Wednesday, May 31, 2017
This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a substantially revised treatment of discrimination law, expanded discussion of employment-based health care, and takes into account a number of recent Supreme Court decisions and the use of executive orders. It further addresses how employment law directly impacts the modern economy, discussing how this area of the law effects on-demand workers in the technology sector.
Tuesday, May 30, 2017
TaxProf Blog and Leiter Law School Reports have been covering the complaint by Columbia Law professor, George Fletcher. Very briefly, he alleges that Columbia discriminated against him based on his age by refusing to allow him to teach a required LLM course (Columbia cited poor evaluations), which among other things, might mean that he falls below the required number of teaching hours for the year. Among the other factors that threaten his teaching load is his desire to maintain his tradition of working a full semester in Israel and the fact that the elective course he was assigned to teach is at risk of being cancelled for low enrollment.
I obviously don't know what's really going on here, but I've got to say that the former Academic Affairs Dean in me sees several red flags about his teaching that makes me less inclined to be sympathetic to his claim. That's not to mention the fact that part of the problem is that he expects to be able to leave for half the year, every year.
Monday, May 29, 2017
In a somewhat overlooked portion of the recent proposed budget of the Trump administration, the President has outlined a proposal to merge the OFCCP and EEOC. As part of the merger, the budget would slash funding to the OFCCP and cut the workforce of the agency. There was immediate resistance in the civil rights community over the proposed merger, which would require Congressional approval. There is an excellent article on the implications of this proposal over at Bloomberg/BNA. From the article:
"The EEOC and the DOL’s Office of Federal Contract Compliance Programs would be combined to create 'one agency to combat employment discrimination,' according to the president’s proposed budget for fiscal year 2018. . . The agencies are expected to 'work collaboratively' to coordinate the transition by the end of fiscal 2018."
It is always difficult to gauge the likelihood of such a proposal actually going into effect, particularly where there is such strong resistance. We will continue to follow the potential impact of the proposed budget on all aspects of workplace law here.
Decades ago, the Supreme Court read Title VII's ban on employment discrimination because of “national origin” not to cover employment discrimination because of citizenship or immigration status. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973). There, the Court relied on, among other things, the sparse legislative history, and that Congress had already required some federal employees to be citizens: “[W]e cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of federal employment and, at the same time, prevent private employers from doing likewise.” Id. at 91.
In a newly-posted working paper (“Immigrant Workers and Workplace Discrimination: Overturning the Missed Opportunity of Title VII under Espinoza v. Farah”), Maria Ontiveros argues that Espinoza---by reading "national origin" in Title VII to only cover country-of-origin discrimination----got it wrong and should now be overruled. Here's the abstract:
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
The paper is forthcoming in the Berkeley Journal of Employment and Labor Law.
Wednesday, May 24, 2017
The 12th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held
September 15 and 16, 2017 at Texas A&M University School of Law in Fort Worth, Texas. There will also be a reception on the evening of September 14, 2017. The registration page is now online. That page also has a link about the hotel and travel information. The deadline for submissions of abstracts is August 16, 2017. Other key highlights and expectations for this year’s COSELL:
- We expect to start Friday morning and end Saturday late afternoon as opposed to Saturday early noon closings from prior years. This will provide opportunity for more papers to be presented and get feedback from many more participants. We hope that you will consider attending all day Friday and until 5 p.m. on Saturday, September 16, 2017 so that we can spread out the sessions and have less competing sessions.
- We expect to have a special program on Saturday, September 16, 2017 involving one of our sponsors, the International Society for Labour and Social Security Law.
- We expect to be able to offer publication in the Texas A&M Law Review to a couple of papers presented at COSELL if those papers can be submitted in final format by Friday, September 29, 2017 and subject to approval by the Texas A&M Law Review Board for its Winter 2017 Volume.
- We expect that the Employee Rights and Employment Policy Law Journal may be able to accept some papers presented at COSELL as well and you should explore the parameters with Professor Marty Malin at Chicago Kent Law School as that journal will be holding an Editorial Board meeting during COSELL.
- Presentation of the Paul Steven Miller Memorial Award (senior faculty) and Michael J. Zimmer Memorial Award (junior faculty).
If you have any questions about the 12th Annual COSELL to be held at Texas A&M University School of Law in Fort, Worth Texas on September 15‐16, 2017, please do not hesitate to contact Professor Michael Z. Green.
The call for papers for the annual Centre for Human Rights disability rights conference to be held 7-8 November 2017 at the University of Pretoria is now out on the Centres' website. The theme for the conference this year is Domesticating the CRPD in the African region: A focus on access to justice and legal capacity. Important dates:
- Deadline (Abstracts): 16 June 2017.
- Authors will be notified by: 26 June 2017 whether their abstract has been accepted.
- Deadline (Papers): 8 September 2017.
- Authors whose abstracts are accepted will be required to submit their full papers by 8 September 2017.
- Applicants will be notified by 30 September 2017 whether their application for funding has been accepted.
- Date of Conference: 7-8 November 2017.
Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.
Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA. Judge Leeson said “yes.” The opinion is at .
Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide). Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.
Saturday, May 20, 2017
Friday, May 19, 2017
There is a great article on age discrimination over at Forbes.com. The article discusses the litigation against RJ Reynolds and PriceWaterhouse Coopers. More interesting, however, is a discussion of a study of gender/age discrimination performed in the hiring context. From the article:
"based on a recent Federal Reserve Bank of San Francisco study[,] Researchers created realistic, but fictitious, resumés for young (aged 29 to 31), middle-aged (49 to 51), and older (64 to 66) job seekers and sent out more than 40,000 applications for over 13,000 low-skill positions in 12 cities. Older applicants, particularly older female applicants, were much less likely to be contacted for interviews — in some fields, as much as 47% less likely."
Discrimination studies performed in the hiring context are particularly useful as many of the variables can be controlled. There are a number of great other studies out there, but this one is interesting as it looks at the intersection between both age and gender. I definitely recommend taking a look at the article if you get the chance.
Thursday, May 18, 2017
Earlier this month, the US EEOC issued its digest on employment discrimination. The digest, a quarterly publication put together by the office of federal operations, is an excellent resource for both practitioners and academics. The current digest examines some interesting aspects of age discrimination law. From the press release:
"This edition (Fiscal Year 2017, Volume 2) features a special article entitled, "Age Discrimination: An Overview of the Law and Recent Commission Decisions." This comprehensive article discusses the analysis of age discrimination claims and recent case law - including U.S. Supreme Court decisions and Commission decisions.
"Unlawful age discrimination has no place in the federal sector workplace," said Carlton M. Hadden, director of the EEOC's Office of Federal Operations (OFO). 'It is anathema to the federal government's goal of being a model employer. Age-related employment decisions are often based on myths, fears and stereotypes about the talent and ability of older workers. This article is an excellent resource to help eliminate those false notions.'"
These types of free governmental resources provide excellent sources of information for those of us researching these issues.
-- Joe Seiner
Wednesday, May 17, 2017
On Monday, the Supreme Court asked the Solicitor General to weigh in on the issue presented for cert. in Clark v. Virginia Department of State Police, 292 Va. 725 (2016): whether Congress can use its war powers to abrogate state sovereign immunity. This case involves a police officer who alleged that he was denied a promotion because of his service in the U.S. Army Reserves, in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the current version of earlier military employment protections originally enacted in 1940 and expanded and modified many times in the intervening years. Among other things, USERRA prohibits employment discrimination against individuals because of their military service and guarantees reemployment rights following such service (for those interested in family leave reform, USERRA provides an example of more robust protections, including periods of just cause protection and promotion rights).
In 1998, Congress enacted an amendment to USERRA expressly permitting private rights of action against state employers in state court. This was an understandable reaction to the Supreme Court's 1996 Seminole Tribe of Florida v. Florida decision, where it held that Congress' attempt to abrogate states' 11th Amendment sovereign immunity against private rights of action for monetary remedies was invalid. It was largely assumed at the time that because the 11th Amendment only spoke of federal jurisdiction state courts could still be used, but the Court in Alden v. Maine (1999) later gave states immunity in their own courts, explaining that state sovereign immunity was part of the Constitution's design and not limited to the text of the 11th Amendment. USERRA's amendment, therefore, was then called into question and resulted in several court rulings finding it unconstitutional. These rulings, in my opinion, are wrong.
I wrote directly about this issue in Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity?, 34 Seton Hall L. Rev. 999 (2004). In the article, which also provides an overview of USERRA and a now-dated survey of state-law military employment protections, I argue that Supreme Court precedent allows for USERRA's abrogation of state sovereign immunity. The very brief version of my argument is that courts have misread some admittedly loose language by the Supreme Court suggesting that Congress can never use Article I to abrogate state sovereign immunity. By delving into the history of state sovereign immunity and the federal war powers under the plan of the Constitution, I argued that not only can Congress use its war powers to abrogate, but the case is particularly strong in this area, despite being under Article I. This argument was subsequently validated in part by Central Virginia Community College v. Katz (2006), in which the Court held that states "agreed in the plan of the Convention not to assert any sovereign immunity defense they might have had in proceedings brought pursuant to 'Laws on the subject of Bankruptcies.'” My argument, very simply, is that if Congress can use its bankruptcy power to abrogate then surely it can use its war powers as well.
By asking for the Solicitor General's views in Clark, it appears that some Justices agree that the issue is not as straightforward as the Virginia Supreme Court in Clark, and other courts, have suggested. This is an important issue. We have sent many military personnel into active duty across the world over the last several years and have numerous others who are members of the Reserves or National Guard. Many of these military individuals are employed by states that do not allow private military employment discrimination actions for monetary damages (the police officer in Clark is a typical example). Hopefully, the Court will grant cert. and clarify this issue.
Tuesday, May 16, 2017
Kathy Stone has been awarded the 2017 LLRN Bob Hepple Award for Lifetime Achievement in Labour Law, along with Prof. Kazoo Sugeno from Japan. The presentation will take place at this summer LLRN meeting in Toronto. According to LLRN:
The goal of the Award is to acknowledge exceptional and longstanding contributions to labour law scholarship. Such recognition from the global community of labour law scholars, which the LLRN represents, is intended to be meaningful both for the Award recipients and for the community bestowing this honour. The members of the Award Nominations Committee this year were Takashi Araki, Hugh Collins, John Howe, Kerry Rittich, and Mia Ronnmar (those interested in the guidelines detailing the process can find them at the LLRN website).
The Awards will be presented at a ceremony during the upcoming LLRN3 conference in Toronto. In the meantime, warmest congratulations to Kathy and Kazuo for this well-deserved honour!
You can also see UCLA's announcement here.
Saturday, May 13, 2017
Job applicants with criminal records are much less likely than others to obtain legitimate employment, a problem that recent legislation, including Ban the Box, has attempted to address. The success of any remedial strategy depends on why hiring firms impose a hiring penalty and whether their concerns are founded on an accurate view of how ex-offenders behave on the job if hired. Little empirical evidence now exists to answer these questions. This paper attempts to fill this gap by examining firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes. Despite these differences, individuals with criminal records have an involuntary separation rate that is no higher than that of other employees and a voluntary separation rate that is much lower. Employees with a criminal record do have a slightly higher overall rate of discharge for misconduct than do employees without a record, although we find increased misconduct only for sales positions. We also find that firms that do not use information about criminal backgrounds seem to compensate by placing more weight on qualifications that are correlated with a criminal record, such as low educational attainment.
Friday, May 12, 2017
A recently evolving topic in the labor and employment field is the extent to which employers can fire workers for posts on Facebook. There really isn't that much litigation out there at this point on this important topic. However, a jury yesterday awarded a city of Charlotte, North Carolina employee $1.5 million in a case which touched on this issue.
In the matter, the city had purportedly fired the worker for Facebook comments it found inflammatory and disruptive. A jury, however, concluded that the termination was actually in retaliation for her safety complaints related to new office construction. It's a really interesting case, and you can read more about it in an article here in the Charlotte Observer.
-- Joe Seiner
Thursday, May 11, 2017
Reports are out today of two probable nominees to the NLRB. According to Politico's Morning Report report, the president intends to nominate William Emanuel and Marvin Kaplan, and both are currently undergoing FBI background checks. Emanuel is an attorney at Littler Mendelson's L.A. office, while Kaplan has been working in the federal government, currently at the Occupational Safety and Health Review Commission and earlier as Republican counsel for the House Education and the Workforce Committee. An interesting note is that Bill Seaton had been rumored to be on the shortlist and it's possible that having worked as a "union buster" may have worked against him (or not, no one's saying at this point).
Readers may be interested in a new report from the Center for Progressive Reform: Preventing Death and Injury on the Job: The Criminal Justice Alternative in State Law. An excerpt from the summary:
Workers and advocacy groups are turning to the states as possible avenues for successful reform, urging local prosecutors to pursue crimes involving worker fatalities and serious injuries under their states’ general criminal laws, as the Massachusetts prosecutor did in the case against Edmund Godin for involuntary manslaughter more than 30 years ago. To date, only a few prosecutors in a handful of states (e.g., California, Illinois, Massachusetts, Michigan, and New York) have actively pursued such cases, but those prosecutors have been remarkably successful. Such advocacy efforts suggest that criminal prosecutions are increasingly important for punishing and deterring employer neglect and malfeasance.
In 2014, Center for Progressive Reform Member Scholars and policy analysts published Winning Safer Workplaces: A Manual for State and Local Policy Reform, which discussed this reform effort, along with a series of workers’ rights campaigns beginning to take hold at the state and local level. Following up on the 2014 manual, this new manual offers more detailed assistance to advocates who want to enhance criminal prosecutions for crimes against workers.
The Annual meeting of the ABA International LEL Committee just wrapped up in Dublin. I was pleased to be joined here by Laura Cooper (Minnesota), Marley Weiss (Maryland), and Ben Sachs (Harvard). Anyone interested in becoming involved in this Committee can contact me or any of these folks. Topics covered the gamut of LEL law and practice, and included:
- Ireland: The Changing Labor and Employment Landscape on the Emerald Isle
- Brexit, Trump and Beyond: How the New Political Landscapes in the U.S. and U.K. Will Impact Workplace Law around the World
- With Trump Towering in the U.S., How Will Labor & Employment Laws and Standards Change at Home?
- With the U.K. Exiting the EU and Similar Movements Gaining Ground Elsewhere, How Will Labor and Employment Laws & Standards Change Abroad?
- Globalization’s Impact on Labor and Employment Law: How the Issue Is Shaping the Workplace
- Enforcing Responsible Business Conduct in a Changing Political Environment
- Where the Work Gets Done: The Changing Climate for Corporate Decision-making
- Anti-Immigration Efforts in the U.S., U.K. and E.U. and Their Impact on Labor & Employment Law and Practice
- Hot Cross-Border Issues
- Please Mind the Gap: A Cross-Border Comparison of New Laws and Initiatives to Equal Pay
- Company Relocations and Restructurings: More Brexit Implications for Multinationals and their Workforces
- The Legal and Other Challenges to the “Gig Economy” around the Globe: What's the Score?
- Industry Day: Exploring Key Global Labor and Employment Issues in Three Industry Groups
- Pharma and Health Care
- Energy and Infrastructure
Matthew Knepper (U.S. Bureau of Economic Analysis) has just posted on SSRN his article (forthcoming J. Labor Econ.) When the Shadow Is the Substance: Judge Gender and the Outcomes of Workplace Sex Discrimination Cases. Here's the abstract of this important article, which quite literally takes research on implicit bias to a completely different level:
The number of workplace sex discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) approaches 25,000 annually. Do the subsequent judicial proceedings suffer from a discriminatory gender bias? Exploiting random assignment of federal district court judges to civil cases, I find that female plaintiffs filing workplace sex discrimination claims are substantially more likely to settle and win compensation whenever a female judge is assigned to the case. Additionally, female judges are 15 percentage points less likely than male judges to grant motions filed by defendants, which suggests that final negotiations are shaped by the emergence of the bias.