Monday, April 24, 2017
Friend-of-blog Bradley Areheart (Tennessee) sends along this important announcement about the Prospective Law Teachers Workshop at SEALS:
"Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Boca Resort in Boca Raton, Florida on Wednesday, August 2 and Thursday, August 3. On Wednesday, there will be mock interviews between 8 and 10 AM with CV review sessions at 1:00. On Thursday, mock job talks will take place from 8 to 10 AM. And at 3:00 on Thursday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will give advice about getting hired in this “new" market. There are also many excellent panels on Tuesday, Wednesday, and Thursday that are targeted to newer law professors, which prospective law professors will also find helpful. See http://sealslawschools.org/submissions/program/programwp.asp. If you are interested in participating in this year’s workshop, please send your CV to professor Brad Areheart (Tennessee)at firstname.lastname@example.org, who co-chairs the committee along with Leah Grinvald (Suffolk). Applications are due by May 15, 2017. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at a wide variety of schools, including Tulane, South Carolina, UNC, Cal Western, Oklahoma, Boston U, Idaho, Colorado, Louisville, and others."
This is a wonderful event and I encourage anyone interested to contact Professor Areheart.
Tuesday, April 18, 2017
As a follow-up to last week's post on Perry v. MSPB, Howard Wasserman (FIU) has analyzed the oral arguments in that case over at ScotusBlog and PrawfsBlawg. As a bonus (apart from the merits of the MSPB case) he also discusses Justice Gorsuch's participation in the argument. Howard suspects that Justice Gorsuch may be dissenting solo on this one.
Monday, April 17, 2017
Congratulations to Catherine Fisk on her contribution to the Sunday NYT column "The Workologist". She was cited liberally in a Q&A about employment references. For the entire article, see When a Potential Employer Seems Unnervingly Nosy.
Although the decision is marked unpublished, the majority opinion is a detailed signed one by Judge Wilkinson, with Judge Motz concurring. And, there is a partial dissent by Judge Diaz protesting dismissal of plaintiff's sexual harassment claim. The Court affirmed a summary judgment for the employer notwithstanding what appears to be a genuine, plausible and material factual dispute about some fairly gross sexual harassment of the plaintiff. I do not understand why the decision is not a published one. In light of Judge Diaz' partial dissent, I would not be surprised to see a petition for rehearing en banc.
Thanks for sending this, Jon.
Tuesday, April 11, 2017
In 2012, in Kloeckner v. Solis, the court appeared to resolve the question of the appropriate forum for federal civil-service employees appealing decisions of the Merit Systems Protection Board in “mixed cases” (cases alleging an adverse employment action that also violated a federal anti-discrimination statute), holding that those decisions must be challenged in federal district court. But in Perry v. Merit Systems Protection Board, to be argued April 17, the court returns to the issue to decide whether, as the U.S. Court of Appeals for the District of Columbia Circuit held, the answer is different when the MSPB rejects the employee’s claim for lack of jurisdiction because the adverse employment action is not appealable, rather than on the merits or on some procedural ground.
Sunday, April 9, 2017
One of the advantages of being around a discipline for a long time is the irony of seeing once “extreme” arguments become accepted. In the first edition of our Employment Discrimination casebook in 1982, we made the (obvious) argument that discrimination on the basis of sexual orientation was sex discrimination because an employee, say, male, was being adversely treated for actions (sex with a male) that would draw no objection were the employee female.
Fast forward to 2017, and that’s now the law of the land, at least in the Seventh Circuit thanks to Hively v. Ivy Tech Community College of Indiana. And that simple switch-the-sexes comparison was one of the two prongs of the majority opinion (the other being transference to the gender context of Loving v. Virginia’s holding that discrimination on the basis of the race of one’s partner is race discrimination).
While the prevailing side in Hively garnered two other opinions adding additional routes to the same result (including a radical attack on the whole concept of original public meaning in statutory interpretation by Judge Posner), I was most taken with the simple logic of the majority’s “comparative” approach, i.e., if we switch the sexes and the result is not the same, it’s sex discrimination.
Why did it take more than 35 years for this logic to prevail? More to the point, why was that argument viewed as naïve, hopelessly technical for most of Title VII’s history? The obvious answer is that, to quote Holmes, the life of the law is not logic, it’s experience, and even those favoring LGBT rights may have found the straightforward logic too sterile and rarified in a system that favors more nuance in statutory interpretation.
But there’s another perspective from the law’s encounter with logic in this arena that may be of some interest. Judge Sykes, writing for three judges, dissented, largely drawing from “original public meaning” theory. In a passage that captures the essence of his objection, he wrote:
Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination "because of sex" also banned discrimination because of sexual orientation? The answer is no, of course not.
I do understand, and agree, that if that question were asked of proponents of Title VII in 1964, they would have said no. So in that sense, the original public meaning of “sex” doesn’t reach sexual orientation.
But how does that analysis fit with the logical argument made by the majority? Are we assuming that the “person competent in the English language” is “reasonable” but not logical? That he or she is incapable of working out the implications of statutory language beyond the most intuitive meaning of the words? Another way to ask the question is whether the reasonable person is presumed to competent in English but not competent in simple logic.
I don’t know if there are good answers to these questions, but I do think they raise even more problems for original public meaning advocates, problems thrust into national attention by Hively.
Friday, April 7, 2017
The book is the first Canadian text to explore in depth all three regimes of work law, including Common Law, Regulatory Law, and Collective Bargaining Law and it emphasizes the interaction between the three regimes. For those interested in understanding Canadian work law, this is the book. Also, you might be interested in knowing that the book was written to be accessible to non-lawyers, including the thousands of business, HRM, industrial relations, labour studies students learning work law in Canada. I wrote it because I frequently teach business students and there was no book in Canada that explained the law of work in a sophisticated, contextual manner but that doesn’t also assume the readers have already studied law for a year or two. Finally, the book also extends the subject matter beyond most labor law texts, by including chapters on subjects such as work and intellectual property law, work and privacy law, trade law, immigration law, and bankruptcy law.
Wednesday, April 5, 2017
Gary Spitko (Santa Clara) has just posted on SSRN his article (forthcoming 69 Florida Law Review ___ (2017)) A Structural-Purposive Interpretation of 'Employment' in the Platform Economy. Here's the abstract:
The considerable growth of the platform economy has focused attention on the issue of whether a provider who is engaged through a transaction platform should be classified as an employee of the platform operator within the purview of workplace protective legislation or, rather, as an independent contractor outside the scope of such legislation’s protections. This Article focuses specifically on whether the operator’s reservation of the right to impose quality control standards on the provider ought to give rise to employment obligations running in favor of the provider and against the operator. This narrow issue is of great importance to the future of the platform economy. Quality control standards promote trust between platform consumer and provider and, thus, enable leveraging of network effects, to the benefit of the platform operator, consumer and provider. Yet, if the law considers the operator’s right to impose quality control standards on the provider as a factor that will weigh in favor of finding that the provider is an employee of the operator, the operator is more likely to forego the right to impose such standards.
With respect to much workplace protective legislation, neither the statutory language nor the legislative history is even minimally helpful in defining “employment.” Thus, this Article engages in a structural-purposive inquiry into the definition of employment as applied to the platform economy. The analysis proceeds in three steps. First, the Article explores the structure of workplace protective legislation generally and identifies a “control bargain” implicit in that structure pursuant to which the state imposes a scheme of workplace protective regulation on the firm only if the firm retains a certain type and degree of control over its worker. Second, the Article examines the nature of the platform economy and the function of quality control standards within that economy. From this examination, the Article concludes that the nature of the platform economy suggests that the platform operator’s retention of the right to impose quality control standards on providers should be seen as outside the scope of the control bargain and, therefore, should not weigh in favor of finding an employment relationship. Finally, the Article considers case law addressing the meaning of employment in the similar context of the franchisor-franchisee relationship. This case law supports the Article’s principal conclusion by demonstrating that the control bargain allows for exceptions to the rule that the firm’s retention of control over a worker weighs in favor of finding that the firm employs the worker, that the firm’s reservation of the right to impose quality control standards can be such an exception, and that such an exception can be discerned from the nature of the relevant workplace structures.
Guy Davidov sends us this update on the LLRN3Toronto conference:
The LLRN is a network of labour law research centers from all over the world (currently 65 centers). It holds bi-annual conferences which are open to all labour/employment/workplace discrimination law scholars. After two very successful conferences in Barcelona and Amsterdam, LLRN3 will be held at the University of Toronto on June 25-27 this year. The deadline for submitting papers has past, and the best paper and panel proposals have been selected through a peer-review process. The provisional program which has recently been published is extremely rich and includes many senior, well-known scholars alongside young up-and-coming ones, from across the globe. The organizers are keen on having more North American colleagues involved. For more information and to register please see the conference website. If you’d like to chair one of the panels, please contact the organizers.
Tuesday, April 4, 2017
As I told my employment discrimination students last Thursday when we talked about sexual orientation and gender identity issues under Title VII, things are moving very fast in the courts on these issues. The Seventh Circuit, en banc, ruled today in Hively v. Ivy Tech, that sexual orientation discrimination was sex discrimination under Title VII. There were two concurrences, one by Judge Flaum and the other by Judge Posner, and a dissent by Judge Sykes.
I'm still digesting the opinion, but the court relied primarily on the two grounds advanced by the plaintiff--but for her sex, her affectional preferences would not have resulted in an adverse employment action, and that adverse employment actions taken because of the protected class of those the employee associates with or is romantically involved with, here sex, violate Title VII. The latter kind of associational claim has long been recognized for race. The court additionally drew support from the observation of the Supreme Court in Oncale that statutes often go beyond the principal evil they were primarily intended to address and the scenario in Price Waterhouse v. Hopkins, where but for the plaintiff's sex, her behavior would have been applauded. There is more to the analysis, including discussion of Romer v. Evans and the same sex marriage cases.
This en banc decision follows a panel decision issued last summer in which the court had agreed with much of the same reasoning but rejected Hively's claim because the panel felt bound by prior precedent to do so. The Eleventh Circuit recently issued a similar decision in Evans v. Georgia Reg'l Hosp., although it did not analyze the issue in the same depth as the Seventh Circuit had. And a panel at the Second Circuit, in Christiansen v. Omnicom Group, Inc., just allowed a gay plaintiff's claim to proceed on a gender stereotyping theory even though it could not reconsider the court’s earlier decision holding that sexual orientation discrimination claims were not cognizable under Title VII. In that case, as Joe noted when the decision came out, Judge Katzmann wrote a concurrence urging the Circuit to find that sexual orientation discrimination violated Title VII.
This marks the first Circuit Court to agree with at least some of the EEOC's arguments on this issue. And given the speed with which these cases are being decided, it seems fairly certain to be headed to the Supreme Court.
As all of those researching and writing in the pay discrimination area already know, today is Equal Pay Day. Falling each April, this day symbolically commemorates the date on which women must work into 2017 to receive the same pay that men receive for all of 2016. There are a number of interesting articles, stories and analyses out there to mark this occasion. From U.S. News and World Report:
"Because black, Latina and Native-American women experience larger wage gaps compared to white, non-Hispanic men, they are left in an even deeper hole and need even more years to climb out – if they can climb out at all. For black women, the lifetime wage gap over a 40-year career totals $840,040; for Native-American women it is $934,240; and for Latina women, the losses rise to $1,043,800."
If you have the opportunity, it is an opportune time to catch up on some of the wonderful scholarship in this important area of the law. Feel free to suggest some such scholarship in the comments below!
-- Joe Seiner
Thursday, March 30, 2017
The White House just announced that Ivanka Trump will no longer be a White House volunteer or "informal advisor," but will instead be an "unpaid employee." The move to employee status is a positive development, as it ensures that the usual ethical rules that apply to White House workers will apply to her as well. It's also understandable that, given her personal wealth, she would eschew a salary.
This does raise a question for the labor & employment law geeks among us: what about the FLSA's minimum wage? Normally, the FLSA would apply to federal employees, who can't agree to a salary below the minimum. However, I believe that there is a process for seeking a waiver--in this case, likely from the Office of Personnel Management, which enforces the FLSA for federal employees--but there's no mention of whether a waiver is currently being sought (or whether I'm even right about this).
If any readers have more insight, please add a comment.
Wednesday, March 29, 2017
Camabridge University Press has just published, as part of the Cambridge Disability Law and Policy Series, Paul Harpur's (Queensland Law) Discrimination, Copyright and Equality: Opening the e-Book for the Print-Disabled. Here's the publisher's description:
- While equality laws operate to enable access to information, these laws have limited power over the overriding impact of market forces and copyright laws that focus on restricting access to information. Technology now creates opportunities for everyone in the world, regardless of their abilities or disabilities, to be able to access the written word – yet the print disabled are denied reading equality, and have their access to information limited by laws protecting the mainstream use and consumption of information. The Convention on the Rights of Persons with Disabilities and the World Intellectual Property Organization's Marrakesh Treaty have swept in a new legal paradigm. This book contributes to disability rights scholarship, and builds on ideas of digital equality and rights to access in its analysis of domestic disability anti-discrimination, civil rights, human rights, constitutional rights, copyright and other equality measures that promote and hinder reading equality.
- A valuable resource for advocates, law makers, librarians and others who seek to reform laws, policies and practices that reduce reading equality.
- Provides a comparative analysis of how copyright and anti-discrimination laws interacts.
- Provides an in-depth analysis of advances in international and domestic laws.
The U.S. Court of Appeals for the Second Circuit issued a fascinating per curiam opinion this week that addresses gender stereotyping and directly implicates sexual orientation issues. The opinion, Christiansen v. Omnicom Group, is available here. Of particular note is the separate concurring opinion of Chief Judge Robert Katzmann (with District Court Judge Brodie) which provides in part:
"[I]n my view, if gay, lesbian, or bisexual plaintiffs can show that they were discriminated against for failing to comply with some gender stereotype, including the stereotype that men should be exclusively attracted to women and women should be exclusively attracted to men, they have made out a cognizable sex discrimination claim. In such a case, the gender stereotype theory of discrimination would encompass discrimination on the basis of sexual orientation."
If you are interested in this important and evolving issue I definitely recommend taking a look at this decision and the concurrence.
Tuesday, March 28, 2017
Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:
This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.
Check it out!
Monday, March 27, 2017
Participation in American labor unions have changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike and in much of the country they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.
This article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with GDP growth. It next reviews the traditional prescriptions that labor scholars have advocated to reverse labor’s decline. Finally, it proposes three new radical fixes: authorizing criminal prosecution for willful violations of labor law, expanding labor protections to on-demand workers, and reversing the legal presumption that workers are not represented by a union unless they affirmatively opt in.
Rick has some interesting recommendations in the article, so definitely worth checking out.
Wednesday, March 22, 2017
Yesterday, the Supreme Court ruled (6-2) in NLRB v. SW General. The Court held that once President Obama nominated Lafe Solomon to be the NLRB's General Counsel, he could no longer serve in his current capacity as Acting General Counsel. This is because of a provision in the Federal Vacancies Act which says that someone can only serve in an acting capacity for a covered position if they served as first assistant to that position for at least 90 days in the previous year. Because Solomon was the Acting GC--not its first assistant--when nominated, he could not continue as Acting GC.
The two dissenters (Sotomayor & Ginsburg) would have held that this provision applies only to individuals who are first appointed as acting officials--not, as was the case with Solomon, those who were already acting once nominated. In addition to a textualist argument, they stressed historical examples similar to what happened with Solomon as well as the history of the Federal Vacancies Act, which was prompted by President Clinton's nomination of Bill Lan Lee to the DOJ's Department of Civil Rights. Scotusblog has a an informative description of the case.
Under the decision, once the President nominated Solomon, he became ineligible to serve as Acting GC. This begs the larger question: what to do about all of his actions during that time (Jan. 5, 2011-Nov. 4, 2013)? Unless I missed it in the decision, the Court doesn't say anything about the practical consequences of its decision. As a result, its probably best to consult the D.C. Circuit decision, which the Court affirmed. That case vacated an unfair labor practice charge. But what of all of the other functions of the GC's office? For instance the certification of elections? Theoretically, this could be an issue for a host of other actions. The D.C. Circuit noted that the NLRB could have, but didn't, argue that the ULP in SW General was made by a regional director acting upon a delegation of authority from Solomon. If challenged, I would expect the NLRB to raise that argument, at least with regard to non-ULP cases, and maybe those too. But the NLRB may not have to rely solely on this argument. At the end of the D.C. Circuit's decision, it emphasized what it saw as an important limiting feature of its decision:
Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding. We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.
This caveat notwithstanding, I do expect parties to raise SW General to try to vacate orders. I think the D.C. Circuit is right that those arguments should not prevail, but I anticipate some extra work for the NLRB to litigate this issue for a while. Also, I'm curious how many parties raised an FVRA argument--any readers have any insight on this?
Saturday, March 18, 2017
James Brudney (Fordham) has just posted on SSRN his article The Internationalization of Sources of Labor Law, 39 U. Pa. J. Int'l L. 1 (2017). The abstract is below. I think James is dead-on correct. Having attended a slew of labor conferences in the developing world recently, in both academic and governmental circles, folks are acutely aware of how their own country's labor laws measure up (or not) to ILO standards, and progress is defined as the incremental process of achieving those standards. Here's the abstract:
This article examines in depth an important but underappreciated development in international labor law: how norms promulgated by the International Labor Organization (ILO) have affected the development and implementation of domestic labor laws and practices since the early 1990s. The newly globalized focus of labor law—energized by substantial expansions in international trade and investment—has been recognized by scholars, practitioners, and governments, but it has not previously been explored and analyzed in this systematic way.
The article focuses on two central regulatory areas—child labor and freedom of association—and relies on doctrinal and policy developments in these areas, as evidenced by the actions of legislatures, courts, and executive branches in more than 20 countries. In doing so, the article addresses how international labor standards have influenced national labor law and practice in the Americas (excluding the U.S.)—directly through the soft-law route of convention ratification and ILO supervisory monitoring, and indirectly through trade agreement labor provisions that incorporate ILO norms. The resultant changes in domestic laws and practices have been evolutionary rather than transformative, and developments in law outpace those in practice, but within these parameters the changes have been substantial. The article then places this internationalizing trend in the context of two recognized theories that seek to explain the socialization of human rights law.
Friday, March 17, 2017
Jeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:
Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.
This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.
This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.
Thursday, March 16, 2017
Last night Kathy Stone (UCLA) served on a panel (moderated by Steven Greenhouse) at the Zocalo Public Forum in downtown Los Angeles on the Topic: Does Globalization Only Serve the Elites? She took the position that globalization as currently structured primarily helps elites, and that here in the U.S., we need to introduce redistributional social policies to ensure that working people and other disadvantaged groups share in globalization’s benefits. The event was taped and will air on C-Span in the near future.