Friday, November 28, 2014

DOL Jobs Website


image from

The US Department of Labor is promoting an interesting website targeted at all aspects of the employment process.   "FindYourPath"  is a one-stop website  that allows employers to  find available workers, permits individuals to identify jobs, and shares relevant news on the employment process.  The website also discusses training opportunities that allow workers to grow their skill sets.  The website is worth taking a look at, and I have been impressed recently with the Department of Labor's progressive attempts to  advocate for and assist workers during this down economy.

-- Joe Seiner

November 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

Uber Collective Action

UberNew technology meets old-school labor unrest.  Recently, the online ride service, Uber, has faced a series of collective actions by its drivers, which have objected to the increasingly tight terms and conditions of their relationship with the company.  One of the many interesting aspects of this dispute is that the drivers, like many taxi drivers, are classified by Uber as independent contractors.  That doesn't stop the drivers' ability to engage in work stoppages, but it of course eliminates any legal protection against retaliation.  However, there's currently a suit pending in San Francisco challenged the classification, so things could get more interesting.

Hat Tip: Michael Duff


November 27, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Assessing the New Restatement

NewimageAs the new Employment Law Restatement approaches final form, we can expect another wave of academic commentary, and I was fortunate enough to be present last week at the first such effort, a Symposium hosted at Ithaca hosted by the Cornell Law Review.  Some of the papers are already available on SSRN, including Michael Harper's Fashioning a General Common Law for Employment in the Age of Statutes and Robert Hillman's Drafting Chapter 2 of the ALI's Employment Law Restatement in the Shadow of Contract Law: An Assessment of the Challenges and Results. 

I assume the other papers will be available on SSRN soon, and, in any event, will be published in the Cornell Law Review in the spring. They include Steve Willborn's assessment of Chapter 7,  Privacy; two offerings on Chapter 8, Employee Obligations and Restrictive Covenant, one by Mike Selmi and another by Deborah DeMott; and my own musings on Chapter 9, Remedies.

Most of the panels featured one of the Reporters for the project, and I was struck by their openness to addressing "scrivener's errors" even at this late stage.  Those working from the April Proposed Final Draft considered by the American Law Institute in May should be aware of one major change (the final version will take no position on whether the wrongful discharge tort will extend to wrongful discipline short of constructive discharge) and perhaps a number of less significant ones.

And I forgot to mention the retitling -- it is no longer the Restatement (Third) of Employment Law -- the "Third" having been jettisoned. Much more sensible since as we all know there was never a First or Second version of this Restatement. If you're wondering, I think the idea for the original title was that this was part of the Third series of Restatements.  

As is well known, this Restatement was more controversial than most ALI efforts, due largely to the opposition of the Labor Law Group. And that controversy will continue -- both in the law reviews and in the courts.  

One measure of success, of course, is acceptance by the courts, and on that measure the Restatement is off to an ironic start.  The first judicial opinion to cite it, Tamosaitis v. URS Inc., 2014 U.S. App. LEXIS 21314 (9th Cir. Wash. Nov. 7, 2014), written by Judge Berzon (who was present at the Symposium) looked at the Proposed Final Version's treatment of the tort of wrongful discipline. As I noted above, however, the Institute itself retreated from that position in May to adopt an agnostic stance about whether the tort reached so far.

Another metric, of course, is how well the Restatement maps onto the case law. That, of course, is what a Restatement is (mostly) supposed to do according to the ALI, and we can expect a number of good analyses in that regard.

Yet another metric is the internal consistency or overarching theoretic structure of a Restatment. In this regard for example, Steve Willborn's critique of the Privacy chapter stands out as a signal contribution. Worth a read also is Professor Hillman's work, which finds that the Restatement does no worse than contract law generally in failing to articulate a unifying theory of several of the contracts-related subjects it addresses.   

A final metric is whether the new Restatement is employee- or employer-friendly, or at least more or less friendly than the common law.  If there's one metric the Reporters don't accept, it's this. And I should know because that was largely the metric I applied in my talk on Remedies!  

I do get the problem. For example, the Restatement's rejection of emotional distress contract damages for fired employees could scarcely be challenged from the point of view of case-counting. But as Alan Hyde has argued, is such a rule really sensible in light of the profound psychological and even physical effects of discharge on workers?  But this is an example where the Restatement, while employer-friendly, tracks the case law.

In other instances, however, assessing the Restatement in terms of its exacerbation or amelioration of the bias built into the law seems perfectly appropriate -- to me, at least. An example I offered at the Cornell Symposium was the Restatement's approval of a version of the "lowered sights" doctrine, the notion -- definitely the minority rule -- that, in order to mitigate her damages, a wrongfully discharged employee must, after a reasonable time, accept less attractive substitute employment when more attractive employment isn't found.  

At all events, I enjoyed the Symposium, and thank the Reporters for their graciousness and the Law Review for its hospitality. I look forward to the final versions of the papers and to more scholars weighing in on the entire question.  


November 27, 2014 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Deferred-Action Immigration Status and Employer Alienage Discrimination

    Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.)  Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.


    In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US.  Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation.   Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999). 

       But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US.  See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”).  Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).

    With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3).  The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US.  See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).

Employer Alienage Discrimination

    What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status?  Discrimination based on a person’s citizenship status is called alienage discrimination.  Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination.  42 U.S.C. § 2000e-2(a)-(c).  Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3).  Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.

    Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added).  Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994).  However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit).  In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.”  Anderson, 156 F.3d at 180.

The Case

    In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following:  He was a Mexican national living in New York.  In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number.  During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident.  He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident. 

    Juarez sued, alleging alienage discrimination in violation of 42 USC 1981.  On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.

    On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss.  Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.”  An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class.  And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual  had rejected him pursuant to that policy.  For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.


 --Sachin Pandya


 Hat tip: Jon Bauer

November 26, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

The Part-Time Economy

There is an interesting article at CNN Money which discusses a disturbing but important employment trend in this country. The piece looks at the movement towards employing part-time workers rather than using full-time employees.  The article notes the specific disadvantages for workers in this trend, and examines the percentage of these part-time workers in individual states across the nation. From the article:

"Part-time workers are far more likely to live in poverty. They are paid less than other workers and often don't receive benefits. It's a bad sign when states have a high percentage of part-time employees in the labor force, especially those working part-time involuntarily because they can't get a full-time job."

This is an unfortunate and growing trend, and one that is important to closely watch.  It is certainly indicative of whether there truly has been a rebound in our economy.

- Joe Seiner

November 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Ford: How Do We Define Stuff Like "Discrimination"?

FordRichard Ford (Stanford) has just posted on SSRN his article (forthcoming Stanford L. Rev. 2014) Bias in the Air: Rethinking Employment Discrimination Law. Here's the abstract:

Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private law, such as the legal realist critique of objective causation in torts, I argue that, in practice, the central concepts in antidiscrimination law do not describe objective phenomena or facts at all; instead, they refer to social conflicts between employer prerogatives and egalitarian goals. Ironically, at its best, employment discrimination law does not really prohibit discrimination; instead it imposes a duty of care on employers to avoid decisions that undermine social equality. This suggests that attempts to improve employment discrimination law by making it more attentive to “the facts” — for instance, refining causation in mixed-motives cases using quantitative empirical methods or defining discriminatory intent according to innovations in social psychology—are unlikely to be successful, because these facts are not really at the center of the dispute. Instead, we could better improve employment discrimination law — making it more successful as an egalitarian intervention and less intrusive on legitimate employer prerogatives — if we abandoned attempts to precisely define concepts such as “objective causation” and “discriminatory intent” and instead focused on refining the employer’s duty of care to avoid antiegalitarian employment decisions.


November 25, 2014 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Atlanta Fire Chief Suspended for Writing Religious/Homophobic Book

ChiefThanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:

Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.

Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.

Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.

Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.



November 25, 2014 in Employment Discrimination, Public Employment Law, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, November 22, 2014

Jury Awards $186 Million in Pregnancy Bias Case

Pregnancy discrimination has been a visible area in the news recently.  The EEOC has focused on this area, and the Supreme Court will look at a pregnancy discrimination claim later this term.  To add to this attention, a California jury just awarded a mammoth verdict in a pregnancy discrimination and harassment case against AutoZone.  In the case, the employee was demoted and fired after the employer learned of her pregnancy. A San Diego jury awarded just under $1 million in compensatory damages, and $185 million in punitive damages. From a news report at

"At trial, a former district manager testified that an AutoZone vice president berated him for having so many women in management positions, saying: 'What are we running here, a boutique? Get rid of those women.' The jury ruled that the harassment against [the worker] was "severe and pervasive," and found unanimously that she was discriminated against and later fired because of her pregnancy, according to the verdict form." 

I have serious doubts that the verdict will be upheld in its entirety, and it's extremely likely  that  the punitive damages award will be greatly reduced. Nonetheless, this case sends a significant message that this type of discrimination will not be tolerated.  It will be interesting to follow this case and any appeals.

Hat tip:  Suja Thomas

-- Joe Seiner

November 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Facebook Looks to Create Workplace Network

Both the WSJ and BBC have recently addressed Facebook’s goal of creating a new workplace network. The network would be designed to converse with fellow workers, network with colleagues, and coordinate office materials.  The BBC article highlighted the concerns of keeping one's professional and personal profiles apart, and raised some skepticism employers have about workers using this as an excuse to spend more time on their computers doing non-work related activities. From the article:

“Facebook at Work will look similar to its existing social network, but users will be able to keep their personal profiles separate…They also would be able to chat with colleagues, build professional networks and share documents.”

This is a clear attempt by Facebook to expand its market and directly compete with such operations as LinkedIn.  It further creates obvious workplace issues that will be interesting to follow.  For example, can such a network be used to engage in concerted activity?  Changing technologies certainly create evolving legal issues in the labor and employment field.

-- Joe Seiner

November 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

The Workplace Constitution

Why do most people today not have rights at work that come from the US Constitution?  That’s the puzzle at the heart of a just-published legal history: Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press, 2014).  Here’s the publisher’s description:

Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason or no reason at all. This book uses history to explain why. It takes readers back to the 1930s and 1940s when advocates across the political spectrum – labor leaders, civil rights advocates, and conservatives opposed to government regulation – set out to enshrine constitutional rights in the workplace. The book tells their interlocking stories of fighting for constitutional protections for American workers, recovers their surprising successes, explains their ultimate failure, and helps readers assess this outcome.

 From the book itself:

From the vantage point of the mid-twentieth century, the workplace Constitution’s future looked promising.  In the 1930s and 1940s, two movements began trying to extend the Constitution to the workplace.  They were opposed to each other politically but they shared this legal goal.  One, the civil rights movement, would go on to capture the attention of the nation and dismantle Jim Crow.  The other, the right-to-work movement, fought for open shops.  Although its history is less well known, this second movement was supported by prominent politicians and opinion makers.  Together, the two movements created a strange and contentious but politically powerful combination.  Their successes and failures change the historical understanding of constitutional law, labor politics, civil rights struggles, and conservative movements.

 The book’s website is here.


--Sachin Pandya

Hat tip: Legal History Blog

November 20, 2014 in Books, Labor/Employment History | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 19, 2014

Greene & O'Brien on the EEOC's Duty to Conciliate

Greene PbrienStephanie Greene and Christine Neylon O'Brien (both Boston College - Mgmt.) have just posted on SSRN their article (forthcoming 119 Penn St. L. Rev.) Judicial Review of the EEOC's Duty to Conciliate. Here's the abstract:

Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.


November 19, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

FLSA Suit Against Supervisors Barred by 11th Amendment

No otJonathan Harkavy (Patterson Harkvay) sends word of  Martin v. Wood, No. 13-2283 (4th Cir. Nov. 18, 2014), in which the Fourth Circuit dismissed on Eleventh Amendment grounds an FLSA suit bright by an employee against supervisors in their individual capacities for allegedly improperly refusing to authorize overtime for hours worked in excess of 40 per week.


November 19, 2014 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

Wal-Mart Labor Struggles to Result in Black Friday Protests

In an interesting piece over at CNN Money, it looks as though Walmart will have its hands full during this upcoming holiday season as workers plan to protest pay and scheduling issues. Consistent with other minimum wage protests that have been followed on this blog, Walmart employees are asking to receive $15 an hour so that they can be paid a much more livable wage. The protests are expected to heat up on black Friday, one of the most important days of the year for the retailer and the unofficial start of the holiday shopping season. Organizers are expecting the protest to take place at approximately 1600 stores nation-wide. The article is interesting as it also discusses some of the past labor strife workers have encountered with the retailer. From the piece:

“the National Labor Relations Board, which protects the rights of workers who organize for better wages, also alleges that Walmart unlawfully threatened or disciplined employees at more than a dozen stores for legally protected strikes and protests. Nineteen workers were fired for protesting and about 40 others were threatened or disciplined, according to the NLRB. Walmart has said it acted within its rights under the law. The latest hearing in that case was in June and no decision has been made yet.”

It will be interesting to see if these protests result in any changes at the company. It will also be interesting to see if any other retailers experience opposition to their employment policies during this holiday season.

-- Joe Seiner

November 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Saturday, November 15, 2014

2013-2014 Labor & Employment Supreme Court Review

Supreme CourtA little self-promotion.  My article, The Supreme Court's 2013-2014 Labor and Employment Law Decisions: Consensus at the Court, which is appearing in the Employment Law and Employment Policy Journal, is now on SSRN.  In the article, I examine all the labor and employment cases this term, plus some related cases and recent grants of cert.  I'll also note that I spend a lot of time on Harris v. Quinn, including what I view as the more significant aspects of the decision: the Court's take on joint employment and the First Amendment in the workplace.

Also check out Jonathan Harkavy's latest Supreme Court review, 2014 Supreme Court Employment Law Commentary.  He looks behind the veneer of consensus this term to argue that the Court's conservative majority still hasn't changed its stripes--a view with which, despite my title, I completely agree.

Finally, FWIW, my 2012-2013 Supreme Court review is here.



November 15, 2014 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Friday, November 14, 2014

Gender Stereotyping and Sexual Orientation

There was an interesting story on NPR this week on the EEOC's current use of gender stereotyping in Price Waterhouse to attack sexual orientation discrimination. Followers of this blog are probably well familiar with this argument, but it is interesting to see the federal government start to advance this theory. You can listen to the piece here, which notes that

“more recently . . . the EEOC has started reinterpreting [Price Waterhouse] to say discrimination against LGBT people is a form of gender stereotyping.”

"I don't want the impression to be left that we are creating or adding on," [an EEOC official] says. "What we are doing is interpreting the statute consistent with well-established principles."

The article also highlights the controversy over this type of interpretation, with a contrary viewpoint from the Equal Employment Advisory Council.  It is definitely worth a quick look.

-- Joe Seiner

November 14, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, November 13, 2014

Members-Only Unions at VW

VW VW has announced that it will recognize members-only unions at its Chattanooga plant.  Following the UAW's inability to get the necessary 50%+ votes to become the exclusive reprentative for all unit employees, this represents a second-best solution.  According to reports, the plan will be to create a three-tiered classification for unions that show support from at least 15%, 30%, and 45% of employees.  All of these groups will be able to meet with HR officials at least once a month as representatives for their members.  Those with 30% or 45% will be entitled to some unspecified additional rights.

This is all very interesting and I'm curious to see how it works.  What is less clear is whether this type of arrangement will have much purchase beyond a foreign corporation with union ties as strong as VW.


November 13, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Block Replaced by McFerran

NLRBUnfortunate news today for Sharon Block, whose second nomination to the NLRB was pending in the Senate.  The White House has confirmed earlier reports that, facing Republican opposition based on the nutsy argument that she's unfit to serve because of the recess appointment issue, they are pulling her nomination.  Really too bad for many reasons, not least of which is that Sharon was and would be an excellent Board member.

The very important silver lining with this move is that the White House is nominating Lauren McFerran (chief labor counsel for the Senate's  Health, Education, Labor, and Pensions committee) for Block's slot.  It sounds like this is partly with the assent of Republicans which, if true, is very good news for the NLRB as a whole, in that it assures the agency of having a full complement of members.  Of course, it's unclear why it matters what the Republicans think given that the Democrats still have the majority during the lame duck session.  Perhaps this was a fig leaf from the White House, but I really don't know.

Hat Tip: Patrick Kavanagh


November 13, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Upholds Validity of Class Action Arbitration Waiver

In an interesting decision by the Ninth Circuit Court of Appeals, Johnmuhammadi v. Bloomingdale’s Inc., 755 F.3d 1072 (9th Cir. 2014), the court held that a waiver of the right to pursue class-action litigtion that was included in an arbitration agreement cannot be attacked on statutory grounds.   The panel concluded that an opt-out provision of the arbitration agreement basically negated the applicability of Norris-LaGuardia or the Labor Act.

Matt Finkin (Illinois) assisted with a brief on rehearing on this important issue.  From the brief, which is attached Here:

"Section 3 of the Norris-LaGuardia directs the federal courts to deny enforcement to 'any promise or undertaking”'(italics added) by which the individual eschews the capacity to join with others to protect or advance her – and their – employment rights; that is, for example, not only to seek a better wage, but also to have the wages paid that are legally due."

"The panel’s apparent assumption is that the right to engage in concerted activity for mutual aid or protection is a private good for the benefit of the individual and so waivable by her. That is not correct. These statutes create publicgoods for the better ordering of society."

This is a beautifully crafted brief on a critical issue in employment law.  I encourage anyone interested in this topic (or anyone teaching labor law this semester) to take a look.

Hat Tip:  Suja Thomas

-- Joe Seiner

November 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Hey 'Cuz -- No more Slang at Chick-Fil-A

A manager at an Atlanta Chick-Fil-A has banned his employees from using a number of slang terms at work.  The list includes the words 'cuz, chill, salty and ratchet.  The full list of banned terms is available here.  I must confess that I am clearly not a hipster, as I was unfamiliar with at least half of these prohibited terms.  From the article at CNBC, the store manager

"compiled a list of blacklisted slang words his employees are no longer allowed to use during work hours. [He] handed out the list to his employees with the warning, 'You will speak properly when you walk through these doors.'" 

For those of you covering First Amendment issues in employment law this semester, this could be an interesting article to raise with your students.  And, if they are stressed about it being on the exam, you can always tell them to "chill."

-- Joe Seiner

November 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Mines That Don't Pay Their Fines

    A joint investigative report by National Public Radio and the Mine and Safety News finds that thousands of mine operators regularly fail to pay imposed safety penalties.  They looked at twenty years of data from the US Mine Safety and Health Administration and the US Department of Labor.  Findings include:

  • 2,700 mining company owners failed to pay nearly $70 million in delinquent penalties.
  • The top nine delinquents owe more than $1 million each.
  • Mines that don't pay their penalties are more dangerous than mines that do, with injury rates 50 percent higher.
  • Delinquent mines reported close to 4,000 injuries in the years they failed to pay, including accidents that killed 25 workers and left 58 others with permanent disabilities.
  • Delinquent mines continued to violate the law, with more than 130,000 violations, while they failed to pay mine safety fines.

These findings don’t include any delinquency less than 90 days old.  Although delinquent mine operators “account for just 7 percent of the nation's coal, metals and mineral mining companies,” that subset “is more dangerous than the rest.” Enforcement is difficult, the report suggests, in part because coal mine regulation is a low priority for limited law enforcement resources, and because it’s often hard to connect the nominal mine operators to the people actually running the mines.


--Sachin Pandya

November 13, 2014 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)