Wednesday, November 29, 2017
In the flood of harassment news the last few weeks, one of the themes that has emerged is that the guys involved got away with bad behavior for a really long time. For at least some of them, the lecherous behavior was something of an open secret in their workplaces or communities. There are a number of reasons that this conduct went on for so long, but one that isn't being addressed as much is how the legal threshold for actionable harassment leaves room for so much bad conduct. This is why the fantastic editorial in the New York Times, Boss Grab your Breasts? That's Not (Legally) Harassment by Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) is so important and timely.
Sandra and Suja trace the development of the severe or pervasive standard the Court adopted in Meritor Savings Bank v. Vinson, through the lower courts, noting the margins--what is clearly actionable and what is clearly inactionable--leave a large middle ground. In that middle ground, courts lean towards dismissal. This is just one more important way that Sandra and Suja are documenting how the legal rules governing discrimination claims have moved to systematically disadvantage workers.
Wednesday, November 15, 2017
Deborah Widiss (Indiana) has just posted a new book chapter on SSRN: Addressing the Workplace Effects of Intimate Partner Violence, in Violence and Abuse in the Workplace (Cary Cooper & Ronald Burke eds., forthcoming 2018).
Here's the abstract:
Although most physical violence against intimate partners occurs in the home, intimate partner violence (IPV) also affects workplaces. It often causes absences, productivity losses, and employee turnover; less commonly, perpetrators physically attack their intimate partners at work. This book chapter discusses best practices for decreasing workplace disruptions and the risk of workplace violence caused by IPV, and it explains legal standards that may apply. The primary focus is the United States, but research and legislation from other countries is also included. It also identifies websites that provide research, model policies, and other tools for organizations seeking to address IPV, including resources regarding employment of perpetrators of IPV.
This topic feels especially salient given the role of family violence in recent high profile shootings. This chapter looks like a helpful resource, and I'm looking forward to the book's release.
Sunday, November 12, 2017
Shu-Yi Oei and Diane Ring (both Boston College) have just posted on Tax Prof Blog The Senate Tax Bill and the Battles Over Worker Classification. Their post is extensive and detailed and well worth a full read. Here's a quick summary; the take-away is in bold at the bottom:
Senate Republicans released their version of tax reform legislation on Thursday, November 9. The legislative language is not available yet, but the Description of the Chairman’s Mark (prepared by the Joint Committee on Taxation) suggests that one of the key provisions in the bill will clarify the treatment of workers as independent contractors by providing a safe harbor that guarantees such treatment. The JCT-prepared description tracks the contents of the so-called “NEW GIG Act” proposed legislations introduced by Congressman Tom Rice (R-S.C.) in the House and Senator John Thune (R-S.D.) in the Senate in October and July 2017, respectively. “NEW GIG” is short for the “New Economy Works to Guarantee Independence and Growth (NEW GIG) Act.” But notably, and as we further discuss below, the legislation is not limited in its application to gig or sharing economy workers.
Assuming the Senate Bill adopts the basic parameters of the NEW GIG proposed legislation — which looks to be the case based on the JCT-prepared description — we have some concerns. In brief, this legislation purports to simply “clarify” the treatment of workers as independent contractors and to make life easier for workers by introducing a new 1099 reporting threshold and a new withholding obligation. But the legislation carries potentially important ramifications for broader fights over worker classification that are raging in the labor and employment law area. Despite possibly alleviating tax-related confusion and reducing the likelihood of under-withholding, we worry that there are quite a few underappreciated non-tax hazards for workers if these provisions go through.
The legislation (assuming the Senate Bill more or less tracks the NEW GIG Act language) purports to achieve such “clarification” of worker classification status by [, among other things, introducing] a safe harbor “which, if satisfied, would ensure that the worker (service provider) would be treated as an independent contractor, not an employee, and the service recipient (customer) would not be treated as the employer.”...
At first blush, this legislation looks like it does good things for workers by clarifying their tax treatment, providing peace of mind, lowering previously unclear information reporting thresholds, and solving some of their estimated tax/mis-withholding issues.... The problem is that it’s not just about tax....
Our worry is that tax clarification of independent contractor status is a strategic step designed to win this broader (non-tax) regulatory war over worker classification. The risk is that “clarifying” the independent contractor status of workers for tax purposes through the introduction of an easy-to-meet safe harbor risks influencing and tilting the worker classification battle that is occurring in labor and employment law. While determinations of independent contractor status in other areas are theoretically independent from the tax determination, clarification on the tax side may help create presumptions elsewhere that independent contractor classification is normatively correct. While the precise legal tests governing worker classification differ across areas — we have, for example, the common law agency test, the ABC test, the economic realities test, and the IRS 20-factor test — the tests have elements in common: They all examine to some degree the nature of the relationship between the business and the worker, and they all pay attention to the control exercised by the business over the worker. If one field decides the classification question a certain way, there is likely to be some reverberation for the analysis in other fields.
Our specific concern is that “forced clarity” in tax can tilt the direction of the worker classification debate in a way desired by the platform businesses, industry lobbyists and the legislation’s supporters....
Friday, November 10, 2017
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. The Forum will feature five presenters (chosen from over 50 submissions):
Age, Law, and Egalitarianism
Alexander Boni-Saenz, Assistant Professor of Law, Chicago-Kent Law
Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection
Jasmine Gonzales Rose, Assistant Professor of Law, University of Pittsburgh Law
Colorable Claims of Discrimination
Vinay Harpalani, Associate Professor of Law, Savannah Law School
Scapegoating Abortion Rights: The Conservative Revolution and the Economic
Decline of the Working Class
Yvonne Lindgren, Visiting Professor of Law, University of San Francisco
Public Labor Unions as Democracy Facilitators for the Working Class
Courtlyn Roser-Jones, Hastie Fellow, University of Wisconsin Law School
The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. Financial support is provided by the Haas Institute for a Fair and Inclusive Society at UC Berkeley, the UC Davis School of Law, and the UC Irvine School of Law.
Comment and critique will be provided by the following scholars:
Khiara Bridges, Boston University Law
Catherine Fisk, Berkeley Law
Jonathan Glater, UC Irvine Law
Tristin Green, University of San Francisco Law
Ariela Gross, USC Law
Trina Jones, Duke Law
Osagie Obasogie, Berkeley Public Health
Angela Onwuachi-Willig, Berkeley Law
Leticia Saucedo, UC Davis Law
Michael Waterstone, Loyola-Los Angeles Law
We will also hold a panel discussion on Producing Scholarship in Equality Law with the following panelists participating:
Kathy Abrams, Berkeley Law
Catherine Albiston, Berkeley Law
Camille Gear Rich, USC Law
Vicky Plaut, Berkeley Law
Russell Robinson, Berkeley Law
Bertrall Ross, Berkeley Law
Jonathan Simon, Berkeley Law
Thursday, November 9, 2017
The EEOC announced earlier this month that it will be offering a new on-line portal that will allow members of the public to file discrimination charges. The portal will further allow individuals to engage in a number of other activities related to the discrimination charge. From the press release:
"The new system enables individuals to digitally sign and file a charge prepared by the EEOC for them. Once an individual files a charge, he or she can use the EEOC Public Portal to provide and update contact information, agree to mediate the charge, upload documents to his or her charge file, receive documents and messages related to the charge from the agency and check on the status of his or her charge. These features are available for newly filed charges and charges that were filed on or after Jan. 1, 2016 that are in investigation or mediation."
The portal has already been up-and-running as a pilot program in five EEOC offices. The success of that pilot program, combined with a few refinements, allowed the launch of the portal nationwide.
Thursday, November 2, 2017
Arthur Pearlstein (FMCS) sends word that FMCS is ...
participating in the production and program of the Labor and Employment Relations Association (LERA) 70th Annual Meeting, June 14-17, 2018, in Baltimore, MD at the Hilton Baltimore, with the theme “Shaping the Future of Work: Challenges, Opportunities and New Models.” Conference organizers and the program committee have issued a call for proposals for papers, symposia, panels, workshops, posters, skill-building debates, roundtable discussions, and other formats for the conference program. The deadline for conference proposals is fast approaching. It is Nov. 15, 2017.
According to organizers, the conference will feature more than 80 workshops, sessions, and events where more than 250 speakers will present. The conference is intended to provide practical workshops, debates on the latest research in labor and employment relations. Attendees will hear from experts on how their companies, organizations, and unions have successfully navigated workplace issues critical to their success.
Melissa Hart (Colorado) sends word that the Berkeley Journal of Employment and Labor Law is calling for law review articles for a special symposium issue commemorating the 50th anniversary of the ADEA. The Symposium, titled "The Age Discrimination in Employment Act at 50: Silver Anniversary of Midlife Crisis?", will take place November 17th, 2017.
First drafts of papers should be submitted by March 15th, 2018. Once accepted, authors will have until August 10th, 2018 to submit a final draft. The Journal's editorial staff will then work with authors to edit the article throughout late summer and fall. BJELL's selection team will use the following criteria to select papers:
- Relevance to the ADEA or age discrimination generally
- Originality/novelty of claims, analysis, or argument
- Quality of analysis and thought
- Potential to be useful to practitioners, the development of academic dialogue, and/or policy advocacy
- Degree of completeness (papers should be roughly 10,000-20,000 words with strong footnote source support)
Wednesday, November 1, 2017
Congratulations to Paul Harpur (U. Queensland/Beirne Law) on the publication earlier this year by Cambridge University Press of his book Discrimination, Copyright & Inequality. The book analyses the interaction between anti-discrimination and copyright laws, in the international human rights and copyright jurisdictions, as well as in the national jurisdictions in Australia, Canada, the UK and USA. This work builds on international and domestic notions of digital equality and rights to access information. The core thesis of this monograph is that technology now creates the possibility that everyone in the world, regardless of their abilities or disabilities, should be able to access the written word.
Here's the publisher's description: