Thursday, April 19, 2018
COSELL XIII Registration Now Open: available here!!!
Registration is now open for The Thirteenth Annual Colloquium On Scholarship in Employment and Labor Law (COSELL), which will be held at the University of South Carolina School of Law in Columbia, South Carolina. We are celebrating our move into a completely new legal facility, and we look forward to you joining us for the conference from the evening of Thursday, September 27th through the afternoon of Saturday, September 29th, 2018. Information on registration, the conference hotel, and participating in the conference is now available here.
We look forward to seeing everyone in South Carolina next fall, and please let me know if you have any questions about the registration process.
Tuesday, April 17, 2018
Friend-of-the-blog, Jason Bent (Stetson) shared news of a symposium at Stetson this Friday that sounds like it will be of interest to many of our readers:
On Friday, April 20, the Stetson Law Review is hosting a symposium exploring the Supreme Court’s emerging animus doctrine in constitutional law. The discussion is inspired by Brooklyn Law Professor William D. Araiza’s new book, Animus: A Short Introduction to Bias in the Law. The symposium will explore the role of animus in the Court’s recent equal protection jurisprudence, including United States v. Windsor and Obergefell v. Hodges, as well as its implications for religious freedoms and workplace law. The symposium can be viewed for free via simultaneous webcast. For the full agenda, the list of speakers, and more information about registering or viewing the webcast please visit:
The lineup looks great and includes a number of workplace law friends, like Jessica Clarke (Minnesota) and Katie Eyer (Rutgers). Tune in to the live webcast if you can't make it in person.
Lance Compa (Cornell ILR) sends us word of a report describing the "wrong turn" taken by an arbitration panel in the first-ever case decided under the labor chapter of a free trade agreement. The case involves worker's rights violations in Guatemala. Here's a press release describing the case and a report critical of the case co-authored by Lance:
A new report from the International Labor Rights Forum (ILRF) says that an arbitral panel’s ruling in the first case ever decided under the labor chapter of a free trade agreement “got it wrong” on workers’ rights violations in Guatemala. Written by three prominent international labor law experts, “Wrong Turn” edits down the 300-page decision into a reader-friendly 30 pages, and provides analysis and commentary at key points showing the arbitral panel’s flawed approach and conclusions.
Following a 2008 complaint by the AFL-CIO and a coalition of Guatemalan unions, the United States government initiated the arbitration case in 2011 under the labor rights chapter of the 2005 U.S.-Central America Free Trade Agreement (CAFTA). That chapter defines as its central purpose to “protect, enhance, and enforce basic workers’ rights.” The United States charged Guatemala with failing to effectively enforce its national labor law to halt mass firings of workers who try to form unions and to remedy minimum wage, health and safety, and other violations of employment standards. Effective enforcement of national law is a central obligation of the CAFTA labor chapter.
In their report, Lance Compa of Cornell University, Jeff Vogt of the Solidarity Center, and Eric Gottwald of ILRF note that two of the three members of the arbitral panel were prominent trade lawyers who normally represent multinational companies in commercial disputes, but have no labor experience or expertise. As a result, “The decision is based on a narrow, trade-oriented analysis divorced from labor law reality - particularly in a developing country like Guatemala.”
Importantly, the arbitral panel did find that Guatemala repeatedly failed to effectively enforce its labor law. However, the panel found that such failures did not occur “in a manner affecting trade,” as required by the labor chapter, leading the arbitrators to rule in favor of Guatemala. In contrast, the report’s authors argue that, “A rights-focused analysis would say the CAFTA labor chapter is meant to protect workers’ fundamental rights, not competition in the free trade area.”
Gottwald, Vogt and Compa suggest that the arbitral panel erected an impossibly high barrier to workers prevailing in such cases. All violations and the failure to enforce labor laws occurred in trade-related sectors such as apparel manufacturing, agriculture, and shipping, but the panel found that this was insufficient to meet the “manner affecting trade” requirement. The arbitrators demanded evidence that companies took advantage of the government’s enforcement failures to gain a price advantage in the marketplace. But such information, argue the report authors, is impossible to obtain without subpoena power – a tool that is not available in the CAFTA dispute resolution system.
The authors also decry the failure of the U.S. government to present evidence on widespread violence against trade unionists in Guatemala, including death threats and assassinations – an important part of the unions’ original 2008 complaint. Reflecting this failure, they note that “In the full 299-page decision of the Panel, not once does the word ‘violence’ appear.”
The ILRF report concludes with recommendations to address the “wrong turn” in the CAFTA arbitration decision. They include requiring arbitrators to be experts in labor law and labor relations and to consider reports and decisions from international human rights bodies, not just the WTO, in their decision-making process; allowing trade unions and victimized workers to participate in arbitration proceedings, correcting the interpretation of the “manner affecting trade” clause, and making the labor chapter of all trade agreements a human rights chapter.
Here is the full report.
Monday, April 16, 2018
Friend-of-Blog Brad Areheart (Tennessee) sends along the following workshop information for SEALS:
Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Fort Lauderdale Marriott Harbor Beach Resort & Spa in Fort Lauderdale, Florida on Monday, August 6, and Tuesday, August 7, 2018. There are also many excellent panels throughout the week that are targeted to newer law professors, which prospective law professors will also find helpful. See http://sealslawschools.org/submissions/program/programwp.asp. If you are interested in participating in this year’s workshop, please send your CV and a brief statement of interest to professor Brad Areheart (Tennessee) at email@example.com, who co-chairs the committee along with professor Leah Grinvald (Suffolk). Please also indicate when you are planning to go on the teaching market. Applications are due by May 15, 2018. Many of the past workshop participants have gone on to obtain tenure-track appointments and now teach at a wide variety of law schools, including Tulane, South Carolina, UNC, Cal Western, Boston College, Georgia, Alabama, Oklahoma, Boston U., Tulsa, Wisconsin, Michigan State, Maryland, Idaho, Colorado, Miami, Richmond, Louisville, and others.
This is a great opportunity for new law teachers, and SEALS is always a great conference to attend.
Tuesday, April 10, 2018
Diane Ring (Boston College) sends along a call-for-papers on reshaping work in the platform economy (Amsterdam, October 25-26, 2018). The section related to law is attached below, and the full announcement is available at this Call for papers link.
"We welcome academics, business leaders, national and European law- and policymakers, representatives from the temporary staﬃng industry, platform companies, and platform workers to explore and discuss the evolving intersection between law and the platform economy on critical issues that are shaping the future of work. Accordingly, scholars and other professionals are invited to present papers across a range of legal research topics including, not limited to: • Labor law and policy: emerging trends, options and challenges • Dispute resolution: role of arbitration, courts, and regulation • Discrimination across the platform economy: platforms, workers and consumers • Liability and Risk: current practices, alternatives and implications for allocating liability and risk • Taxation: the impact of tax design choices on the direction of the platform economy and on the role of workers in platform business models • Consumer protection and/or Competition law: impact on establishing a level playing ﬁeld".
This looks like a great conference and opportunity to engage in this complex and emerging area of the law.
Readers of the blog have probably seen news articles about the Ninth Circuit's en banc decision yesterday in Rizo v. Yozino, a case interpreting the "any other factor other than sex" affirmative defense in the Equal Pay Act. If you haven't read the opnion(s) yet, I highly recommend it.
The facts were these. the Fresno County Office of Education based a new employee's entering salary solely on her prior salary plus 5%. After Aileen Rizo was hired, she discovered that male co-workers with the same job were paid more than she was and sued.
The only question on appeal was whether an employee's prior salary was "any other factor other than sex" such that an employer could base salary decisions on it without running afoul of the Equal Pay Act's prohibition on paying men and women different wages. The majority said no for two main reasons. First, if prior salary were a factor other than sex, then that exception would allow employers to rely on discriminatory wages set by prior employers, completely undercutting the Equal Pay Act's purpose. Second, the list of affirmative defenses prior to the any other factor affirmative defense all related to job-related factors that Congress recognized would justify different wages. Accordingly, and because motive is not relevant in equal pay act cases, "any other factor other than sex" must be limited to job-related factors. Prior salary may be based on job related factors, but employers must discover what those factors were and rely on them rather than simply using that salary as a proxy for those factors--that proxy is too inexact and may too easily embody discrimination.
There were three concurrence opinions. All of the judges agreed that relying solely on prior salary at another employer to set a starting salary ran afoul of the EPA because of the danger that the prior salary was based on sex. The concurring judges would have accepted prior salary as one factor in the mix, however, essentially believing that prior salary was likely based mostly on legitimate job-related factors.
This opinion marks a clear split among the circuits on this issue. The Seventh Circuit has held that prior salary is always factor other than sex, while the Ninth has now said it never is. The other circuits and the EEOC fall somewhere in the middle, more in line with the concurrences, that prior salary can be considered as just one factor as long as it is combined with other job-related factors.
I highly recommend reading all of the opinions. They do a great job summarizing the state of the law from the Supreme Court and the circuits. They also do a great job getting at the tensions in this area about causes of the gender wage gap, what kind of employer action constitutes discrimination, and what role the law should play. For example, one of the main points of disagreement seems to be whether the Equal Pay Act ought to be treated like disparate treatment pay under Title VII--what does it mean to say that a pay differential is because of sex? Additionally, is the persistent gender pay gap caused by that kind of motive, or is it based on other factors that are not attributable to an employer's bad motive. And should the government intervene in cases without bad motives?
The Equal Pay Act is not an area that I know as well as I would like, but I found this opinion and the concurrences to be a great discussion of equal pay issues writ large.
Monday, April 9, 2018
Supreme Court decisions often leave me scratching my head, but not usually because of Justice Kagan’s use of English. But there’s a first time for everything, and I read with some surprise a passage in a recent opinion authored by her:
But that view cannot be squared with the except clause’s wording for two independent reasons. To start with, the except clause points to “section 77p” as a whole—not to paragraph 77p(f)(2). Cyan wants to cherry pick from the material covered by the statutory cross-reference. But if Congress had intended to refer to the definition in §77p(f)(2) alone, it presumably would have done so—just by adding a letter, a number, and a few parentheticals.
Cyan, Inc. v. Beaver Cty. Emples. Ret. Fund. No, despite the caption, Cyan’s not an employment case; and, no, you don’t have to understand what statute she’s referring to in order to appreciate my confusion: shouldn’t Kagan have written “parentheses” instead of “parentheticals”?
One of my colleagues had the same initial reaction, but concluded that Kagan was probably right, “because she’s referring not simply to adding the punctuation, but to adding material inside parentheses— parentheticals. They are very short parentheticals, but I think still parentheticals.”
Another colleague begged to differ: “she separately refers to the letter and number inside the parentheses, so isn't she just referring to the punctuation? And she says ‘a few,’ when, in fact, she is only talking about two parentheticals (but four parentheses).”
And it’s not as if Kagan is a stranger to parentheticals: she’s been described as the “Master of the Parenthetical Aside” by Josh Blackman. Still, Homer nodded (so why not Justice Kagan?).
Tuesday, April 3, 2018
Yesterday, the US Supreme Court decided Encino Motorcars v. Navarro in a way that rejected past precedent requiring courts to read FLSA’s statutory exemptions narrowly. In a 5-4 ruling, the Court ruled that FLSA exempts a service adviser at a car dealership from its overtime protections under the exemption for “any salesman . . . primarily engaged in . . . servicing automobiles.” 29 U.S.C. § 213(b)(10)(A).
In doing so, however, Justice Thomas, writing for the majority, rejected the general “principle that exemptions to the FLSA should be construed narrowly.” Encino, Slip Op. at 9. Here’s his reasoning:
We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.” Scalia, Reading Law, at 363. The narrow construction principle relies on the flawed premise that the FLSA “‘pursues’” its remedial purpose “‘at all costs.’” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume . . . that whatever might appear to further the statute’s primary objective must be the law” (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading.
In so reasoning, Justice Thomas’s majority opinion didn’t “acknowledg[e] that it unsettles more than half a century of our precedent.” Dissent of Justice Ginsburg, Slip. Op. at 9-10 n.7. See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (FLSA “was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”); accord Citicorp Industrial Credit Co. v. Brock, 483 U.S. 27, 35 (1987); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959)(“It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.”)(citations omitted). In her dissent, Justice Ginsburg called this FLSA precedent a “well-grounded application of the general rule that an ‘exception to a general statement of policy is usually read . . . narrowly in order to preserve the primary operation of the provision.’” Dissent Slip. Op. at 9 n.7 (quoting Maracich v. Spears, 570 U.S. 48, 60 (2013)).
Management-side lawyers will likely now invoke Encino often in FLSA exemption litigation. But, it’s hard to know how much this will affect FLSA case outcomes, because it’s unclear how much the “narrowly-read FLSA exemptions” rule had affected FLSA case outcomes in any event, that is, how often that rule operated as makeweight versus a genuine tie-breaker.
More puzzling: The Court could have easily sidestepped the issue by saying that, given the strength of all the other reasons to read § 213(b)(10)(A) the way it did, there was, in this case, really no tie for the “narrowly-read FLSA exemptions” rule to break. Instead, the Court’s majority seems to have wanted to overrule this prior FLSA precedent but without expressly saying that it was directly overruling it as precedent. The mystery is which Justice(s) in the Encino majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) wanted this in the opinion, and why.
This article is about a new approach to one of the law’s most basic questions: what is coercion? Under its traditional framing, coercion is about transactions. One person makes an offer to another person, who, under the circumstances, has no realistic option but to say “yes.” But that conception has not helped courts articulate a way to test when pressures cross the line from lawful persuasion to illegal compulsion. Without a metric, critics charge that coercion analyses are inevitably normative. This article challenges that inevitability. Using the workplace as a case study, it argues that it is possible to weigh the impact of speech or conduct on choice, but only if coercion’s content is clarified so that judges know what they are supposed to be evaluating. Drawing from rapid advances at the intersection of decision-making and emotion science, the article is the first to describe what it is, exactly, about an external force that might push employees, their superiors, and consumers toward irrational judgments. The new approach unites labor law with emerging law and emotion scholarship, applies across existing doctrine, and, by lending itself to quantifiable assessments, defies normative assumptions to finally standardize the law of coercion at work.
I had the pleasure of reading an early version of this article for a SEALS presentation and highly recommend it.
Sunday, April 1, 2018
Thanks to Mitch Rubinstein for sending word of Davids v. State, ____A.D. 3d____(NY App. Div. 2d Dep't. March 28, 2018), where a New York appellate court refused to dismiss a constitutional challenge to teacher tenure statutes. Basically, the claim is that it is too difficult to fire teachers and the tenure statutes violate the Education Article in the NYS Constitution. For Mitch's take on the case, see this post at his blog Teacher and New York Public Employee Lawyer.
Tuesday, March 20, 2018
On March 5, 2018, the U.S. Department of Labor announced that settlements totaling $13.9 million and covering over 2,400 workers with four Chinese contractors building the Imperial Pacific casino in Saipan. Many of these workers paid $6,000 or more to labor brokers in China, incurring significant debts with high interest rates, based on false promises of high-paying jobs in the United States. Instead, upon arriving in Saipan, the workers were stripped of their passports, forced to work long hours under dangerous conditions, and paid below minimum wage. OSHA also imposed significant fines against these contractors and the Department of Justice prosecuted several managers of these companies. News of the settlement was published by numerous media outlets, such as the Associated Press, New York Times, Washington Post, and South China Morning Post, and included a quote from Aaron Halegua, a lawyer and NYU research fellow who assisted the workers in this process and has written about the situation in Saipan elsewhere. Aaron discussed the importance of the settlement and necessary measures to prevent similar abuses from happening again. Specifically, he recommended that the casino, at a minimum, require contractors to purchase surety bonds, train workers about their rights, and hire a third-party monitor to oversee safety and labor conditions. One of the challenges will be distributing the settlement monies as almost all of the workers are now back in China.
Sunday, March 11, 2018
On Wednesday, March 7, 2018, the United States Court of Appeals for the Sixth Circuit ruled that Title VII of the Civil Rights Act of 1964 explicitly prohibits employment discrimination against transgender persons. The court also ruled that the Religious Freedom Restoration Act (“RFRA”) may not be used as a shield to justify discrimination against LGBTQ employees. In its decision, the court rejected t e legal theory, rooted in the Supreme Court’s Hobby Lobby decision, that businesses may fire or mistreat protected employees under the guise of religious liberty.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, Aimee Stephens, a transgender woman who worked as a funeral director, started her employment presenting as male, the sex she had been assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.”
The EEOC brought suit on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII. The district court concluded that Stephens had suffered sex discrimination, but not specifically because she was transgender. Rather, the district court held that Stephens had suffered sex discrimination because, consistent with Hopkins and its progeny, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though she had been subjected to sex discrimination, the funeral home had a right to terminate her under RFRA, even though the funeral home was not affiliated with any specific religious institution. The district court held that RFRA protected their personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In her opinion for the Court of Appeals, Judge Karen Nelson Moore rejected the analysis of the district court regarding both the reach of Title VII in providing protection for transgender persons and the availability of RFRA as a shield behind which an employer is free to engage in otherwise unlawful conduct. Judge Moore wrote that Title VII does specifically outlaw employment discrimination against transgender persons for two distinct reasons. First, Title VII prohibits discrimination against persons for failing to conform to expected gender stereotypes. As Judge Moore explained, in firing Stephens because she was transitioning, Rost penalized her for failing to conform to the sex assigned to her at birth. Judge Moore wrote, “an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.” Second, and more important, Judge Moore concluded that discrimination against transgender persons is inherently sex based, in that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” Where an employer discriminates against an employee because of her “transgender or transitioning status,” that employer is necessarily taking sex into account—in violation of Title VII.
Regarding the district court’s conclusion that RFRA provided protection for the employer’s discriminatory conduct, Judge Moore rejected this analysis. For RFRA to serve as a shield for discriminatory conduct, RFRA requires a showing that there has been a “substantial burden” on “religious exercise,” that is not “in furtherance of a compelling government interest” and/or “the least restrictive means of furthering” that interest. In this case, the funeral home claimed that the presence of a transgender employee would (1) “often create distractions for the deceased’s loved ones” and (2) force Rost to leave the industry, because working with a transgender person was an infringement on his religious beliefs.
Judge Moore concluded that neither of these constituted substantial burdens on Rost or the funeral home. Regarding the first claimed burden, Judge Moore stated that employers cannot escape the requirements of Title VII simply by assuming the “presumed biases” of their customers. With regard to the second claimed burden, Judge Moore wrote that “tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.” Judge Moore asserted that Stephens did not ask Rost, in any way, to endorse or to aid her transition. Rather, she only sought to remain on staff at the funeral home. According to Judge Moore, allowing her to remain employed does not “substantially burden his religious practice.”
In conclusion, Judge Moore asserted that even were Title VII to impose a “substantial burden” on Rost’s religious beliefs in this case, it would still survive scrutiny under RFRA, in that eliminating or preventing employment discrimination because of sex is clearly a “compelling interest,” and no less “restrictive means” of forbidding such discrimination exist other than the enforcement of the law. Otherwise, according to Judge Moore, all modern civil rights law would be called into question.
While it is not yet clear whether the funeral home plans to seek an en banc rehearing of this case or seek certiorari in the Supreme Court, in this decision, the Sixth Circuit joins with the Second Circuit and the Seventh Circuit in concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation and gender identity. While the Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit raising this question, the Supreme Court ultimately will have to address this issue.
... Associate Professor Myanna Dellinger ... is the Editor-in-Chief of the ContractsProfBlog and a rising star in legal academia. She is the creator of the Global Energy and Environmental Law podcast (also available on iTunes), a frequent speaker at academic symposia and author of a dozen law review articles and many other publications.
After graduating first in her class at the University of Oregon School of Law in 2008, she had two clerkships, including for the Hon. Procter Hug, Jr. on the U.S. Court of Appeals for the Ninth Circuit. Myanna started her academic career as a Visiting Assistant Professor at Whitter Law School in 2010-11 and then accepted a tenure-track position at Western State College of Law in 2011-12. She was promoted to Associate Professor in 2014, effective for the 2014-15 academic year. In 2014, she was recruited by the University of South Dakota School of Law Dean Thomas Geu and offered a lateral position as an Associate Professor for the 2015-16 academic year, which she accepted. Since arriving at USD, Myanna has continued to thrive. She has published four highly-regarded law review articles since joining the faculty there, and has consistently received outstanding teaching evaluations. In 2016, she received a Fulbright Fellowship to the Institute for Advanced Sustainability Studies in Potsdam, Germany. She is highly involved in service to the school, the community and the broader profession and has brought significant positive attention to the school.
With credentials like this, one would think that the University of South Dakota would be thrilled to have her and would be doing everything to keep her, especially given the fact that the law school has only one tenured female faculty member and was cited by the ABA in its last site visit for its lack of gender diversity. Unfortunately, that is not the case. Although the law school has been strongly supportive of Myanna, the central University Administration seems to be doing everything they can to make her feel unwelcome.
Friday, March 9, 2018
Jessica Fink's organizing a symposium in April in "Gender Sidelining". The webpage explains:
Subtle, yet pernicious forms of unequal treatment exist wherein women may not experience adverse outcomes that are actionable under anti-discrimination or other laws, but nonetheless may find themselves hindered in their ability to advance and flourish. These myriad behaviors, policies, and practices lead to "Gender Sidelining"—a term recently coined by a group of law professors at California Western—whereby women experience obstacles that the law does not (and arguably should not) proscribe.
The Gender Sidelining Symposium on April 26-27, 2018 will highlight examples of and help us understand the process by which this phenomenon occurs. By bringing together academics and practitioners from a broad range of fields—employment and labor law, business law, criminal law, politics, and beyond—the symposium will take an innovative look at how existing social structures can lead to adverse treatment on the basis of gender when actions may not be motivated by gender-based animus or even by implicit bias.
Questions can be directed to Jessica at firstname.lastname@example.org.
Wednesday, March 7, 2018
David Doorey from York University in Toronto sends along a plug for Osgoode Hall Law School's part-time specialist LLM degree with a specialization in labor and employment law. From David:
Thanks to Christine Duffy (Senior Staff Attorney, ProBono Partnership) who sent along news that the Sixth Circuit handed down its opinion in EEOC v. R.G. & G.R. Harris Funeral Homes today. You might recall from our earlier postings(mine here and Christine's much more complete post here) that this lawsuit was brought by the EEOC against a funeral home, alleging that the funeral home discriminated against its funeral director Aimee Stephens by refusing to allow her to follow its dress code for female funeral directors and terminating her when she requested to do so. Aimee began work as Anthony Stephens and had been designated male at birth. The EEOC argued that the funeral home's conduct was sex discrimination, that it terminated Stephens based on sex stereotypes about how men and women should present themselves. The funeral home owner, Thomas Rost, defended his action, arguing that it grew out of his religious beliefs that sex is immutable and binary and that he would be complicit in sin if he allowed an employee to wear the uniform of the other sex.
On cross-motions for summary judgment, the district court had held that the Religious Freedom Restoration act (RFRA) barred the EEOC from enforcing Title VII in this case. The Sixth Circuit reversed the grant of summary judgment for the funeral home and granted the EEOC's motion for summary judgment. The district court had found that Stephens's charge had stated a claim for discrimination based on sex stereotyping, but held that the case could not be pursued alternatively on the theory that discrimination on the basis of gender identity or gender transition was sex discrimination. The Sixth Circuit agreed that this could go forward as a sex stereotyping case, but reversed the other part of that holding, instead holding that discrimination on the basis of gender identity is sex discrimination and that the EEOC should have the opportunity to prove that the funeral home fired Stephens because of her gender identity. The courts thorough analysis of this issue is worth reading in full.
Based on this potential Title VII violation, the Sixth Circuit then turned to the funeral home's defense, reversing its RFRA holding. The court first considered an issue raised in an amicus brief, that the ministerial exception should apply. Finding that the funeral home had virtually no religious characteristics -- it wasn't affiliated with any church, its articles of incorporation didn't avow any religious purpose, its employees were not required to hold any particular religious views, and it employed and served individuals of all religions -- it was a religious organization that could claim a ministerial exemption. Analyzing RFRA, the court held that while the owner, Rost's action of running the funeral home may have embodied some sort of religious exercise, having to continue to employ Stephens would not substantially burden that. Rost asserted that potential clients would be distracted by Stephens' appearance. The court found that speculative and based in biases, but also found it irrelevant, holding that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA, analogizing it to a cases finding customer preference insufficient to establish a business necessity or bona fide occupational qualification defense. The court also held that there was no evidence of a financial burden the funeral home could not avoid or sufficient complicity in Stephens' gender expression to constitute a substantial burden.
Even assuming that the funeral home had made that showing, the court further held that prohibiting sex discrimination was a compelling governmental interest, and requiring the funeral home to allow Stephens to wear women's attire at work was the least restrictive means to further the EEOC's interest in eradicating discrimination based on sex stereotypes from the workplace. In other words, Title VII is itself strikes the appropriate balance and is the least restrictive means to enforcing the government's interest in eradicating discrimination.
I'm sure there is more that I'm missing, and I encourage you to read the whole opinion.
The US Department of Labor (DOL) unveiled yesterday a new six-month pilot program to encourage employer compliance with the Fair Labor Standards Act. Under the Payroll Audit Independent Determination program (PAID), DOL would cover any back pay employers owed to workers under FLSA (wages owed under FLSA’s minimum wage or overtime provisions). In exchange, the employees would release any of FLSA claims for those violations, and employers would agree to self-auditing procedures for their pay practices. See here, the PAID website here, along with mixed reactions reported here.
One DOL-touted benefit of PAID: Participating employers won’t have to pay FLSA “liquidated damages or civil monetary penalties” so long as those employers “proactively work with WHD to fix and resolve the compensation practices at issue.” DOL won’t make them and, it seems, employees would at least release the employer from any liquidated damages otherwise owed under FLSA for the “identified violations” and relevant time period.
This matters. An employer that violates FLSA is on the hook not just for the wages it should have paid but didn’t (back pay) but also “an additional equal amount as liquidated damages,” 29 U.S.C. § 216(b), unless the employer can show that it’d acted “in good faith” and had “reasonable grounds for believing that his act or omission” didn’t violate FLSA, 29 U.S.C. § 260. So, if a worker is owed $40 in unpaid wages, she may recover up to $80, that is, the $40 in unpaid wages plus and the “additional equal amount” (another $40, the “liquidated damages”).
The FLSA liquidated damages provision isn’t just a damages multiplier. Rather, according to the US Supreme Court, it refers a separate item of compensatory damages: the loss that results because the employer didn’t pay the owed wages on time. Such as loss is real, especially where the worker needs the wages paid on time to maintain a minimal standard of living, but Congress thought that type of loss “too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Savings Bank v. v. O’Neil, 324 U.S. 697, 707-08 (1945).
Accordingly, the employer who gets PAID stands to save up to double–not just the back pay they’d owe the employee, but also the liquidated damages they’d also pay, in cases where the employee would otherwise sue and win. Since FLSA has a fee-shifting statute, employers stands to save more still in such cases. (Even more still if employers fear a FLSA hot-goods injunction. More on that here.) By the same token, however, employees who sign FLSA releases under PAID stand to give up any liquidated damages award, that is, up to half of what they’d recover if they sue and win. DOL’s view: Under PAID, employees will get all their owed back wages “faster” than if they had to sue, and “without having to pay any litigation expenses or attorneys’ fees.”
Now, a puzzle: How would an employer getting PAID fare under parallel State wage and hour law? Like FLSA, many States have wage and hour laws with liquidated damages provisions. See, e.g., Cal.Labor Code § 1194.2; Md. Labor and Employment Code § 3-427(a)(2); W. Va. Code § 21-5B-4(a). In States where the employer’s acts or omissions violated both FLSA and a State’s wage and hour law, would the employee’s release under PAID cover only any FLSA claim or any and all legal claims (including State law claims) arising from the employer’s underpayment? In some States and localities, this matters, because the minimum wage and overtime provisions are more generous there. This issue matters less in, for example, the five States with no State minimum wage.
Thursday, March 1, 2018
How does the NLRB typically do statutory interpretation? For her paper An Empirical Examination of Statutory Interpretation, forthcoming in the Minnesota Law Review, Amy Semet looked closely at the less than 2 percent of NLRB opinions issued from 1993 to 2016 in which the Board majority didn't just refer to prior case decisions, but itself explicitly engaged in some kind of statutory interpretation of the National Labor Relations Act.
Among other things, for the 121 cases in which NLRB majority opinions interpreted the NLRA “as a matter of first impression,” Semet reports the kinds of statutory-interpretation arguments that appeared (p. 31, tbl. 1):
|Case Type||Text-Partial||Text-Primary||Language Canons||Leg. History|
And here, from the paper abstract, on what Semet ultimately found:
Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history.
In short, Semet concludes that “despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do.”
Deborah Widiss (Indiana) has a really interesting new article on SSRN: Intimate Liberties and Antidiscrimination Law, published in the Boston University Law Review. From the abstract:
In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.
During the 1980s and 1990s, several state supreme courts held that landlords who refused to rent to unmarried couples were responding to unprotected conduct (i.e., non-marital intimacy) rather than engaging in impermissible discrimination on the basis of marital status. Similar arguments are made today in cases concerning same-sex couples who are denied wedding-related services or unmarried pregnant women who are fired. This Article argues such decisions misconstrue the relevant statutory language, and it shows how modern constitutional doctrine should inform the interpretation of private antidiscrimination law to offer more robust protections for intimate liberties.
This Article also addresses whether antidiscrimination protections related to intimacy can be enforced despite objections premised on religious beliefs. Some courts, as well as the Trump Administration, have suggested that statutes prohibiting discrimination on the basis of marital status or sexual orientation serve less “compelling” interests than provisions prohibiting race discrimination. This argument is deeply flawed. Courts have long recognized that statutes intended to eliminate discrimination serve compelling purposes, even when they address factors that do not trigger strict scrutiny under the Equal Protection Clause. The compelling nature of antidiscrimination laws related to intimate liberties should be especially obvious: They protect individuals’ freedom to make fundamentally important choices that are central to personal dignity and autonomy.
In my view, the interconnectedness of liberty and equality is not given enough scholarly attention. This article is a welcome contribution, and I'm excited to read the whole thing.
Wednesday, February 28, 2018
There is a really interesting article in today’s Harvard Business Review which looks specifically at the issue of minority employment in executive level positions. The article is particularly interesting as it reviews some of the more recently available data on the employment of minority groups in upper level management jobs.
In reviewing these numbers, the article finds "serious gaps in income, promotional opportunities, and advancement for minorities and women of all races." When researching these issues, it is always difficult to find good information on this topic. This piece summarizes some of the more recent information provided by the EEOC on this issue.