Thursday, October 23, 2014
- The Office of Special Counsel just found the U.S. Army gulity of harassment against a transgendered employee. It shows how the recent executive order can help such employees, but also why such protection is needed.
- Harold Meyerson on a bill that would eliminate tax deductions for "performance-based" executive pay above $1 million.
- In These Times takes a look at TV reality show writers in an article by a former writer. In addition to shedding light on the work conditions on reality shows, it illustrates the difference that unionization can make, as well as the fact that not all of Hollywood is unionized.
- Will an NLRB complain against McDonald's come soon? Politico's Morning Shift looks at some recent comments about the case.
- New York's Pregnant Workers Fairness Act is one year old. If employers and employees don't know about, does it matter?
- The White House delays new rule extending the minimum wage and overtime laws to home health care workers until July.
- The Fourth Circuit holds that Craig Becker's recent appointment to the NLRB was valid.
- Seminary professors engage in walk off to protest Dean's management of school (there's some pretty bad allegations). The professors--80% of the faculty--are fired as a result. Too bad the ministerial exception leaves them without protection.
Hat Tip: Michael Duff, Jonathan Harkavy, & Patrick Kavanagh
Wednesday, October 8, 2014
Last week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit. In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status. Instead, the court held that the principal focus was entreprenurial opportunity. In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test. Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.
As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development. There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention. I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding. But we'll see. In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Sunday, September 7, 2014
An important civil rights advocate passed away recently. George Barrett was a long-time civil rights lawyer in Tennessee, who took on numerous, important cases over the years. The most high-profile was the Geier case, which helped desegregate the University of Tennessee system. One sign of his success was the difference that time makes. The University fought hard against the suit when it was brought and throughout part of its enforcement period. However, in the end, as a judge looked like he would rescind the order mandating diversity efforts (which did, in fact, happen), the University was not happy because it might undermined those efforts.
It might never have happened without Barrett and his presence will be sorely missed.
Hat Tip: Jonathan Harkavy
- Want to work for a company that provides work schedules in advance? Try a unionized one. The NY Times explains that they still exist, such as Macy's.
- Another round of accusations that Apple contractors in China are committing labor abuses. On the bright side, we're at least in an era where Apple and other companies regularly audit their contractors. Whether those audits do much is a different question.
- The fast food "Fight for Fifteen" protests continue, and this time there's more civil disobedience and arrests. Steven Greenhouse reports.
- Another Greenhouse story, this time on prevalence of wage theft suits, including fast food restauarants. It emphasizes that wage theft actions can target contractors and franchisees of companies that are targets of other types of pressure (e.g., Wal-Mart and fast food companies). The story also shows that government enforcement efforts can be an important protection for workers, especially lower-wage ones who might have a hard time hiring attorneys.
- An interesting interview with Rich Yeselson, a lang-time labor activist. He provides a nice, thorough defense of unions' role in the modern economy and why they are still relevant.
- A story on the Market Basket dispute, focusing on the fact that the employees--which were successful in getting a favored CEO back--were non-union. It's a good reminder that the NLRA doesn't just protect unionized employees.
- FedEx loses a dispute over drivers' classification as employees or independent contractors. The case is notable because the Ninth Circuit distinguishes the D.C. Circuit's stress on entrepreneurial opportunity. There doesn't appear to be a direct circuit split yet, but it wouldn't surprise me to see the Supreme Court step in on this issue eventually.
- And, finally, just for fun: 11 jobs that no longer exist. If my mornings are illustrative, I think there's still a market for "knocker-uppers."
Saturday, September 6, 2014
As I've been gathering material for another labor and employment law roundup, I felt compelled to give the following story it's own post. McClatchy papers have a series, Contract to Cheat, that gives a detailed look at the independnt contractor problem. Among many other things, they've gotten access, through a FOIA suit, to government contractor payroll reports for HUD projects. Using those reports, as well as other reporting, the serious provides a thorough examination of the problem and its impact on workers and the industries they work for.
This is really worth looking at. It's got some good data for scholarship, as well as material worth highlighting in class. Definitely check it out.
Monday, September 1, 2014
Sunday, August 24, 2014
The National Center for the Study of Collective Bargaining in Higher Education and the Professions has released its August e-note, which lists several relevant labor issues. Included are an interesting issue related to teh classification of charter schools. In Hyde Leadership Charter School - Brooklyn, the NLRB will determine if NY charter schools are private enough to be covered by the NLRA or are public enough to fall under NY State public labor law. Earlier, the Board found that Illinois charter schools were covered by the NLRA, although there are differences between the two states on this issue.
Read the full note, there are many other important issues included
Thursday, August 21, 2014
- The Nation reports on attempts by workers of a major packing company to highlight poor working conditions and union busting to improve their plight appeal to the good-employer image of Costco, which stocks many products of the company. In addition to quotes from Michael Duff, the story provides another example of how hard it is for unions to maintain support in the face of relentless anti-union tactics by employers--highlighting the push for less delay in NLRB elections.
- The NLRB's Macy's decision shows the Specialty Healthcare rule in action. Employers fear the potential for so-called "micro-unions." Although note that the unit in dispute in Macy's consisted of 41 employees, which is not exactly "micro."
- The White House recently enacted an Executive Order that requires federal contractors to disclose labor law violations that occurred during the previous three years and order agencies to have compliance advisers to oversee the selection of contractors. The contractors are not happy.
Hat Tip: Patrick Kavanagh
Saturday, August 9, 2014
A California federal district court judge has just ruled against the NCAA in the O'Bannon case. The bottom-line is that the judge held that the NCAA's prohibtion against paying collegiate athletes violated antitrust laws. This doesn't mean that schools must pay players; rather, it means that the NCAA can not stop schools from doing so. That said, the devil will be in the details, as the judge also held that the NCAA could cap such payments (although where the limits, if any, are is unclear). On the heels of the NCAA giving the big 5 conferences more autonomy, I suspect that those conferences will fairly quickly move ahead with additional payments to players, creating a divide with schools that have fewer financial resources (keeping in mind, of course, that the NCAA will likely appeal). I also think that this indirectly helps players who are arguing for employee status, whether under the NLRA or other statutes.
It's going to be an interesting time in collegiate athletics over the next few years.
Tuesday, August 5, 2014
Are unpaid interns protected by American employment law? The latest chapters in this ongoing story come to us from Wisconsin and New York.
In a July 22 decision, Masri v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court ruled that it was reasonable for Wisconsin’s Labor and Industry Review Commission to conclude that uncompensated interns are not entitled to the anti-retaliation protections of that State’s health care worker protection statute. The plaintiff was a doctoral student who worked as an unpaid intern at a medical college and, she alleged, was fired for reporting “clinical/ethical concerns.” The statute bans certain health care employers from taking “disciplinary action against . . . any person” who in good faith reports violations of state or federal law, and further defines “disciplinary action” as "any action taken with respect to an employee," but does not define the term “employee.” The Court discussed the text of the statute and related provisions, their purpose, and public policy arguments raised by both sides. The Court’s upshot: The statute applies only to employees, and “the ordinary meaning of ‘employee’ is someone who works for compensation or tangible benefits.”
Meanwhile, also on July 22, New York’s Governor signed into law a bill that amends New York’s employment-discrimination statute to expressly cover unpaid interns. Back in October 2013, a federal district court, in Wang v. Phoenix Satellite Television, Inc., No. 13 Civ. 218 (S.D.N.Y. Oct. 3, 2013), had dismissed an unpaid intern’s sexual harassment claim under that statute. That claim required her to be an “employee.” Although she had argued that, though unpaid, she was still an “employee” under the statute. The district judge concluded, however, that remuneration was a necessary condition for an employment relationship.
The newly-amended New York statute—now in effect—defines a new category of worker—an “intern”—and then separately declares “unlawful employment practices” with respect to interns that parallel the “unlawful employment practices” already identified by the statute. This drafting strategy slightly differs from Oregon’s law, Or. Stat. § 659A.350. Passed last year, Oregon’s law similarly defines “intern” but provides that an intern “is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under” certain specified employment protections in Oregon’s code.
Two Ohio State researchers, David Jacobs and Lindsey Meyers, have a study that suggests that declining union density has contributed to increasing income inequality more than previously believed. From an OSU press release:
According to Jacobs, other research has shown that firms with unionized employees have diminished differences in pay – such that the gap in the earnings of the highest-paid worker and the lowest-paid workers was reduced in firms organized by unions.
“Unions were also the most effective political advocates forthe less affluent before Congress, the president and other elected officials,”Jacobs said. “They ended up helping less prosperous families even if they weren’t union members.”
The researchers appeared to have controlled for most factors that could possibly contribute to income inequality--some of which were, of course, factors. But they find that unionism was still quite significant. Probably not too surprising for many readers (heck, even with low union density rates, there's still a significant union wage premium), but it's useful to have that message spread more broadly.
Hat Tip: Thomas Cochrane
Thursday, July 31, 2014
It a 5-2 decision today, the Wisconsin Supreme Court held that the state's Act 10 was constitutional. As we reported earlier, the statute's validity was in doubt in earlier litigation, so this result wasn't a given. But unions certainly hadn't been counting on the court overturning the statute. At base, the decision held that Act 10's significant restrictions on public-sector bargaining did not infringe workers' First Amendment rights. Not a surprise for those of us in states with no collective bargaining. The next step for union supporters in Wisconsin, of course, is the upcoming vote on Gov. Walker's reelection.
Hat Tip: Patrick Kavanagh
Tuesday, July 29, 2014
UPDATE: Harris Freeman and Patrick Kavanagh wrote to remind me that in April, the NLRB invited briefing on whether to alter its current joint-employer standard. The GC's action in the McDonald's case could be part of the move in Browning-Ferris. (Harris' amicus brief on the case is here.)
Richard Griffin, the NLRB's General Counsel, has decided to pursue unfair labor practice charges against both McDonald's and several of its franchise owners. The ULPs allege retaliation--such as firings and other punishments--because of employees' labor activities. But the headline issue is that the GC has determined that McDonald's is a joint employer, along with the franchise owners. The is a big deal for corporate McDonald's, as the vast majority of restaurants are franchise owned, meaning that McDonald's will have to take more of a central role in monitoring restaurants' workplace practices. In turn, it would give labor organizations more opportunity to pressure McDonald's for improvements or possibly organize bigger units.
According to the GC's news release:
The National Labor Relations Board Office of the General Counsel has had 181 cases involving McDonald’s filed since November 2012. Of those cases, 68 were found to have no merit. 64 cases are currently pending investigation and 43 cases have been found to have merit. In the 43 cases where complaint has been authorized, McDonald’s franchisees and/or McDonald’s, USA, LLC will be named as a respondent if parties are unable to reach settlement.
Until we see evidence from both sides, it's hard to take a position on the joint employer issue. But this is an interesting development on the heels of Harris v. Quinn. I was just noting at a Supreme Court review this morning that the biggest impact of Harris may be the joint employment issue. In that case, the Supreme Court avoided the union agency clause question by finding a lack of joint employment status. There were arguments on both sides of that issue, but I expect courts to use Harris to narrow corporate liability under the joint employer classification. It's possible we'll see this in McDonald's if the case ends up in court.
Speaking of developments in this case, I feel obligated to make a note for non-labor law readers, especially after all the Boeing craziness a few years ago: the NLRB has not decided anything here. All that has happened is that the GC has decided to pursue a case against McDonalg's and some franchise owners (it's comparable to a district attorney filing charges in a criminal case). If there's no settlement, the case will first go to an administrative law judge and, after the ALJ decision, the case will go to the NLRB.
Hat Tip: Patrick Kavanagh
Following up on my last post regarding the latest ruling in Fisher, I’d like to continue the dialogue on the issue of public-sector affirmative action, and its relevance for the public workplace and other public domains, in light of the Supreme Court’s decision in Shuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) this past Term. Shuette concerned whether an amendment to a state’s Constitution, prohibiting the consideration of race in all state decisionmaking, including in public employment, public education, and public contracting, violated the federal Equal Protection Clause of the Fourteenth Amendment. Because the Court held that such an amendment is valid, as a practical matter this case should alert public universities and public employers in other states to keep in mind how they would justify their use of race-conscious programs—potentially both in the public voting arena and in the courtroom. In addition, the Court’s splintered decision in this case, and the differing interpretations of the relevant case law presented in this case, suggests the difficulty of resolving questions regarding how the courts should review state voter actions that affect the ability of state entities to use or not use race-conscious processes in various areas of public decisionmaking.
Shuette is part of the larger story of affirmative action in Michigan. In 2003, the Supreme Court decided two cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. In Gratz, the Court held that the school’s use of race in its undergraduate admissions policy was invalid under the Equal Protection Clause, while in Grutter, the Court held that the Law School’s more confined use of race was constitutionally valid. After these rulings, the University modified its college admissions program so that an applicant’s race would be considered in a more restricted manner. After failing to dismantle affirmative action through the courts, anti-affirmative action citizens and groups next turned to the state ballot box. The State of Michigan then engaged in a public debate and vote on whether to prohibit state actors from using race in any manner in their decisions and actions. A ballot proposal on this question, referred to as Proposal 2, passed by a 58 to 42 percent vote, resulting in a broad amendment to the State Constitution. This amendment, now found in Article I, Section 26 of the Michigan Constitution, prohibits all state entities from “grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Various interest groups and individuals in support of affirmative action challenged the validity of Section 26 under the Equal Protection Clause in Shuette. Justice Kennedy wrote the controlling opinion in the case, in which Chief Justice Roberts and Justice Alito joined. Justice Kennedy very clearly stated in Shuette that the Court’s decision in Fisher is not at all affected by this case, so that race-conscious decisionmaking in university admissions remains constitutionally permissible if strict scrutiny is satisfied. The different question in Shuette involved whether and in what manner a state’s voters may adopt a prohibition against all consideration of racial preferences in state decisions, with the focus specifically on public university admissions. Justice Kennedy viewed this case as one that primarily concerned the right of a state’s voters to exercise their electoral power to ban race-conscious affirmative action in the public realm, and upheld the amendment to the Michigan Constitution. Chief Justice Roberts filed a concurring opinion, as did Justice Breyer, who concurred for narrower reasons. Justice Scalia also wrote a separate concurrence, in which Justice Thomas joined. Justice Kagan took no part in the consideration or decision of this case.
Justice Sotomayor wrote in dissent, joined by Justice Ginsburg. Justice Sotomayor expressed hearty support for democratic voter action, but nonetheless argued that the voters in Michigan restructured the political process in the state so as to burden racial minorities, who would have to amend the State Constitution to pursue their diversity goals in public university admissions. She pointed out that Michigan citizens who want to pursue non-race-related interests would face less of a hurdle by only needing to influence the governing boards of each state school, who retain the authority to make all other admissions decisions not prohibited by Section 26. As a result, Justice Sotomayor contended that the electoral majority’s action in this case required strict scrutiny review by the courts under the “political process doctrine” established in the Court’s earlier cases, the last of which was Washington v. Seattle School District No. 1.
Justice Kennedy, however, disagreed with language in Seattle that he believed created an unnecessarily broad rationale, and also rejected the interpretation of Seattle by the court below (the Sixth Circuit en banc), which relied on Seattle to invalidate the amendment in Shuette. As Justice Kennedy put it in Shuette:
… Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities … consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny … In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
… To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.
Justice Kennedy in Shuette thus stated that the Court was not required to make a racial determination regarding the public university admissions policy changed through the amendment to the Michigan Constitution, and also found that this amendment was not subject to strict scrutiny.
On the other hand, Justice Sotomayor in her dissent asserted that under stare decisis, Seattle along with an earlier case, Hunter v. Erickson, are the proper precedents, and as such, strict scrutiny was required in Shuette:
Section 26 has a “racial focus”…That is clear from its text … Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” … as they are designed to increase minorities’ access to institutions of higher education.
Justice Sotomayor, in directly applying the language from Seattle and agreeing with the Sixth Circuit’s reading of Seattle, found that the amendment in Shuette focused on race and inured primarily to the benefit of racial minorities, thus triggering strict scrutiny.
But the plurality, as well as Justices Scalia and Thomas, disagreed that the Court can or should properly decide when state action actually inures primarily to the benefit of a racial minority group, and asserted that the judiciary should avoid trying to determine such racial interests and classifications. They posited that such inquiries would contribute to racial divisiveness, and entrench racial stereotypes. But, perhaps somewhat ironically, the plurality’s position prompted Justices Sotomayor and Ginsburg to respond with a vigorous and lengthy dissent, maintaining that the Court cannot avoid such questions in the face of a restructured political process that operates to disadvantage racial minorities.
Shuette produced marked divergences on the Court. But under the plurality’s decision, state employers and universities ought to be prepared to make their case for affirmative action in response to any possible public or legislative challenge, as I point out in a forthcoming paper further examining Shuette.
Tuesday, July 22, 2014
On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan
Thanks so much to the bloggers at the Workplace Prof Blog for inviting me. I am excited to join such a great group as a guest blogger.
For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year). My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.
First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause. After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion. The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny. Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter, the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point.
On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented. To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits. In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students. The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations. In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan. Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone. The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system. In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT.
This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting. Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term. Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.
The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action. Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce. As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.
Monday, July 21, 2014
Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history. (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.
The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment. The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.
Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature. That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction." Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.
Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.” In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action. Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action. The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.
Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act. For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.
The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.
Hat tip: R. Michael Fischl
Friday, July 11, 2014
The White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014. Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week. Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.
Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB). I think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC). So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.
One final thought. As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged. I've written before that I think it's silly for a political appointee to resign in a situation like that. However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional. Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.
Hat Tip: Patrick Kavanagh
The UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office. This makes perfect sense. Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful. This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.
One side note: many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant. I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems. It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.