Wednesday, November 19, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Mgmt.) have just posted on SSRN their article (forthcoming 119 Penn St. L. Rev.) Judicial Review of the EEOC's Duty to Conciliate. Here's the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.
Jonathan Harkavy (Patterson Harkvay) sends word of Martin v. Wood, No. 13-2283 (4th Cir. Nov. 18, 2014), in which the Fourth Circuit dismissed on Eleventh Amendment grounds an FLSA suit bright by an employee against supervisors in their individual capacities for allegedly improperly refusing to authorize overtime for hours worked in excess of 40 per week.
Tuesday, November 18, 2014
In an interesting piece over at CNN Money, it looks as though Walmart will have its hands full during this upcoming holiday season as workers plan to protest pay and scheduling issues. Consistent with other minimum wage protests that have been followed on this blog, Walmart employees are asking to receive $15 an hour so that they can be paid a much more livable wage. The protests are expected to heat up on black Friday, one of the most important days of the year for the retailer and the unofficial start of the holiday shopping season. Organizers are expecting the protest to take place at approximately 1600 stores nation-wide. The article is interesting as it also discusses some of the past labor strife workers have encountered with the retailer. From the piece:
“the National Labor Relations Board, which protects the rights of workers who organize for better wages, also alleges that Walmart unlawfully threatened or disciplined employees at more than a dozen stores for legally protected strikes and protests. Nineteen workers were fired for protesting and about 40 others were threatened or disciplined, according to the NLRB. Walmart has said it acted within its rights under the law. The latest hearing in that case was in June and no decision has been made yet.”
It will be interesting to see if these protests result in any changes at the company. It will also be interesting to see if any other retailers experience opposition to their employment policies during this holiday season.
-- Joe Seiner
Saturday, November 15, 2014
A little self-promotion. My article, The Supreme Court's 2013-2014 Labor and Employment Law Decisions: Consensus at the Court, which is appearing in the Employment Law and Employment Policy Journal, is now on SSRN. In the article, I examine all the labor and employment cases this term, plus some related cases and recent grants of cert. I'll also note that I spend a lot of time on Harris v. Quinn, including what I view as the more significant aspects of the decision: the Court's take on joint employment and the First Amendment in the workplace.
Also check out Jonathan Harkavy's latest Supreme Court review, 2014 Supreme Court Employment Law Commentary. He looks behind the veneer of consensus this term to argue that the Court's conservative majority still hasn't changed its stripes--a view with which, despite my title, I completely agree.
Finally, FWIW, my 2012-2013 Supreme Court review is here.
Friday, November 14, 2014
There was an interesting story on NPR this week on the EEOC's current use of gender stereotyping in Price Waterhouse to attack sexual orientation discrimination. Followers of this blog are probably well familiar with this argument, but it is interesting to see the federal government start to advance this theory. You can listen to the piece here, which notes that
“more recently . . . the EEOC has started reinterpreting [Price Waterhouse] to say discrimination against LGBT people is a form of gender stereotyping.”
"I don't want the impression to be left that we are creating or adding on," [an EEOC official] says. "What we are doing is interpreting the statute consistent with well-established principles."
The article also highlights the controversy over this type of interpretation, with a contrary viewpoint from the Equal Employment Advisory Council. It is definitely worth a quick look.
-- Joe Seiner
Thursday, November 13, 2014
VW has announced that it will recognize members-only unions at its Chattanooga plant. Following the UAW's inability to get the necessary 50%+ votes to become the exclusive reprentative for all unit employees, this represents a second-best solution. According to reports, the plan will be to create a three-tiered classification for unions that show support from at least 15%, 30%, and 45% of employees. All of these groups will be able to meet with HR officials at least once a month as representatives for their members. Those with 30% or 45% will be entitled to some unspecified additional rights.
This is all very interesting and I'm curious to see how it works. What is less clear is whether this type of arrangement will have much purchase beyond a foreign corporation with union ties as strong as VW.
Unfortunate news today for Sharon Block, whose second nomination to the NLRB was pending in the Senate. The White House has confirmed earlier reports that, facing Republican opposition based on the nutsy argument that she's unfit to serve because of the recess appointment issue, they are pulling her nomination. Really too bad for many reasons, not least of which is that Sharon was and would be an excellent Board member.
The very important silver lining with this move is that the White House is nominating Lauren McFerran (chief labor counsel for the Senate's Health, Education, Labor, and Pensions committee) for Block's slot. It sounds like this is partly with the assent of Republicans which, if true, is very good news for the NLRB as a whole, in that it assures the agency of having a full complement of members. Of course, it's unclear why it matters what the Republicans think given that the Democrats still have the majority during the lame duck session. Perhaps this was a fig leaf from the White House, but I really don't know.
Hat Tip: Patrick Kavanagh
In an interesting decision by the Ninth Circuit Court of Appeals, Johnmuhammadi v. Bloomingdale’s Inc., 755 F.3d 1072 (9th Cir. 2014), the court held that a waiver of the right to pursue class-action litigtion that was included in an arbitration agreement cannot be attacked on statutory grounds. The panel concluded that an opt-out provision of the arbitration agreement basically negated the applicability of Norris-LaGuardia or the Labor Act.
Matt Finkin (Illinois) assisted with a brief on rehearing on this important issue. From the brief, which is attached Here:
"Section 3 of the Norris-LaGuardia directs the federal courts to deny enforcement to 'any promise or undertaking”'(italics added) by which the individual eschews the capacity to join with others to protect or advance her – and their – employment rights; that is, for example, not only to seek a better wage, but also to have the wages paid that are legally due."
"The panel’s apparent assumption is that the right to engage in concerted activity for mutual aid or protection is a private good for the benefit of the individual and so waivable by her. That is not correct. These statutes create publicgoods for the better ordering of society."
This is a beautifully crafted brief on a critical issue in employment law. I encourage anyone interested in this topic (or anyone teaching labor law this semester) to take a look.
Hat Tip: Suja Thomas
-- Joe Seiner
A manager at an Atlanta Chick-Fil-A has banned his employees from using a number of slang terms at work. The list includes the words 'cuz, chill, salty and ratchet. The full list of banned terms is available here. I must confess that I am clearly not a hipster, as I was unfamiliar with at least half of these prohibited terms. From the article at CNBC, the store manager
"compiled a list of blacklisted slang words his employees are no longer allowed to use during work hours. [He] handed out the list to his employees with the warning, 'You will speak properly when you walk through these doors.'"
For those of you covering First Amendment issues in employment law this semester, this could be an interesting article to raise with your students. And, if they are stressed about it being on the exam, you can always tell them to "chill."
-- Joe Seiner
A joint investigative report by National Public Radio and the Mine and Safety News finds that thousands of mine operators regularly fail to pay imposed safety penalties. They looked at twenty years of data from the US Mine Safety and Health Administration and the US Department of Labor. Findings include:
- 2,700 mining company owners failed to pay nearly $70 million in delinquent penalties.
- The top nine delinquents owe more than $1 million each.
- Mines that don't pay their penalties are more dangerous than mines that do, with injury rates 50 percent higher.
- Delinquent mines reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities.
- Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.
These findings don’t include any delinquency less than 90 days old. Although delinquent mine operators “account for just 7 percent of the nation's coal, metals and mineral mining companies,” that subset “is more dangerous than the rest.” Enforcement is difficult, the report suggests, in part because coal mine regulation is a low priority for limited law enforcement resources, and because it’s often hard to connect the nominal mine operators to the people actually running the mines.
Tuesday, November 11, 2014
The midterm elections resulted in two more states and the District of Columbia legalizing the use of marijuana. In all, the use of marijuana for medicinal purposes is permitted in 21 states total, and it is also allowed in 4 states for recreational purposes. An interesting article on CNN.com, however, notes that most of these states do not give workers any protections against their employers taking an adverse action against them due to their marijuana use. The article highlighted the situation of Brandon Coats:
"He's a quadriplegic who was fired by Dish Network (DISH) in 2010 for marijuana use. He got the OK to smoke medical marijuana from the state of Colorado, where medical use has been legal since 2000. He says that he never smoked the drug -- or was under the influence -- at work. The Dish Network doesn't disagree with these facts. But it has a zero-tolerance drug policy. . . Coats sued the company and the case has moved up to the Colorado Supreme Court, which heard arguments in September but hasn't handed down a decision yet.”
This is an interesting reminder that workplace laws are always evolving. Only Arizona and Delaware currently have any workplace protections in this regard. It will be interesting to see if any other states follow suit.
-- Joe Seiner
Monday, November 10, 2014
More evidence of the adverse health effects of wage theft, this time from a case study of San Francisco’s Chinatown: Meredith Minkler et al., “Wage Theft as a Neglected Public Health Problem: An Overview and Case Study From San Francisco’s Chinatown District,” American Journal of Public Health 104(6) (June 2014): 1010-1020. Here’s the abstract:
Wage theft, or nonpayment of wages to which workers are legally entitled, is a major contributor to low income, which in turn has adverse health effects. We describe a participatory research study of wage theft among immigrant Chinatown restaurant workers. We conducted surveys of 433 workers, and developed and used a health department observational tool in 106 restaurants. Close to 60% of workers reported 1 or more forms of wage theft (e.g., receiving less than minimum wage [50%], no overtime pay [> 65%], and pay deductions when sick [42%]). Almost two thirds of restaurants lacked required minimum wage law signage. We discuss the dissemination and use of findings to help secure and enforce a wage theft ordinance, along with implications for practice.
(The paper identifies wage theft to include the employer’s failure to provide sick leave under a mandatory paid sick leave law.) Based on their findings, the study authors estimate that in 2008, the roughly 2,500 restaurant workers in Chinatown lost over $10 million in wages—over $8.5 million attributable to minimum wage violations alone.
Saturday, November 8, 2014
image from www.DOL.gov
This past week, the U.S. Department of Labor held a ceremony at its U.S. headquarters where it renewed several key workplace agreements with ambassadors from Mexico, the Dominican Republic, El Salvador, Nicaragua and Costa Rica. These agreements help coordinate the educational and enforcement efforts of OSHA and the Wage and Hour Division of the DOL with these other countries. Pursuant to the press release on the agreement, the DOL:
“will continue to collaborate with embassies and consulates to provide information about U.S. labor laws governing safety, health, wages and working hours to workers from these countries, including those under H-2A and H-2B visas working in the United States.
‘All workers have a right to a safe workplace and fair payment of wages,’ said [DOL] Secretary Perez. "Today's ceremony reaffirms our shared commitment to making sure that workers from these nations are able to exercise their rights.'"
Human rights and worker benefits have always been a critical issue in these Latin American countries. It is always a positive step when these nations at least acknowledge the importance of worker safety and pay.
- Joe Seiner
Wednesday, November 5, 2014
Although labor-side advocates would be hard pressed to put a poisitive spin on yesterday's elections, there is one silver lining for those folks. In four states, voters approved measures to increase their state's minimum wage. What's suprising is that they were all traditionally red states: Alaska, Arkansas, Nebraska, and South Dakota. And the margin of vistory wasn't really close, with approval gaining support from 69%, 65%, 59%, and 53%, respectively.
The states vary in the time period and amount of the increase, with the final minimum going to $9.75 in Alaska, $9 in Nebraska, $8.50 in South Dakota, and $8.50 in Arkansas. This isn't like $15/hour Seattle, but is fairly impressive for electorates not usually sympathetic to employee-side legislation.
Tuesday, November 4, 2014
image from www.dol.gov
OSHA is one of the lesser followed statutes on this blog. In a recent finding by the U.S. Department of Labor's Occupational Safety and Health Administration, the agency investigated an accident which occurred at the Ringling Brothers and Barnum & Bailey Circus in Providence, Rhode Island this past spring. The accident occurred when a hanging apparatus failed and eight employees were injured after serious falls – – a ninth worker was injured by a falling employee. OSHA found that the circus had violated industry practice by overloading the apparatus. The citation is available here. From the DOL’s press release:
“OSHA has cited Feld Entertainment Inc., doing business as Ringling Bros. and Barnum & Bailey Circus, for one serious safety violation with a proposed penalty of $7,000, the maximum fine allowed by law. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. . .
‘This catastrophic failure by Ringling Bros. and Barnum & Bailey Circus clearly demonstrates that the circus industry needs a systematic design approach for the structures used in performances – approaches that are developed, evaluated and inspected by professional engineers," said Dr. David Michaels, assistant secretary of labor for occupational safety and health. "'While the $7,000 penalty is the maximum allowable by law, we can never put a price on the impact this event had on these workers and their families. Employers must take steps to ensure this does not happen again.’”
This is certainly a very serious violation, and an important reminder of the critical role OSHA plays in the workplace.
-- Joe Seiner
The EEOC recently filed suit against Honeywell International, Inc., alleging that its employee wellness program, which includes biometric screening, violates both the ADA and GINA. This marks the third EEOC suit challenging employer wellness programs. The first two cases, EEOC v. Orion Energy Systems and EEOC v. Flambeau, Inc., appear to involve more extreme penalties for refusal to participate in biometric medical testing. In both Orion and Flambeau, the EEOC alleged that the employers shifted the entire health coverage premium onto employees who refused to submit to health assessments. In Orion, an employee was allegedly fired for refusing to participate in the wellness program, while Flambeau involved an alleged threat of undefined "disciplinary action" for employees who failed to undergo testing.
Honeywell appears to involve a less extreme program. The EEOC alleges that Honeywell assesses a $500 surcharge for failing to undergo screening, and that the company also assesses a $1000 “tobacco surcharge” on holdouts (and also on holdout spouses), even where refusal to undergo screening is not related to tobacco use. These surcharges, combined with lost employer contributions to a Health Savings Account, can allegedly total up to $4000 for a given employee. The EEOC alleges that Honeywell's program is neither voluntary nor job-related, while Honeywell has countered that the EEOC's position is "woefully out of step with the healthcare marketplace." On Monday, District Judge Ann Montgomery denied the EEOC’s request for a temporary restraining order that would have prevented the imposition of any surcharges for refusing screening.
The EEOC’s litigation efforts on this front follow public meetings at which the EEOC was repeatedly asked for guidance, given a possible tension between the antidiscrimination statutes and HIPAA, the Affordable Care Act, and the regulations thereunder. Those regulations permit wellness programs with “health contingent” incentives within certain limits – up to 30% of medical coverage costs, or up to 50% for programs designed to discourage the use of tobacco. They also permit without limitation purely “participatory” incentives (i.e., where incentives are given to all employees who participate, without regard to specific health benchmarks).
Stay tuned to see whether the EEOC continues to target progressively more mainstream employer wellness programs.
Friday, October 31, 2014
There is an interesting article over at Yahoo! Finance which looks at Apple CEO Tim Cook’s announcement that he is gay. This announcement by such a high profile business leader in the community has raised again the issue of whether there should be sexual orientation protections in employment on a federal level. The article provides a state-by-state breakdown and visual map of the sexual orientation employment laws of each jurisdiction. If you cover this topic in class, it is an interesting and timely article to share with your students.
- Joe Seiner
Thursday, October 30, 2014
Yesterday the Washington Post reported that UPS has changed its policy about providing light duty assignments to pregnant employees. The link to the story is here: http://www.washingtonpost.com/blogs/she-the-people/wp/2014/10/29/with-supreme-court-case-pending-ups-reverses-policy-on-pregnant-workers/
-- Sandra Sperino
Wednesday, October 29, 2014
Although the Fifth Circuit tried to put a stake in the heart of the NLRB's Horton decision, the Board confirmed its vitality today in its opinion in Murphy Oil U.S.A. The bottom line: the NLRB "reaffirmed the D.R. Horton rationale and applied it to find that the employer violated section 8(a)(1) of the NLRA "by requiring its employees to agree to resolve all employment-related claims through individual arbitration" and by trying "to enforce the unlawful agreements in Federal district court" when employees filed a collective action against the company under the FLSA.
Tim Glynn and I have written about the issue before, and I've blogged about it on Workplace Prof , so I won't belabor the point. Suffice it to say that, although Horton has to date not been well-received outside of the Board and the law reviews, the jury is still out on whether the NLRA bars employers from foreclosing any kind of concerted action in a court or arbitral forum. Indeed, there's an appeal before the Second Circuit which will provide another opportunity for the viability of the theory to be tested.
How do managers actually consider a job applicant’s criminal history, given the law? A recent study finds that it has a lot to do with how much discretion those managers have under company policy: Sarah E. Lageson, Michael Vuolo, and Christopher Uggen, “Legal Ambiguity in Managerial Assessments of Criminal Records,” Law & Social Inquiry (2014) (online). Here’s the abstract:
In an age of widespread background checks, we ask how managers in different organizational contexts navigate legal ambiguity in assessing applicants' criminal history information, based on interview data obtained in a recent field experiment. The study builds on institutional analyses of the social sources of workplace legality to describe how employers consider applicants with criminal histories. We find that some organizations set explicit standards to guide hiring decisions, providing concrete policies on how to treat applicants with records. Where such procedural mandates are lacking, however, hiring managers turn to a micro-rational decision process to evaluate potential risk and liability. These individualized approaches create inconsistencies in how the law is interpreted and applied across organizations, as evidenced by actual hiring behavior in the field experiment.
The paper is based on forty-eight interviews of hiring managers. The authors conducted those interviews as part of larger field experiment on how employers in the Twin Cities metropolitan area reacted to “tester” job-applicants with criminal histories. From their interviews, the authors infer that “an applicant with a low-level criminal history may be more likely to find employment in a workplace that has formally assessed the risks and legality associated with hiring an applicant with a record, as opposed to a firm where hiring managers make largely discretionary hiring decisions, personally carrying the burden of liability.”