Thursday, April 19, 2018
COSELL XIII Registration Now Open: available here!!!
Registration is now open for The Thirteenth Annual Colloquium On Scholarship in Employment and Labor Law (COSELL), which will be held at the University of South Carolina School of Law in Columbia, South Carolina. We are celebrating our move into a completely new legal facility, and we look forward to you joining us for the conference from the evening of Thursday, September 27th through the afternoon of Saturday, September 29th, 2018. Information on registration, the conference hotel, and participating in the conference is now available here.
We look forward to seeing everyone in South Carolina next fall, and please let me know if you have any questions about the registration process.
Tuesday, April 17, 2018
Friend-of-the-blog, Jason Bent (Stetson) shared news of a symposium at Stetson this Friday that sounds like it will be of interest to many of our readers:
On Friday, April 20, the Stetson Law Review is hosting a symposium exploring the Supreme Court’s emerging animus doctrine in constitutional law. The discussion is inspired by Brooklyn Law Professor William D. Araiza’s new book, Animus: A Short Introduction to Bias in the Law. The symposium will explore the role of animus in the Court’s recent equal protection jurisprudence, including United States v. Windsor and Obergefell v. Hodges, as well as its implications for religious freedoms and workplace law. The symposium can be viewed for free via simultaneous webcast. For the full agenda, the list of speakers, and more information about registering or viewing the webcast please visit:
The lineup looks great and includes a number of workplace law friends, like Jessica Clarke (Minnesota) and Katie Eyer (Rutgers). Tune in to the live webcast if you can't make it in person.
Lance Compa (Cornell ILR) sends us word of a report describing the "wrong turn" taken by an arbitration panel in the first-ever case decided under the labor chapter of a free trade agreement. The case involves worker's rights violations in Guatemala. Here's a press release describing the case and a report critical of the case co-authored by Lance:
A new report from the International Labor Rights Forum (ILRF) says that an arbitral panel’s ruling in the first case ever decided under the labor chapter of a free trade agreement “got it wrong” on workers’ rights violations in Guatemala. Written by three prominent international labor law experts, “Wrong Turn” edits down the 300-page decision into a reader-friendly 30 pages, and provides analysis and commentary at key points showing the arbitral panel’s flawed approach and conclusions.
Following a 2008 complaint by the AFL-CIO and a coalition of Guatemalan unions, the United States government initiated the arbitration case in 2011 under the labor rights chapter of the 2005 U.S.-Central America Free Trade Agreement (CAFTA). That chapter defines as its central purpose to “protect, enhance, and enforce basic workers’ rights.” The United States charged Guatemala with failing to effectively enforce its national labor law to halt mass firings of workers who try to form unions and to remedy minimum wage, health and safety, and other violations of employment standards. Effective enforcement of national law is a central obligation of the CAFTA labor chapter.
In their report, Lance Compa of Cornell University, Jeff Vogt of the Solidarity Center, and Eric Gottwald of ILRF note that two of the three members of the arbitral panel were prominent trade lawyers who normally represent multinational companies in commercial disputes, but have no labor experience or expertise. As a result, “The decision is based on a narrow, trade-oriented analysis divorced from labor law reality - particularly in a developing country like Guatemala.”
Importantly, the arbitral panel did find that Guatemala repeatedly failed to effectively enforce its labor law. However, the panel found that such failures did not occur “in a manner affecting trade,” as required by the labor chapter, leading the arbitrators to rule in favor of Guatemala. In contrast, the report’s authors argue that, “A rights-focused analysis would say the CAFTA labor chapter is meant to protect workers’ fundamental rights, not competition in the free trade area.”
Gottwald, Vogt and Compa suggest that the arbitral panel erected an impossibly high barrier to workers prevailing in such cases. All violations and the failure to enforce labor laws occurred in trade-related sectors such as apparel manufacturing, agriculture, and shipping, but the panel found that this was insufficient to meet the “manner affecting trade” requirement. The arbitrators demanded evidence that companies took advantage of the government’s enforcement failures to gain a price advantage in the marketplace. But such information, argue the report authors, is impossible to obtain without subpoena power – a tool that is not available in the CAFTA dispute resolution system.
The authors also decry the failure of the U.S. government to present evidence on widespread violence against trade unionists in Guatemala, including death threats and assassinations – an important part of the unions’ original 2008 complaint. Reflecting this failure, they note that “In the full 299-page decision of the Panel, not once does the word ‘violence’ appear.”
The ILRF report concludes with recommendations to address the “wrong turn” in the CAFTA arbitration decision. They include requiring arbitrators to be experts in labor law and labor relations and to consider reports and decisions from international human rights bodies, not just the WTO, in their decision-making process; allowing trade unions and victimized workers to participate in arbitration proceedings, correcting the interpretation of the “manner affecting trade” clause, and making the labor chapter of all trade agreements a human rights chapter.
Here is the full report.
Monday, April 16, 2018
Friend-of-Blog Brad Areheart (Tennessee) sends along the following workshop information for SEALS:
Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Fort Lauderdale Marriott Harbor Beach Resort & Spa in Fort Lauderdale, Florida on Monday, August 6, and Tuesday, August 7, 2018. There are also many excellent panels throughout the week that are targeted to newer law professors, which prospective law professors will also find helpful. See http://sealslawschools.org/submissions/program/programwp.asp. If you are interested in participating in this year’s workshop, please send your CV and a brief statement of interest to professor Brad Areheart (Tennessee) at firstname.lastname@example.org, who co-chairs the committee along with professor Leah Grinvald (Suffolk). Please also indicate when you are planning to go on the teaching market. Applications are due by May 15, 2018. Many of the past workshop participants have gone on to obtain tenure-track appointments and now teach at a wide variety of law schools, including Tulane, South Carolina, UNC, Cal Western, Boston College, Georgia, Alabama, Oklahoma, Boston U., Tulsa, Wisconsin, Michigan State, Maryland, Idaho, Colorado, Miami, Richmond, Louisville, and others.
This is a great opportunity for new law teachers, and SEALS is always a great conference to attend.
Tuesday, April 10, 2018
Diane Ring (Boston College) sends along a call-for-papers on reshaping work in the platform economy (Amsterdam, October 25-26, 2018). The section related to law is attached below, and the full announcement is available at this Call for papers link.
"We welcome academics, business leaders, national and European law- and policymakers, representatives from the temporary staﬃng industry, platform companies, and platform workers to explore and discuss the evolving intersection between law and the platform economy on critical issues that are shaping the future of work. Accordingly, scholars and other professionals are invited to present papers across a range of legal research topics including, not limited to: • Labor law and policy: emerging trends, options and challenges • Dispute resolution: role of arbitration, courts, and regulation • Discrimination across the platform economy: platforms, workers and consumers • Liability and Risk: current practices, alternatives and implications for allocating liability and risk • Taxation: the impact of tax design choices on the direction of the platform economy and on the role of workers in platform business models • Consumer protection and/or Competition law: impact on establishing a level playing ﬁeld".
This looks like a great conference and opportunity to engage in this complex and emerging area of the law.
Readers of the blog have probably seen news articles about the Ninth Circuit's en banc decision yesterday in Rizo v. Yozino, a case interpreting the "any other factor other than sex" affirmative defense in the Equal Pay Act. If you haven't read the opnion(s) yet, I highly recommend it.
The facts were these. the Fresno County Office of Education based a new employee's entering salary solely on her prior salary plus 5%. After Aileen Rizo was hired, she discovered that male co-workers with the same job were paid more than she was and sued.
The only question on appeal was whether an employee's prior salary was "any other factor other than sex" such that an employer could base salary decisions on it without running afoul of the Equal Pay Act's prohibition on paying men and women different wages. The majority said no for two main reasons. First, if prior salary were a factor other than sex, then that exception would allow employers to rely on discriminatory wages set by prior employers, completely undercutting the Equal Pay Act's purpose. Second, the list of affirmative defenses prior to the any other factor affirmative defense all related to job-related factors that Congress recognized would justify different wages. Accordingly, and because motive is not relevant in equal pay act cases, "any other factor other than sex" must be limited to job-related factors. Prior salary may be based on job related factors, but employers must discover what those factors were and rely on them rather than simply using that salary as a proxy for those factors--that proxy is too inexact and may too easily embody discrimination.
There were three concurrence opinions. All of the judges agreed that relying solely on prior salary at another employer to set a starting salary ran afoul of the EPA because of the danger that the prior salary was based on sex. The concurring judges would have accepted prior salary as one factor in the mix, however, essentially believing that prior salary was likely based mostly on legitimate job-related factors.
This opinion marks a clear split among the circuits on this issue. The Seventh Circuit has held that prior salary is always factor other than sex, while the Ninth has now said it never is. The other circuits and the EEOC fall somewhere in the middle, more in line with the concurrences, that prior salary can be considered as just one factor as long as it is combined with other job-related factors.
I highly recommend reading all of the opinions. They do a great job summarizing the state of the law from the Supreme Court and the circuits. They also do a great job getting at the tensions in this area about causes of the gender wage gap, what kind of employer action constitutes discrimination, and what role the law should play. For example, one of the main points of disagreement seems to be whether the Equal Pay Act ought to be treated like disparate treatment pay under Title VII--what does it mean to say that a pay differential is because of sex? Additionally, is the persistent gender pay gap caused by that kind of motive, or is it based on other factors that are not attributable to an employer's bad motive. And should the government intervene in cases without bad motives?
The Equal Pay Act is not an area that I know as well as I would like, but I found this opinion and the concurrences to be a great discussion of equal pay issues writ large.
Monday, April 9, 2018
Supreme Court decisions often leave me scratching my head, but not usually because of Justice Kagan’s use of English. But there’s a first time for everything, and I read with some surprise a passage in a recent opinion authored by her:
But that view cannot be squared with the except clause’s wording for two independent reasons. To start with, the except clause points to “section 77p” as a whole—not to paragraph 77p(f)(2). Cyan wants to cherry pick from the material covered by the statutory cross-reference. But if Congress had intended to refer to the definition in §77p(f)(2) alone, it presumably would have done so—just by adding a letter, a number, and a few parentheticals.
Cyan, Inc. v. Beaver Cty. Emples. Ret. Fund. No, despite the caption, Cyan’s not an employment case; and, no, you don’t have to understand what statute she’s referring to in order to appreciate my confusion: shouldn’t Kagan have written “parentheses” instead of “parentheticals”?
One of my colleagues had the same initial reaction, but concluded that Kagan was probably right, “because she’s referring not simply to adding the punctuation, but to adding material inside parentheses— parentheticals. They are very short parentheticals, but I think still parentheticals.”
Another colleague begged to differ: “she separately refers to the letter and number inside the parentheses, so isn't she just referring to the punctuation? And she says ‘a few,’ when, in fact, she is only talking about two parentheticals (but four parentheses).”
And it’s not as if Kagan is a stranger to parentheticals: she’s been described as the “Master of the Parenthetical Aside” by Josh Blackman. Still, Homer nodded (so why not Justice Kagan?).
Tuesday, April 3, 2018
Yesterday, the US Supreme Court decided Encino Motorcars v. Navarro in a way that rejected past precedent requiring courts to read FLSA’s statutory exemptions narrowly. In a 5-4 ruling, the Court ruled that FLSA exempts a service adviser at a car dealership from its overtime protections under the exemption for “any salesman . . . primarily engaged in . . . servicing automobiles.” 29 U.S.C. § 213(b)(10)(A).
In doing so, however, Justice Thomas, writing for the majority, rejected the general “principle that exemptions to the FLSA should be construed narrowly.” Encino, Slip Op. at 9. Here’s his reasoning:
We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than a ‘narrow’) interpretation.” Scalia, Reading Law, at 363. The narrow construction principle relies on the flawed premise that the FLSA “‘pursues’” its remedial purpose “‘at all costs.’” American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume . . . that whatever might appear to further the statute’s primary objective must be the law” (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement. See id., at ___ (slip op., at 9) (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”). We thus have no license to give the exemption anything but a fair reading.
In so reasoning, Justice Thomas’s majority opinion didn’t “acknowledg[e] that it unsettles more than half a century of our precedent.” Dissent of Justice Ginsburg, Slip. Op. at 9-10 n.7. See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (FLSA “was designed ‘to extend the frontiers of social progress’ by ‘insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people.”); accord Citicorp Industrial Credit Co. v. Brock, 483 U.S. 27, 35 (1987); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 (1959)(“It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.”)(citations omitted). In her dissent, Justice Ginsburg called this FLSA precedent a “well-grounded application of the general rule that an ‘exception to a general statement of policy is usually read . . . narrowly in order to preserve the primary operation of the provision.’” Dissent Slip. Op. at 9 n.7 (quoting Maracich v. Spears, 570 U.S. 48, 60 (2013)).
Management-side lawyers will likely now invoke Encino often in FLSA exemption litigation. But, it’s hard to know how much this will affect FLSA case outcomes, because it’s unclear how much the “narrowly-read FLSA exemptions” rule had affected FLSA case outcomes in any event, that is, how often that rule operated as makeweight versus a genuine tie-breaker.
More puzzling: The Court could have easily sidestepped the issue by saying that, given the strength of all the other reasons to read § 213(b)(10)(A) the way it did, there was, in this case, really no tie for the “narrowly-read FLSA exemptions” rule to break. Instead, the Court’s majority seems to have wanted to overrule this prior FLSA precedent but without expressly saying that it was directly overruling it as precedent. The mystery is which Justice(s) in the Encino majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) wanted this in the opinion, and why.
This article is about a new approach to one of the law’s most basic questions: what is coercion? Under its traditional framing, coercion is about transactions. One person makes an offer to another person, who, under the circumstances, has no realistic option but to say “yes.” But that conception has not helped courts articulate a way to test when pressures cross the line from lawful persuasion to illegal compulsion. Without a metric, critics charge that coercion analyses are inevitably normative. This article challenges that inevitability. Using the workplace as a case study, it argues that it is possible to weigh the impact of speech or conduct on choice, but only if coercion’s content is clarified so that judges know what they are supposed to be evaluating. Drawing from rapid advances at the intersection of decision-making and emotion science, the article is the first to describe what it is, exactly, about an external force that might push employees, their superiors, and consumers toward irrational judgments. The new approach unites labor law with emerging law and emotion scholarship, applies across existing doctrine, and, by lending itself to quantifiable assessments, defies normative assumptions to finally standardize the law of coercion at work.
I had the pleasure of reading an early version of this article for a SEALS presentation and highly recommend it.
Sunday, April 1, 2018
Thanks to Mitch Rubinstein for sending word of Davids v. State, ____A.D. 3d____(NY App. Div. 2d Dep't. March 28, 2018), where a New York appellate court refused to dismiss a constitutional challenge to teacher tenure statutes. Basically, the claim is that it is too difficult to fire teachers and the tenure statutes violate the Education Article in the NYS Constitution. For Mitch's take on the case, see this post at his blog Teacher and New York Public Employee Lawyer.