Monday, April 22, 2019
The Supreme Court has just granted cert. in three cases to determine whether Title VII prohibits discrimination based on sexual orientation and gender identity. We've covered this issue for years, as the answer has gone from largely a uniform "no"; to the EEOC and DOJ saying "yes," while the circuits courts said "no"; to the current situation where some courts say "yes," others say "no," the EEOC says "yes," and the DOJ says "no." You get the idea--maybe the perfect storm of the classic split that attracts Supreme Court attention.
To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement. I can probably best summarize my prediction by saying that I'd have more hope if Justice Scalia was still on the Court, as he would occasionally argue for strong deferral to the EEOC, even when he likely disagreed personally with the result (showing his past as an administrative law professor). The issue is really interesting from a legal perspective. It involve congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases--and that can result in political outcomes that advocates may not always like. The oral arguments in these cases will definitely have some fireworks, and the sure-to-be split decision will likely be quite heated. So hold on tight . . . .
Thursday, April 11, 2019
This book provides comprehensive treatment of the major federal employment discrimination statutes, focusing on Title VII, the ADEA, the ADA, and Section 1981. It discusses who is liable for discrimination and the people the statutes protect from discrimination. The book offers an extensive discussion of the frameworks for analyzing discrimination, including frameworks for individual disparate treatment, pattern or practice, harassment, disparate impact, and retaliation. One chapter focuses on religious accommodation and another chapter focuses on disability accommodation. The book also contains separate treatment of affirmative action. It also explores defenses to discrimination claims, the procedure for pursuing claims, and remedies. The book provides extensive discussion of canonical cases.
Friday, April 5, 2019
Liz Tippett (Oregon) and Ann Hodges (Richmond, emerita) have each posted on SSRN terrific articles on unrelated labor/employment topics; both have been or will be published in the Employee Rights & Employment Policy Journal. Liz's article is Opportunity Discrimination: A Hidden Liability Employers Can Fix; here's an excerpt from the abstract:
This article applies a model of workplace advancement where big employment decisions — like promotions and pay raises — are influenced in part by the disparate distribution of smaller opportunities over time. These smaller opportunities generally do not qualify as “adverse employment actions” for the purpose of a discrimination claim under Title VII of the Civil Rights Act. However, their legal significance has been underestimated. The disparate denial of smaller opportunities has been successfully used as evidence of disparate treatment when plaintiffs are later denied a big opportunity.
This article argues that employers should identify and address disparities at the opportunity level to advance workplace equality. Drawing from social science research on discrimination in school discipline, employers could identify the particular decision points and contextual factors that drive disparities and use that information to address the problem. Such undertakings would also be compatible with existing internal employment structures.
Ann's article is Employee Voice in Arbitration; here's the abstract:
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.
If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.
A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.
Thursday, April 4, 2019
The program for the 4th LLRN Conference has been announced and, as usual it looks really interesting (except maybe that Future of Work panel . . .).
You can get the program here: http://www.pucv.cl/uuaa/derecho-del-trabajo/programa/2017-10-11/152305.html
The organizers also send a reminder that the registration deadline and submission for papers is May 25.
Tuesday, April 2, 2019
Online reputation systems enable the providers and consumers of a product or service to rate one another and also allow others to rely upon those reputation scores in deciding whether to engage with a particular provider or consumer. Reputation systems are an intrinsic feature of the platform workplace, in which a platform operator, such as Uber or TaskRabbit, intermediates between the provider of a service and the consumer of that service. Operators typically rely upon consumer ratings of providers in rewarding and penalizing providers. Thus, these reputation systems allow an operator to achieve enormous scale while maintaining quality control and user trust without employing supervisors to manage the vast number of providers who engage consumers on the operator’s platform. At the same time, an increasing number of commentators have expressed concerns that the invidious biases of raters impact these reputation systems.
This Article considers how best to mitigate reputation systems bias in the platform workplace. After reviewing and rejecting both a hands-off approach and the anti-exceptionalism approach to regulation of the platform economy, this Article argues in favor of applying what the author labels a “structural-purposive” analysis to regulation of reputation systems discrimination in the platform workplace. A structural-purposive analysis seeks to ensure that regulation is informed by the goals and structure of the existing workplace regulation scheme but also is consistent with the inherent characteristics of the platform economy. Thus, this approach facilitates the screening out of proposed regulation that would be inimical to the inherent characteristics of the platform economy and aids in the framing of regulatory proposals that would leverage those characteristics. This Article then demonstrates the merits of a structural-purposive approach in the context of a regulatory framework addressing reputation systems discrimination in the platform workplace. Applying this approach, the Article derives several principles that should guide regulatory efforts to ameliorate the prevalence and effects of reputation systems bias in the platform workplace and outlines a proposed regulatory framework grounded in those principles.
Wednesday, March 27, 2019
Richard Moberly (Nebraska) has somehow found time from his decanal duties to write and post to SSRN his new article (North Carolina L. Rev.) Confidentiality and Whistleblowing. Here's an excerpt from the abstract:
... [T]the federal government has aggressively courted employees to become whistleblowers. In response, corporations have tried to mitigate potential damage by relying on broad confidentiality provisions to discourage employees from revealing insider information. As a result, uncertainty abounds when the corporate desire for confidentiality clashes with the government’s desire for employees to blow the whistle.
This Article is about the increasing tension between these countervailing trends. Ultimately, the Article concludes that the government’s ability to rely on insiders to monitor organizational behavior by blowing the whistle will depend on its willingness to regulate the ability of an organization to protect its secrets through contract.
Marcy Karin (UDC) sends word that on March 29th, the UDC Law Review is hosting its annual symposium, Disability Rights: Past, Present, and Future. The focus of the symposium will be on protecting and improving disability rights in today’s challenging environment and tomorrow’s uncertain future. Chai Feldblum, former Commissioner of the U.S. Equal Employment Opportunity Commission, will be the keynote speaker. A number of friends of the blog are speaking on a range of topics, including: The ADAAA at 10; Disability and the #MeToo Movement; Disability, Police Interactions, and the Criminal Justice System; Disability and Education; Disability, Leave, and Caregiving; and Disability Beyond the Workplace.
Anyone in the DMV area – or who wants to see the cherry blossoms and come to the DMV area—is welcome to join for any part of the day-long dialogue about disability rights. Registration (and a full panel/speaker list) is available at bit.ly/DisabilitySymposium. The Law Review’s related call for papers is here: Download UDC Law Review Call for Papers - Disability Rights.
In addition to the symposium, UDC is hosting a reception at Arent Fox at 6pm on March 28th to kick-off the symposium and launch The ADA Project, a new public education resource from the UDC Legislation Clinic and Quinnipiac University Civil Justice Clinic. Registration for the reception is available at bit.ly/TheADAProject.
This looks great!
Monday, March 25, 2019
This streamlined, straightforward casebook offers a fresh perspective on employment discrimination law, presenting a procedural-based approach with interactive materials. While still providing traditional coverage, Employment Discrimination: Procedure, Principles, and Practice, Second Edition (Seiner, Wolters Kluwer, 2019) emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter, which discusses the most effective ways to address workplace discrimination from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer. Modern, cutting-edge cases demonstrate the importance of employment discrimination law. Text boxes within cases, historical notes, and news events effectively help bring the material to life. New to the Second Edition: a renewed focus on sexual harassment and a robust discussion of the #metoo movement; an examination of sexual orientation and a review of the conflicting federal appellate cases on whether it is protected by anti-discrimination laws; a new focus on appearance discrimination and the recent case law related to this issue; a discussion of how issues evolving in the gig economy can impact workplace discrimination.
Friday, March 22, 2019
Liz Morris (U.C.-Hastings Center for WorkLife Law), Jessica Lee (U.C.-Hastings Center for WorkLife Law), and Joan Williams (U.C.-Hastings) have posted on SSRN their report Exposed: Discrimination Against Breastfeeding Workers. Here's the abstract:
Due to the medical consensus that breastfeeding reduces major health risks to both babies and mothers, the United States is waging an ongoing struggle to improve breastfeeding duration rates. Yet legal protections for breastfeeding parents in the workplace have not kept pace with the U.S.’s public health goals. Based on a review of workplace breastfeeding legal cases from the last decade, an analysis of all federal and state workplace laws protecting breastfeeding workers including coverage statistics, and interviews with women who faced workplace discrimination, this report documents the anemic legal landscape of breastfeeding rights at work. Discrimination against breastfeeding workers often forces them to stop breastfeeding or lose their jobs, at a devastating cost to their families. Almost three-fourths of breastfeeding discrimination cases studied involved economic loss, and nearly two-thirds ended in job loss. The legal tools to prevent and respond to such discrimination are lacking in both efficacy and scope. The report offers policy solutions to fix the gaps in our patchwork of laws to protect breastfeeding workers.
Wednesday, March 20, 2019
In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.
Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.
Tuesday, March 19, 2019
Facebook has long suffered accusations that different groups have used the social media platform for discriminatory purposes in advertising. In particular, landlords, employers, and lenders have been at the forefront of such allegations. Facebook, as part of a just announced settlement of these accusations, has just agreed to a major reworking of its advertising system. From the Washington Post:
"The new advertising platform will introduce technological barriers to companies promoting housing, employment and credit ads from significantly restricting their intended audience. . . No longer will they be able to target — or exclude — users based on religious and political views or Zip code, which advocates argue serves as a proxy for race."
The settlement represents a major step in this area, and as a reminder of the discriminatory potential of social media.
Friday, March 15, 2019
The EEOC has proposed some rule changes as part of its digital charge filing system. The Commission has accepted the filing of digital employment discrimination charges for awhile, and it is now seeking to tweak the system through a notice of proposed rule making (NPRM). Per the government's website:
"The NPRM invites public comment on a proposal to more clearly communicate that a no-cause closure does not equate to a finding that the allegations in the charge are meritless, and to include similar language on EEOC's "Dismissal and Notice of Rights." The NPRM also proposes to clarify the filing deadline for charges filed in locations where a state or local fair employment practices agency exists but does not have jurisdiction over the statutory basis for a charge. Finally, the NPRM would allow office directors in the field to delegate authority to issue a "Dismissal and Notice of Rights" with established procedures and quality standards to support increased efficiencies."
Filing charges digitally allows individuals greater access to the judicial forum, and these updates will further help to streamline this system.
Thanks to Aaron Halegua, who has been working on this case, for updating us. Here's an excerpt from the Associated Press story:
Seven Chinese men allege in a lawsuit that they were victims of a forced labor scheme while constructing a Saipan casino.
The casino and its contractors violated U.S. trafficking laws by exploiting the workers, the lawsuit said. Saipan is part of the U.S. Commonwealth of the Northern Mariana Islands.
The lawsuit was filed in December. It was amended Friday to add trafficking claims and to include casino owner Imperial Pacific as a defendant.
According to the lawsuit, the men were subjected to 12-hour workdays, dormitories without showers or air-conditioning and a dangerous construction site.
Thursday, March 14, 2019
First were the adjuncts at Duke. An now, adjunct faculty at Elon joined in the act by voting for union representation--112 to 68 in favor of representation by the SEIU. It's not clear whether the University will file election objections, although they have already noted that this is an option. However, given that some of the issues driving support for the union seem relatively easy to address (e.g., not allowing adjuncts to apply for full-time job openings), one has to wonder if it wouldn't make more sense at this point to simply deal with those issues and move on. But we shall see . . . .
This goes to show that even in a state that regularly vies for the lowest union density in the country, there is still labor activity going on.
Wednesday, March 13, 2019
Earlier this week, the federal judiciary adopted new rules with respect to addressing the harassment of court employees. In light of the #MeToo movement and other developments, such as the accusations against Judge Kozinski, the judiciary decided to bring more transparency to employment in the court system. From the Washington Post: “The administrative office of the courts has already taken steps to create a central, confidential reporting system. . . The office has set up an internal website for employees to report harassment or abusive behavior.” The new rules do not apply, however, to the Supreme Court.
This was an important move by the federal judiciary, and one that signals the seriousness of the issue to all employers and workers.
Tuesday, March 12, 2019
It seems from most of today’s headlines that neither political party can agree on much.
In an interesting new poll by POLITICO/Morning Consult, however, there appears to be bipartisan agreement on one issue. Approximately 32% of all women – – including Republicans, Democrats, and independents – view discrimination in the workplace and pay disparity on the basis of sex to be the most critical problems that women face in our country. The poll and article can be found here, and are worth checking out, particularly if you are researching on this topic.
Friday, March 8, 2019
Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:
In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.
The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.
One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned.
Yesterday, the Department of Labor announced its much anticipated proposed new overtime regulation. This goes to whether employees can be considered exempt from overtime as administrative, executive, or professional employees. The only real change is to the minimum salary threshold required to count an employee as exempt from overtime (that is, no matter what employees' duties are, if they don't make the minimum, they must get overtime if they are otherwise qualified). As readers will remember, the Obama DOL increased the salary threshold to about $47,000 a year initially, and added a measure that would have it change automatically based on average wage increases; this rule was then put on hold by a district court, largely based on a holding that the DOL relied to much on salary and not enough on employees' duties.
The new proposed rule increases the minimum salary, but only to $35,308 per year (up from the current, Bush II-era $23,660 per year that is in place after the decision striking down the previous increase). It also raised the "highly-compensated employee" rule, which makes it easier to exempt employees making over a certain amount, from $100,000 a year to $147,414. The DOL did not propose an automatic increase to these salary levels, but committed to reviewing them regularly (I'll believe that when I see it). Moreover, it left the duties test untouched.
As is the usual practice, this announcement kicks off the comment period, after which the DOL will produce a final rule. And, as is also the norm these days, there will be lawsuits. Some will argue that the increase in salary goes to far, while others will argue that the rule still makes it too easy to exempt employees. Expect mixed messages from the district courts, which parties will handpick to try to get more favorable rulings. The key, therefore, will be to wait for the appeals courts to step in. So, we should see something of a final word on the final rule in, I'd guess, a couple of years from now.
Thursday, March 7, 2019
USA Today Sports has an interesting article on minor league baseball players and their low--and, during major league spring training, nonexistent--pay. Major League Baseball classifies minor league players as being involved in "short-term seasonal apprenticeships." The article does a nice job showing why that's a stretch, to put it mildly. How has MLB pulled this off? Lobbying, and lots of it. The article explains some of the special legal maneuvers at play (pun intended):
Minor league players earn salaries that amount to less than minimum wage for up to seven years on their first pro contracts, and the rigorous spring-training schedule doesn’t exactly allow time for moonlighting.
After a lobbying effort by MLB, last year’s $1.3 trillion congressional spending bill — signed into law by Donald Trump in March — included an amendment to the Fair Labor Standards Act to exempt minor-league baseball players from federal minimum-wage protection. The so-called Save America’s Pastime Act, originally introduced in 2016 by a pair of congresspersons who received campaign donations from MLB’s PAC, appeared on page 1,967 of the 2,232 omnibus 2018 spending bill.
This winter, the league endorsed a bill in the Arizona House of Representatives to extend the federal exemption into state law in Arizona, the spring-training home for half of Major League teams. Representative T.J. Shope, who sponsored the bill, told the Arizona Capitol Times in January that spring training is “essentially a tryout,” even though all players training in every camp are already under contract with their organizations.
Shope told For The Win by email that the Arizona bill did not pass and “was probably dead before it began.” It didn’t get out of committee, meaning it never reached the statehouse floor for a vote.
That dead bill, like the inclusion of the Save America’s Pastime Act in the 2018 budget, undoubtedly reflects Major League Baseball’s efforts to combat a lawsuit first filed in 2014. Spearheaded by St. Louis-based attorney and former minor-league pitcher Garrett Broshuis, the suit seeks to apply federal minimum-wage laws to the salaries of minor leaguers. Pro players in low minor-league levels make as little as $1100 a month, only get paid during the regular season, and do not receive overtime compensation.
“MLB has signed these players up to seven-season employment contracts,” Broshuis said by phone this week. “They’re enjoying the benefits of controlling these players for seven years. On the contract, it calls them employees. They have a responsibility to treat them as normal employees should be treated. They can’t enjoy the benefits of it and not be required to meet the responsibilities that come with it.
Even if you're not a sports fan, this issue is a good reminder that wage and classifications issues didn't start with Uber. In fact, I see a lot of parallels with other industries that manage to dangle low probability/high reward opportunities in front of individuals who will work for nothing, whether as an apprentice, volunteer, or intern (I'm looking at you, fashion and entertainment industries).
Definitely read the article, as it provides a lot of detail about what's going on and the severe disparities that exist on the same field.