Wednesday, September 30, 2020
California Governor Gavin Newsom has signed a law -- SB 1384 -- that augments the authority of the state's Labor Commissioner, an office that typically handles wage claims for low-wage and unrepresented workers in what are called "Berman Hearings". The text of the new law follows the page break below. This new law authorizes the Commission to represent financially strapped workers when a court has compelled arbitration under a mandatory arbitration agreement, if the Commission decides the case has merit. The Commissioner already has this authority for poor claimants in regular civil cases if the individual already has prevailed. The law responds to systemic problems shown by research that individual employees who are obliged to arbitrate claims pro se, without counsel, lose most of the time.
Below the break is the legislative counsel's digest and the test of the statute.
The new (4th) edition of Arbitration Law will be published in November and available for Spring 2021 courses. Authors are Kathy Stone (UCLA), Rick Bales (ONU), and Alex Colvin (Cornell ILR). Here's an excerpt from the publisher's description:
This casebook presents a comprehensive treatment of the legal issues involved in arbitration. The first four chapters address issues that arise under written agreements to arbitrate contained in private contracts. They present the law that has evolved under the Federal Arbitration Act, a statute that governs arbitration in contracts involving interstate commerce. Chapter 5 looks at arbitration in the labor management context that is governed by the Labor Management Relations Act. Chapter 6 addresses international commercial arbitration. Together the book is designed to give students a thorough understanding of arbitration law, and to provide a solid foundation for legal practice, whether in alternative dispute resolution tribunals or in the civil justice system.
Tuesday, September 29, 2020
Monday, September 28, 2020
Sara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.
Lise Gelernter (Emeritus Professor & Visiting Scholar, Buffalo) sends this guest post about two arbitration decisions authored by SCOTUS nominee Amy Barrett: Wallace v. Grubhub Holdings, Inc., No. 19-1564 (7th Cir. 2020) and Herrington v. Waterstone Mortgage, No. 17-3609 (7th Cir. 2018):
On a substantive level unrelated to the confirmation of Judge Barrett, both decisions illustrate the intricacy of two of the many unanswered questions the Supreme Court has left concerning arbitration: 1) who falls under the exemption from the FAA for what the Court called "transportation workers"? and 2) which issues of "arbitrability" does a court or an arbitrator decide?
In the GrubHub case, Barrett, writing for the Seventh Circuit, said that "transportation workers" who are exempt from the FAA have to be in a class of workers involved in the interstate movement of goods, as is true of the seamen and railroad workers who are specifically exempted. Although it was not an issue in GrubHub, I think it should be pretty clear that the exemption also applies to transportation workers involved in the interstate movement of people as well as goods. Many of the seamen and railroad workers exempted specifically deal only or primarily with the interstate movement of people. Many airline workers considered to fall under the exemption for railroad workers (since both are covered by the Railway Labor Act) also deal primarily with moving people. There have been a few court decisions that say otherwise (including one that said Uber drivers who transport only passengers cannot fall under the FAA exemption), but I think they're dead wrong.
On the arbitrability issue, in the Herrington case, Judge Barrett walked a fine line between confirming prior 7th Circuit precedent that said an arbitrator has the authority to decide whether to consolidate a group of individual "bilateral" actions, and saying that only courts had the authority to decide the issue of whether an arbitration agreement permitted class and collective actions. Does it really make a difference if 1,000 Doordash drivers bring virtually identical individual arbitration claims that an arbitrator consolidates, or if those same 1,000 Doordash drivers bring a class or collective arbitration claim? I recognize there are some differences between those two scenarios, but I could see a different district or circuit court coming up with a different answer.
A lot of the confusion among the courts is that the Supreme Court left a mess when it, in my opinion, started to create more content for the FAA that it actually has (Circuit City, ATT Mobility v. Concepcion, etc.). Because the FAA does not really contain the substantive law that the Supreme Court majority has claimed it does, there are few clear answers to be found in the statute to the unanswered questions about arbitrator authority, FAA exemptions, invalidation of arbitration clauses or agreements and a myriad of other issues.
Who: Wilma Liebman, LERA Program Committee Chair
What: Theme is "A Transformational Moment? Work, Worker Power and the Workplace in an Era of Division and Disruption"
When: Conference June 3-6, 2021. Deadline 11/15/2020 for session/paper/poster proposals.
How: Submit your session/paper/poster proposals here.
Wednesday, September 23, 2020
The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century is now available in paperback. The list price is $34.99, but there's a 20% discount for ordering from this site and entering the code LAW3820 at checkout. Here's the publisher's description:
Over the last fifty years in the United States, unions have been in deep decline, while income and wealth inequality have grown. In this timely work, editors Richard Bales and Charlotte Garden - with a roster of thirty-five leading labor scholars - analyze these trends and show how they are linked. Designed to appeal to those being introduced to the field as well as experts seeking new insights, this book demonstrates how federal labor law is failing today’s workers and disempowering unions; how union jobs pay better than nonunion jobs and help to increase the wages of even nonunion workers; and how, when union jobs vanish, the wage premium also vanishes. At the same time, the book offers a range of solutions, from the radical, such as a complete overhaul of federal labor law, to the incremental, including reforms that could be undertaken by federal agencies on their own.
Monday, September 21, 2020
he European Trade Union Institute (ETUI), the European Lawyers Network for Workers (ELW) Network, and the European Trade Union Confederation (ETUC), with the support of the European Association of Lawyers for Democracy and Human Rights ELDH, are presenting the conference Rethinking Labour Law in the Digitalisation Era on 15 and 16 October 2020. The conference will be livestreamed from the International Trade Union House (Brussels). Here's a brief description:
COVID-19 has aggressively turned our lives upside down. It is too early to tell how deeply the pandemic is changing our society, but one thing appears clear: technology will play an ever more pervasive and essential role in our working and private lives.
The programme brings together experts from different backgrounds (research, legal practice, trade unions and policymaking) to discuss possible avenues for a future where technological innovation and workers' rights can truly progress hand in hand.
Wednesday, September 9, 2020
I hope many of you will join me in attending [virtually] the webinar The USMCA (the new NAFTA): Moving to Effective Enforcement of Labor Rights, on Thursday, 17 September 2020 12:30-1:30 (EST). Here's a brief description:
The United States-Mexico-Canada Agreement, replacing NAFTA, came into force on July 1. There are important changes to the Labor chapter and the introduction of a rapid response mechanism in the Dispute Resolution chapter. This novel mechanism provides a new labor rights enforcement approach and it is the first of its kind in a U.S. free trade agreement. The panelists will cover topics including the complaints mechanisms, burden of proof, the ILO fundamental rights and core conventions link, and the impact on national labor laws.
The webinar is being offered by the U.S. Branch of the ISLSSL and the International Interest Section of U.S. - LERA. Here's a more detailed description of the program is available here; you can register here. Membership in neither organization is required.
Tuesday, September 8, 2020
Susan Bisom-Rapp (TJSL; visiting Cal Western) has posted on SSRN her essay The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law. The essay was solicited by and written for the Comparative Labor Law & Policy Journal (CLL&PJ). Valerio De Stefano (KU Leuven) and Sean Cooney (University of Melbourne) are editors of the dispatch section of the CLL&PJ. Dispatches are relatively short essays summarizing a "significant development in national labor [and employment] law." A dispatch explains the import of a domestic development and "the reasons for transnational interest…." CLL&PJ posts the dispatches on the journal’s website and the dispatches are open access. Here is a link to the dispatch section of the CLL&PJ, where the essay can also be found. Here is the abstract:
On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.
Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.
Monday, September 7, 2020
The image is Hammering Man -- a series of sculptures in varying sizes that depict a man with a motorized arm swinging a hammer in a slow, steady motion. American artist Jonathan Borofsky says he created the sculptures as tribute to working-class men and women around the world. Models of various sizes in the series have been installed in public spaces and museums throughout the world. This one is in Frankfurt Germany. Both the image and text are courtesy Bing.com.
Friday, September 4, 2020
Matthew Miller-Novak (Barron Peck Bennie & Schlemmer) sends this guest post describing a recent case:
Restaurants should proceed with caution when handling their employees’ tips. Recently, an Ohio bartender filed a class action against Local Cantina in the Southern District of Ohio for violations of the Fair Labor Standards Act (“FLSA”). See, Smith v. Local Cantina, LLC et al, Case No: 2:20-cv-03064 (S.D. Ohio 2020). The lawsuit alleges that: (1) Local Cantina paid its frontline workers a salary of $1,000 a week but failed to pay them overtime rates; and (2) Local Cantina took all the servers’ tips for itself. Although Local Cantina argues that its servers made more money in this manner, Local Cantina’s decision was likely not lawful.
First, it is well established that a salary alone does not exempt an employee from the overtime requirements of the FLSA. For example, an employee does not fall under the “administrative exemption” unless she has managerial duties with independent decision-making authority. Thus, a waiter or bartender is not exempt from overtime rates regardless of her salary’s size. Regarding the employees’ tips in this case, the FLSA does permit restaurants to institute tip-sharing systems (with proper notice). However, the “Consolidated Appropriations Act, 2018,” which Congress passed, and President Trump signed on March 23, 2018, amended the FLSA’s tip-sharing rules. The amendment expressly stated that employers and managers are not permitted to take employees’ tips. Therefore, under the new language of the FLSA, employers cannot take an employee’s tips for itself or its managers regardless of whether the employer takes the minimum wage tip credit or pays the tipped-employee an amount equal or greater than the minimum wage.
Therefore, regardless of how much an employer pays a customarily-tipped employee, the employer should always pay time-and-a-half for overtime hours, and the employer should not help itself to its employees’ tips or give those tips to its managers.
Thursday, September 3, 2020
Rachel Arnow-Richman, the University of Florida's new Gerald Rosenthal Chair in Labor & Employment, has just announced an upcoming event: The Many Facets of Bostock. This is a Moderated Q&A program with an outstanding lineup, including Nan Hunter, Suzanne Goldberg, Cary Franklin, Catherine Smith, Alex Chen, Shannon Minter, Stephanie Bornstein, and of course, Rachel.
It takes place on Thursday, Sept. 10 from noon-1:30pm ET and is open to the rull academic community. You can register at this link.
Looks like a really good one.
Wednesday, September 2, 2020
Tequila Brooks sends word that the D.C. branch of LERA is offering the webinar Ironworkers, Nurses, Hairdressers and Port Pilots: Behind the Scenes of the Library of Congress’s New Occupational Folklife Project. The speaker is Nancy Groce, Senior Folklife Specialist, American Folklife Center, Library of Congress. Here's a description:
In 2010, Nancy Groce, a folklorist at the Library of Congress’s American Folklife Center, designed and launched the Occupational Folklife Project (OFP). Inspired by the Work Projects Administration’s Life Histories and the work of Archie Green and Studs Terkel, the OFP set out to document the culture of contemporary American workers during an era of economic and social transition. She collaborated with fieldworkers across the U.S., supported by a specially designed online submission platform. The on-going, born-digital project has now amassed more than 1,200 audio and video interviews with workers in scores of trades, industries, crafts, and professions. The completed interviews are being incorporated into Library of Congress archives. They are now available online.
Ms. Groce will discuss designing and implementing this significant new labor history resource and how scholars and researchers can now access and use it. We invite you to join us at noon on September 9th in what promises to be a fascinating Webex event.