Workplace Prof Blog

New NFL Policy on National Anthem Protests

The NFL has just adopted a new policy on national anthem protests, which raises some potential labor law issues. As I understand the new policy, it implements three new features. First, it allows each team to establish its own policy on national anthem protests. The second feature, however, limits the first as it gives the NFL the power to fine any team if one of its players protests during the national anthem. The third feature also limits teams' ability to establish their own policy by eliminating the previous league-wide requirement that players must stay on the field during the anthem.

So what does this all mean? It appears that players who do not want to stand for the national anthem have at least two choices: stay in the locker room or take a knee during the anthem (or other types of protest). What happens to a player who takes the latter option depends on his team. At a minimum, the NFL will fine the team. But whether the individual player is disciplined depends on whether the team has established a policy barring such protests.

Labor law aficionados will see the potential NLRA issues here. The NFL owners established this new policy without discussing it with the NFLPA (players union). This raises some potential labor law problems. First, the new policy could violate the existing collective-bargaining agreement; indeed, the union said it was reviewing whether such a conflict exists. Second, by establishing a new policy without discussing it with the union, the NFL may have violated Section 8(a)(5) of the NLRA, which prohibits an employer from unilaterally implementing changes in work conditions without first bargaining with the union. The NFL is likely to argue that this duty to bargain isn't implicated because players have the option to avoid any penalties (i.e., adverse work actions) by staying in the locker room. That's a plausible argument, but it's not obviously a winning one because the union could respond that there has been a change in the terms of work, namely that players were previously required to stand on the sidelines during the anthem and could take a knee without penalty, while under the new policy that's no longer an option.

Stay tuned . . . . 

-Jeff Hirsch

 

 

 

Announcing the Eighth and Ninth Annual Employee Benefits & Social Insurance Conferences

Peter Wiedenbeck (Wash. U.) writes to let us know about the annual Employee Benefits & Social Insurance Conferences, which have been running since 2012. The save-the-date  announcement:

We are pleased to announce the dates and locations of the next two annual Employee Benefits & Social Insurance Conferences. The schedule is:

Academic Year 2018–2019

Friday, March 29, 2019

University of Illinois College of Law

Organized by Sean Anderson

[email: [email protected]; telephone: 217-244-8256]

Academic Year 2019–2020

Friday, October 18, 2019

Boston College Law School

Organized by Natalya Shnitser

[email: [email protected]; telephone: 617-552-2883]

If you are interested in participating in either conference, contact the organizer to receive additional information.

-Jeff Hirsch

Supreme Court Holds That NLRA Does Not Prohibit Class Action Arbitration Waivers

The Supreme Court today issued its decision in Epic Systems, ruling for employers who, as part of mandatory arbitration clauses, require their employees to waive their right to class actions. This should come as a surprise to no one, as the case pitted the Court's hatred of class actions against the NLRA. 

The 5-member majority decision followed a typical pattern in many respects, including a continuation of its ever-broadening reading of the Federal Arbitration Act's protection of arbitration agreements and a rejection of an argument to grant the NLRB Chevron deference. What's more surprising though was the majority's reading of the NLRA's Section 7. Although it was not required to do so, the Court essentially overruled long-standing NLRB precedent holding that Section 7 protected employees who join together in collective legal actions to advance their workplace conditions. The Court defended this conclusion by, among other things, saying that "Section 7 focuses on the right to organize unions and bargain collectively" and holding that Section 7's protection for "other concerted activities," "like the terms that precede it, serve to protect things employees 'just do' for themselves in the course of exercising their right to free association in the workplace, rather than 'the highly regulated, courtroom-bound ‘activities’ of class and joint litigation.'” I've taught labor law for many years and have never seen Section 7 described in this narrow of a fashion. Indeed, the Court oddly cites the famous Washington Aluminum case for the proposition that "§7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration." One may debate whether Section 7 was originally thought to encompass class actions, but describing Washington Aluminum as an "organizing and collective bargaining" case is nuts--that's the classic decision involving non-union collective action. It involved a walkout by non-union workers who were sick of severely cold conditions in their plant; there was no union on the scene, no attempt to organize a union, and no collective bargaining.

Justice Ginsburg's dissent does a thorough job of showing why Section 7 is much broader than the majority makes it out to be. Using history, the NLRA's text, and NLRB precedent she also emphasized that access to the legal enforcement was a key aspect of the new rights embodied in the NLRA. She finishes with this:

If these untoward consequences stemmed from legislative choices, I would be obliged to accede to them. But the edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. The FAA demands no such suppression of the right of workers to take concerted action for their “mutual aid or protection.” 

Given that this case will likely be followed shortly by a loss for public-sector unions in the Janus case, this term looks to go down as one that brought a major constriction of labor rights.

-Jeff Hirsch

Yamada in the News

Congratulations to David Yamada (Suffolk) on a couple of fronts. First, check out his new book, Workplace Bullying and Mobbing in the United States (Maureen Duffy & David C. Yamada eds., Praeger/ABC-CLIO, 2018), a two-volume, multidisciplinary book set for scholars and practitioners, featuring 25 chapters and 27 contributors. Here's a brief description:

With over two dozen contributors (including a Foreword by Dr. Gary Namie of the Workplace Bullying Institute) and some 600 pages packed into two volumes, we believe this will be an important, comprehensive contribution to the growing literature on workplace bullying and mobbing, useful for scholars and practitioners alike. The project deliberately takes a U.S. focus in order to take into account the unique aspects of American employment relations.May 9 issue of

Second, David was quoted in Bloomberg Business Week in the article Companies Have an Aha! Moment: Bullies Don’t Make the Best Managers. Here's an excerpt:

The surprise announcement in March that 55-year-old Nike brand president Trevor Edwards—who had a reputation for humiliating subordinates in meetings—would leave following an internal investigation about workplace behavior issues suggests the coddling of tough guys may have come to an end. “Some companies are realizing that a bullying boss isn’t the best way to manage a company,” says David Yamada, a professor at Suffolk University Law School in Boston who’s authored antibullying legislation. “Maybe we’re starting to see a tipping point.”

Congrats, David!

rb

 

RIP Michael Martin, former Speaker of UK Commons and Champion of Unions

I was struck this weekend by the obituary in The Economist of Michael Martin, former Speaker of the UK House of Commons. His origins were solidly working-class -- an attribute all to rare on both sides of the Atlantic these days. Here's an excerpt from the obit:

[H]e was ... the first Catholic to be Speaker since Reformation times, when Thomas More, another saint, had done the job. His motto, in Gaelic, was “I strive to be fair”.

That was the essence of his job, and it was tricky. The Speaker could favour no party. But, like all Speakers, he was still a constituency MP. Since 1979 he had held a solid Labour majority in Glasgow Springburn. This was where he had first gone to work at “the Loco” [North British Locomotive Company, where he worked as a sheet-metal worker] at 15, with very little schooling. As a long-time shop steward and organiser for the engineering union, he had won the seat with hefty union help. His constituency was infested with heroin addiction, alcoholism, decrepit housing (his chief concern) and, as the old plants closed down, joblessness. He was mindful that he had joined the Labour Party and gone into politics to help working people.

...

What faced him on the other side was snobbery and disrespect. That rolling Glaswegian accent reminded southerners of pub brawls on Saturday nights. His posh diary secretary called him “Mr Martin”, not “Mr Speaker”. His private secretary, public school and Oxbridge, struck him as pompous. Both left. Because he was not too proud to ask his clerks for advice during debates, critics said he was floundering in his job. The parliamentary sketchwriters, the worst of the mockers, called him “Gorbals Mick”. That was brainless—he was from north of the Clyde, the Gorbals lay south. It also proved they were not fit to wipe the boots of Gorbals people.

rb

Ring on EE/IC (or Why LEL Folks Should Be Paying Attention to Tax Law)

Diane Ring (Boston College) has just posted on SSRN her article Silos and First Movers in the Sharing Economy Debates. Here's the abstract:

Over the past few years, a significant global debate has developed over the classification of workers in the sharing economy either as independent contractors or as employees.... Classification of a worker as an employee, rather than an independent contractor, can carry a range of implications for worker treatment and protections under labor law, anti-discrimination law, tort law, and tax law, depending on the legal jurisdiction....

Two interacting forces create the most serious risk for inadequate policy formulation: (1) silos among legal experts, and (2) first-mover effects. Both of these factors ... emerge in sharing economy debates in the United States. Tax experts and other legal specialists operate in distinct silos leading to a misunderstanding by non-tax analysts of the tax ramifications of worker classification, and to an underappreciation on the part of tax experts of the potential influence of “modest” tax rule changes on worker classification generally. The risks of such misunderstandings can be amplified by first-mover efforts, such as: (1) platforms’ contractual designation of workers as independent contractors to bolster a claim of nonemployer/employee status; (2) platforms’ support for proposed tax legislation that would “clarify” the status of sharing workers as independent contractors for tax purposes if they satisfy a multiple-prong (relatively easy) safe harbor test; and (3) sharing economy worker litigation to secure employee status.

This Article identifies the incompleteness in the worker classification debates and argues for the active formulation of policy through a process that looks beyond individual fields. A more complete conversation requires analytical engagement across multiple fields and recognition of the de facto power of reform in one arena to influence others. Moreover, it is by no means clear that just because tax might arrive at the legislative drawing table first (due to first mover effects), that it should drive or shape the broader worker classification debate.

rb

 

Ph.D. Program in Labor Law - call for applications

Susan Bisom-Rapp (Thomas Jefferson) has sent word that the Marco Biagi Foundation (UNIMORE, Italy) has issued a call for applications for its PhD in Labour, Development and Innovation. This is a 3-year program in Modena Italy. Here is a brief description:

The Labour, Development and Innovation curriculum is intended to enable the participants to acquire an in-depth understanding of employment relations and socio-economic change in an interdisciplinary perspective, focusing on the main regulatory levels (law, management, economics and organisation) and related methods of analysis in order to develop research instruments addressing both legal and non-legal labour regulation, enterprise innovation (industrial, service, public) and economic and territorial development.

Industry 4.0 is intended to contribute to an understanding of the dynamics of digital transformation and elaboration of the legal, economic and financial, organisational and managerial instruments to govern the transformation of the enterprise and organisations in light of Industry 4.0. The teaching and research programme favours the datafication of employment and production processes associated with digitalisation resulting in a significant transformation of the logic and instruments of enterprise management.

Complete information is available here.

rb

Flake on the Efficacy of Ban-the-Box Laws

Congratulations to my ONU Law colleague Dallan Flake on the placement of his new article Do Ban-the-Box Laws Really Work? at 104 Iowa L. Rev. ___ (forthcoming 2019). Here's the abstract:

Ban-the-box laws, which delay an employer’s inquiry into an applicant’s criminal record until later in the hiring process, are gaining remarkable traction at the local, state, and even federal levels. But the assumption that employers will be more likely to hire ex-offenders if forced to evaluate their qualifications before discovering their criminal record has gone largely untested. Empirical uncertainty has given rise to various criticisms of ban-the-box laws, chiefly that they merely postpone the inevitable decision not to hire the ex-offender — often at considerable cost to both the employer and applicant — and, worse yet, that they may actually harm racial minorities by causing employers to assume all minority applicants have a criminal record and eliminate them from consideration on that basis.

This Article reports the findings of a field experiment I conducted during the summer of 2017 that tested whether ban-the-box laws are working, and if so, for whom. The experiment entailed applying to over 2,000 food-service job openings in Chicago, which bans the box, and Dallas, which does not, using a fictitious ex-offender applicant profile. One-third of the applications in each city used a black-sounding name, one-third used a Latino-sounding name, and the other third used a white-sounding name. The experiment tracked each application for ninety days to determine whether it elicited an employer callback (i.e., a request for an interview or additional information). I then utilized multiple regression modeling to analyze callback differentials between cities and across races.

The results from this study support the claim that ban-the-box laws increase employment opportunities for ex-offenders, as an applicant was 27 percent more likely to receive a callback in Chicago than in Dallas. The results refute the contention that banning the box harms racial minorities. All three applicants had higher callback rates when the box was banned, with the black applicant experiencing the largest increase. Still, the black applicant had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.

In light of these key findings that banning the box increases an ex-offender’s odds of employment without harming racial minorities, this Article considers the potential costs and benefits of ban-the-box laws, both standing alone and as part of broader efforts to successfully reintegrate ex-offenders into society. Although banning the box may prove helpful in improving ex-offenders’ job prospects, it is hardly sufficient; more is required to ensure that upon release, an ex-offender’s prison sentence does not become a life sentence.

rb

Call for Proposals for the Second Annual Equality Law Scholars’ Forum

Call for Proposals for the Second Annual Equality Law Scholars’ Forum

Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.

 Full drafts must be available for circulation to participants by October 19, 2018.

Proposals should be submitted to:

Tristin Green, USF School of Law, [email protected].  Electronic submissions via email are preferred.

CAS

Fordham Symposium on Loving v. Virginia

Friend-of-Blog Leora Eisenstadt (Temple) passes along the interesting news that the Fordham Law Review has just published a fascinating issue dedicated to the Fiftieth Anniversary of Loving v. Virginia.  The issue has a number of different essays (by notable scholars) on racial identity issues that are definitely worth taking a look at if you are working/researching in this area.

-- Joe Seiner

California Knows Its ABCs

Yesterday, the California Supreme Court issued what is likely to be a bombshell decision in Dynamex Operations v. Lee. Dynamex involved a wage claims brought by a driver under California law. The employer defended with the oft-used (and often successful) argument that the driver and his similar colleagues were independent contractors, not employees. You can check out the decision for the facts, but they will be very familiar to those who spend any time looking at this area. What is more important is how the court analyzed them.

In Dynamex, the court decided to change its standard for determining whether a worker is an employee or independent contractor under the part of the state wage statute that defines "employ" as  "to suffer or permit work" (there are two other definitions of "employ"). In particular, it adopted what is referred to as the "ABC test." Under this rule, a worker is presumed to be an employee unless the purported employer can establish three factors. Because of its importance, I'm going to quote the court's formulation, while editing the layout for easier reading:

This [ABC] standard, whose objective is to create a simpler, clearer test for determining whether the worker is an employee or an independent contractor, presumes a worker hired by an entity is an employee and places the burden on the hirer to establish that the worker is an independent contractor. Under the ABC standard, the worker is an employee unless the hiring entity establishes each of three designated factors:

(a) that the worker is free from control and direction over performance of the work, both under the contract and in fact;

(b) that the work provided is outside the usual course of the business for which the work is performed; and

(c) that the worker is customarily engaged in an independently established trade, occupation or business (hence the ABC standard).

If the hirer fails to show that the worker satisfies each of the three criteria, the worker is principal federal wage and hour legislation.

Although it remains to be seen how soon and how big an effect this decision will have, I'm not going out on a limb by predicting that this represents a major change. The ABC test is clearly broader than the FLSA's "economic realities" test, so at a minimum more California workers will enjoy protection under the relevant statute. But California's size and the fact that this is likely to impact gig work could lead to a shift in how some companies classify and pay their gig workers in other states. Time will tell  . . . .

-Jeff Hirsch