Tuesday, January 31, 2017
Several fantastic new works of scholarship have been posted on SSRN over the last week. Each deserves its own post, but given my travel and the wealth of extraordinary material, all I can do is to highlight them here:
- Jessica L. Roberts (Houston), Glenn Cohen (Harvard), Chris Deubert (Harvard - Football Players Health Study), & Holly Fernandez Lynch (Harvard - Petrie-Flom Center), Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Penn. L. Rev. (2017): many existing evaluations of players, both at the NFL Scouting Combine and once drafted and playing for a club, seem to violate existing federal employment discrimination laws such as the ADA and GINA.
- Michael Duff (Wyoming), Are Workers' Compensation ‘Alternative Benefit Plans’ Authorized by State Opt out Schemes Covered by ERISA? The Brief, Publication of the American Bar Association Tort Trial and Insurance Practice Section (Spring 2016): state laws authorizing employers to opt-out of workers compensation likely violate ERISA.
- Tristin Green (San Francisco), America Is from Venus, France Is from Mars: Pinups, Policing, and Gender Equality, 2017 EREPJ (forthcoming 2017): "If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective."
- Andrew Elmore (NYU), The Future of Fast Food Governance, 165 U. Penn. L. Rev. Online (forthcoming 2017): Why are fast-food franchisors not joint employers? My editorial license: This article/issue takes on particular significance given the nomination of Andy Puzder as Secretary of Labor.
- Jonah B. Gelbach (U. Penn.), The Triangle of Law and the Role of Evidence in Class Action Litigation, 165 U. Penn. L. Rev. (forthcoming 2017): This article uses a "donning and doffing" case brought under Iowa state law incorporating the FLSA's overtime pay provisions to examine the use of statistical evidence in Rule 23(b)(3) class certification decisions.
Saturday, January 28, 2017
Bill Herbert (Hunter College) has posted on SSRN his article, The Winds of Changes Shift: An Analysis of Recent Growth in Bargaining Units and Representation Efforts in Higher Education, which is being published in the Journal of Collective Bargaining in the Academy. The abstract:
This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013.
The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase in certified private sector faculty units over the number of private sector units identified by the National Center for the Study of Collective Bargaining in Higher Education and the Professions in 2012, while the increase in the public sector has been 2.1%. The largest number of newly certified units involves non-tenure track faculty at private non-profit institutions. The second largest group of new units in higher education involves tenured and tenure-track faculty at public institutions. The average final election tallies demonstrate strong support for unionization among higher education faculty: 72.8% among private sector tenured/tenure-track and contingent faculty, and 73.3% among public sector tenure-track and contingent faculty.
The article demonstrates that unionization efforts by private sector tenured and tenure-track faculty and faculty continue to be adversely impacted by two judicially-created doctrines, despite modifications made to the applicable standards in a 2014 National Labor Relations Board decision. It also examines pending and completed unionization efforts by graduate and research assistants in light of the recent NLRB decision finding that private sector graduate student employees are entitled to the associational rights guaranteed under federal labor law.
Among other things, the article highlights some of the unique characteristics of collective-bargaining in higher education. Of course, a new Board may shift some of these trends by, for example, flipping again on the question of graduate students' status as employees.
Friday, January 27, 2017
Unlikely, but Charlie Morris (SMU emeritus) engages in some thoughtful, self-described wishful thinking. His essay over at onlabor is How President Trump Could Surprise with Improvement for the NLRB and a Boost for the Middle Class. Here's an excerpt:
Considering that [President Trump] won his election with the critical votes of many union men in Michigan, Ohio, Pennsylvania, and Wisconsin, what position will he likely take toward organized labor? Probably no one, including Trump himself, knows the precise answer to that question, or whether he will continue or worsen the GOP’s endemic negative attitude toward unions. My own view of what he might do—which is colored by my hope as to what I think he should do—stems from his previous labor-relations experience and public statements..., plus my tentative consideration and appraisal of his basic nature—which seems to be the same as President Obama’s, who said “I don’t think he is ideological. Ultimately he is pragmatic.” .... I would therefore like to believe that he will apply [such pragmatism] to matters involving labor-relations, especially since he claims to “have great relationships with unions” and has expressed his disdain for so many major policies of the Republican establishment—but in truth I will be totally surprised if that happens. If, however, Trump should prove to be a non-ideological President who will oppose key elements of the establishment—though his announcements of major appointments to date suggest otherwise—he should be amenable to allowing the NLRB to function according to its true statutory policy rather than treating it in the manner of his Republican predecessors, all of whom appointed critical numbers of Board Members and NLRB General Counsels who were opposed to the NLRA’s basic policy of favoring collective bargaining, a practice that contributed substantially to the Board’s failure to adequately enforce the Act.
Yesterday, the NLRB announced that the president has appointed NLRB Member Philip Miscimarra as chairman. According to the announcement:
“It is an honor to be named NLRB Acting Chairman by the President,” Miscimarra said. “I remain committed to the task that Congress has assigned to the Board, which is to foster stability and to apply the National Labor Relations Act in an even-handed manner that serves the interests of employees, employers and unions throughout the country.”
Miscimarra also recognized former Chairman Mark Gaston Pearce for his service on the Board. Pearce will continue as a Board Member in a term expiring on August 27, 2018 and has served as a Board Member since 2010 including Chairman since 2011. The Board also currently includes Board Member Lauren McFerran, whose term expires on December 16, 2019. Two Board Member seats are currently vacant.
Miscimarra has served as a Board Member since August 7, 2013. He was nominated by President Obama on April 9, 2013, and he was approved unanimously by the Senate Committee on Health, Education, Labor and Pensions on May 22, 2013. He was confirmed by the Senate on July 30, 2013, and his current term expires on December 16, 2017.
Before joining the Board, Acting Chairman Miscimarra was a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, and a labor and employment law partner with Morgan Lewis & Bockius LLP in Chicago. He also previously worked as a labor and employment attorney with Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP).
Miscimarra received his Juris Doctor from the University of Pennsylvania Law School; a Masters in Business Administration from the University of Pennsylvania’s Wharton Business School; and a Bachelor of Arts degree from Duquesne University.
I got a chance to meet Chairman Miscimarra at a conference a couple of years ago. Although we don't always agree on the issues, I thought he was very thoughtful and had some useful insights from his time in practice.
"[Acting Chair] Lipnic has served as an EEOC Commissioner since 2010, having been nominated to serve by President Barack Obama, and confirmed by the Senate, initially for a term ending on July 1, 2015. President Obama nominated her to serve a second term ending on July 1, 2020, and she was confirmed by the Senate on November 19, 2015."
An interesting article on the appointment on Reuters can be found here.
-- Joe Seiner
Thursday, January 26, 2017
Hugh Baran, a 3L at NYU School of Law, has organized a petition opposing Andrew Puzder's nomination as Secretary of Labor. Thus far, there are over 1,000 signatories to the letter, which among other things, states:
As students and professors at the nation’s law schools, we are united in opposition to President Trump’s nomination of CEO Andrew Puzder to lead the U.S. Department of Labor. Mr. Puzder is a fast-food CEO who led a company with a well-documented record of labor violations, wage suppression, and sexist advertising. He is unfit to lead a Department that is supposed to uphold basic labor and workplace safety standards for the nation’s wage earners.
If you want to sign or read the letter, you can find it here.
Wednesday, January 25, 2017
Some recent labor and employment stories that may be of interest:
- The NY Times explores why many women are not participating in the work force (hint, family caregiving is a big part of the story).
- A Texas teacher whose license to teach was suspended for two years for using edible marijuana in Colorado, where it's legal, wins an initial step in her challenge to the suspension.
- Uber reaches $20 million settlement with the FTC over exaggerated claims it made to drivers about earnings and car financing.
Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans. Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them. This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.
Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings. Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.
Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment. Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.
What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable. Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not. Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter.
Into the breach, a number of proposals have emerged to provide independent workers or independent contractors, who work for gig companies (see a recent law introduced in New York), with some form of portable, occupational retirement benefit. For instance, it has been proposed that retirement coverage be offered in the same way as health coverage has been under the ACA. An expanded Social Security could play the role of Medicaid for low income workers, employers could still offer retirement plans, but employees who lack access could purchase retirement plans on a “federal backstop plan.” The biggest problem with this approach is that it does not necessarily require workers to receive retirement benefits through their employer and therefore, such workers would not be employees entitled to the consumer protections of ERISA.
A different set of proposals involves private-sector companies stepping up to provide retirement programs on their own or in cooperation with gig companies. For instance, private internet companies, like Peers, Honest Dollar, and Betterment, are offering to provide retirement benefits, as well as other benefits and human resource services, to gig companies. However, if gig workers are offered retirement benefits by their employers under this model, such benefits are a mere gratuity, something that the employer has no responsibility for maintaining or administering as a fiduciary.
It is therefore essential that individuals who work in the sharing economy be considered common-law employees for retirement purposes under the control test established in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), so as to qualify for consumer protections under the Employee Retirement Income Security Act of 1974 (ERISA). Indeed, the crux of ERISA relies upon the fact that plan assets are held in trust and those that discretionarily operate, manage, or administer them are fiduciaries and/or trustees of the plan. Such fiduciary status means that plan fiduciaries must put their own self-interest aside, and act for the sole interest of plan participants and beneficiaries.
The good news is that there is an increasing trend of finding gig workers to be employees under ERISA. Although not directly under ERISA, employing a similar control test in the United Kingdom, two Uber drivers were recently found to be employees for purposes of British minimum wage laws. In Switzerland, a Swiss insurance agency found an Uber driver to be an employee for whom the company must pay social security contributions. Similarly, in the United States, a recent decision from the California Employment Development Department, found an Uber driver to be an employee for purposes of eligibility for unemployment law. As these laws rely on similar factors as the control test under ERISA, there is good reason to believe that workers, especially those that receive a majority or their exclusive income from gig companies and work full-time hours, will also be considered employees and qualify for ERISA protections. In any case, and this issue is far from being definitively decided, there is at least a reasonable argument that some gig workers, including Uber drivers, qualify as employees under the common-law control test of Darden.
Assuming for the sake of argument that some gig workers will qualify for protection under ERISA as common-law employees, the best mechanism for providing these employment-based retirement benefits is through open multiple employee pensions (“open MEPs”). These open MEPs would allow unaffiliated employers to pool their resources and offer retirement plans to their employees under the statutory protections of ERISA. More specifically, open MEPs permit two or more unrelated private employers to adopt a defined contribution pooled employer plan (PEP) as long as the PEP has a pooled plan provider (PPP) as the named fiduciary to the plan. The only fiduciary duty that members of the PEP would retain would be to prudently select, and then monitor, the PPP, thus limiting their exposure to potential fiduciary liability. Additionally, the price tag of permitting the formation of these organizations is relatively low: 3.2 billion dollars over 10 years from loss of tax revenue from the additional tax deduction for employers and tax-exempt status for employee contributions.
Open MEPs are gaining traction legislatively. Senator Orrin Hatch introduced the Retirement Enhancement and Savings Act of 2016, which would have permitted open MEPs for private sector employees and allow multiple employers to pool retirement funds into a single 401k retirement plan starting in 2020. Under current law, independent employers who wish to pool funds for retirement plan purposes must demonstrate a common interest. Moreover, another difficulty under current law is the so-called one-bad-apple rule, that disqualifies the entire MEP from favorable tax treatment if one employer does not meet the applicable tax rules.
Senator Hatch’s open MEP proposal would remove the common interest requirement and the one-bad-apple rule. In the recent past, this proposed model has had wide bipartisan support. Unfortunately, Hatch’s bill was not enacted in 2016, yet it is not too far-fetched, given current legislative developments, that the open MEP bill will be reintroduced during the coming Trump presidency and will soon be available for multiple employers in the private sector.
As Senator Elizabeth Warren perceptively recognized during hearings on Hatch’s bill, this new approach is well-suited for gig employees. The bill would allow various gig companies to pool their contributions to a common 401k retirement plan, with all the advantages that come with belonging to a large fund. Most importantly, such funds would have the advantages of providing participating employees diversification, low costs, reporting and disclosure requirements, and fiduciary protections based on the trust-based status of such 401k plans.
I explore the topic and proposal in greater depth in a recently-published paper available via SSRN.
Monday, January 23, 2017
I've mentioned on Facebook that I've spent the last couple of weeks teaching at a Saigon labor college. I'm writing now to give an update -- and a heads-up to anyone who might be interested in either a short-term gig or a longer-term Fulbright here. Both, I think, would be terrific options.
Wednesday, January 18, 2017
Elizabeth Tippett (Oregon), Charlotte S. Alexander (Georgia State), and Zev J. Eigen (Littler) have just published their explosive article When Timekeeping Software Undermines Compliance (19 Yale J.L. & Tech. 1 ). When I say "explosive" I am not exaggerating one iota. Their article exposes how choices and algorithms deliberately built into timekeeping systems cheat workers out of time worked or overtime owed. I am reproducing the abstract below, but strongly encourage everyone to read the full article. I expect this article will spawn loads of high-dollar litigation; more optimistically, I would hope the article will encourage software firms and their corporate clients to be far more diligent in complying with wage & hour law.
Here's the abstract:
Electronic timekeeping is a ubiquitous feature of the modern workplace. Time and attendance software enables employers to record employees’ hours worked, breaks taken, and related data to determine compensation. Sometimes this software also undermines wage and hour law, allowing bad actor employers more readily to manipulate employee time cards, set up automatic default rules that shave hours from employees’ paychecks, and disguise edits to records of wages and hours. Software could enable transparency, but when it serves to obfuscate instead, it misses an opportunity to reduce costly legal risk for employers and protect employee rights. This article examines thirteen commonly used timekeeping programs to expose the ways in which software innovation can erode compliance. Drawing on insights from the field of behavioral compliance, we explain how the software presents subtle situational cues that can encourage and legitimize wage theft. We also examine gaps in the Fair Labor Standards Act’s recordkeeping rules – unchanged since the 1980s – that have created a regulatory vacuum in which timekeeping software has developed. Finally, we propose a series of reforms to those recordkeeping requirements that would better regulate timekeeping data and software systems and encourage wage and hour law compliance across workplaces.
Monday, January 16, 2017
On her blog, Friend of the Court, Sandra Sperino discusses the new Third Circuit decision in Karlo v. Pittsburgh Glass Works. In that case, the Third Circuit held that the ADEA permits "subgroup" disparate impact claims--that is, claims that an employer policy creates an unlawful disparate impact against a certain subgroup of a protected class.
Check it out, definitely worth a read.
Friday, January 13, 2017
Today, the Supreme Court announced that it would review the NLRB's D.R. Horton rule, which concludes that employment class action waivers can violate Section 8(a)(1) of the NLRA. The Court consolidated a group of cases under review that we be familiar to readers of the blog: NLRB v. Murphy Oil, Ernst & Yong v. Morris, and Epic System v. Lewis. Should be an interesting case and here's hoping that my follow blogger Charlie Sullivan and his co-author Tim Glynn picks up a Supreme Court citation on the way.
We'll keep you posted on the oral argument and developments that follow.
Thursday, January 12, 2017
The EEOC just announced that the public input period is now open for its proposed Anti-Harassment Guidance. The guidance is available here, and the input period ends on February 9, 2017. From the press release:
"The public is invited to submit input about the proposed Enforcement Guidance on Unlawful Harassment via www.regulations.gov. Alternatively, members of the public may send written feedback to: Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507. Please provide input in narrative form and do not submit redlined versions of the guidance document. Input will be posted publicly on www.regulations.gov, so please do not include personal information that you do not want made public, such as your home address or telephone number."
This is a great opportunity to review and weigh in on this important guidance.
Wednesday, January 11, 2017
Last week, outgoing Labor Secretary Thomas Perez authored an exit memorandum outlining the present and future of employment rights. The memo is very well written and makes some compelling arguments in a number of areas. The Secretary touches on several of the high-profile topics of the day, including wages, equal pay, retirement benefits, worker compensation, child labor, family leave and worker categorization in the modern economy. A brief excerpt, which discusses the future of employment in the gig sector:
“The largest question for the next administration and beyond is how we embrace innovation in this dynamic economy while ensuring that the changing nature of work continues to honor the bedrock principle that workers are not in it alone in securing basic protections. Today, due in part to new business models and the more transient and attenuated employment relationships that characterize the fissuring of work, we are seeing more workers lose the assurance of a fair wage guaranteed by the FLSA, the support promised by the workers’ compensation system when they are injured on the job, and the promise of a secure retirement provided by defined benefits plans.”
Because it covers such a broad range of areas, I recommend taking a look at this memo to those who have any interest in labor and employment law.
-- Joe Seiner
Thursday, January 5, 2017
A city in Sweden experimented with a six-hour work day for a group of nurses working in elder care. The city has decided to scrap the approach, however, citing the excessive costs. From MSN/Bloomberg news:
“The take away was largely positive, with nurses at the home feeling healthier, which reduced sick-leave, and patient care improving. . . But the city has no plans in making the measure permanent or broadening it to other facilities. To do that it would need much more money and even help from the national government. To cover the reduced hours for the 68 nurses at the home it had to hire 17 extra staff at a cost of about 12 million kronor ($1.3 million).”
It is interesting to see local governments looking into cutting worker hours as well as the impact of these types of approaches.
-- Joe Seiner
Wednesday, January 4, 2017
The EEOC issued regulations yesterday on the role of the federal government to engage in affirmative action for workers with disabilities. The EEOC notes the government's role as a "model employer," and provides regulations on how the government can achieve this standard. The EEOC also provides a question and answer document to further assist with compliance issues. From the press release:
"The regulations set goals for federal agency workforces of 12 percent representation for individuals with disabilities and 2 percent for individuals with "targeted" disabilities. Targeted disabilities are defined as disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others. The goals apply at both higher and lower levels of federal employment.
The regulations also require federal agencies to provide personal assistance services to employees who need them to perform basic human activities at work, such as eating and using the restroom. These services will allow individuals with significant disabilities to enjoy the opportunity and independence of paid employment, which may reduce the amount of taxpayer funds spent on public disability benefits."
These regs are definitely worth taking a look at if you research or write in these important areas.