Friday, February 16, 2018

NLRB Seeking Input on Misclassification Unfair Labor Practice

NLRBYesterday, the NLRB announced that it is seeking input on whether an employer's misclassification of employees as independent contractors should be a unfair labor practice under Section 8(a)(1). In the case at issue, Velox Express, an ALJ found such a violation. This comes on the heels of some recent NLRB decisions finding a ULP in misclassification cases, as well as the General Counsel's release of a Division of Advice memorandum along the same lines (indicating more of a focus on that issue). Unsurprisingly, the new Board looks to be reigning in this type of ULP, if not eliminating it altogether.  The question presented in the Velox call for briefs:

Under what circumstances, if any, should the Board deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1) of the Act?

Stay tuned . . . .

-Jeff Hirsch

 

February 16, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Grad Students Abandoning Election Victories [Updated]

Inside Higher Ed is reporting on three different graduate student election certification efforts being abandoned in recent days. Following the NLRB's 2016 Columbia University decision, there was a surge of organizing activity for private-school grad students. However, with the new Trump Board, the fear among unions and organizers is that Columbia will soon be overturned. As a result, unions are abandoning the formal NLRB representation process, hoping to gain voluntary recognition from the universities. Thus, last week, unions working with grad students at Boston College, University of Chicago, and Yale University withdrew election petitions they had filed with the NLRB. Just to underscore the significance of these moves, note that the unions had already won elections at all three schools. But given that the schools were challenging those elections, the unions clearly felt that the better strategy was to stand down and attempt to gain voluntary recognition. The chances of voluntary recognition at these three schools appear to be low--it's unclear why the schools would reverse their strong opposition to their grad students' organization efforts--but it's something that has worked at other schools. As the article noted: 

William Herbert, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College of the City University of New York, said it appeared graduate students will rely on the already demonstrated showing of majority union support. “Keep in mind that graduate student unions were voluntarily recognized at NYU and the University of Connecticut,” he said, the latter case involving a public institution subject to state labor laws.

[Update] Bill also has a recent article exploring the early history of organizing in higher education, including examples of voluntary recognition. The paper is "The History Books Tell It? Collective Bargaining in Higher Education in the 1940s," which appears in the Journal of Collective Bargaining in the Academy. Check it out.

-Jeff Hirsch

February 16, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Sunday, January 28, 2018

Recent Developments in Title VII Protection for Sexual Orientation

JackThis guest post is courtesy of Jack Harrison (NKU-Chase):

On Thursday, January 25, 2018, the United States Court of Appeals for the First Circuit upheld a 2016 jury verdict of more than $700,000, plus $184,000 in legal fees, in a Title VII case involving Lori Franchina, a lesbian firefighter for the City of Providence, Rhode Island. This case is important because it represents yet another decision by one of the Courts of Appeals calling into question precedents in the circuit holding that sexual orientation discrimination is not prohibited by Title VII’s prohibition of discrimination “because of sex.” While Franchina was decided on a sex-plus theory, rather than a sexual orientation theory, the “plus” in the case was Franchina’s sexual orientation.

The Court of Appeals described the horrendous treatment that Franchina had endured in the workplace as follows:

‘Cunt,’ ‘bitch,’ ‘lesbo’: all are but a smattering of the vile verbal assaults the plaintiff in this gender discrimination case, Lori Franchina, a former lieutenant firefighter, was regularly subjected to by members of the Providence Fire Department (‘the Department’). She was also spit on, shoved, and — in one particularly horrifying incident — had the blood and brain matter of a suicide-attempt victim flung at her by a member of her own team.

The First Circuit flatly rejected the city’s argument “that under a sex-plus theory, plaintiffs are required to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination.” In rejecting this argument, the First Circuit seemed to embrace the broader comparator analysis adopted by the Seventh Circuit in its decision in Hively, finding that sexual orientation discrimination was, indeed, discrimination “because of sex” prohibited by Title VII. The First Circuit also indicated that nothing in its prior decision addressing sexual orientation discrimination, Higgins v. New Balance Athletic Shoe Inc., “forecloses a plaintiff in our Circuit from bringing sex-plus claims under Title VII where, in addition to the sex-based charge, the ‘plus’ factor is the plaintiff's status as a gay or lesbian individual.” The discussion by the court of this precedent appears to call into question the court’s commitment to the position held in Higgins. Such questioning is certainly consistent with language used by other Courts of Appeals in decisions over the last year, including decisions by the Seventh, Eleventh, and Second Circuits, addressing the reach of Title VII in the sexual orientation discrimination context.

Currently, the en banc United States Court of Appeals for the Second Circuit is considering Zarda v. Altitude Express, a case that, like Hively, squarely asks the question of whether Title VII’s prohibition against discrimination “because of sex” includes discrimination based on sexual orientation. Oral argument was held in Zarda on September 26, 2017. While scheduled for only one hour, the arguments actually lasted for almost two hours. The questions asked and the tone of the oral argument would suggest that the Second Circuit is likely to follow the lead of the Seventh Circuit in Hively, concluding that the prohibition against discrimination “because of sex” found in Title VII includes a prohibition against discrimination based on sexual orientation. The Supreme Court recently rejected a petition for certiorari in a case from the Eleventh Circuit that raised this question, but with a decision in Zarda expected any day, the Supreme Court may ultimately have to address this issue.

rb

January 28, 2018 in Employment Discrimination, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Tuesday, December 19, 2017

Labor and Higher Education Paper and Conference

HunterSome news from friend-of-the-blog, Bill Herbert (Hunter College):

This article begins with a brief history of unionization and collective bargaining in higher education. It then presents data concerning the recent growth in newly certified collective bargaining representatives at private and public-sector institutions of higher education, particularly among non-tenure track faculty. The data is analyzed in the context of legal decisions concerning employee status and unit composition under applicable federal and state laws. Lastly, the article presents data concerning strike activities on campuses between January 2013 and May 31, 2017.

  • On-registration has begun for the National Center's 45th annual higher education labor-management conference in New York City on April 15-17, 2018.  The theme of the conference is Facing New Realities in Higher Education and the Professions.

    The keynote speaker will be Dean David Weil of the Heller School for Social Policy and Management, Brandeis University, and author of the Fissured Workplace.

    The conference plenary will discuss Dr. Martin Luther King, Jr. and his legacy for our times withWilliam P. Jones, University of Minnesota; Derryn Moten, Alabama State University, and Jeanne Theoharis, Brooklyn College, CUNY.

    The following are the subjects of some of the confirmed conference workshops and panels:

    -Workshops on April 15, 2018:  Unionization and collective bargaining for administrators and academic labor; bargaining over health care in higher education; preparing, presenting, and defending at arbitration; financial analysis in higher education; effective lobbying for higher education

    -Panels on April 16-17, 2018: Responding to Janus: collective bargaining and membership engagement; recently negotiated first contracts for adjunct faculty; bargaining a first contract for graduate student employees; interest-based bargaining at community colleges; wage discrimination at universities and professional schools; creative solutions for resolving wage compression; unionization at religiously-affiliated colleges and universities; unionized environments at academic libraries; and unionization of doctors and nurses.

 

-Jeff Hirsch

 

December 19, 2017 in Conferences & Colloquia, Labor and Employment News, Scholarship | Permalink | Comments (0)

Friday, December 15, 2017

NLRB Overrules Specialty Healthcare and Unilateral Change Rule

NLRBAnother twofer from the NLRB today. The first is another expected change--the Specialty Healthcare decision that has been much derided by employers. In Specialty Healthcare (2011), the Board concluded that if, after there is a determination pursuant to the traditional unit determination test, an employer argued that employees should be added to a union's proposed unit, the Board would find the proposed unit appropriate unless the employer could show that the excluded employees shared an overwhelming community of interest with the proposed group of employees. In PCC Structurals, the NLRB reversed Specialty Healthcare and its "overwhelming community of interest" standard, instead using only the multi factored test for a unit determination in most cases. Also, although it wasn't presented in PCC Structurals, the NLRB also reinstated the Park Manor standard for nonacute health care facilities (like nursing homes), that prompted the Specialty Healthcare decision. Legally, the issue over the traditional v. Specialty Healthcare tests hinges on what is meant by the NLRA's mandate that a unit merely be "an appropriate" unit rather than the "most appropriate" unit and how much the interests of excluded employees should play a role. But in reality, the disagreement is mainly based on the fact that, in general, the smaller the unit, the easier to organize.

In the second case, Raytheon Network Centric Systems, the NLRB reversed a 2016 case, DuPont, in which the Board had concluded that an employer must bargain with a union before instituting a change that is consistent with a previous practice that was created under an expired management rights clause or made pursuant to employer discretion. In Raytheon, the NLRB stated that an employer need not bargain before implementing any change that is similar in kind and degree with an established past practice that is similar to the unilateral change--even if the past practices were created under a collective-bargaining agreement, even if there was no agreement when the disputed change was implemented, and even if the past practices involve some degree of employer discretion. The dissent argues strenuously that this new rule violates the Supreme Court's decision in Katz.

We now have four NLRB reversals over two days, all of which were issued without any notice or invitation for comment. Moreover, they all mirror Chairman Miscimarra dissents. The Chairman's term is expiring tomorrow, so I wouldn't be surprised to see several more decisions even running into next week (dated Dec. 16).

-Jeff Hirsch 

December 15, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, December 14, 2017

Justice Hart

Congratulations to Melissa Hart, who was just named to the Colorado Supreme Court! Apparently, she will continue to teach, which I'm sure her colleagues and students at University of Colorado will be happy to hear.

-Jeff Hirsch

December 14, 2017 in Labor and Employment News | Permalink | Comments (0)

NLRB Changes Joint Employer and Workplace Policy Standards

NLRBWell, that didn't take long. A mere day after our post about possible changes from the new NLRB, the Board has announced two major rule reversals. 

The second case announced, as will surprise exactly no one, reverses the NLRB's Browning-Ferris decision on joint employer status. In Hy-Brand Industrial, the NLRB returned to the pre-Browning standard, under which joint employment is found only if actual control is exercised in a "direct and immediate" manner that is not limited or routine. You can see our previous coverage of the standards here. This has been a major issue for many employers, such as franchise businesses, and the subject of a lot of activity in Congress, so this move was expected.

The first case announced reversed a 2004 decision, Lutheran Heritage, which concluded that an employer's facially neutral workplace rule will be unlawful if employees would reasonably construe it as prohibiting the exercise of NLRA, Section 7 rights. Under the new case, The Boeing Co., the NLRB will only find facially neutral rules to be unlawful by weighing the nature and extent of the potential impact of the rule on NLRA rights, and the employer's legitimate justifications for implementing the rule. The Board also emphasized that an otherwise lawful rule could still be applied in an unlawful fashion. To provide more clarity, the Board is establishing three categories; according to the NLRB announcement

Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility.  Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
 
Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
 
Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.
 
The fact that the NLRB's first rule change was to flip a Bush-era NLRB further underscores my observation of a Board that intends to be quite aggressive. Maybe I'm reading too much into all of this, but the Boeing decision and its timing hit with a wallop and I think we're going to have to buckle our seatbelts for this Board, as a lot of big changes may be afoot.
 
-Jeff Hirsch
 

 

December 14, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Tuesday, December 12, 2017

Changes at the NLRB--Will New Representation Rules Be Altered?

NLRBWith the new Republican majority at the NLRB, changes from the prior Board were to be expected and now we're beginning to see that pay out. For instance, yesterday, by a 3-2 vote, the NLRB flipped its policy on settlements yet again. Last year, in USPS, the Board concluded that ALJs should accept a proposed settlement over the General Counsel's and charging party's objections only if the offer provided a full remedy for all alleged complaints. In Presbyterian Shadyside, the new Board reversed USPS and will now allow ALJs to accept settlement proposals over the other parties' objections if the settlement is viewed as reasonable, using the Independent Stave factors.

Today, the Board also raises the prospect of reversing the new representation rules that were so contentious the earlier half of this decade. The Board released a request for information regarding these rules. In addition to what sounds like a fair amount of sniping among the Board members, the request asks the following three questions: "the Board has an interest in reviewing the Election Rule to evaluate whether the Rule should be

(1) retained without change,

(2) retained with modifications, or

(3) rescinded, possibly while making changes to the prior Election Regulations that were in place before the Rule’s adoption.

Regarding these questions, the Board believes it will be helpful to solicit and consider public responses to this request for information."

For a description of the new rules and how they changed the process, check out my article on the topic, NLRB Elections: Ambush or Anticlimax?, 64 Emory L.J. 1647 (2015). As I described, the new rules were actually a fairly modest change to procures. NLRB statistics following their implementation support that conclusion as well. The election timeline was shortened some, but the new rules seem to have no appreciable effect on election outcomes. Given all of this, it will be interesting to see if the Board feels like this is an issue worth the time to tackle.

Stay tuned.

-Jeff Hirsch

 

December 12, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Sunday, November 12, 2017

Republican Tax Bill Puts Thumb on EE-IC Scale

ThumbShu-Yi Oei and Diane Ring (both Boston College) have just posted on Tax Prof Blog The Senate Tax Bill and the Battles Over Worker Classification. Their post is extensive and detailed and well worth a full read. Here's a quick summary; the take-away is in bold at the bottom:

Senate Republicans released their version of tax reform legislation on Thursday, November 9. The legislative language is not available yet, but the Description of the Chairman’s Mark (prepared by the Joint Committee on Taxation) suggests that one of the key provisions in the bill will clarify the treatment of workers as independent contractors by providing a safe harbor that guarantees such treatment. The JCT-prepared description tracks the contents of the so-called “NEW GIG Act” proposed legislations introduced by Congressman Tom Rice (R-S.C.) in the House and Senator John Thune (R-S.D.) in the Senate in October and July 2017, respectively. “NEW GIG” is short for the “New Economy Works to Guarantee Independence and Growth (NEW GIG) Act.” But notably, and as we further discuss below, the legislation is not limited in its application to gig or sharing economy workers.

Assuming the Senate Bill adopts the basic parameters of the NEW GIG proposed legislation — which looks to be the case based on the JCT-prepared description — we have some concerns. In brief, this legislation purports to simply “clarify” the treatment of workers as independent contractors and to make life easier for workers by introducing a new 1099 reporting threshold and a new withholding obligation. But the legislation carries potentially important ramifications for broader fights over worker classification that are raging in the labor and employment law area. Despite possibly alleviating tax-related confusion and reducing the likelihood of under-withholding, we worry that there are quite a few underappreciated non-tax hazards for workers if these provisions go through.

The legislation (assuming the Senate Bill more or less tracks the NEW GIG Act language) purports to achieve such “clarification” of worker classification status by [, among other things, introducing] a safe harbor “which, if satisfied, would ensure that the worker (service provider) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer.”...

At first blush, this legislation looks like it does good things for workers by clarifying their tax treatment, providing peace of mind, lowering previously unclear information reporting thresholds, and solving some of their estimated tax/mis-withholding issues.... The problem is that it’s not just about tax....

Our worry is that tax clarification of independent contractor status is a strategic step designed to win this broader (non-tax) regulatory war over worker classification. The risk is that “clarifying” the independent contractor status of workers for tax purposes through the introduction of an easy-to-meet safe harbor risks influencing and tilting the worker classification battle that is occurring in labor and employment law. While determinations of independent contractor status in other areas are theoretically independent from the tax determination, clarification on the tax side may help create presumptions elsewhere that independent contractor classification is normatively correct. While the precise legal tests governing worker classification differ across areas — we have, for example, the common law agency test, the ABC test, the economic realities test, and the IRS 20-factor test — the tests have elements in common: They all examine to some degree the nature of the relationship between the business and the worker, and they all pay attention to the control exercised by the business over the worker. If one field decides the classification question a certain way, there is likely to be some reverberation for the analysis in other fields.

Our specific concern is that “forced clarity” in tax can tilt the direction of the worker classification debate in a way desired by the platform businesses, industry lobbyists and the legislation’s supporters....

rb

November 12, 2017 in Employment Common Law, Labor and Employment News, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Thursday, November 2, 2017

FMCS/LERA Call for Papers & Panels on "Shaping the Future of Work"

Webhead

Arthur Pearlstein (FMCS) sends word that FMCS is ...

participating in the production and program of the Labor and Employment Relations Association (LERA) 70th Annual Meeting, June 14-17, 2018, in Baltimore, MD at the Hilton Baltimore, with the theme “Shaping the Future of Work: Challenges, Opportunities and New Models.” Conference organizers and the program committee have issued a call for proposals for papers, symposia, panels, workshops, posters, skill-building debates, roundtable discussions, and other formats for the conference program. The deadline for conference proposals is fast approaching. It is Nov. 15, 2017.

According to organizers, the conference will feature more than 80 workshops, sessions, and events where more than 250 speakers will present. The conference is intended to provide practical workshops, debates on the latest research in labor and employment relations. Attendees will hear from experts on how their companies, organizations, and unions have successfully navigated workplace issues critical to their success.

rb

November 2, 2017 in Conferences & Colloquia, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Wednesday, October 18, 2017

Legal Protection for NFL Protests? Not So Fast . . . .

Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark. 

The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.

First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.

Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.

Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.

-Jeff Hirsch

October 18, 2017 in Labor and Employment News | Permalink | Comments (10)

Monday, October 16, 2017

Solicitor General's View on USERRA Abrogation

Supreme Court

As I mentioned recently, the Supreme Court had requested the Solicitor General's view on whether the abrogation of state sovereign immunity under USERRA was valid. The SG's office just submitted its brief, recommending the denial of cert. There are reasonable grounds to argue against cert., most notably the lack of a circuit split, but the SG's brief was, to put in bluntly, lazy. It didn't make any meaningful attempt to address the constitutional or historical reasons why abrogation under the war power should be treated especially carefully; indeed, it went so far as to suggest that the war powers are equivalent to other Article I powers when it come to the balance of federal and state power, which I find disturbing ("But the central problem with petitioner’s argument [that Congress' war powers is exclusive and important] is that all Article I powers could be described as exclusive and important to at least some degree.").

Again, if you're curious about this issue, I've got an older article that delves into it the question in detail. Needless to say, I conclude that the war powers is very much not like other Article I powers when it comes to federal authority supplanting state authority. 

-Jeff Hirsch

October 16, 2017 in Labor and Employment News | Permalink | Comments (1)

Saturday, October 7, 2017

Labor & Employment Roundup

Some recent labor & employment news to catch up on: 

  • The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
  • Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
  • The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
  • Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.

-Jeff Hirsch

October 7, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (2)

Thursday, September 28, 2017

Supre Court Grants Cert in Two Labor & Employment Cases

Supreme CourtToday, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.

Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again. 

You can read more at SCOTUSBlog.

-Jeff Hirsch

September 28, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Thursday, August 31, 2017

New Labor Code for France?

The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:

  • Allows small employers to bargain directly with employees;
  • Creates bigger bargaining units at a workplace; 
  • Increases severance pay;
  • Lowers cap on wrongful dismissal awards;
  • Lowers statute of limitations on wrongful dismissal claims; and
  • Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.

I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.

In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.

-Jeff Hirsch

August 31, 2017 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

Monday, August 14, 2017

Firing Nazis

CharlottesvilleDavid Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist?  The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.

Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But

[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.

That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.

rb

 

August 14, 2017 in Employment Discrimination, Labor and Employment News, Public Employment Law, Religion, Workplace Trends | Permalink | Comments (2)

Tuesday, August 8, 2017

Google Engineer Files NLRB Complaint Regarding Post-Memo Termination

This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.

Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.

All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.

-Jeff Hirsch

August 8, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, August 2, 2017

Kaplan Confirmed to NLRB; Emanuel Vote Pushed Back

Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.

-Jeff Hirsch

August 2, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, July 12, 2017

Unions in the South

It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.

First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.

-Jeff Hirsch

July 12, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Tuesday, June 20, 2017

Marvin Kaplan to be Nominated to NLRB

NLRBAs predicted, Marvin Kaplan will be nominated as a member of the NLRB.  At the moment, Kaplan is counsel at the Occupational Safety and Health Review Commission. especially given his previous Capitol Hill experience as counsel for the House Workforce and Education Committee, I would expect his nomination to come relatively quickly, producing a 2-2 political split on the Board (of course, most cases will be heard by a randomly selected 3-member panel).

Stay tuned.

-Jeff Hirsch

June 20, 2017 in Labor and Employment News | Permalink | Comments (2)