Thursday, September 18, 2014
In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.
This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages. Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.
There are two possible incentives that courts have explored. On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization. In this view, denying rights and remedies will reduce undocumented immigration. On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ. In this view, denying rights and remedies will increase undocumented immigration.
Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.
The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”
I think that the Tennessee Appeals Court got it right. Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job. Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.
Now for the side notes:
The oral argument in the Torres case is available on the Appeals Court’s website. At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.” Mr. Wilson answers, “Wales,” and some pleasant conversation ensues. It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.
And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.” (Mr. Torres actually obtained a U visa in February 2013.) At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court. Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.
(Thanks to my colleague Sue Willey for alerting me to the Torres case.)
-- Charlotte Alexander
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, January 20, 2014
As a firm believer and advocate for employee whistleblower rights, I am pleased to welcome to the blogosphere, Whistleblower Protection Law Blog, run by Zuckerman Law (and in particular, Jason Zuckerman). The blog focuses on developments in whistleblower law from a whistleblower advocate’s perspective.
Jason has been around whistleblower law practice in a number of different capacities. He has litigated whistleblower cases in private practice for about a decade and then served as Senior Legal Advisor the Special Counsel at the U.S. Office of Special Counsel, an independent agency charged with protecting whistleblowers in the federal government. In addition, he was appointed by former Secretary of Labor Solis to serve on the Whistleblower Protection Advisory Committee, which advises and makes recommendations to the Secretary of Labor to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections.
You can find Jason's bio and publications on his website. Check out this great new blog!
Monday, December 30, 2013
For many years, Texas has been the only state that permits employers to opt out of workers compensation. Peter Rousmaniere (workers comp columnist and consultant) and Jack Roberts (former EIC of Risk & Insurance) have put together Workers' Compensation Opt-Out: The Texas Experience and the Oklahoma Proposal. It's worth checking out.
Friday, June 14, 2013
In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.
I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.
Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.
Friday, March 1, 2013
Hat Tip: Alex Long & Jody Prestia
Thursday, December 20, 2012
The Australian Federal Court has dismissed an employer's appeal and thus let stand a ruling that a woman who was injured while having sex with her boyfriend in a hotel room while on a business trip was injured "in the course of employment" and therefore is entitled to compensation. The Australian News reports:
The woman who worked for workplace health insurer Comcare, claimed for facial and psychological injuries suffered when a glass light fitting came away from the wall above the bed in her motel room as she was having sex in November 2007.
The woman in her late thirties was required to travel to a country town by her employer when the incident occured. She arranged to meet a male friend there who lived in the town. They went to a restaurant for dinner and at about 10pm or 11pm went back to the woman's motel room where they had sex that resulted in her injury.
The male friend said in his statement at the time that they were "going hard” and he did not know if they bumped the light or it just fell off.
Here's a related story in USA Today.
Monday, December 17, 2012
The Labor Department announced this past Thursday, the members of the new Whistleblower Protection Advisory Committee. The Committee wll consult with DOL on ways to improve an array of federal government whistleblower programs.
A number of law professors are members of the Committee, representing the general public. They include: Richard Moberly (Nebraska), Committee Chairwoman Emily Spieler (Northeastern), and Jonathan Brock (retired University of Washington).
For more information about the Whistleblower Protection Advisory Committee, you can read the DOL website page on the Committee (which comes under the jurisdiciton of OSHA).
Wednesday, October 31, 2012
Orly Lobel (San Diego; photo not at left)) sends word that Eric Tucker (York - Osgoode; photo left) has posted to SSRN his article Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom. Orly points out that the article "is a nice engagement with the new gov[ernance] debates and with recent osha developments". Here's the abstract:
New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism . In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.
Tuesday, October 23, 2012
The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:
Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked. The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.
The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It's a good summary.
h/t Marcy Karin (ASU)
Ronald D. Brown sends us word about his new and timely book: Dying on the Job: Murder and Mayhem in the Workplace (press release flyer here).
From the press release:
Dying on the Job is the first book on workplace violence to focus exclusively on workplace murder. While some perpetrators are certainly mentally impaired, many workplace murders are committed by people considered to be “normal.” Brown explores the various motives and drives that spark workplace murder, and answers hundreds of questions that are usually asked only after a workplace murder rampage has already occurred.
Are men or women more likely to commit workplace homicide? How can people more easily spot those likely to commit workplace murder? What are some of the warning signs? How often is "suicide" used as workplace revenge? The answers to these questions and more are based on more than 350 actual cases of workplace murder, and the answers are often surprising.
Brown also addresses different areas of prevention, counseling, and rehabilitation, and analyzes different approaches to gun control for both management and employees to make their job a safer place to work.
The praise that this book has received from top names in the labor and employment law field like Bill Gould, Cindy Estlund, and Lance Liebman, strongly suggest that it is a book well worth a read. Check it out!
Tuesday, October 2, 2012
California Governor Jerry Brown vetoed AB 889, the California Domestic Workers Bill of Rights. See here and here. Bad news for some of California's most vulnerable workers, and a setback for the domestic workers rights movement. Governor Brown's veto message expressed concern that 24-hour care would become too costly and would result in fewer jobs especially since some workers would be paid by the state.
Monday, September 17, 2012
Noah Zatz (UCLA) writes to tell us of a petition being circulated by academics in California in support of the Domestic Workers Bill of Rights there. Here is the note about the letter being circulated with links to it and to the letter of support from non-academics.
Thank you for agreeing to be one of the sixty-one original signatories to the Letter from Academics to Governor Brown in Support of The Domestic Workers Bill of Rights. Y/our names all appear following the text of the letter, which has now gone live online so that we may invite more colleagues to sign on as well. This is a much appreciated contribution to the campaign and if it is all you can do at this time, thank you! If you do a little more...
The California Domestic Workers Coalition will be delivering our letter to Governor Brown's office next Monday, so if you are willing to forward the link to other interested colleagues, please do so as soon as you are able and they will be added to the letter the Governor receives.
And, finally, if you have time to go to the site yourself and click "sign this petition" online, it will help us track the running tally. This also may in turn make it even easier for you to forward the letter to other colleagues via email, Facebook and Twitter.
Should you know others hoping to sign a petition on this matter, who are not scholars with related interests, please refer them instead to the general petition in support of AB889 atwww.domesticworkers.org.
In Gratitude for your Solidarity,
Kathleen Coll, Stanford & Eileen Boris, UC Santa Barbara
Thursday, August 23, 2012
As you might recall from our post at the time, the California General Assembly passed the California Domestic Workers Bill of rights, AB889. The bill is now before the California Senate, and the California Domestic Workers Coalition is urging people to take action in support if the bill. As part of that, Amy Poehler has made this PSA.
I love Ms. Poehler, not just because I think she's funny, but also because she's one of the creators of Smart Girls at the Party: Change the World by Being Yourself, a website and YouTube channel that provides a positive multidimensional message for and about girls.
We'll keep you posted on any news related to AB889.
Monday, November 21, 2011
But not discrimination-free. Dennis Nolan sends us a link to this post from The Volokh Conspiracy:
Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:
- Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).
- “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ‘666’ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”
- Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ‘666’ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.
Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.
Tuesday, November 15, 2011
Thursday, October 20, 2011
Jason Bent (Stetson) has just posted on SSRN his article on a much-neglected topic of LEL scholarship: workplace safety. Some of you may recall that he presented it at the Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law. His article is An Incentive-Based Approach to Regulating Workplace Chemicals, and I hope it will spur some action.
Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.
The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.
Tuesday, September 13, 2011
The Seattle City Council voted yesterday to require employers in the city to provide paid sick leaves to employees, according to an Associated Press story. Currently, Washington, D.C., San Francisco, and the state of Connecticut mandate paid sick days. You may recall that Millwaukee passed an ordinance a few years ago, but it was struck down on state election law grounds.
The Seattle ordinance requires that employers of five or more employees give each employee five paid sick days for their own sickness or that of a person they care for, or if they are a victim of domestic violence, to cooperate with law enforcement and court proceedings. Employers with 250 or more employees have to provide nine days.
Some are opposing the law as bad policy during a recession, while others (including many employers) praise it as easy to comply with, not adding much in expenses, and better protecting workers (both the sick and the not sick) and customers.
According to the group Family Values at Work, 44 million workers nationwide still lack access to paid sick time. This is a step in the right direction, especially for those lower wage workers who likely can't afford to take unpaid time off even when they need to, and for all of us those workers would come in contact with.
Friday, June 10, 2011
Jon C. Dubin (Rutgers) has just posted on SSRN his article (S. Cal. Rev. L. & Soc. Justice) The Labor Market Side of Disability-Benefits Policy and Law. Here's the abstract:
The primary administrative mechanism for ascertaining the availability of less demanding work to which [SSA] disability claimants might adjust is an innovative medical-vocational matrix or "grid" regulation that takes administrative notice of job characteristics, job incidence, and adaptation assumptions based on the U.S. Department of Labor’s ("DOL") first occupational taxonomy, the Dictionary of Occupational Titles ("DOT") and other government surveys. However, the empirical data about the labor market upon which the grid regulation was based is nearly half a century old and dependent upon an occupational taxonomy (the DOT) that was discontinued twenty years ago. In addition, changes in disability policy and social welfare policy from the Americans with Disability Act ("ADA") of 1990 and the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") of 1996 that emphasize work over benefit receipt have provided impetus to reconceptualize disability benefits eligibility. Because of the complexity of the disability benefit programs’ existing labor market adjudicative process, the empirical vulnerabilities in the present system and the public policy currents from the ADA and PRWORA, a variety of alternatives has been suggested for altering or modifying the present system for adjudicating labor market work adjustment issues.
This article evaluates those alternatives and concludes that the SSA should employ a "mend it don’t end it" approach to the adjudication of labor market considerations in the disability benefits programs. It argues that the suggested alternatives to the present system are either fundamentally misguided or politically unpalatable. It urges acceptance of the National Research Council’s recommendation from a report issued in March 2010 for the DOL and SSA to collaborate on completion of an up-to-date and methodologically appropriate labor market taxonomy to support an updated grid’s empirical bases for continued use. It further advocates for institutionalizing at least decennial revision of the underlying labor market data and taxonomy to enhance the grid’s temporal reliability on a continuing basis. Finally, it eschews usage of a grid updating or revision process as an opportunity to tighten or restrict benefit eligibility in light of the consequences of wrongful disability benefit denial in a post-welfare reform reality of substantially restricted safety net alternatives and in a depressed and constricted economy for characteristically low-skilled, disability benefit claimants.