Tuesday, October 16, 2018
Amazon has long been known as a high-tech Moneyball employer, striving to make data-driven decision when possible. But this week shows that there are limits to that approach. After working since 2014 to develop AI-driven hiring algorithms, Amazon recently abandoned that approach. The reason? The algorithms were biased against women. This is an issue that several folks, including Rick Bales, have been talking about (and is a small part of a larger tech project I'm working on), and isn't a surprise given the dearth of women in the tech industry. This is the classic garbage-in-garbage-out issue. Amazon was training its algorithms based on resumes it has received, and because men disproportionally applied to the company, the algorithms were spitting out decisions that undervalued women; indeed, they were specifically penalizing resumes that included references to women. If Amazon or other companies want to use AI (really Machine Learning) for hiring, they should first use the technology to analyze its current hiring practices to try to root out pre-existing bias. Only once that's addressed does AI have even the hope of being effective.
To be clear: Amazon says that it never actually used the algorithms for actual hiring decisions. It wasn't for a lack of trying though. Amazon realized what was going on in 2015, but didn't disband the program until the start of last year. In other words, despite working for quite a while to eliminate the bias, they couldn't do it to their satisfaction. That a company like Amazon couldn't pull this off should serve as a strong warning to everyone about the limits of AI. I'm actually more optimistic on AI's eventual potential to reduce employment discrimination than many, but I am still extremely cautious about the technology. There's definitely a right way and wrong way to use it and, as Amazon shows, the right way can be really hard. As a result, I think the greatest risk of AI in personnel decisions is its misuse by companies that are too lazy, cheap, or blinded by the shiny object that is AI to realize that is is only a tool and, like other tools, can be used the wrong way.
Saturday, October 13, 2018
ILERA is pleased to announce the third call for book proposals with the theme of comparative labour and employment relations. The term “labour and employment relations” will be interpreted broadly to include all aspects of work including labour policy, labour market analysis, labour relations and collective bargaining, human resource management, and work- and workplace- related topics. Book proposals by a single author, multiple authors, or edited volumes will all be welcome. Books in this series will be published by ILERA in English, French or Spanish, based on the language of the manuscripts received.
A Committee of Editors was established under the leadership of Prof. Mia Rönnmar (Lund University, Sweden), President-Elect of ILERA, who will act as Editor-in Chief. Editorial members include: Prof. Anil Verma (University of Toronto, Canada), Prof. Annette Jobert (ENS Cachan, France), and Prof. Cecilia Senén González (University of Buenos Aires, Argentina).
To encourage members to submit high-quality book proposals, ILERA provides an incentive of USD 5,000 as a contribution towards the expenses of preparing a manuscript which is accepted for publication. Future book royalties will accrue to ILERA.
The deadline for submission of the book proposal has been extended to 30 November 2018.
Proposals should elaborate on the following headlines:
- a brief description of the themes of the book;
- its contribution to existing knowledge in the field;
- its novelty compared with similar previous books;
- a summary of the structure and contents of the book;
- the names, full contact details and institutional affiliations of the authors and editors (if necessary);
- a curriculum vitae of all contributors; and
- a proposed time-table for completion of the manuscript.
Julia Belian (Detroit Mercy) sends word of a call for papers for University of Detroit-Mercy Law Review's extraordinarily timely Women in the Law Symposium. Here are the details:
The Detroit Mercy Law Review will host its 2019 Symposium, Women and the Law, on Mar. 8, 2019. The deadline for proposals is Nov. 9, 2018 at 5:00pm EST.
Possible topics include, but are not limited to: the history of women in the law, how women have impacted the law, how the law impacts women today, how future legal decisions could affect women’s rights (e.g. if Roe v. Wade, 410 U.S. 113 (1973) were to be overturned), what challenges women still face in the legal profession, the role of gender in the law, and any other topic regarding women and the law. Proposals should be approximately 250-500 words, double-spaced, and detail the proposed topic and presentation. Submit to Samantha Buck, Symposium Director, at firstname.lastname@example.org. Please indicate whether your proposal is for a presentation only or if you would also like to publish an article with the Detroit Mercy Law Review on your presentation topic. If you are interested in submitting an article, it will be due to the Law Review on Friday, Mar.15, 2019. Please submit a current CV or resume along with your proposal. We will notify chosen speakers by Nov. 30, 2018. Preference will be given to those willing to submit an article for publication.
Wednesday, October 10, 2018
Meanwhile, back in Kentucky, employers are thinking about next steps in the wake of Northern Kentucky Area Development District v. Synder, decided Sept. 27, 2018. There, the Kentucky Supreme Court held that the Federal Arbitration Act of 1925 ("FAA") does not preempt a Kentucky statute that, among other things, bans employers from making arbitration of employment disputes a condition of employment. Given how at least four US Supreme Court Justices may want to read the FAA, Synder might soon be headed to Washington.
The background: The FAA provides that an arbitration agreement "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The US Supreme Court today reads this as "a sort of 'equal-treatment' rule for arbitration contracts" that preempts any law that discriminates against arbitration, either on its face or covertly, such as by interfering with some fundamental attributes of arbitration. Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1622 (2018).
In 1994, the Kentucky legislature enacted this statute:
[N]o employer shall require as a condition or precondition of employment that any employee or person seeking employment waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.
Ky. Rev. Stat. § 336.700(2). About a year later, the Sixth Circuit read the FAA workers exemption, 9 U.S.C. § 1, to cover only transportation workers. Asplundh v. Tree Expert Co. v. Bates, 71 F.3d 592, 600-02 (6th Cir. 1995); see also Circuit City v. Adams, 532 U.S. 105 (2001)(adopting this view).
Some years later, the lawsuit: After getting fired, Danielle Synder sued her former employer, a State government entity, for violating State whistleblower and wage-and-hour law. The employer sought to compel arbitration pursuant to the mandatory arbitration clause in her employment contract. The lower courts denied the employer's motion on the ground that Ky. Rev. Stat. § 336.700(2) had rendered that clause unenforceable.
So, why doesn't the FAA preempt that statute? In Synder, the Kentucky Supreme Court reasoned that the statute satisfied the FAA's equal-treatment rule, for two main reasons. First, the statutes doesn't single out arbitration clauses. Rather, it treats arbitration as only an example of an agreement that tends to "diminish" a worker's rights, claims, or benefits ("waive, arbitration, or otherwise diminish"). Other examples include "an agreement whereby the employee waives the ability to file a [Kentucky Whistleblower Act] claim against the employer, or an agreement that limits the amount of damages the employee can recover against the employer." Slip Op. at 12. This reasoning implies that the FAA permits Kentucky's statute even though the US Supreme Court reads the FAA as endorsing the idea that employment arbitration does not tend to diminish workers' legal protections.
Second, the statute "only proscribes conditioning employment on agreement to arbitration, not the act of agreeing to arbitration." Slip Op. at 9. Thus, the statute does not "invalidate arbitration contracts because they are arbitration contracts; KRS 336.700(2) only invalidates arbitration contracts when the employer evidences an intent to fire or refuse to hire an employee because of that employee’s unwillingness to sign such a contract. This is not an attack on the arbitration agreement—it is an attack on the employer for basing employment decisions on whether the employee is willing to sign an arbitration agreement." Id. at 11. In this respect, the statute is a generally-applicable "antiemployment discrimination provision." Id. at 12. The premise here: Making employment arbitration mandatory (a condition of employment) isn't a fundamental attribute of such arbitration.
In so reasoning, the Kentucky Supreme Court did not follow the plaintiff's lead. She'd argued more narrowly: Because her former employer was a political subdivision of the State, the FAA couldn't be read to supplant statutory restrictions on her government employer's powers without raising concerns of "federalism and the Tenth Amendment." It's unclear how much that litigating position will affect the odds that, if asked, the US Supreme Court will hear this case.
Tuesday, October 9, 2018
Last week (yeah, I'm still catching up), the Supreme Court heard oral arguments in Mount Lemmon Fire District v. Guido. It's one of those technical cases that hinges on textual question's about the ADEA's definition of "employer." In particular, at issue is whether the ADEA's usual 20-employee small employer exception applies to government employers. There's no question that the exception applies to private employers, but because of the way the provision is written, its application to public employers is less clear. Because the text is so important, let me quote the relevant part (Sec. 11(b)):
(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
As you can see, the small-employer exception is in a separate sentence from the sentence that includes public employers under the ADEA. That's what the plaintiffs stress and the 9th Circuit held. But four other circuits went the other way, holding that "person" includes public employers. Charlotte Garden's (Seattle) provided an argument analysis in SCOTUSblog. Although she's too wise to make a prediction, I'm going to go out on a limb and say that I think the plaintiff is going to win this one. Not unanimous, but questions from some of the conservative justices (e.g., Roberts) makes me think that the more grammatical reading of the text is going to win the day. Also, I hope someone mentions to Justice Alito that if the Court is going to align the ADEA's coverage to Title VII's simply because they were enacted a couple of years apart from each other, then the Court needs to overrule all of its cases where it expressly rejected that argument when it came to interpreting the 1991 Civil Rights Act Amendments (e.g., Nasser and Gross).
Saturday, October 6, 2018
Wednesday, October 3, 2018
John Howe (University of Melbourne) writes to remind us that the deadline for submitting paper ideas to present at the Fourth Labour Law Research Network Conference is October 15. You can get more info about the conference here: Download LLRN4 Valparaiso - Call for Papers).I The conference will be from June 23-25 in Valparaiso, Chile.
I went to the first LLRN conference in Barcelona, which was very interesting. From what I've heard, they're only getting better, so submit your ideas soon.
Tuesday, October 2, 2018
Robert Iofalla at Bloomberg Law has an interesting article out today looking at the number of times the NLRB's new joint-employer test in Browning-Ferris has been applied. As readers know, there has been a lot of handwringing over this test. But according to the article, it's been applied in only 14 out of almost 1,100 ALJ and Regional Director cases since it was issued in 2015. But it's unclear what that figure means.
As the article points out, there are two ways to look at this. On one hand, it may mean that Browning-Ferris isn't that big of a deal and that employers easily adjusted to the new standard or, as was likely the case for the majority of businesses, the changed standard didn't affect them in the first place. On the other hand, the number of cases invoking Browning-Ferris doesn't capture its full impact, as businesses may have made significant changes to stay in compliance. I suspect there's truth to both views. For instance, the 14 cases almost certainly doesn't capture the new rule's full impact; it's impossible to believe that far more businesses didn't at least have Browning-Ferris as a consideration when making relevant decisions since 2015. However, this also reflects that the histrionics that followed Browning-Ferris--predicting the demise of franchising and the like--were grossly exaggerated. As the Board explained in Browning-Ferris, it was returning to an earlier version of the joint-employer rule and the changes it made from the immediately prior standard were not so great that it would fundamentally change business models like franchising.
Time may tell whether we'll see further evidence of Browning-Ferris' impact. Or not, if the tea leaves are correct that the NLRB will reverse it soon.
Two Fight for $15 stories today. The first is that Amazon has agreed to pay all of its U.S. workers at least $15 an hour. Notably, this includes part-time and temp workers. Effective November 1, this change is expected to apply to 350,000 workers (although I can't find a number on the number of those workers who currently make less than $15 an hour). Amazon is also raising pay in Britain. This follows other increases or promised increase by major companies like Target, but given Amazon's size and profile, it's unsurprising that this is making a bigger splash.
In related news, the Fight for $15 movement has organized a series of national walkouts, rallies, and protests from October 2-4. The aim of these actions are for higher pay and to help candidates that support labor rights. Its still early, but thus far some of the more notable actions seem to be focused in the Midwest, although there are certainly others as well.
Friday, September 28, 2018
We just finished the awards ceremony at the Thirteenth Annual Colloquium on Scholarship in Employment and Labor Law being held at the University of South Carolina School of Law. It gives me great pleasure to announce that Professor Elizabeth C. Tippett (Oregon) has received the MICHAEL J. ZIMMER MEMORIAL AWARD. This award is given to "a Rising Scholar who Values Workplace Justice and Community, and who has made Signiﬁcant Contributions to the Field of Labor and Employment Law Scholarship."
Professor Tippett exemplifies this standard, and please join us in congratulating her on this wonderful achievement!
-- Joe Seiner
We just finished the awards ceremony at the Thirteenth Annual Colloquium on Scholarship in Employment and Labor Law being held at the University of South Carolina School of Law. It gives me great pleasure to announce that Professor Joseph E. Slater (Toledo) has received the PAUL STEPHEN MILLER MEMORIAL AWARD. This award is given for "outstanding Academic and Public Contributions to the Field of Labor and Employment Law Scholarship."
Professor Slater has made countless important and meaningful contributions to our field, and is extremely well-deserving of this award. Please Join us in congratulating him on this achievement!
- Joe Seiner
Thursday, September 27, 2018
As we noted earlier, the NLRB has signaled another flip in its approach to regulating employees' use of employer email systems for NLRA-protected communications. This pending case, Rio All-Suites Hotel & Casino, has also gotten entangled with the now-frequent battles over NLRB Member recusals. In Rio, several senators wrote to Chairman Ring expressing concern about the participation of Member Emanuel, whose former firm--Littler Mendelson--continues to represent the employer in Purple Communications. Purple is the case that the Board is threatening to reverse in Rio; indeed, Purple is still being litigated. Well, sort of. The Ninth Circuit just granted a motion to pause the appeal until the NLRB issues its Rio decision. Thus, the concern over recusal. Chairman Ring recently responded to the senators' letter and, without staking out a position, stressed both that the NLRB would follow its usual procedures on recusals and would keep an open mind on the issues in Rio.
With that open mind in mind, I have submitted an amicus brief in the case. As I stress in the brief, I think the legal precedents governing email usage are crystal clear, but I'm not holding my breath about the what the Board does.
Wednesday, September 26, 2018
Yesterday, the Ninth Circuit issued its decision in O'Conner v. Uber, a class action that centered on drivers' claim that they should be classified as employees. The Ninth Circuit reversed the district court's order to certify the class action, holding that the drivers must arbitrate their claims individually because arbitration agreements they signed with Uber prevented class claims. This, of course, is not a surprise, as the Supreme Court essentially forced such an outcome in its Epic Systems case from last term. However, this decision from the Ninth Circuit, contrary to some of the media reports I've seen, does not mean that the drivers lost on the question of whether they should be classified as employees. That question is separate from the arbitration one and, as Charlotte Garden has noted, in California at least, the classification issue looking promising for Uber drivers and other workers who might be on the fence in other jurisdictions.
Uber may discover that they should beware of getting what they asked for because they may soon be facing a lot of individual arbitration claims by its drivers. But we shall see.
Friday, September 21, 2018
Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.
First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue. What this strike may be telling us is that there are new norms developing. Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.
The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.
Wednesday, September 19, 2018
Congratulations to Paul Secunda, Jeff Hirsch, and Joe Seiner on the publication of their book Mastering Employment Discrimination Law (2d ed Carolina Academic Press.). Here's the publisher's description:
The second edition of Mastering Employment Discrimination Law coincides with a defining moment in U.S. culture: the #metoo movement and the many sexual harassment scandals that have roiled American society. In addition to covering all procedural and substantive aspects of U.S. sexual harassment and sex discrimination law, the second edition also takes on a wide variety of employment discrimination law subjects. The book begins first with coverage and jurisdiction issues and then turns to complex federal and state procedural topics surrounding the filing of administrative charges of discrimination and civil lawsuits. Moreover, the book comprehensively addresses the substantive aspects of Title VII, the ADEA, the ADA (including recent amendments), the Equal Pay Act, and the Civil Rights Acts, as well as related issues such as remedies, attorney fees, and settlements. By adding Professor Joseph Seiner of the University of South Carolina School of Law—a former attorney with the EEOC—as a new co-author, the book has added substantial new focus on administrative topics and procedural issues in employment discrimination litigation.
CBS’ announcement of CEO Les Moonves’ departure offers a welcome example of a company willing to cut bait on a star employee based on reports of repeated sexual harassment. Even more noteworthy is the news that Moonveslikely will receive no severance pay.
CBS’ refusal to offer Moonves a cushioned exit could presage a new level of accountability post-#MeToo, one where harassers can expect neither a pass nor a golden parachute. But there are reasons to be less sanguine. Moonves’ employment contract, like that of many C-suite employees imposes steep penalties on the company in the event of a termination without cause. For CBS, the cost could reach a reported $120 million, even discounting $20 million that the company has pledged to the #MeToo movement.
It can boggle the mind to imagine that Moonves’ termination is anything but justified. The allegations against him include forced oral sex, bodily exposure, physical violence, intimidation and retaliation. If even a fraction of it is true, then there is clearly cause to terminate him under any ordinary meaning of the word.
But it is not the ordinary meaning of “cause” that applies. High-level contracts typically define cause in idiosyncratic ways — requiring that the employee willfully fail to perform, commit a felony, or engage in gross misconduct materially harming the company. Courts interpret such language to mean conduct far exceeding ordinary wrongdoing. In cases of doubt, the burden usually is on the employer to justify its decision based on proven facts.
Thursday, September 13, 2018
In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.
Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.
On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out.
Tuesday, September 11, 2018
The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries. Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary). This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.
In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.
In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.
Thursday, September 6, 2018
Just out from Katie Eyer of Rutgers, and couldn't be more timely! Here's the abstract:
In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality. Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII. Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims. As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.
But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.” Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed. In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.
This Article contends that the “original public meaning” approach raised by opponents of LGBT inclusion is neither so distinctive, nor so uncontroversial, as its proponents have suggested. “Original public meaning” itself is a modality of statutory interpretation that has essentially no pedigree in the federal statutory interpretation case law. And yet the arguments of its proponents do bear a striking resemblance to another well-established, but now discredited approach: looking to the expectations or intent of Congress to limit broad statutory text. Moreover, the specific approach to “original public meaning” taken by opponents of LGBT inclusion—looking to “original expected applications”—is one that should concern both civil rights advocates and originalists alike. Thus, courts ought to reject the novel “statutory originalism” arguments that have been raised in opposing LGBT employment equality claims.
Wednesday, September 5, 2018
Michael Yelnosky has just published on SSRN an new essay essay, "Labor Law Illiteracy.” The abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.
I'm sure many readers will be nodding their heads along with this one. So check it out.