Saturday, July 25, 2015
The California courts are currently struggling with how to fit workers in the modern economy within the traditional employee/independent contractor framework. These high profile cases include litigation against Uber and Lyft which has been well discussed in the popular media. One lesser known issue has emerged as well – – whether professional cheerleaders in the state should be classified as employees too. An article over at CNN Money looks at an action brought by the Oakland Raiders cheerleaders -- the Raiderettes -- which alleges that they were not paid minimum wage and failed to receive compensation for certain appearances. The California governor has stepped in on this issue and changed the law to assure that these workers are considered employees. From the article:
"A new law just signed by Gov. Jerry Brown requires professional sports teams to treat their cheerleaders like employees, paying them at least minimum wage and compensating them for all practices and appearances."
It is interesting to see how this issue continues to pervade wage and hour law. The Uber and Lyft cases may simply be the beginning of tremendous litigation in this area. We will continue to follow this issue closely.
-- Joe Seiner
Rutgers announced the death of Professor Alfred Blumrosen on Thursday. The announcement can be found here, and its title "Eminent Discrimination Expert," if anything understates his influence on employment discrimination law and scholarship. And much of his work was done in collaboration with his wife, Ruth, who predeceased him.
Younger members of the academy probably first encountered him in McDonnell Douglas, the first of several Supreme Court decisions to cite his pathbreaking article, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972).
I didn't know Al well personally but my suspicion is that he was very pleased in the left-handed compliment provided recently by Justice Thomas in his dissent in the Fair Housing Act case, Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 192 L.Ed.2d 514 (2015). Thomas's passionate rant described the disparate impact theory as "represent[ing] the triumph of an agency’s preferences over Congress’ enactment and of assumption over fact." And Thomas put the blame squarely at Blumrosen's door:
Alfred Blumrosen, one of the principal creators of disparate-impact liability at EEOC, rejected what he described as a “defeatist view of Title VII” that saw the statute as a “compromise” with a limited scope. .Blumrosen “felt that most of the problems confronting the EEOC could be solved by creative interpretation of Title VII which would be upheld by the courts, partly out of deference to the administrators.”
EEOC’s guidelines from those years are a case study in Blumrosen’s “creative interpretation.”
Al could, I think, as for no better epitaph!
Thursday, July 23, 2015
Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:
Assistant Professor / Associate Professor / Professor
The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: email@example.com).
Fall course prep is fast approaching. Edited versions of EEOC v. Abercrombie & Fitch and Young v. United Parcel Service are available here: https://sites.google.com/site/employdiscrim/2011-new-cases
Are ICE detainees employees, prisoners, both or neither? Does nominal pay for their work mean that the detainment facility is unjustly enriched by their labor? The District of Colorado addressed these questions in Menocal v. Geo Grp, Inc., a civil suit initiated by several current and former detainees at the Aurora Facility. Owned by GEO Group, defendant was arguably subject to state law because it isn’t ICE itself, but rather a private, for-profit enterprise under contract with ICE (yes, federal contractors have a defense from state law mandates, but the court found its requirements not satisfied).
The plaintiffs allege that they participate in a “Voluntary Work Program” that includes tasks such as laundry, maintenance of the on-site medical facility, cooking, and cleaning – all for $1 per day. In addition, six detainees are randomly selected every day, whether or not they are program participants, to clean the facility’s “pods” without compensation under threat of solitary confinement. Plaintiffs claim that the Voluntary Work Program violates the Colorado Minimum Wage Order (CMWO) and unjustly enriches the defendant; they also claim that the pod maintenance violates the Trafficking Victims Protection Act’s (TVPA) prohibition on forced labor.
The CMWO claim is an interesting window into immigration detainees as employees. The statute defines “employee” as “any person performing labor or services for the benefit of an employer in which the employer may command when, where and how much that labor or services shall be performed.” 7 Colo. Code Regs. 1103-1:2. While that definition seems to cover the activities at the Aurora Facility, the court found that the detainees, like prisoners, were not within the statute. It reasoned that the CMWO was enacted to raise the standard of living for workers and does not extend to prisoners who are in no need to provide for their own support. Since detainees, like prisoners, do not need to provide for food and shelter, the purposes of the CMWO are not served by finding them included in the definition of employee. However, this parallel ignores worker morale, and a host of other ways in which detainees and prisoners differ. This is a tricky issue, but on the whole not surprising given the historic treatment of prisoners. The decision reminded me of Noah Zatz’s fine article in Vanderbilt on how employment law works (or doesn’t) in nonmarket settings.
More surprising was the court’s treatment of plaintiff’s unjust enrichment claim: while not passing on it directly, Judge Kane found that the claim could not be duplicative of the CMWO claim – after all it had just dismissed that one!
But it was by no means clear how unjust enrichment analysis would proceed. Presumably, the argument would be that the fair market value of the work done exceeded the $1.00 paid. Fair enough, although a restitution claim might have to factor in the other benefits the detainees received. Or maybe not: food and shelter was due them regardless of whether they “volunteered” to work. So maybe the real question is the market value of the labor provided.
But restitution usually operates where contract fails, and the defendants are sure to argue that the plaintiffs agreed to the $1. It was, after all, labelled a "voluntary" program. Contract law does not require the terms of an agreement to be objectively fair, if both parties consent. Thus, the defendant should be entitled to reap the difference between the $1 compensation and the actual value of the plaintiff’s labor. Again – putting aside the CMWO.
This takes us back to how “voluntary” the defendant’s work program is, given the plaintiffs are incarcerated. Indeed, the concept of voluntary labor performed in a detention facility is unsettling, all the more so in an environment in which the defendant allegedly uses intimidation tactics to compel detainees to do other work. Maybe the unjust enrichment claim can’t be separated from the threats of solitary confinement for failure to perform pod cleaning.
And the court sustained the Trafficking Victims claim. The TVPA prohibits the intentional procurement of “labor or services of a person by…means of force, threats of force, physical restraint, or threats of physical restraint.” 18 U.S.C. § 1589(a). That sounds a lot like what was going on at Aurora. While the defendant argued that the TVPA’s primary purpose is to prevent human trafficking and was therefore inapplicable to this situation, the court sided with the plaintiffs; it found that the Act extends to any type of forced labor, and that the alleged involuntary servitude in this case qualifies for its protection.
Ultimately, the decision implies that while immigration detainees are not entitled to the minimum wage of the particular state in which they are detained, they may be able to recover the fair value of their services performed in those facilities. It may also empower them to seek protection under the TVPA, since that particularly vital claim was upheld.
There were a number of other legal questions that I haven’t explored, but this summary suggests that this case is worth keeping an eye on.
Hat tip to Alan Hyde for alerting me to this decision and to Samira Paydar for helping me with this post.
Monday, July 20, 2015
If you are planning to attend the annual Colloquium on Scholarship in Employment and Labor Law (COSELL), please remember to register. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience. It will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana.
More information and links to register are available at: http://www.law.indiana.edu/cosell. The registration deadline is August 1.
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
As researchers continue to fight about the Implicit Association Test (IAT) and implicit bias research generally, a recent ruling in an ADEA age discrimination lawsuit suggests how hard it might be to introduce implicit-bias research into discrimination litigation. In Karlo v. Pittsburgh Glass Works LLC, No. No. 2:10–cv–1283, 2015 WL 3966852 (W.D. Pa., July 13, 2015), a federal district court judge concluded that an expert report on implicit bias authored by leading implicit-bias researcher (and IAT co-inventor) Anthony Greenwald failed to satisfy Federal Rule of Evidence 702. (For prior discussion of Karlo in the legal press, see, e.g., here and here. For related posts from some of us on implicit-bias research and discrimination litigation, take a look here and here.)
In Karlo, the plaintiffs wanted Greenwald’s expert report admitted into evidence so as to provide a “framework” to help a judge or jury evaluate evidence of discriminatory intent. In refusing to do so, Judge Terrence McVerry wrote that Greenwald’s expert report “is not based on sufficient facts or data. It is not the product of reliable methods. And it would not assist the factfinder in resolving an issue in this case.” And, the judge even doubted that it was relevant to the plaintiffs’ ADEA claims.
First, the expert report wasn’t based on enough “facts or data,” the judge reasoned, because Greenwald hadn’t visited the defendant-employer’s plant, hadn’t spoken with current or former employees, hadn’t interviewed the managers involved in the layoffs at issue in the lawsuit, and hadn’t subjected any of them to “his self-invented IAT.” Instead, the judge concluded, Greenwald opined on the defendant’s employment practices “after reviewing one deposition in full and excerpts of others”—selected and supplied by the plaintiffs’ attorneys—as well as another expert’s appraisal of that material. This made his opinion “not expert material,” but “the say-so of an academic who assumes that his general conclusions from the IAT would also apply to [defendant-employer PGW].”
Second, the judge declared the IAT itself an unreliable measure, because Greenwald couldn’t show that the IAT has been “taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW.” Greenwald also hadn’t adjusted the IAT data to account for “those who self-select to participate” and had not adopted controls to, “for example, exclude multiple retakes or account for any external factors on the test-taker.” And even if the IAT is a well-validated measure, it “still says nothing about those who work(ed) at PGW.”
Third, there wasn’t enough “fit” between the general principles of implicit bias in his report and the case facts. Rule 702 permits expert opinion “to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case,” but such expert testimony must “‘fit’ the facts of the case.” FRE 702, Advisory Committee Notes to the 2000 Amendment. To show lack of fit, Judge McVerry pointed out that, in his report, Greenwald wrote that his implicit bias findings “‘provide a framework that can aid a judge or jury in evaluating the facts of this case .... to determine whether the Plaintiffs' ages substantially motivated the defendants' [sic] actions outlined in the Complaint.’ Greenwald Exp. Rep. at 2, ECF No. 380–5.” The judge then seemed to argue that the italicized text shows that, in fact, Greenwald’s report purported to prove causation in the case and that it didn’t match up the ADEA’s (but-for causation) requirement. “If anything, Dr. Greenwald's opinion is more likely to confuse a jury rather than elucidate the issue(s) for the factfinder.”
Fourth, the judge doubted that Greenwald’s report was even “relevant”for deciding the plaintiffs’ ADEA disparate impact or disparate treatment claims. (To be relevant, an item of evidence must tend “to make a fact more or less probable than it would be without the evidence” and that fact has to matter to deciding the clam. FRE 401.) For disparate treatment claims, the plaintiff has to prove that “intentional discrimination occurred at the particular employer, not just that gender stereotyping or intentional discrimination is prevalent in the world.” Besides, proving an employer discriminatory motive “seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.”
Prior courts have differed on whether to admit into evidence Anthony Greenwald’s expert opinion on implicit-bias in discrimination lawsuits. Compare Samaha v. Washington State Dep't of Transp., No. CV–10–175–RMP, 2012 WL 11091843 (E.D. Wash. Jan. 3, 2012) (yes) with Jones v. National Council of YMCAs, 34 F.Supp.3d 896 (N.D. Ill. 2014) (no).
Wednesday, July 15, 2015
How do you know whether a worker counts as an “employee,” not an independent contractor, under the Fair Labor Standards Act (FLSA)? On this often-litigated issue, the US Department of Labor has released Administrator’s Interpretation No. 2015-1, dated July 15, 2015, in order to help “the regulated community in classifying workers and ultimately in curtailing misclassification.”
Much of this fifteen-page document covers familiar ground. DOL stresses that FLSA defines “employ” broadly as including “to suffer or permit to work,” 29 U.S.C. § 203(g); that courts use an expansive multi-factor “economic realities” test – not the traditional common-law test—to decide whether workers count as “employees” under FLSA; and that, given both, “most workers are employees under the FLSA.”
DOL also discusses each of the typical factors of the FLSA “economic realities” test, emphasizing throughout that each factor is not a necessary condition but just a guide: “Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”
For example, for the “control” factor of “economic realities” test—itself not dispositive—DOL writes:
Technological advances and enhanced monitoring mechanisms may encourage companies to engage workers not as employees yet maintain stringent control over aspects of the workers’ jobs, from their schedules, to the way that they dress, to the tasks that they carry out. Some employers assert that the control that they exercise over workers is due to the nature of their business, regulatory requirements, or the desire to ensure that their customers are satisfied. However, control exercised over a worker, even for any or all of those reasons, still indicates that the worker is an employee.
Though not expressly addressing them, this view—and DOL’s guidance as a whole—may matter to the recent debates about employee/independent contractor status and the so-called sharing economy.
Tuesday, July 14, 2015
This blog looked earlier at the debate over the Confederate flag, and how pressure from employer based groups helped lead the way to the flag being taken down from South Carolina state grounds. The issue has now shifted to other states that display the flag in some manner. Most notably, Mississippi is the only state that uses the "Rebel X" symbol as part of its flag. It will be interesting to see if employers there will weigh in on this issue like they did in South Carolina.
"The Old South didn't just give the nation the Confederate flag, "Gone with the Wind" and mint juleps. Its leaders refined the practice of exploiting workers, busting unions and being stingy with investments in public services. Each tactic was designed to create a desperate and powerless workforce that could be exploited by Northern and overseas businesses, [Michael] Lind and other historians say."
Many others would certainly disagree with this view, and it will be interesting to see how and whether this debate will ultimately affect employees.
- Joe Seiner
Bill Herbert writes in his role as the Chair of the New York State Bar Association’s Labor and Employment Law Section to let us know about two sets of law student awards. One is a set of writing awards, the other student service awards. Annually, the NYSBA Labor and Employment Section presents awards to law students:
Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition
This competition recognizes excellence among law school students writing in the area of labor and employment law; and to cultivate the relationship between the NYSBA Labor and Employment Section and future labor and employment practitioners.
Prize Awarded: 1st place: $3,000 and publication in Section newsletter. 2nd place: $2,000. 3rd place: $1,000.
Submission Deadline: December 4, 2015, and the awards will presented at the Section’s Annual Meeting in January 2016.
Articles must be original from the applicant. Submissions should focus on any timely, compelling aspect of labor and employment law. Only one submission per student.
All articles are to be submitted in the following format: a) typewritten - with computer disk attached or submitted by email to firstname.lastname@example.org no later than December 4, 2015; b) double spaced; c) on 8-1/2 inch by 11 inch paper, 1 inch margins; d) no longer than 20 pages (exclusive of endnotes); e) citations are to conform to "A Uniform System of Citation" (The Bluebook).
Students should include a cover letter with the entry stating their name, mailing address and phone number (both school and permanent), social security number, name of your school and year of graduation. Do not include your name or personal information on your paper.
If published by the Section, all articles submitted for the competition become the property of the Labor and Employment Law Section and the New York State Bar Association. No article submitted may be published in any journal or periodical other than the "New York State Bar Journal", or the "Labor and Employment Law Section Newsletter", until after announcement of the winner of this competition in January 2016.
Samuel M. Kaynard Memorial Student Service Awards
The purpose of the awards is to enable New York State Law Schools to recognize excellence among their law students in the area of labor and employment law and to cultivate the relationship between the Labor and Employment Law Section and future labor and employment practitioners.
Award Criteria: All law school students. Student(s) must be nominated by the dean or the dean’s designee. Direct student applications will not be considered.
Prize Awarded: First prize $3,000, Second Prize $2,000, Third Prize $1,000.
Nomination Deadline: December 4, 2015
Date Presented: January Annual Meeting
The Award is intended to encourage scholarship and exemplary service in the field of Labor and Employment Law. The Award is made by the law school to the student(s) in recognition of an extraordinary accomplishment in the field, including but not limited to the following:
1. Organizing and/or conducting programs at any educational level conducive to the propagation of labor and employment knowledge and skills
2. Outstanding performance in a labor or employment course, clinical experience, project, internship or related activity such as: a collective bargaining simulation grant proposal to research labor and employment issues, curricular revision, or other exposition on the subject;*
3. Facilitating conflict resolution or peer mediation programs for elementary or secondary school students;
4. Utilizing the internet and its components (e.g. World Wide Web/e-mail) to disseminate or receive labor and employment information;
5. A substantial action or activity in furtherance of labor and employment law, performed or instituted in the year of this competition.
Allison Morantz (Stanford) has just written and posted on SSRN the article I've been hoping to see ever since I practiced in Texas some 20 years ago -- Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation? Here's the abstract:
The “great compromise” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault insurance coverage for occupational injuries, was one of the great tort reforms of the Twentieth Century. Because participation is usually compulsory, it is difficult to forecast what the real-world effects might be of making workers’ compensation voluntary. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which a significant number of firms (“nonsubscribers”) have chosen to do so: Texas. This is the first empirical study to examine comprehensively the impact of Texas nonsubscription on large, multistate nonsubscribers. I analyze highly granular data from fifteen large, multistate companies that provided their Texas employees with customized occupational injury insurance plans (“voluntary plans”) in lieu of workers’ compensation coverage between 1997 and 2009. As economic theory and common sense would lead one to expect, nonsubscription generates considerable cost savings, reducing total programmatic costs by an average of about 29%. These savings were driven by a drop in the frequency of injury claims – especially more serious claims involving replacement of lost wages – combined with an decline in costs per claim. The drop in cost per claim arises from a fall in both medical and wage-replacement costs. Although the decline in wage-replacement costs is larger in percentage terms, the drop in medical costs is more financially consequential since medical costs constitute such a large share of total costs. The paper finally explores whether several common attributes of workers’ compensation regimes that voluntary plans typically forgo – compensation for permanent partial disabilities, uncapped total benefits, chiropractic coverage, unlimited choice over medical providers, and lengthy injury-reporting windows – are likely to account for the observed cost disparities. Surprisingly, the first three of these features account for little of the observed variation. Although it is much more difficult to isolate the empirical impact of provider choice and reporting windows, my analysis provides some intriguing, albeit highly tentative, evidence that state-level variation in injury-reporting windows could have a significant effect. Overall, my findings suggest the urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social safety net into an optional program that co-exists alongside privately-provided forms of occupational injury insurance.
This article deserves a close read. National employers doubtless noticed some time ago that their workplace-injury costs are lower in Texas than elsewhere, and Allison makes the point that these employers are now starting to push other states to reconsider the Great Compromise underlying workers' compensation law. Will this beget a "race to the bottom" as states scramble to attract employers by allowing them to opt out of workers' compensation programs, and employers respond by opting out and leaving injured workers in the cold? Or is a self-insured, nonsubscriber system a net benefit to employers and workers by incentivizing employers to invest more heavily in workplace safety and to more carefully control health care costs? Allison's article answers a lot of questions, but also opens up a broad field fertile for future research.
Sunday, July 12, 2015
Brittany Bronson (left) writes in today's New York Times (Sin City's Dirty Pools) about sex discrimination at Las Vegas "pool clubs", where the well-paid cocktail-server positions are sex-specific and the rare male who does get hired has a dress code much more modest than that of his female counterparts. Congratulations to Ann McGinley (UNLV, right), whose great work on this and related topics for the last long while forms the basis of much of the article.
Albert Feuer (Forest HIlls, NY) has just posted on SSRN his essay The Supreme Court Agrees to Determine Whether ERISA Preempts a Vermont Health-Care Database Reporting Mandate, 34 Tax Mgm’t Wkly. Rep. 860 (July 6, 2015). The essays argues for more coherent ERISA preemption principles that are consistent with the terms of ERISA than the existing Court principles. It observes that alternative frameworks have been presented in the context of the certiorari petition granted by the Supreme Court. Prof. Edward Zelinsky’s framework focuses on interactions with ERISA benefit plans; this essay focuses on ERISA benefit protections.
Saturday, July 11, 2015
At this blog, we have extensively covered the push for higher minimum wages over the last several months. We have noted that a number of states and local jurisdictions have raised that wage well above what is mandated by federal law under the FLSA. It is clear that this will be an important issue in the upcoming presidential election.
In those jurisdictions that have raised the minimum wage, some employers are trying to offset the pay hike by passing it along to the customers. In San Francisco, for example, Chipotle raised its prices approximately the same amount as the 14% wage hike that went into place in that city, according to Investors.com/Investors Business Daily. The article also notes that Starbucks plans to raise prices in part due to increased labor costs.
It will be interesting to see how other companies respond to higher minimum wage rates, and whether they are able to absorb the costs themselves or pass them on to the customers. It will also be interesting to follow how customers respond to the price hikes.
-- Joe Seiner
Friday, July 3, 2015
As the Fourth of July holiday is upon us, it is a good time to consider the following question: should non-exempt employees be compensated for time spent responding to work-related emails, texts, etc. It is extremely common for workers to be available to their employers now on a 24/7 basis via mobile devices. How much (if any) of this time should be compensable? An interesting article at Forbes.com looks at how this complex area may see the next flood of class action litigation. A recent California Appellate Court decision signals that at least some of the courts may be siding with workers in this area. That case looked more at the issue of whether an employer must compensate an employee for data usage on a personal device used for business purposes. From the Forbes article:
"It may be summertime with vacations underway, but the small and medium business clock hasn’t stopped or even slowed down. In a RAND survey published last year, 58.8% of employed Americans reported working during their vacation. Time away from work is rapidly becoming an oxymoron. . . . But there are a slew of troublesome complications emerging, especially when it comes to reimbursement. Recent enforcement of labor law in the state of California is increasing the threat of additional lawsuits around  reimbursement and no employer is exempt."
This case and issue is an important reminder that the FLSA -- and related state statutes -- were passed at a time when these modern technologies did not exist, often making these cases tough for the courts and litigants.
-- Joe Seiner
Thursday, July 2, 2015
I posted last year on Ms. Saavedra’s plight – and its implications for employees more generally – when the New Jersey Appellate Division last year upheld an indictment against a worker for removing documents for use in her employment lawsuit. I write again because the state Supreme Court in just weighed in, with State v. Saavedra affirming the decision below in an opinion that employment lawyers across the nation should read.
As a reminder, the Appellate Division had upheld a criminal indictment for Ivonne Saavedra, an employee who took 367 documents from her employer, the North Bergen Board of Education, for potential use in her civil suit claiming both discrimination and violation of the state’s whistleblower statute. Some of these documents contained confidential information about third parties. The Board took the matter to the prosecutor, who filed charges for “official misconduct” and theft. My last post expressed concern about the indictment, and its clear implication that a pervasive form of opposition conduct was being criminalized.
The NJ Supreme Court’s decision makes matter worse. Not only is it more authoritative, but it also further confuses the protocol for an LAD or whistleblower plaintiff looking to gather evidence for her case and practically invites vindictive employers to intimidate employees with the threat of prosecution. While "official misconduct" pertains only to public servants, which limits the opinion’s reach in that regard, a potential theft charge is enough to dissuade any employee from bringing a LAD or CEPA suit.
Before the Supreme Court, Ms. Saavedra looked to its 2010 decision in Quinlan v. Curtiss Wright, as a basis for reversal. As I posted before, Quinlan had announced a multi-factor rule that would -- sometimes at least -- bar employers from retaliating against workers by discharging them for taking documents for use in lawsuits. Ms. Saavedra argued that Quinlan required the court to dismiss the indictment when the documents she took were intended to be used in employment discrimination litigation. The Supreme Court was not swayed, dismissing Quinlan as irrelevant to a criminal proceeding: “nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his her or employer’s documents for use in a discrimination case.” The result is, as Justice Albin, the single dissenting voice, summarized: “an employee who takes confidential documents to pursue an LAD claim could win a multi-million dollar discrimination lawsuit but serve time in prison for committing a crime.”
It is true that Saavedra can be distinguished from the more garden-variety employee efforts to collect evidence. She was charged not with merely taking copies but also original documents, and, as we will see, the latter might have been critical to the theft charge. Further, the documents contained confidential information about third parties -- students in the district. Misuse of such information might have been critical to the official misconduct charge.
But whether the Supreme Court’s opinion will be limited by these kinds of considerations is unclear. One obvious question is whether Saavedra reaches the appropriation of the information or the tangible documents themselves? For the official misconduct charge, an employee’s breach of confidentiality for her personal benefit – and use of the documents for Saavedra’s civil suit sufficed to benefit her – may be enough.
But such conduct does not constitute “theft,” at least according to the New Jersey theft provision under which Saavedra was indicted; that requires an individual to “unlawfully take, or exercise unlawful control over, movable property of another with purpose to deprive him thereof.” N.J. Stat. Ann. § 2C:20-3. The Supreme Court found the documents to be moveable property, and, because Saavedra took originals, the Board no longer had the documents in its possession; that was sufficient evidence that Saavedra acted “with the purpose to deprive” the Board of the documents.
It would seem to follow that, if an employee makes copies of confidential documents, a key element of the theft of movable property charge is negated – at least if the employee uses her own paper (or, these days, a cell phone camera).
But not so fast. Another provision of New Jersey law extends theft to immovable property and contains no “purpose to deprive” language. Further, property is defined to include such things as computer files or trade secrets. § 2C:20-1 (g). In short, an employee in New Jersey would seem to be at risk of criminal prosecution if he copies his employer’s documents, no matter how critical they may be to a current or anticipated court suit.
Justice Albin found the situation intolerable: “The law should not place whistleblowers in a position where they are playing Russian roulette with their careers or their liberty.” He critiqued the majority for discouraging whistleblowers from coming forward and thereby preventing the exposure of employer misconduct. But Justice Albin’s solution was no panacea for employees. He would solve the problem of indeterminateness by recognizing only a very narrow right for employees to take documents: “an employee would be permitted to take a confidential document to an appropriate authority only if the document ‘clearly indicates that the employer was engaged in illegal conduct.’” Clear to whom? That seems like a legal determination, but is any document capable of so establishing on its face and without regard to other documents?
The only silver lining for employees in Saavedra’s position is a claim of right defense. The majority held that a jury could determine that Saavedra genuinely believed she had a legal right to the documents, which would justify her conduct and negate a critical theft element. While that may yet avail Ms. Saavedra, few employees would be brave enough to take the chances on a criminal indictment when a claim of right defense is her only fallback.
Ultimately, the decision clearly sends the message that employees are well advised not to take employer documents to bulwark their cases, even though it does not seem to establish a bright-line rule that workers can never take such material.
The majority found this result not troubling because of the mechanisms in civil litigation for preserving and obtaining documents. I’m not so sure. It’s not that I believe that employees should be free to take whatever their hearts desire, but, after all, if the documents in question are in fact taken only for use in a lawsuit, there are built-in limitations to their use, limitations that can be reinforced by a protective order to that effect.
Even if that is the employee’s purpose, however, I agree that taking documents – as opposed to copies – may impair the employer’s functioning. Finally, third party interests, such as student confidentiality, deserve special concern. How this all can be negotiated is not so clear, but using New Jersey’s theft statute as currently drafted is a pretty blunt instrument for this purpose.
Thanks to my RA, Samira Paydar, for her help on this.
Wednesday, July 1, 2015
In recent legal challenges, Uber, Lyft, and other so-called “ride-sharing” companies have argued that the drivers who contract with them are independent contractors, not their employees, for purposes of the Fair Labor Standards Act (FLSA) and other laws. Their argument: We’re each mostly a technology platform for matching drivers and riders, not a transportation company. This argument has not persuaded. See, e.g., O’Connor v. Uber Techs. Inc., No. 3:13-CV-03826, 2015 WL 1069092, at *6-7 (N.D. Cal., March 11, 2015) (“Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a “technology company” because it uses CB radios to dispatch taxi cabs . . . Uber only makes money if its drivers actually transport passengers.”).
Yet, even if they lose the employee/independent-contractor fight, this comparison to taxicab companies might well cut partly in their favor down the road, because section 13(b)(17) of FLSA exempts from its overtime protections “any driver employed by an employer engaged in the business of operating taxicabs.” 29 U.S.C. § 213(b)(17). Some State wage and hour laws do something similar. E.g., N.Y. Labor Law § 651(5) (defining “employee” to exclude anyone employed “as a driver engaged in operating a taxicab”); 43 Penn. Stat. § 333.105(b) (exempting from State overtime requirements “[a]ny driver employed by an employer engaged in the business of operating taxicabs”); Calif. Industrial Wage Commission Order No. 9-2001, § 3(M) (2014) (“provisions of this section [on overtime] shall not apply to taxicab drivers”).
So, is Uber, Lyft, or another “ride-sharing” company engaged in the “business of operating taxicabs” under FLSA § 13(b)(17)? The U.S. Department of Labor’s Field Operations Handbook (1999 ed.) (DOL-FOH), chapter 24, says this:
24h01 “Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected.
DOL adopted this view in August 1974. See also DOL-FOH 24h03(a)(4) (“airport limousine service” as example of work that falls outside this exemption).
Since then, some judges have deferred to the DOL Handbook view in deciding whether a defendant-employer—often those that advertise as a limousine service—falls within this exemption. E.g., Cariani v. D.L.C. Limousine Services, 363 F. Supp. 2d 637, 645 (S.D.N.Y. 2005); Arena v. Plandome Taxi Inc., 2014 WL 1427907, at *15 (E.D.N.Y., April 14, 2014). In contrast, in Rossi v. Associated Limousine Services, 438 F. Supp. 2d 1354, 1363 (S.D. Fla. 2006), the judge emphasized that while the defendant there let its customers “determine the destination of the vehicle,” it mattered more that it “advertises itself as a limousine company”; it was “not licensed to provide taxicab transportation”; its drivers “do not cruise for customers and cannot be hailed down by customers,” but prearrange transport; and it sets fares in advance based on a flat or hourly rate, not based on a taximeter.
How does all this apply to Uber and other “ride-sharing” companies? In some ways, they seem like a “taxicab” business described in DOL’s Handbook—their drivers provide mostly local transportation, without fixed routes, and they largely go where the customer tells them to go. In other respects, it’s not so clear. When you use the Uber app, is it like “hailing” or “flagging down” a taxicab on the fly? Or is it more like prearranging transport, because Uber drivers are not supposed to pick up customers who don’t use the app to set up the ride? See Opinion Letter, Wage and Hour Division, U.S. DOL, 1998 WL 852774, at *1 (April 17, 1998) (“The ordinary meaning of [“taxicabs”] contemplates vehicles that are offered for hire to the general public on city streets. While it is not necessary that all the transportation be provided to persons who ‘flag down’ the vehicles, that is an important aspect of the common meaning of ‘taxicab which your client's vehicles do not possess.”).
In grappling with all this, it might matter that FLSA’s exemptions are supposed to be read narrowly, see Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959), and consistent with their purpose. So, what’s that purpose? Actually, it’s not at all clear. One court searched the FLSA legislative history and couldn’t find “any explicit explanation for the taxicab exemption.” Arena, 2014 WL 1427907, at *13. Perhaps Congress exempted the taxicab business, because back then it was hard for employers to verify how many hours a driver spent looking for customers to pick up. If so, that’s less of a problem now, because ride-sharing companies like Uber and Lyft have the technology to monitor precisely when a driver makes himself available for rides (via the ride-sharing app) and how long an actual ride takes from pick-up to drop-off.
Tuesday, June 30, 2015
Today, the Supreme Court granted cert. in Friedrich's v. Cal. Teacher's Association. The issues presented are
(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.
Hat Tip: John Coyle
Monday, June 29, 2015
Playing off of Rick's post below, there have been a number of negative experiences that transgender employees have shared concerning their treatment in the workplace. And, there has certainly been a tremendous amount of litigation in that area. Some companies have started to take the lead on attempting to assure transgender workers fair treatment in the employment arena. These companies are trying to make sure that LGBT workers have a positive experience with their business. One such company currently making headlines is Starbucks, which is highlighting the experiences of three transgender employees on their website. From the website, one transgender employee states:
"I never really thought it was possible to transition in a workplace where I interact with many customers on a daily basis, but my Starbucks partners and customers have seen me transition, and many of my fears have been proven wrong - as people accept me for the man I’ve always known I was.”
It will be interesting to see if other companies follow this lead, and attempt to be more open and accommodating to all workers.
- Joe Seiner