Tuesday, May 1, 2018
Yesterday, the California Supreme Court issued what is likely to be a bombshell decision in Dynamex Operations v. Lee. Dynamex involved a wage claims brought by a driver under California law. The employer defended with the oft-used (and often successful) argument that the driver and his similar colleagues were independent contractors, not employees. You can check out the decision for the facts, but they will be very familiar to those who spend any time looking at this area. What is more important is how the court analyzed them.
In Dynamex, the court decided to change its standard for determining whether a worker is an employee or independent contractor under the part of the state wage statute that defines "employ" as "to suffer or permit work" (there are two other definitions of "employ"). In particular, it adopted what is referred to as the "ABC test." Under this rule, a worker is presumed to be an employee unless the purported employer can establish three factors. Because of its importance, I'm going to quote the court's formulation, while editing the layout for easier reading:
This [ABC] standard, whose objective is to create a simpler, clearer test for determining whether the worker is an employee or an independent contractor, presumes a worker hired by an entity is an employee and places the burden on the hirer to establish that the worker is an independent contractor. Under the ABC standard, the worker is an employee unless the hiring entity establishes each of three designated factors:
(a) that the worker is free from control and direction over performance of the work, both under the contract and in fact;
(b) that the work provided is outside the usual course of the business for which the work is performed; and
(c) that the worker is customarily engaged in an independently established trade, occupation or business (hence the ABC standard).
If the hirer fails to show that the worker satisfies each of the three criteria, the worker is principal federal wage and hour legislation.
Although it remains to be seen how soon and how big an effect this decision will have, I'm not going out on a limb by predicting that this represents a major change. The ABC test is clearly broader than the FLSA's "economic realities" test, so at a minimum more California workers will enjoy protection under the relevant statute. But California's size and the fact that this is likely to impact gig work could lead to a shift in how some companies classify and pay their gig workers in other states. Time will tell . . . .
Tuesday, April 3, 2018
Yesterday, the US Supreme Court decided Encino Motorcars v. Navarro in a way that rejected past precedent requiring courts to read FLSA’s statutory exemptions narrowly. In a 5-4 ruling, the Court ruled that FLSA exempts a service adviser at a car dealership from its overtime protections under the exemption for “any salesman . . . primarily engaged in . . . servicing automobiles.” 29 U.S.C. § 213(b)(10)(A).
In doing so, however, Justice Thomas, writing for the majority, rejected the general “principle that exemptions to the FLSA should be construed narrowly.” Encino, Slip Op. at 9. Here’s his reasoning:
We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.” Scalia, Reading Law, at 363. The narrow construction principle relies on the flawed premise that the FLSA “‘pursues’” its remedial purpose “‘at all costs.’” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume . . . that whatever might appear to further the statute’s primary objective must be the law” (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading.
In so reasoning, Justice Thomas’s majority opinion didn’t “acknowledg[e] that it unsettles more than half a century of our precedent.” Dissent of Justice Ginsburg, Slip. Op. at 9-10 n.7. See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (FLSA “was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”); accord Citicorp Industrial Credit Co. v. Brock, 483 U.S. 27, 35 (1987); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959)(“It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.”)(citations omitted). In her dissent, Justice Ginsburg called this FLSA precedent a “well-grounded application of the general rule that an ‘exception to a general statement of policy is usually read . . . narrowly in order to preserve the primary operation of the provision.’” Dissent Slip. Op. at 9 n.7 (quoting Maracich v. Spears, 570 U.S. 48, 60 (2013)).
Management-side lawyers will likely now invoke Encino often in FLSA exemption litigation. But, it’s hard to know how much this will affect FLSA case outcomes, because it’s unclear how much the “narrowly-read FLSA exemptions” rule had affected FLSA case outcomes in any event, that is, how often that rule operated as makeweight versus a genuine tie-breaker.
More puzzling: The Court could have easily sidestepped the issue by saying that, given the strength of all the other reasons to read § 213(b)(10)(A) the way it did, there was, in this case, really no tie for the “narrowly-read FLSA exemptions” rule to break. Instead, the Court’s majority seems to have wanted to overrule this prior FLSA precedent but without expressly saying that it was directly overruling it as precedent. The mystery is which Justice(s) in the Encino majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) wanted this in the opinion, and why.
Tuesday, March 20, 2018
On March 5, 2018, the U.S. Department of Labor announced that settlements totaling $13.9 million and covering over 2,400 workers with four Chinese contractors building the Imperial Pacific casino in Saipan. Many of these workers paid $6,000 or more to labor brokers in China, incurring significant debts with high interest rates, based on false promises of high-paying jobs in the United States. Instead, upon arriving in Saipan, the workers were stripped of their passports, forced to work long hours under dangerous conditions, and paid below minimum wage. OSHA also imposed significant fines against these contractors and the Department of Justice prosecuted several managers of these companies. News of the settlement was published by numerous media outlets, such as the Associated Press, New York Times, Washington Post, and South China Morning Post, and included a quote from Aaron Halegua, a lawyer and NYU research fellow who assisted the workers in this process and has written about the situation in Saipan elsewhere. Aaron discussed the importance of the settlement and necessary measures to prevent similar abuses from happening again. Specifically, he recommended that the casino, at a minimum, require contractors to purchase surety bonds, train workers about their rights, and hire a third-party monitor to oversee safety and labor conditions. One of the challenges will be distributing the settlement monies as almost all of the workers are now back in China.
Wednesday, March 7, 2018
The US Department of Labor (DOL) unveiled yesterday a new six-month pilot program to encourage employer compliance with the Fair Labor Standards Act. Under the Payroll Audit Independent Determination program (PAID), DOL would cover any back pay employers owed to workers under FLSA (wages owed under FLSA’s minimum wage or overtime provisions). In exchange, the employees would release any of FLSA claims for those violations, and employers would agree to self-auditing procedures for their pay practices. See here, the PAID website here, along with mixed reactions reported here.
One DOL-touted benefit of PAID: Participating employers won’t have to pay FLSA “liquidated damages or civil monetary penalties” so long as those employers “proactively work with WHD to fix and resolve the compensation practices at issue.” DOL won’t make them and, it seems, employees would at least release the employer from any liquidated damages otherwise owed under FLSA for the “identified violations” and relevant time period.
This matters. An employer that violates FLSA is on the hook not just for the wages it should have paid but didn’t (back pay) but also “an additional equal amount as liquidated damages,” 29 U.S.C. § 216(b), unless the employer can show that it’d acted “in good faith” and had “reasonable grounds for believing that his act or omission” didn’t violate FLSA, 29 U.S.C. § 260. So, if a worker is owed $40 in unpaid wages, she may recover up to $80, that is, the $40 in unpaid wages plus and the “additional equal amount” (another $40, the “liquidated damages”).
The FLSA liquidated damages provision isn’t just a damages multiplier. Rather, according to the US Supreme Court, it refers a separate item of compensatory damages: the loss that results because the employer didn’t pay the owed wages on time. Such as loss is real, especially where the worker needs the wages paid on time to maintain a minimal standard of living, but Congress thought that type of loss “too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Savings Bank v. v. O’Neil, 324 U.S. 697, 707-08 (1945).
Accordingly, the employer who gets PAID stands to save up to double–not just the back pay they’d owe the employee, but also the liquidated damages they’d also pay, in cases where the employee would otherwise sue and win. Since FLSA has a fee-shifting statute, employers stands to save more still in such cases. (Even more still if employers fear a FLSA hot-goods injunction. More on that here.) By the same token, however, employees who sign FLSA releases under PAID stand to give up any liquidated damages award, that is, up to half of what they’d recover if they sue and win. DOL’s view: Under PAID, employees will get all their owed back wages “faster” than if they had to sue, and “without having to pay any litigation expenses or attorneys’ fees.”
Now, a puzzle: How would an employer getting PAID fare under parallel State wage and hour law? Like FLSA, many States have wage and hour laws with liquidated damages provisions. See, e.g., Cal.Labor Code § 1194.2; Md. Labor and Employment Code § 3-427(a)(2); W. Va. Code § 21-5B-4(a). In States where the employer’s acts or omissions violated both FLSA and a State’s wage and hour law, would the employee’s release under PAID cover only any FLSA claim or any and all legal claims (including State law claims) arising from the employer’s underpayment? In some States and localities, this matters, because the minimum wage and overtime provisions are more generous there. This issue matters less in, for example, the five States with no State minimum wage.
Wednesday, February 21, 2018
Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be likeable, it is clear that not negotiating has long-term detrimental effects. The third myth, based on the limited assumption that a good negotiator must be assertive, is that women cannot negotiate as well as men. However, the most effective negotiators are not just assertive, but also empathetic, flexible, socially intuitive, and ethical. Women can and do possess these negotiation skills. This article concludes by proposing an action plan which provides advice on how women can become more effective negotiators and identifies structural changes that might encourage negotiation and reduce the gender pay gap.
Tuesday, February 20, 2018
From Marianne Levine, Behind the Minimum Wage Fight, a Sweeping Failure to Enforce the Law, Politico 2/18/18:
As Democrats make raising the minimum wage a centerpiece of their 2018 campaigns, and Republicans call for states to handle the issue, both are missing an important problem: Wage laws are poorly enforced, with workers often unable to recover back pay even after the government rules in their favor.
That’s the conclusion of a nine-month investigation by POLITICO, which found that workers are so lightly protected that six states have no investigators to handle minimum-wage violations, while 26 additional states have fewer than 10 investigators. Given the widespread nature of wage theft and the dearth of resources to combat it, most cases go unreported. Thus, an estimated $15 billion in desperately needed income for workers with lowest wages goes instead into the pockets of shady bosses.
But even those workers who are able to brave the system and win — to get states to order their bosses to pay them what they’re owed -- confront a further barrier: Fully 41 percent of the wages that employers are ordered to pay back to their workers aren’t recovered, according to a POLITICO survey of 15 states.
That’s partly because, in addition to lacking resources, states lack the tools to go after the landscaping firms, restaurants, cleaning companies and other employers that shed one corporate skin for another, changing names while essentially continuing the same businesses — often to evade orders to pay back their workers.
Thursday, February 15, 2018
U.S. workers are increasingly finding it difficult to escape from work. Through their smartphones, email, and social media, work tethers them to their workstations well after the work day has ended. Whether at home or in transit, employers are asking or requiring employees to complete assignments, tasks, and projects outside of working hours. This practice has a profound detrimental impact on employee privacy and autonomy, safety and health, productivity and compensation, and rest and leisure. France and Germany have responded to this emerging workplace issue by taking different legal approaches to providing their employees a right to disconnect from the workplace. Although both the French legislative and German corporate self-regulation models have their advantages, this paper puts forth a hybrid approach using existing U.S. safety and health law under OSHA to respond to this employee disconnection problem. Initially under the general duty of clause of OSHA, and then under OSHA permanent standards and variances, this article provides a uniquely American approach to establishing an employee right to disconnect from work.
Friday, January 12, 2018
I posted yesterday on the conference earlier this week on minimum wage laws in developing countries. Daniel Helman (Ton Duc Thang University, Labor Relations & Trade Unions) circulated a follow-up email making a point about minimum wage laws I hadn't considered before. I suspect his argument has equal force when a single state or municipality in the U.S. raises its minimum wage significantly above (extraordinarily low, by any historical standard) national base rate. Here is Daniel's argument:
During my recent visits to Australia and Singapore (in December) I spent some time networking with academic colleagues. In both places people were talking about how Vietnam was projected to be the most important economy in SE Asia in twenty years. One of the key indicators of this projection is the rate of rise of wages here in Vietnam. The rapid wage increase is seen as a reflection of economic strength and an indicator of future economic growth.
Thus the trend in wage increases signals to the rest of the world that the economy of Vietnam is becoming increasingly robust. Such a signal leads to foreign investment at a consumer level—as international companies aim to establish an economic presence here in Vietnam. They do this now so that in the future, as the domestic demand is large, they will have a well-established presence and will be able to command a large share of the market in their sector.
Of course Vietnam has other features that influence its future success, such as a single-party system which allows for more focused and beneficial policies to be implemented more easily than in other systems; and a culture that is perhaps more focused on its own success after so much hardship for so many decades; and other intangibles, such as respect for the role of work and effort in the family. But the increase in wages—based in large part on the increases in the minimum wage over the past several years, has done a great deal to place Vietnam very high in its economic forecast. Such a signal leads to future investment, and these facts can form a strategy to (rightly) promote future increases in the minimum wage here so that it will reach the level of a living wage sufficient to meet more basic needs. It is similar to the point [ILO Vietnam Country Director] Dr. Chang-Hee Lee made on the first day [of the conference], about how increases in the minimum wage increase demand.
Obviously the totality of pathways and feedbacks are more complicated than what I have written above, but the essential point is that the rate of increase in wages is a signal of the growing robustness of the domestic market; and that this signal is read by global economic stakeholders and influences their behavior.
Thursday, January 11, 2018
Earlier this week I participated in a conference on minimum wage laws in Viet Nam (and SE Asia generally) at the Tôn Đức Thắng University Labor College in Ho Chi Minh City (Saigon), Viet Nam. International wage & hour law is not my specialty, so it was a pleasure to learn from the many law faculty, workers' advocates, employer representatives, and even even the former head of the VGCL (the government-controlled unified trade union) attending. My key take-aways:
The traditional neoclassical economic argument that increasing the minimum wage decreases employment may have even less salience in developing countries than in developed ones. Even in the countries like Viet Nam that produce a large quantity of the clothing, electronics, and other goods consumed in the West, the vast majority of workers still work in services and manufacturing for the local economy. Raising minimum wages can increase both worker productivity and domestic consumption, which can have a positive effect on economic growth and employment and thus offset potential negative effects.
The risk of capital flight in response to raising the minimum wage is overstated. A MNC that has built a factory here is unlikely to relocate it because of a requirement that it spend an extra few cents per hour on wages. It's less clear how increases in minimum wage laws might influence future capital allocation decisions.
- Companies looking to maximize profits by minimizing labor costs are barking up the wrong tree -- they should instead be looking to cut supply-chain costs. The pair of Nikes we spend $150 for in the West costs about $12 to make, of which $2-3 is labor costs. The $138 difference between retail price and cost-of-production is where companies should be looking if they want to squeeze further profits. Nike could slash those costs by vertically integrating, which would have the salutary effect of making Nike directly and obviously responsible for the workers who make the company's shoes. The fact that the Nikes of the world aren't doing this is telling.
- The proportion of workers in the informal economy has a huge impact on the efficacy of minimum wage laws. Minimum wage laws may actually exacerbate wage inequality in countries where a large proportion of workers are off-the-books.
- Minimum wage laws can perform an important signaling effect in developing countries. I'll add a guest post on this topic shortly.
Sunday, November 12, 2017
Shu-Yi Oei and Diane Ring (both Boston College) have just posted on Tax Prof Blog The Senate Tax Bill and the Battles Over Worker Classification. Their post is extensive and detailed and well worth a full read. Here's a quick summary; the take-away is in bold at the bottom:
Senate Republicans released their version of tax reform legislation on Thursday, November 9. The legislative language is not available yet, but the Description of the Chairman’s Mark (prepared by the Joint Committee on Taxation) suggests that one of the key provisions in the bill will clarify the treatment of workers as independent contractors by providing a safe harbor that guarantees such treatment. The JCT-prepared description tracks the contents of the so-called “NEW GIG Act” proposed legislations introduced by Congressman Tom Rice (R-S.C.) in the House and Senator John Thune (R-S.D.) in the Senate in October and July 2017, respectively. “NEW GIG” is short for the “New Economy Works to Guarantee Independence and Growth (NEW GIG) Act.” But notably, and as we further discuss below, the legislation is not limited in its application to gig or sharing economy workers.
Assuming the Senate Bill adopts the basic parameters of the NEW GIG proposed legislation — which looks to be the case based on the JCT-prepared description — we have some concerns. In brief, this legislation purports to simply “clarify” the treatment of workers as independent contractors and to make life easier for workers by introducing a new 1099 reporting threshold and a new withholding obligation. But the legislation carries potentially important ramifications for broader fights over worker classification that are raging in the labor and employment law area. Despite possibly alleviating tax-related confusion and reducing the likelihood of under-withholding, we worry that there are quite a few underappreciated non-tax hazards for workers if these provisions go through.
The legislation (assuming the Senate Bill more or less tracks the NEW GIG Act language) purports to achieve such “clarification” of worker classification status by [, among other things, introducing] a safe harbor “which, if satisfied, would ensure that the worker (service provider) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer.”...
At first blush, this legislation looks like it does good things for workers by clarifying their tax treatment, providing peace of mind, lowering previously unclear information reporting thresholds, and solving some of their estimated tax/mis-withholding issues.... The problem is that it’s not just about tax....
Our worry is that tax clarification of independent contractor status is a strategic step designed to win this broader (non-tax) regulatory war over worker classification. The risk is that “clarifying” the independent contractor status of workers for tax purposes through the introduction of an easy-to-meet safe harbor risks influencing and tilting the worker classification battle that is occurring in labor and employment law. While determinations of independent contractor status in other areas are theoretically independent from the tax determination, clarification on the tax side may help create presumptions elsewhere that independent contractor classification is normatively correct. While the precise legal tests governing worker classification differ across areas — we have, for example, the common law agency test, the ABC test, the economic realities test, and the IRS 20-factor test — the tests have elements in common: They all examine to some degree the nature of the relationship between the business and the worker, and they all pay attention to the control exercised by the business over the worker. If one field decides the classification question a certain way, there is likely to be some reverberation for the analysis in other fields.
Our specific concern is that “forced clarity” in tax can tilt the direction of the worker classification debate in a way desired by the platform businesses, industry lobbyists and the legislation’s supporters....
Monday, August 14, 2017
Charlotte Alexander (Georgia State) and Liz Tippett (Oregon) have just posted on SSRN their article (forthcoming Missouri L. Rev.) The Hacking of Employment Law. Here's the abstract of this timely (pun intended!) article:
Employers can use software in ways that erode employment law, through noncompliance and avoidance. The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship. Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin. Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law. However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided. Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market. Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few. The result is a weakened employment law regime, where legal rules struggle to keep up with employers’ software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach. We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.
Thursday, March 30, 2017
The White House just announced that Ivanka Trump will no longer be a White House volunteer or "informal advisor," but will instead be an "unpaid employee." The move to employee status is a positive development, as it ensures that the usual ethical rules that apply to White House workers will apply to her as well. It's also understandable that, given her personal wealth, she would eschew a salary.
This does raise a question for the labor & employment law geeks among us: what about the FLSA's minimum wage? Normally, the FLSA would apply to federal employees, who can't agree to a salary below the minimum. However, I believe that there is a process for seeking a waiver--in this case, likely from the Office of Personnel Management, which enforces the FLSA for federal employees--but there's no mention of whether a waiver is currently being sought (or whether I'm even right about this).
If any readers have more insight, please add a comment.
Friday, March 10, 2017
Last week's The Economist ran a couple of stories on how "gender budgeting" can help persuade governments to pay more than lip service to women's rights. Below is an excerpt from the summary Making Women Count; an extended-play version is Tax is a Feminist Issue: Why National Budgets Need to Take Gender into Account.
... [S]ome policymakers have embraced a technique called gender budgeting. It not only promises to do a lot of good for women, but carries a lesson for advocates of any cause: the way to a government’s heart is through its pocket.
At its simplest, gender budgeting sets out to quantify how policies affect women and men differently. That seemingly trivial step converts exhortation about treating women fairly into the coin of government: costs and benefits, and investments and returns. You don’t have to be a feminist to recognise, as Austria did, that the numbers show how lowering income tax on second earners will encourage women to join the labour force, boosting growth and tax revenues. Or that cuts to programmes designed to reduce domestic violence would be a false economy, because they would cost so much in medical treatment and lost workdays.
Partly because South Korea invested little in social care, women had to choose between having children, which lowers labour-force participation, or remaining childless, which reduces the country’s fertility rate. Gender budgeting showed how, with an ageing population, the country gained from spending on care. Rwanda found that investment in clean water not only curbed disease but also freed up girls, who used to fetch the stuff, to go to school. Ample research confirms that leaving half a country’s people behind is bad for growth. Violence against women; failing to educate girls properly; unequal pay and access to jobs: all take an economic toll.
Wednesday, January 18, 2017
Elizabeth Tippett (Oregon), Charlotte S. Alexander (Georgia State), and Zev J. Eigen (Littler) have just published their explosive article When Timekeeping Software Undermines Compliance (19 Yale J.L. & Tech. 1 ). When I say "explosive" I am not exaggerating one iota. Their article exposes how choices and algorithms deliberately built into timekeeping systems cheat workers out of time worked or overtime owed. I am reproducing the abstract below, but strongly encourage everyone to read the full article. I expect this article will spawn loads of high-dollar litigation; more optimistically, I would hope the article will encourage software firms and their corporate clients to be far more diligent in complying with wage & hour law.
Here's the abstract:
Electronic timekeeping is a ubiquitous feature of the modern workplace. Time and attendance software enables employers to record employees’ hours worked, breaks taken, and related data to determine compensation. Sometimes this software also undermines wage and hour law, allowing bad actor employers more readily to manipulate employee time cards, set up automatic default rules that shave hours from employees’ paychecks, and disguise edits to records of wages and hours. Software could enable transparency, but when it serves to obfuscate instead, it misses an opportunity to reduce costly legal risk for employers and protect employee rights. This article examines thirteen commonly used timekeeping programs to expose the ways in which software innovation can erode compliance. Drawing on insights from the field of behavioral compliance, we explain how the software presents subtle situational cues that can encourage and legitimize wage theft. We also examine gaps in the Fair Labor Standards Act’s recordkeeping rules – unchanged since the 1980s – that have created a regulatory vacuum in which timekeeping software has developed. Finally, we propose a series of reforms to those recordkeeping requirements that would better regulate timekeeping data and software systems and encourage wage and hour law compliance across workplaces.
Tuesday, November 22, 2016
District Court Enjoins New Overtime Salary Threshold (and Basically Holds that Salary-Basis Test is Unlawful)
Today, the Eastern District of Texas just issued a nationwide preliminary injunction barring application of the Department of Labor's (DOL) new minimum salary threshold for overtime exclusions under the Fair Labor Standards Act.
The decision is stunning. The court relies almost exclusively on dictionary definitions of the terms of the FLSA's overtime provisions. In so doing it states repeatedly that the FLSA's statement that the DOL may define and delimit the meaning of "administrative, exccutive, and professional" does not include the authority to set minimum salary thresholds. According to the court, the DOL can only update the duties. Thus, if an employee meets the duties of, say, an administrative employee, they should be excluded no matter their salary. However, perhaps recognizing that this line of reasoning runs contrary to decades of overtime law, the court drops a footnote saying it wasn't questioning the salary-basis test generally -- the court was addressing only the new salary threshold was under issue. But as far as I can tell, the only logical conclusion from the court's reasoning is that the salary-basis test in general is illegal (if someone sees a way around this in the decision, definitely let me know). In other words, if this decision stands, I think the only logical conclusion is that there will no longer be a salary-basis test for overtime exemptions.
Wednesday, October 5, 2016
How much of your wages would you be willing to give up for more control over what days and how much you work? In a new working paper, Alexandre Mas and Amanda Pallais, “Valuing Alternative Work Arrangements,” NBER Working Paper No. 22708 (Sept. 2016), the authors conducted a field experiment to find out. Here’s the abstract:
We use a field experiment to study how workers value alternative work arrangements. During the application process to staff a national call center, we randomly offered applicants choices between traditional M-F 9 am – 5 pm office positions and alternatives. These alternatives include flexible scheduling, working from home, and positions that give the employer discretion over scheduling. We randomly varied the wage difference between the traditional option and the alternative, allowing us to estimate the entire distribution of willingness to pay (WTP) for these alternatives. We validate our results using a nationally-representative survey. The great majority of workers are not willing to pay for flexible scheduling relative to a traditional schedule: either the ability to choose the days and times of work or the number of hours they work. However, the average worker is willing to give up 20% of wages to avoid a schedule set by an employer on a week’s notice. This largely represents workers’ aversion to evening and weekend work, not scheduling unpredictability. Traditional M-F 9 am – 5 pm schedules are preferred by most job seekers. Despite the fact that the average worker isn’t willing to pay for scheduling flexibility, a tail of workers with high WTP allows for sizable compensating differentials. Of the worker friendly options we test, workers are willing to pay the most (8% of wages) for the option of working from home. Women, particularly those with young children, have higher WTP for work from home and to avoid employer scheduling discretion. They are slightly more likely to be in jobs with these amenities, but the differences are not large enough to explain any wage gaps.
Puzzled by the low willingness to pay for a flexible number-of-hours option, the authors posed the same choice to Mechanical Turk workers, and asked them to explain their choice. The Mechanical Turk workers are more likely to prefer flexibility. Of those who preferred the M-F 9 am - 5 pm option, they “typically mentioned that they liked having someone else set the schedule and tell them how many hours they should work. They expressed concern that if they could choose it would be difficult to force themselves to work their desired number of hours.” (p. 14).
Wednesday, September 21, 2016
Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:
In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.
"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."
Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.
"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."
In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.
"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.
The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.
Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.
Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.
September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)
Friday, August 26, 2016
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Tuesday, August 16, 2016
Illinois became the sixth state to adopt a Domestic Workers Bill of Rights when Governor Rauner signed the bill last Friday. Domestic workers there will be covered by the state minimum wage laws, guaranteed rest periods, meals, and one day off a week, protected from discrimination including harassment, and protected from being paid "an oppressive and unreasonable wage." These protections are especially important because domestic workers are excluded from federal protections under the FLSA, the NLRA, OSHA, and other laws. Moreover working conditions for childcare workers contribute to poverty and may impair the care those workers can give. According to the National Domestic Workers Alliance, Illinois joins New York, Hawaii, California, Massachusetts, and Oregon. Connecticut also has extended some protections to domestic workers, although not passed the full-blown model bill of rights. The Illinois law will take effect Jan. 1, 2017.