Sunday, July 12, 2015
Brittany Bronson (left) writes in today's New York Times (Sin City's Dirty Pools) about sex discrimination at Las Vegas "pool clubs", where the well-paid cocktail-server positions are sex-specific and the rare male who does get hired has a dress code much more modest than that of his female counterparts. Congratulations to Ann McGinley (UNLV, right), whose great work on this and related topics for the last long while forms the basis of much of the article.
Albert Feuer (Forest HIlls, NY) has just posted on SSRN his essay The Supreme Court Agrees to Determine Whether ERISA Preempts a Vermont Health-Care Database Reporting Mandate, 34 Tax Mgm’t Wkly. Rep. 860 (July 6, 2015). The essays argues for more coherent ERISA preemption principles that are consistent with the terms of ERISA than the existing Court principles. It observes that alternative frameworks have been presented in the context of the certiorari petition granted by the Supreme Court. Prof. Edward Zelinsky’s framework focuses on interactions with ERISA benefit plans; this essay focuses on ERISA benefit protections.
Saturday, July 11, 2015
At this blog, we have extensively covered the push for higher minimum wages over the last several months. We have noted that a number of states and local jurisdictions have raised that wage well above what is mandated by federal law under the FLSA. It is clear that this will be an important issue in the upcoming presidential election.
In those jurisdictions that have raised the minimum wage, some employers are trying to offset the pay hike by passing it along to the customers. In San Francisco, for example, Chipotle raised its prices approximately the same amount as the 14% wage hike that went into place in that city, according to Investors.com/Investors Business Daily. The article also notes that Starbucks plans to raise prices in part due to increased labor costs.
It will be interesting to see how other companies respond to higher minimum wage rates, and whether they are able to absorb the costs themselves or pass them on to the customers. It will also be interesting to follow how customers respond to the price hikes.
-- Joe Seiner
Friday, July 3, 2015
As the Fourth of July holiday is upon us, it is a good time to consider the following question: should non-exempt employees be compensated for time spent responding to work-related emails, texts, etc. It is extremely common for workers to be available to their employers now on a 24/7 basis via mobile devices. How much (if any) of this time should be compensable? An interesting article at Forbes.com looks at how this complex area may see the next flood of class action litigation. A recent California Appellate Court decision signals that at least some of the courts may be siding with workers in this area. That case looked more at the issue of whether an employer must compensate an employee for data usage on a personal device used for business purposes. From the Forbes article:
"It may be summertime with vacations underway, but the small and medium business clock hasn’t stopped or even slowed down. In a RAND survey published last year, 58.8% of employed Americans reported working during their vacation. Time away from work is rapidly becoming an oxymoron. . . . But there are a slew of troublesome complications emerging, especially when it comes to reimbursement. Recent enforcement of labor law in the state of California is increasing the threat of additional lawsuits around  reimbursement and no employer is exempt."
This case and issue is an important reminder that the FLSA -- and related state statutes -- were passed at a time when these modern technologies did not exist, often making these cases tough for the courts and litigants.
-- Joe Seiner
Thursday, July 2, 2015
I posted last year on Ms. Saavedra’s plight – and its implications for employees more generally – when the New Jersey Appellate Division last year upheld an indictment against a worker for removing documents for use in her employment lawsuit. I write again because the state Supreme Court in just weighed in, with State v. Saavedra affirming the decision below in an opinion that employment lawyers across the nation should read.
As a reminder, the Appellate Division had upheld a criminal indictment for Ivonne Saavedra, an employee who took 367 documents from her employer, the North Bergen Board of Education, for potential use in her civil suit claiming both discrimination and violation of the state’s whistleblower statute. Some of these documents contained confidential information about third parties. The Board took the matter to the prosecutor, who filed charges for “official misconduct” and theft. My last post expressed concern about the indictment, and its clear implication that a pervasive form of opposition conduct was being criminalized.
The NJ Supreme Court’s decision makes matter worse. Not only is it more authoritative, but it also further confuses the protocol for an LAD or whistleblower plaintiff looking to gather evidence for her case and practically invites vindictive employers to intimidate employees with the threat of prosecution. While "official misconduct" pertains only to public servants, which limits the opinion’s reach in that regard, a potential theft charge is enough to dissuade any employee from bringing a LAD or CEPA suit.
Before the Supreme Court, Ms. Saavedra looked to its 2010 decision in Quinlan v. Curtiss Wright, as a basis for reversal. As I posted before, Quinlan had announced a multi-factor rule that would -- sometimes at least -- bar employers from retaliating against workers by discharging them for taking documents for use in lawsuits. Ms. Saavedra argued that Quinlan required the court to dismiss the indictment when the documents she took were intended to be used in employment discrimination litigation. The Supreme Court was not swayed, dismissing Quinlan as irrelevant to a criminal proceeding: “nothing in Quinlan states or implies that the anti-discrimination policy of the LAD immunizes from prosecution an employee who takes his her or employer’s documents for use in a discrimination case.” The result is, as Justice Albin, the single dissenting voice, summarized: “an employee who takes confidential documents to pursue an LAD claim could win a multi-million dollar discrimination lawsuit but serve time in prison for committing a crime.”
It is true that Saavedra can be distinguished from the more garden-variety employee efforts to collect evidence. She was charged not with merely taking copies but also original documents, and, as we will see, the latter might have been critical to the theft charge. Further, the documents contained confidential information about third parties -- students in the district. Misuse of such information might have been critical to the official misconduct charge.
But whether the Supreme Court’s opinion will be limited by these kinds of considerations is unclear. One obvious question is whether Saavedra reaches the appropriation of the information or the tangible documents themselves? For the official misconduct charge, an employee’s breach of confidentiality for her personal benefit – and use of the documents for Saavedra’s civil suit sufficed to benefit her – may be enough.
But such conduct does not constitute “theft,” at least according to the New Jersey theft provision under which Saavedra was indicted; that requires an individual to “unlawfully take, or exercise unlawful control over, movable property of another with purpose to deprive him thereof.” N.J. Stat. Ann. § 2C:20-3. The Supreme Court found the documents to be moveable property, and, because Saavedra took originals, the Board no longer had the documents in its possession; that was sufficient evidence that Saavedra acted “with the purpose to deprive” the Board of the documents.
It would seem to follow that, if an employee makes copies of confidential documents, a key element of the theft of movable property charge is negated – at least if the employee uses her own paper (or, these days, a cell phone camera).
But not so fast. Another provision of New Jersey law extends theft to immovable property and contains no “purpose to deprive” language. Further, property is defined to include such things as computer files or trade secrets. § 2C:20-1 (g). In short, an employee in New Jersey would seem to be at risk of criminal prosecution if he copies his employer’s documents, no matter how critical they may be to a current or anticipated court suit.
Justice Albin found the situation intolerable: “The law should not place whistleblowers in a position where they are playing Russian roulette with their careers or their liberty.” He critiqued the majority for discouraging whistleblowers from coming forward and thereby preventing the exposure of employer misconduct. But Justice Albin’s solution was no panacea for employees. He would solve the problem of indeterminateness by recognizing only a very narrow right for employees to take documents: “an employee would be permitted to take a confidential document to an appropriate authority only if the document ‘clearly indicates that the employer was engaged in illegal conduct.’” Clear to whom? That seems like a legal determination, but is any document capable of so establishing on its face and without regard to other documents?
The only silver lining for employees in Saavedra’s position is a claim of right defense. The majority held that a jury could determine that Saavedra genuinely believed she had a legal right to the documents, which would justify her conduct and negate a critical theft element. While that may yet avail Ms. Saavedra, few employees would be brave enough to take the chances on a criminal indictment when a claim of right defense is her only fallback.
Ultimately, the decision clearly sends the message that employees are well advised not to take employer documents to bulwark their cases, even though it does not seem to establish a bright-line rule that workers can never take such material.
The majority found this result not troubling because of the mechanisms in civil litigation for preserving and obtaining documents. I’m not so sure. It’s not that I believe that employees should be free to take whatever their hearts desire, but, after all, if the documents in question are in fact taken only for use in a lawsuit, there are built-in limitations to their use, limitations that can be reinforced by a protective order to that effect.
Even if that is the employee’s purpose, however, I agree that taking documents – as opposed to copies – may impair the employer’s functioning. Finally, third party interests, such as student confidentiality, deserve special concern. How this all can be negotiated is not so clear, but using New Jersey’s theft statute as currently drafted is a pretty blunt instrument for this purpose.
Thanks to my RA, Samira Paydar, for her help on this.
Wednesday, July 1, 2015
In recent legal challenges, Uber, Lyft, and other so-called “ride-sharing” companies have argued that the drivers who contract with them are independent contractors, not their employees, for purposes of the Fair Labor Standards Act (FLSA) and other laws. Their argument: We’re each mostly a technology platform for matching drivers and riders, not a transportation company. This argument has not persuaded. See, e.g., O’Connor v. Uber Techs. Inc., No. 3:13-CV-03826, 2015 WL 1069092, at *6-7 (N.D. Cal., March 11, 2015) (“Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a “technology company” because it uses CB radios to dispatch taxi cabs . . . Uber only makes money if its drivers actually transport passengers.”).
Yet, even if they lose the employee/independent-contractor fight, this comparison to taxicab companies might well cut partly in their favor down the road, because section 13(b)(17) of FLSA exempts from its overtime protections “any driver employed by an employer engaged in the business of operating taxicabs.” 29 U.S.C. § 213(b)(17). Some State wage and hour laws do something similar. E.g., N.Y. Labor Law § 651(5) (defining “employee” to exclude anyone employed “as a driver engaged in operating a taxicab”); 43 Penn. Stat. § 333.105(b) (exempting from State overtime requirements “[a]ny driver employed by an employer engaged in the business of operating taxicabs”); Calif. Industrial Wage Commission Order No. 9-2001, § 3(M) (2014) (“provisions of this section [on overtime] shall not apply to taxicab drivers”).
So, is Uber, Lyft, or another “ride-sharing” company engaged in the “business of operating taxicabs” under FLSA § 13(b)(17)? The U.S. Department of Labor’s Field Operations Handbook (1999 ed.) (DOL-FOH), chapter 24, says this:
24h01 “Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected.
DOL adopted this view in August 1974. See also DOL-FOH 24h03(a)(4) (“airport limousine service” as example of work that falls outside this exemption).
Since then, some judges have deferred to the DOL Handbook view in deciding whether a defendant-employer—often those that advertise as a limousine service—falls within this exemption. E.g., Cariani v. D.L.C. Limousine Services, 363 F. Supp. 2d 637, 645 (S.D.N.Y. 2005); Arena v. Plandome Taxi Inc., 2014 WL 1427907, at *15 (E.D.N.Y., April 14, 2014). In contrast, in Rossi v. Associated Limousine Services, 438 F. Supp. 2d 1354, 1363 (S.D. Fla. 2006), the judge emphasized that while the defendant there let its customers “determine the destination of the vehicle,” it mattered more that it “advertises itself as a limousine company”; it was “not licensed to provide taxicab transportation”; its drivers “do not cruise for customers and cannot be hailed down by customers,” but prearrange transport; and it sets fares in advance based on a flat or hourly rate, not based on a taximeter.
How does all this apply to Uber and other “ride-sharing” companies? In some ways, they seem like a “taxicab” business described in DOL’s Handbook—their drivers provide mostly local transportation, without fixed routes, and they largely go where the customer tells them to go. In other respects, it’s not so clear. When you use the Uber app, is it like “hailing” or “flagging down” a taxicab on the fly? Or is it more like prearranging transport, because Uber drivers are not supposed to pick up customers who don’t use the app to set up the ride? See Opinion Letter, Wage and Hour Division, U.S. DOL, 1998 WL 852774, at *1 (April 17, 1998) (“The ordinary meaning of [“taxicabs”] contemplates vehicles that are offered for hire to the general public on city streets. While it is not necessary that all the transportation be provided to persons who ‘flag down’ the vehicles, that is an important aspect of the common meaning of ‘taxicab which your client's vehicles do not possess.”).
In grappling with all this, it might matter that FLSA’s exemptions are supposed to be read narrowly, see Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959), and consistent with their purpose. So, what’s that purpose? Actually, it’s not at all clear. One court searched the FLSA legislative history and couldn’t find “any explicit explanation for the taxicab exemption.” Arena, 2014 WL 1427907, at *13. Perhaps Congress exempted the taxicab business, because back then it was hard for employers to verify how many hours a driver spent looking for customers to pick up. If so, that’s less of a problem now, because ride-sharing companies like Uber and Lyft have the technology to monitor precisely when a driver makes himself available for rides (via the ride-sharing app) and how long an actual ride takes from pick-up to drop-off.
Tuesday, June 30, 2015
Today, the Supreme Court granted cert. in Friedrich's v. Cal. Teacher's Association. The issues presented are
(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.
Hat Tip: John Coyle
Monday, June 29, 2015
Playing off of Rick's post below, there have been a number of negative experiences that transgender employees have shared concerning their treatment in the workplace. And, there has certainly been a tremendous amount of litigation in that area. Some companies have started to take the lead on attempting to assure transgender workers fair treatment in the employment arena. These companies are trying to make sure that LGBT workers have a positive experience with their business. One such company currently making headlines is Starbucks, which is highlighting the experiences of three transgender employees on their website. From the website, one transgender employee states:
"I never really thought it was possible to transition in a workplace where I interact with many customers on a daily basis, but my Starbucks partners and customers have seen me transition, and many of my fears have been proven wrong - as people accept me for the man I’ve always known I was.”
It will be interesting to see if other companies follow this lead, and attempt to be more open and accommodating to all workers.
- Joe Seiner
Friday, June 26, 2015
Jillian Weiss, an attorney in Tuxedo Park, NY, has been the subject of several of my posts on this Blog for her tireless advocacy, both public and judicial, on behalf of trans clients. I don't believe I had ever met her in person, until earlier this week I was squatting between meetings in the library of the New York City Bar Association, heard a party going on as I was leaving, and saw that Jillian was the guest of honor. It was a great opportunity for us to reconnect and finally meet in person, and it's a testament to how far GLBT acceptance has come that she was being celebrated by the NYCBA.
Andrew Kimler is an attorney with Vishnick McGovern Milizio in NYC, and is an alum of Ohio Northern Law School. He has an employment litigation practice, with a particular focus on GLBT, and especially trans, litigation. More importantly, his firm has parlayed its experience with GLBT employment cases into representation of GLBT folks on a much wider variety of issues, such as marriage, adoption, estate planning, and the like. The more he spoke about his firm becoming a full-service LGBT-focused firm, the more I thought about how elder law has developed from nothing 10 years ago into a comprehensive practice specialty today, encompassing not just estate planning but Medicare/Medicaid planning, living wills, end-of-life issues, etc. etc. Perhaps this is the wave of the future for GLBT practice.
Thursday, June 25, 2015
While everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.
Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.
It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.
Of special interest in the employment context was this odd statement about the employment cases:
These cases also teach that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.
Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.
There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.
Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.
In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.
Tuesday, June 23, 2015
Those of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))
The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."
The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor. You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.
And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.
As we are all aware, the recent tragic events in South Carolina have lead to a widespread call to remove the Confederate flag from flying on state grounds. Nikki Haley, the state's governor, has supported the removal of the flag, as well as senator (and presidential candidate) Lindsey Graham. The New York Times has also just reported that the state legislature will take up the issue in the next few days. What happens in South Carolina is also likely to influence other states that use or display the flag in some manner.
Much has been written over the years -- both in the academic arena and in the popular media -- on the constitutional implications of displaying the Confederate flag. But another interesting dimension has emerged recently in this heated debate -- which are some of the possible employment issues involved. In South Carolina, the state's largest employers publicly entered the fray today in calling for the flag's removal. According to The State, South Carolina's largest newspaper,
"The Charleston, Greenville, Columbia and African American chambers of commerce issued statements of support for the removal of the flag, and five of the state’s largest companies – French tire maker Michelin, Hartsville-based Sonoco, airplane manufacturer Boeing, utility SCANA Corp. and BMW – also threw their weight behind the effort after [the governor's] public remarks."
With the business community and state's largest employers now firmly behind the flag's removal, it will be interesting to see if the issue becomes more of a business-related decision for the state legislature. The issue is an important reminder of the many political dimensions that are always involved with employment law. The topic is one that we will follow closely over the next several days as the issue comes to a head. As this debate is extraordinarily controversial, feel free to share your thoughts on this topic in the comments below...
-- Joe Seiner
Saturday, June 20, 2015
In a recently posted paper (forthcoming in the Southern California Law Review), Stephen Rich argues for a way to reconstruct the legal conception of diversity—narrowly endorsed in Grutter v. Bollinger, 539 U.S. 306 (2003) only for the use of an applicant’s race for public university admissions —to better advance equal opportunity in workplace settings and beyond. More from the abstract:
This Article demonstrates that Grutter underserves the law’s equality values by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. These deficiencies obscure diversity’s potential to reimagine the relationship between equal opportunity, individual achievement, and institutional design. The Article uses the managerial conception of diversity as a foil for the legal conception. One the one hand, proponents of diversity management in the business context seek to exploit workforce diversity for financial gain, and they reject the emphasis of affirmative action programs and civil rights enforcement on the achievement of integration for its own sake. On the other hand, however, proponents of diversity management sometime marshal the diversity ideal also in order to promote new institutional practices that extend to underrepresented persons equal opportunity for individual growth and advancement. The Article proposes a reconstruction of the diversity rationale to fulfill its potential as an instrument of equal opportunity, within and beyond the educational realm and in circumstances including, but not limited to, the implementation of affirmative action programs.
In the paper, Rich argues, among other things, that, a diversity rationale should distinguish between “exploitative and egalitarian uses of diversity” and should endorse only “measures that provide equal opportunities for individual achievement and advancement to all persons, regardless of their social status.” To this end, it shouldn’t matter that an institution’s “diversity” efforts also advance its own self-interest, even if that “spur[s] an institution to pursue diversity voluntarily.”
Thursday, June 18, 2015
Sam Estreicher (NYU) has just published Depoliticizing the National Labor Relations Board: Administrative Steps , 64 Emory L.J. 1611 2015). Here's the abstract:
Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?
Nick Ohanesian (Judge, Social Security Administration) has posted on SSRN his article (just published at 45 U. Mem. L. Rev. 245 (2014)) Does 'Why' or 'What' Matter: Should Section 302 Apply to Card Check Neutrality Agreements? Here's an excerpt from the abstract:
... In this article I will trace the histories of Section 302 and card check neutrality agreements. I will discuss how different courts have treated the application of Section 302 to card check neutrality agreements. Then I will look at the attempts to resolve the conflict between Section 302 and card check neutrality agreements by first looking at the issues of intent and whether card check neutrality agreements are covered by Section 302. Finally, I will propose looking at extrinsic evidence to decide on a case by case basis whether card check neutrality agreements run afoul of Section 302.
Wednesday, June 17, 2015
David Schwartz (NLRB, writing on his own behalf) has just posted on SSRN his article, The NLRA's Religious Exemption in a Post-Hobby Lobby World: Current Status, Future Difficulties, and a Proposed Solution, which is being published in the ABA Journal of Labor and Employment Law. The abstract:
This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.
It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.
In an interesting case filed in California state court, a worker alleged that her former employer had improperly attempted to continually monitor her movements through an app downloaded on her electronic device. The employee objected that the app monitored her off-work duty movements, and uninstalled it from her device. The complaint alleges that the employer even "bragged that he knew how fast she was driving at specific moments." An interesting article over at theguardian.com summarizes the issue [and allegations]:
“Plaintiff expressed that she had no problem with the app’s GPS function during work hours, but she objected to the monitoring of her location during non-work hours and complained to [her employer] that this was an invasion of her privacy. She likened the app to a prisoner’s ankle bracelet and informed [her employer] that his actions were illegal. [Her employer] replied that she should tolerate the illegal intrusion."
It is interesting to see how the employment laws have (and continue) to change in light of these emerging modern technologies. The courts have not been particularly receptive to worker invasion of privacy claims in general, but it will be interesting to see how this case plays out. We will keep you posted on any developments.
-- Joe Seiner
Yesterday, Uber filed a notice of appeal in Berwick v. Uber Technologies. Barbara Berwick was an Uber driver who complained to the California Labor Commission that Uber had, among other things, failed to reimburse her for business expenses in violation of California’s Labor Code. In response, Uber argued that Berwick, while working for Uber, had been an independent contractor, not an employee, and therefore was not entitled to what she sought. Following the multi-factor test set forth in S. G. Borello & Sons, Inc. v Dept. of Industrial Relations, 48 Cal. 3d 341 (Cal.1989), a Labor Commission hearing officer concluded, by order dated June 3, 2015, that Berwick was an employee under California’s Labor Code--Uber had not met its burden of proving otherwise—and ordered Uber to pay Berwick $4152.20 in reimbursable business expenses and interest.
In concluding that Berwick was an employee, the Labor Commission’s ruling identified several salient features of the work arrangement. Uber retained enough control over the operation “[b]y obtaining the clients in need of service and providing the workers to conduct it.” It didn’t matter that Berwick, not Uber, owned the vehicle she drove. Berwick’s work was “integral” to Uber’s business—providing “transportation services to passengers.” Without people like Berwick, Uber’s business “would not exist.”
The Commission also rejected Uber’s position that it was just a “neutral technological platform” for drivers and passengers. Rather, Uber controlled “every aspect of the operation,” including vetting prospective drivers with background checks and controlling the “tools the drivers use; for example, drivers must register their cars with [Uber], and none of their cars can be more than ten years old.” Uber also monitors drivers’ approval ratings and terminates “their access to the application if the rating falls below a specific level (4.6 stars).” Only Uber alone has the discretion to negotiate a cancellation fee with the passenger. Uber discourages drivers from accepting tips “because it would be counterproductive to [its] advertising and marketing strategy.” In contrast, Berwick’s “car and her labor were her only assets.” She didn’t work using “‘managerial’ skills that could affect profit or loss.” Except for her car, she had no investment in the business. Uber gave her its “iPhone application, which was essential to the work” and without which she wouldn’t have been able to perform the work.
This ruling follows a federal district court’s decision in O’Connor v. Uber Techs. Inc., No. 3:13-cv-03826 (N.D. Cal., March 11, 2015) to deny Uber’s summary judgment motion—also on whether an Uber driver was an employee or an independent contractor under California law.
Saturday, June 13, 2015
As we all know, age was not included with other categories of discrimination in the passage of Title VII. Rather, Congress commissioned a study to examine more fully the extent of age discrimination before debating legislation on the issue. That study performed by the Wirtz Commission revealed many of the prejudices that existed against older workers, ultimately leading to the passage of the ADEA in 1967. The EEOC still receives a high number of charges of age discrimination, and the case law is replete with instances of this form of prejudice.
A recent study by the AARP, however, challenges some of the existing biases in this area. That study is discussed over at Forbes.com. In particular, the study found that older workers are no longer substantially more expensive than younger employees, that older workers are more productive than their younger counterparts, and that older workers are far more proficient in emerging technologies than they are given credit for. From the article, which notes that the study found that:
"[B]ecause of changes in how companies compensate their employees (including pay being tied more closely to performance than to tenure), older workers do not cost significantly more than their younger colleagues. . . Even in physically demanding jobs like assembly line work, older employees tend to perform better because, quite simply, they make fewer mistakes. . . [O]lder workers not only are well-versed in the use of technology — computers, tablets, social media and the like — but are eager to learn about new tech developments in their fields so they can keep up."
In is interesting to see the results of the study which directly challenges some of the more traditional discriminatory notions of age and older employees. The Forbes article and study are well worth a read if you have the time this summer.
- Joe Seiner
Thursday, June 11, 2015
Matthew Fletcher (Michigan St.) writes to update us on recent cases concerning the applicability of the NLRA to American Indian casinos. In NLRB v. Little River Band of Ottawa Indians Tribal Gov't (links are to Turtle Talk blog), the Sixth Circuit held that the Act applies to the Band's operation of a casino. In Chickasaw Nation & Teamsters Local 886, the NLRB declined jurisdiction over casino employees to avoid abrogating treaty rights.
Also of note, Matthew just posted on SSRN his essay A Restatement of Federal Indian Law?, 40:4 ABA Human Rights Magazine 23 (May 2015). The essay describes the ongoing restatement project on the law of American Indians being conducted by the American Law Institute.