Tuesday, December 9, 2014
It's official. On Monday, the Senate voted to confirm Lauren McFerran to the NLRB by a 54-40 vote. It's great to have the NLRB remaining at full strength and, while I'm disappointed not to see Sharon Block back, McFerran looks like she'll be really good.
Hat Tip: Patrick Kavanagh
The Supreme Court ruled unanimously today that time spent waiting to clear security after a work shift is not compensable time under the FLSA. The opinion, authored by Justice Thomas, is available here. Justice Sotomayor filed a separate concurring opinion. The Court held that time waiting to go through security at the end of the shift was neither a "principal activity" that employees were employed to perform, nor "integral and indispensible" to such principal activities. Rather, the security screenings were non-compensable "postliminary" activities under the Portal-to-Portal Act.
The case is Integrity Staffing Solutions v. Busk, and was previewed on this blog here. The Court specifically rejected the employees' argument that the employer could have reduced the wait times to de minimis levels, but chose not to, resulting in 25 minute wait times. Justice Thomas wrote that such arguments are properly the subject of contractual negotiation between employees and employers, not FLSA suits.
This could present an opportunity for a future empirical study - do employees receive compensating wage differentials for increasingly burdensome security line waits?
Monday, December 8, 2014
There is a really interesting piece over at BusinessWeek which looks at the formation of sexual harassment as a cause of action. We too often take this cause of action for granted, and the history on this issue is extraordinarily rich and complex. The article looks at the impact of some of the early federal district court decisions on this cause of action, including Williams v. Saxbe. The article also looks at where the term "sexual harassment" originated. From the article:
"In 1975, a trio of feminist activists in the Human Affairs program at Cornell University wrote a letter describing a painful and familiar story. . . They coined the term [“sexual harassment”] in a letter sent out seeking a lawyer to take [a] case. Finally, something that had been going on for as long as women had worked alongside men—the abuse of female employees by male bosses—had a name. And that meant it could be fought."
This is a short but excellent article, and definitely worth at least a quick read.
- Joe Seiner
Saturday, December 6, 2014
A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Bernard Banks (Kiely Thompson Caisley - New Zealand) informs us that the annual LawAsia Employment Conference (which he chairs) will be held May 15-16, 2015 in Ho Chi Minh City, Vietnam. If you are interested in presenting, contact Bernard. I attended this last year, and through the conference ended up collaborating with labor/employment practitioners from all over the world on an article (forthcoming Arizona J. Int'l & Comparative L.) on labor outsourcing. The conference is a great opportunity to see labor/employment issues from myriad perspectives, and to meet labor/employment folks from everywhere. If you're interested, let me know and I'll be happy talk with you.
Stephen Lee (Irvine) has just posted on SSRN his essay (forthcoming Irvine L. Rev.) Policing Wage Theft in the Day Labor Market. The toic is one with which -- until I read his essay -- I was unfamiliar. Here's an excerpt of his abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft.... In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft.... My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Friday, December 5, 2014
There is an interesting article over at CNN Money which discusses a disturbing sexual harassment lawsuit at the real estate giant Zillow. An employee who was terminated late last summer alleges that she was subjected to graphic displays of sexual-based content. From the article and the allegations in the lawsuit,
“[the plaintiff’s] male supervisors ranked her according to her breast size, sent pictures of their penis to her, and demanded sexual gratification and obedience by [her] to continue her employment… [the workplace environment constituted an] adult frat house."
These are indeed alarming allegations, and if true, paint a disturbing picture of this employment setting. It will be an interesting case to follow…
-- Joe Seiner
Thursday, December 4, 2014
- The Conference of the Regulating for Decent Work Network, in July 2015, in Geneva. The topic will explore "Developing and Implementing policies for a Better Future at Work."
- The Labour Law Research Network Conference in June 2015, in Amsterdam. I attended the inaugual LLRN conference in Barcelona, which was quite interesting.
They both look really interesting, so definitely worth checking out.
Bill Herbert writes to inform us about a couple of announcements from the The National Center for the Study of Collective Bargaining in Higher Education and the Professions. The first is the Center's 42nd Annual Conference, at the CUNY Graduate Center in NYC, from April 19-21, 2015. The topic is "Thinking about Tomorrow: Collective bargaining and Labor Relations in Higher Education. As you can see from the conference website, there is an impressive list of panels and speakers.
Also, the Center has made available online all of its bimonthly newsletters from 1973-2000. The website containing the archive notes:
Between 1973 and 2000, the National Center published a bimonthly newsletter with contributions from directors and newsletter editors Maurice Benewitz, Thomas Mannix, Theodore H. Lang, Aaron Levenstein, Joel M. Douglas, Frank R. Annunziato and Beth H. Johnson. In addition, issues of the newsletter included contributions by other scholars including Clark Kerr, Fred Lane, Clara Lovett, Stephen Joel Trachtenberg, Myron Lieberman, Irwin Polishook, Matthew Finkin, Richard W. Hurd and Richard Chait.
Over its 27 year publication history, the newsletter contained articles, analysis and data on subjects that continue to be topical in higher education and the professions including: the impact of the Supreme Court’s Yeshiva University decision, the organizing and representation of adjunct faculty and graduate students, academic freedom and tenure, shared governance, discrimination and faculty strikes. The final issue of the newsletter appeared in 2000 with excerpts of a speech given by then AFL-CIO President John J. Sweeney at the National Center’s 28th annual conference as the first annual Albert Shanker Lecture.
Steven Greenhouse has announced that he, along with many other reporters, is taking a buyout offer from the New York Times. This is bad news for the labor community, but certainly a well-deserved move, so I congratulate him. Greenhouse has long been the go-to guy on labor reporting, not only because he's been basically the lone major media labor reporter, but also because of the high-quality of his reporting. That said, it's seemed to me that there's been a growing crop of young reporters working on the labor beat. Although they've been largely at smaller news organizations or blog-type pages at bigger outlets, there's been some really good work from these reporters over the last few years. Greenhouse can probably take credit for blazing a path for these reporters and if his legacy is a bigger pool of labor reporters--after labor reporting had seemed dead--then that's a major accomplishment by itself.
Here's the email that Greenhouse sent colleagues, quoted from Capital New York:
This has been one of the toughest decisions of my life," he wrote. "I love the Times, I love my job, and I love my colleagues here." He explained his rationale for taking the Times' offer. "The Times made a generous buyout offer that was hard to refuse. That and the fact that two good friends—both also 63, both terrific journalists—died over the past few months really pushed me to take this step and begin my next chapter. Also, I realize that I need to slow down, at least somewhat. I work too damn hard—that’s my fault, not the NYT’s." As for his next steps, Greenhouse said that he's working on a book—to be published by Knopf—about workers, and will also be freelancing for the Times.
Best of luck!
The Senate's HELP committee has approved Lauren McFerran's nomination to the NLRB by a party-line vote (12-10). The early timing of the committe's action is probably the most important fact, as it seems to indicate an intent to have a full Senate vote before the end of the year--and the changing of the Senate majority to Republicans. It's looking, therefore, that the Board will have it's full five members until at least August 2015, when Harry Johnson's term expires (there could be a minor delay between Nancy Shiefer's term, which ends on Dec. 16 and McFerran's confirmation). Given that Johnson is Republican, we could see his seat filled in a timely fashion, although I wouldn't bet either way on that one.
Hat Tip: Patrick Kavanagh
Wednesday, December 3, 2014
The Court heard oral argument in Young v. UPS (argued in part by Sam Bagenstos (Michigan)) this morning, and the transcript is now available on the Court's website. I've read it and am not entirely sure what to conclude. One analogy made by Justice Scalia, and used throughout the argument was "most favored nation" status. Does the second clause in the PDA, which requires that pregnant workers be treated the same as other workers similar in their ability or inability to work, require that pregnant workers be treated the same as the best treated of those others? Or can they be treated as least favored nations -- as long as there is a group of workers similar in their ability or inability to work that is treated poorly, pregnant workers can be treated poorly too? The policy at issue allowed light duty accommodations for workers injured on the job, but required those injured off the job who couldn't lift heavy things to take unpaid leave. So there was a distinction within the group of workers similar in their ability or inability to work that was not related to pregnancy. At the same time, the policy weeded out all pregnancy limitations. Moreover, there were two exceptions to the off-the-job part. If the off-the-job injury resulted in a disability under the ADA, or a DOT decertification, the injury was accommodated.
There was a significant amount of back and forth about what that second clause means, since it's not a full fledged accommodation requirement like the religious accommodations in Title VII or the accommodation requirement of the ADA. At the same time, it has to mean something more than simply that discrimination on the basis of pregnancy is discrimination on the basis of sex, since that's what the first clause says. And clearly the effect of the PDA on the Court's decision in General Electric Co. v. Gilbert is still under debate. I'm making no predictions, but I'd be interested in your insights in the comments.
An interesting article at Marketplace.org looks at the potential economic impact of race rioting and protests. The article highlights the recent events in Ferguson, Missouri, and compares them to the rioting which took place in the 1960s. The article notes that these types of protests can affect employment opportunities, as they make it "harder ... to raise money for revitalization projects. It's harder to attract businesses and developers, and news coverage can paint a negative picture of a place."
The piece thus provides a different angle of an important news event, highlighting the possible workplace implications.
-- Joe Seiner
Call for Papers
The Thirteenth Amendment through the Lens of Class and Labor
Approaching the 150th anniversary of the Thirteenth Amendment, we find ourselves in a period of heightened concern about issues of economic inequality. If any provision of the United States Constitution speaks to those issues, it is the Thirteenth Amendment. The Amendment’s proponents maintained that it established “freedom” and a “free labor system,” a view eventually accepted by the U.S. Supreme Court. Beginning after the turn of the millennium, Congress has drawn on the Amendment to support legislation outlawing the “new slavery,” including – for the first time – forms of labor control other than physical force or legal compulsion. Conversely, state governments have cited the Amendment’s punishment clause to justify forced labor by prisoners in a rapidly growing archipelago of private prisons and prison industries.
Paper proposals should focus on the Thirteenth Amendment and include class or labor as an important theme. Proposals addressing the relations (including relative priorities) and intersections of race, gender, and sexual orientation with class or labor are strongly encouraged. Proposals should be e-mailed to Rebecca.firstname.lastname@example.org by January 10, 2015. We anticipate that the papers will be published in a law review symposium issue.
The Thirteenth Amendment Through The Lens of Class and Labor Conference is sponsored by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, the Seattle University School of Law, and the University of Washington School of Law. The conference will be held at the Seattle University School of Law on May 31- June 1, 2015, immediately following the annual meeting of the Law & Society Association.
Planning Committee for the Sesquicentennial Conference on the Thirteenth Amendment through the Lens of Class and Labor:
Charlotte Garden (Seattle University School of Law)
Darrell A.H. Miller (Duke University School of Law)
Maria Linda Ontiveros (University of San Francisco School of Law)
James Gray Pope (Rutgers University School of Law)
Aviam Soifer (William S. Richardson School of Law)
Lea VanderVelde (University of Iowa College of Law)
Ahmed White (University of Colorado School of Law)
Rebecca E. Zietlow (University of Toledo College of Law)
Looks like a great opportunity.
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Friday, November 28, 2014
image from www.dol.gov
The US Department of Labor is promoting an interesting website targeted at all aspects of the employment process. "FindYourPath" is a one-stop website that allows employers to find available workers, permits individuals to identify jobs, and shares relevant news on the employment process. The website also discusses training opportunities that allow workers to grow their skill sets. The website is worth taking a look at, and I have been impressed recently with the Department of Labor's progressive attempts to advocate for and assist workers during this down economy.
-- Joe Seiner
Thursday, November 27, 2014
New technology meets old-school labor unrest. Recently, the online ride service, Uber, has faced a series of collective actions by its drivers, which have objected to the increasingly tight terms and conditions of their relationship with the company. One of the many interesting aspects of this dispute is that the drivers, like many taxi drivers, are classified by Uber as independent contractors. That doesn't stop the drivers' ability to engage in work stoppages, but it of course eliminates any legal protection against retaliation. However, there's currently a suit pending in San Francisco challenged the classification, so things could get more interesting.
Hat Tip: Michael Duff
As the new Employment Law Restatement approaches final form, we can expect another wave of academic commentary, and I was fortunate enough to be present last week at the first such effort, a Symposium hosted at Ithaca hosted by the Cornell Law Review. Some of the papers are already available on SSRN, including Michael Harper's Fashioning a General Common Law for Employment in the Age of Statutes and Robert Hillman's Drafting Chapter 2 of the ALI's Employment Law Restatement in the Shadow of Contract Law: An Assessment of the Challenges and Results.
I assume the other papers will be available on SSRN soon, and, in any event, will be published in the Cornell Law Review in the spring. They include Steve Willborn's assessment of Chapter 7, Privacy; two offerings on Chapter 8, Employee Obligations and Restrictive Covenant, one by Mike Selmi and another by Deborah DeMott; and my own musings on Chapter 9, Remedies.
Most of the panels featured one of the Reporters for the project, and I was struck by their openness to addressing "scrivener's errors" even at this late stage. Those working from the April Proposed Final Draft considered by the American Law Institute in May should be aware of one major change (the final version will take no position on whether the wrongful discharge tort will extend to wrongful discipline short of constructive discharge) and perhaps a number of less significant ones.
And I forgot to mention the retitling -- it is no longer the Restatement (Third) of Employment Law -- the "Third" having been jettisoned. Much more sensible since as we all know there was never a First or Second version of this Restatement. If you're wondering, I think the idea for the original title was that this was part of the Third series of Restatements.
As is well known, this Restatement was more controversial than most ALI efforts, due largely to the opposition of the Labor Law Group. And that controversy will continue -- both in the law reviews and in the courts.
One measure of success, of course, is acceptance by the courts, and on that measure the Restatement is off to an ironic start. The first judicial opinion to cite it, Tamosaitis v. URS Inc., 2014 U.S. App. LEXIS 21314 (9th Cir. Wash. Nov. 7, 2014), written by Judge Berzon (who was present at the Symposium) looked at the Proposed Final Version's treatment of the tort of wrongful discipline. As I noted above, however, the Institute itself retreated from that position in May to adopt an agnostic stance about whether the tort reached so far.
Another metric, of course, is how well the Restatement maps onto the case law. That, of course, is what a Restatement is (mostly) supposed to do according to the ALI, and we can expect a number of good analyses in that regard.
Yet another metric is the internal consistency or overarching theoretic structure of a Restatment. In this regard for example, Steve Willborn's critique of the Privacy chapter stands out as a signal contribution. Worth a read also is Professor Hillman's work, which finds that the Restatement does no worse than contract law generally in failing to articulate a unifying theory of several of the contracts-related subjects it addresses.
A final metric is whether the new Restatement is employee- or employer-friendly, or at least more or less friendly than the common law. If there's one metric the Reporters don't accept, it's this. And I should know because that was largely the metric I applied in my talk on Remedies!
I do get the problem. For example, the Restatement's rejection of emotional distress contract damages for fired employees could scarcely be challenged from the point of view of case-counting. But as Alan Hyde has argued, is such a rule really sensible in light of the profound psychological and even physical effects of discharge on workers? But this is an example where the Restatement, while employer-friendly, tracks the case law.
In other instances, however, assessing the Restatement in terms of its exacerbation or amelioration of the bias built into the law seems perfectly appropriate -- to me, at least. An example I offered at the Cornell Symposium was the Restatement's approval of a version of the "lowered sights" doctrine, the notion -- definitely the minority rule -- that, in order to mitigate her damages, a wrongfully discharged employee must, after a reasonable time, accept less attractive substitute employment when more attractive employment isn't found.
At all events, I enjoyed the Symposium, and thank the Reporters for their graciousness and the Law Review for its hospitality. I look forward to the final versions of the papers and to more scholars weighing in on the entire question.
Wednesday, November 26, 2014
Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.) Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.
In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US. Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US. See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).
With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3). The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US. See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).
Employer Alienage Discrimination
What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status? Discrimination based on a person’s citizenship status is called alienage discrimination. Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination. 42 U.S.C. § 2000e-2(a)-(c). Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3). Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.
Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added). Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994). However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit). In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.” Anderson, 156 F.3d at 180.
In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following: He was a Mexican national living in New York. In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number. During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident. He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident.
Juarez sued, alleging alienage discrimination in violation of 42 USC 1981. On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.
On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss. Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.” An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class. And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual had rejected him pursuant to that policy. For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.
Hat tip: Jon Bauer
Tuesday, November 25, 2014
There is an interesting article at CNN Money which discusses a disturbing but important employment trend in this country. The piece looks at the movement towards employing part-time workers rather than using full-time employees. The article notes the specific disadvantages for workers in this trend, and examines the percentage of these part-time workers in individual states across the nation. From the article:
"Part-time workers are far more likely to live in poverty. They are paid less than other workers and often don't receive benefits. It's a bad sign when states have a high percentage of part-time employees in the labor force, especially those working part-time involuntarily because they can't get a full-time job."
This is an unfortunate and growing trend, and one that is important to closely watch. It is certainly indicative of whether there truly has been a rebound in our economy.
- Joe Seiner