Monday, December 31, 2018
The D.C. Circuit has just ruled on the NLRB's Browning-Ferris joint-employer test, largely approving the standard that made many on the employer-side of things apoplectic. In Browning-Ferris v. NLRB, the court approved of the joint-employer rule, but remanded because it held that the Board didn't apply part of the rule correctly. This issue is becoming increasingly convoluted, so let me break down some of what's going on.
- Why did the court decide this case in the first place? As we've been following, the Board has already reversed the Browning-Ferris test once, which they had to vacate because of a recusal issue. They are now in the process of reversing course via rulemaking. Despite that, the Board asked the court to decide the case, which the majority readily agreed to do, over a dissent. The reason the court did this brings me to the second point.
- De novo review for the joint-employer test. The court emphasized that determination of the Board's joint-employer rule is reviewed de novo. Because the joint-employer standard is based in common law, according to the court, no deference to the agency is required (as opposed to application of the standard, which is a mixed question of law and fact). And because the court wasn't giving the Board any deference, the court determined that there was no need to wait for the Board's new rule. Note that this is not good news for the Board's draft joint-employer rule, although may be good news for those who prefer a more consistent rule over the long-term.
- Reserved and indirect control is relevant to joint employment. As a reminder, the big argument is whether and to what extent the joint-employer test should consider reserved and indirect control. Browning Ferris said that actual and direct control is not required; the current Board disagrees. In this case, the court was crystal clear that the argument made by the employer and dissenters in Browning-Ferris that joint employment can be based only on exercised control and direct and immediate control are wrong. Full stop. As the court noted, the common law is riddled with examples and statements that reserved control and indirect control are relevant to joint employer determinations. So this extreme view--that joint employers must have actual and direct control--is currently dead in the D.C. Circuit. But there's a middle ground that may still available, which I'll get to in a moment. But first . . .
- Remand. Despite uphold the Browning-Ferris test, the court held that the Board mis-stepped in this case. In particular, when applying the new rule in this case, the Board didn't make clear whether it relied on evidence on indirect control over essential terms and conditions of work (which is relevant) versus indirect control over "routine parameters of company-to-company contracting," like a cost-plus contract or advance description of tasks (which is not relevant). Thus, the court remanded to the Board to clarify whether there is enough relevant evidence to support a joint-employment finding.
- Meaningful collective bargaining. The court also tacitly approved the Board's inquiry into whether a putative joint employer controls enough essential terms and conditions of employment to permit meaningful collective bargaining, but wanted the Board to define terms of that inquiry more in a case, unlike here, when the Board actually applies invokes that question. That's good news for folks, like yours truly, who have argued for a more collective-bargaining focused joint employer test.
- Finally, the money question: What next? I was talking this morning to Robert Iofalla at Bloomberg News (I will link to his article when it comes out), who is exploring this question. One option is that the Board will press an extreme position during its rulemaking and thumb its nose at the court's admonition that reserved and indirect control is relevant (which could then lead to the Board's nonacquiescence policy, possible circuit split, and cert. petition). But my guess--and I stress guess--is that the Republican majority of the Board will go as far as it can without directly conflicting with the court's decision. In other words, as it did in Hy-Brand, the Board could acknowledge that evidence of reserved or indirect control can be relevant. And, then, it can answer the questions that the court expressly left open: whether only indirect and/or reserved control is enough to find joint employment. The current Board will obviously say "no," which will leave us with basically the same test we had before Bronwing-Ferris. The Board could still lose when the D.C. Circuit or another court takes up that question, but this seems to be a lower risk strategy than going the extreme route. The "relevant-but-not-sufficient" strategy still leaves plenty of room for a narrow joint employer test, especially when a Trump Board is applying it, while avoiding the time-consuming litigation that would result from defying the D.C. Circuit and seeking a circuit split. Avoiding these types of risks are especially important when the Board is doing something it rarely does by engaging in substantive, formal rulemaking.
Still plenty more to come, so stay tuned.
Friday, December 21, 2018
Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social movements, social movements will no longer be able to assist the overall progressive trend of our jurisprudence. While the phenomenon of mandatory employment arbitration is not new, recent Supreme Court opinions have encouraged an even greater number of employers to use this practice to force employees to take any disputes to arbitration, rather than to court. Focusing particularly on the #MeToo movement, this Article will consider this reality and its detrimental implications for the evolution of legal precedent affecting our most vulnerable employees.
Sunday, December 16, 2018
Thanks to Jon Harkavy (Patterson Harkavy) for sending word of the Fourth Circuit case Netter v. Barnes. Although the plaintiff lost, Judge Motz's opinion for the Court rejects a broader rationale that would have hampered enforcement of section 704 of Title VII in "protected activity" cases generally.
Wednesday, December 12, 2018
There is a great piece in the New York Times that was just called to my attention which does a wonderful job of exploring a lawsuit alleging pay discrimination at the Boston Symphony Orchestra. The lawsuit is brought by a premier flutist who maintains that she is paid about 75% as much as her most comparable colleague, who is an oboist. The allegations call to mind the well-known study on gender discrimination which was performed decades ago with respect to musical blind auditions, and shows that this type of discrimination is still present today. The article notes that the plaintiff, "who previously held positions in Baltimore, Washington and Indiana, joined the Boston Symphony in 2004. She has been a featured soloist with the orchestra 27 times, more than any other principal musician, according to the lawsuit. Critics for The New York Times have called her playing 'ravishing' and 'splendid.'" If you are researching in the pay or gender discrimination area, this article is definitely worth a look.
Friday, December 7, 2018
Many thanks to Kathryn Moore (Kentucky) for sending word of this ACEBC Competition:
The American College of Employee Benefits Counsel is sponsoring a competition, with a $10,000 prize, for the best original legislative proposal to simplify employee benefits law. This is the second year of the award, which the College hopes to offer for at least three more years. The initial award was presented at the College’s Annual Meeting and Induction Dinner in the Fall of 2018. For a submission to be eligible for the 2019 award, it must be submitted in accordance with the rules linked below, on or before April 1, 2019.
Criteria for judging submissions include the degree of simplification, prospects for enactment, and originality. Submissions must enhance, or at least have no adverse effect on, any material rights of employees and plan participants.
The award winner will be selected each year by the ACEBC Simplification Award Committee. The Award Committee’s selection of a winner will be subject to the approval of the ACEBC’s Board of Governors. Detailed rules, eligibility and selection criteria, and submissions procedures for the 2019 competition are available at www.acebc.com/simplification-award-rules. An updated list of FAQs is posted at www.acebc.com/simplification-award-faqs.
- Anne Trebilcock, ed., Comparative Labour Law (Edward Elgar, 2018), 904 pp. Collection of key journal articles on the topic, with the editor's introduction (comparative labor law's uses and limits, sources and methods, axes of comparison, means of enforcement). Link: https://www.e-elgar.com/shop/comparative-labour-law.
- Anne Trebilcock, "International Labour Organization," in Michael Bowman & Dino Kritsiotis, eds., Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018), 848-880. Overview of the ILO's unique approach to treaty making, revision and interpretation.
- Anne Trebilcock, "Challenges in Germany's Implementation of the ILO Decent Work for Domestic Workers Convention," 34:2 International Journal of Comparative Labour Law and Industrial Relations (2018) 149-176.
Thursday, December 6, 2018
Much has already been written on the status of Uber/Lyft drivers as independent contractors v. employees. This issue directly impacts the working relationship of tens of thousands of workers in the technology sector, and touches on almost all areas of employment law -- most notably wage/hour regulations. The city of New York in many ways just bypassed this entire question by directly providing a new minimum wage specifically targeting ridesharing workers. This new law, the first of its kind, mandates that ridesharing companies such as Lyft and Uber compensate their drivers for expenses and pay these workers at least $17.22 per hour.
It will be interesting to see to what extent these new requirements will raise rates and/or impact corporate profits. It will further be interesting to watch if other jurisdictions follow New York's lead.