Tuesday, January 15, 2019
Among the many NLRB doctrines that have swung in various directions is the one in which an individual employee's actions or words may be concerted activity protected by Section 7 of the NLRA. The Meyers I and Meyers II cases are the foundation for this doctrine, but we've seen many subsequent Board decisions applying the doctrine in different ways depending on the Board members involved. This week's decision in Alstate Maintenance continues that trend, as the full Board (well, the current four members at least) purports to "begin the process of restoring the Meyers standard." Maybe I'm missing something, but it seems to me that, purely from a doctrinal perspective, that statement is an overreach and the decision is a bit of tempest in a teapot.
Under the Meyers standard and related cases, the General Counsel can show that an individual employee is engaging in concerted activity if the employee was attempting to initiate or to prepare for group action, or if the employee was engaging with or on behalf of a group of employees (there are other ways as well, such as enforcing rights under a collective-bargaining agreement). The Board doesn't attempt to alter these underlying rules, but instead goes all in for a stingy interpretation of individual-concerted activity. In essence, the Board distinguished cases where it felt it could do so, and overruled the one case that it believed to be too much of an impediment (WorldMark by Wyndham). In particular, the Board rejected statements in that case that an employee who protests in a group meeting in engaging in concerted activity by attempting to intimate group action and that complaining in a group setting is necessarily concerted activity (the dissent disputes this characterization of WorldMark). Instead, the Board in Alstate reiterated the need to engage in a fact-specific inquiry under Meyers II. The money quote is:
Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. Consistent with Whittaker and Chromalloy Gas Turbine, relevant factors that could tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.
 We do not hold that all these factors must be present to support a reasonable inference that an employee is seeking to initiate or induce group action. In keeping with Meyers II, the determination of whether an individual employee has engaged in concerted activity remains a factual one based on the totality of the record evidence. . . .
One thing that's odd about this case is that it involved not only an employee's comment (a skycap who initially stated that a group of skycaps had helped a similar group arriving at the airport previous and didn't receive a tip) but also a partial work stoppage (the employee and others refused to help the new group). Alas, the GC only focused on the comment, although one might wonder why the fact that group action actually occurred did play a bigger role in the Board's analysis. Nevertheless, I don't see Alstate as making any major, substantive changes to the Meyers standard. Rather, it seems to be an example of a restrictive reading of Section 7 that we'd except from a Republican Board, announced in a way to send a message to parties about what it's doing. That said, as Michael Duff emphasized to me, even if the doctrine isn't effected much, this can have real impacts on employees who are protesting conditions at work.
Yes, says Erin McHenry-Sorber (Assistant Professor of Higher Education, West Virginia University -- and thanks to Paul Harpur for sending me the link). Here's an excerpt from her recent article in The Conversation:
The Los Angeles teachers strike suggests that the wave of teacher protests is not over.
Teacher strikes and work stoppages have been preceded by a nationwide teacher shortage that continues to grow across many states, which do not have enough certified math, special education, science, and in increasing cases, elementary teachers – to meet the needs of their students. In California 80 percent of districts reported a teacher shortage in the 2017 to 2018 school year.
Teacher shortages are most often blamed on low teacher pay, one of the commonalities across teacher strikes. These shortages are arguably exacerbated by an increase in the “teacher pay penalty,” the term used to describe disparities in teacher salary compared to professions requiring comparable levels of education.
At the same time teachers find themselves increasingly undervalued, most states are still funding their public education systems at levels below that of the 2008 recession. This includes California, which is ranked 41st nationwide in per pupil spending when adjusted for cost of living. As long as public schools remain underfunded, the nation can expect to see more teacher strikes in other school districts and states in the near future.
Monday, December 31, 2018
The D.C. Circuit has just ruled on the NLRB's Browning-Ferris joint-employer test, largely approving the standard that made many on the employer-side of things apoplectic. In Browning-Ferris v. NLRB, the court approved of the joint-employer rule, but remanded because it held that the Board didn't apply part of the rule correctly. This issue is becoming increasingly convoluted, so let me break down some of what's going on.
- Why did the court decide this case in the first place? As we've been following, the Board has already reversed the Browning-Ferris test once, which they had to vacate because of a recusal issue. They are now in the process of reversing course via rulemaking. Despite that, the Board asked the court to decide the case, which the majority readily agreed to do, over a dissent. The reason the court did this brings me to the second point.
- De novo review for the joint-employer test. The court emphasized that determination of the Board's joint-employer rule is reviewed de novo. Because the joint-employer standard is based in common law, according to the court, no deference to the agency is required (as opposed to application of the standard, which is a mixed question of law and fact). And because the court wasn't giving the Board any deference, the court determined that there was no need to wait for the Board's new rule. Note that this is not good news for the Board's draft joint-employer rule, although may be good news for those who prefer a more consistent rule over the long-term.
- Reserved and indirect control is relevant to joint employment. As a reminder, the big argument is whether and to what extent the joint-employer test should consider reserved and indirect control. Browning Ferris said that actual and direct control is not required; the current Board disagrees. In this case, the court was crystal clear that the argument made by the employer and dissenters in Browning-Ferris that joint employment can be based only on exercised control and direct and immediate control are wrong. Full stop. As the court noted, the common law is riddled with examples and statements that reserved control and indirect control are relevant to joint employer determinations. So this extreme view--that joint employers must have actual and direct control--is currently dead in the D.C. Circuit. But there's a middle ground that may still available, which I'll get to in a moment. But first . . .
- Remand. Despite uphold the Browning-Ferris test, the court held that the Board mis-stepped in this case. In particular, when applying the new rule in this case, the Board didn't make clear whether it relied on evidence on indirect control over essential terms and conditions of work (which is relevant) versus indirect control over "routine parameters of company-to-company contracting," like a cost-plus contract or advance description of tasks (which is not relevant). Thus, the court remanded to the Board to clarify whether there is enough relevant evidence to support a joint-employment finding.
- Meaningful collective bargaining. The court also tacitly approved the Board's inquiry into whether a putative joint employer controls enough essential terms and conditions of employment to permit meaningful collective bargaining, but wanted the Board to define terms of that inquiry more in a case, unlike here, when the Board actually applies invokes that question. That's good news for folks, like yours truly, who have argued for a more collective-bargaining focused joint employer test.
- Finally, the money question: What next? I was talking this morning to Robert Iofalla at Bloomberg News (I will link to his article when it comes out), who is exploring this question. One option is that the Board will press an extreme position during its rulemaking and thumb its nose at the court's admonition that reserved and indirect control is relevant (which could then lead to the Board's nonacquiescence policy, possible circuit split, and cert. petition). But my guess--and I stress guess--is that the Republican majority of the Board will go as far as it can without directly conflicting with the court's decision. In other words, as it did in Hy-Brand, the Board could acknowledge that evidence of reserved or indirect control can be relevant. And, then, it can answer the questions that the court expressly left open: whether only indirect and/or reserved control is enough to find joint employment. The current Board will obviously say "no," which will leave us with basically the same test we had before Bronwing-Ferris. The Board could still lose when the D.C. Circuit or another court takes up that question, but this seems to be a lower risk strategy than going the extreme route. The "relevant-but-not-sufficient" strategy still leaves plenty of room for a narrow joint employer test, especially when a Trump Board is applying it, while avoiding the time-consuming litigation that would result from defying the D.C. Circuit and seeking a circuit split. Avoiding these types of risks are especially important when the Board is doing something it rarely does by engaging in substantive, formal rulemaking.
Still plenty more to come, so stay tuned.
Friday, December 7, 2018
- Anne Trebilcock, ed., Comparative Labour Law (Edward Elgar, 2018), 904 pp. Collection of key journal articles on the topic, with the editor's introduction (comparative labor law's uses and limits, sources and methods, axes of comparison, means of enforcement). Link: https://www.e-elgar.com/shop/comparative-labour-law.
- Anne Trebilcock, "International Labour Organization," in Michael Bowman & Dino Kritsiotis, eds., Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018), 848-880. Overview of the ILO's unique approach to treaty making, revision and interpretation.
- Anne Trebilcock, "Challenges in Germany's Implementation of the ILO Decent Work for Domestic Workers Convention," 34:2 International Journal of Comparative Labour Law and Industrial Relations (2018) 149-176.
Friday, November 30, 2018
One of the questions that followed the Supreme Court's Janus decision was whether unions had to give back dues that unions had already collected. Several employees, backed by anti-union groups, sued based on the theory that unions shouldn't be able to keep funds that the Court has announced were unconstitutionally required under collective-bargaining agreements with their public employers. Unions, on the other hand, responded that although the Court had long made clear its intention to overrule Abood and rule this way, clear precedent states that until the Court makes such a change, current caselaw applies. This isn't just an interesting legal question; there is a ton of money at stake for unions.
Yesterday, we got the first judicial decision on this question, in favor of unions. In Danielson v. AFSCME, the Western District of Washington dismissed a lawsuit seeking a declaratory judgment that past-paid fees were unconstitutional and seeking a return of those funds. At the heart of the dismissal was the court's holding that the union involved enjoyed a good faith defense against the Section 1983 claim because when they collected the fees, they were legal under both state and federal law. There's a general understanding among many courts that Section 1983 includes a good faith defense and the court held that it applied here. That's not surprising given that the Supreme Court has been very clear that lower courts should not try to predict what the Court will do--the law is what it is until the Court says it isn't.
This is a significant win for public-sector unions, but this issue isn't over. There are several other identical suits which could well come out differently, and I'm sure this case will be appealed. So stay tuned.
Thursday, November 15, 2018
Congratulations to Ken Dau-Schmidt, Marty Malin, Roberto Corrada Chris Cameron, and Catherine Fisk on the imminent publication of their casebook Labor Law in the Contemporary Workplace (3d ed. West, 2019). Here are the publisher's notes:
Labor Law in the Contemporary Workplace prepares students for the practice of labor law by introducing them to the principles of American labor law and many of the issues that labor attorneys face. The book is organized around contemporary problems as a means of teaching the core principles of labor law. Although the primary focus of the book is the National Labor Relations Act, considerable attention is given to the Railway Labor Act and public-sector labor laws because of their growing importance in contemporary practice. The third edition takes account of changes in the law since the first edition and second editions were published and in particular new interpretations of the National Labor Relations Act by the National Labor Relations Board and recent state restrictions on public sector collective bargaining.
Monday, November 12, 2018
The National Center for the Study of Collective Bargaining in Higher Education and the Professions announces its 46th annual conference, with Paul Krugman giving the keynote speech. See this link for conference information. As sign of how many presentations and speakers there are--there are too many for me to list here. Check out the link and see for yourself. Deadline for early bird registration is Dec. 28.
Wednesday, November 7, 2018
Erwin Chemerinsky & Catherine Fisk (both Berkeley) have posted on SSRN their essay (132 Harv. L. Rev. Forum 42, (2018)) Exaggerating the Effects of Janus: A Reply to Professors Baude and Volokh. The Baude/Volokh article is an apologia to the multiple cases filed post-Janus, ostensibly by public-sector former union dues-payers but in reality financed by employer-friendly organizations trying to break public-sector unions, to apply Janus retroactively. Here's an excerpt from the abstract of the Chemerinsky/Fisk article:
This essay responds to an article by William Baude and Eugene Volokh, who argue that unions are likely retroactively liable for the agency fees that union-represented workers previously paid. We explain that public employee unions, as private membership organizations, are not state actors liable under 42 U.S.C. § 1983.We then show that even if unions were found to be acting under color of law for purposes of section 1983, they would be entitled to qualified immunity as a defense because negotiating for fair share fees did not violate the constitution at the time unions negotiated fair share fee agreements and received fees. At the very least, unions are entitled to the separate defense of good faith immunity available to private actors who are sued under section 1983 for conduct undertaken in good faith in collaboration with government actors. Finally, we show that unions are not liable on state law theories. Qualified immunity is a defense only to claims for damages under federal law, and good faith immunity has likewise been applied only to claims for damages. For that reason, plaintiffs in the post-Janus fee recovery litigation have alleged state law claims and styled them as equitable. Some states (e.g., California) have eliminated such liability through legislation. Even in states that have not enacted such laws, however, we show that well-settled equitable principles foreclose liability. Finally, this essay responds to Baude and Volokh's argument that Janus endangers other mandatory fees imposed by the government, such as bar dues and public university student activity fees.
Wednesday, October 31, 2018
Thanks to Paul Harpur (U. Queensland - Beirne Law) for sending word that today, the Australian State of Queensland introduced a new Human Rights Bill 2018 (Qld) before Parliament. As Queensland has only one House of Parliament, where the government currently has a majority, it is almost certain this bill will soon become law.
The Human Rights Bill 2018 (Qld) declares that Queenslanders have 21 Civil and political rights and two Economic, social, and cultural rights. Many of these rights are relevant to university students and workers/labour in Queensland. On the labor side, thee rights include:
- Freedom of thought, conscience, religion and belief,
- Freedom from forced work,
- Freedom of expression, and
- Peaceful assembly and freedom of association
On the education side, the right is extended, beyond K-12, to a right to “have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all.” Ability equality is a concept that disability rights scholars across the globe have been arguing for. In Queensland, for example, Paul testified in 2018 to a Queensland Parliamentary Committee, arguing that the United Nations Convention on the Rights of Persons with Disabilities is the declaration of ability equality.
Some recent labor and employment news:
- Wages look like they're finally rising in a significant way. A DOL report showed an almost 3% increase in wages for this time last year, which outpaces inflation and is the highest increase in a decade.
- A couple of joint-employer items. First, the NLRB has extended the time to comment on a proposed new rule to Dec. 13. Also, the tussle between Congressional Democrats and the Board over the proposed change continues. As this Bloomberg Law (subscription required) article details, the Democrats want evidence supporting the claim that the current, broader joint-employer test is causing the problems that critics claim. This touches on a broader area--the NLRB is really bad at using actual evidence to support its policy views. Some of this is the legacy of the ban on economic analysis (which is so stupid--why in the name of all that is rational can't we have a bipartisan agreement that analysis is useful for labor law, like, say, the rest of the government?). But some of this, frankly, is just lazy. There's nothing stopping the Board from citing others' studies, which it does far less that it could. And this is an equal-opportunity offense. Although some members have been better on this, Board from both parties tend to be woefully inadequate on this score.
- As is the case when the White House changes parties, the DOL has been adjusting how it regulates union finance requirements. Unsurprisingly, they're ratcheting up the requirements by increasing the number of entities covered and expanding what covered entities need to provide. This is shades of the Bush II administration, where the changes were challenged in court. Expect the same here.
- The General Counsel has announced that it's changing its approach to allegations of union negligence. In contrast to the long-standing deferential approach the Board has taken, the GC says he will now prosecute unions for negligence under Section 8(b)(1)(A) (for failure of the duty of fair representation) when it does things like lose a complaint or fails to return a call.
Tuesday, October 2, 2018
Robert Iofalla at Bloomberg Law has an interesting article out today looking at the number of times the NLRB's new joint-employer test in Browning-Ferris has been applied. As readers know, there has been a lot of handwringing over this test. But according to the article, it's been applied in only 14 out of almost 1,100 ALJ and Regional Director cases since it was issued in 2015. But it's unclear what that figure means.
As the article points out, there are two ways to look at this. On one hand, it may mean that Browning-Ferris isn't that big of a deal and that employers easily adjusted to the new standard or, as was likely the case for the majority of businesses, the changed standard didn't affect them in the first place. On the other hand, the number of cases invoking Browning-Ferris doesn't capture its full impact, as businesses may have made significant changes to stay in compliance. I suspect there's truth to both views. For instance, the 14 cases almost certainly doesn't capture the new rule's full impact; it's impossible to believe that far more businesses didn't at least have Browning-Ferris as a consideration when making relevant decisions since 2015. However, this also reflects that the histrionics that followed Browning-Ferris--predicting the demise of franchising and the like--were grossly exaggerated. As the Board explained in Browning-Ferris, it was returning to an earlier version of the joint-employer rule and the changes it made from the immediately prior standard were not so great that it would fundamentally change business models like franchising.
Time may tell whether we'll see further evidence of Browning-Ferris' impact. Or not, if the tea leaves are correct that the NLRB will reverse it soon.
Two Fight for $15 stories today. The first is that Amazon has agreed to pay all of its U.S. workers at least $15 an hour. Notably, this includes part-time and temp workers. Effective November 1, this change is expected to apply to 350,000 workers (although I can't find a number on the number of those workers who currently make less than $15 an hour). Amazon is also raising pay in Britain. This follows other increases or promised increase by major companies like Target, but given Amazon's size and profile, it's unsurprising that this is making a bigger splash.
In related news, the Fight for $15 movement has organized a series of national walkouts, rallies, and protests from October 2-4. The aim of these actions are for higher pay and to help candidates that support labor rights. Its still early, but thus far some of the more notable actions seem to be focused in the Midwest, although there are certainly others as well.
Thursday, September 27, 2018
As we noted earlier, the NLRB has signaled another flip in its approach to regulating employees' use of employer email systems for NLRA-protected communications. This pending case, Rio All-Suites Hotel & Casino, has also gotten entangled with the now-frequent battles over NLRB Member recusals. In Rio, several senators wrote to Chairman Ring expressing concern about the participation of Member Emanuel, whose former firm--Littler Mendelson--continues to represent the employer in Purple Communications. Purple is the case that the Board is threatening to reverse in Rio; indeed, Purple is still being litigated. Well, sort of. The Ninth Circuit just granted a motion to pause the appeal until the NLRB issues its Rio decision. Thus, the concern over recusal. Chairman Ring recently responded to the senators' letter and, without staking out a position, stressed both that the NLRB would follow its usual procedures on recusals and would keep an open mind on the issues in Rio.
With that open mind in mind, I have submitted an amicus brief in the case. As I stress in the brief, I think the legal precedents governing email usage are crystal clear, but I'm not holding my breath about the what the Board does.
Friday, September 21, 2018
Currently, two big strike events are in the news. One has already occurred and the other may be on the horizon.
First was a nationwide strike on Tuesday by some McDonald's employees. This strike was unusual for numerous reasons. One is that we don't usually see low-wage retail workers striking, although the Fast Food 15, OUR Walmart, and other similar efforts have begun to change that norm in recent years. As a result, what stands out most to me was the object of the strike. It wasn't the traditional bread & butter workplace issues like pay, benefits, and hours. Instead, the workers were striking to protest sexual harassment and to demand that McDonald's do more to address the issue. What this strike may be telling us is that there are new norms developing. Norms in which retail workers are more willing to strike and willing to do so for issues that aren't necessarily traditional, but are still vitally important, especially in the current #MeToo environment.
The second, potential, strike is far more traditional. It involves the steel industry, where steelworkers are threatening to strike United States Steel and ArcelorMittal if contract negotiations don't result in raises and other benefits that reflect those company's improving financial footing. An interesting twist is that part of the steelworkers' argument is that after taking many years of wage freezes, they want to share in the improving fortunes brought on in part by the new tax cuts and steel tariffs. An entirely predictable situation, but one that I expect will get settled because those companies won't want production halted.
Thursday, September 13, 2018
In case all of the prior signals weren't enough, the NLRB has now formally announced a "new" proposed joint-employer standard. Although it won't be released until tomorrow, the Board's announcement makes clear that it intends to return to the pre-Browning-Ferris standard. The Board describes this new/old standard (which the Browning-Ferris Board argued was itself a change from an earlier standard) as follows:
Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.
This is a substantial change from the Browning-Ferris standard, which would allow a joint employment finding if employers share governance of essential terms and conditions of employment. Among the factors used for this determination are whether an employer has exercised direct control over terms and conditions of employment indirectly or whether it has reserved the authority to exercise control.
Obviously, the NLRB has to go through the notice and comment period, but the chance of the current Board majority (Member McFerran is dissenting) changing its mind about going back to something like the pre-Browning Ferris standard is about the same chance as my computer spontaneously levitating.
On one level this is just part of the normal ebb and flow that we see with new administrations. What I find more interesting is that the current Board seems to be using rulemaking as a means to make its changes harder to reverse. There's nothing inherently wrong with this--that's what most agencies do, after all--but it represents a significant shift from the Board's usual practice of using decision-making for substantive rules. I'm actually ambivalent about this as a general matter, but I'll be curious to see whether concerns about courts reversing Board rules more frequently than case decisions plays out.
Tuesday, September 11, 2018
The NLRB announced today that it is inviting briefs in Loshaw Thermal Technology and Casale Industries. Both cases involve a lesser-know rule under the NLRA (at least if you're not involved with construction union very often). Section 8(f), among other things, allows an employer and construction union to establish a bargaining relationship without a showing that the union has majority support (this reflects the reality that construction jobs are by their nature usually temporary). This provision essentially establishes a presumption of majority support, albeit one that can be challenged by a valid decertification petition.
In its 2001 Staunton Fuel decision, the Board concluded that parties could transform their bargaining relationship from Section 8(f) to Section 9(a)--the more typical mean of recognition, which usually involves a showing of majority support and is harder to challenge--through a collective-bargaining agreement that clearly states that the union said that it could show that it had majority support. It is that rule that the Board is currently questioning in Loshaw Thermal.
In Casale, the Board is also questioning the time period during which a construction union's Staunton 9(a) recognition can be challenged. Casale stated that an employer only had six months after the collective-bargaining agreement to argue that the union actually lacks majority support.
Wednesday, September 5, 2018
Michael Yelnosky has just published on SSRN an new essay essay, "Labor Law Illiteracy.” The abstract:
Labor law, both as an academic discipline and a subject of public consciousness, is in decline. The Supreme Court’s recent decisions in Epic Systems v. Lewis and Janus v. AFSCME reflect a notable consequence of this decline – what I am calling labor law illiteracy. The majority in Epic Systems seems to misunderstand one of the basic principles of the National Labor Relations Act, and the majority in Janus based its decision, in part, on a simplistic and one-sided view of the justifications for public sector labor law and collective bargaining.
I'm sure many readers will be nodding their heads along with this one. So check it out.
Wednesday, August 15, 2018
The NY Times has a story on Muriel Pénicaud, the French labor minister who has been leading the charge of reforming France's labor regulations. Macron, the French President, has been trying to get reforms through for a while but has been largely stymied by protests (you've got to hand it to the French, their capacity to protest may exceed even their cooking talent). As a result, Pénicaud has been embarking on a long series of negotiations with unions and businesses. Stay tuned for what the final results may be.
Also--shameless plug warning--if you want to compare France's legal and social welfare protections for dismissed workers, check out this article that I co-authored with Sam Estreicher, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, 92 North Carolina Law Review 343 (2014). We compared not only the laws as written, but also how they operate (e.g., average win rates, average/maximum/minimum awards) for twelve countries, including the U.S.
Tuesday, August 7, 2018
The AP has just called the Prop A vote in Missouri, with votes currently in favor 63%-37%. This ballot measure strikes down the legislature's attempt to make Missouri a right-to-work state. Especially so soon after Janus, this is a good night for organized labor.