Friday, September 21, 2018
Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.
First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue. What this strike may be telling us is that there are new norms developing. Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.
The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.
Thursday, September 13, 2018
In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.
Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.
On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out.
Tuesday, September 11, 2018
The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries. Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary). This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.
In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.
In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.
Sunday, September 2, 2018
Kate Griffith (Cornell, ILR) writes to share the August 2018 Special Issue of the ILR Review, which focuses on workplace conditions and immigration legalization initiatives cross nationally.
Below is an excerpt from the introduction entitled “Introduction to a Special Issue on the Impact of Immigrant Legalization Initiatives: International Perspectives on Immigration and the World of Work,” (authors are Maria Lorena Cook, Shannon Gleeson, Kati L. Griffith, and Lawrence M. Kahn)
“The articles in this special issue draw on studies of legalization initiatives in major immigrant destinations: Canada, Italy, and the United Kingdom. Together they underscore the importance of cross-national perspectives for understanding the range of legalization programs and their impact on immigrant workers, the workplace, and the labor market”
For more from this special issue, which will be free to read for a limited amount of time, click here.
Several labor & employment stories that have been in the news recently:
- The NLRB has extended the time to file briefs in the employee email case, Ceasars Entertainment. The new deadline is October 5. No word yet on why on why the Board decided on the extension.
- The President states that he is going to freeze federal pay, despite an apparent agreement on raises this year. He's using a provision that allows the President to make such actions because of economic exigency.
- The Washington Post has an interesting story on Lewis Hine--the photographer who talked his way into numerous early-1900s workplaces to take pictures of child laborers. Hine's photographs are credited as a major impetus for the FLRA's anti-child labor laws. Check out the Library of Congress collection of his photographs.
- Check out this opinion piece on "two-tier" unions.
And remember, Happy Labor Day tomorrow!
Wednesday, August 15, 2018
The NY Times has a story on Muriel Pénicaud, the French labor minister who has been leading the charge of reforming France's labor regulations. Macron, the French President, has been trying to get reforms through for a while but has been largely stymied by protests (you've got to hand it to the French, their capacity to protest may exceed even their cooking talent). As a result, Pénicaud has been embarking on a long series of negotiations with unions and businesses. Stay tuned for what the final results may be.
Also--shameless plug warning--if you want to compare France's legal and social welfare protections for dismissed workers, check out this article that I co-authored with Sam Estreicher, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, 92 North Carolina Law Review 343 (2014). We compared not only the laws as written, but also how they operate (e.g., average win rates, average/maximum/minimum awards) for twelve countries, including the U.S.
Thursday, August 9, 2018
NYC's City Council just passed legislation to stop issuing new ride-hailing licenses for one year. The legislation also requires Uber and similar companies to ensure that drivers earn at least $17.22 per hour (calculated over a week)--like the FLSA tip rule, if drivers don't make that much, the companies must pay the drivers the difference. This can be significant especially in a city like NYC, where almost 85% of drivers make below $17.22/hour and two-thirds of drivers work full-time for ride-hailing companies.
I find the minimum pay provision to be interesting because it puts in motion something I've been thinking about for a while. One of the difficulties in the current "employee"/"not-employee" dichotomy is how much rides on that distinction (pun intended). It's always struck me that this definitional question misses the point. We're stuck with this outmoded definitional hang-up because of current law, but the real question we should be asking is what type of protections do we want for which type of workers. There will always be difficult line drawing, but I think there are areas of agreement. For instance, we've got a long-standing policy of ensuring a minimum pay for the vast majority of "employees." Are there many workers--even those currently classified as independent contractors--who shouldn't also receive at least $7.25/hour? I don't think so. Same for workplace safety and other protections. The devil's in the details, to be sure, but NYC's new legislation represents one step in the direction of ensuring worker rights, rather than just employee rights. And it's a move I'm glad to see.
Finally, a brief plug for a recent article I co-authored with Joe Seiner exploring non-traditional collective action in ride sharing and other modern industries. There's a lot of interesting things going on, but also a lot of legal questions prompted by new activity fitting into old laws.
Tuesday, August 7, 2018
The AP has just called the Prop A vote in Missouri, with votes currently in favor 63%-37%. This ballot measure strikes down the legislature's attempt to make Missouri a right-to-work state. Especially so soon after Janus, this is a good night for organized labor.
Wednesday, August 1, 2018
It's appearing that e-mail is becoming yet another issue on which the NLRB's views flip-flop depending on the party in charge of the White House. Today, the Board announced that it was seeking input on whether to reverse Purple Communications, itself a reversal of the earlier Register-Guard, decision. I've written about the issue of employees' use of employer e-mail quite a bit and won't rehash it all here. However, I will note that the Court's recent interest in the First Amendment (see: Janus among other cases) adds an additional spin. As I recently noted, Member Johnson's dissent in Purple Communications made a First Amendment claim; I thought it very weak, but I wouldn't be surprised to see it resurface in a new opinion by the Board. That, and the return of Register-Guard's "I slept through my 1L Property class in law school" treatment of personal property law. Apparently, it's time to update my amicus brief from the Purple Communications litigation.
Thursday, July 19, 2018
Ann Hopkins, of Price Waterhouse v. Hopkins fame, has passed away. You can see the NY Times obituary on her here. Especially in the current #MeToo movement, it's important to remember the major impact that her case has had on sex discrimination in the workplace.
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts as part of a Call for Papers to be presented at the 2019 Annual Meeting program in New Orleans. The program, titled Increasing Tension: Labor and Employment Law Protections and Religious Accommodations, will take place on Friday, January 4, 2019, from 10:30 am to 12:15 pm, and it is co-sponsored by the AALS Employment Discrimination Law and Law and Religion Sections. This program will follow the Labor Relations and Employment Law and Employment Discrimination Sections breakfast held from 7:00 a.m. to 8:30 that morning.
This program will focus on the increasing tension between workplace and antidiscrimination laws and religious freedom. Panelists will explore the challenges presented by this tension when religious exemptions from workplace and antidiscrimination laws are provided to religious organizations, employers with deeply held religious beliefs, and individual employees. A panel of leading labor and employment law and law and religion scholars will address that issue from varying perspectives, including constitutional law (religious freedom and/or compelled speech and association in the workplace), traditional labor law (NLRB’s jurisdiction over religiously affiliated employers and the impact on employee organizing drives), and employment discrimination law.
We are seeking an additional speaker or speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Joseph Mastrosimone, at firstname.lastname@example.org by Friday, September 17, 2018. The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 4, 2019.
That didn't take long. A week after Janus came down, the Purple Communications firm is trying to use the decision (as well as Becerra) to overturn the NLRB's rule in Purple Communications that permits employees in some instances to use employer e-mail for NLRA-related communications. This argument reflects part of Member Johnson's dissent in Purple Communications.
As I've written previously, I think the argument that it violates the First Amendment to allow employees to communicate about labor matters through employer email is ridiculous. The best rejoinder to this argument was the majority's analogy in Purple Communications that no one would think that a message sent via gmail represents the views of Google. And I see nothing in Janus or Becerra that suggests otherwise. The closest related claim to pass the smell test is the idea that requiring an employer to allow speech hostile to the employer on its own e-mail system is improper. I say it's close to passing the smell test because one can see how an employer would see that as unfair. But that doesn't mean there's any legal basis for the argument. The Court has required employers to let employees use their property for hostile speech for decades (think Republic Aviation) without any constitutional or statutory issues. That said, I guess we can't totally count this argument out given how the Court has been treating labor issues lately.
Hat Tip: Charlotte Garden
Monday, July 16, 2018
Tenure-Track Assistant or Associate Professor Position in Conflict Resolution
The ILR School at Cornell University invites applications for a tenure-track faculty position in the area of conflict/dispute resolution at either the Assistant Professor or Associate Professor level, to begin August 2019. Applicants should have research and teaching interests related to topics such as arbitration, mediation, negotiation, conflict management, dispute resolution, collective action, and social movements. We are open to scholars using qualitative, quantitative, legal, and mixed methods, and studying conflict at various levels of analysis including societal, organizational, group, or individual. Applicants should have a doctorate (PhD or JD) in a relevant field, such as industrial relations, organizational behavior, law, psychology, sociology, or management. A successful candidate’s appointment will be in either the Department of Labor Relations, Law, and History or the Department of Organizational Behavior. Faculty in these departments publish in top-tier journals in their field, such as ILR Review, Industrial Relations, Administrative Science Quarterly, Academy of Management Journal, American Journal of Sociology, American Sociological Review, Journal of Personality and Social Psychology, Psychological Science, Journal of Experimental Social Psychology, Journal of Empirical Legal Studies, and in major law reviews. Evidence of very strong research and teaching potential is essential. Review of applications will begin October 1, 2018. Questions about this position can be directed to Professor Alex Colvin (email@example.com), Professor Harry Katz (firstname.lastname@example.org), Professor Marya Besharov (email@example.com), Professor Pam Tolbert (firstname.lastname@example.org), or Professor Kate Griffith (email@example.com).
Lost in the shuffle of the latter part of the Supreme Court's term this year was Lucia v. SEC. In that case, the Court held that ALJs are "Officers of the United States" that must be appointed by the president or agency heads. In response, the Administration recently issued an executive order requiring ALJs to be hired by the respective agencies, rather than a central pool maintained by OPM. Although some fear that this will inject more politics into ALJ selection, it seems like an obvious move after Lucia.
It's unclear the extent to which this affects workplace agencies. For instance, my understanding is that the NLRB already follows a hiring procedure that would pass muster under Lucia. I believe the case is similar from safety ALJs, like those under MSHA and OSHA. Indeed, it's not a certainty that Lucia would apply to all of these ALJs, as that holding was limited to ALJs who carry out important duties with significant discretion (although my sense is that they would meet this threshold).
This all may be a nothing-burger, but it's worth keeping an eye on.
Wednesday, June 27, 2018
The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.
The basis for the decision is that dissenting employees’ have a 1stAmendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees' 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.
Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments:
- Will courts try to apply Janus to the private sector? There has been some loose language by the Court in the past that raises the possibility that court enforcement of union fee agreements is enough for state action, particularly in more highly regulated areas. The Court since then has been moving towards a more narrow interpretation of state action, but as Janus shows, that doesn't mean they won't make an exception when unions are involved. Indeed, in Janus, the Court stated that the line between chargeable and uncharitable expenses is "unworkable" (it's certainly difficult at times, but this seems a stretch). On the other hand, in its defense of overruling Abood, the Court in Janus stressed the difference between public- and private-sector collective bargaining and footnote 24 the Court described this state action argument as "more questionable" now then when Abood was decided. This could be considered a minor win for unions. See Joe Slater’s helpful article on this topic in which he argues persuasively that this holding should not apply to the private sector.
- Is this the beginning of the end for exclusivity? Up to now, American labor law has been built on the notion that unions act as the exclusive representative of all employees in a unit. I predict (see warning above) that Janus will usher in more challenges to exclusivity. This may include unions being more willing to explore members-only representation, as well as the NLRB at some point addressing whether the NLRA requires employers to bargain with minority unions. For instance, a bill has already been introduced in NY that would allow unions to decline to represent non-member employees for grievances and other matters, while also allowing them to provide insurance and other benefits only to members; other states (California and NJ) have recently enacted and/or are working on other pro-union measures. One limit to this, however, is that in Janus, the Court seemed to double-down on the notion that unions and public-sector employers cannot agreed to contracts that treat nonmember employees worse. That doesn't preclude members-only unionism, but it does serve as a reminder that there would be limitations to such representation.
- Related to the exclusivity issue--is this also the end of fair representation? Even before the Janus decision was announced, unions filed suit in state courts challenging the idea that they have a duty to fairly represent all unit employees. Now that Court has held that the Constitution precludes dissenting employees from paying for union representation, unions will argue in turn that it is unconstitutional to force them to expend time and resources representing employees who pay nothing. Janus gives some mixed signals. In one direction, the Court stated that unions' "duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative." Thus, unions may have to seek to be members-only to push this argument. In the other direction, the Court seems to approve of arrangements in which union charge nonmembers for using grievance or arbitration procedures.
- While exclusivity and fair representation are weakened, will Janus usher in a strengthening of public-sector employees’ 1st Amendment rights? The language in Janus suggests so, as it now states that public-sector working conditions are matters of public interest that warrant more 1st Amendment protections. Despite that, however, the answer I think is “no.” Although it’s not defensible, I believe the Court will limit its broad 1st Amendment interpretation to cases brought against unions. Individual employees, I predict, will continue to face steep challenges raises these claims. Indeed, in Janus, the Court made a point of stressing that union speech is a public concern and it distinguished Pickering by stressing the difference between a union pushing for a wage increase and an individual employee--all of which seems to be a to distinguish individual employees' free speech claims. In addition, I doubt the Court will be as concerned with the 1stAmendment when unions challenge Section 8(b) limitations on their right to protest, picket, and boycott. See Charlotte Garden’s article on this.
- How badly will this hurt unions? We saw fairly steep declines in union membership following major changes in states like Wisconsin. Will Janus and its new opt-in requirement extend that affect nationwide? I suspect that, on average, public-sector unions will see a big hit, but that the effect will not be consistent everywhere. This is especially true given that some states have already made moves to add protections for public-sector collective bargaining in anticipation of Janus.
- On a minor note, while discussing the difficulty in challenging what's chargeable and what's not under Abood, the Court in Janus stressed the "substantial" costs in bringing an arbitration case to make such a challenge. It wasn't central to either case, but that's one of the exact arguments in Epic Systems (and the earlier Italian Colors) that the Court didn't seem concerned about.
- On a non-labor related note, the number of precedents overruled by the Court in the last couple of weeks is remarkable--and that's just the ones overruled explicitly. For whatever reasons, the Court this term has seemed more willing to break from its past to achieve the result it wants, and it will be interesting to see if that trend continues next term.
Tuesday, June 26, 2018
Just a heads up: the Supreme Court just announced that tomorrow is the last day of the term. Which means that we'll have Janus. Not that the outcome is in doubt, but I'll have the decision posted, along with some thoughts ASAP. So stay tuned tomorrow morning, including following us on Twitter.
Friday, June 15, 2018
Some recent labor & employment stories in the news recently:
- The New York Times has a piece out today on the prevalence of pregnancy discrimination, which includes background on Peggy Young and her suit against UPS that went to the Supreme Court. It reminded of my time one summer as a law student working on a pregnancy discrimination trial at Vladeck Waldman in NY. I distinctly remember the attorneys being worried about our case--which should've been an easy one based on the facts--because of their past experience facing resistance to such claims in front of judges' and juries. Our client ultimately won this one, but looking back, it's crazy how much evidence of discrimination it took.
- The California Department of Industrial Relations found the Cheesecake Factory jointly liable for wage and overtime violations against janitors at its restaurants. The case involved new state laws imposing more legal liability on companies for their contractors's violations. In this case, a subcontractor was directly responsible for the violations, but both the Cheesecake Factory and the contractor it hired, which in turn hired the subcontractor, were held jointly liable.
- The NLRB has made explicit what has been clear for a while: it's going to engage in rulemaking on the joint employer test. Oh, and it will also conduct a comprehensive review of its ethical policies and standards for Board Member recusals.
- Thomas Edsall writes an op-ed in the NY Times about worker struggles in the current economy, particularly under the Trump administration. He quotes top economists, Sachin, and some other guy who blogs here.
Tuesday, June 5, 2018
Though a formal contract has not yet been signed, the ABA Labor & Employment Law Section Newsletter has announced that the ABA Journal of Labor & Employment Law will be moving from University of Minnesota to St. Louis University. Miriam Cherry, Matt Bodie, and Marcia McCormick will be taking the reins from Laura Cooper and Steve Befort. Congrats to all!
Monday, June 4, 2018
The Supreme Court just released its decision in Masterpiece Cakeshop, which dealt with a cake shop owner's claim that his religious freedom should allow him to refuse customers who wanted a cake for a same-sex wedding. The Supreme Court reversed a state commission's decision against the shop owner, holding that the decision violated his right to free expression. But the decision is narrower than it may first appear. In particular, the Court appeared to hinge the decision on the state commission's decision in the case, which it viewed as being impermissibly hostile to religion (this may have led to the 7-2 lineup at the Court).
This was not an employment case, but there are parallels. As a result, although the Court seemed to duck the underlying issue about free expression v. antidiscrimination laws, employers will no doubt try to use Masterpiece as a defense. But its value will depend on employers' ability to couch their employment discrimination as expression because one of the unique aspects of Masterpiece was that the shop owner claimed that making cakes was artistic--that is, constitutionally protected expression. Because of that, and the Court's criticism of the state commission, most employers will not be able to make an argument like Masterpiece. There will no doubt be exceptions--maybe a religious-themed artist that hires assistants--but there are not a lot of business that involve both the level of expression needed for such a claim, as well as the level of hostility that the Court perceived. But I'm sure many employers will make the argument nonetheless . . . .
Friday, June 1, 2018
Some recent labor and employment law issues in the news:
- Well, it wasn't the big unit, but some employees at Boeing's South Carolina plant have voted to unionize. On Thursday, 178 technicians and inspectors voted (104-65) to be represented by the International Association of Machinists and Aerospace Workers union.
- The largest federal employees union, American Federation of Government Employees, is suing to stop new rules put in place by recent executive orders. The central target of the dispute is a new 25% cap on "official time" that union officials can spend on union business; the other orders encourage more terminations of federal employees and restrict agencies' ability to negotiate collective-bargaining agreements. The official time challenge is based on the Civil Service Reform Act provision that permits official time and the First Amendment. This latter claim may be difficult given the Davenport decision, although the union is making more of a discrimination argument based on the executive orders application only to work done on other employees' behalf rather than work that a union official does on his or her won behalf.
- Casino strike averted? Just hours ago, the Culinary Workers union reached a deal with Caesar's to avoid what was looking to be a massive strike in Las Vegas. Caesar's only employs about a quarter of the 50,000 workers who could potential strike, so nothings certain yet. But it does look like the strike threat is paying off for the union.