Thursday, October 1, 2015

On Worker Classification and Worker Flexibility

             The Uber litigation (O’Connor v. Uber Technologies) and its progeny have inspired many to tackle the employee-independent contractor puzzle as applied to the so-called “on-demand” economy.  We’ve highlighted some of this commentary before (e.g., Rogers 2015).  Here are two recent entries, both focusing on the role of worker flexibility:

            Benjamin Means and Joseph Seiner, “Navigating the Uber Economy” (here, forthcoming U.C. Davis Law Review), argue that worker classification under the Fair Labor Standards Act, among other laws, should turn primarily on “how much flexibility” the worker has in the work relationship: “Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule.”  Means and Seiner criticize the Department of Labor’s recent Administrator’s Interpretation -- on who counts as an “employee” under the Fair Labor Standards Act—for not affording enough weight to worker flexibility and, if courts follow it, making it “nearly impossible for on-demand businesses to argue that their workers are independent contractors.”  In today’s economy, worker flexibility deserves a lot more weight than other factors: “[W]hen the worker has significant discretion to decide when to work, the worker has, as a matter of economic reality, a greater degree of independence than a worker who must abide by a schedule set by the employer.”   

            Meanwhile, over at onLabor, Ben Sachs argues against the claim that “if Uber drivers were to be deemed employees – rather than independent contractors – the drivers would lose the flexibility that defines their jobs.”  This view, he writes, “gets the causal arrows backward,” because a judicial finding that a worker is or is not an “employee” is the result, not the cause, of how much control or flexibility a worker experiences on the job.  To be sure, it’s possible that, in response to a legal determination that their drivers are “employees”, Uber might decide to provide their drivers with less flexibility. Sachs calls this “entirely speculative" and "contrary to everything Uber has said about its business model.” Besides, that result would be “based on” Uber’s strategic decision--a choice--and not "the result of a legal determination of employee status.”  For prior commentary making this point, see here.


--Sachin Pandya

October 1, 2015 in Employment Common Law, Wage & Hour | Permalink | Comments (1)

Tuesday, September 1, 2015

Contracting Out of Public Policy

New ImageA doctor, upset about the outcome of a pregnancy, threatened to report to the hospital the conduct of certain nurses whom he thought had contributed to the death of the baby. He also disclosed to the mother what he believed was malpractice in the treatment and consulted an attorney about reporting the nurses and a fellow physician to the hospital or Board of Medicine.

The trial court instructed the jury that all three activities were protected under Iowa’s public policy cause of action and, while there was reason to believe that the plaintiff was a difficult personality in other respects, the jury found that this protected conduct was a “determining factor” in the physician practice group’s decision to terminate plaintiff’s employment with the group.

Most of us would label this “not much to appeal,” and move on to a more interesting case. The Eighth Circuit took a different view in Hagen v. Siouxland Obstetrics & Gynecology, PC, overturning the verdict and ordering judgment entered for the defendant.

 The reason? The doctor had a contract with the group and had not pursued his claims under that contract. The Eighth Circuit read the Iowa public policy tort as applicable only to at-will employment and, since Hagen’s employment was not at will, the tort did not apply.

 This is more than a little surprising, but maybe not totally wrongheaded when read in context. In Iowa, as in many other states, the public policy tort emerged in the setting of at-will employment, and language in Iowa judicial opinions repeatedly referred to it as “a narrow exception” to the at-will rule.  More pointedly, the trial court had certified questions to the Iowa Supreme Court, including “Does Iowa law allow a contractual employee to bring a claim of discharge in violation of Iowa public policy, or is the tort available only to at-will employees?” While the state Supreme Court dodged that question, that decision might have implied that the issue was at least more debatable than one might have imagined.

If, then, Iowa tort law did not protected the plaintiff, what would have happened had he in fact pursued his contract claim? Although the practice group claimed it had cause, the jury verdict suggests it would have lost on that score, but the remedies would have been limited.  Most obviously, Hagen would have had no recovery for the kinds of damages that are available only in tort – mental distress and punitive damages. But perhaps as important, contracts come in all shapes and sizes, and the plaintiff’s contract claim would have yielded a very modest expectation recovery: there was a right by either party to cancel on 90-days’ notice, which would presumably limit Hagen’s recovery to the compensation otherwise due during this time period.

In short, even had the whistleblowing doctor pursued his contract claims, the very nature of those claims would have left him with very little protection for his conduct, which means that the purposes of the public policy tort would be effectively frustrated in this context.

Maybe not a big deal because very few employees are anything but at will?  And the court did stress that plaintiff was not just any old employee – he was president and co-owner of the practice group. But even putting aside the possibility that key players in many settings will be higher level workers with some kind of contractual protection, there’s the irony that Hagens creates incentives for employers to immunize themselves from public policy suits by providing employees contractual job security. If an employer contractually provided each worker for cause protection for a week, would that be sufficient to take it out of the tort system?  The court adverts to that issue, suggesting in dicta that a contract providing for discharge on 30 days’ notice without cause might still be actionable in tort. But it does not explain why for-cause protection for 90 days is somehow different. Is it the 90 days or the "for cause," and, if the latter, what does that ensure beyond three months of pay?

By the way, one of the questions certified to the Iowa Supreme Court was whether the at-issue conduct was protected – and the justices divided equally on that. One wonders how broad the public policy tort is in Iowa, even without regard to the newly established contract exception.



September 1, 2015 in Employment Common Law | Permalink | Comments (1)

Thursday, August 13, 2015

Rogers on "Sharing Economy"-Workers and Defining Employment

RogersBrishen Rogers (Temple) recently posted on SSRN his essay Employment as a Legal Concept. Here's the abstract to this timely piece:

The employment status of workers for “sharing economy” firms such as Uber, Lyft, TaskRabbit and Handy is becoming a major legal and political issue. This essay takes up that question, building on the ongoing cases against Uber and Lyft. Against most commentators, it first argues that the ambiguous legal status of Uber and Lyft drivers is not a symptom of outdated legal tests. Rather, that ambiguity reflects a deeper conceptual problem: that our laws lack a satisfactory definition of employment in the first place. The solution to that problem, the essay argues, lies in recognizing employment as a legal concept through and through, and thus recognizing that questions of employment status inevitably involve contestable value judgments. The Uber and Lyft cases, for example, present a conflict between two important sets of social goods: on the one hand, distributive justice and a more egalitarian political economy; on the other hand, the substantial welfare benefits promised by the companies’ innovations. While reasonable people will disagree, the essay argues that imposing employment duties would strike an appropriate balance between these goals — ensuring that the benefits of disruptive technologies are fairly shared with those whose labor makes those technologies profitable.


August 13, 2015 in Employment Common Law, Workplace Trends | Permalink | Comments (0)

Tuesday, July 28, 2015

Go Set a Watchdog?

6a00d8341bfae553ef019b04506fe0970d-200wiNew Jersey struck a blow against a “job duties” exception to whistleblower suits, this time in the context of the state’s expansive Conscientious Employee Protection Act. In Lippman v. Ethicon the state Supreme Court rejected a concerted effort to deny protection from employer retaliation for “watchdogs,” that is, individuals who are employed for the explicit purpose of bringing concerns or potential issues to the attention of their employers. A twist on the case was the possibility that the Court would split the baby by extending protection to watchdogs but imposing a higher burden of proof than for the average employee, given the nature of their occupations. The Court, however, concluded that CEPA protection reaches all employees regardless of their position or whether the at-issue conduct was the performance of their typical job duties. And it repudiated any heightened standard for these individuals.  .

The case revolved around one particular watchdog, Joel Lippman. A physician, Lippman was a member of the quality board at Ethicon, a Johnson & Johnson subsidiary, where his responsibilities included providing his medical opinion about the safety of Ethicon’s products. He allegedly fulfilled these duties by opposing the release or advocating the recall of medical products he viewed as defective. He claimed, not surprising in this context, that he encountered resistance from other board members “whose interest and expertise aligned with the business priorities" of Ethicon.  In April 2006, Lippman pushed for the recall of a particular product he considered dangerous. While Ethicon eventually recalled the product, it fired Lippman one month later. Lippman claimed retaliation, hence the CEPA suit, but Ethicon maintained he was fired for a romantic relationship with a subordinate employee.

This set up the usual dispute about employer motives and pretext, but the trial court avoided that inquiry by granting Ethicon summary judgment on the grounds that Lippman’s performance of his job duties wasn’t CEPA-protected conduct. The Appellate Division reversed, concluding that employees like Lippman are among those most in need of CEPA protection and that the plain language of the statute does not withhold protection from those performing their job duties. However, the panel also articulated an enhanced burden of proof for watchdog employees, requiring the employee to either refuse to participate in the objectionable conduct or to exhaust all internal means of securing compliance in order to be protected.  The debate ended up in the Supreme Court – accompanied by a collection of dueling amici.

The defendant’s argument was not that Lippman wasn’t an employee, which CEPA defines as “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b). Rather, it contended that one of the grounds for CEPA protection – that the employee “objects to, or refuses to participate in any activity, policy or practice,” N.J.S.A. 34:19-3(c), didn’t reach a worker who simply reported problems as he encountered them in doing his job: “the employee logically cannot…object or refuse to participate in the very activity, policy or practice that he or she is helping to formulate on behalf of the organization.” In other words, performing one’s job duties does not constitute a whistleblowing activity.

The Supreme Court wasn’t convinced, but, oddly enough, it didn’t cite the United States Supreme Court’s analogous decision in Crawford v. Metro. Gov't of Nashville & Davidson County, 555 U.S. 271 (2009), which had rejected an attempt to read “oppose” in a similarly narrow fashion. In any event, the New Jersey Court found that Lippman’s position at Ethicon was to object to company policy or products, if necessary. In part the opinion looked to the “refuse[] to participate” language to support its conclusion, because “it is likely that the employee would be asked to participate in employer activity within the course of, or closely related to, his or her core job functions.” 

 Given the state judiciary’s traditional expansive approach to interpreting CEPA, this conclusion was scarcely surprising, but perhaps more up for grabs was the Appellate Division’s enhanced requirement of proof. As noted, it would have required watchdogs to “show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” What exactly that standard might mean is unclear, especially for Lippman (who, after all, succeeded in having the product recalled), but it threatened to make litigation more complicated for watchdogs.

The New Jersey Supreme Court would have none of it: any heightened standard impermissibly adds to the burden for this class of CEPA plaintiffs and there was no basis in the statute for treating this kind of employee differently.  Indeed, in another section regarding disclosures to public bodies, the statute expressly imposed an exhaustion requirement, thus making clear that the legislature knows how to do so when it believes it appropriate.  

On remand, presumably Lippman’s claim will succeed or fail depending on a jury verdict as to whether Ethicon’s supposed reason for his termination – the relationship with a subordinate – was a pretext for discharging him for his protected activity of objecting to the marketing of what he reasonably believed would be dangerous drugs.

But, if Title VII is any indication, there’s another round of questions ahead for watchdogs: what if an employer claims to have fired the worker not because of the substance of his objections but rather because of how the employee carried out his duties? Suppose the employer claims the employee is obnoxious or doesn’t follow company processes?  Plus, of course, the reasonableness of a watchdog’s objections is also critical, and, presumably, an employer can always fire one who barks unreasonably.        


Thanks to Samira Paydar for her help on this.

July 28, 2015 in Employment Common Law | Permalink | Comments (0)

Thursday, July 23, 2015

Unjust Enrichment Once Again

New ImageAre ICE detainees employees, prisoners, both or neither? Does  nominal pay for their work mean that the detainment facility is unjustly enriched by their labor? The District of Colorado addressed these questions in Menocal v. Geo Grp, Inc., a civil suit initiated by several current and former detainees at the Aurora Facility.  Owned by GEO Group, defendant was arguably subject to state law because it isn’t ICE itself, but rather a private, for-profit enterprise under contract with ICE (yes, federal contractors have a defense from state law mandates, but the court found its requirements not satisfied).

The plaintiffs allege that they participate in a “Voluntary Work Program” that includes tasks such as laundry, maintenance of the on-site medical facility, cooking, and cleaning – all for $1 per day. In addition, six detainees are randomly selected every day, whether or not they are program participants, to clean the facility’s “pods” without compensation under threat of solitary confinement. Plaintiffs claim that the Voluntary Work Program violates the Colorado Minimum Wage Order (CMWO) and unjustly enriches the defendant; they also claim that the pod maintenance violates the Trafficking Victims Protection Act’s (TVPA) prohibition on forced labor.

The CMWO claim is an interesting window into immigration detainees as employees. The statute defines “employee” as “any person performing labor or services for the benefit of an employer in which the employer may command when, where and how much that labor or services shall be performed.” 7 Colo. Code Regs. 1103-1:2. While that definition seems to cover the activities at the Aurora Facility, the court found that the detainees, like prisoners, were not within the statute. It reasoned that the CMWO was enacted to raise the standard of living for workers and does not extend to prisoners who are in no need to provide for their own support. Since detainees, like prisoners, do not need to provide for food and shelter, the purposes of the CMWO are not served by finding them included in the definition of employee. However, this parallel ignores worker morale, and a host of other ways in which detainees and prisoners differ. This is a tricky issue, but on the whole not surprising given the historic treatment of prisoners. The decision reminded me of Noah Zatz’s fine article in Vanderbilt on how employment law works (or doesn’t) in nonmarket settings.

More surprising was the court’s treatment of plaintiff’s unjust enrichment claim: while not passing on it directly, Judge Kane found that the claim could not be duplicative of the CMWO claim – after all it had just dismissed that one!

But it was by no means clear how unjust enrichment analysis would proceed. Presumably, the argument would be that the fair market value of the work done exceeded the $1.00 paid. Fair enough, although a restitution claim might have to factor in the other benefits the detainees received. Or maybe not: food and shelter was due them regardless of whether they “volunteered” to work. So maybe the real question is the market value of the labor provided.

But restitution usually operates where contract fails, and the defendants are sure to argue that the plaintiffs agreed to the $1. It was, after all, labelled a "voluntary" program.  Contract law does not require the terms of an agreement to be objectively fair, if both parties consent. Thus, the defendant should be entitled to reap the difference between the $1 compensation and the actual value of the plaintiff’s labor. Again – putting aside the CMWO.   

This takes us back to how “voluntary” the defendant’s work program is, given the plaintiffs are incarcerated. Indeed, the concept of voluntary labor performed in a detention facility is unsettling, all the more so in an environment in which the defendant allegedly uses intimidation tactics to compel detainees to do other work. Maybe the unjust enrichment claim can’t be separated from the threats of solitary confinement for failure to perform pod cleaning.

And the court sustained the Trafficking Victims claim. The TVPA prohibits the intentional procurement of “labor or services of a person by…means of force, threats of force, physical restraint, or threats of physical restraint.” 18 U.S.C. § 1589(a). That sounds a lot like what was going on at Aurora. While the defendant argued that the TVPA’s primary purpose is to prevent human trafficking and was therefore inapplicable to this situation, the court sided with the plaintiffs; it found that the Act extends to any type of forced labor, and that the alleged involuntary servitude in this case qualifies for its protection.

Ultimately, the decision implies that while immigration detainees are not entitled to the minimum wage of the particular state in which they are detained, they may be able to recover the fair value of their services performed in those facilities. It may also empower them to seek protection under the TVPA, since that particularly vital claim was upheld.  

There were a number of other legal questions that I haven’t explored, but this summary suggests that this case is worth keeping an eye on. 


Hat tip to Alan Hyde for alerting me to this decision and to Samira Paydar for helping me with this post.

July 23, 2015 in Employment Common Law | Permalink | Comments (0)

Thursday, July 2, 2015

The Purloined Letters -- Update

6a00d8341bfae553ef019b04506fe0970d-200wiposted last year on Ms. Saavedra’s plight – and its implications for employees more generally – when the New Jersey Appellate Division last year upheld an indictment against a worker for removing documents for use in her employment lawsuit.  I write again because the state Supreme Court in just weighed in, with State v. Saavedra affirming the decision below in an opinion that employment lawyers across the nation should read.

As a reminder, the Appellate Division had upheld a criminal indictment for Ivonne Saavedra, an employee who took 367 documents from her employer, the North Bergen Board of Education, for potential use in her civil suit claiming both discrimination and violation of the state’s whistleblower statute. Some of these documents contained confidential information about third parties. The Board took the matter to the prosecutor, who filed charges for “official misconduct” and theft. My last post expressed concern about the indictment, and its clear implication that a pervasive form of opposition conduct was being criminalized.

The NJ Supreme Court’s decision makes matter worse. Not only is it more authoritative, but it also further confuses the protocol for an LAD or whistleblower plaintiff looking to gather evidence for her case and practically invites vindictive employers to intimidate employees with the threat of prosecution. While "official misconduct" pertains only to public servants, which limits the opinion’s reach in that regard, a potential theft charge is enough to dissuade any employee from bringing a LAD or CEPA suit.

Before the Supreme Court, Ms. Saavedra looked to its 2010 decision in Quinlan v. Curtiss Wright, as a basis for reversal.  As I posted beforeQuinlan had announced a multi-factor rule that would -- sometimes at least -- bar employers from retaliating against workers by discharging them for taking documents for use in lawsuits. Ms. Saavedra argued that Quinlan required the court to dismiss the indictment when the documents she took were intended to be used in employment discrimination litigation. The Supreme Court was not swayed, dismissing Quinlan as irrelevant to a criminal proceeding: “nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his her or employer’s documents for use in a discrimination case.” The result is, as Justice Albin, the single dissenting voice, summarized:  “an employee who takes confidential documents to pursue an LAD claim could win a multi-million dollar discrimination lawsuit but serve time in prison for committing a crime.”

It is true that Saavedra can be distinguished from the more garden-variety employee efforts to collect evidence. She was charged not with merely taking copies but also original documents, and, as we will see, the latter might have been critical to the theft charge.  Further, the documents contained confidential information about third parties -- students in the district. Misuse of such information might have been critical to the official misconduct charge.

But whether the Supreme Court’s opinion will be limited by these kinds of considerations is unclear. One obvious question is whether Saavedra reaches the appropriation of the information or the tangible documents themselves? For the official misconduct charge, an employee’s breach of confidentiality for her personal benefit – and use of the documents for Saavedra’s civil suit sufficed to benefit her – may be enough.

But such conduct does not constitute “theft,” at least according to the New Jersey theft provision under which Saavedra was indicted; that requires an individual to “unlawfully take[], or exercise[] unlawful control over, movable property of another with purpose to deprive him thereof.” N.J. Stat. Ann. § 2C:20-3. The Supreme Court found the documents to be moveable property, and, because Saavedra took originals, the Board no longer had the documents in its possession; that was sufficient evidence that Saavedra acted “with the purpose to deprive” the Board of the documents.

It would seem to follow that, if an employee makes copies of confidential documents, a key element of the theft of movable property charge is negated – at least if the employee uses her own paper (or, these days, a cell phone camera).

But not so fast. Another provision of New Jersey law extends theft to immovable property and contains no “purpose to deprive” language. Further, property is defined to include such things as computer files or trade secrets. § 2C:20-1 (g).  In short, an employee in New Jersey would seem to be at risk of criminal prosecution if he copies his employer’s documents, no matter how critical they may be to a current or anticipated court suit.

Justice Albin found the situation intolerable: “The law should not place whistleblowers in a position where they are playing Russian roulette with their careers or their liberty.” He critiqued the majority for discouraging whistleblowers from coming forward and thereby preventing the exposure of employer misconduct.  But Justice Albin’s solution was no panacea for employees. He would solve the problem of indeterminateness by recognizing only a very narrow right for employees to take documents: “an employee would be permitted to take a confidential document to an appropriate authority only if the document ‘clearly indicates that the employer was engaged in illegal conduct.’” Clear to whom? That seems like a legal determination, but is any document capable of so establishing on its face and without regard to other documents?

The only silver lining for employees in Saavedra’s position is a claim of right defense. The majority held that a jury could determine that Saavedra genuinely believed she had a legal right to the documents, which would justify her conduct and negate a critical theft element. While that may yet avail Ms. Saavedra, few employees would be brave enough to take the chances on a criminal indictment when a claim of right defense is her only fallback.

Ultimately, the decision clearly sends the message that employees are well advised not to take employer documents to bulwark their cases, even though it does not seem to establish a bright-line rule that workers can never take such material.

The majority found this result not troubling because of the mechanisms in civil litigation for preserving and obtaining documents.  I’m not so sure. It’s not that I believe that employees should be free to take whatever their hearts desire, but, after all, if the documents in question are in fact taken only for use in a lawsuit, there are built-in limitations to their use, limitations that can be reinforced by a protective order to that effect.

Even if that is the employee’s purpose, however, I agree that taking documents – as opposed to copies – may impair the employer’s functioning. Finally, third party interests, such as student confidentiality, deserve special concern. How this all can be negotiated is not so clear, but using New Jersey’s theft statute as currently drafted is a pretty blunt instrument for this purpose.


Thanks to my RA, Samira Paydar, for her help on this.

July 2, 2015 in Employment Common Law | Permalink | Comments (0)

Tuesday, April 28, 2015

Tenth Annual Colloquium Registration Open

WPBDeborah Widiss (Indiana) has good news to share:

The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.

 Registration is now open at:

 If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.

 The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.

 Please feel free to contact any of us with questions.

 We will look forward to hosting you in Bloomington!


April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Monday, April 13, 2015

Dispelling the Bonus Illusion?

New ImageA recent case out of Ohio, Pohmer v. JPMorgan Chase Bank, N.A., may cause some scurrying around among employer counsel as they try to plug procedural holes which may have allowed a former employee to end-run the employer’s rather elaborate (and typical) rules regarding awards of bonuses.  The basic fact scenario is common – plaintiff discharged (in this case for apparently good reason) before any bonus was due.  I use “due” loosely since JPMorgan Chase’s Bonus Plan was excruciatingly clear that any bonus, and the amount thereof, was in its sole discretion, and, in any event, an employee had to still working when bonuses were paid to receive one.

 The plaintiff’s rather clever ploy was to sue for quantum meruit and unjust enrichment because plaintiff had conferred value on his former employer, for which compensation was due. Like most financial services firms, JPMC had a practice of awarding bonuses, and, in fact, plaintiff had received one each of the previous 13 years. But plaintiff had never been provided a copy of the Bonus Plan, much less assented to be bound by it, and so claimed a right to quantum meruit and unjust enrichment recovery free of its constraints.  

 The court agreed, reversing summary judgment for the bank. While acknowledging that neither quantum meruit nor unjust enrichment applies “when a contract exists between the parties covering the same subject,” it rejected the trial court’s conclusion that the Bonus Plan was such a contract. Since the Plan was “explicit that the decision of whether to award bonuses and in what amount rests entirely in the discretion” of the employer, it was an illusory contract, binding neither party.  

 The court hastened to add that such plans need not always be illusory – if executed in connection with gaining or continuing employment, such a plan would presumably be supported by that consideration. Plaintiff, however, had not executed a document regarding the Plan nor even been made aware of its terms and so could not be said to have assented to its terms in exchange for continued employment.  For that reason, summary judgment for the employer was reversed.

 Pohmer is only an intermediate appellate decision, but it does cast into doubt the practice of generally disseminating compensation policies rather than requiring express employee assent to them. Further, it is by no means clear that the plaintiff will prevail on remand since the appellate court spent little time analyzing the core claims of unjust enrichment and quantum meruit, and it it’s not so clear how either theory would work in this setting. 

 The plaintiff was paid a salary for his work for JPMorgan Chase, and either theory would have to take that reality into account. That’s clearest with unjust enrichment. Assuming that plaintiff’s efforts in fact enriched the defendant, what’s unjust about it retaining that benefit when it bought and paid for the very efforts that enriched it?  Plaintiff will argue that he worked harder to obtain a bonus, but – Bonus Plan aside – we would not normally think an extra-zealous employee is entitled to compensation above and beyond his agreed rate for such efforts, even when they bear fruit.  Much the same could be said of the quantum meruit theory. And that’s entirely aside from what remains of contract law’s preexisting duty doctrine.

 But what about the employer’s practice of paying bonuses?  Plaintiff can be expected to argue that that gave rise to an implied promise (terms of the unknown Bonus Plan aside, of course) that “extra” or “better” work would receive extra compensation. Indeed, bonus systems exist to motivate employees to work harder, and companies like JPMC (especially in financial services where bonuses can approximate yearly salary) clearly expect the prospect of the pot of gold to trigger better work. Further, the structure of the Bonus Plan is a classic example of an employer trying to have its cake and eat it too: the prospect of a bonus motivates employees but no single employee has any legal right to it. So long as the employer’s practices do not appreciably undercut those expectations, it can have the best of both worlds. And not paying a bonus to a former employee like Pohmer, one discharged for apparently good reason, will not impair the firm’s reputation for paying bonuses.    

 So do unjust enrichment or quantum meruit justify recovery where an employer’s practices imply a bonus, which expectation is not effectively disclaimed by some binding contract?  The Restatement (Third) of Restitution provides some hints: Section 31 deals with contracts that are unenforceable for some reason, including indefiniteness, and Illustration 4 would allow an agent to recover for the value of his services when he was promised a bonus but there was no way to calculate its amount.  The measure of recovery would be the market rate of services, less (of course) the salary paid.  In the Illustration, however, there was an express agreement to pay a bonus, see also Ill. 15, while in Pohmer’s case any such agreement would depend on finding an implied promise arising out of past practice.


April 13, 2015 in Employment Common Law | Permalink | Comments (0)

Friday, February 20, 2015

Suing Whistleblowers

New ImageFor every revolution, there is a counter-revolution, or at least an attempted one. And we’re beginning to see serious push-backs by employers who have been sued by whistleblowers. One of the more extreme examples is currently before the New Jersey Supreme Court, and involves a school district employee who took a number of confidential documents from her employer for use in her whistleblower and discrimination suit against it. When the employer learned about the taking during discovery, it promptly informed the county prosecutor, who in turn promptly had the plaintiff indicted.

But criminal suits are not the only example of employer pushback against whistleblowers. In the False Claims Act context, one of the leading qui tam relator’s-side law firms, Phillips & Cohen, has been sued (unsuccessfully, so far) by one of the companies it had sued, the claim being that it and the relator stole company trade secrets for use in a FCA suit.

Another example of an unsuccessful suit is both interesting and perhaps an object lesson. In Rockwell Medical, Incv. Yokum, 2014 U.S. Dist. LEXIS 178142 (E.D. Mich. Dec. 30, 2014), the defendant, Yokum, was a former employee who had sued the plaintiff in California for wrongful termination. He claimed that his opposition to various Rockwell problems in clinical trials and the company’s drugs led to his discharge. Although Rockwell had prevailed in the wrongful discharge case, its victory wasn’t enough: it brought suit in Michigan against Yokum on a blizzard of claims, including defamation, violation of its nondisclosure agreement, and misappropriation of both tangible and intellectual property.

The district court granted Yokum’s motion for summary judgment, in the process lambasting the Rockwell’s attorneys for their failure to respond appropriately to the motion; rather than responding to the defendant’s specific claims, their brief “simply invited the court to review the 500+ pages of material submitted as exhibits and to conclude on its own, with no illuminating assistance from plaintiff, that their claims are not factually supported.”

This odd approach raises questions as to whether the goal of the litigation was ever to win a judgment – as opposed to dragging its former employee (presumably a California resident given where he filed his suit) to Michigan and putting him through an expensive discovery process and the cost of the summary judgment motion. This suspicion is, if anything, reinforced by the court’s treatment of the various claims.

The defamation claim, apparently based on Yokum’s allegations in the California suit, was defeated by the litigation privilege, which was never mentioned in the plaintiff’s response to the summary judgment motion, and, in any event, Rockwell failed to identify any specific false statement, much less put in evidence as to why it was false. Contract claims for breach of a nondisclosure agreement were dismissed because Rockwell never identified any specific item of confidential information that was disclosed, and because much of the relevant information had necessarily been disclosed to the FDA and doctors and patients in clinical trials. Ditto for the alleged trade secret theft. As for tortious interference, Rockwell failed to identify any specific contractual relationship with which Yokum supposedly interfered. Finally, the court rounded out its opinion by finding that Rockwell had also failed to identify any physical property Yokum had taken and not returned.

I said earlier that there may be an object lesson here, but it’s not exactly clear what it is. On the one hand, the spanking the court administered to Rockwell suggests that employers (and their attorneys) should tread carefully before launching a counterattack on an employee who has brought a whistleblower suit. But, on the other hand, Yokum probably paid a stiff price in attorneys’ fees to prevail, which means that the employer succeeded in imposing a penalty for his suit.

Of course, procedural rules provide some protection for truly meritless suits, but unfortunately, one is forced to wonder if this kind of “legal” retaliation might not be yet another reason for whistleblowers to think twice before commencing suit (and, if so, how courts are likely to respond to such retaliation).

Cross-posted at Health Reform Watch


February 20, 2015 in Employment Common Law | Permalink | Comments (2) | TrackBack (0)

Monday, February 16, 2015

Spreading Like Kudzu

New ImageThere's been a general consensus, based on a lot of anecdotal evidence, that the use of noncompetition agreements has proliferated, a perception reinforced by the recent news that Jimmy Johns requires all of its employees, including sandwich-slicers, to execute such documents.   This reportedly triggered an inquiry by the NY Attorney General.   It's nice to know that competition in the sandwich-building biz, at least in New York, may soon be unrestrained, but the question is whether this was an anomaly or indicative of a bigger trend.

It seems the latter.  Until recently there seems to have been no sustained effort to assess the use of such agreements across the American economy, a gap which is addressed in a working paper posted by Evan Starr, Norman Bishara, & JJ Prescott.  Noncompetes in the U.S. Labor Force.  The abstract explains:

 As a result of limited empirical evidence and controversial anecdotes, speculation over the ubiquity and importance of covenants not to compete in the U.S. labor market is rampant. Using data from a new survey, we present the first estimates of the overall incidence of noncompetes in the U.S. labor force, and characterize the incidence by worker, firm, and regional characteristics. The data show that noncompetes are a perhaps surprisingly common feature of the labor market. As a lower bound, we estimate that one in four workers have ever signed a noncompete, and 12.3% are currently working under one. Of those with college education or above, one in five are currently subject to a noncompete agreement. The occupations in which noncompetes appear most frequently are engineering (30%) and computer and mathematical occupations (28%), though they are prevalent in typically lower-skilled occupations as well: office support (9%), installation and repair (11%), production occupations (11%), and personal services (12%). We also find that noncompetes are more likely to be signed in states with higher noncompete enforcement policies. We conclude that while noncompetes are found in the places one would expect, they are nevertheless still prevalent in the low-wage, low-skill occupations. We discuss why firms might choose to use noncompetes, including an analysis of wage-tenure profiles and firm-sponsored training. We relate our findings to our understanding of the labor market and the debate over noncompete enforcement.

The study has some other interesting aspects, some pretty counterintuitive. For example, in California, where such agreements are unenforceable, some 13.9% of workers nevertheless sign them. As some have suggested, employers may see some advantage in trading on worker ignorance -- or at least insecurity -- regarding their rights. 

As for the argument that noncompetes are paid for by increased compensation, the study revealed that only about 10% of respondents who signed such agreements bargained over them, a decision strongly impacted by the fact that 70% of those asked to sign had no other offer.  But even among those with such an offer, only 20% bargained over the noncompete. However, the authors do report an increase in training and a $10,000 wage premium 8 years into tenure, although they note that longevity itself -- not the noncompete -- might explain the premium.

Well worth a read for those interested in this area of employment law! 


February 16, 2015 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Friday, January 23, 2015

Penalizing Coaches – No, Not Bill Belichick

New ImageThere’s some reason to believe that employers are utilizing liquidated damages clauses in their employment contracts to a greater extent than previously.  This makes sense from their perspective because damages from an employee’s breach of a term contract are often hard to prove to a sufficient degree of certainty.  Even when some damages can be shown (for example, the increased cost of hiring a replacement), the employer may well feel that other harm remains uncompensated.  

Enter the liquidated damages clause. I’ll skip the academic debate as to whether parties should be free to enter into such agreements free of special scrutiny and move right to the law on the subject, which (somewhat contradictorily) generally permits the parties to stipulate to damages from a breach only if they are a reasonable attempt to specify harm that is by its nature difficult or impossible of ascertainment after breach.  Courts also differ on whether reasonableness is to be ascertained as of the time of the contract (foresight), at the time of breach (hindsight) or both.  See Restatement of Contracts § 356.

One of the latest judicial encounters with a liquidated damages clause was in Kent University v. Ford (a 2-1 decision of the Ohio Court of Appeals) and involved (naturally) a coach. Although Kent State is not a basketball powerhouse, it recovered $1.2 million against its former coach, who in 2011 moved on to Bradley (also not a powerhouse). And, if you’re wondering, the Bradley Braves current record is 6-14. So poor Ford may be looking for another job soon, with a big judgment hanging over his head.  Maybe he was smart enough to get Bradley to agree to indemnify him (Bradley was also sued by Kent State for tortious interference but it dismissed that claim once it obtained summary judgment against Ford).

The clause in question required Ford to pay Kent State his stated salary for each year he failed to keep his contractual commitment, which, in the event, was four years. As you might guess from the judgment, he was earning $300,000.

The Bradley offer paid him $700,000 a year, which suggests it was an efficient breach for Ford. Even if he had to pay the $1.2 to Kent State (rather than shift that cost to Bradley), he would net $1.6 million over the next four years rather than the 1.2 he would have earned had he stayed put.  By the way Kent State is now 13-5 under the coach who replaced Ford there.

Setting a liquidated damage provision at the level of the employee’s compensation seems, to put it mildly, arbitrary.  It is true that, as the court noted, there are a lot of damages that are simply unquantifiable (for example, whether a particular recruited athlete would not go elsewhere once the coach left, the financial significance of which depends both on how well that athlete would have played in a team sport and how such play might affect the gate).  In other words, the damages are pretty clearly unascertainable, satisfying that prong of the usual test.

But the “reasonable effort” to estimate those damages seems plainly lacking although the opinion is more than a little confused on this point. One might think that the fact that Kent State did no “financial analysis” of possible harm (although it identified a number of headings where damage might occur) might be dispositive, but nope.  The explanation might be a quirk in governing Ohio law, which does not explicitly focus on the reasonableness of the estimate. Instead, the court focused on whether the agreement was unconscionable, and found Ford a sophisticated party who had consulted with an agent and/or attorney. Nevertheless, the court also found the damages reasonable, even if only based on the additional cost of hiring a new coach – and to do so, it looked to Ford’s salary at Bradley. In other words, if Kent State had to hire a replacement for Ford because he left for a better paying job, a suitable replacement would cost more or less what Ford made elsewhere. Maybe true, but it’s still hard to see what that has to do with pegging damages at yearly salary.

There was a strong dissent, which may mean an appeal down the road to the state Supreme Court. That would provide an opportunity to clarify a muddy area. In the meantime the Kent State decision might give greater impetus to employer use of liquidated damages clause. Oh, and a final irony:  more or less at the same time it was trying to enforce the basketball coach’s clause, Kent State was trying to invalidate a football defensive coordinator before another Ohio court in Fleming v. Kent State. While it lost on one issue, it may still prevail on others. Speaking of having one’s cake….


P.S. My apologize for not hyperlinking the two cases to a free source, but there's some problem in Ohio.  The cites are: Kent State Univ. v. Ford, 2015-Ohio-41 (Ct. App.) and Fleming v. Kent State Univ., 17 N.E.3d 620 (Ohio Ct. App. 2014). 

January 23, 2015 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Monday, December 1, 2014

AALS workplace sections joint newsletter

Aals Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot:  Download Joint Newsletter for AALS Sections


December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

A Fast-Food Non-Compete Clause

    What’s the confidential information about a fast-food restaurant franchise that justifies having all its employees sign a non-competition agreement?  Jimmy John’s Sandwich Shops is the restaurant chain—stores nationwide—and the lawsuit is  Brunner v. Jimmy John’s Enterprises, Inc., No. 1:14-cv-05509 (N.D. Ill., filed July 18, 2014).  Although the lawsuit leads with a collective action under the Fair Labor Standards Act, a recent Huffington Post report (followed by the New York Times) points to the plaintiffs’ additional effort to declare void and enjoin enforcement of a Jimmy John’s Employee Confidentiality and Non-Competition Agreement.  See First Am. Compl. ¶ 293. 

    According to that Agreement (¶ 1), under the standard franchise agreement between a franchisee and Jimmy John’s Franchise Inc. (JJF), “all employees” of the franchisee “having access to Confidential Information are required to execute” the Employee Confidentiality and Non-Competition Agreement.  The term “Confidential Information” is quite broadly defined (Agreement ¶ 2(a)).  The Agreement then provides in relevant part:

 Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after . . . he or she will not have any direct or indirect interest in or perform services for (whether as an owner, partner, investor, director, officer, representative, manager, employee, principal, agent, advisor, or consultant) any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located within three (3) miles of either (1) ___________________ [insert address of employment], or (2) any such other JIMMY JOHN’S Sandwich Shop operated by JJF, one of its authorized franchisees,  or any of JJF’s affiliates.

Agreement ¶ 3 (emphasis added).  The Agreement (¶ 6) also gives the employer-franchisee and JJF the right to seek reimbursement for costs and attorney fees incurred to enforce the Agreement against the employee.

 In Brunner, the plaintiffs assert that the above-quoted non-compete clause effectively restricts an employee “from working in an area that is over 6,000 miles large, at innumerable types of business . . . in any capacity, for a period of two years in 44 different states and the District of Columbia.  (First Am. Compl. ¶ 185).  They also argue that the clause is overly broad, because it bans “any and all employment, association, ownership or consultation with any business that derives more than 10% of its revenue from selling a range of sandwiches, pita, wraps or rolls.” (First Am. Compl. ¶ 187).

 The Agreement says it is governed by Illinois law (Agreement ¶ 7).  In Illinois, an employee non-complete clause, to be enforceable, has to be “[1] no greater than is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose undue hardship on the employee-promisor, and (3) is not injurious to the public.”  Reliable Fire Equipment Co. v. Arredondo, 965 N.E.2d 393, 396 (Ill. 2011).  A “legitimate business interest” can be at stake when, for example, the employee acquires “confidential information through his employment.”  Id. at 403.

 So, what’s that confidential information that Jimmy John’s Franchise, Inc. and its employer-franchisees are trying to protect?  Is it really worth applying the non-compete clause’s time, subject matter, and geography restrictions to all former employees of a Jimmy John’s Sandwich Shop?  Was it reasonable to believe, both when drafted and today, that this non-compete clause would have been enforceable against any former Jimmy John’s Sandwich Shop employee?  It is still early days in the Brunner litigation, so stay tuned.


--Sachin Pandya

October 14, 2014 in Employment Common Law | Permalink | Comments (4) | TrackBack (0)

Monday, October 6, 2014

SEALS call for participants

SEALS 2015The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.


October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

A Tale of Two Incentives (with side notes on Welsh accents and the power of labels)

In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.

This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages.  Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.  

There are two possible incentives that courts have explored.  On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization.  In this view, denying rights and remedies will reduce undocumented immigration.  On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ.  In this view, denying rights and remedies will increase undocumented immigration.

Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.

The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”

I think that the Tennessee Appeals Court got it right.  Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job.  Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.

Now for the side notes:

The oral argument in the Torres case is available on the Appeals Court’s website.   At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.”  Mr. Wilson answers, “Wales,” and some pleasant conversation ensues.  It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.

And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.”  (Mr. Torres actually obtained a U visa in February 2013.)  At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court.  Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.  

(Thanks to my colleague Sue Willey for alerting me to the Torres case.)

-- Charlotte Alexander

September 18, 2014 in Employment Common Law, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Ninth Annual Colloquium Registration

WPBJust a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:


 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).


June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Contract Law Meets the Ministerial Exception

NewimageA while ago, I commented on a dispute then before the Kentucky Court of Appeals regarding the intersection of the ministerial exception to contract law.  On appeal, the Kentucky Supreme Court has just weighed in, issuing a pair of decisions that take a nuanced approach to who is a "minister" for purposes of the exception and, perhaps more significantly, analyze the role of the exception when it's contract law -- not discrimination -- that is at stake.

The cases, Kirby v. Lexington Theological Seminary and Kant v. Lexington Theological Seminary both arose in the wake of financial problems at the Seminary resulting in the termination of tenured professors. The core claims in both actions were that the Seminary had violated the tenure rights of the professors as set forth in the Faculty Handbook. The Seminary's main response, looking to the Supreme Court's recent endorsement of the doctrine in Hosanna Tabor, was that the "ministerial exception" barred the suits.  The application of that doctrine was especially counterintuitive on the case of Professor Kant, who was a Jewish scholar teaching at a Christian seminary.

The Kentucky Supreme Court had little difficulty in deciding that Seminary qualied as a religious institution able to claim the exception, but whether Kirby was a minister within it was "much more complicated."  Nevertheless, and despite the fact that Kirby was not ordained, it found a constellation of facts pointing in that direction, including both his traching and participation in worship. 

So far, so bad for Kirby, and, consistent with Hosanna Tabor,  the court did affirm dismissal of his claim for racial discrimination.

However, it refused to dismiss Kirby's contract claim, reasoning (1) enforcement of contracts does not implicate concerns about government interference with religion and (2) the contract did not involve ecceliastical matters that would bar suit under Kentucky's "eccelesiastical abstention" doctrine. Roughly translated, the first principle recognizes the right of churches and other religious institutions to enter into contracts subject to the second principle, which forbids civil courts from resolving even contract disputes by deciding religious questions.

Given that the Seminary chose to circumscribe its right to discharge professors by granting them tenure, the court saw no question of government control of a church.  And given that the Faculty Handbook permitted discharge of tenured professors only for cause related to their character or performance -- not for financial reasons -- there was no reason to abstain:  "[W]hen the case merely involves a church, or even a minister, but does not require the interpretation of church doctrine, courts need not" abstain.  Presumably, had the discharges been justified in terms of performance that implicated religious issues -- such as departures from orthodoxy in teaching -- the ecclesiastical abstention principle would have barred the suit.

As for Professor Kant, the court found him not to be a ministerial employee to begin with. Rejecting the view that all Seminary professors were necessarily ministers, it found that, unlike Kirby, Kant "did not participate in significant religious functions, proselytize, or espouse the tenets of faith" of his employer. Even though his teaching might have contributed to the overall mission of the Seminary, that was not enough to make him a minister. Further, while Kant's personal belief system -- he was a "practicing Jew" -- did not necessarily mean he was not a minister, the reality remained that his work was chiefly secular.

Despite not falling under the ministerial exception, the court considered whether  Kentucky;s ecclesiastical abstention doctrine would nevertheless Kant's bar the suit, finding the analysis in Kirby controlling: essentially, that there was no religious question involved.


May 28, 2014 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Welcome to Guest Blogger Joseph Seiner

SeinerPlease welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:

Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.

Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.

Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.

Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract: 

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.

Welcome, Joe!


May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.


April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2014

AALS Contracts Section Call for Proposals

AalsNancy Kim (California Western), chair of the AALS Contracts section sends along this call for proposals for the annual meeting which might be of interest to the many readers of the blog:


JANUARY 2-5, 2015


The AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, Mind the Gap! - Contracts, Technology and Legal Gaps, to be held in Washington, D.C. on January 2-January 5, 2015.

Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property. Who owns the data collected by embedded medical devices? Can employers wipe departing employees’ phone data? To what extent are companies liable for harms created by their inventions, such as driverless cars?  Who owns crowd sourced content?

Courts and legislatures are often slow to respond to these issues. To fill this legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. They limit their liability and allocate rights through contractual provisions. Technology affects the way contracts are used as well. Employers may have employees agree to remote phone wiping policies in their employment agreement or through click wrap agreements that pop up when they connect to the network server. Through contracts, businesses establish norms that can be hard to undo. The norm of licensing instead of selling software, for example, was established through contract and has become entrenched as a business practice. The collection of online personal information through online contracts is another example.

The Section seeks two or three speakers to join our panel of invited experts to discuss how technology has affected the use of contracts. How have parties used contracts to address the risks created by technologies? In what ways have contracts been used to privately legislate in the gap created by technological advancements? What concerns are raised when private ordering is used to fill the legal gap created by technology? What are, or should be, the limits of consent and contracting where emerging technologies are involved?

Drafts and completed papers are welcome though not required, and must be accompanied by an abstract. Preference will be given to proposals that are substantially complete. Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication). There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.

We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section. We will give some preference to those who have not recently participated in the Section’s annual meeting program.

DEADLINE: August 15, 2014. Please e-mail an abstract or proposal to section chair, Nancy Kim ( with “AALS Submission” in the title line by 5:00pm (Pacific Time) August 15, 2014. Submissions must be in Word or PDF format.


April 16, 2014 in Conferences & Colloquia, Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)