Workplace Prof Blog

Kim on Algorithmic Discrimination

Pauline Kim (Washington U.) has just posted on SSRN her article (forthcoming 2017 William & Mary Law Review) Data-Driven Discrimination at Work. Here's the abstract of this timely article:

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired or promoted. Proponents of the new data science claim that automated decision systems can make better decisions faster, and are also fairer, because they replace biased human decision-makers with “neutral” data. However, data are not neutral and algorithms can discriminate. The legal world has not yet grappled with these challenges to workplace equality. The risks posed by data analytics call for fundamentally rethinking anti-discrimination doctrine. When decision-making algorithms produce biased outcomes, they may seem to resemble familiar disparate impact cases, but that doctrine turns out to be a poor fit. Developed in a different context, disparate impact doctrine fails to address the ways in which algorithms can introduce bias and cause harm. This Article argues instead for a plausible, revisionist interpretation of Title VII, in which disparate treatment and disparate impact are not the only recognized forms of discrimination. A close reading of the text suggests that Title VII also prohibits classification bias — namely, the use of classification schemes that have the effect of exacerbating inequality or disadvantage along the lines of race or other protected category. This description matches well the concerns raised by workplace analytics. Framing the problem in terms of classification bias leads to some quite different conclusions about how the anti-discrimination norm should be applied to algorithms, suggesting both the possibilities and limits of Title VII’s liability focused model.

rb

DOL Accepting Applications for Attorney Honors Program

As many of us are aware, the Office of the Solicitor at the Department of Labor operates a superb honors program for attorneys.  The program is seeking to add about ten new lawyers who would start in the Fall of 2017.  The link to the application process and further information is available here.  From the website:

"The Office of the Solicitor serves as the legal counsel for the U.S. Department of Labor. The approximately 550 attorneys in SOL enforce and interpret occupational and mine safety and health laws, civil rights laws, pension and health benefit laws, and more... The Honors Program gives attorneys a unique opportunity to help interpret and enforce a broad range of labor and employment laws while working in one of the largest legal offices in the federal government." 

This is a great program, and best of luck to all who apply.

- Joe Seiner

Supreme Court grants Cert in NLRB Case and Issues Decision in FLSA Case

A twofer from the Supreme Court already this week.  First, on Monday, the Court granted cert. in NLRB v. SW General.  The case addresses the question whether an individual can continue serving as an acting official once he or she has been officially nominated.  In this case, the individual is Lafe Solomon, whom President Obama designated as Acting General Counsel in 2010, under the Federal Vacancies Reform Act.  In 2011, the White House nominated Solomon to the Senate.  The D.C. Circuit held that once Solomon was nominated, the FVRA barred him from continue to serve as Acting General Counsel; the issue boils down to which provision of the act Solomon was designated when he became Acting GC.

Second, today the Court issued its decision in Encino Motorcars v. Navarro, which addressed a 2011 Department of Labor rule that said that car dealership employees who handle service appointments were not excluded from overtime--overturning many years of prior precedent that had included such employees under the "primarily engaged in . . . servicing automobiles" exception of the FLSA.  In its decision, the Court held that the DOL didn't deserve any deference because it failed to provide an explanation for its change of position.  However, the Court did not settle the issue and instead remanded to the Ninth Circuit to determine whether the employees were excluded under the FLSA.  Scotusblog has a good summary of the splintered decision, including the various opinions--especially with regard to whether the Court should have addressed the underlying issue of the exclusion's application, and how. 

-JH

Un-Abbreviating Antidiscrimination Law Limitations Periods

While mandatory arbitration agreements have gotten the most attention as methods of shielding employers from court suits, other employers have made a different choice -- using contracts with their employees to shorten the otherwise applicable limitations periods for bringing court suit. By and large (by which I mean in purely private disputes over the underlying contract claim), courts have seen little problem with such provisions. Without much analysis, they allow the parties to agree to a shorter period to being suit subject only to the condition that the period so provided be "reasonable," and are pretty permissive as to what satisfies that condition. 

Where such agreements --typically imposed as a condition of employment --involve abbreviating the time provided for bringing suit under antidiscrimination and other worker-protective statutes, the considerations are significantly different, at least so it seemed to the New Jersey Supreme Court. Last week, in Rodriguez v. Raymours Furniture Co, the Court struck down a provision in an employment agreement that set a 6 month outer limit on bringing suit when the governing Law Against Discrimination provided a two-year limitations period.  

Much of the opinion deals with aspects peculiar to New Jersey (for example, the two year limitations period is not found explicitly in LAD, and the state has alternative administrative and judicial avenues to pursue a LAD claim), but the overarching message of the opinion is that discrimination claims have a public aspect which counsels against approving private attempts to shorten the controlling limitations period.   Writing for the Court, Justice LaVecchia summarized:

The cause of action that plaintiff brings is factually premised on his employment relationship, but it is not a simple private claim. Plaintiff alleges an LAD violation -- a law designed for equal parts public and private purposes.

The LAD plays a uniquely important role in fulfilling the public imperative of eradicating discrimination. One searches in vain to find another New Jersey enactment having an equivalently powerful legislative statement of purpose, along with operative provisions that arm individuals and entities with formidable tools to combat discrimination not only through their use but also by the threat of their use. There is a huge incentive for employers to thoroughly investigate and respond effectively to internal complaints in order to limit or avoid liability for workplace discrimination. Responsible employers are partners in the public interest work of eradicating discrimination, but such responsible behavior takes time. A shortened time frame for instituting legal action or losing that ability hampers enforcement of the public interest.

The court cited decisions to like effect in Kansas and California, but the New Jersey decision is likely to be especially influential. Its most salient contribution is drawing the line between private contract disputes and litigation over statutory claims. In the future, we can expect courts at least to avoid reflexively validating such agreements and come to grips with the public policy implications of enforcing them.  

 CAS

 

Workplace Violence and Vigilance After Orlando Tragedy

As with many of the recent disturbing events making headlines, the horrific shootings in Orlando have a direct workplace connection. As is being reported, the shooter had engaged in some aggressive prior behavior, as one worker who worked at a well-known security company with the perpetrator maintains that this individual had sent him text messages which included death threats.  This terrible event is one additional reminder that we must all remain vigilant in the workplace, and notify others of questionable behaviors that are observed (as the co-worker here claims he did).  We have previously discussed some best practices approaches to workplace violence (and signals that someone might perpetuate violence) on this blog, and this event serves as an additional reminder of the important role employers and co-workers can play in preventing violent tragedies.  As we noted previously, it is important to keep in mind the "5 C's" when attempting to address and prevent such violence:  Character Checks, Counseling, Communication, Cautious Cutbacks and Community Involvement.

A report at Reuters discussed the background check performed by the shooter’s employer (a security company) which included “a psychometric test, an ID verification test, and a criminal record check, among other measures.” As the investigation in this area progresses, it will be interesting to see if there were any other signs or signals that this individual might engage in this horrific behavior.  Regardless of the results of the investigation, it is critical that we all remain cautious and vigilant in the workplace.

-- Joe Seiner

COSELL Website Open for Registration

11^th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24(Saturday) September 2016

Information and link to registration:  http://www.law.uw.edu/events/cosell

Registration:  https://www.law.washington.edu/reg/cosell/default.aspx

The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23^rd and 24^th.  Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22^nd through Saturday, Sept. 24^th.  Rooms are priced at about $209/night - please reserve a hotel room as soon as possible given hotel attrition policies.   Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington.  Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.

The website has information about the hotel, and the registration page has space for you to enter your paper topic and an abstract.  Registration for the conference is open until 31 August 2016.  Please send any questions or concerns, whether it’s about the conference or “things to do in Seattle” to Prof. Lea Vaughn at [email protected].  Thank you!

Ho-Hum?

 The Supreme Court issued two employment discrimination decisions in May, which were mostly met in the academy by yawns. Admittedly, neither is groundbreaking and one is something only a proceduralist could love. But both have points of interest.

The earlier decision, CRST Van Expedited v. EEOC, resolved the question of whether a defendant could be said to have "prevailed" for purposes of a fee award by obtaining a dismissal for the EEOC procedural failures, as opposed to having won on the merits. Whether the agency's conduct in pursuing the claims at issue was frivolous was not before the Court, which might have generated a more interesting opinion, but the decision clearly opened the path to more attorney awards against losing plaintiffs -- and not merely where the EEOC is the plaintiff.

In the case itself, the defendant had prevailed because the EEOC had failed to adequately investigate a number of the individual claims it  wished to pursue on behalf of female employees of CRST.  That's obviously not applicable to private suits, but one can easily imagine a  defendant pursuing attorneys' fees against a plaintiff whose case is, say, tossed out of court for failure to meet one of Title VII's limitations periods.  However, the Court did not decide whether a defendant has to obtain a preclusive judgment in order to "prevail," which may  somewhat limit the effects of the decision. 

The more recent is Green v. Brennan, which held that the time for resort to administrative remedies in a constructive discharge case runs from the time the employee gave notice of his resignation, not from the last employer act that created the intolerable conditions that would convert such a resignation into a constructive firing.  The case involved federal employment, which has somewhat different procedures, but there is little doubt that it applies to the more common situation involving the private sector where an employee normally has 300 days to file a charge of discrimination with the EEOC.

The opinion is clearly pro-employee, but may not have much real world impact. That's because the whole concept of constructive discharge requires discriminatory employer conduct that creates "intolerable" working conditions. The longer an employee tolerates what he claims is an intolerable situation, the less likely a court is to view those conditions are truly intolerable.  But it is true that courts will now be forced to focus on the merits of such claims rather than dismissing them on timeliness grounds. 

Justice Alito concurred, in a somewhat tortured opinion. He was concerned that, by looking to the date of resignation the Court was shifting the focus from the employer's act (which rendered continued work intolerable) to the employee's conduct and thus undercutting a long line of cases that refused to measure timeliness from the present effects of a past act of discrimination. That would seem to suggest a dissent rather than a concurrence, but Alito argued that when an employee intended the resignation (which was a triable issue here), the time could run from that resignation. Why, say, that wouldn't undercut Ricks v. Delaware State -- where the employer gave a terminal contract that must have intended Ricks's termination a year later -- isn't so clear.

EEOC Public Meeting on Harassment

The EEOC announced today that it will be holding a public meeting next week on the issue of harassment prevention in the workplace.  The meeting will be held at EEOC Headquarters in Washington, D.C. on June 20 at 9:30 a.m.  Members of the public are invited to attend, but it is recommended that they arrive 30 minutes early to allow time to clear security.  From the press release:

"In January 2015, EEOC Chair Jenny R. Yang announced the formation of the Select Task Force on the Study of Harassment in the Workplace, to be co-chaired by EEOC Commissioners Feldblum and Lipnic. The Select Task Force, consisting of management and plaintiffs' attorneys, representatives of advocacy groups for employees and for employers, and academics who have studied harassment, held hearings looking into all aspects of workplace harassment and methods for preventing and addressing it. The Select Task Force was not charged with preparing a consensus report, but rather with providing knowledge and diverse viewpoints to inform the final report prepared by the Co-Chairs. At this meeting, Commissioners Feldblum and Lipnic will present the findings of their report to their colleagues and the public, including their proposed reboot of workplace harassment prevention efforts."

These public meetings are always very interesting to attend, and I certainly encourage those in the area to consider doing so on this very important workplace issue.

- Joe Seiner

Call for Papers, AALS: Classifying Workers in the Gig Economy

The Executive Committee of the AALS Labor Relations and Employment Law Section announces that it is seeking abstracts as part of a Call for Papers to be presented at the 2017 Annual Meeting program in San Francisco. The program, titled Classifying Workers in the “Sharing” and “Gig” Economy, will take place on Thursday, January 5, 2017 from 8:30 am to 10:15 am.  Co-sponsored by the AALS Immigration Law, Business Associations, and Contracts Sections, this program will start immediately after a Breakfast jointly sponsored by the AALS Labor Relations and Employment Law and Employment Discrimination Sections held from 7 a.m. to 8:30 that morning.

This program will focus on the emerging trend of businesses using “on-demand” workers who share economic risks with those businesses as nominally independent contractors. These workers consider the job opportunity as an individual “gig,” characterized by flexibility conveniently gained from technology. State, federal, and local legislatures and related labor and employment law enforcement agencies have started to add items to this analysis beyond the typical “1099/W-2" common law control nomenclature. 

As a result, the question of who is an employee in the gig and sharing economy has become an ever-increasing concern. During the program, a panel of leading labor and employment law scholars will address this question from a multi-disciplinary approach including the examination of unique issues for business franchises and immigrant workers.

We are seeking an additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract. Papers presented during this program may be published by the Employee Rights and Employment Policy Journal. To be considered as an additional speaker, please submit an abstract of no more than 400 words and a resume to Section Chair, Michael Z. Green, at [email protected] by August 26, 2016.  The Executive Committee of the Section will decide on the additional speaker(s). Any selected speaker(s) will be responsible for his/her registration fee as well as hotel and travel expenses related to speaking at the program on January 5, 2017. Any inquiries about this Call for Papers should be submitted by e-mail to Professor Green.

MM

Reminder of the Michael J. Zimmer Smposium

Proposals for the Seton Hall Symposium to honor the life and work of Michael J. Zimmer are due on July 1st.

Paper proposals should be 3-5 pages in length and submitted to Charles Sullivan ([email protected]). 

More details about the Symposium can be found here.

Arnow-Richman on Reasonable Notice

Rachel Arnow-Richman comments on Casetext on the Virginia Supreme Court's rejection of any requirement of reasonable notice in the at-will context.  Consistent with her recent scholarship, she's pretty critical!

CAS

Uber & Exotic Dancers?

A recent Fourth Circuit decision (authored by Judge Wilkinson) upheld a jury's finding that a group of exotic dancers were indeed employees rather than independent contactors.   An interesting commentary in the Chicago Tribune looks at the applicability of this exotic dancer case to the treatment of Uber drivers and the litigation involving the gig company.  The piece discusses the economic realities/control test applied by the court.  From the Chicago Tribune:

“What's fascinating about the opinion is that most of the factors that Wilkinson cited could be applied to Uber drivers. Uber doesn't set drivers' schedules. But it lays down detailed rules and guidelines. It sets fees. It advertises. . . One takeaway from this case is therefore that courts may be more likely to call gig workers employees than the existing legal tests would suggest.”

This commentary provides an interesting read and serves as an important reminder that the question of who is an employee can arise across a broad spectrum of workplaces.

- Joe Seiner

New OSHA Reporting Requirements

(pictured above, Dr. David Michaels, Assistant Secretary of Labor for OSHA)

OSHA has issued a final rule that -- according to its press release -- will help "modernize" the reporting of injuries that occur in the workplace.  Under the new rule, some employers will be required to transmit information on workplace injuries to OSHA electronically.  Additionally, some of this information will be made publicly available.  According to OSHA, this will help “'nudge' employers to focus on safety".  Finally, the rule also provides new anti-retaliation protections. The agency provides a nice summary of the new rule here.  From the agency explaining the importance of the rule:

"This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. . . [A]s we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses."

It will be interesting to follow this new rule and see what impact it may have on the workplace and employer behavior with regard to worker safety.

-- Joe Seiner

New Overtime Rule Resources

The Department of Labor has a great new link -- with an interesting video -- that provides a nice explanation of the new overtime rules under the FLSA.  In addition to an explanatory video, the link provides a number of additional resources in this area.  It is a great primer for class, students, or for anyone else interested in an overview of this evolving area.

-- Joe Seiner

Proposed Guidance on National Origin Discrimination

 

The EEOC announced yesterday that it is opening a public comment period on the agency's proposed enforcement guidance on national origin discrimination under Title VII.  The proposed guidance is available here.  From the press release:

"In fiscal year 2015, approximately 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination. These charges alleged a wide variety of Title VII violations, including unlawful failure to hire, termination, language-related issues, and harassment. . . The 30-day input period ends on July 1, 2016. Please provide input in narrative form; do not submit redlined versions of the document. The public is invited to submit its input using www.regulations.gov in letter, email or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507."

Anyone researching or writing in this area -- a topic that is routinely in the news these days -- will want to take a look at this proposed guidance.

-- Joe Seiner

Annual Colloquium Save the Date

SAVE THE DATE: 11^th ANNUAL COLLOQUIUM FOR SCHOLARSHIP IN LABOR AND EMPLOYMENT LAW (COSELL) - SEATTLE, WA - 23 (Friday) and 24 (Saturday) September 2016

The University of Washington and Seattle University will be co-sponsoring this year’s COSELL Conference on Friday and Saturday, September 23^rd and 24^th.  Rooms are being reserved at Hotel Deca, near the UW campus, for the nights of Thursday, Sept. 22^nd through Saturday, Sept. 24^th.  Rooms are priced at about $209/night.  Light breakfast and lunch will be provided on Friday and Saturday, as well as a dinner on Friday night at the UW Club, overlooking Lake Washington.  Seattle-Tacoma International Airport is served by all major airlines, but particularly Alaska Air, Delta, Jet Blue and United.

The website will be posted soon.  In the meantime, please send an email indicating your interest and the title + abstract of any paper you wish to present to Prof. Lea Vaughn at [email protected].  As soon as the site is up, she will let you know so that you can complete your formal registration. Thank you!