Monday, April 17, 2017
Congratulations to Catherine Fisk on her contribution to the Sunday NYT column "The Workologist". She was cited liberally in a Q&A about employment references. For the entire article, see When a Potential Employer Seems Unnervingly Nosy.
Friday, April 7, 2017
The book is the first Canadian text to explore in depth all three regimes of work law, including Common Law, Regulatory Law, and Collective Bargaining Law and it emphasizes the interaction between the three regimes. For those interested in understanding Canadian work law, this is the book. Also, you might be interested in knowing that the book was written to be accessible to non-lawyers, including the thousands of business, HRM, industrial relations, labour studies students learning work law in Canada. I wrote it because I frequently teach business students and there was no book in Canada that explained the law of work in a sophisticated, contextual manner but that doesn’t also assume the readers have already studied law for a year or two. Finally, the book also extends the subject matter beyond most labor law texts, by including chapters on subjects such as work and intellectual property law, work and privacy law, trade law, immigration law, and bankruptcy law.
Wednesday, April 5, 2017
Gary Spitko (Santa Clara) has just posted on SSRN his article (forthcoming 69 Florida Law Review ___ (2017)) A Structural-Purposive Interpretation of 'Employment' in the Platform Economy. Here's the abstract:
The considerable growth of the platform economy has focused attention on the issue of whether a provider who is engaged through a transaction platform should be classified as an employee of the platform operator within the purview of workplace protective legislation or, rather, as an independent contractor outside the scope of such legislation’s protections. This Article focuses specifically on whether the operator’s reservation of the right to impose quality control standards on the provider ought to give rise to employment obligations running in favor of the provider and against the operator. This narrow issue is of great importance to the future of the platform economy. Quality control standards promote trust between platform consumer and provider and, thus, enable leveraging of network effects, to the benefit of the platform operator, consumer and provider. Yet, if the law considers the operator’s right to impose quality control standards on the provider as a factor that will weigh in favor of finding that the provider is an employee of the operator, the operator is more likely to forego the right to impose such standards.
With respect to much workplace protective legislation, neither the statutory language nor the legislative history is even minimally helpful in defining “employment.” Thus, this Article engages in a structural-purposive inquiry into the definition of employment as applied to the platform economy. The analysis proceeds in three steps. First, the Article explores the structure of workplace protective legislation generally and identifies a “control bargain” implicit in that structure pursuant to which the state imposes a scheme of workplace protective regulation on the firm only if the firm retains a certain type and degree of control over its worker. Second, the Article examines the nature of the platform economy and the function of quality control standards within that economy. From this examination, the Article concludes that the nature of the platform economy suggests that the platform operator’s retention of the right to impose quality control standards on providers should be seen as outside the scope of the control bargain and, therefore, should not weigh in favor of finding an employment relationship. Finally, the Article considers case law addressing the meaning of employment in the similar context of the franchisor-franchisee relationship. This case law supports the Article’s principal conclusion by demonstrating that the control bargain allows for exceptions to the rule that the firm’s retention of control over a worker weighs in favor of finding that the firm employs the worker, that the firm’s reservation of the right to impose quality control standards can be such an exception, and that such an exception can be discerned from the nature of the relevant workplace structures.
Friday, November 18, 2016
Introduction: Ken Dau-Schmidt, Indiana University
Chapter 1: Existence of the Employment Relationship
- Joe Slater, Toledo
- Charlotte Garden, Seattle Univ
Chapter 2: Employment Contracts: Termination
- Steve Befort, Minnesota
- Lea Vandervelde, Iowa
- Ken Casebeer, U of Miami
Chapter 3: Employment Contracts: Compensation and Benefits
- Scott Moss, Colorado
- Nadelle Grossman, Marquette
Chapter 4: Principles of Employer Liability for Tortious Harm to Employees
- Jason Bent, Stetson
- Michael C. Duff, Wyoming
Chapter 5: The Tort of Wrongful Discharge in Violation of Public Policy
- Nicole Porter, Toledo
- Ann McGinley, UNLV
Chapter 6: Defamation, Wrongful Interference, and Misrepresentation
- Ruben Garcia, UNLV
- Helen Norton, Colorado
Chapter 7: Employee Privacy and Autonomy
- Matt Finkin, Illinois
Chapter 8: Employee Obligations and Restrictive Covenants
- Alan Hyde, Rutgers Newark
Chapter 9: Remedies
- Marley Weiss, Maryland
- Judge David Hamilton, Seventh Circuit Court of Appeals
- Judge Terry A. Crone, Third District Court of Appeals (Indianapolis)
- Michael W. Padgett, Jackson and Lewis (Indianapolis)
- Ryan H. Vann, Baker & McKenzie LLP (Chicago)
- Michael D. Ray, Ogletree and Deakins (Chicago)
- Jeffrey A. Macey, Macey, Swanson and Allman (Indianapolis)
- John Roche, Senior Attorney, Ill FOP Labor Council
- Dale Pierson, IUOE, Local 150 General Counsel
- Daniel J. Kaspar, Assistant Counsel, Nat'l Treasury Employees Union
Wednesday, November 16, 2016
One of my favorite higher-ed bloggers, Matt Reed (aka "Dean Dad"), posts today on the disconnect between the increasing decriminalization private-sector drug testing, and the consequent labor-market distortions. Here's an excerpt; his entire post When Did We Decide That? is well worth the read:
Without ever really having the conversation, as a society, we seem to have decided to outsource the war on drugs to private employers.
Referenda legalizing marijuana for recreational use passed in several states, having already passed in several others. It’s legal for documented medicinal use in many more, and I’m told that getting the relevant documentation is less strenuous in some places than others. The culture seems to be saying, albeit in stages and regionally, that it has better things to worry about.
But during the same period that many state legal barriers have fallen, employer drug screening has become widespread.
In talking with some local employers about the gaps they’re struggling to fill, I’ve heard repeatedly that the single biggest barrier to finding good people is getting candidates who can pass a drug test. Tests snag an alarming number of people. That’s especially true in the jobs that don’t require graduate degrees but that do pay pretty well, such as the skilled trades.
Monday, October 17, 2016
Orly Lobel (San Diego) has posted on SSRN her article (forthcoming U. San Francisco L. Rev.) The Gig Economy & The Future of Employment and Labor Law. The article is part of a duo – she has a longer article forthcoming in Minn. L. Rev. called The Law of the Platform which looks at a wide variety of sharing companies and their regulatory challenges. Here's the abstract of the Gig Economy article:
In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.
Wednesday, September 21, 2016
Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:
In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.
"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."
Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.
"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."
In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.
"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.
The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.
Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.
Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.
September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)
Tuesday, September 20, 2016
I just uploaded my most recent article, Transnational Employment Trends in Four Pacific Rim Countries, 34 UCLA Pacific Basin Law Journal ___ (forthcoming 2017) (co-authored with Lia Alizia, Masako Banno, Maria Jockel, Melissa Pang, and Catherine Tso). I mention this not because this is a groundbreaking work of legal scholarship, but instead to encourage others to consider co-authoring scholarship with non-American faculty members and practitioners. This article, for example, had its genesis in a panel I served on at a LawAsia Employment Conference. I find it rewarding to bring together a disparate group of folks to pool their interest and expertise in topics related to labor/employment law, and a huge side benefit is creating relationships that can far outlast a specific project.
Friday, September 9, 2016
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his annual (30th?) review of the Supreme Court's work in the employment area. The article will be presented at a seminar in late October at the Grove Park Inn in Asheville, NC. Here's the abstract:
This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.
Friday, August 26, 2016
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to email@example.com. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at firstname.lastname@example.org. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Friday, July 29, 2016
David Yamada (Suffolk) has just posted on SSRN his article (8 Northeastern U. L.J. 357 (2016) The Legal and Social Movement Against Unpaid Internships. The article offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years. This includes the Glatt v. Fox Searchlight Pictures litigation concerning unpaid internships, which culminated in 2016 Second Circuit decision that restricts, but does not foreclose, future challenges under the FLSA.
The article already has received a huge amount of attention -- 500+ SSRN downloads. This obviously is a critically hot topic.
Here's an excerpt from the abstract:
Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.
This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.
In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.
Tuesday, July 19, 2016
Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:
Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.
The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!
July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)
Monday, June 13, 2016
The Executive Committee of the AALS Labor Relations and Employment Law Section announces that it is seeking abstracts as part of a Call for Papers to be presented at the 2017 Annual Meeting program in San Francisco. The program, titled Classifying Workers in the “Sharing” and “Gig” Economy, will take place on Thursday, January 5, 2017 from 8:30 am to 10:15 am. Co-sponsored by the AALS Immigration Law, Business Associations, and Contracts Sections, this program will start immediately after a Breakfast jointly sponsored by the AALS Labor Relations and Employment Law and Employment Discrimination Sections held from 7 a.m. to 8:30 that morning.
This program will focus on the emerging trend of businesses using “on-demand” workers who share economic risks with those businesses as nominally independent contractors. These workers consider the job opportunity as an individual “gig,” characterized by flexibility conveniently gained from technology. State, federal, and local legislatures and related labor and employment law enforcement agencies have started to add items to this analysis beyond the typical “1099/W-2" common law control nomenclature.
As a result, the question of who is an employee in the gig and sharing economy has become an ever-increasing concern. During the program, a panel of leading labor and employment law scholars will address this question from a multi-disciplinary approach including the examination of unique issues for business franchises and immigrant workers.
We are seeking an additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. Papers presented during this program may be published by the Employee Rights and Employment Policy Journal. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Michael Z. Green, at email@example.com by August 26, 2016. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 5, 2017. Any inquiries about this Call for Papers should be submitted by e-mail to Professor Green.
Saturday, June 11, 2016
Wednesday, March 30, 2016
Our own Joe Seiner has just uploaded an essay to SSRN: Tailoring Class Actions to the On-Demand Economy, 77 Ohio State L.J. __ (2017) (forthcoming). From the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important—yet unexplored— area of the law.
As Joe writes in the abstract, classification issues in the on-demand or platform economy are a very hot topic right now, and this essay on systemic claims is a valuable contribution to the broader issues.
Friday, February 5, 2016
[Employers often unilaterally alter the terms of at-will employment,] often without advance notice. To date, however, neither courts nor commentators have holistically considered this problem of “midterm modifications” - contractual documents imposed post-hire on implicit or explicit threat of termination. Bringing together the law of noncompetes, arbitration agreements, and employee handbooks, this Article calls for a universal reasonable notice rule for all midterm modifications. Under this rule, courts would enforce midterm modifications only ... where the employer provides enough advance notice to allow the employee time, not only to meaningfully consider the proposed change, but also to compare and secure alternate work. The Article justifies this move [on the basis of] good faith. Procedural good faith means that the employer must act fairly in carrying out discretionary modifications otherwise immune from substantive review. An employer’s choice to impose new terms with immediate effect precludes an employee from exercising what is often his or her only form of bargaining power - the ability to convincingly threaten to leave.
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 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 | Permalink | Comments (0)
Tuesday, December 1, 2015
By now, we’re used to the idea that employees can sign away their rights to a court forum in favor of an arbitral tribunal, but we’re not so used to the idea that contract law, even without the aid of the Federal Arbitration Act, can be deployed to deprive employees of statutory rights they would otherwise have. A case raising these issues in a dramatic fashion is set for argument today before the New Jersey Supreme Court. At issue is a retailer’s employment application, which provides that any suit must be brought within 6 months of a claim arising. The effect would be substantially shorten the limitations period otherwise applicable under the state’s Law Against Discrimination.
Although the claim in question arises under LAD, the waiver –if valid – would presumably shorten the period for most causes of action that would otherwise have a longer limitations period. In New Jersey, that’s pretty much every claim – contract, tort, Conscientious Employee Protection Act, the list goes on. And there’s nice fringe benefit, from management’s perspective, that employees may not recall signing such a document, much less kept a copy of their applications for employment. In blissful ignorance of this ticking time bomb, employees and their attorneys might assume that they have whatever time the cause of action would normally allow.
But it’s a contract, right? So what’s the problem? The Appellate Division saw none, and dismissed plaintiff’s case as time barred. For that court, the major doctrinal obstacle was unconscionability, always the last resort of the desperate, and the court found the requirements of that doctrine unsatisfied. Although it treated the contract as one of adhesion, it did not find the waiver substantively unfair. In the process, it looked to a variety of cases upholding agreements curtailing statutory limitations periods.
To reach its result, the court rejected the plaintiff’s argument that the legislatively-enacted period in various statutes itself reflected a strong policy of worker protection, thus rendering any effort to shorten the period either substantively unfair or, more directly, a violation of state policy. The Appellate Division would have none of it – the state Legislature had not barred such agreements despite being “presumably aware of the long-established case law allowing contractual reductions that are reasonable and not contrary to public policy.”
If the Appellate Division’s decision stands, employers will have a powerful new tool to minimize risk of liability. Nor do they have to choose between an old risk-management tool like arbitration and the new tool of slashing limitations periods. Having their cake and eating it too, there’s no apparent obstacle to providing that an arbitration proceeding has to be filed within the reduced period. After all, we usually conceived or arbitration as simply replacing a public forum with a private one to resolve the same dispute, albeit in a less formal way.
There are some limitations on such agreements. Looking to the principle that private agreement should be “reasonable and not contrary to public policy,” the court recognized that sometimes a shortened statute of limitations may be, so to speak, off limits. Under the federal antidiscrimination statutes, for example, there is generally a requirement that a plaintiff file with the EEOC and provide it with at least 180 days to seek to resolve the dispute. This structure would seem to necessarily invalidate a 6 month statute of limitations since it would essentially foreclose any private suit.
Further, the principle may be generalized such that, at least for any claim founded on a statutory regime (as opposed to contract or tort claims), employers may not functionally deprive the employee of her rights by too radical a reduction in the time allowed to bring suit. But for the Appellate Division, 6 months didn’t do it – in part because New Jersey had 6 month limitations periods for certain remedies. Nor did the court find persuasive the possibility that a plaintiff would not know of the period – after all, contracting parties are “assumed to have read [the contract] and understood its legal effect . . . even if a language barrier is asserted,” as it was in the case at bar.
To be clear, the Appellate Division is not the first opinion to approve of contractual contraction of limitations, nor even the first to do so in the context of employment claims, and, indeed, the court could find no published opinion to the contrary. Nevertheless, the New Jersey Supreme Court often goes its own way, and it would scarcely be surprising for the court to find these kinds of agreements unenforceable.
We should know in a few months.
Thursday, October 1, 2015
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.
Tuesday, September 1, 2015
A 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.