Monday, June 22, 2020
Major League Baseball implemented a temporary rule limiting signing bonuses for new players as a cost-saving measure when teams are bringing in no revenue. One result: teams with a history of treating their workers well are attracting talent they otherwise would have had little chance of luring. Here's the take-away:
The Royals jumped to the top of many players’ lists because of their demonstrated commitment to their minor leaguers. While most of Kansas City’s competitors wavered on paying minor leaguers at all this summer—and then released scores of them—only the Royals and Minnesota Twins said they would keep every prospect. Royals general manager Dayton Moore justified that action by telling reporters, “The minor-league players, the players you’ll never know about, the players that never get out of rookie ball or High-A, those players have as much impact on the growth of our game as 10-year or 15-year veteran players.”
In saying that, the Royals positioned themselves to take advantage of a very simple market inefficiency: not treating your lowest-paid employees like garbage.
Jared Diamond, The Royals Are Taking Advantage of a New Market Inefficiency Wall St. J. (June 19, 2020).
Monday, June 15, 2020
We'll no doubt have more of analysis soon, but given the delays in uploading the Court's decision in Bostock (thanks to widespread interest and a bunch of uncompressed images in the opinion), I thought it would be helpful to post the syllabus:
BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Ste- phens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.
(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, re- ligion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment re- solves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employ- ment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “indi- vidual” means that the focus is on “[a] particular being as distin- guished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plain- tiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employ- ees differently because of their sex, an employer who intentionally pe- nalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmak- ing. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a com- pany was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de- pended on being a parent of young children and the fact that the com- pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstand- ing the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrele- vant what an employer might call its discriminatory practice, how oth- ers might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being ho- mosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attrac- tion to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention- ally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even in- tentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that inten- tional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discrim- inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employ- ers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these mat- ters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that be- cause the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argu- ment unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en- force the law’s plain terms in the meantime. This Court has long re- jected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, sug- gesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.
Monday, May 25, 2020
Desiree LeClercq (formerly Director for Labor Affairs at the Office of the United States Trade Representative; currently en route to Ithaca NY to teach at the Cornell ILR School) writes to tell us:
LERA has been hosting a series of webinars free to members and non-members that examine various labor elements of the COVID pandemic. This Thursday, May 28, from 10-11am, I will be moderating a panel on ""Global Governance During Pandemic: Implications of Force Majeure and National Emergency for Worker Rights Protections." Panelists will include representatives from the ILO, the World Bank, the World Maritime University, Solidarity Center, and Sustainable Enterprises. In case of interest, the link to register and receive the Zoom link may be accessed at: https://lera.memberclicks.net/lera-webinar-series--ler-during-covid-19.
This looks like a terrific program!
Dear labor and employment scholars,
We're writing to see if you'd be interested in writing a short essay on any COVID-related work law issue as part of an open-source web-based book.
The COVID-19 pandemic has raised many complex work-law issues that matter a lot to thousands of people in the US right now. As a result, we're hoping to develop a virtual “book” of short essays on COVID-19 work law issues for an audience of sophisticated lay readers. Because this "book" would be completely web-based, it'll be easy to revise and update the book's content quickly as the pandemic (and the response to it) unfolds. And anyone with an Internet connection can read it. We will set up the essays in such a way that contributors can cite to essays if desired.
Moreover, while some NGOs, law firms, and the press have been discussing COVID-19 work law issues online, that has been largely piecemeal. We believe that work-law scholars, working together, can add value by putting these issues in proper context (and in one place) in a way that would really make a difference. Whether it’s informing workers of their rights, assisting workers in obtaining the benefits they’re entitled to, or informing employers’ attempts to comply with increasingly complex and fast-changing regulations, this is a project that can have a meaningful impact.
If you are interested, feel free to consider or add to this incomplete list of topic areas:
- Safety & Health
- Unemployment Insurance Benefits
- Workers’ Compensation
- Leave Rights
- Labor Rights
- Retaliatory filings
- Immigrant Worker issues
These and other COVID-19 work law topics are broad and have both state and federal components, so there will be room for multiple essays in the same general area (for instance, different state unemployment systems, or case studies of particular laws as applied). If you are interested, please contact one or both of us (Jeff Hirsch: email@example.com; Sachin Pandya: firstname.lastname@example.org) and let us know.
Jeff Hirsch & Sachin Pandya
Wednesday, May 6, 2020
A group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:
We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.
Tuesday, April 14, 2020
It's official ... the COSELL web page is now live. The conference is being hosted at (hopefully, literally "at") Louisville, and Arianna Levinson writes:
Please register for the 15th Annual COSELL to be held at the University of Louisville Brandeis School of Law, Thursday- Saturday, October 8-10, 2020, at this event page http://louisville.edu/law/cosell2020. We look forward to seeing everyone in October!
This is by far my favorite academic conference (I've only missed one year) because it has a lot of interesting papers, at various stages, with incredibly helpful and supportive comments from all of my favorite labor and employment scholars. It's also a great place for more junior scholars to not only get feedback on their work, but meet others in the field. So if you've never been, now is the time to correct that mistake.
Friday, March 27, 2020
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.
Monday, March 23, 2020
Many 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.
Sunday, March 22, 2020
Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius
A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights
William A. Herbert and Joseph van der Naald
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
Does a Prolonged Faculty Strike in Higher Education Affect Student Achievement in First Year General Education Courses?
Stephen J. Jacquemin, Christine R. Junker, and Mark Cubberley
Maintaining peer-based faculty evaluation: a case study involving student surveys of teaching
Laura Murphy and Leah M. Akins
Examining the Employment Profile of Institutions Under the Mission-Driven Classification System and the Impact of Collective Bargaining
Louis Shedd, Stephen G. Katsinas, and Nathaniel Bray
Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak
Monday, March 2, 2020
David 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@example.com). Great move, David!
Thursday, December 19, 2019
I’ve now had a chance to do a more careful read of Rio, which confirmed my earlier sense that both the majority and dissent have almost fully adopted the early positions of Register Guard and Purple Communications, respectively (although Rio does, as it should, appear to expand its logic to all electronic communications, rather than just email). This is not a surprise and, from a selfish point of view--at least while I’m trying to get through a stack of exams--makes it easier for commentators like me, as there’s not much new going on. I did want to comment more on one issue, however.
One argument that I’ve advocated since 2007 was that the combination of Supreme Court precedent and basic property law mandated the outcome of electronic communication cases. I’ve now seen a Board majority twice try to get around this argument and, to put it mildly, I haven’t been impressed. First, in Register Guard, the Board relied on a smattering of personal property cases involving things like a bulletin boards and photocopiers. I took down these cases in a subsequent book chapter, noting that they were essentially a bunch of cases, initially analyzing a different issue, self-citing each other and were ultimately based on an ALJ’s line of dicta in a single case. The Board in Purple Communications agreed, but in Rio the Board reaffirmed those cases, albeit while implicitly recognizing their weakness by briefly trying to defend them with an argument that it admits the cases themselves never relied on. But, really, Rio abandons those decisions as a basis for its electronic communications ruling. Instead, it relies on a second argument, one that finds that employer’s personal property rights trump employees’ Section 7 of the NLRA right to communicate. That’s the argument that I want to focus on here.
Let me start with some undeniable truths:
- Under the Supreme Court’s Republic Aviation decision, employees have a right to engage in NLRA speech while at work, with certain limits on the time and place. This is in spite of employers’ interest in controlling use of its real property.
- Under the Supreme Court’s Lechmere decision, non-employees almost never have right to engage in NLRA speech while on employer-controlled property.
- In Lechmere, the Court made crystal clear that the difference between its line of reasoning and Republic Aviation is whether or not the speaker is an employee. If so, Republic Aviation and the right to communicate on employer property usually exists; if not, Lechmere allows employers to exclude non-employee speech in almost all cases.
OK, a pause for a moment. At this point, employers and Board Members arguing that employees lack the right to use employer have a problem: the fact that the cases involve employees. The Supreme Court has made clear that employees, as opposed to non-employees, have right to engage in NLRA communications that typically trumps employer property interests. So, to get around this, one would need to either conclude that electronic communications involve either diminished NLRA interests or expanded employer property interests. The Board hasn’t tried to do the former, as they can’t—the Supreme Court has boxed them in with Lechmere and Republic Aviation. Thus, the Board in Rio, as it did earlier in Register Guard, has tried the latter. And here’s where I want to jump back in with a couple more truths.
- Under Republic Aviation, employers’ real property interests cannot be used to bar employees’ NLRA rights to communicate. They can limit communications to non-work time, for instance, but the Court is clear that when employees are already legitimately at work, real property interests (which, remember, is a legally granted interest) are outweighed by employees’ NLRA rights (another legally granted interest).
- Under basic property law, real property interests are stronger than personal property interests. A principle point on this is that personal property trespass requires a showing of harm, while real property trespass assumes such harm.
The Board in Rio seems to be disputing this final truth, although all it really does is cite a couple of law review articles that criticize the requirement that personal property trespass require a showing of harm in cases involving electronic property. The Board in Rio also argues that even if a trespass isn’t actionable under common law, it doesn’t mean that there is a right to such trespass. I have no dispute with that comment on its own, but it doesn’t have any relevance here because employees’ right to use electronic communications is coming from the NLRA, not state property law. Even if you accepted the Board’s implication that real property and personal property are on the same footing (which you shouldn’t do, because it’s wrong), that gets you . . . back to Republic Aviation. The only way one can honestly argue that Republic Aviation doesn’t apply is to conclude that property interests are entitled to more protection than real property interests. The Board doesn’t even pretend to do this. Indeed, it’s really stretching to find anything that might sound like the two property interests are on similar footing.
Here’s where I differ from Member McFerran’s dissent. She says that there is no Supreme Court precedent that requires the Board to rule either way on the electronic communications issue. That’s incorrect in my view. The logic of Republic Aviation, Lechmere, and basic property law does require a specific result: that employees’ use of employer electronic communications be treated at least as favorably as employee communications under Republic Aviation. There is some play in the distinctions that the Board has made between oral and written communications, which I’ve discussed before but won’t get into now. But the bottom line is that unless the Court abandons the employee/non-employee distinction that is the foundational difference between Republic Aviation and Lechmere, the decision in Rio is flat-out wrong. No policy deference exists that allows the Board to conflict with Supreme Court precedent. And the Board certainly can’t overrule state property law—something, as it has shown frequently, is not in its expertise.
I very much look forward to this case going up for appellate review. I certainly won’t predict that a court won’t enforce Rio, but I will argue strenuously that it shouldn’t. No matter what one thinks of the policies at stake in electronic communications cases, the Supreme Court’s rulings in this area lead to one, and only one, possible result. That’s the conclusion in Purple Communications that, under normal circumstances, employers cannot bar employees from engaging in NLRA-protected communications on employer equipment.
Tuesday, December 17, 2019
NLRB Flips Again on E-Mail, Concluding that Employees Typically Lack the Right to Use Employer E-Mail for NLRA Communications
Today, the NLRB issued its decision in Rio All-Suites Hotel, which concluded that employees typically lack the right to use employer provided e-mail under the NLRA. The Board explictly adopted the rationale of the earlier Register-Guard decision which held the same and overruled the subsequent Purple Communication, which had reversed Register-Guard. Given that the the Board is literally rehashing prior arguments (this issue is now on the official "flip-flop" list), I'm going to follow its lead and rehash my prior commentary on the issue. I'll claim exhaustion as a defense--I've written extensively about this topic (see, e.g., here, here, and here), including an amicus brief in Rio. And I'll no doubt do the same when the Board flips again.
One note before I get to the self-plagarism: A small victory in Rio is that the Board didn't pursue the First Amendment claim the Member Johnson advocated in his Purple Communications dissent. I thought it was a weak claim, but definitely one that the Board could've pursued.
When Register-Guard was first issued, I blogged the following about the decision, which--based on a skim of Rio--remains applicable today. There is one addition in Rio, which is "an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another." I'm honestly not sure this is new, because in Register Guard the Board seemed to suggest the same thing (while disclaiming it in a footnote)--which essentially, and incorrectly as McFerran's dissent notes, applies the Lechemere non-employee test to an employee activity situation. On to the rehash:
. . . The majority, in finding for the employer . . . took an overly restrictive view on the importance of emails, which was no shock given the oral argument. However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used. First, with regard to the email policy, the majority concluded that:
An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.
Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . . .
In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviationrequires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.
The majority's analysis here is weak. The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ). Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law. As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation. Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule. The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances. I'm obviously supportive, given that I argued for that exact rule.
It is also important to note that Rio leaves Register-Guard's narrow view of the discrimination exception to this rule. I never understood why the Obama Board in Purple Communications left that undisturbed, but that piece of Register-Guard has now remained the same for a while I've described that exception as follows:
The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context. To quote my own summary of the various definitions of discrimination, which include: "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions." The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):
In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).” Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.” The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”
Thus, in 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
In the end, Rio is disappointing, but not surprising. And almost certainly not the last word once a new adminsitration comes in. Also, I am very curious to see what an appellate court does with the rule. As I explained, I think its directly in conflict both with Supreme Court precedent and basic property law. So a court could reject the rule. Note that the D.C. Circuit didn't approve of Register Guard, reversing it on another issue. So we shall see . . . .
Friday, December 13, 2019
This morning, the NLRB released new election rules. There seems to be a major administrative law issue here because the NLRB didn’t engage in formal notice-and-comment rulemaking. They defended that approach in their rule, but I’m not sure they’re able to change a rule that was promulgated via notice-and-comment without going through the same procedure. To be clear, I really mean that I’m not sure—but some quick check-ins with folks who know more administrative law than me makes me think that I’m right on this. But we’ll have to see. I’ll note that this is a double-edged sword. If the NLRB is successful here, then a future Board can change them back again without notice-and-comment. This also highlights some hypocrisy, as opponents of the 2014 rules and their predecessor made numerous criticisms based on process, including that the notice-and-comment rulemaking that occurred wasn’t enough. Those criticisms ring hollow now.
As a reminder, in 2014, the NLRB promulgated several changes to its representation election procedures, which we’ve described before (e.g., here and here and here) and I explored in my article, NLRB Elections: Ambush or Anticlimax? My conclusion in that article was that most of the changes were modest, sensible updates to the NLRB’s election process that would provide somewhat faster elections and probably wouldn’t change the outcomes much, if at all. Much to my surprise, my prediction was spot on. The union win rate has been essentially unchanged. Moreover, the time it takes from an election petition to the election itself when down a modest two weeks or so (about 37 days to 22.5 days) in uncontested elections and down about three weeks in contested elections (about 59 days to 35.5 days). Similar modest reductions occurred for certification. Moreover, the new rules reduced elections with major (more than 100 day) delays to about only 10% of all cases.
Despite the modest impact of the 2014 election rules, reversing them has remained a goal of many employer groups and the Trump NLRB, which has been telegraphing its intent to revisit them. Today, they’ve done it, largely in rolling back the 2014 rules to the pre-2014 framework. A quick run-down of the major changes, based on a quick look at the new rules:
- The deadline for pre-election hearings go from 8 calendar days after an election petition is filed to 14 businessdays, with the possibility of an extension of time.
- The deadline for employers to post election notices goes from 2 business days to 5 business days.
- Non-petitioning parties' (that is, employers in new elections ad unions in decertification elections) statements of petitions goes from around 7 calendar days to 8 business days after the region issues a notice of a hearing.
- The regions now must generally address questions regarding eligible votes and bargaining unit determinations in a pre-election hearing, rather than a post-election hearing under the 2014 rules. This is a change that, in some cases, will have more impact than it may appear at first blush, as it gives the non-petitioning party incentive to raise these issues early—even if the argument is weak—simply to add delay.
- Parties’ again have right to file post-hearing (and pre-election) briefs, which was eliminated as a matter of right in 2014. The briefs are due no less than 5 business days after a hearing and can be extended to 10 business days.
- Regions are now told to normally schedule elections no earlier than 20 business days after election order ("direction of election"), unless parties’ consent to a faster timetable. This is another particularly impactful change.
- Unlike under the 2014 rules, the Region will not automatically impound contested ballots until issues are resolved.
- The deadline for exclesior lists (list of voting employees' contact info that employers must give to unions) goes from 2 business days to 5 business days.
- Regions are not to certify election results if there is a pending request for review. This is another change that will allow non-petitioning parties to create signification delays.
This is one of those labor law issues where it looks like one side cares more about a “win” than any real impact. As we’ve seen, the union win rate in elections haven’t really changed under the 2014 rules, which is the ultimate result that parties care about most. So, much of this move seems to be checking off a goal of employer-side interests who objected to the 2014 rules. That said, increasing delay itself is a benefit to non-petitioning parties (which are usually employers, but can be unions), in that it allows more time before the potential of a disfavored outcome. Indeed, in her dissent, Member McFerran states that these changes means that the quickest an election can be certified moves from 28 days after an election order to 78 days. And that represents the real impact of these rules. Remember: the NLRA’s explicitly stated policy is to promote employees’ ability to freely choose collective representation. Delaying their ability to do so for no apparently good reason conflicts with that policy.
Wednesday, October 9, 2019
Ifeoma Ajunwa (Cornell I.L.R.) published an op-ed in yesterday's New York Times about the discriminatory use of algorithms in the hiring process. Ifeoma has done a ton of great work on algorithmic discrimination -- it's great that she's taking it to an even wider audience. Here's a brief excerpt:
Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided.
In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers.
The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.
The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.
The op-ed is Beware of Automated Hiring.
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.
Friday, August 23, 2019
Today, the NLRB issued another major reversal, this time with regard to employees’ access to their worksite. The case is Bexar Performing Arts Center Foundation, which involved symphony employees who tried to peacefully hand out leaflets on the sidewalk outside the performing arts center where they usually worked. The problem? Their employer leased space from a third-party property owner, who called the police to remove them from the sidewalk.
In Bexar, the Board overruled two of its cases--New York New York and Simon DeBartolo—which held that employees in these generally had access rights to public areas of the worksite if they regularly worked for the employer (the symphony in Bexar), even if they did not work exclusively at the property in question. The property owner (the performing arts center) could still exclude those employees if it showed that the employees’ activity significantly interfered with the use of the property or was otherwise justified by other legitimate business reasons. The Board stated its new rule as follows:
[W]e hold that a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, we will consider contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, we will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.
There are several important aspects to this rule. First, because it’s using the Supreme Court’s definition of “alternate means” from Lechmere, what the Board is really saying is “virtually never.” If you’re not regularly immersed in labor law, let me assure you that this is not an exaggeration. The Court has made clear that “reasonable alternate means” means any means to contact employees, no matter how ineffective. By way of example, the Court expressly cited that off-shore oil rigs or remote lumber camps might qualify, although with the better communications that exist now I’m not so sure that would even do it anymore.
Although it relies heavily on Lechmere, it completely mangles the reasoning behind the decision. The Supreme Court's holding in that case that non-employees (typically union organizers) almost always lack the right to access the employer's property for NLRA-protected activity was based on the premise that those non-employees only have an "indirect" Section 7 right to communicate with employees (a holding often, and justly, criticized, but one that I'm accepting as current law.) But, as McFerran’s dissent here and the Board in New York New Yorkemphasized, the "non-employees" in Bexararen't in the same position as the non-employee union organizers in Lechmere. These are employees of the employer with whom there is a labor dispute. And the only way for them to access their workplace is to access the third-party's property. In other words, these employees have a "direct" Section 7 interest under Lechmere.
This decision will have a significant impact, which I don’t always say (many reporters have heard me utter something along the lines of “although the labor law community, including me, may be up in arms about X decision, I’m not sure it will have that widespread of an impact . . . ."). But this decision substantially limits employees’ ability to access their worksite for NLRA activity if their employer leases the worksite. In other words, such employees may have effectively no option to handbill, picket, or engaging in any other NLRA-protected purposes at work. Think, for a moment, how many workplaces this impacts. Every mall, shopping center, apartment building with commercial space, etc. (heck, the number of Starbucks alone that fit the bill boggles the mind). Then think about employees who work at multiple sites, like janitors. None of them will be able to access the workplace to leaflet or engage in other protected conduct unless the property owner agrees. And few will in the face of resistance from the employer/lease who is paying rent.
In addition to drastically minimizing employees’ NLRA rights, it doesn’t make much sense from even a property rights view. If you're a property owner--say a mall--who leases to businesses, you should expect your property to be used for valid businesses uses. And those uses should include employee activity that is protected but the NLRA. Otherwise, what's to stop union-phobic employers from ensuring that they only lease their worksites from third-parties who will do the employers' bidding by excluding all off-duty employees engaging in NLRA activity? Or an employer with multiple worksite could ensure that its employees work at least once at another site, thereby violating the “exclusively” requirement (like the symphony employees here, who sometimes perform elsewhere).
Finally, this is part of a larger trend of elevating property interests above all others. Not a new trend to be sure (the Lochner-era being the most notable), but one that has picked up speed in recent decades. It's troubling, not only because there's no reason why property rights--which derive entirely from state law--should trump federal statutory rights. But also because they invariably, and no doubt intentionally, favor wealthy property owners over employees and others who are not so financially fortunate.
If you’re interested in this topic, you can read more about the background of Lechmere and other cases in my articles, Communication Breakdown: Reviving the Role of Discourse in Regulating Employee Collective Action and Taking State Property Rights Out of Federal Labor Law, or a more modern take on the tension between NLRA rights and property rights in these pieces: Worker Collective Action in the Digital Age; The Silicon Bullet: Will the Internet Kill the NLRA?; and Amicus Curae Brief to the NLRB in Rio All-Suites Hotel & Casino. As you can tell, this topic hits home for me (I actually excluded several other pieces). And I'm still waiting for the shoe to drop in Rio All-Suites, which deals with employees' use of its employer's electronic communications systems.
Wednesday, August 14, 2019
Today marked a personal milestone for us at the Workplace Prod Blog, with our 5,000,000th page view. It's hard to fathom that many views over the years, not to mention a bit humbling. I personally want to thank Rick Bales & Paul Secunda for inviting me to co-edit the blog more years ago than I can remember, as well as all of my new bloggers: Charlie, Joe, Marcia, and Sachin. And, of course, all of our readers who quite literally has made this all possible. The blog has been instrumental in introducing me to many of you in the labor and employment law community, and for that I'll be forever grateful.
Friday, August 9, 2019
This morning, the NLRB released a notice or proposed rulemaking affecting union elections. (Thanks to Robert Iafolla at Bloomberg Law for sending them my way and providing a good description of them.) At the outset, I'll note that these proposals, while important, aren't as central as the rules that govern how the more typical union elections are run and challenged. On to the proposals . . . .
1. Blocking Charge Policy. You can read more about this policy in my article discussing the current elections rules. The short version is that the NLRB has long had a policy refusing to hold an election until any alleged, non-trivial unfair labor practice charges have been dealt with. The rationale is that unresolved ULPs can interfere with a free and fair election (for instance, imagine if the employer was firing union supporters--that would improperly influence an election). The blocking charge policy has the most traction in union decertification elections because unions have effectively used this policy to delay those elections (sort of the flip side of employers dragging out initial union certification elections). As the Board majority noted in its proposed rules today, I'm sympathetic to the concern about union abuse of blocking charges and have been open to amending that policy as part of broader, substantive election reforms, but I'm not a fan of where the Board seems to be going.
The Board has announced that it proposes to adopt the General Counsel's "vote-and-impound" procedure, in which the Board would still hold the election, impound the ballots, and wait until after the ULP charges have been resolved to determine whether to open them. If the Board was quick to throw out ballots and rerun the election if it found merit to ULP charges, this rule might be OK, but I don't see that happening (and the proposal does say that if the Regional Director finds no merit to the ULP allegations, the ballots will be counted immediately). Instead, what I envision happening is the Board will be willing to use impounded ballots even in the presence of ULPs or other behavior that likely affected the election. For instance, if it finds a ULP and remedies it, will the Board rerun the election? If not, then the original ballots will remain tainted. The notice of proposed rule making obviously doesn't get into the details, but until I see something otherwise, color me skeptical. I would prefer instead new rules that made it somewhat harder to use a blocking charge to delay an election and/or capping the amount of time that a stay would remain in effect.
2. Voluntary Recognition Bar. Again, we don't know for sure what the Board will end up doing, but this sounds like deja vu all over again. As a reminder, the voluntary recognition bar is the NLRB's policy that mirrors the statutory election bar, which prevents a union election within 12 months after a prior one. The purpose of the bar is both to avoid too many disruptions to the workplace (usually after a union loss) and (if the union won) to give the union some time to work with an often-resistant employer to produce results before facing a potential decertification vote. But, if the employer voluntarily recognizes a union, rather than going through an NLRB-run election, then things are more malleable. Traditionally, the Board barred an election for a "reasonable period" after voluntary recognition (usually about 6 months). The Bush Board reversed that in Dana Corp., by allowing a decert petition immediately after voluntary recognition, for up to 45 days; the Obama Board then shifted back to the original rule in Lamon Gasket.
In the proposed rulemaking, the Board states it intends to reinstate the Dana Corp. rule. More troubling, the Board also makes a point to note that some commentators believe they should eliminate the bar in its entirety, which is disturbing. As the Board is well aware, unions have increasingly sought voluntary recognition because of their belief that the NLRB election process remains stacked against them. Eliminating the voluntary recognition bar will make that avenue less appealing . . . although probably still better than the NLRB process for unions that want to avoid it. So, while I'm not fan of Dana Corp., it's much better than eliminating discretionary election bars altogether.
3. Construction Pre-Hire Agreements. Section 8(f) of the NLRA provides a unique avenue for union recognition in the construction industry. Because that industry often involves numerous, short-term projects, the typical union recognition process doesn't fit well. In short, Section 8(f) allows an employer and union to enter into a "pre-hire" agreement that involves recognizing the union, even if there isn't a showing of majority union support (this is why you often see certain construction employers considered either "union contractors" or "non-union contractors"). Those agreements, however, can not permit any election bars. The Board has fluctuated over the years on how a union can convert an 8(f) recognition status to a more traditional Section 9(a) one, with the accompanying election bars. Currently, Board policy allows, under certain conditions (including the union's claim that it has evidence of majority support), for a union contract to provide 9(a) status. The D.C. Circuit has rejected this policy, and the Board is indicating that it is going to follow suit--requiring an actual showing of majority support.
Member McFerran has a length dissent, which is worth a read and explains some of the criticisms I've raised in more detail. And, to reiterate my self-plug, check out my article on NLRB elections, NLRB Elections: Ambush or Anticlimax?, for more explanation of some of these topics and as a preview of what might be another set of election rule proposals.