Thursday, September 28, 2017
Today, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.
Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again.
You can read more at SCOTUSBlog.
Wednesday, September 27, 2017
Consistent with Imre's post below, Alex Colvin (Cornell ILR) provides this news of his own study:
In a nice conjunction with the D.R. Horton cases arguments coming up, I also have a report out today on the use of mandatory employment arbitration clauses, as well as the incidence of class action waivers. The study was sponsored by the Economic Policy Institute (EPI).
This is a nationally representative, establishment-level survey of 628 employers. It allows me to get a measure of the percentage of employees covered by mandatory arbitration. The key take-away is that I find that 56.2 percent of private sector nonunion employees are covered by mandatory arbitration. Of the employees covered by mandatory arbitration, 41.1 percent have class action waivers in the procedures.
Although the methodology is different, there is some nice consistency between the results of Imre’s study and mine. His focus is on the Fortune 100 companies, where my reading is that he finds 80 use mandatory arbitration for some workers using a broad measure or 66 using a narrower measure. In some additional analysis of my survey results, I found that larger employers were more likely to use mandatory arbitration, with 65.1 percent of employers with 1000 or more employees having mandatory arbitration procedures. Our numbers are also generally consistent with regard to the proportion of mandatory arbitration procedures that include class action waivers. So my take-away is that the two studies' results reinforce the validity of each other’s findings.
In anticipation of the D.R. Horton cases to be argued next week, I am publishing a report about the use of arbitration clauses for workplace-related disputes. The key finding from my study, which is based solely on publicly-available data, shows that 80 of the Fortune 100 companies, the largest companies in America by revenue, have used arbitration agreements for workplace-related disputes since 2010, and almost half of these 80 have class waivers.
My study is limited in scope; I was just trying to get a better sense of the possible impact of the D.R. Horton cases and capture a snapshot of the use of arbitration clauses in the workplace among the top companies in America.
Here’s an early link to the study, which will go live tomorrow through the Employee Rights Advocacy Institute, of which I serve as a board member:
I hope these limited findings may be of some value and provide some context for the ongoing debates about the use of arbitration. I know I sound like a broken record sometimes, but I firmly believe the Federal Arbitration Act (FAA) was never intended to cover employment disputes. Based on the original purpose, history, and text of the FAA – and if the Supreme Court were writing on a clean slate, there should be no debate that the employees would win the D.R. Horton cases. Unfortunately, the Supreme Court has long abandoned any analysis of the history and text of the FAA. To paraphrase Justice O’Connor, the FAA as interpreted today is now solely a creation of the Supreme Court’s own imagination. I hope I am pleasantly surprised in a few months when the decisions are issued. However, if the Court rules in favor of the employees, it would be the first time in decades that the Supreme Court has significantly cut back on its expansive interpretations of the FAA. My bet is that the employers win, and the Court will unfortunately continue chipping away at our ability to access the judiciary.
Tuesday, September 12, 2017
A huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:
The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.
Edward Zelinsky (Cardozo) has just published, at 34 Hoifstra JLEL 301 (2017), ERISA Preemption After Gobielle v. Liberty Mutual: Completing the Retrenchment of Shaw. Here's the take-away:
There were other courses which the Gobeille Court could have taken. I argued, for example, that the best construction of ERISA Section 514(a) is to treat that section as reversing the normal presumption against preemption and instead presuming preemption when ERISA plans are affected by state law.
Gobeille chose a different path, completing the sub silentio retrenchment of Shaw. Gobeille confirms that, going forward, Traveler’s more restrained approach to ERISA preemption prevails over Shaw’s “plain meaning” approach to section 514(a). This is important for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as state taxes as they apply to the investment trusts of ERISA-regulated retirement plans.
Monday, September 11, 2017
Thanks to Tequila Brooks for passing along this information on recent labor reforms to Mexico's Constitution:
Canadian NGO Maquiladora Solidarity Network has published a great briefing Briefing Paper on recent labor reforms to Mexico's Constitution. The paper highlights what's at stake for labor justice reform and full realization of the rights to Freedom of Association and Collective Bargaining in Mexico - and provides a map to what has been accomplished so far and the road ahead for a complete transformation of Mexico's labor justice reform.
This briefing paper provides an overview of the process leading to the constitutional reform, an analysis of its content and possible implications, and an assessment of the issues surrounding the coming implementing legislation. The analysis is based on research and an in-depth consultation process carried out by the Maquila Solidarity Network (MSN) between February and May. That process included interviews with 16 Mexican and international labour rights experts from academia, the legal sector, trade unions, and civil society organizations, as well as other sectors.
By reforming Articles 107 and 123, the Mexican government moves actively toward honouring its commitment to workers, business and the international community to provide an impartial, unbiased, independent, and transparent labour justice system. If the reform and its implementing legislation bring all of the necessary safeguards into effect to address the problem of employer protection contracts, including the right for all union members to freely elect their leaders and to receive a hard copy of and vote on their collective bargaining agreements, they could bring Mexico’s legal framework more into compliance with the International Labour Organization’s (ILOs) fundamental Conventions 8710 and 9811 on freedom of association and the right to collectively bargain.
While the reform process is still underway, international brands, employers, trade unions, worker support groups, human rights organizations and the international community can continue to support the process by acknowledging progress so far and encouraging the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform and avoids the pitfalls described above. Pressure can be brought to bear to ensure the expeditious roll-out of the implementing legislation and to ensure that justice is brought to those who violate the laws in the future. They can also encourage the government to resolve outstanding conflicts, to cease registering newly signed employer protection contracts, and to ratify ILO Convention 98. Cross-sector outreach and coordination would be particularly helpful in advancing this work.
Friday, September 8, 2017
The Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.
The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue. As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.
The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences."
Wednesday, September 6, 2017
Friend of blog Michael Selmi (George Washington) has just posted on SSRN his fascinating new article, The Paradox of Implicit Bias and a Plea for a New Narrative. This piece takes an innovative new look at the issue of implicit bias and discrimination. From the abstract:
"Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive and uncontrollable. What has been overlooked, however, and this is the paradox, is that labeling nearly all contemporary discrimination as implicit and unconscious is likely to place that behavior beyond legal reach. And it turns out that most of what is defined as implicit bias could just as easily be defined as explicit or conscious bias. This article, therefore, challenges the common narrative by questioning the unconscious nature of implicit bias, and showing that such bias is less pervasive and more controllable than typically asserted. A critical review of the IAT will also reveal that implicit bias is most relevant to snap judgments rather than the more common deliberative decisions the legal system addresses. Implicit bias can certainly influence conscious decisions but it rarely dictates them. I will also discuss a recent spate of cases rejecting the implicit bias model to demonstrate that there is a clear mismatch between the implicit bias narrative and our governing legal standards of proof. As a way of realigning the narrative, I will propose that we move away from a focus on the unconscious, and the IAT, to concentrate instead on field studies that document discrimination in real world settings. In addition, by shifting the discussion to how stereotyping, without reference to the unconscious, influences behavior and leads to discriminatory decisions we can return to familiar judicial terrain as courts have been adjudicating claims involving stereotyping for decades."
It is wonderful to see such a fresh new perspective on this topic, and I definitely recommend that you take a look at this article if you have the opportunity.
Tuesday, September 5, 2017
Tequila Brooks has just posted an essay over at Intlawgrrls on Making the human rights case for including compensation for workplace injuries in free trade agreements. Here's an excerpt:
For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported. Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities.
Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should. Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights. While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues. They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.