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.
Monday, August 17, 2015
Washington, D.C. - - In a unanimous decision, the National Labor Board declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. The Board did not determine if the players were statutory employees under the National Labor Relations Act (NLRA). Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union.
In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS). By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution. As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.
This decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.
I haven't read the decision yet, but I'll admit that I didn't see this one coming. On its own merits, one can understand the NLRB's conclusion that if it allowed Northwestern scholarship players to unionize, labor stability in all of college football wouldn't be well served. On the other hand, it could prompt much needed changes in college football. Moreover, it's not obvious why all of college football is the issue--one could envision productive collective-bargaining at just Northwestern, even if it was limited in scope. And, of course, on a selfish note, it would've been nice to have the Board speak to the issue of players' status as employees. But the Board has spoken--unanimously, no less, which I think is also important--and that should settle the issue for a while.
Thursday, July 23, 2015
Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:
Assistant Professor / Associate Professor / Professor
The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: firstname.lastname@example.org).
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
Tuesday, July 14, 2015
Bill Herbert writes in his role as the Chair of the New York State Bar Association’s Labor and Employment Law Section to let us know about two sets of law student awards. One is a set of writing awards, the other student service awards. Annually, the NYSBA Labor and Employment Section presents awards to law students:
Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition
This competition recognizes excellence among law school students writing in the area of labor and employment law; and to cultivate the relationship between the NYSBA Labor and Employment Section and future labor and employment practitioners.
Prize Awarded: 1st place: $3,000 and publication in Section newsletter. 2nd place: $2,000. 3rd place: $1,000.
Submission Deadline: December 4, 2015, and the awards will presented at the Section’s Annual Meeting in January 2016.
Articles must be original from the applicant. Submissions should focus on any timely, compelling aspect of labor and employment law. Only one submission per student.
All articles are to be submitted in the following format: a) typewritten - with computer disk attached or submitted by email to email@example.com no later than December 4, 2015; b) double spaced; c) on 8-1/2 inch by 11 inch paper, 1 inch margins; d) no longer than 20 pages (exclusive of endnotes); e) citations are to conform to "A Uniform System of Citation" (The Bluebook).
Students should include a cover letter with the entry stating their name, mailing address and phone number (both school and permanent), social security number, name of your school and year of graduation. Do not include your name or personal information on your paper.
If published by the Section, all articles submitted for the competition become the property of the Labor and Employment Law Section and the New York State Bar Association. No article submitted may be published in any journal or periodical other than the "New York State Bar Journal", or the "Labor and Employment Law Section Newsletter", until after announcement of the winner of this competition in January 2016.
Samuel M. Kaynard Memorial Student Service Awards
The purpose of the awards is to enable New York State Law Schools to recognize excellence among their law students in the area of labor and employment law and to cultivate the relationship between the Labor and Employment Law Section and future labor and employment practitioners.
Award Criteria: All law school students. Student(s) must be nominated by the dean or the dean’s designee. Direct student applications will not be considered.
Prize Awarded: First prize $3,000, Second Prize $2,000, Third Prize $1,000.
Nomination Deadline: December 4, 2015
Date Presented: January Annual Meeting
The Award is intended to encourage scholarship and exemplary service in the field of Labor and Employment Law. The Award is made by the law school to the student(s) in recognition of an extraordinary accomplishment in the field, including but not limited to the following:
1. Organizing and/or conducting programs at any educational level conducive to the propagation of labor and employment knowledge and skills
2. Outstanding performance in a labor or employment course, clinical experience, project, internship or related activity such as: a collective bargaining simulation grant proposal to research labor and employment issues, curricular revision, or other exposition on the subject;*
3. Facilitating conflict resolution or peer mediation programs for elementary or secondary school students;
4. Utilizing the internet and its components (e.g. World Wide Web/e-mail) to disseminate or receive labor and employment information;
5. A substantial action or activity in furtherance of labor and employment law, performed or instituted in the year of this competition.
Tuesday, June 30, 2015
Today, the Supreme Court granted cert. in Friedrich's v. Cal. Teacher's Association. The issues presented are
(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.
Hat Tip: John Coyle
Wednesday, June 17, 2015
David Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law. The abstract:
This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.
It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.
Monday, June 1, 2015
The Supreme Court issued its decision in EEOC v. Abercrombie today. As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy. The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation). The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part. From the syllabus:
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.
The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was. Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge). That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations. For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation. For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.
Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position. Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices. What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases. In other words, Elauf still has work to do to win this one.
Wednesday, April 29, 2015
Seth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review. The abstract:
I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.
Sunday, April 26, 2015
The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.
For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.
Hat Tip: Patrick Kavanagh
Recently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing. This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.
Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."