Tuesday, March 29, 2016
Leora Eisenstadt and Jeffrey Boles (both of Temple University - Fox School of Business) have just posted on SSRN their recent article, Intent and Liability in Employment Discrimination, which is forthcoming in the American Business Law Journal (ABLJ). The article is available here:
The abstract is below:
The Silicon Valley Ellen Pao trial brought to the forefront once again the changing nature of discrimination in the workplace with its focus on a culture of bias and the prevalence of unconscious discriminatory behavior. This case is only the most recent high-profile example. There is an emerging consensus among scholars that the concept of “intent” in disparate treatment employment discrimination should be broadened to encapsulate more flexible notions including implicit bias, negligent discrimination, and structural discrimination. These scholars argue convincingly that psychological research demonstrates that implicit bias and reliance on ingrained stereotypes is, to some extent, natural to human decision-making processes. As a result, bias in the workplace operates at both an overt, knowing level but also beneath the surface and, at times, without the conscious knowledge of the decision-makers themselves.
However, despite extensive discussion of implicit bias in the legal literature, few, if any, scholars have considered alterations to liability and compensation schemes as a result of the broader meanings of intent. This article proposes looking to criminal law as a practical and theoretical model for an amendment to Title VII that would include gradations of intent with concomitant gradations in liability. The Model Penal Code presents an orderly and well-thought-out approach to intent, or mens rea, and the gradations of intent that support a finding of guilt. In addition, theory and policy supporting criminal law’s linkage of intent and liability are remarkably analogous to Title VII’s goal of elimination of discrimination. As a result, this article contends that a careful and measured consideration of criminal law’s approach to liability is instructive.
Drawing on the extensive literature on flexible intent and criminal law theories of retributivism and consequentialism, this article proposes a statutory expansion of the definition of disparate treatment discrimination under Title VII with an adjustment in the liability regime based on the level of employer intent. We contend that a clear link between intent level and damages constitutes an attractive balancing of employer and employee needs that should spur this crucial statutory change. A statutory amendment to Title VII that both broadens the meaning of “intent” for disparate treatment claims but also limits liability based on the level of intent offers a compromise position that expands the application of discrimination law to meet changing workplace norms and a theoretically and emotionally satisfying means of accomplishing that change.
The Supreme Court issued its opinion in Friedrich's today and, as is no surprise following Justice Scalia's death, the Court was 4-4. This means that Abood and its approval of public-sector union fees under the federal constitution lives on. On the other hand, I'd expect challenges to pop up under state constitutions, which will obviously be dependent on a given state's prior decisions and court politics.
The full text of the decision is: "The judgment is affirmed by an equally divided Court."
Wednesday, March 23, 2016
Gillian Lester (Columbia) writes to tell us of the upcoming conference Philosophical Foundations of Labour Law, which will be held June 16-17, 2016 at the UCL Faculty of Laws, Senate House, Malet Street, London WC1. This conference brings together leading labour law scholars (and, I'm excited to say, a terrific mix of established and emerging scholars!) from around the world to explore the broad themes of:
A complete list of speakers is provided after the page break. The size of the event is strictly limited to 65 people to encourage discussion. Registration is required. Doctoral students with an interest in this topic are particularly welcome to attend. Doctoral students should write to the conference administrator Lisa Penfold to learn about available discounts. The conference has been convened by Dr. Virginia Mantouvalou (UCL), Professor Hugh Collins (Oxford), and Professor Gillian Lester (Columbia Law School).
Friend-of-blog Caroline Mala Corbin (Miami) has a fascinating discussion over at the American Constitution Society blog that was posted ahead of today's arguments in Zubik v. Burwell. Her discussion highlights the importance of (and arguments in) the ACS issue brief, which is available in full here. In her post, Professor Corbin concludes that
"the religiously affiliated nonprofits argue that their religion bars them from providing contraception. The existing contraception regulations ensure that they do not have to. Moreover, the contraception regime easily passes strict scrutiny. Thus, the nonprofits’ RFRA claim fails twice over."
-- Joe Seiner
Tuesday, March 22, 2016
Today, the US Supreme Court decided Tyson Foods v. Bouaphakeo, an appeal from a jury verdict for plaintiffs seeking overtime pay via a Fair Labor Standards Act (FLSA) collective action and a Rule 23 class action under Iowa’s wage payment statute—which the parties assumed required the same proof as for the FLSA claim. The defendant: their employer, Tyson Foods, who hadn’t paid them for time they spent donning and doffing safety gear at a pork processing plant.
There’s a lot going on in this Court opinion—both on the page and in between the lines. I’ll focus here just on how the Tyson Court treated a decades-old FLSA precedent: Anderson v. Mt. Clemens Pottery Co, 328 U.S. 680 (1946).
In Mt. Clemens, the Court had declared this: In FLSA cases, if plaintiff-employees can’t prove how much time they spent doing under-compensated work because their defendant-employer failed to keep FLSA-required records, so long as the employee has produced enough evidence that he did the under-compensated work and the “amount or extent” of that work “as a matter of just and reasonable inference,” the employer must produce evidence of “the precise amount of work performed” or evidence to “negative the reasonableness of the inference to be drawn from the employee’s evidence.”
Fast forward decades later to Tyson Foods. The plaintiffs there faced this problem: For FLSA overtime claims, a plaintiff-employee has to prove that he or she had worked for over 40 hours in a work week. But, because Tyson hadn’t kept proper records of employee donning and doffing time, the plaintiffs had no individualized work time records to prove their total hours worked. So, at trial, the plaintiffs submitted “representative evidence”—key among which was study in which an expert observed a sample of 744 employees, counted donning and doffing times for each, and calculated averages by the sampled employees’ departments (cut and retrim departments: 18 minutes; kill department: 21.25 minutes). With these averages, along with individual work time records that Tyson had kept, another expert concluded that all but 212 employees in the Rule 23 certified class worked more than 40 hours, and thus might be owed overtime pay. Tyson argued against this evidence to the jury, but the jury awarded about $2.9 million in unpaid wages.
In a post-verdict motion, and later on appeal, Tyson argued for decertifying the Rule 23 class and for dismantling the FLSA collective action: Given the inadequacy of plaintiffs’ “representative evidence,” some class or collective action members would be eligible for overtime pay even though they hadn’t worked over 40 hours in a work week---or as Tyson put it, even though they hadn’t been actually injured.
On this point, the plaintiffs pressed Mt. Clemens, and the Court agreed that, given Mt. Clemens, the plaintiff’s use of its sample of donning-and-doffing times was “a permissible method of proving classwide liability.” Had each Rule 23 class member sued individually, he or she could have relied on that sample, provided that it “could have sustained a reasonable jury finding as to hours worked in each employee’s individual action.” Here, as in Mt. Clemens, the plaintiffs submitted their donning-and-doffing sample
to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [that sample] to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. . . . [I]n this case each employee worked in the same facility, did similar work, and was paid under the same policy. As Mt. Clemens confirms, under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them.
In so reasoning, the Court added that representative evidence can’t support “just and reasonable” inferences under Mt. Clemens if that evidence is “statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked.” (Tyson hadn’t challenged the admissibility of plaintiffs’ expert opinions under Daubert.)
In dissent (and joined by Justice Alito), Justice Thomas describes Mt. Clemens as a precedent on “shaky foundations” that the Court fundamentally misread and has now effectively expanded. Although Mt. Clemens applies only if the defendant-employer fails to keep FLSA-required records of compensable work time, for Justice Thomas,
that limitation is illusory. FLSA cases often involve allegations that a particular activity is uncompensated work . . . The majority thus puts employers to an untenable choice. They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.
Justice Thomas’ reading of Mt. Clemens is worth reading in full—as arguments implicitly rejected by the Court majority or just as the path not taken.
Alison Morantz (Stanford) has just posted on SSRN her article Rejecting the Grand Bargain: What Happens When Large Companies Opt Out of Workers’ Compensation? Here's the abstract:
The “grand bargain” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault occupational injury insurance, was one of the great tort reforms of the Twentieth Century. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which many firms (“nonsubscribers”) have chosen to do so: Texas. This study examines the impact of Texas nonsubscription on fifteen large, multistate nonsubscribers that provided their Texas employees with customized occupational injury insurance benefits (“private plans”) in lieu of workers’ compensation coverage between 1998 and 2010. As economic theory would lead one to expect, nonsubscription generated considerable cost savings. My preferred estimates suggest that costs per worker hour fell by about 44 percent. These savings were driven by a drop in the frequency of more serious claims involving replacement of lost wages, and by a decline in costs per claim. Both medical and wage-replacement costs fell substantially. Although the decline in wage-replacement costs was larger in percentage terms than the drop in medical costs, the latter was equally financially consequential since medical costs comprise a larger share of total costs. The second stage, which compares the effect of nonsubscription across different types of injuries, finds that non-traumatic injury claims were more responsive to nonsubscription than traumatic ones. In part, this disparity reflects the fact that private plans categorically exclude some non-traumatic injuries from the scope of coverage. Yet even those non-traumatic injuries that were not excluded from coverage declined more than traumatic injuries, consistent with aggressive claim screening by employers and/or a decline in over-claiming and over-utilization by employees in the nonsubscription environment. The third stage examines the effect of nonsubscription on severe, traumatic injuries, which are generally the least susceptible to reporting bias and moral hazard. The sizable and significant decline in such injuries is consistent with an improvement in real safety, although it could also be explained by aggressive claim screening. The final stage of the study probes whether four ubiquitous features of private plans – non-coverage of permanent partial disabilities, categorical exclusion of many diseases and some non-traumatic injuries, capped benefits, and lack of chiropractic care – explain the observed trends. Surprisingly, these features account for little of the estimated cost savings. Although many study participants describe limited provider choice and 24-hour reporting windows as major cost drivers, data limitations preclude me from identifying their respective impacts. Overall, my findings suggest an urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social welfare state into an optional program that exists alongside privately-provided forms of occupational injury insurance.
Monday, March 21, 2016
March Madness is upon us, and many of our fellow friends and colleagues are participating in the "madness" at varying levels. Some fill out office pools, others sneak out to watch the games, and some stream the action live on their computers or phones. All told, this workplace diversion is costing employers approximately four billion dollars annually, according to a study discussed at Forbes.com. According to the study, the unprecedented access to games provided to workers under current technology has lead to increased losses for employers. It is interesting to see efforts to quantify the workplace costs of the NCAA tournament, but are there any benefits as well? I can think of a few, but feel free to hypothesize in the comments below or to discuss the impact of March Madness in the workplace, as we wait for the Sweet Sixteen games to begin in a few days...
-- Joe Seiner
Saturday, March 19, 2016
Laura Cooper (Minnesota) writes to tell us:
Labor and employment law professors and their students should take note of the new rules for the 2016 American Bar Association Section of Labor and Employment Law and The College of Labor and Employment Lawyers Annual Law Student Writing Competition. The competition has doubled its award for the first-prize essay to $3000. The prize also, as before, brings with it the opportunity of publication in the ABA Journal of Labor & Employment Law that has tens of thousands of practicing attorneys as subscribers. Another change in the rules permits essays to be as long as thirty-five pages. Students may find it easier to prepare their spring semester seminar papers in the competition’s format now that the submission deadline has been set for June 15, 2016, well after the end of final exams. See the complete competition rules here.
Image from eeoc.gov
The U.S. Equal Employment Opportunity Commission has issued a Notice of Proposed Rulemaking outlining the obligations of federal employers to take affirmative action with respect to individuals with disabilities. The public can submit comments on the rule through April 25, 2016. From the EEOC's press release outlining the proposed rule:
"The proposed rule reaffirms the federal government's commitment to being a model employer of people with disabilities. It would require federal agencies to adopt the goal of achieving a 12% representation rate for individuals with disabilities, and a 2% representation rate for individuals with targeted/severe disabilities. Targeted disabilities are those that the government has, for several decades, placed a special emphasis on in hiring because they pose the greatest barriers to employment. The goals would apply at both higher and lower levels of federal employment. Hiring efforts would be further improved through focused recruitment efforts and simplified access to disability hiring programs and services.
In addition to setting numerical goals and requiring enhanced efforts to hire individuals with disabilities, the proposed rule would require agencies to provide personal assistance services to employees who, because of a disability, need these services to help with activities such as eating and using the restroom while at work."
The proposed rule will not impact private or state entities, and is targeted only at federal employers. We will follow the proposed rule to see if any changes are implemented in the final version.
Thursday, March 17, 2016
Image from www.dol.gov
The OSH Act has often come under intense criticism as some have argued that there is a lack of enforcement or any meaningful penalties available in the statute. A recent reporting requirement now highlights just how many workplace accidents are occurring. Beginning Jan. 1 of last year, employers must report to OSHA any severe injuries that occur in the workplace within 24 hours, which include "hospitalization, amputation or loss of an eye". Per the press release on the DOL's website,
"In the first full year of the program, employers reported 10,388 severe injuries, including 7,636 hospitalizations and 2,644 amputations. In a majority of those cases, OSHA responded by working with the employer to identify and eliminate hazards, rather than conducting a worksite inspection."
Wednesday, March 16, 2016
The Washington Post has an interesting article about a small insurance company owner who requires all of his employees to carry a gun at the office. The owner notes security as the reason for the requirement. From the article:
"[The Business Owner] now requires [employees] to get a concealed-carry permit, footing the $65 bill, and undergo training. He issues a Taurus revolver known as “The Judge” to each of them. The firearm holds five rounds, .410 shells that cast a spray of pellets like a shotgun."
Safety in the workplace continues to be an important and high-profile issue, and this article demonstrates that employers may have different methods of attempting to achieve this goal.
An interesting article at CNNMoney discusses the difficulties older workers have finding new employment after losing their jobs. A study discussed in the article reveals the troubling fact that even workers in their mid-forties are now facing heavy challenges finding new employment. From the article:
"Anti-age discrimination laws don't necessarily help when we need them most, during economic downturns. In the U.S., strict state laws had no effect on unemployment for the aged and even might have been detrimental during the Great Recession, according to a Federal Reserve study released this spring."
Age discrimination continues to be a challenge faced by many workers in today's economy, and an issue that will continue to receive close attention in the future.
-- Joe Seiner
Friday, March 11, 2016
The ALJ hearing over McDonald's alleged status as a joint-employer under the NLRA is currently underway. The Washington Post's Lydia DePillis is covering the hearing and has a good description of opening statements. Although I understand why parties, especially McDonald's, is initially casting this as a broad attack at the franchise model, to me the more interesting aspect of the case is to see how the NLRB will apply it's new Browning-Ferris joint-employer standard. As is often the case, it's all in the details, and that's where I expect the this case to be illuminating.
Wednesday, March 9, 2016
David Yamada (Suffolk) has just posted on SSRN Intellectual Activism and the Practice of Public Interest Law, to be published in the Southern California Journal of Law and Social Justice. Though not strictly a labor/employment piece, it's built around the work David has been doing on workplace bullying and on unpaid internships, and will be useful to anyone working in law reform. Here's the abstract:
How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?
I explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession.
This is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.
The article closes with an Appendix containing a short annotated bibliography of books related to intellectual activism, public intellectualism, and the uses of scholarship to advance social change.
Sunday, March 6, 2016
Since I tend to be foolishly optimistic, I've been wondering for a while (without actually putting in the effort to research the point) whether there's a silver lining to the current tendency to shuttle discrimination complaints to arbitration -- the possible inapplicability of statutory time limitations on bringing suits. Of course, Title VII doesn't have a traditional statute of limitations at all (i.e., a period measured from the accrual of the cause of action to the filing of a complaint in court), but rather has two separate temporal requirements that must be satisfied -- one (usually 300 days) for filing a charge with the EEOC and a second (90 days) for filing suit after receipt of a right to sue letter.
Under one paradigm (arbitrator subs in for the court to decide a case as a court would) the answer would be yes, but under another (arbitration is an alternative dispute resolution system subject to its own rules) the answer might be no. Plus, not only is the statutory language concerning pursuit of claims framed in terms of filing a "civil action" (which was not enough for the Court to find arbitration superseded) but arguably this whole structure is designed to filter disputes through a judicial process. That might mean that the procedural requirements are simply inapposite when arbitration is the dispute resolution procedure, which in turn might mean no statute of limitations at all for arbitration (the arbitrator could apply something like laches), and maybe no requirement at all of filing a charge with the EEOC.
Obviously, any movement along these lines would be employee-friendly, although it wouldn't address some of the serious problems of mandatory arbitration, including the typical clauses that foreclosing class claims in both court and arbitration.
The question came to mind in light of a case decided by the Second Circuit last August. The decision, Anthony v. Affiliated Computer Services, is less than definitive both because it is nonprecedential and because it arose in the context of an attack on an arbitration award. The arbitrator had found the plaintiff's claim under various antidiscrimination statutes barred by his failure to file for arbitration within 90 days of receipt of the EEOC's right to sue letter, and the Second Circuit upheld the award as not exceeding the arbitrator's authority. Less than a ringing endorsement of the decision and suggestive of the possibility that the court might also have upheld an award based on exactly the opposite reasoning.
But Anthony does raise the issue of what the right answer should be for arbitrators who are faced with this question.
Of course, silver linings in nature are transitory, and, even if arbitrators were to hold statutory procedures inapplicable in arbitration, employers are likely to add their own limitations periods to arbitration awards and, given the Supreme Court's sweeping readings of the FAA, those are likely to be upheld under current law.
Saturday, March 5, 2016
Steven Greenhouse is back with a NY Times article looking at unions' expected influence in the coming election. Among the interesting twists this year are the appeal to many union members of both Bernie Sanders and Donald Trump (at first blush, that seems to violate some basic principle of nature, but there's obviously a common populist theme with the two of them). The most critical question to my mind that he raises is whether unions can still turn out the vote in key battleground states. Only time will tell.
Wednesday, March 2, 2016
On behalf of the ILO, please note that two (2) positions in the field of labour law and international labour law were recently advertised. One is in Geneva, and the other in Santiago de Chile. The closing date for applications is 31 March. Further details can be found here: https://erecruit.ilo.org/public/
Tuesday, March 1, 2016
The EEOC issued a press release today, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:
The federal agency's Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.
In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.
In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.
These cases are an outgrowth of the agency's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC held that Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation because:
(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.
The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit. Accepting it would mean that the courts could stop struggling with trying to distinguish between sex stereotyping cases that are cognizable because they are really about sex and sex stereotyping cases that are not cognizable because they are about sex but also sexual orientation.
Lyft -- an on-demand transportation company comparable to Uber -- has reached a settlement in a class-action case that alleged worker misclassification. The suit, which maintained that Lyft drivers were improperly treated as independent contractors rather than employees, now has a proposed settlement that would pay workers $12.25 million, as well as give them certain protections from termination. From an article about the settlement at CNN/Money:
"Lyft's $12.25 million settlement fund will benefit the more than 100,000 California Lyft drivers who have driven at least once for the company. Their exact payout will depend on how many hours they worked for Lyft."
The settlement still needs to be approved by the court, but it serves as a cautionary red flag to other employers that oversee workers in the on-demand economy. Class-action cases have already been filed against many of these companies.
Saturday, February 27, 2016
This paper, for a symposium on constitutional law and inequality, proposes a new model of labor law termed "libertarian corporatism." Under this model, the state would strongly encourage or even mandate collective bargaining at the occupational or sectoral level (as corporatism requires), while leaving workers near-unfettered choice as to bargaining representatives, and removing certain core legal constraints on workers’ concerted action (as a principled libertarianism requires). This model may ensure both equality and employee choice better than our existing "Wagner Model." Libertarian corporatism may also be a promising power-dispersion strategy in other fields--for example, it could help resolve conflicts over the use of user data by tech firms.