Tuesday, September 30, 2014
image from eeoc.gov
In what looks to be a fascinating case, the EEOC recently sued Papa John’s under the Americans with Disabilities Act. The agency alleges that the company failed to permit an employee with Down Syndrome a reasonable accommodation and then later terminated him. From the news release on the case:
“According to the EEOC's suit, Papa John's employed Bonn successfully at its Farmington, Utah location, allowing an independently employed and insured job coach to assist him, until an operating partner visited the location. The EEOC alleges that the operating partner, upon observing Bonn working with the assistance of his job coach, ordered Papa John's to fire Bonn.”
Cases involving intellectual disabilities are always interesting to follow, and this case will be one to watch closely.
-- Joe Seiner
Monday, September 29, 2014
In employment-discrimination cases, plaintiffs sometimes present regression analysis to support their claims, particularly for disparate impact claims. In a new paper, Joni Hersch and V. Blair Druhan, “The Use and Misuse of Econometric Evidence in Employment Discrimination Cases,” Washington and Lee Law Review 71(4) (forthcoming December 2014), the authors argue that certain objections by defendants to such regression analysis---omitted variable bias, sample size, and statistical significance—are often invalid yet succeed in making it harder for plaintiffs to prevail. Here’s the abstract:
Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by each party as a percentage of the total payment to econometric expert witnesses, review econometric evidence before the reports are submitted to the judge or jury.
Their sample of Title VII cases comes from a Westlaw search of Title VII cases published between January 2000 and October 2013 in which the words “regression analysis” were present. The total sample includes summary judgment motions, evidentiary motions, trial verdicts, district court opinions and appellate court opinions.
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Thanks to Matthew Fletcher (Michigan State) for forwarding a link to his Turtle Talk post about EEOC v. Peabody Western Coal Co. (9th Cir. 9-26-14), holding that tribal preferences (as opposed to Indian preferences generally) are not national-origin classifications prohibited by Title VII. Here's the syllabus:
The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.
The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior....
Saturday, September 27, 2014
image from www.dol.gov.
“ 'Over the next decade, this change will result in a significant reduction in paperwork burden for federal contractors and subcontractors,' said Assistant Secretary of Labor for Veterans’ Employment and Training Keith Kelly. 'In addition to easing the burden on contractors, the data collected by these reports will help the Labor Department develop more informative yearly trends in the employment of protected veterans.'
The final rule revises the VETS-100A Report and renames it the VETS-4212 Report. The VETS-100 Report will no longer be used. The VETS-4212 Report requires contractors to report specified information on protected veterans in their workforce in the aggregate, rather than for each category of veterans protected under the statute, reducing the required reporting elements by almost half, from 82 to 42. Under VEVRAA, the term “protected veterans” includes: disabled veterans, veterans who served on active duty during a war or campaign for which a campaign badge was authorized, veterans who were awarded an Armed Forces Service Medal and recently separated veterans.”
This is an interesting development particularly for those of you working on scholarship in the areas of federal employment or veteran’s rights.
-- Joe Seiner
Friday, September 26, 2014
Must a court read Ricci v. DeStefano, 557 U.S. 557 (2009), to apply to Title VII challenges to affirmative action plans? That’s part of the fight in Shea v. Kerry, a case—now on appeal before the D.C. Circuit (No. 13-5153)—involving a Title VII challenge to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan. (The briefs are in. Oral argument hasn’t yet been scheduled.)
In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan. Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests. Their employer argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability. In ruling that the plaintiffs deserved summary judgment, the Ricci Court described its holding this way: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
In Shea, the plaintiff is now represented by lawyers from the Pacific Legal Foundation (PLF). They read Ricci to have overruled United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)—the Supreme Court precedent on when Title VII permits employers making training, promotion, or other employment decisions to consider race or sex pursuant to valid affirmative action plans---and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard. For support, they point to, among other things, Justice Ginsburg’s dissent in Ricci, and their conclusion that “[n]early all scholarship on Ricci's applicability” supports their reading (citing, as examples, Corrada (2011) and Harris & West-Faulcon (2010)).
In response, the State Department’s lawyers read Ricci to apply only “after an employer invalidates the selection that resulted from a ‘fair opportunity process.’” Ricci doesn’t apply, they argue, because the State Department neither invalidated the results of “an established testing process” nor made any “mid-stream change” to the mid-level placement criteria. Affirmative action plans—including the State Department’s plan—are “governed by Johnson and Weber,” not Ricci, because in adopting such plans, “the employer acts ex ante and ‘in the light of past discrimination,’ and ‘establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination.’”
Among other replies, Shea’s lawyers criticize this view as “not useful”: Ricci “could just as easily be described as a forward-looking (ex ante) case. The City of New Haven threw out the test results in order to avoid a future disparate impact.” Besides, Ricci’s strong-basis-in-evidence standard “applies irrespective of whether an employer is ‘avoiding or remedying’ illegal conduct . . . ‘avoiding’ would be forward-looking (ex ante) and ‘remedying’ would be backward looking (ex post). Ricci applies to both.”
Which reading of Ricci will prevail? Which reading should prevail? Which reading(s) of Ricci did both sides miss? (Discuss!) In theory, lower courts aren’t supposed to treat US Supreme Court precedents (here, Weber and Johnson) as implicitly overruled (for discussion, see Shannon 2009). Accordingly, Shea’s PLF lawyers have also asked that if the DC Circuit feels bound to apply Johnson and Weber, that court should “invite” the US Supreme Court to review Johnson and Weber and to “clarify its decision in Ricci.”
Thursday, September 25, 2014
image from eeoc.gov
In an interesting settlement announcement the well-known seafood restaurant chain McCormick & Schmick’s has agreed to pay $1.3 million to settle a claim of race discrimination brought by the EEOC. The suit had alleged that front-of-house employees at two of the restaurant's locations were not given equal work assignments as a result of race, and that the company's advertising practices had suggested a preference for nonblack workers. Per the EEOC's press release, in addition to the large monetary settlement amount, the restaurant will “
- implement numerical goals for hiring of black job applicants for front-of-the-house positions at the two Baltimore locations;
- implement targeted recruitment efforts to attract black job applicants at the two Baltimore locations;
- review its job advertisements to make certain they do not violate Title VII's prohibitions against expressing intended or unintended preferences because of race;
- conduct extensive self-assessment of hiring and work assignment practices to ensure non-discrimination and compliance with the terms of the consent decree;
- designate a decree compliance monitor for oversight of compliance with the requirements of the consent decree; and
- submit reports to the EEOC concerning numerical hiring goals and other consent decree compliance issues.”
It is interesting to see the EEOC pursue these types of systemic claims, particularly after the difficulty private plaintiffs now have certifying class-action claims following the Walmart decision.
-- Joe Seiner
Wednesday, September 24, 2014
Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement.
From the abstract on SSRN:
This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.
Or in plainer terms as Scott wrote in an email,
The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts. In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers).
Very interesting read.
Tuesday, September 23, 2014
A bit of self-promotion: Carolina Academic Press has just published Mastering Labor Law, by Paul Secunda, Anne Lofaso, Joe Slater, and yours truly. Although it can be of interest to anyone, it's specifically geared to law students and practioners who want a helpful guide to the basics of labor law. One unique aspect--as you can gather from Joe Slater's presence on the author list--is that it also includes a significant amount of public sector labor law.
Monday, September 22, 2014
image from nlrb.gov
In a time when legal jobs are becoming more difficult to come by, the NLRB recently announced that it is accepting applications for its honors program. Many of you are familiar with this program (and may have even completed it). It is an excellent opportunity for many of our students. The full application is available at https://apps.nlrb.gov/honors. From the website:
"The Honors Program is highly competitive and candidates are selected on the basis of merit. Selection is based on the consideration of many factors including academic achievement (G.P.A. of 3.2 or greater); law journal or other relevant writing experience; relevant labor relations and/or law courses; moot court competition, legal aid, and legal clinic experience; and summer and/or part-time employment, particularly experience dealing with labor and employment matters. Some Regional offices have special needs where specific skills, such as bilingual skills, may be a factor in selecting the candidate. If your GPA falls below that necessary to qualify for consideration under the requirements of the NLRB Honors Program, you may nevertheless still qualify outside the Honors Program for a position in a Headquarters or Field Office. Please apply directly to the Hiring Office in which you are interested."
-- Joe Seiner
As many of you know, back in July the NLRB General Counsel indicated that the McDonald's fast food restaurants could be pursued for labor law violations at its individual franchises. This decision was enormously controversial and received high-profile widespread publicity. As Jeff noted on Friday, there have already been recent congressional hearings on the joint employer issue. It is not surprising that the NLRB's decision has also now become very politicized. Republican lawmakers last week sought more information from the NLRB on this issue. From the Chicago Tribune:
“Representatives John Kline and Phil Roe, in a letter to the agency, called the NLRB general counsel's finding “unprecedented” and asked the board to provide more documents by the end of September about its decision-making. The two Republicans are on the U.S. House of Representatives workforce committee”.
The decision is an important one and could have widespread implications beyond the NLRA. It seems that the battle over this issue has just begun, and it will be one that is very interesting to follow in the news and courts.
Saturday, September 20, 2014
How well do firms comply with the Family and Medical Leave Act? Not as much as you might think. That's the finding of a recent paper: Amy Armenia, Naomi Gerstel, and Coady Wing, "Workplace Compliance with the Law: The Case of the Family and Medical Leave Act," Work and Occupations 41(3) (2014): 277-304. Here's the abstract:
Using the 2008 National Study of Employers to analyze employers’ compliance with the Family and Medical Leave Act (FMLA), we show that prior studies have overestimated compliance due to the treatment of missing values and incomplete definitions of the FMLA. Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse. This analysis suggests that firms with missing data are more similar to noncompliant than compliant firms and that nonresponse may indicate organizational defiance of policy.
Among other things, the authors find that organizations are more likely to comply with FMLA-mandated maternity leaves than with other FMLA requirements.
Friday, September 19, 2014
The House Subcommittee on Health, Employment, Labor and Pensions held a hearing last week, titled "Expanding Joint Employer Status: What Does it Mean for Workers and Job Creators?" Among the speakers was Harris Freeman, who supported the NLRB's ability to expand the definition of joint employer, as the General Counsel is seeking in Browning-Ferris. As we noted earlier, he also submitted an amicus brief to the NLRB on this issue.
The committee has released a video of the hearing, which includes all witnesses.
Image from eeoc.gov
In an extremely interesting new report by the EEOC, the agency outlines common errors made by federal agencies when reviewing complaints of discrimination. The report focuses primarily on the inappropriate dismissal of these complaints on procedural grounds. The EEOC notes that approximately one third of all dismissals are subsequently reversed by the agency during the appellate process. From the news release:
"[the EEOC] examined five years of decisions (2008-2012) and determined an average appellate reversal rate for procedural dismissals by federal agencies. The government-wide reversal rates for each fiscal year examined are as follows: FY 2008 - 30.3%; FY 2009 - 35.5%; FY 2010 - 37%; FY 2011 - 34.9%; and FY 2012 - 44.9%.
[The EEOC] identified those agencies with higher than the government-wide reversal rates and analyzed the appellate reversal decisions involving those agencies to identify the most common mistakes. This showed that 81% of the EEOC's reversal decisions involved only two regulatory grounds for dismissal: failure to state a claim and failure to comply with regulatory time limitations."
I definitely recommend taking a quick look at this report, particularly if you are working on any scholarship related to these issues.
-- Joe Seiner
Thursday, September 18, 2014
In early August, the Tennessee Court of Appeals decided a case of first impression, Torres v. Precision Industries, et al., No. W2014-00032-COA-R3-CV (Tenn. Ct. App. Aug. 5, 2014), examining whether an undocumented worker can state a common law claim for wrongful discharge after being fired in retaliation for filing a workers’ compensation claim.
This is the most recent round in a long-running debate in both state and federal courts about the ability of undocumented workers to make claims under labor and employment law and then, if they win, to collect damages. Of interest to me are the assumptions that judges make about the incentives that their decisions in the labor/ employment arena – to recognize or deny a right, or to allow or disallow a backpay award – will create in the immigration arena.
There are two possible incentives that courts have explored. On the one hand, if undocumented workers are allowed to make labor and employment claims and collect damages on the same terms as their documented co-workers, then more people will be enticed to migrate to the United States and obtain jobs without authorization. In this view, denying rights and remedies will reduce undocumented immigration. On the other hand, if undocumented workers are less protected by labor and employment law, then unscrupulous employers will be incentivized to hire more undocumented workers precisely because their lack of rights will make them more pliable and cheaper to employ. In this view, denying rights and remedies will increase undocumented immigration.
Perhaps the most famous enunciation of these two views came in the 2002 Supreme Court case, Hoffman Plastic Compounds v. NLRB, where the Rehnquist-led majority took the former view and the Breyer-led dissenters took the latter.
The Tennessee Appeals Court has now weighed in on the side of the Hoffman dissenters, holding that “[W]e find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers' compensation claim was filed. . . It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers' compensation for an injury by firing an unauthorized alien employee without consequence.”
I think that the Tennessee Appeals Court got it right. Though I would love to see some empirical research on which of these two views of workers' and employers' incentives is accurate, I find it hard to imagine that many migrants, when deciding whether to enter the United States and take work without authorization, even know about or consider the contours of their rights and remedies on the job. Also, I do not find it hard to believe that unscrupulous employers would seek out undocumented workers precisely because of their precarious legal status.
Now for the side notes:
The oral argument in the Torres case is available on the Appeals Court’s website. At the very end of the recording (around minute 31.33), one of the judges on the panel asks the plaintiff’s counsel, Steven Wilson, where he got his “nice accent.” Mr. Wilson answers, “Wales,” and some pleasant conversation ensues. It was perhaps not lost on everyone in the courtroom that immigration and immigrants were playing roles on various levels during the hearing – one wonders whether a different accent would have drawn the same comments, and how the presence of Mr. Wilson, with his accent as an obvious marker of his migrant status, influenced the judges' thinking.
And regarding labels and their power: Throughout the proceeding, Mr. Wilson refers to Mr. Torres as an “undocumented worker.” (Mr. Torres actually obtained a U visa in February 2013.) At the beginning of the defense lawyer’s argument (at around minute 14.40), he makes the seemingly tangential point that Mr. Torres should, in fact, be called an “illegal alien,” because that is the label used by Tennessee statutes and the state supreme court. Many commentators have noted the power (and inaccuracy and offensive nature) of this “illegal” label, but the defense strategy seems not to have worked in this instance, as the Torres opinion uses the terms “undocumented worker,” “unauthorized alien,” and “illegal alien” interchangeably, and ultimately sides with Mr. Torres, whatever his label.
(Thanks to my colleague Sue Willey for alerting me to the Torres case.)
-- Charlotte Alexander
Friend of blog and employment law scholar Brian Clarke (Charlotte) is featured in the Wall Street Journal Law Blog. The piece provides an extremely interesting and heartfelt look at the “dark side” of being an attorney -- highlighting the high rates of depression that often go along with our profession. I definitely recommend taking a look at this blog, and encouraging your students to do so as well.
-- Joe Seiner
I wanted to pass along an excellent opportunity for students interested in the study of labor law and dedicated to improving the lives of workers. The Major League Baseball Players Trust will award up to five $10,000 scholarships under the new Michael Weiner Scholarship for Labor Studies program. The deadline to apply is November 10, 2014.
More information is available here.
Wednesday, September 17, 2014
Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits. The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.
If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at email@example.com by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.
Tuesday, September 16, 2014
The Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities is seeking recommendations for public members. According to the announcement, the committee “is to study and prepare findings, conclusions and recommendations for the Secretary of Labor on (1) ways to increase employment opportunities for individuals with intellectual or developmental disabilities or other individuals with significant disabilities in competitive, integrated employment; (2) the use of the certificate program carried out under section 14(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. 214(c)); and (3) ways to improve oversight of the use of such certificates.” More information available here: http://ow.ly/Brz6I