Friday, February 5, 2016
[Employers often unilaterally alter the terms of at-will employment,] often without advance notice. To date, however, neither courts nor commentators have holistically considered this problem of “midterm modifications” - contractual documents imposed post-hire on implicit or explicit threat of termination. Bringing together the law of noncompetes, arbitration agreements, and employee handbooks, this Article calls for a universal reasonable notice rule for all midterm modifications. Under this rule, courts would enforce midterm modifications only ... where the employer provides enough advance notice to allow the employee time, not only to meaningfully consider the proposed change, but also to compare and secure alternate work. The Article justifies this move [on the basis of] good faith. Procedural good faith means that the employer must act fairly in carrying out discretionary modifications otherwise immune from substantive review. An employer’s choice to impose new terms with immediate effect precludes an employee from exercising what is often his or her only form of bargaining power - the ability to convincingly threaten to leave.
A belated but heartfelt congratulations to Scott Bauries (Kentucky), who last week was voted up for full professorship. Scott's colleagues at Kentucky are extraordinarily lucky to have him a member of their faculty, and I am equally lucky to have Scott as a friend.
As we are well aware, breastfeeding in the workplace continues to be a controversial employment law issue. Recent case law and regulations on the topic have helped to provide some guidance on this issue. The United States is not alone in recent attempts to address this topic. A fascinating article in the New York Times looks at a recent move to permit breastfeeding for members of the Australian Parliament. From the article:
"The rule change in the House of Representatives — where 40 of the 150 members are women — on the first sitting day of the year means that lawmakers can now bring their babies into the chamber. Previously children were confined to the public galleries or offices."
It is easy to forget that other countries around the world sometimes struggle with the same employment issues that we face in this country, and this article serves as an important reminder.
Mitch Rubinstein reports over at Adjunct Prof Blog that a federal judge in Louisville, Kentucky has struck on NLRA preemption grounds a Hardin County, Kentucky ordinance purporting to establish the county as a right-to-work county. The judge found that the NLRA Section 14(b) permits "States and Territories" -- not subdivisions thereof -- to enact right-to-work laws. The case is UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016).
Thursday, February 4, 2016
Lise Gelernter (SUNY-Buffalo) sends word of a recent Fourth Circuit consumer arbitration decision with important implications for employment arbitration and the waiver of substantive rights through arbitration generally. Apart from the second paragraph below, which I added, what follows in entirely Lise's analysis:
A recent Fourth Circuit consumer arbitration decision has an interesting discussion on arbitration agreement enforceability that has implications for the employment and labor arbitration arenas. Hayes v. Delbert Services, Docket No. 15-1170 (4th Cir. 2/2/16).
Western Sky was an online lender owned by Martin Webb. Webb was a member of the Cheyenne River Sioux Tribe, and Western Sky's offices were located on the Cheyenne River Indian Reservation in South Dakota. From its base on the Reservation, Western Sky issued payday loans to consumers across the country. Named Plaintiff James Hayes took a loan from Western Sky for about $2500 and an annual interest rate of 140% . Over the four-year life of Hayes's loan he would have paid more than $14,000. Western Sky all but conceded in the litigation that its loan practices violated a wide variety of federal and state laws.
The loan agreements contained an arbitration clause that stated:
This Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation. By executing this Loan Agreement, you, the borrower, hereby acknowledge and consent to be bound to the terms of this Loan Agreement, consent to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court, and that no other state or federal law or regulation shall apply to this Loan Agreement, its enforcement or interpretation.
(emphasis added). The loan agreement also stated: “Neither this Agreement nor Lender is subject to the laws of any state of the United States of America.”
The loan agreement’s arbitration agreement required the arbitration of any disputes related to the loan or its servicing and stated that the arbitration proceedings shall be “conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.” The version of the agreement at issue in the case also provided that a party “shall have the right to select” the AAA or JAMS, or another group to “administer the arbitration.” The arbitration clauses also provided that the agreement
IS MADE PURSUANT TO A TRANSACTION INVOLVING THE INDIAN COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, AND SHALL BE GOVERNED BY THE LAW OF THE CHEYENNE RIVER SIOUX TRIBE. The arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation and the terms of this Agreement.
The agreement also prohibited the arbitrator from applying “any law other than the law of the Cheyenne River Sioux Tribe of Indians to this Agreement.”
After finding that Delbert was not a tribal entity, the Fourth Circuit ruled that the arbitration agreement was unenforceable because it “fails for the fundamental reason that it purports to renounce wholesale the application of any federal law to the plaintiffs’ federal claims.” The court recognized that the Supreme Court has found choice of law provisions and waivers of certain rights, such as class actions, to be enforceable, but distinguished the Delbert case because it violated the Supreme Court’s ruling that arbitration waivers that blocked “a party’s right to pursue statutory remedies” were not enforceable. The court stated: “a party may not underhandedly convert a choice of law clause into a choice of no law clause -- it may not flatly and categorically renounce the authority of the federal statutes to which it is and must remain subject.”
This appears to be a pretty extreme case of a waiver. In the employment and labor arena, the Fourth Circuit’s reasoning might have some play if there is an arbitration clause that appears to effectively waive all the rights of a party under an otherwise applicable law, such as Title VII or the FLSA. But the Fourth Circuit made it clear that it considers the Supreme Court’s decisions in ATT v. Concepcion and Italian Colors to limit that inquiry by embracing the enforceability of waivers of certain procedural or attendant rights, such as class actions, that merely make it more difficult or costly to pursue a federal remedy.
Monday, February 1, 2016
Roger Abrams (Northeastern) has just published The Labor Arbitration Workshop: An Experiential Approach (Carolina Academic Press, 2016). The book is a fascinating collection of (mostly) arbitration awards. An accompanying website contains simulations that can be used to develop lawyering skills. Here's the publisher's description:
Using these unique experiential materials, students explore the important role of alternative dispute resolution in the workplace. Using court and arbitration decisions as well as supplementary materials and problems, students discuss the role of the advocate, the relationship between arbitration and the judicial system, issues of arbitrability, evidence and procedure, as well as a variety of substantive contractual issues normally addressed in arbitration, such as seniority, fringe benefits, wages and hours, subcontracting and union security. In particular, the workshop focuses on "just cause" discharge and discipline cases. Using transcripts and simulations provided in a supplementary website, students draft an arbitration brief based on a transcript of a hearing and participate in an arbitration simulation using witnesses and documentary evidence.
Richard Kaplan (Illinois) has just posted on SSRN his chapter What Now? A Boomer's Baedeker for the Distribution Phase of Defined Contribution Retirement Plans (NYU Review of Employee Benefits and Executive Compensation, Chapter 4, 2015). Here's the abstract:
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
Saturday, January 30, 2016
In a highly controversial move, the President announced this week proposed new rules requiring private employers with over 100 employees to provide additional data to the EEOC on worker salary. The move could help provide more transparency on pay issues, thus reducing the likelihood of pay discrimination. The New York Times has a great summary of the issue here. The EEOC has also issued a press release on the rules, which states that:
"This proposal would add aggregate data on pay ranges and hours worked to the information collected, beginning with the September 2017 report. Proposed changes are available for inspection on the Federal Register website and will be officially published in the Federal Register on February 1, 2016. Members of the public have 60 days from that date April 1, 2016, to submit comments. . . The new pay data would provide EEOC and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. This pay data would allow EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination."
We will certainly follow this proposed rule, which could dramatically impact the field of pay discrimination.
Friday, January 29, 2016
The New York Law Journal reports a story about a restaurant group going the extra mile in trying to dig up dirt about a plaintiff in an employment discrimination suit. According to the story, the defendant served third party subpoenas on the plaintiff's former employers, seeking pretty much everything they had on the plaintiff's work record. To add a nice touch, the subpoenas were served on Christmas Eve.
In Henry v. Morgan's Hotel Group, the plaintiff's motion to quash was granted by Magistrate Judge Cott. First, the defendant failed to serve notice on the plaintiff before serving the subpoenas on the third parties, thus frustrating the plaintiff's opportunity to object before the third parties were notified. This created the real possibility of prejudice -- indeed, one of the former employers had produced the records before the court's decision on the motion to quash. Indeed, the mere service of the subpoena was found to be prejudicial to the plaintiff -- his concern that once and potentially future employers were effectively notified that plaintiff had filed a discrimination suit was legitimate.
To add insult to injury, the subpoenas were both overbroad as to what was to be produced and sought clearly irrelevant information. The defendant claimed that it needed the information to challenge plaintiff's credibility in his claim that he was an "exceptional waiter." The court found it not "remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue." The court did not that there was no evidence adduced about any misrepresentations that might justify an after acquired evidence defense.
Saturday, January 23, 2016
A few days ago, over 100 law professors (present company included) filed a petition with the NLRB to change its approach to captive audience meetings. Under the proposed rule, the NLRB would return to its prior policy of providing a union the opportunity to hold a meeting with employees if the employer does the same. This differs from the current approach, under which employers can hold as many captive audience meetings that it wants (up to 24 hours prior to the vote), without giving the union similar access to employees.
One-hundred and six (106) professors of labor law and employment relations have just filed an “interested person’s” petition with the National Labor Relations Board, the intent of which is to correct an unfair and undemocratic practice that American employers have long used to keep unions from winning NLRB elections. That practice is conducting what has come to be known as “captive-audience” meetings. These are anti-union talk sessions that management stages with employees on company premises during paid working time, with attendance compulsory and the union denied an equal opportunity to address those employees. It is a practice that employers tend to use almost reflexively whenever their employees are engaged in union organizing or seem likely to become so engaged. Such conduct was originally held to be a violation of the National Labor Relations Act, but that was changed in1953 by a Republican dominated Labor Board. Although the Board in 1966 commenced a reconsideration of that ruling, it never completed the process, deliberately leaving the matter open for change sometime in the future— which may now be about to happen. . . .
The petition points out that a similar rule has long prevailed for union elections on the airlines and railroads, which are covered by the Railway Labor Act, a similar yet different statute The National Mediation Board, which administers those elections, invalidates any election where captive-audience meetings have been held and the union loses, whereupon a new election is ordered. That practice has had a noticeable impact, for such meetings almost never occur during union-organizing campaigns on the airlines and railroads, and there have been very few instances of such violations. Petitioners assert that the absence of captive audiences in those industries might even be a significant factor—though certainly not the only factor—that accounts for the high rate of union membership—sixty-two percent—among airline and railroad employees; whereas it is less than seven percent among private-sector employees as a whole, a difference about which the public seems unaware.
image from eeoc.gov
EEOC General Counsel (and guest blogger) David Lopez sends along a couple of recent developments in the case law for the EEOC. First, following the Supreme Court's recent decision in Mach Mining, the lower court determined that the agency could proceed with its sex discrimination lawsuit against the company in the case. Second, the EEOC also recently settled a gender identity case that was pending against Deluxe Financial Services Corp. for $115,000 and an agreement that it would change its practices. From the agency's press release on the gender identity case:
"According to EEOC's complaint, Britney Austin was assigned the male sex at birth and presented as male when hired by the company. Ms. Austin performed her duties satisfactorily in the company's Phoenix offices throughout a lengthy tenure. However, after she informed her supervisor that she was transgender and began to present as a woman at work, Deluxe refused to let her use the women's restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her."
We appreciate the general counsel's office keeping us updated on these developments, and we will continue to follow these important issues.
-- Joe Seiner
Thursday, January 21, 2016
There has been a recent trend in the on-line news media of workers starting to organize. In an interesting development on this front, CNN Money reports that the Huffington Post will join this group as workers there have now unionized as well. From the CNN report: "The management of the site voluntarily recognized its employees' union, the Writers Guild of America, East. The bargaining unit will consist of 262 employees." This on-line media outlet represents the largest such media source to form a union.
-- Joe Seiner
Tuesday, January 19, 2016
Susan Bisom-Rapp (Thomas Jefferson) sends word of a conference at her school that will likely interest some of our readers:
Thomas Jefferson School of Law
Sixteenth Annual Women and the Law Conference
and Ruth Bader Ginsburg Lecture Series
Pursuing Excellence: Diversity in Higher Education
Friday February 5, 2016 9:00 a.m. – 5:00 p.m.
5.5. hours Elimination of Bias MCLE
Thomas Jefferson School of Law’s 16th Annual Women and the Law Conference, Pursuing Excellence: Diversity in Higher Education, will be held Friday, February 5, 2016 at Thomas Jefferson School of Law in San Diego, California.
This conference brings together leading academics, educators, institutional leaders, and policy makers to examine how diversity in institutions of higher education affects and is inspired by students, faculty, and leaders. The conference will highlight a number of critically important topics including facilitating educational access for undocumented students, challenges to developing and nurturing a diverse educational environment, the importance of training students in professional programs (including medicine and law) to serve diverse populations, and challenges to affirmative action ranging from Prop 209 to the current U.S. Supreme Court case Fisher v. University of Texas.
Professor Bryant Garth, Professor at UC Irvine School of Law and former Dean of Southwestern Law School and Indiana University School of Law, will deliver the Ruth Bader Ginsburg Lecture. He continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.
Other speakers include: Toni Atkins, Speaker of the California Assembly; Susan Bisom-Rapp, Professor of Law, Thomas Jefferson School of Law; Marisol Clark-Ibáñez, Professor of Sociology, Cal State University San Marcos; Youlonda Copeland-Morgan, Associate Vice Chancellor, Enrollment Management, UCLA; Meera E. Deo, Professor of Law, Thomas Jefferson School of Law; Adrian Gonzales, Interim Superintendent/President and Vice President of Student Services, Palomar Community College; Vallera Johnson, Administrative Law Judge; Catherine Lucey, Professor and Vice Dean for Education, UCSF School of Medicine; Mary Ann Mason, Professor of Law and Co-Director of the Center on Health, Economic, and Family Security, UC Berkeley; Linda Trinh Vo, Professor of Asian American Studies, UC Irvine; Shirley Weber, California Assemblywoman, Chair of the Assembly Select Committees on Higher Education and Campus Climate, former President of the San Diego Unified School District; and Susan Westerberg Prager, Dean, Southwestern Law School, former Dean UCLA School of Law, former Executive Director and CEO of AALS.
For additional information and registration, visit: http://www.tjsl.edu/conferences/wlc/2016.
Monday, January 18, 2016
The 11th Circuit on Thursday released Chavez v. Credit Nation Auto Sales, reversing a trial court's grant of summary judgment for the employer on a mixed-motive claim. The trial court held that a plaintiff in a mixed-motive case must prove pretext. The 11th Circuit disagreed, finding that mixed-motive analysis is a separate method of proof from the McDonnell Douglas/Burdine analysis, and that a plaintiff need not prove pretext in a mixed-motive case.
Jillian Weiss (photo above), who litigated the case for the plaintiff, writes to us:
As you may recall, I had an appeal before the 11th Circuit on the issue of standards in mixed motive cases. The Court has issued its opinion, and I thought you might be interested. It's attached. It was your blog's suggestion that Nassar would be important in making the case on mixed motive causation (from 4/24/14). It was. Here's what the Court said:
From pages 11-12: More recently, the Supreme Court has told us that “Section 2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, at __, 133 S. Ct. 2517, 2530 (2013) (emphasis added). “[B]ut-for causation is not the test”; rather, “[i]t suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Id. at 2523.
That quote came from our brief, which I put in there because I read your blog. Thanks! ... We appreciate your blog.
Sunday, January 17, 2016
A pretty interesting, and pro-employee, case out of the Eighth Circuit. Cuellar-Aguilar v. Deggeller Attractions, Inc. reversed a district court's dismissal of two claims against the employer -- a traveling carnival. One was that it failed to pay the workers, who were in the country on H-2B visas, the prevailing wage rate and the second was that it misreported on federal tax forms the wages it did pay.
The first claim was treated as a state contract claim and, although the workers lacked a formal contract so providing, federal regulations conditioned issuance of visas on the employer's paying the prevailing US wage rate for the region. For the court, hiring foreign workers was sufficient to find a contract under Arkansas law and the terms of that contract can be influenced by the law in effect at the time of formation, in this case the prevailing wage rate. The court even cited an Arkansas case that suggested that such background laws might trump an express agreement to the contrary, although that seems doubtful from a pure contracts perspective.
Even more interesting -- because potentially more broadly applicable -- was the second claim that the employer had underreported their income, presumably to reduce business and FICA liabilities.
The tax laws, 20 USC 7434, provide a cause of action against "any person willfully files a fraudulent information return with respect to payments purported to be made to any other person," and set liability as " an amount equal to the greater of $ 5,000 or the sum of actual damages," costs and attorneys fees (emphasis added).
While plaintiff apparently did not argue any actual harm, the court found a claim stated for the statutory damages. A little research suggests that this is a growing theory: although the cases asserting such claims are still relatively few, most have arisen in the last few years. And, while the claim in Deggeller was that the employer sought to avoid FICA by reporting less than it in fact paid, other 7434 suits have challenged the employer's issuance of a 1099 instead of a W-2, thus suggesting that the employee/independent contractor distinction can arise in yet another civil liability setting.
Friday, January 15, 2016
As we are all aware, there continues to be an enormous amount of controversy (and litigation) on the issue of whether Uber drivers are employees or independent contractors. While this question has a direct impact on wages under various state laws and the FLSA, there are also important questions regarding unionization under the NLRA. The Seattle Times reports that the city is the first in this country to expressly allow Uber drivers to unionize. From the report:
"Under the [city of Seattle's] ordinance, a taxi, for-hire or app-based vehicle-dispatch company will be required to provide the city with a list of its Seattle drivers. Then a nonprofit organization — most likely a union — will use the list to contact the drivers."
This is an important development on this issue and it will be interesting to see if other jurisdictions follow suit.
Tuesday, January 12, 2016
Gary Spitko (Santa Clara) has just posted on SSRN his new article (48 Connecticut Law Review 71-117 (2015)) A Reform Agenda Premised Upon the Reciprocal Relationship Between Anti-LGBT Bias in Role Model Occupations and the Bullying of LGBT Youth. Here's the abstract:
Employment discrimination in role model occupations on the basis of LGBT status has long been used systematically to define negatively the LGBT identity and to reinforce the associations between the non-LGBT majority and certain positive qualities, values, and institutions. This Article argues that a reciprocal relationship exists between such discrimination and the bullying of LGBT youth. This Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship. Part I demonstrates that anti-LGBT discrimination in role model occupations has been employed systematically to disassociate LGBT people from certain positive qualities and values and to maintain and strengthen the associations between these positive qualities and values and the non-LGBT majority as well as the institutions that the non-LGBT majority holds dear. One effect of such discrimination, as intended, is that known LGBT role models are removed from public visibility. This exclusion makes it more likely that young people will come to devalue LGBT people which, in turn, is likely to increase the prevalence of the bullying of LGBT youth. Part II reviews recent empirical studies that evidence that the bullying of LGBT youth is a widespread problem and that the consequences of this bullying can be profound and tragic. This Part also reviews empirical evidence that bullying in the workplace is a significant problem and that much of this workplace bullying targets LGBT people. This hostile environment, in turn, encourages LGBT workers to conceal their sexual orientation or gender identity. Thus, bullying is not only a consequence of the intentional exclusion of known LGBT people from role model occupations; bullying also furthers this exclusionary project. Finally, Part III considers in greater detail the mutually reinforcing relationship between employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. This Part then proposes a reform agenda grounded in an understanding of the interconnections between such discrimination and the bullying of LGBT youth.
The article grew out of a book that Gary has forthcoming from the University of Pennsylvania Press later this year: – “Anti-Gay Bias in Role Model Occupations.” The book argues that much employment discrimination against gay people is intended to disassociate gay people from certain positive qualities and values and to maintain and strengthen the association between these positive qualities and values and the heterosexual majority as well as the institutions that the heterosexual majority holds dear. The law review article considers the mutually reinforcing relationship between such employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. The Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship.
A very interesting post on SSRN by Benjamin Edelman, Michael Luca, and Dan Svorsky entitled Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment. Here's the abstract:
Online marketplaces increasingly choose to reduce the anonymity of buyers and sellers in order to facilitate trust. We demonstrate that this common market design choice results in an important unintended consequence: racial discrimination. In a field experiment on Airbnb, we find that requests from guests with distinctively African-American names are roughly 16% less likely to be accepted than identical guests with distinctively White names. The difference persists whether the host is African-American or White, male or female. The difference also persists whether the host shares the property with the guest or not, and whether the property is cheap or expensive. We validate our findings through observational data on hosts’ recent experiences with African-American guests, finding host behavior consistent with some, though not all, hosts discriminating. Finally, we find that discrimination is costly for hosts who indulge in it: hosts who reject African-American guests are able to find a replacement guest only 35% of the time. On the whole, our analysis suggests a need for caution: while information can facilitate transactions, it also facilitates discrimination.
The quantification of the costs of owners for indulging their taste for discrimination is interesting, and suggestive of the difficulties of eradicating bias. Not only is the article a useful addition to the literature on bias in commercial transactions but it also serves as a caution to those who view internet-based applications as providing an important corrective. As the article suggests, Amazon and Ebay provide anonymity, which should prevent most kinds of discrimination. Airbnb, in contrast, provides sufficient information for each side in a transaction to know (or at least perceive) the race of the counterparty. It's not so clear to me how this applies -- or doesn't --to more serviced-based transactions, but it's worth keeping an eye on.
Monday, January 11, 2016
From Friend-of-Blog Jon Harkavy: "Today the Fourth Circuit decided in Bauer v. Lynch that a gender-normed physical fitness test for being a Special Agent of the FBI does not violate Title VII's sex discrimination prohibition. The published decision of the panel is attached and might present a cert-worthy issue but for the likelihood (which I have not researched) that there are no other circuits that have ruled otherwise."
We appreciate Jon sending along this case, which is attached here. The decision is one that is likely of great interest to readers of this blog, and addresses another question of gender stereotyping that continues to come up in the case law.
- Joe Seiner