Monday, December 7, 2015
How will the Department of Justice (DOJ) defend against an Equal Protection Clause challenge to that part of the Americans with Disabilities Act (ADA) that excludes “gender identity disorders not resulting from physical impairments” from the statutory term “disability,” 42 U.S.C. § 12211(b)(1) (the “GID exclusion)? When we last talked about Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) —an employment discrimination lawsuit brought by a transgender plaintiff.—DOJ had asked the district judge to avoid the constitutional issue by deciding the plaintiff’s Title VII claim (discrimination because of gender identity) instead of her ADA claim. The district court didn’t buy it and asked DOJ to say more or intervene.
So, a second try. DOJ has a new constitutional-avoidance argument: According to “a growing body of scientific evidence,” gender dysphoria—the plaintiff’s alleged disability—is a gender identity disorder that does “result[ ] from physical impairments.” Therefore, the district court can (and must) read the ADA’s GID exclusion not to apply in this case. The ADA’s definition of disability contemplates impairments as “physical” or “mental”. 42 U.S.C. § 12102(1)(A) (“a physical or mental impairment”). DOJ’s key move here is to read the phrase “resulting from physical impairments” in the GID exclusion to not cover “GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood,” that is, a GID that “has a physical basis.” Citing various sources in support, including a recent literature review (Saraswat et al., 2015), DOJ concludes: “While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.”
In response, the defendant-employer agreed that the GID exclusion doesn’t cover gender dysphoria stemming from a physical impairment, but emphasized that the plaintiff hadn’t alleged that her gender dysphoria resulted from a physical impairment. As a result, the defendant’s lawyers wrote, DOJ’s avoidance argument wasn’t “credible”. The plaintiff’s amici—several NGOs that advocate for transgender people’s rights— agreed that DOJ’s position was, in its result, at least consistent with their view that, after the DSM-5, gender dysphoria isn’t a gender identity disorder at all, but a “new diagnosis.” But if not, the amici added, and if DOJ’s view requires a plaintiff in any particular to prove that his or her gender dysphoria does actually result from a physical impairment, then the court can’t avoid the Equal Protection Clause challenge completely. That’s because (1) only transgender plaintiffs would bear that burden of proof; (2) that burden would burn a lot of “attorney resources for discovery and the preparation of expert reports and requiring courts to delve into a thicket of medical evidence and opine on etiology, with the attendant risk of different courts reaching differing results in similar cases”; and (3) if the plaintiff couldn’t meet that burden, the court would then have to decide the constitutional issue. The plaintiff’s lawyers agreed with this view.
What about the plaintiff’s ADA claim based on perceived disability? First Amended Complaint ¶¶ 36, 53. The ADA defines “disability” to include cases in which a person is “regarded as” disabled. 42 U.S.C. § 12102(1)(C). Today, that’s defined to cover a person who suffers discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” id. § 12102(3)—the result of the ADA Amendments of 2008. So, if the defendant’s alleged illegal conduct had occurred today, maybe DOJ would also say—to make avoidance work—that the GID exclusion doesn’t apply to “regarded-as” ADA claims. (That is, not even when a defendant-employer treats a person adversely because it thinks (erroneously) that a person has a “gender identity disorder” caused by a physical impairment; or thinks (erroneously, in DOJ’s view) that a person has a “gender identity disorder” caused by a mental impairment; or thinks a person has a “gender identity disorder” but doesn’t know or care whether that condition has a mostly physical or mostly mental etiology.) But the alleged illegal conduct in Blatt took place before the ADA amendments of 2008. Back then, the Third Circuit had required that, for a regarded-as claim, the plaintiff’s perceived disability would, if true, count as an “impairment” under the ADA, see Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d. Cir. 2002).
Maybe we’ll find out soon how DOJ’s second try at avoidance will fare. Oral argument on the defendant’s partial motion in Blatt is scheduled for this Thursday (Dec. 10).
--- Sachin Pandya
Carolina Academic Press has published a new set of materials that can be used to teach an “experiential” course in the practice of Labor Arbitration. Professor Roger I. Abrams, an academic and a labor arbitrator for over forty years, has used these materials in his Labor Arbitration Workshop at Northeastern University School of Law. The course materials include numerous published arbitration decisions with questions and notes, simulations, transcripts, sample briefs and problems that focus on the work of advocates who present cases before labor arbitrators. The publisher has created a website and a Teacher’s Manual to accompany the materials.
During the course, in addition to learning about regulation of the workplace through collective bargaining, students learn how to make opening statements in labor arbitration, conduct direct and cross-examination, and write arbitration briefs. At the end of the course, they try a complete arbitration case based on a simulation with witnesses and documents, and then they write a brief in support of their side of the case.
As you may know, under the newly revised ABA Standards, law students will be required to complete six credit hours using this type of “experiential” approach. The materials also are suitable for a course in a business school or in an undergraduate program.
Wednesday, December 2, 2015
We have written a decent amount on this blog about class-action litigation in the modern economy. These cases have keyed in on the issue of whether modern workers are independent contractors or employees. My research on this issue has led me to a wealth of information, and I have been able to aggregate a number of these cases into a single list, which you can Download Here. This list includes an impressive amount of class litigation against high-profile companies, including Uber, Lyft, Homejoy, Crowdflower, Instacart, Postmates, Caviar, Washio and others. I have included some basic background information about each case, as well as the district court docket citation and any media cites where available. I apologize for the "rough format" of this list, but thought others might find this resource useful as I have been unable to find any other discussion which sets forth an aggregation of the class-action cases brought in the gig economy. And, feel free to add any cases I might have missed in the comments below!
-- Joe Seiner
Update: A corrected file is now attached at the link above.
Tuesday, December 1, 2015
By now, we’re used to the idea that employees can sign away their rights to a court forum in favor of an arbitral tribunal, but we’re not so used to the idea that contract law, even without the aid of the Federal Arbitration Act, can be deployed to deprive employees of statutory rights they would otherwise have. A case raising these issues in a dramatic fashion is set for argument today before the New Jersey Supreme Court. At issue is a retailer’s employment application, which provides that any suit must be brought within 6 months of a claim arising. The effect would be substantially shorten the limitations period otherwise applicable under the state’s Law Against Discrimination.
Although the claim in question arises under LAD, the waiver –if valid – would presumably shorten the period for most causes of action that would otherwise have a longer limitations period. In New Jersey, that’s pretty much every claim – contract, tort, Conscientious Employee Protection Act, the list goes on. And there’s nice fringe benefit, from management’s perspective, that employees may not recall signing such a document, much less kept a copy of their applications for employment. In blissful ignorance of this ticking time bomb, employees and their attorneys might assume that they have whatever time the cause of action would normally allow.
But it’s a contract, right? So what’s the problem? The Appellate Division saw none, and dismissed plaintiff’s case as time barred. For that court, the major doctrinal obstacle was unconscionability, always the last resort of the desperate, and the court found the requirements of that doctrine unsatisfied. Although it treated the contract as one of adhesion, it did not find the waiver substantively unfair. In the process, it looked to a variety of cases upholding agreements curtailing statutory limitations periods.
To reach its result, the court rejected the plaintiff’s argument that the legislatively-enacted period in various statutes itself reflected a strong policy of worker protection, thus rendering any effort to shorten the period either substantively unfair or, more directly, a violation of state policy. The Appellate Division would have none of it – the state Legislature had not barred such agreements despite being “presumably aware of the long-established case law allowing contractual reductions that are reasonable and not contrary to public policy.”
If the Appellate Division’s decision stands, employers will have a powerful new tool to minimize risk of liability. Nor do they have to choose between an old risk-management tool like arbitration and the new tool of slashing limitations periods. Having their cake and eating it too, there’s no apparent obstacle to providing that an arbitration proceeding has to be filed within the reduced period. After all, we usually conceived or arbitration as simply replacing a public forum with a private one to resolve the same dispute, albeit in a less formal way.
There are some limitations on such agreements. Looking to the principle that private agreement should be “reasonable and not contrary to public policy,” the court recognized that sometimes a shortened statute of limitations may be, so to speak, off limits. Under the federal antidiscrimination statutes, for example, there is generally a requirement that a plaintiff file with the EEOC and provide it with at least 180 days to seek to resolve the dispute. This structure would seem to necessarily invalidate a 6 month statute of limitations since it would essentially foreclose any private suit.
Further, the principle may be generalized such that, at least for any claim founded on a statutory regime (as opposed to contract or tort claims), employers may not functionally deprive the employee of her rights by too radical a reduction in the time allowed to bring suit. But for the Appellate Division, 6 months didn’t do it – in part because New Jersey had 6 month limitations periods for certain remedies. Nor did the court find persuasive the possibility that a plaintiff would not know of the period – after all, contracting parties are “assumed to have read [the contract] and understood its legal effect . . . even if a language barrier is asserted,” as it was in the case at bar.
To be clear, the Appellate Division is not the first opinion to approve of contractual contraction of limitations, nor even the first to do so in the context of employment claims, and, indeed, the court could find no published opinion to the contrary. Nevertheless, the New Jersey Supreme Court often goes its own way, and it would scarcely be surprising for the court to find these kinds of agreements unenforceable.
We should know in a few months.
Monday, November 23, 2015
When does paying workers via tips count as illegal employment discrimination? Arguments against tip compensation--around for a while (e.g., Scott, 1916)---re-emerged last month (e.g., here and here) after restauranteur Danny Meyer (like some others) decided to ban tipping and raise prices instead. One of these anti-tipping arguments: Customers of all races tend to tip black restaurant servers far less than white restaurant servers, even after controlling for service quality (Lynn et al. 2008; Brewster & Lynn, 2014). In turn, some (e.g., Lynn et al., 2008, p. 1057-58) suggest that such a race disparity in tips exposes employers to Title VII disparate-impact liability. That liability applies if a defendant-employer “uses a particular employment practice that causes a disparate impact on the basis of” race or sex, among other characteristics, 42 U.S.C. § 2000e-2(k)(1)(A)(i), regardless of “the employer's motives and whether or not he has employed the same practice in the past,” Lewis v. City of Chicago, 560 U.S. 205, 217 (2010).
So, can a race disparity caused by tip compensation amount to Title VII disparate impact liability? There isn’t much litigation on this issue, but the answer is yes, if we treat tips just like bonuses, commissions, and other kinds of compensation practices used to pay an amount on top of base pay—practices that, according to the EEOC (Title VII’s federal agency enforcer), may generate disparate-impact liability. EEOC Compliance Manual § 10(III)(C)(2).
Although Wang (2014, p. 157-58) doubts it, it’s pretty easy to conclude that a race disparity in tips is caused by the employer’s use of a “particular employment practice.” But for tip compensation, there can’t be a tip disparity. Sure, employers don’t control how much their customers tip. But employers do decide whether part of a worker’s pay comes from tips, instead of, say, imposing a flat service charge. Besides, customer race bias can’t excuse an employer’s legal responsibility for causing a race disparity in tips. In general, Title VII does not excuse employers who defer to their customers’ racial preferences.
Wang also suggests that a court might treat a disparate-impact challenge to tip compensation—which partly leaves worker pay to customer discretion—like the challenged policy upheld in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2554-57 (2011), which left worker pay and promotion to local store managers’ discretion. But Wal-Mart—a class action lawsuit—mostly turned on an issue of federal class action procedure. See, e.g., Gschwind v. Heiden, 692 F.3d 844, 848 (7th Cir. 2012); Tabor v. Hilti, Inc., 703 F.3d 1206, 1221-22 & n. 8 (10th Cir. 2013). So, Wal-Mart might matter in a Title VII disparate-impact class action filed in federal court against a restaurant chain that lets each restaurant’s local manager decide whether to adopt tip compensation there. But Wal-Mart doesn’t stop a court from saying that an employer who adopts tip compensation thereby “uses a particular employment practice” under Title VII.
There is, however, no hard and fast rule about how big a race disparity in tips has to be for a court to declare Title VII liability. And whatever any individual employee collects in tips, any resulting race disparity in tip income—what workers take home—might differ depending on how the employer engages in tip pooling. Although collected tips belong to the employee, see 29 C.F.R. § 531.52; see also, e.g., Cal. Labor Code § 351; NY Labor Law § 196-d, under certain conditions, an employer can redistribute the tips among a set of employees, see 29 C.F.R. § 531.54; see also, e.g., Avidor v. Sutter's Place, 212 Cal. App. 4th 1439, 1449-50 (6th Dist. 2013); 12 NYCRR § 146-2.16. Which employees get to join a tip pool can be complicated, but since 2011, the US Department of Labor (DOL) reads the Fair Labor Standards Act to “not impose a maximum contribution percentage on valid mandatory tip pools.” 29 C.F.R. § 531.54. (DOL had set a maximum of 15% of an employee’s tips, but it changed tack after some courts rejected it. See 76 Fed. Reg. 18832-01, 18839 (2011). How far DOL may regulate tip pooling is disputed. See, e.g., Oregon Restaurant and Lodging v. Solis, No. 13-35765 (9th Cir., appeal submitted July 10, 2015)).
As the tip-pool contribution percentage increases, any race disparity in tip income likely decreases. Accordingly, in some cases, there may be a big enough disparity in tips collected but the disparity in tip income (after tip-pooling) is too small. Title VII, however, says that a plaintiff has to show that “each particular challenged employment practice” causes a disparate impact, unless she can show that an employer’s “decisionmaking process” can’t be separated for analysis. 42 U.S.C. § 2000e-2(k)(1)(B)(i). This implies that if a plaintiff can prove that tip compensation (the challenged practice) causes a big enough race disparity in tips collected, that’s enough, whether or not the disparity in tip income (after those tips are pooled) is big enough, too. Tip compensation and tip pooling are practices that can be analyzed separately. An employer can adopt tip compensation without tip pooling. Some do.
Once the plaintiff proves the requisite disparate impact, the employer has several defenses, including that its tip compensation practice is “job related for the position and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(1)(A)(i), a “bona fide . . . merit system,” or “a system which measures earnings by quantity or quality of production,” 42 U.S.C. § 2000e-2(h). For all these, the employer bears the burden of proving that, at bottom, tipping really relates pay to job performance. The problem for employers: In general, past studies suggest that, even after controlling for service quality, tips substantially vary with, among other things, a server’s race (e.g., Brewster & Lynn, 2014) or physical attractiveness (e.g., Parrett, 2015). That doesn’t settle the matter, because the defendant’s restaurant may be the odd case in which tips do measure job performance pretty well. But, in Title VII litigation, it’s the defendant-employer’s burden to prove that, not the plaintiff’s. And what counts as good job performance is an objective inquiry, not whatever the employer sincerely believes.
Similarly, using tips as a proxy for job performance is, by itself, hardly a bona fide “merit system.” According to the EEOC, a merit system involves evaluating employee job performance “at regular intervals according to predetermined criteria, such as efficiency, accuracy, and ability.” EEOC Compliance Manual § 10(IV)(F)(1) (discussing parallel defense in Equal Pay Act). Similarly, tips don’t really measure the “quantity or quality of production.” This defense covers not just piece-rate-compensation for making goods, but also compensation for services, such as securities-broker bonuses. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 882 (7th Cir. 2012). Even for broker bonuses, this defense may not apply if “for example, black brokers were receiving systematically poorer reviews than their white counterparts who performed substantially similar work, and the reviews determined compensation.” Id. Here, in any particular case, an employer can’t assume that tips accurately measure the “quality of production” (service quality). Instead, the employer must prove that they really do. Facing this possibility, some employers may want just to ban tipping instead.
H/t: Jon Bauer, Peter Siegelman. A version of this essay first appeared at OnLabor.
Thursday, November 19, 2015
The American Constitution Society is currently hosting a Symposium on Labor and Economic Inequality—a series of posts by labor and employment law professors, including:
Michael Selmi, “The New Front in the Fight for Workers’ Rights”
Ruben Garcia, “Friedrichs, Teacher Salaries, and Inequality in Public Education”
Brishen Rogers, “Inequality and Economic Democracy”
H/t: Noah Zatz, who, as a precursor to thinking about Title VII disparate-impact liability, also recently posted this essay on Texas Department of Housing and Community Affairs v. Inclusive Communities Project, 135 S. Ct. 2507 (2015), which recognized disparate-impact liability under the Fair Housing Act.
Tuesday, November 17, 2015
Congratulations to Paul Harpur (U. Queensland - Beirne School of Law) who has just been promoted to Senior Lecturer. Paul focuses on disability rights, anti-discrimination laws, work health and safety laws, and corporate social responsibility. He has published widely in Australia, the United Kingdom and the United States on employment, anti-discrimination, and human rights laws. He currently leads an International Labour Organization project assessing labour rights in the South Pacific.
Saturday, November 14, 2015
There has been an enormous amount of discussion recently on how anti-discrimination law should be applied to workers in the LGBT Community. As reported by the Washington Post, the White House announced on Tuesday its support for an amendment to the Civil Rights Act of 1964 which would prohibit discrimination against gay and transgender employees (the Equality Act):
"The bill would insert language about gay and transgender people into legislation created by the 1964 Civil Rights Act — the historic measure that banned many forms of discrimination by race, color, religion, sex or national origin."
The Washington Post article includes an interesting discussion about the differences of the proposed Equality Act with ENDA. The article also has an interesting discussion of the recent application of the Price Waterhouse case to transgender workers. This issue continues to make headlines and it will be interesting to follow the proposed legislation as well as the continued development of the case law in this area.
- Joe Seiner
Thursday, November 12, 2015
The Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers. The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.
The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.
Wednesday, November 11, 2015
Deb Widiss (Indiana) has two recent articles that will be of interest to our blog readers. The first is Griggs at Midlife, 113 Mich. L. Rev. 992 (2005), reviewing Bob Belton's recent book, The Crusade for Equality in the Workplace. From the abstract:
Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge employers’ use of criminal background screens. The Review also suggests that the failure to develop intersectional analysis — that is, an analysis of how sex and race may interact — in disparate impact doctrine risks obscuring key vectors of exclusion.
Belton’s book gives modern readers an inside look at the NAACP Legal Defense and Education Fund’s litigation campaign in Griggs, and it does an excellent job showing how lawyers used disparate impact doctrine to dismantle test and educational requirements that could have excluded many black employees. The book, however, focuses almost exclusively on race discrimination cases. This Review explores the contemporaneous — and less successful — development of the doctrine in early sex discrimination cases. Generally, courts have not required employers to modify workplace structures that fail to accommodate caregiving responsibilities or pregnancy, despite their disparate impact on the basis of sex. Moreover, such policies often disproportionately harm women of color. By filling in this history, the Review offers a more nuanced assessment of disparate impact’s early years.
The Review then considers contemporary efforts to challenge employers’ use of criminal background screens, policies that likewise cause a disparate impact on the basis of both race and sex. It suggests that current litigation might be more successful if the intersectional approach were better developed, but it also highlights the importance of compliance work in achieving equal employment opportunity in the modern world. Although the EEOC has lost some high profile cases in this area, its guidance indicating that criminal background screens may cause an unlawful disparate impact has pushed employers to reconsider and refine their use of such screens.
The second expanded on Deb's other work on "shadow precedents," precedents that still seem to guide the courts even after Congress amends statutes to reverse the effects of those precedents: Still Kickin after All these Years: Sutton and Toyota as Shadow Precedents, 63 Drake L. Rev. 919 (2015). From that abstract:
Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents — what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation of shadow precedents may often stem from information failure, including poor briefing by counsel, rather than courts’ willful disregard of legislative mandates.
The article, written for a symposium on the Americans with Disabilities Act (ADA), examines implementation of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, a broadly bipartisan bill, was intended to supersede Supreme Court decisions that had set a very stringent standard for what impairments qualified as a disability. The ADAAA explicitly “rejected” the reasoning in these decisions; amended the ADA’s substantive provisions; and instructed courts to interpret the standard “in favor of broad coverage.” Many lower courts are properly implementing the revised standard, and the overall number of citations to the superseded decisions has dropped sharply. But this article identifies numerous post-ADAAA cases in which courts follow the old precedents for propositions that were undeniably superseded. Mistakes are particularly prevalent in cases alleging discrimination because one is “regarded as” having a disability. Even though the ADAAA was an unusually strong and clear override, it has failed to change fully the law on the ground.
The symposium mentioned in the abstract was published in the Drake Law Review and was an outgrowth of the AALS Employment Discrimination section panel at last year's annual meeting. It's a great symposium with pieces by Senator Tom Harkin (D-Iowa), Steven Befort (Minnesota), Ruth Colker (Ohio State), Arlene Kanter (Syracuse), and Nicole Porter (Toledo).
Tuesday, November 10, 2015
There was a fascinating article in the New York Times last week which discussed proposed federal legislation to protect certain young professionals. As we are all aware, the FLSA includes a number of protections for child workers. However, these protections often do not extend to models and actors as such individuals are often exempted by the statute. The new legislation (the Child Performers Protection Act) can be found here, and as discussed in the article, the legislation "would establish specific working hours, salary and savings requirements (models could no longer be paid in clothes, for example), and it would offer private recourse for sexual harassment." It will be interesting to follow this proposed legislation and see whether it gains any traction in Congress.
-- Joe Seiner
Friday, November 6, 2015
As the labor market tightens, it has been interesting to see employers add different benefits to attract and retain workers. The Washington Post reports that several companies -- including Wal-Mart, Taco Bell and other fast food restaurants -- are helping workers to prepare for the GED Exam and are covering the costs of the test itself.
According to the article, the program "includes online study materials, practice tests, and access to an adviser whose job it is to check in with candidates and keep them motivated and engaged in what can be a lengthy process to study for and pass the tests." It is great to see these types of benefits now being provided by employers, and it will be interesting to see what other benefits might be offered if the labor market continues to tighten in this economy.
-- Joe Seiner
Tuesday, November 3, 2015
image from www.eeoc.gov
The EEOC harassment task force held a public meeting late last month with testimony from a panel of experts in the area. The EEOC's statement on the meeting is available here, and much of the testimony can be viewed here. Experts from a wide field of study weighed in on the issue, and there appeared to be agreement that a variety of measures are necessary to help prevent harassment.
From the EEOC, "Placing pressure on companies by buyers, empowering bystanders to be part of the solution, multiple access points for reporting harassment, prompt investigations, and swift disciplinary action when warranted, along with strong support from top leadership, are some of the measures employers can take to prevent workplace harassment".
I would highly recommend this source if you are interested in the topic of workplace harassment.
- Joe Seiner
Saturday, October 31, 2015
There has been much discussion recently about the treatment of workers in the gig industry. Similarly, Amazon has found itself oft-criticized for the treatment of its workers. As reported by CNN.Money, the company has now joined the growing ranks of businesses being sued over worker misclassification issues. The action maintains that the company improperly treated its drivers as independent contractors rather than employees. From the complaint:
"Plaintiffs reported to and worked exclusively out of an Amazon warehouse. They each received multiple days of training in making Amazon Prime Now deliveries at the Amazon warehouse including . . . performing practice deliveries using training routes generated in the App. Defendants require Plaintiffs to wear shirts and hats bearing the Amazon Prime Now logo and provide the Plaintiffs with a smart phone pre-loaded with the App. . . . Plaintiffs are scheduled to work fixed shifts during Amazon’s Prime Now service hours. . . Not infrequently they are scheduled to work six or seven consecutive days in a week, and have been occasionally sent home without pay after reporting to the warehouse if there is not enough work."
Like all of the pending litigation against employers in this sector, this worker misclassification case will be interesting to follow as the courts struggle to apply a decades old test to modern workers.
In another example of the New York Times weighing in on a recent employment issue, the paper recently published an op-ed arguing against tipping, authored by Saru Jayaraman (UC-Berkeley & ROC). Among the arguments against tipping is its roots in racial discrimination, as well as its negative effects on female employees. No matter your view on the topic, it's well worth a read.
Hat Tip: Harris Freeman
This is old news for most readers of this blog, but it's nice to see a paper like the New York Times highlight the issue of arbitration waivers. In particular, an article today talks about the Supreme Court's approval of arbitration class action waivers, including some backstory of the Italian Colors restaurant.
Thursday, October 29, 2015
I have just learned that friend-of-blog Leora Eisenstadt (Temple) has posted on SSRN her new piece, Fluid Identity Discrimination, which was just published by the American Business Law Journal (ABLJ) and is available online (with the print edition coming out next month). The piece takes a fresh look at multiracial and transgender plaintiffs which is an increasingly visible area of the law. The abstract is below:
According to the most recent Census, the multiracial population of children has increased dramatically in the last decade, and the number of people of any age who identify as both white and black more than doubled in that time. In addition, there is a growing number of increasingly vocal transgender individuals who cannot be defined by existing sexual categories. Nonetheless, most courts have retained a categorical approach to Title VII that demands membership in a protected class even as American society becomes increasingly mixed and less conducive to simple categorization. In light of this new reality, this article considers the jurisprudence and scholarship on multiracial and transgender plaintiffs and argues that scholars and courts in both areas are dealing with discrimination against these increasingly visible individuals in an overly narrow way, leading to incomplete or unsatisfactory solutions. Rather than approach issues of racial identity and sexual identity separately, this article contends that these issues are symptomatic of a larger problem with Title VII, namely, an enduring attempt to fit increasingly amorphous identities into a strict categorical structure that no longer matches the reality of American society. Fluid Identity Discrimination proposes a rethinking of the protected class paradigm in light of a changed American populace with the goal of providing clarity and better alignment between law and social reality.
Uber continues to make headlines in recent weeks, and the controversy surrounding the technology platform continues to swirl. In an interesting announcement, the company plans to unveil Uber Rush in Chicago, San Francisco and New York City which offers to be the delivery driver for small businesses. As reported by Business Insider, "If Uber can balance supply, demand, and efficiency at massive scale, then the real threat may be to big delivery giants like UPS and FedEx if users start choosing a cheaper and faster same-day delivery option".
Uber has also announced plans recently to expand to Pakistan. The growth of the company -- both in size and scope -- continues to raise questions about how it classifies workers. As we addressed here, there is substantial controversy and litigation over whether its workers should be considered employees (subject to the FLSA and other employment laws) or independent contractors. That issue does not appear likely to go away any time soon.
On a lighter note, Uber is working with animal shelters today to provide Kittens-On-Demand in certain locations in honor of National Cat Day (who knew?). There is a snuggle fee of $30 to play with a cat for fifteen minutes (proceeds of which will be donated), and the kittens will also be available for adoption. For one local story, see here. The only employment issue I can find on this final point is whether or not the cat's paw theory is somehow implicated. Please let me know if you would like me to re-fur you to any of that literature.
- Joe Seiner
Tuesday, October 27, 2015
Kate Griffith (Cornell ILR School) writes to tell us about the ILR Review's call for papers, which is focusing on immigrant legalization. The info:
ILR REVIEW: CALL FOR PAPERS
The Impact of Immigrant Legalization Initiatives:International Perspectives
The ILR Review [http://ilr.sagepub.com/] is calling for papers for a special issue on the impact of immigrant legalization initiatives. We seek innovative international and U.S.-sited research from a broad array of disciplines––including sociology, political science, economics, industrial relations, and law––that advances our understanding of the processes, outcomes, and policy implications of different approaches to the regularization of unauthorized immigrants. Submitted abstracts may reflect a range of methodologies, including surveys, qualitative or quantitative fieldwork, experiments, or the use of historical/archival data. The guest editors of this special issue are Maria Lorena Cook (firstname.lastname@example.org), Shannon Gleeson (email@example.com), Kate Griffith (firstname.lastname@example.org), and Lawrence Kahn (email@example.com).Prospective contributors are encouraged to consult any of the guest editors regarding preliminary proposals or ideas for papers.
The legalization, or regularization, of unauthorized immigrants has become an important and contentious policy issue in the United States and in countries around the world. While the United States is fairly unique in its long periods of legislative inaction regarding unauthorized immigrants, policies in other countries present a range of responses. In Europe, several countries have enacted periodic mass regularization programs or have provided for ongoing adjustment of status on a case-by-case basis. Traditional immigrant-sending countries in South America and Africa have recently instituted legalization programs as they become immigrant-destination countries as well. In the United States, temporary legalization measures, such as the Deferred Action for Childhood Arrivals (DACA), provide further examples of limited deportation relief and work authorization.
These legalization initiatives around the world raise a number of questions. What are the impacts of regularization programs on immigrant workers, their families, and the communities in which they live? How does acquisition of legal status affect immigrants’ workplace conditions (health and safety, employment, wages, occupational mobility)? How do legalization programs affect the work and employment conditions of those who are excluded from such programs or who do not participate and retain their unauthorized immigration status? How does loss of legal status affect workers and their families?
This special issue of the ILR Review will be among the first to examine the impact of legalization initiatives on immigrant workers across the globe. We are interested in the effects of legalization programs on the working lives of unauthorized immigrants, as well as those in temporary legal statuses, and of unauthorized immigrants who remain outside the scope of these initiatives. We invite papers that analyze different worker outcomes: labor force participation, employment, wages, workplace health and safety, discrimination, organization, social and occupational mobility, and rights mobilization, among others. We are especially keen to receive papers that address these issues in Asia, Africa, Latin America, Europe, and the Middle East, as well as papers that compare national origin groups within a country or legalization initiatives and their impacts across countries or over time. Suggested topics include, but are not limited to, the following.
- Comparative impact of legalization programs. How do the structures of legalization programs affect employer practices and worker outcomes (employment, wages, working conditions, organization, access to legal protections)? What can we learn from different national and regional models of labor integration?Does the legal status “bump”––the gap between authorized and unauthorized workers––look different from place to place?
- Comparative impact of legal status. How have different categories of legal status––including temporary and liminal legality––shaped worker outcomes and the well-being of families and communities? Do guest worker and other temporary programs necessarily produce better outcomes relative to those of unauthorized individuals? What are the lasting impacts, if any, of unauthorized status for workers? Does legal status matter more for some outcomes and processes than others? How does legal status intersect with other attributes and identities (race, ethnicity, national origin, gender, sexuality) to shape worker outcomes?
- Immigration enforcement impact. How do changes in immigration regimes affect a national labor force over time? How have increases in deportations affected worker outcomes? How have sub-national (region, state, province, municipality) immigration enforcement policies affected unauthorized workers? To what extent do changes in immigration law affect workers’ rights enforcement efforts?
- Legal mobilization and worker rights. What is the relationship between immigration status and workers’ willingness to demand, either individually or collectively, improved working conditions? How do changes in immigration status affect workers’ willingness to confront employers, speak to coworkers, or pursue formal channels of restitution when their rights are violated? How does immigration status affect workers’ willingness to participate in organizing efforts, including but not limited to union activity?
Anticipated Timeline: Prospective contributors should submit a detailed abstract of their research to firstname.lastname@example.org no later than January 31, 2016. The abstracts should include the research question(s), theoretical argument, contribution to the literature, detailed methodology, and anticipated empirical findings. The editors will review the abstracts and invite selected contributors by March 31, 2016. Full papers will be due by September 15, 2016. All papers will undergo the normal peer review process.
Saturday, October 24, 2015
The New York Times took a look in a recent article at the continuing problem of age discrimination in the workplace. The article examined the overall rise in age discrimination charge filings with the EEOC, as well as some of the possible causes for this persistent problem. The article notes that experts believe it to be "a common phenomenon that will increase with millennials eager to enter the workforce and baby boomers reluctant to leave it."
As we often discuss in our employment discrimination classes, there is something unique about age discrimination, and it is one of the areas where plaintiffs continue to gather direct evidence of bias. And, given the unique structure of the damages provision in the ADEA, these cases often tend to yield higher overall payouts for the litigants. It will be interesting to see if the make-up of millennials and baby boomers in the workplace continues to create problems in this area of the law.
-- Joe Seiner