Tuesday, November 15, 2016

OUR Walmart Work(s)It

Buzzfeed News has a fascinating recent story about "an artificially intelligent chatbot called WorkIt" developed by OUR Walmart, a network of Walmart workers.  WorkIt is designed to answer workers' questions about company policies by "draw[ing] from hundreds of pages of company policies and employee guidelines."  The bot uses an algorithm to answer common employee questions, and is "trained" by human beings to increase its accuracy.  The bot can apparently be purchased and used for other purposes -- presumably also to inform workers of their rights under the relevant labor and employment laws? 

Worth a read.

- Charlotte Alexander

November 15, 2016 | Permalink | Comments (0)

Sunday, November 13, 2016

Kaplan on Unintended Consequences of the Cadillac Tax

RkaplanRichard Kaplan (Illinois) has just posted on SSRN his article The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services (2016 NYU Rev. of Ee Benefits & Exec. Comp.). Here's the abstract:

This Article examines one of the most contentious provisions of the Affordable Care Act – namely, the 40% excise tax on high-value health insurance provided by employers. This levy, commonly denominated the “Cadillac” tax, is scheduled to take effect in 2020 but has already induced many employers to raise annual deductibles on the health insurance they provide to reduce the value of such insurance and thereby lower their exposure to this new tax. After analyzing the administrative guidance proposed since the Cadillac tax’s enactment, this Article considers how that tax’s effective encouragement of high-deductible health insurance plans has inadvertently made the Health Savings Accounts that President George W. Bush promoted 15 years earlier much more appealing.

rb

 

November 13, 2016 in Pension and Benefits | Permalink | Comments (0)

Friday, November 11, 2016

EEOC Webinars on Wellness Programs, New EEO-1 Report

EEOC

The EEOC has just posted on its website a couple of webinars – – that are free of cost – – and could prove useful to both employers and employees on a couple of specific issues. The first discusses how federal law applies to wellness programs offered by employers. From the EEOC’s website:

“On May 17, EEOC issued final rules that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their family members. The rules allow limited incentives for employees and spouses to participate in such programs, but also include important privacy protections. . . EEOC offered a webinar on Oct. 19 to discuss these rules. EEOC attorneys provided information that will help employers and wellness programs comply with the rules, including an overview of both rules and answers to frequently asked questions the Commission has received since the rules were published.”  The webinar is available here.

The second discussion addresses compliance with the new EEO-1 report. From the EEOC’s website: “The U.S. Equal Employment Opportunity Commission (EEOC) has posted online a recording of its Oct. 26, 2016 webinar for employers about the new Employer Information Report or EEO-1 . . . This webinar provides an overview of the EEO-1, describes the process of reporting and submitting summary pay and hours worked data, and gives examples of how to enter the data on the new form.”  This webinar is available here.

Both webinars are helpful resources for employers and provide excellent (and inexpensive) guides on these issues.

-- Joe Seiner

November 11, 2016 | Permalink | Comments (0)

Thursday, November 10, 2016

A Law of Co-Workers

NaomiEvery once in awhile, someone writes something that makes me see something familiar from a completely different angle. Such is Naomi Schoelbaum's (GWU) new article, recently posted on SSRN, Towards a Law of Coworkers (forthcoming Alabama L. Rev. 2017). Here's the abstract:

A growing body of research reveals what most Americans already know from experience: that our coworkers play a central role in our lives. The significance of coworker relationships is only magnified in an era of expanding work hours in the twenty-four-seven economy. But the law does not reflect this reality, and instead relegates coworkers to the status of legal strangers. This Article argues that the law’s failure to recognize coworker relationships undermines not only these relationships, but also the goals of work law, and makes the case for a law of coworker relationships that would promote the equal, fair, and safe workplace the law envisions.

This Article bypasses the longstanding divide between the collective focus of labor law and the individual focus of employment law by positing a relational theory of work law, with coworkers at the center. Relying on a rich social science literature, the Article shows how coworker bonds help to achieve the goals of work law by enhancing employee leverage, promoting collective action, facilitating worker voice, and even preventing legal violations from occurring in the first place. But across a wide swath of doctrines, from labor law to antidiscrimination law to wage-and-hour law and beyond, the law limits workers’ ability to harness the power of these bonds by erecting barriers to coworker bonding, discouraging the exchange of coworker support, and allowing employers to rupture coworker bonds.

To remedy these shortcomings, this Article proposes a law of limited-purpose support that would recognize coworker bonds. This model would adapt time-tested doctrines to the reality of coworker relationships, and would provide new protections to coworkers. This law of limited-purpose support would align work law with work life, and allow coworker relationships to fulfill their promise of achieving a better workplace.

rb

November 10, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, November 9, 2016

Federal Court Rules that Title VII Prohibits Sexual Orientation Discrimination

EEOC

Friend-of-blog (and EEOC General Counsel) David Lopez sends along a fascinating case from a federal district court in the Western District of Pennsylvania which denied a motion to dismiss based on the Defendant's argument that Title VII does not protect sexual orientation discrimination. In the case, U.S. EEOC v. Scott Medical Health Center (Case 2:16-cv-00225-CB), the Commission alleged that a male worker was harassed on the basis of his sexual orientation and subsequently left his employment as a result of the workplace environment.

The decision is available here:  SCOTTMEDICAL.order.  From the District Court's opinion, which relied heavily on the Supreme Court's Price Waterhouse decision:

"[T]he Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. . . . It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction – constitutes sex stereotyping and, under Price Waterhouse, violates Title VII. . . That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination "because of sex," Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied."

The case represents a groundbreaking decision and it will be interesting to see if other courts follow this analysis.  The EEOC press release on the case is available here.

- Joe Seiner

 

November 9, 2016 | Permalink | Comments (0)

Tuesday, November 8, 2016

Cheerleading

Good newsWhen you have good news to share, but are reticent to toot your own horn, send that news my way. Likewise, please send my way news you come across about the accomplishments of our comrades.
I'm always happy to brag on the accomplishments of everyone in our LEL community.

rb

November 8, 2016 in Faculty News | Permalink | Comments (0)

Monday, November 7, 2016

Garden Approved for Tenure

GardenIn a move that will surprise absolutely no one who knows her, the faculty at Seattle U. have unanimously voted to recommend that Charlotte Garden receive tenure later this year. (The recommendation still must be approved by the University, but I would assume that's a no-brainer.)

Charlotte is the whole package. She is an innovative teacher, a cutting-edge scholar, and a behind-the-scenes worker bee who organizes conferences (e.g., COSELL) and never misses an opportunity to praise her colleagues in the LEL field. On top of all her professional accomplishments, she is a genuinely wonderful, down-to-earth, always-willing-to-help person who I am exceptionally proud to know. Congrats to Charlotte, and congratulations to Seattle for having the good judgment to approve her tenure application unanimously.

You can find Charlotte's full bio after the break.

rb

Continue reading

November 7, 2016 | Permalink | Comments (0)

Thursday, November 3, 2016

Nolan & Bales Labor & Arbitration Nutshell

Bales BookDennis Nolan and Rick Bales have just published the new edition of their book, Labor and Employment Arbitration in a Nutshell (West, 3d ed.). The publisher's description:

Labor and employment arbitration law simplified. Authoritative coverage provides a description of the origin, development, and practice of labor and employment arbitration. Text focuses on the fundamentals of the labor and employment arbitration process and explores the major arbitration law issues, their importance, and the conflicting opinions on them.

A must have if your studying or working in this area.  

-JH

 

 

November 3, 2016 in Arbitration, Labor/Employment History, Scholarship | Permalink | Comments (0)

Child Laborers

The Washington Post has posted 20 photos from Lewis Hine, documenting child laborers from the early 1900s.  There are some really moving pictures in the collection and all of them show young children who are doing extremely hard work.  Definitely worth a look.

Of course, child labor is not unheard of even today

-JH

 

November 3, 2016 in Labor and Employment News, Labor Law, Labor/Employment History | Permalink | Comments (0)

Wednesday, November 2, 2016

Disability and the Law Writing Competition Open

Jameson craneIf you have students writing on issues connected with disability and the law, please share with them this announcement (you can even post this flyer Download TJSL-CraneWritingCompetition-2017-d2) from our friend Susan Bisom-Rapp (Thomas Jefferson):

Thomas Jefferson School of law is pleased to announce the third 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: cranewritingcompetition@tjsl.edu. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.  

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 Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition:susanb@tjsl.edu.

MM

November 2, 2016 in Disability, Scholarship | Permalink | Comments (0)

Smith on Comey's Memo to Congress

T_smithFBI Director James Comey's decision to send a letter to Congress notifying it that he had been informed that emails that might be relevant to the investigation into Hillary Clinton's use of a private server while Secretary of State had been discovered in an unrelated investigation invoked a firestorm. Renewed (and overblown given the content of the letter and the source of the emails) charges of wrongdoing came from Republican candidates. Democrats pitched the issue as a partisan act, and suggestions by people from both parties have been made that Comey's actions may have broken the law or internal agency policies.

So what does this have to do with the workplace, you might ask? Terry Smith (DePaul) has a piece at Huffington Post looking at Comey's actions through an employment lens to explain How Every American Knows what Comey Did Was Wrong. It's a great piece on the unfairness connected with vague negative statements and their effects on hiring decisions that I think many of us can relate to. 

MM

November 2, 2016 in Beltway Developments, Commentary | Permalink | Comments (0)

Zelinsky on Economically Targeted Investments

ZEdward Zelinsky (Cardozo) has just published in Cardozo Law Review's De Novo The Continuing Battle over Economically Targeted Investments: An Analysis of the Department of Labor's Interpretive Bulletin 2015-01. Here's an excerpt:

In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. [ERISA] requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment ownership without altering market-based allocations of capital.

rb

November 2, 2016 in Pension and Benefits | Permalink | Comments (0)

Tuesday, October 25, 2016

Bisom-Rapp & Sargeant: The Lifetime Disadvantage

DisadvantageCongratulations to Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. London) on the publication of their book Lifetime Disadvantage, Discrimination and the Gendered Workforce.Here's the publisher's (Cambridge U. Press) description:

  • Lifetime Disadvantage, Discrimination and the Gendered Workforce fills a gap in the literature on discrimination and disadvantage suffered by women at work by focusing on the inadequacies of the current law and the need for a new holistic approach. Each stage of the working life cycle for women is examined with a critical consideration of how the law attempts to address the problems that inhibit women's labour force participation. By using their model of lifetime disadvantage, the authors show how the law adopts an incremental and disjointed approach to resolving the challenges, and argue that a more holistic orientation towards eliminating women's discrimination and disadvantage is required before true gender equality can be achieved. Using the concept of resilience from vulnerability theory, the authors advocate a reconfigured workplace that acknowledges yet transcends gender.
  • Proposes a new model of lifetime discrimination suffered by women at work, leading to an holistic solution rather than the current incremental approach.
  • Examining how the law approaches each stage of women's working life cycle allows readers to identify the disjointed incremental approach and see its disadvantages.
  • Provides a new framework for discussing the issue of disadvantage that women suffer in employment.

rb

October 25, 2016 in Books, Employment Discrimination, International & Comparative L.E.L. | Permalink | Comments (0)

Monday, October 24, 2016

SEALS Discussion Panel on Graduate Students as Employees

Sealslogo2Among the several labor and employment topics at next year’s SEALS meeting, we are organizing a discussion panel on graduate students and research assistants recent classification as employees under the NLRA.  Please let Jeff Hirsch (jmhirsch@email.unc.edu) know if you’re interested in being a discussant, which involves a 5-7 minute presentation and participation in roundtable discussion: 

Graduate Students as Employees

In its recent Columbia University decision, the NLRB once again concluded that graduate students and research assistants may be considered employees under the NLRA, opening the door to unionization among graduate students as private universities and colleges around the nation. This discussion panel will consider the possible implications of this decision, including how graduate student organizing may work in tandem with faculty organizing; comparing public and private sector graduate student unions; whether Columbia University will impact the classification of other potential student-employees, such as athletes; and others.

-JH

October 24, 2016 in Conferences & Colloquia, Labor Law | Permalink | Comments (0)

Friday, October 21, 2016

Assistance Animals in Australia

KangarooSpeakers at a workshop in Queensland predict that employers Down Under could soon see a sharp increase in employee requests to bring service animals to the workplace. Per Disability assistance animals or not? Problems in policy and practice workshop: Summary and Scoping Discussion Paper, with Paul Harpur, Martie-Louise Verreynne, Nancy Pachana, Peter Billings and Brent Ritchie:

Employers of the one in every five Australians that have disabilities could face increasing demands to bring "assistance animals" such as dogs and miniature horses into the workplace, a workshop heard recently.

Speakers at the workshop on the issue at the Queensland Supreme Court on September 27 said that recent court rulings and an uncertain regulatory regime have made it difficult to determine or challenge whether a worker is entitled to bring such an animal to work.

Former disability discrimination commissioner Graeme Innes told the forum that four million Australians have disabilities that would give them protection under the Disability Discrimination Act.

Speakers at the workshop suggested while most of these people might not generally regard themselves as disabled, the existence of a medical condition usually enables such a person to assert they have a disability within the meaning of s4 of the Disability Discrimination Act.

They said it would be "relatively easy" for most of those people to claim an animal accompanying them was an assistance animal protected under section 9 of the Act, according to the chief investigator appointed by the workshop, Paul Harpur, a senior lecturer in the University of Queensland's TC Beirne School of Law.

A scoping paper circulated at the workshop – Disability animals or Not? Problems in policy and practice – said the Act defines assistance animals as those that are trained to help a person with a disability to alleviate the effects of their disability and to meet standards of hygiene and behaviour appropriate for an animal in a public place.

It said courts had interpreted the definition broadly to encompass "a self-trained dog that has not been accredited by a recognised disability training organisation".

Continue reading

October 21, 2016 in Disability, International & Comparative L.E.L. | Permalink | Comments (0)

Wednesday, October 19, 2016

Halegua on Protecting Workers' Rights in China

HaleguaAaron Halegua (Research Fellow, NYU Law) is featured today in a Wall Street Journal article on Protecting Workers' Rights in China: Q&A with Aaron Halegua.

rb

October 19, 2016 in International & Comparative L.E.L. | Permalink | Comments (0)

Cherry and Aloisi on "Dependent Contractors" in Canada, Italy, and Spain

    As some debate whether to add “dependent contractor” to the set of worker classifications ({employee, independent contractor}) in the US, a new working paper looks to the experience of Canada, Italy, and Spain: Miriam Cherry and Antonio Aloisi, “‘Dependent Contractors’ in the Gig Economy: A Comparative Approach (SSRN).  Here’s the abstract:

In response to worker misclassification lawsuits in the United States, there have been recent calls for the creation of a hybrid category in between employee and independent contractor specifically for the gig economy. However, such an intermediate category is not new. In fact, the intermediate category has existed in many countries for decades, producing successful results in some, and misadventure in others. In this article, we use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In our analysis we focus on a set of questions: Is labour law fundamentally outdated for the digital age? Does the gig economy need its own specialized set of rules, and what should they look like? What role does digitalization and technology play in the casualization of work? We ultimately conclude that workable proposals for a third category must also encompass other forms of precarious employment.

The paper itself surveys the law and legal commentary in Canada, Italy, and Spain.  It finds that Canada’s “dependent contractor” category, which originated in Arthurs (1965), succeeded in “expanding the coverage of laws aimed at ‘employees’ to encompass vulnerable small business and tradespeople." In contrast, Italy “saw systemic arbitrage between the standard employment category and the intermediate category,” which caused confusion and “a movement to strip workers of their rights by misclassifying them downwards.”  Meanwhile, in Spain, the category covers only a “tiny” portion of workers, because of “burdensome requirements and a seventy-five percent dependency threshold to enter the third category.” (p. 3).

 

--Sachin Pandya

October 19, 2016 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0)

Monday, October 17, 2016

Lobel on the Gig Economy & LEL

LobelOrly Lobel (San Diego) has posted on SSRN her article (forthcoming U. San Francisco L. Rev.) The Gig Economy & The Future of Employment and Labor Law. The article is part of a duo – she has a longer article forthcoming in Minn. L. Rev. called The Law of the Platform which looks at a wide variety of sharing companies and their regulatory challenges. Here's the abstract of the Gig Economy article:

In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.

rb

October 17, 2016 in Employment Common Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, October 11, 2016

Supreme Court Grants Cert in Pleading Case

Supremect

The Supreme Court granted certiorari today in a pleading case, Zigler v. Turkmen, which involves the question of pleading discriminatory intent. Though the case arises outside of the employment law context, the decision may provide some guidance on what type of information is necessary for workers to include in a complaint when pleading a claim of workplace discrimination. From Scotusblog, one of the issues in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

As we all know, Twombly and Iqbal have muddied the area of pleading in employment discrimination cases. Hopefully, the Court's decision in this case will (at a minimum) provide some clarity to this field. 

- Joe Seiner

October 11, 2016 | Permalink | Comments (0)

Friday, October 7, 2016

Eleventh Circuit: No ADEA Disparate Impact Claims for Job Applicants

    The Eleventh Circuit now reads the Age Discrimination in Employment Act (ADEA) not to let job applicants bring disparate impact claims.  Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602 (11 Cir., Oct. 5, 2016) (en banc).  The main reason concerns the text of section 4(a)(2) of the ADEA, which makes it unlawful for any employer

to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

29 U.S.C. § 623(a)(2). The court, in a majority opinion by Judge William Pryor, reasoned:

By using “or otherwise” to join the verbs in this section, Congress made “depriv[ing] or tend[ing] to deprive any individual of employment opportunities” a subset of “adversely affect[ing] [the individual’s] status as an employee.” In other words, section 4(a)(2) protects an individual only if he has a “status as an employee.” . . . The phrase “or otherwise” operates as a catchall: the specific items that precede it are meant to be subsumed by what comes after the “or otherwise.”

Op. at 7-9 (citations omitted).  The court rejected the dissent’s several textual arguments to the contrary, and then refused to consider legislative history or defer to the EEOC’s interpretation to the contrary, because the statutory text is “clear”.  But cf. id. at 43-46 (Rosenbaum, J., concurring in part and dissenting in part) (pointing to legislative history to support the majority opinion’s reading).

 

--Sachin Pandya

October 7, 2016 in Employment Discrimination | Permalink | Comments (0)