Tuesday, July 26, 2016
My wonderful South Carolina colleagues Susan Kuo and Ben Means have just posted their article Collective Coercion on SSRN, which will appear in the Boston College Law Review. The discussion of Friedrichs may be the most relevant part of the piece for many readers of this blog, but I highly recommend the entire article for its broader analysis of coercion in collective-choice situations. Using disaster buyouts and corporate tender offers as grist for discussion, Professors Kuo and Means address the false dichotomy drawn between internal collective-action difficulties and problems arising from external coercion. From the abstract:
"When a collective-choice situation places coercive pressure on individual participants, the law’s traditional protection of individual autonomy against coercion must be reconciled with its necessary role in resolving problems of collective action. On the one hand, the law might seek to remove coercion from the equation so that individuals are free to make their own decisions. On the other hand, the law might empower a central authority to decide, thereby solving a problem of collective action in order to maximize the group’s shared interests. The tension between these two approaches creates deep uncertainty for the regulation of collective-choice situations. It is palpable in the law’s conflicted response to corporate takeover bids in that applicable federal and state laws simultaneously enhance and diminish shareholder choice. Elsewhere — for example, the structure of government buyout programs, or the imposition of mandatory fees for nonunion employees — the intersection of coercion and collective choice may be overlooked altogether. By situating the literature on coercion in the context of offers that exploit collective-action problems, we propose a unifying framework for identifying and remedying what we have labeled collective coercion."
These types of issues seem likely to arise in a whole host of labor and employment law contexts--in that regard, my colleagues would welcome any specific suggestions. Feel free to contact them directly, or to post comments in the notes below.
Monday, July 25, 2016
Christine O'Brien (Boston College - Management) has just posted on SSRN her article (forthcoming 19 U. Pa. J. Bus. L. ___) Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not? Here's the abstract:
Should employers be able to require individual employees to sign away their rights to collective action as a condition of employment? The National Labor Relations Board has held in D.R. Horton and Murphy Oil USA that when employers require employees to waive their right to “joint, class, or collective claims addressing wages, hours, or other working conditions against the employer in any forum, arbitral or judicial” as a condition of employment, this violates the NLRA. Even allowing prospective employees to opt out of such class waivers does not cure the violation in the NLRB’s view according to its decision in On Assignment Staffing Services. A circuit split has developed on enforcement of the Board’s orders on the class waiver issue with the Fifth Circuit denying the NLRB enforcement, the Seventh affirming the Board, and the Eight Circuit joining the Fifth. There are several appellate cases pending before the Ninth Circuit which has yet to fully develop its stance and approximately sixty class waiver cases pending on appeal. The Supreme Court will likely be faced with deciding one of these appeals soon. This article discusses the NLRB’s and courts’ positions from several recent cases involving class waivers in individual employment dispute agreements. It suggests how the courts and the Supreme Court should rule as well as the possibility of legislative action.
Saturday, July 23, 2016
Congratulations to Suja Thomas (Illinois) on the publication of her new book, The Missing American Jury (Cambridge 2016). This is an important work from a leading scholar in the area. As we are all well aware, very few employment cases actually make it to trial, making Professor Thomas' work directly applicable to workplace claims. The book summary is below:
"Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government.
Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies."
More about the subject and book, including favorable reviews from David Boies, Mark Cuban, and the library journal, can be found at http://sujathomas.com. I definitely recommend adding this work to your summer reading list!
Tuesday, July 19, 2016
Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:
Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.
The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!
July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)
Friday, July 15, 2016
In an interesting and informative report, the EEOC has provided an extensive review of its systemic efforts over the last decade. The Government’s systemic program – – while always a critical function of the Commission – – has become particularly important of late given the difficulty now faced by private individuals trying to bring class-actions in employment discrimination cases (See here for a discussion of the Supreme Court’s Wal-Mart decision).
From the EEOC’s press release on the report:
“[T]he review reports a 94% success rate in systemic lawsuits. In addition, EEOC tripled the amount of monetary relief recovered for victims in the past five fiscal years from 2011 through 2015, compared to the monetary relief recovered in the first five years after the Systemic Task Force Report of 2006. EEOC also tripled the rate of successful voluntary conciliations of systemic investigations from 21% in fiscal year 2007 to 64% in fiscal year 2015.”
Systemic litigation has always been an interesting and unique area of EEOC litigation. If you are researching this area, the report is definitely worth reviewing.
Wednesday, July 13, 2016
Given the ease and accessibility of social media, workers sometimes do not contemplate the potential repercussions of making questionable posts to such outlets as Facebook. Given the high number of political and/or controversial items in the news recently, there seem to be a number of situations arising where works are being penalized for their Facebook comments. While employers are generally free to take such adverse actions against workers, there are some potential First Amendment (and even NLRA) concerns depending upon the workplace comments and nature of the employer itself (public v. private).
One recent posting by a South Carolina fire captain appears indefensible, however. Per reports, the fire captain made the following comments in response to protests by Black Lives Matters which shutdown a roadway:
"'idiots shutting down I-126. Better not be there when I get off work or there is going to be some run over dumb *****.' An hour later, another post went up: “Public Service Announcement,” it begins. 'if you attempt to shut down an interstate, highway, etc on my way home, you best hope I’m not one of the first vehicles in line because your ass WILL get run over! Period! That is all.'” [paragraph taken directly from Newsone].
This incident is an important reminder that workers must use care when taking to the internet, and avoid such threatening and inappropriate comments.
Monday, July 11, 2016
Friend-of-Blog Lise Gelernter (University at Buffalo School of Law, State University of New York) sends along the complaint in the Gretchen Carlson/Roger Ailes (Fox News) sexual harassment case. The complaint is available here: (Download Carlson-Ailes-Complaint), and as most of us are well aware, the case is an example of a high-profile employment discrimination matter that has garnered widespread attention and headlines. As Professor Gelernter notes, a review of the complaint raises a number of interesting questions. Most notably, Carlson appears to have sued Ailes individually under NYC's Human Rights Law. Given the timeline of the events alleged (which span many years), it would be interesting to hear everyone's thoughts on the strategy behind bringing the suit a) individually and b) under city law. Feel free to leave comments below!
Tuesday, July 5, 2016
Friend-of-blog, and past guest blogger David Lopez (General Counsel, EEOC) sends along a couple of important updates from the agency. First, the Commission recently entered into its first settlement of a sexual orientation case. From the news release:
“The U.S. Equal Employment Opportunity Commission (EEOC) announced  that Pallet Companies, doing business as IFCO Systems, will pay $202,200 and provide significant equitable relief to settle one of EEOC’s first lawsuits alleging sex discrimination based on sexual orientation. . .
EEOC charged that a lesbian employee at IFCO's Baltimore facility was repeatedly harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. EEOC charged that the supervisor also made sexually suggestive gestures to her. IFCO retaliated against the female employee by firing her just days after she complained to management and called the employee hotline to report the harassment, according to the suit.”
This settlement obviously represents an important development in this area of the law.
Second, attached is an order from the U.S. District Court for the Eastern District of Pennsylvania (See Download CROTHALL.ORDER.6.28.16). The order discusses a company’s obligations to keep disparate impact information under the Uniform Guidelines on Employee Selection Procedures. Though a technical decision, it is very important and I encourage those of you studying or litigating in this area to take a look at this case.
-- Joe Seiner
Monday, July 4, 2016
The North Carolina legislature has passed a bill that repeals the portion of HB2 that denies a right to sue to enforce that State’s employment discrimination statute (the North Carolina Equal Employment Practices Act, or EEPA). For press reports, see, e.g., here. But that bill also reduces the time available to file such actions to one year. And it does not repeal or otherwise change the rest of HB2 currently at issue in a US Department of Justice lawsuit.
Although EEPA itself has no real enforcement mechanism, some judges had let plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy against certain kinds of employment discrimination. (For more, see here.) HB2 had supplanted this law by adding this sentence to EEPA: “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” The legislature’s bill, passed last Friday, amends EEPA by removing the sentence that HB2 had added. By itself, that would have restored EEPA law to pre-HB2 days.
But that bill also amends the one-year limitations-period statute, N.C. Gen. Stat. § 1-54, to have it cover a claim for “wrongful discharge in violation of the public policy set forth in G.S. 143-422.2.” This change will reduce the limitation period for wrongful-discharge tort claims enforcing EEPA from three years, see Winston v. Livingstone College, 210 N.C. App. 486, 488 (2011), down to one year. The text of this change, however, might also be taken to show the legislature has finally and expressly accepted the common-law tort of wrongful discharge as a viable way to enforce EEPA.
Wednesday, June 29, 2016
A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired or promoted. Proponents of the new data science claim that automated decision systems can make better decisions faster, and are also fairer, because they replace biased human decision-makers with “neutral” data. However, data are not neutral and algorithms can discriminate. The legal world has not yet grappled with these challenges to workplace equality. The risks posed by data analytics call for fundamentally rethinking anti-discrimination doctrine. When decision-making algorithms produce biased outcomes, they may seem to resemble familiar disparate impact cases, but that doctrine turns out to be a poor fit. Developed in a different context, disparate impact doctrine fails to address the ways in which algorithms can introduce bias and cause harm. This Article argues instead for a plausible, revisionist interpretation of Title VII, in which disparate treatment and disparate impact are not the only recognized forms of discrimination. A close reading of the text suggests that Title VII also prohibits classification bias — namely, the use of classification schemes that have the effect of exacerbating inequality or disadvantage along the lines of race or other protected category. This description matches well the concerns raised by workplace analytics. Framing the problem in terms of classification bias leads to some quite different conclusions about how the anti-discrimination norm should be applied to algorithms, suggesting both the possibilities and limits of Title VII’s liability focused model.
Tuesday, June 28, 2016
As many of us are aware, the Office of the Solicitor at the Department of Labor operates a superb honors program for attorneys. The program is seeking to add about ten new lawyers who would start in the Fall of 2017. The link to the application process and further information is available here. From the website:
"The Office of the Solicitor serves as the legal counsel for the U.S. Department of Labor. The approximately 550 attorneys in SOL enforce and interpret occupational and mine safety and health laws, civil rights laws, pension and health benefit laws, and more... The Honors Program gives attorneys a unique opportunity to help interpret and enforce a broad range of labor and employment laws while working in one of the largest legal offices in the federal government."
This is a great program, and best of luck to all who apply.
Tuesday, June 21, 2016
A twofer from the Supreme Court already this week. First, on Monday, the Court granted cert. in NLRB v. SW General. The case addresses the question whether an individual can continue serving as an acting official once he or she has been officially nominated. In this case, the individual is Lafe Solomon, whom President Obama designated as Acting General Counsel in 2010, under the Federal Vacancies Reform Act. In 2011, the White House nominated Solomon to the Senate. The D.C. Circuit held that once Solomon was nominated, the FVRA barred him from continue to serve as Acting General Counsel; the issue boils down to which provision of the act Solomon was designated when he became Acting GC.
Second, today the Court issued its decision in Encino Motorcars v. Navarro, which addressed a 2011 Department of Labor rule that said that car dealership employees who handle service appointments were not excluded from overtime--overturning many years of prior precedent that had included such employees under the "primarily engaged in . . . servicing automobiles" exception of the FLSA. In its decision, the Court held that the DOL didn't deserve any deference because it failed to provide an explanation for its change of position. However, the Court did not settle the issue and instead remanded to the Ninth Circuit to determine whether the employees were excluded under the FLSA. Scotusblog has a good summary of the splintered decision, including the various opinions--especially with regard to whether the Court should have addressed the underlying issue of the exclusion's application, and how.
Sunday, June 19, 2016
While mandatory arbitration agreements have gotten the most attention as methods of shielding employers from court suits, other employers have made a different choice -- using contracts with their employees to shorten the otherwise applicable limitations periods for bringing court suit. By and large (by which I mean in purely private disputes over the underlying contract claim), courts have seen little problem with such provisions. Without much analysis, they allow the parties to agree to a shorter period to being suit subject only to the condition that the period so provided be "reasonable," and are pretty permissive as to what satisfies that condition.
Where such agreements --typically imposed as a condition of employment --involve abbreviating the time provided for bringing suit under antidiscrimination and other worker-protective statutes, the considerations are significantly different, at least so it seemed to the New Jersey Supreme Court. Last week, in Rodriguez v. Raymours Furniture Co, the Court struck down a provision in an employment agreement that set a 6 month outer limit on bringing suit when the governing Law Against Discrimination provided a two-year limitations period.
Much of the opinion deals with aspects peculiar to New Jersey (for example, the two year limitations period is not found explicitly in LAD, and the state has alternative administrative and judicial avenues to pursue a LAD claim), but the overarching message of the opinion is that discrimination claims have a public aspect which counsels against approving private attempts to shorten the controlling limitations period. Writing for the Court, Justice LaVecchia summarized:
The cause of action that plaintiff brings is factually premised on his employment relationship, but it is not a simple private claim. Plaintiff alleges an LAD violation -- a law designed for equal parts public and private purposes.
The LAD plays a uniquely important role in fulfilling the public imperative of eradicating discrimination. One searches in vain to find another New Jersey enactment having an equivalently powerful legislative statement of purpose, along with operative provisions that arm individuals and entities with formidable tools to combat discrimination not only through their use but also by the threat of their use. There is a huge incentive for employers to thoroughly investigate and respond effectively to internal complaints in order to limit or avoid liability for workplace discrimination. Responsible employers are partners in the public interest work of eradicating discrimination, but such responsible behavior takes time. A shortened time frame for instituting legal action or losing that ability hampers enforcement of the public interest.
The court cited decisions to like effect in Kansas and California, but the New Jersey decision is likely to be especially influential. Its most salient contribution is drawing the line between private contract disputes and litigation over statutory claims. In the future, we can expect courts at least to avoid reflexively validating such agreements and come to grips with the public policy implications of enforcing them.
Friday, June 17, 2016
As with many of the recent disturbing events making headlines, the horrific shootings in Orlando have a direct workplace connection. As is being reported, the shooter had engaged in some aggressive prior behavior, as one worker who worked at a well-known security company with the perpetrator maintains that this individual had sent him text messages which included death threats. This terrible event is one additional reminder that we must all remain vigilant in the workplace, and notify others of questionable behaviors that are observed (as the co-worker here claims he did). We have previously discussed some best practices approaches to workplace violence (and signals that someone might perpetuate violence) on this blog, and this event serves as an additional reminder of the important role employers and co-workers can play in preventing violent tragedies. As we noted previously, it is important to keep in mind the "5 C's" when attempting to address and prevent such violence: Character Checks, Counseling, Communication, Cautious Cutbacks and Community Involvement.
A report at Reuters discussed the background check performed by the shooter’s employer (a security company) which included “a psychometric test, an ID verification test, and a criminal record check, among other measures.” As the investigation in this area progresses, it will be interesting to see if there were any other signs or signals that this individual might engage in this horrific behavior. Regardless of the results of the investigation, it is critical that we all remain cautious and vigilant in the workplace.
-- Joe Seiner
Tuesday, June 14, 2016
11th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24(Saturday) September 2016
Information and link to registration: http://www.law.uw.edu/events/cosell
The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23rd and 24th. Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22nd through Saturday, Sept. 24th. Rooms are priced at about $209/night - please reserve a hotel room as soon as possible given hotel attrition policies. Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington. Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.
The website has information about the hotel, and the registration page has space for you to enter your paper topic and an abstract. Registration for the conference is open until 31 August 2016. Please send any questions or concerns, whether it’s about the conference or “things to do in Seattle” to Prof. Lea Vaughn at firstname.lastname@example.org. Thank you!
The Supreme Court issued two employment discrimination decisions in May, which were mostly met in the academy by yawns. Admittedly, neither is groundbreaking and one is something only a proceduralist could love. But both have points of interest.
The earlier decision, CRST Van Expedited v. EEOC, resolved the question of whether a defendant could be said to have "prevailed" for purposes of a fee award by obtaining a dismissal for the EEOC procedural failures, as opposed to having won on the merits. Whether the agency's conduct in pursuing the claims at issue was frivolous was not before the Court, which might have generated a more interesting opinion, but the decision clearly opened the path to more attorney awards against losing plaintiffs -- and not merely where the EEOC is the plaintiff.
In the case itself, the defendant had prevailed because the EEOC had failed to adequately investigate a number of the individual claims it wished to pursue on behalf of female employees of CRST. That's obviously not applicable to private suits, but one can easily imagine a defendant pursuing attorneys' fees against a plaintiff whose case is, say, tossed out of court for failure to meet one of Title VII's limitations periods. However, the Court did not decide whether a defendant has to obtain a preclusive judgment in order to "prevail," which may somewhat limit the effects of the decision.
The more recent is Green v. Brennan, which held that the time for resort to administrative remedies in a constructive discharge case runs from the time the employee gave notice of his resignation, not from the last employer act that created the intolerable conditions that would convert such a resignation into a constructive firing. The case involved federal employment, which has somewhat different procedures, but there is little doubt that it applies to the more common situation involving the private sector where an employee normally has 300 days to file a charge of discrimination with the EEOC.
The opinion is clearly pro-employee, but may not have much real world impact. That's because the whole concept of constructive discharge requires discriminatory employer conduct that creates "intolerable" working conditions. The longer an employee tolerates what he claims is an intolerable situation, the less likely a court is to view those conditions are truly intolerable. But it is true that courts will now be forced to focus on the merits of such claims rather than dismissing them on timeliness grounds.
Justice Alito concurred, in a somewhat tortured opinion. He was concerned that, by looking to the date of resignation the Court was shifting the focus from the employer's act (which rendered continued work intolerable) to the employee's conduct and thus undercutting a long line of cases that refused to measure timeliness from the present effects of a past act of discrimination. That would seem to suggest a dissent rather than a concurrence, but Alito argued that when an employee intended the resignation (which was a triable issue here), the time could run from that resignation. Why, say, that wouldn't undercut Ricks v. Delaware State -- where the employer gave a terminal contract that must have intended Ricks's termination a year later -- isn't so clear.
Monday, June 13, 2016
The EEOC announced today that it will be holding a public meeting next week on the issue of harassment prevention in the workplace. The meeting will be held at EEOC Headquarters in Washington, D.C. on June 20 at 9:30 a.m. Members of the public are invited to attend, but it is recommended that they arrive 30 minutes early to allow time to clear security. From the press release:
"In January 2015, EEOC Chair Jenny R. Yang announced the formation of the Select Task Force on the Study of Harassment in the Workplace, to be co-chaired by EEOC Commissioners Feldblum and Lipnic. The Select Task Force, consisting of management and plaintiffs' attorneys, representatives of advocacy groups for employees and for employers, and academics who have studied harassment, held hearings looking into all aspects of workplace harassment and methods for preventing and addressing it. The Select Task Force was not charged with preparing a consensus report, but rather with providing knowledge and diverse viewpoints to inform the final report prepared by the Co-Chairs. At this meeting, Commissioners Feldblum and Lipnic will present the findings of their report to their colleagues and the public, including their proposed reboot of workplace harassment prevention efforts."
These public meetings are always very interesting to attend, and I certainly encourage those in the area to consider doing so on this very important workplace issue.
The Executive Committee of the AALS Labor Relations and Employment Law Section announces that it is seeking abstracts as part of a Call for Papers to be presented at the 2017 Annual Meeting program in San Francisco. The program, titled Classifying Workers in the “Sharing” and “Gig” Economy, will take place on Thursday, January 5, 2017 from 8:30 am to 10:15 am. Co-sponsored by the AALS Immigration Law, Business Associations, and Contracts Sections, this program will start immediately after a Breakfast jointly sponsored by the AALS Labor Relations and Employment Law and Employment Discrimination Sections held from 7 a.m. to 8:30 that morning.
This program will focus on the emerging trend of businesses using “on-demand” workers who share economic risks with those businesses as nominally independent contractors. These workers consider the job opportunity as an individual “gig,” characterized by flexibility conveniently gained from technology. State, federal, and local legislatures and related labor and employment law enforcement agencies have started to add items to this analysis beyond the typical “1099/W-2" common law control nomenclature.
As a result, the question of who is an employee in the gig and sharing economy has become an ever-increasing concern. During the program, a panel of leading labor and employment law scholars will address this question from a multi-disciplinary approach including the examination of unique issues for business franchises and immigrant workers.
We are seeking an additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. Papers presented during this program may be published by the Employee Rights and Employment Policy Journal. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Michael Z. Green, at email@example.com by August 26, 2016. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 5, 2017. Any inquiries about this Call for Papers should be submitted by e-mail to Professor Green.
Proposals for the Seton Hall Symposium to honor the life and work of Michael J. Zimmer are due on July 1st.
Paper proposals should be 3-5 pages in length and submitted to Charles Sullivan (firstname.lastname@example.org).
More details about the Symposium can be found here.
Saturday, June 11, 2016