Thursday, December 14, 2017
Well, 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:
Tuesday, December 12, 2017
With 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.
Sunday, November 12, 2017
Shu-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....
Thursday, November 2, 2017
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.
Wednesday, October 18, 2017
Ben Sachs and Noah Zatz have an op-ed in the New York Times today arguing that they believe that the NFL players' national anthem protests are protected under various legal theories, mirroring some of their early writings that Rick posted about recently. With respect to Ben & Noah, I think their conclusion that "[s]tifling the protests would be illegal" misses the mark.
The op-ed lays out three theories for protection: state action that results in First Amendment protection for the players; Title VII's anti-retaliation provision; and the NLRA's Section 7/Section 8(a)(1). Although I'm supportive of the players and would love to see changes in the law that would protect this type of activity, given the current state of affairs, I don't think any of these theories will work.
First, while I'm no constitutional scholar and am prepared to be corrected, I don't see any state action here. Even with the President's statement a few hours ago, I'm not seeing the level of coercion or control that is usually required for state action. That could come if the President ramps up the pressure, but it doesn't appear to be at that level now.
Second, I also didn't see the nexus to employment that is required for coverage by Title VII and the NLRA. One point on which we agree is that this nexus might exist if the players are protesting their treatment as players/employees, such as opposition to calls for their termination or discipline. But that doesn't seem to be their motivation. Colin Kaepernick started this movement by kneeling in protest police brutality and social injustice (see, e.g., here and here). The recent spread to other players following Charlottesville and other events have appeared to mirror these concerns, rather than focus on players' employment concerns. That could change at some point (although risk more criticism of "spoiled, rich players"), but until it does, I'm unaware of case law that interprets these type of societal concerns as protected activity under Title VII or NLRA. And I don't think the Trump NLRB or most courts would conclude otherwise.
Finally, I worry that painting an overly rosy picture of employment law protections has risks. As we all know, most employees already think they enjoy far more workplace protections than they actually do. Reasonable minds can differ on strategies to address this issue, but I've always taken the opportunity to shine as much light on the actual state of the law. I want workers to know the limitations of the law and the risks involved in their actions so they can seek employers that provide more protection or at least have better reputations. Or, heaven forbid, actually push for legal reforms or a union that can negotiate protections.
Monday, October 16, 2017
As I mentioned recently, the Supreme Court had requested the Solicitor General's view on whether the abrogation of state sovereign immunity under USERRA was valid. The SG's office just submitted its brief, recommending the denial of cert. There are reasonable grounds to argue against cert., most notably the lack of a circuit split, but the SG's brief was, to put in bluntly, lazy. It didn't make any meaningful attempt to address the constitutional or historical reasons why abrogation under the war power should be treated especially carefully; indeed, it went so far as to suggest that the war powers are equivalent to other Article I powers when it come to the balance of federal and state power, which I find disturbing ("But the central problem with petitioner’s argument [that Congress' war powers is exclusive and important] is that all Article I powers could be described as exclusive and important to at least some degree.").
Again, if you're curious about this issue, I've got an older article that delves into it the question in detail. Needless to say, I conclude that the war powers is very much not like other Article I powers when it comes to federal authority supplanting state authority.
Saturday, October 7, 2017
Some recent labor & employment news to catch up on:
- The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
- Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
- The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
- Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.
Thursday, September 28, 2017
Today, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.
Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again.
You can read more at SCOTUSBlog.
Thursday, August 31, 2017
The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:
- Allows small employers to bargain directly with employees;
- Creates bigger bargaining units at a workplace;
- Increases severance pay;
- Lowers cap on wrongful dismissal awards;
- Lowers statute of limitations on wrongful dismissal claims; and
- Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.
I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.
In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.
Monday, August 14, 2017
David Yamada (Suffolk) has a post worth reading over at Minding the Workplace on Can an employer fire a publicly-avowed white supremacist? The answer: almost certainly yes for private-sector employers; yes with some free-speech caveats for public-sector employers.
Also worth reading is Dean Dad's post today on When Neutrality Isn't an Option. Those of us in higher-ed administration need to be able to work with folks of widely varying political stripes -- so long as we can find "common ground ... in the name of helping the students and the community." But
[p]ublic higher education is for the entire public. A movement that denies that there even is such a thing -- that assumes a better and a worse public, whether by race, religion, or whatever else -- is an existential threat to our mission. We need to be willing to treat it accordingly.
That means not “teaching the controversy,” or pretending that there are “many sides” to this one. Anti-semitism, for instance, doesn’t really lend itself to a “pro or con” analysis. It’s wrong. It’s just flat wrong. White supremacist terrorism is wrong. And that’s not just a personal view, although it is also that; it’s a precondition for doing the work we do every single day.
Tuesday, August 8, 2017
This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.
Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.
All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.
Wednesday, August 2, 2017
Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.
Wednesday, July 12, 2017
It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.
First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.
Tuesday, June 20, 2017
As predicted, Marvin Kaplan will be nominated as a member of the NLRB. At the moment, Kaplan is counsel at the Occupational Safety and Health Review Commission. especially given his previous Capitol Hill experience as counsel for the House Workforce and Education Committee, I would expect his nomination to come relatively quickly, producing a 2-2 political split on the Board (of course, most cases will be heard by a randomly selected 3-member panel).
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Thursday, May 11, 2017
Reports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).
Readers may be interested in a new report from the Center for Progressive Reform: Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. An excerpt from the summary:
Workers and advocacy groups are turning to the states as possible avenues for successful reform, urging local prosecutors to pursue crimes involving worker fatalities and serious injuries under their states’ general criminal laws, as the Massachusetts prosecutor did in the case against Edmund Godin for involuntary manslaughter more than 30 years ago. To date, only a few prosecutors in a handful of states (e.g., California, Illinois, Massachusetts, Michigan, and New York) have actively pursued such cases, but those prosecutors have been remarkably successful. Such advocacy efforts suggest that criminal prosecutions are increasingly important for punishing and deterring employer neglect and malfeasance.
In 2014, Center for Progressive Reform Member Scholars and policy analysts published Winning Safer Workplaces: A Manual for State and Local Policy Reform, which discussed this reform effort, along with a series of workers’ rights campaigns beginning to take hold at the state and local level. Following up on the 2014 manual, this new manual offers more detailed assistance to advocates who want to enhance criminal prosecutions for crimes against workers.
Thursday, April 27, 2017
The Senate has just confirmed Alex Acosta as the Secretary of Labor. The vote was 60-38. As I've said before, I was pleased with this pick given the current administration. Now the rubber meets the road.
Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review. The abstract:
We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.
The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.
Check it out!
Thursday, March 30, 2017
The White House just announced that Ivanka Trump will no longer be a White House volunteer or "informal advisor," but will instead be an "unpaid employee." The move to employee status is a positive development, as it ensures that the usual ethical rules that apply to White House workers will apply to her as well. It's also understandable that, given her personal wealth, she would eschew a salary.
This does raise a question for the labor & employment law geeks among us: what about the FLSA's minimum wage? Normally, the FLSA would apply to federal employees, who can't agree to a salary below the minimum. However, I believe that there is a process for seeking a waiver--in this case, likely from the Office of Personnel Management, which enforces the FLSA for federal employees--but there's no mention of whether a waiver is currently being sought (or whether I'm even right about this).
If any readers have more insight, please add a comment.