Wednesday, May 18, 2022

Prince on the Current State of Employee Classification Laws

Samantha Prince now has the final version of her new article, The Shoe Is about to Drop for the Platform Economy: Understanding the Current Worker Classification Landscape in Preparation for a Changed World, up on SSRN and it looks very informative. The abstract:

Whether a worker is an independent contractor or employee is of great significance in many countries, including the United States. This label drives whether a worker is entitled to many protections and benefits, including, minimum wage, overtime, workers’ compensation, unemployment compensation, anti-discrimination protection, NLRA protection, etc. The difficulty inherent in accurately classifying workers as either independent contractors or employees cannot be overstated. First, there are so many tests spanning all levels of our government. Second, there are so many ways that people work and with the increased popularity of app-based work, classification becomes even more difficult. Simply, some of the tests have not been working well when applied to precarious app-based work. As a result, policymakers are forced to finally bring these issues to the forefront.

Worldwide policymakers and leaders are implementing changes to protect app-based workers. In the United States, the federal government is evaluating whether these changes in the workforce require changes in national labor and tax laws. While campaigning, President Biden pledged to establish a uniform worker classification test for purposes of all federal labor, employment, and tax laws. Subnational governments – states and cities – are also evaluating and making changes in their policies and laws.

In order to make these decisions, policymakers will need to be familiar with the current landscape of tests and statutes. Policymakers should evaluate the approaches that currently are being used and how they have fared so that they can decide whether to strike out with a novel test or adopt one already in use. Although prior articles have considered worker classification laws, and the benefits associated with various classification approaches, things have evolved so quickly that in some respects most of those articles are at least partially out of date. And, having all of this information in one place is critical for ease in policymaking research and deliberations.

This Article fills the current knowledge gap by providing an up-to-date compendium of the current state of worker classification laws. The Article starts with a segment on instabilities and health issues experienced by app-based workers. Then it covers the latest on worker classification laws around the world including the EU Commission's Proposed Directive. It then turns to tests that the U.S. is using, which include traditional tests and new tests from both the state and city levels. The Article explains how these tests are used and summarizes commentary about the strengths and weaknesses of each of these tests. As national, state, and local policymakers consider how best to move forward in regulating the app-based economy and its workers, they are likely to find the information in this Article useful to their deliberations.

Check it out!

Jeff Hirsch

May 18, 2022 in Employment Common Law, Scholarship | Permalink | Comments (0)

Thursday, May 12, 2022

Call for Proposals - Fourth Annual Equality Law Scholars’ Forum

Heed the call for proposals for the Fourth Annual Equality Law Scholars' Forum (November 4-5, 2022, Loyola Law School, Los Angeles):

Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, and at Boston University Law in 2021, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco, visiting Loyola Los Angeles AY 2022-23; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fourth Annual Equality Law Scholars’ Forum to be held in Fall 2022. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five or six relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 4-5, 2022, at Loyola Law School in Los Angeles.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 10, 2022.   

Full drafts of papers must be available for circulation to participants by October 20, 2022

Note: We urge submission of proposals for drafts that will still be substantially in progress in October/November 2022 over drafts that will be in late-stage law review edits at that time.

Proposals should be submitted to: Leticia Saucedo, UC Davis School of Law, lmsaucedo@ucdavis.edu.  Electronic submissions via email are preferred.

 

-- Sachin S. Pandya

May 12, 2022 in Conferences & Colloquia | Permalink | Comments (0)

Thursday, April 21, 2022

Bodie and Garden to Minnesota

As many readers know, Minnesota Law School two great labor and employment faculty members--Steve Befort (who is still teaching on an emeritus basis) and Laura Cooper--retired over the last couple of years. The school just hired their replacements and hit home runs for both: Matt Bodie (St. Louis) and Charlotte Garden (Seattle).

Congratulations to Matt & Charlotte!!

Jeff Hirsch

April 21, 2022 in Faculty Moves | Permalink | Comments (0)

Monday, April 18, 2022

NYC LERA: NYC’s Worker Protection Laws and its Impact on the Workplace

SpeakersBill Herbert (Hunter College, CUNY) tells us about the upcoming NYC LERA program NYC Workplace and Labor Law Update: A Look at NYC’s Worker Protection Laws and its Impact on the Workplace, April 26, 2022, 6 – 7:30 pm ET. Here's a description:

NYC regulatory agencies are charged with administering and/or enforcing municipal workplace laws intended to protect workers across various industries. These laws apply to workers of different socio-economic groups, tackling matters such as pay equity, workplace safety and other worker rights and protection issues. Our panel will address recent enforcement initiatives and its impact on employers, employees and the workplace.

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April 18, 2022 in Conferences & Colloquia, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Monday, April 11, 2022

DC LERA: Gig Economy in Europe

DcleraTequila Brooks tells us of the program Gig Economy in Europe: Examples from Sweden, Netherlands and Germany on Tuesday, April 26th, 2022, 12:00 pm – 1:30 pm ET. Topics to be discussed include working conditions in the gig economy in Europe; policy proposals put forward by the European Commission; protection of gig workers under Swedish, Dutch, and German labor law; and employee participation in algorithmic systems in the context of work.

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April 11, 2022 in Conferences & Colloquia, International & Comparative L.E.L. | Permalink | Comments (0)

Monday, April 4, 2022

Professor Porter to Lead Malin Institute for Law and the Workplace

I write with terrific news. The Martin H. Malin Institute for Law and the Workplace has named Professor Nicole Buonocore Porter as its new director. Nicole will be joining the Chicago-Kent faculty in the fall. 
 
Nicole is a member and on the Executive Committee of the Labor Law Group. She is a nationally known expert in disability law, and her research interests focus on the employment rights of women and individuals with disabilities.
 
Congratulations to Nicole and to Chicago-Kent on a great hire!
 
-- Sandra Sperino

April 4, 2022 | Permalink | Comments (0)

Monday, March 21, 2022

Shnitser: Professional Employer Organizations & Workplace Benefits

ShnisterNatalya Shnitser (Boston College) has just posted on SSRN her article "Professional" Employers and the Transformation of Workplace Benefits (39 Yale Journal on Regulation Bulletin 99 (2021)). Here's the abstract:

Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business.

While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States.

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March 21, 2022 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Thursday, March 17, 2022

New Ed.: Employment Law in a Nutshell

NutCongratulations to Joe Seiner (South Carolina) on the publication of the 5th edition of Employment Law in a Nutshell (with the late Robert Covington). Here's the publisher's description:

This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a discussion of the many changes in harassment law and the impact of the #MeToo movement, a look at the recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status, an examination of the trend toward a more virtual economy and platform-based work, and a description of the changes in how employees work, and the terms of that work, in the face of an ongoing health pandemic.

Here's what's new for the 5th edition:

The fifth edition takes on a number of transformative changes that have occurred in the last several years in the area of workplace law, including: (1) The impact of the #MeToo moment on claims of gender discrimination and harassment; (2) The changing ways employment status is considered in the face of an ongoing health pandemic; (3) The move toward a more virtual workplace and employment that relies more heavily on technology; and (4) The recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status.

Congrats, Joe!

rb

March 17, 2022 in Book Club, Employment Common Law, Employment Discrimination | Permalink | Comments (1)

Thursday, March 3, 2022

A Celebration of the life and work of Minna Kotkin

Friend-of-blog Ann McGinley sends along the following invitation to the celebration of the life and work of Minna Kotkin.  Minna was a friend and mentor to so many of us in the labor and employment community, and she will be truly missed by all. Please join us if you can, the information is below and the link is available here:

http://brooklaw.imodules.com/controls/email_marketing/view_in_browser.aspx?sid=1286&gid=1&sendId=3223192&ecatid=17&puid=1e0d77a5-6e61-46a3-a732-6437cf36aa60

Wednesday, March 23

About the Program

This year’s Edward V. Sparer Public Interest Law Forum celebrates the life and work of Professor Minna Kotkin - teacher, scholar, lawyer, activist, mentor, and friend.

This two-hour program on Zoom will feature remarks from colleagues, former students, clients and friends about Professor Kotkin’s teaching, scholarship, mentorship, and lawyering.


At the end of the program, we hope as many audience members as time allows will share their personal memories and thoughts of Professor Kotkin by speaking at the event or sharing their thoughts and tributes in writing in the space provided on the registration form.

 

Memorial Fund Established to Honor Professor Kotkin


Professor Minna Kotkin was a trailblazer in the law and in the classroom, where she inspired generations of Brooklyn Law students. We invite you to join other friends and alumni in honoring her life and carrying her legacy forward by making a gift to the Minna Kotkin Memorial Fund.

 

Date & Time

   

Wednesday, March 23

5:00 p.m. - 7:00 p.m. EST (U.S. & Canada)

Virtual Event (Zoom)

March 3, 2022 | Permalink | Comments (0)

Tuesday, March 1, 2022

Duff Rethinks Workers' Comp

DuffMichael Duff (Wyoming, en route to SLU) has just posted on SSRN his new article (forthcoming Kentucky L.J.) Fifty More Years of Ineffable Quo?: Workers' Compensation and the Right to Personal Security. I usually edit down abstracts to one paragraph, but one paragraph won't do justice to this critically important article. Here's the full abstract:

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”

Lost in discussions of workers’ compensation is any sense of a baseline. Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.

In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.

Well-done, Michael -- I can't agree more.

rb

March 1, 2022 in Scholarship, Workplace Safety | Permalink | Comments (0)

Thursday, February 24, 2022

Interesting Article on Remote Arbitration

Employment law scholars and practitioners might be interested in this new article by Professor David Horton, Forced Remote Arbitration. Here is the abstract:

Courts responded to COVID-19 by going remote. In early 2020, as lockdown orders swept through the country, virtual hearings—which once were rare—became common. This shift generated fierce debate about how video trials differ from in-person proceedings. Now, though, most courts have reopened, and the future of remote trials is unclear.

However, the pandemic also prompted a sea change in alternative dispute resolution. Arbitration providers pivoted away from in-person adjudication and heard cases online. Yet unlike virtual trials, which coexist uneasily with norms in the court system, remote hearings fit snugly within arbitration’s tradition of procedural and evidentiary informality. Thus, while virtual trials may prove to be temporary, virtual arbitration is gaining steam. Online-only arbitration startups have emerged, established providers are marketing their virtual options, and firms are mandating that plaintiffs resolve disputes without setting foot in the same room as the decision-maker. This trend threatens to make the controversial topic of forced arbitration even more fraught. Nevertheless, we do not know how remote procedures impact win rates, case length, and arbitration fees.

This Article shines light on these issues by conducting an empirical study of forced remote arbitration. It analyzes 70,150 recent filings and reaches three main conclusions. First, since July 2020, roughly 67% of all evidentiary hearings have been held virtually. Even though this figure will likely decline as the pandemic re-cedes, online arbitration has become entrenched. Second, plaintiffs who participate in virtual proceedings generally win less often and recover lower damage awards than individuals who arbitrate in person. This “remote penalty” exists in some set-tings even after controlling for variables such as claim type, pro se status, and the experience of the defendant, the lawyers, and the arbitrators. Third, even though proponents of forced remote arbitration contend that it streamlines cases, the data only partially support this claim. Some remote modes, such as documents-only proceedings, seem to save time and money, while others, like video hearings, do not. Finally, the Article explains how its findings can help lawmakers and judges regulate and monitor forced remote arbitration.

The article is available on SSRN.

-- Sandra Sperino

February 24, 2022 | Permalink | Comments (0)

Wednesday, February 23, 2022

The Tension Between McDonnell Douglas and Bostock

The McDonnell Douglas test is one framework that courts use to analyze discrimination cases. The Supreme Court enunciated the test in 1973, and even though the Court has decided several cases to clarify the test, confusion remains. Two recent articles explore the tension between McDonnell Douglas and how the Supreme Court discussed causation in the Bostock opinion. One way of looking at McDonnell Douglas is that it helpfully avoids the specific factual cause inquiry in favor of a sometimes looser, less-defined causal inquiry. However, it may also unhelpfully limit how the courts view causation and discrimination. 

Professor Deb Widiss takes the latter view in her excellent new article, Proving Discrimination by the Text, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921, and Noelle Wyman's student note argues that Bostock signals the end of McDonnell Douglas in Because of Bostock, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913277.

--Sandra Sperino

February 23, 2022 | Permalink | Comments (0)

Monday, February 21, 2022

Another Great DC LERA Program

EnforcingThanks once again to Tequila Brooks for sending word of Enforcing Global Labor Rights in 2022: M-POWER and Other Tools (Virtual Meeting). The program will be Wednesday, February 23, 2022 12 pm ET. Speaking will be Thea Lee, Deputy Undersecretary for International Affairs of the U.S. Department of Labor, and the moderator will be DC LERA Board Member Jeff Wheeler. It's free; register here.

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February 21, 2022 in Beltway Developments, Conferences & Colloquia | Permalink | Comments (0)

Tuesday, February 15, 2022

Marty H. Malin Institute for Law and the Workplace (and Mar. 10 Celebration)

Dean Anita Krug from Chicago-Kent has just announced the official renaming of the Martin H. Malin Institute for Law and the Workplace. Anyone in the labor law field is well aware that a more fitting name and tribute could not be had. Indeed, as evidence of the widespread appreciation that Marty earned over his career, the institute successfully raised over $1 million in his honor. Congratulations Marty, well deserved!

Below is the full announcement from Dean Krug, including an invitation for a "virtual toast" on March 10:

I am pleased to announce the official renaming of the Martin H. Malin Institute for Law and the Workplace for founding director Martin "Marty" Malin at Chicago-Kent College of Law. Since 1996, the ILW has been a leader in research, training, dialogue, and reflection on the law that governs the workplace, and was named the nation's top program in employment law by preLaw Magazine. Now the Malin Institute for Law and the Workplace will continue that work. We plan to mark this significant moment in our history on March 10, 2022 at 6 pm for a virtual toast where you can hear from Marty, and we can celebrate this successful history together. For more information and to register, please visit here.

Marty and all of us at Chicago-Kent are grateful for the support from our community in developing ILW from an innovative idea to its current status as a leader in the workplace law community. With gifts and pledges from community members, we created an endowment in Marty's honor that will support the Institute in perpetuity. I'm pleased to share with you that the endowment commitments now exceed $1 million. We could not have attained this milestone without the labor and employment law community’s commitment to the ILW’s mission. There is still much work to do, however, and if you haven't done so already, I invite you to join other members of the community in making a gift or pledge to support the Martin H. Malin Institute for Law and the Workplace. Your gift will help us continue to be the go-to law school for aspiring labor and employment lawyers and to continue our mission of serving the current labor and employment law community and the next generation of workplace law attorneys. You can contribute online here. If you would prefer to send a check or consider other ways to give, please contact our Assistant Dean of Advancement, Chrissy Brown, at cbrown67@kentlaw.iit.edu or by phone at (312) 906-5236.

Congratulations to Marty and to everyone who supported this significant achievement. I can't wait to see what the Martin H. Malin Institute for Law and the Workplace will accomplish. I hope you can join us for the virtual toast to celebrate this successful campaign!

Jeff Hirsch

February 15, 2022 in Faculty News | Permalink | Comments (0)

Saturday, February 5, 2022

NAA Conference on Labour Rights & Remedies

Toronto

The International Studies Committee of the National Academy of Arbitrators (NAA) has announced a groundbreaking international seminar on Labour Rights and Remedies under Globalization-Implementing the United Nations’ Protect, Respect and Remedy Framework, to held in Toronto on Wednesday May 11, 2022.

Topics will include: Trade and Labour Arbitration; The USMCA Rapid Response Arbitration (the United States-Mexico-Canada Agreement, the “new NAFTA”); enforcement of the United Nations’ Guiding Principles on Business and Human Rights; Enforceable International Brand Agreements; and Domestic Litigation of International Workplace Disputes.

This exciting seminar is being held as part of the Annual NAA Conference held May 11-14, 2022. There is no additional cost to attend this international labor seminar for those attending the NAA conference. It is possible to attend only the international labor seminar at a reduced fee. The student registration for the international seminar is $100.

The NAA conference itself will draw speakers from labour, management, government and international organizations around the world to discuss dispute resolution and the growth in stronger and enforceable international labour standards. Sessions will focus on the developing role of labour arbitrators, including NAA members, in adjudicating disputes over these standards.

The NAA conference will be held at the Fairmont Royal Hotel in Toronto.

Register here for the NAA Annual Meeting (May 12-14) with the International Conference included (May 11). Register here for just the International Conference.

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February 5, 2022 | Permalink | Comments (0)

Conference Celebrating Karl Klare

From Northeastern University comes word of a conference on April 8, 2022, celebrating the vision and advocacy of labor law scholar Karl Klare.

The conference will be in-person with a live stream for a virtual audience. The four conference panels are titled “Transformative Constitutionalism”, “Unions and Workers (Solidarity Forever)”, “The Law School Classroom (Teaching as a Tool of Progress)”, and “Critical Legal Studies (Why Karl Starts with K)”. For details, including the extraordinary list of speakers and how to register, see here.

– Sachin S. Pandya ORCID logo

February 5, 2022 in Faculty Presentations, Labor Law, Scholarship, Teaching | Permalink | Comments (0)

Friday, February 4, 2022

New Article on Workplace Transparency

Lisa Bernt's article on workplace transparency may be of interest to readers. The article is Workplace Transparency Beyond Disclosure: What’s Blocking the View?, 105 Marquette Law Review 73 (2021). Here is the abstract.

Recent developments have exacerbated informational asymmetry between employers and workers. Employers increasingly use “black box” automated decision systems, such as machine learning processes where algorithms are used in recruitment and hiring. They have technological tools that enable intense monitoring of workers. Contemporary work relationships have changed, with trends toward remote and scattered worksites. Employees are more frequently bound by nondisclosure agreements, non-disparagement provisions, and mandatory arbitration agreements. These developments have made it more difficult for workers to communicate with each other and to act collectively. The result is that workers are kept in the dark when it comes to much of an employer’s decision-making. How might an employee know, for example, if she is being paid less than her male coworkers if she is being closely watched and is afraid of speaking? How might someone turned down for a job know whether the hiring process was discriminatory? We need to look beyond disclosure mandates, take a closer look at channels of communication in today’s workplaces, and consider the vantage point of workers. Developing effective transparency measures requires greater attention to the sightlines of workers who cannot get information they need to spot, articulate, and prove violations of workplace protections.

The article is available on SSRN here.

-Sandra Sperino

February 4, 2022 | Permalink | Comments (0)

Thursday, January 27, 2022

Two Hospitals, Seven Workers, and the Short-Lived Injunction

Two hospitals, the seven workers who quit one hospital to join the other, and a short-lived temporary restraining order. According to the complaint in Thedacare, Inc. v. Ascension N.E. Wisconsin, Inc. (and not much else), this is their story, plus a Thirteenth Amendment puzzle that never got fully litigated.

Our story begins in Wisconsin’s Fox River Valley. There, ThedaCare owns and operates the Neenah Medical Center, which provides high-level trauma and stroke care, thanks in part to an interventional radiology and cardiovascular team (“IRC team”) based there.

Between December 21, 2021, up through January 7, 2002, ThedaCare learned that four invasive radiology technicians on its IRC team at Neenah (all of them), plus three Thedacare nurses, intended to quit to go work for Ascension at its St. Elizabeth Hospital facility in Appleton. From work emails ThedaCare found, it believed that Ascension had interviewed and negotiated employment terms with the departing employees throughout November and December 2021. The departing IRC team workers were all scheduled to exit Thedacare at the same time. Their last day was January 21, and they’d begin working at Ascension on January 24.

Before that happened, Thedacare had asked Ascension for “ninety days of access to one invasive radiological technician per day and one nurse with radiology training to provide ThedaCare sufficient time to hire replacement staff for the departing IRC team members.” Ascension declined.

So, on January 20, 2022, Thedacare sued Ascension in Wisconsin state court, arguing that Ascension committed tortious interference with contract “by poaching the resigning IRC team members from their continuing employment with ThedaCare and arranging for their simultaneous resignation.” As a remedy, Thedacare asked for an injunction ordering Ascension to either (1) “make available one invasive radiology technician and one registered nurse” per day from among the exiting workers; or (2) stop hiring those workers until Thedacare had hired “adequate” staff to replace them. That same day, Thedacare got from a Wisconsin Circuit Court judge (Mark J. McGinnis) a temporary restraining order that ordered Ascension to do just that.

In turn, Ascension’s lawyers pressed the judge about this TRO, citing in part the Thirteen Amendment’s Involuntary Servitude Clause and a parallel provision in Wisconsin’s Constitution that barred “involuntary servitude in this state,” Wis. Const. art. I, sec. 2. The judge amended the TRO, striking the “make available” part but keeping the stop-hiring proviso. But a few days later (January 24), that judge, after a hearing on the matter, dismissed the TRO in its entirety, because, according to one press account, “ThedaCare could rely on alternate staffing solutions it already is pursuing to preserve care, including cross-training employees who do similar jobs at ThedaCare’s Appleton hospital.”

Now, the puzzle that never got fully litigated: Suppose that because the seven workers left, Thedacare could no longer provide the same level of trauma and stroke care at its Neenah facility. If so, would a Wisconsin appellate court have upheld a court order enjoining Ascension in the way Thedacare originally wanted? Answer: Not likely.

Had Thedacare sought to enjoin not Ascension but the departing workers to keep working for it, Thedacare would have faced a serious Thirteenth Amendment problem. Since Bailey v. Alabama (1911), courts have read the Thirteen Amendment’s Involuntary Servitude Clause to ban most laws that, upon the threat of criminal sanction, coerce workers into staying with their current employers when they would otherwise quit. Wisconsin’s parallel provision has been similarly read, see State v. Brownson, 157 Wis. 2d 404, 411-13 (Ct. App. 1990), and, in dicta, taken also to prohibit the compulsion of “an individual to labor against his or her will as part of the remedy of specific performance.” Id. at 412 n. 4. The idea: injunctions to compel work, while not criminal law, are still backed by a court’s contempt power and thus coercive enough to justify the protections of Involuntary Servitude Clause doctrine.

Here, of course, Thedacare sued Ascension, not the exiting workers. But there are some razor thin lines between (a) directly ordering the workers here to go back to work for Thedacare; (b) ordering Ascension to direct those workers to go work for Thedacare; and (c) ordering Ascension to not employ those workers until Thedacare gets enough staff to make up for their departure. The worry: In any of these cases, because of the court order, the cumulative coercive effect on the quitting workers to keep working for Thedacare is similar enough to the coercion that justifies Bailey and progeny. Sure, those workers could escape the indirect coercion – options (b) and (c) – by immediately quitting Ascension, but not really unless they had a third employer ready to hire them.

More generally, the court’s order here cut against an old idea: Involuntary Servitude Clause doctrine protects workers from legal coercion that unduly impedes labor mobility. Pollock v. Williams, 322 U.S. 4, 18 (1944) (“in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers”). For commentary, see, e.g., Pandya (2020); Pope (2010); and Oman (2009). This doctrine has exceptions, but not any “hospital worker” or “continuity of care” exceptions. So if Wisconsin appellate judges take this doctrine seriously, then the court order here, if not dismissed, would likely not have survived on appeal.

– Sachin S. Pandya ORCID logo

January 27, 2022 | Permalink | Comments (0)

Tuesday, January 25, 2022

DC LERA Program: Navigating the Future of Work in the Age of Pandemics and Social Movements

DcleraThanks again to Tequila Brooks for sending word about this program: David Jacobs, DC LERA Board President, will be speaking with Dr. Melissa Fisher of the NYU Institute for Public Knowledge - online only, complementary. January 26, 2022, noon eastern, registration here.

In February, the guest speaker will be Thea Lee, Deputy Under Secretary for International Labor Affairs, also online only.

DC LERA is particularly encouraging law students to attend.

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January 25, 2022 in Beltway Developments, Conferences & Colloquia | Permalink | Comments (0)

Sunday, January 16, 2022

Labor & Green New Deal Symposium

Shirley Lin (Pace) write to let us know about the 2022 Labor and Green New Deal Symposium:

The Pace Environmental Law Review is accepting submissions for its 2022 Symposium, “Labor and the Environment – Envisioning a Green New Deal.”  On April 1, 2022, the symposium will gather regulators, law makers, policymakers, and academics to discuss the possibility of a comprehensive and effective Green New Deal (GND). Abstracts are due February 13, 2022 (extended deadline).  Submission details are provided here.  

Please send (1) an abstract of 300-500 words with anticipated wordcount for the final article; and (2) a CV to pelracq@law.pace.edu.  If accepted, articles may be 6,250-19,000 words, and essays may be 2,500-6,250 words.  Final article deadline: May 4, 2022.

Jeff Hirsch

January 16, 2022 in Scholarship | Permalink | Comments (0)