Tuesday, October 2, 2018

The NLRB Joint Employer Test: Much Ado About Nothing?

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.

-Jeff Hirsch

 
 

October 2, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Amazon and the Fight for $15 Campaign

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.

-Jeff Hirsch

October 2, 2018 in Labor and Employment News, Labor Law, Wage & Hour | Permalink | Comments (0)

Friday, September 28, 2018

Elizabeth Tippett Receives MICHAEL J. ZIMMER MEMORIAL AWARD

  Tippett

We just finished the awards ceremony at the Thirteenth Annual Colloquium on Scholarship in Employment and Labor Law being held at the University of South Carolina School of Law. It gives me great pleasure to announce that Professor Elizabeth C. Tippett (Oregon) has received the MICHAEL J. ZIMMER MEMORIAL AWARD.  This award is given to "a Rising Scholar who Values Workplace Justice and Community, and who has made Significant Contributions to the Field of Labor and Employment Law Scholarship." 

Professor Tippett exemplifies this standard, and please join us in congratulating her on this wonderful achievement!

-- Joe Seiner

 

September 28, 2018 | Permalink | Comments (0)

Joseph Slater Receives PAUL STEPHEN MILLER MEMORIAL AWARD

Slater

 

We just finished the awards ceremony at the Thirteenth Annual Colloquium on Scholarship in Employment and Labor Law being held at the University of South Carolina School of Law. It gives me great pleasure to announce that Professor Joseph E. Slater (Toledo) has received the PAUL STEPHEN MILLER MEMORIAL AWARD.  This award is given for "outstanding Academic and Public Contributions to the Field of Labor and Employment Law Scholarship."

 

Professor Slater has made countless important and meaningful contributions to our field, and is extremely well-deserving of this award.  Please Join us in congratulating him on this achievement!

 

- Joe Seiner

 

September 28, 2018 | Permalink | Comments (0)

Thursday, September 27, 2018

The NLRB's Regulation of Email

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 CommunicationsPurple 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.

-Jeff Hirsch

September 27, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, September 26, 2018

Uber Drivers Lose Big Class Certification Case

Yesterday, the Ninth Circuit issued its decision in O'Conner v. Uber, a class action that centered on drivers' claim that they should be classified as employees. The Ninth Circuit reversed the district court's order to certify the class action, holding that the drivers must arbitrate their claims individually because arbitration agreements they signed with Uber prevented class claims.  This, of course, is not a surprise, as the Supreme Court essentially forced such an outcome in its Epic Systems case from last term.  However, this decision from the Ninth Circuit, contrary to some of the media reports I've seen, does not mean that the drivers lost on the question of whether they should be classified as employees. That question is separate from the arbitration one and, as Charlotte Garden has noted, in California at least, the classification issue looking promising for Uber drivers and other workers who might be on the fence in other jurisdictions. 

Uber may discover that they should beware of getting what they asked for because they may soon be facing a lot of individual arbitration claims by its drivers. But we shall see.

-Jeff Hirsch

 

 

 

 

September 26, 2018 in Labor and Employment News | Permalink | Comments (0)

Friday, September 21, 2018

Big Mac and Steel Strikes, with a Side of #MeToo, Taxes, & Tariffs

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.

-Jeff Hirsch

 

September 21, 2018 in Employment Discrimination, Labor and Employment News, Labor Law | Permalink | Comments (0)

Wednesday, September 19, 2018

Secunda, Hirsch, & Seiner "Master" Employment Discrimination

MasteringCongratulations to Paul Secunda, Jeff Hirsch, and Joe Seiner on the publication of their book Mastering Employment Discrimination Law (2d ed Carolina Academic Press.). Here's the publisher's description:

The second edition of Mastering Employment Discrimination Law coincides with a defining moment in U.S. culture: the #metoo movement and the many sexual harassment scandals that have roiled American society. In addition to covering all procedural and substantive aspects of U.S. sexual harassment and sex discrimination law, the second edition also takes on a wide variety of employment discrimination law subjects. The book begins first with coverage and jurisdiction issues and then turns to complex federal and state procedural topics surrounding the filing of administrative charges of discrimination and civil lawsuits. Moreover, the book comprehensively addresses the substantive aspects of Title VII, the ADEA, the ADA (including recent amendments), the Equal Pay Act, and the Civil Rights Acts, as well as related issues such as remedies, attorney fees, and settlements. By adding Professor Joseph Seiner of the University of South Carolina School of Law—a former attorney with the EEOC—as a new co-author, the book has added substantial new focus on administrative topics and procedural issues in employment discrimination litigation.

rb

September 19, 2018 in Book Club, Employment Discrimination | Permalink | Comments (0)

Arnow-Richman on the Executive Contracts of Sexual Harassors

RachelRachel Arnow-Richman (Denver) has just published CBS CEO Moonves’ Ouster is a Too Rare Case in the San Francisco Chronicle. A brief excerpt is below. Congrats Rachel!

CBS’ announcement of CEO Les Moonves’ departure offers a welcome example of a company willing to cut bait on a star employee based on reports of repeated sexual harassment. Even more noteworthy is the news that Moonveslikely will receive no severance pay.

CBS’ refusal to offer Moonves a cushioned exit could presage a new level of accountability post-#MeToo, one where harassers can expect neither a pass nor a golden parachute. But there are reasons to be less sanguine. Moonves’ employment contract, like that of many C-suite employees imposes steep penalties on the company in the event of a termination without cause. For CBS, the cost could reach a reported $120 million, even discounting $20 million that the company has pledged to the #MeToo movement.

It can boggle the mind to imagine that Moonves’ termination is anything but justified. The allegations against him include forced oral sex, bodily exposure, physical violence, intimidation and retaliation. If even a fraction of it is true, then there is clearly cause to terminate him under any ordinary meaning of the word.

But it is not the ordinary meaning of “cause” that applies. High-level contracts typically define cause in idiosyncratic ways — requiring that the employee willfully fail to perform, commit a felony, or engage in gross misconduct materially harming the company. Courts interpret such language to mean conduct far exceeding ordinary wrongdoing. In cases of doubt, the burden usually is on the employer to justify its decision based on proven facts.

rb

 

 

September 19, 2018 in Employment Common Law, Employment Discrimination | Permalink | Comments (0)

Thursday, September 13, 2018

New NLRB Joint-Employer Rule

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. 

-Jeff Hirsch

 

September 13, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Tuesday, September 11, 2018

NLRB To Change Construction-Industry Rule?

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.  

Unlike the recent Ceasars invitation dealing with use of email, there were no dissents to this invitation, which you can read in full here.

-Jeff Hirsch

September 11, 2018 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, September 6, 2018

Statutory Originalism” and LGBT Rights

 

Just out from Katie Eyer of Rutgers, and couldn't be more timely!  Here's the abstract:

In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality.  Raising claims under federal sex discrimination law, advocates have argued that anti-LGBT discrimination is, necessarily, also sex discrimination under Title VII.  Such claims have seen increasing success in the federal courts as biases against the LGBT community have receded, allowing courts to recognize the textual and doctrinal logic of such sex discrimination claims.  As victories in the lower courts have accumulated, the LGBT employment discrimination issue has increasingly seemed poised to be the next major LGBT equality issue to reach the Supreme Court.

But a new argument has also arisen to dispute LGBT Title VII claims: “statutory originalism.”   Arguing that the meaning of Title VII ought to be judged by reference to its “original public meaning”—and that the original public in 1964 would not have thought that anti-LGBT discrimination was proscribed—opponents of LGBT inclusion have contended that such sex discrimination claims cannot be allowed.  In making these arguments, opponents have endeavored to sidestep well-established textualist case law that rejects virtually identical arguments when made under the rubric of Congressional expectations or intent.

This Article contends that the “original public meaning” approach raised by opponents of LGBT inclusion is neither so distinctive, nor so uncontroversial, as its proponents have suggested.  “Original public meaning” itself is a modality of statutory interpretation that has essentially no pedigree in the federal statutory interpretation case law.  And yet the arguments of its proponents do bear a striking resemblance to another well-established, but now discredited approach: looking to the expectations or intent of Congress to limit broad statutory text.  Moreover, the specific approach to “original public meaning” taken by opponents of LGBT inclusion—looking to “original expected applications”—is one that should concern both civil rights advocates and originalists alike.  Thus, courts ought to reject the novel “statutory originalism” arguments that have been raised in opposing LGBT employment equality claims.

CAS

September 6, 2018 in Employment Discrimination | Permalink | Comments (1)

Wednesday, September 5, 2018

Yelnosky on "Labor Law Illiteracy"

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.

-Jeff Hirsch

September 5, 2018 in Labor Law, Scholarship | Permalink | Comments (0)

Tuesday, September 4, 2018

Minnesota Looking for Labor & Employment Law Professor

If you're on the law teaching job market this year, this post is for you. Among the areas that Minnesota Law School is searching for is labor & employment law. Here's the job announcement:

The University of Minnesota Law School plans to fill one tenure-track junior (entry-level and/or lateral) faculty position, to begin in the 2019-20 academic year. Rank upon hire will depend on qualifications.  This is a full-time, nine-month appointment.

Qualifications-Applicants should hold a J.D. or degree of equivalent rank and should demonstrate outstanding potential in scholarship and teaching.  We are especially interested in the following academic subject areas:  constitutional law, employment/labor law, administrative law, civil procedure, environmental law, health law, international law, intellectual property law, property law, and tort law; however, the Law School will consider outstanding candidates with interest or expertise in other subject matter areas.

 People of color, women, individuals with disabilities, members of the LGBT community, and other candidates who will contribute to the cultural and intellectual diversity of the faculty are strongly encouraged to apply.  The University of Minnesota is an equal opportunity employer.

To apply, please go to http://humanresources.umn.edu/jobs and reference job ID 326112.

-Jeff Hirsch

September 4, 2018 in Faculty Moves, Faculty News | Permalink | Comments (0)

Sunday, September 2, 2018

ILR Review Special Issue: Immigration and the World of Work

Kate Griffith (Cornell, ILR) writes to share the August 2018 Special Issue of the ILR Review, which focuses on workplace conditions and immigration legalization initiatives cross nationally.

Below is an excerpt from the introduction entitled “Introduction to a Special Issue on the Impact of Immigrant Legalization Initiatives: International Perspectives on Immigration and the World of Work,” (authors are Maria Lorena Cook, Shannon Gleeson, Kati L. Griffith, and Lawrence M. Kahn)

“The articles in this special issue draw on studies of legalization initiatives in major immigrant destinations: Canada, Italy, and the United Kingdom. Together they underscore the importance of cross-national perspectives for understanding the range of legalization programs and their impact on immigrant workers, the workplace, and the labor market”

For more from this special issue, which will be free to read for a limited amount of time, click here.

-Jeff Hirsch

 

September 2, 2018 in International & Comparative L.E.L., Labor and Employment News, Scholarship | Permalink | Comments (0)

Labor & Employment Roundup

Several labor & employment stories that have been in the news recently:

And remember, Happy Labor Day tomorrow!

-Jeff Hirsch

September 2, 2018 in Labor and Employment News | Permalink | Comments (0)

Tuesday, August 28, 2018

Greene & O'Brien Deliver Requiem for Workers' Class Actions

Greene O'brienStephanie Greene and Christine O'Brien (both Boston College-Management) have just posted on SSRN their article (forthcoming Stanford J. Civil Rights & Civil Liberties) Epic Backslide: The Supreme Court Endorses Mandatory Individual Arbitration Agreements, #Timesup on Workers' Rights. Here's the abstract:

The United States Supreme Court dealt a serious blow to workers’ rights in Epic Systems Corp. v. Lewis, 584 U.S. __(May 21, 2018) when it held that employers may require employees to waive their rights to class or collective action. Employees had hoped the Court would find that mandatory individual arbitration provisions are illegal because Section 7 of the National Labor Relations Act guarantees employees the right to engage in concerted activities for mutual aid or protection. The Court, however, held that the Federal Arbitration Act requires arbitration provisions to be enforced as written. While the three cases before the Court involved wage and hour claims, the Court’s Epic decision impacts many other types of employment disputes that are diverted from courts to individual arbitration – including sexual harassment and other forms of discrimination in the workplace. In the era of #MeToo, some employers may choose to exempt sexual harassment claims from these mandatory private arbitration agreements due to public pressure to do the right thing. Nonetheless, mandatory arbitration provisions cover at least 60 million U.S. workers, and those requiring individual arbitration keep labor and employment claims hidden, and foreclose assertion of rights and achievement of appropriate remedies. This paper discusses the Court’s decision in Epic Systems, what worker rights remain after the decision, and what steps employee advocates and Congress might take to remedy the negative impact of the Court’s decision on workers’ right to act collectively.

I can't bear to write on employment arbitration any more -- theSCOTUS cases are just so bad on both policy and statutory-interpretation grounds. I'm glad others like Stephanie & Christine are fighting the good fight.

rb

August 28, 2018 in Arbitration, Scholarship | Permalink | Comments (0)

Thursday, August 23, 2018

Rural Resentment and LGBTQ Equality

Luke Boso recently posted his timely new article, forthcoming in the Florida L. Rev., on SSRN. The abstract explains:

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage.  Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills.  Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide.  Many rural Americans feel that they are under attack.  Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms.  This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people.  In several respects, the conflict is merely perceived and not real.  It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. 

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism.  Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel.  Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige.  They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them.  Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity.  It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.

 CAS

August 23, 2018 in Employment Discrimination | Permalink | Comments (0)

Tuesday, August 21, 2018

Paw-Ternity?

Paw

The United States still remains the only industrialized country without paid parental leave for newborn or adopted children.  The low unemployment rate, however, has encouraged some employers to revisit their parental leave policies.  Other businesses have also been creative in trying to develop benefits that would keep workers from seeking other jobs.  One Minnesota company has attracted a lot of attention for its policy related to "Fur-Ternity", which gives workers flexible leave to spend time with new pets.  From an article in the Star Tribune:

"Nina Hale, a Minneapolis digital marketing company, offers employees one week of flexible hours to care for new pets. . . The policy at Nina Hale includes 'any animal that doesn’t primarily live in a cage,' . . . The new perk centers around the idea of work-life balance, understanding that life extends beyond the office."

This and other policies signal a shift in the labor market in recent years, where employers must be more pro-active in finding ways to retain workers, creating new op"paw"tunities for some employees. 

- Joe Seiner

August 21, 2018 | Permalink | Comments (0)

Friday, August 17, 2018

Harrison on LGBT Discrimination

HarrisonJack Harrison (NKU-Chase) has posted on SSRN his article (forthcoming 52 Loyola Los Angeles L. Rev. 2018) 'Because of Sex'. Here's an excerpt from the abstract:

Even though Obergefell was a significant victory for the LGBT community, in the aftermath, a same-sex couple who gets married over the weekend may be fired from their jobs on Monday for simply displaying or posting pictures of their wedding. Because no explicit federal antidiscrimination law encompassing LGBT persons exists in the United States, the employer’s action in firing an employee because they were gay or lesbian would be legal in the majority of states. Therefore, marriage equality ironically makes employment discrimination against LGBT workers easier, in that employers are now more aware of who in their workforce identifies as LGBT because of their marital status and request for spousal benefits.... Ultimately, this article attempts to propose a unified theory under which discrimination based on sexual orientation would be included under Title VII’s prohibition against discrimination “because of sex.”

rb

August 17, 2018 in Employment Discrimination | Permalink | Comments (0)