Wednesday, May 23, 2018

New NFL Policy on National Anthem Protests

NFLThe NFL has just adopted a new policy on national anthem protests, which raises some potential labor law issues. As I understand the new policy, it implements three new features. First, it allows each team to establish its own policy on national anthem protests. The second feature, however, limits the first as it gives the NFL the power to fine any team if one of its players protests during the national anthem. The third feature also limits teams' ability to establish their own policy by eliminating the previous league-wide requirement that players must stay on the field during the anthem.

So what does this all mean? It appears that players who do not want to stand for the national anthem have at least two choices: stay in the locker room or take a knee during the anthem (or other types of protest). What happens to a player who takes the latter option depends on his team. At a minimum, the NFL will fine the team. But whether the individual player is disciplined depends on whether the team has established a policy barring such protests.

Labor law aficionados will see the potential NLRA issues here. The NFL owners established this new policy without discussing it with the NFLPA (players union). This raises some potential labor law problems. First, the new policy could violate the existing collective-bargaining agreement; indeed, the union said it was reviewing whether such a conflict exists. Second, by establishing a new policy without discussing it with the union, the NFL may have violated Section 8(a)(5) of the NLRA, which prohibits an employer from unilaterally implementing changes in work conditions without first bargaining with the union. The NFL is likely to argue that this duty to bargain isn't implicated because players have the option to avoid any penalties (i.e., adverse work actions) by staying in the locker room. That's a plausible argument, but it's not obviously a winning one because the union could respond that there has been a change in the terms of work, namely that players were previously required to stand on the sidelines during the anthem and could take a knee without penalty, while under the new policy that's no longer an option.

Stay tuned . . . . 

-Jeff Hirsch

 

 

 

May 23, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Monday, May 21, 2018

Supreme Court Holds That NLRA Does Not Prohibit Class Action Arbitration Waivers

Supreme CourtThe Supreme Court today issued its decision in Epic Systems, ruling for employers who, as part of mandatory arbitration clauses, require their employees to waive their right to class actions. This should come as a surprise to no one, as the case pitted the Court's hatred of class actions against the NLRA. 

The 5-member majority decision followed a typical pattern in many respects, including a continuation of its ever-broadening reading of the Federal Arbitration Act's protection of arbitration agreements and a rejection of an argument to grant the NLRB Chevron deference. What's more surprising though was the majority's reading of the NLRA's Section 7. Although it was not required to do so, the Court essentially overruled long-standing NLRB precedent holding that Section 7 protected employees who join together in collective legal actions to advance their workplace conditions. The Court defended this conclusion by, among other things, saying that "Section 7 focuses on the right to organize unions and bargain collectively" and holding that Section 7's protection for "other concerted activities," "like the terms that precede it, serve to protect things employees 'just do' for themselves in the course of exercising their right to free association in the workplace, rather than 'the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.'” I've taught labor law for many years and have never seen Section 7 described in this narrow of a fashion. Indeed, the Court oddly cites the famous Washington Aluminum case for the proposition that "§7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration." One may debate whether Section 7 was originally thought to encompass class actions, but describing Washington Aluminum as an "organizing and collective bargaining" case is nuts--that's the classic decision involving non-union collective action. It involved a walkout by non-union workers who were sick of severely cold conditions in their plant; there was no union on the scene, no attempt to organize a union, and no collective bargaining.

Justice Ginsburg's dissent does a thorough job of showing why Section 7 is much broader than the majority makes it out to be. Using history, the NLRA's text, and NLRB precedent she also emphasized that access to the legal enforcement was a key aspect of the new rights embodied in the NLRA. She finishes with this:

If these untoward consequences stemmed from legislative choices, I would be obliged to accede to them. But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.” 

Given that this case will likely be followed shortly by a loss for public-sector unions in the Janus case, this term looks to go down as one that brought a major constriction of labor rights.

-Jeff Hirsch

May 21, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Tuesday, May 1, 2018

California Knows Its ABCs

Yesterday, the California Supreme Court issued what is likely to be a bombshell decision in Dynamex Operations v. LeeDynamex involved a wage claims brought by a driver under California law. The employer defended with the oft-used (and often successful) argument that the driver and his similar colleagues were independent contractors, not employees. You can check out the decision for the facts, but they will be very familiar to those who spend any time looking at this area. What is more important is how the court analyzed them.

In Dynamex, the court decided to change its standard for determining whether a worker is an employee or independent contractor under the part of the state wage statute that defines "employ" as  "to suffer or permit work" (there are two other definitions of "employ"). In particular, it adopted what is referred to as the "ABC test." Under this rule, a worker is presumed to be an employee unless the purported employer can establish three factors. Because of its importance, I'm going to quote the court's formulation, while editing the layout for easier reading:

This [ABC] standard, whose objective is to create a simpler, clearer test for determining whether the worker is an employee or an independent contractor, presumes a worker hired by an entity is an employee and places the burden on the hirer to establish that the worker is an independent contractor. Under the ABC standard, the worker is an employee unless the hiring entity establishes each of three designated factors:

(a) that the worker is free from control and direction over performance of the work, both under the contract and in fact;

(b) that the work provided is outside the usual course of the business for which the work is performed; and

(c) that the worker is customarily engaged in an independently established trade, occupation or business (hence the ABC standard).

If the hirer fails to show that the worker satisfies each of the three criteria, the worker is principal federal wage and hour legislation.

Although it remains to be seen how soon and how big an effect this decision will have, I'm not going out on a limb by predicting that this represents a major change. The ABC test is clearly broader than the FLSA's "economic realities" test, so at a minimum more California workers will enjoy protection under the relevant statute. But California's size and the fact that this is likely to impact gig work could lead to a shift in how some companies classify and pay their gig workers in other states. Time will tell  . . . .

-Jeff Hirsch

 

May 1, 2018 in Labor and Employment News, Wage & Hour | Permalink | Comments (0)

Tuesday, April 17, 2018

Arbitration Panel Takes Wrong Turn on Labor Dispute Arising Under Free Trade Agreement

WrongturnLance Compa (Cornell ILR) sends us word of a report describing the "wrong turn" taken by an arbitration panel in the first-ever case decided under the labor chapter of a free trade agreement. The case involves worker's rights violations in Guatemala. Here's a press release describing the case and a report critical of the case co-authored by Lance:

A new report from the International Labor Rights Forum (ILRF) says that an arbitral panel’s ruling in the first case ever decided under the labor chapter of a free trade agreement “got it wrong” on workers’ rights violations in Guatemala. Written by three prominent international labor law experts, “Wrong Turn” edits down the 300-page decision into a reader-friendly 30 pages, and provides analysis and commentary at key points showing the arbitral panel’s flawed approach and conclusions.

Following a 2008 complaint by the AFL-CIO and a coalition of Guatemalan unions, the United States government initiated the arbitration case in 2011 under the labor rights chapter of the 2005 U.S.-Central America Free Trade Agreement (CAFTA). That chapter defines as its central purpose to “protect, enhance, and enforce basic workers’ rights.” The United States charged Guatemala with failing to effectively enforce its national labor law to halt mass firings of workers who try to form unions and to remedy minimum wage, health and safety, and other violations of employment standards. Effective enforcement of national law is a central obligation of the CAFTA labor chapter.

In their report, Lance Compa of Cornell University, Jeff Vogt of the Solidarity Center, and Eric Gottwald of ILRF note that two of the three members of the arbitral panel were prominent trade lawyers who normally represent multinational companies in commercial disputes, but have no labor experience or expertise. As a result, “The decision is based on a narrow, trade-oriented analysis divorced from labor law reality - particularly in a developing country like Guatemala.”

Importantly, the arbitral panel did find that Guatemala repeatedly failed to effectively enforce its labor law. However, the panel found that such failures did not occur “in a manner affecting trade,” as required by the labor chapter, leading the arbitrators to rule in favor of Guatemala. In contrast, the report’s authors argue that, “A rights-focused analysis would say the CAFTA labor chapter is meant to protect workers’ fundamental rights, not competition in the free trade area.”

Gottwald, Vogt and Compa suggest that the arbitral panel erected an impossibly high barrier to workers prevailing in such cases. All violations and the failure to enforce labor laws occurred in trade-related sectors such as apparel manufacturing, agriculture, and shipping, but the panel found that this was insufficient to meet the “manner affecting trade” requirement. The arbitrators demanded evidence that companies took advantage of the government’s enforcement failures to gain a price advantage in the marketplace. But such information, argue the report authors, is impossible to obtain without subpoena power – a tool that is not available in the CAFTA dispute resolution system.

The authors also decry the failure of the U.S. government to present evidence on widespread violence against trade unionists in Guatemala, including death threats and assassinations – an important part of the unions’ original 2008 complaint. Reflecting this failure, they note that “In the full 299-page decision of the Panel, not once does the word ‘violence’ appear.”

The ILRF report concludes with recommendations to address the “wrong turn” in the CAFTA arbitration decision. They include requiring arbitrators to be experts in labor law and labor relations and to consider reports and decisions from international human rights bodies, not just the WTO, in their decision-making process; allowing trade unions and victimized workers to participate in arbitration proceedings, correcting the interpretation of the “manner affecting trade” clause, and making the labor chapter of all trade agreements a human rights chapter.

Here is the full report.

rb

April 17, 2018 in Arbitration, International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

Tuesday, April 3, 2018

On No Longer Reading FLSA Exemptions Narrowly

Yesterday, the US Supreme Court decided Encino Motorcars v. Navarro in a way that rejected past precedent requiring courts to read FLSA’s statutory exemptions narrowly. In a 5-4 ruling, the Court ruled that FLSA exempts a service adviser at a car dealership from its overtime protections under the exemption for “any salesman . . . primarily engaged in . . . servicing automobiles.” 29 U.S.C. § 213(b)(10)(A).

In doing so, however, Justice Thomas, writing for the majority, rejected the general “principle that exemptions to the FLSA should be construed narrowly.” Encino, Slip Op. at 9. Here’s his reasoning:


We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.” Scalia, Reading Law, at 363. The narrow construction principle relies on the flawed premise that the FLSA “‘pursues’” its remedial purpose “‘at all costs.’” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume . . . that whatever might appear to further the statute’s primary objective must be the law” (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading.

Id.


In so reasoning, Justice Thomas’s majority opinion didn’t “acknowledg[e] that it unsettles more than half a century of our precedent.” Dissent of Justice Ginsburg, Slip. Op. at 9-10 n.7. See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (FLSA “was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”); accord Citicorp Industrial Credit Co. v. Brock, 483 U.S. 27, 35 (1987); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959)(“It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.”)(citations omitted). In her dissent, Justice Ginsburg called this FLSA precedent a “well-grounded application of the general rule that an ‘exception to a general statement of policy is usually read . . . narrowly in order to preserve the primary operation of the provision.’” Dissent Slip. Op. at 9 n.7 (quoting Maracich v. Spears, 570 U.S. 48, 60 (2013)).

Management-side lawyers will likely now invoke Encino often in FLSA exemption litigation. But, it’s hard to know how much this will affect FLSA case outcomes, because it’s unclear how much the “narrowly-read FLSA exemptions” rule had affected FLSA case outcomes in any event, that is, how often that rule operated as makeweight versus a genuine tie-breaker.

More puzzling: The Court could have easily sidestepped the issue by saying that, given the strength of all the other reasons to read § 213(b)(10)(A) the way it did, there was, in this case, really no tie for the “narrowly-read FLSA exemptions” rule to break. Instead, the Court’s majority seems to have wanted to overrule this prior FLSA precedent but without expressly saying that it was directly overruling it as precedent. The mystery is which Justice(s) in the Encino majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) wanted this in the opinion, and why.


Sachin Pandya

April 3, 2018 in Labor and Employment News, Wage & Hour | Permalink | Comments (0)

Wednesday, March 7, 2018

Osgoode Hall Labor & Employment LLM

David Doorey from York University in Toronto sends along a plug for Osgoode Hall Law School's part-time specialist LLM degree with a specialization in labor and employment law. From David:

The Osgoode part-time LLM is one of the world's leading programs in the field with an incredible line up of Canadian, American, and British professors and courses, including:
 
Alan Bogg, Bristol, Comparative Labor Law: The British Model
Brishen Rogers: Labor Law, the Fissured Workplace, and the Gig Economy
David Doorey & Ruth Dukes:  Contemporary Issues in Labour Law
Eric Tucker, Theories and Perspectives in Labour & Employment Law
Kevin Banks, International Labour and Employment Law
Gillian Demeyre, Gender and the Law of Work
Claire Mumme, Contemporary Issues in Individual Employment Law
Michael Lynk, The Charter of Rights and Freedoms and Human Rights
 
And more.  Here is the program website. The program is taught in a cohort format, beginning in fall 2018 and running until 2020. It is possible to take the courses in distance format (live on the Internet) so students do not need to come to Toronto for every class.  We have had students from Europe, South America, and across Canada, but this is the first time the program has been marketed to American students.  Osgoode Hall Law School is one of the world's leading law schools, and this LLM is also a financial bargain relative to many comparable law school masters' programs at leading international institutions.  
 
If you know of any students or even practitioners interested in an LLM degree with a specialist in labor and employment law, please let them know about this great program.  
 
-Jeff Hirsch
 

March 7, 2018 in Labor and Employment News | Permalink | Comments (0)

The Puzzle of Getting PAID

The US Department of Labor (DOL) unveiled yesterday a new six-month pilot program to encourage employer compliance with the Fair Labor Standards Act. Under the Payroll Audit Independent Determination program (PAID), DOL would cover any back pay employers owed to workers under FLSA (wages owed under FLSA’s minimum wage or overtime provisions). In exchange, the employees would release any of FLSA claims for those violations, and employers would agree to self-auditing procedures for their pay practices. See here, the PAID website here, along with mixed reactions reported here.

One DOL-touted benefit of PAID: Participating employers won’t have to pay FLSA “liquidated damages or civil monetary penalties” so long as those employers “proactively work with WHD to fix and resolve the compensation practices at issue.” DOL won’t make them and, it seems, employees would at least release the employer from any liquidated damages otherwise owed under FLSA for the “identified violations” and relevant time period.

This matters. An employer that violates FLSA is on the hook not just for the wages it should have paid but didn’t (back pay) but also “an additional equal amount as liquidated damages,” 29 U.S.C. § 216(b), unless the employer can show that it’d acted “in good faith” and had “reasonable grounds for believing that his act or omission” didn’t violate FLSA, 29 U.S.C. § 260. So, if a worker is owed $40 in unpaid wages, she may recover up to $80, that is, the $40 in unpaid wages plus and the “additional equal amount” (another $40, the “liquidated damages”).

The FLSA liquidated damages provision isn’t just a damages multiplier. Rather, according to the US Supreme Court, it refers a separate item of compensatory damages: the loss that results because the employer didn’t pay the owed wages on time. Such as loss is real, especially where the worker needs the wages paid on time to maintain a minimal standard of living, but Congress thought that type of loss “too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Savings Bank v. v. O’Neil, 324 U.S. 697, 707-08 (1945).

Accordingly, the employer who gets PAID stands to save up to double–not just the back pay they’d owe the employee, but also the liquidated damages they’d also pay, in cases where the employee would otherwise sue and win. Since FLSA has a fee-shifting statute, employers stands to save more still in such cases. (Even more still if employers fear a FLSA hot-goods injunction. More on that here.) By the same token, however, employees who sign FLSA releases under PAID stand to give up any liquidated damages award, that is, up to half of what they’d recover if they sue and win. DOL’s view: Under PAID, employees will get all their owed back wages “faster” than if they had to sue, and “without having to pay any litigation expenses or attorneys’ fees.”

Now, a puzzle: How would an employer getting PAID fare under parallel State wage and hour law? Like FLSA, many States have wage and hour laws with liquidated damages provisions. See, e.g., Cal.Labor Code § 1194.2; Md. Labor and Employment Code § 3-427(a)(2); W. Va. Code § 21-5B-4(a). In States where the employer’s acts or omissions violated both FLSA and a State’s wage and hour law, would the employee’s release under PAID cover only any FLSA claim or any and all legal claims (including State law claims) arising from the employer’s underpayment? In some States and localities, this matters, because the minimum wage and overtime provisions are more generous there. This issue matters less in, for example, the five States with no State minimum wage.

Sachin Pandya

March 7, 2018 in Labor and Employment News, Wage & Hour | Permalink | Comments (0)

Monday, February 26, 2018

NLRB Vacates Hy-Brand

NLRBWell, that didn't last long. Two months following its several of the Browning-Ferris joint-employer standard in Hy-Brand, the NLRB has vacated that recent decision. No, it wasn't a change of heart. Rather, the NLRB vacated Hy-Brand because its Inspector General recommended that action due what it viewed as the improper participation of Member Emanuel, who participated in the case despite the fact that his former firm represented one of the parties involved with the Browning-Ferris litigation, which was still involved in litigation that would be influenced by the NLRB's joint-employer standard.

Needless to say, as soon as JohnRing is confirmed--and he now has a hearing date of  March 1--we will likely see Hy-Brand again under a different name.

Stay tuned.

-Jeff Hirsch

February 26, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Oral Argument in Janus

Supreme CourtToday, the Supreme Court heard oral arguments in Janus v. AFSCME, the newest in several decisions in which a bloc on the Court has attempted to strike down public-sector mandatory union fees (see here, here, and here for some of our earlier coverage). I'm going to go out on a limb and predict that this time is the charm. The 8 veteran Justices age no reason to think that they moved from previous positions, which results in a 4-4 split on this issue. The newer Justice Gorsuch was uncharacteristically silent during oral argument, but I'd be stunned if he doesn't vote with the conservative bloc to overturn Abood and find such fees to be unconstitutional. You can judge for yourself by reading the oral argument.

-Jeff Hirsch

February 26, 2018 in Labor and Employment News, Public Employment Law, Union News | Permalink | Comments (0)

Supreme Court Grants Cert. in ADEA Coverage Case

Supreme CourtToday, the Supreme Court granted in cert. in Mount Lemmon Fire District v. GuidoThe question presented was whether the Age Discrimination in Employment Act applies to state and local employers with fewer than 20 employees. I'll confess that I hadn't thought much about this issue, which arises from the ADEA's definition of "employer" (29 U.S.C. 630). As most of us know the ADEA's small employer exception requires private employers to have at least 20 employees. But whether that exception applies to state and local government employers is less clear. I'll quote the provision to show why:

The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

As you can see, the inclusion of state and local employers is separate from the private-sector part, with its 20-employee requirement. The Ninth Circuit has held that, as a result, there is no small employer exception for state and local employers, while the 6th, 7th 8th, and 10th circuits have applied the exception to those employers. Hence the Supreme Court intervention.

-Jeff Hirsch

February 26, 2018 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Friday, February 16, 2018

NLRB Seeking Input on Misclassification Unfair Labor Practice

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

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

Stay tuned . . . .

-Jeff Hirsch

 

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

Grad Students Abandoning Election Victories [Updated]

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

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

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

-Jeff Hirsch

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

Sunday, January 28, 2018

Recent Developments in Title VII Protection for Sexual Orientation

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

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

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

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

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

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

rb

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

Tuesday, December 19, 2017

Labor and Higher Education Paper and Conference

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

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

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

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

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

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

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

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

 

-Jeff Hirsch

 

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

Friday, December 15, 2017

NLRB Overrules Specialty Healthcare and Unilateral Change Rule

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

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

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

-Jeff Hirsch 

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

Thursday, December 14, 2017

Justice Hart

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

-Jeff Hirsch

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

NLRB Changes Joint Employer and Workplace Policy Standards

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

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

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

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

 

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

Tuesday, December 12, 2017

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

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

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

(1) retained without change,

(2) retained with modifications, or

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

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

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

Stay tuned.

-Jeff Hirsch

 

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

Sunday, November 12, 2017

Republican Tax Bill Puts Thumb on EE-IC Scale

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

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

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

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

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

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

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

rb

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

Thursday, November 2, 2017

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

Webhead

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

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

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

rb

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