Saturday, August 29, 2015

New Book: Comparative Labor Law

ComparativeCongratulations to Matt Finkin (Illinois) and Guy Mundlak (Tel Aviv) on the publication by Elgar of their book Comparative Labor Law. Here are the publisher's notes and the list of contributors:

Economic pressure, as well as transnational and domestic corporate policies, has placed labor law under severe stress. National responses are so deeply embedded in institutions reflecting local traditions that meaningful comparison is daunting. This book assembles a team of experts from many countries that draw on a rich variety of comparative methods to capture changes and emerging trends across nations and regions.

The chapters in this Research Handbook mingle subjects of long-standing comparative concern with matters that have pressed to the fore in recent years. Subjects like “soft law” and emerging geographic zones are placed in a new light and their burgeoning significance explored. Thematic and regional comparisons capture the challenges of a globally comparative perspective on labor law.

The fresh and thoughtful comparative analysis in this Handbook makes it a critical resource for scholars and students of labor law.

K. Banks, A. Bogg, S. Bonfanti, S. Butterworth, S. Cooney, L. Corazza, N. Countouris, G. Davidov, D. du Toit, K.D. Ewing, M. Finkin, R. Fragale, M. Freedland, N. Garoupa, S. Giubboni, F. Hendrickx, J. Howe, A. Hyde, E. Kovacs, R. Krause, N. Lyutov, E. Menegatti, L. Mitrus, G. Mundlak, R. Nunin, M. Pittard, O. Razzolini, K. Rittich, R. Ronnie, E. Sánchez, K. Sankaran, M. Schlachter, A. Seifert, A. Stewart, H. Takeuchi-Okuno, A. Topo

Hat tip: Howard Fenton.


August 29, 2015 in Book Club, International & Comparative L.E.L. | Permalink | Comments (0)

Ashley Madison Leak & Federal Employees


The fallout from the Ashley Madison leak has extended into numerous areas, including employment.  The government is now investigating a large number of federal workers that may have visited the site during work hours.  According to an article at the Washington Post, approximately 15,000 federal workers (or active military) may be investigated.  The government is examining how long employees visited the site, as well as the nature of the visit.  From the article:

"Government officials and employment attorneys agreed that the likelihood of getting hit with a misconduct charge could depend on how much time the employee has spent on the site and how sexually explicit the e-mails are."

It will also be interesting to see if any notable names emerge as part of the investigation.  The hack of this website certainly spells trouble for a number of federal workers.

-- Joe Seiner

August 29, 2015 | Permalink | Comments (0)

Friday, August 28, 2015

Workplace Safety After Virginia

There are many compelling storylines to come out of the recent tragic events in Virginia.  One issue is the topic of workplace safety.  A fascinating article in the NY Times today looks squarely at that question, examining what employers can do if suspicions arise concerning particular workers.  From the piece:

"Employers face conflicting legal obligations and huge uncertainties. They have a legal duty to provide a safe workplace, and can even be sued for failing to prevent predictable threats, according to legal experts. . . The federal disabilities act prohibits discrimination against disabled people, including those with mental illness."

The article considers the views of a number of different disciplines and is worth reading.  The issue is an important reminder of the importance of properly addressing workplace safety issues.

- Joe Seiner

August 28, 2015 | Permalink | Comments (1)

Thursday, August 27, 2015

NLRB Issues New Joint-Employer Test

NLRBToday, the NLRB issued a 3-2 decision in the long-awaited Browning-Ferris case.  I'm heading off to class, so I haven't read the decision yet and will copy the Board's announcement:

In a 3-2 decision involving Browning-Ferris Industries of California, the National Labor Relations Board refined its standard for determining joint-employer status. The revised standard is designed “to better effectuate the purposes of the Act in the current economic landscape.”  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.  

In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will – among other factors -- consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.  

In its decision, the Board found that BFI was a joint employer with Leadpoint, the company that supplied employees to BFI to perform various work functions for BFI, including cleaning and sorting of recycled products. In finding that BFI was a joint employer with Leadpoint, the Board relied on indirect and direct control that BFI possessed over essential terms and conditions of employment of the employees supplied by Leadpoint as well as BFI’s reserved authority to control such terms and conditions. 

The Board ordered that within 14 days the ballots that were impounded on April 25, 2014 shall be counted and the appropriate certification issued.

This decision could have a big impact on many industries, most notably, fast food.  The General Counsel has already gone after McDonald's (see here and here) and expect more of the same now that the Board has spoken.


August 27, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (2)

Saturday, August 22, 2015

Are Yelp Reviewers "Employees"?

In an interesting decision, the Northern District of California (where the Uber and Lyft cases both arose) recently ruled that Yelp reviewers are not employees.  This is true despite the allegations that the individuals were purportedly told to write the reviews, and did so under the control and at the direction of the company.  In the case, Jeung v. Yelp, Judge Seeborg writes that a "reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all  or that at most would constitute acts of volunteerism."  An interesting article on the case over at points out a "core weakness of the plaintiffs’ case" is that "they apparently seek to impose an employment relationship because website users provide value to a user-generated content website, but many value exchanges between businesses and vendors/customers are well outside of employment law."

This case -- like Uber and Lyft -- points out the difficulty with trying to fit modern businesses under the current employment law rubric.  The issue has obviously captured the attention of the legal community, and the broader public as well.

-- Joe Seiner

August 22, 2015 | Permalink | Comments (1)

Thursday, August 20, 2015

Record Payout in Workplace Accident

Many scholars -- as well as those in the labor and employment law community -- have lamented the inadequate remedies offered by OSHA.  The recent Bumble Bee case represents one instance where a horrific workplace death took place at a company, and more substantial fines were imposed.  From the New York Times, a worker

"was still inside [a pressure cooking] apparatus [when co-workers] packed 12,000 pounds (5,443 kg) of canned tuna inside, closed the door and turned it on. His badly burned remains were later discovered by another employee."

The incident lead to criminal charges being filed and ultimately a recent $6 million settlement in the case.  Two of the workers also plead guilty to the criminal charges in the case, though it looks like they may avoid any jail time for the incident.  Bumble Bee issued a statement that:

"While this resolution will help bring closure with the district attorney’s office, we will never forget the unfathomable loss of our colleague Jose Melena and we are committed to ensuring that employee safety remains a top priority at all our facilities".

This was an almost unthinkable case, and hopefully will serve as a reminder of the importance of workplace safety for companies everywhere.

- Joe Seiner

August 20, 2015 | Permalink | Comments (0)

Monday, August 17, 2015

NLRB Declines Jurisdiction in Northwestern Football Case

NLRBThis just in from the NLRB:

Washington, D.C. - - In a unanimous decision, the National Labor Board declined to assert jurisdiction in the case involving Northwestern University football players who receive grant-in-aid scholarships. The Board did not determine if the players were statutory employees under the National Labor Relations Act (NLRA).  Instead, the Board exercised its discretion not to assert jurisdiction and dismissed the representation petition filed by the union. 

In the decision, the Board held that asserting jurisdiction would not promote labor stability due to the nature and structure of NCAA Division I Football Bowl Subdivision (FBS). By statute the Board does not have jurisdiction over state-run colleges and universities, which constitute 108 of the roughly 125 FBS teams. In addition, every school in the Big Ten, except Northwestern, is a state-run institution.  As the NCAA and conference maintain substantial control over individual teams, the Board held that asserting jurisdiction over a single team would not promote stability in labor relations across the league.

This decision is narrowly focused to apply only to the players in this case and does not preclude reconsideration of this issue in the future.

I haven't read the decision yet, but I'll admit that I didn't see this one coming.  On its own merits, one can understand the NLRB's conclusion that if it allowed Northwestern scholarship players to unionize, labor stability in all of college football wouldn't be well served.  On the other hand, it could prompt much needed changes in college football.  Moreover, it's not obvious why all of college football is the issue--one could envision productive collective-bargaining at just Northwestern, even if it was limited in scope.  And, of course, on a selfish note, it would've been nice to have the Board speak to the issue of players' status as employees.  But the Board has spoken--unanimously, no less, which I think is also important--and that should settle the issue for a while.


August 17, 2015 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Managing Without the Manager Rule

MeThis is a good summer for those interested in the “manager rule” but not for the rule itself. A few weeks ago I posted on the New Jersey Supreme Court’s refusal in Lippman v. Ethicon to limit statutory whistleblower protection for “watchdogs”; now the Second and Fourth Circuits have followed suit under Title VII.

A “watchdog” or “manager rule” would bar employees whose job responsibilities include investigating and preventing discrimination by their employer (or otherwise ensuring its compliance with the law) from claiming legal protection for acts taken within those job duties. In other words, opposition to, say, discrimination, within a manager’s job duties is not protected conduct; rather, such employees must step outside their roles in order to have the protection of the antidiscrimination and whistleblower laws.

In Demasters v. Carilion Clinic, the Fourth Circuit considered what would (despite the district court's analysis) seem to be a pretty open-and-shut case if plaintiff’s allegations were true and if no manager rule took the employer off the hook.  The plaintiff claimed to have been told he was fired for failing to take his employer’s side when he supported a worker’s sexual harassment and retaliation complaint and criticized the employer’s handling of the matter. The employer argued that his conduct was within plaintiff’s job duties EAP consultant and therefore not protected conduct,

Writing sweepingly, the court ruled that the manager rule “has no place in Title VII jurisprudence.” Looking to the broad language in Crawford v. Metropolitan Government of Nashville & Davidson County -- an employee’s communication to her employer of a belief that it has discriminated, “virtually always constitutes the employee’s opposition to the activity” – it found the textual answer clear. It also noted the catch-22 that would be created by a contrary rule: since “insubordinate, disruptive, or nonproductive” conduct is not protected, a rule requiring an employee to step outside of his duties to be within § 704(a) would create a damned-if-you-do-damned-if-you-don’t scenario. Citing Deborah Brake’s superb article, Retaliation in the EEO Office, the court saw “no need to make plaintiffs walk a judicial tightrope when the statutory scheme created by Congress offers a clear path.” 

DeMasters also saw a tension between a manager rule and the affirmative defense to harassment by discouraging HR employees “from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” And it rejected the employer’s policy argument of a “litigation minefield,” finding it much more troubling that the manager rule would permit employers to punish those for advocating the claims of those they are duty-bound to protect.”

As a side-note, while DeMasters seems to be a precedential Fourth Circuit opinion, the three judges on the panel were all from the Third Circuit since all members of the Fourth Circuit recused.  The court provided no reasons, but it's been reported that one of the judges is married to the CEO of the defendant. In any event, I guess there’s not much chance of en banc reversal!

The least protective of employees is the Second Circuit’s Littlejohn opinion, but even there the manager rule as it is often framed fared poorly.  The plaintiff, an African American woman, complained of racial discrimination after being demoted from her position as Director of EEO and replaced by a white female employee. Littlejohn objected to her former employer’s selection process and “failure to abide by proper anti-discrimination policies and procedures” both in her capacity of Director of EEO and after her demotion. The Second Circuit also looked to Crawford’s “virtually always” language in rejecting the defendant’s argument that, under this standard, any terminated human resources or EEO employee (such as Littlejohn) would have an “automatic” prima facie case of retaliation, which would in turn lead to gratuitous litigation for employers.

In finding such a concern overblown, however, the court recognized a “significant distinction” between reporting other employees’ complaints of discrimination and communicating the manager’s own support for such a claim. In other words, conveying others’ complaints is a routine job duty, but if the manager actively supports other employees in their Title VII claim or has a personal complaint, that activity is protected opposition. In the case at hand, Littlejohn was not merely conveying others’ complaints; rather, she communicated her belief that the personnel decision-making process involved unlawful discrimination. Therefore, her complaints were protected activities.

Given this distinction, one could categorize Littlejohn as adopting a “mini-manager rule” since some job duties do not constitute protected conduct. However, it will be a rare HR professional who is a complete automaton (“merely transmits or investigates a discrimination claims”) and does not make a recommendation or comment on a complaint of discrimination or the results of an investigation.


Thanks to Samira Paydar for her help on this. 



August 17, 2015 in Employment Discrimination | Permalink | Comments (0)

Friday, August 14, 2015

"Wage Peak System" Legislation Pending in South Korea

KoreaI'm in Hanoi today for the annual LawAsia Employment Conference, and was intrigued by Ujin Ahn's description of the "wage peak system" legislation currently pending in South Korea. Whereas wages tend to increase steadily over a worker's lifetime, this proposed legislation would change that so a worker's wages would rise steadily from early career until retirement minus c. 5-7 years, peak, and then fall until retirement. The premise, as argued by its government and employer proponents, is that this would (a) align wages with actual productivity, (b) thereby increasing job security for older workers, and (c) it would free up wage-money that then could be used to hire more younger workers. The system is opposed by employees/unions as just a pretense to decrease real wages -- they argue that the wage-savings will be retained by employers as excess profits. Calculating when a worker's salary should peak is possible because the country has a mandatory retirement law.

I had never heard of a "wage peak system", and have no idea whether it exists elsewhere.


August 14, 2015 in Wage & Hour | Permalink | Comments (1)

Thursday, August 13, 2015

Rogers on "Sharing Economy"-Workers and Defining Employment

RogersBrishen Rogers (Temple) recently posted on SSRN his essay Employment as a Legal Concept. Here's the abstract to this timely piece:

The employment status of workers for “sharing economy” firms such as Uber, Lyft, TaskRabbit and Handy is becoming a major legal and political issue. This essay takes up that question, building on the ongoing cases against Uber and Lyft. Against most commentators, it first argues that the ambiguous legal status of Uber and Lyft drivers is not a symptom of outdated legal tests. Rather, that ambiguity reflects a deeper conceptual problem: that our laws lack a satisfactory definition of employment in the first place. The solution to that problem, the essay argues, lies in recognizing employment as a legal concept through and through, and thus recognizing that questions of employment status inevitably involve contestable value judgments. The Uber and Lyft cases, for example, present a conflict between two important sets of social goods: on the one hand, distributive justice and a more egalitarian political economy; on the other hand, the substantial welfare benefits promised by the companies’ innovations. While reasonable people will disagree, the essay argues that imposing employment duties would strike an appropriate balance between these goals — ensuring that the benefits of disruptive technologies are fairly shared with those whose labor makes those technologies profitable.


August 13, 2015 in Employment Common Law, Workplace Trends | Permalink | Comments (0)

Monday, August 10, 2015

Seton Hall's Tenth Forum

The Tenth Annual
Seton Hall
Employment & Labor Law Scholars’ Forum
Friday, October 9, 2015

 The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.

To that end, Seton Hall will convene its 10th annual Employment & Labor Law Scholars’ Forum on Friday, October 9, 2015. This year’s Forum will feature three presenters:

Naomi Sunshine
Acting Assistant Professor of Lawyering
New York University School of Law

Heather M. Whitney
Lecturer in Law and Bigelow Teaching Fellow
University of Chicago Law School

Sarah M. Stephens
Employment Attorney, Cox Automotive, Inc.

 The paper topics are:

Independent Contractor Drivers: Where Are We Heading?
Naomi Sunshine

Corporate Promises to be Good: An Institutional Solution
Heather M. Whitney

An Employer’s Conscience after Hobby Lobby and the Continuing Conflict
between Women’s Rights and Religious Freedom
Sarah M. Stephens

Comment and critique will be provided by the following scholars:

Timothy P. Glynn, Professor of Law, Seton Hall University School of Law
Tristin K. Green, Professor of Law, University of San Francisco School of Law
Michael C. Harper, Barreca Labor Relations Scholar Professor of Law,
              Boston University School of Law
Joseph Slater, Eugene N. Balk Professor of Law and Values
              University of Toledo College of Law
Charles A. Sullivan, Professor of Law, Seton Hall University School of Law
Michael J. Zimmer, Professor of Law, Loyola University of Chicago School of Law



August 10, 2015 in Conferences & Colloquia | Permalink | Comments (0)

Netflix's Progressive Stance on Parental Leave

Many have criticized the lack of paid parental leave in this country, which lags far behind other industrialized countries in this area.  While the FMLA provides twelve weeks of leave, this leave is unpaid, and often does not provide as much time off as many parents need to spend with their new child during the first year of birth or adoption.  Some companies are taking a more progressive stance on this issue, and providing additional leave as a benefit of employment.  Indeed, Netflix just announced that it will provide paid leave for the first year after birth or adoption, which includes paternal as well as maternal leave.  From an article at CNN Money:

"The policy applies to the first year after a child is born or adopted. Both parents can take as much time off as they want during that period. They might choose to return to work part time or to come back full time for a few months and then leave again. Netflix . . . will continue to pay their full salaries and offer benefits, and parents won't have to file for disability or other state coverage."

It is wonderful to see some companies take the lead on this issue, and it may become an important recruiting tool as it is now increasingly difficult to keep good workers.

-- Joe Seiner

August 10, 2015 | Permalink | Comments (1)

Wednesday, August 5, 2015

"I'm always freezing and now there's a study to prove I'm not crazy"

New ImageThe New York Times reported a recent study indicating why many women are consistently chilly in the workplace. The study reveals that the temperatures of office buildings may have a disparate gender impact. The scientists assert that most office buildings adjust temperature according to a formula that is based in part on the resting metabolic rate of men – a 40 year old, 154 pound man to be exact. This formula, which also considers factors such as air temperature and clothing insulation, was concocted in the 1960’s when men made up a majority of the employees in many workplaces. Now that women constitute half of the modern workforce, the current model “‘may overestimate resting heat production of women by up to 35 percent.’”

In other words, office air conditioning is biased against women. But that's not all. There's reason to believe that that bias is actually not in the best interests of employers since cooler temperatures impair productivity. A 2004 Cornell University study found that office workers make more typing errors in chilly office environments as opposed to warmer ones.

And then there's the social consequences since over-chilled workspaces cause a wasteful exertion of energy amid the backdrop of global warming.

In short, the “gender-discriminating bias in thermal comfort” has three implications: 1) offices are expending more energy than necessary; 2) employers are losing productivity; and 3) women have a disproportionately uncomfortable experience in the workplace.  Sounds like a lose-lose-lose proposition, which should result in bosses turning up the heat.

The study has already incited a tense gendered debate on office air conditioning. Dr. van Hoof, who wrote a commentary about the study, noted that “‘The cleavage is closer to the core of the body, so the temperature difference between the air temperature and the body temperature there is higher when it’s cold.’”  Dr. van Hoof seems to assume that women begin shedding clothes in a professional setting, just because of the temperature outside. The female employees highlighted in the article, however, as well as female commentators on the site suggest otherwise. Based on their testimonials, it appears that most women account for the aggressively low temperatures with sweaters and blankets (if their work environment allows for it!). One commented, “We all have space heaters at our desks. So now my organization is paying to simultaneously heat and cool the building. Such a waste!” 

But is this actionable under Title VII, most likely as a disparate impact claim?  The one case that we discovered dealing with the problem involved a woman who alleged that her supervisor retaliated against her filing a discrimination suit by installing a lockbox on the office thermostat while maintaining a temperature of 66-70 degrees. The court was not persuaded that it should make a federal case about office temperatures.

I guess we'll have to wait to see what might happen, but bosses might be wise not to tell their female workers to "chill out" on the issue.


Hat-tip to my RA, Samira Paydar, who also came up with the title of this post. 


Blame a Male-Biased Algorithm for the Temperature in Your Office? Readers Respond

August 5, 2015 in Employment Discrimination | Permalink | Comments (0)

Tuesday, August 4, 2015

Defining Employees


The task of defining whether a worker is an employee or an independent contractor has long been an issue for the legal system.  With recent decisions in Uber and Lyft, the issue has drawn increasing attention from the mainstream media, as the modern economy does not fit neatly with the traditional definition of an employee.  And, certainly, the statute that the case arises under, as well as the state where the claim is brought, can dramatically affect the inquiry.  A recent article over at looks at some of the recent questions that have arisen with this issue.  From the article:

"The challenge with defining your workforce is that the term “employee” can vary with the context of the legal issue in play. Just because the California Labor Commissioner’s office calls a particular worker an employee doesn’t mean the IRS or DOL will use the same classification. And in a lawsuit, a jury may come to an entirely different definition of employee if that worker has caused an accident."

This article is only one of many high profile discussions on the topic in the media.  It will be interesting to follow the cases as they progress through the courts, and as the judiciary (and others) continue to struggle with the definition of an "employee."

-- Joe Seiner

August 4, 2015 | Permalink | Comments (0)