Tuesday, March 22, 2016
Alison Morantz (Stanford) has just posted on SSRN her article Rejecting the Grand Bargain: What Happens When Large Companies Opt Out of Workers’ Compensation? Here's the abstract:
The “grand bargain” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault occupational injury insurance, was one of the great tort reforms of the Twentieth Century. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which many firms (“nonsubscribers”) have chosen to do so: Texas. This study examines the impact of Texas nonsubscription on fifteen large, multistate nonsubscribers that provided their Texas employees with customized occupational injury insurance benefits (“private plans”) in lieu of workers’ compensation coverage between 1998 and 2010. As economic theory would lead one to expect, nonsubscription generated considerable cost savings. My preferred estimates suggest that costs per worker hour fell by about 44 percent. These savings were driven by a drop in the frequency of more serious claims involving replacement of lost wages, and by a decline in costs per claim. Both medical and wage-replacement costs fell substantially. Although the decline in wage-replacement costs was larger in percentage terms than the drop in medical costs, the latter was equally financially consequential since medical costs comprise a larger share of total costs. The second stage, which compares the effect of nonsubscription across different types of injuries, finds that non-traumatic injury claims were more responsive to nonsubscription than traumatic ones. In part, this disparity reflects the fact that private plans categorically exclude some non-traumatic injuries from the scope of coverage. Yet even those non-traumatic injuries that were not excluded from coverage declined more than traumatic injuries, consistent with aggressive claim screening by employers and/or a decline in over-claiming and over-utilization by employees in the nonsubscription environment. The third stage examines the effect of nonsubscription on severe, traumatic injuries, which are generally the least susceptible to reporting bias and moral hazard. The sizable and significant decline in such injuries is consistent with an improvement in real safety, although it could also be explained by aggressive claim screening. The final stage of the study probes whether four ubiquitous features of private plans – non-coverage of permanent partial disabilities, categorical exclusion of many diseases and some non-traumatic injuries, capped benefits, and lack of chiropractic care – explain the observed trends. Surprisingly, these features account for little of the estimated cost savings. Although many study participants describe limited provider choice and 24-hour reporting windows as major cost drivers, data limitations preclude me from identifying their respective impacts. Overall, my findings suggest an urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social welfare state into an optional program that exists alongside privately-provided forms of occupational injury insurance.
Monday, March 21, 2016
March Madness is upon us, and many of our fellow friends and colleagues are participating in the "madness" at varying levels. Some fill out office pools, others sneak out to watch the games, and some stream the action live on their computers or phones. All told, this workplace diversion is costing employers approximately four billion dollars annually, according to a study discussed at Forbes.com. According to the study, the unprecedented access to games provided to workers under current technology has lead to increased losses for employers. It is interesting to see efforts to quantify the workplace costs of the NCAA tournament, but are there any benefits as well? I can think of a few, but feel free to hypothesize in the comments below or to discuss the impact of March Madness in the workplace, as we wait for the Sweet Sixteen games to begin in a few days...
-- Joe Seiner
Saturday, March 19, 2016
Laura Cooper (Minnesota) writes to tell us:
Labor and employment law professors and their students should take note of the new rules for the 2016 American Bar Association Section of Labor and Employment Law and The College of Labor and Employment Lawyers Annual Law Student Writing Competition. The competition has doubled its award for the first-prize essay to $3000. The prize also, as before, brings with it the opportunity of publication in the ABA Journal of Labor & Employment Law that has tens of thousands of practicing attorneys as subscribers. Another change in the rules permits essays to be as long as thirty-five pages. Students may find it easier to prepare their spring semester seminar papers in the competition’s format now that the submission deadline has been set for June 15, 2016, well after the end of final exams. See the complete competition rules here.
Image from eeoc.gov
The U.S. Equal Employment Opportunity Commission has issued a Notice of Proposed Rulemaking outlining the obligations of federal employers to take affirmative action with respect to individuals with disabilities. The public can submit comments on the rule through April 25, 2016. From the EEOC's press release outlining the proposed rule:
"The proposed rule reaffirms the federal government's commitment to being a model employer of people with disabilities. It would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities. Targeted disabilities are those that the government has, for several decades, placed a special emphasis on in hiring because they pose the greatest barriers to employment. The goals would apply at both higher and lower levels of federal employment. Hiring efforts would be further improved through focused recruitment efforts and simplified access to disability hiring programs and services.
In addition to setting numerical goals and requiring enhanced efforts to hire individuals with disabilities, the proposed rule would require agencies to provide personal assistance services to employees who, because of a disability, need these services to help with activities such as eating and using the restroom while at work."
The proposed rule will not impact private or state entities, and is targeted only at federal employers. We will follow the proposed rule to see if any changes are implemented in the final version.
Thursday, March 17, 2016
Image from www.dol.gov
The OSH Act has often come under intense criticism as some have argued that there is a lack of enforcement or any meaningful penalties available in the statute. A recent reporting requirement now highlights just how many workplace accidents are occurring. Beginning Jan. 1 of last year, employers must report to OSHA any severe injuries that occur in the workplace within 24 hours, which include "hospitalization, amputation or loss of an eye". Per the press release on the DOL's website,
"In the first full year of the program, employers reported 10,388 severe injuries, including 7,636 hospitalizations and 2,644 amputations. In a majority of those cases, OSHA responded by working with the employer to identify and eliminate hazards, rather than conducting a worksite inspection."
Wednesday, March 16, 2016
The Washington Post has an interesting article about a small insurance company owner who requires all of his employees to carry a gun at the office. The owner notes security as the reason for the requirement. From the article:
"[The Business Owner] now requires [employees] to get a concealed-carry permit, footing the $65 bill, and undergo training. He issues a Taurus revolver known as “The Judge” to each of them. The firearm holds five rounds, .410 shells that cast a spray of pellets like a shotgun."
Safety in the workplace continues to be an important and high-profile issue, and this article demonstrates that employers may have different methods of attempting to achieve this goal.
An interesting article at CNNMoney discusses the difficulties older workers have finding new employment after losing their jobs. A study discussed in the article reveals the troubling fact that even workers in their mid-forties are now facing heavy challenges finding new employment. From the article:
"Anti-age discrimination laws don't necessarily help when we need them most, during economic downturns. In the U.S., strict state laws had no effect on unemployment for the aged and even might have been detrimental during the Great Recession, according to a Federal Reserve study released this spring."
Age discrimination continues to be a challenge faced by many workers in today's economy, and an issue that will continue to receive close attention in the future.
-- Joe Seiner
Friday, March 11, 2016
The ALJ hearing over McDonald's alleged status as a joint-employer under the NLRA is currently underway. The Washington Post's Lydia DePillis is covering the hearing and has a good description of opening statements. Although I understand why parties, especially McDonald's, is initially casting this as a broad attack at the franchise model, to me the more interesting aspect of the case is to see how the NLRB will apply it's new Browning-Ferris joint-employer standard. As is often the case, it's all in the details, and that's where I expect the this case to be illuminating.
Wednesday, March 9, 2016
David Yamada (Suffolk) has just posted on SSRN Intellectual Activism and the Practice of Public Interest Law, to be published in the Southern California Journal of Law and Social Justice. Though not strictly a labor/employment piece, it's built around the work David has been doing on workplace bullying and on unpaid internships, and will be useful to anyone working in law reform. Here's the abstract:
How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?
I explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession.
This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.
The article closes with an Appendix containing a short annotated bibliography of books related to intellectual activism, public intellectualism, and the uses of scholarship to advance social change.
Sunday, March 6, 2016
Since I tend to be foolishly optimistic, I've been wondering for a while (without actually putting in the effort to research the point) whether there's a silver lining to the current tendency to shuttle discrimination complaints to arbitration -- the possible inapplicability of statutory time limitations on bringing suits. Of course, Title VII doesn't have a traditional statute of limitations at all (i.e., a period measured from the accrual of the cause of action to the filing of a complaint in court), but rather has two separate temporal requirements that must be satisfied -- one (usually 300 days) for filing a charge with the EEOC and a second (90 days) for filing suit after receipt of a right to sue letter.
Under one paradigm (arbitrator subs in for the court to decide a case as a court would) the answer would be yes, but under another (arbitration is an alternative dispute resolution system subject to its own rules) the answer might be no. Plus, not only is the statutory language concerning pursuit of claims framed in terms of filing a "civil action" (which was not enough for the Court to find arbitration superseded) but arguably this whole structure is designed to filter disputes through a judicial process. That might mean that the procedural requirements are simply inapposite when arbitration is the dispute resolution procedure, which in turn might mean no statute of limitations at all for arbitration (the arbitrator could apply something like laches), and maybe no requirement at all of filing a charge with the EEOC.
Obviously, any movement along these lines would be employee-friendly, although it wouldn't address some of the serious problems of mandatory arbitration, including the typical clauses that foreclosing class claims in both court and arbitration.
The question came to mind in light of a case decided by the Second Circuit last August. The decision, Anthony v. Affiliated Computer Services, is less than definitive both because it is nonprecedential and because it arose in the context of an attack on an arbitration award. The arbitrator had found the plaintiff's claim under various antidiscrimination statutes barred by his failure to file for arbitration within 90 days of receipt of the EEOC's right to sue letter, and the Second Circuit upheld the award as not exceeding the arbitrator's authority. Less than a ringing endorsement of the decision and suggestive of the possibility that the court might also have upheld an award based on exactly the opposite reasoning.
But Anthony does raise the issue of what the right answer should be for arbitrators who are faced with this question.
Of course, silver linings in nature are transitory, and, even if arbitrators were to hold statutory procedures inapplicable in arbitration, employers are likely to add their own limitations periods to arbitration awards and, given the Supreme Court's sweeping readings of the FAA, those are likely to be upheld under current law.
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.
Wednesday, March 2, 2016
On behalf of the ILO, please note that two (2) positions in the field of labour law and international labour law were recently advertised. One is in Geneva, and the other in Santiago de Chile. The closing date for applications is 31 March. Further details can be found here: https://erecruit.ilo.org/public/
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.
Lyft -- an on-demand transportation company comparable to Uber -- has reached a settlement in a class-action case that alleged worker misclassification. The suit, which maintained that Lyft drivers were improperly treated as independent contractors rather than employees, now has a proposed settlement that would pay workers $12.25 million, as well as give them certain protections from termination. From an article about the settlement at CNN/Money:
"Lyft's $12.25 million settlement fund will benefit the more than 100,000 California Lyft drivers who have driven at least once for the company. Their exact payout will depend on how many hours they worked for Lyft."
The settlement still needs to be approved by the court, but it serves as a cautionary red flag to other employers that oversee workers in the on-demand economy. Class-action cases have already been filed against many of these companies.
Saturday, February 27, 2016
This paper, for a symposium on constitutional law and inequality, proposes a new model of labor law termed "libertarian corporatism." Under this model, the state would strongly encourage or even mandate collective bargaining at the occupational or sectoral level (as corporatism requires), while leaving workers near-unfettered choice as to bargaining representatives, and removing certain core legal constraints on workers’ concerted action (as a principled libertarianism requires). This model may ensure both equality and employee choice better than our existing "Wagner Model." Libertarian corporatism may also be a promising power-dispersion strategy in other fields--for example, it could help resolve conflicts over the use of user data by tech firms.
Thursday, February 25, 2016
An interesting article over at CNNMoney discusses interesting proposed legislation in France that would allow workers to ignore emails/texts/etc. that they receive after work. The proposal essentially gives workers a "right to disconnect" from their electronic devices when away from their place of business. From the article:
"The draft bill, originally leaked by French newspaper Le Parisien, is part of a wide range of labor reforms designed to make France a more competitive, business-friendly country, while still protecting workers' interests. . . French unions have long pushed for a "disconnect" rule, saying digital technologies have created an "explosion of undeclared labor" that is forcing employees to work well beyond 35 hours per week."
France has long been a fascinating country with which to take a comparative look at employment rules and regulations, and much has already been written in this area. We will follow this proposed legislation to see whether it is ultimately signed into law.
-- Joe Seiner
Wednesday, February 24, 2016
Congratulations to Christine O'Brien (Boston College-Management) for her extensive citation in a New York Times article about workplace profanity, bikini contests, social media, and Section 7 of the NLRA. Christine's article on point is I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases, 90 St. John's LL. Rev. ___ (forthcoming 2016). The NYT article is Fired for Cursing on the Job, Testing the Limits of Labor Law.
Rafaeol Gely (Missouri-Columbia) writes to announce the launch of ArbitrationInfo.com. Here's a description:
The Center for the Study of Dispute Resolution at the University of Missouri School of Law (CSDR) is delighted to announce the launching of ArbitrationInfo.com. In 2014, faculty at the CSDR and the National Academy of Arbitrators (NAA) began conversations about a possible collaboration on a website that would provide information about labor arbitration. Leadership of the NAA, founded in 1947 as a nonprofit honorary and professional organization of arbitrators in the United States and Canada, was concerned about the manner in which labor arbitration and the arbitration process were being portrayed in the media. With the expansion of the use of arbitration outside the labor area, particularly in consumer and employment disputes, negative descriptions of the process in the media had reached an alarming level. While some of the criticism in these other areas was, and continues to be justified, the NAA feared that such criticism could have a delegitimizing effect with regard to labor arbitration. Our initial conversations led us to believe that in part some of the press that arbitration was receiving was due to misunderstandings and misinformation about the different contexts in which arbitration was used and the various types of arbitration.
The website addresses these concerns by providing the public, professionals and the media with a neutral, noncommercial and comprehensive source of information about arbitration. It includes an Arbitration 101 page, which serves as a primer on the arbitration process. In addition, the site features a list of press contacts who are available to talk to members of the media about arbitration. The website is managed by an editorial board composed of members of the NAA and faculty at the CSDR. Students at the School of Law have the opportunity to develop content for and help maintain the website, in collaboration with distinguished members of the NAA. Unlike other arbitration-related websites, ArbitrationInfo.com doesn’t generate or funnel business to a particular arbitrator or an arbitration practice group.
Monday, February 22, 2016
Miriam Cherry (SLU) just posted on SSRN her article (forthcoming Comparative Labor Law & Policy Journal) Beyond Misclassification: The Digital Transformation of Work. Here's the abstract:
The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include the growth of automatic management and a move toward ever more precarious work. To the extent that technology can help us realize an increase in skilled knowledge work that is a positive goal. It is questionable, however, if present forms of crowdwork extend that framework. In fact, some forms of the new crowdwork seem to be a throwbacks to a Taylorist deskilling of the industrial process, but without the loyalty and job security. These results are not inevitable, but we need to pay attention to them if we hope to arrest the race to bottom in labor standards online.
Word from Joseph Mastrosimone of Washburn that the Washburn Law Journal, the Law School’s main journal, is seeking an employment law article for its Issue 3.
This is a fairly tight turn around and would be a good opportunity for someone with a substantial draft at or near completion and who's looking for getting in print much faster than is usual. The Journal would like the draft to be complete by the end of next month and it would be published in June 2016. So, a quick turn around on both ends.
Joe reports that the student editors at the Law Journal are top notch and are a pleasure to work with. Questions about this publishing opportunity and drafts can be directed to the Journal’s Articles Editor at: firstname.lastname@example.org.