Tuesday, March 31, 2020

Applying Comcast

On March 23, 2020, the Supreme Court announced its opinion in Comcast v. National Association of African-American Owned Media. The Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981.

The true impact of Comcast will only be known when appellate and district courts apply the new standard in Section 1981 cases. In most cases, whether a trial court applies a “but for” cause standard or a “motivating factor” standard should not impact how a federal judge rules on motions to dismiss or motions for summary judgment.

Fed.R.Civ. P. 12(b)(6) provides the standard for motions to dismiss based on failure to state a claim, and Fed.R.Civ.P. 56 provides the standard for summary judgment motions. In discrimination cases, the defendant is typically the party moving for summary judgment or to dismiss the case. The procedural rules for these motions require federal courts to view all evidence and inferences to be drawn from the evidence in favor of the non-moving party. The non-moving party is typically the plaintiff. Given these procedural standards, it will often be inappropriate for a court to dismiss a case or grant summary judgment for the defendant based on the new causal standard. If a plaintiff has evidence that a protected trait played a role in an outcome, it will often be impossible to determine exactly what role the protected trait played at the motion to dismiss and summary judgment stages.

Take the following example. A plaintiff claims her employer fired her because of her race and presents evidence to support her claim. The employer claims it fired her because she was late for work three times. At least three possible causal paths emerge from these facts: (1) the employer acted because of race; (2) the employer acted because of the employee’s tardiness; or (3) the employer acted because of some combination of the employee’s race and the fact that she was late. In most cases, it will be difficult to a declare (consistent with the procedural posture) that a plaintiff will be unable to establish “but for” cause.

However, the causal standard applied in discrimination cases has been contested for decades. This is, in part, because in practice, the causal standard does play a role in whether courts dismiss cases. Some courts improperly equate “but for” cause with sole cause. This is despite the Supreme Court’s explicit instruction that “but for” cause and sole cause are two different causal standards.

Other courts have struggled with the concept that there can be more than one “but for” cause to an outcome. When describing “but for” cause, courts often state that the protected trait must be the “but for” cause of an outcome. Use of the word “the” gives the misimpression that there can only be one “but for” cause.

The Supreme Court has made it clear that a party can establish “but for” cause when multiple causes exist. In Burrage v. U.S., the Court noted:

Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.

“But for” cause means that the cause was a necessary condition of the harm. An act can be a necessary condition of harm even when multiple acts are necessary to cause the harm. The Restatement provides examples of when a plaintiff can establish “but for” cause even when multiple causes exist. In one Restatement hypothetical a child suffers a seizure after a vaccination. If there is evidence that the vaccination intersected with a prior traumatic injury to cause the seizure, both the vaccination and the prior injury can be the “but for” cause of the seizure.

This outcome comports with the outcome in McDonald v. Santa Fe Trail Transp. Co., a case in which two white workers alleged race discrimination. The employer claimed that the two employees were terminated after stealing property. The employees argued that the employer did not terminate a black employee who engaged in similar misconduct. In McDonald, the Supreme Court specifically rejected the argument that the plaintiffs could not prove race discrimination in a case where the “dismissal was based upon their commission of a serious criminal offense against their employer.” The Court noted, “While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be applied, alike to members of all races, and Title VII is violated if, as petitioners alleged, it was not.”

The ultimate impact of Comcast will depend on whether courts properly apply “but for” cause within the context of the procedural rules governing motions to dismiss and motions for summary judgment.

Sandra Sperino

March 31, 2020 | Permalink | Comments (0)

Friday, March 27, 2020

Charting a global way forward: COVID-19 special edition of the ABA Int'l LEL Newsletter


The ABA International Labor & Employment Law Section has published a Special COVID-19 edition of its Newsletter, describing the myriad different responses that countries have taken to adjusting LEL laws to respond to the virus. Here's a description:

COVID-19 is now a truly global pandemic and is affecting hundreds of millions of people at both deeply personal and professional levels. Countries are attempting to respond in different ways, from quarantines to special health care initiatives to financial stimulus packages. Countries also are responding in myriad ways that affect workers and workplaces.

This special edition of the newsletter contains a series of short articles describing how several countries from throughout the world are using workplace laws to combat the spread of COVID-19 and to mitigate its effects on workers and workplaces. Though our survey is not comprehensive, it nonetheless provides a snapshot of the often thoughtful and creative ways that countries are responding to the crisis. We hope it will provide guidance not only to the international labor and employment attorneys who regularly read this newsletter, but also to policymakers worldwide considering how their countries might best restructure workplaces and protect workers in a time of crisis to mitigate both the devastating health effects of the virus and its disruption of the economic activity on which we all depend for our livelihoods.


March 27, 2020 in International & Comparative L.E.L., Labor and Employment News, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Thursday, March 26, 2020

COVID-19 Unemployment Assistance for Independent Contractors

Updated on April 6, 2020

Congress has now enacted the CARES Act that, among other things, substantially extends unemployment insurance benefits (UI) because of COVID-19. (For an overview, see NELP 2020; CRS 2020; DOL 2020). Here's a look at how Title II(A) of the CARES Act, or the "Relief for Workers Affected by Coronavirus Act" will likely affect professional drivers, family child-care providers, and other workers who, before COVID-19 hit, were treated (accurately or not) as "independent contractors," not "employees". (For background on prior legislation, as well as moves by States to relax UI eligibility, see here.)


Typically, State UI laws exclude unemployed claimants who were classified as "independent contractors", not "employees". Indeed, some firms misclassify their labor-contract counter-parties as "independent contractors" in order to avoid UI payroll taxes imposed on an employer "with respect to . . . individuals in his employ," 26 U.S.C. § 3301.

In contrast, federal disaster unemployment assistance does not turn on "employee" status. Rather, it covers not only an unemployed worker, but also "an unemployed self-employed individual," 20 C.F.R. § 625.4(c). To date, twelve States have been declared COVID-19 major disaster areas, but the President has not authorized unemployment assistance for any of them.

Title II(A) of the CARES Act provides. among other things, two kinds of new Federal UI benefits: (1) pandemic emergency unemployment compensation (CARES Act § 2107) and (2) Pandemic Unemployment Assistance (CARES Act § 2102). Bottom line: Individuals who've been classified as independent contractors can qualify for Pandemic Unemployment Assistance, if otherwise eligible. But they are unlikely to qualify for pandemic emergency unemployment compensation if they are indeed independent-contractors under State UI law.

Pandemic Emergency Unemployment Compensation

Here, any State and the US Department of Labor (DOL) can enter into an agreement under which the State pays "pandemic emergency unemployment compensation" to individuals who are "able to work, available to work, and actively seeking work"; have "exhausted all rights to regular compensation" under State or federal law; aren't getting UI from Canada; and have "no rights to regular compensation with respect to a week under such law or any other" State UI law "to compensation under any other Federal law." CARES Act § 2107(a)(2). If eligible, the claimant can get, in a particular week, an amount equal to what that individual would have otherwise been able to get under State UI law plus the amount they can get under Pandemic Unemployment Assistance.

The problem: Someone can't exhaust their rights to "regular" UI compensation if they never had those rights in the first place because of their independent-contractor status. Notably, this is not a problem for workers who are or should be classified as "employees" under the applicable State law, including but not limited to workers in the so-called gig economy. See, e.g., Vega v. Postmates, Inc., No. 13 (N.Y. 2020). Accordingly, for workers misclassified as independent contractors, the burden is on them to prove that misclassification to access pandemic emergency unemployment compensation.

Pandemic Unemployment Assistance

If someone can't get UI under State or federal law (and isn't eligible for pandemic emergency unemployment compensation), that individual may be able to get Federal Pandemic Unemployment Assistance under CARES Act § 2102 (except if they "telework with pay" or are receiving "paid sick leave or other paid leave benefits," CARES Act § 2102(3)(B).

Here, claimant individuals must self-certify that they are "otherwise able to work and available for work" under State UI law, but they are "unemployed, partially unemployed, or unable or unavailable to work," CARES Act § 2102(a)(3)(A)(ii)(I), because of one of several qualifying conditions.

Such qualifying conditions include that the individual is caring for a family or household member diagnosed with COVID-19, or primarily cares for a child who can't attend school because of COVID-19 and such school is required for the individual to work. See CARES Act § 2102(a)(3)(A)(ii)(I)(aa)-(hh)

Other qualifying conditions include:

(ii) the individual has to quit his or her job as a direct result of COVID-19;

(jj) the individual's place of employment is closed as a direct result of the COVID-19 public health emergency; or

(kk) the individual meets any additional criteria established by the Secretary for unemployment assistance under this section.

Id. § 2102(a)(3)(A)(ii)(I)

Now, the key provision: If one of these qualifying conditions exist, and the individual is otherwise eligible, that individual is still covered even if that individual

is self-employed, . . . or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

CARES Act § 2102(a)(3)(A)(ii)(II).

This clause seems to cover anyone who couldn't get regular State and federal UI law, as well as pandemic emergency unemployment compensation, because they'd be treated as an independent contractor. It's drafted as a catch-all inclusion, as indicated by the phrase "otherwise would not qualify"; thus, it would still cover independent contractors even absent the phrase "self-employed".

Still, of workers who are independent contractors, some may find it unclear whether they meet a qualifying condition. For example, suppose a driver who is the (nominal) owner-operator of the vehicle she drives and who, because of COVID-19, can't derive any income from driving, either because passengers are staying home to avoid COVID-19 exposure or because the driver, fearing COVID-19 exposure, stops driving. Another example: A family child-care provider (someone who runs a child care in their home) feels that she has to close the child care, because she fears the COVID-19 exposure to herself and her family arising from caring for other people's children in her home. In either case, which qualifying condition applies? Would we say that, in each case, the individual's "place of employment" (the vehicle or residence, respectively) "is closed" because of COVID-19? Or that the individual "has to quit" because of COVID-19?

These and other edge cases will turn on how (and how fast) the DOL moves, not only to issue "operating instructions or other guidance" documents, CARES Act § 2116(b), but also to use its authority to identify other qualifying conditions ("additional criteria" under § 2102(a)(3)(A)(ii)(I)(kk)) to cover such cases.

On April 5, 2020, DOL issued a guidance in which it partly addressed this issue by identifying an additional qualifying condition:

[A]n individual who works as an independent contractor with reportable income may also qualify for PUA benefits if he or she is unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited his or her ability to continue performing his or her customary work activities, and has thereby forced the individual to suspend such activities. For example, a driver for a ridesharing service who receives an IRS Form 1099 from the ride sharing service may not be eligible for PUA benefits under the other criteria outlined above, because such an individual does not have a “place of employment,” and thus cannot claim that he or she is unable to work because his or her place of employment has closed. However, under the additional eligibility criterion established by the Secretary here, the driver may still qualify for PUA benefits if he or she has been forced to suspend operations as a direct result of the COVID19 public health emergency, such as if an emergency state or municipal order restricting movement makes continued operations unsustainable.

DOL (2020, p. I-6).

--- Sachin Pandya

March 26, 2020 | Permalink | Comments (1)

Tuesday, March 24, 2020

Sixth Circuit, Erie and McDonnell Douglas

There is an unresolved question about whether McDonnell Douglas is procedural or substantive for purposes of Erie analysis. Today, the Sixth Circuit held that it did not need to resolve this question when analyzing a claim under the Kentucky Civil Rights Act. The Sixth Circuit held that Kentucky state courts would also apply McDonnell Douglas to state law claims, so there was no conflict between federal and state law. A link to the case, Turner v. Marathon Petroleum Company, LP, is here: https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0169n-06.pdf

Readers should note that this issue may be less straightforward in some cases.  Even if a state does generally apply McDonnell Douglas to its discrimination statute, state and federal versions of McDonnell Douglas have developed differently over time. Some states have more restrictive or more expansive versions of the McDonnell Douglas test than the versions used by federal courts.  Given the discrepancies and circuit splits that have occurred over time, McDonnell Douglas is not truly one unified test, but an umbrella term that describes many different tests.  There are currently circuit splits on a number of different aspects of the test.

Hat tip to my colleague Michael Solimine for alerting me to this case.

Sandra Sperino

March 24, 2020 | Permalink | Comments (0)

Monday, March 23, 2020

Comcast and McDonnell Douglas

            In today’s Comcast opinion, the Supreme Court held that plaintiff must prove “but for” cause to prevail on a section 1981 claim.  On page 12 of the opinion, the Court discussed how this holding intersects with McDonnell Douglas.  Here are the highlights:

  • The Court seems to leave McDonnell Douglas intact, while also cryptically noting that a plaintiff may not use the test to survive a motion to dismiss when the complaint fails to allege essential elements of a claim.
  • There are two components to the Court’s Comcast holding: (1) that the plaintiff bears the burden of proof and (2) the required substantive standard is “but for” cause. There is a way to align McDonnell Douglas with both components. Current McDonnell Douglas doctrine would allow a plaintiff to establish “but for” cause either through the prima facie case or through pretext. If a plaintiff can establish the prima facie case, this creates a rebuttable presumption that a protected trait was the cause of the action.  Similarly, if a factfinder finds pretext, the factfinder may find that the protected trait was the cause of the challenged action.
  • In one sentence, the Court indicated a way that McDonnell Douglas can procedurally align with the holding that the plaintiff bears the burden. The Court noted that McDonnell Douglas only shifts the burden of production to the defendant. The Court may be hinting that since the burden of persuasion always remains with the plaintiff, that the slight shift of the burden of production in step two of McDonnell Douglas does not contradict the Comcast
  • The Court noted that the purpose of McDonnell Douglas is to help courts assess claims when a plaintiff relies on indirect evidence. However, the Court noted that the test sought to create a test for courts to use at summary judgment. This sentence is problematic because it is unclear why courts would use a different test than the one a factfinder would ultimately use. In other words, there should not be one test at summary judgment and another at trial.  Judges often instruct juries using the core concepts from McDonnell Douglas (like pretext), but often refuse to instruct them under the entire framework.
  • It should be noted that McDonnell Douglas itself was a bench-tried case. At the time the Court decided the case, Title VII did not apply to jury trials.
  • The Court hinted that McDonnell Douglas may not apply in Section 1981 cases, but it is difficult to tell. The Court started a sentence with the following: “[w]hether or not McDonnell Douglas has some useful role to play” in Section 1981 cases.  It is not clear what this introductory phrase means.
  • The Court stated that McDonnell Douglas arose in a context where “but for” cause was the undisputed test. This is not completely accurate.  It is true that many courts were using “but for” cause in 1973; however, the question of causation had not crystallized in the case law at the time. It would be more accurate to say that the courts generally were not seriously focusing on the question of causation in 1973. Recall that the major contours of Title VII and its administrative process were still being interpreted at this time.

Here is a link to the opinion: https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf

Sandra Sperino

March 23, 2020 | Permalink | Comments (1)

COVID's Unique Risk to Garment Workers

MaquiladoraMany thanks to Tequila Brooks for forwarding a link to
Maquila Solidarity Network's report Brands Must Urgently Take Steps to Minimize Impact of the Coronavirus on Garment Workers’ Health and Livelihoods. I can tell you firsthand that these workers are extraordinarily vulnerable -- they work in crowded conditions for long hours, have poor access to health care, and sometimes live in high-density shantytowns surrounding the garment factories. They usually are the primary or sole breadwinner for an extended family, and hence can ill-afford to lose their jobs due to supply-chain disruptions. Here's an excerpt from the report:

The new coronavirus has reached global pandemic levels and is affecting people across the world, including garment workers in global supply chains. Protecting those most at risk means both taking steps to limit exposure and ensuring that people surviving on the poverty line are not pushed below it. Due to their low wages and widespread repression of freedom of association rights, garment workers already live in precarious situations and the economic fallout of the pandemic is having far-reaching consequences. We urge all clothing brands to take immediate proactive steps in their due diligence to protect workers who make their goods in the face of this global pandemic. Brands must take responsibility for workers throughout their supply chains and ensure that the garment workers who have made their profits possible do not carry the industry’s financial burden during this pandemic.


March 23, 2020 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

SCOTUS opinion in Comcast

The Supreme Court announced its opinion in Comcast today. The Court held that a Section 1981 plaintiff is required to establish “but for” cause to prevail.  The Court claimed that statutes have a default rule for causation: a plaintiff is required to establish “but for” causation.  The Court held there may be exceptions to this canon of construction, but that none were present in this case. The reasoning of the case largely rehashes the arguments adopted in Gross and Nassar.  Surprisingly, the opinion is joined by all of the Justices.  Justice Ginsburg did not join one footnote and wrote a concurring opinion.  I will write more about the opinion soon. https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf

Sandra Sperino

March 23, 2020 | Permalink | Comments (0)

Sunday, March 22, 2020

Latest Issue of the Journal of Collective Bargaining in the Academy

Readers may want to check out the latest issue of the Journal of Collective Bargaining in the Academy, "Some Impacts on Faculty: 50+ Years of Academic Collective Bargaining and Counting": https://thekeep.eiu.edu/jcba/  Here's the table of contents.



Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih

Practitioner Perspectives

Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak

Jeff Hirsch

March 22, 2020 in Labor and Employment News, Labor Law, Scholarship | Permalink | Comments (0)

Friday, March 20, 2020

Tippett on New Sick Leave Legislation

Readers might be interested in a new post by Professor Elizabeth Tippett on new federal sick leave legislation.  Prof. Tippett explains coverage and exceptions.  Find her post here.


March 20, 2020 | Permalink | Comments (0)

Thursday, March 19, 2020

On Unemployment Insurance and COVID-19

As COVID-19 causes layoffs, workers will turn to State unemployment insurance (UI). Here are what some States and the federal government have done thus far to make it easier for workers affected by COVID-19 to qualify for UI benefits. (Note: This post was updated on March 24, 2020.)


Although States set the eligibility requirements for UI, for the US Department of Labor to certify a State's UI program (a condition for federal funding and tax credits), that State's UI law must require that, "for regular compensation for any week, a claimant must be able to work, available to work, and actively seeking work." 42 U.S.C. § 503(a)(12). State UI rules also typically deny UI benefits to anyone who voluntarily quits their employer absent good cause for doing so (DOL 2019, chap. 5).

How can unemployed workers meet these "available" and "actively seeking" requirements in a pandemic? And what if they are asymptomatic but quit to self-isolate or care for a family member with symptoms?

The States Move

As a recent US Department of Labor (DOL) guidance noted, States have some room to maneuver in deciding how to meet these requirements. For example, a State may take an individual as "available" to work if that individual is "on temporary lay-off and is available to work only for the employer that has temporarily laid-off the individual." 20 CFR § 604.5(a)(3).

In response to COVID-19, some States have moved to relax UI eligibility.

Under Washington State's UI law, see Wash. Stat. § 50.20.101, the State recognizes a category of UI-eligible "stand by workers" that includes someone "temporarily unemployed due to natural disaster." Wash. Admin. Code 192-110-015(1)(a)(iii). As part of its COVID-19 response, Washington now provides that, for such workers, that "[t]he requirement to register for work and search for work is fulfilled so long as you are on standby and take reasonable measures to maintain contact with the employer." Id. 192-110-015(1)(b).

In Ohio, the governor has declared that, under Ohio UI law, a UI applicant is unemployed and not required to "actively seek" work if the applicant is "requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19," except where the worker has "access to leave benefits from their employer(s)." Ohio E.O. 2020-03D

In Michigan, the governor has suspended "strict compliance" with key parts of Michigan's UI law until April 14. For example, for UI eligibility, an individual must be deemed to have been laid off, or to have left work involuntarily for medical reasons, if that person became unemployed, or left work, respectively, because of

self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immunocompromised, displaying the symptoms of COVID-19, having contact in the last 14 days with someone with a confirmed diagnosis of COVID-19, the need to care for someone with a confirmed diagnosis of COVID-19, or a family care responsibility as a result of a government directive.

Michigan E.O. No. 2020-10.

In Wisconsin, the governor has declared, among other things, that during any week in a which there is a "public health emergency," its UI system will assume that a claimant is "available for suitable work" that week, provided that an employer "perceive[s]" the claimant "as exhibiting COVID-19 symptoms preventing a return to work" or the claimant is quarantined; and one of the following applies:

a. The employer has instructed the claimant to return to work after the employee no longer exhibits symptoms, after a set amount of time to see if the disease is present, or after the quarantine is over.

b. The employer has not provided clear instruction for the claimant to return to work.

c. The claimant would be available for other work with another employer but for the perceived COVID-19 symptoms preventing a return to work or the quarantine.

Wisconsin Emergency Order #7,

In Connecticut, the State's Commissioner of Labor has waived the active-search requirement "during the pandemic crisis, so long as such individuals remain ready to return to work once the pandemic crisis measures have been lifted."

States have more flexibility with respect to UI eligibility requirements that the federal law does not mention, such as waiting periods. For States suspending waiting-week requirements, see, e.g., Calif. E.O. N-25-20 and N.Y. E.O. No. 202.1, p. 3.

If undocumented, however, a worker is likely ineligible for UI in any case. To be federally-certified, a State's UI law must provide that a claimant, in order to be "available to work," must, if a non-citizen, be legally authorized to work in the United States. See 20 CFR § 604.5(f). Moreover, in 1996, Congress made undocumented workers ineligible for "any State or local public benefit," 8 U.S.C. § 1621(a), a term that includes any "unemployment benefit," id. § 1621(c)(1)(B). (Section 1621 does not apply to public health assistance for testing and treatment for COVID-19. See 8 U.S.C. § 1621(b)(3).)

Congress and Emergency UI Funding to States

The recently-enacted Emergency Unemployment Insurance Stabilization and Access Act of 2020 authorizes about $1 billion in emergency grants for State unemployment insurance programs. One of the conditions: The State shows that it has or is moving to "ease eligibility requirements and access to unemployment compensation for claimants, including waiving work search requirements and the waiting week and directly or indirectly relieving benefit charges for claimants and employers directly impacted by COVID-19 due to an illness in the workplace or direction from a public health official to isolate or quarantine workers." Act § 4102(a).

That Act also provides that, for purposes of applying its regular UI certification requirements, the DOL "shall" disregard any State modifications of UI "law and policies with respect to work search, waiting week, good cause, or employer experience rating on an emergency temporary basis as needed to respond to the spread of COVID-19." Act § 4102(b). Thereafter, DOL issued a guidance on what temporary measures States might adopt accordingly. For example, DOL suggests that States modify their UI requirement that any voluntary quits must be for "good cause" to allow workers to leave work "due to reasonable risk of exposure or infection (i.e., self-quarantine) or to care for a family member affected by the virus." (DOL 2020, p. 8)

Disaster Unemployment Assistance?

On March 20, the President declared all of New York State a "major-disaster" under the Stafford Act because of COVID-19. He's now done the same for Washington State and California.

Once he issues this kind of "major disaster" declaration, the Stafford Act authorizes the President to provide unemployment assistance to workers laid off because of COVID-19 who otherwise wouldn't qualify under State UI law. The President hasn't done that yet, even though at least California and New York asked for it.

Section 410 of the Stafford Act authorizes the President to provide "to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate" while that individual is unemployed. That individual, however, can't be "entitled to any other unemployment compensation." And disaster unemployment assistance only lasts "as long as the individual's unemployment caused by the major disaster continues or until the individual is reemployed in a suitable position," but no longer than 26 weeks after the major disaster is declared. The amount can't be more than the maximum under the UI law of the State "in which the disaster occurred." 42 U.S.C. § 5177(a). Federal regulations set forth eligibility requirements for such relief, see 20 C.F.R. § 625.4, including that the "individual is able to work and available for work within the meaning of the applicable State law," id. § 625.4(g). Notably, eligibility does not depend on employee status; it extends to either an unemployed worker or "an unemployed self-employed individual," id. § 625.4(c).

Can COVID-19 count as a "major disaster" under the Stafford Act? The Act defines the term "major disaster" to mean

any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

42 U.S.C. § 5122(2).

Because this definition does not expressly refer to a disease outbreak, a Congressional Research Service (CRS) report, dated March 12, 2020, tersely opined that disaster unemployment assistance "will not be available under current law in response to COVID-19." A more detailed 2008 CRS report, however, concluded that an influenza epidemic is neither clearly included or excluded from the term "natural catastrophe" under the Stafford Act's definition of "major disaster".

Processing Claims

Even if States make it easier to become UI eligible, what's unclear is how COVID-19 will affect government capacity to process claims and get funds to claimants. Most UI claims are filed via the Internet, though in some States (e.g, Kansas, Vermont), many file by phone (DOL 2020). As UI claims increase, State will have to fortify their UI website portals (for reports of State UI website crashes, see, e.g., here and here) and have enough government employees available to process those UI claims.

--- Sachin Pandya

March 19, 2020 | Permalink | Comments (0)

Tuesday, March 17, 2020

Sandra Sperino Joins Workplace Prof Blog


We are really delighted to announce that Sandra Sperino (Professor of Law, University of Cincinnati) has joined the blog as a co-editor. Sandra is a scholar of employment discrimination law in the US. She is the author, most recently, of Unequal: How America's Courts Undermine Discrimination Law (Oxford Univ. Press 2017)(with Suja Thomas), and McDonnell Douglas: The Most Important Case In Employment Discrimination Law (Bloomberg). Welcome Sandra!

Sandra will take over for Marcia McCormick. We are very grateful to Marcia for her years of service on the blog. With any luck, we might persuade Marcia to write a guest post now and again.

March 17, 2020 | Permalink | Comments (0)

Zelinsky on A.B.5

Zelinsky Edward A. Zelinsky (Cardozo) has just posted on SSRN his article (forthcoming 70 Catholic U. L. Rev.) Defining Who Is An Employee After A.B.5: Trading Uniformity and Simplicity for Expanded Coverage. Here's an excerpt from the abstract of his thoughtful and nuanced article:

My assessment of California’s A.B.5 differs from the evaluation advanced by the advocates and opponents of that legislation: I conclude that A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. ...

A review of A.B.5 and the background from which it emerged leads to a more nuanced story than either of the[] simple pro/con narratives. For those who assert that current law is uncertain and too complex, A.B.5 makes matters worse. A.B.5 is replete with exceptions, exemptions and interpretive challenges which make the law of employee status even more complicated and unclear than it was before. For those who seek expanded employment-based protection for workers in the modern economy, the myriad exceptions and exemptions of A.B.5 are a sobering warning of the practical and political realities standing in the way of such expansion. For those defending the status quo, A.B.5 is an equally sober warning of considerable dissatisfaction with that status quo.

A.B.5 is thus an important data point which indicates that those who seek to reform the law of employee status face a trade-off: Efforts to expand the coverage of employment-based protection laws will make the law more complex and less uniform – as did A.B.5. Given the relevant political forces and policy considerations, legislators can broaden the reach of employment-based regulatory laws to cover more workers in the modern economy or they can simplify and unify the legal definition of employee status. They cannot do both.


March 17, 2020 in Employment Common Law, Scholarship | Permalink | Comments (0)

Sunday, March 8, 2020

New Mexico Opts Out of Undocumented Worker Ineligibility for Licenses to Work

Last week, New Mexico opted out of a federal statute that makes undocumented workers ineligible for State or local work licenses -- the licenses required by law to do certain jobs.

The federal statute, enacted in 1996 by Congress and President Clinton, makes many non-citizens ineligible for "any State or local public benefit," 8 U.S.C. § 1621(a), a term that covers, among other things, any "professional license, or commercial license provided by an agency of a State or local government," id. § 1621(c)(1)(A). This affects not only the undocumented workers who would otherwise qualify for a such license, but also all the people put at risk of harm or competitive disadvantage by unlicensed workers.

Yet, in that same legislation, Congress left States a way out:

A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

8 U.S.C. § 1621(d).

Since 1996, some State legislatures have passed laws to trigger the section 1621(d) opt-out for work licenses. E.g., Cal. Bus. & Prof. Code § 135.5; 20 Ill. Comp. Stat. 2105/2105-140; Ind. Code § 12-32-1-6.5(c). Some of those laws, however, cover only particular occupations or subsets of undocumented workers. E.g., Fla Stat. § 454.021(3); Neb. Rev. Stat. § 4-111. For compilations, see, e.g., Olivas (2017) and Williams (2019).

Last week, New Mexico joined this group by enacting a broad opt-out for work licenses:

A. It is the policy of this state that a person is eligible for occupational or professional licensure or certification for which that person is qualified, regardless of the person's citizenship or immigration status.

B. No administrative rule or agency procedure shall be adopted or enforced that conflicts with the policy stated in Subsection A of this section.

C. This section serves as the affirmation of eligibility in this state pursuant to 8 U.S.C. Section 1621(d) for persons not lawfully present in the United States to be licensed or certified.

SB137 (enacted 2020)

According to the legislative history, this legislation is compatible with New Mexico statutes requiring background checks for some license applicants, such as licenses for some teachers and early childhood educators. So long as the agency doesn't make an applicant's citizenship or immigration status a ground for denying a license, that agency can "allow consideration of other issues highlighted during a background check, particularly issues that pose a threat to students' safety." SB137/SJCS Bill Analysis (Feb. 13, 2020).

--- Sachin Pandya

March 8, 2020 | Permalink | Comments (1)

Friday, March 6, 2020

The Coronavirus, Sick Leave, Working at Home and Potential Employer Liability


As I am sure most of us are aware, the outbreak of the Coronavirus has triggered a number of employment and labor law implications – – as would any pandemic that impacts the workplace. I am sure that there will be much written both in academia and the popular media in the coming months on this issue, so I thought I would put together a few of the more recent news pieces I have stumbled upon as some food for thought.

Fortune has an interesting piece on whether an employee is required to travel to a highly impacted area, and what happens if workers contract the illness while away on official duty.

Newsweek and the LA Times both have pieces on whether the United States should provide paid leave to employees that contract the virus and remain home while recovering. 

And CNN has an article on encouraging greater flexibility for workers to perform their job duties at home, even when healthy, during the outbreak.

This issue is obviously one that touches on a number of different legal fields, with labor and employment law included.  And there are definitely workplace issues that arise beyond the questions of employees becoming ill at work, wanting to work from home, and compensation for sick leave.  Feel free to leave any other related articles, data, information or other comments in the notes below, as this post only scratches the surface.

Joe Seiner

March 6, 2020 | Permalink | Comments (0)

Tuesday, March 3, 2020

Eisenstadt, Pacella and Boles on Whistleblowing

Congratulations to Leora Eisenstadt (Temple University - Fox School of Business), Jennifer Pacella (Indiana University - Kelley School of Business) and Jeffrey Boles (Temple University - Fox School of Business) on their extremely timely and important article, Whistleblowing in the Compliance Era, which is forthcoming in the Georgia Law Review.  The link to the paper is available here, and the Abstract is below:

International events over the last several months have propelled the importance of whistleblowers to the forefront. Yet, for years, such individuals have been the victims of retaliation. Against the backdrop of a current society heavily defined by compliance-focused initiatives, this Article highlights a significant gap in legal protections for would-be whistleblowers. While compliance initiatives demonstrate how active self-regulation is increasingly becoming a staple of organizational governance, we pinpoint in this Article the problems that arise when such initiatives extend beyond applicable legal thresholds for retaliation protection. This extension exposes vulnerable employees and potential whistleblowers to adverse employment actions without legal recourse even if they comply with their employers’ internal policies and compliance programs. We examine this gap in legal protections in the context of compliance initiatives within the following three domains: equal employment opportunity and sexual harassment; securities fraud; and anti-corruption. We then compare these initiatives with the legal and regulatory compliance postures under Title VII of the Civil Rights Act of 1964, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Foreign Corrupt Practices Act, respectively, to illustrate the ways in which most compliance initiatives fall short of mirroring the retaliation protections applicable to these statutes. To remedy this gap in protections, we propose complementary solutions under contract and tort law frameworks, coupled with soft law initiatives.

Definitely take a look at this important paper, particularly if you are researching or teaching in this area.

- Joe Seiner

March 3, 2020 | Permalink | Comments (0)

SCOTUS denies cert in 11th Circuit Proof Structure Case

In late February, the Supreme Court denied cert in a case that could have impacted discrimination proof structures.  As many readers of this blog know, the Eleventh Circuit has often articulated a fairly narrow version of the McDonnell Douglas framework.  However, if a plaintiff cannot prevail under McDonnell Douglas, the Eleventh Circuit will allow the plaintiff to also argue the case through a separate “convincing mosaic” test. 

In Williams v. Hous. Opportunities for Persons with Exceptionalities, 777 F. App'x 451, 452 (11th Cir. 2019), the Eleventh Circuit held that a plaintiff could not survive summary judgment on his termination claim.  The plaintiff alleged that his employer terminated him based on his race, violating both Title VII and Section 1981.  The plaintiff presented evidence that on the day he was fired, his supervisor told him, “I can’t stand your black ass.” Id. at 452. The plaintiff also alleged that the employer’s reason for dismissing him was pretext.  The employer argued that the plaintiff abandoned his job; however, the plaintiff presented evidence that the supervisor told him he was being fired because he refused to cover another employee’s shift.

The Eleventh Circuit held that the plaintiff could not proceed under McDonnell Douglas because the plaintiff could not establish the prima facie case.  The Eleventh Circuit held the prima facie case required the plaintiff to show a similarly situated comparator.  It then held that the plaintiff’s evidence was not sufficient under the convincing mosaic test because although the supervisor’s “comment evinces discriminatory animus and is unbefitting of any workplace. . . a reasonable jury could not find that she fired him because of his race based only on that statement because its content bears no relation to the termination decision.” Id. at 455.

In his petition for a writ of certiorari, the plaintiff argued that the Eleventh Circuit must allow plaintiffs to use a more flexible prima facie case under McDonnell Douglas.  For example, other circuits allow the plaintiff to establish a prima facie case by showing, among other things, that there is evidence that could give rise to an inference of discrimination.

The plaintiff also argued that the Eleventh Circuit’s convincing mosaic test required the plaintiff to produce more evidence than the text of the discrimination statutes require.  This argument harkens back to the Seventh Circuit’s rejection of the convincing mosaic structure in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).  The Seventh Circuit abandoned the test because the test tended to cause judges to separate evidence into discrete frameworks rather than viewing it holistically.  The Seventh Circuit found that a framework more clearly grounded in the discrimination statutes and the civil procedure standards would be better than the convincing mosaic standard.  Thus, a plaintiff can survive the employer’s summary judgment motion by presenting evidence through which a reasonable jury could find that the employer took a contested action because of a protected trait.  The Seventh Circuit left open the option for a plaintiff to also proceed through the McDonnell Douglas framework.

-- Sandra Sperino

March 3, 2020 | Permalink | Comments (0)

Monday, March 2, 2020

Doorey's New Blog: Canadian Law of Work Forum

Doorey CanadianDavid Doorey (York University) has launched a new collaborative law blog called Canadian Law of Work Forum. The blog accepts contributions from scholars, practitioners, and students on topics related to work law and labour policy and will be a great resources for U.S. scholars interested in keeping an eye on Canadian developments. David is also encouraging posts from non-Canadian scholars on comparative law issues. Please visit the blog and consider submitting pieces to David ([email protected]). Great move, David!


March 2, 2020 in Commentary, Employment Common Law, International & Comparative L.E.L., Labor and Employment News, Workplace Trends | Permalink | Comments (0)