Thursday, May 22, 2014

EEOC Update


There are a couple of interesting news items involving the EEOC.  First,  the agency recently issued a press release discussing a $110,000 settlement that it reached with Norfork Southern Railway Company.  The settlement  was in an ADA case that involved an individual with degenerative disc disease. Second, in another ADA claim, a federal judge in the Middle District of Florida recently awarded $150,000 judgment against American Tool and Mold, LLC (ATM).  Perhaps more interestingly, however, the judge in the case issued widespread injunctive relief against ATM, requiring the employer

"to provide notice to job applicants that it is an equal opportunity employer; create and implement a disability discrimination policy; provide ATM's management with live training on disability discrimination each year for four years; and post notice of the lawsuit in its facilities. The judgment further requires ATM to conduct a functional job analysis and create written job descriptions for each position subject to a post-offer medical examination. ATM must also ensure that any third-party medical contractors it uses for post-offer medical examinations conducts them in a manner consistent with the ADA. Finally, ATM must report to the EEOC twice a year concerning individuals not hired or terminated as a result of employment medical screenings and people who make complaints of disability discrimination."

It is not unusual for the Commission to obtain  this type of widespread injunctive relief.  Nonetheless,  it demonstrates the importance of compliance  with the federal mandates against  disability discrimination.


May 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

In the News – Disclosure under the ADEA

I wanted to briefly highlight a recent news story which I saw from Bloomberg and Business Week. The story focuses on recent changes at IBM as to the disclosures that are being given to workers after discharge. In particular, the article notes that workers over 40 subject to termination are no longer being informed of the ages and job titles of other workers that are similarly being discharged.

The company is offering arbitration to these workers as a way of circumventing the disclosure requirement. It is an interesting change from a corporation that is often seen as a leader in employment – type benefits. It may also signal a change in the way that other corporations handle severance packages and agreements.


May 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Weighing in on Wal-Mart

I want to thank the workplace prof blog for the opportunity to weigh in with some of my views on employment discrimination law in the coming weeks.  The issue that I am currently focusing on is the Supreme Court's troubling decision in Wal-Mart.  Though the case is now a couple of years old, the ripple effects from this decision are just now being felt in the lower courts.  There seems little question that Wal-Mart has made it much more difficult for plaintiffs to bring class action employment discrimination cases.  Combined with the Supreme Court's other decision in Concepcion, it is now harder for workplace victims to act collectively when seeking relief from an employer.

There have been a number of wonderful articles by friends of this blog detailing the problems inherent with the Court's flawed decision. Putting these excellent pieces aside for the moment, however, what interests me is how class action employment discrimination plaintiffs should proceed after Wal-Mart.  What are the best vehicles currently available to plaintiffs seeking to file systemic claims?

I am hoping that this blog can help spark a discussion of the various options still available to plaintiffs seeking to act collectively. In my view, there are four primary approaches that plaintiffs can use to circumvent the Court’s decision. These include the governmental approach, the procedural approach, revised relief, and issue class certification. Over the coming weeks, I will outline the potential use of each of these mechanisms for plaintiffs to still pursue class-action claims following the Wal-Mart case. Importantly, I do not view these four avenues as exclusive roads to systemic relief. Indeed, I am simply hoping to spark a conversation of how plaintiffs should proceed in this area. I thus invite others to weigh in here with any suggestions they might have on this topic.

More to follow soon...


May 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Joseph Seiner

SeinerPlease welcome guest blogger Joseph Seiner from the University of South Carolina School of Law. Joe teaches Employment Discrimination, Principles of Labor Law, Individual Employment Law, a workshop in ADR in Employment Law, and a seminar in Comparative Employment Discrimination. From his faculty bio:

Joseph Seiner received his B.B.A., with High Distinction, from the University of Michigan in 1995, where he was an Angell Scholar. Professor Seiner received his J.D., Magna Cum Laude, Order of the Coif, from the Washington and Lee University School of Law, in 1998. Professor Seiner was a lead articles editor for the Washington and Lee Law Review.

Following law school, Professor Seiner clerked for the late Honorable Ellsworth Van Graafeiland of the U.S. Court of Appeals for the Second Circuit. After his clerkship, he practiced law with Jenner & Block, LLP, in Chicago, Illinois, where he focused on labor and employment matters. In September, 2001, Professor Seiner accepted a position as an appellate attorney with the U.S. Equal Employment Opportunity Commission in Washington, D.C., where he presented oral argument as lead counsel in the United States Courts of Appeals in employment discrimination cases.

Prior to joining the faculty at the University of South Carolina School of Law, Professor Seiner was an adjunct professor at the Georgetown University Law Center, where he developed and taught a seminar on comparative employment discrimination. Professor Seiner's articles have been selected for publication in numerous journals, including the Notre Dame Law Review, the Boston University Law Review, the Iowa Law Review, the Boston College Law Review, the William and Mary Law Review, the University of Illinois Law Review, the Hastings Law Journal, the Wake Forest Law Review, and the Yale Law and Policy Review. Professor Seiner's work has been featured in a number of media sources, including The Wall Street Journal. Upon invitation, Professor Seiner has submitted written testimony to committees in both the U.S. Senate and the U.S. House of Representatives. Professor Seiner teaches courses in the labor and employment law area.

Joe is also a prolific scholar. You might check out his most recent article, now on SSRN, The Issue Class. From the abstract: 

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court refused to certify a proposed class of one and a half million female workers who had alleged that the nation’s largest private employer had discriminated against them on the basis of their sex. The academic response to the case has been highly critical of the Court’s decision. This paper does not weigh in on the debate of whether the Court missed the mark. Instead, this Article addresses a more fundamental question that has gone completely unexplored. Given that Wal-Mart is detrimental to plaintiffs, what is the best tool currently available for workers to pursue systemic employment discrimination claims?

Surveying the case law and federal rules, this paper identifies one little used procedural tool that offers substantial potential to workplace plaintiffs seeking to pursue systemic claims — issue class certification. Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure permits the issue class, allowing common issues in a class case to be certified while the remaining issues are litigated separately. The issue class is typically used where a case has a common set of facts but the plaintiffs have suffered varying degrees of harm. This is precisely the situation presented by many workplace class action claims.

This paper explains how the issue class is particularly useful for systemic discrimination claims. The paper further examines why traditional class treatment often fails in workplace cases, and addresses how the plaintiffs in Wal-Mart could have benefited from issue class certification. Finally, this Article discusses some of the implications of using the issue class in employment cases, and situates the paper in the context of the broader academic scholarship. This paper seeks to fill the current void in the academic scholarship by identifying one overlooked way for plaintiffs to navigate around the Supreme Court’s decision.

Welcome, Joe!


May 20, 2014 in About This Blog, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor Law, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Saturday, May 17, 2014

NYU Annual Conference on Labor

NYU LawNYU's 67th Annual Conference on Labor will be held June 5-6, 2014.  The topic this year is "Title VII of the Civil Rights Act After 50 Years."  As usual, there's a greet line up of speakers, which you can see in the full program.  The link also has info on registration.




May 17, 2014 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

NLRB Invites Briefs on Joint-Employer Standard

NLRBOn the heels of its invitation for briefs on electronic communications and college athletes status as employees, the NLRB has also extended an invitation for briefs on its joint-employer standard.  According to the invitation in Leadpoint Business, the Board is considering the following questions:

1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?

2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?

3. If the Board adopts a new standard for determining joint-employer status, whatshould that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

Amicus briefs are due on June 26, 2014.



May 15, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

NLRB Asks for Briefs in Northwestern Players Case

NlrbThe NLRB is asking for amicus briefs on the issues in the Northwestern football players election case by June 26. It would be a great opportunity for those interested to weigh in.

h/t Charlotte Garden


May 13, 2014 in Beltway Developments, Labor and Employment News, Labor Law, Union News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Preemption Laws and Goldilocks

Florida County MapA recent opinion piece in Al Jazeera America (H/T Sam Bagenstos, @sbagen) calls attention to the ongoing lobbying efforts of the American Legislative Exchange Council (ALEC) and the National Restaurants Association to pursue state laws preempting local employment regulation.  The piece focuses primarily on the preemption of local laws requiring that employers offer paid sick leave or pay a higher living wage or minimum wage.  A number of cities have enacted mandatory paid sick leave laws (with varying eligibility requirements), including San Francisco, Seattle, New York City, Washington D.C., Portland, Oregon, and Jersey City, New Jersey. 

Several states have enacted legislation preempting, to varying degrees, the ability of local governments to regulate employers.  These states include Wisconsin, Florida, Mississippi, Arizona, Indiana, Tennessee, Louisiana, Kansas, and as of April 14, Oklahoma.  The Oklahoma law heads off an initiative to raise the minimum wage in Oklahoma City to $10.10 per hour. Florida enacted its own preemption law in 2013 and, as part of that legislation, convened a task force to study the preemption question.  (Disclosure:  In October, I testified before this task force.).  Florida’s law does not preempt living wage ordinances, but it does preempt local minimum wage laws and local laws requiring the provision of benefits not otherwise required by federal or state law. 

States are considering the extension of preemption beyond just minimum wages and sick leave.  For example, in Florida, there are no wage payment and collection protections to speak of, other than a requirement to pay in cash or a negotiable instrument.  In response to a perceived wage theft problem, some local governments in Florida, including Miami-Dade County, have enacted wage theft ordinances.  Bills were introduced in the Florida House and Senate to preempt (with certain exceptions) any new local wage theft laws, although such efforts have been unsuccessful thus far.       

The primary justification offered for state level preemption of local employment laws is that it would be too difficult for employers to comply with a patchwork of differing local employment laws.  Indeed, this is the very first reason listed in the Florida Task Force’s Final Report, which concludes that preemption of local laws was the appropriate course.  As someone who represented and advised employers for years, I am somewhat sympathetic to the compliance concern.  But the compliance cost savings of uniform employment laws must be balanced against the benefits of decentralized regulation.  Labor market conditions vary from city to city, just as they do from state to state.  Why are uniform state laws necessarily preferable to a patchwork of local laws?  The same interested parties making that argument would doubtless contend that the compliance cost savings of uniform federal employment regulation should often yield to the ability of states to craft a patchwork of differing employment laws that best suit the needs of the labor market within each individual state.  Is it really the case that the state level is “just the right” level of uniformity for most employment regulation – neither too centralized nor too decentralized – or does it have more to do with who currently holds control over the legislative and executive branches at the state level?


May 8, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 6, 2014

Jack Getman Retires

Image001When our list of faculty moves went up last month, one item left of the list was the retirement of Julius (Jack) Getman from the University of Texas after 28 years on the faculty. The American Statesman did a nice story on Jack's career. Here's a part:

A sort of Johnny Appleseed of labor law, Getman has through the decades sprinkled proteges all over the country. Many of them followed Getman into academia. Many of them chose their professor’s specialty even if they’d planned on practicing another kind of law before they took Getman’s basic labor law class which, 2011 graduate Elliot Becker recalled, “some of us called ‘Story Time with Grandpa Jack.’”

“I don’t know where I’d be without him,” said Becker, who this fall will go to work in the general counsel’s office of the National Labor Relations Board.

“I didn’t go to law school thinking I wanted to do labor and employment,” said James Brudney, who teaches labor at Fordham Law School. “It was the exposure to him and the subject that converted me. He has a remarkable blend of realism, sardonic humor and remarkably perceptive insights analytically about the real world.”

While Getman may be sympathetic to workers and the labor movement, he’s not a dogmatic radical who has never missed a Pete Seeger concert.

“His perceptions of the struggles that ordinary shop floor workers had to go through made him sensitive to both the positive aspects of (union) leadership and the risks that leadership might separate from the rank and file,” Brudney said. “He’s obviously sympathetic to unions, but that has not restrained him from offering substantial and powerful critiques.”

Jack's book Restoring the Power of Unions was also the subject of the Section on Labor Relations and Employment Law program at the AALS annual meeting in 2011, which coincided with the UNITE HERE boycott of the conference hotel. The presentations were published in volume 15, issue 2 of the Employee Rights & Employment Policy Journal

h/t Michael Murphy and Harris Freeman


May 6, 2014 in Faculty Moves, Faculty News, Labor and Employment News, Labor Law, Labor/Employment History, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

Morris and the Chamber on Members-Only Unions

Blue EagleRecently, the U.S. Chamber of Commerce released a report called, The Blue Legal has Landed: The Paradigm Shift from Majority Rule to Members-Only Representation.  The title is somewhat odd because the report attacks a wide variety of issues, from workers centers to D.R. Horton, that don't seem to have much to do with members-only representation.  But, it did accomplish one goal, which was to prompt a reaction from Charles Morris, who book, Blue Eagle at Work, the Chamber's title obviously played off of.

Morris has an extensive post on his Labor Relations Blog.  I'll copy the introduction below, but the entire piece is worth a full read:

The U.S. Chamber of Commerce announces in the title to its recent report on union representation that “The Blue Eagle Has Landed”—referring to the “Blue Eagle At Work” (my book on members-only collective bargaining)—and it concludes that the present system of majority-union representation and collective bargaining is “giving way to a...system that allows for members-only representation.”  I appreciate such prescience in the report’s title and ill-gotten conclusion, for although the Blue Eagle has not yet landed, it is expected to land in the near future, after which American labor relations should vastly improve.  When that occurs, the original and existing purpose of the National Labor Relations Act (NLRA or Act) will certainly be more accurately realized than it has been in recent years, and this will significantly help in the rebuilding of America’s diminishing middle class.

What I don’t appreciate, however, is that in this unsigned report the Chamber disparages and inaccurately describes the process of members-only representation and bargaining and grossly misrepresents and distorts the plain language and law of the NLRA and its legislative history, which are the subjects of this blog.  I invite any Chamber attorney or attorneys with name identification to counter with documented references to specific statutory text, legislative history, and applicable cases—which will be difficult if not impossible in view of what that text, history, and those cases clearly say.  I shall indeed welcome a response.

May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

The End of Register-Guard?

NLRBThe NLRB just announced that it is inviting briefing from the parties and amici on whether to overturn Register-Guard, in a case called Purple Communications.  Among the list of questions the Board raised are: 

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?

2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?

3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?

4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7?

It is no secret that I'm not a fan of Register-Guard (in addition to the link above, see here and here).  So, I'll be watching this case very closely.  One disappointing aspect of the announcement is that the Board did not raise the possibility of reversing Register-Guard's restrictive definition of "discrimination."  Perhaps that's a topic for another day.


May 1, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 30, 2014

Sixth Circuit and Essential Functions

    The Sixth Circuit recently weighed in on whether physical presence is an essential function of a job under the Americans with Disabilities Act.  E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014).  The district court had granted summary judgment in the employer’s favor, holding that the plaintiff could not establish a failure to accommodate claim under the ADA because of her absenteeism.  The Sixth Circuit reversed the district court.

     The decision is interesting on several levels, two of which I will discuss here.  First, it separates the question of whether attendance is an essential function from the question of whether physical presence at a workplace is one.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.  It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6.

       Second, although the Court considered the business judgment of the employer (that face-to-face interaction is desirable for the job), it also considered evidence proffered by the plaintiff that her job did not require such face-to-face contact.  The Court held there was a genuine issue of material fact about whether the plaintiff’s job required her to be physically present at the job.

       The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11.


April 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Constitutionalizing Wal-Mart?

Seal_of_the_Supreme_Court_of_MontanaWhile we wait for word on the EEOC v. Mach Mining cert petition, those interested in systemic or class relief in employment cases will want to keep an eye on another important cert petition, Allstate v. Jacobsen. This is not an employment law case, but rather a case about alleged unfair trade practices in adjusting insurance claims for automobile injuries. Yet, it has potentially huge ramifications for employment cases, as highlighted by the Equal Employment Advisory Council’s amicus brief.

Allstate petitioned for review of a decision by the Montana Supreme Court applying Montana’s version of Federal Rule 23 for class certification. Montana’s Rule 23 is textually identical to Federal Rule 23 in all relevant respects, and Montana has in the past found federal authority under Federal Rule 23 “instructive” when interpreting its own Rule 23.

The Montana Supreme Court certified a Rule 23(b)(2) class focusing on the question whether Allstate's claims adjusting policy violated Montana's unfair trade practices law.  The potential class-wide relief included a declaratory judgment and a mandatory injunction ordering Allstate to provide notice to class members that they may re-open and re-adjust their claims.  The court recognized that this type of declaratory and injunctive relief would "set the stage for later individual trials."

The propriety of certifying this type of mandatory 23(b)(2) class to resolve certain common questions, even where a later series of individual trials for damages will naturally follow, appears to have split state courts and lower federal courts.  The Montana court relied on Judge Posner's decision in McReynolds v. Merrill Lynch, which permitted the certification under Federal Rule 23(b)(2) and 23(c)(4) of a class limited to resolving the question whether defendant's "teaming" and "account distribution" employment policies had an unlawful racially disparate impact.  There, Judge Posner recognized that should the plaintiffs prevail on the class-wide issue of disparate impact, the "next stage of the litigation" would be "hundreds of separate suits for backpay . . ."

Allstate and several amici contend that certification of the mandatory 23(b)(2) class in Jacobsen's case violates the procedural due process protections of the 14th Amendment. Montana is, of course, free to interpret its own Rule 23 in a way that diverges from Wal-Mart's interpretation of Federal Rule 23.  Indeed, the Montana court hinted that it may not follow Wal-Mart's guidance on the Rule 23(a)(2) commonality requirement in the future, but ultimately determined that it need not resolve that question in this case.  But Allstate's argument to the Court seems to be that Wal-Mart set a constitutional floor - the minimum protections allowable under the 14th Amendment.  In the unanimous portion of the Wal-Mart opinion, the Court rejected the use of 23(b)(2) for certification of class claims seeking monetary relief, "at least where . . . the monetary relief is not incidental to the injunctive or declaratory relief."  But that holding was not firmly rooted in a constitutional interpretation.  Although notice and opt out rights are constitutionally required in a class action "predominately for money damages," the Court only suggested the "serious possibility" that the same would be true for class actions in which money damages are at issue but do not predominate.  And it is not at all clear that this constitutional limitation would apply to cases like Jacobsen or McReynolds, where the class action does not resolve money damages claims, but rather only resolves certain common issues to "set the stage" for later individual trials for monetary relief.       

The petition is set to be considered at the Court's conference this Friday, and is listed on SCOTUSBlog's Petitions to Watch.


April 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2014

Oral Argument in Lane v. Franks

ScotusThe Supreme Court heard oral argument today in Lane v. Franks (see here and here) today.  The oral argument transcript is now available. It's a good read. The justices seemed pretty skeptical that the First Amendment would not protect a public employee testifying about information he learned at work, but at the same time, they were concerned that Eleventh Circuit precedent might be murky enough that the right was not clearly established enough at the time Lane was fired to overcome qualified immunity. For reporting on the argument, see here, here, and here.


April 28, 2014 in Public Employment Law | Permalink | Comments (1) | TrackBack (0)

Katz v. AB Trial begins

ARCHA relatively rare thing is happening in St. Louis beginning today. A high profile sex discrimination trial begins. It's Katz v. Anheuser-Busch, which I posted about back in October of 2009 when the case was filed. Francine Katz, former Vice President of Communications and Consumer Affairs and part of the company's "Strategy Committee," is suing Anheuser-Busch for discrimination in compensation and support during her tenure at the company. She discovered that she was paid less than every man on the Strategy Committee when A-B was bought by InBev, an international company.

Katz has sued only under the Missouri Human Rights Act and not under Title VII. The MHRA has a standard more plaintiff friendly--protected status need only be a "contributing factor" to an employer's decision--and Missouri courts tend to let things get to trial more frequently. In fact, one of the reasons that this case has taken so long is because A-B sought to enforce an arbitration clause in Katz's contract. The Missouri Court of Appeals held that the arbitration provisions that  A-B argued would apply were not in fact enforceable. 

There has been more wrangling, including a request by local news to have a camera in the courtroom. As events unfold, I'll post any interesting developments and observations, but mostly I'm looking forward to getting to watch when my schedule permits.

Update: Local investigative reporters have been tweeting from the trial.  Follow @leisazigman and @LisaBrownSTL if you are interested.


April 28, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

While We're Waiting for the Election Returns....

Steve Willborn has just posted on SSRN an article on football, Northwestern, and the "employee" conundrum. The abstract is pretty short:

This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an employee lean in their favor across a broad range of employment statutes, including private- and public-sector collective bargaining laws and laws protecting individual employment rights. College athletes are also likely to be classified as employees at some point because there are literally hundreds of different employment statutes. College athletes will have many independent opportunities to present their claims. Finally, claims by the NCAA and its member institutions to a special exemption for coverage under all these statutes are weak. The analogy to antitrust law, where the NCAA has been treated favorably, is inapt. Moreover, the courts will be reluctant to create non-statutory exceptions to important state and federal labor protections where the legislature has failed to do so.

Steve and I have been sharing some thoughts about this piece (mostly on his side, my contributions being largely limited to a "football is different" theme), some of which are captured here:

I decided to do this article mostly to educate myself about the issues raised by the Kain Colter/Northwestern situation. I would say the main thrust of my article is that the specifics of that situation have soaked up too much of the oxygen on the college-athlete-as-employee issue. The Northwestern case is important but more limited than commonly understood. And there are many, many other opportunities for college athletes to forward the claim that they are employees.

 I would say that the article makes four basic claims. First, the Northwestern case is much more limited than commonly understood. For example, by its terms, the Regional Director’s decision in the case means that the college athletes at more than 60% of all NCAA institutions are NOT employees. The Regional Director said athletes who didn’t have scholarships at Northwestern were not employees, so no Ivy League athletes and no athletes at NCAA Division III schools are employees under the ruling. (As far as I know, no one has commented on this important aspect of the decision.) Of course, people aren’t exercised about those schools. But the ruling also doesn’t apply to 90% of the institutions we tend to worry about – 90% of the institutions in the top 5 athletic conferences are public universities and not governed by the NLRA.

 Second, some of the public-sector bargaining laws are incredibly favorable to claims by college athletes that they are employees. Florida provides constitutional protection for such claims; California is also quite favorable. Of course, in some states those claims would be non-starters. But college athletes at public universities in many major athletic markets would have a good chance of unionizing under public-sector bargaining laws.

 Third, college athletes are even more likely to be successful in getting themselves classified as employees under laws protecting individual employee rights: there are literally thousands of statutes the claim could be made under (discrimination laws, unemployment, workers compensation, wage laws, etc.); college athletes could pick out favorable individual plaintiffs (such as one-and-done basketball players where the connection to academics is weakest); and the decision-makers in the cases are less subject to political influence (e.g., compared to the NLRB or its public-sector equivalents).

 Fourth, the common claim that college athletes should be an exception to the normal rules determining employee status is weak. That claim is often backed up with reference to cases under the antitrust laws that do treat college athletics as different. But those cases are applying the normal antitrust laws in finding that sometimes college athletics requires collaboration that normally would be prohibited; the cases do not carve out an exception to the antitrust laws, they are applying them. In this case, universities are seeking an exception to the normal rules determining employee status. Procedurally, the courts should not be the ones making such exceptions; if there are to be exceptions, the legislatures should make them, not courts. Substantively, even if the claim has some force, it doesn’t justify a blanket exception. Maybe some exceptions from the wage-payment laws would make sense; exempting college athletes from the protection of the discrimination statutes seems unwise.

 So my main conclusion is that college athletes will be classified as employees sometime, somewhere, for some purposes. They have so many arrows in their quiver that this seems inevitable. I don’t say much about what the NCAA should do in response to this, nor do I talk about whether it’s a good idea to classify athletes as employees. This is mostly a technocratic piece.  But it’s interesting that right now the kinds of changes the NCAA is making (paying for parents to go on recruiting trips and to games, providing more food) cut in the direction of making college athletes more employee-like. So I view most of the current moves by the NCAA as providing more arrows, or better arrows, or something like that. 

I won't ask why Steve didn't include this summary in his abstract, but I will attest that he educates all of us as well as himself in the process.  It's well worth a read.


April 28, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

NLRB Will Review Northwestern Ruling

NorthwesternAnother update on the Northwestern football case ahead of today's vote.  The NLRB announced that  it will review the ruling and accept amicus briefs on the issue of the players' status as employees.  Details to follow.  The vote today will still happen, but as we noted in yesterday's post, the ballots will not be opened until the NLRB rules.

On a related note, the NY Times has a story today on one of the major reasons for the drive to unionize college football players: better medical care.  Expect to see the NCAA get more serious about this--at least as long as the threat of unionization remains.



April 25, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.


April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Nassar's Hidden Message

In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2530 (2013). The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.

While Nassar focused on causation issues, two sentences hidden within the opinion resolve a central problem in employment discrimination law. Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.

This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions. Nassar represents a significant shift in how courts should perceive discrimination cases.

Even though the text of Title VII does not use the words single motive and mixed motive, courts often refer to 42 U.S.C. § 2000e-2(m) as establishing a “mixed motive” claim. Some courts distinguished these “mixed-motive” claims from what the courts called the “single-motive” claim provided under the statute’s main language in § 2000e-2(a). This organizational dichotomy had a host of practical consequences. In some cases, courts refused to instruct juries using the “motivating factor” language if a plaintiff did not refer to § 2000e-2(m) in her complaint. In some cases, courts refused to consider cases under the “motivating factor” standard if the plaintiff failed to make a mixed-motive argument at summary judgment. More importantly, the circuit courts have not been able to consistently resolve the interplay between the McDonnell-Douglas test and language in § 2000e-2(m). Many circuits have asserted single-motive claims and mixed-motive claims are distinct and require separate proof structures.

In two sentences, Nassar resolves most of this confusion. The Supreme Court provided: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” These sentences mean that there is no such thing as a “mixed-motive” claim or a “single-motive” claim. Courts and litigants are entitled to use the “motivating factor” definition of causation found in § 2000e–2(m) for all intentional discrimination claims.

These sentences significantly clarify the organizational structure of intentional discrimination and resolve several practical problems. It is now clear that plaintiffs are not required to invoke § 2000e–2(m) in their complaints to preserve the ability to later rely on the motivating factor standard. Courts can evaluate discrimination claims under this standard, even if the plaintiff does not specifically argue that her case is one of mixed motives. Courts can also avoid the practical problem of sorting out which cases are single-motive cases and which ones are mixed-motive cases, if the plaintiff wants to use the motivating factor standard.

While it may still be helpful for courts to use the language of single-motive and mixed-motive to describe the facts alleged by the parties or the underlying theories of their cases, it is no longer appropriate to use these words to describe separate claims.

Nassar does not resolve what to do about the multiple existing proof structures. The McDonnell-Douglas structure has remained persistent, despite repeated declarations of its death. It is likely that McDonnell-Douglas still remains as an alternate way to establish discrimination. Nassar does clarify that it is no longer appropriate to force single-motive factual scenarios based on circumstantial evidence solely into the McDonnell-Douglas mold. These plaintiffs have access to the motivating factor framework. This move is important because it answers a key question about how to conceptually organize discrimination law.


April 24, 2014 | Permalink | Comments (2) | TrackBack (0)

Lester Named Dean at Columbia

LesterGillian Lester, currently Acting Dean at Berkeley, has just been named Dean at Columbia. She'll start January 1, 2015; here's the press release. Congrats, Gillian, and I look forward to seeing you on the dean's circuit!


April 24, 2014 in Faculty Moves, Faculty News | Permalink | Comments (0) | TrackBack (0)