October 20, 2012
Recently Published Scholarship: EREPJ
Employee Rights and Employment Policy Journal
Volume 16, Number 1 (2012)
Symposium The Workplace Law Agenda of the Obama Admistration
Symposium Editor: Ruben J. Garcia
- Ruben J. Garcia, Foreword.
- Michael C. Harper, Reforming the Age Discrimination in Employment Act: Proposals and Prospects.
- Richard Moberly, Whistleblowers and the Obama Presidency: The National Security Dilemma.
- Michael C. Duff, New Nip in the Bud: Does the Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategics?
- E. Gary Spitko, Don't Ask, Don't Tell: Employment Discrimination as a Means for Social Cleansing.
- Rona Kaufman Kitchen, Off-Balance: Obama and the Work-Family Agenda.
October 19, 2012
Recently Published Scholarship
- Bradley A. Areheart, The Anticlassification Turn in Employment Discrimination Law, 63 Alabama L. Rev. 955 (2012).
A Stolen Idea
Joan Williams (Hastings) and Katherine Ullman write in Psychology Today about how Mitt Romney's "binders of women" concept represents a pernicious but often overlooked form of sex discrimination. Here's an excerpt:
What Romney did the other night was a very public example of "The Stolen Idea," a phenomenon women regularly face at work. Here's how it usually happens on the ground: A woman mentions a potential solution to a problem in a meeting, perhaps timidly so as not to seem overly aggressive, and her idea is largely ignored. Minutes later, a male colleague pipes up and slightly rephrases the woman's idea to the group; the group is impressed with the idea, and agrees to implement it. The man is commended for his problem-solving skills and creativity.
... Mitt Romney took credit for the hard work of MassGAP—a bi-partisan coalition committed to increasing the number of women leaders within the Massachusetts government—which is the group actually responsible for the infamous "binders." According to a study the group co-authored with the University of Massachusetts' Center for Women in Politics & Public Policy, 42 percent percent of the new gubernatorial appointments made by Governor Romney between 2002 and 2004 were women. This was not because Governor Romney looked around and asked, "Where are the women?" This was because an organization dedicated to women's advancement took an active role in recruiting qualified women candidates prior to and following the results of the 2002 gubernatorial election.
Despite MassGAP's successes in the first years of the Romney administration, the percentage of new female appointees later fell to about 25 percent; Romney ended his tenure as governor with fewer women in senior-level positions than when he started. Of this, the report co-authored by MassGAP advised, "Continued efforts should be made to monitor administrations throughout the full course of a governor's term." This does not sound like a leader committed to appointing binders upon binders of women.
October 18, 2012
Secunda on Employer Pressure to Vote Republican
Citizen United's generous interpretation of corporate speech means that employers "may now be able to compel their employees to listen to their political views at [workplace] meetings on pain of termination," wrote Paul Secunda, an associate law professor at Marquette University, in the Yale Law Journal. "Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the 'wrong' candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events."
Employees have little real-life protection from aggressive attempts by employers to sway their votes, Secunda said in a phone interview Thursday.
* * *
"Employers are pretty much able to do what they want as far as putting pressure on employees to vote against a certain candidate," he said.
Secunda said a new "Federal Worker Freedom Act" was needed, to prohibit employers from engaging in mandatory political indoctrination. A new law could comply with Citizen United's broad interpretation of corporate speech, he said.
LEL Student Writing Competition
Laura Cooper sends word that:
The American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers have announced the rules and deadline for their 2012-2013 Annual Law Student Writing Competition. The competition offers prizes of $1500, $1000 and $500 for the winning essays and the first prize essay will be published in the ABA Journal of Labor & Employment Law. The deadline is May 15, 2013. Here are the full contest rules.
Discovery of Immigration-Status Denied in FLSA Case
He just received a decision denying discovery for his plaintiff’s immigration status: Reyes v Snowcap Creamery, Inc., -- F. Supp. 2d ---, 2012 WL 4888476 (D. Colorado Oct. 15, 2012).
Scott provides some background on the case and his own particular interest in the subject matter of the case:
To try to prove undocumented immigrant status, and to fish for potentially relevant documents, the employer sought, and had been granted by the Magistrate Judge, discovery of not only plaintiff’s immigration status, but plaintiff’s immigration attorney’s files and ICE files; plaintiff actually was to sign releases allowing production of the latter two files. We appealed the Magistrate Judge’s ruling, and the District Judge reversed in full, denying any immigration status discovery with very broad language that “a plaintiff's immigration status is irrelevant in an FLSA action” and that even though there may have been some relevance to some of the discovery (e.g., immigration documents with job descriptions pertinent to whether plaintiff was FLSA-exempt), immigration discovery still should be denied “because of the in terrorem effect that discovery into such issues would have on litigants.”
This issue has been an old passion of mine ever since the Supreme Court in 2002 held in Hoffman Plastic Compounds that undocumented immigration status precludes certain post-termination pay continuation damages; at the time, my plaintiff-side employment law firm was terrified that the ruling would kill our FLSA practice, because so many wage claims are by immigrants. I had to litigate a motion on that issue almost immediately after Hoffman, and I got the first reported decision in the country holding that even if Hoffman makes immigration status relevant to post-termination pay continuation damages, immigration status remains irrelevant, and too prejudicial to be allowed in discovery, in FLSA unpaid wage cases: Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191 (S.D.N.Y 2002). Liu is cited in our new decision, which is now the first decision District of Colorado holding the same – that in FLSA cases, immigration status is irrelevant and too prejudicial to be allowed in discovery.
This is a very interesting and important FLSA case and we appreciate Scott sharing his litigation experience in this case with us.
Redefining Sex Work
Ellen Cushing has written an extensive and nuanced essay in East Bay Express discussing, among other things, worker activism in San Francisco's sex industry. Here's an excerpt; the entire essay is worth reading.
If the East Bay's new sex-work community has a nucleus, it's probably the legendary downtown San Francisco peep-show The Lusty Lady, which unionized in 1996, became a cooperative in 2003, and is still the only business of its kind in the world to be fully unionized and worker-owned. That's where [Jolene] Parton said she "found female community for the first time," and where many people I spoke to said they first become steeped in the sex-positive, activist-oriented, third-wave-feminist ethos that underpins the local sex-workers' movement.
It's also a symbol just how long activism and sex work have been linked in the Bay Area. San Francisco was where the American sex-workers' rights movement first got started, according to activist and sex worker Carol Leigh; it was in fact Leigh herself who first coined the term "sex worker."
Lobel on Unemployment Insurance
Orly Lobel (San Diego) was on Huff Post Live yesterday discussing unemployment insurance. Her discussions start about 4:00, 10:00, 17:00, and 21:00 into the segment. She does a nice job of explaining how unemployment insurance works, on a segment that overall is about fraud/abuse. She also does a nice job of turning the discussion from "how dare millionaires receive UI" to a reminder that UI is an insurance system that everyone who pays into the system is entitled to benefit from.
Corbin on Contraception in Health Insurance Plans
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Green on Racial Emotion
Almost everyone in the United States is likely to experience or have experienced racial emotion in the workplace. One person feels uncomfortable making conversation with her co-workers of a different race, for fear that she will use the wrong name or say something that is perceived as biased or offensive; another is anxious that his colleague will judge him as less intelligent than the whites on his team. One feels anger at the telling or emailing of a racial joke; another feels frustrated when a colleague raises concerns about bias during a post-interview debriefing. These emotions — and the behaviors that give rise to them and respond to them — are sometimes difficult to describe. We lack a language of racial emotion in the workplace, in no small part because many of us (especially whites) prefer not to see it. But racial emotion does exist, and we ignore it to the detriment not only of our individual relationships, but of our visions and efforts for equality.
Drawing on a rich body of social science research on emotion and interracial interaction, this Article pushes beyond the recent cognitive turn in understanding discrimination to expose racial emotion as a source of discrimination at work. It uncovers the ways that the law (through Title VII of the Civil Rights Act) and organizations currently close racial emotion out of antidiscrimination discourse and close space for developing positive racial emotion at work. By theorizing racial emotion and the relationships that result as a potential source of discrimination, the Article positions the law to better see and address workplace discrimination and to set normative and regulatory grounding for organizations to open space and develop conditions for positive racial emotion and interracial relationships at work. To this end, the Article proposes several specific doctrinal changes, particularly around behavior of “racial assault,” in individual disparate treatment, hostile work environment, and retaliation law. It resists, however, calls for greater policing of all racial behavior through these laws, urging instead legal regulation of discrimination at the systemic level as a way of directing organizational attention toward developing work conditions that will foster conversation and learning across difference.
October 17, 2012
Help Wanted on LEL Policy Course
Holly Fechner (Covington & Burling D.C. office; photo left, bio below) will be teaching this spring for the first time a labor and employment policy course. She's looking for sample syllabi and recommendations on course materials. Although she's teaching her course to public policy graduate students at the Harvard Kennedy School, I'm sure she'd welcome course materials prepared for law courses.
Here's Holly's impressive bio:
Holly Fechner is co-chair of the firm’s Government Affairs Practice
Group.... She has two decades of legal,
legislative and public policy experience in the public and private
sectors. Ms. Fechner has a broad-based practice handling legislative
and regulatory matters for clients in areas including healthcare, tax,
intellectual property, education, and employee benefits. Drawing on her
extensive congressional and private sector experience, Ms. Fechner
offers clients comprehensive advocacy services, including strategic
advice, substantive legal and regulatory expertise, and policy and
message development. She has a proven track record in assisting clients
fulfill their government affairs goals.
Ms. Fechner was Policy Director for Senator Edward M. Kennedy (D-Massachusetts). In that position, she developed policy initiatives, legislation and campaigns on a broad range of issues, including the economy, health care, employment, education, retirement policy, and civil rights. She was also Chief Labor & Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee. Ms. Fechner served as chief negotiator on legislation to reform the private pension system; increase the federal minimum wage; extend and reform unemployment insurance benefits; prevent genetic discrimination in health care and employment, and numerous other bills. In her eight years on Capitol Hill, she drove passage of over a dozen laws worth hundreds of billions of dollars.
I am so envious -- it's been way too long since I've had the opportunity to teach a course like this.
October 15, 2012
Ruan on Wage Theft
Nantiya Ruan (Denver) has just posted on SSRN her article What's Left to Remedy Wage Theft? How Arbitration Mandates that Bar Class Actions Impact Low-Wage Workers (forthcoming Mich. St. L. Rev.). Here's the abstract:
For low-wage workers who suffer “wage theft” – employers illegally withholding portions of their wages – the dollars missing from their paychecks violate existing law and significantly impact the well-being of individuals, families, and communities. Despite this dire societal problem, the Supreme Court continues “closing the courtroom doors” in two ways: allowing employers to force workers out of court and into private arbitration; and prohibiting aggregate claims. Such trends, in combination, silence wage theft, leaving many claims unheard while unscrupulous employers gain direct advantage.
This Article explains how various procedural rulings have combined to prevent meaningful redress for wage theft. Because of high transaction costs and relatively low potential damages, low-wage workers are likely to recover their lost wages only if they band together with similarly-situated workers in an aggregate lawsuit. However, collective action is under attack: AT&T Mobility v. Concepcion, the latest Supreme Court case to approve of mandatory arbitration clauses, allowed a corporation to impose “agreements” mandating individual arbitration and barring class actions.
This Article brings new insights into the widening blind spot the Supreme Court has for the impact procedural rules have on the substantive rights of low-wage workers. Moreover, it touches upon a greater trend in American jurisprudence of courts shutting out plaintiffs, especially those unlikely to afford legal representation. By drawing attention to the unjust effects of facially neutral rules on low-wage workers, this Article contributes to the national conversation on how Supreme Court precedent limiting judicial access affects society’s most vulnerable.
Yet another reason why Concepcion was wrongly decided.
More Recently Published Scholarship: Employee Benefits
The 10th Annual Employee Benefits Symposium: The Past, Present, and Future of Supreme Court Jurisprudence on ERISA
The John Marshall Law Review, volume 45 #3, spring 2012
- Colleen E. Medill,The Past, Present, and Future of Supreme Court Jurisprudence on ERISA, p. xxv.
- José Martin Jara, What is the Correct Standard of Prudence in Employer Stock Cases?, p. 541.
- John D. Blum and Gayland O. Hethcoat II, Medicaid Governance in the Wake of National Federation of Independent Business v. Sebelius: Finding Federalism's Middle Pathway, from Administrative Law to State Compacts, p. 601.
- Albert Feuer, How the Supreme Court and the Department of Labor May Dispel Myths About ERISA's Family Law Provisions that Arise Thereunder, p. 635.
- Susan Harthill, The Supreme Court Fills a Gaping Hole: CIGNA Corp. v. Amara Clarifies the Scope of Equitable Relief Under ERISA, p. 767.
- David Pratt, Summary Plan Descriptions After Amara, p. 811.
- Kevin Wiggins, Medical Provider Claims: Standing Assignments, and ERISA Preemption, p. 861
- Lucas Walker, Purpose over Formality: Putting an End to the Catch-22 Preventing Workers from Speaking Up About ERISA Benefits Abuse, p. 893.
Recently Published Scholarship
- Caroline Mala Corbin, The Irony of Hosanna-Tabor..., 106 Northwestern U. L. Rev. 951 (2012).
- Paul Horwitz, Act III of the Ministerial Exception, 106 Northwestern U. L. Rev. 973 (2012).
- Lauren M. Woleslagle, [SCOTUS] Sanctifies the Ministerial Exception in Hosanna-Tabor... without Addressing Who Is a Minister: A Blessing for Religious Freedom or is the Line Between Church and State Still Blurred?, 50 Duquesne L. Rev. 895 (2012).