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
Thursday, October 10, 2019
The Southeastern Association of Law Schools is now accepting panel proposals for its 2020 conference. For anyone who typically goes to SEALS, you know that there are typically several labor and employment law panels, in large part thanks to the work of Michael Green. Iif you're planning on attending this summer or are just thinking about it (and if you are, you should go--email me and I can tell you why), I'm writing to encourage you to let me know if you're interested in participating in panels or--even better--putting together one. The process is very easy and discussion groups leave a lot of room for flexibility on both topics and participants.
So, email me at firstname.lastname@example.org if you have any interest--no need to commit fully yet. And while I look forward to hearing from people who come regularly, I'd also love to hear from newcomers, especially more junior academics.
Wednesday, October 9, 2019
Ifeoma Ajunwa (Cornell I.L.R.) published an op-ed in yesterday's New York Times about the discriminatory use of algorithms in the hiring process. Ifeoma has done a ton of great work on algorithmic discrimination -- it's great that she's taking it to an even wider audience. Here's a brief excerpt:
Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided.
In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers.
The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.
The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.
The op-ed is Beware of Automated Hiring.
Saturday, September 21, 2019
My colleague Dallan Flake (ONU) has just posted on SSRN his article Religious Accommodation in the Age of Whole-Self Employment. Here's the abstract:
For decades, litigants and legislators alike have attempted unsuccessfully to overturn Trans World Airlines v. Hardison, the 1977 Supreme Court decision holding an employer does not have to provide a religious accommodation to an employee if the accommodation would impose more than de minimis cost on the employer. This effectively gutted Title VII’s religious accommodation requirement by enabling employers to avoid accommodating employees for almost any reason at all. This Article does not advocate for a change in the law, as others have, but instead proposes a new way forward. It makes the case that employers should voluntarily provide religious accommodations beyond what the law requires. This is because we now live in the age of whole-self employment, wherein emp
rbloyees are no longer content to check their personal lives at the workplace door, but instead expect to be able to bring their entire selves—including their religious beliefs and practices—with them to work. Accommodation facilitates whole-self employment by allowing religious employees to express a fundamental dimension of themselves in the workplace. Empirical research overwhelmingly confirms employees who are allowed to express their authentic selves at work are happier, harder working, and more loyal to their employers. Research also shows that a content workforce is a productive workforce. Thus, employers should approach religious accommodations not as a burden but as an investment—an opportunity to allow employees to display a part of themselves that will make them better workers. While employers would incur upfront costs in voluntarily accommodating employees, the potential return on this investment justifies its expense.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Tuesday, September 10, 2019
Just a scholarly note that Duke's Law and Contemporary Problems journal symposium issue on "Work After the End of Employment" is now published. I was lucky enough to moderate part of the symposium, which was really interesting and features Catherine Fisk (who was the special editor for the issue), Sameer Ashar, Cynthia Estlund, Michael Oswalt, Sanjukta Paul, and Marshall Steinbaum. There's also a student note by William Sowers.
Monday, September 9, 2019
Christine Michelle Duffy (Director, New Jersey Program, Pro Bono Partnership) sends us the following guest post:
It Will Not Be 'Game-Set-Match' for Women's Sports
Earlier this month, The National Law Journal (NLJ) published an op-ed piece by Jennifer Braceras and Anita Milanovich that argues that if the U.S. Supreme Court rules in favor of the gender-affirmed plaintiff, Aimee Stephens, in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, female athletes will lose the opportunity to compete because “male-to-female transgender athletes” will suddenly flood into women’s sports. Oral argument in that case will be held on October 8.
It’s simply not true that there will be a loss in opportunities. “Male-to-female transgender athletes” have been competing in women’s sports for some time, and there is no significant evidence that “the number of opportunities for biological women and girls” has diminished or that they have an unfair advantage. (The foregoing quoted statements come directly from Braceras and Milanovich’s op-ed.) Moreover, leading medical organizations now recognize gender-affirmed people to be of the sex that matches their gender identity.
The NLJ commissioned a counter-piece to the op-ed, written by Jennifer Pizer, Law and Policy Director for Lambda Legal. Pizer does a terrific job debunking the arguments put forward by Braceras and Milanovich. As Pizer notes, “Their leaps of logic are long indeed, but they won’t win any medals. They mistake the facts, the law and who is at risk.” Though, as your will read below, I do take issue with Pizer, something I rarely do.
Braceras and Milanovich’s thesis is wrong for a number of reasons. Here are three of them.
Friday, September 6, 2019
Today, the NLRB released another decision placing employer's property interests above NLRA rights. This time, in Kroger Ltd. Partnership, the NLRB addressed when an employer can exclude union and other nonemployees from its property, even though it lets other groups solicit in the same place. Like a lot of situations, the employer let the Girl Scouts, Salvation Army, Lions Club, and the Red Cross solicit on its property. But it prohibited a church group and a union that was encouraging a boycott of the store because of a labor dispute (a "primary boycott" which is protected activity under the NLRA). At issue was whether excluding the union was unlawful.
This is just a quick take, so I won't get too far into the weeds (those who want more, can check out this chapter). But the short version is that an employer can usually exclude nonemployees from its property, unless it does so in a "discriminatory" fashion. The question is what does "discrimination" mean? As the linked chapter describes, there are a lot of ways to define discrimination and the NLRB in Kroger takes a very narrow--i.e., pro-employer--view:
Under the standard we adopt today, to establish that a denial of access to nonemployee union agents violated the Act under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.
Sound familiar? It should (although the Board didn't recognize the connection). This is very similar to the definition of "discrimination" the NLRB used in Register-Guard, which basically adopted the Seventh Circuit's holding that "the concept of discrimination involves the unequal treatment of equals":
[I]n 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
Register-Guard was the decision where the Board said that employees lacked a right to use employers' email. Later, Purple Communications reversed that part of the decision, but (oddly to my mind), it didn't touch the definition of discrimination. At the time, I predicted that the definition would spread to other contexts. I was a few years too early, but that's what I view as happening in Kroger. Although, to be fair, the standards aren't identical, as the NLRB in Kroger does explicitly reject the Second Circuit's standard that defines discrimination entirely on whether Section 7 communications are treated worse than non-Section 7 communications. That said, Kroger and Register-Guard both emphasize grouping of communication of a "similar character."
Also of note is footnote 5, where the Board distinguishes handbilling for a food drive versus a union handbilling to boycott the store. According to the NLRB, they're different because their "purposes" are different. Although one can try to shoehorn that statement as just differentiating purely communicative speech versus "commercial" union speech that has traditionally had fewer First Amendment protections, it sounds an awful lot like unconstitutional subject-matter discrimination. That's particularly true given how robust the Supreme Court's recent First Amendment jurisprudence has been recently. This case could be a test whether that jurisprudence applies equally or only when used against unions.
And let's be clear about the practical implications. If an employer has half a brain (or a quarter of an attorney's brain), it can easily come up with a classification that is sure to exclude unions, while allowing a lot of other organizations. For instance, "we don't allow 'membership organizations' to solicit." The Board doesn't even seem to require that classification to be in place before litigation--it's enough for the employer to come up with the line-drawing post-hoc. It's also nonsense under the NLRA. These cases are under Section 8(a)(1), which does NOT require intent on the employer's part. The "discrimination" exception exists because it undermines the employer's argument that the reason its excluding the union is for valid business purposes. Thus, if they allow Girl Scouts and a host of other groups, we should be very wary when they all of sudden claim that union solicitors are a problem. In that case, it's pretty clear that the problem is that it's a union soliciting, not the actual solicitation. And that's not a valid reason under the NLRA.
Also, more generally, this is another weight on the side of employer property interests, which are increasingly inhibiting employees' NLRA rights. Not the first time for sure, but it's disconcerting how much the NLRB (and, to be fair, the Supreme Court) has raised property interests, which are largely the province of state common law, over the federal statutory rights of employees.
Susan Bisom-Rapp reminds us that the deadline for submitting a proposal to this year's Biagi Conference is Monday. Here's an excerpt from the call for papers:
[T]he call for papers of the 18th International Conference in commemoration of Prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19 and 20 March 2020, and will be entitled "Beyond Employment: Protecting Autonomous Work".
The Scientific Committee welcomes the submission of proposals for papers or panels by the members of the international scholarly community.The proposals should be submitted by 9 September 2019 by email to the address: email@example.com. More details on the call and the conference are available here.
Wednesday, September 4, 2019
University of San Francisco Volume 54 Law Review is holding a Symposium on January 31, 2020 on “Access to Justice in the Contemporary Workplace.” We are seeking proposals for articles to be included in the issue and presentations to be made at the event. Priority will be given to presenters who will be submitting articles for publication. Dependent on availability, we will consider publishing articles even where the author cannot attend the Symposium. The Symposium will focus broadly on analyzing the policies, practices, and barriers that may restrict an individual’s access to the legal system in the field of labor and employment law. This invitation includes an inquiry into the role of the rule of law and confidence in the legal structures that provide impartiality in labor and employment law.
Specific panels or topics could include, but are not limited to the following: Protections or lack thereof for gig-economy workers; Barriers that prevent meaningful advancement in ending sexual harassment; The chilling effect of threats of retaliation; Unequal treatment and protections for low-wage and immigrant workers; Unique issues in the tech industry; Bans on class actions; The rise of mandatory arbitration; Lack of statutory protections for LGBTQ+ workers; The decline of traditional unions; and Concerns regarding continued respect for stare decisis and the weight of precedent.
If you would like to participate, submit a 500-word abstract summarizing your article or describing your proposed presentation by September 30, 2019. Offers will be sent shortly thereafter and no later than October 14, 2019. Selected Symposium articles will be included in our Spring 2020 issue that will be published in Summer 2020 or a future issue. In order to meet this deadline, completed first drafts of articles will be due by February 10, 2020 and preferably consist of 7,000 to 11,000 words. Limited funds are available to cover travel and hotel for symposium participants; however, we are not in the position to offer per diem stipends or honorarium.
All article submissions, Symposium participation inquiries, or questions should be directed to Sophia Terrassi, Symposium Editor at firstname.lastname@example.org.
Monday, September 2, 2019
There has been some recent reporting that the tragic events in Texas occurred after the alleged shooter had been terminated from employment. Unfortunately, workplace violence is all too common. We often place a strong emphasis on our employment and emotions can run high when individuals are fired or otherwise treated adversely in the workplace. A couple of years ago (after the horrific events in San Bernardino, Calif. and Roanoke, Va.) I had posted some suggestions for handling violence in the workplace and I am re-posting that post below in case it might prove useful now:
Every year this country sees almost two million incidents of workplace violence. Federal data reveals that over a 13-year period, almost 10,000 murders occurred in the workplace. These numbers are startling, particularly when put in the context of recent horrific workplace related violence....
These tragic events often lead to heated public discussion over gun laws and weapon accessibility. While dialogue over gun control dominates public debate, it only addresses part of the question. An often forgotten facet of this type of violence is the workplace component that is frequently involved. The [recent] incidents  emphasize the importance of this workplace connection.
Few things in our lives go more to the core of our identity than our jobs. When people are unsatisfied in the workplace, or feel threatened in their employment security, they may act out in aggressive ways. This is why employers must be more vigilant today than ever before. We need only to look at the “Five C’s” that span the entire period of employment for answers in preventing workplace violence:
Character Checks. Background checks are perhaps the most important opportunity employers will have to prevent workplace violence. Employers should carefully investigate the background of any prospective employee for potential aggressive characteristics. This is particularly important where these workers will be put in sensitive situations or in the homes of customers.
Counseling. Employers must make mental health counseling available to all workers when needed. Such employee assistance programs are critical to helping workers get through difficult emotional times. This type of counseling must be kept confidential to encourage workers to avail themselves of this avenue of assistance.
Communication. Employers must create an environment which promotes an open dialogue of how to respond to active shooters or other violent individuals. Similarly, employers should establish appropriate complaint mechanisms to allow workers to notify management of potential workplace issues.
Cautious Cutbacks. When the need to terminate a worker arises, employers must be particularly cautious in conveying the separation. Far too frequently employers are cavalier about the process, and fail to even acknowledge or recognize the devastating effect a termination can have on an individual’s life and family.
Community Involvement. An employer cannot operate in isolation and must become part of the local community. There are many times where an employer will have critical information concerning a worker’s violent propensities, but fail to share this with law enforcement personnel.
These straightforward reminders help create an important framework for employers to eradicate workplace violence, though the framework is obviously not exhaustive. The most important lesson here is that employers must be engaged in all aspects of an individual’s working life – assuring that the potential for violence is minimized before, during and after employment.
Workplace violence cannot be completely eliminated. And employers must often balance the privacy rights of individuals battling mental or other health-related problems with the potential risk of workplace danger. [Recent] tragic events serve as an important reminder that employers must try to do more to help prevent this type of horrific violence.
Please feel free to share any additional thoughts on what employers can do to help prevent workplace violence in the comments below.
-- Joe Seiner
Saturday, August 31, 2019
Last week I received an offer from a law review. As per usual, it provided me with about a week to respond. I immediately thanked the editor and went about other business. The offer was received at 11:27. At 12:59, it was revoked.
No, the journal hadn't discovered some problem with the piece in that hour and a half. When I went back to the original offer, I discovered that I had not (shame on me) read the whole message:
Please be advised that we can only accept one more article for publication in [the specified issue] We reserve the right to revoke our offer prior to its expiration if another author accepts our publication offer before you make your decision.
So I had fair warning that some hungrier academic might preempt me by accepting before I did. I had, it seems, only myself to blame in losing this particular race to publication.
I admit to, nevertheless, being a little irritated. The norm is to provide authors the specified time to consider the offer (read "expedite to a higher ranked journal"), and the norm was being discarded. But on reflection, it's hard to get too upset: the expedite game plays journals off against each other and this strategy tries to play authors off against each other.
Still, it will make things much more complicated going forward if broadly adopted. As for whether it will be, I have only two additional data points. First, a colleague got a similar message from another law journal this submission season (hers hasn't yet been revoked) and in October 2015 another blog reported a couple of instances of the same thing. Maybe it should be reassuring that the practice apparently hasn't become commonplace in the last four years! And it may be that the strategy is being deployed only in the August window where journals are scurrying to fill their last slots.
If you're worried about my placement, however, you can rest easy. In the interval between being accepted and rejected by that journal, I was fortunate enough to get another offer. That one gave me two weeks, and I breathed a sigh of relief.
Until I remembered a fundamental principle of contracts law: promises to keep offers open for a specified period of time are unenforceable without consideration; thus, such offers are always revocable!