Wednesday, September 30, 2015
Congratulations to Michael Duff, who has been appointed Associate Dean of Student Programs and External Relations at Wyoming College of Law.
Just a reminder to let us know of your good news so we can get the word out. I love celebrating the achievements of everyone in our LEL academic community!
Tuesday, September 29, 2015
The most recent issue of the journal Industrial Relations -- a special issue in honor of the 75th anniversary of the Fair Labor Standards Act--includes these papers on pay secrecy, reporting pay, and proposed amendments to the Fair Labor Standards Act’s overtime provisions:
In “Pay Secrecy and the Gender Wage Gap in the United States,” Marlene Kim studies the relationship between the gender pay gap and pay secrecy statutes. From the abstract:
Using a difference-in-differences fixed-effects human-capital wage regression, I find that women with higher education levels who live in states that have outlawed pay secrecy have higher earnings, and that the wage gap is consequently reduced. State bans on pay secrecy and federal legislation to amend the FLSA to allow workers to share information about their wages may improve the gender wage gap, especially among women with college or graduate degrees.
In “Underwork, Work-Hour Insecurity, and A New Approach to Wage and Hour Regulation,” Charlotte Alexander and Anna Haley-Lock discuss the reporting pay guarantee as a way to address fluctuating and unstable work schedules. From the abstract:
We begin by examining the problem of work-hour insecurity, particularly employers’ practice of sending workers home early from scheduled shifts. We then move to a detailed assessment of state laws that require reporting pay, as well as reporting pay guarantees in union contracts and private-employer practices that attempt to address the problem of work-hour insecurity. We conclude by considering paths for strengthening such protections in law.
In “FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework,” Lonnie Golden models and predicts the effects of recently proposed FLSA amendments on workweek and overtime. From the abstract:
The model contrasts allowing compensatory time for overtime pay for private nonexempt employees to “rights to request” reduced hours. Hours demanded are likely to rise for workers who request comp time, undermining the intention of family-friendliness and alleviating overemployment, unless accompanied by offsetting policies that would prevent the denied use or forced use of comp time and that resurrect some monetary deterrent effect. A unique survey shows that the preference for time over money and comp time is relatively more prevalent among exempt, long hours and women workers; thus, worker welfare is likely better served if comp time were incorporated into an individualized, employee-initiated right to request.
Monday, September 28, 2015
Thomas Jefferson School of law is pleased to announce the second Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.
All submissions must be submitted electronically to: firstname.lastname@example.org. All entries must be received by midnight, Pacific Standard Time, January 15, 2016. Winning submissions will be announced by April 15, 2016.
For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Professor Susan Bisom-Rapp, who will be coordinating the competition: email@example.com.
What a great opportunity!
Wednesday, September 23, 2015
Mike has been battling cancer for more than a year, always (and I mean always) with a positive spirit and a concern for those around him during this incredible passage.
There will be a time for memorials -- and for the joy that Mike inspired in all around him. But for the moment, it's OK for those of us who loved him to simply be sad.
Friday, September 18, 2015
There’s now a lot of commentary about the Uber case and the “shared economy”—most of it on the role of the “employee/independent contractor” distinction (see, e.g., here). Some of it goes further and takes the Uber case as an exemplar of what’s wrong with labor and employment law generally. Take a recent example: In his New York Times “Deal Professor” column, Steven Davidoff Solomon criticized California’s employee-independent contractor test for likely classifying Uber drivers as “employees”, because that result “doesn’t work with the shared economy.” He reasoned in part:
Do [Uber drivers] really want to have less flexibility about who they work for? Do they want the inability to work for other people or to preselect their rides? And ultimately, given their ability to quit at any time and go to a competitor or even start their own service, do they need protection? Maybe, but probably not.
He added that the Uber case “highlights the outdated nature of workers’ laws in America, not just around what it means to work for someone, but also what benefits and protections American workers need whether they are a contractor, employee or provider of services.”
So, is that right? The strongest version of this view: Labor and employment laws now cause a net decrease in social welfare or efficiency (however defined) for Uber drivers in particular or American workers generally, and are therefore “outdated” for today’s labor markets. This isn’t so much a legal question, but a judgment about what’s good social policy. And what you think about this policy question may strongly affect who you think should win the Uber lawsuits, regardless of the precise legal doctrines that apply. To be fair (to Solomon and others), views on what’s good policy are easy to offer up but harder to actually unpack or back up in the space of a newspaper column or blog post. Still, good policy arguments still need evidence and candor about tradeoffs—by how much will some people be better off, and some people be worse off, as a result, and why those tradeoffs are or are not okay.
So, dear reader, here’s an invitation. Post in the comments section or email me your best policy argument (or parts thereof) about why Uber should win or lose in O’Connor v. Uber Technologies and similar lawsuits. Make it short (500 words or less), but also point to evidence, identify the tradeoffs (the winners and losers), and justify them. (If I get a lot of these, I’ll write them up in separate post.)
To get you started, here are two observations. First, on what Uber drivers need: Yes, in theory, Uber drivers can “quit at any time and go to a competitor or even start their own service.” But in reality, labor markets are not perfectly competitive. In any labor market—not just the “shared economy” (however defined) — a worker can quit, and thereby use the prospect of exit as leverage for higher wages or better working conditions. But, a worker’s ability to do that depends in large part on how much an employer has to lose if the worker leaves to join a rival firm, how easy it is to do that, or how easy it is to set up shop on one’s own. That ability varies a lot by type of work and where you work, among other things. (See, for example, this report on differences between Uber and Lyft in average gross earnings per trip in different US cities.) A complication here: According to this study (paid for by Uber), most Uber drivers have day jobs, and work for Uber on the side.
Second, on what Uber drivers want: Labor and employment law often sets minimum standards, i.e., it removesfrom the bargaining table the option to bargain for conditions below those standards (or at least drives it under the table). That’s why an employer who pays a worker below minimum wage or doesn’t provide her adequate safety equipment violates the law even if the worker would agree to work under those conditions. To be sure, minimum standards entail tradeoffs. There’s a social cost for a minimum wage--- employers may hire fewer workers --- though the best evidence suggests that the size of that effect is small, and a lot of folks think any such tradeoff is worth it.
In O’Connor, the plaintiff-workers want their “tips” and certain expenses reimbursed as California law requires of employees in general. If plaintiffs win and Uber does nothing, Uber’s per-driver labor cost goes up. How will Uber react? Maybe Uber will respond by giving their drivers in California less on the items that they can bargain over—for example, by increasing Uber’s cut of each fare—and the drivers will be net worse off as a result. Maybe. Or maybe Uber won’t do that, lest drivers defect to Lyft or to other part-time work, and drivers will as a result earn more per ride without losing out on much else. Maybe Uber will do very little, on the premise that a plaintiff victory here doesn’t mean that they’ll also get overtime pay (for more on this, see here). Or maybe Uber’s response will vary by city, because in some cities, Uber lacks monopsony power, whereas in others, it’s really the dominant buyer of freelance-drivers’ labor. Before we assign probabilities to these and all the other maybes out there, it might be nice to have some evidence about each one and then some reasoning about whether we should accept the resulting tradeoffs.
Thursday, September 17, 2015
I used this video clip by Shelley Correll (Stanford - Sociology) today to introduce the topic of sex discrimination and stereotyping, to terrific effect. Students are appropriately outraged by the facts of Price Waterhouse, but they also know that few employers these days are so stupid as to be as overtly discriminatory. Today's flavors of discrimination are much more subtle, and this 20-minute video does a nice job of illustrating that.
I followed the video by asking the students to describe sex stereotyping that they had observed at our law school, at our university, and in the law firms and courtrooms they were working and interning in. This generated an animated discussion, and wearing my decanal hat, gave me some ideas of things I can do to improve our law school environment. One of the many interesting directions our discussion took was that law student perceptions of the expertise of junior law professors can vary considerably by gender, and that that in turn may influence the "personas" that male and female law professors may adopt in the classroom.
Thanks to my colleague Dacy Wilcox for sending the video to me.
Wednesday, September 16, 2015
I have just learned that Federal District Court Judge Mark Bennett (N.D. Iowa) has posted on SSRN his fascinating article on the jury system which is forthcoming in the Arizona State Law Journal. This wonderful piece provides a unique perspective on the jury system, with a particular emphasis on the jurors themselves. This issue is important not only to labor and employment cases, but to all areas of the law. The abstract is below, and I highly recommend taking a look at this article if you have the chance:
Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWJW — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone!
-- Joe Seiner
Tuesday, September 15, 2015
Friend-of-blog Brad Areheart has just posted his fascinating article on accommodations, the ADA and the PDA (forthcoming in the Alabama Law Review). The article provides a great examination of this area of the law, and is definitely worth taking a look at if you are interested in these issues. The abstract is below:
Courts have interpreted the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA) not to affirmatively require accommodations for pregnant workers. This has generated protest and led all three branches of the federal government to address the issue of pregnancy rights. The Pregnant Workers Fairness Act is pending in Congress and has drawn strong vocal support from President Barack Obama. The U.S. Supreme Court recently decided Young v. UPS, which found the PDA does not affirmatively require pregnancy accommodations. Finally, many commentators have argued in support of considering pregnancy a disability under the ADA.
This Article agrees substantively with the end of accommodating pregnancy, but disagrees with the various proposals commentators have advanced. In contrast to those who favor a pregnancy-specific right to accommodations, this Article argues that such proposals create risks to women¹s long-term equality in the workplace. In particular, characterizing pregnancy as a ³disability² or pregnant women as a class in special need of accommodation poses a danger of expressive harms. Currently proposed measures may revitalize exclusionary and paternalistic attitudes toward pregnant employees, signal incapacity to work, or actually increase sex discrimination. We should thus consider the potential expressive impact of pregnancy accommodation schemes in light of current social norms in which pregnant women are generally seen as capable of productive work. This Article concludes by suggesting alternative approaches to securing pregnancy accommodations that would avoid expressive harms and employ a gender symmetrical approach.
This Article's critique and the question of how best to accommodate pregnancy resonate across several areas of the law. For those who study civil rights, Accommodating Pregnancy illustrates the expressive perils of rights claiming. For historians and scholars interested in gender issues, this Article provides a chance to reconsider the consequences of gender-asymmetrical laws. For family law scholars, Accommodating Pregnancy highlights the current capacity of the law to reshape work/family balance.
To assume that implementing gender-asymmetrical rights is the best way to help women in the workplace overlooks the potential of the law to ameliorate broader social issues. These include the way in which employment is typically structured to accommodate the most privileged employees and how everyone would benefit from more accommodating workplaces.
Monday, September 14, 2015
Danielle Weatherby & Naomi Schoenbaum are collecting information for the AALS labor & employment sections. Their request is below, with a Nov 1 deadline:
It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure, please e-mail that news to Danielle Weatherby at firstname.lastname@example.org.
Second, please also e-mail Danielle Weatherby with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2015. Please hold your forthcoming 2016 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2015 publications to Danielle Weatherby.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Young v. UPS, Inc., EEOC v. Abercrombie and Fitch, or the granting of cert. in Friedrichs v. California Teachers Association), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity, as the newsletter is widely circulated. Just let us know what you are interested in writing about. Please send your submissions to Naomi Schoenbaum at email@example.com.
Please send all submissions by November 1, 2015.
Thank you very much for your help!
Danielle Weatherby & Naomi Schoenbaum
Thursday, September 10, 2015
There is a very, very interesting article on Wired.com by Emily Dreyfuss about her experience teleworking via an iPad robot on wheels. I haven't thought deeply about technology in the workplace, so this article was rather mind-blowing for me, and opens up all sorts of avenues for employment law inquiry. Ms. Dreyfuss discusses, for example, how violated she felt when a co-worker moved or touched her robot without her permission; how freeing it felt to be very pregnant at her home yet not pregnant at all in her robot incarnation at work; how she and her co-workers had to negotiate accommodations to account for her robot's mobility or lack thereof. Harassment law?!? Identity at work?!? Analogs to disability law?!? Fascinating.
Wednesday, September 9, 2015
1. There's an interesting article in the Chronicle of Higher Education on an antitrust suit challenging an alleged no-poaching agreement between Duke and UNC. Cooperation or Collusion? Lawsuit Accuses Duke and UNC of Faculty Non-Poaching Deal. It may not match the hype about the Silicon Valley no-poaching litigation, but it does strike pretty close to home. And, crediting the Chronicle's report, there's apparently a dispute about whether the schools have a policy or just a practice. Conscious parallelism, anyone. Not to mention the reality that there is some movement between the professoriat at the two universities.
2. Jonathan Harkavy has posted his always-interesting annual review of Supreme Court employment decisions.
Tuesday, September 8, 2015
Per an article from the LA Times, the President has announced paid sick leave for federal contractors. Under the FMLA, workers covered by the statute are entitled to twelve weeks of leave, which is unpaid. The executive order, however, requires that federal contractors pay workers for sick time. From the article:
"The action will provide coverage for as many as 300,000 workers whose jobs do not currently provide paid sick leave and many others with limited paid time-off benefits. It will begin in 2017. The U.S. is the only industrialized nation without a federal family-leave law that guarantees workers can receive pay while taking time to care for themselves and loved ones."
This is an important step for paid leave time. As seen in the blog post immediately below, however, even where private companies have provided such leave, some workers may be reluctant to take the time off. It will be interesting to see how this new paid leave works with federal contractors.
- Joe Seiner
Saturday, September 5, 2015
In a fascinating NY Times article this week, there is a discussion of whether workers are actually taking parental leave that is made available to them. Under federal law, workers are only entitled to twelve weeks of unpaid leave (and only at larger companies). Many businesses have lead the way in providing paid leave to workers that are caring for a new or adopted child. But it is unclear whether employees are actually availing themselves of this leave. From the article:
"Employees may wonder if [taking parental leave] is acceptable or if it could hurt their careers. At many companies, the new benefits are at odds with a highly demanding, 24/7 workplace culture — a culture that starts from the top."
The article is an important reminder that companies that truly want to provide such leave to workers must stand behind their policies. And, simply because a company provides a benefit does not necessarily mean that it will be used by workers.
-- Joe Seiner
Wednesday, September 2, 2015
In a detailed, 68-page decision a federal district court in the Northern District of California permitted a class action to proceed against Uber on the question of whether drivers are employees or independent contractors. The decision, issued yesterday by Judge Chen, is important for workplace plaintiffs, particularly after the Supreme Court raised the bar for establishing commonality for employment plaintiffs. While the case is largely a win for plaintiffs, the decision itself is much more nuanced and worth reading if you are interested in this area. From the decision:
"[o]n one hand, Uber argues that it has properly classified every single driver as an independent contractor; on the other, Uber argues that individual issues with respect to each driver’s “unique” relationship with Uber so predominate that this Court (unlike, apparently, Uber itself) cannot make a classwide determinationof its drivers’ proper job classification."
The media has quickly picked up on this important decision. A couple of interesting, early articles are available from Huffington Post/Reuters and Inc.com. We will definitely continue to follow this case closely.
- Joe Seiner
Tuesday, September 1, 2015
The Denver Post reported yesterday that the EEOC
has threatened to sue the University of Denver's law school over what the commission calls a "continuing pattern" of paying female professors less than their male colleagues.
In a letter sent to the university on Friday, the director of the Equal Employment Opportunity Commission's office in Denver wrote that an EEOC investigation found a gender pay gap among the school's legal faculty dating back to at least 1973. The commission concluded that the university knew about the gap by 2012, "but took no action to ameliorate this disparity, in effect intentionally condoning and formalizing a history of wage disparity based on sex."
The EEOC's investigation came after longtime DU law school Professor Lucy Marsh filed a complaint with the commission more than two years ago. Marsh's attorney on Monday provided a copy of the letter to The Denver Post.
Marsh said the law school could have to pay as much as $1.2 million in total damages to its female law professors, in addition to paying them salaries going forward equal to what their male colleagues in similar positions are paid.
Hat tip: Paul Caron at TaxProf Blog.
A doctor, upset about the outcome of a pregnancy, threatened to report to the hospital the conduct of certain nurses whom he thought had contributed to the death of the baby. He also disclosed to the mother what he believed was malpractice in the treatment and consulted an attorney about reporting the nurses and a fellow physician to the hospital or Board of Medicine.
The trial court instructed the jury that all three activities were protected under Iowa’s public policy cause of action and, while there was reason to believe that the plaintiff was a difficult personality in other respects, the jury found that this protected conduct was a “determining factor” in the physician practice group’s decision to terminate plaintiff’s employment with the group.
Most of us would label this “not much to appeal,” and move on to a more interesting case. The Eighth Circuit took a different view in Hagen v. Siouxland Obstetrics & Gynecology, PC, overturning the verdict and ordering judgment entered for the defendant.
The reason? The doctor had a contract with the group and had not pursued his claims under that contract. The Eighth Circuit read the Iowa public policy tort as applicable only to at-will employment and, since Hagen’s employment was not at will, the tort did not apply.
This is more than a little surprising, but maybe not totally wrongheaded when read in context. In Iowa, as in many other states, the public policy tort emerged in the setting of at-will employment, and language in Iowa judicial opinions repeatedly referred to it as “a narrow exception” to the at-will rule. More pointedly, the trial court had certified questions to the Iowa Supreme Court, including “Does Iowa law allow a contractual employee to bring a claim of discharge in violation of Iowa public policy, or is the tort available only to at-will employees?” While the state Supreme Court dodged that question, that decision might have implied that the issue was at least more debatable than one might have imagined.
If, then, Iowa tort law did not protected the plaintiff, what would have happened had he in fact pursued his contract claim? Although the practice group claimed it had cause, the jury verdict suggests it would have lost on that score, but the remedies would have been limited. Most obviously, Hagen would have had no recovery for the kinds of damages that are available only in tort – mental distress and punitive damages. But perhaps as important, contracts come in all shapes and sizes, and the plaintiff’s contract claim would have yielded a very modest expectation recovery: there was a right by either party to cancel on 90-days’ notice, which would presumably limit Hagen’s recovery to the compensation otherwise due during this time period.
In short, even had the whistleblowing doctor pursued his contract claims, the very nature of those claims would have left him with very little protection for his conduct, which means that the purposes of the public policy tort would be effectively frustrated in this context.
Maybe not a big deal because very few employees are anything but at will? And the court did stress that plaintiff was not just any old employee – he was president and co-owner of the practice group. But even putting aside the possibility that key players in many settings will be higher level workers with some kind of contractual protection, there’s the irony that Hagens creates incentives for employers to immunize themselves from public policy suits by providing employees contractual job security. If an employer contractually provided each worker for cause protection for a week, would that be sufficient to take it out of the tort system? The court adverts to that issue, suggesting in dicta that a contract providing for discharge on 30 days’ notice without cause might still be actionable in tort. But it does not explain why for-cause protection for 90 days is somehow different. Is it the 90 days or the "for cause," and, if the latter, what does that ensure beyond three months of pay?
By the way, one of the questions certified to the Iowa Supreme Court was whether the at-issue conduct was protected – and the justices divided equally on that. One wonders how broad the public policy tort is in Iowa, even without regard to the newly established contract exception.