Friday, November 6, 2009
Miriam Cherry (McGeorge, Visiting Georgia) (she likes "Georges" I guess) has posted on SSRN her piece in the Alabama Law Review: Working for (Virtually) Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace.
From the abstract:
As more work enters cyberspace, takes place in virtual worlds, and collapses traditional nation-state barriers, we are entering a new era of “virtual work.” In this article, I use “virtual work” as an umbrella term to encompass work in virtual worlds, crowdsourcing, clickworking, even sweeping in, to some degree, the commonplace telecommuting and “mobile executives” that have become ubiquitous over the past decade.Are such new forms of “work” entitled to the minimum payment standards mandated under the FLSA? As the United States enters another economic crisis, and with advances in technology key to continued economic growth and stability, these questions demand serious consideration. The FLSA now faces a variety of new scenarios created by work in cyberspace, and there is a strong case that the economic and equitable purposes of the FLSA are best served by ensuring that the statute is construed broadly so that cyberworkers, clickworkers, and virtual workers receive the federal minimum wage . . . .
This Article begins, in Part One, with a brief background discussion of labor markets in cyberspace. The discussion here contains an in-depth description of the process of pounding the virtual pavement - looking for work in cyberspace - for the purpose of showing the special employment challenges in this context and thus why such work warrants the protection of the FLSA. With that background, Part Two discusses the application of the FLSA to work in virtual worlds, crowdsourcing, and clickworking. Finally, Part Three makes the argument that the purposes of the FLSA are best achieved by ensuring their application to virtual work in the United States. Finally, the conclusion offers some thoughts about the broader applications of this argument and some possibilities for further thought and study, to be developed in future work.
I have actually read this piece already and it is quite good and informative on a topic I know very little about. Check it out!
Welcome news from the National Law Journal yesterday:
The Obama administration renewed its push today for legislation that would prohibit employment discrimination against gays and lesbians.
Thomas Perez, the U.S. Justice Department's assistant attorney general for civil rights, testified before a Senate panel that the legislation is a "top legislative priority" for the administration, even as the White House focuses on health care and global warming. The legislation was first introduced at least 15 years ago, but advocates for gays and lesbians are optimistic that it will pass in 2010.
Perez, giving his first testimony on Capitol Hill since his confirmation a month ago, said the federal government is at a loss now to fight discrimination based on sexual orientation or gender identity. Twenty-one states explicitly prohibit employment discrimination based on sexual orientation, he said.
All I can is say is better late than never.
I don't know if you are familiar with this case, but there is an interesting and funny case heading to a Quebec court later this month in which Walmart is seeking an injunction to stop the UFCW from using its logos and slogans on a website devoted to critizing Walmart and encouraging employees to join the union. Not surprisingly, the union is getting some good mileage out of this lawsuit. Here's my blog entry on the case, which includes a link to Walmart's pleadings.
And here is a taste of the blog post:
This lawsuit was likely received with great enthusiam at the union’s headquarters, since it attracts way more public attention to their website than they could ever had hoped. If I was the union, I’d fight this case to the Supreme Court if the injunction were actually to be granted. Here is the UFCW webpage on the lawsuit, and you can see how the union is putting the lawsuit to good use with “under the threat of censorship” yellow tape across the logos. And check out this very funny little parody.
The New York Times' Economix has a post on the OECD's recent report on union density. They link to a spreadsheet with the data, but more fun (to the extent that looking at a lot of declining union numbers can be fun) is the interactive chart. The data tells a familiar story for those who follow these things--the story being declining union density virtually everywhere--but the ability to make direct graphical comparisons of select countries is interesting.
Government officials have been saying for months that the unemployment rate would break the 10% barrier and, after the October data were released it's finally done so---standing now at 10.2%, a 26-year high that is an increase from the 9.8% rate last month. The underemployment rate stands at 17.5%. There have been some good economic signs lately--larger than expected growth in the GDP, increased hiring in the manufacturing sector, and slowing in the number of jobs lost--but employment generally lags behind over indicators during a recovery period and that trend looks to be particularly strong this time around.
Thursday, November 5, 2009
A reminder that the deadline for submitting proposals to Seton Hall's Fourth Annual Employment & Labor Law Scholars Forum is fast approaching. The deadline for paper proposals is November 10, 2009. According to the organizers:
The Forum will be held on January 22-23, 2010. Junior scholars are invited to submit paper proposals, 3-5 pages in length to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by January 8, 2010.
For further information visit the Forum website.
Tyler Gibb has an article forthcoming in the Michigan State University Journal of Medicine and Law that may be of interest to our readers: A Smack on the Chin or a Nibble? Content Analysis of the Impact of the Oakwood Trilogy. From the abstract,
On September 29, 2006 the National Labor Relations Board (NLRB) issued a trio of important decisions. These decisions, called the Oakwood Trilogy, represented the latest attempt by the NLRB to clearly define what it means to be a supervisor under the National Labor Relations Act (NLRA). Supervisors are outside the protection of the NLRA and are unable to unionize or participate in collective bargaining units. The Oakwood trilogy was widely criticized by labor and management advocates. Some critics foresaw dire consequences resulting from these decisions. However, management advocates praised the trilogy. One author declared that it had saved the NLRA.
More than three years after the Oakwood trilogy was published, there is still uncertainty regarding what its impact has actually been. This article uses content analysis, a novel methodology in legal scholarship, to show how the trilogy is actually being applied. This analysis yields a clear picture of the quantifiable impact of the trilogy.
Oakwood was a dispute regarding the supervisor status of nurses within a hospital. The impact of the trilogy in the healthcare industry is very important. By understanding how the NLRB is applying the Oakwood trilogy in the healthcare setting, employers may be able to use job descriptions and job responsibilities to exclude large numbers of nurses from collective bargaining units. On the other hand, nursing unionization efforts may also use the information to shield their members from exclusion under the trilogy.
Kati Griffith (Cornell - ILR) has just posted on SSRN her article in the American University Law Review: The NLRA Defamation Defense: Doomed Dinosaur or Diamond in the Rough?
Here is the abstract:
With the National Labor Relations Act of 1935 (NLRA), Congress intended to provide private-sector employees with the right to organize collectively for their mutual aid and protection in the workplace. However, the NLRA faces a tsunami of criticism, much of which highlights its inadequacies with respect to protecting collective activity among employees. In light of the NLRA’s myriad limitations, some scholars have developed promising proposals to identify new legal bases for protecting collective activity among employees outside of the NLRA.
This Article redirects our gaze back to the NLRA’s potential to protect some forms of collective activity. It elaborates the NLRA’s underappreciated role as a defense in state defamation lawsuits against worker organizations and employees engaging in collective activity. The defense requires courts to employ a defamation-defendant-friendly heightened standard of proof to defamation claims that arise in the labor context. The analysis shows that, while many aspects of the NLRA are beleaguered and out of step with modern workplace relations, the NLRA defamation defense has some potential to remain relevant in the context of new challenges, new worker organizations, and new worker organizing strategies. It cautions against the narrowing the NLRA’s preemption doctrine in such a way that endangers this underappreciated protection of collective activity.
I have had the privilege of reading Kati's piece. It is extremely well written, and even though it sides with a borader preemption theory under the NLRA than I am comfortable with, she makes a most persuasive argument. For those interested in keeping the emphasis on NLRA reform rather than exploring non-NLRA models, this is a must-read piece.
Before I got sidetracked by David Letterman and other current affairs, I was blogging about the application of the Teamsters burden-shifting framework in pattern or practice disparate treatment cases. Today, I want to revisit the question I posed in my first blog post: Under what circumstances, and under which antidiscrimination statutes, can the Teamsters method of proof be used by plaintiffs?
As Mike Zimmer noted in a comment to that post, perhaps nomenclature
should not be important in determining whether the Teamsters method of proof
can be employed in any particular type of case. Maybe the Teamsters method of proof should just be one of
several alternative ways for any plaintiff to establish an inference of
disparate treatment discrimination, regardless of the statute or the type of
discriminatory conduct at issue.
Perhaps it should not be dispositive that the ADEA does not contain the
words “pattern or practice.” I
would tend to agree. At least, it
seems to me, we should undertake a critical examination of the underlying
purposes and justifications for the Teamsters burden-shifting proof structure
when determining whether or not it should be available to plaintiffs in a
particular type of disparate treatment discrimination case.
As Mike Zimmer noted in a comment to that post, perhaps nomenclature should not be important in determining whether the Teamsters method of proof can be employed in any particular type of case. Maybe the Teamsters method of proof should just be one of several alternative ways for any plaintiff to establish an inference of disparate treatment discrimination, regardless of the statute or the type of discriminatory conduct at issue. Perhaps it should not be dispositive that the ADEA does not contain the words “pattern or practice.” I would tend to agree. At least, it seems to me, we should undertake a critical examination of the underlying purposes and justifications for the Teamsters burden-shifting proof structure when determining whether or not it should be available to plaintiffs in a particular type of disparate treatment discrimination case.
When we conduct this sort of critical examination, we can begin
to see why systemic harassment claims differ from other types of
systemic disparate treatment claims, and why the Teamsters-style “pattern or
practice” burden-shifting advocated by the EEOC is inappropriate in systemic harassment cases. To demonstrate this point, I return to
the Court’s reasoning in the Teamsters opinion. The Teamsters Court held that the McDonnell-Douglas formula
was not the only way for a plaintiff to establish a prima facie case of
disparate treatment discrimination, and therefore not the only way to create an
inference (or a rebuttable presumption) of intentional discrimination. Int’l B’hood of
Teamsters v. U.S., 431 U.S. 324, 358-59 (1977). (Continued after the jump).
When we conduct this sort of critical examination, we can begin to see why systemic harassment claims differ from other types of systemic disparate treatment claims, and why the Teamsters-style “pattern or practice” burden-shifting advocated by the EEOC is inappropriate in systemic harassment cases. To demonstrate this point, I return to the Court’s reasoning in the Teamsters opinion. The Teamsters Court held that the McDonnell-Douglas formula was not the only way for a plaintiff to establish a prima facie case of disparate treatment discrimination, and therefore not the only way to create an inference (or a rebuttable presumption) of intentional discrimination. Int’l B’hood of Teamsters v. U.S., 431 U.S. 324, 358-59 (1977). (Continued after the jump).
Wednesday, November 4, 2009
Volume 25, Number 3, Spring 2009
- Arlene S. Kanter, The United Nations Convention on the Rights of Persons With Disabilities and Its Implications for the Rights of Elderly People Under International Law, p. 527
- Mark C. Weber, Disability Rights, Disability Discrimination, and Social Insurance, p. 575
- Michael L. Perlin, Simplify You, Classify You': Stigma, Stereotypes and Civil Rights in Disability Classification Systems, p. 607
- Wendy F. Hensel, Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities, p. 641
President Obama has nominated Republican Victoria Lipnic to the EEOC. Lipnic has an extensive background in employment law, serving as Assistant Secretary of Labor for Employment Standards in the prior administration--she was responsible for administration and enforcement of the FMLA and FSLA, among other things--and counsel for the House Committee on Education and Labor. Most recently she was of counsel at Seyfarth Shaw. Another well qualified choice, which at least one source suggests should speed the other two nominations (Jacqueline Berrien and Chai Feldblum) along, which, in turn, will keep the proposed ADA regulations on schedule.
Hat tip: Patricia Schaeffer
Over on Concurring Opinions, friend of the blog Mike Zimmer (Loyola-Chicago) has an interesting commentary on the recent Gross Supreme Court decision, which deals with the shifting of burdens of proof in ADEA cases.
Here's a taste:
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas) . . . .
With Price Waterhouse gone, burden shifting for age act cases was also gone. Though we did not know this until Gross, the linkage standards of both the ADEA and, at least before the 1991 Amendments, Title VII were always the same: “but-for” with the burden of persuasion on the plaintiff. Neither Title VII nor the ADEA had burden shifting even though we did not know that until Gross was decided in 2009. Therefore, adopting a bold strategic move paid off for the employer and its counsel before the Supreme Court.
Read the whole thing. It is really quite good and suggests an important role that counsel for the defendants played in this pivotal employment discrimination case.
Last week, Workplace Flexibility 2010 held a congressional briefing on ways to improve the availability of flexible work arrangements. BNA's Daily Labor Report (subscription required) reported on the briefing, which included speakers from numerous employer and employee groups. Some of the topics discussed were phased retirements, accommodations for disabled workers, flexibility for victims of domestic violence and military families, and how flexible arrangements can help businesses.
I know from my family's own experience--my wife works half-time as a telecommuter--that these arrangements often be a make-or-break factor in someone's ability or willingness to work. There's still a lot of resistance to less usual arrangements in many quarters, but as they become more widespread the resistance to change will hopefully lessen.
Hat Tip: Marcy Karin
The National Mediation Board, acting on a 2-1 vote by its members, has just published a proposed rule for representation elections in for airline and railroad workers. The new rule would, except in extraordinary circumstances, allow a union to be elected by a majority of votes cast--a change from the previous rule which requires a majority of employee eligible to vote. The rule would also allow employees to vote "no" in an election, which currently isn't an option (this is a function of the other change because employees can currently just choose not to vote, which counts as a "no" vote under the "majority of eligible voters" rule). The proposed rule does not create a similar process for decert efforts.
The agency's summary:
As part of its ongoing efforts to further the statutory goals of the Railway Labor Act, the National Mediation Board (NMB or Board) is proposing to amend its Railway Labor Act rules to provide that, in representation disputes, a majority of valid ballots cast will determine the craft or class representative. The NMB believes that this change to its election procedures will provide a more reliable measure/ indicator of employee sentiment in representation disputes and provide employees with clear choices in representation matters.
Hat Tip: Dennis Walsh
Tuesday, November 3, 2009
George Miller, Chair of the House Committee on Education and Labor and Lynn Woolsey, Chair of the Workforce Protections Subcommittee have introduced emergency temporary legislation today that would guarantee five paid sick days to any employee sent home or directed to stay home by an employer because of a contagious illness. Hearings will be held the week of Nov. 16, and if it is enacted, the bill will become effective 15 days after signing and expire in two years. From the Committee's blog post, here:
Explaining why this bill is needed, Contra Costa Times quotes Chairman Miller, "Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their co-workers’ or customer’s health. This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”
This announcement comes at the same time that the NY Times has several articles on the subject. See this on the Economix Blog for more on who gets sick leave. And this on how the lack of paid leave may worsen a flu pandemic. If the lack of paid sick leave poses serious public health risks and some employers penalize people for taking sick leave (even unpaid), it seems we maybe we should not rely on employers to send people home as a condition to receiving benefits and may need a different kind of protection. I'm assuming here that the FMLA would not provide that protection because of the relatively short duration of the flu. In addition, if small employers have difficulty affording such leave, maybe we should move to a sick leave insurance system like we have for unemployment.
Wal-Mart Stores Inc., the nation's largest private employer, is eliminating paper payroll checks in the U.S., transferring workers' earnings to a debit card if they decline direct deposit to a bank.
Wal-Mart is the biggest company yet to make the move that it said will save paper and money. It estimates the move will save 257,572 pounds of paper a year. It declined to specify the savings but said the shift will reduce its payroll costs . . . .
Some Wal-Mart workers last month received earnings electronically in the form of credit to a MasterCard Inc. debit card. The program will roll out nationally this month, though many of Wal-Mart's 1.4 million U.S. workers will continue to receive paper checks for months while it is fully implemented. About half of its U.S. workers now receive paper checks.
Though the debit cards save companies money by reducing payroll costs, consumer advocates have criticized some card programs, noting that workers are often charged fees to access their money or even check balances.
I understand the consumer adovocates point and I appreciate the environmental angle, but as an employment law professor I wonder (out loud) whether this arrangement could violate a state's wage payment and collection law?
At least in Michigan, under the Michigan Wages and Fringe Benefits Act, the answer appears to be "no." There, Mich. Comp. Laws Ann. § 408.476 (West Supp. 2006) allows Michigan employers to mandate use of a payroll card by employees. Most of these laws require that employees be paid in cash or check, and not in some other form of payment.
Do any readers have insights from other states?
Hat Tip: Hammad Haider-sha
The Senate Committee on Health, Education, Labor & Pensions will hold a full committee hearing on the Employee Non-Discrimination Act on Thursday at 10 Eastern time. Among those testifying is Helen Norton (Colorado). Here is the link to watch or download written comments.
The American Bar Association Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel present the 19th Annual National Institute on ERISA Litigation, November 16-17, 2009, at The Millennium Knickerbocker, Chicago, IL.The Program Co-Chairs are Mark D. DeBofsky of Daley, DeBofsky & Bryant, Chicago, IL; Douglas M. Selwyn, Conner & Winters, LLP, Houston, TX, and Charles B. Wolf, Vedder Price PC, Chicago, IL.
Here is a description of the program:
For further information call Nancy Matthews at (202) 662-8640, e-mail email@example.com., or visit the ABA website.
An approach to ERISA from a purely litigation perspective, the program emphasizes the practical, not the theoretical. This National Institute is designed for litigators who handle ERISA cases and want to enhance their substantive ERISA knowledge, benefits practitioners who wish to further their knowledge of the substantive law and most recent case law, and ERISA specialists who draft plan language and render advice about plan administration, trying to minimize the risk of litigation. Learn how to improve your client’s chances with prelitigation strategies, including plan design features and practices. Learn tips, techniques and advice from successful, experienced plaintiff and defense ERISA litigators.
To register, visit the Program website.
Who knew that the commissioner of the NFL was such a labor law aficionado? From Yahoo! News and the AP:
Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.
"We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law," Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.
Recent court decisions "call into question the continued viability of the steroid policies of the NFL and other national sports organizations," Goodell said.
I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players. Here is the summary of that case again that started all of this:
In Williams v. NFL (8th Cir. Sept. 11, 2009), the appeals court affirmed three legal conclusions of the district court: 1. the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings were not preempted by section 301 of the Labor Management Relations Act; 2. their Minnesota common law claims were preempted by section 301; and 3. the arbitrator's award upholding the player's suspensions for using banned substances would be upheld. The NFL Players Associations was at least initially successful in getting it claims heard that they had some statutory defenses to the suspensions under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Minnesota Consumable Products Act.
My colleague Matt Mitten, director of the National Sports Law Institute here at Marquette, thinks the court got it wrong:
The court gives no consideration to a national professional sports league's need for uniform rules by permitting state law to invalidate the terms of a collectively bargained anti-doping program. It conflicts with other federal appellate cases holding that state labor, antitrust, administrative, and tort laws cannot be used to regulate national sports leagues and governing bodies, which require rules that must be applied and enforced consistently nationwide. It's almost certain the NFL will petition the Supreme Court for cert., and I think there's a reasonable chance the Court will grant its petition.
Major league baseball also believes in a legislative fix:
Rob Manfred, Major League Baseball's executive vice president of labor relations, also discussed a legislative remedy in his testimony, saying "a narrowly drafted statute could solve the problem faced by professional sports" while preserving the role of collective bargaining in drug programs without interfering with states' prerogatives.
Legislatively or judicially, it would not be surprising if what came out of all of this was some changes in the law which permit professional sports leagues some form of preemptive power to maintain uniformity in their substance abuse policies.
Monday, November 2, 2009
- Jill D. Weinberg, Gender Nonconformity: An Analysis of Perceived Sexual Orientation and Gender Identity Protection Under the Employment Non-Discrimination Act, 44 U.S.F. L. Rev. 1 (2009).
- James Ackermann, Small Gifts and Big Trouble: Clarifying the Taft-Hartley Act, 44 U.S.F. L. Rev. 63 (2009).
- Miriam A. Cherry, Working for (Virtually) Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace, 60 Alabama L. Rev. 1077 (2009).
- Melissa Hart & Paul M. Secunda, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37 (2009).
- Judith J. Johnson, Reasonable Factors Other Than Age: The Emerging Specter of Ageist Stereotypes, 33 Seattle U. L. Rev. 49 (2009).
- Kati L. Griffith, The NLRA Defamation Defense: Doomed Dinosaur or Diamond in the Rough?, 59 Am. U. L. Rev. 1 (2009).
- Charles R. Peterson, ERISA Does Not Give Employers a Free Pass: Refusing to Place the Burden of Careless Drafting on the Employee, 9 Nev. L.J. 704 (2009).
- Leigh A. Van Ostrand, A Close Look at ADEA Mixed-Motive Claims and Gross v. FBL Financial Services, Inc., 78 Fordham L. Rev. 399 (2009).