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.
Monday, June 3, 2019
Special thanks to Richard Fincher (arbitrator & adjunct - Cornell ILR) for sending word (via the Employee Rights Advocacy Institute and Construction Dive) that Colorado has enacted a bill making wage theft a criminal offense. Under the Human Right to Work With Dignity Act, unscrupulous employers who intentionally withhold more than $2,000 in wages could be found guilty of felony theft.
Monday, April 22, 2019
The Supreme Court has just granted cert. in three cases to determine whether Title VII prohibits discrimination based on sexual orientation and gender identity. We've covered this issue for years, as the answer has gone from largely a uniform "no"; to the EEOC and DOJ saying "yes," while the circuits courts said "no"; to the current situation where some courts say "yes," others say "no," the EEOC says "yes," and the DOJ says "no." You get the idea--maybe the perfect storm of the classic split that attracts Supreme Court attention.
To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement. I can probably best summarize my prediction by saying that I'd have more hope if Justice Scalia was still on the Court, as he would occasionally argue for strong deferral to the EEOC, even when he likely disagreed personally with the result (showing his past as an administrative law professor). The issue is really interesting from a legal perspective. It involve congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases--and that can result in political outcomes that advocates may not always like. The oral arguments in these cases will definitely have some fireworks, and the sure-to-be split decision will likely be quite heated. So hold on tight . . . .
Friday, March 15, 2019
Thanks to Aaron Halegua, who has been working on this case, for updating us. Here's an excerpt from the Associated Press story:
Seven Chinese men allege in a lawsuit that they were victims of a forced labor scheme while constructing a Saipan casino.
The casino and its contractors violated U.S. trafficking laws by exploiting the workers, the lawsuit said. Saipan is part of the U.S. Commonwealth of the Northern Mariana Islands.
The lawsuit was filed in December. It was amended Friday to add trafficking claims and to include casino owner Imperial Pacific as a defendant.
According to the lawsuit, the men were subjected to 12-hour workdays, dormitories without showers or air-conditioning and a dangerous construction site.
Thursday, March 14, 2019
First were the adjuncts at Duke. An now, adjunct faculty at Elon joined in the act by voting for union representation--112 to 68 in favor of representation by the SEIU. It's not clear whether the University will file election objections, although they have already noted that this is an option. However, given that some of the issues driving support for the union seem relatively easy to address (e.g., not allowing adjuncts to apply for full-time job openings), one has to wonder if it wouldn't make more sense at this point to simply deal with those issues and move on. But we shall see . . . .
This goes to show that even in a state that regularly vies for the lowest union density in the country, there is still labor activity going on.
Friday, March 8, 2019
Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:
In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.
The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.
One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned.
Yesterday, the Department of Labor announced its much anticipated proposed new overtime regulation. This goes to whether employees can be considered exempt from overtime as administrative, executive, or professional employees. The only real change is to the minimum salary threshold required to count an employee as exempt from overtime (that is, no matter what employees' duties are, if they don't make the minimum, they must get overtime if they are otherwise qualified). As readers will remember, the Obama DOL increased the salary threshold to about $47,000 a year initially, and added a measure that would have it change automatically based on average wage increases; this rule was then put on hold by a district court, largely based on a holding that the DOL relied to much on salary and not enough on employees' duties.
The new proposed rule increases the minimum salary, but only to $35,308 per year (up from the current, Bush II-era $23,660 per year that is in place after the decision striking down the previous increase). It also raised the "highly-compensated employee" rule, which makes it easier to exempt employees making over a certain amount, from $100,000 a year to $147,414. The DOL did not propose an automatic increase to these salary levels, but committed to reviewing them regularly (I'll believe that when I see it). Moreover, it left the duties test untouched.
As is the usual practice, this announcement kicks off the comment period, after which the DOL will produce a final rule. And, as is also the norm these days, there will be lawsuits. Some will argue that the increase in salary goes to far, while others will argue that the rule still makes it too easy to exempt employees. Expect mixed messages from the district courts, which parties will handpick to try to get more favorable rulings. The key, therefore, will be to wait for the appeals courts to step in. So, we should see something of a final word on the final rule in, I'd guess, a couple of years from now.
Thursday, March 7, 2019
USA Today Sports has an interesting article on minor league baseball players and their low--and, during major league spring training, nonexistent--pay. Major League Baseball classifies minor league players as being involved in "short-term seasonal apprenticeships." The article does a nice job showing why that's a stretch, to put it mildly. How has MLB pulled this off? Lobbying, and lots of it. The article explains some of the special legal maneuvers at play (pun intended):
Minor league players earn salaries that amount to less than minimum wage for up to seven years on their first pro contracts, and the rigorous spring-training schedule doesn’t exactly allow time for moonlighting.
After a lobbying effort by MLB, last year’s $1.3 trillion congressional spending bill — signed into law by Donald Trump in March — included an amendment to the Fair Labor Standards Act to exempt minor-league baseball players from federal minimum-wage protection. The so-called Save America’s Pastime Act, originally introduced in 2016 by a pair of congresspersons who received campaign donations from MLB’s PAC, appeared on page 1,967 of the 2,232 omnibus 2018 spending bill.
This winter, the league endorsed a bill in the Arizona House of Representatives to extend the federal exemption into state law in Arizona, the spring-training home for half of Major League teams. Representative T.J. Shope, who sponsored the bill, told the Arizona Capitol Times in January that spring training is “essentially a tryout,” even though all players training in every camp are already under contract with their organizations.
Shope told For The Win by email that the Arizona bill did not pass and “was probably dead before it began.” It didn’t get out of committee, meaning it never reached the statehouse floor for a vote.
That dead bill, like the inclusion of the Save America’s Pastime Act in the 2018 budget, undoubtedly reflects Major League Baseball’s efforts to combat a lawsuit first filed in 2014. Spearheaded by St. Louis-based attorney and former minor-league pitcher Garrett Broshuis, the suit seeks to apply federal minimum-wage laws to the salaries of minor leaguers. Pro players in low minor-league levels make as little as $1100 a month, only get paid during the regular season, and do not receive overtime compensation.
“MLB has signed these players up to seven-season employment contracts,” Broshuis said by phone this week. “They’re enjoying the benefits of controlling these players for seven years. On the contract, it calls them employees. They have a responsibility to treat them as normal employees should be treated. They can’t enjoy the benefits of it and not be required to meet the responsibilities that come with it.
Even if you're not a sports fan, this issue is a good reminder that wage and classifications issues didn't start with Uber. In fact, I see a lot of parallels with other industries that manage to dangle low probability/high reward opportunities in front of individuals who will work for nothing, whether as an apprentice, volunteer, or intern (I'm looking at you, fashion and entertainment industries).
Definitely read the article, as it provides a lot of detail about what's going on and the severe disparities that exist on the same field.
Friday, March 1, 2019
Today, in Kent Hospital, the NLRB ruled that lobbying expenses--even if related to employment terms or indirectly to collective bargaining--are always nonchargeable. The Board also found that the union violated its duty of fair representation by not providing nonmembers a so-called "validation letter," which I'll get to in a moment,
As a reminder, or introduction, unions' ability to require nonmembers to pay dues (where they can require them to pay any dues at all--i.e., private-sector employers in non-right-to-work states) is based on where those dues are going. The Supreme Court (in Beck, among other cases) has divided union activities into two categories: chargeable (which unions can require nonmembers to contribute to) and nonchargeable (nonmembers can choose not to contribute). Some activities are easy to classify. For instance, expenses related to negotiating and implementing a collective-bargaining agreement are clearly chargeable; political activity such as working to elect a candidate is clearly not. Kent Hospital deals with an activity in middle: lobbying. The key line usually used for distinguishing the two classifications is that unions can only require contributions for activities "necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” (Beck, Ellis).
In Kent Hospital, local nurses unions are part of a regional union (UNAP), and each local contributes a per capita amount of funds to UNAP. In turn, UNAP uses these funds for various activities, including lobbying for certain bills in states in which it operates. The bills at issue in the case were those addressed to: hospital regulation (including mergers), public employee retirement system, hospital funding, safe patient handling programs, mandatory hospital overtime, and mental health care funding. In other words, bills that would obviously impact and be of concern to nurses, albeit not always in a direct way. The ALJ found that the hospital merger, hospital funding, and mental health funding were chargeable because they would affect UNAP's ability to represent its members. The Board disagreed, concluding broadly that lobbying activities are never chargeable, because they are is not part of unions' statutory collective-bargaining obligations. This is true, according to the Board, even if targeted to matters that may be subject to collective bargaining (e.g., workplace changes related to patient safety).
Whatever one thinks about the bills here, the Board seems to have painted with too broad a brush. There is a wide range of legislation, some of which may well be directly related to unions' collective-bargaining obligations. Among many examples she uses in her dissent to criticize the majority's categorical "lobbying is nonchargeable" rule, Member McFerran cites a bill that would change terms in a collective-bargaining agreement. The dissent is well worth the read, as it does a good job undercutting the majority's categorical approach.
Finally, the Board addressed the union's failure to provide objectors an audit verification letter, which the union possessed but didn't provide to nonmember objectors because it didn't think it was legally required to. An audit verification letter is what it sounds like: something from an auditor stating that the union's classification of expenses is appropriate. Following the Ninth Circuit, the Board concluded that unions must provide objectors the audit verification letter, rather than the mere assurance that the auditor agreed to the classification as occurred in Kent Hospital. Member McFerran agreed, although dissented to applying this new rule retroactively.
Friday, February 22, 2019
New York has been a recent hotbed on labor and employment news. Last week, New York City passed a ban on hair-based discrimination--a serious issue for those who are affected by hairstyle policies, but often not given the attention it deserves. Moreover, last month, the Governor signed the Gender Expression Non-Discrimination Act (GENDA) into law. Bill Herbert (Hunter College) has some other ideas for ways in which the state can lead on labor and employment issues, which he described in a recent Daily News op-ed. Among his recommendations:
- Give domestic workers and farmworkers collective-bargaining rights.
- Give independent contractors collective rights.
- Regulate pre-employment mandatory arbitration agreements.
- Strengthen whistleblower laws.
- Re-establish the State Joint Legislative Committee on Labor and Industrial Conditions.
Friday, February 15, 2019
I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.
This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.
Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.
February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Some recent L&E stories that I've been too busy lately to post on (see my follow-up post):
- The Denver teachers strike ends after three days. Looks like the deal will significantly increase salaries and the .parties agree to study the bonus scheme that helped precipitate the strike. As an aside, this year seems to be one of more traditional, union teacher strikes, as opposed to the previous years' non-union teacher protests and strikes. I'm not sure if it's just coincidence or something else (e.g., state politicians did more to pacify teachers prior to the November elections), but it's worth watching.
- The Seventh Circuit just held en banc that the ADEA does not permit disparate impact claims by applicants. This issue has Supreme Court review written all over it. I'm not sure when, as there's some question whether there's an active circuit split (the 7th & 11th have held the same; to the best of my knowledge, all the circuits going the other way did so before the Smith v. Jackson case from the Supreme Court that clarified the ADEA's disparate impact analysis). In the meantime, it's a great teaching case because it's going some good statutory interpretation aspects, weaving a tension of textual factors, past Court precedent, and statutory purpose.
- In other Seventh Circuit news, the court just ruled on Scabby the Rat (who seems to be going out of his way to define the modern labor movement). It held that a town ordinance prohibiting Scabby did not violate the union's First Amendment rights because the ordinance was content neutral and wasn't enforced in a discriminatory fashion. At the same time, the NLRB's General Counsel has indicated a desire to go after the use of Scabby and other inflatables (which employers really hate, thereby showing their effectiveness). So expect Scabby to stay in the news.
- The NLRB has invited briefs regarding whether it should decline jurisdiction over charter schools. Note this would be a decision to voluntarily decline jurisdiction, not a ruling that the Board lacks jurisdiction (like the Northwestern college football case). I'm not a huge fan of this tactic, especially in a case like charter schools where you lack the conflict in public and private teams playing each other. But note that if the NLRB follows through, they're not going to be able to totally avoid the issue because employees could still bring individual complaints alleging ULPs.
Thursday, February 14, 2019
Thanks to Michael Oswalt (NIU) for sending word, and getting permission to post, about the adjuncts at Elon voting next week in an SEIU organizing drive. Here's Michael's description of what's happening:
I'm writing to ask if you might consider signing a legal academic letter of support for non-tenure-track faculty who are organizing a union at Elon University. Throughout the process, administrators have argued that the adjuncts are managers excluded from the NLRA. While the Region recently rejected this claim and scheduled an election for next week, the local (Workers United Southern Region) and the International (SEIU) fear that the University will appeal to the Board. This would not only delay the process at Elon, it would endanger one of the most successful and inspiring unionization trends of the past few years.
The campaign is hoping to finalize the letter by COB Saturday; here's the sign-on page.
Saturday, January 26, 2019
Yesterday, the NLRB issued a decision in the SuperShuttle DFW case, providing yet another analysis to determine whether an individual is an employee or independent contractor under the NLRA. The Board's new approach is basically just to adopt the D.C. Circuit's test from the 2011 FedEx case, which I've examined (and criticized) elsewhere. That test relies most heavily on whether the worker has "entrepreneurial opportunity."
As a preliminary matter, it is important to remember that the Supreme Court has held multiple times that when a statute lacks a meaningful definition of "employee," the common-law "right-to-control" test for determining whether someone is an employee or independent contractor should apply. The Court, in Roadway Systems, explicitly held that the NLRA is one of those statutes. So the question for the NLRB is to determine what the common-law test requires.
Note that the analysis is not referred to as the "common-law 'entrepreneurial opportunity'" test. That's because, for its long history, that test has stressed that the most important factor is the purported employer's right to control the manner and means of work of the purported employees. Entrepreneurial opportunity may be relevant, along are numerous other factors, but the right to control is the focal point of the test (I'm actually being generous here because entrepreneurial opportunity isn't explicitly a factor in the common-law test, although other factors hint at a similar concern). In fact, in an ironic twist, the D.C. Circuit just last month stressed this exact point with regard to the NLRB's joint-employer test. In that case, the D.C. Circuit gave a pretty strong warning that the Board needs to be careful not to stray too far from the common-law's focus on right-to-control.
Despite all of this, in SuperShuttle, the NLRB adopted a D.C. Circuit test that makes entrepreneurial opportunity the overriding concern in the analysis. The NLRB downplayed that that's what the D.C. Circuit did, but that interpretation is just wrong. The court held, among other things, that it was "shift[ing the] emphasis’ away from the unwieldy control inquiry in favor of a more accurate proxy: whether the ‘putative independent contractors have significant entrepreneurial opportunity for gain or loss.’" And that shift, to my mind, is indefensible.
You'll note that SuperShuttle has exactly zero citations showing judicial support for the notion that entrepreneurial opportunity is an "important animating principle" of the common-law test other than the D.C. Circuit's decisions. Those decisions, in turn, elevated entrepreneurial opportunity based on an erroneous (one might even say disingenuous) interpretation of the common law. There is simply no reasonable way to say both that the NLRB uses the common law test and that the test's primary focus is entrepreneurial opportunity. The first proposition, as the Board majority itself acknowledges, is undoubtably true; the second is just as clearly untrue. (Member McFerran makes the same point in her dissent.) The common-law test simply does not consider entrepreneurial opportunity as a key principle. Indeed, a closer question is whether it considers it at all. Thus, the Board could reasonably argue that entrepreneurial opportunity should be the animating factor, but it can't make that happen without defying the Supreme Court's clear mandate that when Congress doesn't provide a meaningful definition of "employee," the common-law test applies.
As bad as the NLRB's and D.C. Circuit's manipulation of the common-law test's history is, if that's all that was going on, this might not have too big of an impact. But it's not. What I view as the biggest practical effect of the D.C. Circuit's standard is how it define entrepreneurial opportunity. In particular, the court would allow a business to classify a worker as an independent contractor based simply on theoretical entrepreneurial opportunity, even if it is virtually impossible to take advantage of in practice. This means that businesses can manipulate their agreements with workers to give the appearance of entrepreneurial opportunity, while ensuring that workers lack any genuine opportunity to act like anything but employees. In SuperShuttle, the Board didn't explicitly get into this question, so it's not entirely clear how close they're going to hew to that aspect of the D.C. Circuit's approach, although the Board implied that they were doing the same thing, particularly by failing look into whether drivers had any real ability to use their vans for other work. But the reason why they didn't address this issue may be more disturbing. The Board failed to consider whether the drivers had the option to sell their services to other business--something that is a key characteristic of an independent contractor. Instead, the Board merely stressed that the drivers had control over how much they would work for SuperShuttle and, therefore, how much they earn. You know who else controls how much they earn by determining how much they work? Virtually every hourly and piece-rate employee (albeit with varying ability to control their hours).
Finally, one other significant impact of SuperShuttle was to reject the Obama Board's test in another FedEx decision (see a trend here?), in particular its use of economic dependency. On this point, I'm in agreement with the current Board. While I prefer a more expansive test that considers economic dependency, that's not what the Board should be using. Again, the Court has said that statutes like the NLRA with no real definition of "employee" should use the common-law test. That test doesn't stress economic dependency, unlike the test under the FLSA and FLRA, which have statutory language that suggest a broader classification. So while as a policy matter I prefer using economic dependency, that's not what the NLRB should be doing. The way to fix this is for Congress to better define "employee" or for the Supreme Court to move away from its common-law default.
In sum, SuperShuttle is a a vey poorly reasoned decision, no matter what you think the best test should be from a policy perspective. What will be interesting is to see how the SuperShuttle test fares in the circuit courts. I suspect some circuits are going to squarely reject the new rule, while some may approve. Even more interesting will be the D.C. Circuit's take. The court will have to grapple with its equally bad FedEx decision, which seems to run directly counter to its recent holding on the joint-employer issue, not to mention explicit Supreme Court precedent.