question a certain way, there is likely to be some reverberation for the analysis in other fields.
Our specific concern is that “forced clarity” in tax can tilt the direction of the worker classification debate in a way desired by the platform businesses, industry lobbyists and the legislation’s supporters....
Friday, November 10, 2017
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. The Forum will feature five presenters (chosen from over 50 submissions):
Age, Law, and Egalitarianism
Alexander Boni-Saenz, Assistant Professor of Law, Chicago-Kent Law
Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection
Jasmine Gonzales Rose, Assistant Professor of Law, University of Pittsburgh Law
Colorable Claims of Discrimination
Vinay Harpalani, Associate Professor of Law, Savannah Law School
Scapegoating Abortion Rights: The Conservative Revolution and the Economic
Decline of the Working Class
Yvonne Lindgren, Visiting Professor of Law, University of San Francisco
Public Labor Unions as Democracy Facilitators for the Working Class
Courtlyn Roser-Jones, Hastie Fellow, University of Wisconsin Law School
The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. Financial support is provided by the Haas Institute for a Fair and Inclusive Society at UC Berkeley, the UC Davis School of Law, and the UC Irvine School of Law.
Comment and critique will be provided by the following scholars:
Khiara Bridges, Boston University Law
Catherine Fisk, Berkeley Law
Jonathan Glater, UC Irvine Law
Tristin Green, University of San Francisco Law
Ariela Gross, USC Law
Trina Jones, Duke Law
Osagie Obasogie, Berkeley Public Health
Angela Onwuachi-Willig, Berkeley Law
Leticia Saucedo, UC Davis Law
Michael Waterstone, Loyola-Los Angeles Law
We will also hold a panel discussion on Producing Scholarship in Equality Law with the following panelists participating:
Kathy Abrams, Berkeley Law
Catherine Albiston, Berkeley Law
Camille Gear Rich, USC Law
Vicky Plaut, Berkeley Law
Russell Robinson, Berkeley Law
Bertrall Ross, Berkeley Law
Jonathan Simon, Berkeley Law
Thursday, November 9, 2017
The EEOC announced earlier this month that it will be offering a new on-line portal that will allow members of the public to file discrimination charges. The portal will further allow individuals to engage in a number of other activities related to the discrimination charge. From the press release:
"The new system enables individuals to digitally sign and file a charge prepared by the EEOC for them. Once an individual files a charge, he or she can use the EEOC Public Portal to provide and update contact information, agree to mediate the charge, upload documents to his or her charge file, receive documents and messages related to the charge from the agency and check on the status of his or her charge. These features are available for newly filed charges and charges that were filed on or after Jan. 1, 2016 that are in investigation or mediation."
The portal has already been up-and-running as a pilot program in five EEOC offices. The success of that pilot program, combined with a few refinements, allowed the launch of the portal nationwide.
Thursday, November 2, 2017
Arthur Pearlstein (FMCS) sends word that FMCS is ...
participating in the production and program of the Labor and Employment Relations Association (LERA) 70th Annual Meeting, June 14-17, 2018, in Baltimore, MD at the Hilton Baltimore, with the theme “Shaping the Future of Work: Challenges, Opportunities and New Models.” Conference organizers and the program committee have issued a call for proposals for papers, symposia, panels, workshops, posters, skill-building debates, roundtable discussions, and other formats for the conference program. The deadline for conference proposals is fast approaching. It is Nov. 15, 2017.
According to organizers, the conference will feature more than 80 workshops, sessions, and events where more than 250 speakers will present. The conference is intended to provide practical workshops, debates on the latest research in labor and employment relations. Attendees will hear from experts on how their companies, organizations, and unions have successfully navigated workplace issues critical to their success.
Melissa Hart (Colorado) sends word that the Berkeley Journal of Employment and Labor Law is calling for law review articles for a special symposium issue commemorating the 50th anniversary of the ADEA. The Symposium, titled "The Age Discrimination in Employment Act at 50: Silver Anniversary of Midlife Crisis?", will take place November 17th, 2017.
First drafts of papers should be submitted by March 15th, 2018. Once accepted, authors will have until August 10th, 2018 to submit a final draft. The Journal's editorial staff will then work with authors to edit the article throughout late summer and fall. BJELL's selection team will use the following criteria to select papers:
- Relevance to the ADEA or age discrimination generally
- Originality/novelty of claims, analysis, or argument
- Quality of analysis and thought
- Potential to be useful to practitioners, the development of academic dialogue, and/or policy advocacy
- Degree of completeness (papers should be roughly 10,000-20,000 words with strong footnote source support)
Wednesday, November 1, 2017
Congratulations to Paul Harpur (U. Queensland/Beirne Law) on the publication earlier this year by Cambridge University Press of his book Discrimination, Copyright & Inequality. The book analyses the interaction between anti-discrimination and copyright laws, in the international human rights and copyright jurisdictions, as well as in the national jurisdictions in Australia, Canada, the UK and USA. This work builds on international and domestic notions of digital equality and rights to access information. The core thesis of this monograph is that technology now creates the possibility that everyone in the world, regardless of their abilities or disabilities, should be able to access the written word.
Here's the publisher's description:
Tuesday, October 24, 2017
What do unions do for regulation? That's the subject of Alison Morantz's recent and timely review of the research literature: "What Unions Do for Regulation," Annual Review of Law and Social Science 13 (2017): 515-534. Here's the abstract:
The question of how organized labor affects the content, enforcement, and outcomes of regulation is especially timely in an era in which protective laws and regulations are being scaled back or minimally enforced and union membership is in decline. This article surveys literature from a wide array of regulatory domains—antidiscrimination, environmental protection, product quality, corporate governance, law enforcement, tax compliance, minimum wage and overtime protection, and occupational safety and health—in an effort to identify common findings on what unions do for regulation. Literature on the topic has taken up five questions: how labor unions affect the passage of protective laws and regulations; how they affect the outcomes that regulators target; how they affect the intensity of regulatory enforcement; the specific activities and channels of influence they use to influence regulated outcomes; and the role they play in self-regulation. Drawing on empirical literature from the domains listed, I review and analyze literature on each of these questions and offer several conclusions and suggestions for future research.
Morantz's main conclusion: There's a lot of support in the research literature for thinking that, "in most contexts, unions' tendency to strengthen workers' collective voice and mitigate market imperfections predominates their tendency to exert monopoly power and engage in economic rent-seeking." The best evidence of this comes from studies of how unionization strongly correlates with lower rates of serious and fatal workplace injuries. Some prior research also shows that unions tend to lower overall wage dispersion, which may indirectly reduce pay discrimination against women and racial minorities.
Congratulations and kudos to Suja Thomas (Illinois) and David Lopez (EEOC General Counsel) on their article published yesterday in the San Francisco Chronicle on the persistence of sexual harassment in the workplace. Here's an excerpt; the full article is at Why Judges Routinely Dismiss Sexual Harassment Cases:
The scandals involving Harvey Weinstein, Silicon Valley and Fox News have shone a spotlight on corporate tolerance of sexual harassment by executives. The U.S. Supreme Court recognized people could sue for such harassment more than 30 years ago. But at least 25 percent of women say that they are still harassed in the workplace. So, why does sexual harassment persist? A surprising part of the story lies with federal judges. Despite coverage under the law, when an employee alleges sexual harassment, a judge will likely dismiss the case.
Let’s look at the facts of some dismissed cases: co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands.
In deciding whether to dismiss a case, a judge examines the paper records of the evidence — a written account of what the witnesses will say and relevant documents. Using this information, if the judge thinks a reasonable jury could not find for the employee, then the case is dismissed. When employers request dismissal of discrimination claims, including harassment claims, more than 70 percent are dismissed in whole or in part, according to a 2007 federal study.
This high dismissal rate should give us pause to consider whether judges are making the right decisions. Judges are not supposed to dismiss cases based on their own opinions of the evidence. But, their own opinions are all they have, and a judge’s opinion may differ from a jury’s.
Sunday, October 22, 2017
Congratulations to Minna Kotkin (Brooklyn) on her fine article in today's Washington Post on how confidentiality clauses in settlement agreements undermine the enforcement of Title VII's prohibition of sexual harassment. Here's an excerpt:
A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium. Recent revelations about Bill O’Reilly, Roger Ailes and Harvey Weinstein show that they confidentially settled harassment claims in the millions of dollars over decades, using legal maneuvers to keep their conduct under the radar. How common is this?
Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.
A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.
For the entire article, see How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.
Wednesday, October 18, 2017
Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark.
The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.
First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.
Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.
Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.