Thursday, August 28, 2014
image from eeoc.gov
In an interesting development at the EEOC, the agency plans to sign a memorandum of understanding with Mexico tomorrow, August 29. The MOU, which will be signed by Mexico's Ministry of Foreign Affairs, will specifically adress the rights of migrant workers. From the EEOC press release:
"The MOU is designed to further strengthen their collaborative efforts to provide immigrant, migrant and otherwise vulnerable Mexican workers and their employers with guidance and information and access to education relative to their rights and responsibilities under the laws enforced by the EEOC."
For those of you in the DC area, it would be an interesting event to attend. Details are on the EEOC's website.
-- Joe Seiner
Wednesday, August 27, 2014
Barry Winograd sends word that:
the Board of Governors of the National Academy of Arbitrators has approved a set of Guidelines for professional standards for arbitrators in mandatory employment arbitration proceedings. The Guidelines were developed over a two year period by a special Academy committee of a dozen members. The committee was chaired by Professor Theodore J. St. Antoine.
From a review, you will see that the Guidelines improve upon current arbitration rules and ethical standards for mandatory employment arbitration cases. Topics that are covered include limits on the source of an arbitrator's appointment, initial and continuing disclosure obligations, arbitrator disqualification, prehearing discovery, prohibited ex parte communications, monetary deposits, addressing issues of public law, and post-award clarification of a decision. It is anticipated that the Guidelines will be helpful in promoting heightened standards of professional responsibility in a manner that will be fair and of benefit for both claimants and respondents in the field.
Tuesday, August 26, 2014
image from www.eeoc.gov
The U.S. EEOC just-released portions of its fiscal year 2011 and 2012 report on the federal work force. The report is full of interesting data with relation to federal employees, and examines the level of diversity in the federal workforce. The report also sets forth the number of EEO complaints received by the agency as well as the timeline for completing its investigations. From the news release on the report:
"Overall diversity in federal employment rose slightly in FY 2011, even as the total federal work force declined. According to the report, between FY 2010 and 2011 the work force participation rates increased for employees who are:
- Hispanic or Latino, from 7.90% to 7.95%;
- Asian, from 5.90% to 5.95%;
- Black or African American, from 17.94% to 17.97%; and
- Native Hawaiian or Other Pacific Islander, from 0.36% to 0.38 %.
Additionally, the number of federal employees with targeted disabilities rose to 0.90% after a consecutive 10-year decline, followed by three years of holding steady at 0.88%.”
The report is definitely worth taking a look at if you are interested in any of this data, or if you are working on scholarship related to this area.
-- Joe Seiner
Monday, August 25, 2014
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (University of Middlesex Business School) have posted on SSRN the page proofs for their article, It’s Complicated: Age, Gender, and Lifetime Discrimination Against Working Women – The United States and the U.K. as Examples, forthcoming at 22 Elder L.J. 1 (2014). From the abstract:
This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Sunday, August 24, 2014
The National Center for the Study of Collective Bargaining in Higher Education and the Professions has released its August e-note, which lists several relevant labor issues. Included are an interesting issue related to teh classification of charter schools. In Hyde Leadership Charter School - Brooklyn, the NLRB will determine if NY charter schools are private enough to be covered by the NLRA or are public enough to fall under NY State public labor law. Earlier, the Board found that Illinois charter schools were covered by the NLRA, although there are differences between the two states on this issue.
Read the full note, there are many other important issues included
The Ninth Annual
Employment & Labor Law Scholars’ Forum
Friday, October 24, 2014
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.
To that end, Seton Hall will convene its ninth annual Employment & Labor Law Scholars’ Forum on Friday, October 24, 2014. This year’s Forum will feature three presenters:
Michael M. Oswalt, Assistant Professor
College of Law, Northern Illinois University
Brishen Rogers, Associate Professor
Beasley School of Law, Temple University
Natalya Shnitser, Assistant Professor
Boston College Law School
The paper topics are:
Michael M. Oswalt
The Uneasy Liberal Case for Labor Law
Trust No More: Rethinking the Regulation of Retirement Savings in the United States
Comment and critique will be provided by the following scholars:
Catherine Fisk, Chancellor’s Professor of Law, University of California at Irvine School of Law
Timothy P. Glynn, Professor of Law, Seton Hall University School of Law
Tristin K. Green, Professor of Law, University of San Francisco School of Law
Charles A. Sullivan, Professor of Law, Seton Hall University School of Law
Steven L. Willborn, Judge Harry A. Spencer Professor of Law, University of Nebraska College of Law
Michael J. Zimmer, Professor of Law, Loyola University of Chicago School of Law
Saturday, August 23, 2014
An interesting article over at Yahoo! Finance discusses a report from the consulting firm PwC that outlines possible dramatic changes to the workplace over the course of the next decade. The report describes a potential “Orwellian” business culture where powerful employers maintain constant monitoring of employees. From the article, one vision of the future workplace includes:
“big companies . . . so powerful and influential they morph into “ministates” that fill the void when government is unable to provide essential services. Companies will also use sensors and other gizmos to monitor employees around the clock. And workers will mostly acquiesce to this digital leash, in exchange for job security, decent pay and important benefits.”
I am far from convinced that we could see such changes in the next decade. Nonetheless, the report is an important reminder of the constant changes that occur in the working environment. The article is worth a quick read.
-- Joe Seiner
Thursday, August 21, 2014
- The Nation reports on attempts by workers of a major packing company to highlight poor working conditions and union busting to improve their plight appeal to the good-employer image of Costco, which stocks many products of the company. In addition to quotes from Michael Duff, the story provides another example of how hard it is for unions to maintain support in the face of relentless anti-union tactics by employers--highlighting the push for less delay in NLRB elections.
- The NLRB's Macy's decision shows the Specialty Healthcare rule in action. Employers fear the potential for so-called "micro-unions." Although note that the unit in dispute in Macy's consisted of 41 employees, which is not exactly "micro."
- The White House recently enacted an Executive Order that requires federal contractors to disclose labor law violations that occurred during the previous three years and order agencies to have compliance advisers to oversee the selection of contractors. The contractors are not happy.
Hat Tip: Patrick Kavanagh
Annie Smith (University of Arkansas) sends along this call for papers for the AALS Poverty Law Section, who will sponsor a session at the 2015 AALS Annual Meeting. The title of the program is Working But Poor: Understanding and Confronting the Working Poor Phenomenon. In collaboration with the Loyola Journal of Public Interest Law, the Section seeks papers for publication and presentation.
She notes that the deadline for submissions has been extended to September 1, 2014. Additional information can be found here: Download AALS Poverty Section Call for Papers 2015
Wednesday, August 20, 2014
An important aspect of the job for most employees is the retirement package offered by our employers. As many of us know, most corporations are moving away from a traditional pension-based system to the more common employee-savings based approach. Thus, many companies are focusing more on the 401(k)-type approaches when promoting retirement plans to employees.
A startling new report demonstrates that this type of system can have substantial drawbacks. In particular, many employees are simply not saving enough for retirement. In fact, a recent report showed that over a third of those surveyed had no retirement savings at all. From the report at CNBC.com (conducted by Bankrate.com):
“A third of people (36 percent) in the U.S. have nothing saved for retirement... 14 percent of people ages 65 and older have no retirement savings; 26 percent of those 50 to 64; 33 percent, 30 to 49; and 69 percent,18 to 29, according to the survey of 1,003 adults.”
These numbers are disturbing and demonstrate the concerns of moving away from the more traditional-type retirement models. Nonetheless, the current system is likely here to stay for awhile, and will begin to have a dramatic impact as the population continues to age. Retirement preparation is a critical -- but often forgotten -- aspect of current employment.
-- Joe Seiner
Monday, August 18, 2014
Annual Average Salary: $233,150
Projected Growth by 2022: 18%
2. Physician (General Practice)
Annual Average Salary: $187,200
Projected Growth by 2022: 18%
Annual Average Salary: $178,950
Projected Growth by 2022: 18%"
Attorneys weigh in tenth in the survey, with an average salary of $113,530, and a much lower projected growth rate than those listed above. Obviously, these studies can be a bit skewed depending upon how the parameters are defined, but it still provides an interesting look at some different career growth areas.
Thursday, August 14, 2014
Judge Jorge E. Cueto, Circuit Judge for the Eleventh Judicial Circuit in Florida, has issued an order declaring that Florida's workers' compensation statute is facially unconstitutional. Judge Cueto ruled that workers' compensation statutory benefits have been so eroded by Florida's legislature, "that it no longer provides a reasonable alternative" to civil suits. The story in the Miami Herald is here. Judge Cueto found that the Florida workers' compensation statute violates both the U.S. Constitution and the Florida Constitution.
Certain provisions of Florida's workers' compensation statute have been challenged as unconstitutional in other cases. The Florida Supreme Court is currently considering a case involving the constitutionality of a potential gap between the 104-week cutoff for temporary benefits and the ability to recover total permanent disability benefits. Although a panel of Florida's First District Court of Appeals found this gap to be a constitutional violation, the court sitting en banc avoided the constitutional question by interpreting the Workers' Compensation statute in a manner that avoids this benefits gap.
But Judge Cueto's opinion is much broader. It holds that the entire "grand bargain" of workers' compensation as an exclusive remedy for workplace injuries -- given the benefits limitations found in the current version of Florida's workers' compensation statute -- is an unconstitutional deprivation of due process. Judge Cueto found that the statute "became unconstitutional as an exclusive remedy in stages," referencing a number of benefits limitations and erosions over the years (enacted for the purpose of reducing premiums and competing for industry). In particular, Judge Cueto noted the repeal of an opt-out provision, the effective elimination of any permanent partial disability benefits, and the apportionment of some medical expenses to employees. Judge Cueto also noted the background change in Florida tort law from contributory negligence to comparative negligence, and concluded: "The Act may arguably have been a reasonable alternative to tort litigation up to 1968. The benefits in the Act have been so decimated since then that it no longer provides a reasonable alternative to tort litigation."
Judge Cueto rejected the notion of creating isolated exceptions to exclusivity on a case-by-case basis, allowing tort suits where statutory benefits are too restricted, finding that "the infirmities in the current act since 2003 strike at the heart of the exclusive remedy."
Update: The order is now available here. Judge Cueto relied on the National Commission on State Workmen's Compensation Laws' 1972 report and the expert testimony of Professor John Burton.
I wanted to highlight a recent article I saw that noted a lawsuit against the city of Seattle for its legislative decision to implement a $15/hr minimum wage. The lawsuit focuses on a specific provision of the law that permits a more gradual increase for smaller businesses. From the article at MSNBC:
"Those companies with 500 or more employees need to achieve a $15 hourly base wage within the next three years, while small businesses have seven years to achieve the same target. But the law also designates franchisee businesses as large businesses . . . [The issue is whether] franchisees should be classified as small businesses, and [whether] the current law illegally discriminates against the franchise business model."
This case provides an important reminder that while the federal minimum wage has remained static for years, some local jurisdictions have remained active in trying to raise the limits to a livable wage. As seen here, however, these efforts are often met with substantial resistance.
Tuesday, August 12, 2014
Just a friendly reminder that the Executive Committee of the AALS Section on Labor Relations and Employment Law is accepting abstracts for papers to be presented as part of its program at the 2015 Annual Meeting. The submission deadline is September 1, 2014. Here is the full announcement:
Call for Papers
AALS Section on Labor Relations and Employment Law
"Emotions at Work: The Employment Relationship During an Age of Anxiety"
2015 AALS Annual Meeting
January 2-5, 2015
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.
The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns? A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.
The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.
Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at email@example.com by September 1, 2014. The author of the selected abstract will be notified before October 1, 2014.
Monday, August 11, 2014
image from eeoc.gov
The EEOC recently settled an interesting case of pay discrimination involving a female executive employee. The allegations in the case maintained that Royal Tire, Inc. paid this executive $35,000 per year less than her predecessor, who was a male worker. The female executive’s salary was also $19,000 less than the minimum established by the company for the position. The case, which was settled for $182,500, was brought under both Title VII and the Equal Pay Act. From the press release on the case:
“In addition to substantial monetary relief … Royal Tire must comply with the three-year consent decree, which contains an injunction prohibiting the company from any future discriminat[ion]. . . Additionally, the consent decree requires Royal Tire to evaluate its pay structure to ensure compliance with the Equal Pay Act and Title VII . . The decree requires training for Royal Tire's managers and employees under the [relevant statutes].”
Wage discrimination is always difficult to establish, and it is interesting to see how the claim proceeded in this particular case. The glass ceiling is not always limited to obtaining a particular position. Indeed, there are always concerns of equal pay for the work being performed even after a promotion has been secured.
-- Joe Seiner
Saturday, August 9, 2014
A California federal district court judge has just ruled against the NCAA in the O'Bannon case. The bottom-line is that the judge held that the NCAA's prohibtion against paying collegiate athletes violated antitrust laws. This doesn't mean that schools must pay players; rather, it means that the NCAA can not stop schools from doing so. That said, the devil will be in the details, as the judge also held that the NCAA could cap such payments (although where the limits, if any, are is unclear). On the heels of the NCAA giving the big 5 conferences more autonomy, I suspect that those conferences will fairly quickly move ahead with additional payments to players, creating a divide with schools that have fewer financial resources (keeping in mind, of course, that the NCAA will likely appeal). I also think that this indirectly helps players who are arguing for employee status, whether under the NLRA or other statutes.
It's going to be an interesting time in collegiate athletics over the next few years.
Friday, August 8, 2014
In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity. An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works. The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work. And more and more workers are struggling, particularly in service-sector jobs. Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand.
A recent New York Times article describes the effects of just-in-time scheduling:
- "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
- As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
- An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."
The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions. These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early. These requirements are supposed to disincentivize just-in-time scheduling. However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.
Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity. In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.
-- Charlotte Alexander
A new piece by Jonathan R. Harkavy, Class Action Waivers in Title VII Cases after Italian Colors: Sidestepping the Individual Arbitration Mandate, recently posted on SSRN:
The Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 570 U.S. -- 186 L. Ed. 2d 417, 133 S. Ct. 2403 (2013), that class action waivers ordinarily must be enforced under the Federal Arbitration Act even when the cost of an arbitration exceeds a claimant's potential recovery. This essay suggests, however, that employee waivers of class treatment in arbitrations are not appropriate for claims under Title VII of the Civil Rights Act of 1964 because of enforcement provisions unique to that statute. Because Congress has effectively set its legislative face against limits on employee access to class treatment, employee class treatment waivers are unenforceable as to Title VII status discrimination and retaliation claims.
The article focuses on a number of provision in Title VII that the author argues show a commitment to judicial enforcement that the Court found absent in the Sherman Act in Italian Colors. These provisions are also largely absent from the ADEA, which draws its enforcement scheme from the FLSA, so the Gilmer decision doesn't, in theory at least, foreclose the argument.
As someone who has railed unsuccssfully against the arbitration tide in the past, I wish the argument luck without being super optimistic about its success!
Thursday, August 7, 2014
As readers of this blog are well aware, the unemployment rate varies widely across the states. I just came upon a recent article that examines which states are the most difficult to secure full-time employment. The worst three? Arizona, California, and Nevada. From the article at 247Wallst.com:
"Nevada’s underemployment rate more than doubled between 2007 and the first quarter of 2014, where it currently stands at 17.4%, the highest rate in the country. State GDP growth was nearly stagnant between 2007 and 2013, growing at an annualized rate of 0.8%, the lowest rate in the country. Slow GDP growth was likely caused by the collapse of Nevada’s housing market in 2008, when average home prices fell 27%."
This article is an important reminder that employment issues are in many ways driven by local economics. It is definitely worth a quick read.
Tuesday, August 5, 2014
Are unpaid interns protected by American employment law? The latest chapters in this ongoing story come to us from Wisconsin and New York.
In a July 22 decision, Masri v. State of Wisconsin Labor and Industry Review Commission, the Wisconsin Supreme Court ruled that it was reasonable for Wisconsin’s Labor and Industry Review Commission to conclude that uncompensated interns are not entitled to the anti-retaliation protections of that State’s health care worker protection statute. The plaintiff was a doctoral student who worked as an unpaid intern at a medical college and, she alleged, was fired for reporting “clinical/ethical concerns.” The statute bans certain health care employers from taking “disciplinary action against . . . any person” who in good faith reports violations of state or federal law, and further defines “disciplinary action” as "any action taken with respect to an employee," but does not define the term “employee.” The Court discussed the text of the statute and related provisions, their purpose, and public policy arguments raised by both sides. The Court’s upshot: The statute applies only to employees, and “the ordinary meaning of ‘employee’ is someone who works for compensation or tangible benefits.”
Meanwhile, also on July 22, New York’s Governor signed into law a bill that amends New York’s employment-discrimination statute to expressly cover unpaid interns. Back in October 2013, a federal district court, in Wang v. Phoenix Satellite Television, Inc., No. 13 Civ. 218 (S.D.N.Y. Oct. 3, 2013), had dismissed an unpaid intern’s sexual harassment claim under that statute. That claim required her to be an “employee.” Although she had argued that, though unpaid, she was still an “employee” under the statute. The district judge concluded, however, that remuneration was a necessary condition for an employment relationship.
The newly-amended New York statute—now in effect—defines a new category of worker—an “intern”—and then separately declares “unlawful employment practices” with respect to interns that parallel the “unlawful employment practices” already identified by the statute. This drafting strategy slightly differs from Oregon’s law, Or. Stat. § 659A.350. Passed last year, Oregon’s law similarly defines “intern” but provides that an intern “is considered to be in an employment relationship with an employer for the purposes of the employee protections provided under” certain specified employment protections in Oregon’s code.