Thursday, July 17, 2014
Anyhow, a mildly amusing Case of the Disappearing Opinion. The case, Foglia v. Renal Ventures Mgmt., LLC, is to be found at 2014 U.S. App. LEXIS 10549. It's not an uninteresting decision in any event -- adopting the "nuanced" branch of the circuit split on pleading a False Claims Act case -- but that's not the point of the present posting.
The opinion is dated June 6, 2014 but has a Lexis stop sign to the left, suggesting a BIG PROBLEM. Clicking the "subsequent history" link takes one to an order, dated June 10th, stating:
It is hereby ORDERED that the Opinion filed on June 6, 2014 is vacated and an amended opinion shall be filed simultaneously with this Order. The revised opinion does not alter the June 6, 2014 judgment.
So far so good, except that there is no opinion dated June 10th and filed simultaneously with the order.
With the June 6th opinion vacated, and nothing substituted, Foglia, which was intended to be a precedential opinion, has in effect disappeared from Lexis.
Not to worry. Further sleuthing (entailing the assistance of two colleagues and two research assistants) determined that the June 6th opinion posted on Lexis was in fact the amended opinion referred to in the June 10th order. So all's well but for the stop sign.
A call to Lexis, hopefully, set the wheels in motion to correct that problem. Apparently, Westlaw simply posted the amended opinion, so there was no confusion there.
If you're wondering, the reason for the amendment was the misidentification of one of the circuits in the split -- a single word change.
There are a few lessons to be learned from this:
1. Researchers should be wary of stop signs.
2. Courts maybe shoudn't simply swap out opinions -- any problem would have been obviated if the amended opinion had been dated June 10th.
3. Law professors have an awful lot of time on their hands in the summer.
Thanks to my colleagues Ed Hartnett and Michael Risinger and my RAs John Dumnich and Angela Raleigh for their help.
UPDATE, July 18: I received a very gracious call today from Lexis but the bottom line is that the red stop sign remains in place. Even though the caller acknowledged that the opinion that one is cautioned to beware of is actually an uncriticized, precedential opinion. The effect will be to mislead anyone researching on Lexis, but apparently that's OK. This has gone from being mildly amusing to being frustrating.
Wednesday, July 16, 2014
image from eeoc.gov
Earlier this week, the EEOC issued updated guidance on pregnancy discrimination and other related issues. The EEOC also issued a fact sheet and a question and answer document that are further related to these issues. From the EEOC's press release:
"Among other issues, the guidance discusses:
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
- Lactation as a covered pregnancy-related medical condition;
- The circumstances under which employers may have to provide light duty for pregnant workers;
- Issues related to leave for pregnancy and for medical conditions related to pregnancy;
- The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
- When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers."
The guidance is definitely worth taking the time to read, as it updates the Commission's position in several important areas. It will be interesting to see if the guidance holds up in light of the Supreme Court's pending decision in Young v. United Parcel Service.
-- Joe Seiner
In the most recent issue of The New Yorker, Louis Menand has this essay on how “sex” got added to the list of protected characteristics in Title VII of the Civil Rights Act of 1964. The standard story: The “sex” amendment was an unsuccessful attempt to defeat the entire bill—a failed poison pill. In contrast, Menand emphasizes how that amendment was partly the result of vigorous efforts by women activists—in particular, Alice Paul of the National Women’s Party—and some female House representatives, especially Michigan Democrat Martha Griffiths.
Menand is openly borrowing here from scholars, including Carl Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, “ Journal of Southern History 49(1) (1983): 37-56, and Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States (Rowan & Littlefield, 2008) (chapter 12). On the origins and durability of the “failed poison pill” story, see Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409-440. In the courts, a fleeting recent reference to this literature appears in Nelson v. James H. Knight DDS, 834 N.W.2d 64, 74 n.8 (Iowa 2013) (Cady, J., concurring specially).
Monday, July 14, 2014
image from: www.ca8.uscourts.gov
The US Court of Appeals for the Eighth Circuit recently issued an interesting opinion which concluded that a physics professor at the University of South Dakota could be discharged for violating the university’s “civility code.” After sending an inflammatory e-mail to his department head, the professor was discharged under a policy which provided that,
“Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.”
The plaintiff in the case sued the university for his discharge alleging, in part, that the policy was unconstitutionally vague. The District Court agreed with the plaintiff, but the Eighth Circuit reversed, holding that:
“While the district court focused exclusively on the policy’s use of the term “civility,” the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.”
This decision presents a number of fascinating issues. The intersection between the First Amendment and civility-type codes is one that often comes up in the employment context. It is particularly interesting to see the issue arise in the academic setting.
Many of our readers are familiar with Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002), involving an unsuccessful challenge to a police force physical fitness test on the ground that it had a disparate impact on women. The Third Circuit ultimately held that, despite its impact, the test was justified by business necessity.
Contrast that with a recent district court faced with another challenge to a law enforcement physical fitness test, this time by a male against the FBI, and plaintiff won: Bauer v. Holder held that the FBI’s physical fitness test with different minimum requirements for men and women violates Title VII by discriminating on the basis of sex.
Jay Bauer, a 35-year-old man at the time he entered into the FBI New Agent Trainee class, took the challenged test seven times. Each time, save for once, Bauer failed the push-up segment, which required men to do a minimum of thirty push-ups while women had a minimum of fourteen. On his seventh test and after twenty-two weeks of training, Bauer completed only twenty-nine push-ups, leading to his forced resignation as a Special Agent (although he continued to be employed by the Bureau as an analyst).
The FBI implemented its physical fitness test in 2004 as a mandatory requirement for all New Agent Trainees (NATs). It set the minimum standards by using a pilot study of 260 male and 64 female NATs, finding the average of the scores for both men and women, and then setting the passing score for each tested skill at one standard deviation below the average performance for each sex. In order to pass the overall test, an NAT must achieve the minimum standard on each part.
While this structure had its own complication, critical to the court’s holding was that each segment had different minimum standards for men and women NATs. In all categories, men had to outperform women in absolute terms. Thus, passing males had to perform three more sit-ups and sixteen more push-ups, complete a 300 meter run 12.5 seconds faster, and complete a 1.5 mile run one minute and seventeen seconds faster than women.
For the court, this facial difference went a long way towards dictating its result. Since the physical fitness test facially treated men and women differently it was prima facie unlawful under well-established precedents, notably City of Los Angeles Dep't of Water & Power v. Manhart, and Auto Workers v. Johnson Controls. It’s true that physiological differences exist between the sexes, but that was true in both Supreme Court cases (longer life expectancy for women in Manhart and female reproductive role in Johnson Controls). And not only did the governing precedents suggest that such differences didn't affect the initial discrimination question but 42 U.S.C. § 2000e–2(l), also specifically prohibits employers from discriminating when conditioning employment on the passage of a test.
For the court, there was one potential out for the FBI: proving a BFOQ for the differential standards, which would allow otherwise-prohibited discrimination. The FBI attempted to do so by justifying the physical fitness test (in particular, the push-up portion) in terms of the skills required for Special Agents; however, it failed to sufficiently link push-ups to any duty actually performed by such agents. The court was especially concerned by the fact that the fitness requirements applied only in training new Special Agents; there was no testing of Special Agents throughout their employment, thus the court did not believe that passage was actually essential to successful performance of job tasks. This argument had not cut a lot of mustard in Lanning as applied to the business necessity defense, but it seemed dispositive in Bauer.
That seemed to leave the FBI with two choices:
The Bureau could lower the minimum standard for both sexes to that of the standard for women, probably the legally safest option. In light of physiological differences between men and women, that would result in less physically fit men passing the test. Assuming no job relation between physical fitness and being an FBI Special Agent, that’s not necessarily problematic, but if there are only a certain number of positions available, the net result might be fewer women Special Agents simply because there are more men in the pool.
Second, the Bureau could raise the minimum standard for both sexes to one that is higher than the current minimum standard for women. By definition, this would create a disparate impact on women and, while Lanning upheld the test used there as a business necessity, the Bauer court's analysis suggests that the FBI might not be so lucky.
Is there a third alternative? Could the Bureau revise the physical skills tested test in order to reflect the actual job-related skills needed to be a Special Agent while retaining different standards for men and women? The court recognized that possibility since it did not purport to be striking down all gender-normed physical fitness tests: a possibly permissible test would more closely test the applicant’s actual ability to do the job. For example, instead of merely testing upper-body strength by doing push-ups, the test would focus on actual Special Agent tasks such as “carrying objects weighing a certain number of pounds for a certain period of time.” But how could a fitness test that holds women to a lesser physical fitness standard than men can truly measure the “job-related skills and aptitudes” unless the FBI were to assign male and female agents to different duties – and try to also justify that assignment as a BFOQ?
In any event, the case raises a number of interesting doctrinal issues. First, the BFOQ defense seems an awkward fit. As the court recognized, it’s typically been used to entirely exclude one sex (or workers over a certain age) from certain positions. Further, the standard formulation doesn’t fit this scenario very well: either (1) “all or substantially all” members of one sex can’t perform as well as members of the other sex or (2) members of one sex as a group are less able to do the job as well as members of the other sex as a group and it is highly impractical to determine which of them can). On the other hand, there doesn't seem to be any logical reason why the BFOQ would require total exclusion, and, if the standards in fact produced better Special Agents, it would seem odd to rule out the statutory defense. Still, so conceived, BFOQ sounds a lot like business necessity, and Title VII explicitly rules out business necessity as a defense to disparate treatment. 42 USC 2000e-2(k)(2).
And then there's 2000e-2(l). While it's true that the FBI “use[d] differential cutoff scores . . . on the basis of . . . sex,” a strict reading of the language might suggest that the prohibition (which continues "or otherwise alter the results of, employment related tests") reaches only alterations of scores, rather than differential scores to begin with. Ricci v. DeStefano, however, seemed to take a broad view of the provision.
But speaking of Ricci, what about justifying the test as the FBI's effort to avoid disparate impact against women? Sachin Pandya pointed out to me the possible application of the "strong basis in evidence" justification for the Bureau's rules. Given the FBI's own studies, setting the passing score above the female minimum would have had such an impact, and, given the court's analysis, there was no business necessity -- or, certainly, a strong basis in evidence that none existed.
Pretty interesting stuff, and it'll be especially interesting to see what the Bureau does.
Thanks to to Sachin Pandya for his thoughts on some of these issues and to Angela R Raleigh, Seton Hall class of ’16 for her assistance on this.
Saturday, July 12, 2014
There was an interesting piece at the Business Insider today about the hiring practices at Google. The article discusses how the technology giant is moving away from its practice of asking difficult and bizarre questions of potential applicants, such as “how many golf balls can fit in a school bus?” or “how many gas stations are there in Manhattan?” From the article:
"'We found that brainteasers are a complete waste of time,'" Laszlo Bock, Google's senior vice president of people operations told The New York Times last year . . . ‘They don’t predict anything. They serve primarily to make the interviewer feel smart.’"
The article goes on to address the type of hiring practices now employed at the company. Hiring practices have long been an important aspect of labor and employment law, and it is interesting to see the struggles one major player in the corporate world has experienced in trying to attract qualified people to fill its ranks.
Friday, July 11, 2014
The White House announced today that it intends to nominate Sharon Block to the NLRB, probably to replace Nancy Schiffer, whose appointment expires on December 12, 2014. Much of the news will play up the fact that she was one of the Noel Canning recess appointees, which the Supreme Court help to be unconstitutional last week. Given that timing, one might interpret this announcment as a White House attempt to show its displeasure with the decision and Republican opposition that led to the initital recess appointments.
Not to be lost in this political story line is that Block really knows her stuff and already served admirably, albeit in vain, on the NLRB (full disclosure: I used to work with her on the NLRB). I think, despite that personal connection, that it's fair to say that she got a bit of a raw deal in the nuclear option aftermath when the Senate Democrats and White House threw Republicans a bone by refusing to renominate her (and RIchard Griffin, although he was soon nominated as GC). So, it's nice to see her finally back to the NLRB, assuming her nomination is acted on before any potential changes in the Senate majority.
One final thought. As the above link shows, much of the supposed criticism of Block was that she stayed on the Board while her nomination was being challenged. I've written before that I think it's silly for a political appointee to resign in a situation like that. However, I'll also mention that it's even more silly when you consider what the D.C. Circuit held and the conservative four Justices would've held in Noel Canning--that virtually all recess appointments over the last 150 years were unconstitutional. Until conservatives, who supported that view, start demanding that all the Republican judges and other recess appointees over the years should've never accepted their appointments and should give back the salaries they received, I'm not going to take their objections to Block seriously.
Hat Tip: Patrick Kavanagh
The UAW just announced that it will continue to organize VW's Chattanooga plant by opening up a nearby office. This makes perfect sense. Given VW's support for the union and the interest from a large number of VW employees (note that although the UAW lost the election, they still got remarkably close given the geography and political pressure against them), maintaining a presence in the area could be helpful. This also allows the union to assist employees, thereby possibly showing holdouts how the union might benefit them.
One side note: many articles, including the one linked above, still have headlines stating that the union office will be inside the VW plant. I saw this in some early, pre-announcement stories, which made me scratch my head due to the potential 8(a)(2) problems. It was no surprise that these early reports were not accurate, but beware of headlines that seem to be picking up these early, erroneous rumors.
Thursday, July 10, 2014
Image from EEOC.gov
As those that follow employment discrimination closely know, discrimination issues often come in waves. Pregnancy discrimination claims appear to be grabbing substantial attention recently. Of particular note, the Supreme Court granted cert in a case (Young v. United Parcel Service) that will help define the PDA and Title VII. The case will address the accommodation requirements that must be given to pregnant workers in certain circumstances.
The EEOC also continues to enforce pregnancy discrimination claims. In a press release issued today, the agency announced a settlement that it reached in a case alleging pregnancy discrimination. The case alleged that an employer had terminated a worker “immediately after she advised her store manager of her pregnancy.” From the press release:
“In addition to the $15,000 monetary relief, the three-year consent decree settling the lawsuit prohibits [the employer ] from future discriminat[ion] against employees on the basis of sex or pregnancy. The decree requires that [the employer] maintain an anti-discrimination policy and train employees on rights under Title VII. The decree also requires the company to post a notice to all employees about protections under Title VII that provides the EEOC's contact information.”
As pregnancy discrimination continues to make headlines, it will be interesting to follow the Supreme Court's ruling which will help define this issue under Title VII.
-- Joe Seiner
Tuesday, July 8, 2014
image from www.ca9.uscourts.gov
In an interesting decision out of the Ninth Circuit Court of Appeals, the appellate court recently ruled that a city and county's policy of prohibiting male guards from overseeing female inmates in the jail system could run afoul of Title VII. The lower court had concluded that the policy was a valid BFOQ and entered summary judgment for the employer. The Ninth Circuit reversed, reasoning that -- at least for purposes of summary judgment -- the county had failed to establish sex as a BFOQ. The court further concluded that there may be alternative practices with less discriminatory impact that could still serve the employer's goals in the case, including background checks and psychological tests. From the court's decision:
"the County has not met its burden of showing that there is no genuine dispute over whether excluding men from supervisory positions in female housing units is a legitimate proxy for requiring that deputies in those positions not pose a threat to the safety of female inmates...
the County is also unable to show that there is no genuine dispute as to whether it is impossible or highly impractical to insure by individual testing that a male deputy does not have a propensity to perpetrate sexual misconduct."
This case certainly calls to mind the facts of the Supreme Court's decision in Dothard v. Rawlinson, which is often distinguished on the basis of the "jungle like atmosphere" involved in that case. This is a very interesting decision and certainly worth a quick read…
-- Joe Seiner
Susan Bisom-Rapp (Thomas Jefferson) writes to let us know that the Marco Biagi Foundation has put out calls for papers for the 2015 annual conference on labor relations March 19-20, 2015, in Modena Italy.
There is a general call for papers Download MARCO BIAGI CONFERENCE MARCH 2015, and a call for papers from newer scholars Download Call YSW 2015. The topic of the conference is Employment Relations and Transformation of the Enterprise in the Global Economy, and for the general call for papers, the foundation invites papers focusing on one of four tracks:
Organisational structure of the enterprise and the fragmentation of the employer’s role and responsibilities
Employment relations in ‘special’ enterprises
Small and medium-sized enterprises in a global context: relations, interests, protection
Collective solidarity and the representation of interests in the context of recent developments in regulatory provisions and the dematerialisation of the enterprise
Participants who intend to contribute a paper to one of the conference sessions should submit an abstract (maximum 1500 words) no later than 31 October 2014, and fill in the form that will be made available from September 2014 on the Marco Biagi Foundation website: www.fmb.unimore.it
Abstracts should include an indication of the related track. However, the Academic Advisory Board reserves the right to assign papers to the track they consider to be most appropriate.
Abstracts and papers may be submitted either in English or in Italian.
In order to be included in one of the conference sessions, full papers need to be submitted to the conference organisers no later than 13 February 2015.
Download the call for papers or visit the website for more details.
The Young Scholars Workshop will take place on the afternoon of March 18.
Abstracts should describe research projects that fall within the field of Labour relations from one of the following disciplinary perspectives: law, industrial relations, labour economics, organization theory, human resources management. Special consideration will be given to those topics and original research projects that allow for an interdisciplinary dialogue involving two or more of these disciplines, and that show a specific concern for international and/or comparative issues.
Scholars willing to participate in the workshop should submit a 1,000 word abstract along with a resume, including educational and academic career, publications, and contact information, no later than 31 October 2014.
Please submit the abstract electronically (in English). The preferred format for submission is Microsoft Word.
Abstracts should include the paper title and a bibliography, and should make specific reference to disciplinary field, academic affiliation of the author, research question(s), methodology and main results achieved.
The working language of the workshop will be English, some authors may be selected for a poster presentation instead, and some conference expenses will be covered for one author of papers and posters accepted. See the call for more details.
Monday, July 7, 2014
AALS Section on Labor Relations and Employment Law
"Emotions at Work: The Employment Relationship During an Age of Anxiety"
2015 AALS Annual Meeting
January 2-5, 2015
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.
The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns?
A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.
The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.
Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at email@example.com by September 1, 2014. Authors of selected abstracts will be notified before October 1, 2014.
Looks like a great opportunity and a good program.
First, despite SB 1818, more defense lawyers will inquire in litigation as to whether the plaintiff-employee is actually an “unauthorized alien” under 8 U.S.C. § 1324a(a)(2), because proving that is a necessary condition for the Salas preemption defense. To be sure, SB 1818 provides that in “proceedings or discovery” to enforce “state labor, employment, civil rights, and employee housing laws,” no one may inquire about a person’s immigration status except to show “by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.” Cal. Gov’t Code § 7285(b). One question is whether this “clear and convincing” standard affects how easily a defendant may prove the Salas preemption defense.
Second, more lawyers will now fight about when an employer “know[s]” the plaintiff’s unauthorized status under 8 U.S.C. § 1324a(a)(2). Current law holds employers not only to actual knowledge but also constructive knowledge of that status, that is, “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 C.F.R. § 274a.1(l)(1); see Aramark Facility Services v. Services Employees International Union, 530 F.3d 817, 825-32 (9th Cir. 2008). An employer is typically keen to deny that it knew of a worker’s unauthorized status (to avoid IRCA employer sanctions). After Salas, though, an employer has a reason to show that it did constructively know the plaintiff’s unauthorized status, so long as after it knew, the plaintiff was no longer in its employ. In trying to prove this, however, the employer’s attorney should worry about inadvertently letting in, or opposing counsel who respond by bringing in, evidence tending to prove employer IRCA violations---for example, that the employer constructively knew of the plaintiff’s unauthorized status some time before the plaintiff stopped working for it, or that the employer constructively knew of the unauthorized status of some of its other employees that it nonetheless continued to employ.
Third, in some cases, it may be hard to pursue both the Salas preemption defense and the McKennon defense for the same worker misconduct. Although a defendant-employer can also raise a McKennon defense based on a plaintiff-worker’s use of false documents to conceal his actual immigration status, to succeed on the a McKennon defense, the employer must prove that it would have fired the plaintiff for concealing that status. To defeat that would-have-fired showing, plaintiffs’ lawyers may seek evidence of what and when the defendant-employer knew about the immigration status of its other workers and how that employer responded once it knew. After all, they’ll argue, the employer’s past practices with undocumented workers count as relevant, because such practices tend to show what the employer wouldhave done to the plaintiff. Or they’ll argue that since SB 1818 precludes inquiries into anyone’s immigration status except where necessary to “comply with federal immigration law,” it precludes such inquiries in support of a FEHA after-acquired-evidence defense or an unclean-hands defense—both creatures of State law. In contrast, for the Salas preemption defense, the “post-discovery period” seems to start when the duty under section 1324a(a)(2) triggers, even if the employer’s past practices suggests that it in fact would have ignored section 1324a(a)(2) and continued to employ the plaintiff.
Fourth, many lawyers will be puzzled by the Salas Court’s application of the “impossibility” prong of conflict preemption. The Court reasoned that it is impossible for an employer to obey section 1324a(a)(2)—by not continuing to employ a worker it knows to be unauthorized---and obey a judgment requiring it to pay the plaintiff an amount that in part covers lost wages for the time the plaintiff would have been employed after the employer learned that the plaintiff was an unauthorized alien. The puzzle is this: Even if Mr. Salasis an “unauthorized alien,” if on remand Mr. Salas wins his FEHA claims and the court orders Sierra to pay him all lost wages, he would not thereby be employed by Sierra at that time, so section 1324a(a)(2) simply would not apply at the time Sierra’s legal duty to pay the award arises. So long as the judgment does not actually order Sierra to reinstate Salas, it is not impossible to obey ICRA and a court order to pay Salas all the lost wages otherwise owed to him under FEHA. In ruling otherwise, perhaps the Court mistook counterfactual employment—how long Sierra would have employed Salas if it had not violated FEHA—for actualemployment—how long Sierra really did employ Sierra.
To be sure, it’s easy to imagine an alternative ground for precluding lost wages for the “post-discovery” period: Sierra proves that if it had not violated FEHA, it wouldhave hired Salas; it still would have learned that Salas used another man’s Social Security number; and (if this amounts to constructive knowledge of unauthorized status under IRCA) it still would have fired Salas to obey section 1324a(a)(2). If so, a State law award of full lost pay would actually over-compensate Salas—it assumes that Sierra would have paid Salas some wages during a period in which Sierra would not have employed Salas at all. That’s not federal conflict-preemption analysis. That’s just the idea under State law that, in general, an award for lost pay must be limited only to the pay the plaintiff would have received if, all else equal, the defendant had not committed the wrongful act. Whatever its merits—including whether it requires inquiries into immigration status that SB 1818 prohibits, see Cal. Gov’t Code § 7285(b)—this alternative reasoning would have been less favorable to Sierra. According to the Salas opinion, when Salas asserted his Fifth Amendment privilege in his FEHA lawsuit, that “led” Sierra to investigate further, after which it found the apparent Social Security number mismatch. If that causal connection is undisputed, then absent the FEHA violation, Sierra would not have investigated and discovered the mismatch, and thus would not have even arguably known of any unauthorized status.
These are all guesses, of course. Thanks to the blog for letting me share them and thanks in advance for your comments.
Thursday, July 3, 2014
Post-Hobby Lobby, Court Says Religious Non-Profit Need Not Notify Insurer that It Objects to Coverage
The Court has taken a number of actions already since issuing its decision in Hobby Lobby that suggest future directions on the issue in that case. First, the Court acted on six cert. petitions. As Lyle Denniston notes on ScotusBlog, the court remanded three cases to the courts of appeal, and denied cert in three. All six cases involved employers who objected to coverage for all forms of contraception, as well as sterilization for women, and pregnancy counselling. In the three won by employers, the Court denied cert. In the three won by the government, the Court ordered the courts of appeal to reconsider in light of the Hobby Lobby decision.
And today, the Court issued an additional order. In Wheaton College v. Burwell, the Court granted an injunction to this religious educational institution against enforcement of the women's preventive care provisions objected to, absolving the College from filling out the government's form and delivering notice to its insurer. The government's brief in opposition is here.
Particularly notable was a dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan. In it, the three justices note that the Court had indicated in Hobby Lobby that the accommodation which required an employer to notify its insurer that it objected to certain coverage was less restrictive, implying that it would satisfy RFRA. As Justice Sotomoayor noted,
After expressly relying on the availability of thereligious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might . . . , retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
The whole dissent is worth a read.
Cesar Rosado (Chicago-Kent) writes to let us know that he's writing an amicus brief in the NLRB's Northwestern case. In case you've been in a cave for the year, that's the case in which a Regional Director concluded that collegiate football players on scholarship at Northwestern were employees under the NLRA and could seek to unionize.
In a story which manages to offend two different protected groups, a 16-year-old gay employee of a South Dakota fast food taco restaurant alleges that he we was forced to wear a name tag referring to himself as “Gaytard”. The worker maintains that he feared for his job if he declined to put on the offensive badge. From the story at Huffingtonpost, the worker stated:
“ ‘I put it on because I didn't want to upset [the manager] and I felt that if I did do anything to upset him, it would cause me to lose my job because he'd be looking for ways to fire me,’ . . . He said he tried to remove the tag during the day but that the manager forced him to wear it in front of customers for his shift. . . A manager at the restaurant has denied the allegation.”
The facts of employment discrimination cases never cease to amaze me, even in our current day and age. If true, these allegations are both offensive and incredible.
-- Joe Seiner
There is an interesting new case out of the Eighth Circuit: EEOC v. Audrain Health Care, Inc., 2014 WL 2922212, (June 30, 2014). In that case, a male nurse inquired about transferring to a new nursing position in the operating room (“OR”). According to the evidence as recited by the Eighth Circuit, a female clinical coordinator told the male nurse that she wanted to fill the position with a woman to have the right mix of patients to staff based on gender. She then continued, “I hate to discriminate against you because you're a man, but the doctors want more female nurses in the OR.” Id. at 2. The clinical coordinator disputed saying she would “hate to discriminate against you,” but admitted that she said that she wanted a woman to fill the position because she wanted “to fill the position with a woman to have the right mix of patients to staff.” Id. The district court granted summary judgment in favor of the employer and the Eighth Circuit affirmed.
The case is interesting on two fronts. First, the district court found that the EEOC failed to present any direct evidence of discrimination. This is strange because the worker presented evidence where a decisionmaker directly commented that a protected trait was related to the job action. The Eighth Circuit refused to consider whether or not the statement constituted direct evidence.
Instead, the Eighth Circuit held that the male nurse did not suffer an adverse action because the nurse did not formally apply for the position after his conversation with the clinical coordinator. The EEOC argued that the nurse was not required to apply for the position, because the conversation with the clinical coordinator showed that his application would be futile. The Eighth Circuit interpreted the Teamsters decision as only allowing an applicant to allege futility if there was evidence of “gross and pervasive discrimination.” The Eighth Circuit’s opinion would require an employee to apply for a position, even the employee is told by the relevant decisionmaker that she will be denied the position.
These facts do supply a great question about whether sex was a BFOQ, but the district court’s ruling on the direct evidence question and the appellate court’s holding related to adverse action seem contrary to existing law.
Wednesday, July 2, 2014
We are pleased to feature a two-part posting by Professor Sachin Pandya of the University of Connecticut. Although Sachin's bio is here, most readers of Workplace Prof will know him from an active publication record across a wide range of employment law topics. This post consider the effect of a recent California Supreme Court decisiondeals on a variety of remedies questions at the intersection of state antidiscrimination law and federal immigration law .
Last week, the California Supreme Court decided Salas v. Sierra Chemical. In Salas, that Court declared that the Immigration Reform and Control Act of 1986 (IRCA) preempted California employment law remedies to a limited extent. It also concluded that the doctrines of after-acquired-evidence and unclean-hands do not preclude liability, but do restrict otherwise available remedies, under the California Fair Employment and Housing Act (FEHA). Here, I’ll describe the opinion. Later, I’ll offer some guesses on how Salas will affect employment litigation.
The facts: In 2007, plaintiff Vicente Salas sued his former employer, Sierra Chemical, under FEHA. He alleged that (1) when employed there, Sierra had failed to reasonably accommodate his disability—multiple back injuries suffered when he had previously worked for Sierra—and (2) after a layoff, Sierra had not rehired Salas because he was disabled and to retaliate for his filing of a workers compensation claim. After the trial date was set, in one of his motions in limine, Salas stated that he would testify at trial and assert his Fifth Amendment privilege against self-incrimination if asked about his immigration status. And he asked for permission to “assert the privilege outside the jury’s presence and that the court and counsel not comment at trial on his assertion of the privilege.”
Thereafter, Sierra sought summary judgment on the ground that Salas had used another man’s Social Security number and card to get his past job with Sierra. This misconduct, Sierra argued, defeated FEHA liability, because of the after-acquired-evidence and unclean hands doctrines. In support, Sierra submitted a North Carolina man’s declaration that it was his Social Security number that Salas had submitted when he had applied for a job with Sierra. Sierra’s president also declared that Sierra had “a long-standing policy” of not hiring people that federal law would not let work in the US and of immediately firing any employee discovered to have provided false information or documents to establish work eligibility in the US. In opposing the motion, Salas submitted, among other things, his declaration that Sierra’s production manager, “after learning that several employees had supplied incorrect Social Security numbers, assured them they would not be terminated as long as the company’s president was satisfied with their work.” The trial court ultimately granted summary judgment, and the California Court of Appeals affirmed.
The California Supreme Court reversed and remanded. First, the Court considered a federal preemption challenge to California Senate Bill No. 1818 (SB 1818). Enacted in 2002 in the wake of Hoffman Plastics, SB 1818 added, among other provisions, this one: “All protections, rights and remedies available under state law . . . are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Gov't Code § 7285(a) (emphasis added).
The Salas Court found conflict preemption on the ground that it was “impossible” for an employer to comply with SB 1818 and IRCA, albeit only to the extent that SB 1818 allows for an award for lost wages for any time after the employer knew of the employee’s unauthorized immigration status (the “post-discovery” period). Under IRCA, once an employer “know[s]” that its employee is an “unauthorized alien”—ineligible to work in the US—that employer may not “continue to employ” that employee. 8 U.S.C. § 1324a(a)(2); 8 C.F.R. § 274a.3. That prohibition, the Salas Court reasoned, “directly conflicts” with “any state law award that compensates an unauthorized alien worker for loss of employment during the post-discovery period . . . . Such an award would impose liability on the employer for not performing an act (continuing to employ a worker known to be an unauthorized alien) expressly prohibited by federal law.”
In contrast, the Court concluded, federal immigration law does not prohibit an employer from paying an employee wages for employment “wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status.” Accordingly, to the extent SB 1818 “allow[s] lost wages” for the pre-discovery period---the time the employer did not yet know of the employee’s unauthorized status— it is “not impossible” to comply with immigration law and SB 1818.
Moreover, the Salas Court rejected conflict-preemption on the ground that allowing lost wages for the pre-discovery period would unduly frustrate IRCA’s purposes. SB 1818 at best only “minimal[ly]” encourages unauthorized aliens to seek a job in the US or use false documents to get a job. “[T]he typical unauthorized alien wage earner is not familiar with the state law remedies available for unlawful termination and . . . job seekers rarely contemplate being terminated in violation of the law.” And even if they did, they would know that by pursuing such State law remedies, “they would risk discovery of their unauthorized status,” and with that, prosecution and deportation. If undocumented workers could not recover even pre-discovery lost wages, the Salas Court reasoned, employers in effect would enjoy immunity when they illegally discriminate, retaliate, or commit illegal wage-and-hour practices against undocumented workers, thereby undermining IRCA’s goal of “eliminating employers’ economic incentives to hire such workers.” (In a separate “concurring and dissenting” opinion, Justice Baxter disagreed with this ruling, relying on Hoffman Plastics to conclude that if Salas is an unauthorized alien, IRCA preempts any State law award to compensate him for the loss of employment.)
Second, the Court declared that the after-acquired-evidence defense from McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), “applies with equal force to” FEHA claims. McKennon was a lawsuit under the federal Age Discrimination in Employment Act (ADEA) for an illegal firing. The defendant-employer discovered---during a deposition—that the plaintiff had stolen confidential company documents while she was on the job. The US Supreme Court held that this misconduct did not defeat her ADEA claim, but that Court also read the ADEA to require taking “due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.” Accordingly, it declared, if the defendant-employer proves that the plaintiff-employee’s misconduct was so severe that “the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge,” then the plaintiff cannot get certain remedies in its ADEA suit: reinstatement and front pay, as well as any back pay otherwise owed for the time after the employer in fact discovered the employee’s misconduct. The trial judge could then further adjust the back pay award based on “extraordinary equitable circumstances that affect the legitimate interests of either party.”
However incomplete and incoherent its reasoning, many appellate courts have read McKennon into other employment discrimination statutes. In Salas, the California Supreme Court joined this herd by reading McKennon’s defense into FEHA. This, in turn, required a remand. The McKennon defense demands that Sierra show that, had it rehired Salas, it would have subsequently fired him once Sierra learned that “his name did not match the Social Security number he had provided.” This was a triable issue of fact, the Court concluded, because some evidence suggested that Sierra “deliberately chose to look the other way when put on notice of [other] employees’ unauthorized status,” and thus would have likely done the same for Salas.
Similarly, the Court concluded that although unclean hands doctrine was not a “complete defense” to Salas’s FEHA claims, “equitable considerations may guide the court in fashioning relief in cases involving a legislatively expressed public policy.” In support, the Court referred to cases applying equitable principles “to reduce ordinary tort damages imposed for violation of antidiscrimination laws.” It did not explain how, if at all, these equitable considerations differ from the McKennon defense.
Coming up next—four guesses about the world after Salas.
Tuesday, July 1, 2014
The 2014 Marco Biagi Award
The winner of the 2014 Marco Biagi Award is Lilach Lurie (Bar-Ilan University, Israel) for a paper entitled Do Unions Promote Gender Equality? In this paper, the author conducts a careful and extensive empirical study of Israeli collective bargaining agreements and concludes (in line with studies in other countries) that existing “family-friendly” policies are more attributable to the political process than to collective bargaining, and that trade unions are still surprisingly willing to tolerate collective agreement provisions which embody illegal gender discrimination.
Another paper was selected by the judges for special commendation: Corporate Social Responsibility as Work Law? A Critical Assessment in the Light of the Principle of Human Dignity by Isabelle Martin (University of Montreal, Canada). With an eye to the difficulties that labour law faces today in carrying out its traditional functions of furthering mínimum standards and giving employees a collective voice, the author offers a novel and theoretically grounded consideration of whether corporate social responsibility (CSR) is well suited to take on any of these functions. She concludes that CSR does more to protect employee rights which are easily measured and already relatively well protected by law, in contrast to those (such as freedom of association) which are harder to measure.
The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.
This year’s winners were chosen by an academic jury composed of Bernard Adell (Canada), Jesús Cruz Villalón (Spain), and Frank Hendrickx (Belgium). The winners were chosen from twenty papers which were submitted for the competition.
Prior winners of the Marco Biagi Award were:
2013 Aline Van Bever (University of Leuven, Belgium), The Fiduciary Nature of the Employment Relationship
2012 Diego Marcelo Ledesma Iturbide (Buenos Aires University, Argentina), Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica
Specially Noted ̶ Apoorva Sharma (National Law University, India), Towards an Effective Definition of Forced Labor
2011 Beryl Ter Haar (Universiteit Leiden, the Netherlands), Attila Kun (Károli Gáspár University, Hungary) & Manuel Antonio Garcia-Muñoz Alhambra (University of Castilla-La Mancha, Spain), Soft On The Inside; Hard For the Outside.An Analysis of the Legal Nature of New Forms of International Labour Law
Specially Noted ̶ Mimi Zou (Oxford University, Great Britain), Labour Relations With “Chinese Characteristics”? Chinese Labour Law at an Historic Crossroad
2010 Virginie Yanpelda, (Université de Douala, Cameroun), Travail décent et diversité des rapports de travail
Specially Noted ̶ Marco Peruzzi (University of Verona, Italy), Autonomy in the European social dialogue.
2009 Orsola Razzolini (Bocconi University, Italy), The Need to Go Beyond the Contract: “Economic” and “Bureaucratic” Dependence in Personal Work Relations
CAS (courtesy of Steve Willborn)