Friday, August 1, 2014
Brad Areheart (Tennessee) and Michael Stein (William & Mary) have posted a new article on SSRN: The Disability/Employability Divide: Bottlenecks to Equal Opportunity, forthcoming in the Michigan Law Review. From the abstract:
Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that is largely unexplored by Bottlenecks relates to people with disabilities. This review applies Fishkin’s theory to explore how disability law and its regulations create and perpetuate bottlenecks that keep people with disabilities from a greater degree of human flourishing. In particular, the opportunity structure of disability policy features a conceptual employability/disability divide that ultimately prevents people with disabilities from passing into a wider array of opportunities. Fishkin’s book, in concert with this review, prompts new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.
Looks like a good read.
False Claims Act suits come in two flavors – those brought by “relators” on behalf of the United States to recover for harm caused by false or fraudulent submission of claims to the government and retaliation suits seeking damages as the result of adverse employment actions resulting from plaintiff’s whistleblowing activity. 31 U.S.C. § 3730(h)(1). Of course, relators are typically, although not always, employees of the defendant since such persons are usually best positioned to know about fraudulent claims. And, of course, both kinds of claims can be, and often are, brought in the same action.
Where, if at all, does arbitration fit into this structure? A recent case raised, but did not exactly resolve, the question. United States ex rel. Paige v. BAE Sys. Tech., 2014 U.S. App. LEXIS 9676, 9-12 (6th Cir. May 22, 2014), involved an effort by defendant to shunt an FCA retaliation claim into arbitration. The Sixth Circuit refused to do so because the employment contract in question provided only for arbitral resolution of claims arising under that agreement. The FCA “is purely statutory and exists independent of the Agreement.” While the FCA bars retaliation with respect to “"terms and conditions of employment," it is not limited to breach of any given employment contract. Thus, the arbitration clause simply did not reach the FCA claim at bar.
If employment law teaches us anything, however, it is that employers are adept at responding to limiting judicial constuctions of the language of their agreements with workers, and we can be confident that, unlike the agreement in BAE, future arbitration agreements will explicitly require the arbitration of FCA claims. In fact, BAE’s form was odd because it did not refer to statutory claims at all, and the Sixth Circuit provided examples of language that apparently would reach such claims.
What happens when such clauses are written to embrace FCA claims? Although a district court opinion in 2000 found such a clause invalid, Nguyen v. City of Cleveland, 121 F. Supp. 2d 643, 647 (N.D. Ohio 2000), more recent authority – in line with the Supreme Court’s enshrinement of the Federal Arbitration Act as a “superstatute”-- goes the other way. For example, United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 381 (4th Cir. 2008), rejected the argument that the FCA barred waiver of rights to bring suit in federal court.
Both BAE and Kellogg Brown & Root involved FCA retaliation claims. In such cases the plaintiff is not merely a relator but, instead or in addition, is suing on his own behalf. Even assuming that the FAA permits employees to agree to arbitrate their own claims, would an agreement to arbitrate (if broadly enough framed) bar court suit by the employee acting as a relator?
This is a much more problematic scenario, both pragmatically and legally. Practically speaking, the FCA’s procedures cut against arbitration but probably don’t preclude it: a relator must file her complaint under seal, and the period of nondisclosure (in theory 60 days but almost always extended far longer, sometimes years) allows the Department of Justice to decide whether to intervene to pursue the litigation itself. Thus, the normal motion to stay a suit pending arbitration is not a good fit with this somewhat unusual procedure and filing for arbitration before bringing a qui tam suit might trigger the FCA’s public disclosure bar. See United States ex rel. Cassaday v. KBR, Inc., 590 F. Supp. 2d 850 (S.D. Tex. 2008). Further, should the DoJ in fact intervene, the suit becomes not only in name but also in reality one prosecuted by the government. It would seem that the original relator’s agreement to arbitrate, if not simply irrelevant at this point, could not limit the federal government’s right to proceed. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (individual employee’s arbitration agreement could not limit EEOC’s right to seek victim-specific relief for such an individual).
But what if Justice chooses not to intervene? In that case, the original relator (who, by hypothesis agreed to arbitrate all claims against the defendant) could be faced with a motion to stay pending arbitration, and the court would have to confront the conceptual objection. Put simply, that is that the government (represented by the relator) can’t be bound by an agreement entered into by the relator in her private capacity. And an FCA suit is not merely in the name of the government: even when the DoJ does not intervene, the bulk of any judgment will go to the United States Treasury and any settlement with the defendant requires Justice approval.
Some analogies cut in this direction. For example, an employee cannot waive his or her right to report legal violations to the government. Any agreement to do so is null and void. E.g., EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999).
But perhaps the closest parallel to the FCA situation came recently out of the California Supreme Court. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (Cal. 2014), held that, while employees could agree to arbitrate their individual claims, they could not waive their right to bring a “representative action” under the state’s Private Attorneys General Act of 2004. Like the FCA, PAGA “authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer.” In this case for Labor Code violations. Again like the FCA, most of the proceeds of that litigation going to the state. The court held that an “arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy.”
While Iskanian involved a federalism question absent where the FCA is concerned – whether the FAA deprived California of the power to deputize employees to prosecute Labor Code violations on the state's behalf – the result seems correct and applicable to the FCA. Despite those problems, a recent district court decision in the FCA context held in favor of arbitration. Deck v. Miami Jacobs Bus. College Co., 2013 U.S. Dist. LEXIS 14845 (S.D. Ohio Jan. 31, 2013). Contra Mikes v. Strauss, 889 F. Supp. 746 (S.D.N.Y. 1995) (dicta suggesting that the plaintiff, as relator, stands as a private representative of the government and, since the government was not a party to any arbitration agreement, a plaintiff, suing on the government's behalf is not bound).
Assuming that FCA claims per se are not arbitrable but retaliation claims are, courts will have to struggle with questions of preclusion. The two claims in the two fora are almost certain to overlap, and, should the relator proceed with the arbitration (or the defendant move to compel arbitration), the arbitral award will almost always be issued before a court decision. Is it issue preclusive? A fascinating question for civil procedure buffs, but well beyond the scope of this post. FWIW, my instinct is that preclusion shouldn’t work. But, especially when it comes to arbitration’s reach, I’ve been wrong before!
Thanks to Angela Raleigh, Seton Hall class of 2016, for her help on this.
Thursday, July 31, 2014
It a 5-2 decision today, the Wisconsin Supreme Court held that the state's Act 10 was constitutional. As we reported earlier, the statute's validity was in doubt in earlier litigation, so this result wasn't a given. But unions certainly hadn't been counting on the court overturning the statute. At base, the decision held that Act 10's significant restrictions on public-sector bargaining did not infringe workers' First Amendment rights. Not a surprise for those of us in states with no collective bargaining. The next step for union supporters in Wisconsin, of course, is the upcoming vote on Gov. Walker's reelection.
Hat Tip: Patrick Kavanagh
As all followers of this blog are well aware, child labor laws expressly prohibit the use of young employees in the workforce. With very limited exceptions, corporations are not permitted to employ younger workers. The law in this area includes not only civil remedies, but criminal sanctions as well. Most industrialized countries have all developed some prohibitions against child labor. In going against this trend, Bolivia passed a law permitting children as young as 10 years of age to enter the workforce. This development has attracted substantial attention, including a piece at Forbes.com. From an article in the Huffington Post:
"A regional official with the U.N. International Labor Organization, Carmen Moreno, says the legislation . . . would make Bolivia the first country to make work by 10-year-olds legal. . . . Moreno called the legislation worrisome considering that Bolivia is a signatory [of] a U.N. convention that sets 14 as the minimum age for child labor."
It will be interesting to see whether the controversy over this law causes Bolivia to change course on the issue. Child labor is certainly an area of both national and international concern.
-- Joe Seiner
Tuesday, July 29, 2014
UPDATE: Harris Freeman and Patrick Kavanagh wrote to remind me that in April, the NLRB invited briefing on whether to alter its current joint-employer standard. The GC's action in the McDonald's case could be part of the move in Browning-Ferris. (Harris' amicus brief on the case is here.)
Richard Griffin, the NLRB's General Counsel, has decided to pursue unfair labor practice charges against both McDonald's and several of its franchise owners. The ULPs allege retaliation--such as firings and other punishments--because of employees' labor activities. But the headline issue is that the GC has determined that McDonald's is a joint employer, along with the franchise owners. The is a big deal for corporate McDonald's, as the vast majority of restaurants are franchise owned, meaning that McDonald's will have to take more of a central role in monitoring restaurants' workplace practices. In turn, it would give labor organizations more opportunity to pressure McDonald's for improvements or possibly organize bigger units.
According to the GC's news release:
The National Labor Relations Board Office of the General Counsel has had 181 cases involving McDonald’s filed since November 2012. Of those cases, 68 were found to have no merit. 64 cases are currently pending investigation and 43 cases have been found to have merit. In the 43 cases where complaint has been authorized, McDonald’s franchisees and/or McDonald’s, USA, LLC will be named as a respondent if parties are unable to reach settlement.
Until we see evidence from both sides, it's hard to take a position on the joint employer issue. But this is an interesting development on the heels of Harris v. Quinn. I was just noting at a Supreme Court review this morning that the biggest impact of Harris may be the joint employment issue. In that case, the Supreme Court avoided the union agency clause question by finding a lack of joint employment status. There were arguments on both sides of that issue, but I expect courts to use Harris to narrow corporate liability under the joint employer classification. It's possible we'll see this in McDonald's if the case ends up in court.
Speaking of developments in this case, I feel obligated to make a note for non-labor law readers, especially after all the Boeing craziness a few years ago: the NLRB has not decided anything here. All that has happened is that the GC has decided to pursue a case against McDonalg's and some franchise owners (it's comparable to a district attorney filing charges in a criminal case). If there's no settlement, the case will first go to an administrative law judge and, after the ALJ decision, the case will go to the NLRB.
Hat Tip: Patrick Kavanagh
Following up on my last post regarding the latest ruling in Fisher, I’d like to continue the dialogue on the issue of public-sector affirmative action, and its relevance for the public workplace and other public domains, in light of the Supreme Court’s decision in Shuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) this past Term. Shuette concerned whether an amendment to a state’s Constitution, prohibiting the consideration of race in all state decisionmaking, including in public employment, public education, and public contracting, violated the federal Equal Protection Clause of the Fourteenth Amendment. Because the Court held that such an amendment is valid, as a practical matter this case should alert public universities and public employers in other states to keep in mind how they would justify their use of race-conscious programs—potentially both in the public voting arena and in the courtroom. In addition, the Court’s splintered decision in this case, and the differing interpretations of the relevant case law presented in this case, suggests the difficulty of resolving questions regarding how the courts should review state voter actions that affect the ability of state entities to use or not use race-conscious processes in various areas of public decisionmaking.
Shuette is part of the larger story of affirmative action in Michigan. In 2003, the Supreme Court decided two cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. In Gratz, the Court held that the school’s use of race in its undergraduate admissions policy was invalid under the Equal Protection Clause, while in Grutter, the Court held that the Law School’s more confined use of race was constitutionally valid. After these rulings, the University modified its college admissions program so that an applicant’s race would be considered in a more restricted manner. After failing to dismantle affirmative action through the courts, anti-affirmative action citizens and groups next turned to the state ballot box. The State of Michigan then engaged in a public debate and vote on whether to prohibit state actors from using race in any manner in their decisions and actions. A ballot proposal on this question, referred to as Proposal 2, passed by a 58 to 42 percent vote, resulting in a broad amendment to the State Constitution. This amendment, now found in Article I, Section 26 of the Michigan Constitution, prohibits all state entities from “grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Various interest groups and individuals in support of affirmative action challenged the validity of Section 26 under the Equal Protection Clause in Shuette. Justice Kennedy wrote the controlling opinion in the case, in which Chief Justice Roberts and Justice Alito joined. Justice Kennedy very clearly stated in Shuette that the Court’s decision in Fisher is not at all affected by this case, so that race-conscious decisionmaking in university admissions remains constitutionally permissible if strict scrutiny is satisfied. The different question in Shuette involved whether and in what manner a state’s voters may adopt a prohibition against all consideration of racial preferences in state decisions, with the focus specifically on public university admissions. Justice Kennedy viewed this case as one that primarily concerned the right of a state’s voters to exercise their electoral power to ban race-conscious affirmative action in the public realm, and upheld the amendment to the Michigan Constitution. Chief Justice Roberts filed a concurring opinion, as did Justice Breyer, who concurred for narrower reasons. Justice Scalia also wrote a separate concurrence, in which Justice Thomas joined. Justice Kagan took no part in the consideration or decision of this case.
Justice Sotomayor wrote in dissent, joined by Justice Ginsburg. Justice Sotomayor expressed hearty support for democratic voter action, but nonetheless argued that the voters in Michigan restructured the political process in the state so as to burden racial minorities, who would have to amend the State Constitution to pursue their diversity goals in public university admissions. She pointed out that Michigan citizens who want to pursue non-race-related interests would face less of a hurdle by only needing to influence the governing boards of each state school, who retain the authority to make all other admissions decisions not prohibited by Section 26. As a result, Justice Sotomayor contended that the electoral majority’s action in this case required strict scrutiny review by the courts under the “political process doctrine” established in the Court’s earlier cases, the last of which was Washington v. Seattle School District No. 1.
Justice Kennedy, however, disagreed with language in Seattle that he believed created an unnecessarily broad rationale, and also rejected the interpretation of Seattle by the court below (the Sixth Circuit en banc), which relied on Seattle to invalidate the amendment in Shuette. As Justice Kennedy put it in Shuette:
… Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities … consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny … In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
… To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.
Justice Kennedy in Shuette thus stated that the Court was not required to make a racial determination regarding the public university admissions policy changed through the amendment to the Michigan Constitution, and also found that this amendment was not subject to strict scrutiny.
On the other hand, Justice Sotomayor in her dissent asserted that under stare decisis, Seattle along with an earlier case, Hunter v. Erickson, are the proper precedents, and as such, strict scrutiny was required in Shuette:
Section 26 has a “racial focus”…That is clear from its text … Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” … as they are designed to increase minorities’ access to institutions of higher education.
Justice Sotomayor, in directly applying the language from Seattle and agreeing with the Sixth Circuit’s reading of Seattle, found that the amendment in Shuette focused on race and inured primarily to the benefit of racial minorities, thus triggering strict scrutiny.
But the plurality, as well as Justices Scalia and Thomas, disagreed that the Court can or should properly decide when state action actually inures primarily to the benefit of a racial minority group, and asserted that the judiciary should avoid trying to determine such racial interests and classifications. They posited that such inquiries would contribute to racial divisiveness, and entrench racial stereotypes. But, perhaps somewhat ironically, the plurality’s position prompted Justices Sotomayor and Ginsburg to respond with a vigorous and lengthy dissent, maintaining that the Court cannot avoid such questions in the face of a restructured political process that operates to disadvantage racial minorities.
Shuette produced marked divergences on the Court. But under the plurality’s decision, state employers and universities ought to be prepared to make their case for affirmative action in response to any possible public or legislative challenge, as I point out in a forthcoming paper further examining Shuette.
Martha Chamallas has posted “Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law,” forthcoming in the Ohio State Law Journal. In it, she argues against reading the common law of vicarious liability into Title VII. Here’s the abstract:
Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.
This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.
The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.
Monday, July 28, 2014
Thanks to Paul Secunda for letting us know of Bernie's death. He's been descrited as "one of the Godfathers of labour law in Canada." I didn't have the pleasure of knowing him personally, but he was well regarded on all counts. Kevin Banks, Director, Centre for Law in the Contemporary Workplace and Associate Professor of Law at Queen's University reports:
With great sadness I must report to you that Bernie Adell died suddenly on July 23 while visiting his daughter in Japan. We learned of this at Queen’s this morning.
This will probably come as a shock to those of you who knew Bernie well. He was in great shape, and as vital as ever just before he left.
Bernie was a deeply committed and caring scholar, teacher and mentor to generations of students and lawyers. He was also a great friend of a great many. He made foundational contributions to our field, in recognition of which last fall he shared the Bora Laskin Award with Don Carter.
Bernie served at Queen’s Law for 49 years, including 5 years as Dean. Until his passing, he continued to edit the Queen’s Law Journal and the Canadian Labour and Employment Law Journal, and to be actively involved in the Centre for Law in the Contemporary Workplace. As Dean Bill Flanagan put it, his contributions to the Queen’s community cannot be overstated.
Tributes from former students have been pouring in today. Here's what a student recently taught by Bernie said to me this morning:
"Bernie was so loved by his students, past and present. I feel very privileged to have shared the Law Journal office with him last year -- to have worked with such a kind and supportive mentor is every student's dream."
Bernie won a teaching award last year, almost ten years after he "retired".
We will send you information about the memorial service once it is available.
David Doorey's blog post is here.
Two members of Congress, Tom Harkin (D-Iowa) and George Miller (D-California), just introduced a plan that would raise the minimum wage which is currently set at $7.25 per hour to $10.10 per hour. The plan also recommends an annual inflation index which would continue to raise the minimum wage in subsequent years. Lawmakers in favor of the plan note that the minimum wage has not been raised in over five years. From an article on the issue at Huffington Post:
“Proponents of raising the minimum wage gathered Thursday on Capitol Hill to mark what they deemed an embarrassing five-year milestone. . . ‘They're not going to spend that extra money flying to Paris for the weekend. They are not buying a yacht or a private jet," Harkin said. "They're spending it on pizza and beer and things like that in their local stores.’"
The minimum wage issue has always been divisive and it will be interesting to follow this plan and see if it gets any traction in Congress, particularly as the next election cycle begins to come around.
Sunday, July 27, 2014
Marcy Karin and Robin Runge have posted “Breastfeeding and a New Type of Employment Law,” forthcoming in Catholic University Law Review, Vol. 63, No. 2 (2014). The paper focuses on section 4207 of the Patient Protection and Affordable Care Act, codified at 29 U.S.C. 207(r). Here’s the abstract:
Buried deep within the Patient Protection and Affordable Care Act is section 4207, a little-noticed provision that amended the Fair Labor Standards Act to provide protections for some women to express milk at work. Section 4207 borrows concepts from existing labor standards and employment discrimination laws to offer job-protected break time and space-related accommodations for breastfeeding purposes. Unlike these prior employment laws, however, these protections are designed to achieve public health goals for a relatively small subgroup of individuals: non-exempt working women who choose to express milk for children under the age of one. The use of employment law to promote public health is not novel, but the decision to place breastfeeding protections in this framework must be considered within the larger context of employment law.
In its examination of this new law, this Article places section 4207 in the broader civil rights context and examines how legislation aimed to achieve goals outside the civil rights context may still nonetheless effectively address historical discrimination and societal oppression. The employment provisions of this new law represent a shift away from traditional labor standards designed to improve employment conditions for all workers and traditional employment discrimination provisions used to address historic discrimination. Its unique combination of protections and its focus on one particular class of workers facilitates the consideration of whether the government should enact workplace legislation to promote healthcare-based conduct. This Article considers, and ultimately rejects, the incorporation of limited employment rights that place symbolic requirements — without more — on employers for a public health purpose.
Friday, July 25, 2014
Michael Duff (Wyoming) recently posted Beneath the Veneer of Harris v. Quinn in the ClassismExposed blog. In the post, Duff puts forth what is a fairly controversial view for a union supporter: that reliance on agency fees is a bad idea for labor, which would not be mortally wounded had the Court gone all the way in Harris and declared public-sector agency fees unconstitutional.
To me, this issues pulls in others questioning the exclusivity principle in labor law. I'm still of a mixed mind on what would happen if exclusivity fell away, but that may be where we're headed. Certainly, unions would have more legitimacy if they only represented and collected dues from supporters. That said, opposition to unions won't be going away. Moreover, it's unclear to me how widespread members-only bargaining would work in practice. To my mind, there's still free-rider aspects to that kind of bargaining (e.g., employers are likely to extend union wages across-the-board), although that doesn't mean non-exclusive bargaining isn't superior. At base, it all really goes to the heart of what we mean by "collective" representation and whether an individualistic America still supports it in its current form. But enough of me--here's a sample of Duff's post:
I, a friend of the labor movement, oppose [agency fees] on strategic grounds.
First, I have never though it looked good even to elements within the working class to require membership or even payment of an agency fee.
Second, in my opinion, any union that relies on government power for support or dues collection is in big trouble in the long run. What the government giveth today it may taketh away tomorrow, and I simply do not trust or seek to rely upon the forces I believe have utterly captured government.
Finally, if a union really believes that ending the practice of requiring payment of dues or agency fees dues will cause members to stop paying dues, or nonmembers not to seek (eventually) membership, what kind of strength can that union actually have? Does anyone believe that such a union could, for example, motivate employees to take the risk inherent in collective action—the kind of risk that built the labor movement (think, for example, of the sit down strikes in Flint, Michigan) and that will soon be required again? You do not have to require working class fire breathers to pay dues and non-members in a workplace in which the union diligently fights for members will want to join. If this is not the state of things unions will lose every big fight since success comes from the working class intensity of the membership, not from the micro-tactics of leadership.
Read the entire thing!
Thursday, July 24, 2014
There is an interesting article over on CNN.com that discusses a class action case that was just certified against technology giant Apple which alleges that the company failed to provide its workers sufficient time for meals and rest breaks in violation of California state law. The company also faces an additional class action suit in a similar case which maintains that the Apple Store did not provide compensation for waiting time to employees while company officials checked the personal belongings of workers when leaving the premises. From the article:
"Among other things, the lawsuit claims Apple employees were forced to work for stretches of five hours or more without meals, and didn't get breaks on shorter shifts. . . The lawsuit contends that Apple's employment rules restrict employees from talking about the company's labor conditions with one another, allowing the company to ‘invoke fear into the class members that if they so much as discuss the various labor policies, they run the risk of being fired, sued or disciplined.’"
These cases are always interesting to follow. This type of litigation on an individual level is often not pursued, but in a class setting it obviously makes the stakes much higher.
Wednesday, July 23, 2014
As lawyers fight over an employer’s duty to accommodate under the Americans with Disabilities Act, a recent paper on employer accommodation practices finds, among other things, that disability accommodations may benefit co-workers and employers as well as the disabled worker: Lisa Schur et al., “Accommodating Employees With and Without Disabilities,” Human Resources Management (published online July 1, 2014). Here’s the abstract:
Efforts to recruit and retain employees with disabilities are often tempered by employers’ concerns over potential workplace accommodation costs. This study reports on accommodations requested and granted in intensive case studies of eight companies, based on more than 5,000 employee and manager surveys, and interviews and focus groups with 128 managers and employees with disabilities. Two unique contributions are that we analyze accommodations for employees without disabilities as well as for those with disabilities, and compare perspectives on accommodation costs and benefits among employees, their coworkers, and their managers. We find people with disabilities are more likely than those without disabilities to request accommodations, but the types of accommodations requested and the reported costs and benefits are similar for disability and non-disability accommodations. In particular, fears of high accommodation costs and negative reactions of coworkers are not realized; all groups tend to report generally positive coworker reactions. Multilevel models indicate granting accommodations has positive spillover effects on attitudes of coworkers, as well as a positive effect on attitudes of requesting employees, but only when coworkers are supportive. Consistent with recent theorizing and other studies, our results suggest the benefits from a corporate culture of flexibility and attention to the individualized needs of employees.
The eight employers in the study were a pharmaceutical company, a hospital, a disability service organization, a financial services company, a consumer products manufacturer, a supermarket chain, a restaurant, and an infrastructure services company. According to the authors, the study’s findings “on the value of accommodations should help address potential employer concerns about accommodation costs, which historically has been one of the perceived barriers to the employment of individuals with disabilities.”
Tuesday, July 22, 2014
There is another interesting ruling from the Iowa Supreme Court. This one is essential reading for anyone interested in disparate impact law or in arguing for different legal standards under state and federal discrimination law. The opinion has so many different facets deserving much more attention than is possible in a blog post so the following provides only the highlights.
In Pippen v. State, 12-0913, 2014 WL 3537028 (Iowa July 18, 2014), plaintiffs brought a class action alleging that the state of Iowa unlawfully discriminates against African Americans in employment. The case was brought under Title VII and Iowa state law and alleged discrimination in merit-system positions across 37 departments of state government. After a trial, the court found in favor of the state.
In its opinion, the Iowa Supreme Court tries to grapple with the complicated intersection of disparate impact law and class actions post Dukes. The opinion contains a lengthy discussion of the historical development of federal disparate impact law.
The key discussion in the opinion focused on whether the state’s practices were incapable of separate analysis under Title VII’s disparate impact analysis. The plaintiffs’ evidence was largely aimed at employment practices generally, rather than isolated to a particular practice. The Court recognized several instances where plaintiffs could proceed on class wide allegations on a disparate impact theory without focusing on specific practices, including when employer record-keeping is so shoddy that the record-keeping makes separate analysis impossible or when decisions were made with unfettered discretion across departments. The Iowa Supreme Court held, based on the facts of the particular case, that the plaintiffs did not show under federal law that the available data made it difficult to analyze particular practices. However, the reasoning leading up to this holding offers many different avenues for future claimants to argue that the evidence is incapable of separate analysis.
It also continues to separate Iowa state law from Title VII law. The Court stated: “While Congress passed the Civil Rights Act of 1991 in response to Wards Cove, no similar amendment has been made to the Iowa Civil Rights Act. The fact that Congress enacted a legislative change in response to a binding majority opinion of the United States Supreme Court does not have persuasive force in the interpretation of the Iowa Civil Rights Act. We have not adopted the principles of Wards Cove in the construction of the Iowa Civil Rights Act and are not bound to do so. Congressional reaction to a specific case decided by the United States Supreme Court does not shed light on the meaning of state law when there has been no comparable narrow state court precedent to stimulate a legislative override.” Id. at 15. The Court found that the plaintiffs in this particular case had not argued for a different disparate impact analysis and so the Court declined to provide one. However, the opinion leaves the door wide open for future plaintiffs to argue that Iowa disparate impact doctrine is significantly different than federal law.
Interestingly, the opinion also posits that based on questions during oral argument in Dukes, Justices Kennedy and Roberts might be interested in a negligence theory of discrimination, as discussed in Professor David Benjamin Oppenheimer’s article, Negligent Discrimination, 141 U. Pa. L. Rev. 899 (1993).
Hat tip: Alex Long
On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan
Thanks so much to the bloggers at the Workplace Prof Blog for inviting me. I am excited to join such a great group as a guest blogger.
For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year). My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.
First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause. After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion. The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny. Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter, the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point.
On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented. To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits. In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students. The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations. In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan. Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone. The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system. In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT.
This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting. Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term. Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.
The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action. Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce. As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.
Monday, July 21, 2014
Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history. (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.
The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment. The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.
Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature. That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction." Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.
Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.” In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action. Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action. The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.
Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act. For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.
The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.
Hat tip: R. Michael Fischl
Usually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.
Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.
Please welcome guest blogger Rebecca Lee, who teaches at Thomas Jefferson School of Law. Rebecca teaches Contracts, Employment Law, and Employment Discrimination. From her faculty bio page:
Professor Rebecca K. Lee teaches in the areas of employment law, employment discrimination, and contracts. Her scholarship focuses on issues of antidiscrimination law and policy in the workplace concerning how to achieve substantive equality at work, particularly gender and race equity. She has written on the relationship between diversity goals and antidiscrimination objectives, and has further examined the importance of organizational leadership in achieving substantive diversity and equality. Her work in this area has been quoted in the amicus briefs for the State of California and other amici filed in the U.S. Supreme Court for Fisher v. University of Texas at Austin. More recently, her research has centered on questions of judicial decision making in order to reach impartial and fair outcomes, and also looks at judicial leadership as a significant but under-recognized aspect of a judge’s work. In addition to her scholarship and teaching, Professor Lee currently serves as the Chair of the Association of American Law Schools (AALS) Section on Labor Relations and Employment Law. In addition, she is a board member of the Conference of Asian Pacific American Law Faculty (CAPALF).
Before joining the faculty, Professor Lee was a Visiting Researcher at Georgetown University Law Center and practiced law at the international law firm of Crowell & Moring LLP in Washington, D.C. Her practice centered on employment and labor law, government contracts, and antitrust matters. She also worked at the Washington Lawyers' Committee for Civil Rights and Urban Affairs as a Crowell & Moring Public Interest Fellow. In law school, she served as editor-in-chief of the Georgetown Journal on Poverty Law and Policy and worked as a judicial intern for the Honorable Colleen Kollar-Kotelly in the U.S. District Court for the District of Columbia.
Prior to attending law school, Professor Lee earned a Master's degree in Public Policy from Harvard Kennedy School, where she received the Dean Albert Carnesale Fellowship and was co-managing editor of the Asian American Policy Review. Before pursuing her graduate studies, she joined Teach for America as a corps member and taught at an under-resourced middle school in Oakland, California. Professor Lee obtained her Bachelor of Arts degree in Public Policy Studies from the University of Chicago. At Chicago, she was awarded a University Prize for her senior thesis, which was selected as the best undergraduate paper written in the area of women's studies, feminist criticism, or gender studies and subsequently published in a law journal.
A couple of her recent articles include:
Judging Judges: Empathy as the Litmus Test for Impartiality, 82 U. Cin. L. Rev. 145 (2013)
Fisher v. University of Texas at Austing: Promoting Full Judicial Review and Process in Applying Strict Scrutiny, 4 Houston L. Rev. (HLRe): Off the Record 33 (2013).
Welcome aboard, Rebecca!
image from: www.eeoc.gov
The EEOC appears to be continuing its active efforts to enforce the Americans with Disabilities Act. The agency recently filed suit against a health care provider that terminated (and failed to re-employ) a nurse who worked for the employer for over a decade. The employee required additional medical leave after finishing her treatment for cancer. From the EEOC's press release on the case:
“Francisca Lee had worked as a nurse at [Dialysis Clinic, Inc. (DCI)]’s Sacramento Southgate location for 14 years when she was diagnosed with breast cancer. Lee took medical leave in order to have mastectomy surgery and chemotherapy treatments. Four months later, DCI notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy, the EEOC said. This was done despite Lee being on approved medical leave and cleared by her doctor to return to work without restrictions in less than two months. Lee was told that she would have to reapply for open positions. However, when Lee did apply over two months later, she was rejected, and not long after, DCI hired a newly licensed nurse.”
These allegations of disability discrimination, if true, are quite unfortunate. This will be an interesting case to follow in the courts…
Saturday, July 19, 2014
If Salas v. Sierra Chemical has you thinking more about inquiries into a plaintiff-worker’s immigration status in workplace rights enforcement, you might be interested in a recent paper on the labor enforcement agency’s views on this question: Shannon Gleeson, “Means to an End: An Assessment of the Status-blind Approach to Protecting Undocumented Worker Rights,” Sociological Perspectives (published online April 3, 2014) (here). Here’s the abstract:
This article applies the tenets of bureaucratic incorporation theory to an investigation of bureaucratic decision making in labor standards enforcement agencies (LSEAs), as they relate to undocumented workers. Drawing on 25 semistructured interviews with high-level officials in San Jose and Houston, I find that bureaucrats in both cities routinely evade the issue of immigration status during the claims-making process, and directly challenge employers’ attempts to use the undocumented status of their workers to deflect liability. Respondents offer three institutionalized narratives for this approach: (1) to deter employer demand for undocumented labor, (2) the conviction that the protection of undocumented workers is essential to the agency’s ability to regulate industry standards for all workers, and (3) to clearly demarcate the agency’s jurisdictional boundaries to preserve institutional autonomy and scarce resources. Within this context, enforcing the rights of undocumented workers becomes simply an institutional means to an end.