Thursday, September 17, 2015
Thursday, August 27, 2015
In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.” With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.
In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.
In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions.
The Board ordered that within 14 days the ballots that were impounded on April 25, 2014 shall be counted and the appropriate certification issued.
This decision could have a big impact on many industries, most notably, fast food. The General Counsel has already gone after McDonald's (see here and here) and expect more of the same now that the Board has spoken.
Monday, August 17, 2015
Washington, D.C. - - In a unanimous decision, the National Labor Board declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. The Board did not determine if the players were statutory employees under the National Labor Relations Act (NLRA). Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union.
In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS). By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution. As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.
This decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.
I haven't read the decision yet, but I'll admit that I didn't see this one coming. On its own merits, one can understand the NLRB's conclusion that if it allowed Northwestern scholarship players to unionize, labor stability in all of college football wouldn't be well served. On the other hand, it could prompt much needed changes in college football. Moreover, it's not obvious why all of college football is the issue--one could envision productive collective-bargaining at just Northwestern, even if it was limited in scope. And, of course, on a selfish note, it would've been nice to have the Board speak to the issue of players' status as employees. But the Board has spoken--unanimously, no less, which I think is also important--and that should settle the issue for a while.
Thursday, July 23, 2015
Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:
Assistant Professor / Associate Professor / Professor
The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: firstname.lastname@example.org).
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
Tuesday, July 14, 2015
Bill Herbert writes in his role as the Chair of the New York State Bar Association’s Labor and Employment Law Section to let us know about two sets of law student awards. One is a set of writing awards, the other student service awards. Annually, the NYSBA Labor and Employment Section presents awards to law students:
Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition
This competition recognizes excellence among law school students writing in the area of labor and employment law; and to cultivate the relationship between the NYSBA Labor and Employment Section and future labor and employment practitioners.
Prize Awarded: 1st place: $3,000 and publication in Section newsletter. 2nd place: $2,000. 3rd place: $1,000.
Submission Deadline: December 4, 2015, and the awards will presented at the Section’s Annual Meeting in January 2016.
Articles must be original from the applicant. Submissions should focus on any timely, compelling aspect of labor and employment law. Only one submission per student.
All articles are to be submitted in the following format: a) typewritten - with computer disk attached or submitted by email to email@example.com no later than December 4, 2015; b) double spaced; c) on 8-1/2 inch by 11 inch paper, 1 inch margins; d) no longer than 20 pages (exclusive of endnotes); e) citations are to conform to "A Uniform System of Citation" (The Bluebook).
Students should include a cover letter with the entry stating their name, mailing address and phone number (both school and permanent), social security number, name of your school and year of graduation. Do not include your name or personal information on your paper.
If published by the Section, all articles submitted for the competition become the property of the Labor and Employment Law Section and the New York State Bar Association. No article submitted may be published in any journal or periodical other than the "New York State Bar Journal", or the "Labor and Employment Law Section Newsletter", until after announcement of the winner of this competition in January 2016.
Samuel M. Kaynard Memorial Student Service Awards
The purpose of the awards is to enable New York State Law Schools to recognize excellence among their law students in the area of labor and employment law and to cultivate the relationship between the Labor and Employment Law Section and future labor and employment practitioners.
Award Criteria: All law school students. Student(s) must be nominated by the dean or the dean’s designee. Direct student applications will not be considered.
Prize Awarded: First prize $3,000, Second Prize $2,000, Third Prize $1,000.
Nomination Deadline: December 4, 2015
Date Presented: January Annual Meeting
The Award is intended to encourage scholarship and exemplary service in the field of Labor and Employment Law. The Award is made by the law school to the student(s) in recognition of an extraordinary accomplishment in the field, including but not limited to the following:
1. Organizing and/or conducting programs at any educational level conducive to the propagation of labor and employment knowledge and skills
2. Outstanding performance in a labor or employment course, clinical experience, project, internship or related activity such as: a collective bargaining simulation grant proposal to research labor and employment issues, curricular revision, or other exposition on the subject;*
3. Facilitating conflict resolution or peer mediation programs for elementary or secondary school students;
4. Utilizing the internet and its components (e.g. World Wide Web/e-mail) to disseminate or receive labor and employment information;
5. A substantial action or activity in furtherance of labor and employment law, performed or instituted in the year of this competition.
Tuesday, June 30, 2015
Today, the Supreme Court granted cert. in Friedrich's v. Cal. Teacher's Association. The issues presented are
(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.
Hat Tip: John Coyle
Wednesday, June 17, 2015
David Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law. The abstract:
This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.
It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.
Monday, June 1, 2015
The Supreme Court issued its decision in EEOC v. Abercrombie today. As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy. The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation). The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part. From the syllabus:
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.
The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was. Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge). That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations. For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation. For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.
Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position. Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices. What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases. In other words, Elauf still has work to do to win this one.
Wednesday, April 29, 2015
Seth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review. The abstract:
I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.
Sunday, April 26, 2015
The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.
For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.
Hat Tip: Patrick Kavanagh
Recently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing. This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.
Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."
Wednesday, April 8, 2015
News is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House. She will be a senior advisor for labor and working families at the White House Office of Public Engagement.
Great to hear that my former colleague at the NLRB has moved such an important position.
Hat Tip: Patrick Kavanagh
Monday, March 16, 2015
As we noted earlier, the UAW's attempt to organize graduate students at Columbia raised the potential for the NLRB reversing Brown University. As of Friday, that potential significantly increased. In two short decisions (I haven't been able to find them yet), the NLRB ordered a regional hearing on the UAW's petition to represent grad students at both Columbia and the New School. This procedural decision establishes a path for the NLRB to ultimately review whether the students are employees under the NLRA. Thus, these cases--in addition to the Northwestern University footballs players--means that we'll likely see a lot of collegiate student action at the Board for a while.
Sunday, March 1, 2015
- Blogger Emeritus Paul Secunda on recent developments on Gov. Walker's attempts to turn Wisconsin into a right-to-work state. It looks like it will happen soon.
- Speaking of right-to-work, Illinois' new Governor is unleashing a similar attack on public-sector workers through an executive action that has some questions about its legality.
- Early word on the Abercrombie & Fitch oral argument looks favorable for the plaintiff. Stay tuned.
- The Senate HELP committee held a hearing on the NLRB's election rules recently. Critics argue that the rules create "ambush" elections--I've argued in a recent article that the rules are pretty modest and far from creating ambush elections.
- The NLRB's recent Pacific Lutheran decision attracts attention from university adjuncts. Speaking of which, last Wed. was National Adjunct Walkout Day.
- Is a new challenge to the NLRB's Brown University case--finding that grad students are not employees--on the way? Following the settlement at NYU last year, developments at Columbia could ultimately threaten the Brown decision.
- The Fourth Circuit adds to a False Claims Act circuit split regarding the public disclosure bar. It's already been to the Supreme Court twice--maybe three times will be a charm.
- The Fourth Circuit also issued an interesting decision that deals with several SOX whistleblower issues, including exhaustion and available remedies.
- Wal-Mart raises wages for its lowest-paid workers (and Ann Hodges, Richmond, comments). The promise to improve scheduling may be as significant, if not more so. Other major companies are starting to follow suit with higher wages.
- Patricia Arquette makes a strong pro-gender equality push in her Oscar acceptance speech. See, we told you that labor and employment law was cool.
- It might be depressing for unions in the U.S., but in Canada, the right to strike is now constitutional. David Doorey explains.
Hat Tip: Jonathan Harkavy, Lynn Dancy Hirsch, Patrick Kavanagh
Bill Herbert (Hunter College) and Alicia McNally (New York State PERB) have just posted on SSRN their article, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?. The abstract:
We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.
The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.
I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.
The National Center for the Study of Collective Bargaining in Higher Education's newest edition of the Journal of Collective Bargaining in the Academy is out. The peer-reviewed journal's latest includes the following articles:
- The Impact of Unionization on University Performance by Mark Cassell and Odeh Halaseh;
- Post-Recession CBAs: A Study of Wage Increases in the Agreements of Four State-wide Faculty Unions by Steve Hicks; and
- Academic Collective Bargaining: Patterns and Trends by Curtis R. Sproul, Neil Bucklew, and Jeffery D. Houghton.
Check it out!
Saturday, February 7, 2015
As readers know, the NLRB's General Counsel is pursuing an action against McDonald's that, along with its opinion in the Roundy's case, would somewhat expand the concept of joint employment under the NLRA. (Note that this article, which is otherwise good, mistakenly states that the NLRB has decided the issue.) It's actually unclear to me how significant the GC's analysis would be in practice, but it's clearly a change in a direction that employers don't like. As a result, the Senate recently held a hearing on the issue (there's a similar on the new representation rules that I'll post on once they happen later in the month).
Our emeritus blogger, Paul Secunda was one of the witnesses and seemed to do quite well). There are obviously arguments about where the line between single and joint employment should be, but I think the GC is reasonably concerned about having their cake and eating it too (or Big Macs). In other words, if corporations want more control over the employment practices of its franchises, it needs to take responsibility as well.
Monday, February 2, 2015
Last week, the Supreme Court decided two labor and employment cases. In one, M&G Polymers, a unanimous Supreme Court held that courts should apply ordinary contract principles when deciding whether health-care benefits survive the expiration of a collective-bargaining agreement. This holding reversed the Sixth Circuit's Yard-Man presumption that CBAs intend these benefits to vest for life. The Court remanded for the CBA to be interpreted by "ordinary contract principles," but ominously noted that "when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life." This stance seemed to be a primary motivation for a four-Justice concurrence (the more liberal Justices). The concurrence stressed that courts should be open to interpreting a CBA to intend vesting of retirees' health benefits, albeit without the Yard-Man "thumb on the scale." The impact of M&G Polymers will depend on how courts apply the decision, so we'll have to wait and see.
In the other decision, Department of Homeland Security v. MacLean, the Court held (7-2, with Justices Sotomayor and Kennedy dissenting) that a TSA regulation did not eliminate whistleblower protection. At issue was a provision in the federal whistleblower statute that makes an exception for disclosures "specifically prohibited by law." In MacLean, the Court held that Congress intended this provision to apply to statutes, but not agency regulations (e.g., elsewhere in the statute, Congress used the phrase "law, rule, or regulation"). The dissenters largely agreed with the majority, but thought the exception was satisfied by the Homeland Security Act's mandate that the TSA prescribe regulations to prevent disclosure of certain information. This case is certainly a win for federal whistleblowers and will require Congress to be more proactive if it wants exceptions for certain whistleblower disclosures.
Friday, January 16, 2015
Today, the White House announced a set of new initiatives to expand paid family leave. Among the plans:
- Healthy Families Act: proposed legislation that would require employers to allow employees to earn up to 7 days of paid sick leave per year.
- A start-up fund to help states create their own paid leave plans for their employees.
- Improved data collection through the Department of Labor.
- Proposed legislation to create paid parental leave for federal employees.
- Expanding coverage of FMLA.
- Expanding tax credits and federal funding for child care costs.
- Increased funding for family care for elderly and disabled family members.
- Improving enforcement of equal pay laws
This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.