Monday, June 13, 2016
Proposals for the Seton Hall Symposium to honor the life and work of Michael J. Zimmer are due on July 1st.
Paper proposals should be 3-5 pages in length and submitted to Charles Sullivan (firstname.lastname@example.org).
More details about the Symposium can be found here.
Saturday, June 11, 2016
Thursday, June 9, 2016
A recent Fourth Circuit decision (authored by Judge Wilkinson) upheld a jury's finding that a group of exotic dancers were indeed employees rather than independent contactors. An interesting commentary in the Chicago Tribune looks at the applicability of this exotic dancer case to the treatment of Uber drivers and the litigation involving the gig company. The piece discusses the economic realities/control test applied by the court. From the Chicago Tribune:
“What's fascinating about the opinion is that most of the factors that Wilkinson cited could be applied to Uber drivers. Uber doesn't set drivers' schedules. But it lays down detailed rules and guidelines. It sets fees. It advertises. . . One takeaway from this case is therefore that courts may be more likely to call gig workers employees than the existing legal tests would suggest.”
This commentary provides an interesting read and serves as an important reminder that the question of who is an employee can arise across a broad spectrum of workplaces.
Tuesday, June 7, 2016
(pictured above, Dr. David Michaels, Assistant Secretary of Labor for OSHA)
OSHA has issued a final rule that -- according to its press release -- will help "modernize" the reporting of injuries that occur in the workplace. Under the new rule, some employers will be required to transmit information on workplace injuries to OSHA electronically. Additionally, some of this information will be made publicly available. According to OSHA, this will help “'nudge' employers to focus on safety". Finally, the rule also provides new anti-retaliation protections. The agency provides a nice summary of the new rule here. From the agency explaining the importance of the rule:
"This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. . . [A]s we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses."
It will be interesting to follow this new rule and see what impact it may have on the workplace and employer behavior with regard to worker safety.
-- Joe Seiner
Saturday, June 4, 2016
The Department of Labor has a great new link -- with an interesting video -- that provides a nice explanation of the new overtime rules under the FLSA. In addition to an explanatory video, the link provides a number of additional resources in this area. It is a great primer for class, students, or for anyone else interested in an overview of this evolving area.
-- Joe Seiner
Friday, June 3, 2016
The EEOC announced yesterday that it is opening a public comment period on the agency's proposed enforcement guidance on national origin discrimination under Title VII. The proposed guidance is available here. From the press release:
"In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment. . . The 30-day input period ends on July 1, 2016. Please provide input in narrative form; do not submit redlined versions of the document. The public is invited to submit its input using www.regulations.gov in letter, email or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507."
Anyone researching or writing in this area -- a topic that is routinely in the news these days -- will want to take a look at this proposed guidance.
-- Joe Seiner
Wednesday, June 1, 2016
SAVE THE DATE: 11th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24 (Saturday) September 2016
The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23rd and 24th. Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22nd through Saturday, Sept. 24th. Rooms are priced at about $209/night. Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington. Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.
The website will be posted soon. In the meantime, please send an email indicating your interest and the title + abstract of any paper you wish to present to Prof. Lea Vaughn at email@example.com. As soon as the site is up, she will let you know so that you can complete your formal registration. Thank you!
Monday, May 30, 2016
Admittedly, this title is somewhat hyperbolic, but hope beats eternal and last week the Seventh Circuit created a circuit split on the Horton question, which I've addressed before on this blog and in a co-authored article with Tim Glynn. And, full disclosure -- the two of us are among the signatories of an amicus brief before several courts of appeal.
Lewis v. Epic is well worth the read, but the Readers Digest version is that the court refused to enforce an agreement that precluded pursuit of class claims in either arbitration or court. The basis was the National Labor Relations Act's protection of workers' concerted actions for mutual aid and protection and its concomitant invalidation of agreements purporting to restrict that right. The prohibition of collective procedures in the arbitral tribunal "runs straight into the teeth of Section 7."
Nor did the FAA change that result. Epic argued that "even if the NLRA killed off the collective action waiver, the FAA resuscitates it," but the court didn't agree. Given that a court should try to reconcile potentially competing statutes, Epic faced a heavy burden in finding the FAA to trump the NLRB. Indeed, given the FAA's savings clause, which requires enforcing any contract "save upon such grounds as exist at law or in equity for the revocation of any contract," Judge Wood found no conflict at all between the two enactments.
Epic was circulated to the full Seventh Circuit, and no judge indicated a desire for en banc review. In normal circumstances, that would mean a petition for certiorari, but it seems unlikely than an understaffed Supreme Court will take the case. Presumably, the issue will continue to play out in the circuits that have not addressed the issue. In the meantime, however, the case has cast an epic uncertainty over waivers of collective or class relief in arbitration agreements.
Thursday, May 26, 2016
Friend-of-blog Keith Cunningham-Parmeter (Willamette) has just posted on SSRN his superb piece, From Amazon to Uber: Defining Employment in the Modern Economy, which will appear in the Boston University Law Review. From the abstract:
American companies increasingly hire workers without offering them formal employment. Because nearly all workplace protections apply only to “employers” and “employees,” businesses avoid these labels by delegating their employment responsibilities to workers and intermediaries. For example, Amazon hires third-party contractors to staff its distribution centers and Uber invites only independent contractors to join its platform. As nonemployees, these workers cannot enforce such basic workplace rights as overtime and antidiscrimination protections.
Assessing the growing asymmetry between workers and firms, this Article critically evaluates what it means to employ workers today. Many companies disclaim their status as employers by claiming that they do not exercise daily, direct control over workers. But such a binary approach to control unnecessarily constrains the meaning of employment. In fact, employment status has never depended on whether firms control the minutia of workplace details. Rather, businesses today become employers when they meaningfully influence working conditions, even if layers of contractual relationships obscure that power.
Proposing a model for delineating the reach of employment law, this Article calls upon courts to assess three specific aspects of workplace control: the subjects of control, direction of control, and obligations of control. From peer-to-peer platforms that hire independent contractors to more traditional businesses that retain workers through intermediaries, companies that deny their status as employers may still effectively control the manner and means of work. Whether it is Amazon setting its contractors’ pay scale, FedEx specifying the color of its drivers’ socks, or Uber telling its drivers to play soft jazz, firms that control contractual outcomes frequently control working conditions as well. By analyzing these diverse permutations of control, this Article provides a framework for defining employer-employee relationships in contemporary workplace settings.
This piece provides a great look at this increasingly important question of how we define "employment" in the on-demand economy. I highly recommend taking a look at this article.
Wednesday, May 25, 2016
Here's the call for papers for the 15th International Conference in Commemoration of Professor Marco Biagi (Modena, Italy, March 20-21, 2017). The conference theme is Digital and Smart Work. From the call:
Focusing on the implications for employment, digitalization may be provisionally defined as encompassing work operations and processes brokered, organized or performed within digital platforms or by means of digital devices. In this perspective, digitalization cuts across different forms of employment (standard and non-standard), work organization (in-house performance and ICT-based mobile work), categories of workers (skilled and unskilled) and productive processes (material and immaterial). . . . .
[T]he conference will seek contributions from the international scholarly community on the following tracks:
1. Digitalization and management practices.
2. Digitalization, productivity and the labour market.
3. Digitalization, employment rights and collective representation.
To contribute a paper, submit an expression of interest by July 1, 2016. For details, see the Conference call for papers ( Download Call for papers Marco Biagi Conference 2017_Def1) as well as here for past Marco Biagi conferences.
H/t: Susan Bisom-Rapp
Tuesday, May 24, 2016
I just learned that Brian Petruska (General Counsel of the Laborers' Mid-Atlantic Regional Organizing Coalition), just posted on SSRN his forthcoming piece in the Santa Clara Law Review on the proposed use of the Joy Silk doctrine. The abstract is below:
This article argues that the Labor Movement should adopt a strategy of moving the National Labor Relations Board to revive the doctrine of Joy Silk Mills, a 77-year old doctrine that has lain moribund for over forty-five years. Under the Joy Silk doctrine, a union could obtain a bargaining order from the NLRB whenever it obtained authorization cards from a majority of an employer’s employees and requested recognition from the employer only to have the employer refuse recognition and then proceed to commit unfair labor practices. The article presents analytical, policy-based, and empirical arguments in support the NLRB readopting the doctrine of Joy Silk Mills, arguing that its abandonment substantially contributed to a dramatic increase in unfair labor practices, which depressed the rate at which unions organized new members through NLRB-conducted elections. The article also argues that the NLRB has legal authority to restore Joy Silk as current doctrine. The article recommends that the Board make two changes to the Joy Silk doctrine to better accommodate employer free-speech rights and employee access to the secret ballot. Finally, the article argues that this change would constitute game-changing reform of U.S. labor law, arguing that the abandonment of Joy Silk heavily contributed to the increase in ULPs during union organizing drives and the subsequent reduction of organizing victories by unions.
The article provides an interesting new take on a doctrine that has been around for decades, and is definitely worth a read if you are working or researching in this area.
Friday, May 20, 2016
Call for Papers: National Center for the Study of Collective Bargaining in Higher Education and the Professions
The National Center for the Study of Collective Bargaining in Higher Education and the Professions has a Call for Papers for its 44th Annual Conference, taking place on March 26-28, 2017 in New York. The Center " invites the submission of abstracts for papers, presentations, and proposed workshops" and "also welcome proposals by scholars for presentations with respect to recently published books relevant to labor relations and collective bargaining." Proposals should be submitted by September 30, 2016 to firstname.lastname@example.org.
You can see more info about the call here, including topics, which can include:
The Economics and Effect of College Sports on Campus
Federal & State Funding: Shifting Patterns and Changing Strategies
The Role of Endowments in Financing Higher Education
Contingent Faculty Participation in Shared Governance
Negotiating Over Job Security and Research Funding for Adjunct Faculty
Unionization of Graduate Students in the Private Sector: An Update
Academic Freedom and Contingent Faculty
Bargaining Issues for Academics and Professionals in Non-Teaching Roles
Violence on Campus: Labor-Management Issues for Ensuring Safety
Collective Bargaining Regarding Campus Public Safety Officers
Age Discrimination on Campus
Diversity in the Composition of Collective Bargaining Teams
The Unionization of Lawyers and Law Professors
A federal district court judge in San Francisco has rejected a motion to dismiss two lawsuits that were based on different assaults to passengers by Uber drivers. In its decision, the district court acknowledged the possibility that the drivers were employees, rather than independent contractors, thus potentially keeping the company on the hook for the assaults. A wage/hour suit was recently settled by the company with its workers on the independent contractor/employee issue for $100 million. Pursuant to these pending suits, involving incidents in Boston and South Carolina, CBS News reports:
"The Boston driver, Abderrahim Dakiri, was convicted earlier this year of assault and battery. He was sentenced to two years' probation and ordered to stay away from the victim, the campuses of her school and her workplace. The South Carolina driver was arrested last year on suspicion of kidnapping and first-degree criminal sexual conduct."
Now that these suits have been permitted to proceed, it will be an interesting case (that we will follow) to see how the litigation is ultimately resolved.
Wednesday, May 18, 2016
Friend-of-Blog Brad Areheart, current Chair of the Employment Discrimination Section of the AALS, writes to let us know about a Call for Papers for the upcoming annual meeting in San Francisco. The announcement is below:
The AALS Employment Discrimination Section is pleased to announce a Call for Papers for the section’s program, which will take place Thursday, January 5th from 1:30 pm to 3:15 pm, at the 2017 Annual Meeting in San Francisco. This year’s program is titled, Responding to Fisher v. Texas. This program will reassess, in the wake of Fisher v. University of Texas (to be decided in Summer of 2016), whether and/or how employers can be attentive to race in hiring and promotion. The answers to these questions are important since very large numbers of employers engage in diversity programs that might or might not be characterized as affirmative action, but are certainly not blind to race. Moreover, Fisher may tell us something about the Court’s view of the relationship, if any, between diversity and merit. This panel will react to Fisher and consider the potential implications of the Court’s affirmative action jurisprudence for the world of employment.
We are seeking one or two additional speakers who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Professor Brad Areheart, at email@example.com by August 31, 2016. Additional speaker(s) will be selected by members of the Executive Committee of the Section and will be notified by September 15, 2016.
Please note that the selected author(s) will be responsible for paying his/her registration fee as well as hotel and travel expenses. Any inquiries about this Call for Papers should be submitted by email to Professor Areheart.
Tuesday, May 17, 2016
The White House announced today that tomorrow (Wednesday), the Department of Law will finalize its new overtime regulations. Under these regs, the salary basis test for overtime exclusions will rise from $23,660 to $47,476 per year ($455/week to $921/week). Importantly, this amount will be updated automatically every three years to match the 40th percentile of full-time salaried workers in the lowest income Census region. Similarly, the "highly-compensated employee" threshold will rise from $100,000/year to $134,404/year, and will also be updated automatically, based on the 90th percentile. You can see the final rule here and a fact sheet on the final rule here.
Stacie Strong (Missouri) just sent an email to the ADR listserv describing an international labor/arbitration case. I'm reprinting here (with permission) the description of the case from her email:
A very interesting case, Suazo v. NCL (Bahamas), Ltd., was recently handed down by the U.S. Court of Appeals for the Eleventh Circuit. The case involved a cruise ship employee who was injured on the job and whose employment contract contained an arbitration agreement governed by the New York Convention and Chapter 2 of the Federal Arbitration Act. The question was whether the employee could bar arbitration by showing that high costs may prevent him from effectively vindicating his federal statutory rights in the arbitral forum.
The matter came up as part of a motion to compel arbitration, and the court held that "Our New York Convention precedent suggests (but does not hold) that a party may only raise this type of public-policy defense in opposition to a motion to enforce an arbitral award after arbitration has taken place, and not in order to defeat a motion to compel arbitration." This approach is, of course, problematic if one concludes that it will be difficult if not impossible to vindicate one's rights initially if one cannot afford to pursue the claim (here the court decided that the claimant had not made the appropriate showing, so the court was able to take a "no harm, no foul" perspective). However, the decision appears correct under the New York Convention.
Some might say that the advent of third party funding and availability of contingent fee attorneys in the United States would allow worthy claimants to assert their claims, but there is no guarantee that a third party funder or contingent fee attorney will take any particular case. While it is unclear how often this type of scenario will arise in the future, the case does identify a significant area of tension between domestic law and international law.
Monday, May 16, 2016
In news that was overshadowed by a much larger settlement with Uber, a class-action lawsuit in California against Lyft was just settled for $27 million. The case was quite similar to the Uber litigation and involved the question of whether drivers for the company were employees or independent contractors. From the USA Today:
"Under the agreement, drivers who use Lyft’s app will continue to be independent contractors but will be paid a lump sum to settle their reimbursement claims. The payout will be based on how many hours per week they drove with Lyft."
The proposed settlement still needs to be approved by the district court. It will be interesting to follow the many other technology sector systemic cases to see how many follow suit in settling the claims.
-- Joe Seiner
Saturday, May 14, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form class actions--are far less likely to see the benefits of one-sided arbitration agreements. As the article notes, the Consumer Financial Protection Bureau is seeking new rules for commercial arbitration, but aside from the NLRB, there seems little that agencies are doing for employees.
Friday, May 13, 2016
It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.
Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.
Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.
If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.
The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.
In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.
Wednesday, May 11, 2016
Yesterday, Uber announced that it had come to an agreement with the Independent Drivers Guild, which is not a formal union, but is affiliated with the International Association of Machinists and Aerospace Workers. This agreement is not a concession by Uber that its drivers are employees; to the contrary, it is a way to give drivers a voice explicitly without making such a concession. Broadly, the deal has Uber promising to hold monthly meeting with the Guild and sets up an appeals process for barred drivers. Drivers will also get certain benefits, such as discounted insurance, roadside help, and legal assistance. There will not be bargaining over fares and other benefits. Moreover, the machinists promised not to try to organize during the 5-year agreement or seek status as employees under the NLRA.
This is a good example of non-traditional means to provide employees with voice in a non-union workplace. I've actually been working on a paper (for far too long) that explores these and other types of non-traditional collective voice measures, particularly ones that take a more collaborative stance towards employers.