Friday, August 26, 2016

Call for papers from the Center for Applied Feminism & Intersectionality

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 ubfeministconference@gmail.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 majohnson@ubalt.edu. For additional information about the conference, please visit law.ubalt.edu/caf.

MM

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

Yamada on Unpaid Internships

UnpaidDavid 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.

rb

July 29, 2016 in Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (1)

Tuesday, July 19, 2016

New Book: Invisible Labor

51gF-gQv01L._SX331_BO1,204,203,200_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!

MM

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

Call for Papers, AALS: Classifying Workers in the Gig Economy

AalsThe 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 mzgreen@law.tamu.edu 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.

MM

June 13, 2016 in Conferences & Colloquia, Employment Common Law, Faculty Presentations, Scholarship | Permalink | Comments (1)

Saturday, June 11, 2016

Arnow-Richman on Reasonable Notice

Rachel Arnow-Richman comments on Casetext on the Virginia Supreme Court's rejection of any requirement of reasonable notice in the at-will context.  Consistent with her recent scholarship, she's pretty critical!

CAS

June 11, 2016 in Employment Common Law | Permalink | Comments (0)

Wednesday, March 30, 2016

Seiner on Class Actions in the On-Demand Economy

JosephSeinerOur 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.

MM

March 30, 2016 in Employment Common Law, Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Friday, February 5, 2016

Arnow-Richman on Unilateral Modification of At-Will Contract Terms

Rachel-arnow-richman-fullRachel Arnow-Richman (Denver) has just posted on SSRN her article (forthcoming 57 Boston College L. Rev.___ (2016)) Modifying At-Will Employment Contracts. Here's the abstract:

[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.

rb

February 5, 2016 in Employment Common Law | Permalink | Comments (0)

Thursday, December 17, 2015

SEALS 2016 Call for Papers: New and Existing Voices in Labor and Employment Law

Seals logoFriend 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 mzgreen@law.tamu.edu and arguthrie@law.tamu.edu 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.

MM

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

Curtailing Employee Suits

New ImageBy 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. 

CAS

December 1, 2015 in Employment Common Law | Permalink | Comments (0)

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.

CAS

                

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.

rb

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.        

CAS

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. 

CAS

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.

CAS

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: http://www.law.indiana.edu/cosell.

 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!

MM

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.

CAS

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

CAS

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! 

 CAS

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….

 CAS 

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)