Monday, March 31, 2014
Brian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.
(necklace above available from the Bloggess's online store)
There have been a number of relatively high profile cases lately, penalizing the EEOC in some way for its investigation or pursuit of a lawsuit. The decision in Mach Mining, the importance of which is discussed here, overturned one trial court's decision in this vein of cases. The most recent installment comes from the Fourth Circuit and involves attorneys fees.
In EEOC v. Propak Logistics, Inc., the EEOC had appealed a decision by the trial court that awarded the defendant attorneys fees after the court had dismissed the EEOC's action on the ground of laches. On appeal, the EEOC made two arguments: 1) that it would be unjust to award attorneys fees incurred in making a laches defense because such a defense is not available in an action brought by a federal agency; and 2) the district court improperly relied on its prior laches defense ruling and made erroneous factual findings related to the award. The court of appeals rejected both of these arguments. The court first refused to consider the argument that laches could not be used against a federal agency, holding that the EEOC had waived that argument by dismissing its appeal of the summary judgment. The court of appeals also rejected the second argument, ruling that the district court had relied on grounds separate from the laches defense in awarding fees and that its factual findings were not clearly erroneous.
The EEOC had brought this action against Propak Logistics, alleging that the company had discriminated in hiring against a class of non-Hispanics on the basis of race or national origin. The action came five and a half years after the initial charge had been filed with the EEOC, during which there had been long periods of inactivity, and after the company had closed the two locations at issue in the complaint. Relying on the standard articulated by the Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the court of appeals held that the decision to file this class claim was unreasonable because at the time it was filed, the EEOC had not identified individual class members and the relief requested could not be granted--the claim was moot.
Of particular note is the concurring opinion by Judge Wilkinson. Acknowledging that the EEOC is subject to a significant burden, given its administrative load and lack of resources, Judge Wilkinson noted that Congress and the Supreme Court had not exempted it from fees or created a standard different from that applicable to private parties. In fact, the power of the government and the costs to small and medium-sized businesses of complying with investigations and defending lawsuits along with the costs of delays to individuals injured by discrimination justified this treatment as a way to promote efficient agency action. Justice Wilkinson concluded by observing,
The story of this litigation is regrettable because the EEOC provides primary recourse to those victims of discrimination that persists in our society to an unfortunate extent. The reference to statutory goals and missions, however, cannot be divorced from the manner in which those purposes are implemented. . . . Surely [the delay and its consequences as acknowledged by the EEOC ] is not and must not become the norm. It is not far-fetched to believe that the nation’s deep commitment to combatting discrimination will be affected for good or ill by the esteem in which this important agency is held.
Interesting and thoughtful decision.
h/t Jonathan Harkavy
Friday, March 28, 2014
The Supreme Court's decision in Vance v. Ball State is typically viewed as an unalloyed victory for employers, and it certainly means that many more harassment cases under the federal antidiscrimination cases will have to be litigated as direct liability/negligence claims rather than absolute or presumptive liability. That necessarily follows from the Court's narrow definition of "supervisor" to reach only those who can take "tangible employment actions," such as hiring, firing, demoting, promoting, transferring, or disciplining subordinates. It is only such individuals who will trigger automatic employer liability (when they in fact do take such a tangible employment action) or presumptive liability subject to an affirmative defense (when they don't). All other harassment will be assessed under a negligence standpoint.
Is it possible that Vance went further to also negate what many viewed as at least a partial employee victory in Staub v. Proctor Hospital, a 2010 decision in which "supervisors" also featured prominently?
In Staub, two lower level managers -- whom the Court labeled as "supervisors" -- made reports which the jury found to have influenced the actual decisionmaker, one Buck, to fire Staub. The lower level "supervisors" had the motivation to discriminate against plaintiff (in that case, under USERRA) but no power to fire. Buck had the power to fire Staub but no discriminatory motivation. Adopting its version of the "cat's paw" theory, the Court found that the employer could be liable in such circumstances.
Rewind to Vance and the problem immediately presents itself: under the Vance analysis, Buck was the supervisor, and the other two low level supervisors apparently weren't -- after all, they couldn't cause an adverse employment action unless they influenced the actual decisionmaker. So if harassment were the claim, only Buck could trigger automatic or presumptive liability.
That's not per se inconsistent with Staub but the Staub majority went out of its way to make clear that the cat's paw theory it adopted applied only when "supervisors" influenced the decisionmaker.
Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
But Vance seems to mean that Staub was dealing with the null set: those who can't make an independent decision on hiring, firing, etc. are not supervisors and therefore there isn't anybody who can use the decisionmaker as a cat's paw. So Vance negates Staub, despite the fact that Scalia who wrote Staub was part of the majority in Vance.
There are various ways out of this conundrum. The most obvious is that there are two different definitions of "supervisor" for purposes of the two claims, although why that should be is beyond me.
Another possibility is that the Staub implicitly resolved the question the Court explicitly reserved: co-workers (the managers who were not Vance-style supervisors) can satisfy the cat's paw theory if they have the requisite motivation and proximately cause the adverse decision.
Yet another possibility looks to a passage in Vance that may be read to create a class of de facto supervisors:
[E]ven if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. . . . Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.
Maybe, but Scalia in Staub did not buy the delegation theory Alito suggested in concurring as the basis for subordiate bias liability under the antidiscrimination statutes.
It's true that the Tenth Circuit read the Vance delegation language to elevate to "supervisor" status those who have the power to recommend a tangible employment action: "Importantly, however, the Court explained that an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a 'supervisor' under Title VII." Kramer v. Wasatch County Sheriff's Office (10th Cir. Feb. 25, 2014).
But wait, that may or may not be true, but it doesn't appear that the lower level managers in Staub were supervisors-by-delegation. Certainly, the majority opinion doesn't treat them that way. Further, while this might square Vance with Staub in a few cases, any broad application would effectively destroy the "easily workable" rule that the Vance Court was so intent on providing.
A final possibility might be that an individual is a supervisor under Vance because he or she has the power to take some tangible employment actions (like discipline), which would allow him to influence the decisionmaker under Staub to take a more severe action (such as discharge). There might be some basis for drawing that conclusion from the facts in Staub, but the opinion itself doesn't focus on it.
The Sixth Circuit noted, but did not resolve, the question of the relationship between the two cases in Shazor v. Prof'l Transit Mgmt., (6th Cir. Feb. 19, 2014).
A hat tip to student Justine Abrams for alerting me to Shazor and to my colleagues Ed Hartnett and Tim Glynn for sharing thoughts on the question.
Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Wednesday, March 26, 2014
In a ruling just released by the NLRB Chicago Region, the Regional Director has determined that the Northwestern football players receiving grant-in-aid scholarships are "employees" under the National Labor Relations Act and has ordered an election.
The ruling is available here.
Just a quick addition to Jason's post:
I've only had a moment to scan the decision, but it seems to make a point to rely on common-law agency factors, which is somewhat signficant given the Brown University case's dismissal of those (despite Supreme Court precedent). Hower, the director also applied Brown as a backup, and still found that they were employees.
Obviously, this is just the beginning of litigation over this, but it's going to be fascinating to watch. I definitely didn't see this coming from the Region.
The Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.
The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog, Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate.
There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.
I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June.
Monday, March 24, 2014
I just posted on SSRN an article I've co-authored with a slew of other folks. My purpose in blogging it, however, is not so much the content of the article, but the process of creating it. The article grew out of a panel presentation I gave last May at a LawAsia Employment conference. At that conference, I and attendees from several other countries learned from each other that although labor outsourcing is prevalent in all of our countries, the approach to legally regulating it varies considerably. We decided that we'd each write a summary of our country's laws; I then collected the summaries, organized them into an article, added a section comparing and contrasting the different approaches, and found a journal to publish it.
What I've particularly enjoyed about this project is the opportunity it's given me to work with labor/employment practitioners throughout the world. I'm looking forward to collaborating with them on future projects, and next time I'm in Istanbul or Jakarta or Melbourne or Beijing, I'll have a new friend there happy to show and introduce me around.
Anyway, the article is A Comparative Analysis of Labor Outsourcing (forthcoming Arizona J. Int'l & Comparative L. (2014 )). Here's the abstract:
This article compares the laws and the practice of labor outsourcing in five countries: Australia, China, Indonesia, Turkey, and the United States. The article finds both significant similarities and differences among the countries. For example, labor outsourcing is globally prolific and seems to be increasing. However, the general legal approach to regulating it varies considerably, with some countries adopting a regulatory model, others a hybrid regulatory-contractual model, and others not regulating it at all. Similarly, the scope of legal regulations varies considerably by country: some focus on protecting existing employees, other focus on curbing exploitation of workers performing outsourced work; some countries regulate the types of work that can be outsourced or subcontracted and others regulate the firms that can provide labor outsourcing services. Thus, a thorough understanding of labor outsourcing can be achieved only from considering the different perspectives and legal regimes in which it operates.
I spent my spring break in Modena, Italy, where every March since 2003, the Marco Biagi Foundation (MBF) at the University of Modena and Reggio Emilia has hosted an international conference devoted to international and comparative employment and labor relations. I’ve attended the event annually since 2007, making this my eighthconsecutive year as a conference participant. The conference was held on March 18th and 19th, with a pre-conference Young Scholars’ Workshop taking place on March 17th.
This year’s conference, “Labour and Social Rights: An Evolving Scenario,” centered on the challenges involved in providing employment-related social protection programs at a time when more and more people work outside of traditional employment relationships. (Social protection, loosely defined, consists of the programs that form the social safety net, including, among other things, unemployment insurance, job retraining efforts, workers’ compensation, disability insurance, and publically provided pensions.) Particular attention was given to the economic forces changing standard employment relationships, the values and interests that should be protected as new types of work emerge, and the theories and strategies that should anchor new forms of protection for working people. Participants addressed these issues from a number of disciplines including law, industrial relations, economics, and human resource management.
As an American, I was struck by the extent to which neoliberalism and austerity continue to drive public policy in many countries, especially in the EU. To the chagrin of many scholars at the conference, the quest for workplace “flexibility” has not abated despite the continuing labor market crisis, which manifests itself in elevated unemployment in many nations. Similarly notable was the concern voiced by commentators about the rise in precarious work and the weakening power of trade unions. These problems are not new but they have been greatly exacerbated by the economic conditions beginning in 2008. Clearly, we in the US are not alone.
On the upside, it is apparent that scholars are eager to theorize beyond the traditional, paradigmatic employment relationship with the goal of extending vital social security protections to greater numbers of people. Rather than clear solutions, it seems we are in a period of complex problem-solving. This requires patience and fortitude, as new models are posed and their utility evaluated. Ultimately, however, this period of theorizing will come to nothing without political movements demanding change from elected representatives. In the meanwhile, however, it’s possible to expand one’s thinking about the existing challenges through interaction with labor and employment scholars from other countries.
I was particularly pleased to see prominent US scholars in the program this year. Trina Jones (Duke) gave an insightful paper on the contemporary challenges facing U.S. civil rights law. Mike Zimmer (Loyola U., Chicago) and Michael Fischl (Connecticut) addressed different aspects of the challenges facing unions with the former suggesting ways in which transnational unionism might be enabled and the latter gleaning lessons from the way low wage union organizing campaigns have strategically deployed traditional labor law and non-labor law claims.
As for me, I served as chair for a panel titled “Social Dialogue and Labour Standards,” which covered six papers written by professors from six countries: Germany; Russia; South Africa; Ireland; Italy; and Brazil. The discussion on this panel was very diverse since the papers were on six very different subjects. Even so, common themes were evident. The papers dealt with the way our understanding of what counts as ‘work’ is evolving and changing over time, as is our willingness to think about the rights and protections all people who work should be entitled to.Another theme that emerged from the panel was the variety of mechanisms that can be used to provide voice to the concerns of the most vulnerable workers.
In addition to chairing the panel, I helped organize and was a commentator at the MBF’s annual Young Scholars’ Workshop. This was my third year of involvement with this portion of the annual conference events. This year we heard and commented on papers from Ph.D. students from the U.K., the U.S., Italy, Hungary, and Spain. There were eight papers presented in all. Creating ties with the new generation of comparative scholars is one of the most exciting parts of the conference. The quality of the scholarly work they are doing is impressive.
Over time, the MBF has become my academic home-away-from-home. I have been privileged to serve on the Foundation’s International Council since 2009, and two weeks ago was appointed to the MBF’s Scientific Committee, the academic advisory board that advises the Foundation on all of its scholarly projects. The Scientific Committee met in Modena during the conference to discuss and approve the theme for the Thirteenth International Conference in Commemoration of Marco Biagi. The theme, tentatively stated, is: Employment Relations and Transformation of the Enterprise in the Global Economy. Stay tuned for the call for papers. I hope many of you will consider submitting a proposal.
Sounds like it was great, Susan. Thanks!
Friday, March 21, 2014
My latest on systemic disparate treatment law and the (mis)use of statistical significance is now on SSRN, available here. From the abstract:
This paper is the second in a series of two papers addressing the influence of priors in systemic disparate treatment discrimination law. The first paper, Hidden Priors, argued that Bayesian probability theory could harmonize two divergent strands of scholarship on systemic disparate treatment law. . . . While a few scholars have advocated a transition to a Bayesian approach in employment discrimination law, there has been virtually no scholarly treatment of the difficult second-order questions raised by the recognition of priors. These second-order questions were highlighted at the conclusion of Hidden Priors. They include hard, but not intractable, questions such as: Whose priors matter? How should priors be incorporated into civil litigation procedures? And, what are legitimate sources of priors? The lack of scholarly attention to these second-order questions may explain the stubborn refusal of courts, litigants, and most employment discrimination scholars to acknowledge the role of priors in systemic disparate treatment cases. This second article in the series is meant to spur a healthy scholarly discussion of the second-order questions, even if it cannot provide definitive answers to them. This article argues that the procedural devices of our civil litigation system–flawed though they may be–are actually well-suited to properly allocate responsibility among legislatures, appellate judges, trial judges, and fact-finders for estimating the prior likelihood of discrimination. This article demonstrates that, once acknowledged, priors can be transparently managed by thoughtful implementation of these civil procedure devices.
Thursday, March 20, 2014
Some scholars are skeptical that the new Twombly/Iqbal pleading standard has really changed much of anything in employment discrimination cases. But the new plausibility standard appears to be having a real, discernable effect in a different type of employment law case – RICO claims for depressed wages. In these cases, legal workers allege that their employers have engaged in an unlawful criminal enterprise involving the violation of federal immigration law while hiring undocumented workers. The result, according to plaintiffs, is that wages for legally-employed workers are held lower than they would be if the employer had hired only from the pool of legal workers.
RICO was amended in 1996 to add as predicate racketeering offenses certain violations of federal immigration law, including 18 U.S.C. § 1546, which prohibits employers from using false attestations to satisfy the Immigration and Nationality Act. These sorts of civil RICO claims for depressed wages have had some success in the past. But the Fourth and Eleventh Circuit Courts of Appeal recently affirmed dismissals of such claims under the new pleading standards. These cases involve a fascinating intersection of economic theory, employment law, and civil procedure.
In the Eleventh Circuit case, Simpson v. Sanderson Farms, Inc., plaintiffs were unskilled laborers at a poultry processing plant operated by defendant. The plaintiffs alleged that defendant engaged in a pattern of falsely attesting that its employees presented genuine work-authorization and identification documents, in violation of Section 1546. The district court dismissed plaintiffs’ original complaint without prejudice, then dismissed the first amended complaint with prejudice. The Eleventh Circuit affirmed. The basis for affirming was the plaintiffs’ failure to plausibly plead (1) that they suffered economic injury, and (2) that any damages were proximately caused by the defendants’ RICO violation. On the proximate cause point, the Eleventh Circuit appeared to join the Fourth Circuit’s decision in Walters v. McMahen. I will have more to say about the proximate cause question in a later post. For this post, I want to highlight the failure to adequately allege economic injury.
The court insisted that plaintiffs’ injury theory was based on a “vague market theory” “at only the highest order of abstraction,” relying only on the “basic logic of supply and demand.” This was not sufficient for the court. Plaintiffs needed to back up this allegation with “market data” to define the relevant market. Indeed, by my count the word “data” appears 21 times in the text of the Eleventh Circuit’s opinion. Certainly, plaintiffs should be expected to adequately allege the contours of the relevant unskilled labor market in which wages were supposedly depressed. But the court seems to be demanding evidence of the market effect, including precise numbers at the pleading stage. Some of these numbers would be within the employer’s control – including a number the court specifically sought, the total number of unskilled employees hired by the defendant since 2008. This demand for data seems odd at the pleading stage. If abstract market theory is enough to render allegations of unlawful conspiracy implausible, see Twombly, why can’t abstract market theory be used by plaintiffs to plead plausible injury?
The most troubling part, however, is that this was the affirmance of a dismissal with prejudice. In dismissing the original complaint, the district court specifically found that economic injury had been adequately pled, but that proximate cause had not. In dismissing the first amended complaint, the district court for the first time found the economic injury allegations insufficient because of a lack of market data. If missing market data was the fatal deficiency, shouldn’t the plaintiffs have been given an opportunity to replead? Perhaps it was all about proximate cause, after all. I will post more on that issue soon. --JB
Monday, March 17, 2014
In Vance v. Ball State University, a 5-4 majority of the Court held that, for purposes of the Ellerth/Faragher test for employer liability for workplace harassment under Title VII, "supervisors" (as opposed to co-workers), refers only to those "empowered by the employer to take tangible employment actions against the victim." If the victim is harassed by a co-worker, rather than a supervisor, then the victim must meet a higher standard of proof by showing that the employer was negligent in controlling the working conditions. Justice Ginsburg, in dissent, said that the "ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today."
Last week, Democrats in the House and Senate introduced legislation to effectively reverse the Vance decision: the Fair Employment Protection Act (S.2133, H.R.4227). See press releases here and here. According to a summary issued by Sen. Tammy Baldwin, the bill would clarify who counts as a supervisor for purposes of holding employers liable for harassment, and would include "those who are in charge of an employee's daily work activities, thus able to reassign an employee whom they are harassing." The bill would also apparently clarify that the same standard should apply to all the major federal antidiscrimination laws, presumably to avoid any Gross v. FBL Fin. Servs.-type problems.
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
As you may recall, the Board found the company's arbitration agreement to violate its employees' rights to engage in concerted action. The more sweeping ground was that the mandatory arbitration agreement foreclosed any right to concerted dispute resolution because, in addition to cutting off any judicial forum, it barred class or collective arbitration. While the decision did not foreclose a ban on class arbitration per se, it did find impermissible provision that would bar any pursuit of concerted legal remedies.
A panel of the Fifth Circuit rejected this argument while upholding the Board's second, less dramatic ground -- that the arbitration agreement could be reasonably read by employees to bar resort to the Board itself for unfair labor practices. The panel decision was 2-1, Judge Graves dissenting as to the class dispute resolution issue.
The thrust of the Board's petition is relatively simple: the panel majority's reliance on Supreme Court cases rejecting attacks on arbitration (Gilmer, Concepcion, Italian Colors) is mistaken because these cases did not involve any infringement on a substantive right, and the Horton arbitration agreement infringes on the core susbtantive right underlying the National Labor Relations Act -- the right of employees to act concertedly.
Makes sense to me, but, then, I'm a pretty easy sell on this question!
Sunday, March 16, 2014
Paul Secunda (Marquette), Scott Bauries (Kentucky), and Sheldon Nahmod (Chicago-Kent) have posted on SSRN their amicus brief in Lane v. Franks. Joshua Branson of Kellogg, Huber, Hanson, Todd, Evans & Figel also is an attorney of record on the brief, and more than sixty additional law professors signed on.
The case involves a public employee who was subpoenaed to testify in a fraud prosecution, and who alleged he was fired for truthfully testifying. The matter he testified about was information he had because of his work. The district court granted the defendant summary judgment, reasoning,
Mr. Lane’s testimony did not occur in the workplace, but he learned of the information that he testified about while working as Director at C.I.T.Y. Because he learned the information while performing in his official capacity as Director at C.I.T.Y., the speech can still be considered as part of his official job duties and not made as a citizen on a matter of public concern.
The Eleventh Circuit affirmed. The questions the Court granted cert on are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.
For more on the case, see ScotusBlog here.
Thursday, March 13, 2014
The big news yesterday out of Washington yesterday was the story that President Obama is ordering the Department of Labor to revise the overtime exclusion regulations. We obviosuly don't have the details yet, but one of the main thrusts appears to be an attempt to roll back the Bush-era regulation on primary duty. In particular, the current rules allow excluded duties to be an employee's "primary duty"--thereby possibly precluded overtime payment--even when those duties make up less than half of the employee's work time. In addition, the agency will apparently increase the current $455/week salary minimum for the overtime exclusions. No word yet on what the new amount would be.
It's still early and we'll obviously see a lot of political fighting on this, so stay tuned.
Wednesday, March 12, 2014
Congratulations to blog-emeritus Paul Secunda for being named Vice-Chair of the Department of Labor's ERISA Advisory Council. According to the announcement:
U.S. Secretary of Labor Thomas E. Perez today announced the appointments of five new members to the 2014 Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. He also announced the 2014 chair and vice chair of the council, which are Neal S. Schelberg and Paul M. Secunda respectively.
"The dedicated experts who volunteer to serve on the ERISA Advisory Council are a wonderful resource," said U.S. Secretary of Labor Thomas E. Perez. "I have no doubt the 2014 council will build upon the impressive body of benefits research and analysis begun by their predecessors."
. . . Secunda is a professor at Marquette University Law School in Milwaukee, and he has authored books and articles on employee benefits law. He previously practiced labor law in Philadelphia, and Secunda is a past chair of the section on employee benefits and executive compensation of the Association of American Law Schools.
Nice job, Paul!
Tuesday, March 11, 2014
Sam Estreicher and I have just had our article, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, published in the North Carolina Law Review. People can (and already have) take issue with our argument that the U.S. approach to unjust dismissal may not, in practice, be as far apart from other countries' as many have assumed. We obviously encourage such comments and look forward to further discussion.
However, I wanted to mention what I believe to be an equally important aspect of the article. As you'll notice if you download it, it's immense and very heavily footnoted. Sam & I worked hard to give as accurate a picture of we could of the studied countries' unjust dismissal laws--both on the books and as they function on the ground. For instance, where available, we provide data on average damage awards and convert those awards to current U.S. Dollars. We also explore various aspects of termination, including rules on unjust dimissals, notice, severance payments, economic dismissals, and unemployment benefits. One of the reasons that we wrote this article was that the many years of wishing that someone else would write it didn't seem to be working. So our hope is that it will serve as a useful research tool for others. While I'm at it, I should give another thanks to the research assistants and law review editors who provided invaluable help with this article. Maybe some day the law review students will stop glaring at me for subjecting them to all the foreign cite checking they had to endure.
Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals.
Although other countries’ cause regimes differ significantly from the United States on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data—particularly claimants’ success rates and average remedies—in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by United States standards. This suggests that the United States, with its at-will default and broader remedies, is actually part of a relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the United States employment dismissal system and the dismissal systems of cause regimes.
Monday, March 10, 2014
The refusals, for religious reasons, of many men to shake hands with women has generated more than a little heat in the political arena over the years, for example, whether a Jewish candidate for the European parliament or an Iranian's refusal to shake Kate Middleton's hand. The NY Times Ethicist weighed in on the topic in 2002 suggesting that the appropriate response of an offended woman was to tear up a contract she had just signed. For Randy Cohen, it was OK not to shake hands because of religious belief, but the real estate broker who did so should have avoided discriminating on account of sex by not shaking hands with anyone.
Then there's the EEOC, which issued an Informal Discussion letter in 2010, which viewed the question as one of "undue hardship" and suggested an inquiry into "the actual disruptions that have occurred" when a new employee refused to shake hands with a woman. It also advised the employer to consider "whether the employee implements his "no handshake" practice in a neutral manner" or in a way that is hostile and demeaning to women. Which neatly dodges the question of whether refusing to shake a woman's hands. no matter how politely done, is inherently demeaning.
A recent blog posting at Seyforth Shaw raised the issue as a not-so-hypothetical hypothetical in which, at the end of an interview, a candidate refused to shake hands with the females interviewing him, "stating that he does not engage in that practice" but not invoking a religious reason.
One obvious question was whether the interviewers should infer a religious motivation -- absent that, refusing to hire a candidate who offended half the staff would not be problematic. In the hypo, there were indications on religious belief on the resume, which -- together with other signals -- seems sufficient to apprise the employer of his (probable) religion.
But could the employer ask? Inquiries into religion are obviously problematic, but might be permissible if the candidate is viewed as seeking an accommodation -- "excuse me from workplace etiquette norms because of my beliefs." Still, probably not advisable.
Assuming the employer is on notice of the religious basis of the refusal, and the candidate would otherwise be the top choice, what next? The blog suggests examining his "overall demeanor" as it relates to women: was he respectful or did he display any "sex-based animus." OK, but this "examination" is presumably triggered by his religiously-motivated practice, and it's the practice that is raising concerns about whether he will treat women in the workplace (or customers and vendors) appropriately. The blog goes on to ask about the position to be filled -- whether the successful candidate will work alone or in teams, whether the job is a sales position, etc. The goal is ask "whether the candidate's selective handshaking would cause any measurable impact in the workplace."
There's a noticeable lack of doctrine in the blog discussion, which may not be surprising because the scenario raises issues at the intersection of Title VII's prohibition on religious discrimination and its requirement of reasonable accommodation, not to mention the obvious tension between privileging religious observance at the potential risk of impairing gender equality.
Some of the blog's advice seems sound but rarely useful: if the job is a sales one, and someone who shakes hands only with men can't close half the deals, turning him down seems fine. Religion, needless to say, is subject to the bona fide occupational qualification exception and, however narrow that defense is, this would seem to qualify.
But that's a kind of easy observation because it's very unlikely that bfoq requirements can be met in these kinds of cases. And, further, the internal political problem probably arises from fear that the candidate will treat his female co-workers disrespectfully, not because of potential problems with outsiders. That fear may be more or less rational -- religious worldviews about the proper place of women that drive the no-touching norm may well suggest an antiequality attitude that could infect the workplace.
But Title VII may bar drawing such an inference -- no matter how rational it might be. To allow employers to do shift the focus from the individual by treating him or her as a member of a disfavored religion, whether Muslims or observant Jews. And I use the word "her" advisedly because it's not just males who might refuse to touch members of the opposite sex, which makes the sex equality issue even more complicated.
What about the possibility that the candidate should be viewed as seeking a reasonably accommodation for his religious practice? We all know that the bar's pretty low here for the employer: if there's more than a de minimis cost, no duty to accommodate. And surely this situation could be framed as involving more than de minimis costs -- in morale if not dollars. But the problem with this is that the employer seems to be discriminating on the basis of religion, not merely asking for an accommodation. And, as suggested, discrimination can be justified only by the bfoq defense.
That suggests a path out of the dilemma, but scarcely one that will be appealing to most employees: offer the candidate the job but require him to shake hands with everyone. No discrimination and no accommodation. The fly in this particular ointment is that the possibility of being sued over the decision has just skyrocketed, and maybe the courts would find the accommodation to be acceptable. After all, most workplaces don't feature regular handshaking marathons.
As is often the case when rights clash, there seem no good legal "answers."
Sunday, March 9, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Business) have just posted on SSRN their timely article (forthcoming Am. Bus. L.J.) The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes. Here's the abstract:
When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.
I agree, but am not optomistic.
I'm looking for "hot topics" to recommend to my students for research projects. Circuit splits are welcome. If you have suggestions, please post a comment or email me directly.