Thursday, December 4, 2014
The Senate's HELP committee has approved Lauren McFerran's nomination to the NLRB by a party-line vote (12-10). The early timing of the committe's action is probably the most important fact, as it seems to indicate an intent to have a full Senate vote before the end of the year--and the changing of the Senate majority to Republicans. It's looking, therefore, that the Board will have it's full five members until at least August 2015, when Harry Johnson's term expires (there could be a minor delay between Nancy Shiefer's term, which ends on Dec. 16 and McFerran's confirmation). Given that Johnson is Republican, we could see his seat filled in a timely fashion, although I wouldn't bet either way on that one.
Hat Tip: Patrick Kavanagh
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Thursday, November 27, 2014
New technology meets old-school labor unrest. Recently, the online ride service, Uber, has faced a series of collective actions by its drivers, which have objected to the increasingly tight terms and conditions of their relationship with the company. One of the many interesting aspects of this dispute is that the drivers, like many taxi drivers, are classified by Uber as independent contractors. That doesn't stop the drivers' ability to engage in work stoppages, but it of course eliminates any legal protection against retaliation. However, there's currently a suit pending in San Francisco challenged the classification, so things could get more interesting.
Hat Tip: Michael Duff
Saturday, November 15, 2014
A little self-promotion. My article, The Supreme Court's 2013-2014 Labor and Employment Law Decisions: Consensus at the Court, which is appearing in the Employment Law and Employment Policy Journal, is now on SSRN. In the article, I examine all the labor and employment cases this term, plus some related cases and recent grants of cert. I'll also note that I spend a lot of time on Harris v. Quinn, including what I view as the more significant aspects of the decision: the Court's take on joint employment and the First Amendment in the workplace.
Also check out Jonathan Harkavy's latest Supreme Court review, 2014 Supreme Court Employment Law Commentary. He looks behind the veneer of consensus this term to argue that the Court's conservative majority still hasn't changed its stripes--a view with which, despite my title, I completely agree.
Finally, FWIW, my 2012-2013 Supreme Court review is here.
Thursday, November 13, 2014
VW has announced that it will recognize members-only unions at its Chattanooga plant. Following the UAW's inability to get the necessary 50%+ votes to become the exclusive reprentative for all unit employees, this represents a second-best solution. According to reports, the plan will be to create a three-tiered classification for unions that show support from at least 15%, 30%, and 45% of employees. All of these groups will be able to meet with HR officials at least once a month as representatives for their members. Those with 30% or 45% will be entitled to some unspecified additional rights.
This is all very interesting and I'm curious to see how it works. What is less clear is whether this type of arrangement will have much purchase beyond a foreign corporation with union ties as strong as VW.
Unfortunate news today for Sharon Block, whose second nomination to the NLRB was pending in the Senate. The White House has confirmed earlier reports that, facing Republican opposition based on the nutsy argument that she's unfit to serve because of the recess appointment issue, they are pulling her nomination. Really too bad for many reasons, not least of which is that Sharon was and would be an excellent Board member.
The very important silver lining with this move is that the White House is nominating Lauren McFerran (chief labor counsel for the Senate's Health, Education, Labor, and Pensions committee) for Block's slot. It sounds like this is partly with the assent of Republicans which, if true, is very good news for the NLRB as a whole, in that it assures the agency of having a full complement of members. Of course, it's unclear why it matters what the Republicans think given that the Democrats still have the majority during the lame duck session. Perhaps this was a fig leaf from the White House, but I really don't know.
Hat Tip: Patrick Kavanagh
Wednesday, November 5, 2014
Although labor-side advocates would be hard pressed to put a poisitive spin on yesterday's elections, there is one silver lining for those folks. In four states, voters approved measures to increase their state's minimum wage. What's suprising is that they were all traditionally red states: Alaska, Arkansas, Nebraska, and South Dakota. And the margin of vistory wasn't really close, with approval gaining support from 69%, 65%, 59%, and 53%, respectively.
The states vary in the time period and amount of the increase, with the final minimum going to $9.75 in Alaska, $9 in Nebraska, $8.50 in South Dakota, and $8.50 in Arkansas. This isn't like $15/hour Seattle, but is fairly impressive for electorates not usually sympathetic to employee-side legislation.
Thursday, October 23, 2014
- The Office of Special Counsel just found the U.S. Army gulity of harassment against a transgendered employee. It shows how the recent executive order can help such employees, but also why such protection is needed.
- Harold Meyerson on a bill that would eliminate tax deductions for "performance-based" executive pay above $1 million.
- In These Times takes a look at TV reality show writers in an article by a former writer. In addition to shedding light on the work conditions on reality shows, it illustrates the difference that unionization can make, as well as the fact that not all of Hollywood is unionized.
- Will an NLRB complain against McDonald's come soon? Politico's Morning Shift looks at some recent comments about the case.
- New York's Pregnant Workers Fairness Act is one year old. If employers and employees don't know about, does it matter?
- The White House delays new rule extending the minimum wage and overtime laws to home health care workers until July.
- The Fourth Circuit holds that Craig Becker's recent appointment to the NLRB was valid.
- Seminary professors engage in walk off to protest Dean's management of school (there's some pretty bad allegations). The professors--80% of the faculty--are fired as a result. Too bad the ministerial exception leaves them without protection.
Hat Tip: Michael Duff, Jonathan Harkavy, & Patrick Kavanagh
Wednesday, October 8, 2014
Last week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit. In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status. Instead, the court held that the principal focus was entreprenurial opportunity. In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test. Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.
As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development. There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention. I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding. But we'll see. In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Sunday, September 7, 2014
An important civil rights advocate passed away recently. George Barrett was a long-time civil rights lawyer in Tennessee, who took on numerous, important cases over the years. The most high-profile was the Geier case, which helped desegregate the University of Tennessee system. One sign of his success was the difference that time makes. The University fought hard against the suit when it was brought and throughout part of its enforcement period. However, in the end, as a judge looked like he would rescind the order mandating diversity efforts (which did, in fact, happen), the University was not happy because it might undermined those efforts.
It might never have happened without Barrett and his presence will be sorely missed.
Hat Tip: Jonathan Harkavy
- Want to work for a company that provides work schedules in advance? Try a unionized one. The NY Times explains that they still exist, such as Macy's.
- Another round of accusations that Apple contractors in China are committing labor abuses. On the bright side, we're at least in an era where Apple and other companies regularly audit their contractors. Whether those audits do much is a different question.
- The fast food "Fight for Fifteen" protests continue, and this time there's more civil disobedience and arrests. Steven Greenhouse reports.
- Another Greenhouse story, this time on prevalence of wage theft suits, including fast food restauarants. It emphasizes that wage theft actions can target contractors and franchisees of companies that are targets of other types of pressure (e.g., Wal-Mart and fast food companies). The story also shows that government enforcement efforts can be an important protection for workers, especially lower-wage ones who might have a hard time hiring attorneys.
- An interesting interview with Rich Yeselson, a lang-time labor activist. He provides a nice, thorough defense of unions' role in the modern economy and why they are still relevant.
- A story on the Market Basket dispute, focusing on the fact that the employees--which were successful in getting a favored CEO back--were non-union. It's a good reminder that the NLRA doesn't just protect unionized employees.
- FedEx loses a dispute over drivers' classification as employees or independent contractors. The case is notable because the Ninth Circuit distinguishes the D.C. Circuit's stress on entrepreneurial opportunity. There doesn't appear to be a direct circuit split yet, but it wouldn't surprise me to see the Supreme Court step in on this issue eventually.
- And, finally, just for fun: 11 jobs that no longer exist. If my mornings are illustrative, I think there's still a market for "knocker-uppers."
Saturday, September 6, 2014
As I've been gathering material for another labor and employment law roundup, I felt compelled to give the following story it's own post. McClatchy papers have a series, Contract to Cheat, that gives a detailed look at the independnt contractor problem. Among many other things, they've gotten access, through a FOIA suit, to government contractor payroll reports for HUD projects. Using those reports, as well as other reporting, the serious provides a thorough examination of the problem and its impact on workers and the industries they work for.
This is really worth looking at. It's got some good data for scholarship, as well as material worth highlighting in class. Definitely check it out.
Monday, September 1, 2014
Sunday, August 24, 2014
The National Center for the Study of Collective Bargaining in Higher Education and the Professions has released its August e-note, which lists several relevant labor issues. Included are an interesting issue related to teh classification of charter schools. In Hyde Leadership Charter School - Brooklyn, the NLRB will determine if NY charter schools are private enough to be covered by the NLRA or are public enough to fall under NY State public labor law. Earlier, the Board found that Illinois charter schools were covered by the NLRA, although there are differences between the two states on this issue.
Read the full note, there are many other important issues included
Thursday, August 21, 2014
- The Nation reports on attempts by workers of a major packing company to highlight poor working conditions and union busting to improve their plight appeal to the good-employer image of Costco, which stocks many products of the company. In addition to quotes from Michael Duff, the story provides another example of how hard it is for unions to maintain support in the face of relentless anti-union tactics by employers--highlighting the push for less delay in NLRB elections.
- The NLRB's Macy's decision shows the Specialty Healthcare rule in action. Employers fear the potential for so-called "micro-unions." Although note that the unit in dispute in Macy's consisted of 41 employees, which is not exactly "micro."
- The White House recently enacted an Executive Order that requires federal contractors to disclose labor law violations that occurred during the previous three years and order agencies to have compliance advisers to oversee the selection of contractors. The contractors are not happy.
Hat Tip: Patrick Kavanagh
Saturday, August 9, 2014
A California federal district court judge has just ruled against the NCAA in the O'Bannon case. The bottom-line is that the judge held that the NCAA's prohibtion against paying collegiate athletes violated antitrust laws. This doesn't mean that schools must pay players; rather, it means that the NCAA can not stop schools from doing so. That said, the devil will be in the details, as the judge also held that the NCAA could cap such payments (although where the limits, if any, are is unclear). On the heels of the NCAA giving the big 5 conferences more autonomy, I suspect that those conferences will fairly quickly move ahead with additional payments to players, creating a divide with schools that have fewer financial resources (keeping in mind, of course, that the NCAA will likely appeal). I also think that this indirectly helps players who are arguing for employee status, whether under the NLRA or other statutes.
It's going to be an interesting time in collegiate athletics over the next few years.
Tuesday, August 5, 2014
Are unpaid interns protected by American employment law? The latest chapters in this ongoing story come to us from Wisconsin and New York.
In a July 22 decision, Masri v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court ruled that it was reasonable for Wisconsin’s Labor and Industry Review Commission to conclude that uncompensated interns are not entitled to the anti-retaliation protections of that State’s health care worker protection statute. The plaintiff was a doctoral student who worked as an unpaid intern at a medical college and, she alleged, was fired for reporting “clinical/ethical concerns.” The statute bans certain health care employers from taking “disciplinary action against . . . any person” who in good faith reports violations of state or federal law, and further defines “disciplinary action” as "any action taken with respect to an employee," but does not define the term “employee.” The Court discussed the text of the statute and related provisions, their purpose, and public policy arguments raised by both sides. The Court’s upshot: The statute applies only to employees, and “the ordinary meaning of ‘employee’ is someone who works for compensation or tangible benefits.”
Meanwhile, also on July 22, New York’s Governor signed into law a bill that amends New York’s employment-discrimination statute to expressly cover unpaid interns. Back in October 2013, a federal district court, in Wang v. Phoenix Satellite Television, Inc., No. 13 Civ. 218 (S.D.N.Y. Oct. 3, 2013), had dismissed an unpaid intern’s sexual harassment claim under that statute. That claim required her to be an “employee.” Although she had argued that, though unpaid, she was still an “employee” under the statute. The district judge concluded, however, that remuneration was a necessary condition for an employment relationship.
The newly-amended New York statute—now in effect—defines a new category of worker—an “intern”—and then separately declares “unlawful employment practices” with respect to interns that parallel the “unlawful employment practices” already identified by the statute. This drafting strategy slightly differs from Oregon’s law, Or. Stat. § 659A.350. Passed last year, Oregon’s law similarly defines “intern” but provides that an intern “is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under” certain specified employment protections in Oregon’s code.
Two Ohio State researchers, David Jacobs and Lindsey Meyers, have a study that suggests that declining union density has contributed to increasing income inequality more than previously believed. From an OSU press release:
According to Jacobs, other research has shown that firms with unionized employees have diminished differences in pay – such that the gap in the earnings of the highest-paid worker and the lowest-paid workers was reduced in firms organized by unions.
“Unions were also the most effective political advocates forthe less affluent before Congress, the president and other elected officials,”Jacobs said. “They ended up helping less prosperous families even if they weren’t union members.”
The researchers appeared to have controlled for most factors that could possibly contribute to income inequality--some of which were, of course, factors. But they find that unionism was still quite significant. Probably not too surprising for many readers (heck, even with low union density rates, there's still a significant union wage premium), but it's useful to have that message spread more broadly.
Hat Tip: Thomas Cochrane