Saturday, September 21, 2019
My colleague Dallan Flake (ONU) has just posted on SSRN his article Religious Accommodation in the Age of Whole-Self Employment. Here's the abstract:
For decades, litigants and legislators alike have attempted unsuccessfully to overturn Trans World Airlines v. Hardison, the 1977 Supreme Court decision holding an employer does not have to provide a religious accommodation to an employee if the accommodation would impose more than de minimis cost on the employer. This effectively gutted Title VII’s religious accommodation requirement by enabling employers to avoid accommodating employees for almost any reason at all. This Article does not advocate for a change in the law, as others have, but instead proposes a new way forward. It makes the case that employers should voluntarily provide religious accommodations beyond what the law requires. This is because we now live in the age of whole-self employment, wherein emp
rbloyees are no longer content to check their personal lives at the workplace door, but instead expect to be able to bring their entire selves—including their religious beliefs and practices—with them to work. Accommodation facilitates whole-self employment by allowing religious employees to express a fundamental dimension of themselves in the workplace. Empirical research overwhelmingly confirms employees who are allowed to express their authentic selves at work are happier, harder working, and more loyal to their employers. Research also shows that a content workforce is a productive workforce. Thus, employers should approach religious accommodations not as a burden but as an investment—an opportunity to allow employees to display a part of themselves that will make them better workers. While employers would incur upfront costs in voluntarily accommodating employees, the potential return on this investment justifies its expense.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Tuesday, September 10, 2019
Just a scholarly note that Duke's Law and Contemporary Problems journal symposium issue on "Work After the End of Employment" is now published. I was lucky enough to moderate part of the symposium, which was really interesting and features Catherine Fisk (who was the special editor for the issue), Sameer Ashar, Cynthia Estlund, Michael Oswalt, Sanjukta Paul, and Marshall Steinbaum. There's also a student note by William Sowers.
Monday, September 9, 2019
Christine Michelle Duffy (Director, New Jersey Program, Pro Bono Partnership) sends us the following guest post:
It Will Not Be 'Game-Set-Match' for Women's Sports
Earlier this month, The National Law Journal (NLJ) published an op-ed piece by Jennifer Braceras and Anita Milanovich that argues that if the U.S. Supreme Court rules in favor of the gender-affirmed plaintiff, Aimee Stephens, in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, female athletes will lose the opportunity to compete because “male-to-female transgender athletes” will suddenly flood into women’s sports. Oral argument in that case will be held on October 8.
It’s simply not true that there will be a loss in opportunities. “Male-to-female transgender athletes” have been competing in women’s sports for some time, and there is no significant evidence that “the number of opportunities for biological women and girls” has diminished or that they have an unfair advantage. (The foregoing quoted statements come directly from Braceras and Milanovich’s op-ed.) Moreover, leading medical organizations now recognize gender-affirmed people to be of the sex that matches their gender identity.
The NLJ commissioned a counter-piece to the op-ed, written by Jennifer Pizer, Law and Policy Director for Lambda Legal. Pizer does a terrific job debunking the arguments put forward by Braceras and Milanovich. As Pizer notes, “Their leaps of logic are long indeed, but they won’t win any medals. They mistake the facts, the law and who is at risk.” Though, as your will read below, I do take issue with Pizer, something I rarely do.
Braceras and Milanovich’s thesis is wrong for a number of reasons. Here are three of them.
Friday, September 6, 2019
Today, the NLRB released another decision placing employer's property interests above NLRA rights. This time, in Kroger Ltd. Partnership, the NLRB addressed when an employer can exclude union and other nonemployees from its property, even though it lets other groups solicit in the same place. Like a lot of situations, the employer let the Girl Scouts, Salvation Army, Lions Club, and the Red Cross solicit on its property. But it prohibited a church group and a union that was encouraging a boycott of the store because of a labor dispute (a "primary boycott" which is protected activity under the NLRA). At issue was whether excluding the union was unlawful.
This is just a quick take, so I won't get too far into the weeds (those who want more, can check out this chapter). But the short version is that an employer can usually exclude nonemployees from its property, unless it does so in a "discriminatory" fashion. The question is what does "discrimination" mean? As the linked chapter describes, there are a lot of ways to define discrimination and the NLRB in Kroger takes a very narrow--i.e., pro-employer--view:
Under the standard we adopt today, to establish that a denial of access to nonemployee union agents violated the Act under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.
Sound familiar? It should (although the Board didn't recognize the connection). This is very similar to the definition of "discrimination" the NLRB used in Register-Guard, which basically adopted the Seventh Circuit's holding that "the concept of discrimination involves the unequal treatment of equals":
[I]n order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees
Register-Guard was the decision where the Board said that employees lacked a right to use employers' email. Later, Purple Communications reversed that part of the decision, but (oddly to my mind), it didn't touch the definition of discrimination. At the time, I predicted that the definition would spread to other contexts. I was a few years too early, but that's what I view as happening in Kroger. Although, to be fair, the standards aren't identical, as the NLRB in Kroger does explicitly reject the Second Circuit's standard that defines discrimination entirely on whether Section 7 communications are treated worse than non-Section 7 communications. That said, Kroger and Register-Guard both emphasize grouping of communication of a "similar character."
Also of note is footnote 5, where the Board distinguishes handbilling for a food drive versus a union handbilling to boycott the store. According to the NLRB, they're different because their "purposes" are different. Although one can try to shoehorn that statement as just differentiating purely communicative speech versus "commercial" union speech that has traditionally had fewer First Amendment protections, it sounds an awful lot like unconstitutional subject-matter discrimination. That's particularly true given how robust the Supreme Court's recent First Amendment jurisprudence has been recently. This case could be a test whether that jurisprudence applies equally or only when used against unions.
And let's be clear about the practical implications. If an employer has half a brain (or a quarter of an attorney's brain), it can easily come up with a classification that is sure to exclude unions, while allowing a lot of other organizations. For instance, "we don't allow 'membership organizations' to solicit." The Board doesn't even seem to require that classification to be in place before litigation--it's enough for the employer to come up with the line-drawing post-hoc. It's also nonsense under the NLRA. These cases are under Section 8(a)(1), which does NOT require intent on the employer's part. The "discrimination" exception exists because it undermines the employer's argument that the reason its excluding the union is for valid business purposes. Thus, if they allow Girl Scouts and a host of other groups, we should be very wary when they all of sudden claim that union solicitors are a problem. In that case, it's pretty clear that the problem is that it's a union soliciting, not the actual solicitation. And that's not a valid reason under the NLRA.
Also, more generally, this is another weight on the side of employer property interests, which are increasingly inhibiting employees' NLRA rights. Not the first time for sure, but it's disconcerting how much the NLRB (and, to be fair, the Supreme Court) has raised property interests, which are largely the province of state common law, over the federal statutory rights of employees.
Susan Bisom-Rapp reminds us that the deadline for submitting a proposal to this year's Biagi Conference is Monday. Here's an excerpt from the call for papers:
[T]he call for papers of the 18th International Conference in commemoration of Prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19 and 20 March 2020, and will be entitled "Beyond Employment: Protecting Autonomous Work".
The Scientific Committee welcomes the submission of proposals for papers or panels by the members of the international scholarly community.The proposals should be submitted by 9 September 2019 by email to the address: email@example.com. More details on the call and the conference are available here.
Wednesday, September 4, 2019
University of San Francisco Volume 54 Law Review is holding a Symposium on January 31, 2020 on “Access to Justice in the Contemporary Workplace.” We are seeking proposals for articles to be included in the issue and presentations to be made at the event. Priority will be given to presenters who will be submitting articles for publication. Dependent on availability, we will consider publishing articles even where the author cannot attend the Symposium. The Symposium will focus broadly on analyzing the policies, practices, and barriers that may restrict an individual’s access to the legal system in the field of labor and employment law. This invitation includes an inquiry into the role of the rule of law and confidence in the legal structures that provide impartiality in labor and employment law.
Specific panels or topics could include, but are not limited to the following: Protections or lack thereof for gig-economy workers; Barriers that prevent meaningful advancement in ending sexual harassment; The chilling effect of threats of retaliation; Unequal treatment and protections for low-wage and immigrant workers; Unique issues in the tech industry; Bans on class actions; The rise of mandatory arbitration; Lack of statutory protections for LGBTQ+ workers; The decline of traditional unions; and Concerns regarding continued respect for stare decisis and the weight of precedent.
If you would like to participate, submit a 500-word abstract summarizing your article or describing your proposed presentation by September 30, 2019. Offers will be sent shortly thereafter and no later than October 14, 2019. Selected Symposium articles will be included in our Spring 2020 issue that will be published in Summer 2020 or a future issue. In order to meet this deadline, completed first drafts of articles will be due by February 10, 2020 and preferably consist of 7,000 to 11,000 words. Limited funds are available to cover travel and hotel for symposium participants; however, we are not in the position to offer per diem stipends or honorarium.
All article submissions, Symposium participation inquiries, or questions should be directed to Sophia Terrassi, Symposium Editor at firstname.lastname@example.org.
Monday, September 2, 2019
There has been some recent reporting that the tragic events in Texas occurred after the alleged shooter had been terminated from employment. Unfortunately, workplace violence is all too common. We often place a strong emphasis on our employment and emotions can run high when individuals are fired or otherwise treated adversely in the workplace. A couple of years ago (after the horrific events in San Bernardino, Calif. and Roanoke, Va.) I had posted some suggestions for handling violence in the workplace and I am re-posting that post below in case it might prove useful now:
Every year this country sees almost two million incidents of workplace violence. Federal data reveals that over a 13-year period, almost 10,000 murders occurred in the workplace. These numbers are startling, particularly when put in the context of recent horrific workplace related violence....
These tragic events often lead to heated public discussion over gun laws and weapon accessibility. While dialogue over gun control dominates public debate, it only addresses part of the question. An often forgotten facet of this type of violence is the workplace component that is frequently involved. The [recent] incidents  emphasize the importance of this workplace connection.
Few things in our lives go more to the core of our identity than our jobs. When people are unsatisfied in the workplace, or feel threatened in their employment security, they may act out in aggressive ways. This is why employers must be more vigilant today than ever before. We need only to look at the “Five C’s” that span the entire period of employment for answers in preventing workplace violence:
Character Checks. Background checks are perhaps the most important opportunity employers will have to prevent workplace violence. Employers should carefully investigate the background of any prospective employee for potential aggressive characteristics. This is particularly important where these workers will be put in sensitive situations or in the homes of customers.
Counseling. Employers must make mental health counseling available to all workers when needed. Such employee assistance programs are critical to helping workers get through difficult emotional times. This type of counseling must be kept confidential to encourage workers to avail themselves of this avenue of assistance.
Communication. Employers must create an environment which promotes an open dialogue of how to respond to active shooters or other violent individuals. Similarly, employers should establish appropriate complaint mechanisms to allow workers to notify management of potential workplace issues.
Cautious Cutbacks. When the need to terminate a worker arises, employers must be particularly cautious in conveying the separation. Far too frequently employers are cavalier about the process, and fail to even acknowledge or recognize the devastating effect a termination can have on an individual’s life and family.
Community Involvement. An employer cannot operate in isolation and must become part of the local community. There are many times where an employer will have critical information concerning a worker’s violent propensities, but fail to share this with law enforcement personnel.
These straightforward reminders help create an important framework for employers to eradicate workplace violence, though the framework is obviously not exhaustive. The most important lesson here is that employers must be engaged in all aspects of an individual’s working life – assuring that the potential for violence is minimized before, during and after employment.
Workplace violence cannot be completely eliminated. And employers must often balance the privacy rights of individuals battling mental or other health-related problems with the potential risk of workplace danger. [Recent] tragic events serve as an important reminder that employers must try to do more to help prevent this type of horrific violence.
Please feel free to share any additional thoughts on what employers can do to help prevent workplace violence in the comments below.
-- Joe Seiner