Monday, January 27, 2020
Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:
An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.
The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.
Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.
Louis Menand (Harvard Arts & Sciences; degree from Harvard Law) published a great essay in last week's The New Yorker on affirmative action: Integration by Parts. I'm posting the take-away below, but the entire essay is well worth reading, not least for its historical description of the concept.
The whole history of affirmative action shows ... that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.
It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights. And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans.
But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies. Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin? Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors?
Thursday, January 23, 2020
By Sandra Sperino
During Supreme Court oral argument in Babb v. Wilkie, Solicitor General Francisco tried to explain causation through an analogy to a person making an eggless cake. He imagined a scenario in which a statute demanded that a person make an eggless cake. If the person got tired, whipped up some eggs, but did not put them in the cake, the cake would still be an eggless cake. Babb Transcript
Although the analogy is a bit hard to follow, the Solicitor General appears to argue that the person wanting to make the eggless cake is the employer who wants to make decisions without taking protected traits into account. Following the analogy, someone (here the analogy breaks down a bit), considers the protected trait (puts eggs in a bowl), but then no traces of the protected trait appear in the final decision (because the eggs are dumped out before they go in the batter). In this scenario, the Solicitor General argues that there is no causation and the employee cannot prevail.
This blog post is a plea to the Supreme Court. Please, Supreme Court, do not import the idea of the eggless cake into discrimination law. Employment discrimination jurisprudence is confusing enough already. We do not need another analogy in the jurisprudence. Think of the distractions already caused by concepts like “cat’s paw.”
The eggless cake is a particularly bad analogy for several reasons, three of which I want to highlight. First, it imagines only one actor: the person making the cake. This actor knows what it is trying to accomplish (and is trying to follow the statute) and is the only actor involved in accomplishing it. In employment discrimination cases, there are often many actors: the employer, the people who work for the employer and who are involved in making decisions, and the worker who is affected by those decisions. Some employment decisions involve outside actors, like customers. In real life, the people charged with making the eggless cake are separate entities from the employer. That separateness can results in many disconnects between the employer and its employees. For example, those employees may not know the employer wants them to make an eggless cake; they may know it but want to make a cake with eggs; or they might be trying to make an eggless cake, but fail to realize that they used eggs. Likewise, the employer itself may be trying to follow the statute, may want to discriminate, or may be indifferent to whether it does.
Second, in real life, there are often multiple people impacting an outcome, and each one may be inserting eggs (consideration of a protected trait) into the outcome, with or without the other people knowing about it. For an example of this, see the facts of Price Waterhouse v. Hopkins, which highlight how the combined opinions of various actors can coalesce into a decision. The analogy would at least need to recognize that multiple people might be putting eggs into the batter.
Third, eggs are a terrible ingredient to include in the analogy. Anyone who has put an egg in a bowl knows that it is nearly impossible to get all of the egg out without completely washing the bowl. Some of the residue of the egg clings to the side. And this is the key question in discrimination cases. Once a protected trait is introduced into the process, whose responsibility is it to prove that the protected trait did not play a role in the outcome? During oral argument, Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).
Thursday, January 16, 2020
My Akron colleague Mike Gentithes gives us yet another reason to hate the Janus decision -- the way it undermines stare decisis generally, with potentially dire consequences for abortion rights, civil liberties, labor/employment rights generally, etc. etc. The article is Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis; it is a depressing but persuasive read. Here's the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.
This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.
Wednesday, January 15, 2020
The Supreme Court heard oral argument today in Babb v. Wilkie. The Court considered whether the federal sector provision of the ADEA requires the plaintiff to establish “but-for” cause. The ADEA (29 U.S.C. §633a(a)) provides that personnel actions affecting agency employees aged 40 years or older shall be made free of any discrimination based on age.
Overall, there were not many surprises in today’s argument. There were very few questions related to Gross and Nassar, and many of the Justices seemed reluctant to apply the analysis from those cases onto language in the ADEA federal sector provision that is clearly different than the main ADEA language. There was very little discussion by the Justices about tort law and its role in discrimination law.
Here are highlights from today’s oral argument:
Chief Justice Roberts drops an “OK, Boomer” reference at page 20 of the transcript.
The Justices seemed concerned about understanding the types of situations in which a plaintiff could prevail, but would not be able to prove “but for” cause. Several of the Justices posed questions related to when a final decision was not based on age, but the process leading up to the decision was tainted by improper consideration of age. Solicitor General Francisco made an analogy to a person making an eggless cake. If the person whipped up some eggs, but did not put them in the cake, the cake was still an eggless cake. Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).
Chief Justice Roberts cryptically asked whether the petitioner’s standard would improperly regulate speech in the workplace in violation of the First Amendment. (Transcript, p. 22)
Petitioner agreed with Justice Breyer that applying the Title VII motivating factor standard would be appropriate. (Transcript, p. 24)
Justice Kavanaugh seems to argue that the ADEA’s language regarding “otherwise discriminate” is fairly broad. (Transcript, p. 33)
The government relied heavily on the incorrect idea that there is a canon of construction requiring the plaintiff to prove “but for” causation, unless a statute provides otherwise.
The government argued that when looking at statutory language, it is appropriate to look at the entire body of law related to the statute, including later-enacted statutes. (Transcript, p. 37).
Justices Sotomayor, Ginsburg, and Kagan focused on why Congress chose to use different language in the main portion of the ADEA and the federal sector provision. (starting at Transcript, p. 41). Justice Kavanaugh also asks about the different text. (Transcript, p. 47).
Justice Breyer embraced using a “but for” standard as part of remedial principles. (Transcript, p. 49). He also stated that the federal government should be a model employer. It might have obligations to go beyond other employers in prohibiting discrimination. Earlier in the argument, Justice Kavanaugh asked about why “but for” principles would be relevant at the remedial stage of litigation, but not the liability stage. (Transcript, p. 6)
Sunday, January 5, 2020
Thursday, December 19, 2019
I’ve now had a chance to do a more careful read of Rio, which confirmed my earlier sense that both the majority and dissent have almost fully adopted the early positions of Register Guard and Purple Communications, respectively (although Rio does, as it should, appear to expand its logic to all electronic communications, rather than just email). This is not a surprise and, from a selfish point of view--at least while I’m trying to get through a stack of exams--makes it easier for commentators like me, as there’s not much new going on. I did want to comment more on one issue, however.
One argument that I’ve advocated since 2007 was that the combination of Supreme Court precedent and basic property law mandated the outcome of electronic communication cases. I’ve now seen a Board majority twice try to get around this argument and, to put it mildly, I haven’t been impressed. First, in Register Guard, the Board relied on a smattering of personal property cases involving things like a bulletin boards and photocopiers. I took down these cases in a subsequent book chapter, noting that they were essentially a bunch of cases, initially analyzing a different issue, self-citing each other and were ultimately based on an ALJ’s line of dicta in a single case. The Board in Purple Communications agreed, but in Rio the Board reaffirmed those cases, albeit while implicitly recognizing their weakness by briefly trying to defend them with an argument that it admits the cases themselves never relied on. But, really, Rio abandons those decisions as a basis for its electronic communications ruling. Instead, it relies on a second argument, one that finds that employer’s personal property rights trump employees’ Section 7 of the NLRA right to communicate. That’s the argument that I want to focus on here.
Let me start with some undeniable truths:
- Under the Supreme Court’s Republic Aviation decision, employees have a right to engage in NLRA speech while at work, with certain limits on the time and place. This is in spite of employers’ interest in controlling use of its real property.
- Under the Supreme Court’s Lechmere decision, non-employees almost never have right to engage in NLRA speech while on employer-controlled property.
- In Lechmere, the Court made crystal clear that the difference between its line of reasoning and Republic Aviation is whether or not the speaker is an employee. If so, Republic Aviation and the right to communicate on employer property usually exists; if not, Lechmere allows employers to exclude non-employee speech in almost all cases.
OK, a pause for a moment. At this point, employers and Board Members arguing that employees lack the right to use employer have a problem: the fact that the cases involve employees. The Supreme Court has made clear that employees, as opposed to non-employees, have right to engage in NLRA communications that typically trumps employer property interests. So, to get around this, one would need to either conclude that electronic communications involve either diminished NLRA interests or expanded employer property interests. The Board hasn’t tried to do the former, as they can’t—the Supreme Court has boxed them in with Lechmere and Republic Aviation. Thus, the Board in Rio, as it did earlier in Register Guard, has tried the latter. And here’s where I want to jump back in with a couple more truths.
- Under Republic Aviation, employers’ real property interests cannot be used to bar employees’ NLRA rights to communicate. They can limit communications to non-work time, for instance, but the Court is clear that when employees are already legitimately at work, real property interests (which, remember, is a legally granted interest) are outweighed by employees’ NLRA rights (another legally granted interest).
- Under basic property law, real property interests are stronger than personal property interests. A principle point on this is that personal property trespass requires a showing of harm, while real property trespass assumes such harm.
The Board in Rio seems to be disputing this final truth, although all it really does is cite a couple of law review articles that criticize the requirement that personal property trespass require a showing of harm in cases involving electronic property. The Board in Rio also argues that even if a trespass isn’t actionable under common law, it doesn’t mean that there is a right to such trespass. I have no dispute with that comment on its own, but it doesn’t have any relevance here because employees’ right to use electronic communications is coming from the NLRA, not state property law. Even if you accepted the Board’s implication that real property and personal property are on the same footing (which you shouldn’t do, because it’s wrong), that gets you . . . back to Republic Aviation. The only way one can honestly argue that Republic Aviation doesn’t apply is to conclude that property interests are entitled to more protection than real property interests. The Board doesn’t even pretend to do this. Indeed, it’s really stretching to find anything that might sound like the two property interests are on similar footing.
Here’s where I differ from Member McFerran’s dissent. She says that there is no Supreme Court precedent that requires the Board to rule either way on the electronic communications issue. That’s incorrect in my view. The logic of Republic Aviation, Lechmere, and basic property law does require a specific result: that employees’ use of employer electronic communications be treated at least as favorably as employee communications under Republic Aviation. There is some play in the distinctions that the Board has made between oral and written communications, which I’ve discussed before but won’t get into now. But the bottom line is that unless the Court abandons the employee/non-employee distinction that is the foundational difference between Republic Aviation and Lechmere, the decision in Rio is flat-out wrong. No policy deference exists that allows the Board to conflict with Supreme Court precedent. And the Board certainly can’t overrule state property law—something, as it has shown frequently, is not in its expertise.
I very much look forward to this case going up for appellate review. I certainly won’t predict that a court won’t enforce Rio, but I will argue strenuously that it shouldn’t. No matter what one thinks of the policies at stake in electronic communications cases, the Supreme Court’s rulings in this area lead to one, and only one, possible result. That’s the conclusion in Purple Communications that, under normal circumstances, employers cannot bar employees from engaging in NLRA-protected communications on employer equipment.
Wednesday, December 18, 2019
It is with great sadness that I write to report (thanks, Mitch Rubinstein, for letting me know) the passing of long-term and much-beloved Professor David Gregory (St. John's). Here's an excerpt from his law school obituary. Remembrances in the form of comments to this post would be much appreciated.
David L. Gregory  served as the Law School’s Dorothy Day Professor of Law from in 1982 to 2017.
Professor Gregory came to St. John’s after working as an equal employment opportunity counselor with the Postal Service, a labor relations representative with Ford Motor Company, and an attorney with a prominent management labor and employment law firm in Detroit. He brought a keen intellect, a love of teaching and learning, and an encyclopedic knowledge of rock and roll to the classroom, where he enthralled generations of students.
And his students were always at the heart of Professor Gregory’s endeavors at the Law School, where he founded the Center for Labor and Employment Law with a focus on the importance, and the sanctity, of doing good work in the world. “The Center strives to show students, by engagement and example, that they can be successful practitioners who also give back to their communities,” Professor Gregory said early on.
Under his leadership, the Center met its mission with a range of offerings, from courses in Employment Discrimination, Labor and Employment Arbitration, Public Sector Labor and Employment Law, and ERISA to international conferences and symposia in Dublin, at the University of London, and at Cambridge University, to distinguished guest speakers at the Law School―including three chairs of the National Labor Relations Board, a Solicitor General of the United States, a former EEOC chairman, AFL-CIO presidents, His Eminence Edward Cardinal Egan, the former Archbishop of New York, and Cesar Chavez, founder of United Farm Workers of America, among others.
Tuesday, December 17, 2019
NLRB Flips Again on E-Mail, Concluding that Employees Typically Lack the Right to Use Employer E-Mail for NLRA Communications
Today, the NLRB issued its decision in Rio All-Suites Hotel, which concluded that employees typically lack the right to use employer provided e-mail under the NLRA. The Board explictly adopted the rationale of the earlier Register-Guard decision which held the same and overruled the subsequent Purple Communication, which had reversed Register-Guard. Given that the the Board is literally rehashing prior arguments (this issue is now on the official "flip-flop" list), I'm going to follow its lead and rehash my prior commentary on the issue. I'll claim exhaustion as a defense--I've written extensively about this topic (see, e.g., here, here, and here), including an amicus brief in Rio. And I'll no doubt do the same when the Board flips again.
One note before I get to the self-plagarism: A small victory in Rio is that the Board didn't pursue the First Amendment claim the Member Johnson advocated in his Purple Communications dissent. I thought it was a weak claim, but definitely one that the Board could've pursued.
When Register-Guard was first issued, I blogged the following about the decision, which--based on a skim of Rio--remains applicable today. There is one addition in Rio, which is "an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another." I'm honestly not sure this is new, because in Register Guard the Board seemed to suggest the same thing (while disclaiming it in a footnote)--which essentially, and incorrectly as McFerran's dissent notes, applies the Lechemere non-employee test to an employee activity situation. On to the rehash:
. . . The majority, in finding for the employer . . . took an overly restrictive view on the importance of emails, which was no shock given the oral argument. However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used. First, with regard to the email policy, the majority concluded that:
An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.
Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . . .
In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviationrequires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.
The majority's analysis here is weak. The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ). Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law. As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation. Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule. The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances. I'm obviously supportive, given that I argued for that exact rule.
It is also important to note that Rio leaves Register-Guard's narrow view of the discrimination exception to this rule. I never understood why the Obama Board in Purple Communications left that undisturbed, but that piece of Register-Guard has now remained the same for a while I've described that exception as follows:
The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context. To quote my own summary of the various definitions of discrimination, which include: "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions." The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):
In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).” Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.” The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”
Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees
In the end, Rio is disappointing, but not surprising. And almost certainly not the last word once a new adminsitration comes in. Also, I am very curious to see what an appellate court does with the rule. As I explained, I think its directly in conflict both with Supreme Court precedent and basic property law. So a court could reject the rule. Note that the D.C. Circuit didn't approve of Register Guard, reversing it on another issue. So we shall see . . . .
Friday, December 13, 2019
This morning, the NLRB released new election rules. There seems to be a major administrative law issue here because the NLRB didn’t engage in formal notice-and-comment rulemaking. They defended that approach in their rule, but I’m not sure they’re able to change a rule that was promulgated via notice-and-comment without going through the same procedure. To be clear, I really mean that I’m not sure—but some quick check-ins with folks who know more administrative law than me makes me think that I’m right on this. But we’ll have to see. I’ll note that this is a double-edged sword. If the NLRB is successful here, then a future Board can change them back again without notice-and-comment. This also highlights some hypocrisy, as opponents of the 2014 rules and their predecessor made numerous criticisms based on process, including that the notice-and-comment rulemaking that occurred wasn’t enough. Those criticisms ring hollow now.
As a reminder, in 2014, the NLRB promulgated several changes to its representation election procedures, which we’ve described before (e.g., here and here and here) and I explored in my article, NLRB Elections: Ambush or Anticlimax? My conclusion in that article was that most of the changes were modest, sensible updates to the NLRB’s election process that would provide somewhat faster elections and probably wouldn’t change the outcomes much, if at all. Much to my surprise, my prediction was spot on. The union win rate has been essentially unchanged. Moreover, the time it takes from an election petition to the election itself when down a modest two weeks or so (about 37 days to 22.5 days) in uncontested elections and down about three weeks in contested elections (about 59 days to 35.5 days). Similar modest reductions occurred for certification. Moreover, the new rules reduced elections with major (more than 100 day) delays to about only 10% of all cases.
Despite the modest impact of the 2014 election rules, reversing them has remained a goal of many employer groups and the Trump NLRB, which has been telegraphing its intent to revisit them. Today, they’ve done it, largely in rolling back the 2014 rules to the pre-2014 framework. A quick run-down of the major changes, based on a quick look at the new rules:
- The deadline for pre-election hearings go from 8 calendar days after an election petition is filed to 14 businessdays, with the possibility of an extension of time.
- The deadline for employers to post election notices goes from 2 business days to 5 business days.
- Non-petitioning parties' (that is, employers in new elections ad unions in decertification elections) statements of petitions goes from around 7 calendar days to 8 business days after the region issues a notice of a hearing.
- The regions now must generally address questions regarding eligible votes and bargaining unit determinations in a pre-election hearing, rather than a post-election hearing under the 2014 rules. This is a change that, in some cases, will have more impact than it may appear at first blush, as it gives the non-petitioning party incentive to raise these issues early—even if the argument is weak—simply to add delay.
- Parties’ again have right to file post-hearing (and pre-election) briefs, which was eliminated as a matter of right in 2014. The briefs are due no less than 5 business days after a hearing and can be extended to 10 business days.
- Regions are now told to normally schedule elections no earlier than 20 business days after election order ("direction of election"), unless parties’ consent to a faster timetable. This is another particularly impactful change.
- Unlike under the 2014 rules, the Region will not automatically impound contested ballots until issues are resolved.
- The deadline for exclesior lists (list of voting employees' contact info that employers must give to unions) goes from 2 business days to 5 business days.
- Regions are not to certify election results if there is a pending request for review. This is another change that will allow non-petitioning parties to create signification delays.
This is one of those labor law issues where it looks like one side cares more about a “win” than any real impact. As we’ve seen, the union win rate in elections haven’t really changed under the 2014 rules, which is the ultimate result that parties care about most. So, much of this move seems to be checking off a goal of employer-side interests who objected to the 2014 rules. That said, increasing delay itself is a benefit to non-petitioning parties (which are usually employers, but can be unions), in that it allows more time before the potential of a disfavored outcome. Indeed, in her dissent, Member McFerran states that these changes means that the quickest an election can be certified moves from 28 days after an election order to 78 days. And that represents the real impact of these rules. Remember: the NLRA’s explicitly stated policy is to promote employees’ ability to freely choose collective representation. Delaying their ability to do so for no apparently good reason conflicts with that policy.
Thursday, December 5, 2019
Hot off the presses is The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century, edited by Richard Bales and Charlotte Garden.
The publisher summarizes:
Over the last fifty years in the United States, unions have been in deep decline, while income and wealth inequality have grown. In this timely work, editors Richard Bales and Charlotte Garden - with a roster of thirty-five leading labor scholars - analyze these trends and show how they are linked. Designed to appeal to those being introduced to the field as well as experts seeking new insights, this book offers a politically diverse range of solutions, from the radical, such as a complete overhaul of federal labor law, to the incremental, including reforms that could be undertaken by federal agencies on their own.
I'll be pressing our library to get a copy of what couldn't be a timelier contribution.
Monday, December 2, 2019
Zach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:
Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.
We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.
We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).
Friday, November 8, 2019
Thanks to Tequila Brooks for sending information about Continuing the Struggle: The ILO Centenary and the Future of Global Worker Rights. The conference will be November 21-22, 2019, at Georgetown University.
Wednesday, November 6, 2019
Congratulations to Tequila Brooks and Lance Compa (emeritus, Cornell ILR) on the publication of the second edition of NAFTA and NAALC: Twenty-Five Years of North American Trade - Labour Linkage (Wolters Kluwer 2019)! The book is an excellent resource on the various petitions that have been filed, and includes comparisons of labor provisions of various recent US, Canadian and Mexican FTAs - as well as a comparison of NAALC with USMCA's labor chapter. Here's the publisher's description:
The 25th anniversary edition of the NAFTA and NAALC monograph in the International Encyclopaedia of Laws, Labour Law and Industrial Relations is a comprehensive and up-to-date 270-page resource that contains essential background on the structure and operation of labour provisions in North American free trade agreements, including NAFTA, USMCA, CAFTA-DR, TPP, CPTPP, TTIP, CETA, EU-Mexico, and Canadian and US bilateral free trade agreements with partners in Latin America and around the world. It also contains a complete digest of all of the citizen petitions filed under the NAFTA labour side agreement since 1994. The monograph includes early petitions filed about trade union rights at the Honeywell and Echlin plants in Mexico, the McDonald's case in Canada, and the Washington Apple and DeCoster Egg cases in the United States – not to mention recent petitions filed about migrant worker rights under the H-2A and H-2B visa programs in the US.
In addition to being the most complete compilation of NAALC cases in existence today, NAFTA and the NAALC Twenty-Five Years of North American Trade-Labour Linkage outlines the internal mechanics leading to the filing of a 2000 NAALC petition with the Government of Mexico about unequal treatment of migrant workers in the US, and describes changes in the treatment of petitions by US, Mexican and Canadian authorities over the last 25 years. It also contains a chapter that compares the NAALC to the OECD Guidelines for Multi-National Enterprises and highlights recent North American cases filed under the OECD Guidelines including the relatively lesser known 2004 Yucatan Markey Tex-Coco Tex petition, which was dual filed under both mechanisms, and dual petitions filed under NAALC and the OECD Guidelines about working conditions at Chedraui grocery stores in Southern California and Northern Mexico.
Tuesday, October 22, 2019
Thanks to Tequila Brooks for forwarding an announcement from Desiree (LeClercq) Ganz about this upcoming symposium at American University - Washington College of Law. The symposium, on International Trade, Development, and Worker Rights, will be on Tuesday, November 12, 2019, and will include as speakers high-level officials from the ILO, World Trade Organization, and World Bank, among others. Here's the symposium brochure.
Guest Post by Jack Harrison: Oral Argument in Title VII LGBT Cases Offers Few Clues on How SCOTUS Might Rule
Thanks to Jack Harrison (NKU-Chase) this terrific guest post:
Aimee Stephens, a transgender woman who worked as a funeral director, began her employment at Harris Funeral Home presenting as male, the sex she to which she was assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and that she intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.” The EEOC sued on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, the district court held that Stephens had been subjected to sex discrimination in violation of Title VII because, consistent with Price Waterhouse v. Hopkins, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though Stephens had been the victim of sex discrimination, the funeral home had a right to terminate her under Religious Freedom Restoration Act (“RFRA”), holding that RFRA protected personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In 2018, the United States Court of Appeals for the Sixth Circuit reversed this decision. In its decision, the Court of Appeals moved beyond the sex stereotyping rationale of Hopkins, holding that Title VII specifically outlaws employment discrimination against transgender persons.
On Tuesday, October 8, 2019, the United States Supreme Court heard oral argument in Harris Funeral Home, addressing the question of whether Title VII’s prohibition against discrimination because of sex encompasses a prohibition against discrimination based on gender identity. On the same day, the Court also heard arguments in two other cases, one from the Second Circuit, Altitude Express v. Zarda, and one from the Eleventh Circuit, Bostock v. Clayton County, addressing the issue of whether Title VII’s prohibition against discrimination because of sex includes a prohibition against discrimination based on sexual orientation.
Before the Supreme Court, David Cole of the ACLU presented the argument on behalf of Aimee Stephens. In the opening of his argument to the Court, Cole broke the case down into its simplest terms, stating:
Aimee Stephens is a transgender woman. She was a valued employee of Harris Funeral Homes for six years, until she told her boss that she was going to live and identify as a woman.
When Harris Homes responded by firing her, it discriminated against her because of her sex for three reasons. First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender.
As Cole pointed out in his argument, Stephens was fired for “identifying as a woman only because she was assigned a male sex at birth.” In firing her for this reason, Harris “fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.”
While the Justices focused many questions on the issues of restrooms and athletes, neither of which were before the Court in this case, Justice Gorsuch acknowledged that, on this question, the text of Title VII was “close.” However, Justice Gorsuch raised the following concern:
At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that --that Congress didn't think about it.
Yet, as David Cole pointed out in response to Justice Gorsuch, “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years” and “[t]here's been no upheaval.”
In Zarda and Bostock, argued the same day as Harris Funeral Home, the Court addressed the claims of two men who asserted that they were fired from their jobs because they were gay in violation of Title VII. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.
In arguing on behalf of the two men, Stanford professor Pamela Karlan also faced a number of questions by the justices regarding restrooms and dress codes, issues that were not before the Court in these cases either. In responding to these questions, Karlan pointed out that Title VII specifically addresses the situation regarding restrooms, with the central question being whether providing same-sex bathrooms denies someone an employment opportunity. As to the issue of dress codes, Karlan indicated that the justices would be forced to address the issue in future cases, no matter how they rule in these cases.
However, the primary issue raised during the oral argument in Zarda and Bostock was whether, in passing Title VII in 1964, Congress intended to bar discrimination based on sexual orientation and whether, from a textual interpretive perspective, that mattered at all. As Karlan pointed out, the Supreme Court has recognized many other claims under Title VII that Congress could not have contemplated in 1964, including both opposite-gender and same-gender sexual harassment and claims based on sex stereotyping.
Justice Gorsuch was very active in the Zarda and Bostock oral arguments, challenging arguments by counsel for the employers, Jeffrey Harris, attempting to draw a clear line between definitions of “sex” and “sexual orientation” as the basis for the termination of the employees. For example, Justice Gorsuch pushed Harris on this point:
Your response to Justice Kagan was, I need to focus on sexual orientation because that's the sole or primary causal factor here for the firing.
And I think the response from the other side is: But the statute has a more generous causal formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable? And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one –o ne would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?
Justice Gorsuch returned to this theme during the argument of U.S. Solicitor General Noel Francisco, who appeared on behalf of the federal government as a “friend of the court” supporting the employers in this case. When the Solicitor General attempted to draw a line between the meanings of sex and sexual orientation, Gorsuch again responded that at least one contributing cause of the plaintiffs’ firings here does appear to be sex.
In concluding his argument in all three cases, the Solicitor General argued that a ruling for the employees in these cases would ignore the issue of religious objections employers might have to hiring LGBT employees, while, at the same time, greatly expanding the rights of LGBTQ employees. For this reason, among others, the Solicitor General argued that this decision should be left to Congress to resolve.
Following the oral arguments in these cases, it is difficult to predict whether five votes exist for holding that Title VII’s prohibition against discrimination because of sex encompasses sexual orientation and gender identity. Based on the oral argument, it would seem that Justice Gorsuch vote might well be at play, given his acknowledgement that the text of Title VII made this a close call. This confirms the strategic decision by those who submitted briefs and amici on behalf of the employees to focus on the text of Title VII itself.
While many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace, these cases make clear how far from reality that actually is. Currently LGBT employees are largely unprotected from employment discrimination. The protections that do exist are under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. Thus, discrimination in the workforce remains a constant in the lived experience of LGBT persons.
Monday, October 21, 2019
Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.
Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.
Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.
César Rosado writes to tell us about an upcoming symposium at Chicago-Kent on Thursday, November 14, 2019: Alt-Labor Law: The State of the Law of the New Labor Movement. Here's a schedule of the symposium; here's a description:
This proposed symposium will bring together a group of highly accomplished scholars who have been writing about nontraditional labor organizing and other ways to break and redistribute economic power to describe the current state of the law pertaining to “alt-labor,” or what the volume will refer to as “alt-labor law.” Parts of alt-labor law lie within traditional labor and employment law, but a lot of it does not. Alt-labor law includes first amendment protections used by non-employee labor unions and worker centers, laws regulating non-for-profit associations, state laws dealing with industry wide-minimum wage setting and voluntary dues deduction, and anti-trust laws that impinge on the rights of independent contractor unions, among others.
This proposed volume of the Chicago-Kent Law Review volume will serve as a research tool for academics, policy makers, and legal practitioners. They will have, in one place, the state of the law of this fledgling legal field. The live discussion at Chicago-Kent will help these scholars learn about the disparate and discreet pieces of the law of alt-labor to enrich the final drafts of their articles. It will also attract a public interested in alt-labor, not least in Chicago, home of many very active alt-labor groups.
Saturday, October 19, 2019
More self-promotion. Just posted on SSRN:
Retaliation and Requesting Religion Accommodation
A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodation of religious practices or observances are generally not protected conduct within the scope of § 704, Title VII’s antiretaliation provision. The court reasoned that such a request fell did not fall within the “opposition” clause of the provision since it did not “oppose” anything the employee could have reasonably believed was discriminatory.
This counterintuitive holding has the potential to frustrate Title VII’s command that employers reasonably accommodate believers by suggesting to employees that requests for accommodation are perilous. It is true that Supreme Court precedent protects an employee when the accommodation must be granted because it is reasonable and not an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, prohibited under § 703, and so there is no need to invoke § 704.
But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court’s longstanding and extraordinarily narrow reading of the duty of accommodation under the statute. And if the Eighth Circuit’s view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also take adverse employment actions against those foolish enough to ask for it.
This Article analyses the complicated interaction between the accommodation command of § 703 and the retaliation prohibition of § 704. In the process it rejects the “no harm, no foul” argument sometimes made, which is that denying employment or firing a worker who seeks an “unreasonable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on a false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.
The Article concludes that the Eighth Circuit is wrong in its reading of § 704 as applied to requests for accommodation. Further, it argues that, regardless of the correct reading of that provision, taking adverse action against a worker whose accommodation request was legitimately denied may violate § 703’s prohibition of status discrimination, a question not answered by the Eighth Circuit.
The full article can be found here.
Saturday, October 12, 2019
Some readers might be interested in a symposium the Seton Hall Law Review is sponsoring about my work. Scheduled for November 1, it really has a star-studded collection of scholars discussing various aspects of the topics I've written on for lo these many years. In short, there's something for almost everyone in the employment law universe and all are welcome.
And, no, this doesn't mean I'm retiring either from scholarship or Seton Hall!
A Symposium in Honor of the Work of Charles A. Sullivan
November 1, 2019
8:15 am: Registration & Continental Breakfast
9:00-9:15 am: Welcome
Daniel F. Carola, Symposium Editor, Seton Hall Law Review, Seton Hall University School of Law
Kathleen M. Boozang, Dean and Professor of Law, Seton Hall University School of Law
9:15-9:30 am: Overview
Timothy P. Glynn, Seton Hall University School of Law
9:30-11:00 am: Panel One: Faithless Servants, Employment Contracts, and the Sullivan Perspective
Rachel S. Arnow-Richman, University of Denver Sturm School of Law, Faithless Servants, Neglected Children: Revisiting Sullivan’s Work on Employee Competition with a 2020 Vision
Matthew T. Bodie, St. Louis University School of Law, Taking Employment Contracts Seriously
Samuel Estreicher, New York University School of Law, Duty of Loyalty, Faithless Servants, and the Restatement of Employment Law
11:00-11:15 am: Break
11:15-12:45 pm: Panel Two: Antidiscrimination Insights: Causation, the Cat’s Paw, and Age Discrimination
William R. Corbett, Louisiana State University Law Center, Explorations with Charlie Sullivan: Theorizing a Larger Universe of Employment Discrimination Law
Sandra F. Sperino, University of Cincinnati College of Law, Charlie Sullivan Kills the Cat's Paw
Rebecca Hanner White, University of Georgia School of Law, Aging on Air
12:45-1:45 pm: Lunch
1:45 – 3:15 pm: Panel Three: Social Change and Workplace Law
Michael Z. Green, Texas A&M University School of Law, Mediating Mental Illness as a Workplace Accommodation
Ann C. McGinley, UNLV William S. Boyd School of Law, MeToo Backlash or Common Sense?: It’s Complicated
Sachin S. Pandya, University of Connecticut School of Law, On Evidence of Social Networks in Employment Law: Conjectures From Charlie Sullivan’s Shoulders
3:15-3:30 pm: Break
3:30-5:00 pm: Panel Four: Disparate Impact and the Future of Workplace Justice
Tristin K. Green, University of San Francisco School of Law, The Juxtaposition Turn: Watson v. Fort Worth Bank
Michael Selmi, Arizona State University Sandra Day O’Connor College of Law, Bending Towards Workplace Justice
Steven L. Willborn, Nebraska College of Law, Two Takes on Charlie’s Disparate Impact
5:00 pm: Closing Remarks
Tatiana S. Laing, Editor-in-Chief, Seton Hall Law Review, Seton Hall University School of Law