Monday, September 14, 2015

AALS Sections Info Request

Danielle Weatherby & Naomi Schoenbaum are collecting information for the AALS labor & employment sections.  Their request is below, with a Nov 1 deadline: 

Dear Colleagues:

It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.

First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure, please e-mail that news to Danielle Weatherby at

Second, please also e-mail Danielle Weatherby with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.

Third, we want to include a list of relevant employment or labor law-related publications published in 2015.  Please hold your forthcoming 2016 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2015 publications to Danielle Weatherby.

Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Young v. UPS, Inc.,  EEOC v. Abercrombie and Fitch, or the granting of cert. in Friedrichs v. California Teachers Association), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity, as the newsletter is widely circulated. Just let us know what you are interested in writing about. Please send your submissions to Naomi Schoenbaum at

Please send all submissions by November 1, 2015.

Thank you very much for your help!

Best regards,

Danielle Weatherby & Naomi Schoenbaum


September 14, 2015 in Faculty Moves, Faculty News | Permalink | Comments (0)

Thursday, September 10, 2015

Robots in the workplace

There is a very, very interesting article on by Emily Dreyfuss about her experience teleworking via an iPad robot on wheels.  I haven't thought deeply about technology in the workplace, so this article was rather mind-blowing for me, and opens up all sorts of avenues for employment law inquiry.  Ms. Dreyfuss discusses, for example, how violated she felt when a co-worker moved or touched her robot without her permission; how freeing it felt to be very pregnant at her home yet not pregnant at all in her robot incarnation at work; how she and her co-workers had to negotiate accommodations to account for her robot's mobility or lack thereof. Harassment law?!?  Identity at work?!?  Analogs to disability law?!?  Fascinating. 

- Charlotte AlexanderCbd7fc5680db457f32f5d6f34c07610e

September 10, 2015 in Workplace Trends | Permalink | Comments (0)

Wednesday, September 9, 2015


1. There's an interesting article in the Chronicle of Higher Education on an antitrust suit challenging an alleged no-poaching agreement between Duke and UNC.  Cooperation or Collusion? Lawsuit Accuses Duke and UNC of Faculty Non-Poaching DealIt may not match the hype about the Silicon Valley no-poaching litigation, but it does strike pretty close to home. And, crediting the Chronicle's report, there's apparently a dispute about whether the schools have a policy or just a practice. Conscious parallelism, anyone.  Not to mention the reality that there is some movement between the professoriat at the two universities. 

2. Jonathan Harkavy has posted his always-interesting annual review of Supreme Court employment decisions. 


September 9, 2015 in Workplace Trends | Permalink | Comments (0)

Tuesday, September 8, 2015

Paid Leave for Federal Contractors

Per an article from the LA Times, the President has announced paid sick leave for federal contractors.  Under the FMLA, workers covered by the statute are entitled to twelve weeks of leave, which is unpaid.  The executive order, however, requires that federal contractors pay workers for sick time.  From the article:

"The action will provide coverage for as many as 300,000 workers whose jobs do not currently provide paid sick leave and many others with limited paid time-off benefits. It will begin in 2017. The U.S. is the only industrialized nation without a federal family-leave law that guarantees workers can receive pay while taking time to care for themselves and loved ones."

This is an important step for paid leave time.  As seen in the blog post immediately below, however, even where private companies have provided such leave, some workers may be reluctant to take the time off.  It will be interesting to see how this new paid leave works with federal contractors.

- Joe Seiner

September 8, 2015 | Permalink | Comments (0)

Saturday, September 5, 2015

Thanks But No Thanks - Many Employees Not Taking Parental Leave


In a fascinating NY Times article this week, there is a discussion of whether workers are actually taking parental leave that is made available to them.  Under federal law, workers are only entitled to twelve weeks of unpaid leave (and only at larger companies).  Many businesses have lead the way in providing paid leave to workers that are caring for a new or adopted child.  But it is unclear whether employees are actually availing themselves of this leave.  From the article:

"Employees may wonder if [taking parental leave] is acceptable or if it could hurt their careers. At many companies, the new benefits are at odds with a highly demanding, 24/7 workplace culture — a culture that starts from the top."

The article is an important reminder that companies that truly want to provide such leave to workers must stand behind their policies.  And, simply because a company provides a benefit does not necessarily mean that it will be used by workers.

-- Joe Seiner

September 5, 2015 | Permalink | Comments (0)

Wednesday, September 2, 2015

Federal Judge Permits Uber Class Action


In a detailed, 68-page decision a federal district court in the Northern District of California permitted a class action to proceed against Uber on the question of whether drivers are employees or independent contractors.  The decision, issued yesterday by Judge Chen, is important for workplace plaintiffs, particularly after the Supreme Court raised the bar for establishing commonality for employment plaintiffs.  While the case is largely a win for plaintiffs, the decision itself is much more nuanced and worth reading if you are interested in this area.  From the decision:

"[o]n one hand, Uber argues that it has properly classified every single driver as an independent contractor; on the other, Uber argues that individual issues with respect to each driver’s “unique” relationship with Uber so predominate that this Court (unlike, apparently, Uber itself) cannot make a classwide determinationof its drivers’ proper job classification."

The media has quickly picked up on this important decision.  A couple of interesting, early articles are available from Huffington Post/Reuters and We will definitely continue to follow this case closely.

- Joe Seiner

September 2, 2015 | Permalink | Comments (0)

Tuesday, September 1, 2015

EEOC Finds "Continuing Pattern" of Pay Discrimination at U. Denver Law School

DenverThe Denver Post reported yesterday that the EEOC

has threatened to sue the University of Denver's law school over what the commission calls a "continuing pattern" of paying female professors less than their male colleagues.

In a letter sent to the university on Friday, the director of the Equal Employment Opportunity Commission's office in Denver wrote that an EEOC investigation found a gender pay gap among the school's legal faculty dating back to at least 1973. The commission concluded that the university knew about the gap by 2012, "but took no action to ameliorate this disparity, in effect intentionally condoning and formalizing a history of wage disparity based on sex."

The EEOC's investigation came after longtime DU law school Professor Lucy Marsh filed a complaint with the commission more than two years ago. Marsh's attorney on Monday provided a copy of the letter to The Denver Post.

Marsh said the law school could have to pay as much as $1.2 million in total damages to its female law professors, in addition to paying them salaries going forward equal to what their male colleagues in similar positions are paid.

Hat tip: Paul Caron at TaxProf Blog.


September 1, 2015 in Employment Discrimination | Permalink | Comments (0)

Contracting Out of Public Policy

New ImageA doctor, upset about the outcome of a pregnancy, threatened to report to the hospital the conduct of certain nurses whom he thought had contributed to the death of the baby. He also disclosed to the mother what he believed was malpractice in the treatment and consulted an attorney about reporting the nurses and a fellow physician to the hospital or Board of Medicine.

The trial court instructed the jury that all three activities were protected under Iowa’s public policy cause of action and, while there was reason to believe that the plaintiff was a difficult personality in other respects, the jury found that this protected conduct was a “determining factor” in the physician practice group’s decision to terminate plaintiff’s employment with the group.

Most of us would label this “not much to appeal,” and move on to a more interesting case. The Eighth Circuit took a different view in Hagen v. Siouxland Obstetrics & Gynecology, PC, overturning the verdict and ordering judgment entered for the defendant.

 The reason? The doctor had a contract with the group and had not pursued his claims under that contract. The Eighth Circuit read the Iowa public policy tort as applicable only to at-will employment and, since Hagen’s employment was not at will, the tort did not apply.

 This is more than a little surprising, but maybe not totally wrongheaded when read in context. In Iowa, as in many other states, the public policy tort emerged in the setting of at-will employment, and language in Iowa judicial opinions repeatedly referred to it as “a narrow exception” to the at-will rule.  More pointedly, the trial court had certified questions to the Iowa Supreme Court, including “Does Iowa law allow a contractual employee to bring a claim of discharge in violation of Iowa public policy, or is the tort available only to at-will employees?” While the state Supreme Court dodged that question, that decision might have implied that the issue was at least more debatable than one might have imagined.

If, then, Iowa tort law did not protected the plaintiff, what would have happened had he in fact pursued his contract claim? Although the practice group claimed it had cause, the jury verdict suggests it would have lost on that score, but the remedies would have been limited.  Most obviously, Hagen would have had no recovery for the kinds of damages that are available only in tort – mental distress and punitive damages. But perhaps as important, contracts come in all shapes and sizes, and the plaintiff’s contract claim would have yielded a very modest expectation recovery: there was a right by either party to cancel on 90-days’ notice, which would presumably limit Hagen’s recovery to the compensation otherwise due during this time period.

In short, even had the whistleblowing doctor pursued his contract claims, the very nature of those claims would have left him with very little protection for his conduct, which means that the purposes of the public policy tort would be effectively frustrated in this context.

Maybe not a big deal because very few employees are anything but at will?  And the court did stress that plaintiff was not just any old employee – he was president and co-owner of the practice group. But even putting aside the possibility that key players in many settings will be higher level workers with some kind of contractual protection, there’s the irony that Hagens creates incentives for employers to immunize themselves from public policy suits by providing employees contractual job security. If an employer contractually provided each worker for cause protection for a week, would that be sufficient to take it out of the tort system?  The court adverts to that issue, suggesting in dicta that a contract providing for discharge on 30 days’ notice without cause might still be actionable in tort. But it does not explain why for-cause protection for 90 days is somehow different. Is it the 90 days or the "for cause," and, if the latter, what does that ensure beyond three months of pay?

By the way, one of the questions certified to the Iowa Supreme Court was whether the at-issue conduct was protected – and the justices divided equally on that. One wonders how broad the public policy tort is in Iowa, even without regard to the newly established contract exception.



September 1, 2015 in Employment Common Law | Permalink | Comments (1)

Saturday, August 29, 2015

New Book: Comparative Labor Law

ComparativeCongratulations to Matt Finkin (Illinois) and Guy Mundlak (Tel Aviv) on the publication by Elgar of their book Comparative Labor Law. Here are the publisher's notes and the list of contributors:

Economic pressure, as well as transnational and domestic corporate policies, has placed labor law under severe stress. National responses are so deeply embedded in institutions reflecting local traditions that meaningful comparison is daunting. This book assembles a team of experts from many countries that draw on a rich variety of comparative methods to capture changes and emerging trends across nations and regions.

The chapters in this Research Handbook mingle subjects of long-standing comparative concern with matters that have pressed to the fore in recent years. Subjects like “soft law” and emerging geographic zones are placed in a new light and their burgeoning significance explored. Thematic and regional comparisons capture the challenges of a globally comparative perspective on labor law.

The fresh and thoughtful comparative analysis in this Handbook makes it a critical resource for scholars and students of labor law.

K. Banks, A. Bogg, S. Bonfanti, S. Butterworth, S. Cooney, L. Corazza, N. Countouris, G. Davidov, D. du Toit, K.D. Ewing, M. Finkin, R. Fragale, M. Freedland, N. Garoupa, S. Giubboni, F. Hendrickx, J. Howe, A. Hyde, E. Kovacs, R. Krause, N. Lyutov, E. Menegatti, L. Mitrus, G. Mundlak, R. Nunin, M. Pittard, O. Razzolini, K. Rittich, R. Ronnie, E. Sánchez, K. Sankaran, M. Schlachter, A. Seifert, A. Stewart, H. Takeuchi-Okuno, A. Topo

Hat tip: Howard Fenton.


August 29, 2015 in Book Club, International & Comparative L.E.L. | Permalink | Comments (0)

Ashley Madison Leak & Federal Employees


The fallout from the Ashley Madison leak has extended into numerous areas, including employment.  The government is now investigating a large number of federal workers that may have visited the site during work hours.  According to an article at the Washington Post, approximately 15,000 federal workers (or active military) may be investigated.  The government is examining how long employees visited the site, as well as the nature of the visit.  From the article:

"Government officials and employment attorneys agreed that the likelihood of getting hit with a misconduct charge could depend on how much time the employee has spent on the site and how sexually explicit the e-mails are."

It will also be interesting to see if any notable names emerge as part of the investigation.  The hack of this website certainly spells trouble for a number of federal workers.

-- Joe Seiner

August 29, 2015 | Permalink | Comments (0)

Friday, August 28, 2015

Workplace Safety After Virginia

There are many compelling storylines to come out of the recent tragic events in Virginia.  One issue is the topic of workplace safety.  A fascinating article in the NY Times today looks squarely at that question, examining what employers can do if suspicions arise concerning particular workers.  From the piece:

"Employers face conflicting legal obligations and huge uncertainties. They have a legal duty to provide a safe workplace, and can even be sued for failing to prevent predictable threats, according to legal experts. . . The federal disabilities act prohibits discrimination against disabled people, including those with mental illness."

The article considers the views of a number of different disciplines and is worth reading.  The issue is an important reminder of the importance of properly addressing workplace safety issues.

- Joe Seiner

August 28, 2015 | Permalink | Comments (1)

Thursday, August 27, 2015

NLRB Issues New Joint-Employer Test

NLRBToday, the NLRB issued a 3-2 decision in the long-awaited Browning-Ferris case.  I'm heading off to class, so I haven't read the decision yet and will copy the Board's announcement:

In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.”  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.  

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.  

In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions. 

The Board ordered that within 14 days the ballots that were impounded on April 25, 2014 shall be counted and the appropriate certification issued.

This decision could have a big impact on many industries, most notably, fast food.  The General Counsel has already gone after McDonald's (see here and here) and expect more of the same now that the Board has spoken.


August 27, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (2)

Saturday, August 22, 2015

Are Yelp Reviewers "Employees"?

In an interesting decision, the Northern District of California (where the Uber and Lyft cases both arose) recently ruled that Yelp reviewers are not employees.  This is true despite the allegations that the individuals were purportedly told to write the reviews, and did so under the control and at the direction of the company.  In the case, Jeung v. Yelp, Judge Seeborg writes that a "reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all  or that at most would constitute acts of volunteerism."  An interesting article on the case over at points out a "core weakness of the plaintiffs’ case" is that "they apparently seek to impose an employment relationship because website users provide value to a user-generated content website, but many value exchanges between businesses and vendors/customers are well outside of employment law."

This case -- like Uber and Lyft -- points out the difficulty with trying to fit modern businesses under the current employment law rubric.  The issue has obviously captured the attention of the legal community, and the broader public as well.

-- Joe Seiner

August 22, 2015 | Permalink | Comments (1)

Thursday, August 20, 2015

Record Payout in Workplace Accident

Many scholars -- as well as those in the labor and employment law community -- have lamented the inadequate remedies offered by OSHA.  The recent Bumble Bee case represents one instance where a horrific workplace death took place at a company, and more substantial fines were imposed.  From the New York Times, a worker

"was still inside [a pressure cooking] apparatus [when co-workers] packed 12,000 pounds (5,443 kg) of canned tuna inside, closed the door and turned it on. His badly burned remains were later discovered by another employee."

The incident lead to criminal charges being filed and ultimately a recent $6 million settlement in the case.  Two of the workers also plead guilty to the criminal charges in the case, though it looks like they may avoid any jail time for the incident.  Bumble Bee issued a statement that:

"While this resolution will help bring closure with the district attorney’s office, we will never forget the unfathomable loss of our colleague Jose Melena and we are committed to ensuring that employee safety remains a top priority at all our facilities".

This was an almost unthinkable case, and hopefully will serve as a reminder of the importance of workplace safety for companies everywhere.

- Joe Seiner

August 20, 2015 | Permalink | Comments (0)

Monday, August 17, 2015

NLRB Declines Jurisdiction in Northwestern Football Case

NLRBThis just in from the NLRB:

Washington, D.C. - - In a unanimous decision, the National Labor Board declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. The Board did not determine if the players were statutory employees under the National Labor Relations Act (NLRA).  Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union. 

In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS). By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution.  As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.

This decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.

I haven't read the decision yet, but I'll admit that I didn't see this one coming.  On its own merits, one can understand the NLRB's conclusion that if it allowed Northwestern scholarship players to unionize, labor stability in all of college football wouldn't be well served.  On the other hand, it could prompt much needed changes in college football.  Moreover, it's not obvious why all of college football is the issue--one could envision productive collective-bargaining at just Northwestern, even if it was limited in scope.  And, of course, on a selfish note, it would've been nice to have the Board speak to the issue of players' status as employees.  But the Board has spoken--unanimously, no less, which I think is also important--and that should settle the issue for a while.


August 17, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Managing Without the Manager Rule

MeThis is a good summer for those interested in the “manager rule” but not for the rule itself. A few weeks ago I posted on the New Jersey Supreme Court’s refusal in Lippman v. Ethicon to limit statutory whistleblower protection for “watchdogs”; now the Second and Fourth Circuits have followed suit under Title VII.

A “watchdog” or “manager rule” would bar employees whose job responsibilities include investigating and preventing discrimination by their employer (or otherwise ensuring its compliance with the law) from claiming legal protection for acts taken within those job duties. In other words, opposition to, say, discrimination, within a manager’s job duties is not protected conduct; rather, such employees must step outside their roles in order to have the protection of the antidiscrimination and whistleblower laws.

In Demasters v. Carilion Clinic, the Fourth Circuit considered what would (despite the district court's analysis) seem to be a pretty open-and-shut case if plaintiff’s allegations were true and if no manager rule took the employer off the hook.  The plaintiff claimed to have been told he was fired for failing to take his employer’s side when he supported a worker’s sexual harassment and retaliation complaint and criticized the employer’s handling of the matter. The employer argued that his conduct was within plaintiff’s job duties EAP consultant and therefore not protected conduct,

Writing sweepingly, the court ruled that the manager rule “has no place in Title VII jurisprudence.” Looking to the broad language in Crawford v. Metropolitan Government of Nashville & Davidson County -- an employee’s communication to her employer of a belief that it has discriminated, “virtually always constitutes the employee’s opposition to the activity” – it found the textual answer clear. It also noted the catch-22 that would be created by a contrary rule: since “insubordinate, disruptive, or nonproductive” conduct is not protected, a rule requiring an employee to step outside of his duties to be within § 704(a) would create a damned-if-you-do-damned-if-you-don’t scenario. Citing Deborah Brake’s superb article, Retaliation in the EEO Office, the court saw “no need to make plaintiffs walk a judicial tightrope when the statutory scheme created by Congress offers a clear path.” 

DeMasters also saw a tension between a manager rule and the affirmative defense to harassment by discouraging HR employees “from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” And it rejected the employer’s policy argument of a “litigation minefield,” finding it much more troubling that the manager rule would permit employers to punish those for advocating the claims of those they are duty-bound to protect.”

As a side-note, while DeMasters seems to be a precedential Fourth Circuit opinion, the three judges on the panel were all from the Third Circuit since all members of the Fourth Circuit recused.  The court provided no reasons, but it's been reported that one of the judges is married to the CEO of the defendant. In any event, I guess there’s not much chance of en banc reversal!

The least protective of employees is the Second Circuit’s Littlejohn opinion, but even there the manager rule as it is often framed fared poorly.  The plaintiff, an African American woman, complained of racial discrimination after being demoted from her position as Director of EEO and replaced by a white female employee. Littlejohn objected to her former employer’s selection process and “failure to abide by proper anti-discrimination policies and procedures” both in her capacity of Director of EEO and after her demotion. The Second Circuit also looked to Crawford’s “virtually always” language in rejecting the defendant’s argument that, under this standard, any terminated human resources or EEO employee (such as Littlejohn) would have an “automatic” prima facie case of retaliation, which would in turn lead to gratuitous litigation for employers.

In finding such a concern overblown, however, the court recognized a “significant distinction” between reporting other employees’ complaints of discrimination and communicating the manager’s own support for such a claim. In other words, conveying others’ complaints is a routine job duty, but if the manager actively supports other employees in their Title VII claim or has a personal complaint, that activity is protected opposition. In the case at hand, Littlejohn was not merely conveying others’ complaints; rather, she communicated her belief that the personnel decision-making process involved unlawful discrimination. Therefore, her complaints were protected activities.

Given this distinction, one could categorize Littlejohn as adopting a “mini-manager rule” since some job duties do not constitute protected conduct. However, it will be a rare HR professional who is a complete automaton (“merely transmits or investigates a discrimination claims”) and does not make a recommendation or comment on a complaint of discrimination or the results of an investigation.


Thanks to Samira Paydar for her help on this. 



August 17, 2015 in Employment Discrimination | Permalink | Comments (0)

Friday, August 14, 2015

"Wage Peak System" Legislation Pending in South Korea

KoreaI'm in Hanoi today for the annual LawAsia Employment Conference, and was intrigued by Ujin Ahn's description of the "wage peak system" legislation currently pending in South Korea. Whereas wages tend to increase steadily over a worker's lifetime, this proposed legislation would change that so a worker's wages would rise steadily from early career until retirement minus c. 5-7 years, peak, and then fall until retirement. The premise, as argued by its government and employer proponents, is that this would (a) align wages with actual productivity, (b) thereby increasing job security for older workers, and (c) it would free up wage-money that then could be used to hire more younger workers. The system is opposed by employees/unions as just a pretense to decrease real wages -- they argue that the wage-savings will be retained by employers as excess profits. Calculating when a worker's salary should peak is possible because the country has a mandatory retirement law.

I had never heard of a "wage peak system", and have no idea whether it exists elsewhere.


August 14, 2015 in Wage & Hour | Permalink | Comments (1)

Thursday, August 13, 2015

Rogers on "Sharing Economy"-Workers and Defining Employment

RogersBrishen Rogers (Temple) recently posted on SSRN his essay Employment as a Legal Concept. Here's the abstract to this timely piece:

The employment status of workers for “sharing economy” firms such as Uber, Lyft, TaskRabbit and Handy is becoming a major legal and political issue. This essay takes up that question, building on the ongoing cases against Uber and Lyft. Against most commentators, it first argues that the ambiguous legal status of Uber and Lyft drivers is not a symptom of outdated legal tests. Rather, that ambiguity reflects a deeper conceptual problem: that our laws lack a satisfactory definition of employment in the first place. The solution to that problem, the essay argues, lies in recognizing employment as a legal concept through and through, and thus recognizing that questions of employment status inevitably involve contestable value judgments. The Uber and Lyft cases, for example, present a conflict between two important sets of social goods: on the one hand, distributive justice and a more egalitarian political economy; on the other hand, the substantial welfare benefits promised by the companies’ innovations. While reasonable people will disagree, the essay argues that imposing employment duties would strike an appropriate balance between these goals — ensuring that the benefits of disruptive technologies are fairly shared with those whose labor makes those technologies profitable.


August 13, 2015 in Employment Common Law, Workplace Trends | Permalink | Comments (0)

Monday, August 10, 2015

Seton Hall's Tenth Forum

The Tenth Annual
Seton Hall
Employment & Labor Law Scholars’ Forum
Friday, October 9, 2015

 The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.

To that end, Seton Hall will convene its 10th annual Employment & Labor Law Scholars’ Forum on Friday, October 9, 2015. This year’s Forum will feature three presenters:

Naomi Sunshine
Acting Assistant Professor of Lawyering
New York University School of Law

Heather M. Whitney
Lecturer in Law and Bigelow Teaching Fellow
University of Chicago Law School

Sarah M. Stephens
Employment Attorney, Cox Automotive, Inc.

 The paper topics are:

Independent Contractor Drivers: Where Are We Heading?
Naomi Sunshine

Corporate Promises to be Good: An Institutional Solution
Heather M. Whitney

An Employer’s Conscience after Hobby Lobby and the Continuing Conflict
between Women’s Rights and Religious Freedom
Sarah M. Stephens

Comment and critique will be provided by the following scholars:

Timothy P. Glynn, Professor of Law, Seton Hall University School of Law
Tristin K. Green, Professor of Law, University of San Francisco School of Law
Michael C. Harper, Barreca Labor Relations Scholar Professor of Law,
              Boston University School of Law
Joseph Slater, Eugene N. Balk Professor of Law and Values
              University of Toledo College of Law
Charles A. Sullivan, Professor of Law, Seton Hall University School of Law
Michael J. Zimmer, Professor of Law, Loyola University of Chicago School of Law



August 10, 2015 in Conferences & Colloquia | Permalink | Comments (0)

Netflix's Progressive Stance on Parental Leave

Many have criticized the lack of paid parental leave in this country, which lags far behind other industrialized countries in this area.  While the FMLA provides twelve weeks of leave, this leave is unpaid, and often does not provide as much time off as many parents need to spend with their new child during the first year of birth or adoption.  Some companies are taking a more progressive stance on this issue, and providing additional leave as a benefit of employment.  Indeed, Netflix just announced that it will provide paid leave for the first year after birth or adoption, which includes paternal as well as maternal leave.  From an article at CNN Money:

"The policy applies to the first year after a child is born or adopted. Both parents can take as much time off as they want during that period. They might choose to return to work part time or to come back full time for a few months and then leave again. Netflix . . . will continue to pay their full salaries and offer benefits, and parents won't have to file for disability or other state coverage."

It is wonderful to see some companies take the lead on this issue, and it may become an important recruiting tool as it is now increasingly difficult to keep good workers.

-- Joe Seiner

August 10, 2015 | Permalink | Comments (1)