Workplace Prof Blog

Yamada on Unpaid Internships

David Yamada (Suffolk) has just posted on SSRN his article (8 Northeastern U. L.J. 357 (2016) The Legal and Social Movement Against Unpaid Internships. The article offers a comprehensive overview and assessment of major legal, policy, and advocacy developments concerning unpaid internships during the past six years. This includes the Glatt v. Fox Searchlight Pictures litigation concerning unpaid internships, which culminated in 2016 Second Circuit decision that restricts, but does not foreclose, future challenges under the FLSA.

The article already has received a huge amount of attention -- 500+ SSRN downloads. This obviously is a critically hot topic.

Here's an excerpt from the abstract:

Until very recently, the legal implications of unpaid internships provided by American employers have been something of a sleeping giant, especially on the question of whether interns fall under wage and hour protections of the federal Fair Labor Standards Act and state equivalents. This began to change in 2013, when, in Glatt v. Fox Searchlight Pictures, Inc., a U.S. federal district court held that two unpaid interns who worked on the production of the movies “Black Swan” and “500 Days of Summer” were owed back pay under federal and state wage and hour laws. Although the decision would be vacated and remanded by the U.S. Court of Appeals for the Second Circuit in 2015, the door to challenging unpaid internships remains open, thanks in part to this litigation.

This Article examines and analyzes the latest legal developments concerning internships and the growth of the intern rights movement. It serves as an update to a 2002 article I wrote on the employment rights of interns, David C. Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002). Now that the legal implications of unpaid internships have transcended mostly academic commentary, the underlying legal and policy issues are sharpening at the point of application. Accordingly, Part I will examine the recent legal developments concerning internships, consider the evolving policy issues, and suggest solutions where applicable.

In addition, the intern rights movement has emerged to challenge the widespread practice of unpaid internships and the overall status of interns in today’s labor market. Thus, Part II will examine the emergence of a movement that has both fueled legal challenges to unpaid internships and engaged in organizing activities and social media outreach surrounding internship practices and the intern economy.

rb

Seventh Circuit panel rejects sexual orientation discrimination as Title VII violation

The Seventh Circuit issued a decision today in Hively v. Ivy Tech Community College, relying on prior circuit precedent to hold that Title VII does not forbid discrimination on the basis of sexual orientation. The opinion was written by Judge Rovner and joined by Judge Bauer. Judge Ripple concurred in the judgment and only that part of the opinion referring to the prior circuit precedent.

The opinion is the first circuit court opinion to be issued on the subject since the EEOC's decision in Baldwin v. Foxx last year, holding that sexual orientation discrimination is per se sex discrimination because: 1. but for the sex of the person, the romantic partner's sex would not be objectionable; 2. penalizing a person for the sex of their romantic partners is associational sex discrimination; and 3. requiring men to date or marry women and women to date or marry men is a core gender stereotype. In Baldwin, the EEOC had taken many circuit courts to task, pointing particularly at the Seventh Circuit for parroting its prior precedents without considering their foundation.

The line of precedent in the Seventh Circuit is particularly problematic. It started with the decision in Ulane v. Eastern Airlines that Title VII did not protect a pilot who was fired for undergoing gender transition because Title VII did not prohibit discrimination on the basis of "transsexualism." This was was one of the first decisions on an LGBTQ issue under Title VII. The decision in Ulane has been pretty thoroughly undermined by the Supreme Court's decision in Price Waterhouse v. Hopkins, which recognized that gender stereotyping can be sex discrimination. In recent cases, most courts have considered Price Waterhouse to have essentially overruled Ulane and have held that gender identity discrimination is sex discrimination.

Relying on a line of precedent with Ulane at its base aside, Judge Rovner's opinion is remarkable for the thoughtfulness of what follows a description of the circuit's precedent. She discusses Baldwin and quite thoroughly analyzes the cases relevant to whether there is some distinction between sex, sex stereotyping, and sexual orientation. Over and over, she acknowledges the lack of rational distinctions and the difficulties courts have had drawing lines to justify treating sexual orientation as something different from sex. She also lays out the paradox that the more stereotypically gay or lesbian the plaintiff, the more likely the case will be indistinguishable from a sex stereotyping case, and thus cognizable. Judge Rovner highlights the fact that associational discrimination claims have long been cognizable in race cases as another paradox or inconsistency in the precedent. Finally, she discusses the Supreme Court decisions on sexual orientation and the equal protection principles behind protection of LGBTQ individuals. 

In the end, though, Judge Rovner says she is bound by prior circuit precedent for two main reasons. Congress failed to amend Title VII to include sexual orientation in the definition of sex despite a number of legislative efforts between 1975 and 1982, nor did it pass the Employment Non-Discrimination Act in any of its prior incarnations between 1994 and 2013. And the Supreme Court has not yet held that sexual orientation discrimination is a violation of Title VII.

Moving forward, she points out that many district courts --"laboratories on which the Supreme Court relies to work through cutting‐edge legal problems" -- currently considering the issue are agreeing with the EEOC, suggesting, perhaps, that the Court act sooner rather than later. She also suggests that within the Seventh Circuit, some sexual orientation discrimination cases will be cognizable under Title VII because the context of the discrimination will be so intertwined with sex stereotyping that the issues cannot be untangled. But where stereotypes about the person are clearly linked with sexual orientation rather than sex, there will be no cognizable claim. In her words:

Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian “lifestyle,” including ideas about promiscuity, religious beliefs, spending habits, child‐rearing, sexual practices, or politics. Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co‐workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.

The opinion is an interesting mix of roadmap to finding that sexual orientation is part of sex for purposes of Title VII and hand-wringing that Congress and the Supreme Court haven't made that clear yet. Maybe a circuit split in the next year or so will set the stage. I'm not as confident that the membership of Congress will change in this election to allow for any movement on the Equality Act, but that is another possibility.

MM 

Kuo and Means on Collective Coercion

 

 

 

 

 

 

 

 

 

 

 

My wonderful South Carolina colleagues Susan Kuo and Ben Means have just posted their article Collective Coercion on SSRN, which will appear in the Boston College Law Review. The discussion of Friedrichs may be the most relevant part of the piece for many readers of this blog, but I highly recommend the entire article for its broader analysis of coercion in collective-choice situations. Using disaster buyouts and corporate tender offers as grist for discussion, Professors Kuo and Means address the false dichotomy drawn between internal collective-action difficulties and problems arising from external coercion. From the abstract:

"When a collective-choice situation places coercive pressure on individual participants, the law’s traditional protection of individual autonomy against coercion must be reconciled with its necessary role in resolving problems of collective action. On the one hand, the law might seek to remove coercion from the equation so that individuals are free to make their own decisions. On the other hand, the law might empower a central authority to decide, thereby solving a problem of collective action in order to maximize the group’s shared interests. The tension between these two approaches creates deep uncertainty for the regulation of collective-choice situations. It is palpable in the law’s conflicted response to corporate takeover bids in that applicable federal and state laws simultaneously enhance and diminish shareholder choice. Elsewhere — for example, the structure of government buyout programs, or the imposition of mandatory fees for nonunion employees — the intersection of coercion and collective choice may be overlooked altogether. By situating the literature on coercion in the context of offers that exploit collective-action problems, we propose a unifying framework for identifying and remedying what we have labeled collective coercion."

These types of issues seem likely to arise in a whole host of labor and employment law contexts--in that regard, my colleagues would welcome any specific suggestions. Feel free to contact them directly, or to post comments in the notes below.

- Joe Seiner

O'Brien on Whether Class-Action Waivers Violate the NLRA

Christine O'Brien (Boston College - Management) has just posted on SSRN her article (forthcoming 19 U. Pa. J. Bus. L. ___) Will the Supreme Court Agree with the NLRB that Pre-Dispute Employment Arbitration Provisions Containing Class and Collective Action Waivers in Both Judicial and Arbitral Forums Violate the National Labor Relations Act – Whether There is an Opt-Out or Not? Here's the abstract:

Should employers be able to require individual employees to sign away their rights to collective action as a condition of employment? The National Labor Relations Board has held in D.R. Horton and Murphy Oil USA that when employers require employees to waive their right to “joint, class, or collective claims addressing wages, hours, or other working conditions against the employer in any forum, arbitral or judicial” as a condition of employment, this violates the NLRA. Even allowing prospective employees to opt out of such class waivers does not cure the violation in the NLRB’s view according to its decision in On Assignment Staffing Services. A circuit split has developed on enforcement of the Board’s orders on the class waiver issue with the Fifth Circuit denying the NLRB enforcement, the Seventh affirming the Board, and the Eight Circuit joining the Fifth. There are several appellate cases pending before the Ninth Circuit which has yet to fully develop its stance and approximately sixty class waiver cases pending on appeal. The Supreme Court will likely be faced with deciding one of these appeals soon. This article discusses the NLRB’s and courts’ positions from several recent cases involving class waivers in individual employment dispute agreements. It suggests how the courts and the Supreme Court should rule as well as the possibility of legislative action.

rb

Suja Thomas on the Broken Jury System

 

Congratulations to Suja Thomas (Illinois) on the publication of her new book, The Missing American Jury (Cambridge 2016).  This is an important work from a leading scholar in the area.  As we are all well aware, very few employment cases actually make it to trial, making Professor Thomas' work directly applicable to workplace claims.  The book summary is below:

"Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government.

Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies."

More about the subject and book, including favorable reviews from David Boies, Mark Cuban, and the library journal, can be found at http://sujathomas.com.  I definitely recommend adding this work to your summer reading list!

-Joe Seiner

New Book: Invisible Labor

Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:

Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.

The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!

MM

EEOC Systemic Review

In an interesting and informative report, the EEOC has provided an extensive review of its systemic efforts over the last decade. The Government’s systemic program – – while always a critical function of the Commission – – has become particularly important of late given the difficulty now faced by private individuals trying to bring class-actions in employment discrimination cases (See here for a discussion of the Supreme Court’s Wal-Mart decision).

From the EEOC’s press release on the report:

“[T]he review reports a 94% success rate in systemic lawsuits. In addition, EEOC tripled the amount of monetary relief recovered for victims in the past five fiscal years from 2011 through 2015, compared to the monetary relief recovered in the first five years after the Systemic Task Force Report of 2006.  EEOC also tripled the rate of successful voluntary conciliations of systemic investigations from 21% in fiscal year 2007 to 64% in fiscal year 2015.” 

Systemic litigation has always been an interesting and unique area of EEOC litigation. If you are researching this area, the report is definitely worth reviewing.

– Joe Seiner

Facebook Posts After Controversial Events

Given the ease and accessibility of social media, workers sometimes do not contemplate the potential repercussions of making questionable posts to such outlets as Facebook.  Given the high number of political and/or controversial items in the news recently, there seem to be a number of situations arising where works are being penalized for their Facebook comments.  While employers are generally free to take such adverse actions against workers, there are some potential First Amendment (and even NLRA) concerns depending upon the workplace comments and nature of the employer itself (public v. private). 

One recent posting by a South Carolina fire captain appears indefensible, however.  Per reports, the fire captain made the following comments in response to protests by Black Lives Matters which shutdown a roadway:

"'idiots shutting down I-126. Better not be there when I get off work or there is going to be some run over dumb *****.' An hour later, another post went up: “Public Service Announcement,” it begins. 'if you attempt to shut down an interstate, highway, etc on my way home, you best hope I’m not one of the first vehicles in line because your ass WILL get run over! Period! That is all.'”   [paragraph taken directly from Newsone].

This incident is an important reminder that workers must use care when taking to the internet, and avoid such threatening and inappropriate comments.

- Joe Seiner

Thoughts on Carlson/Ailes Sexual Harassment Complaint?

Friend-of-Blog Lise Gelernter (University at Buffalo School of Law, State University of New York) sends along the complaint in the Gretchen Carlson/Roger Ailes (Fox News) sexual harassment case.  The complaint is available here: (Download Carlson-Ailes-Complaint), and as most of us are well aware, the case is an example of a high-profile employment discrimination matter that has garnered widespread attention and headlines.  As Professor Gelernter notes, a review of the complaint raises a number of interesting questions.  Most notably, Carlson appears to have sued Ailes individually under NYC's Human Rights Law.  Given the timeline of the events alleged (which span many years), it would be interesting to hear everyone's thoughts on the strategy behind bringing the suit a) individually and b) under city law.  Feel free to leave comments below!

--Joe Seiner

EEOC Updates - Sexual Orientation and Disparate Impact

Friend-of-blog, and past guest blogger David Lopez (General Counsel, EEOC) sends along a couple of important updates from the agency. First, the Commission recently entered into its first settlement of a sexual orientation case. From the news release:

“The U.S. Equal Employment Opportunity Commission (EEOC) announced [] that Pallet Companies, doing business as IFCO Systems, will pay $202,200 and provide significant equitable relief to settle one of EEOC’s first lawsuits alleging sex discrimination based on sexual orientation. . .

EEOC charged that a lesbian employee at IFCO's Baltimore facility was repeatedly harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. EEOC charged that the supervisor also made sexually suggestive gestures to her. IFCO retaliated against the female employee by firing her just days after she complained to management and called the employee hotline to report the harassment, according to the suit.”

This settlement obviously represents an important development in this area of the law.

Second, attached is an order from the U.S. District Court for the Eastern District of Pennsylvania (See Download CROTHALL.ORDER.6.28.16).  The order discusses a company’s obligations to keep disparate impact information under the Uniform Guidelines on Employee Selection Procedures. Though a technical decision, it is very important and I encourage those of you studying or litigating in this area to take a look at this case.

-- Joe Seiner

North Carolina Legislature Passes Bill to Restore Right to Sue for Employment Discrimination

    The North Carolina legislature has passed a bill that repeals the portion of HB2 that denies a right to sue to enforce that State’s employment discrimination statute (the North Carolina Equal Employment Practices Act, or EEPA). For press reports, see, e.g., here.  But that bill also reduces the time available to file such actions to one year.  And it does not repeal or otherwise change the rest of HB2 currently at issue in a US Department of Justice lawsuit.

    Although EEPA itself has no real enforcement mechanism, some judges had let plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy against certain kinds of employment discrimination.  (For more, see here.)  HB2 had supplanted this law by adding this sentence to EEPA: “This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.”  The legislature’s bill, passed last Friday, amends EEPA by removing the sentence that HB2 had added.  By itself, that would have restored EEPA law to pre-HB2 days. 

    But that bill also amends the one-year limitations-period statute, N.C. Gen. Stat. § 1-54, to have it cover a claim for “wrongful discharge in violation of the public policy set forth in G.S. 143-422.2.”  This change will reduce the limitation period for wrongful-discharge tort claims enforcing EEPA from three years, see Winston v. Livingstone College, 210 N.C. App. 486, 488 (2011), down to one year.  The text of this change, however, might also be taken to show the legislature has finally and expressly accepted the common-law tort of wrongful discharge as a viable way to enforce EEPA.

 

--Sachin Pandya