Monday, February 22, 2016
Miriam Cherry (SLU) just posted on SSRN her article (forthcoming Comparative Labor Law & Policy Journal) Beyond Misclassification: The Digital Transformation of Work. Here's the abstract:
The first part of this article provides a brief litigation update on various worker lawsuits within the gig economy. While the O’Connor v. Uber case has received the lion’s share of attention and analysis, similar lawsuits on labor standards have been filed against other on-demand platforms. Analysis of the ongoing litigation reveals several important themes, including an emphasis on the labor law of California. The second part of the article shifts from the doctrinal issues around misclassification to look at broader trends, arguing that we are currently experiencing a far-reaching digital transformation of work. The changes include the growth of automatic management and a move toward ever more precarious work. To the extent that technology can help us realize an increase in skilled knowledge work that is a positive goal. It is questionable, however, if present forms of crowdwork extend that framework. In fact, some forms of the new crowdwork seem to be a throwbacks to a Taylorist deskilling of the industrial process, but without the loyalty and job security. These results are not inevitable, but we need to pay attention to them if we hope to arrest the race to bottom in labor standards online.
Sunday, January 17, 2016
A pretty interesting, and pro-employee, case out of the Eighth Circuit. Cuellar-Aguilar v. Deggeller Attractions, Inc. reversed a district court's dismissal of two claims against the employer -- a traveling carnival. One was that it failed to pay the workers, who were in the country on H-2B visas, the prevailing wage rate and the second was that it misreported on federal tax forms the wages it did pay.
The first claim was treated as a state contract claim and, although the workers lacked a formal contract so providing, federal regulations conditioned issuance of visas on the employer's paying the prevailing US wage rate for the region. For the court, hiring foreign workers was sufficient to find a contract under Arkansas law and the terms of that contract can be influenced by the law in effect at the time of formation, in this case the prevailing wage rate. The court even cited an Arkansas case that suggested that such background laws might trump an express agreement to the contrary, although that seems doubtful from a pure contracts perspective.
Even more interesting -- because potentially more broadly applicable -- was the second claim that the employer had underreported their income, presumably to reduce business and FICA liabilities.
The tax laws, 20 USC 7434, provide a cause of action against "any person willfully files a fraudulent information return with respect to payments purported to be made to any other person," and set liability as " an amount equal to the greater of $ 5,000 or the sum of actual damages," costs and attorneys fees (emphasis added).
While plaintiff apparently did not argue any actual harm, the court found a claim stated for the statutory damages. A little research suggests that this is a growing theory: although the cases asserting such claims are still relatively few, most have arisen in the last few years. And, while the claim in Deggeller was that the employer sought to avoid FICA by reporting less than it in fact paid, other 7434 suits have challenged the employer's issuance of a 1099 instead of a W-2, thus suggesting that the employee/independent contractor distinction can arise in yet another civil liability setting.
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 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 | Permalink | Comments (0)
Thursday, October 1, 2015
The Uber litigation (O’Connor v. Uber Technologies) and its progeny have inspired many to tackle the employee-independent contractor puzzle as applied to the so-called “on-demand” economy. We’ve highlighted some of this commentary before (e.g., Rogers 2015). Here are two recent entries, both focusing on the role of worker flexibility:
Benjamin Means and Joseph Seiner, “Navigating the Uber Economy” (here, forthcoming U.C. Davis Law Review), argue that worker classification under the Fair Labor Standards Act, among other laws, should turn primarily on “how much flexibility” the worker has in the work relationship: “Those who can choose the time, place and manner of the work they perform are more independent than those who must accommodate themselves to a business owner's schedule.” Means and Seiner criticize the Department of Labor’s recent Administrator’s Interpretation -- on who counts as an “employee” under the Fair Labor Standards Act—for not affording enough weight to worker flexibility and, if courts follow it, making it “nearly impossible for on-demand businesses to argue that their workers are independent contractors.” In today’s economy, worker flexibility deserves a lot more weight than other factors: “[W]hen the worker has significant discretion to decide when to work, the worker has, as a matter of economic reality, a greater degree of independence than a worker who must abide by a schedule set by the employer.”
Meanwhile, over at onLabor, Ben Sachs argues against the claim that “if Uber drivers were to be deemed employees – rather than independent contractors – the drivers would lose the flexibility that defines their jobs.” This view, he writes, “gets the causal arrows backward,” because a judicial finding that a worker is or is not an “employee” is the result, not the cause, of how much control or flexibility a worker experiences on the job. To be sure, it’s possible that, in response to a legal determination that their drivers are “employees”, Uber might decide to provide their drivers with less flexibility. Sachs calls this “entirely speculative" and "contrary to everything Uber has said about its business model.” Besides, that result would be “based on” Uber’s strategic decision--a choice--and not "the result of a legal determination of employee status.” For prior commentary making this point, see here.
Tuesday, September 29, 2015
The most recent issue of the journal Industrial Relations -- a special issue in honor of the 75th anniversary of the Fair Labor Standards Act--includes these papers on pay secrecy, reporting pay, and proposed amendments to the Fair Labor Standards Act’s overtime provisions:
In “Pay Secrecy and the Gender Wage Gap in the United States,” Marlene Kim studies the relationship between the gender pay gap and pay secrecy statutes. From the abstract:
Using a difference-in-differences fixed-effects human-capital wage regression, I find that women with higher education levels who live in states that have outlawed pay secrecy have higher earnings, and that the wage gap is consequently reduced. State bans on pay secrecy and federal legislation to amend the FLSA to allow workers to share information about their wages may improve the gender wage gap, especially among women with college or graduate degrees.
In “Underwork, Work-Hour Insecurity, and A New Approach to Wage and Hour Regulation,” Charlotte Alexander and Anna Haley-Lock discuss the reporting pay guarantee as a way to address fluctuating and unstable work schedules. From the abstract:
We begin by examining the problem of work-hour insecurity, particularly employers’ practice of sending workers home early from scheduled shifts. We then move to a detailed assessment of state laws that require reporting pay, as well as reporting pay guarantees in union contracts and private-employer practices that attempt to address the problem of work-hour insecurity. We conclude by considering paths for strengthening such protections in law.
In “FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework,” Lonnie Golden models and predicts the effects of recently proposed FLSA amendments on workweek and overtime. From the abstract:
The model contrasts allowing compensatory time for overtime pay for private nonexempt employees to “rights to request” reduced hours. Hours demanded are likely to rise for workers who request comp time, undermining the intention of family-friendliness and alleviating overemployment, unless accompanied by offsetting policies that would prevent the denied use or forced use of comp time and that resurrect some monetary deterrent effect. A unique survey shows that the preference for time over money and comp time is relatively more prevalent among exempt, long hours and women workers; thus, worker welfare is likely better served if comp time were incorporated into an individualized, employee-initiated right to request.
Friday, August 14, 2015
I'm in Hanoi today for the annual LawAsia Employment Conference, and was intrigued by Ujin Ahn's description of the "wage peak system" legislation currently pending in South Korea. Whereas wages tend to increase steadily over a worker's lifetime, this proposed legislation would change that so a worker's wages would rise steadily from early career until retirement minus c. 5-7 years, peak, and then fall until retirement. The premise, as argued by its government and employer proponents, is that this would (a) align wages with actual productivity, (b) thereby increasing job security for older workers, and (c) it would free up wage-money that then could be used to hire more younger workers. The system is opposed by employees/unions as just a pretense to decrease real wages -- they argue that the wage-savings will be retained by employers as excess profits. Calculating when a worker's salary should peak is possible because the country has a mandatory retirement law.
I had never heard of a "wage peak system", and have no idea whether it exists elsewhere.
Wednesday, July 15, 2015
How do you know whether a worker counts as an “employee,” not an independent contractor, under the Fair Labor Standards Act (FLSA)? On this often-litigated issue, the US Department of Labor has released Administrator’s Interpretation No. 2015-1, dated July 15, 2015, in order to help “the regulated community in classifying workers and ultimately in curtailing misclassification.”
Much of this fifteen-page document covers familiar ground. DOL stresses that FLSA defines “employ” broadly as including “to suffer or permit to work,” 29 U.S.C. § 203(g); that courts use an expansive multi-factor “economic realities” test – not the traditional common-law test—to decide whether workers count as “employees” under FLSA; and that, given both, “most workers are employees under the FLSA.”
DOL also discusses each of the typical factors of the FLSA “economic realities” test, emphasizing throughout that each factor is not a necessary condition but just a guide: “Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”
For example, for the “control” factor of “economic realities” test—itself not dispositive—DOL writes:
Technological advances and enhanced monitoring mechanisms may encourage companies to engage workers not as employees yet maintain stringent control over aspects of the workers’ jobs, from their schedules, to the way that they dress, to the tasks that they carry out. Some employers assert that the control that they exercise over workers is due to the nature of their business, regulatory requirements, or the desire to ensure that their customers are satisfied. However, control exercised over a worker, even for any or all of those reasons, still indicates that the worker is an employee.
Though not expressly addressing them, this view—and DOL’s guidance as a whole—may matter to the recent debates about employee/independent contractor status and the so-called sharing economy.
Wednesday, July 1, 2015
In recent legal challenges, Uber, Lyft, and other so-called “ride-sharing” companies have argued that the drivers who contract with them are independent contractors, not their employees, for purposes of the Fair Labor Standards Act (FLSA) and other laws. Their argument: We’re each mostly a technology platform for matching drivers and riders, not a transportation company. This argument has not persuaded. See, e.g., O’Connor v. Uber Techs. Inc., No. 3:13-CV-03826, 2015 WL 1069092, at *6-7 (N.D. Cal., March 11, 2015) (“Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a “technology company” because it uses CB radios to dispatch taxi cabs . . . Uber only makes money if its drivers actually transport passengers.”).
Yet, even if they lose the employee/independent-contractor fight, this comparison to taxicab companies might well cut partly in their favor down the road, because section 13(b)(17) of FLSA exempts from its overtime protections “any driver employed by an employer engaged in the business of operating taxicabs.” 29 U.S.C. § 213(b)(17). Some State wage and hour laws do something similar. E.g., N.Y. Labor Law § 651(5) (defining “employee” to exclude anyone employed “as a driver engaged in operating a taxicab”); 43 Penn. Stat. § 333.105(b) (exempting from State overtime requirements “[a]ny driver employed by an employer engaged in the business of operating taxicabs”); Calif. Industrial Wage Commission Order No. 9-2001, § 3(M) (2014) (“provisions of this section [on overtime] shall not apply to taxicab drivers”).
So, is Uber, Lyft, or another “ride-sharing” company engaged in the “business of operating taxicabs” under FLSA § 13(b)(17)? The U.S. Department of Labor’s Field Operations Handbook (1999 ed.) (DOL-FOH), chapter 24, says this:
24h01 “Business of operating taxicabs.” The taxicab business consists normally of common carrier transportation in small motor vehicles of persons and such property as they may carry with them to any requested destination in the community. The business operates without fixed routes or contracts for recurrent transportation. It serves the miscellaneous and predominantly local transportation need of the community. It may include such occasional and unscheduled trips to or from transportation terminals as the individual passengers may request, and may include stands at the transportation terminals as well as at other places where numerous demands for taxicab transportation may be expected.
DOL adopted this view in August 1974. See also DOL-FOH 24h03(a)(4) (“airport limousine service” as example of work that falls outside this exemption).
Since then, some judges have deferred to the DOL Handbook view in deciding whether a defendant-employer—often those that advertise as a limousine service—falls within this exemption. E.g., Cariani v. D.L.C. Limousine Services, 363 F. Supp. 2d 637, 645 (S.D.N.Y. 2005); Arena v. Plandome Taxi Inc., 2014 WL 1427907, at *15 (E.D.N.Y., April 14, 2014). In contrast, in Rossi v. Associated Limousine Services, 438 F. Supp. 2d 1354, 1363 (S.D. Fla. 2006), the judge emphasized that while the defendant there let its customers “determine the destination of the vehicle,” it mattered more that it “advertises itself as a limousine company”; it was “not licensed to provide taxicab transportation”; its drivers “do not cruise for customers and cannot be hailed down by customers,” but prearrange transport; and it sets fares in advance based on a flat or hourly rate, not based on a taximeter.
How does all this apply to Uber and other “ride-sharing” companies? In some ways, they seem like a “taxicab” business described in DOL’s Handbook—their drivers provide mostly local transportation, without fixed routes, and they largely go where the customer tells them to go. In other respects, it’s not so clear. When you use the Uber app, is it like “hailing” or “flagging down” a taxicab on the fly? Or is it more like prearranging transport, because Uber drivers are not supposed to pick up customers who don’t use the app to set up the ride? See Opinion Letter, Wage and Hour Division, U.S. DOL, 1998 WL 852774, at *1 (April 17, 1998) (“The ordinary meaning of [“taxicabs”] contemplates vehicles that are offered for hire to the general public on city streets. While it is not necessary that all the transportation be provided to persons who ‘flag down’ the vehicles, that is an important aspect of the common meaning of ‘taxicab which your client's vehicles do not possess.”).
In grappling with all this, it might matter that FLSA’s exemptions are supposed to be read narrowly, see Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959), and consistent with their purpose. So, what’s that purpose? Actually, it’s not at all clear. One court searched the FLSA legislative history and couldn’t find “any explicit explanation for the taxicab exemption.” Arena, 2014 WL 1427907, at *13. Perhaps Congress exempted the taxicab business, because back then it was hard for employers to verify how many hours a driver spent looking for customers to pick up. If so, that’s less of a problem now, because ride-sharing companies like Uber and Lyft have the technology to monitor precisely when a driver makes himself available for rides (via the ride-sharing app) and how long an actual ride takes from pick-up to drop-off.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Saturday, January 10, 2015
A unanimous California Supreme Court clarified that on-call employees required to spend time at their worksites and under the employer’s control are entitled to compensation for all hours, including sleep time. In addition, the Court unequivocally held that state wage and hour law does not implicitly incorporate the federal standard unless state law and the wage orders contain an express exemption similar to that found in federal law. The Women's Employment Rights Clinic of Golden Gate University weighed in as amicus on behalf of low-wage worker advocates and Prof. Hina Shah argued before the Cal. Supreme Court. The LA Times ran a story on this dramatic development.
Wednesday, December 10, 2014
The Los Angeles Times has published a series of stories—“Product of Mexico,” by reporter Richard Marosi, with photos and video by Don Bartletti—on the harsh conditions faced by farm laborers in Mexico who work to supply tomatoes, cucumbers, and other fruits and vegetables for sale in US stores. Parts one and two of this four-part series are here and here.
Marosi and Barletti spent eighteen months traveling across nine Mexican states. They observed conditions at thirty farm labor camps, and interviewed “hundreds” of workers. They found that many farm labors “are essentially trapped for months at a time in rat-infested camps, often without beds and sometimes without functioning toilets or a reliable water supply.” Some growers withhold weekly wages (in violation of Mexican law) “to prevent workers from leaving during peak harvest periods.” And farm workers “often go deep in debt paying inflated prices for necessities at company stores.” Some go hungry. Others face the threat of violence.
They also conclude that although many US companies have “social responsibility guidelines” that preclude buying goods from suppliers that do not comply with minimum labor standards, those commitments are poorly enforced. That’s consistent with the general conclusion of some (e.g., Locke 2013) that, given complex cross-national supply chains, such private voluntary agreements are quite limited in their ability to ensure minimum labor standards.
Saturday, December 6, 2014
A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Stephen Lee (Irvine) has just posted on SSRN his essay (forthcoming Irvine L. Rev.) Policing Wage Theft in the Day Labor Market. The toic is one with which -- until I read his essay -- I was unfamiliar. Here's an excerpt of his abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft.... In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft.... My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 19, 2014
Jonathan Harkavy (Patterson Harkvay) sends word of Martin v. Wood, No. 13-2283 (4th Cir. Nov. 18, 2014), in which the Fourth Circuit dismissed on Eleventh Amendment grounds an FLSA suit bright by an employee against supervisors in their individual capacities for allegedly improperly refusing to authorize overtime for hours worked in excess of 40 per week.
Monday, November 10, 2014
More evidence of the adverse health effects of wage theft, this time from a case study of San Francisco’s Chinatown: Meredith Minkler et al., “Wage Theft as a Neglected Public Health Problem: An Overview and Case Study From San Francisco’s Chinatown District,” American Journal of Public Health 104(6) (June 2014): 1010-1020. Here’s the abstract:
Wage theft, or nonpayment of wages to which workers are legally entitled, is a major contributor to low income, which in turn has adverse health effects. We describe a participatory research study of wage theft among immigrant Chinatown restaurant workers. We conducted surveys of 433 workers, and developed and used a health department observational tool in 106 restaurants. Close to 60% of workers reported 1 or more forms of wage theft (e.g., receiving less than minimum wage [50%], no overtime pay [> 65%], and pay deductions when sick [42%]). Almost two thirds of restaurants lacked required minimum wage law signage. We discuss the dissemination and use of findings to help secure and enforce a wage theft ordinance, along with implications for practice.
(The paper identifies wage theft to include the employer’s failure to provide sick leave under a mandatory paid sick leave law.) Based on their findings, the study authors estimate that in 2008, the roughly 2,500 restaurant workers in Chinatown lost over $10 million in wages—over $8.5 million attributable to minimum wage violations alone.
Wednesday, October 8, 2014
As Jason previewed yesterday, the Supreme Court heard oral arguments this morning in Integrity Staffing Solutions v. Busk, a case about whether end-of-shift security screenings are compensable or non-compensable as postliminary activities under the Portal to Portal Act. The oral argument transcript is now up on the Supreme Court's website for your reading pleasure.
I've skimmed it and have just a few observations. The questions for the employer's counsel and the Solicitor General pushed them to distinguish this security process from things like closing out a cash register or showering after working with chemicals (compensable). The questions for the employees' counsel pushed for a distinction between this and the process to clock out (not compensable). The one main takeaway for me is that the concepts in this area are especially slippery. What does it mean for something to be a principal activity of one's work, for example. Is it the central thing a person is hired to do, or might it be more task focused? Does the location of the conduct matter? Does it help to think about whether the person is waiting to be engaged or engaged to wait? Everyone at the argument tried to come up with a definition, but words failed them, and examples seemed the only way to talk about the rules. Those examples were hard to generalize from, though, leading the argument in circles several times.
Ultimately, I think the decision will ultimately rest on whether a majority of the justices see this as more like clocking out or like showering off chemicals at shift's end.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Friday, August 8, 2014
In the recent debate over raising the minimum wage, an issue that’s often left out of the conversation is that of work hour insecurity. An hourly worker’s take-home pay is determined by two variables: her hourly wage and the number of hours she works. The effect of increasing the hourly wage will be blunted if the worker struggles to find sufficient hours of work. And more and more workers are struggling, particularly in service-sector jobs. Service employers like hotels, restaurants, and retail stores are increasingly adopting “just-in-time” scheduling, using sophisticated software to track customer demand and then adjusting workers’ schedules at the last minute in order to meet a pre-set ratio of labor hours to customer demand.
A recent New York Times article describes the effects of just-in-time scheduling:
- "A worker at an apparel store at Woodbury Common, an outlet mall north of New York City, said that even though some part-time employees clamored for more hours, the store had hired more part-timers and cut many workers’ hours to 10 a week from 20.
- As soon as a nurse in Illinois arrived for her scheduled 3-to-11 p.m. shift one Christmas Day, hospital officials told her to go home because the patient “census” was low. They also ordered her to remain on call for the next four hours — all unpaid.
- An employee at a specialty store in California said his 25-hour-a-week job with wildly fluctuating hours wasn’t enough to live on. But when he asked the store to schedule him between 9 a.m. and 2 p.m. so he could find a second job, the store cut him to 12 hours a week."
The Fair Labor Standards Act doesn’t regulate employers’ scheduling and staffing decisions (except in some narrow circumstances where the statute has been interpreted to require payment of wages to “on call” workers who are “engaged to wait” for work assignments), but some state laws and unions’ collective bargaining agreements do contain guaranteed pay provisions. These require employers to pay “call-in” and “send-home” pay, or a minimum number of guaranteed hours of pay when a worker is called in to work unexpectedly or sent home early. These requirements are supposed to disincentivize just-in-time scheduling. However, as I explore in a forthcoming Harvard Civil Rights-Civil Liberties Law Review article with co-authors Anna Haley-Lock and Nantiya Ruan, the laws are woefully underutilized by workers and relatively easy to work around for savvy employers.
Given the recent public interest in and support for raising the minimum wage, now is an excellent time for additional attention to the problem of work hour insecurity. In trying to end working poverty, we should be focusing on both wages and hours, and exploring possible solutions (including perhaps expanded guaranteed pay laws) to the problem of work hour insecurity.
-- Charlotte Alexander