Thursday, February 16, 2017
I really like this choice. Although we have substantive differences, I have a great deal of respect for Acosta. We were both at the NLRB during his short time there and it seemed to me that he always took his job and the role of the NLRA seriously; even when I disagreed with his vote, his decisions were thoughtful and reasonable.
Wednesday, February 15, 2017
This just in: Andrew Puzder has withdrawn his name from consideration as Secretary of Labor. It sounds like the writing on the wall showed that he lacked enough Republican support in the Senate. It's interesting that this is the one cabinet nominee that failed. Allegations of domestic abuse was probably a factor, but his hiring of an undocumented domestic worker (and failure to pay her taxes) seemed to play a role for conservatives as well.
Friday, January 27, 2017
Yesterday, the NLRB announced that the president has appointed NLRB Member Philip Miscimarra as chairman. According to the announcement:
“It is an honor to be named NLRB Acting Chairman by the President,” Miscimarra said. “I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”
Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the Board. Pearce will continue as a Board Member in a term expiring on August 27, 2018 and has served as a Board Member since 2010 including Chairman since 2011. The Board also currently includes Board Member Lauren McFerran, whose term expires on December 16, 2019. Two Board Member seats are currently vacant.
Miscimarra has served as a Board Member since August 7, 2013. He was nominated by President Obama on April 9, 2013, and he was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions on May 22, 2013. He was confirmed by the Senate on July 30, 2013, and his current term expires on December 16, 2017.
Before joining the Board, Acting Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP).
Miscimarra received his Juris Doctor from the University of Pennsylvania Law School; a Masters in Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts degree from Duquesne University.
I got a chance to meet Chairman Miscimarra at a conference a couple of years ago. Although we don't always agree on the issues, I thought he was very thoughtful and had some useful insights from his time in practice.
Thursday, January 26, 2017
Hugh Baran, a 3L at NYU School of Law, has organized a petition opposing Andrew Puzder's nomination as Secretary of Labor. Thus far, there are over 1,000 signatories to the letter, which among other things, states:
As students and professors at the nation’s law schools, we are united in opposition to President Trump’s nomination of CEO Andrew Puzder to lead the U.S. Department of Labor. Mr. Puzder is a fast-food CEO who led a company with a well-documented record of labor violations, wage suppression, and sexist advertising. He is unfit to lead a Department that is supposed to uphold basic labor and workplace safety standards for the nation’s wage earners.
If you want to sign or read the letter, you can find it here.
Wednesday, January 25, 2017
Some recent labor and employment stories that may be of interest:
- The NY Times explores why many women are not participating in the work force (hint, family caregiving is a big part of the story).
- A Texas teacher whose license to teach was suspended for two years for using edible marijuana in Colorado, where it's legal, wins an initial step in her challenge to the suspension.
- Uber reaches $20 million settlement with the FTC over exaggerated claims it made to drivers about earnings and car financing.
Monday, January 16, 2017
On her blog, Friend of the Court, Sandra Sperino discusses the new Third Circuit decision in Karlo v. Pittsburgh Glass Works. In that case, the Third Circuit held that the ADEA permits "subgroup" disparate impact claims--that is, claims that an employer policy creates an unlawful disparate impact against a certain subgroup of a protected class.
Check it out, definitely worth a read.
Friday, January 13, 2017
Today, the Supreme Court announced that it would review the NLRB's D.R. Horton rule, which concludes that employment class action waivers can violate Section 8(a)(1) of the NLRA. The Court consolidated a group of cases under review that we be familiar to readers of the blog: NLRB v. Murphy Oil, Ernst & Yong v. Morris, and Epic System v. Lewis. Should be an interesting case and here's hoping that my follow blogger Charlie Sullivan and his co-author Tim Glynn picks up a Supreme Court citation on the way.
We'll keep you posted on the oral argument and developments that follow.
Tuesday, November 22, 2016
District Court Enjoins New Overtime Salary Threshold (and Basically Holds that Salary-Basis Test is Unlawful)
Today, the Eastern District of Texas just issued a nationwide preliminary injunction barring application of the Department of Labor's (DOL) new minimum salary threshold for overtime exclusions under the Fair Labor Standards Act.
The decision is stunning. The court relies almost exclusively on dictionary definitions of the terms of the FLSA's overtime provisions. In so doing it states repeatedly that the FLSA's statement that the DOL may define and delimit the meaning of "administrative, exccutive, and professional" does not include the authority to set minimum salary thresholds. According to the court, the DOL can only update the duties. Thus, if an employee meets the duties of, say, an administrative employee, they should be excluded no matter their salary. However, perhaps recognizing that this line of reasoning runs contrary to decades of overtime law, the court drops a footnote saying it wasn't questioning the salary-basis test generally -- the court was addressing only the new salary threshold was under issue. But as far as I can tell, the only logical conclusion from the court's reasoning is that the salary-basis test in general is illegal (if someone sees a way around this in the decision, definitely let me know). In other words, if this decision stands, I think the only logical conclusion is that there will no longer be a salary-basis test for overtime exemptions.
Thursday, November 3, 2016
The Washington Post has posted 20 photos from Lewis Hine, documenting child laborers from the early 1900s. There are some really moving pictures in the collection and all of them show young children who are doing extremely hard work. Definitely worth a look.
Of course, child labor is not unheard of even today.
Wednesday, September 14, 2016
Joey Fishkin & Joe Mastrosimone are co-chairing the labor and employment AALS sections this year and write to seek information for the joint annual newsletter. As someone who has had the pleasure of helping with this effort in the past, let me put in a plea on their behalf--please help out! The newsletter is only as good as the info provided for it, so at a minimum, fill them in on any relevant news for the year. Also, the case/legislation briefs are really helpful to readers, so please consider doing one of those as well. Joe & Joey write:
It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and please e-mail that news to Joseph Mastrosimone at Joseph.Mastrosimone@washburn.edu.
Second, please also e-mail Joseph Mastrosimone with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2016. These publications can be books, articles, and chapters. We are working on compiling a list, but it would help us make sure not to miss your publications if you would send them to us! So, please send an email with your relevant 2016 publications to Ms. Penny Fell at Penny.Fell@washburn.edu; use the subject line “Publications for AALS Newsletter”. (Note: please hold your forthcoming 2017 publications for next year’s newsletter. We’re looking for 2016 publications.)
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Fisher v. University of Texas, Heffernan v. City of Paterson, Tyson Foods, Inc. v. Bouaphakeo, Green v. Brennan, etc.), a significant NLRB decision (including Columbia University, Miller & Anderson, Inc., Piedmont Gardens, etc.), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short — it need not be more than a couple of paragraphs, and should definitely be under 2 pages. If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Please let us know what you are interested in writing about — if you would like to do this, please email Joey Fishkin at firstname.lastname@example.org by October 15 to indicate your interest and say what you’d like to write about.
Thank you very much for your help!
Joe & Joey
Tuesday, August 23, 2016
Today, the NLRB issued its long-awaited decision in Columbia University. As expected, the Board--in a 3-1 decision--reversed Brown University (which was just the latest in a number of cases flip-flopping on this issue) to conclude that graduate students can be "employees" under the NLRA, as long as they had a common-law employment relationship. According to the NLRB's announcement:
The National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority reversed Brown University (342 NLRB 483) saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”
For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the Board has had frequent cause to apply the Act to faculty in the university setting, which has been upheld by the Supreme Court.
Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The Act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act.
Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion. Member Philip A. Miscimarra dissented in the case.
Brown had focused on a test whether the grad students were primarily students or primarily employees and, to my mind, the most important aspect of Columbia was the NLRB's rejection of that test and return to the common-law test for employment. I had always thought that Brown's refusal to use the common-law test flew in the face of Supreme Court law.
Thursday, August 18, 2016
The District Court for the Eastern District of Michigan issued a decision today on cross motions for summary judgment in EEOC v. R.G & G.R. Funeral Homes, Inc., granting summary judgment for the funeral home. The funeral home terminated an employee after that employee announced an intention to transition to female. The transwoman employee intended to abide by the the funeral home's dress code for women, which was that women wear skirt suits. Men were required to wear pantsuits (and if that sounds weird to you, too it's because this gender norm is so entrenched, we only call women's clothing pantsuits). The funeral home also provided men with a clothing allowance, but did not provide the same for women. The court held that enforcing Title VII was not the least restrictive means to reach the argued-for compelling governmental interest of prohibiting sex discrimination in the form of sex stereotyping.
The opinion is long and an interesting mashup of sex stereotyping, dress codes, LGBTQIA discrimination, RFRA, and Hobby Lobby. I haven't thoroughly analyzed it yet, but it seems a very troubling decision for a wide variety of reasons, not least of which is that it seems to import a sort of ministerial exemption on steroids into the private sector. The sense I get from my first read of the opinion is that the court reasoned to get to this point primarily because it disagreed with one of the claims made by the EEOC, which was that gender identity is sex for purposes of Title VII. That proposition has been accepted by a number of courts, but had been rejected by this judge.
This case is one to watch because it's certain to be appealed to the 6th Circuit.
Tuesday, August 16, 2016
Illinois became the sixth state to adopt a Domestic Workers Bill of Rights when Governor Rauner signed the bill last Friday. Domestic workers there will be covered by the state minimum wage laws, guaranteed rest periods, meals, and one day off a week, protected from discrimination including harassment, and protected from being paid "an oppressive and unreasonable wage." These protections are especially important because domestic workers are excluded from federal protections under the FLSA, the NLRA, OSHA, and other laws. Moreover working conditions for childcare workers contribute to poverty and may impair the care those workers can give. According to the National Domestic Workers Alliance, Illinois joins New York, Hawaii, California, Massachusetts, and Oregon. Connecticut also has extended some protections to domestic workers, although not passed the full-blown model bill of rights. The Illinois law will take effect Jan. 1, 2017.
Tuesday, June 21, 2016
A twofer from the Supreme Court already this week. First, on Monday, the Court granted cert. in NLRB v. SW General. The case addresses the question whether an individual can continue serving as an acting official once he or she has been officially nominated. In this case, the individual is Lafe Solomon, whom President Obama designated as Acting General Counsel in 2010, under the Federal Vacancies Reform Act. In 2011, the White House nominated Solomon to the Senate. The D.C. Circuit held that once Solomon was nominated, the FVRA barred him from continue to serve as Acting General Counsel; the issue boils down to which provision of the act Solomon was designated when he became Acting GC.
Second, today the Court issued its decision in Encino Motorcars v. Navarro, which addressed a 2011 Department of Labor rule that said that car dealership employees who handle service appointments were not excluded from overtime--overturning many years of prior precedent that had included such employees under the "primarily engaged in . . . servicing automobiles" exception of the FLSA. In its decision, the Court held that the DOL didn't deserve any deference because it failed to provide an explanation for its change of position. However, the Court did not settle the issue and instead remanded to the Ninth Circuit to determine whether the employees were excluded under the FLSA. Scotusblog has a good summary of the splintered decision, including the various opinions--especially with regard to whether the Court should have addressed the underlying issue of the exclusion's application, and how.
Tuesday, May 17, 2016
The White House announced today that tomorrow (Wednesday), the Department of Law will finalize its new overtime regulations. Under these regs, the salary basis test for overtime exclusions will rise from $23,660 to $47,476 per year ($455/week to $921/week). Importantly, this amount will be updated automatically every three years to match the 40th percentile of full-time salaried workers in the lowest income Census region. Similarly, the "highly-compensated employee" threshold will rise from $100,000/year to $134,404/year, and will also be updated automatically, based on the 90th percentile. You can see the final rule here and a fact sheet on the final rule here.
Saturday, May 14, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form class actions--are far less likely to see the benefits of one-sided arbitration agreements. As the article notes, the Consumer Financial Protection Bureau is seeking new rules for commercial arbitration, but aside from the NLRB, there seems little that agencies are doing for employees.
Wednesday, May 11, 2016
Yesterday, Uber announced that it had come to an agreement with the Independent Drivers Guild, which is not a formal union, but is affiliated with the International Association of Machinists and Aerospace Workers. This agreement is not a concession by Uber that its drivers are employees; to the contrary, it is a way to give drivers a voice explicitly without making such a concession. Broadly, the deal has Uber promising to hold monthly meeting with the Guild and sets up an appeals process for barred drivers. Drivers will also get certain benefits, such as discounted insurance, roadside help, and legal assistance. There will not be bargaining over fares and other benefits. Moreover, the machinists promised not to try to organize during the 5-year agreement or seek status as employees under the NLRA.
This is a good example of non-traditional means to provide employees with voice in a non-union workplace. I've actually been working on a paper (for far too long) that explores these and other types of non-traditional collective voice measures, particularly ones that take a more collaborative stance towards employers.
Tuesday, March 29, 2016
The Supreme Court issued its opinion in Friedrich's today and, as is no surprise following Justice Scalia's death, the Court was 4-4. This means that Abood and its approval of public-sector union fees under the federal constitution lives on. On the other hand, I'd expect challenges to pop up under state constitutions, which will obviously be dependent on a given state's prior decisions and court politics.
The full text of the decision is: "The judgment is affirmed by an equally divided Court."
Saturday, March 5, 2016
Steven Greenhouse is back with a NY Times article looking at unions' expected influence in the coming election. Among the interesting twists this year are the appeal to many union members of both Bernie Sanders and Donald Trump (at first blush, that seems to violate some basic principle of nature, but there's obviously a common populist theme with the two of them). The most critical question to my mind that he raises is whether unions can still turn out the vote in key battleground states. Only time will tell.
Tuesday, March 1, 2016
The EEOC issued a press release today, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:
The federal agency's Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
These cases are an outgrowth of the agency's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC held that Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation because:
(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit. Accepting it would mean that the courts could stop struggling with trying to distinguish between sex stereotyping cases that are cognizable because they are really about sex and sex stereotyping cases that are not cognizable because they are about sex but also sexual orientation.