Thursday, April 3, 2014

Lawyers and mental health

Depression lies Brian Clark (Charlotte) has posted part 2 of his series on Coming Out with mental health issues. It's as good as promised.

April 3, 2014 in Commentary, Disability, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Pleading Proximate Cause in RICO Wage Depression Cases

Supply Demand Curve

As promised, I am returning to the RICO wage depression cases to examine proximate cause.  Recall that these cases involve a class of legal, unskilled employees alleging that their wages were depressed due to an employer’s pattern of making false attestations on immigration documents, such as I-9s, as part of a scheme to hire illegal workers and keep labor costs down.  Such false attestations violate 18 U.S.C. § 1546, and violations of that statute were added to the definition of predicate “racketeering activity” by a 1996 amendment to RICO.  The Fourth and Eleventh Circuits, in Walters v. McMahen and Simpson v. Sanderson Farms, respectively, affirmed the dismissal of RICO wage depression claims due to the failure to plausibly plead that the employer’s false attestations proximately caused plaintiffs’ damages.  The Eleventh Circuit also found a failure to plausibly plead injury, as discussed here

The law on proximate cause in the civil RICO setting is rather confused.  Courts struggle with cases where a predicate misrepresentation is made by defendant to some third party other than the plaintiff, and the plaintiff is ultimately damaged as a result.  A good summary of courts’ back and forth on the RICO proximate cause question can found in this article by Randy D. Gordon.  Generally speaking, the Court has demanded that the connection between the predicate act and the plaintiff’s damage be sufficiently direct, and not too remote, derivative, contingent, or attenuated.  But this “directness” requirement does not necessarily preclude a RICO claim simply because the misrepresentation was made to a third party rather than the plaintiff.  In a 2008 case, the Court found a viable RICO claim where defendants, bidders in a county tax-lien auction, made misrepresentations to Cook County, Illinois causing damages that were suffered by plaintiffs, other non-winning bidders whose bids were passed over.  Importantly, the county itself did not suffer any economic harm from the misrepresentation; only the losing bidders suffered economic harm. 

Before Twombly and Iqbal, wage depression claims like those in Walters and Simpson were allowed to proceed beyond a motion to dismiss in the Eleventh Circuit, as well as the Ninth, Sixth, and Second (claim by competitors rather than employees).  But in Walters, the Fourth Circuit appears to have completely precluded, on proximate cause grounds, worker wage depression claims based on false I-9 attestations.  The court reasoned that false attestations are “fundamentally crimes against the government of the United States” rather than the plaintiffs.  Thus, the directness requirement is not met.  To demonstrate the lack of proximate cause, the Fourth Circuit hypothesized that the employer could have caused precisely the same result by breaking the law in some other way.  For example, the defendant could have simply paid undocumented workers in cash without reporting their employment to the government, which would have had the same effect on the labor market and plaintiffs’ wages.  Hence, the Fourth Circuit reasoned, the alleged false I-9 attestations in violation of 18 U.S.C. § 1546 could not have been the proximate cause of plaintiffs’ depressed wages.  In responding to a petition for certiorari, the defendant argued that the Fourth Circuit’s holding simply reflected the effect of Twombly and Iqbal, and that it did not create a circuit split.  The Court denied certiorari.

The Eleventh Circuit in Simpson carefully framed the proximate cause defect as a pleading problem that might have come out differently under the now-retired Conley pleading standard – an important point, given that the Eleventh Circuit had to distinguish its opinion in a similar case decided in 2006, Williams v. Mohawk Industries.  The court, citing Mohawk, acknowledged that “[w]ith enough factual support” the plaintiffs’ “attenuated, multi-step causal theory could still be ‘direct.’”  But, the court found, there were simply not enough facts alleged here to establish a plausible “direct relation” between false attestations and wage depression.

What facts might have been enough to make out a plausible claim of directness?  The court said that “[w]ithout pleading population data, the relevant geographic market, before-and-after wage rates, or wage data from comparable . . . employers, the plaintiffs have failed to define too many crucial, operative variables in their theory of causation.”  So, despite all the talk of proximate cause, perhaps the failure to plead enough market data in a post-Iqbal world was the real problem?

Either there is a circuit split on whether these wage depression claims are viable at all, or Twombly and Iqbal are having a dramatic impact on the amount of market data that must be included in a complaint for wage depression claims to survive a motion to dismiss.



April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Oleske on Hobby Lobby and Same-Sex Marriage

OleskeA twofer from Jim Oleske (Lewis & Clark).  First, his piece, Obamacare, RFRA, and the Perils of Legislative History has been published at Vanderbilt Law Review's En Banc, as part of a symposium on the Hobby Lobby case.  The abstract of his piece:

In NFIB v. Sebelius, four members of the Supreme Court expressed "no doubt" about their ability to read Congress's mind based on the legislative history of the Affordable Care Act. As this essay notes, however, their reading of the legislative history was based on a fundamentally mistaken assumption and ignored the most relevant congressional debates over the Act.

In Sebelius v. Hobby Lobby, the Court will have another opportunity to consider confidently sweeping assertions about legislative history. This time the arguments center on the meaning of the Religious Freedom Restoration Act (RFRA), and the specific contention is that "everyone agreed" in a subsequent congressional debate that RFRA protects for-profit corporations. A full examination of that debate, however, casts considerable doubt on the claim that it demonstrates such an undisputed understanding of RFRA. Accordingly, this essay concludes that the Court would be better advised to interpret RFRA with reference to the surrounding body of law into which it was explicitly designed to be integrated — the Supreme Court's pre-1990 jurisprudence, which had pointedly refused to require religious exemptions from statutory schemes regulating "commercial activity."

Oleske has also published a religion-related article, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, which is appearing in the Harvard Civil Rights-Civil Liberties Law Review.  The abstract:

One of the most active fronts in the debate over same-sex marriage laws concerns proposed religious exemptions that would allow for-profit businesses to discriminate against same-sex couples. These exemptions, which are being championed by a group of prominent constitutional scholars, would provide a shield from state antidiscrimination laws for a wide variety of commercial actors. Examples include innkeepers who refuse to host same-sex weddings, bakers who refuse to provide cakes for such weddings, employers who refuse to extend family health benefits to married same-sex couples, and landlords who refuse to rent apartments to such couples.

Today's widespread academic validation of religious objections to same-sex marriage stands in stark contrast to the academy’s silence in the 1940s, 1950s, and 1960s on the then-perceived conflict between religious liberty and interracial marriage. Although religious objections to interracial marriage were pervasive at the time — as reflected in the statements of politicians, preachers, and jurists, as well as in public opinion polls — those objections never found a home in the pages of America's academic law journals. 

This Article offers the first comprehensive discussion of why the legal academy has been so solicitous of religious objections to same-sex marriage when it was never receptive to similar objections to interracial marriage. After examining several factors that have contributed to this "marriage dichotomy" in the academy — including the rise of the conservative legal movement, the influence of the Catholic Church, and the unique role of race in American history — the Article explains why the most important factor for purposes of the proposed exemptions is the recent reconceptualization of religious liberty as extending fully to for-profit commercial businesses. So extended, religious liberty will inevitably conflict with the rights of third-parties in the marketplace, a dynamic that is vividly illustrated by the prospect of businesses invoking religion to deny service to same-sex couples. This Article concludes that exemptions authorizing such conduct threaten the constitutional right of same-sex couples to equal protection — a right that has received scant attention in the debate until now, but one that can no longer be ignored in light of United States v. Windsor.

Jim has long been interested int he intersection of religion and employment law, so these are well worth the read.


April 2, 2014 in Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

More Evidence that LEL Is Foundational

GuptaAnjum Gupta (Rutgers - Newark) argues in Nexus Redux (forthcoming 90 Indiana L.J. (2015)) that in asylum cases in which individuals fear persecution in their home countries because of race, religion, nationality, membership in a particular social group, or political opinion, courts should adopt "a burden-shifting framework ... that is inspired by the frameworks for assessing causation in U.S. anti-discrimination law.... The article draws from the literature and jurisprudence surrounding intent in U.S. asylum law and anti-discrimination law, as well as from mixed motives jurisprudence."

Now, if the Supremes could just get the burden-shifting framework right ....


April 2, 2014 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Fifth Annual Con Law Colloquium

ScotusFriend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:

Fifth Annual Constitutional Law Colloquium

Friday, November 7th and Saturday, November 8th

Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.

This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.

Titles and abstracts of papers should be submitted electronically to [email protected] no later than June 15, 2014.

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

Conference Organizers:

Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, [email protected]
Professor Alexander Tsesis, [email protected]
Professor Michael Zimmer, [email protected]

Program Administrator:
Heather Figus, [email protected]

Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer

Looks likea  great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.


April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Lawyers and mental health

Depression liesBrian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.

(necklace above available from the Bloggess's online store)


March 31, 2014 in Commentary, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

4th Circuit orders EEOC to pay attorneys fees in suit "moot upon inception"

EeocThere have been a number of relatively high profile cases lately, penalizing the EEOC in some way for its investigation or pursuit of a lawsuit. The decision in Mach Mining, the importance of which is discussed here, overturned one trial court's decision in this vein of cases. The most recent installment comes from the Fourth Circuit and involves attorneys fees. 

In EEOC v. Propak Logistics, Inc., the EEOC had appealed a decision by the trial court that awarded the defendant attorneys fees after the court had dismissed the EEOC's action on the ground of laches. On appeal, the EEOC made two arguments: 1) that it would be unjust to award attorneys fees incurred in making a laches defense because such a defense is not available in an action brought by a federal agency; and 2) the district court improperly relied on its prior laches defense ruling and made erroneous factual findings related to the award. The court of appeals rejected both of these arguments. The court first refused to consider the argument that laches could not be used against a federal agency, holding that the EEOC had waived that argument by dismissing its appeal of the summary judgment. The court of appeals also rejected the second argument, ruling that the district court had relied on grounds separate from the laches defense in awarding fees and that its factual findings were not clearly erroneous. 

The EEOC had brought this action against Propak Logistics, alleging that the company had discriminated in hiring against a class of non-Hispanics on the basis of race or national origin. The action came five and a half years after the initial charge had been filed with the EEOC, during which there had been long periods of inactivity, and after the company had closed the two locations at issue in the complaint. Relying on the standard articulated by the Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the court of appeals held that the decision to file this class claim was unreasonable because at the time it was filed, the EEOC had not identified individual class members and the relief requested could not be granted--the claim was moot.

Of particular note is the concurring opinion by Judge Wilkinson. Acknowledging that the EEOC is subject to a significant burden, given its administrative load and lack of resources, Judge Wilkinson noted that Congress and the Supreme Court had not exempted it from fees or created a standard different from that applicable to private parties. In fact, the power of the government and the costs to small and medium-sized businesses of complying with investigations and defending lawsuits along with the costs of delays to individuals injured by discrimination justified this treatment as a way to promote efficient agency action. Justice Wilkinson concluded by observing,

The story of this litigation is regrettable because the EEOC provides primary recourse to those victims of discrimination that persists in our society to an unfortunate extent. The reference to statutory goals and missions, however, cannot be divorced from the manner in which those purposes are implemented. . . . Surely [the delay and its consequences as acknowledged by the EEOC ] is not and must not become the norm. It is not far-fetched to believe that the nation’s deep commitment to combatting discrimination will be affected for good or ill by the esteem in which this important agency is held.

Interesting and thoughtful decision.

h/t Jonathan Harkavy


March 31, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

Vance Negates Staub?

New ImageThe Supreme Court's decision in Vance v. Ball State is typically viewed as an unalloyed victory for employers, and it certainly means that many more harassment cases under the federal antidiscrimination cases will have to be litigated as direct liability/negligence claims rather than absolute or presumptive liability. That necessarily follows from the Court's narrow definition of "supervisor" to reach only those who can take "tangible employment actions," such as hiring, firing, demoting, promoting, transferring, or disciplining subordinates. It is only such individuals who will trigger automatic employer liability (when they in fact do take such a tangible employment action) or presumptive liability subject to an affirmative defense (when they don't).  All other harassment will be assessed under a negligence standpoint.

Is it possible that Vance went further to also negate what many viewed as at least a partial employee victory in Staub v. Proctor Hospital, a 2010 decision in which "supervisors" also featured prominently?  

In Staub, two lower level managers -- whom the Court labeled as "supervisors"  -- made reports which the jury found to have influenced the actual decisionmaker, one Buck, to fire Staub. The lower level "supervisors" had the motivation to discriminate against plaintiff (in that case, under USERRA) but no power to fire. Buck had the power to fire Staub but no discriminatory motivation. Adopting its version of the "cat's paw" theory, the Court found that the employer could be liable in such circumstances.

Rewind to Vance and the problem immediately presents itself: under the Vance analysis, Buck was the supervisor, and the other two low level supervisors apparently weren't -- after all, they couldn't cause an adverse employment action unless they influenced the actual decisionmaker. So if harassment were the claim, only Buck could trigger automatic or presumptive liability.

That's not per se inconsistent with Staub but the Staub majority went out of its way to make clear that the cat's paw theory it adopted applied only when "supervisors" influenced the decisionmaker. 

Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles.  We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.

But Vance seems to mean that Staub was dealing with the null set: those who can't make an independent decision on hiring, firing, etc. are not supervisors and therefore there isn't anybody who can use the decisionmaker as a cat's paw. So Vance negates Staub, despite the fact that Scalia who wrote Staub was part of the majority in Vance. 

There are various ways out of this conundrum. The most obvious is that there are two different definitions of "supervisor" for purposes of the two claims, although why that should be is beyond me.

Another possibility is that the Staub implicitly resolved the question the Court explicitly reserved: co-workers (the managers who were not Vance-style supervisors) can satisfy the cat's paw theory if they have the requisite motivation and proximately cause the adverse decision.

Yet another possibility looks to a passage in Vance that may be read to create a class of de facto supervisors:

 [E]ven if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee.  . .  . Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. 

Maybe, but Scalia in Staub did not buy the delegation theory Alito suggested in concurring as the basis for subordiate bias liability under the antidiscrimination statutes.

It's true that the Tenth Circuit read the Vance delegation language to elevate to "supervisor" status those who have the power to recommend a tangible employment action:  "Importantly, however, the Court explained that an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a 'supervisor' under Title VII." Kramer v. Wasatch County Sheriff's Office  (10th Cir. Feb. 25, 2014). 

But wait, that may or may not be true, but it doesn't appear that the lower level managers in Staub were supervisors-by-delegation.  Certainly, the majority opinion doesn't treat them that way.  Further, while this might square Vance  with Staub in a few cases, any broad application would effectively destroy the "easily workable" rule that the Vance Court was so intent on providing.

A final possibility might be that an individual is a supervisor under Vance because he or she has the power to take some tangible employment actions (like discipline), which would allow him to influence the decisionmaker under Staub to take a more severe action (such as discharge). There might be some basis for drawing that conclusion from the facts in Staub, but the opinion itself doesn't focus on it. 

The Sixth Circuit noted, but did not resolve, the question of the relationship between the two cases in Shazor v. Prof'l Transit Mgmt.,  (6th Cir. Feb. 19, 2014).

A hat tip to student Justine Abrams for alerting me to Shazor and to my colleagues Ed Hartnett and Tim Glynn for sharing thoughts on the question. 


March 28, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Commentary on NLRB Northwestern decision

FootballThe Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post. 

If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.

In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.

I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.


March 27, 2014 in Commentary, Faculty News, Labor and Employment News, Labor Law, Union News | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 26, 2014

Election Ordered for Northwestern Football Players

NLRB LogoIn a ruling just released by the NLRB Chicago Region, the Regional Director has determined that the Northwestern football players receiving grant-in-aid scholarships are "employees" under the National Labor Relations Act and has ordered an election. 

The ruling is available here


Just a quick addition to Jason's post:

I've only had a moment to scan the decision, but it seems to make a point to rely on common-law agency factors, which is somewhat signficant given the Brown University case's dismissal of those (despite Supreme Court precedent).  Hower, the director also applied Brown as a backup, and still found that they were employees.

Obviously, this is just the beginning of litigation over this, but it's going to be fascinating to watch.  I definitely didn't see this coming from the Region.


March 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Hobby Lobby/Conestoga Wood Roundup

ScotusThe Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.

The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog,  Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate

There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.

I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June. 


March 26, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Pension and Benefits, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Labor Outsourcing; Comparative Scholarship

OutsourcingI just posted on SSRN an article I've co-authored with a slew of other folks. My purpose in blogging it, however, is not so much the content of the article, but the process of creating it. The article grew out of a panel presentation I gave last May at a LawAsia Employment conference. At that conference, I and attendees from several other countries learned from each other that although labor outsourcing is prevalent in all of our countries, the approach to legally regulating it varies considerably. We decided that we'd each write a summary of our country's laws; I then collected the summaries, organized them into an article, added a section comparing and contrasting the different approaches, and found a journal to publish it.

What I've particularly enjoyed about this project is the opportunity it's given me to work with labor/employment practitioners throughout the world. I'm looking forward to collaborating with them on future projects, and next time I'm in Istanbul or Jakarta or Melbourne or Beijing, I'll have a new friend there happy to show and introduce me around.

Anyway, the article is A Comparative Analysis of Labor Outsourcing (forthcoming Arizona J. Int'l & Comparative L. (2014 )). Here's the abstract:

This article compares the laws and the practice of labor outsourcing in five countries: Australia, China, Indonesia, Turkey, and the United States. The article finds both significant similarities and differences among the countries. For example, labor outsourcing is globally prolific and seems to be increasing. However, the general legal approach to regulating it varies considerably, with some countries adopting a regulatory model, others a hybrid regulatory-contractual model, and others not regulating it at all. Similarly, the scope of legal regulations varies considerably by country: some focus on protecting existing employees, other focus on curbing exploitation of workers performing outsourced work; some countries regulate the types of work that can be outsourced or subcontracted and others regulate the firms that can provide labor outsourcing services. Thus, a thorough understanding of labor outsourcing can be achieved only from considering the different perspectives and legal regimes in which it operates.


March 24, 2014 in Employment Common Law, International & Comparative L.E.L., International Contacts, Scholarship | Permalink | Comments (0) | TrackBack (0)

Report from Twelfth Marco Biagi Conference

Panel 1
L to R: Bill Roche (Univ. College Dublin); Avinash Govindjee (Nelson Mandela Metropolitan Univ.); Marius Olivier (Northwest Univ. Potchefstroom); Susan Bisom-Rapp (TJSL); Hèlio Zylberstajn (Univ. of São Paulo); Nikita Lyutov (Moscow State Univ.); Olga Chesalina (Max Planck Institute for Social Law and Social Policy).
William and Iacopo
L to R William Bromwich (Marco Biagi Foundation); Susan Bisom-Rapp (TJSL); Iacopo Senatori (Marco Biagi Foundation)


Friend of the blog Susan Bisom-Rapp (Thomas Jefferson) just returned from the Twelfth International Conference in Commemoration of Marco Biagi in Modena, Italy. Here is her report:

I spent my spring break in Modena, Italy, where every March since 2003, the Marco Biagi Foundation (MBF) at the University of Modena and Reggio Emilia has hosted an international conference devoted to international and comparative employment and labor relations.  I’ve attended the event annually since 2007, making this my eighthconsecutive year as a conference participant.  The conference was held on March 18th and 19th, with a pre-conference Young Scholars’ Workshop taking place on March 17th.


This year’s conference, “Labour and Social Rights: An Evolving Scenario,” centered on the challenges involved in providing employment-related social protection programs at a time when more and more people work outside of traditional employment relationships. (Social protection, loosely defined, consists of the programs that form the social safety net, including, among other things, unemployment insurance, job retraining efforts, workers’ compensation, disability insurance, and publically provided pensions.) Particular attention was given to the economic forces changing standard employment relationships, the values and interests that should be protected as new types of work emerge, and the theories and strategies that should anchor new forms of protection for working people. Participants addressed these issues from a number of disciplines including law, industrial relations, economics, and human resource management.


As an American, I was struck by the extent to which neoliberalism and austerity continue to drive public policy in many countries, especially in the EU. To the chagrin of many scholars at the conference, the quest for workplace “flexibility” has not abated despite the continuing labor market crisis, which manifests itself in elevated unemployment in many nations.  Similarly notable was the concern voiced by commentators about the rise in precarious work and the weakening power of trade unions. These problems are not new but they have been greatly exacerbated by the economic conditions beginning in 2008.  Clearly, we in the US are not alone.


On the upside, it is apparent that scholars are eager to theorize beyond the traditional, paradigmatic employment relationship with the goal of extending vital social security protections to greater numbers of people.  Rather than clear solutions, it seems we are in a period of complex problem-solving.  This requires patience and fortitude, as new models are posed and their utility evaluated.  Ultimately, however, this period of theorizing will come to nothing without political movements demanding change from elected representatives.  In the meanwhile, however, it’s possible to expand one’s thinking about the existing challenges through interaction with labor and employment scholars from other countries.


I was particularly pleased to see prominent US scholars in the program this year.  Trina Jones (Duke) gave an insightful paper on the contemporary challenges facing U.S. civil rights law.  Mike Zimmer (Loyola U., Chicago) and Michael Fischl (Connecticut) addressed different aspects of the challenges facing unions with the former suggesting ways in which transnational unionism might be enabled and the latter gleaning lessons from the way low wage union organizing campaigns have strategically deployed traditional labor law and non-labor law claims.


As for me, I served as chair for a panel titled “Social Dialogue and Labour Standards,” which covered six papers written by professors from six countries: Germany; Russia; South Africa; Ireland; Italy; and Brazil. The discussion on this panel was very diverse since the papers were on six very different subjects.  Even so, common themes were evident. The papers dealt with the way our understanding of what counts as ‘work’ is evolving and changing over time, as is our willingness to think about the rights and protections all people who work should be entitled to.Another theme that emerged from the panel was the variety of mechanisms that can be used to provide voice to the concerns of the most vulnerable workers.


In addition to chairing the panel, I helped organize and was a commentator at the MBF’s annual Young Scholars’ Workshop.  This was my third year of involvement with this portion of the annual conference events.  This year we heard and commented on papers from Ph.D. students from the U.K., the U.S., Italy, Hungary, and Spain. There were eight papers presented in all. Creating ties with the new generation of comparative scholars is one of the most exciting parts of the conference. The quality of the scholarly work they are doing is impressive.


Over time, the MBF has become my academic home-away-from-home. I have been privileged to serve on the Foundation’s International Council since 2009, and two weeks ago was appointed to the MBF’s Scientific Committee, the academic advisory board that advises the Foundation on all of its scholarly projects.  The Scientific Committee met in Modena during the conference to discuss and approve the theme for the Thirteenth International Conference in Commemoration of Marco Biagi.  The theme, tentatively stated, is: Employment Relations and Transformation of the Enterprise in the Global Economy.  Stay tuned for the call for papers.  I hope many of you will consider submitting a proposal.

Sounds like it was great, Susan. Thanks!


March 24, 2014 in Conferences & Colloquia, International & Comparative L.E.L., International Contacts | Permalink | Comments (1) | TrackBack (0)

Friday, March 21, 2014

New on SSRN: Priors and Procedure

BentMy latest on systemic disparate treatment law and the (mis)use of statistical significance is now on SSRN, available here.  From the abstract:

This paper is the second in a series of two papers addressing the influence of priors in systemic disparate treatment discrimination law.  The first paper, Hidden Priors, argued that Bayesian probability theory could harmonize two divergent strands of scholarship on systemic disparate treatment law. . . . While a few scholars have advocated a transition to a Bayesian approach in employment discrimination law, there has been virtually no scholarly treatment of the difficult second-order questions raised by the recognition of priors.  These second-order questions were highlighted at the conclusion of Hidden Priors.  They include hard, but not intractable, questions such as:  Whose priors matter? How should priors be incorporated into civil litigation procedures? And, what are legitimate sources of priors? The lack of scholarly attention to these second-order questions may explain the stubborn refusal of courts, litigants, and most employment discrimination scholars to acknowledge the role of priors in systemic disparate treatment cases. This second article in the series is meant to spur a healthy scholarly discussion of the second-order questions, even if it cannot provide definitive answers to them. This article argues that the procedural devices of our civil litigation system–flawed though they may be–are actually well-suited to properly allocate responsibility among legislatures, appellate judges, trial judges, and fact-finders for estimating the prior likelihood of discrimination.  This article demonstrates that, once acknowledged, priors can be transparently managed by thoughtful implementation of these civil procedure devices. 


March 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2014

Wage Depression RICO Claims Getting Twiqbal'd

Supply Demand CurveSome scholars are skeptical that the new Twombly/Iqbal pleading standard has really changed much of anything in employment discrimination cases.  But the new plausibility standard appears to be having a real, discernable effect in a different type of employment law case – RICO claims for depressed wages.  In these cases, legal workers allege that their employers have engaged in an unlawful criminal enterprise involving the violation of federal immigration law while hiring undocumented workers.  The result, according to plaintiffs, is that wages for legally-employed workers are held lower than they would be if the employer had hired only from the pool of legal workers.

RICO was amended in 1996 to add as predicate racketeering offenses certain violations of federal immigration law, including 18 U.S.C. § 1546, which prohibits employers from using false attestations to satisfy the Immigration and Nationality Act.  These sorts of civil RICO claims for depressed wages have had some success in the past.  But the Fourth and Eleventh Circuit Courts of Appeal recently affirmed dismissals of such claims under the new pleading standards.  These cases involve a fascinating intersection of economic theory, employment law, and civil procedure. 

In the Eleventh Circuit case, Simpson v. Sanderson Farms, Inc., plaintiffs were unskilled laborers at a poultry processing plant operated by defendant.  The plaintiffs alleged that defendant engaged in a pattern of falsely attesting that its employees presented genuine work-authorization and identification documents, in violation of Section 1546.  The district court dismissed plaintiffs’ original complaint without prejudice, then dismissed the first amended complaint with prejudice.  The Eleventh Circuit affirmed.  The basis for affirming was the plaintiffs’ failure to plausibly plead (1) that they suffered economic injury, and (2) that any damages were proximately caused by the defendants’ RICO violation.  On the proximate cause point, the Eleventh Circuit appeared to join the Fourth Circuit’s decision in Walters v. McMahen.  I will have more to say about the proximate cause question in a later post.  For this post, I want to highlight the failure to adequately allege economic injury.    

The court insisted that plaintiffs’ injury theory was based on a “vague market theory” “at only the highest order of abstraction,” relying only on the “basic logic of supply and demand.”  This was not sufficient for the court.  Plaintiffs needed to back up this allegation with “market data” to define the relevant market.  Indeed, by my count the word “data” appears 21 times in the text of the Eleventh Circuit’s opinion.  Certainly, plaintiffs should be expected to adequately allege the contours of the relevant unskilled labor market in which wages were supposedly depressed.  But the court seems to be demanding evidence of the market effect, including precise numbers at the pleading stage.  Some of these numbers would be within the employer’s control – including a number the court specifically sought, the total number of unskilled employees hired by the defendant since 2008.  This demand for data seems odd at the pleading stage.  If abstract market theory is enough to render allegations of unlawful conspiracy implausible, see Twombly, why can’t abstract market theory be used by plaintiffs to plead plausible injury?   

The most troubling part, however, is that this was the affirmance of a dismissal with prejudice.  In dismissing the original complaint, the district court specifically found that economic injury had been adequately pled, but that proximate cause had not.  In dismissing the first amended complaint, the district court for the first time found the economic injury allegations insufficient because of a lack of market data.  If missing market data was the fatal deficiency, shouldn’t the plaintiffs have been given an opportunity to replead?  Perhaps it was all about proximate cause, after all.  I will post more on that issue soon. --JB        

March 20, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, March 17, 2014

Congressional Democrats Aim to Undo Vance


United_States_Capitol_-_west_frontIn Vance v. Ball State University, a 5-4 majority of the Court held that, for purposes of the Ellerth/Faragher test for employer liability for workplace harassment under Title VII,  "supervisors" (as opposed to co-workers), refers only to those "empowered by the employer to take tangible employment actions against the victim."  If the victim is harassed by a co-worker, rather than a supervisor, then the victim must meet a higher standard of proof by showing that the employer was negligent in controlling the working conditions.  Justice Ginsburg, in dissent, said that the "ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today." 

Last week, Democrats in the  House and Senate introduced legislation to effectively reverse the Vance decision:  the Fair Employment Protection Act (S.2133, H.R.4227).  See press releases here and here.  According to a summary issued by Sen. Tammy Baldwin, the bill would clarify who counts as a supervisor for purposes of holding employers liable for harassment, and would include "those who are in charge of an employee's daily work activities, thus able to reassign an employee whom they are harassing."  The bill would also apparently clarify that the same standard should apply to all the major federal antidiscrimination laws, presumably to avoid any Gross v. FBL Fin. Servs.-type problems. 


March 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Shriver Report Documentary: Paycheck to Paycheck

SHRIVERcovfront-1-144x192Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.

In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.


March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Horton, Once Again

New ImageYet another development in the much-watched DR Horton case, see here and here, as the NLRB has petitioned for en banc review.  

As you may recall, the Board found the company's arbitration agreement to violate its employees' rights to engage in concerted action.  The more sweeping ground was that the mandatory arbitration agreement foreclosed any right to concerted dispute resolution because, in addition to cutting off any judicial forum, it barred class or collective arbitration. While the decision did not foreclose a ban on class arbitration per se, it did find impermissible provision that would bar any pursuit of concerted legal remedies.

A panel of the Fifth Circuit rejected this argument while upholding the Board's second, less dramatic ground -- that the arbitration agreement could be reasonably read by employees to bar resort to the Board itself for unfair labor practices. The panel decision was 2-1, Judge Graves dissenting as to the class dispute resolution issue.

The thrust of the Board's petition is relatively simple: the panel majority's reliance on Supreme Court cases rejecting attacks on arbitration  (Gilmer, Concepcion, Italian Colors) is mistaken because these cases did not involve any infringement on a substantive right, and the Horton arbitration agreement infringes on the core susbtantive right underlying the National Labor Relations Act -- the right of employees to act concertedly. 

Makes sense to me, but, then, I'm a pretty easy sell on this question!



March 17, 2014 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Sunday, March 16, 2014

Secunda, Bauries, and Nahmod Amicus Brief in Lane v. Franks

Supreme_court_buildingPaul Secunda (Marquette), Scott Bauries (Kentucky), and Sheldon Nahmod (Chicago-Kent) have posted on SSRN their amicus brief in Lane v. Franks. Joshua Branson of Kellogg, Huber, Hanson, Todd, Evans & Figel also is an attorney of record on the brief, and more than sixty additional law professors signed on. 

The case involves a public employee who was subpoenaed to testify in a fraud prosecution, and who alleged he was fired for truthfully testifying. The matter he testified about was information he had because of his work. The district court granted the defendant summary judgment, reasoning,

Mr. Lane’s testimony did not occur in the workplace, but he learned of the information that he testified about while working as Director at C.I.T.Y. Because he learned the information while performing in his official capacity as Director at C.I.T.Y., the speech can still be considered as part of his official job duties and not made as a citizen on a matter of public concern.

The Eleventh Circuit affirmed. The questions the Court granted cert on are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.

For more on the case, see ScotusBlog here


March 16, 2014 in Beltway Developments, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

New Overtime Regulations?

DOLThe big news yesterday out of Washington yesterday was the story that President Obama is ordering the Department of Labor to revise the overtime exclusion regulations.  We obviosuly don't have the details yet, but one of the main thrusts appears to be an attempt to roll back the Bush-era regulation on primary duty.  In particular, the current rules allow excluded duties to be an employee's "primary duty"--thereby possibly precluded overtime payment--even when those duties make up less than half of the employee's work time.  In addition, the agency will apparently increase the current $455/week salary minimum for the overtime exclusions.  No word yet on what the new amount would be.

It's still early and we'll obviously see a lot of political fighting on this, so stay tuned.


March 13, 2014 in Labor and Employment News, Wage & Hour | Permalink | Comments (1) | TrackBack (0)