Wednesday, March 16, 2016
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.
Thursday, February 25, 2016
An interesting article over at CNNMoney discusses interesting proposed legislation in France that would allow workers to ignore emails/texts/etc. that they receive after work. The proposal essentially gives workers a "right to disconnect" from their electronic devices when away from their place of business. From the article:
"The draft bill, originally leaked by French newspaper Le Parisien, is part of a wide range of labor reforms designed to make France a more competitive, business-friendly country, while still protecting workers' interests. . . French unions have long pushed for a "disconnect" rule, saying digital technologies have created an "explosion of undeclared labor" that is forcing employees to work well beyond 35 hours per week."
France has long been a fascinating country with which to take a comparative look at employment rules and regulations, and much has already been written in this area. We will follow this proposed legislation to see whether it is ultimately signed into law.
-- Joe Seiner
Wednesday, February 24, 2016
Congratulations to Christine O'Brien (Boston College-Management) for her extensive citation in a New York Times article about workplace profanity, bikini contests, social media, and Section 7 of the NLRA. Christine's article on point is I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases, 90 St. John's LL. Rev. ___ (forthcoming 2016). The NYT article is Fired for Cursing on the Job, Testing the Limits of Labor Law.
Rafaeol Gely (Missouri-Columbia) writes to announce the launch of ArbitrationInfo.com. Here's a description:
The Center for the Study of Dispute Resolution at the University of Missouri School of Law (CSDR) is delighted to announce the launching of ArbitrationInfo.com. In 2014, faculty at the CSDR and the National Academy of Arbitrators (NAA) began conversations about a possible collaboration on a website that would provide information about labor arbitration. Leadership of the NAA, founded in 1947 as a nonprofit honorary and professional organization of arbitrators in the United States and Canada, was concerned about the manner in which labor arbitration and the arbitration process were being portrayed in the media. With the expansion of the use of arbitration outside the labor area, particularly in consumer and employment disputes, negative descriptions of the process in the media had reached an alarming level. While some of the criticism in these other areas was, and continues to be justified, the NAA feared that such criticism could have a delegitimizing effect with regard to labor arbitration. Our initial conversations led us to believe that in part some of the press that arbitration was receiving was due to misunderstandings and misinformation about the different contexts in which arbitration was used and the various types of arbitration.
The website addresses these concerns by providing the public, professionals and the media with a neutral, noncommercial and comprehensive source of information about arbitration. It includes an Arbitration 101 page, which serves as a primer on the arbitration process. In addition, the site features a list of press contacts who are available to talk to members of the media about arbitration. The website is managed by an editorial board composed of members of the NAA and faculty at the CSDR. Students at the School of Law have the opportunity to develop content for and help maintain the website, in collaboration with distinguished members of the NAA. Unlike other arbitration-related websites, ArbitrationInfo.com doesn’t generate or funnel business to a particular arbitrator or an arbitration practice group.
Monday, February 22, 2016
Miriam Cherry (SLU) just posted on SSRN her article (forthcoming Comparative Labor Law & Policy Journal) Beyond Misclassification: The Digital Transformation of Work. Here's the abstract:
The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include the growth of automatic management and a move toward ever more precarious work. To the extent that technology can help us realize an increase in skilled knowledge work that is a positive goal. It is questionable, however, if present forms of crowdwork extend that framework. In fact, some forms of the new crowdwork seem to be a throwbacks to a Taylorist deskilling of the industrial process, but without the loyalty and job security. These results are not inevitable, but we need to pay attention to them if we hope to arrest the race to bottom in labor standards online.
Word from Joseph Mastrosimone of Washburn that the Washburn Law Journal, the Law School’s main journal, is seeking an employment law article for its Issue 3.
This is a fairly tight turn around and would be a good opportunity for someone with a substantial draft at or near completion and who's looking for getting in print much faster than is usual. The Journal would like the draft to be complete by the end of next month and it would be published in June 2016. So, a quick turn around on both ends.
Joe reports that the student editors at the Law Journal are top notch and are a pleasure to work with. Questions about this publishing opportunity and drafts can be directed to the Journal’s Articles Editor at: email@example.com.
Saturday, February 20, 2016
A recent article in The Economist, The big fight, notes that European companies are far ahead of American companies in developing dispute esolution systems for consumer disputes, especially in online ADR. I think a good case can be made that SCOTUS's pro-arbitration line of cases -- especially those that all but extinguish consumer class actions -- have removed the incentive for American companies to invest in developing effective dispute-resolution programs. As a result, American companies risk falling yet farther behind their European competitors.
Here's some key language from the article in The Economist:
The more consumer-friendly stance [of European companies] did not just evolve in the courts but was to a large degree the result of a decision y the European Commission more than 20 years ago to make all small print subject to being examined and potentially overturned by the courts.... The most recent [directive] gives a shot in the arm to ADR, by for instance forcing businesses to inform consumers of their dispute-resolution options.... Firms won't be forced to sign up to an ADR scheme, but eh hope is that most will feel obliged to as the directive takes hold.
Europe also leads the way in developing online mechanisms for mediating the millions of cross-border e-commerce disputes that arise each year.
Friday, February 19, 2016
A union is arguing that the University of Southern California inappropriately interfered with its attempts to organize non-tenure-track faculty members. The alleged interference came in the form of both promises and threats. From the LA Times:
"Faculty at Dornsife College of Letters, Arts and Sciences, the oldest school at USC, voted against joining the Service Employees International Union Local 721 last week, with 113 educators casting ballots in favor of organizing and 127 against. . . [T]he objection alleges that the Dornsife election was 'infected by widely disseminated threats' and 'promises and grants of benefits' that 'affected the outcome of the election.'"
Forming unions in the academic setting certainly presents some unique obstacles, and it will be interesting to see how these particular allegations play out.
Many of our readers have been following the on-going employment questions raised by technology-based companies in the on-demand sector. Much has already been written in this area (see, e.g., here). With regard to the transportation part of this emerging sector, there is now growing concern over the potential liability resulting from driver fatigue. In an apparent response to this concern, Uber has limited the number of hours of its drivers in New York. From Yahoo! News/The Verge:
"Uber says that drivers who are on the road longer than 12 hours will be temporarily deactivated. If they do it again soon after being reactivated, they will be permanently removed from the platform. . . The new policy was adopted just as the TLC says it is looking into new ways to crackdown on driver fatigue, after a cabbie struck and killed an 88-year-old woman on the Upper West Side after 16 hours on the road."
The on-demand economy presents numerous employment issues, and we will continue to follow these developing trends.
Monday, February 15, 2016
Stacie Strong (Missouri) posted this to the ADR profs listserv. I am cross-posting it here with her permission:
As some of you may know, another case involving class waivers in the employment/labor context was heard Friday by the Seventh Circuit. The case, Lewis v. Epic Systems, Inc. (No. 15-2997) (here's the district court opinion), saw the National Labor Relations Board (NLRB) filing an amicus brief. While it is unclear how the Seventh Circuit will rule in this instance, it would seem that the Supreme Court will soon need to address this issue, either to resolve the split between agency (NLRB) determinations on the proper reading of the National Labor Relations Act and various federal court rulings (if the Seventh Circuit follows the approach used by other federal courts since the D.R. Horton case), or between different federal courts (if the Seventh Circuit adopts the NLRB approach).
Sunday, February 14, 2016
In the welter of outpourings of tributes, recollections, and political prognostications that followed the unexpected death of Associate Justice Antonin Scalia, I suspect that his impact on the employment arena will not be front and center. And I also suspect that readers of Workplace Prof generally decry his influence on our field. Nor can I claim not to have offered my fair share (OK, maybe more than my fair share) of criticism, including a recent spoof of his arbitration jurisprudence written with Tim Glynn.
That said, it's easy to forget that Justice Scalia authored some pretty important, and, on balance, pro-plaintiff opinions. Oncale comes to mind, as does Staub v. Proctor Hospital and, most recently, Abercrombie & Fitch. It's true that I've been known to wonder where the hook was when the Justice seemed to be offering a fat, juicy worm to us employment discrimination folk, but that may be just me.
And beyond the contributions of analysis and results of which we approve, the Justice's opinions will be missed for the sheer exuberance (sometimes overexuberance) of his prose. His style was inimitable and, if there is one thing that is almost certain in the future, it is that his replacement's opinions will be less fun to read and engage with.
Friday, February 5, 2016
[Employers often unilaterally alter the terms of at-will employment,] often without advance notice. To date, however, neither courts nor commentators have holistically considered this problem of “midterm modifications” - contractual documents imposed post-hire on implicit or explicit threat of termination. Bringing together the law of noncompetes, arbitration agreements, and employee handbooks, this Article calls for a universal reasonable notice rule for all midterm modifications. Under this rule, courts would enforce midterm modifications only ... where the employer provides enough advance notice to allow the employee time, not only to meaningfully consider the proposed change, but also to compare and secure alternate work. The Article justifies this move [on the basis of] good faith. Procedural good faith means that the employer must act fairly in carrying out discretionary modifications otherwise immune from substantive review. An employer’s choice to impose new terms with immediate effect precludes an employee from exercising what is often his or her only form of bargaining power - the ability to convincingly threaten to leave.