Monday, January 15, 2018
Shu-Yi Oei & Diane M. Ring (both of Boston College Law) have just posted on SSRN their essay Is New Code Section 199A Really Going to Turn Us All into Independent Contractors? Here's the abstract:
There has been a lot of interest lately in new IRC Section 199A, the new qualified business income (QBI) deduction that grants passthroughs, including qualifying workers who are independent contractors (and not employees), a deduction equal to 20% of a specially calculated base amount of income. One of the important themes that has arisen is its effect on work and labor markets, and the notion that the new deduction creates an incentive for businesses to shift to independent contractor classification. A question that has been percolating in the press, blogs, and on social media is whether new Section 199A is going to create a big shift in the workplace and cause many workers to be reclassified as independent contractors.
Is this really going to happen? How large an effect will tax have on labor markets and arrangements? We think that predicting and assessing the impact of this new provision is a rather nuanced and complicated question. There is an intersection of incentives, disincentives and risks in play among various actors and across different legal fields, not just tax. Here, we provide an initial roadmap for approaching this analysis. We do so drawing on academic work we have done over the past few years on worker classification in tax and other legal fields.
Friday, January 12, 2018
Sexual harassment claims reached the federal judiciary when Judge Alex Kozinski was accused of sexual misconduct a few weeks ago. He has since resigned. As Tessa wrote here yesterday, one thing that kept some clerks from coming forward to report this misconduct was the policy of strict confidentiality that clerks must uphold while in chambers with their judges. Some judges, like Kozinski, may further rigidly enforce this pact as well, making it very difficult for clerks or other judicial employees to make reports.
In rapid response to this concern the Federal Judicial Center amended the Federal Law Clerk Handbook yesterday to read:
In a section of the clerk handbook that proclaimed “law clerks owe judges complete confidentiality as to case-related matters,” two boldfaced sentences were added:
“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”
Concurrently, a signature campaign has been circulated to former law clerks and others urging for clarification on the confidentiality rules. It seems at least with regard to the Handbook, the amendment above may be sufficient to ensure judicial personnel feel comfortable making reports. The letter is due to be delivered on Thursday, December 21, 2017, to "Third Circuit Judge Anthony Scirica, chair of the Judicial Conference’s Committee on Judicial Conduct and Disability, Judge Jeremy Fogel, director of the Federal Judicial Center, James Duff, director of the Administrative Office of the U.S. Courts, and Chief Justice John Roberts Jr. in his capacity as presiding officer of the Judicial Conference." The United States Supreme Court is not governed by the Judicial Conference, and the letter makes no recommendations to the Court.
The letter can be found here and will remain open for signature.
Paul Caron over at TaxProf Blog sends word that the American College of Employee Benefits Counsel is sponsoring its 14th Annual Employee Benefits Writing Competition on any topic in the field of employee benefits law. The competition is open to any J.D. and graduate (L.L.M. or S.J.D) law students enrolled at any time between August 15, 2017 and August 15, 2018. Two $1,500 prizes may be awarded. The submission deadline is June 1, 2018.
I posted yesterday on the conference earlier this week on minimum wage laws in developing countries. Daniel Helman (Ton Duc Thang University, Labor Relations & Trade Unions) circulated a follow-up email making a point about minimum wage laws I hadn't considered before. I suspect his argument has equal force when a single state or municipality in the U.S. raises its minimum wage significantly above (extraordinarily low, by any historical standard) national base rate. Here is Daniel's argument:
During my recent visits to Australia and Singapore (in December) I spent some time networking with academic colleagues. In both places people were talking about how Vietnam was projected to be the most important economy in SE Asia in twenty years. One of the key indicators of this projection is the rate of rise of wages here in Vietnam. The rapid wage increase is seen as a reflection of economic strength and an indicator of future economic growth.
Thus the trend in wage increases signals to the rest of the world that the economy of Vietnam is becoming increasingly robust. Such a signal leads to foreign investment at a consumer level—as international companies aim to establish an economic presence here in Vietnam. They do this now so that in the future, as the domestic demand is large, they will have a well-established presence and will be able to command a large share of the market in their sector.
Of course Vietnam has other features that influence its future success, such as a single-party system which allows for more focused and beneficial policies to be implemented more easily than in other systems; and a culture that is perhaps more focused on its own success after so much hardship for so many decades; and other intangibles, such as respect for the role of work and effort in the family. But the increase in wages—based in large part on the increases in the minimum wage over the past several years, has done a great deal to place Vietnam very high in its economic forecast. Such a signal leads to future investment, and these facts can form a strategy to (rightly) promote future increases in the minimum wage here so that it will reach the level of a living wage sufficient to meet more basic needs. It is similar to the point [ILO Vietnam Country Director] Dr. Chang-Hee Lee made on the first day [of the conference], about how increases in the minimum wage increase demand.
Obviously the totality of pathways and feedbacks are more complicated than what I have written above, but the essential point is that the rate of increase in wages is a signal of the growing robustness of the domestic market; and that this signal is read by global economic stakeholders and influences their behavior.
Thursday, January 11, 2018
Earlier this week I participated in a conference on minimum wage laws in Viet Nam (and SE Asia generally) at the Tôn Đức Thắng University Labor College in Ho Chi Minh City (Saigon), Viet Nam. International wage & hour law is not my specialty, so it was a pleasure to learn from the many law faculty, workers' advocates, employer representatives, and even even the former head of the VGCL (the government-controlled unified trade union) attending. My key take-aways:
The traditional neoclassical economic argument that increasing the minimum wage decreases employment may have even less salience in developing countries than in developed ones. Even in the countries like Viet Nam that produce a large quantity of the clothing, electronics, and other goods consumed in the West, the vast majority of workers still work in services and manufacturing for the local economy. Raising minimum wages can increase both worker productivity and domestic consumption, which can have a positive effect on economic growth and employment and thus offset potential negative effects.
The risk of capital flight in response to raising the minimum wage is overstated. A MNC that has built a factory here is unlikely to relocate it because of a requirement that it spend an extra few cents per hour on wages. It's less clear how increases in minimum wage laws might influence future capital allocation decisions.
- Companies looking to maximize profits by minimizing labor costs are barking up the wrong tree -- they should instead be looking to cut supply-chain costs. The pair of Nikes we spend $150 for in the West costs about $12 to make, of which $2-3 is labor costs. The $138 difference between retail price and cost-of-production is where companies should be looking if they want to squeeze further profits. Nike could slash those costs by vertically integrating, which would have the salutary effect of making Nike directly and obviously responsible for the workers who make the company's shoes. The fact that the Nikes of the world aren't doing this is telling.
- The proportion of workers in the informal economy has a huge impact on the efficacy of minimum wage laws. Minimum wage laws may actually exacerbate wage inequality in countries where a large proportion of workers are off-the-books.
- Minimum wage laws can perform an important signaling effect in developing countries. I'll add a guest post on this topic shortly.
Thursday, December 28, 2017
Leora Eisenstadt (Temple) recently published a fascinating piece in the San Francisco Chronicle about how employment laws can protect harassers and discourage victims from raising complaints. The piece is wonderfully written and takes an interesting look at this timely issue. It is definitely worth taking a look at as these issues continue to emerge in the headlines.
— Joe Seiner
Tuesday, December 19, 2017
- Bill's new article, written with Jacob Apkarian and appearing in LERA's Perspective on Work, Everything Passes, Everything Changes: Unionization and Collective Bargaining in Higher Education is now on SSRN. The abstract:
This article begins with a brief history of unionization and collective bargaining in higher education. It then presents data concerning the recent growth in newly certified collective bargaining representatives at private and public-sector institutions of higher education, particularly among non-tenure track faculty. The data is analyzed in the context of legal decisions concerning employee status and unit composition under applicable federal and state laws. Lastly, the article presents data concerning strike activities on campuses between January 2013 and May 31, 2017.
On-registration has begun for the National Center's 45th annual higher education labor-management conference in New York City on April 15-17, 2018. The theme of the conference is Facing New Realities in Higher Education and the Professions.
The keynote speaker will be Dean David Weil of the Heller School for Social Policy and Management, Brandeis University, and author of the Fissured Workplace.
The conference plenary will discuss Dr. Martin Luther King, Jr. and his legacy for our times withWilliam P. Jones, University of Minnesota; Derryn Moten, Alabama State University, and Jeanne Theoharis, Brooklyn College, CUNY.
The following are the subjects of some of the confirmed conference workshops and panels:
-Workshops on April 15, 2018: Unionization and collective bargaining for administrators and academic labor; bargaining over health care in higher education; preparing, presenting, and defending at arbitration; financial analysis in higher education; effective lobbying for higher education
-Panels on April 16-17, 2018: Responding to Janus: collective bargaining and membership engagement; recently negotiated first contracts for adjunct faculty; bargaining a first contract for graduate student employees; interest-based bargaining at community colleges; wage discrimination at universities and professional schools; creative solutions for resolving wage compression; unionization at religiously-affiliated colleges and universities; unionized environments at academic libraries; and unionization of doctors and nurses.
Sunday, December 17, 2017
Thanks to Paul Harpur (TC Beirne - Queensland) for sending word of this disability case currently pending in Ohio:
On December 15, 2017, Denoewer, an adult individual with intellectual and developmental disabilities who is autistic, non-verbal, and epileptic, sued his employer of 7.5 years for disability discrimination and has joined his employer’s client claiming it was an accessory to the discrimination. The claim is available here.
Denoewer pleaded he experienced disability discrimination at the hands of his employer, Uco, a 501(c)(3) non-profit that exists to employ individuals with disabilities in a setting that is purportedly integrated (essentially a sheltered workshop). He contends that Uco breached the ADA and Ohio Rev. Code through treating him less favourably than workers without disabilities. He is seeking compensation for an amount between his actual rate of pay, and pay-related benefits, and the amounts earned and accrued by workers performing tasks that Denoewer was not permitted to perform, even though he claims he could complete, due to his impairment.
The aspect of this case which is novel is the move to sue Uco’s customer, HONDA of America MFG., Inc., for being an accessory to Uco’s disability discrimination. Honda’s accessorial liability is based upon 2 key grounds:
First Honda exercised significant economic power so as to ensure that UCO’s labor costs were lower than were lawfully possible.
Second, Honda’s specific production demands also determined which of UCO’s Production Associates would be permitted to work on the line. As a result, in some instances, non-disabled individuals were placed on the line instead of individuals with disabilities, such as Denoewer, in order to meet Honda’s specific demands.
As a consequence Denoewer is arguing that Honda aided and abetted UCO’s discriminatory conduct.
Friday, December 15, 2017
Another twofer from the NLRB today. The first is another expected change--the Specialty Healthcare decision that has been much derided by employers. In Specialty Healthcare (2011), the Board concluded that if, after there is a determination pursuant to the traditional unit determination test, an employer argued that employees should be added to a union's proposed unit, the Board would find the proposed unit appropriate unless the employer could show that the excluded employees shared an overwhelming community of interest with the proposed group of employees. In PCC Structurals, the NLRB reversed Specialty Healthcare and its "overwhelming community of interest" standard, instead using only the multi factored test for a unit determination in most cases. Also, although it wasn't presented in PCC Structurals, the NLRB also reinstated the Park Manor standard for nonacute health care facilities (like nursing homes), that prompted the Specialty Healthcare decision. Legally, the issue over the traditional v. Specialty Healthcare tests hinges on what is meant by the NLRA's mandate that a unit merely be "an appropriate" unit rather than the "most appropriate" unit and how much the interests of excluded employees should play a role. But in reality, the disagreement is mainly based on the fact that, in general, the smaller the unit, the easier to organize.
In the second case, Raytheon Network Centric Systems, the NLRB reversed a 2016 case, DuPont, in which the Board had concluded that an employer must bargain with a union before instituting a change that is consistent with a previous practice that was created under an expired management rights clause or made pursuant to employer discretion. In Raytheon, the NLRB stated that an employer need not bargain before implementing any change that is similar in kind and degree with an established past practice that is similar to the unilateral change--even if the past practices were created under a collective-bargaining agreement, even if there was no agreement when the disputed change was implemented, and even if the past practices involve some degree of employer discretion. The dissent argues strenuously that this new rule violates the Supreme Court's decision in Katz.
We now have four NLRB reversals over two days, all of which were issued without any notice or invitation for comment. Moreover, they all mirror Chairman Miscimarra dissents. The Chairman's term is expiring tomorrow, so I wouldn't be surprised to see several more decisions even running into next week (dated Dec. 16).
Congratulations to Orly Lobel (San Diego) on the publication of her book You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark Side (Norton 2017). Here's the publisher's excerpt:
The battle between Mattel, the makers of the iconic Barbie doll, and MGA, the company that created the Bratz dolls, was not just a war over best-selling toys, but a war over who owns ideas.
When Carter Bryant began designing what would become the billion-dollar line of Bratz dolls, he was taking time off from his job at Mattel, where he designed outfits for Barbie. Later, back at Mattel, he sold his concept for Bratz to rival company MGA. Law professor Orly Lobel reveals the colorful story behind the ensuing decade-long court battle.
This entertaining and provocative work pits audacious MGA against behemoth Mattel, shows how an idea turns into a product, and explores the two different versions of womanhood, represented by traditional all-American Barbie and her defiant, anti-establishment rival―the only doll to come close to outselling her. In an era when workers may be asked to sign contracts granting their employers the rights to and income resulting from their ideas―whether conceived during work hours or on their own time―Lobel’s deeply researched story is a riveting and thought-provoking contribution to the contentious debate over creativity and intellectual property.
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?