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.
Sunday, February 14, 2016
In the welter of outpourings of tributes, recollections, and political prognostications that followed the unexpected death of Associate Justice Antonin Scalia, I suspect that his impact on the employment arena will not be front and center. And I also suspect that readers of Workplace Prof generally decry his influence on our field. Nor can I claim not to have offered my fair share (OK, maybe more than my fair share) of criticism, including a recent spoof of his arbitration jurisprudence written with Tim Glynn.
That said, it's easy to forget that Justice Scalia authored some pretty important, and, on balance, pro-plaintiff opinions. Oncale comes to mind, as does Staub v. Proctor Hospital and, most recently, Abercrombie & Fitch. It's true that I've been known to wonder where the hook was when the Justice seemed to be offering a fat, juicy worm to us employment discrimination folk, but that may be just me.
And beyond the contributions of analysis and results of which we approve, the Justice's opinions will be missed for the sheer exuberance (sometimes overexuberance) of his prose. His style was inimitable and, if there is one thing that is almost certain in the future, it is that his replacement's opinions will be less fun to read and engage with.
Saturday, January 23, 2016
A few days ago, over 100 law professors (present company included) filed a petition with the NLRB to change its approach to captive audience meetings. Under the proposed rule, the NLRB would return to its prior policy of providing a union the opportunity to hold a meeting with employees if the employer does the same. This differs from the current approach, under which employers can hold as many captive audience meetings that it wants (up to 24 hours prior to the vote), without giving the union similar access to employees.
One-hundred and six (106) professors of labor law and employment relations have just filed an “interested person’s” petition with the National Labor Relations Board, the intent of which is to correct an unfair and undemocratic practice that American employers have long used to keep unions from winning NLRB elections. That practice is conducting what has come to be known as “captive-audience” meetings. These are anti-union talk sessions that management stages with employees on company premises during paid working time, with attendance compulsory and the union denied an equal opportunity to address those employees. It is a practice that employers tend to use almost reflexively whenever their employees are engaged in union organizing or seem likely to become so engaged. Such conduct was originally held to be a violation of the National Labor Relations Act, but that was changed in1953 by a Republican dominated Labor Board. Although the Board in 1966 commenced a reconsideration of that ruling, it never completed the process, deliberately leaving the matter open for change sometime in the future— which may now be about to happen. . . .
The petition points out that a similar rule has long prevailed for union elections on the airlines and railroads, which are covered by the Railway Labor Act, a similar yet different statute The National Mediation Board, which administers those elections, invalidates any election where captive-audience meetings have been held and the union loses, whereupon a new election is ordered. That practice has had a noticeable impact, for such meetings almost never occur during union-organizing campaigns on the airlines and railroads, and there have been very few instances of such violations. Petitioners assert that the absence of captive audiences in those industries might even be a significant factor—though certainly not the only factor—that accounts for the high rate of union membership—sixty-two percent—among airline and railroad employees; whereas it is less than seven percent among private-sector employees as a whole, a difference about which the public seems unaware.
Monday, January 11, 2016
Today, the Supreme Court heard arguments in the public-sector agency fee case, Friedrichs v. California Teachers Association. The oral argument transcript hasn't been released yet, but based on news accounts, it didn't sound good for the unions. In particular, Justice Scalia's comments seemed to shote down hope that might continue to express skepticism at overruling Abood. It's, of course, never certain that the oral argument predicts a final decision, but public-sector unions should start making backup plans.
If the Court does overrule Abood it will be interesting if it holds, as some justices suggested at arguments, that all public-sector bargaining over terms and conditions of employment is political. Does that mean that public-sector employees are entitled to First Amendment protection when they speak out about working conditions? That hasn't usually been the case, but if that changes, it will be a silver-lining for some employees, especially those working in states without public-sector labor law. Also, will outlawing agency fees create more of a move toward members-only bargaining? For instance, will we see public-sector unions argue that free riding is unconstitutional (e.g., a takings?).
Thursday, November 12, 2015
The Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers. The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.
The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.
Saturday, October 31, 2015
In another example of the New York Times weighing in on a recent employment issue, the paper recently published an op-ed arguing against tipping, authored by Saru Jayaraman (UC-Berkeley & ROC). Among the arguments against tipping is its roots in racial discrimination, as well as its negative effects on female employees. No matter your view on the topic, it's well worth a read.
Hat Tip: Harris Freeman
This is old news for most readers of this blog, but it's nice to see a paper like the New York Times highlight the issue of arbitration waivers. In particular, an article today talks about the Supreme Court's approval of arbitration class action waivers, including some backstory of the Italian Colors restaurant.
Tuesday, October 20, 2015
The AALS L&E Sections are seeking info for the joint newsletter--please send it in soon! The same goes for those interested in case briefs.
We are reaching out once again to request information for our joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law. 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 tenure, please e-mail that news to Danielle Weatherby at firstname.lastname@example.org.
Second, please also e-mail Danielle Weatherby 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 2015. Please hold your forthcoming 2016 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2015 publications to Danielle Weatherby.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description (no more than a page or two) 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 Young v. UPS, Inc., EEOC v. Abercrombie and Fitch, or the granting of cert. in Friedrichs v. California Teachers Association), 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. 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, as the newsletter is widely circulated. Just let us know what you are interested in writing about. Please send your submissions to Naomi Schoenbaum at email@example.com.
Please send all submissions by November 1, 2015.
Thank you very much for your help!
Danielle Weatherby & Naomi Schoenbaum
Wednesday, October 7, 2015
Katie Kennedy (John Marshall--Chicago) and Israel Goldowitz (Pension Ben. Guar. Corp.), members of the American College of Employee Benefits Counsel (ACEBC) Law Student Outreach Committee have written to tell us of a couple of exciting opportunities for law students to help foster interest in employee benefits as a practice area.
The committee has developed:
- A mentorship program that connects interested law students with ACEBC Fellows to learn what day-to-day practice is like as an attorney who is either in-house, government, law firm, not-for-profit or teaching; and
- A writing competition on an employee benefits topic that opens each January and closes in May/June.
Information on both of these programs is available at http://www.acebc.com. Check it out!
Thursday, September 17, 2015
Thursday, August 27, 2015
In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.” With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.
In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.
In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions.
The Board ordered that within 14 days the ballots that were impounded on April 25, 2014 shall be counted and the appropriate certification issued.
This decision could have a big impact on many industries, most notably, fast food. The General Counsel has already gone after McDonald's (see here and here) and expect more of the same now that the Board has spoken.