Tuesday, September 12, 2017

Seiner's New Book On SCOTUS LEL

Seiner's bookA huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:

The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.

Congratulations, Joe!

rb

September 12, 2017 in Book Club, Employment Common Law, Employment Discrimination, Workplace Trends | Permalink | Comments (0)

Zelinsky on ERISA Preemption

ZelinskyEdward Zelinsky (Cardozo) has just published, at 34 Hoifstra JLEL 301 (2017), ERISA Preemption After Gobielle v. Liberty Mutual: Completing the Retrenchment of Shaw. Here's the take-away:

There were other courses which the Gobeille Court could have taken. I argued, for example, that the best construction of ERISA Section 514(a) is to treat that section as reversing the normal presumption against preemption and instead presuming preemption when ERISA plans are affected by state law.
Gobeille chose a different path, completing the sub silentio retrenchment of Shaw. Gobeille confirms that, going forward, Traveler’s more restrained approach to ERISA preemption prevails over Shaw’s “plain meaning” approach to section 514(a). This is important for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as state taxes as they apply to the investment trusts of ERISA-regulated retirement plans.

rb

September 12, 2017 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Monday, September 11, 2017

Briefing Paper on Mexican Labour Reform

MSN Mexico Labor ReformThanks to Tequila Brooks for passing along this information on recent labor reforms to Mexico's Constitution:

Canadian NGO Maquiladora Solidarity Network has published a great briefing Briefing Paper on recent labor reforms to Mexico's Constitution. The paper highlights what's at stake for labor justice reform and full realization of the rights to Freedom of Association and Collective Bargaining in Mexico - and provides a map to what has been accomplished so far and the road ahead for a complete transformation of Mexico's labor justice reform.

Some excerpts:

This briefing paper provides an overview of the process leading to the constitutional reform, an analysis of its content and possible implications, and an assessment of the issues surrounding the coming implementing legislation. The analysis is based on research and an in-depth consultation process carried out by the Maquila Solidarity Network (MSN) between February and May. That process included interviews with 16 Mexican and international labour rights experts from academia, the legal sector, trade unions, and civil society organizations, as well as other sectors.

By reforming Articles 107 and 123, the Mexican government moves actively toward honouring its commitment to workers, business and the international community to provide an impartial, unbiased, independent, and transparent labour justice system. If the reform and its implementing legislation bring all of the necessary safeguards into effect to address the problem of employer protection contracts, including the right for all union members to freely elect their leaders and to receive a hard copy of and vote on their collective bargaining agreements, they could bring Mexico’s legal framework more into compliance with the International Labour Organization’s (ILOs) fundamental Conventions 8710 and 9811 on freedom of association and the right to collectively bargain.

While the reform process is still underway, international brands, employers, trade unions, worker support groups, human rights organizations and the international community can continue to support the process by acknowledging progress so far and encouraging the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform and avoids the pitfalls described above. Pressure can be brought to bear to ensure the expeditious roll-out of the implementing legislation and to ensure that justice is brought to those who violate the laws in the future. They can also encourage the government to resolve outstanding conflicts, to cease registering newly signed employer protection contracts, and to ratify ILO Convention 98. Cross-sector outreach and coordination would be particularly helpful in advancing this work.

rb

September 11, 2017 in International & Comparative L.E.L. | Permalink | Comments (0)

Friday, September 8, 2017

11th Circuit: Employers must accommodate breastfeeding workers under Title VII

BreastfeedingThe Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.

The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue.  As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.

The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences." 

MM 

 

September 8, 2017 in Employment Discrimination, Worklife Issues | Permalink | Comments (0)

Wednesday, September 6, 2017

Selmi on Implicit Bias

IMG_0084

Friend of blog Michael Selmi (George Washington) has just posted on SSRN his fascinating new article, The Paradox of Implicit Bias and a Plea for a New Narrative.  This piece takes an innovative new look at the issue of implicit bias and discrimination. From the abstract:

"Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive and uncontrollable. What has been overlooked, however, and this is the paradox, is that labeling nearly all contemporary discrimination as implicit and unconscious is likely to place that behavior beyond legal reach. And it turns out that most of what is defined as implicit bias could just as easily be defined as explicit or conscious bias. This article, therefore, challenges the common narrative by questioning the unconscious nature of implicit bias, and showing that such bias is less pervasive and more controllable than typically asserted. A critical review of the IAT will also reveal that implicit bias is most relevant to snap judgments rather than the more common deliberative decisions the legal system addresses. Implicit bias can certainly influence conscious decisions but it rarely dictates them. I will also discuss a recent spate of cases rejecting the implicit bias model to demonstrate that there is a clear mismatch between the implicit bias narrative and our governing legal standards of proof. As a way of realigning the narrative, I will propose that we move away from a focus on the unconscious, and the IAT, to concentrate instead on field studies that document discrimination in real world settings. In addition, by shifting the discussion to how stereotyping, without reference to the unconscious, influences behavior and leads to discriminatory decisions we can return to familiar judicial terrain as courts have been adjudicating claims involving stereotyping for decades."

It is wonderful to see such a fresh new perspective on this topic, and I definitely recommend that you take a look at this article if you have the opportunity. 

- Joe Seiner 

September 6, 2017 | Permalink | Comments (0)

Tuesday, September 5, 2017

Protecting Migrant Workers from Workplace Injuries

TequilaTequila Brooks has just posted an essay over at Intlawgrrls on Making the human rights case for including compensation for workplace injuries in free trade agreements. Here's an excerpt:

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported. Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities.

...

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should. Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights. While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues. They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.

rb

September 5, 2017 in International & Comparative L.E.L., Workplace Safety | Permalink | Comments (0)

Thursday, August 31, 2017

Labor & Employment Academic Hiring

Courtesy of Prawfsblawg, the following schools are in the market this year for faculty in the labor and employment law area. Feel free to add any schools in the comments section.

School: University of Alabama

Information in spreadsheet contained in post

School: Brooklyn Law School

Chairs: Minor Myers (entry levels); Alex Stein (laterals)

Committee Members: Bill Araiza, Julian Arato, Miriam Baer, Jocelyn
Simonson (entry levels); Dana Brakman Reiser, Christopher Beauchamp,
Robin Effron (laterals)

Subject Areas: securities regulation and corporate law; academic success;
and potentially civil procedure, constitutional law, labor law, antitrust, and
torts

Communications: minor.myers@brooklaw.edu; alex.stein@brooklaw.edu

Number of positions: 2

Direct applications by email are welcome

School: University of Kansas School of Law

Chair: Lou Mulligan

Other Committee Members: Chris Drahozal, Laura Hines, Elizabeth Kronk-Warner

Subject Areas: We are particularly interested in evidence, but will consider other subject areas including: employment law, health law, real estate/commercial land use/housing law.

We are currently authorized to make one hire.

Applications should be made online at https://employment.ku.edu/academic/9594BR and should include cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.

The law school will participate in the AALS Recruitment Conference in D.C. November 2-4, 2017.

For further information, contact Professor Lou Mulligan, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS 66045-7608, 785-864-9219, lumen@ku.edu

School: University of Richmond School of Law

Chair: Jessica Erickson

Other Committee Members: Jim Gibson, Hank Chambers, Carol Brown, Andy Spalding, and Allison Tait

Subject areas: Our primary areas of interest are employment law and corporate & securities law. We are also open to candidates in other areas, including critical theory, torts, professional responsibility, property law, and civil procedure.

Packets: We are happy to receive individualized expressions of interest from candidates via email.

Communication: You can email lawfacultyapp@richmond.edu.

Positions available: We have three open positions, and we are focused primarily on entry-level or junior lateral candidates.

School: The Wharton School


Chair: William Laufer
Committee: Eric Orts, Diana Robertson, David Zaring
Subject Areas: From the announcement: Applicants must have a demonstrated research interest in an area of law relevant to the Wharton School’s business education and research missions. Examples of such fields include, without limitation, corporate law, employment and labor law, financial regulation, securities regulation, and global trade and investment law.
Communications: lgstrecruiting@wharton.upenn.edu, apply through https://facultyrecruiting.wharton.upenn.edu/ApplicationPage.aspx?form_id=30088

-Jeff Hirsch

August 31, 2017 in Faculty Moves, Faculty News | Permalink | Comments (0)

New Labor Code for France?

The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:

  • Allows small employers to bargain directly with employees;
  • Creates bigger bargaining units at a workplace; 
  • Increases severance pay;
  • Lowers cap on wrongful dismissal awards;
  • Lowers statute of limitations on wrongful dismissal claims; and
  • Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.

I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.

In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.

-Jeff Hirsch

August 31, 2017 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

Wednesday, August 30, 2017

Equal Pay Rule Rescinded

In an interesting move, the current administration appears to be rescinding the new rule on pay transparency that was rolled out during the Obama administration.  We had blogged about that new rule here.  The rule was to require employers with 100 or more employees to report certain wage and demographic data to the EEOC.  From Newsweek:

"The White House, with the backing of Ivanka Trump, will end an Obama-era policy that would have required business owners to document how much they pay their workers alongside their gender, race and ethnicity. . . The Trump administration is scrapping the scheme, which was due to come into force in the spring this year, on the basis that it will be a burden to employers."

It is not surprising to see this rule rescinded under the current administration, and we will continue to follow other changes as they arise.

- Joe Seiner

August 30, 2017 | Permalink | Comments (0)

Saturday, August 26, 2017

Harkavy's Annual Review of SCOTUS Employment Law

HarkavyJonathan Harkavy (Patterson Harkavy) has posted on SSRN his annual annual well-received review of Supreme Court decisions that relate to employment. Here is his 2017 Supreme Court Commentary: Employment Law.

rb

August 26, 2017 in Employment Common Law | Permalink | Comments (0)

Friday, August 25, 2017

Greene on Catastrophe Mgmt.: Splitting Hairs

Greene-WendyCongratulations to our friend Wendy Greene (visiting at Iowa), whose most recent "hair piece" has just been published by the Miami Law Review: Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions. From the abstract:

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.

This article is a great addition to Wendy's prior work and the work of others on how cultural norms of white femininity burden Black women. Wendy's work, along with the work of several other scholars, had been cited by the Eleventh Circuit in the case in a discussion about whether cultural or behavioral aspects of identity ought to be part of what Title VII protects. I can't wait to read this.

MM

August 25, 2017 in Employment Discrimination | Permalink | Comments (0)

Tuesday, August 22, 2017

Bornstein on Discrimination

Bornstein-Photo-June-2016-Web

Friend-of-Blog Stephanie Bornstein has just published her great article, Reckless Discrimination, in the California Law Review.  From the abstract:

"If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination — a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.

In doing so, the Article seeks to revive the importance of social science research on bias — research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII."

As many of you will recall, this article was selected as a winner of the 2017 Southeastern Association of Law Schools (SEALS) Call for Papers competition.  Definitely take a look at this paper if  you have the chance.

-- Joe Seiner

August 22, 2017 | Permalink | Comments (0)

Thursday, August 17, 2017

Corbin on Government Employees and Religion

Caroline%20Mala%20Corbin

Friend-of-Blog Caroline Mala Corbin (Miami) has just posted on SSRN a wonderful new article on the intersection of government employees and religion.  From the Abstract of "Government Employee Religion":

"Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine.

Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other."

Congratulations to Caroline on this great piece, and I hope that you will all add it to your end-of-summer reading list!

- Joe Seiner

August 17, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Hacked Employment Law

AlexanderTippettCharlotte Alexander (Georgia State) and Liz Tippett (Oregon) have just posted on SSRN their article (forthcoming Missouri L. Rev.) The Hacking of Employment Law. Here's the abstract of this timely (pun intended!) article:

Employers can use software in ways that erode employment law, through noncompliance and avoidance. The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship. Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin. Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law. However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided. Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market. Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few. The result is a weakened employment law regime, where legal rules struggle to keep up with employers’ software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach. We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.

rb

August 14, 2017 in Employment Common Law, Scholarship, Wage & Hour | Permalink | Comments (0)

Firing Nazis

CharlottesvilleDavid Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist?  The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.

Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But

[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.

That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.

rb

 

August 14, 2017 in Employment Discrimination, Labor and Employment News, Public Employment Law, Religion, Workplace Trends | Permalink | Comments (2)

Friday, August 11, 2017

COSELL Registration Closing ... Register Now!

TamuMichael Green (TAMU Law) sends this update of the registration deadline for the upcoming COSELL conference:

This is a final notice about registration for the 12th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) to be held at Texas A&M University School of Law September 14-16, 2017. If you have not registered, please do so as soon as possible as the deadline for registration is August 16, 2017. Please go to the following website page to register and find additional information about the COSELL conference: http://law.tamu.edu/cosell or http://law.tamu.edu/faculty-staff/news-events/conferences-and-symposia/cosell.

Although we have reserved a block of hotel rooms at the Sheraton, that block is getting close to being full. And although we have listed a number of other hotels in the area, it is most convenient to be at the Sheraton, which is right next door to the law school where most activities will occur. Also, we are discovering that if you are trying to stay an extra day after the conference ends, with check-out on September 17th, even the Sheraton is no longer able to accommodate that request and a number of other hotels seem booked on the September 17th date as well.

Again, we suggest you register by the August 16 deadline and make your hotel reservations as soon as you can if you have not already done so. Once registration closes on August 16, we will put together the program based upon your submissions. As previously noted, there may be publication opportunities with the Texas A&M Law Review or the Employee Rights and Employment Policy Journal for some of the papers presented at the conference. We look forward to seeing you at the 12th Annual COSELL. Do not hesitate to contact me at mzgreen@law.tamu.edu or 817-212-4140 if you have any questions.

rb

August 11, 2017 in Conferences & Colloquia | Permalink | Comments (0)

Herbert & Freeman on the Taylor Law at 50

Herbert Josh-freemanBill Hebert (Hunter College) and Joshua Freeman (Queens College and CUNY Graduate Center) appeared on New York Public Radio's Brian Lehrer Program on Wednesday to discuss New York's public sector collective bargaining law, which is celebrating its 50th anniversary on September 1, 1967. The segment is tied with a program that will be taking place at Hunter College's Roosevelt House Public Police Institute in Manhattan on September 26. The program is being co-sponsored by Roosevelt House, the National Center for the Study of Collective Bargaining in Higher Education and the Professions, and the Joseph S. Murphy Institute for Worker Education and Labor Labor Studies. Other participants in the Taylor Law program will be Marty Malin, Joe McCartin, Kim Philips-Fein and Marilyn Sneiderman.

rb

August 11, 2017 in Labor Law | Permalink | Comments (1)

Wednesday, August 9, 2017

Bisom-Rapp, Bodie Cited in WSJ Article Re: Fired Google Engineer

GYesterday, Jeff posted on Google Engineer Files NLRB Complaint Regarding Post-Memo Termination. Today's Wall Street Journal quotes Susan Bisom-Rapp (TJSL) and Matt Bodie (SLU) extensively on the viability of the engineer's claims. Here's an excerpt:

Thomas Jefferson School of Law Prof. Susan Bisom-Rapp, who researches employment discrimination law, said while she disagreed with Mr. Damore’s views, she could envision potential legal arguments he could make to invoke the NLRA.

That Mr. Damore’s letter doesn’t appear to be drafted in concert with other Google employees doesn’t in itself mean the law cannot be invoked. Protections can be triggered by a single employee trying to rally colleagues around a wider workplace issue.

Mr. Damore could try to argue that he’s “protected in expressing himself in an effort to engage in dialogue with co-workers about Google’s diversity efforts,” said Prof. Bisom-Rapp.

However, “an employee gripe or complaint standing alone, without that call to fellow employees to gather together, is not enough,” said Julie Totten, an employment defense lawyer with Orrick, Herrington & Sutcliffe LLP in Sacramento.

Labor law also forbids employers from firing a worker for alleging an unfair labor practice, making the timing of Mr. Damore’s formal complaint potentially relevant in a legal dispute, said Prof. Bisom-Rapp.

Legal experts said federal antidiscrimination law could offer Mr. Damore another possible, albeit narrow, legal avenue. His memo suggested Google is engaging in reverse discrimination, citing “special treatment for ’diversity’ candidates.” Title VII of the 1964 Civil Rights Act bans employers from retaliating against workers for complaining about unlawful workplace discrimination.

“You would have to show what Google is doing is illegal. That would be difficult,” said Prof. Matt Bodie, an employment law scholar at Saint Louis University Law School and a former NLRB field attorney.

The NLRB generally doesn’t impose remedies beyond reinstatement of employment and back pay, Mr. Bodie said.

The full WSJ article is available at Jacob Gershman & Sara Randazzo, Fired Engineer Likely to Face Obstacles in Challenging Google, WSJ 8/9/17.

August 9, 2017 in Employment Discrimination, Faculty News, Labor Law | Permalink | Comments (1)

Tuesday, August 8, 2017

Google Engineer Files NLRB Complaint Regarding Post-Memo Termination

This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.

Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.

All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.

-Jeff Hirsch

August 8, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

You're [Not] Fired!

NotYesterday's Wall Street Journal reports that the U.S. has hit a historical low point for firings and layoffs:

Americans are less likely to be laid off than at any point in at least 50 years. For every 10,000 people in the workforce, 66 claimed new unemployment benefits in July, trending at the lowest point on record going back to 1967. The previous low point, 83 per 10,000, was touched in April 2000, at the height of a tech boom. Separate Labor Department data shows the rate of layoffs and other discharges as a share of total employment this year is at the lowest level on records back to 2000.

The steep fall in layoffs is mainly a result of a vastly improved labor market. It means Americans have more job security than they may realize less than a decade after dismissals spiked in the 2007-2009 recession. But other factors with more mixed implications are at play, including elevated levels of long-term unemployment, an aging workforce, a decline in manufacturing work and more risk-averse businesses, which also point to a less dynamic economy.

For the full story, see Eric Morath, You're Fired! No, Wait, Keep Working.

rb

August 8, 2017 in Workplace Trends | Permalink | Comments (1)