Friday, December 19, 2014
The US Department of Justice now reads Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination “based on gender identity, including transgender status.” In a memo to DOJ components and the US Attorneys, dated December 15, 2014 (and available here), the Attorney General reasoned:
The most straightforward reading of Title VII is that discrimination “because of ... sex” includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using “the simple words ‘because of,’ ... Congress meant to obligate” a Title VII plaintiff to prove only “that the employer relied upon sex-based considerations in coming to its decision.” 490 U.S. at 241-242. It follows that, as a matter of plain meaning, Title VII’s prohibition against discrimination “because of ... sex” encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).
Accordingly, DOJ “will no longer assert that Title VII's prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).” (The memo added: “’Sex-stereotyping’ remains an available theory under which to bring a Title VII claim, including a claim by a transgender individual, in cases where the evidence supports that theory.”)
Our own Joe Seiner was cited a couple of times in the Ninth Circuit's recent Aguilar decision. In the en banc decision, the court held that the Supreme Court's Gore ration test for punitive damages is not needed to examine capped Title VII punitive awards. The plaintiff won a claim of sexual harassment and received no actual damages, 1$ in nominal damages, and $300,000 in punitive damages (this was capped after the jury awarded $868,750).
In reaching the decision, the court cited Joe's Iowa Law Review article, Punitive Damages, Due Process, and Employment Discrimination.
Nice job Joe!
Thursday, December 18, 2014
Many of you likely use the example of America Apparel CEO and founder Dov Charney when discussing sex discrimination in class. This CEO has long been publicly accused of sexual harassment in the workplace. Given the creative environment in which he works, it is even possible to raise the question with students of whether Charney would have a First Amendment defense to these types of accusations.
After this long and troubled history with the company, the Board of Directors of America Apparel has finally fired Charney. From the Huffington Post:
"Charney had been suspended . . . pending an internal investigation of alleged misconduct. He stood accused of using company funds for his own personal use, sexual harassment of staffers and allowing nude photos of a former employee to be posted online."
Bloomberg/Businessweek also addressed the termination, and reported that:
"After an investigation that seemed to last much longer than anyone anticipated, the board decided 'that it would not be appropriate for Mr. Charney to be reinstated as CEO or an officer or employee.'”
This has been an interesting issue to follow, and it will be intriguing to see how the company fares in the absence of this highly controversial CEO.
- Joe Seiner
Tuesday, December 16, 2014
Yesterday, the NLRB issued a decision in Babcock & Wilcox, which changed its approach to arbitration deferral. Under the Board's previous "Olin" standard, it would defer to an arbitration decision if the contractual issue decided by the arbitrator is factuall parellel to the unfair labor proactice before the Board, the arbitrator was generally presented with the facts relevant to the ULP, and the award was not clearly repugnant to the NLRA. In reversing this standard, the Board argued that it did not adequately protect employees' NLRA rights because it allowed deferral when it was not clear that an arbitrator decided the statutory issue.
Under the new Babcock & Wilcox standard, the NLRB will defer to an arbitration award when the party arguing for deferral shows that the statutory issues were presented to the arbitrator, the arbitrator addressed the statutory issue or was prevented from doing so by the party opposing deferral, and NLRB law reasoanbly permits the award. Like the D.R. Horton case, this is another recent example where the Board has stressed the importance of NLRA rights in the face of pressure to favor arbitration.
Conflicts with arbitration usually fall arbitration's way before the Supreme Court, so expect a significant challenge to this new standard. That said, adjusting when to defer to arbitration is less of a direct challenge and more withing the Board's discretion, so this decision could well survive. Stay tuned.
Hat Tip: Patrick Kavanagh -JH
Monday, December 15, 2014
Congratulations to very-good-friend-of-blog Paul Secunda on his official appointment today as Chair of the ERISA Advisory Council. The U.S. Department of Labor issued a press release today announcing the appointment of Prof. Secunda as Chair to the Advisory Council on Employee Welfare and Pension Benefit Plans. In the press release, U.S. Secretary of Labor Thomas Perez noted the importance of the work of this prestigious Council. The release further highlighed some of the wonderful achievements that Professor Secunda has accomplished over his impressive career. Please join me in congratulating Paul on his latest success. The press release is attached below:
"WASHINGTON – U.S. Secretary of Labor Thomas E. Perez today announced the appointment of five new members to the 2015 Advisory Council on Employee Welfare and Pension Benefit Plans – also known as the ERISA Advisory Council. He also announced the incoming chair and vice chair of the council. . . “Protecting workers’ benefits is a priority for the ERISA Advisory Council and the department,” said Secretary Perez. “These new members bring invaluable skills and experiences to the council, and will provide guidance and support to further the council’s critical mission.” . . . The 15-member council provides advice on policies and regulations affecting employee benefit plans governed by the Employee Retirement Income Security Act. By law, members of the council serve for staggered three-year terms. Three members are representatives of employee organizations, at least one of whom represents an organization whose members are participants in a multiemployer plan. Three members are representatives of employers, at least one of whom represents employers maintaining or contributing to multiemployer plans. Three members are representatives of the general public. There is one representative each from the fields of insurance, corporate trust, actuarial counseling, investment counseling, investment management and accounting.Current members Paul Secunda and Mark E. Schmidtke will serve as the 2015 council’s chair and vice chair, respectively. Secunda is Professor of Law and Director of the Labor and Employment Law Program at Marquette University Law School in Milwaukee, Wis. He previously practiced labor law in Philadelphia and was chair of the Employee Benefits and Executive Compensation Section of the Association of American Law Schools."
-- Joe Seiner
Sunday, December 14, 2014
Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) have just posted on SSRN a powerful new indictment of Supeme Court LEL jurisprudence, Fakers and Floodgates (Stanford J. Civil Rights & Civil Liberties 2014). Here's the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.
Friday, December 12, 2014
Doesn't the NLRB know this is a busy week for me? First was yesterday's e-mail decision in Purple Communications. Today, the NLRB released new final rules to reform the representation process. As readers are well aware, this is Version 2.0 for the representation rulemaking process, which was initially caught up in challenges over NLRB member appointments. The NLRB decided to drop the rules rather than fight the challenge. Some commentators (ahem) thought that the critics should beware of what they ask for because the NLRB could come back with stronger rules. The Board proposed just such a set of rules in February. The Board has now adopted them in a final rule. I haven't had time to compare the proposed and final rules side-by-side, but they look substantially the same at first glance.
Although these rules are somewhat broader than the ones in 2011, I should note that they aren't a surprise, as they track the NLRB initial proposed rules in 2011, which the Board eased back on a bit in their final rules. The Board's information site on this year's rules has a very helpful chart comparing the old and new rules that you should definitely check out (but doesn't copy well on the blog). Instead, I am copying the Board's summaries of the changes below; the full set of final rules is here.
One final note. In spite of what critics will argue, these rules do not set up "ambush elections." Instead, the NLRB is proposing modest reforms to eliminate unwarranted delay in the election process, both before an election is run and appeals to a completed election. They are also doing basic modernization reforms, such as allowing electronic filing and including e-mail addresses in the Exclesior list, among other things. There will still be plenty of time for unions and employers to express their views on unionization and for employees to make an informed decision. There will just be somewhat less time for employers fight the union with captive-audience meetings and other aggressive tactics, some of which are illegal but difficult to remedy. Employers will still have time for those strategies, just not as much. The rules will also lessen the amount of time that employers can stall after a union wins an election--time that is often vital to a union trying to maintain support. Finally, many critics will be people who argued against card-check elections by waving the banner of fair secret-ballot elections. This is exactly what the Board is doing here by making the secret-ballot process fairer and lessening unnecessary delay.
Hat Tip: Patrick Kavanagh
Here's the summary:
Modernizing Board Procedures
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.
Election Voter List – The employer must include available personal email addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.
Streamlining Board Procedure and Reducing Unnecessary Litigation
Identifying Disputed Issues – The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.
Post Hearing Oral Argument and Briefs – All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.
Review of Regional Director Rulings – The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.
Increasing Transparency and Standardizing Board Process
Earlier and more complete information to the parties – When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties. The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.
Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
Scheduling of Hearings – Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties. Post-election hearings will generally open 14 days after objections are filed.
Thursday, December 11, 2014
There is an interesting article over at Slate.com which looks at the potential bias college professors face on the basis of gender when receiving student evaluations. The article discusses a new study out by North Carolina State University on this issue. From the article:
“Students gave professors they thought were male much higher evaluations across the board than they did professors they thought were female, regardless of what gender the professors actually were.”
This article and study are really interesting and worth a quick read. It definitely shows the importance of using more than simply student evaluations when evaluating teacher performance.
With right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction: "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!
Today, the NLRB issued its 3-2 decision in Purple Communications, reversing Register-Guard. In Register-Guard, the Board concluded that employees had no right to e-mail communications that used employers' equipment or networks (including employer email addresses). This gave employers f almost total autonomy to ban workplace e-mails that involved NLRA-protected communications.
In Purple, the NLRB concludes that employees do have a Section 7 right to engage in e-mail communications at work, just like they have for written or oral communications at work under the Supreme Court's Republic Aviation case. As the Board noted, this result logically flows from Republic Aviation's holding that employer's real property interests cannot trump employees' NLRA right to engage in protected communications in the workplace--instead those interests must be balanced. The NLRB in Register-Guard distinguished Republic Aviation by relying on the fact that e-mail uses employers' personal, rather than real, property. However, as the Board acknowledged in Purple, that's backwards because personal property is entitled to less protection than real property. The Board also downplayed early cases making similar points for bulletin boards, telephones, and other personal property--none of which provided any substantive analysis of the issues involved.
The main rule in Purple is a Republic Aviation-based analysis, in which:
we will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
Some important points for this analysis. First, the Board did away with some aspects of Republic Aviation that doesn't fit e-mail well. In particular, the right to use e-mail is not based on whether it was made in a non-work area or whether it is a solicitation or distribution. This makes perfect sense, as neither distinction applies to electronic communications. In contrast, the rule is limited to non-work time. As the Board noted, this is going to require case-specific analyses. That shouldn't be too hard in most cases (e.g., if employees don't have work and non-work time delineated, the employer shouldn't be allowed to limit e-mail based on that distinction), but there will be some gray areas. Second, the presumption is limited to instances where employees already have access to employer e-mail. Third, the decision is limited to e-mail, but not other electronic communications. I find this odd, as the rationale of the decision should apply to texts and other similar electronic communications. But the Board was probably just trying to limit the holding's reach. Finally, the Board shed some light on how it will treat surveillance issues. This was a potentially big issue, but the Board took a fairly employer-friendly view by stating that as long as the employer monitors e-mail as it ordinarily would (e.g, it doesn't increase monitoring when a union is on the scene), it will be OK.
As many readers are aware, I've written a lot on this issue (including an amicus brief in Purple) and am quite pleased with the decision (if readers want more detail on these issues, you can see some of my earlier work here, here, and here). It could've gone further, but I think the Board issued a very sound decision that wisely tried not to go broader than it needed to. Although critics will say otherwise, the bottom line is that Purple is not a radical decision. Register-Guard was the aberration by flauting both Supreme Court and basic common law. In Purple, the Board merely reversed an error and extended well-established precedent to a mode of communication that isn't even that new anymore.
Wednesday, December 10, 2014
The Los Angeles Times has published a series of stories—“Product of Mexico,” by reporter Richard Marosi, with photos and video by Don Bartletti—on the harsh conditions faced by farm laborers in Mexico who work to supply tomatoes, cucumbers, and other fruits and vegetables for sale in US stores. Parts one and two of this four-part series are here and here.
Marosi and Barletti spent eighteen months traveling across nine Mexican states. They observed conditions at thirty farm labor camps, and interviewed “hundreds” of workers. They found that many farm labors “are essentially trapped for months at a time in rat-infested camps, often without beds and sometimes without functioning toilets or a reliable water supply.” Some growers withhold weekly wages (in violation of Mexican law) “to prevent workers from leaving during peak harvest periods.” And farm workers “often go deep in debt paying inflated prices for necessities at company stores.” Some go hungry. Others face the threat of violence.
They also conclude that although many US companies have “social responsibility guidelines” that preclude buying goods from suppliers that do not comply with minimum labor standards, those commitments are poorly enforced. That’s consistent with the general conclusion of some (e.g., Locke 2013) that, given complex cross-national supply chains, such private voluntary agreements are quite limited in their ability to ensure minimum labor standards.
On the heels of oral argument at the US Supreme Court on Young v. United States Parcel Service, which concerns the Pregnancy Discrimination Act of 1978 (“PDA”), Mary Ziegler has posted (SSRN) “Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty.” Based on original archival research, Ziegler argues that the PDA embodies a principle of “meaningful reproductive choice” that casts doubt on the Fourth Circuit’s opinion in Young. More from the abstract:
Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights. A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Hat tip: Legal History Blog
Tuesday, December 9, 2014
It's official. On Monday, the Senate voted to confirm Lauren McFerran to the NLRB by a 54-40 vote. It's great to have the NLRB remaining at full strength and, while I'm disappointed not to see Sharon Block back, McFerran looks like she'll be really good.
Hat Tip: Patrick Kavanagh
The Supreme Court ruled unanimously today that time spent waiting to clear security after a work shift is not compensable time under the FLSA. The opinion, authored by Justice Thomas, is available here. Justice Sotomayor filed a separate concurring opinion. The Court held that time waiting to go through security at the end of the shift was neither a "principal activity" that employees were employed to perform, nor "integral and indispensible" to such principal activities. Rather, the security screenings were non-compensable "postliminary" activities under the Portal-to-Portal Act.
The case is Integrity Staffing Solutions v. Busk, and was previewed on this blog here. The Court specifically rejected the employees' argument that the employer could have reduced the wait times to de minimis levels, but chose not to, resulting in 25 minute wait times. Justice Thomas wrote that such arguments are properly the subject of contractual negotiation between employees and employers, not FLSA suits.
This could present an opportunity for a future empirical study - do employees receive compensating wage differentials for increasingly burdensome security line waits?
Monday, December 8, 2014
There is a really interesting piece over at BusinessWeek which looks at the formation of sexual harassment as a cause of action. We too often take this cause of action for granted, and the history on this issue is extraordinarily rich and complex. The article looks at the impact of some of the early federal district court decisions on this cause of action, including Williams v. Saxbe. The article also looks at where the term "sexual harassment" originated. From the article:
"In 1975, a trio of feminist activists in the Human Affairs program at Cornell University wrote a letter describing a painful and familiar story. . . They coined the term [“sexual harassment”] in a letter sent out seeking a lawyer to take [a] case. Finally, something that had been going on for as long as women had worked alongside men—the abuse of female employees by male bosses—had a name. And that meant it could be fought."
This is a short but excellent article, and definitely worth at least a quick read.
- Joe Seiner
Saturday, December 6, 2014
A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Bernard Banks (Kiely Thompson Caisley - New Zealand) informs us that the annual LawAsia Employment Conference (which he chairs) will be held May 15-16, 2015 in Ho Chi Minh City, Vietnam. If you are interested in presenting, contact Bernard. I attended this last year, and through the conference ended up collaborating with labor/employment practitioners from all over the world on an article (forthcoming Arizona J. Int'l & Comparative L.) on labor outsourcing. The conference is a great opportunity to see labor/employment issues from myriad perspectives, and to meet labor/employment folks from everywhere. If you're interested, let me know and I'll be happy talk with you.
Stephen Lee (Irvine) has just posted on SSRN his essay (forthcoming Irvine L. Rev.) Policing Wage Theft in the Day Labor Market. The toic is one with which -- until I read his essay -- I was unfamiliar. Here's an excerpt of his abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft.... In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft.... My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Friday, December 5, 2014
There is an interesting article over at CNN Money which discusses a disturbing sexual harassment lawsuit at the real estate giant Zillow. An employee who was terminated late last summer alleges that she was subjected to graphic displays of sexual-based content. From the article and the allegations in the lawsuit,
“[the plaintiff’s] male supervisors ranked her according to her breast size, sent pictures of their penis to her, and demanded sexual gratification and obedience by [her] to continue her employment… [the workplace environment constituted an] adult frat house."
These are indeed alarming allegations, and if true, paint a disturbing picture of this employment setting. It will be an interesting case to follow…
-- Joe Seiner
Thursday, December 4, 2014
- The Conference of the Regulating for Decent Work Network, in July 2015, in Geneva. The topic will explore "Developing and Implementing policies for a Better Future at Work."
- The Labour Law Research Network Conference in June 2015, in Amsterdam. I attended the inaugual LLRN conference in Barcelona, which was quite interesting.
They both look really interesting, so definitely worth checking out.