Saturday, February 20, 2016
A recent article in The Economist, The big fight, notes that European companies are far ahead of American companies in developing dispute esolution systems for consumer disputes, especially in online ADR. I think a good case can be made that SCOTUS's pro-arbitration line of cases -- especially those that all but extinguish consumer class actions -- have removed the incentive for American companies to invest in developing effective dispute-resolution programs. As a result, American companies risk falling yet farther behind their European competitors.
Here's some key language from the article in The Economist:
The more consumer-friendly stance [of European companies] did not just evolve in the courts but was to a large degree the result of a decision y the European Commission more than 20 years ago to make all small print subject to being examined and potentially overturned by the courts.... The most recent [directive] gives a shot in the arm to ADR, by for instance forcing businesses to inform consumers of their dispute-resolution options.... Firms won't be forced to sign up to an ADR scheme, but eh hope is that most will feel obliged to as the directive takes hold.
Europe also leads the way in developing online mechanisms for mediating the millions of cross-border e-commerce disputes that arise each year.
Friday, February 19, 2016
A union is arguing that the University of Southern California inappropriately interfered with its attempts to organize non-tenure-track faculty members. The alleged interference came in the form of both promises and threats. From the LA Times:
"Faculty at Dornsife College of Letters, Arts and Sciences, the oldest school at USC, voted against joining the Service Employees International Union Local 721 last week, with 113 educators casting ballots in favor of organizing and 127 against. . . [T]he objection alleges that the Dornsife election was 'infected by widely disseminated threats' and 'promises and grants of benefits' that 'affected the outcome of the election.'"
Forming unions in the academic setting certainly presents some unique obstacles, and it will be interesting to see how these particular allegations play out.
Many of our readers have been following the on-going employment questions raised by technology-based companies in the on-demand sector. Much has already been written in this area (see, e.g., here). With regard to the transportation part of this emerging sector, there is now growing concern over the potential liability resulting from driver fatigue. In an apparent response to this concern, Uber has limited the number of hours of its drivers in New York. From Yahoo! News/The Verge:
"Uber says that drivers who are on the road longer than 12 hours will be temporarily deactivated. If they do it again soon after being reactivated, they will be permanently removed from the platform. . . The new policy was adopted just as the TLC says it is looking into new ways to crackdown on driver fatigue, after a cabbie struck and killed an 88-year-old woman on the Upper West Side after 16 hours on the road."
The on-demand economy presents numerous employment issues, and we will continue to follow these developing trends.
Monday, February 15, 2016
Stacie Strong (Missouri) posted this to the ADR profs listserv. I am cross-posting it here with her permission:
As some of you may know, another case involving class waivers in the employment/labor context was heard Friday by the Seventh Circuit. The case, Lewis v. Epic Systems, Inc. (No. 15-2997) (here's the district court opinion), saw the National Labor Relations Board (NLRB) filing an amicus brief. While it is unclear how the Seventh Circuit will rule in this instance, it would seem that the Supreme Court will soon need to address this issue, either to resolve the split between agency (NLRB) determinations on the proper reading of the National Labor Relations Act and various federal court rulings (if the Seventh Circuit follows the approach used by other federal courts since the D.R. Horton case), or between different federal courts (if the Seventh Circuit adopts the NLRB approach).
Sunday, February 14, 2016
In the welter of outpourings of tributes, recollections, and political prognostications that followed the unexpected death of Associate Justice Antonin Scalia, I suspect that his impact on the employment arena will not be front and center. And I also suspect that readers of Workplace Prof generally decry his influence on our field. Nor can I claim not to have offered my fair share (OK, maybe more than my fair share) of criticism, including a recent spoof of his arbitration jurisprudence written with Tim Glynn.
That said, it's easy to forget that Justice Scalia authored some pretty important, and, on balance, pro-plaintiff opinions. Oncale comes to mind, as does Staub v. Proctor Hospital and, most recently, Abercrombie & Fitch. It's true that I've been known to wonder where the hook was when the Justice seemed to be offering a fat, juicy worm to us employment discrimination folk, but that may be just me.
And beyond the contributions of analysis and results of which we approve, the Justice's opinions will be missed for the sheer exuberance (sometimes overexuberance) of his prose. His style was inimitable and, if there is one thing that is almost certain in the future, it is that his replacement's opinions will be less fun to read and engage with.
Friday, February 5, 2016
[Employers often unilaterally alter the terms of at-will employment,] often without advance notice. To date, however, neither courts nor commentators have holistically considered this problem of “midterm modifications” - contractual documents imposed post-hire on implicit or explicit threat of termination. Bringing together the law of noncompetes, arbitration agreements, and employee handbooks, this Article calls for a universal reasonable notice rule for all midterm modifications. Under this rule, courts would enforce midterm modifications only ... where the employer provides enough advance notice to allow the employee time, not only to meaningfully consider the proposed change, but also to compare and secure alternate work. The Article justifies this move [on the basis of] good faith. Procedural good faith means that the employer must act fairly in carrying out discretionary modifications otherwise immune from substantive review. An employer’s choice to impose new terms with immediate effect precludes an employee from exercising what is often his or her only form of bargaining power - the ability to convincingly threaten to leave.
A belated but heartfelt congratulations to Scott Bauries (Kentucky), who last week was voted up for full professorship. Scott's colleagues at Kentucky are extraordinarily lucky to have him a member of their faculty, and I am equally lucky to have Scott as a friend.
As we are well aware, breastfeeding in the workplace continues to be a controversial employment law issue. Recent case law and regulations on the topic have helped to provide some guidance on this issue. The United States is not alone in recent attempts to address this topic. A fascinating article in the New York Times looks at a recent move to permit breastfeeding for members of the Australian Parliament. From the article:
"The rule change in the House of Representatives — where 40 of the 150 members are women — on the first sitting day of the year means that lawmakers can now bring their babies into the chamber. Previously children were confined to the public galleries or offices."
It is easy to forget that other countries around the world sometimes struggle with the same employment issues that we face in this country, and this article serves as an important reminder.
Mitch Rubinstein reports over at Adjunct Prof Blog that a federal judge in Louisville, Kentucky has struck on NLRA preemption grounds a Hardin County, Kentucky ordinance purporting to establish the county as a right-to-work county. The judge found that the NLRA Section 14(b) permits "States and Territories" -- not subdivisions thereof -- to enact right-to-work laws. The case is UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016).
Thursday, February 4, 2016
Lise Gelernter (SUNY-Buffalo) sends word of a recent Fourth Circuit consumer arbitration decision with important implications for employment arbitration and the waiver of substantive rights through arbitration generally. Apart from the second paragraph below, which I added, what follows in entirely Lise's analysis:
A recent Fourth Circuit consumer arbitration decision has an interesting discussion on arbitration agreement enforceability that has implications for the employment and labor arbitration arenas. Hayes v. Delbert Services, Docket No. 15-1170 (4th Cir. 2/2/16).
Western Sky was an online lender owned by Martin Webb. Webb was a member of the Cheyenne River Sioux Tribe, and Western Sky's offices were located on the Cheyenne River Indian Reservation in South Dakota. From its base on the Reservation, Western Sky issued payday loans to consumers across the country. Named Plaintiff James Hayes took a loan from Western Sky for about $2500 and an annual interest rate of 140% . Over the four-year life of Hayes's loan he would have paid more than $14,000. Western Sky all but conceded in the litigation that its loan practices violated a wide variety of federal and state laws.
The loan agreements contained an arbitration clause that stated:
This Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe, Cheyenne River Indian Reservation. By executing this Loan Agreement, you, the borrower, hereby acknowledge and consent to be bound to the terms of this Loan Agreement, consent to the sole subject matter and personal jurisdiction of the Cheyenne River Sioux Tribal Court, and that no other state or federal law or regulation shall apply to this Loan Agreement, its enforcement or interpretation.
(emphasis added). The loan agreement also stated: “Neither this Agreement nor Lender is subject to the laws of any state of the United States of America.”
The loan agreement’s arbitration agreement required the arbitration of any disputes related to the loan or its servicing and stated that the arbitration proceedings shall be “conducted by the Cheyenne River Sioux Tribal Nation by an authorized representative in accordance with its consumer dispute rules and the terms of this Agreement.” The version of the agreement at issue in the case also provided that a party “shall have the right to select” the AAA or JAMS, or another group to “administer the arbitration.” The arbitration clauses also provided that the agreement
IS MADE PURSUANT TO A TRANSACTION INVOLVING THE INDIAN COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, AND SHALL BE GOVERNED BY THE LAW OF THE CHEYENNE RIVER SIOUX TRIBE. The arbitrator will apply the laws of the Cheyenne River Sioux Tribal Nation and the terms of this Agreement.
The agreement also prohibited the arbitrator from applying “any law other than the law of the Cheyenne River Sioux Tribe of Indians to this Agreement.”
After finding that Delbert was not a tribal entity, the Fourth Circuit ruled that the arbitration agreement was unenforceable because it “fails for the fundamental reason that it purports to renounce wholesale the application of any federal law to the plaintiffs’ federal claims.” The court recognized that the Supreme Court has found choice of law provisions and waivers of certain rights, such as class actions, to be enforceable, but distinguished the Delbert case because it violated the Supreme Court’s ruling that arbitration waivers that blocked “a party’s right to pursue statutory remedies” were not enforceable. The court stated: “a party may not underhandedly convert a choice of law clause into a choice of no law clause -- it may not flatly and categorically renounce the authority of the federal statutes to which it is and must remain subject.”
This appears to be a pretty extreme case of a waiver. In the employment and labor arena, the Fourth Circuit’s reasoning might have some play if there is an arbitration clause that appears to effectively waive all the rights of a party under an otherwise applicable law, such as Title VII or the FLSA. But the Fourth Circuit made it clear that it considers the Supreme Court’s decisions in ATT v. Concepcion and Italian Colors to limit that inquiry by embracing the enforceability of waivers of certain procedural or attendant rights, such as class actions, that merely make it more difficult or costly to pursue a federal remedy.
Monday, February 1, 2016
Roger Abrams (Northeastern) has just published The Labor Arbitration Workshop: An Experiential Approach (Carolina Academic Press, 2016). The book is a fascinating collection of (mostly) arbitration awards. An accompanying website contains simulations that can be used to develop lawyering skills. Here's the publisher's description:
Using these unique experiential materials, students explore the important role of alternative dispute resolution in the workplace. Using court and arbitration decisions as well as supplementary materials and problems, students discuss the role of the advocate, the relationship between arbitration and the judicial system, issues of arbitrability, evidence and procedure, as well as a variety of substantive contractual issues normally addressed in arbitration, such as seniority, fringe benefits, wages and hours, subcontracting and union security. In particular, the workshop focuses on "just cause" discharge and discipline cases. Using transcripts and simulations provided in a supplementary website, students draft an arbitration brief based on a transcript of a hearing and participate in an arbitration simulation using witnesses and documentary evidence.
Richard Kaplan (Illinois) has just posted on SSRN his chapter What Now? A Boomer's Baedeker for the Distribution Phase of Defined Contribution Retirement Plans (NYU Review of Employee Benefits and Executive Compensation, Chapter 4, 2015). Here's the abstract:
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
Saturday, January 30, 2016
In a highly controversial move, the President announced this week proposed new rules requiring private employers with over 100 employees to provide additional data to the EEOC on worker salary. The move could help provide more transparency on pay issues, thus reducing the likelihood of pay discrimination. The New York Times has a great summary of the issue here. The EEOC has also issued a press release on the rules, which states that:
"This proposal would add aggregate data on pay ranges and hours worked to the information collected, beginning with the September 2017 report. Proposed changes are available for inspection on the Federal Register website and will be officially published in the Federal Register on February 1, 2016. Members of the public have 60 days from that date April 1, 2016, to submit comments. . . The new pay data would provide EEOC and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. This pay data would allow EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination."
We will certainly follow this proposed rule, which could dramatically impact the field of pay discrimination.
Friday, January 29, 2016
The New York Law Journal reports a story about a restaurant group going the extra mile in trying to dig up dirt about a plaintiff in an employment discrimination suit. According to the story, the defendant served third party subpoenas on the plaintiff's former employers, seeking pretty much everything they had on the plaintiff's work record. To add a nice touch, the subpoenas were served on Christmas Eve.
In Henry v. Morgan's Hotel Group, the plaintiff's motion to quash was granted by Magistrate Judge Cott. First, the defendant failed to serve notice on the plaintiff before serving the subpoenas on the third parties, thus frustrating the plaintiff's opportunity to object before the third parties were notified. This created the real possibility of prejudice -- indeed, one of the former employers had produced the records before the court's decision on the motion to quash. Indeed, the mere service of the subpoena was found to be prejudicial to the plaintiff -- his concern that once and potentially future employers were effectively notified that plaintiff had filed a discrimination suit was legitimate.
To add insult to injury, the subpoenas were both overbroad as to what was to be produced and sought clearly irrelevant information. The defendant claimed that it needed the information to challenge plaintiff's credibility in his claim that he was an "exceptional waiter." The court found it not "remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue." The court did not that there was no evidence adduced about any misrepresentations that might justify an after acquired evidence defense.
Saturday, January 23, 2016
A few days ago, over 100 law professors (present company included) filed a petition with the NLRB to change its approach to captive audience meetings. Under the proposed rule, the NLRB would return to its prior policy of providing a union the opportunity to hold a meeting with employees if the employer does the same. This differs from the current approach, under which employers can hold as many captive audience meetings that it wants (up to 24 hours prior to the vote), without giving the union similar access to employees.
One-hundred and six (106) professors of labor law and employment relations have just filed an “interested person’s” petition with the National Labor Relations Board, the intent of which is to correct an unfair and undemocratic practice that American employers have long used to keep unions from winning NLRB elections. That practice is conducting what has come to be known as “captive-audience” meetings. These are anti-union talk sessions that management stages with employees on company premises during paid working time, with attendance compulsory and the union denied an equal opportunity to address those employees. It is a practice that employers tend to use almost reflexively whenever their employees are engaged in union organizing or seem likely to become so engaged. Such conduct was originally held to be a violation of the National Labor Relations Act, but that was changed in1953 by a Republican dominated Labor Board. Although the Board in 1966 commenced a reconsideration of that ruling, it never completed the process, deliberately leaving the matter open for change sometime in the future— which may now be about to happen. . . .
The petition points out that a similar rule has long prevailed for union elections on the airlines and railroads, which are covered by the Railway Labor Act, a similar yet different statute The National Mediation Board, which administers those elections, invalidates any election where captive-audience meetings have been held and the union loses, whereupon a new election is ordered. That practice has had a noticeable impact, for such meetings almost never occur during union-organizing campaigns on the airlines and railroads, and there have been very few instances of such violations. Petitioners assert that the absence of captive audiences in those industries might even be a significant factor—though certainly not the only factor—that accounts for the high rate of union membership—sixty-two percent—among airline and railroad employees; whereas it is less than seven percent among private-sector employees as a whole, a difference about which the public seems unaware.
image from eeoc.gov
EEOC General Counsel (and guest blogger) David Lopez sends along a couple of recent developments in the case law for the EEOC. First, following the Supreme Court's recent decision in Mach Mining, the lower court determined that the agency could proceed with its sex discrimination lawsuit against the company in the case. Second, the EEOC also recently settled a gender identity case that was pending against Deluxe Financial Services Corp. for $115,000 and an agreement that it would change its practices. From the agency's press release on the gender identity case:
"According to EEOC's complaint, Britney Austin was assigned the male sex at birth and presented as male when hired by the company. Ms. Austin performed her duties satisfactorily in the company's Phoenix offices throughout a lengthy tenure. However, after she informed her supervisor that she was transgender and began to present as a woman at work, Deluxe refused to let her use the women's restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pronouns to refer to her."
We appreciate the general counsel's office keeping us updated on these developments, and we will continue to follow these important issues.
-- Joe Seiner
Thursday, January 21, 2016
There has been a recent trend in the on-line news media of workers starting to organize. In an interesting development on this front, CNN Money reports that the Huffington Post will join this group as workers there have now unionized as well. From the CNN report: "The management of the site voluntarily recognized its employees' union, the Writers Guild of America, East. The bargaining unit will consist of 262 employees." This on-line media outlet represents the largest such media source to form a union.
-- Joe Seiner
Tuesday, January 19, 2016
Susan Bisom-Rapp (Thomas Jefferson) sends word of a conference at her school that will likely interest some of our readers:
Thomas Jefferson School of Law
Sixteenth Annual Women and the Law Conference
and Ruth Bader Ginsburg Lecture Series
Pursuing Excellence: Diversity in Higher Education
Friday February 5, 2016 9:00 a.m. – 5:00 p.m.
5.5. hours Elimination of Bias MCLE
Thomas Jefferson School of Law’s 16th Annual Women and the Law Conference, Pursuing Excellence: Diversity in Higher Education, will be held Friday, February 5, 2016 at Thomas Jefferson School of Law in San Diego, California.
This conference brings together leading academics, educators, institutional leaders, and policy makers to examine how diversity in institutions of higher education affects and is inspired by students, faculty, and leaders. The conference will highlight a number of critically important topics including facilitating educational access for undocumented students, challenges to developing and nurturing a diverse educational environment, the importance of training students in professional programs (including medicine and law) to serve diverse populations, and challenges to affirmative action ranging from Prop 209 to the current U.S. Supreme Court case Fisher v. University of Texas.
Professor Bryant Garth, Professor at UC Irvine School of Law and former Dean of Southwestern Law School and Indiana University School of Law, will deliver the Ruth Bader Ginsburg Lecture. He continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.
Other speakers include: Toni Atkins, Speaker of the California Assembly; Susan Bisom-Rapp, Professor of Law, Thomas Jefferson School of Law; Marisol Clark-Ibáñez, Professor of Sociology, Cal State University San Marcos; Youlonda Copeland-Morgan, Associate Vice Chancellor, Enrollment Management, UCLA; Meera E. Deo, Professor of Law, Thomas Jefferson School of Law; Adrian Gonzales, Interim Superintendent/President and Vice President of Student Services, Palomar Community College; Vallera Johnson, Administrative Law Judge; Catherine Lucey, Professor and Vice Dean for Education, UCSF School of Medicine; Mary Ann Mason, Professor of Law and Co-Director of the Center on Health, Economic, and Family Security, UC Berkeley; Linda Trinh Vo, Professor of Asian American Studies, UC Irvine; Shirley Weber, California Assemblywoman, Chair of the Assembly Select Committees on Higher Education and Campus Climate, former President of the San Diego Unified School District; and Susan Westerberg Prager, Dean, Southwestern Law School, former Dean UCLA School of Law, former Executive Director and CEO of AALS.
For additional information and registration, visit: http://www.tjsl.edu/conferences/wlc/2016.
Monday, January 18, 2016
The 11th Circuit on Thursday released Chavez v. Credit Nation Auto Sales, reversing a trial court's grant of summary judgment for the employer on a mixed-motive claim. The trial court held that a plaintiff in a mixed-motive case must prove pretext. The 11th Circuit disagreed, finding that mixed-motive analysis is a separate method of proof from the McDonnell Douglas/Burdine analysis, and that a plaintiff need not prove pretext in a mixed-motive case.
Jillian Weiss (photo above), who litigated the case for the plaintiff, writes to us:
As you may recall, I had an appeal before the 11th Circuit on the issue of standards in mixed motive cases. The Court has issued its opinion, and I thought you might be interested. It's attached. It was your blog's suggestion that Nassar would be important in making the case on mixed motive causation (from 4/24/14). It was. Here's what the Court said:
From pages 11-12: More recently, the Supreme Court has told us that “Section 2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, at __, 133 S. Ct. 2517, 2530 (2013) (emphasis added). “[B]ut-for causation is not the test”; rather, “[i]t suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Id. at 2523.
That quote came from our brief, which I put in there because I read your blog. Thanks! ... We appreciate your blog.