Tuesday, January 15, 2019
Two increasingly rare events occurred today in the same case: [a subset of] workers got a win, and the Supreme Court narrowed (yes, you read that correctly) the scope of the Federal Arbitration Act. Though the case at first blush appears narrow, it may have much broader implications in the Uber litigation.
The case is New Prime Inc. v. Oliveira. Dominic Oliveira was a truck driver for Prime under a contract calling him an independent contractor and containing an arbitration clause. Oliveira filed a class action alleging underpayment of wages. Prime moved to dismiss and send the case to arbitration, on two grounds: (1) the arbitration clause gave the arbitrator the authority to decide arbitrability issues -- so Prime argued the case should go straight to arbitration for the arbitrator to decide first the arbitrability issue and then, presumably, the merits; and (2) because Oliveira was an independent contractor, he was not covered by the FAA Section 1 exclusion of "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Because, Prime argued, Oliveira wasn't excluded by Section 1, he was covered by the FAA, and his dispute should be subject to the same nearly irrebuttable presumption of arbitrability applied to all other contracts covered by the FAA.
The Supreme Court ruled 8-0 (Kavanaugh did not participate) for Oliveira on both counts. On the arbitrability issue, the Court characterized the "arbitrator decides arbitrability" clause as merely a specialized form of an arbitration clause. Like any other arbitration clause, the Court reasoned, this type of arbitration clause is not enforceable under the FAA if it's excluded by Section 1. And courts -- not arbitrators -- decide "substantive" arbitrability questions such as the scope of the Section 1 exclusion.
As noted above, Prime argued that the Court should interpret the FAA Section 1 exclusion as applying only to "employees", not to independent contractors. The Court, however, rejected that argument as inconsistent with the common understanding of those terms in the 1920s when the FAA was drafted and enacted. At the time, the Court said, "employment" was more-or-less a synonym for "work" -- and "work" is what Oliveira was doing regardless of whether he is today classified as an "employee" or an "independent contractor".
This is a rare win for workers under the FAA, but it's a narrow one. The Court already has restricted the Section 1 exclusion to transportation workers (Circuit City v. Adams). But Uber drivers are transportation workers, and there's a ton of pending litigation over whether they are employees or independent contractors. After New Prime, Uber drivers may be excluded by the FAA regardless of their legal designation.
Among the many NLRB doctrines that have swung in various directions is the one in which an individual employee's actions or words may be concerted activity protected by Section 7 of the NLRA. The Meyers I and Meyers II cases are the foundation for this doctrine, but we've seen many subsequent Board decisions applying the doctrine in different ways depending on the Board members involved. This week's decision in Alstate Maintenance continues that trend, as the full Board (well, the current four members at least) purports to "begin the process of restoring the Meyers standard." Maybe I'm missing something, but it seems to me that, purely from a doctrinal perspective, that statement is an overreach and the decision is a bit of tempest in a teapot.
Under the Meyers standard and related cases, the General Counsel can show that an individual employee is engaging in concerted activity if the employee was attempting to initiate or to prepare for group action, or if the employee was engaging with or on behalf of a group of employees (there are other ways as well, such as enforcing rights under a collective-bargaining agreement). The Board doesn't attempt to alter these underlying rules, but instead goes all in for a stingy interpretation of individual-concerted activity. In essence, the Board distinguished cases where it felt it could do so, and overruled the one case that it believed to be too much of an impediment (WorldMark by Wyndham). In particular, the Board rejected statements in that case that an employee who protests in a group meeting in engaging in concerted activity by attempting to intimate group action and that complaining in a group setting is necessarily concerted activity (the dissent disputes this characterization of WorldMark). Instead, the Board in Alstate reiterated the need to engage in a fact-specific inquiry under Meyers II. The money quote is:
Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. Consistent with Whittaker and Chromalloy Gas Turbine, relevant factors that could tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
 We do not hold that all these factors must be present to support a reasonable inference that an employee is seeking to initiate or induce group action. In keeping with Meyers II, the determination of whether an individual employee has engaged in concerted activity remains a factual one based on the totality of the record evidence. . . .
One thing that's odd about this case is that it involved not only an employee's comment (a skycap who initially stated that a group of skycaps had helped a similar group arriving at the airport previous and didn't receive a tip) but also a partial work stoppage (the employee and others refused to help the new group). Alas, the GC only focused on the comment, although one might wonder why the fact that group action actually occurred did play a bigger role in the Board's analysis. Nevertheless, I don't see Alstate as making any major, substantive changes to the Meyers standard. Rather, it seems to be an example of a restrictive reading of Section 7 that we'd except from a Republican Board, announced in a way to send a message to parties about what it's doing. That said, as Michael Duff emphasized to me, even if the doctrine isn't effected much, this can have real impacts on employees who are protesting conditions at work.
Yes, says Erin McHenry-Sorber (Assistant Professor of Higher Education, West Virginia University -- and thanks to Paul Harpur for sending me the link). Here's an excerpt from her recent article in The Conversation:
The Los Angeles teachers strike suggests that the wave of teacher protests is not over.
Teacher strikes and work stoppages have been preceded by a nationwide teacher shortage that continues to grow across many states, which do not have enough certified math, special education, science, and in increasing cases, elementary teachers – to meet the needs of their students. In California 80 percent of districts reported a teacher shortage in the 2017 to 2018 school year.
Teacher shortages are most often blamed on low teacher pay, one of the commonalities across teacher strikes. These shortages are arguably exacerbated by an increase in the “teacher pay penalty,” the term used to describe disparities in teacher salary compared to professions requiring comparable levels of education.
At the same time teachers find themselves increasingly undervalued, most states are still funding their public education systems at levels below that of the 2008 recession. This includes California, which is ranked 41st nationwide in per pupil spending when adjusted for cost of living. As long as public schools remain underfunded, the nation can expect to see more teacher strikes in other school districts and states in the near future.
Wednesday, January 9, 2019
This Article argues employers should be required to engage in the same interactive process with employees seeking religious accommodations as they are with employees seeking disability accommodations. The interactive process generally obligates the employer and employee to work together in good faith to determine whether the employee can be reasonably accommodated. Neither the Americans with Disability Act nor Title VII of the Civil Rights Act explicitly mandates the interactive process, yet courts routinely read this requirement into the former statute but not the latter. The practical effect of this distinction is that religious accommodations generally are more difficult to obtain, and employees seeking such accommodations have less control over the process and outcome. Consequently, employees may be forced to choose between their jobs and their religious beliefs—the very conundrum Title VII seeks to avoid.
The legal justification for mandating the interactive process for disability accommodations but not religious accommodations is uncompelling, prompting a handful of courts to require the interactive process for both types of accommodations. More courts should follow suit. There is considerable upside, and virtually no downside, to extending the interactive-process requirement to religious accommodations. It benefits employees and employers alike by increasing the odds of a mutually agreeable accommodation, which in turn reduces the risk of litigation. Moreover, good-faith participation in the interactive process better positions a party to prevail when litigation does ensue. The interactive process also benefits courts, not only by lightening dockets through reduced litigation, but also by providing a straightforward, highly adaptable, and familiar framework through which to more effectively evaluate accommodation claims. As religious-accommodation requests increase, both in number and types, the interactive process can help reduce conflict by ensuring employers and employees work together to determine whether a reasonable accommodation is possible.
Wednesday, January 2, 2019
The American Federation of Government Employees has initiated a suit on behalf on of two federal corrections officers who have not received earned overtime pay. The class is likely to grow substantially if the shutdown continues past Jan. 5, as that's the next regularly scheduled payday. Indeed, it is estimated that over 400,000 employees have been deemed essential and are required to continue working during the shutdown.
Like a similar suit brought during the 2013 shutdown by the same law firm--Kalijarvi, Chuzi, Newman & Fitch--the employees are claiming FLSA violations. What I hadn't realized is that despite a win in the 2013 suit, 25,000 employees still haven't received damages (they were awarded liquidated/double damages). If anyone knows why, I'd love to hear it. In any event, the prospect of double damages for over 400,000 employees for heaven knows how many hours of work would, I hope, give politicians extra incentive to get this resolved. That said, no matter how big an FLSA award might be, it still pales in comparison to a $5 billion wall . . . .
Monday, December 31, 2018
The D.C. Circuit has just ruled on the NLRB's Browning-Ferris joint-employer test, largely approving the standard that made many on the employer-side of things apoplectic. In Browning-Ferris v. NLRB, the court approved of the joint-employer rule, but remanded because it held that the Board didn't apply part of the rule correctly. This issue is becoming increasingly convoluted, so let me break down some of what's going on.
- Why did the court decide this case in the first place? As we've been following, the Board has already reversed the Browning-Ferris test once, which they had to vacate because of a recusal issue. They are now in the process of reversing course via rulemaking. Despite that, the Board asked the court to decide the case, which the majority readily agreed to do, over a dissent. The reason the court did this brings me to the second point.
- De novo review for the joint-employer test. The court emphasized that determination of the Board's joint-employer rule is reviewed de novo. Because the joint-employer standard is based in common law, according to the court, no deference to the agency is required (as opposed to application of the standard, which is a mixed question of law and fact). And because the court wasn't giving the Board any deference, the court determined that there was no need to wait for the Board's new rule. Note that this is not good news for the Board's draft joint-employer rule, although may be good news for those who prefer a more consistent rule over the long-term.
- Reserved and indirect control is relevant to joint employment. As a reminder, the big argument is whether and to what extent the joint-employer test should consider reserved and indirect control. Browning Ferris said that actual and direct control is not required; the current Board disagrees. In this case, the court was crystal clear that the argument made by the employer and dissenters in Browning-Ferris that joint employment can be based only on exercised control and direct and immediate control are wrong. Full stop. As the court noted, the common law is riddled with examples and statements that reserved control and indirect control are relevant to joint employer determinations. So this extreme view--that joint employers must have actual and direct control--is currently dead in the D.C. Circuit. But there's a middle ground that may still available, which I'll get to in a moment. But first . . .
- Remand. Despite uphold the Browning-Ferris test, the court held that the Board mis-stepped in this case. In particular, when applying the new rule in this case, the Board didn't make clear whether it relied on evidence on indirect control over essential terms and conditions of work (which is relevant) versus indirect control over "routine parameters of company-to-company contracting," like a cost-plus contract or advance description of tasks (which is not relevant). Thus, the court remanded to the Board to clarify whether there is enough relevant evidence to support a joint-employment finding.
- Meaningful collective bargaining. The court also tacitly approved the Board's inquiry into whether a putative joint employer controls enough essential terms and conditions of employment to permit meaningful collective bargaining, but wanted the Board to define terms of that inquiry more in a case, unlike here, when the Board actually applies invokes that question. That's good news for folks, like yours truly, who have argued for a more collective-bargaining focused joint employer test.
- Finally, the money question: What next? I was talking this morning to Robert Iofalla at Bloomberg News (I will link to his article when it comes out), who is exploring this question. One option is that the Board will press an extreme position during its rulemaking and thumb its nose at the court's admonition that reserved and indirect control is relevant (which could then lead to the Board's nonacquiescence policy, possible circuit split, and cert. petition). But my guess--and I stress guess--is that the Republican majority of the Board will go as far as it can without directly conflicting with the court's decision. In other words, as it did in Hy-Brand, the Board could acknowledge that evidence of reserved or indirect control can be relevant. And, then, it can answer the questions that the court expressly left open: whether only indirect and/or reserved control is enough to find joint employment. The current Board will obviously say "no," which will leave us with basically the same test we had before Bronwing-Ferris. The Board could still lose when the D.C. Circuit or another court takes up that question, but this seems to be a lower risk strategy than going the extreme route. The "relevant-but-not-sufficient" strategy still leaves plenty of room for a narrow joint employer test, especially when a Trump Board is applying it, while avoiding the time-consuming litigation that would result from defying the D.C. Circuit and seeking a circuit split. Avoiding these types of risks are especially important when the Board is doing something it rarely does by engaging in substantive, formal rulemaking.
Still plenty more to come, so stay tuned.
Friday, December 21, 2018
Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social movements, social movements will no longer be able to assist the overall progressive trend of our jurisprudence. While the phenomenon of mandatory employment arbitration is not new, recent Supreme Court opinions have encouraged an even greater number of employers to use this practice to force employees to take any disputes to arbitration, rather than to court. Focusing particularly on the #MeToo movement, this Article will consider this reality and its detrimental implications for the evolution of legal precedent affecting our most vulnerable employees.
Sunday, December 16, 2018
Thanks to Jon Harkavy (Patterson Harkavy) for sending word of the Fourth Circuit case Netter v. Barnes. Although the plaintiff lost, Judge Motz's opinion for the Court rejects a broader rationale that would have hampered enforcement of section 704 of Title VII in "protected activity" cases generally.
Wednesday, December 12, 2018
There is a great piece in the New York Times that was just called to my attention which does a wonderful job of exploring a lawsuit alleging pay discrimination at the Boston Symphony Orchestra. The lawsuit is brought by a premier flutist who maintains that she is paid about 75% as much as her most comparable colleague, who is an oboist. The allegations call to mind the well-known study on gender discrimination which was performed decades ago with respect to musical blind auditions, and shows that this type of discrimination is still present today. The article notes that the plaintiff, "who previously held positions in Baltimore, Washington and Indiana, joined the Boston Symphony in 2004. She has been a featured soloist with the orchestra 27 times, more than any other principal musician, according to the lawsuit. Critics for The New York Times have called her playing 'ravishing' and 'splendid.'" If you are researching in the pay or gender discrimination area, this article is definitely worth a look.
Friday, December 7, 2018
Many thanks to Kathryn Moore (Kentucky) for sending word of this ACEBC Competition:
The American College of Employee Benefits Counsel is sponsoring a competition, with a $10,000 prize, for the best original legislative proposal to simplify employee benefits law. This is the second year of the award, which the College hopes to offer for at least three more years. The initial award was presented at the College’s Annual Meeting and Induction Dinner in the Fall of 2018. For a submission to be eligible for the 2019 award, it must be submitted in accordance with the rules linked below, on or before April 1, 2019.
Criteria for judging submissions include the degree of simplification, prospects for enactment, and originality. Submissions must enhance, or at least have no adverse effect on, any material rights of employees and plan participants.
The award winner will be selected each year by the ACEBC Simplification Award Committee. The Award Committee’s selection of a winner will be subject to the approval of the ACEBC’s Board of Governors. Detailed rules, eligibility and selection criteria, and submissions procedures for the 2019 competition are available at www.acebc.com/simplification-award-rules. An updated list of FAQs is posted at www.acebc.com/simplification-award-faqs.
- Anne Trebilcock, ed., Comparative Labour Law (Edward Elgar, 2018), 904 pp. Collection of key journal articles on the topic, with the editor's introduction (comparative labor law's uses and limits, sources and methods, axes of comparison, means of enforcement). Link: https://www.e-elgar.com/shop/comparative-labour-law.
- Anne Trebilcock, "International Labour Organization," in Michael Bowman & Dino Kritsiotis, eds., Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018), 848-880. Overview of the ILO's unique approach to treaty making, revision and interpretation.
- Anne Trebilcock, "Challenges in Germany's Implementation of the ILO Decent Work for Domestic Workers Convention," 34:2 International Journal of Comparative Labour Law and Industrial Relations (2018) 149-176.
Thursday, December 6, 2018
Much has already been written on the status of Uber/Lyft drivers as independent contractors v. employees. This issue directly impacts the working relationship of tens of thousands of workers in the technology sector, and touches on almost all areas of employment law -- most notably wage/hour regulations. The city of New York in many ways just bypassed this entire question by directly providing a new minimum wage specifically targeting ridesharing workers. This new law, the first of its kind, mandates that ridesharing companies such as Lyft and Uber compensate their drivers for expenses and pay these workers at least $17.22 per hour.
It will be interesting to see to what extent these new requirements will raise rates and/or impact corporate profits. It will further be interesting to watch if other jurisdictions follow New York's lead.
Friday, November 30, 2018
One of the questions that followed the Supreme Court's Janus decision was whether unions had to give back dues that unions had already collected. Several employees, backed by anti-union groups, sued based on the theory that unions shouldn't be able to keep funds that the Court has announced were unconstitutionally required under collective-bargaining agreements with their public employers. Unions, on the other hand, responded that although the Court had long made clear its intention to overrule Abood and rule this way, clear precedent states that until the Court makes such a change, current caselaw applies. This isn't just an interesting legal question; there is a ton of money at stake for unions.
Yesterday, we got the first judicial decision on this question, in favor of unions. In Danielson v. AFSCME, the Western District of Washington dismissed a lawsuit seeking a declaratory judgment that past-paid fees were unconstitutional and seeking a return of those funds. At the heart of the dismissal was the court's holding that the union involved enjoyed a good faith defense against the Section 1983 claim because when they collected the fees, they were legal under both state and federal law. There's a general understanding among many courts that Section 1983 includes a good faith defense and the court held that it applied here. That's not surprising given that the Supreme Court has been very clear that lower courts should not try to predict what the Court will do--the law is what it is until the Court says it isn't.
This is a significant win for public-sector unions, but this issue isn't over. There are several other identical suits which could well come out differently, and I'm sure this case will be appealed. So stay tuned.
Thursday, November 29, 2018
An interesting piece in the New York Times discusses how the Office of Special Counsel has instructed government workers that merely expressing anti-administration views at work could constitute a violation of the Hatch Act. From the article:
“in a guidance document distributed on Wednesday, the independent agency that enforces the Hatch Act, a law that bars federal employees from taking part in partisan political campaigns at work or in an official capacity, warned that making or displaying statements at work about impeaching or resisting [the president] is likely to amount to illegal political activity.”
This interpretation of the statute seems to go much further than previous views, and it will be interesting to watch if any government employees are ultimately sanctioned as a result of the policy (and whether this interpretation of the statute will be challenged). It will definitely be an interesting issue to continue to follow.
Wednesday, November 28, 2018
The pay disparity between men and women has persisted for decades, and we often hear varying studies cited which reflect that women make somewhere around eighty cents for every dollar earned by a man. An alarming new report by The Institute for Women’s Policy Research, however, shows a much more substantial disparity. As reported by Vox:
“the report’s authors looked at women’s earnings across a 15-year period, and compared those with men’s. What they found was a pay gap nearly twice as big as what’s traditionally reported: averaged out over 15 years, women made just 49 cents for every dollar men made.”
While pay discrimination has long been a problem, this study may cause many to take a second look at just how deep that discrimination goes.
Saturday, November 17, 2018
Many of us are teaching Dothard v. Rawlinson this semester, one of the seminal employment discrimination cases discussing BFOQs and sex discrimination. That Supreme Court decision focused on whether the state of Alabama could enforce a height and weight requirement for prison guards working in contact positions at an all-male prison.
Though Dothard took place decades ago, there is a fascinating piece just out in the New York Times about the treatment of female guards in the federal prison system. The piece details some of the abusive conditions still faced by women in this environment. From the article:
“Some inmates . . . grope, threaten and expose themselves. . . [and] male colleagues can and do encourage such behavior, undermining the authority of female officers and jeopardizing their safety.”
The piece serves as a helpful teaching tool for class, tying Dothard back to the current working environment where we still see many of the same problems faced years ago.
Friday, November 16, 2018
Congratulations to Nestor Davidson (Fordham), Michèle Finck (Oxford), and John Infranca (Suffolk) on the publication of their book The Cambridge Handbook of the Law of the Sharing Economy (Cambridge U. Press). I had the pleasure of serving as a peer reviewer on the original proposal, and can verify that the book takes a comprehensive look at the sharing economy -- not just the employment stuff that readers of this blog mostly focus on. Here's the publisher's description:
This Handbook grapples conceptually and practically with what the sharing economy - which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives - means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.
Thursday, November 15, 2018
Congratulations to Ken Dau-Schmidt, Marty Malin, Roberto Corrada Chris Cameron, and Catherine Fisk on the imminent publication of their casebook Labor Law in the Contemporary Workplace (3d ed. West, 2019). Here are the publisher's notes:
Labor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.
Wednesday, November 14, 2018
Equality Law Scholars’ Forum
Friday, November 16 – Saturday November 17, 2019
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law.
This year, the Forum will feature six presenters (chosen from over forty submissions):
1. The New Coverture
Albertina Antognini, Arizona College of Law
2. Stealing Education: Protecting Racial Capital in “White” Schools
LaToya Baldwin Clark, UCLA School of Law
3. Affirmative Action Misclassification
Jonathan Feingold, UCLA Office of Equity, Diversity, and Inclusion
4. The Aesthetics of Disability Law
Jasmine Harris, UC Davis School of Law
5. Legislating with Tall Tales
Goldburn Maynard, University of Louisville School of Law
6. Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism
Asad Rahim, American Bar Foundation
The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law.
Comment and critique will be provided by the following scholars:
Bridget Crawford, Pace Law School
Jonathan Glater, UC Irvine Law School
Tristin Green, USF Law School
Angela Harris, UC Davis Law School
Jill Hasday, U. of Minnesota School of Law
Anthony Infanti, U. of Pittsburgh School of Law
Osamudia James, U. of Miami School of Law
Tom Joo, UC Davis Law School
Courtney Joslin, UC Davis Law School
Angela Onwuachi-Willig, Boston U. Law School
Kimani Paul-Emile, Fordham U. School of Law
Leticia Saucedo, UC Davis Law School
We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.