Wednesday, December 23, 2015
image from eeoc.gov
EEOC chair Jenny Yang issued a statement released by the Commission earlier today addressing recent discrimination against Muslim and Middle Eastern employees in the workplace. This statement, which is available here, provides that:
"America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by the recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all. We commend employers who have already taken steps to issue or re-issue policies on preventing harassment, retaliation, and other forms of discrimination in the workplace, and we encourage all employers to remain vigilant and to communicate their commitment to inclusive workplaces throughout their organizations. Workers who have experienced discrimination at work or in applying for jobs should report these incidents to the appropriate workplace official and to the U.S. Equal Employment Opportunity Commission or its state and local partners. We urge all employees to re-affirm these values of tolerance and equality in their interactions with their co-workers and show that harassment and discrimination will not be tolerated in America's workplaces."
The EEOC, in its press release on this topic, also provided some additional resources on this type of discrimination, which are available here. Given recent events and news stories, these resources can serve as helpful tools for both workers and employers.
-- Joe Seiner
Friday, December 18, 2015
Congratulations to Adelle Blackett (McGill) and Anne Trebilcock (University of Paris and Georg-August University, German), editors, on the publication by Edward Elgar Publishing of Research Handbook on Transnational Labour Law. Here's the publisher's description:
The editors’ substantive introduction and the specially commissioned chapters in the Handbook explore the emergence of transnational labour law as a field, along with its contested contours. The expansion of traditional legal methods, such as treaties, is juxtaposed with the proliferation of contemporary alternatives such as indicators, framework agreements and consumer-led initiatives. Key international and regional institutions are studied for their coverage of such classic topics as freedom of association, equality, and sectoral labour standard-setting, as well as for the space they provide for dialogue. The volume underscores transnational labour law’s capacity to build bridges, including on migration, climate change and development.
And here's a more-detailed description of the Handbook, with a special price discount.
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour | Permalink | Comments (0)
Wednesday, December 16, 2015
Lise Gelernter of Buffalo sent out the following to the National Academy of Arbitrators listserv. Although DirectTV is a consumer case, she thought it might be of interest to us employment types.
The Supreme Court just decided another consumer-related arbitration case (copy attached) -- DirecTV v. Imburgia. In this case, the Court considered a class-action waiver in a 2007 contract that customers had with DirecTV in California. The contract waived access to class action arbitration, EXCEPT " 'if the law of your state' does not permit agreements barring class arbitration, then the entire agreement to arbitrate becomes unenforceable." (Quoting from Justice Ginsburg's dissent).
The California Court of Appeal held that the "law of your state" language meant state law regardless of whether it was later preempted by the FAA (as it was in the Concepcion case). Since California law ruled out the banning of class arbitrations, the California court had held that the clause was unenforceable in California.
The majority didn't buy it, in a 6-3 decision written by Justice Breyer. Justice Thomas dissented on the basis that he does not believe that the FAA is applicable in state court. Justice Ginsburg wrote another dissent, joined by Justice Sotomayor, in which she said the California court had correctly interpreted the clause and the meaning of the term "law of your state."
It's an interesting lineup -- in the Concepcion case, Scalia wrote the 5-4 decision, joined by Roberts, Alito, Kennedy and Thomas. Breyer wrote the dissent in Concepcion, joined by Sotomayor, Ginsburg and Kagan. In contrast, in the DirecTV case, Breyer wrote the majority 6-3 decision, joined by the same judges as in the Concepcion majority, except for Thomas, with the addition of Kagan. It looks like Breyer and Kagan, although they dissented in Concepcion case, decided that parties had to adhere to Concepcion as the law of the land.
In an interesting twist, DirecTV is now owned by AT&T, the company in the Concepcion case.
Keep in mind that class action arbitration is still a possibility in restricted circumstances, even under the recent Supreme Court apparent expansion of FAA preemption. In Oxford Health Plans v. Sutter, 133 S. Ct 2064 (2013), the Supreme Court refused to vacate an arbitrator's decision that had construed ambiguous language in a contract to permit class action arbitrations. However, many corporations rewrote their arbitration clauses after Concepcion to be very unambiguous about prohibiting class arbitrations.
And I could add, from the employment side, that the NLRB's Horton rule is still being heavily litigated in the courts, although we have yet to see a circuit court decision upholding the principle that an agreement waiving all right to class relief violates the NLRA and Norris LaGuardia.
Wednesday, December 9, 2015
For those of you looking for interesting hypotheticals or cases for your class next semester, several news pieces discuss the recent lawsuit filed by former USC football coach Steve Sarkisian. The ex-coach claims that the school fired him because of his alcoholism, thus resulting in disability discrimination. The complaint asserts that "Instead of accommodating [the coach's] disability, USC kicked him to the curb." In the high profile case, Sarkisian is seeking $12 million in lost wages in his contract, as well as other compensation. The complaint is worth taking a look at if you are interested in this area of the law, as well as the excellent summary in the LA Times. The case will certainly be one to watch.
-- Joe Seiner
Monday, December 7, 2015
How will the Department of Justice (DOJ) defend against an Equal Protection Clause challenge to that part of the Americans with Disabilities Act (ADA) that excludes “gender identity disorders not resulting from physical impairments” from the statutory term “disability,” 42 U.S.C. § 12211(b)(1) (the “GID exclusion)? When we last talked about Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) —an employment discrimination lawsuit brought by a transgender plaintiff.—DOJ had asked the district judge to avoid the constitutional issue by deciding the plaintiff’s Title VII claim (discrimination because of gender identity) instead of her ADA claim. The district court didn’t buy it and asked DOJ to say more or intervene.
So, a second try. DOJ has a new constitutional-avoidance argument: According to “a growing body of scientific evidence,” gender dysphoria—the plaintiff’s alleged disability—is a gender identity disorder that does “result[ ] from physical impairments.” Therefore, the district court can (and must) read the ADA’s GID exclusion not to apply in this case. The ADA’s definition of disability contemplates impairments as “physical” or “mental”. 42 U.S.C. § 12102(1)(A) (“a physical or mental impairment”). DOJ’s key move here is to read the phrase “resulting from physical impairments” in the GID exclusion to not cover “GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood,” that is, a GID that “has a physical basis.” Citing various sources in support, including a recent literature review (Saraswat et al., 2015), DOJ concludes: “While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.”
In response, the defendant-employer agreed that the GID exclusion doesn’t cover gender dysphoria stemming from a physical impairment, but emphasized that the plaintiff hadn’t alleged that her gender dysphoria resulted from a physical impairment. As a result, the defendant’s lawyers wrote, DOJ’s avoidance argument wasn’t “credible”. The plaintiff’s amici—several NGOs that advocate for transgender people’s rights— agreed that DOJ’s position was, in its result, at least consistent with their view that, after the DSM-5, gender dysphoria isn’t a gender identity disorder at all, but a “new diagnosis.” But if not, the amici added, and if DOJ’s view requires a plaintiff in any particular to prove that his or her gender dysphoria does actually result from a physical impairment, then the court can’t avoid the Equal Protection Clause challenge completely. That’s because (1) only transgender plaintiffs would bear that burden of proof; (2) that burden would burn a lot of “attorney resources for discovery and the preparation of expert reports and requiring courts to delve into a thicket of medical evidence and opine on etiology, with the attendant risk of different courts reaching differing results in similar cases”; and (3) if the plaintiff couldn’t meet that burden, the court would then have to decide the constitutional issue. The plaintiff’s lawyers agreed with this view.
What about the plaintiff’s ADA claim based on perceived disability? First Amended Complaint ¶¶ 36, 53. The ADA defines “disability” to include cases in which a person is “regarded as” disabled. 42 U.S.C. § 12102(1)(C). Today, that’s defined to cover a person who suffers discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” id. § 12102(3)—the result of the ADA Amendments of 2008. So, if the defendant’s alleged illegal conduct had occurred today, maybe DOJ would also say—to make avoidance work—that the GID exclusion doesn’t apply to “regarded-as” ADA claims. (That is, not even when a defendant-employer treats a person adversely because it thinks (erroneously) that a person has a “gender identity disorder” caused by a physical impairment; or thinks (erroneously, in DOJ’s view) that a person has a “gender identity disorder” caused by a mental impairment; or thinks a person has a “gender identity disorder” but doesn’t know or care whether that condition has a mostly physical or mostly mental etiology.) But the alleged illegal conduct in Blatt took place before the ADA amendments of 2008. Back then, the Third Circuit had required that, for a regarded-as claim, the plaintiff’s perceived disability would, if true, count as an “impairment” under the ADA, see Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d. Cir. 2002).
Maybe we’ll find out soon how DOJ’s second try at avoidance will fare. Oral argument on the defendant’s partial motion in Blatt is scheduled for this Thursday (Dec. 10).
--- Sachin Pandya
Carolina Academic Press has published a new set of materials that can be used to teach an “experiential” course in the practice of Labor Arbitration. Professor Roger I. Abrams, an academic and a labor arbitrator for over forty years, has used these materials in his Labor Arbitration Workshop at Northeastern University School of Law. The course materials include numerous published arbitration decisions with questions and notes, simulations, transcripts, sample briefs and problems that focus on the work of advocates who present cases before labor arbitrators. The publisher has created a website and a Teacher’s Manual to accompany the materials.
During the course, in addition to learning about regulation of the workplace through collective bargaining, students learn how to make opening statements in labor arbitration, conduct direct and cross-examination, and write arbitration briefs. At the end of the course, they try a complete arbitration case based on a simulation with witnesses and documents, and then they write a brief in support of their side of the case.
As you may know, under the newly revised ABA Standards, law students will be required to complete six credit hours using this type of “experiential” approach. The materials also are suitable for a course in a business school or in an undergraduate program.
Wednesday, December 2, 2015
We have written a decent amount on this blog about class-action litigation in the modern economy. These cases have keyed in on the issue of whether modern workers are independent contractors or employees. My research on this issue has led me to a wealth of information, and I have been able to aggregate a number of these cases into a single list, which you can Download Here. This list includes an impressive amount of class litigation against high-profile companies, including Uber, Lyft, Homejoy, Crowdflower, Instacart, Postmates, Caviar, Washio and others. I have included some basic background information about each case, as well as the district court docket citation and any media cites where available. I apologize for the "rough format" of this list, but thought others might find this resource useful as I have been unable to find any other discussion which sets forth an aggregation of the class-action cases brought in the gig economy. And, feel free to add any cases I might have missed in the comments below!
-- Joe Seiner
Update: A corrected file is now attached at the link above.
Tuesday, December 1, 2015
By now, we’re used to the idea that employees can sign away their rights to a court forum in favor of an arbitral tribunal, but we’re not so used to the idea that contract law, even without the aid of the Federal Arbitration Act, can be deployed to deprive employees of statutory rights they would otherwise have. A case raising these issues in a dramatic fashion is set for argument today before the New Jersey Supreme Court. At issue is a retailer’s employment application, which provides that any suit must be brought within 6 months of a claim arising. The effect would be substantially shorten the limitations period otherwise applicable under the state’s Law Against Discrimination.
Although the claim in question arises under LAD, the waiver –if valid – would presumably shorten the period for most causes of action that would otherwise have a longer limitations period. In New Jersey, that’s pretty much every claim – contract, tort, Conscientious Employee Protection Act, the list goes on. And there’s nice fringe benefit, from management’s perspective, that employees may not recall signing such a document, much less kept a copy of their applications for employment. In blissful ignorance of this ticking time bomb, employees and their attorneys might assume that they have whatever time the cause of action would normally allow.
But it’s a contract, right? So what’s the problem? The Appellate Division saw none, and dismissed plaintiff’s case as time barred. For that court, the major doctrinal obstacle was unconscionability, always the last resort of the desperate, and the court found the requirements of that doctrine unsatisfied. Although it treated the contract as one of adhesion, it did not find the waiver substantively unfair. In the process, it looked to a variety of cases upholding agreements curtailing statutory limitations periods.
To reach its result, the court rejected the plaintiff’s argument that the legislatively-enacted period in various statutes itself reflected a strong policy of worker protection, thus rendering any effort to shorten the period either substantively unfair or, more directly, a violation of state policy. The Appellate Division would have none of it – the state Legislature had not barred such agreements despite being “presumably aware of the long-established case law allowing contractual reductions that are reasonable and not contrary to public policy.”
If the Appellate Division’s decision stands, employers will have a powerful new tool to minimize risk of liability. Nor do they have to choose between an old risk-management tool like arbitration and the new tool of slashing limitations periods. Having their cake and eating it too, there’s no apparent obstacle to providing that an arbitration proceeding has to be filed within the reduced period. After all, we usually conceived or arbitration as simply replacing a public forum with a private one to resolve the same dispute, albeit in a less formal way.
There are some limitations on such agreements. Looking to the principle that private agreement should be “reasonable and not contrary to public policy,” the court recognized that sometimes a shortened statute of limitations may be, so to speak, off limits. Under the federal antidiscrimination statutes, for example, there is generally a requirement that a plaintiff file with the EEOC and provide it with at least 180 days to seek to resolve the dispute. This structure would seem to necessarily invalidate a 6 month statute of limitations since it would essentially foreclose any private suit.
Further, the principle may be generalized such that, at least for any claim founded on a statutory regime (as opposed to contract or tort claims), employers may not functionally deprive the employee of her rights by too radical a reduction in the time allowed to bring suit. But for the Appellate Division, 6 months didn’t do it – in part because New Jersey had 6 month limitations periods for certain remedies. Nor did the court find persuasive the possibility that a plaintiff would not know of the period – after all, contracting parties are “assumed to have read [the contract] and understood its legal effect . . . even if a language barrier is asserted,” as it was in the case at bar.
To be clear, the Appellate Division is not the first opinion to approve of contractual contraction of limitations, nor even the first to do so in the context of employment claims, and, indeed, the court could find no published opinion to the contrary. Nevertheless, the New Jersey Supreme Court often goes its own way, and it would scarcely be surprising for the court to find these kinds of agreements unenforceable.
We should know in a few months.