Wednesday, January 28, 2015
I have just learned that friend-of-blog and employment law scholar/expert Nicole Porter (Toledo) has just uploaded a significant amount of her wonderful scholarship on SSRN. I am sure that most of our readers are familiar with Nicole's substantial contributions to our area of the law, and her scholarship is always very well reasoned and heavily relied upon in the academic community. Now that her last several articles are available to download, it is a great opportunity to catch up on some of these important topics and developing areas of the law. In particular, Nicole addresses the following areas:
Special Treatment Stigma after the ADA Amendments Act: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2552854 This paper discusses the stigma that arises when employees with disabilities receive special treatment in the workplace, in the form of reasonable accommodations. It then explores whether this stigma is likely to worsen or improve after the passage of the ADA Amendments Act, which has increased the number of individuals who are considered disabled and therefore entitled to reasonable accommodations.
Finding a Fix for the FMLA: A New Perspective, a New Solution, Hofstra Lab. & Emp. L. J. 327 (2014): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546460 Although the FMLA has received plenty of criticism, this paper focuses on the perspective of employers, who complain about the complexity and potential abuse of the serious health condition and intermittent leave provisions. After considering this perspective, this paper proposes a two-part solution. First, it proposes severing the FMLA coverage for the birth of a baby and the long-term care of family members (“care of others”) from coverage for one’s own serious health condition (“self care”) and coverage for very short-term absences to care for others. The FMLA would continue to cover the birth of a baby and leave to care for family members, but only when the anticipated leave is longer than ten days in length. The second part of the proposal is the enactment of a separate statute to address short-term absences for both the care of others and self care. This proposal would curb the many abuses of the FMLA and greatly decrease the complexity of the statute, which would hopefully ameliorate employers’ hostility towards the FMLA.
Choices, Bias, and the Value of the Paycheck Fairness Act: A Response Essay, 29 ABA J. Lab. & Emp. L. 429 (2014): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546467 This essay responds to authors who argue that the pay gap is primarily caused by women’s own choices in the workplace, and thus, these authors criticize the focus of the Obama administration on ending employer discrimination. First, this essay argues that employers are not primarily blamed for the pay gap; rather, the pay gap is often blamed on the choices women make. Second, this essay argues that most workplace choices made by women (and men) are constrained by social norms and workplace structures that are not compatible with balancing work and family. Finally, although not perfect, this essay argues that the proposed Paycheck Fairness Act can make a dent in the pay gap, especially with a few minor tweaks.
Caregiver Conundrum Redux: The Entrenchment of Structural Norms, 91 Denv. L. Rev. (forthcoming 2015): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2555872 This paper argues that the entrenchment of structural norms (hours, schedules, shifts, attendance, etc.) makes it impossible to make real progress in ending the caregiver conundrum, the difficulty caregivers face in balancing work and family. This paper uses analogous case law under Americans with Disabilities Act to demonstrate the entrenchment of these norms, and argues that because these norms are so entrenched, proposed solutions, both litigation- and legislation-focused, will ultimately fail.
I definitely recommend these papers to everyone and hope that you will get a chance to take a look at them in the coming days and weeks.
-- Joe Seiner
The Thirteenth International Conference in Commemoration of Professor Marco Biagi will take place on March 19 – 20, 2015. This year’s conference theme is “Employment Relations and Transformation of the Enterprise in the Global Economy.” This annual conference is organized by the Marco Biagi Foundation at the University of Modena and Reggio Emilia, Italy. The Conference will be preceded on March 18th by the Young Scholars’ Workshop in Labour Relations, also organized and hosted by the Marco Biagi Foundation. The Conference and Workshop programs are here.
Hat tip: Susan Bisom-Rapp. Susan is both a Conference and Workshop participant and serves on the Marco Biagi Foundation’s scientific committee and international council. She tells us that this will be her ninth consecutive year attending the event.
Tuesday, January 27, 2015
Many of you in the Northeast may be snowed in or facing hazardous travel conditions (we here in South Carolina typically don't have to worry about that). So if you are enjoying a Snow day off, you might contemplate whether or not there could be any potential employment issues if you are unable to get to work due to poor weather conditions. Basically, the question arises as to whether an employer can fire you for not showing up to work where the roads are hazardous, or even where the state has imposed travel bans. It does present interesting employment law questions on a number of different fronts, and an article today over at CNN/Fortune looks squarely at this issue. From the article:
“As “Juno,” the so-called Blizzard of 2015, barreled toward the Northeast Monday afternoon, public officials urged workers to stay home. As urgent and dire as those warnings sounded, employers didn’t necessarily have to heed them.”
It's a fun issue to debate, but most employers are generally fairly lenient on these issues. The article takes an interesting look at this topic, and can be a fun topic for classroom debate.
- Joe Seiner
Monday, January 26, 2015
Loyal readers are familiar with my (if not necessarily appreciative of) obsession with the Horton principle (which, by the way, is getting another rub at the courts in the Second Circuit). Those similarly afflicted (or maybe just interested in Chevron deference to the National Labor Relations Board decisions) will find interesting a recent student Note, Deference and the Federal Arbitration Act, 128 Harv. L. Rev. 907 (2015)
Written by Brett Kalikow, it argues that the Board's decision as to whether concerted action is a substantive right under the NLRA is entitled to deference. While recognizing that deference is not due where an agency interprets a statute outside its domain (like the FAA), the cases make clear that the FAA cannot require any waiver of substantive rights. And the Note contends that, therefore, Board interpretations that rights under the NLRA are substantive may nevertheless dictate the outcome:
This Note argues that deference is also warranted for the Board’s finding that the NLRA provides employees with a substantive statutory right to pursue legal claims collectively, which would render the arbitration agreements waiving that right unenforceable under the FAA. Although most of the Board’s discussion of the FAA is not entitled to deference, the Board’s finding that concerted legal activity is a substantive right under the NLRA is different. That determination is based on the NLRB’s interpretation of the nature of the rights guaranteed by the NLRA, the statute it administers, and therefore Chevron deference applies.
Needless to say, I'm persuaded -- although I'm a pretty easy sell when it comes to Horton!
Sunday, January 25, 2015
There is a wonderful chart and article over at the Huffington Post that takes a comparative look at parental leave. Many of us examine this issue when we cover the FMLA, or teach an international employment law class. The chart is really helpful in hitting home the idea of how far behind the US is in this area. It provides a nice visual overview of the topic for your students. From the article:
"The U.S. didn't crack the top 10 "worst" list for paternity leave, but it didn't make it on the "best" list either. Any way you slice it, it seems the vast majority of working parents in the U.S. have few options when it comes to taking care of newborns."
This is an interesting and important issue and I recommend this article for your review.
- Joe Seiner
Saturday, January 24, 2015
We are used to seeing declining unionization and membership rates across the country. Another unfortunate trend (depending on your perspective) is a decline in unionization in those states that historically back organized labor. The great state of Michigan is the best and most recent example of this trend. The Detroit Free Press is reporting that unionization there is now at an all time low:
"The state's union membership fell in 2014 to 14.5%, or 585,000, of the 4 million workforce from 16.3% from the prior year, according [to] figures released today by the U.S. Bureau of Labor Statistics . . . North Carolina has the lowest union membership rate at just 1.9%. Nationally, union membership declined 0.2% to 11.1%."
Many of you will recall that a "Right to Work Law" was recently put in place in the state, likely accounting for the decline. It will be intresting to follow this issue and see if the percentages of unionized workers levels out at some point in the state.
-- Joe Seiner
Friday, January 23, 2015
There’s some reason to believe that employers are utilizing liquidated damages clauses in their employment contracts to a greater extent than previously. This makes sense from their perspective because damages from an employee’s breach of a term contract are often hard to prove to a sufficient degree of certainty. Even when some damages can be shown (for example, the increased cost of hiring a replacement), the employer may well feel that other harm remains uncompensated.
Enter the liquidated damages clause. I’ll skip the academic debate as to whether parties should be free to enter into such agreements free of special scrutiny and move right to the law on the subject, which (somewhat contradictorily) generally permits the parties to stipulate to damages from a breach only if they are a reasonable attempt to specify harm that is by its nature difficult or impossible of ascertainment after breach. Courts also differ on whether reasonableness is to be ascertained as of the time of the contract (foresight), at the time of breach (hindsight) or both. See Restatement of Contracts § 356.
One of the latest judicial encounters with a liquidated damages clause was in Kent University v. Ford (a 2-1 decision of the Ohio Court of Appeals) and involved (naturally) a coach. Although Kent State is not a basketball powerhouse, it recovered $1.2 million against its former coach, who in 2011 moved on to Bradley (also not a powerhouse). And, if you’re wondering, the Bradley Braves current record is 6-14. So poor Ford may be looking for another job soon, with a big judgment hanging over his head. Maybe he was smart enough to get Bradley to agree to indemnify him (Bradley was also sued by Kent State for tortious interference but it dismissed that claim once it obtained summary judgment against Ford).
The clause in question required Ford to pay Kent State his stated salary for each year he failed to keep his contractual commitment, which, in the event, was four years. As you might guess from the judgment, he was earning $300,000.
The Bradley offer paid him $700,000 a year, which suggests it was an efficient breach for Ford. Even if he had to pay the $1.2 to Kent State (rather than shift that cost to Bradley), he would net $1.6 million over the next four years rather than the 1.2 he would have earned had he stayed put. By the way Kent State is now 13-5 under the coach who replaced Ford there.
Setting a liquidated damage provision at the level of the employee’s compensation seems, to put it mildly, arbitrary. It is true that, as the court noted, there are a lot of damages that are simply unquantifiable (for example, whether a particular recruited athlete would not go elsewhere once the coach left, the financial significance of which depends both on how well that athlete would have played in a team sport and how such play might affect the gate). In other words, the damages are pretty clearly unascertainable, satisfying that prong of the usual test.
But the “reasonable effort” to estimate those damages seems plainly lacking although the opinion is more than a little confused on this point. One might think that the fact that Kent State did no “financial analysis” of possible harm (although it identified a number of headings where damage might occur) might be dispositive, but nope. The explanation might be a quirk in governing Ohio law, which does not explicitly focus on the reasonableness of the estimate. Instead, the court focused on whether the agreement was unconscionable, and found Ford a sophisticated party who had consulted with an agent and/or attorney. Nevertheless, the court also found the damages reasonable, even if only based on the additional cost of hiring a new coach – and to do so, it looked to Ford’s salary at Bradley. In other words, if Kent State had to hire a replacement for Ford because he left for a better paying job, a suitable replacement would cost more or less what Ford made elsewhere. Maybe true, but it’s still hard to see what that has to do with pegging damages at yearly salary.
There was a strong dissent, which may mean an appeal down the road to the state Supreme Court. That would provide an opportunity to clarify a muddy area. In the meantime the Kent State decision might give greater impetus to employer use of liquidated damages clause. Oh, and a final irony: more or less at the same time it was trying to enforce the basketball coach’s clause, Kent State was trying to invalidate a football defensive coordinator before another Ohio court in Fleming v. Kent State. While it lost on one issue, it may still prevail on others. Speaking of having one’s cake….
P.S. My apologize for not hyperlinking the two cases to a free source, but there's some problem in Ohio. The cites are: Kent State Univ. v. Ford, 2015-Ohio-41 (Ct. App.) and Fleming v. Kent State Univ., 17 N.E.3d 620 (Ohio Ct. App. 2014).
Wednesday, January 21, 2015
Christopher Tomlins has posted a review of Jean-Christian Vinel, The Employee: A Political History (University of Pennsylvania Press, 2013). Vinel teaches American History at Université Paris-Diderot, and his book traces the history of the legal definition of “employee” in US law. Here’s the abstract of the Tomlins essay:
This paper is a critical commentary on Jean-Christian Vinel’s 2013 book, The Employee: A Political History. In substance, Vinel’s book addresses the history and consequences of the failure of American unions to organize supervisory employees. However, as befits a book published in a series created “to reverse the fragmentation of modern U.S. history and to encourage synthetic perspectives on social movements and the state,” it ranges rather more broadly. Thus, the book is a legal and political history of a word (“employee”). It also attempts an intellectual history of American industrial relations theory, and of the course of labor relations law from the New Deal into the twenty-first century. It is also a brave effort to synthesize the distinct “critical” and “industrial realist” strains of labor relations history that spent the better part of the 1980s and 1990s, amid the unfolding, never-ending, crisis of American trade unionism, arguing over how to interpret the legacy of the New Deal’s collective bargaining policy. And it is an effort at a critique of both those positions (although Vinel’s sympathies are ultimately with the realists.) Finally, while indubitably an American history, The Employee is intermittently comparative. This commentary assesses sympathetically Vinel’s efforts, but parts company from his conclusions.
For a prior review of Vinel’s book, see here.
Saturday, January 17, 2015
The economy is stronger and the labor market is tightening, putting workers in a much better negotiating position over wages. This fact has not been lost on much of the workforce. A new study discussed over at CNN.Money reveals that over a third of workers plan to quit their current employment and seek other work if they are not given a raise this year. From the article:
"Those most likely to walk? Employees under age 35 and employees making less than $50,000. But that doesn't mean more seasoned or better paid workers are just going to suck it up. A full 36% of those between the ages of 35 and 44 say they'll look elsewhere for a job if they don't get a pay hike, as would 31% of those making more than $100,000."
It is clear that there are definitive expectations out there for higher wages in this coming year as we have finally turned a corner in the economy. It will be interesting to see whether these expectations are actually met as employers are likely leery of another downturn.
-- Joe Seiner
Friday, January 16, 2015
Today, the White House announced a set of new initiatives to expand paid family leave. Among the plans:
- Healthy Families Act: proposed legislation that would require employers to allow employees to earn up to 7 days of paid sick leave per year.
- A start-up fund to help states create their own paid leave plans for their employees.
- Improved data collection through the Department of Labor.
- Proposed legislation to create paid parental leave for federal employees.
- Expanding coverage of FMLA.
- Expanding tax credits and federal funding for child care costs.
- Increased funding for family care for elderly and disabled family members.
- Improving enforcement of equal pay laws
This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.
Thursday, January 15, 2015
There is an interesting article over at the Wall Street Journal which looks at how several large companies are starting to work with their employees to chart out a career path. Apparently, these employers are attempting to combat worker turnover by helping to create internal options for employee growth. As the job market begins to tighten with the growing economy, this approach makes sense for employers to help attract and keep their top talent. From the article:
"Big companies ... are hiring career counselors, training some managers to give job advice and launching in-house career centers similar to those found on college campuses. Other companies . . . are taking steps to better market internal job opportunities and make clear what it takes to land a new position. As the hiring market heats up, the idea is to help workers plot their next few jobs and learn how to ascend the corporate ladder—preferably without having to leave the company."
This is an interesting trend and certainly one that signals a return to a more worker-friendly environment.
-- Joe Seiner
Wednesday, January 14, 2015
If you are teaching individual employment law this semester, there is a great case in Michigan that will provide a goldmine of different subject-matter areas for you to explore. The case touches on the trifecta of social media, the first amendment, and unemployment benefits. In the matter, an attorney for the Michigan Attorney General's office had posted anti-gay comments on facebook and his own blog about a University of Michigan student that is openly gay and was president of the student government. The attorney, Andrew Shirvell, was fired by the state for these comments. An Ingham County judge ruled in favor of providing Shirvell benefits, but the judge's decision was overturned (3-0) by a unanimous appellate court ruling. From the article at The Detroit Free Press:
"Attorney General Mike Cox's office received more than 20,000 complaints [about the attorney]. "Shirvell's conduct undermined one of the department's specific missions — i.e. the integrity of its anti-cyberbullying campaign," said judges Stephen Borrello, Christopher Murray and Peter O'Connell. 'By employing an individual such as Shirvell, whose conduct Cox agreed amounted to bullying, the department undermined its own message.'"
The article and case itself are worth a read, as this is obviously a complex legal matter that will extend beyond an unemployment benefits dispute.
- Joe Seiner
Tuesday, January 13, 2015
The Supreme Court heard oral argument today in Mach Mining v. EEOC, which you might remember from some of our prior posts (also here) and a guest post by Commissioner Feldblum. The transcript has been posted on the Supreme Court's website, and you can read it here. The case was about the EEOC's concilation process and whether that process is judicially reviewable.
I've read through and have some initial impressions. Even though the EEOC is the respondent here, I'm going to start with its arguments because there was significantly more back and forth with the Justices and the EEOC than with the Justices and counsel for the employer, Tom Goldstein. The EEOC has taken an understandable but difficult position, that it cannot file suit unless it has tried and been unable to conciliate on terms it desires. The EEOC asserted that it had a duty to attempt to conciliate, but that essentially, as long as it sent a letter to the employer notifying it that the EEOC had found cause to believe discrimination had occurred in connection with the charge and asking the employer to get in touch, that duty was satisfied. Counsel for the EEOC conceded that this did not seem to be much for judicial review, but argued that even in courts that used a minimal good faith standard, those courts were getting bogged down in mini-trials attempting to assess the quality of the conciliation efforts, something the statute provides no sort of standards for, since the statutory language gives the EEOC has the sole discretion to decide whether any potential terms of resolution are acceptable to it. Counsel for the EEOC was pressed repeatedly to articulate what should be required to ensure that the EEOC actually attempted to conciliate. Chief Justice Roberts, especially was wary of trusting the word of the agency that it had acted in good faith, and Justice Breyer was as well, although to a lesser degree.
With counsel for the employer, the Justices focused primarily on how to frame the issue as a matter of administrative law, since the statute contains no standards for review, nor does it define this conduct as a final agency action. Additionally, the statute requires that the EEOC keep conciliation matters secret and prohibits information about the conciliation process to be used as evidence at trial.
In terms of Supreme Court bingo, predicting how the Justices will vote, I feel fairly confident that Chief Justice Roberts would vote to overturn the Seventh Circuit. I also feel fairly confident that Justices Ginsburg, Sotomayor, and Kagan are more sympathetic to the EEOC's position but might be willing to create some kind of standard more than what the Seventh Circuit required. Justice Kennedy questioned the employer's counsel pretty heavily, and Justice Breyer and Justice Scalia did the same for both sides.
One last observation. Developing a specialty in Supreme Court litigation will make you one smooth advocate. As a former appellate advocate, I have to say that Tom Goldstein (of Goldstein & Russell also founder of SCOTUSblog)'s argument was incredible to read.
Monday, January 12, 2015
Publix Grocery Stores, one of the largest grocery chains in the South, is now offering same-sex health benefits to its employees, according to an article over at CNN Money. From the article:
"The grocery chain [even operates] in three states that ban same-sex marriage: Alabama, Georgia and Tennessee . . . even employees in those states can enroll their spouses in the company's health and dental plans -- as long as they were married in a different state."
This is a progressive move by a major employer, and it may signal other changes in this area. It will be interesting to see if other companies follow suit.
-- Joe Seiner
International Society for Labour & Social Security Law
Capetown, South Africa, Sept. 15-18, 2015
More information here, but discounted early bird registration ends on January 31st, so if you're interested, act soon.
Hat tip to Steve Willborn
Thirteen former United Airlines (UAL) flight attendants say they were improperly fired last year after refusing to work on a Boeing Co. (BA) 747 jumbo jet that had “menacing” images drawn below its tail.
The attendants say they had a right to disobey orders to make the July 14 San Francisco-to-Hong Kong trip after the words “bye bye” were found written in an oil slick on the fuselage, according to a complaint to the U.S. Occupational Health and Safety Administration. Two faces, one smiling and one “devilish,” were drawn nearby, according to the complaint.
At issue is the extent to which the images represented a security risk, as alleged by the attendants. According to the complaint, the workers saw a “serious” threat, while United inspected an auxiliary power unit near the drawings, found nothing suspicious and trivialized the incident as a “joke.”
Saturday, January 10, 2015
A unanimous California Supreme Court clarified that on-call employees required to spend time at their worksites and under the employer’s control are entitled to compensation for all hours, including sleep time. In addition, the Court unequivocally held that state wage and hour law does not implicitly incorporate the federal standard unless state law and the wage orders contain an express exemption similar to that found in federal law. The Women's Employment Rights Clinic of Golden Gate University weighed in as amicus on behalf of low-wage worker advocates and Prof. Hina Shah argued before the Cal. Supreme Court. The LA Times ran a story on this dramatic development.
Friday, January 9, 2015
As student football players at Northwestern University press forward with their case at the National Labor Relations Board, the Michigan legislature has amended its statute governing public-employee collective bargaining to exclude student athletes at Michigan’s public universities. The amendment, now in effect, added the underlined text:
An individual serving as a graduate student research assistant or in an equivalent position, and a student participating in intercollegiate athletics on behalf of a public university in this state, or any individual whose position does not have sufficient indicia of an employer-employee relationship using the 20-factor test announced by the internal revenue service of the United States department of treasury in revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee entitled to representation or collective bargaining rights under this act.
Michigan Complied Laws 423.201(1)(e)(iii). (Although the text of this provision also excludes graduate student research assistants, a federal district court declared that exclusion to violate article IV, section 24, of the Michigan Constitution. Toth v. Callaghan, 995 F. Supp. 2d 774 (E.D. Mich. 2014).)
Thursday, January 8, 2015
image from eeoc.gov
The EEOC will hold a public meeting on January 14, 2015 at 9:30 a.m. at its agency headquarters in Washington, DC to explore the continuing problem of workplace harassment. The meeting will examine the reasons for the problem, and look at employer best practices in this area. The press release, attached below, identifies the well-respected panelists scheduled for the meeting:
"The Commission will hear from invited panelists on the persistent problem of workplace harassment as well as best practices for employers to prevent and address harassment. The Commission is scheduled to hear from the following confirmed panelists during the meeting:
- Carol Miaskoff, Acting Associate Legal Counsel, EEOC, Office of Legal Counsel
- Fatima Goss Graves, Vice President for Education and Employment, National Women's Law Center
- Patricia Wise, Partner, Niehaus Wise & Kalas Ltd
- Laudente Montoya, Charging Party/Class Member, EEOC v. Dart Energy Corp. et al.
- Sean Ratliff, Acting Supervisory Trial Attorney, EEOC Denver Field Office
- Jane Kow, Employment Lawyer and HR Consultant/Trainer, HR Law Consultants
Seating is limited, and the EEOC encourages visitors to arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building."
This looks like it will be a very informative meeting. If you live in the DC area, it would be well worth making the trip out to the EEOC.
-- Joe Seiner
Wednesday, January 7, 2015
Does Title VII disparate-impact law violate the Equal Protection Clause of the US Constitution? In Ricci v. DeStefano (2009), Justice Scalia wrote separately to strongly suggest that that it did. Now, in a new paper, Reva Siegel argues that disparate impact’s constitutionality is implied by the Court’s opinion in Fisher v. University of Texas at Austin (2013). Her paper: “Race-Conscious But Race-Neutral: The Constitutionality of Disparate Impact in the Robert Court,” posted here. More from the abstract:
In Fisher, the Court has demonstrated that government may change the selection standards in competitive processes without triggering strict scrutiny if the government acts (1) with a race-conscious goal of promoting equal opportunity; (2) the government requires a selection standard that is appropriate for the context; and (3) the standard does not classify individuals by race. These principles are satisfied in the ordinary case of voluntary disparate impact compliance in which an employer specifies conditions for employment in advance of evaluating applicants for the job in question, as well as in prospective remedies that courts ordinarily order for violations of Title VII.
Fisher clarifies that the problem in Ricci was New Haven’s procedurally irregular means of complying with disparate impact law: the government discarded the test results of a group of applicants who had invested significant time in studying for a promotion exam, and explained this decision in terms which left the disappointed applicants with the impression that government was discarding their scores to advance the interests of another racially defined group. By avoiding a constitutional judgment and finding New Haven’s manner of complying with the statute unlawful disparate treatment, Justice Kennedy warns that interventions designed to heal social division should be implemented in ways that endeavor not to aggravate social division.
Disparate impact law can promote equal opportunity, increase employee confidence in the fairness of selection criteria, and so reduce racial balkanization; but for disparate impact law to do so, Justice Kennedy seems to be saying in Ricci, disparate impact law needs to be enforced with attention to all employees’ expectations of fair dealing.
The paper is forthcoming in Alabama Law Review 66(3) (2015).