Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.
Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA. Judge Leeson said “yes.” The opinion is at .
Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide). Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.
Saturday, May 20, 2017
Friday, May 19, 2017
There is a great article on age discrimination over at Forbes.com. The article discusses the litigation against RJ Reynolds and PriceWaterhouse Coopers. More interesting, however, is a discussion of a study of gender/age discrimination performed in the hiring context. From the article:
"based on a recent Federal Reserve Bank of San Francisco study[,] Researchers created realistic, but fictitious, resumés for young (aged 29 to 31), middle-aged (49 to 51), and older (64 to 66) job seekers and sent out more than 40,000 applications for over 13,000 low-skill positions in 12 cities. Older applicants, particularly older female applicants, were much less likely to be contacted for interviews — in some fields, as much as 47% less likely."
Discrimination studies performed in the hiring context are particularly useful as many of the variables can be controlled. There are a number of great other studies out there, but this one is interesting as it looks at the intersection between both age and gender. I definitely recommend taking a look at the article if you get the chance.
Thursday, May 18, 2017
Earlier this month, the US EEOC issued its digest on employment discrimination. The digest, a quarterly publication put together by the office of federal operations, is an excellent resource for both practitioners and academics. The current digest examines some interesting aspects of age discrimination law. From the press release:
"This edition (Fiscal Year 2017, Volume 2) features a special article entitled, "Age Discrimination: An Overview of the Law and Recent Commission Decisions." This comprehensive article discusses the analysis of age discrimination claims and recent case law - including U.S. Supreme Court decisions and Commission decisions.
"Unlawful age discrimination has no place in the federal sector workplace," said Carlton M. Hadden, director of the EEOC's Office of Federal Operations (OFO). 'It is anathema to the federal government's goal of being a model employer. Age-related employment decisions are often based on myths, fears and stereotypes about the talent and ability of older workers. This article is an excellent resource to help eliminate those false notions.'"
These types of free governmental resources provide excellent sources of information for those of us researching these issues.
-- Joe Seiner
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Tuesday, May 16, 2017
Kathy Stone has been awarded the 2017 LLRN Bob Hepple Award for Lifetime Achievement in Labour Law, along with Prof. Kazoo Sugeno from Japan. The presentation will take place at this summer LLRN meeting in Toronto. According to LLRN:
The goal of the Award is to acknowledge exceptional and longstanding contributions to labour law scholarship. Such recognition from the global community of labour law scholars, which the LLRN represents, is intended to be meaningful both for the Award recipients and for the community bestowing this honour. The members of the Award Nominations Committee this year were Takashi Araki, Hugh Collins, John Howe, Kerry Rittich, and Mia Ronnmar (those interested in the guidelines detailing the process can find them at the LLRN website).
The Awards will be presented at a ceremony during the upcoming LLRN3 conference in Toronto. In the meantime, warmest congratulations to Kathy and Kazuo for this well-deserved honour!
You can also see UCLA's announcement here.
Saturday, May 13, 2017
Job applicants with criminal records are much less likely than others to obtain legitimate employment, a problem that recent legislation, including Ban the Box, has attempted to address. The success of any remedial strategy depends on why hiring firms impose a hiring penalty and whether their concerns are founded on an accurate view of how ex-offenders behave on the job if hired. Little empirical evidence now exists to answer these questions. This paper attempts to fill this gap by examining firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes. Despite these differences, individuals with criminal records have an involuntary separation rate that is no higher than that of other employees and a voluntary separation rate that is much lower. Employees with a criminal record do have a slightly higher overall rate of discharge for misconduct than do employees without a record, although we find increased misconduct only for sales positions. We also find that firms that do not use information about criminal backgrounds seem to compensate by placing more weight on qualifications that are correlated with a criminal record, such as low educational attainment.
Friday, May 12, 2017
A recently evolving topic in the labor and employment field is the extent to which employers can fire workers for posts on Facebook. There really isn't that much litigation out there at this point on this important topic. However, a jury yesterday awarded a city of Charlotte, North Carolina employee $1.5 million in a case which touched on this issue.
In the matter, the city had purportedly fired the worker for Facebook comments it found inflammatory and disruptive. A jury, however, concluded that the termination was actually in retaliation for her safety complaints related to new office construction. It's a really interesting case, and you can read more about it in an article here in the Charlotte Observer.
-- Joe Seiner
Thursday, May 11, 2017
Reports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).
Readers may be interested in a new report from the Center for Progressive Reform: Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. An excerpt from the summary:
Workers and advocacy groups are turning to the states as possible avenues for successful reform, urging local prosecutors to pursue crimes involving worker fatalities and serious injuries under their states’ general criminal laws, as the Massachusetts prosecutor did in the case against Edmund Godin for involuntary manslaughter more than 30 years ago. To date, only a few prosecutors in a handful of states (e.g., California, Illinois, Massachusetts, Michigan, and New York) have actively pursued such cases, but those prosecutors have been remarkably successful. Such advocacy efforts suggest that criminal prosecutions are increasingly important for punishing and deterring employer neglect and malfeasance.
In 2014, Center for Progressive Reform Member Scholars and policy analysts published Winning Safer Workplaces: A Manual for State and Local Policy Reform, which discussed this reform effort, along with a series of workers’ rights campaigns beginning to take hold at the state and local level. Following up on the 2014 manual, this new manual offers more detailed assistance to advocates who want to enhance criminal prosecutions for crimes against workers.
The Annual meeting of the ABA International LEL Committee just wrapped up in Dublin. I was pleased to be joined here by Laura Cooper (Minnesota), Marley Weiss (Maryland), and Ben Sachs (Harvard). Anyone interested in becoming involved in this Committee can contact me or any of these folks. Topics covered the gamut of LEL law and practice, and included:
- Ireland: The Changing Labor and Employment Landscape on the Emerald Isle
- Brexit, Trump and Beyond: How the New Political Landscapes in the U.S. and U.K. Will Impact Workplace Law around the World
- With Trump Towering in the U.S., How Will Labor & Employment Laws and Standards Change at Home?
- With the U.K. Exiting the EU and Similar Movements Gaining Ground Elsewhere, How Will Labor and Employment Laws & Standards Change Abroad?
- Globalization’s Impact on Labor and Employment Law: How the Issue Is Shaping the Workplace
- Enforcing Responsible Business Conduct in a Changing Political Environment
- Where the Work Gets Done: The Changing Climate for Corporate Decision-making
- Anti-Immigration Efforts in the U.S., U.K. and E.U. and Their Impact on Labor & Employment Law and Practice
- Hot Cross-Border Issues
- Please Mind the Gap: A Cross-Border Comparison of New Laws and Initiatives to Equal Pay
- Company Relocations and Restructurings: More Brexit Implications for Multinationals and their Workforces
- The Legal and Other Challenges to the “Gig Economy” around the Globe: What's the Score?
- Industry Day: Exploring Key Global Labor and Employment Issues in Three Industry Groups
- Pharma and Health Care
- Energy and Infrastructure
Matthew Knepper (U.S. Bureau of Economic Analysis) has just posted on SSRN his article (forthcoming J. Labor Econ.) When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases. Here's the abstract of this important article, which quite literally takes research on implicit bias to a completely different level:
The number of workplace sex discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) approaches 25,000 annually. Do the subsequent judicial proceedings suffer from a discriminatory gender bias? Exploiting random assignment of federal district court judges to civil cases, I find that female plaintiffs filing workplace sex discrimination claims are substantially more likely to settle and win compensation whenever a female judge is assigned to the case. Additionally, female judges are 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.
Monday, May 8, 2017
Friends-of-blog Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, London) have posted on SSRN chapter 1 of their excellent new book, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge University Press, 2016). The book was published last October. Here is the abstract:
"Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labor force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender."
The book is available on the CUP website. This is a wonderful work that provides an important contribution to this evolving area of the law. Congratulations to Professors Bisom-Rapp and Sargeant on this impressive achievement!
Congratulations to Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) on the publication of their new book Unequal: How America’s Courts Undermine Discrimination Law (Oxford Univ. Press May 2017). Here's a description of this critical and timely book:
It is no secret that since the 1980s, American workers have lost power vis-à-vis employers. Along with the well-chronicled steep decline in private sector unionization, American workers alleging employment discrimination have fared increasingly poorly in the courts. In recent years, judges have dismissed scores of cases in which workers presented evidence that supervisors referred to them using racial or gender slurs. In one federal district court, judges dismissed more than 80 percent of the race discrimination cases filed over a year. And when juries return verdicts in favor of employees, judges often second guess those verdicts, finding ways to nullify the jury's verdict and rule in favor of the employer.
Most Americans assume that that an employee alleging workplace discrimination faces the same legal system as other litigants. After all, we do not usually think that legal rules vary depending upon the type of claim brought. As the employment law scholars Sandra A. Sperino and Suja A. Thomas show in Unequal, though, our assumptions are wrong. Over the course of the last half century, employment discrimination claims have come to operate in a fundamentally different legal system than other claims. It is in many respects a parallel universe, one in which the legal system systematically favors employers over employees. A host of procedural, evidentiary, and substantive mechanisms serve as barriers for employees, making it extremely difficult for them to access the courts. Moreover, these mechanisms make it fairly easy for judges to dismiss a case prior to trial. Americans are unaware of how the system operates partly because they think that race and gender discrimination are in the process of fading away. But such discrimination remains fairly common in the workplace, and workers now have little recourse to fight it legally. By tracing the modern history of employment discrimination, Sperino and Thomas provide an authoritative account of how our legal system evolved into an institution that is inherently biased against workers making rights claims.
Friday, May 5, 2017
William Baumol (econ.; NYU, Berkeley, Princeton) died yesterday. He informed the way many of us think about higher-ed financing and professional labor. I am re-posting here an excerpt from Dean Dad's tribute this morning:
Longtime readers know that I consider [Baumol's] signature contribution to economic thought -- Baumol’s Cost Disease -- one of the foundational truths of higher education. (The same could be said for health care and live entertainment.) He waited until late in life to commit the idea to book form; his book The Cost Disease should be required reading for anybody who presumes to comment or work on the economics of higher education....
His idea is generally downplayed or ignored in discussions of higher ed financing. That’s everyone’s loss. He never really solved the issue, but he gave us a map to understand it. That’s a genuine contribution. Well done, sir.
Baumol’s insight helps us understand, too, the broad-based assault on the professions. Why are “disruptors” so intent on undermining the educated professional middle class? Because until now, people in those jobs were able to demand significant salaries due to scarcity. If you’re the first to break that scarcity, whether through automation, disaggregation, or some other variation, you can hoover up those gains for yourself. Which is exactly what’s happening.
When you break the link between labor and production, it becomes much easier to hoard value in a few hands. We’re only beginning to grasp the implications of that.
Thursday, April 27, 2017
The Senate has just confirmed Alex Acosta as the Secretary of Labor. The vote was 60-38. As I've said before, I was pleased with this pick given the current administration. Now the rubber meets the road.
Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review. The abstract:
We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.
The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.
Check it out!
Wednesday, April 26, 2017
Call for Papers from Hunter College's National Center for Study of Collective Bargaining in Higher Education
The National Center for the Study of Collective Bargaining in Higher Education and the Professions, Hunter College, has announced its call for papers for its 45th annual conference April 15-17, 2018. You can see the full announcement here, but the short version is:
The announcement includes a wide variety of possible paper topics (so many I can't include them here), as well as proposals for interactive workshops, such as:
Unionization and Collective Bargaining for Administrators
Organizing and Negotiating for Academic Labor
Financial Data Analysis in Higher Education
Bargaining Over Health Insurance in Higher Education
Preparing, Presenting, and Defending at Arbitration
Effective Lobbying for Higher Education