Friday, April 22, 2016
Many of us in the labor and employment law community have been following the pending class-action litigation against Uber on the issue of whether its drivers are employees or independent contractors. Widespread news reports now indicate that this litigation has been settled in California and Massachusetts for $100 million. The settlement will still allow Uber to classify its workers as independent contractors. Though a massive settlement, Uber has been valued at over $60 billion, so the company should be able to easily handle the costs. It is difficult to project what the long-term impact of the settlement will be, but it is probably safe to say that it will only lead to increased litigation in the on-demand economy. From the Chicago Tribune:
"The agreement calls for Uber to pay as much as $100 million to drivers in California and Massachusetts and allows them to solicit tips from riders, but keeps them classified as contract workers instead of formal employees . . . Uber will initially pay $84 million to the drivers, with another $16 million contingent on the ride-share service going public and its valuation continuing to grow, according to the company's statement. A quarter of the payout will go toward attorney fees"
Much has already been written in this area including how to define independent contractors and employees in the technology sector, as well as how to aggregate these claims. Hopefully additional scholarship in this area will help the courts and litigants to better interpret the terminology in these gig sector cases.
Thursday, April 21, 2016
image from eeoc.gov
For those of us teaching courses in ADR/Employment, an interesting case comes out of Mississippi between the EEOC and Halliburton. The case, EEOC v. Halliburton Energy Service, Inc. and Boots & Coots, LLC d/b/a/ Boots and Coots Services, Civil Action No. 3:16-cv-00233-CWR-FKB (S.D. Miss.), alleges a violation of a mediated agreement between the parties. The original discrimination charge, which was settled by the parties, involved allegations of disability discrimination. From the government's press release:
"According to EEOC's suit, Halliburton entered into a mediation settlement agreement with EEOC and the applicant on Feb. 4, 2014, resolving a disability discrimination charge against the company. Among other relief provided, Halliburton promised to rehire the applicant into a position subject to successful employment screening. Despite the applicant's compliance with the terms of the settlement agreement, Halliburton has since failed to hire him for any position. EEOC contends that Halliburton's actions constitute breach of the settlement agreement. Further, such alleged conduct violates Title I of the Americans with Disabilities Act of 1990 (ADA)."
This case will be an interesting one to follow, and the allegations can be instructive on the requirements for following mediated agreements. As we are all well aware, many discrimination claims are settled and very few actually make it to trial.
Friday, April 15, 2016
Meanwhile, back in North Carolina, there is still no private right of action for employment discrimination under North Carolina law—except now, North Carolina Governor Pat McCrory says he wants to “restore” it. There is, however, a third way.
By now, you’ve heard the story: On a single day (March 23), the North Carolina House and Senate passed, and the Governor signed, HB2 into law. Many have blasted HB2’s bathroom provisions as motivated by prejudice against transgender people and as unconstitutional, too. HB2 also preempts local anti-discrimination ordinances, including those that had covered sexual orientation and gender identity, as well as local wage and hour laws.
But as a few quickly noticed, HB2 had also supplanted existing law affording a private right of action to enforce the North Carolina Equal Employment Practices Act (EEPA). Before HB2, EEPA had declared:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
As originally passed in 1977, EEPA had declared such a “public policy” but afforded no real enforcement mechanism. Years later, however, some judges began letting plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy. Not everyone was happy with this. For example, Cohen (1995, p. 55) complained that, by letting plaintiffs use the tort of wrongful discharge to enforce EEPA, judges had changed EEPA “from a toothless legislative compromise into an apparently limitless source of employment discrimination claims”—something the legislators that originally passed EEPA in 1977 wouldn’t have wanted.
Then came HB2, which supplanted the existing legal grounds for private tort suits to enforce EEPA by adding this to EEPA itself:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.
So, now to our latest episode, in which Governor McCrory issues an Executive Order No. 93, dated April 12, 2016, which includes this statement: “I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.” And from the Governor’s accompanying video statement: “I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.” Who put HB2’s no-civil-action sentence in there in the first place? The Governor didn’t say, and no one else is talking—for now, that’s an unsolved mystery.
What will North Carolina’s legislators do now? Repeal HB2’s no-civil-action sentence? Do nothing? There is a third way. Amend HB2’s no-civil-action sentence like this:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no any person may bring any civil action based upon the public policy expressed herein.
Instead of just restoring the law to pre-HB2 days, now—almost forty years after North Carolina passed EEPA as a “toothless legislative compromise”— maybe it’s finally time for EEPA to get some teeth of its own.
Wednesday, April 13, 2016
Our own, Joe Seiner, has a new Employment Discrimination textbook now out, which is definitely worth looking into. According to promotion materials, the book, Employment Discrimination: Procedure, Principles, and Practice:
This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.
Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way. Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.
Thanks to Jonathan Harkavy for alerting us of a recent Fourth Circuit decision, Gentry v. East West Partners Club, that will likely be of interest to many of us. The case addresses a number of employment issues – – including causation in jury instructions, how to define disability, and the question of damages in an employment case. It is thus instructive on a number of different workplace issues, and is worth reviewing if you practice or write in these areas.
Thanks to Leora Eisenstadt (Temple) for sending along an interesting Boston Globe article which discusses a new Uber/Lyft type company -- Chariots for Women -- that has a launch date set for next week. The company would assure passengers that a female driver would always be behind the wheel. This raises obvious discrimination questions under both federal and state law. Of course, for purposes of Title VII, coverage will apply only if the drivers were seen as employees – a question which remains both controversial and complex. Feel free to weigh in below with any comments on whether such a service can be viable under the law.
Tuesday, April 12, 2016
Today marks Equal Pay Day -- the day on which women's pay catches up to what men were paid in the previous year. There are a number of different articles on the topic, and one at CNN highlights several challenges faced by pay issues. And, as we addressed recently, the EEOC has proposed controversial changes to the EEO-1 data form collection process which would include the disclosure of certain information on worker pay for larger employers. Between debates over minimum wage and salary discrimination, wage issues continue to be hot topics both on and off the political battlefield.
Friday, April 8, 2016
As technology becomes increasingly less expensive, employers are beginning to ponder some of the potential benefits of having workers use body cameras while on the job. As we are all well aware, there is already substantial debate as to whether police officers and other law enforcement officials should wear such devices. The debate is now extending beyond that sector into a number of other areas of the workforce. Most notably, there is now a question as to whether teachers, doctors, and nurses should be required to use body cameras. An interesting Op-Ed in the LA Times takes on this question. From the piece:
“Currently, parents who insist their children are innocent or are being excessively punished for minor offenses have no evidence. . . Make teachers wear body cameras, and parents would see and hear exactly what the teacher heard and saw. An overreaction? Keep in mind, a growing body of evidence shows that school punishments do long-term damage.”
The entire issue seems a bit Orwellian, but at the same time, the relatively low cost of body cameras may seem quite attractive to a number of employers trying to limit their liability in other areas. The obvious privacy questions abound, and there are likely to be a host of other issues raised by the increased use of these technologies.
Tuesday, April 5, 2016
I had the pleasure of seeing Ted St. Antoine (Michigan - emeritus and former dean) speak at today's Ohio State Journal on Dispute Resolution's Schwartz Lecture on Dispute Resolution. His topic was Labor and Employment Arbitration Today: A Midlife Crisis or a New Golden Age? OSU Dean Alan Michaels gave an eloquent and heartfelt introduction in which he aptly praised Ted for mentoring and nurturing several generations of labor scholars and practitioners (and, true to form, Ted spent much of his lecture praising the empirical work of Alex Colvin).
I still have a handwritten note Ted sent me, when I was still in practice, congratulating me on my first publication. Ted is a terrific role model, and it was a special pleasure to see him again today.
As we are all aware, the EEOC's position on LGBT discrimination has been evolving in recent months. The agency recently posted a helpful summary on its website regarding LGBT worker protections, which is available here. The summary includes hyperlinks to a wealth of valuable information including federal sector law, private sector developments, and training and outreach.
Friday, April 1, 2016
In what is shaping up to be a fascinating case, five high-profile members of the U.S. Women’s Soccer team have filed a charge of discrimination with the EEOC pursuant to the Equal Pay Act. The female players allege that they receive about four times less than the male players, despite having had greater success on the field and generating substantial revenues. Both the men’s and women’s team players have the same employer – – the U.S. Soccer Federation. From an article in the Washington Post:
“The pay disparities exist even though the U.S. women have been successful not only on the field, but also at the ticket booth and in terms of television ratings. The team’s 5-2 win over Japan in last year’s World Cup final was the second-most-watched soccer match in U.S. television history, with 25.4 million viewers. . . the biggest audience for a U.S. men’s game was 18.2 million for a USA-Portugal World Cup match in 2014.”
Pay discrimination continues to be a high profile issue, and one that is frequently in the news. We will follow this charge closely and see how the EEOC handles this claim.
Thursday, March 31, 2016
image from Treasury.gov
A recent casting call for the off-Broadway production of Hamilton has set off a wave of controversy. The advertisement for the show's national tour initially specified a call for performers who were "non-white men and women." The show's producer is quoted in a story over at The USA Today:
"'It is essential to the storytelling of Hamilton that the principal roles — which were written for non-white characters (excepting King George) — be performed by non-white actors,' producer Jeffrey Seller explained in a statement. 'Hamilton depicts the birth of our nation in a singular way,' he stressed, adding, that 'we will continue to cast the show with the same multicultural diversity that we have employed thus far.'"
For those of us teaching employment discrimination this semester, this story provides a platform to discuss racial discrimination, the BFOQ defense (which of course cannot be used for race or color), and the First Amendment. It will be interesting to follow these issues in the context of this extremely popular show.
Work or jail? That implicit government threat is the focus of a recent 23-page report published by the UCLA Labor Center: Get to Work or Go To Jail: Workplace Rights Under Threat. The report identifies three sources of this implicit threat: (1) when, as a condition of their release, probationers and parolees must seek and maintain employment; (2) when courts demand that people work when they can't pay criminal fines, fees, and restitution; and (3) when courts order parents that are too poor to pay child support to get and keep a job, or else face jail.
Using existing datasets, the report also estimates the number of people in the US and California subject to these implicit threats. For example, the report concludes that "[b]lack and Latino inmates comprise . . . a shocking two-thirds of those incarcerated solely for violating conditions related to work (employment or payment of debt)." (p. 5, citing the report authors’ own calculations from the 2002 Survey of Inmates in Local Jails and the 2004 Survey of Inmates in State and Federal Correctional Facilities).
H/t: Noah Zatz, one of the report's authors.
Wednesday, March 30, 2016
Our own Joe Seiner has just uploaded an essay to SSRN: Tailoring Class Actions to the On-Demand Economy, 77 Ohio State L.J. __ (2017) (forthcoming). From the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important—yet unexplored— area of the law.
As Joe writes in the abstract, classification issues in the on-demand or platform economy are a very hot topic right now, and this essay on systemic claims is a valuable contribution to the broader issues.
Tuesday, March 29, 2016
Leora Eisenstadt and Jeffrey Boles (both of Temple University - Fox School of Business) have just posted on SSRN their recent article, Intent and Liability in Employment Discrimination, which is forthcoming in the American Business Law Journal (ABLJ). The article is available here:
The abstract is below:
The Silicon Valley Ellen Pao trial brought to the forefront once again the changing nature of discrimination in the workplace with its focus on a culture of bias and the prevalence of unconscious discriminatory behavior. This case is only the most recent high-profile example. There is an emerging consensus among scholars that the concept of “intent” in disparate treatment employment discrimination should be broadened to encapsulate more flexible notions including implicit bias, negligent discrimination, and structural discrimination. These scholars argue convincingly that psychological research demonstrates that implicit bias and reliance on ingrained stereotypes is, to some extent, natural to human decision-making processes. As a result, bias in the workplace operates at both an overt, knowing level but also beneath the surface and, at times, without the conscious knowledge of the decision-makers themselves.
However, despite extensive discussion of implicit bias in the legal literature, few, if any, scholars have considered alterations to liability and compensation schemes as a result of the broader meanings of intent. This article proposes looking to criminal law as a practical and theoretical model for an amendment to Title VII that would include gradations of intent with concomitant gradations in liability. The Model Penal Code presents an orderly and well-thought-out approach to intent, or mens rea, and the gradations of intent that support a finding of guilt. In addition, theory and policy supporting criminal law’s linkage of intent and liability are remarkably analogous to Title VII’s goal of elimination of discrimination. As a result, this article contends that a careful and measured consideration of criminal law’s approach to liability is instructive.
Drawing on the extensive literature on flexible intent and criminal law theories of retributivism and consequentialism, this article proposes a statutory expansion of the definition of disparate treatment discrimination under Title VII with an adjustment in the liability regime based on the level of employer intent. We contend that a clear link between intent level and damages constitutes an attractive balancing of employer and employee needs that should spur this crucial statutory change. A statutory amendment to Title VII that both broadens the meaning of “intent” for disparate treatment claims but also limits liability based on the level of intent offers a compromise position that expands the application of discrimination law to meet changing workplace norms and a theoretically and emotionally satisfying means of accomplishing that change.
The Supreme Court issued its opinion in Friedrich's today and, as is no surprise following Justice Scalia's death, the Court was 4-4. This means that Abood and its approval of public-sector union fees under the federal constitution lives on. On the other hand, I'd expect challenges to pop up under state constitutions, which will obviously be dependent on a given state's prior decisions and court politics.
The full text of the decision is: "The judgment is affirmed by an equally divided Court."
Wednesday, March 23, 2016
Gillian Lester (Columbia) writes to tell us of the upcoming conference Philosophical Foundations of Labour Law, which will be held June 16-17, 2016 at the UCL Faculty of Laws, Senate House, Malet Street, London WC1. This conference brings together leading labour law scholars (and, I'm excited to say, a terrific mix of established and emerging scholars!) from around the world to explore the broad themes of:
A complete list of speakers is provided after the page break. The size of the event is strictly limited to 65 people to encourage discussion. Registration is required. Doctoral students with an interest in this topic are particularly welcome to attend. Doctoral students should write to the conference administrator Lisa Penfold to learn about available discounts. The conference has been convened by Dr. Virginia Mantouvalou (UCL), Professor Hugh Collins (Oxford), and Professor Gillian Lester (Columbia Law School).
Friend-of-blog Caroline Mala Corbin (Miami) has a fascinating discussion over at the American Constitution Society blog that was posted ahead of today's arguments in Zubik v. Burwell. Her discussion highlights the importance of (and arguments in) the ACS issue brief, which is available in full here. In her post, Professor Corbin concludes that
"the religiously affiliated nonprofits argue that their religion bars them from providing contraception. The existing contraception regulations ensure that they do not have to. Moreover, the contraception regime easily passes strict scrutiny. Thus, the nonprofits’ RFRA claim fails twice over."
-- Joe Seiner
Tuesday, March 22, 2016
Today, the US Supreme Court decided Tyson Foods v. Bouaphakeo, an appeal from a jury verdict for plaintiffs seeking overtime pay via a Fair Labor Standards Act (FLSA) collective action and a Rule 23 class action under Iowa’s wage payment statute—which the parties assumed required the same proof as for the FLSA claim. The defendant: their employer, Tyson Foods, who hadn’t paid them for time they spent donning and doffing safety gear at a pork processing plant.
There’s a lot going on in this Court opinion—both on the page and in between the lines. I’ll focus here just on how the Tyson Court treated a decades-old FLSA precedent: Anderson v. Mt. Clemens Pottery Co, 328 U.S. 680 (1946).
In Mt. Clemens, the Court had declared this: In FLSA cases, if plaintiff-employees can’t prove how much time they spent doing under-compensated work because their defendant-employer failed to keep FLSA-required records, so long as the employee has produced enough evidence that he did the under-compensated work and the “amount or extent” of that work “as a matter of just and reasonable inference,” the employer must produce evidence of “the precise amount of work performed” or evidence to “negative the reasonableness of the inference to be drawn from the employee’s evidence.”
Fast forward decades later to Tyson Foods. The plaintiffs there faced this problem: For FLSA overtime claims, a plaintiff-employee has to prove that he or she had worked for over 40 hours in a work week. But, because Tyson hadn’t kept proper records of employee donning and doffing time, the plaintiffs had no individualized work time records to prove their total hours worked. So, at trial, the plaintiffs submitted “representative evidence”—key among which was study in which an expert observed a sample of 744 employees, counted donning and doffing times for each, and calculated averages by the sampled employees’ departments (cut and retrim departments: 18 minutes; kill department: 21.25 minutes). With these averages, along with individual work time records that Tyson had kept, another expert concluded that all but 212 employees in the Rule 23 certified class worked more than 40 hours, and thus might be owed overtime pay. Tyson argued against this evidence to the jury, but the jury awarded about $2.9 million in unpaid wages.
In a post-verdict motion, and later on appeal, Tyson argued for decertifying the Rule 23 class and for dismantling the FLSA collective action: Given the inadequacy of plaintiffs’ “representative evidence,” some class or collective action members would be eligible for overtime pay even though they hadn’t worked over 40 hours in a work week---or as Tyson put it, even though they hadn’t been actually injured.
On this point, the plaintiffs pressed Mt. Clemens, and the Court agreed that, given Mt. Clemens, the plaintiff’s use of its sample of donning-and-doffing times was “a permissible method of proving classwide liability.” Had each Rule 23 class member sued individually, he or she could have relied on that sample, provided that it “could have sustained a reasonable jury finding as to hours worked in each employee’s individual action.” Here, as in Mt. Clemens, the plaintiffs submitted their donning-and-doffing sample
to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [that sample] to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. . . . [I]n this case each employee worked in the same facility, did similar work, and was paid under the same policy. As Mt. Clemens confirms, under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them.
In so reasoning, the Court added that representative evidence can’t support “just and reasonable” inferences under Mt. Clemens if that evidence is “statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked.” (Tyson hadn’t challenged the admissibility of plaintiffs’ expert opinions under Daubert.)
In dissent (and joined by Justice Alito), Justice Thomas describes Mt. Clemens as a precedent on “shaky foundations” that the Court fundamentally misread and has now effectively expanded. Although Mt. Clemens applies only if the defendant-employer fails to keep FLSA-required records of compensable work time, for Justice Thomas,
that limitation is illusory. FLSA cases often involve allegations that a particular activity is uncompensated work . . . The majority thus puts employers to an untenable choice. They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.
Justice Thomas’ reading of Mt. Clemens is worth reading in full—as arguments implicitly rejected by the Court majority or just as the path not taken.
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.