Thursday, February 28, 2019
Congratulations to Paul Harpur for having been awarded a Future Scholarship Fellowship (funded by The Kinghorn Foundation, Harvard University, Syracuse University, and the University of Queensland) entitled “Universally Designed for Whom? Disability, the Law and Practice of Expanding the 'Normal User'”. Harpur will use his Fulbright Futures Scholarship to spend 3 months between the Burton Blatt Institute at Syracuse University and Harvard University. H will be collecting data and building relationships between Australian and U.S. advocates and researchers involved with the development and promotion of design that is accessible to everyone in society, whether they be able or disabled. Harpur’s research project aims to combat ableism’s influence on human life, so that in the future different ability is not associated with disablement, but instead is accepted as a part of human diversity.
Wednesday, February 27, 2019
Many thanks to Paul Harpur (Queensland) for sending us word that the Australian state of Queensland on February 27 passed a Human Rights Act significantly expanding the right to join trade unions. Here's the speech explaining the new statute, and here's notice of the bill's passing. Section 22 provides that every person has the right to freedom of association with others, including the right to form and join trade unions. The Act will commence operation in two phases. On 1 July 2019, the Anti-Discrimination Commission will be re-branded as the Queensland Human Rights Commission and from 1 January 2020, the complaints mechanism will commence, which will allow people who consider that their human rights have been violated by a public entity to lodge a complaint directly with the Commission.
Tuesday, February 26, 2019
Congratulations to Francis Mootz (Pacific-McGeorge), Leticia Saucedo (Cal.-Davis), and Mike Maslanka (North Texas) on the publication of their book Learning Employment Law (West 2019). Here's the publisher's description:
Learning Employment Law provides concise and clear text, examples, and case excerpts that empower students to engage in sophisticated problem-solving regarding the most pressing issues in contemporary workplace law. The book succinctly reviews the historical backdrop of each issue to ensure that students gain the wider understanding necessary to effectively address contemporary problems. The book is comprised of 44 independent Lessons that can be structured by the professor to highlight different themes. Students will be exposed to common law and regulatory regimes, with a focus on the new workplace challenges of the platform economy, outsourced labor, and immigrant labor. Students will gain a sophisticated understanding of the challenges facing lawyers in this rapidly developing area of the law.
Angie Tran (Cal State - Monterey Bay) has just published ‘Decent Work‘ Examined: Eyes Wide Open in Labor Relations in Vietnam, in Voices: Global South Studies Center, University of Cologne. Here's a summary:
[T]he assumption that the three sides [government, employers and workers] in the [ILO's] enshrined tripartite structure have equal voice at the negotiating table does not reflect the reality in Vietnam. I argue that the implementation of social dialogue has not genuinely benefited workers when the three sides in this framework do not have equal voices at the negotiating table. As demonstrated in the three cases below, labor relations in Vietnam have witnessed the strengthening of the state-management alliance and the weakening of labor, represented by one overarching labor union, the Vietnamese General Confederation of Labor (VGCL). Moreover, the actual implementation of social dialogue at the factory level focuses on only conflict resolution, missing the other two goals: social equity, and effective policy implementation, which would have addressed the deep-rooted problems in labor relations and improved workers’ lives.
Monday, February 25, 2019
The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.
This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.
In a forthcoming book chapter, Charlotte Garden argues similarly that NLRA preemption should be reformed to let state and local governments enact more worker-friendly labor laws.
Friday, February 22, 2019
New York has been a recent hotbed on labor and employment news. Last week, New York City passed a ban on hair-based discrimination--a serious issue for those who are affected by hairstyle policies, but often not given the attention it deserves. Moreover, last month, the Governor signed the Gender Expression Non-Discrimination Act (GENDA) into law. Bill Herbert (Hunter College) has some other ideas for ways in which the state can lead on labor and employment issues, which he described in a recent Daily News op-ed. Among his recommendations:
- Give domestic workers and farmworkers collective-bargaining rights.
- Give independent contractors collective rights.
- Regulate pre-employment mandatory arbitration agreements.
- Strengthen whistleblower laws.
- Re-establish the State Joint Legislative Committee on Labor and Industrial Conditions.
Friday, February 15, 2019
I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.
This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.
Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.
February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Some recent L&E stories that I've been too busy lately to post on (see my follow-up post):
- The Denver teachers strike ends after three days. Looks like the deal will significantly increase salaries and the .parties agree to study the bonus scheme that helped precipitate the strike. As an aside, this year seems to be one of more traditional, union teacher strikes, as opposed to the previous years' non-union teacher protests and strikes. I'm not sure if it's just coincidence or something else (e.g., state politicians did more to pacify teachers prior to the November elections), but it's worth watching.
- The Seventh Circuit just held en banc that the ADEA does not permit disparate impact claims by applicants. This issue has Supreme Court review written all over it. I'm not sure when, as there's some question whether there's an active circuit split (the 7th & 11th have held the same; to the best of my knowledge, all the circuits going the other way did so before the Smith v. Jackson case from the Supreme Court that clarified the ADEA's disparate impact analysis). In the meantime, it's a great teaching case because it's going some good statutory interpretation aspects, weaving a tension of textual factors, past Court precedent, and statutory purpose.
- In other Seventh Circuit news, the court just ruled on Scabby the Rat (who seems to be going out of his way to define the modern labor movement). It held that a town ordinance prohibiting Scabby did not violate the union's First Amendment rights because the ordinance was content neutral and wasn't enforced in a discriminatory fashion. At the same time, the NLRB's General Counsel has indicated a desire to go after the use of Scabby and other inflatables (which employers really hate, thereby showing their effectiveness). So expect Scabby to stay in the news.
- The NLRB has invited briefs regarding whether it should decline jurisdiction over charter schools. Note this would be a decision to voluntarily decline jurisdiction, not a ruling that the Board lacks jurisdiction (like the Northwestern college football case). I'm not a huge fan of this tactic, especially in a case like charter schools where you lack the conflict in public and private teams playing each other. But note that if the NLRB follows through, they're not going to be able to totally avoid the issue because employees could still bring individual complaints alleging ULPs.
Dispatch from Lise Gelernter (Buffalo):
The issue of the FAA § 1 exemption for “transportation workers” has led to court decisions that I think take an over-narrow view of the exemption. FAA § 1 says that the FAA does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” And in Circuit City, the Supreme Court said that the group of “any other class of workers engaged in foreign or interstate commerce,” was confined to “transportation workers.” 532 U.S. 105, 119 (2001). The Court did not provide its own definition of what it considered “transportation workers,” but it did cite to and quote the D.C. Circuit’s opinion in Cole v. Burns International Security Services, 105 F.3d 1465 (D.C. Cir. 1997), which stated that transportation workers were workers who were “actually engaged in the movement of goods in interstate commerce.” 105 F.3d at 1471. The Cole case involved a security guard at a railroad station, Union Station in Washington, D.C. One issue in that case was whether the guard’s arbitration agreement was exempt from the FAA; the court held that the guard was not a “transportation worker” and therefore not exempt. It should be noted that Cole, the guard, did not work for the railroad, but for the security service hired by the station.
This has led many courts to find that for “transportation workers” to be exempt from the FAA, they must be involved in the “movement of goods” across state lines. The case of Kowalewski v. Samadarov has a good discussion of the debate over who is a “transportation worker.” 590 F.Supp.2d 477 (S.D.N.Y. 2008) (finding that car service drivers transporting passengers across state lines were not “transportation workers” exempt from the FAA). As Rick Bales has pointed out, this begs the question of what happens when an Uber driver transports a salesperson from New York to New Jersey carrying samples of her products. Moreover, why should Uber drivers be treated any differently than railroad engineers and airline pilots who carry passengers in interstate commerce? All airline and railroad workers should be exempt under FAA § 1 if the reference to “railroad employees” includes anybody covered by the Railway Labor Act (RLA), 45 U.S.C. §§ 151-187 (airline employees became subject to the RLA by virtue of an amendment adding §§ 181-187). The RLA provides that it applies to: “every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee [for the carrier].” The RLA also goes beyond pilots – there are any number of RLA cases involving flight attendants, mechanics and other airline employees.
Justice Kennedy appeared to endorse the concept of FAA exemption for all employees covered by the RLA in Circuit City when he stated:
When the FAA was adopted, moreover, grievance procedures existed for railroad employees under federal law, see Transportation Act of 1920, §§ 300–316, 41 Stat. 456, and the passage of a more comprehensive statute providing for the mediation and arbitration of railroad labor disputes was imminent, see Railway Labor Act of 1926, 44 Stat. 577, 46 U.S.C. § 651 (repealed). It is reasonable to assume that Congress excluded “seamen” and “railroad employees” from the FAA for the simple reason that it did not wish to unsettle established or developing statutory dispute resolution schemes covering specific workers.
532 U.S. at 121. In TWA v. Sinicropi, the District Court stated flat out: “Contracts of airline employees, however, are exempted from the Federal Arbitration Act.” 887 F.Supp. 595, n. 13 (S.D.N.Y. 1995), aff’d on other grounds, 84 F.3d 116 (2d Cir. 1996), cert. denied, 519 U.S. 149 (1996).
It seems clear to me that the Appellate Division, First Department of the New York Supreme Court got it all wrong when it held that Jet Blue pilots were not exempt from the FAA because they were not “transportation workers” whose primary activity was moving goods across state lines. JetBlue Airways Corp. v. Stephenson, 88 A.D.3d 567 (N.Y. App. Div. 1st Dept. 2011). Instead, because they moved passengers, the court said, they could not claim the “transportation workers” exemption. This, of course, ignored the exemption for “railroad workers,” which I am pretty sure should mean everyone covered by the RLA.
I doubt that the Supreme Court would find that the FAA § 1 exemption is applicable only to airline or railroad employees who actually transport goods across state lines; I think they would have to find the exemption covers all RLA-covered employees (but of course, the Supreme Court has recently often done the unexpected). Therefore, if “transportation workers” are supposed to be people in the transportation industry who perform work similar to the airline and railroad employees covered by the RLA, why should there be a “goods” requirement for them?
Thanks to Orly Lobel (San Diego) for alerting us that the Open Markets Institute is petitioning the Federal Trade Commission to write a rule banning employee non-competes as an unfair method of competition. To add your name to the petition as a signatory, email OMI Legal Director Sandeep Vaheesan.
Thursday, February 14, 2019
Thanks to Michael Oswalt (NIU) for sending word, and getting permission to post, about the adjuncts at Elon voting next week in an SEIU organizing drive. Here's Michael's description of what's happening:
I'm writing to ask if you might consider signing a legal academic letter of support for non-tenure-track faculty who are organizing a union at Elon University. Throughout the process, administrators have argued that the adjuncts are managers excluded from the NLRA. While the Region recently rejected this claim and scheduled an election for next week, the local (Workers United Southern Region) and the International (SEIU) fear that the University will appeal to the Board. This would not only delay the process at Elon, it would endanger one of the most successful and inspiring unionization trends of the past few years.
The campaign is hoping to finalize the letter by COB Saturday; here's the sign-on page.
Saturday, February 9, 2019
Nicole Porter (Toledo) has just posted on SSRN a pair of articles well worth reading. Here's the abstract for the article A New Look at the ADA's Undue Hardship Defense (forthcoming Missouri L. Rev.):
Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense, but also help to more broadly illuminate the scope of an employer’s obligation to provide reasonable accommodations.
Here's the abstract for Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era? (forthcoming Touro L. Rev.):
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.
Friday, February 8, 2019
Thanks to Susan Bisom-Rapp (Thomas Jefferson, and a member of the Biagi Foundation's Academic Advisory Board) for sending word of the Seventeenth International Conference in Commemoration of prof Marco Biagi. The conference is entitled "The Collective Dimension(s) of Employment Relations. Organizational and Regulatory Challenges in a World of Work in Transformation", is organized by the Marco Biagi Foundation at the University of Modena and Reggio Emilia, and will take place in Modena (Italy) on March 18th and 19th, 2019. Attendance to the conference is free. Here's more information, including the Conference program and the registration form.
Monday, February 4, 2019
Friend-of-blog Leora Eisenstadt (Temple, Fox School of Business) has just posted on SSRN a fascinating new piece on data analytics and the workplace, Data Analytics and the Erosion of the Work/Non-Work Divide (forthcoming American Business Law Journal). The abstract is below:
Numerous statutes and common law doctrines conceive of a dividing line between work time and non-work time and delineate the activities that must be compensated as work. While technological innovations and increasing desires for workplace flexibility have begun to erode this divide, it persists, in part, because of the ways in which the division protects employers and employees alike. Nonetheless, the explosion of data analytics programs that allow employers to monitor and rely upon a worker’s off-duty conduct will soon weaken the dividing line between work and non-work in dramatically greater and more troubling ways than ever before. Examples of these advances abound. Employers have begun to rely on algorithms that harvest massive quantities of data from employees’ social media and other online profiles and use this data to screen for the most productive teams and the best workers. Employers can now use data analytics to track and predict their employees’ family planning thoughts and healthcare concerns or use facial recognition technology and sentiment analysis to forecast employees’ emotional states. The emergence of these programs allowing employers to track, predict, rely upon, and possibly control non-work activities, views, preferences, and emotions represents a major blurring of the line between work and non-work. Data Analytics and the Erosion of the Work/Non-work Divide contends that these advances in predictive analytics suggest a need to re-examine the notion of work vs. non-work time and to question whether existing protections adequately consider a world in which these lines have been so significantly muddled. As a society, we need to acknowledge the implications of the availability of massive quantities of employees’ off-duty data and to decide whether and how to regulate its use by employers. Whether we, as a society, decide to allow market forces to dictate acceptable employer behavior, choose to regulate and restrict the use of off-duty data for adverse employment decisions, or find some middle ground that requires disclosure and consent, we should be choosing a course rather than allowing the technological innovations to be the guide.
This is an area of the law and workplace that is starting to receive much-needed attention, and Professor Eisenstadt's piece represents a great new significant contribution to the field.