Thursday, September 18, 2014
In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.
This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages. Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.
There are two possible incentives that courts have explored. On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization. In this view, denying rights and remedies will reduce undocumented immigration. On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ. In this view, denying rights and remedies will increase undocumented immigration.
Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.
The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”
I think that the Tennessee Appeals Court got it right. Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job. Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.
Now for the side notes:
The oral argument in the Torres case is available on the Appeals Court’s website. At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.” Mr. Wilson answers, “Wales,” and some pleasant conversation ensues. It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.
And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.” (Mr. Torres actually obtained a U visa in February 2013.) At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court. Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.
(Thanks to my colleague Sue Willey for alerting me to the Torres case.)
-- Charlotte Alexander
Friend of blog and employment law scholar Brian Clarke (Charlotte) is featured in the Wall Street Journal Law Blog. The piece provides an extremely interesting and heartfelt look at the “dark side” of being an attorney -- highlighting the high rates of depression that often go along with our profession. I definitely recommend taking a look at this blog, and encouraging your students to do so as well.
-- Joe Seiner
I wanted to pass along an excellent opportunity for students interested in the study of labor law and dedicated to improving the lives of workers. The Major League Baseball Players Trust will award up to five $10,000 scholarships under the new Michael Weiner Scholarship for Labor Studies program. The deadline to apply is November 10, 2014.
More information is available here.
Wednesday, September 17, 2014
Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits. The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.
If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at email@example.com by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.
Tuesday, September 16, 2014
The Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities is seeking recommendations for public members. According to the announcement, the committee “is to study and prepare findings, conclusions and recommendations for the Secretary of Labor on (1) ways to increase employment opportunities for individuals with intellectual or developmental disabilities or other individuals with significant disabilities in competitive, integrated employment; (2) the use of the certificate program carried out under section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 214(c)); and (3) ways to improve oversight of the use of such certificates.” More information available here: http://ow.ly/Brz6I
Thursday, September 11, 2014
Solon Barocas and Andrew D. Selbst have posted "Big Data's Disparate Impact," which focues on the relationship between big data mining and Title VII. Here's the abstract:
Big Data promises to replace faulty intuitions with facts, granting employers, advertisers, manufacturers, and scientists access to richer, more informed, and less biased decisionmaking processes. But where data mining is used to aid decisions, it has the potential to reproduce existing patterns of discrimination, inherit the prejudice of prior decisionmakers, or simply reflect the widespread biases that persist in society. Sorting and selecting for the best or most profitable candidates means generating a model with winners and losers. If data miners are not careful, that sorting can create disproportionately adverse results concentrated within historically disadvantaged groups in ways that look a lot like discrimination.
This Article examines the operation of anti-discrimination law in the realm of data mining and the resulting implications for the law itself. First, the Article steps through the technical process of mining data and points to different places where a disproportionately adverse impact on protected classes may result from what may seem like innocent choices on the part of the data miner. Decisions such as how to transform a problem into one that a computer can solve, how much data to collect and where to collect it, and how to label examples of "good" and "bad" outcomes, are all decisions that can render data mining more or less discriminatory. Alternatively, in a hypothetical case of perfectly executed data mining, enough information will be revealed so as to accurately sort according to pre-existing inequities in society. A disparate impact resulting from this second option would merely reflect an unequal distribution of the sought-after traits in the world as it stands as of the time of data collection.
From there, the Article analyzes the disproportionate impacts due both to errors and reflections of the status quo under Title VII. The Article concludes both that Title VII is largely ill equipped to address the discrimination that results from data mining. It further finds that, due to problems in the internal logic of data mining as well as political and constitutional constraints, there is no clear way to reform Title VII to fix these inadequacies. The article focuses on Title VII because it is the most well developed anti-discrimination doctrine, but the conclusions apply more broadly as they are based on our society’s overall approach to anti-discrimination.
A related working paper by Sarocas, "Data Mining and the Discourse of Discrimination," is available here.
Wednesday, September 10, 2014
Thomas Jefferson School of law is pleased to announce the inaugural Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.
All submissions must be submitted electronically to: firstname.lastname@example.org. All entries must be received by midnight, Pacific Standard Time, January 15, 2015. Winning submissions will be announced by April 15, 2015.
For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Professor Susan Bisom-Rapp, who will be coordinating the competition: email@example.com
Tuesday, September 9, 2014
Catherine Fisk has argued that Harris v. Quinn, taken to its logical conclusion, means that the duty of fair representation violates the free speech rights of unions by compelling them to represent non-members. Does it also violate the Takings Clause? There's an ongoing debate of the issue, initiated by Heather Whitney (Chicago) over at onlabor. Hat tip: Tom Cochrane.
Sunday, September 7, 2014
Bill Herbert writes to inform us that the National Center for the Study of Collective Bargaining in Higher Education at Hunter College has put out a Call for Papers for its 42nd annual national conference: Thinking About Tomorrow: Collective Bargaining and Labor Relations in Higher Education.
The submission deadline is October 17, 2014 and the conference will be April 19-21, 2015. You can send submissions to: firstname.lastname@example.org. Among the topics that the center is interested in are:
Leadership in contract negotiations and labor relations;
Public and private sector negotiations: distinctions and similarities;
Collective bargaining issues and results for non-tenure track faculty;
Academic freedom, due process and shared governance issues for adjunct faculty;
Special issues and challenges in negotiating over graduate assistants;
Approaches for ensuring faculty diversity and for responding to discrimination, harassment and retaliation issues.
The Center is also seeking proposals for interactive workshop trainings, such as those on:
Developing and implementing effective succession plans;
Collective bargaining skills for new administrators and new union representatives;
Tools and best practices for ensuring effective contract administration;
Training, practices, and policies on bullying and harassment.
Check out the announcement website for more details.
An important civil rights advocate passed away recently. George Barrett was a long-time civil rights lawyer in Tennessee, who took on numerous, important cases over the years. The most high-profile was the Geier case, which helped desegregate the University of Tennessee system. One sign of his success was the difference that time makes. The University fought hard against the suit when it was brought and throughout part of its enforcement period. However, in the end, as a judge looked like he would rescind the order mandating diversity efforts (which did, in fact, happen), the University was not happy because it might undermined those efforts.
It might never have happened without Barrett and his presence will be sorely missed.
Hat Tip: Jonathan Harkavy
- Want to work for a company that provides work schedules in advance? Try a unionized one. The NY Times explains that they still exist, such as Macy's.
- Another round of accusations that Apple contractors in China are committing labor abuses. On the bright side, we're at least in an era where Apple and other companies regularly audit their contractors. Whether those audits do much is a different question.
- The fast food "Fight for Fifteen" protests continue, and this time there's more civil disobedience and arrests. Steven Greenhouse reports.
- Another Greenhouse story, this time on prevalence of wage theft suits, including fast food restauarants. It emphasizes that wage theft actions can target contractors and franchisees of companies that are targets of other types of pressure (e.g., Wal-Mart and fast food companies). The story also shows that government enforcement efforts can be an important protection for workers, especially lower-wage ones who might have a hard time hiring attorneys.
- An interesting interview with Rich Yeselson, a lang-time labor activist. He provides a nice, thorough defense of unions' role in the modern economy and why they are still relevant.
- A story on the Market Basket dispute, focusing on the fact that the employees--which were successful in getting a favored CEO back--were non-union. It's a good reminder that the NLRA doesn't just protect unionized employees.
- FedEx loses a dispute over drivers' classification as employees or independent contractors. The case is notable because the Ninth Circuit distinguishes the D.C. Circuit's stress on entrepreneurial opportunity. There doesn't appear to be a direct circuit split yet, but it wouldn't surprise me to see the Supreme Court step in on this issue eventually.
- And, finally, just for fun: 11 jobs that no longer exist. If my mornings are illustrative, I think there's still a market for "knocker-uppers."
Saturday, September 6, 2014
As I've been gathering material for another labor and employment law roundup, I felt compelled to give the following story it's own post. McClatchy papers have a series, Contract to Cheat, that gives a detailed look at the independnt contractor problem. Among many other things, they've gotten access, through a FOIA suit, to government contractor payroll reports for HUD projects. Using those reports, as well as other reporting, the serious provides a thorough examination of the problem and its impact on workers and the industries they work for.
This is really worth looking at. It's got some good data for scholarship, as well as material worth highlighting in class. Definitely check it out.
Thursday, September 4, 2014
Wednesday, September 3, 2014
Image from www.doj.gov
In an interesting announcement, the DOJ stated that it will file a lawsuit against Louisiana Crane Company for reported violations of immigration law. Specifically, the suit alleges that the company held workers that it believed to be citizens of this country to a different standard from its U. S. Workers when it came to presenting employment verification forms. From a Fox News story discussing the case:
“the complaint states that, from at least January 2013 until at least September 2013, Louisiana Crane required employees who it believed to be non-U.S. citizens to present specific documentation for the Form I-9 and/or E-Verify, but allowed believed to be U.S. citizens the flexibility to present a variety of documents.”
As followers of this blog are well aware, immigration law is a complex area and employers must be cautious not to run afoul of the statutory provisions. This will be an interesting case to follow.
-- Joe Seiner
Monday, September 1, 2014
The issue of the appropriate minimum wage continues to be a source of controversy. There has been little movement on the federal level over this question, but many states and local jurisdictions have acted to raise the limits. I recently blogged about the litigation over the city of Seattle's decision to raise the hourly rate to $15 per hour. It now appears that the city of Los Angeles is poised to raise its minimum wage to $13.25 per hour. This decision is meeting with controversy on both sides of the issue. From the LA Times:
“the proposal has received a cool reception from major business groups worried about the effect on payroll and the possibility that higher wages could drive jobs out of the city. Even some labor leaders dislike it because the hourly wage does not immediately rise to at least $15, a goal that unions have been pursuing for months to help their members cope with the city's high cost of living.”
It will be interesting to see if the pressure on the local level to raise the minimum wage has any impact on the federal limits. It is certainly a question many of us in the academic community follow closely.
-- Joe Seiner
Friday, August 29, 2014
CALL FOR PAPERS: "APPLIED FEMINISM AND WORK"
The University of Baltimore School of Law's Center on Applied Feminism seeks submissions for its Eighth Annual Feminist Legal Theory Conference. This year's theme is "Applied Feminism and Work." The conference will be held on March 5 and 6, 2015. For more information about the conference, please visit law.ubalt.edu/caf.
As the nation emerges from the recession, work and economic security are front and center in our national policy debates. Women earn less than men, and the new economic landscape impacts men and women differently. At the same time, women are questioning whether to Lean In or Lean Out, and what it means to "have it all." The conference will build on these discussions. As always, the Center's conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on the intersection of theory and practice to effectuate social change. The conference seeks papers that discuss this year's theme through the lens of an intersectional approach to feminist legal theory, addressing not only the premise of seeking justice for all people on behalf of their gender but also the interlinked systems of oppression based on race, sexual orientation, gender identity, class, immigration status, disability, and geographical and historical context.
Papers might explore the following questions: What impact has feminist legal theory had on the workplace? How does work impact gender and vice versa? How might feminist legal theory respond to issues such as stalled immigration reform, economic inequality, pregnancy accommodation, the low-wage workforce, women's access to economic opportunities, family-friendly work environments, paid sick and family leave, decline in unionization, and low minimum wage rates? What sort of support should society and law provide to ensure equal employment opportunities that provide for security for all? How do law and feminist legal theory conceptualize the role of the state and the private sector in relation to work? Are there rights to employment and what are their foundations? How will the recent Supreme Court Burwell v. Hobby Lobby and Harris v. Quinn decisions impact economic opportunities for women? How will the new EEOC guidance on pregnancy accommodation and the Young v. UPS upcoming Supreme Court decision affect rights of female workers?
The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories. We hope to deepen our understandings of how feminist legal theory relates to work and to move new insights into practice. In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.
The conference will begin the afternoon of Thursday, March 5, 2015, with a workshop. This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection. On Friday, March 6, 2015, the conference will continue with a day of presentations regarding current scholarship and/or legal work that explores the application of feminist legal theory to issues involving health. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Pulitzer Prize winning journalist Sheryl WuDunn, Senators Barbara Mikulski and Amy Klobuchar, and NOW President Terry O'Neill.
To submit a paper proposal, please submit an abstract by Friday, 5 p.m. on October 31, 2014, to email@example.com. It is essential that your abstract contain your full contact information, including an email, phone number, and mailing address where you can be reached. In the "Re" line, please state: CAF Conference 2015. Abstracts should be no longer than one page. We will notify presenters of selected papers in mid-November. We anticipate being able to have twelve paper presenters during the conference on Friday, March 6, 2015. About half the presenter slots will be reserved for authors who commit to publishing in the symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. Regardless of whether or not you are publishing in the symposium volume, all working drafts of symposium-length or article-length papers will be due no later than February 13, 2015. Abstracts will be posted on the Center on Applied Feminism's conference website to be shared with other participants and attendees. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate, as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at firstname.lastname@example.org.
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