Friday, November 30, 2018
One of the questions that followed the Supreme Court's Janus decision was whether unions had to give back dues that unions had already collected. Several employees, backed by anti-union groups, sued based on the theory that unions shouldn't be able to keep funds that the Court has announced were unconstitutionally required under collective-bargaining agreements with their public employers. Unions, on the other hand, responded that although the Court had long made clear its intention to overrule Abood and rule this way, clear precedent states that until the Court makes such a change, current caselaw applies. This isn't just an interesting legal question; there is a ton of money at stake for unions.
Yesterday, we got the first judicial decision on this question, in favor of unions. In Danielson v. AFSCME, the Western District of Washington dismissed a lawsuit seeking a declaratory judgment that past-paid fees were unconstitutional and seeking a return of those funds. At the heart of the dismissal was the court's holding that the union involved enjoyed a good faith defense against the Section 1983 claim because when they collected the fees, they were legal under both state and federal law. There's a general understanding among many courts that Section 1983 includes a good faith defense and the court held that it applied here. That's not surprising given that the Supreme Court has been very clear that lower courts should not try to predict what the Court will do--the law is what it is until the Court says it isn't.
This is a significant win for public-sector unions, but this issue isn't over. There are several other identical suits which could well come out differently, and I'm sure this case will be appealed. So stay tuned.
Thursday, November 29, 2018
An interesting piece in the New York Times discusses how the Office of Special Counsel has instructed government workers that merely expressing anti-administration views at work could constitute a violation of the Hatch Act. From the article:
“in a guidance document distributed on Wednesday, the independent agency that enforces the Hatch Act, a law that bars federal employees from taking part in partisan political campaigns at work or in an official capacity, warned that making or displaying statements at work about impeaching or resisting [the president] is likely to amount to illegal political activity.”
This interpretation of the statute seems to go much further than previous views, and it will be interesting to watch if any government employees are ultimately sanctioned as a result of the policy (and whether this interpretation of the statute will be challenged). It will definitely be an interesting issue to continue to follow.
Wednesday, November 28, 2018
The pay disparity between men and women has persisted for decades, and we often hear varying studies cited which reflect that women make somewhere around eighty cents for every dollar earned by a man. An alarming new report by The Institute for Women’s Policy Research, however, shows a much more substantial disparity. As reported by Vox:
“the report’s authors looked at women’s earnings across a 15-year period, and compared those with men’s. What they found was a pay gap nearly twice as big as what’s traditionally reported: averaged out over 15 years, women made just 49 cents for every dollar men made.”
While pay discrimination has long been a problem, this study may cause many to take a second look at just how deep that discrimination goes.
Saturday, November 17, 2018
Many of us are teaching Dothard v. Rawlinson this semester, one of the seminal employment discrimination cases discussing BFOQs and sex discrimination. That Supreme Court decision focused on whether the state of Alabama could enforce a height and weight requirement for prison guards working in contact positions at an all-male prison.
Though Dothard took place decades ago, there is a fascinating piece just out in the New York Times about the treatment of female guards in the federal prison system. The piece details some of the abusive conditions still faced by women in this environment. From the article:
“Some inmates . . . grope, threaten and expose themselves. . . [and] male colleagues can and do encourage such behavior, undermining the authority of female officers and jeopardizing their safety.”
The piece serves as a helpful teaching tool for class, tying Dothard back to the current working environment where we still see many of the same problems faced years ago.
Friday, November 16, 2018
Congratulations to Nestor Davidson (Fordham), Michèle Finck (Oxford), and John Infranca (Suffolk) on the publication of their book The Cambridge Handbook of the Law of the Sharing Economy (Cambridge U. Press). I had the pleasure of serving as a peer reviewer on the original proposal, and can verify that the book takes a comprehensive look at the sharing economy -- not just the employment stuff that readers of this blog mostly focus on. Here's the publisher's description:
This Handbook grapples conceptually and practically with what the sharing economy - which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives - means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy. The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to a series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interested in the dynamic relationship between law and the sharing economy.
Thursday, November 15, 2018
Congratulations to Ken Dau-Schmidt, Marty Malin, Roberto Corrada Chris Cameron, and Catherine Fisk on the imminent publication of their casebook Labor Law in the Contemporary Workplace (3d ed. West, 2019). Here are the publisher's notes:
Labor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.
Wednesday, November 14, 2018
Equality Law Scholars’ Forum
Friday, November 16 – Saturday November 17, 2019
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.
This year, the Forum will feature six presenters (chosen from over forty submissions):
1. The New Coverture
Albertina Antognini, Arizona College of Law
2. Stealing Education: Protecting Racial Capital in “White” Schools
LaToya Baldwin Clark, UCLA School of Law
3. Affirmative Action Misclassification
Jonathan Feingold, UCLA Office of Equity, Diversity, and Inclusion
4. The Aesthetics of Disability Law
Jasmine Harris, UC Davis School of Law
5. Legislating with Tall Tales
Goldburn Maynard, University of Louisville School of Law
6. Diversity to Deradicalize: A New Theory for How Affirmative Action Became Tied to Intellectual Pluralism
Asad Rahim, American Bar Foundation
The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law.
Comment and critique will be provided by the following scholars:
Bridget Crawford, Pace Law School
Jonathan Glater, UC Irvine Law School
Tristin Green, USF Law School
Angela Harris, UC Davis Law School
Jill Hasday, U. of Minnesota School of Law
Anthony Infanti, U. of Pittsburgh School of Law
Osamudia James, U. of Miami School of Law
Tom Joo, UC Davis Law School
Courtney Joslin, UC Davis Law School
Angela Onwuachi-Willig, Boston U. Law School
Kimani Paul-Emile, Fordham U. School of Law
Leticia Saucedo, UC Davis Law School
We will also hold a panel discussion on Producing Scholarship in Equality Law with the following UC Davis Law School panelists participating: Jack Chin, Kevin Johnson, Courtney Joslin, Tom Joo, Lisa Pruitt, and Brian Soucek.
Monday, November 12, 2018
The National Center for the Study of Collective Bargaining in Higher Education and the Professions announces its 46th annual conference, with Paul Krugman giving the keynote speech. See this link for conference information. As sign of how many presentations and speakers there are--there are too many for me to list here. Check out the link and see for yourself. Deadline for early bird registration is Dec. 28.
Friday, November 9, 2018
As just reported by the New York Times and other media outlets, Facebook has ended its policy of requiring arbitration for employees raising claims of harassment at the company. With changes made by Google to its harassment policies only yesterday (see below), these technology sector businesses are definitely feeling the pressure to revisit how they approach hostile work environment claims.
Thursday, November 8, 2018
The recent worldwide walkout at Google (as reported in the NY Times here) has lead to a response from the company today. Google will make a number of changes to its sexual harassment policies that will impact all workers at the company. From the LA Times, noting that Google is:
"dropping the requirement that sexual misconduct cases be handled in arbitration. . . Google also promised to provide more details about sexual misconduct cases in internal reports available to all employees. . . The company said it is also stepping up its training aimed at preventing misconduct, requiring all employees to go through the process annually instead of every other year."
This is a great illustration of how increased awareness in the area of sexual harassment and hostile working environments -- combined with the collective action of employees -- lead to concrete results and action by an employer (though not all of the workers' demands were met).
-- Joe Seiner
Wednesday, November 7, 2018
Erwin Chemerinsky & Catherine Fisk (both Berkeley) have posted on SSRN their essay (132 Harv. L. Rev. Forum 42, (2018)) Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh. The Baude/Volokh article is an apologia to the multiple cases filed post-Janus, ostensibly by public-sector former union dues-payers but in reality financed by employer-friendly organizations trying to break public-sector unions, to apply Janus retroactively. Here's an excerpt from the abstract of the Chemerinsky/Fisk article:
This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. § 1983.We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh's argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.
Tuesday, November 6, 2018
The Supreme Court issued its first decision of the term today, and it was the age discrimination Mount Lemmon Fire District v. Guido case. I'll claim credit for predicting a win for the public-sector plaintiffs--minus the fact that I was wrong about saying it wouldn't be unanimous. So, the outcome wasn't a surprise, but the unanimous support for both a group of employees and the Ninth Circuit was. You can read the full opinion here. For lazy readers, here's the syllabus:
John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimina- tion in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).
Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previ- ous, 1972, amendment to Title VII added States and their subdivi- sions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amend- ment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By con- trast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment al- so amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).
Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.
The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivi- sions with agents, a discrete category that carries no numerical limitation.
Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the num- ber of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold. Pp. 4–6.
In short, if you're an employee plaintiff, it really helps to have a strong textual argument.
Thursday, November 1, 2018
Many thanks to Aaron Halegua for sending word of this labor dispute in Myanmar. As many of you know, I visited Myanmar last month to meet with labor leaders. This article describes the prototypical labor strike in Myanmar. The vast majority of strikes occur because an employer fires workers who are (or who the employer believes are) trying to organize workers. Laws protecting workers from retaliation for union activity are weak, and employers feel free to fire such workers with impunity. Often the employer is a Chinese company, which is significant because in theory community-based mediation is available, and managers at a Chinese company aren't concerned about their standing in the local community. The tension escalates until the workers use the only tool available to them -- a strike -- which often results in bloodshed.
Here's an excerpt from the article, originally in the Irrawaddy, picked up by Reuters:
Dozens of striking workers from a Chinese-owned garment factory in Myanmar marched to a government compound in Yangon on Monday, securing a late-night meeting with the city’s chief minister, as part of efforts to get sacked colleagues reinstated.
Staff from Fu Yuen Ltd factory, on the outskirts of the commercial capital of Yangon, have been demonstrating alongside other labor activists since August, after 30 members of a trade union were fired.
This month, dozens of Fu Yuen workers were injured when iron-wielding assailants attacked a crowd gathered outside the factory. Police said a fight had broken out after protesters urged employees still working to join them.
Myanmar’s textile industry is its top export earner after oil and gas, employing more than 450,000 people and generating more than $2 billion in exports last year.