Friday, July 31, 2015
I worked on Google’s Global Ethics & Compliance team from 2007-2010 and at that time the thought of labor law having anything to say about the happenings of the Bay Area tech scene seemed unimaginable to most people – including those practicing law. Employment, sure, but not labor. (I’ve found this to be a bit true in academia as well – labor conjures up visions of coalminers or public school teachers but definitely not anybody working at tech companies.) Well, the other day a friend sent me a Wired article titled, “what happens when you talk about salaries at Google” and it reminded me of why that view can get companies into some real trouble.
The article itself is just a string of tweets from a former Google talking about what happened when she decided to conduct a salary transparency experiment at Google. Long story short, she and some coworkers got talking about salaries on the internal social network (I take it she’s talking about one of Google’s many internal email list, like misc), decided to make a spreadsheet where employees could add their own salary information, and then posted a link to the form on her internal profile.
The thing took off. Other people built the spreadsheet out to include fields on gender and a bunch of other stuff that made it possible to get even more out of the data, as it wont to happen when a bunch of smart people get going on something they find interesting (this quality is also a big part of what makes working at Google great). The next week the Googler who started the project was “invited” (I love that) to talk with her manager. Apparently her manager and the higher ups weren’t happy about the project. And, according to this Googler, her manager said “don’t you know what could happen?” And then something else interesting happened, though it takes a second to explain.
At Google, Googlers can give each other what are called “peer bonuses.” Basically, if someone else did something cool and you want to recognize them for it, you can easily click a few things, say a few words about why they’re great, and bam – the person gets $150 in their next paycheck. It’s pretty cool and, though my memory is hazy, people give them for all sorts of reasons. Someone helped you with a work project? Send away. Someone organized a fun bike ride or group outing? That can be peer bonus worthy, too. While the manager of the person receiving the award has to approve it, it was basically a sure thing. (NB: like the Googler writing, I also didn’t realize until reading this article that there was any manager approval of peer bonuses at all. No doubt because I, too, had never heard of one being rejected.) Anyway, while this Googler was receiving peer bonuses for creating this salary sheet, her manager was rejecting them all. Interestingly, while the Googler in question, a (I believe) black woman, was having her peer bonuses denied by her manager, a white man who was also involved in setting up the sheet was getting peer bonuses and those were all approved. Meanwhile, the spreadsheet continues, people use it to talk to their managers about getting raises, and some actually succeed in getting them.
This entire story is full of labor law (and internal compliance training) issues, some easier than others. Here are a couple:
- Could the company prohibit employees from using the internal system to talk about salaries? From creating a spreadsheet, using internal tools, that discusses that? What about prohibiting employees from putting up status messages that direct other employees to the spreadsheet?
- Can a manager call an employee in for a meeting about her promotion of salary transparency? And if so, can the manager say “don’t you know what could happen” about it?
- If the company has a peer bonus system where bonuses are virtually automatic though have nominally required manager approval, can a manager start rejecting bonuses if they are tied to the employee promoting salary transparency? What if bonuses are supposed to be given only for work-related activities (even though that hasn’t been enforced much, if at all, in the past)
Whether tech companies realize it or not, Section 7 rights are alive and well. And with the unionization of tech shuttle drivers and 140 Google Express workers seeking the same, I wouldn’t be surprised if labor issues start coming up more and more in the Bay Area – including, perhaps most interestingly, for those who we often forget might have them at all.
Wednesday, July 29, 2015
Vladimir Kogan (Ohio State - Political Science) has just posted on SSRN his article Do Anti-Union Policies Increase Inequality? Evidence from State Adoption of Right-to-Work Laws. Here's the abstract:
The distribution of income lies at the intersection of states and markets, both influencing and being shaped by government policy. Reflecting this reality, a growing body of research has examined the political causes of rising economic inequality in the U.S. Direct evidence documenting the mechanisms through which government actors have affected the income gap remains in short supply, however. This study leverages variation in labor laws between U.S. states and differences in the timing of adoption of right-to-work legislation, along with new historical data on the distribution of income at the state level, to examine one such mechanism. Using a difference-in-differences design, the results produce no support for the contention that the adoption of RTW laws increased inequality in any meaningful way, pointing to the importance of grounding theoretical arguments about rising inequality in a sound empirical reality.
This seems counter-intuitive. Any thoughts on what might be going on here?
Tuesday, July 28, 2015
The US Department of Justice (DOJ) and the EEOC read Title VII’s prohibition on sex discrimination to cover employment discrimination based on gender identity, including transgender status. Now, DOJ’s Civil Division is trying to use its reading of Title VII to avoid a ruling in an Equal Protection Clause challenge to the part of the Americans with Disabilities Act (ADA) that excludes “transsexualism” and “gender identity disorders not resulting from physical impairments” from the statutory term “disability.” 42 U.S.C. § 12111(b)(1).
In Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), the plaintiff asserts Title VII and ADA claims against her former employer (Cabela). Here’s a simplified version of the alleged facts: The plaintiff alleged that in 2005, she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder, a medical condition in which a person’s gender identity does not match his or her anatomical sex at birth” and that falls within the general definition of “disability” under the ADA. First Am. Compl. ¶ 10. Thereafter, the plaintiff “changed her name” from James to Kate Lynn and changed her physical appearance to conform to her female gender identity. Id. ¶ 11. But at her job, her employer allegedly refused her request for a “Kate Lynn” name tag, id. ¶ 16, and, because of that request, forced her to wear a “James” nametag and use only the men’s restroom until her “her name and gender marker were legally changed.” Id. ¶¶ 18-19. Thereafter, plaintiff alleged that she suffered insults, lost promotions, and received disfavored shifts in part to keep her away from customers. When plaintiff finally changed her name legally, she got her “Kate Lynn” nametag, albeit only after repeated complaining, but was only permitted to use the unisex “family” bathroom located in front of the defendant’s store. Kate Lynn was later fired for an allegedly pretextual reason.
In a partial motion to dismiss, defendant-employer Cabela argued that the ADA claims must be dismissed, mostly because Congress excluded the plaintiff’s alleged disability-- Gender Dysphoria – from ADA protection. 42 U.S.C. § 12111(b)(1). In response, Kate Lynn’s lawyers read the ADA exceptions for gender identity disorder and transsexualism (the “GID exclusion”) as equal to “exclusions for transgender people,” thereby creating “a transgender classification. The fact that not all transgender people have a GID diagnosis does not affect the conclusion that all people excluded by the ADA's GID exclusion are transgender.” In turn, they’ve asked the court to declare the ADA’s GID exclusion to violate the Equal Protection Clause (as read into the Fifth Amendment, Bolling v. Shape, 347 U.S. 497 (1954)), largely because (1) laws with transgender classifications deserve heightened scrutiny because transgender people are “a historically and politically marginalized class of people based on an immutable characteristic, irrelevant to their ability to contribute to society”; and (2) the Senate proponents of the GID exclusion—including former North Carolina Senator Jesse Helms—were really motivated by their moral disapproval of transgender people, and that doesn’t count as a sufficient government interest.
Thus far, nobody seems to want to try and argue that the ADA’s GID exclusion satisfies the Equal Protection Clause. In its reply brief, dated Feb. 17, 2015, defendant-employer Cabela’s lawyers wrote: “Cabela’s takes no position regarding the constitutionality of the ADA and defers to the United States Attorney General’s position regarding the constitutionality of the federal statute.” They then pressed their motion to dismiss in part by assuming the GID exclusion’s constitutionality.
In turn, in a statement, filed pursuant to 28 U.S.C. § 517, on July 21, 2015, the DOJ has asked the court to try to avoid the issue by deciding the plaintiff’s Title VII claims first:
[T]he [alleged] facts giving rise to Plaintiff’s Title VII and ADA claims substantially overlap. Moreover, the relief Plaintiff seeks under Title VII and the ADA is identical. Thus, the outcome of Plaintiff’s Title VII claims could render superfluous her ADA claims and, therefore, would obviate the need to resolve the constitutional challenge to the GID Exclusion. That approach is particularly appropriate given that discrimination because of gender identity, including transgender status, constitutes sex discrimination prohibited by Title VII.
Statement of Interest of the Unites States at 2 (citations and footnote omitted). In support of that last sentence, DOJ cited, among other things, its own reading to that effect.
This is hardly the first time that DOJ's Civil Division has tried to get a court to avoid a constitutional ruling on a federal statutory provision—after all, absent exceptional circumstances, its general charge is to defend federal statutes against constitutional attack. On the other hand, the DOJ’s reasoning is a little odd here. The general directive to avoid deciding constitutional questions usually applies as a canon of statutory construction, not as a directive to judges as to when and how they decided claims or defenses that entail some issue of constitutional law. Does this reasoning mean that, in a lawsuit asserting multiple claims for the same relief, courts generally should avoid deciding section 1983 claims against employers (that entail constitutional questions) until after they figure out whether the non-constitutional damages claims have merit? Besides, this seems to lead to some serious inefficiency. In cases with multiple and independent legal grounds for the same relief, should district judges invariably avoid so identifying such grounds if they are constitutional? Moreover, suppose the defendant-employer here moves for summary judgment on the Title VII claims and loses the motion. If there is a non-zero probability that the ADA’s GID exclusion is constitutional and suffices as a reason to dismiss the plaintiff’s ADA claims, why not decide that first, as opposing to going to trial and making the parties present evidence on, and making a jury decide, the material issues of fact for both the ADA and Title VII claims? Puzzling.
New Jersey struck a blow against a “job duties” exception to whistleblower suits, this time in the context of the state’s expansive Conscientious Employee Protection Act. In Lippman v. Ethicon the state Supreme Court rejected a concerted effort to deny protection from employer retaliation for “watchdogs,” that is, individuals who are employed for the explicit purpose of bringing concerns or potential issues to the attention of their employers. A twist on the case was the possibility that the Court would split the baby by extending protection to watchdogs but imposing a higher burden of proof than for the average employee, given the nature of their occupations. The Court, however, concluded that CEPA protection reaches all employees regardless of their position or whether the at-issue conduct was the performance of their typical job duties. And it repudiated any heightened standard for these individuals. .
The case revolved around one particular watchdog, Joel Lippman. A physician, Lippman was a member of the quality board at Ethicon, a Johnson & Johnson subsidiary, where his responsibilities included providing his medical opinion about the safety of Ethicon’s products. He allegedly fulfilled these duties by opposing the release or advocating the recall of medical products he viewed as defective. He claimed, not surprising in this context, that he encountered resistance from other board members “whose interest and expertise aligned with the business priorities" of Ethicon. In April 2006, Lippman pushed for the recall of a particular product he considered dangerous. While Ethicon eventually recalled the product, it fired Lippman one month later. Lippman claimed retaliation, hence the CEPA suit, but Ethicon maintained he was fired for a romantic relationship with a subordinate employee.
This set up the usual dispute about employer motives and pretext, but the trial court avoided that inquiry by granting Ethicon summary judgment on the grounds that Lippman’s performance of his job duties wasn’t CEPA-protected conduct. The Appellate Division reversed, concluding that employees like Lippman are among those most in need of CEPA protection and that the plain language of the statute does not withhold protection from those performing their job duties. However, the panel also articulated an enhanced burden of proof for watchdog employees, requiring the employee to either refuse to participate in the objectionable conduct or to exhaust all internal means of securing compliance in order to be protected. The debate ended up in the Supreme Court – accompanied by a collection of dueling amici.
The defendant’s argument was not that Lippman wasn’t an employee, which CEPA defines as “any individual who performs services for and under the control and direction of an employer for wages or other remuneration.” N.J.S.A. 34:19-2(b). Rather, it contended that one of the grounds for CEPA protection – that the employee “objects to, or refuses to participate in any activity, policy or practice,” N.J.S.A. 34:19-3(c), didn’t reach a worker who simply reported problems as he encountered them in doing his job: “the employee logically cannot…object or refuse to participate in the very activity, policy or practice that he or she is helping to formulate on behalf of the organization.” In other words, performing one’s job duties does not constitute a whistleblowing activity.
The Supreme Court wasn’t convinced, but, oddly enough, it didn’t cite the United States Supreme Court’s analogous decision in Crawford v. Metro. Gov't of Nashville & Davidson County, 555 U.S. 271 (2009), which had rejected an attempt to read “oppose” in a similarly narrow fashion. In any event, the New Jersey Court found that Lippman’s position at Ethicon was to object to company policy or products, if necessary. In part the opinion looked to the “refuse to participate” language to support its conclusion, because “it is likely that the employee would be asked to participate in employer activity within the course of, or closely related to, his or her core job functions.”
Given the state judiciary’s traditional expansive approach to interpreting CEPA, this conclusion was scarcely surprising, but perhaps more up for grabs was the Appellate Division’s enhanced requirement of proof. As noted, it would have required watchdogs to “show he or she either (a) pursued and exhausted all internal means of securing compliance; or (b) refused to participate in the objectionable conduct.” What exactly that standard might mean is unclear, especially for Lippman (who, after all, succeeded in having the product recalled), but it threatened to make litigation more complicated for watchdogs.
The New Jersey Supreme Court would have none of it: any heightened standard impermissibly adds to the burden for this class of CEPA plaintiffs and there was no basis in the statute for treating this kind of employee differently. Indeed, in another section regarding disclosures to public bodies, the statute expressly imposed an exhaustion requirement, thus making clear that the legislature knows how to do so when it believes it appropriate.
On remand, presumably Lippman’s claim will succeed or fail depending on a jury verdict as to whether Ethicon’s supposed reason for his termination – the relationship with a subordinate – was a pretext for discharging him for his protected activity of objecting to the marketing of what he reasonably believed would be dangerous drugs.
But, if Title VII is any indication, there’s another round of questions ahead for watchdogs: what if an employer claims to have fired the worker not because of the substance of his objections but rather because of how the employee carried out his duties? Suppose the employer claims the employee is obnoxious or doesn’t follow company processes? Plus, of course, the reasonableness of a watchdog’s objections is also critical, and, presumably, an employer can always fire one who barks unreasonably.
Thanks to Samira Paydar for her help on this.
Monday, July 27, 2015
Friend-of-Blog Bill Corbett (LSU, Frank L. Maraist Professor of Law and Wex S. Malone Professor of Law) has just posted his wonderful piece on Young v. UPS, which is available here. The article, Young v. United Parcel Service, Inc.: McDonnell Douglas to the Rescue?, provides a wonderful first look at the meaning of this recent and controversial decision. The abstract is excerpted below, and the article was just posted online with The Washington University Law Review Commentaries (and will later be published in the print edition of the law review). As always, Professor Corbett provides a unique and insightful look at an important Supreme Court decision:
The Pregnancy Discrimination Act of 1978 can be interpreted in two obvious ways: one interpretation requires employers to make reasonable accommodations for pregnant employees, and the other does not require such accommodations. In Young v. United Parcel Service, Inc., the Supreme Court held that in some cases employees may be able to prove intentional pregnancy discrimination based on an employer’s failure to make accommodations for the pregnant employee when the employer makes accommodations for other disabled employees. Rather than reaching this result by interpreting the statute to require reasonable accommodations, however, the Court held that plaintiffs with “indirect evidence” of discrimination may prove their claim using the pretext analysis developed by the Court in McDonnell Douglas Corp. v. Green. Under this analysis, the Court instructed that, after the first two stages of the analysis, a plaintiff could attempt to prove that the employer’s legitimate, nondiscriminatory reason for denying an accommodation for a pregnant employee is pretextual, and this could be proven by demonstrating the significant and unjustified burden the employer’s nonaccommodation policy imposes on pregnant employees. Although it seems that the Court resorted to McDonnell Douglas as a compromise to fashion a majority opinion, this essay contends that invocation of the McDonnell Douglas analysis was neither necessary nor prudent. There are two likely ramifications of the Court’s use of the McDonnell Douglas analysis. The first is that the Young opinion is likely to resurrect the division of intentional discrimination claims between those based on direct evidence and those based on circumstantial evidence, with the claims in those two categories being analyzed differently. That is a distinction that the Court rejected in 2003 in Desert Palace, Inc. v. Costa. Second, the Court’s resort to the McDonnell Douglas analysis refortifies a proof framework which arguably should not have survived the Desert Palace decision and which has constrained the robust development of employment discrimination law by forcing evidence in most cases into proxy questions or categories that have only a tangential relationship to the ultimate issue of discrimination. Too many claims in employment discrimination law are forced into the McDonnell Douglas analysis, which often serves to obscure the actual issues presented. Neither of the foregoing potential ramifications is a good development for employment discrimination law. Young v. UPS could—and should—have been resolved without resort to McDonnell Douglas.
This is a great article and I highly recommend adding it to your summer reading list.
- Joe Seiner
Saturday, July 25, 2015
image from eeoc.gov
The Americans with Disabilities Act turns 25 tomorrow on July 26, 2015. This statute garnered substantial widespread support when it was enacted over two decades ago, and continues to be a cornerstone of civil rights law. The Equal Employment Opportunity Commission takes a close look at this anniversary, reflecting on the importance of the law and providing a number of historical and current resources on the topic. The EEOC's recognition of this anniversary is available here, and includes a statement from Chair Jenny R. Yang.
The ADA demonstrates how a civil rights law can achieve widespread support and effectively protect the rights of all individuals. The EEOC materials are worth a look if you are interested in this area of the law.
-- Joe Seiner
The California courts are currently struggling with how to fit workers in the modern economy within the traditional employee/independent contractor framework. These high profile cases include litigation against Uber and Lyft which has been well discussed in the popular media. One lesser known issue has emerged as well – – whether professional cheerleaders in the state should be classified as employees too. An article over at CNN Money looks at an action brought by the Oakland Raiders cheerleaders -- the Raiderettes -- which alleges that they were not paid minimum wage and failed to receive compensation for certain appearances. The California governor has stepped in on this issue and changed the law to assure that these workers are considered employees. From the article:
"A new law just signed by Gov. Jerry Brown requires professional sports teams to treat their cheerleaders like employees, paying them at least minimum wage and compensating them for all practices and appearances."
It is interesting to see how this issue continues to pervade wage and hour law. The Uber and Lyft cases may simply be the beginning of tremendous litigation in this area. We will continue to follow this issue closely.
-- Joe Seiner
Rutgers announced the death of Professor Alfred Blumrosen on Thursday. The announcement can be found here, and its title "Eminent Discrimination Expert," if anything understates his influence on employment discrimination law and scholarship. And much of his work was done in collaboration with his wife, Ruth, who predeceased him.
Younger members of the academy probably first encountered him in McDonnell Douglas, the first of several Supreme Court decisions to cite his pathbreaking article, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972).
I didn't know Al well personally but my suspicion is that he was very pleased in the left-handed compliment provided recently by Justice Thomas in his dissent in the Fair Housing Act case, Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 192 L.Ed.2d 514 (2015). Thomas's passionate rant described the disparate impact theory as "represent[ing] the triumph of an agency’s preferences over Congress’ enactment and of assumption over fact." And Thomas put the blame squarely at Blumrosen's door:
Alfred Blumrosen, one of the principal creators of disparate-impact liability at EEOC, rejected what he described as a “defeatist view of Title VII” that saw the statute as a “compromise” with a limited scope. .Blumrosen “felt that most of the problems confronting the EEOC could be solved by creative interpretation of Title VII which would be upheld by the courts, partly out of deference to the administrators.”
EEOC’s guidelines from those years are a case study in Blumrosen’s “creative interpretation.”
Al could, I think, as for no better epitaph!
Thursday, July 23, 2015
Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:
Assistant Professor / Associate Professor / Professor
The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: email@example.com).
Fall course prep is fast approaching. Edited versions of EEOC v. Abercrombie & Fitch and Young v. United Parcel Service are available here: https://sites.google.com/site/employdiscrim/2011-new-cases
Are ICE detainees employees, prisoners, both or neither? Does nominal pay for their work mean that the detainment facility is unjustly enriched by their labor? The District of Colorado addressed these questions in Menocal v. Geo Grp, Inc., a civil suit initiated by several current and former detainees at the Aurora Facility. Owned by GEO Group, defendant was arguably subject to state law because it isn’t ICE itself, but rather a private, for-profit enterprise under contract with ICE (yes, federal contractors have a defense from state law mandates, but the court found its requirements not satisfied).
The plaintiffs allege that they participate in a “Voluntary Work Program” that includes tasks such as laundry, maintenance of the on-site medical facility, cooking, and cleaning – all for $1 per day. In addition, six detainees are randomly selected every day, whether or not they are program participants, to clean the facility’s “pods” without compensation under threat of solitary confinement. Plaintiffs claim that the Voluntary Work Program violates the Colorado Minimum Wage Order (CMWO) and unjustly enriches the defendant; they also claim that the pod maintenance violates the Trafficking Victims Protection Act’s (TVPA) prohibition on forced labor.
The CMWO claim is an interesting window into immigration detainees as employees. The statute defines “employee” as “any person performing labor or services for the benefit of an employer in which the employer may command when, where and how much that labor or services shall be performed.” 7 Colo. Code Regs. 1103-1:2. While that definition seems to cover the activities at the Aurora Facility, the court found that the detainees, like prisoners, were not within the statute. It reasoned that the CMWO was enacted to raise the standard of living for workers and does not extend to prisoners who are in no need to provide for their own support. Since detainees, like prisoners, do not need to provide for food and shelter, the purposes of the CMWO are not served by finding them included in the definition of employee. However, this parallel ignores worker morale, and a host of other ways in which detainees and prisoners differ. This is a tricky issue, but on the whole not surprising given the historic treatment of prisoners. The decision reminded me of Noah Zatz’s fine article in Vanderbilt on how employment law works (or doesn’t) in nonmarket settings.
More surprising was the court’s treatment of plaintiff’s unjust enrichment claim: while not passing on it directly, Judge Kane found that the claim could not be duplicative of the CMWO claim – after all it had just dismissed that one!
But it was by no means clear how unjust enrichment analysis would proceed. Presumably, the argument would be that the fair market value of the work done exceeded the $1.00 paid. Fair enough, although a restitution claim might have to factor in the other benefits the detainees received. Or maybe not: food and shelter was due them regardless of whether they “volunteered” to work. So maybe the real question is the market value of the labor provided.
But restitution usually operates where contract fails, and the defendants are sure to argue that the plaintiffs agreed to the $1. It was, after all, labelled a "voluntary" program. Contract law does not require the terms of an agreement to be objectively fair, if both parties consent. Thus, the defendant should be entitled to reap the difference between the $1 compensation and the actual value of the plaintiff’s labor. Again – putting aside the CMWO.
This takes us back to how “voluntary” the defendant’s work program is, given the plaintiffs are incarcerated. Indeed, the concept of voluntary labor performed in a detention facility is unsettling, all the more so in an environment in which the defendant allegedly uses intimidation tactics to compel detainees to do other work. Maybe the unjust enrichment claim can’t be separated from the threats of solitary confinement for failure to perform pod cleaning.
And the court sustained the Trafficking Victims claim. The TVPA prohibits the intentional procurement of “labor or services of a person by…means of force, threats of force, physical restraint, or threats of physical restraint.” 18 U.S.C. § 1589(a). That sounds a lot like what was going on at Aurora. While the defendant argued that the TVPA’s primary purpose is to prevent human trafficking and was therefore inapplicable to this situation, the court sided with the plaintiffs; it found that the Act extends to any type of forced labor, and that the alleged involuntary servitude in this case qualifies for its protection.
Ultimately, the decision implies that while immigration detainees are not entitled to the minimum wage of the particular state in which they are detained, they may be able to recover the fair value of their services performed in those facilities. It may also empower them to seek protection under the TVPA, since that particularly vital claim was upheld.
There were a number of other legal questions that I haven’t explored, but this summary suggests that this case is worth keeping an eye on.
Hat tip to Alan Hyde for alerting me to this decision and to Samira Paydar for helping me with this post.
Monday, July 20, 2015
If you are planning to attend the annual Colloquium on Scholarship in Employment and Labor Law (COSELL), please remember to register. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience. It will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana.
More information and links to register are available at: http://www.law.indiana.edu/cosell. The registration deadline is August 1.
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
As researchers continue to fight about the Implicit Association Test (IAT) and implicit bias research generally, a recent ruling in an ADEA age discrimination lawsuit suggests how hard it might be to introduce implicit-bias research into discrimination litigation. In Karlo v. Pittsburgh Glass Works LLC, No. No. 2:10–cv–1283, 2015 WL 3966852 (W.D. Pa., July 13, 2015), a federal district court judge concluded that an expert report on implicit bias authored by leading implicit-bias researcher (and IAT co-inventor) Anthony Greenwald failed to satisfy Federal Rule of Evidence 702. (For prior discussion of Karlo in the legal press, see, e.g., here and here. For related posts from some of us on implicit-bias research and discrimination litigation, take a look here and here.)
In Karlo, the plaintiffs wanted Greenwald’s expert report admitted into evidence so as to provide a “framework” to help a judge or jury evaluate evidence of discriminatory intent. In refusing to do so, Judge Terrence McVerry wrote that Greenwald’s expert report “is not based on sufficient facts or data. It is not the product of reliable methods. And it would not assist the factfinder in resolving an issue in this case.” And, the judge even doubted that it was relevant to the plaintiffs’ ADEA claims.
First, the expert report wasn’t based on enough “facts or data,” the judge reasoned, because Greenwald hadn’t visited the defendant-employer’s plant, hadn’t spoken with current or former employees, hadn’t interviewed the managers involved in the layoffs at issue in the lawsuit, and hadn’t subjected any of them to “his self-invented IAT.” Instead, the judge concluded, Greenwald opined on the defendant’s employment practices “after reviewing one deposition in full and excerpts of others”—selected and supplied by the plaintiffs’ attorneys—as well as another expert’s appraisal of that material. This made his opinion “not expert material,” but “the say-so of an academic who assumes that his general conclusions from the IAT would also apply to [defendant-employer PGW].”
Second, the judge declared the IAT itself an unreliable measure, because Greenwald couldn’t show that the IAT has been “taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW.” Greenwald also hadn’t adjusted the IAT data to account for “those who self-select to participate” and had not adopted controls to, “for example, exclude multiple retakes or account for any external factors on the test-taker.” And even if the IAT is a well-validated measure, it “still says nothing about those who work(ed) at PGW.”
Third, there wasn’t enough “fit” between the general principles of implicit bias in his report and the case facts. Rule 702 permits expert opinion “to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case,” but such expert testimony must “‘fit’ the facts of the case.” FRE 702, Advisory Committee Notes to the 2000 Amendment. To show lack of fit, Judge McVerry pointed out that, in his report, Greenwald wrote that his implicit bias findings “‘provide a framework that can aid a judge or jury in evaluating the facts of this case .... to determine whether the Plaintiffs' ages substantially motivated the defendants' [sic] actions outlined in the Complaint.’ Greenwald Exp. Rep. at 2, ECF No. 380–5.” The judge then seemed to argue that the italicized text shows that, in fact, Greenwald’s report purported to prove causation in the case and that it didn’t match up the ADEA’s (but-for causation) requirement. “If anything, Dr. Greenwald's opinion is more likely to confuse a jury rather than elucidate the issue(s) for the factfinder.”
Fourth, the judge doubted that Greenwald’s report was even “relevant”for deciding the plaintiffs’ ADEA disparate impact or disparate treatment claims. (To be relevant, an item of evidence must tend “to make a fact more or less probable than it would be without the evidence” and that fact has to matter to deciding the clam. FRE 401.) For disparate treatment claims, the plaintiff has to prove that “intentional discrimination occurred at the particular employer, not just that gender stereotyping or intentional discrimination is prevalent in the world.” Besides, proving an employer discriminatory motive “seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.”
Prior courts have differed on whether to admit into evidence Anthony Greenwald’s expert opinion on implicit-bias in discrimination lawsuits. Compare Samaha v. Washington State Dep't of Transp., No. CV–10–175–RMP, 2012 WL 11091843 (E.D. Wash. Jan. 3, 2012) (yes) with Jones v. National Council of YMCAs, 34 F.Supp.3d 896 (N.D. Ill. 2014) (no).
Wednesday, July 15, 2015
How do you know whether a worker counts as an “employee,” not an independent contractor, under the Fair Labor Standards Act (FLSA)? On this often-litigated issue, the US Department of Labor has released Administrator’s Interpretation No. 2015-1, dated July 15, 2015, in order to help “the regulated community in classifying workers and ultimately in curtailing misclassification.”
Much of this fifteen-page document covers familiar ground. DOL stresses that FLSA defines “employ” broadly as including “to suffer or permit to work,” 29 U.S.C. § 203(g); that courts use an expansive multi-factor “economic realities” test – not the traditional common-law test—to decide whether workers count as “employees” under FLSA; and that, given both, “most workers are employees under the FLSA.”
DOL also discusses each of the typical factors of the FLSA “economic realities” test, emphasizing throughout that each factor is not a necessary condition but just a guide: “Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor).”
For example, for the “control” factor of “economic realities” test—itself not dispositive—DOL writes:
Technological advances and enhanced monitoring mechanisms may encourage companies to engage workers not as employees yet maintain stringent control over aspects of the workers’ jobs, from their schedules, to the way that they dress, to the tasks that they carry out. Some employers assert that the control that they exercise over workers is due to the nature of their business, regulatory requirements, or the desire to ensure that their customers are satisfied. However, control exercised over a worker, even for any or all of those reasons, still indicates that the worker is an employee.
Though not expressly addressing them, this view—and DOL’s guidance as a whole—may matter to the recent debates about employee/independent contractor status and the so-called sharing economy.
Tuesday, July 14, 2015
This blog looked earlier at the debate over the Confederate flag, and how pressure from employer based groups helped lead the way to the flag being taken down from South Carolina state grounds. The issue has now shifted to other states that display the flag in some manner. Most notably, Mississippi is the only state that uses the "Rebel X" symbol as part of its flag. It will be interesting to see if employers there will weigh in on this issue like they did in South Carolina.
"The Old South didn't just give the nation the Confederate flag, "Gone with the Wind" and mint juleps. Its leaders refined the practice of exploiting workers, busting unions and being stingy with investments in public services. Each tactic was designed to create a desperate and powerless workforce that could be exploited by Northern and overseas businesses, [Michael] Lind and other historians say."
Many others would certainly disagree with this view, and it will be interesting to see how and whether this debate will ultimately affect employees.
- Joe Seiner
Bill Herbert writes in his role as the Chair of the New York State Bar Association’s Labor and Employment Law Section to let us know about two sets of law student awards. One is a set of writing awards, the other student service awards. Annually, the NYSBA Labor and Employment Section presents awards to law students:
Dr. Emanuel Stein and Kenneth Stein Memorial Law Student Writing Competition
This competition recognizes excellence among law school students writing in the area of labor and employment law; and to cultivate the relationship between the NYSBA Labor and Employment Section and future labor and employment practitioners.
Prize Awarded: 1st place: $3,000 and publication in Section newsletter. 2nd place: $2,000. 3rd place: $1,000.
Submission Deadline: December 4, 2015, and the awards will presented at the Section’s Annual Meeting in January 2016.
Articles must be original from the applicant. Submissions should focus on any timely, compelling aspect of labor and employment law. Only one submission per student.
All articles are to be submitted in the following format: a) typewritten - with computer disk attached or submitted by email to firstname.lastname@example.org no later than December 4, 2015; b) double spaced; c) on 8-1/2 inch by 11 inch paper, 1 inch margins; d) no longer than 20 pages (exclusive of endnotes); e) citations are to conform to "A Uniform System of Citation" (The Bluebook).
Students should include a cover letter with the entry stating their name, mailing address and phone number (both school and permanent), social security number, name of your school and year of graduation. Do not include your name or personal information on your paper.
If published by the Section, all articles submitted for the competition become the property of the Labor and Employment Law Section and the New York State Bar Association. No article submitted may be published in any journal or periodical other than the "New York State Bar Journal", or the "Labor and Employment Law Section Newsletter", until after announcement of the winner of this competition in January 2016.
Samuel M. Kaynard Memorial Student Service Awards
The purpose of the awards is to enable New York State Law Schools to recognize excellence among their law students in the area of labor and employment law and to cultivate the relationship between the Labor and Employment Law Section and future labor and employment practitioners.
Award Criteria: All law school students. Student(s) must be nominated by the dean or the dean’s designee. Direct student applications will not be considered.
Prize Awarded: First prize $3,000, Second Prize $2,000, Third Prize $1,000.
Nomination Deadline: December 4, 2015
Date Presented: January Annual Meeting
The Award is intended to encourage scholarship and exemplary service in the field of Labor and Employment Law. The Award is made by the law school to the student(s) in recognition of an extraordinary accomplishment in the field, including but not limited to the following:
1. Organizing and/or conducting programs at any educational level conducive to the propagation of labor and employment knowledge and skills
2. Outstanding performance in a labor or employment course, clinical experience, project, internship or related activity such as: a collective bargaining simulation grant proposal to research labor and employment issues, curricular revision, or other exposition on the subject;*
3. Facilitating conflict resolution or peer mediation programs for elementary or secondary school students;
4. Utilizing the internet and its components (e.g. World Wide Web/e-mail) to disseminate or receive labor and employment information;
5. A substantial action or activity in furtherance of labor and employment law, performed or instituted in the year of this competition.
Allison Morantz (Stanford) has just written and posted on SSRN the article I've been hoping to see ever since I practiced in Texas some 20 years ago -- Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation? Here's the abstract:
The “great compromise” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault insurance coverage for occupational injuries, was one of the great tort reforms of the Twentieth Century. Because participation is usually compulsory, it is difficult to forecast what the real-world effects might be of making workers’ compensation voluntary. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which a significant number of firms (“nonsubscribers”) have chosen to do so: Texas. This is the first empirical study to examine comprehensively the impact of Texas nonsubscription on large, multistate nonsubscribers. I analyze highly granular data from fifteen large, multistate companies that provided their Texas employees with customized occupational injury insurance plans (“voluntary plans”) in lieu of workers’ compensation coverage between 1997 and 2009. As economic theory and common sense would lead one to expect, nonsubscription generates considerable cost savings, reducing total programmatic costs by an average of about 29%. These savings were driven by a drop in the frequency of injury claims – especially more serious claims involving replacement of lost wages – combined with an decline in costs per claim. The drop in cost per claim arises from a fall in both medical and wage-replacement costs. Although the decline in wage-replacement costs is larger in percentage terms, the drop in medical costs is more financially consequential since medical costs constitute such a large share of total costs. The paper finally explores whether several common attributes of workers’ compensation regimes that voluntary plans typically forgo – compensation for permanent partial disabilities, uncapped total benefits, chiropractic coverage, unlimited choice over medical providers, and lengthy injury-reporting windows – are likely to account for the observed cost disparities. Surprisingly, the first three of these features account for little of the observed variation. Although it is much more difficult to isolate the empirical impact of provider choice and reporting windows, my analysis provides some intriguing, albeit highly tentative, evidence that state-level variation in injury-reporting windows could have a significant effect. Overall, my findings suggest the urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social safety net into an optional program that co-exists alongside privately-provided forms of occupational injury insurance.
This article deserves a close read. National employers doubtless noticed some time ago that their workplace-injury costs are lower in Texas than elsewhere, and Allison makes the point that these employers are now starting to push other states to reconsider the Great Compromise underlying workers' compensation law. Will this beget a "race to the bottom" as states scramble to attract employers by allowing them to opt out of workers' compensation programs, and employers respond by opting out and leaving injured workers in the cold? Or is a self-insured, nonsubscriber system a net benefit to employers and workers by incentivizing employers to invest more heavily in workplace safety and to more carefully control health care costs? Allison's article answers a lot of questions, but also opens up a broad field fertile for future research.
Sunday, July 12, 2015
Brittany Bronson (left) writes in today's New York Times (Sin City's Dirty Pools) about sex discrimination at Las Vegas "pool clubs", where the well-paid cocktail-server positions are sex-specific and the rare male who does get hired has a dress code much more modest than that of his female counterparts. Congratulations to Ann McGinley (UNLV, right), whose great work on this and related topics for the last long while forms the basis of much of the article.
Albert Feuer (Forest HIlls, NY) has just posted on SSRN his essay The Supreme Court Agrees to Determine Whether ERISA Preempts a Vermont Health-Care Database Reporting Mandate, 34 Tax Mgm’t Wkly. Rep. 860 (July 6, 2015). The essays argues for more coherent ERISA preemption principles that are consistent with the terms of ERISA than the existing Court principles. It observes that alternative frameworks have been presented in the context of the certiorari petition granted by the Supreme Court. Prof. Edward Zelinsky’s framework focuses on interactions with ERISA benefit plans; this essay focuses on ERISA benefit protections.