Wednesday, September 2, 2020
Tequila Brooks sends word that the D.C. branch of LERA is offering the webinar Ironworkers, Nurses, Hairdressers and Port Pilots: Behind the Scenes of the Library of Congress’s New Occupational Folklife Project. The speaker is Nancy Groce, Senior Folklife Specialist, American Folklife Center, Library of Congress. Here's a description:
In 2010, Nancy Groce, a folklorist at the Library of Congress’s American Folklife Center, designed and launched the Occupational Folklife Project (OFP). Inspired by the Work Projects Administration’s Life Histories and the work of Archie Green and Studs Terkel, the OFP set out to document the culture of contemporary American workers during an era of economic and social transition. She collaborated with fieldworkers across the U.S., supported by a specially designed online submission platform. The on-going, born-digital project has now amassed more than 1,200 audio and video interviews with workers in scores of trades, industries, crafts, and professions. The completed interviews are being incorporated into Library of Congress archives. They are now available online.
Ms. Groce will discuss designing and implementing this significant new labor history resource and how scholars and researchers can now access and use it. We invite you to join us at noon on September 9th in what promises to be a fascinating Webex event.
Saturday, August 29, 2020
Jonathan Harris has a twofer of new pieces posted on SSRN, both of which are definitely worth checking out.
The first, Unconscionability in Contracting for Worker Training, 72 ALA. L. REV. __ (forthcoming 2021), provides a really interesting take on worker training--with the added bonus of contract law thrown in! He did a great presentation on this at SEALS recently, and for those of you on appointments committees it's also his job talk. The abstract:
Despite urgent calls for retraining and upskilling workers amidst the threat automation poses to many existing jobs, a forty-year-long reduction in public and private worker training programs means that some firms offer training only with contractual strings attached. This Article exposes the dangers of these conditional training contracts and proposes the law of unconscionability as a more effective framework for legal challenges than the statutory-based claims more commonly advanced by plaintiffs.
The coronavirus crisis has led to the unemployment of millions of workers and exposed a labor market that is full of poor-quality jobs. Policymakers intuitively resort to upgrading worker skills as a workforce response to the pandemic; however, the problem isn’t with retraining. The nation’s workforce development system is in shambles. It lacks appropriate accountability mechanisms to ensure workers are matched to decent work and instead steers training for any in-demand job including those that offer low pay and poor working conditions. Enabling the changes needed requires a new legal regime that establishes a right to training for a quality job.
Thursday, August 27, 2020
Dallan Flake (ONU) has just posted on SSRN his article Protecting Professional Athletes from Spectator Harassment. I had the pleasure of reading an earlier draft and highly recommend it. Here's the abstract:
Instances of spectators harassing professional athletes because of their race, color, religion, sex, or national origin are well documented. This is not a new problem, but it is becoming worse in this age of emboldened bigotry. Fans are sometimes punished for such behavior, as are players who retaliate in response. Meanwhile, the teams and leagues that allow it to occur face no repercussions. This must change for there to be any hope of eradicating this egregious form of discrimination. The logical starting point is Title VII of the Civil Rights Act of 1964, under which employers can be liable for harassment perpetuated against employees on the basis of certain protected traits. This statute is rarely utilized in the context of spectator harassment, in no small part because the standard for holding a team or league liable for the conduct of fans may seem impossibly high. This Article argues there is room within the extant legal framework for an athlete to prevail on such a claim and provides a blueprint for how to do so. Specifically, it asserts that (1) an athlete is entitled to a presumption that spectator harassment is unwelcome; (2) spectator harassment is sufficiently severe to be actionable because it is publicly humiliating, causes far-reaching harm, and is specifically intended to undermine job performance; and (3) spectator harassment is imputable to teams and leagues because they have the resources to implement more effective measures to protect athletes but choose not to. Holding sports organizations to account is necessary to bring about changes that will better safeguard athletes from this demeaning and degrading type of abuse.
Tuesday, August 18, 2020
Given all of the attention that UNC-Chapel Hill has received recently, it was suggested to me that readers might be interested in a view from the ground (not sure whether or not to thank Rick Bales for suggesting that I rehash this). I don't think UNC's experience is necessarily unique, but being a high-profile state flagship school with a recent eye-catching student paper editorial has kept us in the news.
While I was involved with plans at the law school level, I'll note that I was very much out-of-the loop at the campus level. There were some interesting dynamics going on, including the university system Board of Governors (whose members are 100% from one political party) asserting that they alone had the power make the final call on closing UNC campuses. At Chapel Hill, it seemed early in the process that there was going to be a push to have in-person classes, including--most crucially to my mind--on-campus housing. As a former Associate Dean, I'm quite sympathetic to the position that administrators were in. Quite literally a no-win situation. However, from what I'd been hearing, there wasn't enough attention to dealing with the inevitabilities involved with bringing a bunch of undergrads onto campus. As a result, the disappointing but expected reports of unsafe parties quickly came. And soon after that, COVID clusters in four dorms in less than a week. Then closure for all undergrad classes. I don't pretend to know what the best path would've been, but the school's refusal to test returning students and constantly using FERPA to restrict info about COVID outbreaks were a couple of swing-and-misses that came to my mind (e.g., they said FERPA prevented them from saying how many students tested positive in these clusters, which doesn't make any sense to me). One of my colleagues who serves on the Faculty Executive Council had also, among other things, unsuccessfully agitated for an ethicist to join the reopening discussions with all the medical researchers and scientists, which in retrospect might've saved a lot of turmoil.
At the law school, things were somewhat different, especially given that we don't have university housing and are much smaller than the undergrad schools. I was part of a group that worked throughout the summer to prepare for fall classes, although I'm compelled to recognize that a lot of our staff and our Associate Dean for Academic Affairs did a tremendous amount of work that got us off to as good a start of the semester as one could have expected. And the administration overall was quite good at listening to and accommodating faculty and staff wishes and concerns. In the end, most of our classes were all-remote, but we did have some in-person. For example, some upper-level courses met, especially those where in-person was especially important. Moreover, we surveyed all incoming 1Ls, 25% of whom chose all-remote; 75% wanted in-person. Because their schedules were easier to control, we put those 75% in what were essentially pods. Some, but not all, of their classes were in-person (including my Contracts class). I won't go into all of the details, but I felt quite comfortable with the safety measures. Masks were required of everyone all the time, and not a single student came to school without wearing one. The students stayed in a single classroom way below its capacity and their professors simply changed between class (I think, at most, there were two in-person classes a day for any given student). To keep the classroom numbers low, a third of students were remote every day, which was a bit awkward, but was working out fine. And, to my knowledge, no law student had tested positive for COVID since the semester started.
Despite the law school being in good shape and the university allowing us to stay open, our Dean decided to go all remote yesterday. While I was personally bummed about this--I really liked being able to see my students in person--I think it was the right call. Of interest to readers of this blog, once of the Dean's primary motivations was the health of our staff. To quote part of his announcement:
Given the developments of recent days in the Chapel Hill, Carrboro and Orange County communities ... the risks of continuing this valiant effort are simply too great. We cannot justify risking the health of any of our students, faculty or staff unnecessarily when we know that we are capable of providing legal education of outstanding quality via remote technology. I feel this is best decision for our community under all the circumstances.
In an emergency meeting yesterday in which the Dean told us this was coming, it was clear that the impact on staff weighed particularly heavy on him, as he was well aware that having any in-person classes required several people to regularly come into the building to help make that happen. And given what was going on elsewhere on campus, it was a risk he didn't want to force them to take. A concern that you like to see from the head of an organization and, from what I can tell, most everyone at the law school understands and supports.
Everyone teaching in-person, of course, had prepared for this possibility, so the transition to all-remote for the law school will go smoothly. The undergrads, I'm less sure about. Many students are quite angry, for understandable reasons. And they now have to figure out their living arrangements at the last minute while classes are still happening. So we shall see. In the meantime, as a resident of Chapel Hill, I'm not sorry to see fewer students and their families in town. While many were wearing masks and acting safe, many were not. It has been disturbing to see the shocking number of parents and students who were out with no masks or social distancing. There's plenty of blame to go around here, but many of the undergrad students and parents who are upset now share some of it. The folks I feel sorry for are those who did what they were supposed to, but had the rug pulled from under them by others who did not.
Monday, August 17, 2020
I'm pleased to let everyone know that West has just published (online) the Teacher's Manual to ADR in the Workplace (4th ed.), downloadable here. This is not a traditional teacher's manual. Instead, it's full of simulation problems -- CBA negotiations, mediations, arbitrations, employment/discrimination problems, etc. etc. etc. They run the gamut from simulations that can be completed in about an hour and a half to ones that are suitable for use throughout a full semester. We have updated the original problems that Laura Cooper and others created, and added some new ones this time around. Kudos to Steve Befort, Lise Gelerrnter, and Michael Green who I was privileged to work with on this new edition of both the casebook and the Teacher's Manual. Enjoy!
Saturday, August 15, 2020
Jon Harkavy (Patterson Harkavy) sends word of two recent important cases from the Fourth Circuit. The first, which Jon says was issued from a particularly conservative panel, is Wilcox v. Carroll County. In that case, the court ruled that a pure retaliation claim under section 1983 is not cognizable under the Equal Protection Clause. Jon suggests that the case might not survive en banc review, but may go up on certiorari regardless. The second case, Stegemann v. Quatrone, is an ERISA case involving the duties of prudence and diversification.
Monday, August 10, 2020
I know I’m consumed with causation (there’s probably help available for that), but one of the many interesting things about Bostock is Justice Gorsuch’s focus on “but-for” causation. Some of what follows was triggered by an email from Steve Willborn, an unkind act given he’s well aware of my fixation.
Bostock, of course, recognizes that Title VII uses a “more forgiving standard” of motivating factor” under which “liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.” (emphasis in original). But then the opinion goes back to but-for: “because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII.”
Why did Justice Gorsuch choose the seeming harder causal hill to climb?
One possibility is obvious but seems unlikely: Title VII has the most permissive causation standard around, so focusing on motivating factor would limit the impact of the opinion as applied to the other 100 federal statutes barring “sex” discrimination so helpfully listed by Justice Alito’s dissent. Under that view, Justice Gorsuch wanted this opinion to control most if not all of these decisions. However, that possibility is inconsistent with the Justice’s later declaration that the Court was deciding only the Title VII question: “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” It also seems inconsistent with the Gorsuch jurisprudence so far as it has emerged from his short time on the Court.
Another possibility worth thinking about is that, although motivating factor is supposed to require less causal clout than but-for, perhaps Gorsuch thought that but-for was satisfied in the cases before him but motivating factor maybe not.
This seems odd, but might be explained by the Alito dissent’s insistence that discrimination on the basis of sexual orientation or transgender status isn’t sex discrimination because an employer can act on that basis without knowing the sex of the employee. For Alito, that would be the end of the matter (not that he doesn’t have other arguments), because disparate treatment requires intent to discriminate and intent requires knowledge of the protected trait: “An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.”
Alito’s on pretty solid ground with respect to disparate treatment cases, but not (somewhat oddly for a committed textualist) in terms of the statute, which speaks only in terms of causation (“because”), not in terms of intent.
So is Gorsuch (who, recall, wrote for a six-Justice majority) bringing the Court around to what is arguably a pretty radical but clearly textualist position that might blur the law’s historic bifurcation of liability into disparate treatment (intent based) and disparate impact (effects based). Presumably, both theories would remain intact but plaintiffs may now have available a third option: proving that sex was a but-for cause of an adverse decision without the need to show knowledge/intent or adverse impact.
Implicit bias comes to mind, but, more generally, loosening the requirements for proving intent might be very helpful in instances in which the employer arguably lacks the requisite knowledge to satisfy Justice Alito. That would perhaps allow challenges to “big data” hiring practices that don’t seem to be susceptible to attack under current models.
In which case, Bostock might not only resolve the sexual orientation debate but also reframe our basic paradigm.
Wednesday, August 5, 2020
Jeff Vogt (Solidarity Center, Rule of Law Dept.) sends word of this call for papers:
The ILAW Network is excited to be publishing a new law journal – the Global Labour Rights Reporter. The journal intends to be a forum primarily for labour and employment law practitioners globally to grapple with the legal and practical issues that directly affect workers and their organizations today. We see the strength of the journal being its comparative approach, given the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. We intend for the journal to be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues. The journal will run editions in English, Spanish and French. Here's the full ILAW Journal Call for Papers.
Wednesday, July 29, 2020
Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy have published a piece through the Center for Progressive Reform on the need to provide a private right of action under OSHA. An excerpt from the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation's workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation.
The handling of the coronavirus pandemic is emblematic of several decades of choices by our national and state leaders that prioritize short-term profits ahead of people. At this very moment and in plain view, President Trump and his Occupational Safety and Health Administration (OSHA), conservatives in Congress, and many state leaders are failing to protect workers from the potentially fatal risks of COVID-19. Significantly, this increased burden is not equally shared by all. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, child care, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic. . . .
Agencies like OSHA should play a key role in setting policies that ensure health, safety, stability, and power for workers in addressing workplace hazards. But since 1970, Congress and the White House have hollowed out the agency, denying it resources and trimming its authority, leaving it in a weak state. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies. . . .
Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans. . . .
Check it out!
Friday, July 24, 2020
Ariana Levinson (Louisville) writes to remind us:
The 15th Annual Colloquium on Scholarship in Employment and Labor Law will be held virtually Friday, October 9 and Saturday, October 10. The registration deadline is Friday, July 31. Once we know the number of people participating we will be able to determine which platform or platforms will best permit us to have the number of “rooms” we need for presentations. At that point we will update the web page. In addition to the usual workshopping of papers, we have the following planned, and apologize our web page does not yet reflect this.
- A Friday lunch panel about human trafficking with those in Louisville working to combat the problem.
- A Friday evening reception with different Kentucky themed rooms that you can “stroll” through and mingle with others.
- A Thursday evening kick-off with a video series where professors share a teaching tip using a clip from American Factory
For the Thursday night video series, you can sign up to participate whether or not you are joining the rest of the conference. Use the registration selection for the American Factory screening. You simply come up with a clip that you would play to your class to illustrate a concept or for students to engage with to answer questions, or really any way you would suggest to another teacher to use the clip. We hope to have a couple of professors who teach different classes, Employment Law, Labor Law, Employment Discrimination, and others, each provide a video clip showing or explaining what portion of the video you would use and how. We will put the videos on YouTube as part of a COSELL project so that teachers could use them. The film directors, Julia and Steve, intended the movie to be used as a teaching tool. Anyone who has Netflix has the educational license to show the entire film or parts to their class. I hope many of you will volunteer!
Monday, July 13, 2020
Congratulations to Michael Green, who announced today that he is leaving Fort Worth in fall 2021 to join the faculty at Chicago-Kent. At Chicago-Kent he will work with Marty Malin over the next year as Marty phases into a well-deserved retirement. When Marty retires, Michael will step into some really large shoes and become Director of the Institute for Law and the Workplace. Congratulations to all, and most especially to Chicago-Kent on a fantastic hire.
Thursday, July 9, 2020
Mark Gough (Penn St. School of Labor & Employment Relations) has posted on the ILR Review website his article A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation, Industrial & Labor Relations Rev. (forthcoming 2020). Rather than just posting his abstract, I'll post instead a summary I asked Mark to draft for me, which helps situate this empirical work among other empirical work on similar topics:
Most of the empirical literature comparing outcomes between forums uses relatively crude descriptive statistics to show stark differences in employee win rates and monetary award amounts within the populations cases disposed of in arbitration and litigation. Indeed, scholars have provided robust evidence on the resolution of employment disputes within individual forums such as:
- The American Arbitration Association (AAA) – see, e.g., Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Studies 1 (2011); Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 McGeorge L. Rev. 223 (1998).
- The Financial Industry Regulatory Authority (FINRA) – see, e.g., J. Ryan Lamare & David B. Lipsky, Employment Arbitration in the Securities Industry: Lessons Drawn from Recent Empirical Research, 35 Berkeley J. Employ. & Labor L. 113 (2014); J. R. Lamare, & D. B. Lipsky, Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry, Industrial & Labor Relations Rev. (2018).
- Federal court – see, e.g., Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Studies 429 (2004).
- State court – see, e.g., Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, 58 Dispute Resolution J. 44 (2003).
These studies often are used to support the perceptions of arbitration as an employee-unfriendly forum. See, e.g., Mark Gough, How Do Organizational Environments and Mandatory Arbitration Shape Employment Case Selection? Evidence From an Experimental Vignette, 57 Industrial Relations 541 (2018); Mark Gough, Employment Lawyers and Mandatory Employment Arbitration: Facilitating or Forestalling Access to Justice, 16 Advances in Industrial Relations 133 (2016). And while informative, a limitation of this literature is it provides minimal controls to account for systematic variation between forums. It is clear that the average monetary award and employee success rates at trial are lower in arbitration than litigation, but are employee claimants genuinely at a disadvantage in arbitration? Or does systematic variation exist within the underlying merits of cases, presence or quality of counsel, party resources, or other case characteristics which account for differences in outcomes between arbitration and litigation? In short, one must be careful to compare “apples to apples” when drawing evaluative conclusions about arbitration’s effect(s) on access to justice.
In a 2020 empirical study, Mark Gough attempts such apples-to-apples comparisons by surveying 1,256 employment plaintiff attorneys about their most recent cases adjudicated in arbitration, state court, or federal court. Even while accounting for claim, plaintiff, defendant, and attorney characteristics, Gough finds employment discrimination plaintiffs in arbitration are less likely to receive a judgment in their favor and smaller awards compared to similar cases disposed in state and federal court. Specifically, he reports, “compared to arbitration, employees' odds of winning increase by 70.7 percent in a federal jury trial, 183.7 percent in a state judge-only bench trial, and 146.0 percent in a state jury trial…[and] relative to arbitration, monetary damages awarded to success
Lance Compa, Senior Lecturer, Cornell ILR, sends this invitation to participate in a presentation and panel discussion of a new arbitration template for stakeholder-brand agreements in the global supply chain. If you want to ensure that the food you eat, and clothes and products you buy, are made with fair labor, you will want to sign up for this.
A new proposal aims to provide a streamlined and cost-effective dispute resolution system that “puts the enforcement” into enforceable brand agreements between labor advocates and global firms.
Drawing on their experience under the Bangladesh Accord and similar labor standards agreements, four prominent labor rights advocacy groups – International Labor Rights Forum, Worker Rights Consortium, Clean Clothes Campaign and Global Labor Justice – unveiled in June 2020 model arbitration clauses for disputes.
Join us on Friday 17 July from 11 a.m. to noon EST for a live presentation from drafters of the proposal--Katerina Yiannibas of Columbia Law School, Lance Compa of Cornell University ILR School and Ben Hensler of the Worker Rights Consortium--plus a panel discussion on its uses in apparel, food and other sectors.
The New Conversations Project is organizing this event as part of the Cornell ILR School’s Scheinman Institute on Conflict Resolution.
We hope you’ll join us on 17 July. Remember to register here.
Wednesday, July 1, 2020
Edward Zelinsky (Cardozo) has posted on SSRN CalSavers and ERISA Redux: The District Court’s Second Opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program, New York University Review of Employee Benefits and Executive Compensation, David Pratt (ed.) (2020). Here's the abstract:
On March 10, 2020, the U.S. District Court for the Eastern District of California (Morrison C. England, Jr., J.) issued its second substantive opinion in Howard Jarvis Taxpayers Association v. The California Secure Choice Retirement Savings Program.Confirming its initial decision, the district court again held that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt the statute creating the California Secure Choice Retirement Savings Program (CalSavers).
This second opinion is important for two reasons. First, it confirms that ERISA does not preempt California’s retirement savings program for the private sector. Taken together, the district court’s opinions about CalSavers provide a roadmap of the ERISA status, not just of CalSavers, but also of other states’ similar retirement security programs. ERISA does not preempt these government-operated programs.
Second, the district court decisions exemplify ERISA’s relatively limited preemptive effect in the wake of the Supreme Court’s decision in Gobeille v. Liberty Mutual Insurance Co. This restricted interpretation of ERISA preemption contrasts with the broader understanding which the Supreme Court first embraced. The district court was right to reject the plea that it return to that original, more expansive approach to ERISA preemption.
Monday, June 29, 2020
A twofer from Michael Duff (Wyoming). He's got two papers published on SSRN, both particularly relevant in the current pandemic economy.
One is New Labor Viscerality? Work Stoppages in the 'New Work,' Non-Union Economy, which is forthcoming in the St. Louis Univ. Public Law Rev. The abstract:
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.
Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.
Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.
Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.
The second paper, co-authored with Thomas McGarity (Texas) and Sidney Shapiro (Wake Forest), is Center for Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing. The abstract:
The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government's many missed opportunities to stem the spread of the virus in the nation's workplaces, and make recommendations for what needs to happen next to protect employees on the job.
Both are well worth the read!
Wednesday, June 24, 2020
James E. Bessen, Chen Meng, & Erich Denk, all of the Boston U. Technology & Policy Research Initiative, have just posted on SSRN their important empirical article Perpetuating Inequality: What Salary History Bans Reveal About Wages. Here's the abstract:
Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and on the pay of job changers in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers by about 5%, with larger increases for women (8%) and African-Americans (13%). Salary histories appear to account for much of the persistence of residual wage gaps.
Monday, June 22, 2020
Ariana Levinson (Louisville) writes to tell us:
Please register for the 15th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL). The University of Louisville Brandeis School of Law will host the conference Thursday- Saturday, October 8-10, 2020. The conference will be online. Register at this event page http://louisville.edu/law/cosell2020. We will be making determinations about what platforms to use and online logistics in the near future, and will provide an update when we have more information. We look forward to “seeing” everyone in October!
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).
Friday, June 19, 2020
Craig Senn (Loyola Los Angeles) has just posted on SSRN his article Accommodating Good-Faith Employers in Title VII Disparate Impact Cases (94 Tulane L. Rev. forthcoming fall 2020). Here's the abstract:
This article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer’s facially neutral job policy or criterion inadvertently but disproportionately affects individuals based on sex, race, color, national origin, religion, age, or disability.
Unfortunately, our federal employment discrimination laws do not provide comparable defenses or accommodations for good-faith employers in these disparate impact (and related) cases. First, Title VII provides a “business necessity” defense. This complete defense is a narrow accommodation available only for a smaller subset of these good-faith employers – namely, those that can show that their job policy or criterion was related to successful performance of the job.
Next, the ADEA provides a “reasonable factors other than age” defense. This complete defense is a broad accommodation generally available for all good-faith employers that can show that their job policy or criterion stemmed from reasonable, non-age considerations.
Finally, the ADA provides not only a business necessity defense in disparate impact cases but also a supplemental “good-faith efforts” defense in closely related reasonable accommodation cases. This latter, partial defense is another broad accommodation generally available for all good-faith employers that make such efforts to adjust their policy or criterion for (or otherwise accommodate) a disabled individual.
Addressing this unique asymmetry, this article makes two new contributions to existing employment discrimination literature. First, it proposes a partial “Good-Faith Defense” for such employers in Title VII disparate impact cases – a defense that reduces (rather than eliminates) employer liability. Second, this article uses a comprehensive, cross-contextual argument that explores fourteen different examples of good-faith accommodations (by Congress and the Supreme Court) under eight different federal employment laws. Ultimately, these multiple examples evidence a clear legislative and judicial “Good-Faith Accommodation Philosophy” that lies at the heart of the Good-Faith Defense.
Tuesday, June 16, 2020
In Bostock and its companion cases, the Supreme Court held that Title VII prohibits discrimination because of gender identity and sexual orientation. The case is worth reading for a number of reasons, but there is a surprising reason to read it: causation.
The Bostock opinion extensively discussed what “but for” cause means.
In the majority opinion, Justice Gorsuch noted that “but for” cause is sweeping. He emphasized that there can be more than one “but for” cause of an outcome. The majority opinion noted that there are “often” multiple, “but for” causes. Justice Gorsuch reiterated that “but for” cause does not mean sole cause. Even more importantly, Justice Gorsuch noted that a “but for” cause does not even need to be the primary cause.
The majority cited Burrage v. U.S., 571 U.S. 204 (2014). Even though Burrage is not a discrimination case, it is a must read for all discrimination practitioners because of its discussion of causation.
Bostock clarified much of the uncertainty about the “but for” standard lingering from this term’s Comcast opinion and prior cases such as Gross and Nassar. Bostock’s discussion of “but for” cause is especially surprising because the underlying case was a Title VII discrimination case. Title VII discrimination cases do not require the plaintiff to establish “but for” cause. Instead, the plaintiff may prevail under a motivating factor causal standard.
The Bostock opinion is available here: https://d2qwohl8lx5mh1.cloudfront.net/8hVHe52Cq4sPdF0wEaTaCQ/content