Monday, August 12, 2019

Last Call: COSELL at UNLV on Oct. 10-12

Ann McGinley and Ruben Garcia at UNLV wish to remind you that registration for the 14th Annual Colloquium on Scholarship on Labor and Employment Law (COSELL) is still open, BUT IT IS CLOSING SOON (August 31).

The colloquium takes place from October 10-12 in Las Vegas. Remember to register and get your hotel rooms now before the prices go up!  Here's the link to the website for registration and other information:

https://law.unlv.edu/event/14th-annual-colloquium-scholarship-employment-and-labor-law

August 12, 2019 in Conferences & Colloquia | Permalink | Comments (0)

Friday, August 9, 2019

NLRB Releases First Part of New Election Rules

This morning, the NLRB released a notice or proposed rulemaking affecting union elections. (Thanks to Robert Iafolla at Bloomberg Law for sending them my way and providing a good description of them.) At the outset, I'll note that these proposals, while important, aren't as central as the rules that govern how the more typical union elections are run and challenged. On to the proposals . . . .

1. Blocking Charge Policy. You can read more about this policy in my article discussing the current elections rules. The short version is that the NLRB has long had a policy refusing to hold an election until any alleged, non-trivial unfair labor practice charges have been dealt with. The rationale is that unresolved ULPs can interfere with a free and fair election (for instance, imagine if the employer was firing union supporters--that would improperly influence an election). The blocking charge policy has the most traction in union decertification elections because unions have effectively used this policy to delay those elections (sort of the flip side of employers dragging out initial union certification elections). As the Board majority noted in its proposed rules today, I'm sympathetic to the concern about union abuse of blocking charges and have been open to amending that policy as part of broader, substantive election reforms, but I'm not a fan of where the Board seems to be going.

The Board has announced that it proposes to adopt the General Counsel's "vote-and-impound" procedure, in which the Board would still hold the election, impound the ballots, and wait until after the ULP charges have been resolved to determine whether to open them. If the Board was quick to throw out ballots and rerun the election if it found merit to ULP charges, this rule might be OK, but I don't see that happening (and the proposal does say that if the Regional Director finds no merit to the ULP allegations, the ballots will be counted immediately). Instead, what I envision happening is the Board will be willing to use impounded ballots even in the presence of ULPs or other behavior that likely affected the election. For instance, if it finds a ULP and remedies it, will the Board rerun the election? If not, then the original ballots will remain tainted. The notice of proposed rule making obviously doesn't get into the details, but until I see something otherwise, color me skeptical. I would prefer instead new rules that made it somewhat harder to use a blocking charge to delay an election and/or capping the amount of time that a stay would remain in effect.

2. Voluntary Recognition Bar. Again, we don't know for sure what the Board will end up doing, but this sounds like deja vu all over again. As a reminder, the voluntary recognition bar is the NLRB's policy that mirrors the statutory election bar, which prevents a union election within 12 months after a prior one. The purpose of the bar is both to avoid too many disruptions to the workplace (usually after a union loss) and (if the union won) to give the union some time to work with an often-resistant employer to produce results before facing a potential decertification vote. But, if the employer voluntarily recognizes a union, rather than going through an NLRB-run election, then things are more malleable. Traditionally, the Board barred an election for a "reasonable period" after voluntary recognition (usually about 6 months). The Bush Board reversed that in Dana Corp., by allowing a decert petition immediately after voluntary recognition, for up to 45 days; the Obama Board then shifted back to the original rule in Lamon Gasket.

In the proposed rulemaking, the Board states it intends to reinstate the Dana Corp. rule. More troubling, the Board also makes a point to note that some commentators believe they should eliminate the bar in its entirety, which is disturbing. As the Board is well aware, unions have increasingly sought voluntary recognition because of their belief that the NLRB election process remains stacked against them. Eliminating the voluntary recognition bar will make that avenue less appealing . . . although probably still better than the NLRB process for unions that want to avoid it. So, while I'm not fan of Dana Corp., it's much better than eliminating discretionary election bars altogether.

3. Construction Pre-Hire Agreements. Section 8(f) of the NLRA provides a unique avenue for union recognition in the construction industry. Because that industry often involves numerous, short-term projects, the typical union recognition process doesn't fit well. In short, Section 8(f) allows an employer and union to enter into a "pre-hire" agreement that involves recognizing the union, even if there isn't a showing of majority union support (this is why you often see certain construction employers considered either "union contractors" or "non-union contractors"). Those agreements, however, can not permit any election bars. The Board has fluctuated over the years on how a union can convert an 8(f) recognition status to a more traditional Section 9(a) one, with the accompanying election bars. Currently, Board policy allows, under certain conditions (including the union's claim that it has evidence of majority support), for a union contract to provide 9(a) status. The D.C. Circuit has rejected this policy, and the Board is indicating that it is going to follow suit--requiring an actual showing of majority support.

Member McFerran has a length dissent, which is worth a read and explains some of the criticisms I've raised in more detail. And, to reiterate my self-plug, check out my article on NLRB elections, NLRB Elections: Ambush or Anticlimax?, for more explanation of some of these topics and as a preview of what might be another set of election rule proposals.

-Jeff Hirsch

August 9, 2019 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Monday, July 29, 2019

Cornell ILR looking for International & Comparative Labor and Employment Law Scholar

Kate Griffith at Cornell's ILR school writes about this exciting job search:

Tenure-Track Position in International and Comparative Labor & Employment Law

(https://academicjobsonline.org/ajo/jobs/14115)

Cornell University’s School of Industrial and Labor Relations (ILR) invites applications to fill a tenure-track faculty position (at the assistant, associate or full professor level) in International and Comparative Labor & Employment Law to begin August 2020. Applicants should have research and teaching interests related to international and comparative labor & employment law. A demonstrated potential for high quality teaching and research leading to publication in top-tier journals is essential. Policy-oriented experience in the field of international and comparative labor & employment law is desirable. At the time of appointment, applicants must have completed a J.D. and/or a Ph.D. in industrial relations, sociology, political science, management, or other related disciplines. Interested candidates should submit a cover letter, vita, research statement, teaching statement, diversity and inclusion statement, writing sample, and three reference letters. Review of applications will begin October 1, 2019. Inquiries about this position should be directed to Prof. Virginia Doellgast (vld7@cornell.edu), Prof. Kate Griffith (kategriffith@cornell.edu), Prof. Shannon Gleeson (smg338@cornell.edu), or Prof. Sarosh Kuruvilla (sck4@cornell.edu).

 

Diversity and Inclusion are a part of Cornell University’s heritage. We are a recognized employer and educator valuing AA/EEO, Protected Veterans, and Individuals with Disabilities.

-Jeff Hirsch

July 29, 2019 in Faculty Moves | Permalink | Comments (0)

Tuesday, July 23, 2019

Drafting that Nondisparagement Clause



New ImageAlthough employers are more resistant to agreeing to mutual nondisparagement obligations after employment than they used to be, such agreements remain important in one situation: where ending the relationship is conditioned on a good reference and no bad mouthing of the soon-to-be-ex-employee.

But there are complications when it is the corporate employer who is being gagged as compared to the more common situation where an individual employee agrees not to disparage her former employer. The problem arose in Bissette v. University of Mississippi Medical Center, where Garth Bissette, a professor at the Medical Center, ran into difficulties leading to possible detenuring. Before UMMC’s review process was completed, Bissette entered into a settlement agreement providing for his departure but containing a clause requiring UMMC to give Bissette a favorable recommendation and also requiring mutual non-disparagement and confidentiality.

As you might guess, Bissette was later bad mouthed by one Woolverton, a UMMC employee (who hadn’t been told about the agreement). There wasn’t much doubt that Woolverton’s comments were disparaging: he allegedly attended a NIH conference at which he told participants from other universities that, among other things, Bissette had no professional accomplishments during his tenure, did nothing with his scholarship or professional service, and was often intoxicated after returning from lunch.

Although Bissette brought several claims, the most interesting was the breach of contract cause of action. The Mississippi Court of Appeals first found that the individual defendants were not bound because of the wording of the clause in question, which  provided that “This agreement is being entered into …. between [....UMMC] for the benefit of itself, all related corporate entities, its and their officers, directors, employees, agents, successors, and assigns . . . . and Dr. Garth Bissette.” According to the court, “employees” such as Woolverton were not individually bound by the agreement since they were merely its third-party beneficiaries. Under this construction, UMCC had not made any promises as to them not disparaging Bissette. Had the University agreed “on behalf of” such persons, the result might have been different. But the court also indicated that reading the commitment so broadly would lead to odd results, such as embracing “even a receptionist” at a UMMC clinic.

This is all pretty odd.  How could an agreement between A and B bind C contractually? There’s no indication that UMCC was acting as its employees’ agent.  Plus, of course, Woolverton didn’t even know about the settlement! The more sensible reading of the clause is that UMCC is promising that none of its employees, etc. will bad mouth Bissette. And the confidentiality clause seemed to confirm this: it permitted UMMC to disclose to those “necessary to carry out the terms and conditions of this Agreement.”

No matter: the court also rejected the argument that UMCC was vicariously liable by virtue of Woolverton’s acting as its agent (even if he were not personally liable). “Employee” is not synonymous with “agent,” and there was no evidence that Woolverton was furthering UMMC goals at the conference, so the university wasn’t responsible for what he said. That may be true (although the court’s stress on the fact that NIH (not UMMC) paid for the conference seems dubious given how often university work is grant -funded), but if UMCC had committed that none of the named persons would disparage Bissette, it’s not clear that such a promise should be read to be limited to actions taken on the employer’s dime and time.  

The net effect was that Bissette walked away with considerably less than he had thought he’d gotten for not continuing to fight his detenuring. Even the “good recommendation” Bissette bargained for seems of doubtful value in light of this story. The lesson for plaintiffs’ attorneys looking for this kind of protection is to work through more carefully exactly what it means for an organization not to disparage or at least the steps the organization will take to inform its employees about what is expected of them.

And there are broader issues this scenario raises. Practically speaking, anyone familiar with academia might doubt both the efficacy of a promise that no one will tell tales out of school at scholarly conferences and the ability of a plaintiff to prove damages should such a breach occur. More theoretically, there’s the question of whether gag clauses really are a societally good idea: what if Bissette really was frequently intoxicated after lunch?  Finally, there’s a not insignificant policy question of whether employers, especially public ones., should be free to constrain their employees’ speech, especially when not acting within the scope of their employment.

CAS

Thanks to Kamille Perry, Seton Hall class of 2021.

July 23, 2019 in Employment Common Law | Permalink | Comments (0)

Friday, July 19, 2019

CFP: Biagi Conference on "Beyond Employment: Protecting Autonomous Work"

BiagiThanks to Susan Bisom-Rapp for forwarding the following call for papers:

[T]he call for papers of the 18th International Conference in commemoration of Prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19 and 20 March 2020, and will be entitled "Beyond Employment: Protecting Autonomous Work".

The Scientific Committee welcomes the submission of proposals for papers or panels by the members of the international scholarly community.The proposals should be submitted by 9 September 2019 by email to the address: marcobiagiconference@unimore.it. More details on the call and the conference are available here.

rb

 

July 19, 2019 in Conferences & Colloquia, International & Comparative L.E.L. | Permalink | Comments (0)

Wednesday, July 17, 2019

2019-20 LEL Conferences and Symposia

AcadApart from the COSELL and the AALS session described in the post below, I'm not aware of any LEL-themed academic conferences or live symposia in the U.S. for AY 2019-20. If you know of any, would you please add a brief description and link as a comment to this post? Many thanks,

rb

July 17, 2019 in Conferences & Colloquia, Scholarship | Permalink | Comments (1)

Call for Papers: New and Emerging Voices in Workplace Law Session at 2020 AALS Annual Meeting

Aals

Thanks to Stephanie Bornstein for sending along this CFP:

The AALS Section on Employment Discrimination Law and the AALS Section on Labor Relations and Employment Law invite submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2020 Annual Meeting in Washington, DC, on Saturday, January 4, 2020, from 3:30-5:15 p.m.

About. This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of other scholars in the field. The session will provide newer scholars with a supportive environment in which to receive constructive feedback.

Eligibility. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.

Submission Format. Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.

Submission Instructions. To be considered, proposals should be submitted electronically to Professors Stephanie Bornstein, at bornstein@law.ufl.edu, and Michael Oswalt, at moswalt@niu.edu. The deadline for submission is Sunday, September 1, 2019.

Selection. Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 27, 2019. Presenters will be responsible for paying their annual meeting registration fee and travel expenses. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 1, 2019.

Questions. Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Stephanie Bornstein, at bornstein@law.ufl.edu, and/or the Chair for the Section on Labor Relations and Employment Law, Michael Oswalt, at moswalt@niu.edu.

rb

July 17, 2019 in Conferences & Colloquia, Scholarship | Permalink | Comments (0)

Friday, July 12, 2019

Chicago-Kent Is Looking to Hire...

Chikent... two or more entry-level or pre-tenure lateral new faculty, including in labor/employment law. Below is a brief summary of the position announcement; here's the full copy. Thanks to César Rosado for the heads-up.

Chicago-Kent College of Law expects to hire two or more entry-level or pre-tenure lateral faculty to join our vibrant and nationally recognized intellectual community. We are especially interested in candidates with a demonstrated commitment to scholarship and teaching in ... fields [which include] first-year subjects (including Legislation) and Labor/Employment law.

rb

July 12, 2019 in Faculty News | Permalink | Comments (0)

Thursday, July 11, 2019

Reminder: COSELL at UNLV On Oct. 12-14

Ruben Garcia and Ann McGinley (UNLV) wish to remind you that registration for the 14th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL) is still open. The colloquium takes place from October 10-12 in Las Vegas. They recommend that you register and get your hotel rooms now before the prices go up!

Here's the link to the website for registration and other information: (https://law.unlv.edu/event/14th-annual-colloquium-scholarship-employment-and-labor-law

July 11, 2019 in Conferences & Colloquia | Permalink | Comments (0)

Tuesday, July 2, 2019

Negating Nondisclosure in New Jersey

New ImageNew Jersey recently passed  a  law declaring  nondisclosure agreements  “with the purpose or effect of concealing the details relating to a claim of discrimination, harassment, or retaliation” to be against public policy and therefore unenforceable against the employee. N.J.S.A. § 10:5-12:8(a). According to state Senate Majority Leader Loretta Weinberg, the law aims to allow victims of such abuse “to speak out about their experiences if they so choose.” While a parallel promise by the employer would generally remain enforceable against it, the employer would be permitted to respond if the employee goes public. The law explicitly excludes noncompete agreements or NDAs intended to protect trade secrets.

An outgrowth of the national #MeToo movement, New Jersey’s law will be a test case for competing predictions about the effects of preventing victims from bargaining away their right to speak out. While no one seems to doubt that gag clauses have enabled serial harassers to continue their predations, the defenders of such provision include not only employer-side counsel but many plaintiff-side attorneys who fear that victims will be deprived of one of their more valuable bargaining chips and therefore disadvantage the employees it intended to protect.

In any event, the prospective effects of the new law will largely depend on how employers in the state will respond. For them, settlement agreements are a transactional means of protecting their reputations from the large-scale backlash that has made the Me-Too movement so palpable. Nothing about New Jersey’s new stance changes this reality.

But the new law doesn’t allow them much wiggle room.  Two possibilities for creative avoidance are possible, but neither seems likely to be successful. The first is for employers to seek to recover in restitution amounts paid for a now-unenforceable promise once the employee goes public. But § 197 of the Restatement Second of Contracts tells us that courts will normally leave parties as it finds them in such cases, even if this may result in one party retaining a benefit it received as a result of a transaction based on an unenforceable promise. Employers thus have no claim in restitution for payments rendered in return (in part) for the unenforceable promise of their employee’s silence. The Restatement recognizes an exception for “disproportionate forfeiture,” but it seems unlikely to apply here, especially given the strong statutory language disapproving such agreements.

A second possible way for employers to try to work around the statute would be to structure settlement agreements to space out payments over time to create a financial incentive for employees to remain silent. The agreement would be drafted such that the employee does not promise nondisclosure but her silence is a condition on the employer’s promise to make future payments. In other words, there’s never an employee promise to enforce to begin with.

Clever, but probably no cigar in a state whose supreme court has a tendency to read statutes – especially employment regulations – to achieve their purposes regardless of the technical language. In any event, the statute deems any contract or settlement against public policy if it has the “purpose or effect” of concealing discrimination, harassment, or retaliation. Clearly, the legislature’s intent in passing this law was to enable victims to speak publicly about their experiences to guard against serial harassers. By conditioning future payments on silence, such a settlement could certainly have the effect (not to mention the purpose) of concealing discrimination, at least temporarily, by creating a strong financial incentive for the employee to be silent.

A few other points. First, the bar on nondisclosure agreements is only a part of a statute that, on its face, might be read to bar mandatory arbitration agreements. So read, that provision would almost certainly be preempted by the Federal Arbitration Act, and a reviewing court would have to decide whether the ban of nondisclosure agreements could be severed to could survive such invalidation. Second, while the focus of #MeToo and the commentary on this law has been on disclosure of sexual harassment claims, the statute also bars gag rules for discrimination and retaliation claims, which substantially increases its reach. Third, the statute bars retaliation for refusing to enter into an agreement that would be unenforceable under it, but, given that such an agreement is unenforceable, one wonders why a well-advised employee would refuse to sign it in the first place.

CAS

Hat tip to Luke Dodge, Seton Hall class of 2021, for his help with this post.

UPDATE: The statute is not retroactive, and this post has been modified to correct a mistake as to that in the original.

July 2, 2019 in Employment Discrimination | Permalink | Comments (1)

Monday, July 1, 2019

Bales & Stone on AI, Electronic Surveillance, and Labor Law

Rick Bales &Kathy Stone has just published on SSRN their article, The Invisible Web of Work: The Intertwining of AI, Electronic Surveillance, and Labor Law. The abstract:

Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by A-I will accompany workers from job to job as they move around the boundaryless workplace. Thus A-I and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways A-I is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on four areas of law in which A-I threatens to undermine worker protections: anti-discrimination law, privacy law, antitrust law, and labor law. Finally, this article maps out an agenda for future law reform and research.

Obviously a hot topic (and one close to my heart), so check it out!

-Jeff Hirsch

July 1, 2019 in Scholarship | Permalink | Comments (0)

Sunday, June 16, 2019

New Biography on Ron McCallum

BornCongratulations to Ron McCallum (emeritus at Sydney) on the publication of his memoir Born at the Right Time : A Memoir (Allen & Unwin, 2019). Here's the publisher's description:

Ron McCallum has been blind from birth. When he was a child, many blind people spent their lives making baskets in sheltered workshops, but Ron's mother had other ideas for her son. She insisted on treating him as normally as possible.

In this endearing memoir, Ron recounts his social awkwardness and physical mishaps, and shares his early fears that he might never manage to have a proper career, find love or become a parent. He has achieved all this and more, becoming a professor of law at a prestigious university, and chairing a committee at the United Nations.

Ron's glass is always half full. He has taken advantage of every new assistive technology and is in awe of what is now available to allow him and other blind people to realise their potential. His is a life richly lived, by a man who remains open to all people from all walks of life.

And here's a brief description of Ron from his U. Sydney bio:

Ronald C McCallum AO was the foundation Blake Dawson Waldron Professor in Industrial Law in the University of Sydney Law School. He took up this position in January 1993 and retired from this position on 30 September 2007. This Blake Dawson Waldron professorship was the first full professorship in industrial law at any Australian university. Ron is the first totally blind person to have been appointed to a full professorship in any field at any university in Australia or New Zealand. Ron McCallum was employed on a fixed-term contract as a Professor of Labour Law in Sydney Law School from 1 February 2008 until 31 December 2010. In January 2011, he was appointed to an Emeritus Professorship in Sydney Law School.

Neither of these descriptions do Ron justice, even halfway. His faculty bio somehow omits the fact that he was a longstanding and very successful dean at Sydney, and I think it's fair to say that he was the first "modern" dean of the law school in the sense that he elevated the position from that of a mostly internal administrator to an external representative of the Law School to the external world at a global level. More than that, Ron was extremely generous with his time mentoring generations of young labor academics, and one of the nicest, down-to-earth academic leaders I have ever had the privilege of meeting. Apropos of this, here's a tribute from Paul Harpur (Queensland), one of Ron's biggest fans:

Ron has had a profound impact upon those he has touched. I lost my eyesight at the age of 14 in a train accident and  followed Ron’s career with interest. It was no surprise that I followed Ron into labor law. in 2003 Ron and I became friends and ever since then I have seen Ron as a hero. It is no surprise that Ron and I are both blind, both labor lawyers, both academics, and both with an interest in the UN Convention on the Rights of Persons with Disabilities (Ron on formerly charring the CRPD Committee and Paul publishing on that same committee). Outside work Ron’s stories and generosity has influenced tens of thousands, and through his work on the UN CRPD Committee all persons with disabilities across the globe.

Thanks to Dennis Nolan (emeritus, South Carolina) for providing a heads-up on Ron's memoir.

UPDATE: Ron wrote to ask me to post the following:

Thank you for all of the very kind comments. I am truly humbled by your words. My life has been devoted to the teaching and practice of labour law to play my part in seeking to ensure fairness between workers and entrepreneurs. My book is titled “Born At The Right Time: A Memoir” and it comes out on 1 July in Australia and is published by Allen and Unwin. Overseas friends can purchase it through the book depository website.

Ron McCallum AO

rb

June 16, 2019 in Books, Faculty News | Permalink | Comments (8)

Tippett Hosts YouTube LEL Channel

TippettLiz Tippett (Oregon), through The Oregon Law Lab, has created a YouTube channel to present lighthearted interviews with leading researchers on workplace law and developments. Liz hosts, and is joined by law student Jessica Brown, and other UO law students. Guests so far have included Richard Moberly (whistleblowing), Lew Maltby (employer monitoring outside of work), Charlotte Alexander (employer scheduling software), Catherine Fisk (trade secrets), Charlie Sullivan (the faithless servant doctrine), and Rick Bales (here's a link to my video on artificial intelligence in the workplace). I love Liz's idea of finding a medium in which to bring cutting-edge worklaw issues to a broader audience.

rb

June 16, 2019 | Permalink | Comments (0)

Sunday, June 9, 2019

Conference: Inequity, Collective Bargaining, and Higher Education

Bill Herbert writes that about the Call for Papers for the 47th annual conference of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College.  The conference will be held on March 29-31, 2020.  The theme of the conference will be Inequality, Collective Bargaining, and Higher Education.  Proposed papers, panels, or workshops are due September6, 2019 to 2020 Abstract Dropbox.

Check out the Call for Papers link to see all of the interesting topics being solicited, both for paper presentations and interactive workshops.

-Jeff Hirsch

 

 

June 9, 2019 in Conferences & Colloquia, Labor Law | Permalink | Comments (0)

Friday, June 7, 2019

O'Brien & Greene on SCOTUS's [Mostly Awful] New Arbitration Trilogy

O'B GreeneChristine Neylon O'Brien & Stephanie M. Greene (both Boston College - Carroll School of Management) have just posted their new article (forthcoming 56 American Bus. L.J. # 4 (Winter 2019)) New Battles and Battlegrounds for Mandatory Arbitration after Epic, New Prime, and Lamps Plus. Here's the abstract:

The Supreme Court’s recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus presumed that the parties intend individual arbitration absent reference to group arbitration. However, in a rare unanimous decision, the Supreme Court in New Prime exempted transportation workers from FAA coverage, even where the workers are independent contractors rather than employees. These decisions resolved some disputes about the breadth of the FAA but other questions remain unresolved. For example, do the confidentiality provisions so often associated with arbitration provisions unlawfully interfere with employees’ federal labor law rights? Are state laws on employment arbitration subject to preemption?

Some state courts and legislatures continue to seek ways to protect workers who are disadvantaged by mandatory individual arbitration provisions, and others outline procedures for arbitration even for those transportation workers who are categorically exempt under the FAA. State laws regulating employment arbitration may fail in the face of preemption arguments, as the Court’s slim conservative majority appears intent on upholding individual arbitration provisions at all costs. Nevertheless, California persists in allowing representative suits under its Private Attorney General’s Act (PAGA) and state courts continue to consider traditional contract defenses such as lack of mutual assent and unconscionability as arguments to bypass onerous arbitration provisions. The Court’s New Prime decision will reinvigorate the battle over what it means to be “engaged in interstate commerce” to qualify for the FAA’s transportation worker exemption, with workers for Uber and Lyft leading the charge as they seek to avoid mandatory individual arbitration. In contrast, businesses will undoubtedly argue that even transportation workers who are exempt under the FAA still must arbitrate under state law provisions that do not exempt transportation workers.

The authors recommend that Congress amend the FAA to exclude all workers affecting interstate commerce, and clarify the role of state law regulating employment arbitration. State legislation should provide guidance on what makes arbitration truly voluntary and fair, as well as afford employees a real choice on collective action and forum, and whether to maintain confidentiality about the dispute.

I'm glad Christine and Stephanie are continuing the good fight. I find these decisions extraordinarily depressing.

rb

June 7, 2019 in Arbitration, Scholarship | Permalink | Comments (0)

Thursday, June 6, 2019

Barry & Levy on Disability Rights Protection for Transgender Individuals

Barry LeviKevin M. Barry (Quinnipiac) and Jennifer Levi (Western New England) have just posted on SSRN their article (forthcoming 35 Touro L. Rev.) The Future of Disability Rights Protections for Transgender People. Here's the abstract:

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if that disability happens to be one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article tells the story of how this transgender exclusion came to be, why a growing number of federal courts say it does not apply to gender dysphoria, a new and distinct medical diagnosis, and the future of disability rights protections for transgender people.

rb

June 6, 2019 in Disability, Employment Discrimination | Permalink | Comments (2)

Monday, June 3, 2019

Colorado Makes Significant Wage Theft a Felony

CapitolSpecial thanks to Richard Fincher (arbitrator & adjunct - Cornell ILR) for sending word (via the Employee Rights Advocacy Institute and Construction Dive) that Colorado has enacted a bill making wage theft a criminal offense. Under the Human Right to Work With Dignity Act, unscrupulous employers who intentionally withhold more than $2,000 in wages could be found guilty of felony theft. 

rb

June 3, 2019 in Labor and Employment News, Wage & Hour | Permalink | Comments (1)

Sunday, May 26, 2019

Call for Proposals for the Third Annual Equality Law Scholars’ Forum

Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Spring 2020. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on March 13-14, 2020 at the University of San Francisco School of Law.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by August 1, 2019.

Full drafts of papers must be available for circulation to participants by February 28, 2020.

Proposals should be submitted to:

Leticia Saucedo, UC Davis School of Law, lmsaucedo@ucdavis.edu.  Electronic submissions via email are preferred.

 

CAS

May 26, 2019 in Conferences & Colloquia | Permalink | Comments (0)

Thursday, May 23, 2019

Sperino: Top-5 Recent McDonnell-Douglas Developments

SperinoSandra Sperino (Cincinnati) just posted on friendofthecourt blog on the top five recent developments in McDonnell Douglas cases. Here, with permission, is her post:

For those interested in McDonnell Douglas, here are the top 5 developments over the last year.

  1. The second step of the test (employer articulates a legitimate, non-discriminatory reason) is often ignored. One appellate court recently engaged in a lengthy discussion and review of appellate cases related to the required specificity. Figueroa v. Pompeo, No. 18-5064, 2019 WL 2063562, at *5-10 (D.C. Cir. May 10, 2019). The court noted, “When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail—that is, offering a vague reason—is the equivalent of offering no reason at all.” The court rejected an employer’s evidence that the plaintiff was ranked in the middle of the available candidates because the evidence did not explain why the employer ranked him that way. The court explained that the worker could not respond to the employer’s evidence because the employer supposedly ranked the plaintiff along 12 criteria, but the evidence did not explain which criteria caused the plaintiff’s mid-level ranking.
    “A rush to the third prong may deprive the employee of McDonnell Douglas’s unrebutted presumption of discrimination created by the prima facie case.” This court stated that a court should determine whether the evidence presented by the employer has four attributes: it is admissible; that, if believed, the factfinder could find that the employer acted for a non-discriminatory reason; it must be legitimate (or facially credible); and be clear and reasonably specific.
  2. The debate over comparator evidence continues. The Eleventh Circuit (en banc) has rejected the Seventh Circuit standard, while also noting that its own prior standard regarding “similarly situated” was a mess. Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019). The circuit stated that a meaningful comparator analysis is required in the prima facie case and that the plaintiff must show that she was similarly situated to her comparators in all material respects. The court rejected an “identical” standard, noting that in workplaces, “doppelgangers are like unicorns—they do not exist.” For an excellent discussion of the stakes of comparator evidence, read the dissent in Lewis.
  3. A district court interpreting Young v. UPS has held that a plaintiff proceeding on a failure to accommodate/disparate treatment claim based on pregnancy is not required to establish an adverse action. Thomas v. Fla. Pars. Juvenile Justice Comm'n, No. CV 18-2921, 2019 WL 118011, at *8 (E.D. La. Jan. 7, 2019) (plaintiff could establish harm by showing she was required to go on a 1.5 mile run despite doctor’s note restricting activity).
  4. A great new article about the test is Katie R. Eyer, The Return of the Technical McDonnell Douglas Paradigm (forthcoming Washington Law Review) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3362529).
  5. Finally, the unrecognized intracircuit splits continue. Different panels of the same circuit continue to articulate the test in ways that appear to contradict one another. Some courts are beginning to differentiate the level of comparator evidence and causation evidence required in the prima facie case. Some courts will state that the plaintiff is required to show minimal causal evidence in the prima facie case. Some courts will state that a plaintiff relying on similarly situated comparator evidence has a lesser burden at the prima facie stage than in stage three.

rb

May 23, 2019 in Employment Discrimination | Permalink | Comments (0)

Monday, May 20, 2019

EREPJ: Call for Submissions

ErepjNoah Zatz (UCLA) and Marty Malin (Chicago-Kent) send along the following information about EREPJ's early-summer call for submissions:

Employee Rights and Employment Policy Journal invites you to submit your work for publication. This summer we are establishing a special review process for submissions received by July 1. For these submissions, we will complete our peer-review selection process by August 15. Selected articles will be published in the final issue of 2019 (volume 23).

For more than twenty-two years, EREPJ has been a faculty-edited, peer-reviewed journal based at Chicago-Kent College of Law. Since 2016, it has been a joint project of Chicago-Kent and The Labor Law Group. Our process is quite different from the sometimes frustrating one typical of student-run law reviews. Our peer-review process provides authors with editorial suggestions from their peers who are knowledgeable about the areas in which the authors are writing, as well as light editing and rapid publication post-acceptance.

The one downside to the peer review process is that it often takes more time than the typical student-run law journal review process. To address this, EREPJ is committing itself to an accelerated review process: you send us your work by July 1 and we will give you an answer on or before August 15. This rapid turnaround means that if we do not offer to publish your work, you will still be able to submit it to student-run journals in the late summer/early fall submission season. During our review period, out of respect for the time of our colleagues who will be conducting the double-blind review, we ask that you not submit your article for consideration by another journal.

Submissions to EREPJ are treated to a double-blind review by members of the editorial board (a group of distinguished professors in labor and employment law and related disciplines) and edited by your peers—people who can help you improve your work, not just publish it. You receive suggestions that you may use at your discretion—we do not rewrite your article (although we do correct errant citations, grammar mistakes, typos, and the like). We have a student staff that performs Bluebooking and cite checking but our authors never have to deal with them—we do!

Finally, under our standard publication agreement, you retain the copyright and give us a nonexclusive license to publish and to sublicense others. We respect our authors' time, we respect their expertise, we respect their writing styles, and we respect their intellectual property rights. We encourage you to publish with us.

Please submit articles by e-mail to erepj@kentlaw.iit.edu or use the submission portal at http://go.iit.edu/erepj (n.b. to facilitate the double-blind review, make sure that all identifying information – your name; institutional affiliation; postal and e-mail addresses; and phone number – is on a separate cover).

rb

May 20, 2019 in Scholarship | Permalink | Comments (0)