Tuesday, October 7, 2014
On Wednesday the Supreme Court will hear arguments in Integrity Staffing Solutions v. Busk. The employer, Integrity, provides staffing for Amazon.com warehouses. Plaintiffs brought an opt-in class action under the FLSA (and a related state law claim), alleging that they were not compensated for time spent waiting to go through security screening after their shifts had been completed. Plaintiffs alleged that the time spent going through security, which included waiting in line and removing items from their pockets to go through a metal detector, were approximately 25 minutes. Plaintiffs were only required to go through the security screening at the end of their shift, as the security was aimed at detecting “shrinkage” – potential employee theft of merchandise from the warehouse.
The question is whether the time spent waiting in line and going through security is compensable time under the FLSA, as amended by the Portal-to-Portal Act. The Ninth Circuit held that it was compensable, as “integral and indispensable” to the employees’ principal activities. Integrity argues that a post-shift security screening is a “postliminary” activity under the Portal-to-Portal Act, that the security screen is not “integral and indispensable” to the principal activities of the warehouse workers, and that the time should not be compensable.
Our friend, Paul Secunda, discussed the case in this Washington Post piece, explaining how relatively small bits of time each day can add up to billions of dollars in these FLSA cases. Aside from the statutory interpretation arguments, there is a question about setting appropriate incentives. Integrity argues that if the security time is compensable, employees will have a strong incentive to “take their time” on their way through the security screen. (But couldn’t employers discipline employees for such loafing, just as they could for any other loafing on the job?) Conversely, as Paul suggests, if Integrity’s position prevails, employers will have little incentive to adequately staff the security screen to speed up the wait time. Unless, of course, the wait times grew so long that employees (at least those at the margins) began to quit or demand more pay, such that the market could correct for the problem.
The United States filed a brief in support of Integrity’s interpretation.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: email@example.com. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Friday, October 3, 2014
The Department of Labor announced a final rule this week that implements Executive Order 13658, which will raise the minimum wage for federal contractors to $10.10 per hour. The rate hike will help approximately 200,000 federal contract workers. From the official blog of the Department of Labor:
"The underlying principle couldn’t be simpler: no one who works full-time in America should have to raise their family in poverty. And if you serve meals to our troops for a living, for example, then you shouldn’t have to go on food stamps in order to serve a meal to your family at home. By raising the minimum wage for these workers, we’re not just upholding the president’s promise, but the fundamental American promise that hard work should be rewarded with a fair wage."
The minimum wage issue continues to be a controversial one. While the minimum wage has remained static for years under federal law, many local jurisdictions have acted to raise this rate. Now we see the federal government acting for some workers as well on this issue.
-- Joe Seiner
Just in time for the beginning of this Term, which, as Marcia suggests may be a blockbuster, Jonathan Harkavy has posted 2014 Supreme Court Employment Law Commentary on SSRN. It contains not only useful nuetral summaries of the opinions but also, in separate italicized sections, the author's personal take on the decisions -- often in with a dash a humor.
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
“What are offensive gender-specific stereotypes for $800, Alex?”
In an episode of Jeopardy! earlier this week, the show featured a category which is raising many eyebrows and is further causing substantial controversy. The category, “What Women Want,” seemed to feature answers that further sex-based stereotypes, including the $600 answer which was “a vacuum cleaner.” The Today Show ran an interesting segment which highlighted the controversy and includes an excerpt from the program. It is worth a quick look particularly if you are covering sex discrimination in class this week, as I am doing with my students.
-- Joe Seiner
Tuesday, September 30, 2014
image from eeoc.gov
In what looks to be a fascinating case, the EEOC recently sued Papa John’s under the Americans with Disabilities Act. The agency alleges that the company failed to permit an employee with Down Syndrome a reasonable accommodation and then later terminated him. From the news release on the case:
“According to the EEOC's suit, Papa John's employed Bonn successfully at its Farmington, Utah location, allowing an independently employed and insured job coach to assist him, until an operating partner visited the location. The EEOC alleges that the operating partner, upon observing Bonn working with the assistance of his job coach, ordered Papa John's to fire Bonn.”
Cases involving intellectual disabilities are always interesting to follow, and this case will be one to watch closely.
-- Joe Seiner
Monday, September 29, 2014
In employment-discrimination cases, plaintiffs sometimes present regression analysis to support their claims, particularly for disparate impact claims. In a new paper, Joni Hersch and V. Blair Druhan, “The Use and Misuse of Econometric Evidence in Employment Discrimination Cases,” Washington and Lee Law Review 71(4) (forthcoming December 2014), the authors argue that certain objections by defendants to such regression analysis---omitted variable bias, sample size, and statistical significance—are often invalid yet succeed in making it harder for plaintiffs to prevail. Here’s the abstract:
Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by each party as a percentage of the total payment to econometric expert witnesses, review econometric evidence before the reports are submitted to the judge or jury.
Their sample of Title VII cases comes from a Westlaw search of Title VII cases published between January 2000 and October 2013 in which the words “regression analysis” were present. The total sample includes summary judgment motions, evidentiary motions, trial verdicts, district court opinions and appellate court opinions.
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Thanks to Matthew Fletcher (Michigan State) for forwarding a link to his Turtle Talk post about EEOC v. Peabody Western Coal Co. (9th Cir. 9-26-14), holding that tribal preferences (as opposed to Indian preferences generally) are not national-origin classifications prohibited by Title VII. Here's the syllabus:
The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.
The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior....
Saturday, September 27, 2014
image from www.dol.gov.
“ 'Over the next decade, this change will result in a significant reduction in paperwork burden for federal contractors and subcontractors,' said Assistant Secretary of Labor for Veterans’ Employment and Training Keith Kelly. 'In addition to easing the burden on contractors, the data collected by these reports will help the Labor Department develop more informative yearly trends in the employment of protected veterans.'
The final rule revises the VETS-100A Report and renames it the VETS-4212 Report. The VETS-100 Report will no longer be used. The VETS-4212 Report requires contractors to report specified information on protected veterans in their workforce in the aggregate, rather than for each category of veterans protected under the statute, reducing the required reporting elements by almost half, from 82 to 42. Under VEVRAA, the term “protected veterans” includes: disabled veterans, veterans who served on active duty during a war or campaign for which a campaign badge was authorized, veterans who were awarded an Armed Forces Service Medal and recently separated veterans.”
This is an interesting development particularly for those of you working on scholarship in the areas of federal employment or veteran’s rights.
-- Joe Seiner
Friday, September 26, 2014
Must a court read Ricci v. DeStefano, 557 U.S. 557 (2009), to apply to Title VII challenges to affirmative action plans? That’s part of the fight in Shea v. Kerry, a case—now on appeal before the D.C. Circuit (No. 13-5153)—involving a Title VII challenge to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan. (The briefs are in. Oral argument hasn’t yet been scheduled.)
In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan. Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests. Their employer argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability. In ruling that the plaintiffs deserved summary judgment, the Ricci Court described its holding this way: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
In Shea, the plaintiff is now represented by lawyers from the Pacific Legal Foundation (PLF). They read Ricci to have overruled United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)—the Supreme Court precedent on when Title VII permits employers making training, promotion, or other employment decisions to consider race or sex pursuant to valid affirmative action plans---and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard. For support, they point to, among other things, Justice Ginsburg’s dissent in Ricci, and their conclusion that “[n]early all scholarship on Ricci's applicability” supports their reading (citing, as examples, Corrada (2011) and Harris & West-Faulcon (2010)).
In response, the State Department’s lawyers read Ricci to apply only “after an employer invalidates the selection that resulted from a ‘fair opportunity process.’” Ricci doesn’t apply, they argue, because the State Department neither invalidated the results of “an established testing process” nor made any “mid-stream change” to the mid-level placement criteria. Affirmative action plans—including the State Department’s plan—are “governed by Johnson and Weber,” not Ricci, because in adopting such plans, “the employer acts ex ante and ‘in the light of past discrimination,’ and ‘establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination.’”
Among other replies, Shea’s lawyers criticize this view as “not useful”: Ricci “could just as easily be described as a forward-looking (ex ante) case. The City of New Haven threw out the test results in order to avoid a future disparate impact.” Besides, Ricci’s strong-basis-in-evidence standard “applies irrespective of whether an employer is ‘avoiding or remedying’ illegal conduct . . . ‘avoiding’ would be forward-looking (ex ante) and ‘remedying’ would be backward looking (ex post). Ricci applies to both.”
Which reading of Ricci will prevail? Which reading should prevail? Which reading(s) of Ricci did both sides miss? (Discuss!) In theory, lower courts aren’t supposed to treat US Supreme Court precedents (here, Weber and Johnson) as implicitly overruled (for discussion, see Shannon 2009). Accordingly, Shea’s PLF lawyers have also asked that if the DC Circuit feels bound to apply Johnson and Weber, that court should “invite” the US Supreme Court to review Johnson and Weber and to “clarify its decision in Ricci.”
Thursday, September 25, 2014
image from eeoc.gov
In an interesting settlement announcement the well-known seafood restaurant chain McCormick & Schmick’s has agreed to pay $1.3 million to settle a claim of race discrimination brought by the EEOC. The suit had alleged that front-of-house employees at two of the restaurant's locations were not given equal work assignments as a result of race, and that the company's advertising practices had suggested a preference for nonblack workers. Per the EEOC's press release, in addition to the large monetary settlement amount, the restaurant will “
- implement numerical goals for hiring of black job applicants for front-of-the-house positions at the two Baltimore locations;
- implement targeted recruitment efforts to attract black job applicants at the two Baltimore locations;
- review its job advertisements to make certain they do not violate Title VII's prohibitions against expressing intended or unintended preferences because of race;
- conduct extensive self-assessment of hiring and work assignment practices to ensure non-discrimination and compliance with the terms of the consent decree;
- designate a decree compliance monitor for oversight of compliance with the requirements of the consent decree; and
- submit reports to the EEOC concerning numerical hiring goals and other consent decree compliance issues.”
It is interesting to see the EEOC pursue these types of systemic claims, particularly after the difficulty private plaintiffs now have certifying class-action claims following the Walmart decision.
-- Joe Seiner
Wednesday, September 24, 2014
Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement.
From the abstract on SSRN:
This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.
Or in plainer terms as Scott wrote in an email,
The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts. In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers).
Very interesting read.
Tuesday, September 23, 2014
A bit of self-promotion: Carolina Academic Press has just published Mastering Labor Law, by Paul Secunda, Anne Lofaso, Joe Slater, and yours truly. Although it can be of interest to anyone, it's specifically geared to law students and practioners who want a helpful guide to the basics of labor law. One unique aspect--as you can gather from Joe Slater's presence on the author list--is that it also includes a significant amount of public sector labor law.
Monday, September 22, 2014
image from nlrb.gov
In a time when legal jobs are becoming more difficult to come by, the NLRB recently announced that it is accepting applications for its honors program. Many of you are familiar with this program (and may have even completed it). It is an excellent opportunity for many of our students. The full application is available at https://apps.nlrb.gov/honors. From the website:
"The Honors Program is highly competitive and candidates are selected on the basis of merit. Selection is based on the consideration of many factors including academic achievement (G.P.A. of 3.2 or greater); law journal or other relevant writing experience; relevant labor relations and/or law courses; moot court competition, legal aid, and legal clinic experience; and summer and/or part-time employment, particularly experience dealing with labor and employment matters. Some Regional offices have special needs where specific skills, such as bilingual skills, may be a factor in selecting the candidate. If your GPA falls below that necessary to qualify for consideration under the requirements of the NLRB Honors Program, you may nevertheless still qualify outside the Honors Program for a position in a Headquarters or Field Office. Please apply directly to the Hiring Office in which you are interested."
-- Joe Seiner
As many of you know, back in July the NLRB General Counsel indicated that the McDonald's fast food restaurants could be pursued for labor law violations at its individual franchises. This decision was enormously controversial and received high-profile widespread publicity. As Jeff noted on Friday, there have already been recent congressional hearings on the joint employer issue. It is not surprising that the NLRB's decision has also now become very politicized. Republican lawmakers last week sought more information from the NLRB on this issue. From the Chicago Tribune:
“Representatives John Kline and Phil Roe, in a letter to the agency, called the NLRB general counsel's finding “unprecedented” and asked the board to provide more documents by the end of September about its decision-making. The two Republicans are on the U.S. House of Representatives workforce committee”.
The decision is an important one and could have widespread implications beyond the NLRA. It seems that the battle over this issue has just begun, and it will be one that is very interesting to follow in the news and courts.
Saturday, September 20, 2014
How well do firms comply with the Family and Medical Leave Act? Not as much as you might think. That's the finding of a recent paper: Amy Armenia, Naomi Gerstel, and Coady Wing, "Workplace Compliance with the Law: The Case of the Family and Medical Leave Act," Work and Occupations 41(3) (2014): 277-304. Here's the abstract:
Using the 2008 National Study of Employers to analyze employers’ compliance with the Family and Medical Leave Act (FMLA), we show that prior studies have overestimated compliance due to the treatment of missing values and incomplete definitions of the FMLA. Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse. This analysis suggests that firms with missing data are more similar to noncompliant than compliant firms and that nonresponse may indicate organizational defiance of policy.
Among other things, the authors find that organizations are more likely to comply with FMLA-mandated maternity leaves than with other FMLA requirements.
Friday, September 19, 2014
The House Subcommittee on Health, Employment, Labor and Pensions held a hearing last week, titled "Expanding Joint Employer Status: What Does it Mean for Workers and Job Creators?" Among the speakers was Harris Freeman, who supported the NLRB's ability to expand the definition of joint employer, as the General Counsel is seeking in Browning-Ferris. As we noted earlier, he also submitted an amicus brief to the NLRB on this issue.
The committee has released a video of the hearing, which includes all witnesses.
Image from eeoc.gov
In an extremely interesting new report by the EEOC, the agency outlines common errors made by federal agencies when reviewing complaints of discrimination. The report focuses primarily on the inappropriate dismissal of these complaints on procedural grounds. The EEOC notes that approximately one third of all dismissals are subsequently reversed by the agency during the appellate process. From the news release:
"[the EEOC] examined five years of decisions (2008-2012) and determined an average appellate reversal rate for procedural dismissals by federal agencies. The government-wide reversal rates for each fiscal year examined are as follows: FY 2008 - 30.3%; FY 2009 - 35.5%; FY 2010 - 37%; FY 2011 - 34.9%; and FY 2012 - 44.9%.
[The EEOC] identified those agencies with higher than the government-wide reversal rates and analyzed the appellate reversal decisions involving those agencies to identify the most common mistakes. This showed that 81% of the EEOC's reversal decisions involved only two regulatory grounds for dismissal: failure to state a claim and failure to comply with regulatory time limitations."
I definitely recommend taking a quick look at this report, particularly if you are working on any scholarship related to these issues.
-- Joe Seiner