Friday, May 8, 2020

Widiss on Parental Leave

Professor Deborah Widiss has posted her forthcoming article, Equalizing Parental Leave (to be published in the Minnesota L. Rev.).  I highly recommend this Article.  Professor Widiss argues that parental leave legislation in the United States often prioritizes treating mothers and fathers equally.  In doing so, the legislation unintentionally disadvantages single-parent families.  Those families as a family unit can access less leave than families with multiple parents.  Professor Widiss writes:

"The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure — probably unintentionally — disadvantages single-parent families."

Professor Widiss draws on her comparative work to suggest a different way of approaching parental leave for single-parent families.

Here is a link to the article:

Sandra Sperino

May 8, 2020 | Permalink | Comments (0)

Wednesday, May 6, 2020

Using Hurricane Data to Predict Covid-19 UI Clams

FedresA group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:

We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.


May 6, 2020 in Government Reports, Labor and Employment News, Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Saturday, May 2, 2020

Areheart on Antidiscrimination and Organizational Justice


A special congratulations to prolific scholar and friend of blog Brad Areheart, who just posted his fascinating new piece on SSRN, Organizational Justice and Antidiscrimination, which was recently published in the Minnesota Law Review. From the abstract:

Organizational Justice and Antidiscrimination, 104 Minnesota Law Review 1921 (2020).  Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice—a theory empirically grounded in behavioral science—provides novel guidance for how to proactively restructure workplace policies around the principles of fairness and equity. This Article further claims, based upon empirical evidence, that Organizational Justice can do the work of antidiscrimination by: (1) decreasing discrimination in the first place, (2) moderating the effects of discrimination, and (3) increasing internal reporting of harassment and discrimination. Finally, this Article provides insights for how to design policies that promote both actual justice and perceptions of justice in the workplace.

Brad’s work always makes substantive contributions to our field, and this article is another wonderful piece of scholarship. Definitely take a look if you have the time this spring or summer!

Joe Seiner

May 2, 2020 in Scholarship | Permalink | Comments (0)

Friday, April 24, 2020

EEOC Technical Guidance on COVID-19

An employer’s response to COVID-19 raises tricky questions at the intersection of federal discrimination law, worker safety laws, and tort law. The EEOC has published updated technical guidance related to COVID-19.  The technical guidance covers medical exams and inquiries, confidentiality of records, request for accommodation, harassment and other issues.

Under the guidance related to medical exams and inquiries, employers may ask workers if they are experiencing any of the symptoms related to the virus.  Employers may also take the temperature of employees to determine if they might have been infected with the virus.  Information related to those inquiries is a confidential medical record. The EEOC also cautions that people who contract the virus may not have a fever and may be asymptomatic.

Employers may require a worker who has contracted the virus to refrain from coming to work and to obtain a medical clearance to return to work.  However, the EEOC notes that employers should be flexible about the kinds of documents they require, given how busy medical providers are in certain areas.

Employers may also administer tests to determine if an employee has contracted the virus. The EEOC technical guidance states that a worker who contracts the virus can be a direct threat in the workplace and that employers may determine if the worker might be contagious.  The EEOC cautions that current tests may result in both false negatives and false positives.  It also notes that a person who tests negative for the virus may contract it later.

The new technical guidance is available here:

- Sandra Sperino

April 24, 2020 | Permalink | Comments (0)

Monday, April 20, 2020

Stone on Neo-Feudalism

Stone Katherine Stone has a piece in the April issue of The American Prospect magazine, called The Rise of Neo-Feudalism. Together with her co-author, Robert Kuttner, the article argues that "Western democracies are not simply embracing neoliberalism in the sense of deregulating the economy. Elites are pursuing something aptly described as a new form of feudalism, in which entire realms of public law, public property, due process, and citizen rights revert to unaccountable control by private business." Among other examples, the article discusses the proliferation and expansion of arbitration as private judicial systems that operate to eliminate hard-won worker rights.

In addition, Katherine Stone discussed the article, and the ramifications for worker rights, on NPR's show, Background Briefing. The segment is posted online here and here.


April 20, 2020 in Arbitration, Commentary, Workplace Trends | Permalink | Comments (0)

Wednesday, April 15, 2020

Global Labor Responses to Covid-19

ItThe Italian Labour Law E-Journal has published a special issue describing the global labor responses to covid-19. Here's a description:

This special issue of the Italian Labour Law e-Journal intends to provide a systematic and informative overview on the measures set out by lawmakers and/or social partners in a number of countries of the world to address the impact on the Covid-19 emergency on working conditions and business operations. The aim is to understand which labour law norms and institutions and which workplace arrangements are being deployed in the different legal systems to tackle the global health crisis. Another aim is to find whether and to what extent the established body of laws is proving able to cope with the problems raised by the current extraordinary situation or whether, on the contrary, new special regulations are being introduced. The national reports may be subject to updating in case of major changes.


April 15, 2020 in International & Comparative L.E.L., Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Tuesday, April 14, 2020

15th Annual COSELL!

It's official ... the COSELL web page is now live. The conference is being hosted at (hopefully, literally "at") Louisville, and Arianna Levinson writes:

Please register for the 15th Annual COSELL to be held at the University of Louisville Brandeis School of Law, Thursday- Saturday, October 8-10, 2020, at this event page  We look forward to seeing everyone in October!

This is by far my favorite academic conference (I've only missed one year) because it has a lot of interesting papers, at various stages, with incredibly helpful and supportive comments from all of my favorite labor and employment scholars. It's also a great place for more junior scholars to not only get feedback on their work, but meet others in the field. So if you've never been, now is the time to correct that mistake.

Jeff Hirsch

April 14, 2020 in Conferences & Colloquia, Labor and Employment News | Permalink | Comments (0)

Friday, April 10, 2020

Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis

Having a hard time making sense of all of the economic measures that Congress is using to address the COVID-19 crisis? Then check out "Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis," by Hiba Hafiz, Shu-Yi Oei, Diane Ring, and Natalya Shnitser. The abstract:

The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance and a social safety net to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire.

This Working Paper — which will be continually updated to reflect current developments — will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020, subject to subsequent Technical Corrections of March 16, 2020, and then passed by the Senate without amendment and signed by the President on March 18, 2020. Next, it analyzes the provisions of H.R. 748 (the “Coronavirus Aid, Relief, and Economic Security Act” or the “CARES” Act) enacted into law on March 27, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives.

Jeff Hirsch

April 10, 2020 in Scholarship | Permalink | Comments (0)

Monday, April 6, 2020

SCOTUS: "But for" Cause Not Required for Some ADEA Claims

This morning, the Supreme Court issued its opinion in Babb v. Wilkie. The Court held that a plaintiff proceeding on a federal sector ADEA claim is not required to prove "but for" cause. If age was any part of the process, the government has violated the ADEA. However, remedies may be limited in cases where age was part of the process, but did not have a significant causal role in an employment outcome.

The opinion is here:

Sandra Sperino

April 6, 2020 | Permalink | Comments (2)

Wednesday, April 1, 2020

Comcast and Alternate Causation Structures

In Comcast v. National Association of African-American Owned Media the Supreme Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981. After Comcast, it is unclear if lower courts will be able to apply a “motivating factor” standard in cases where tort law would not apply “but for” cause. In Comcast, the Court claims to be applying tort causation to discrimination law.

While it is correct that “but for” cause is often the starting point for causation doctrine in a torts case, “but for” cause is not a stand-alone concept in tort law. Instead, it is part of a larger bundle of causal standards, that together form the common law notion of factual cause. It is not clear whether the Court in Comcast intends to apply tort law (which would allow for various causal standards) or whether it intends to impose a truncated version of tort law on the discrimination statutes.

The common law does not use “but for” cause alone, because doing so creates results that are unfair and that, in some cases, do not make sense. For example, tort law sometimes allows a partial burden shift to the defendant on causation issues and sometimes changes the substantive standard when “but for” cause produces strange results. Applying “but for” cause without the rest of the bundle is not consistent with the common law. Doing so places a higher factual cause standard on a plaintiff seeking a remedy under a federal civil rights statute than the common law would require.

In other cases, the Supreme Court described factual cause more completely. It stated:

[T]he availability of alternative causal standards where circumstances warrant is, no less than the but-for test itself as a default, part of the background legal tradition against which Congress has legislated. It would be unacceptable to adopt a causal standard so strict that it would undermine congressional intent where neither the plain text of the statute nor legal tradition demands such an approach.

Paroline v. United States, 572 U.S. 434, 458 (2014) (internal citation omitted). It is not clear whether the Court will allow plaintiffs in particular cases to argue that the default “but for” standard is not appropriate given the particular facts of the case.

Sandra Sperino

April 1, 2020 | Permalink | Comments (1)

Tuesday, March 31, 2020

Applying Comcast

On March 23, 2020, the Supreme Court announced its opinion in Comcast v. National Association of African-American Owned Media. The Court held that a plaintiff is required to establish “but for” cause to prevail on a claim under 42 U.S.C. § 1981.

The true impact of Comcast will only be known when appellate and district courts apply the new standard in Section 1981 cases. In most cases, whether a trial court applies a “but for” cause standard or a “motivating factor” standard should not impact how a federal judge rules on motions to dismiss or motions for summary judgment.

Fed.R.Civ. P. 12(b)(6) provides the standard for motions to dismiss based on failure to state a claim, and Fed.R.Civ.P. 56 provides the standard for summary judgment motions. In discrimination cases, the defendant is typically the party moving for summary judgment or to dismiss the case. The procedural rules for these motions require federal courts to view all evidence and inferences to be drawn from the evidence in favor of the non-moving party. The non-moving party is typically the plaintiff. Given these procedural standards, it will often be inappropriate for a court to dismiss a case or grant summary judgment for the defendant based on the new causal standard. If a plaintiff has evidence that a protected trait played a role in an outcome, it will often be impossible to determine exactly what role the protected trait played at the motion to dismiss and summary judgment stages.

Take the following example. A plaintiff claims her employer fired her because of her race and presents evidence to support her claim. The employer claims it fired her because she was late for work three times. At least three possible causal paths emerge from these facts: (1) the employer acted because of race; (2) the employer acted because of the employee’s tardiness; or (3) the employer acted because of some combination of the employee’s race and the fact that she was late. In most cases, it will be difficult to a declare (consistent with the procedural posture) that a plaintiff will be unable to establish “but for” cause.

However, the causal standard applied in discrimination cases has been contested for decades. This is, in part, because in practice, the causal standard does play a role in whether courts dismiss cases. Some courts improperly equate “but for” cause with sole cause. This is despite the Supreme Court’s explicit instruction that “but for” cause and sole cause are two different causal standards.

Other courts have struggled with the concept that there can be more than one “but for” cause to an outcome. When describing “but for” cause, courts often state that the protected trait must be the “but for” cause of an outcome. Use of the word “the” gives the misimpression that there can only be one “but for” cause.

The Supreme Court has made it clear that a party can establish “but for” cause when multiple causes exist. In Burrage v. U.S., the Court noted:

Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.

“But for” cause means that the cause was a necessary condition of the harm. An act can be a necessary condition of harm even when multiple acts are necessary to cause the harm. The Restatement provides examples of when a plaintiff can establish “but for” cause even when multiple causes exist. In one Restatement hypothetical a child suffers a seizure after a vaccination. If there is evidence that the vaccination intersected with a prior traumatic injury to cause the seizure, both the vaccination and the prior injury can be the “but for” cause of the seizure.

This outcome comports with the outcome in McDonald v. Santa Fe Trail Transp. Co., a case in which two white workers alleged race discrimination. The employer claimed that the two employees were terminated after stealing property. The employees argued that the employer did not terminate a black employee who engaged in similar misconduct. In McDonald, the Supreme Court specifically rejected the argument that the plaintiffs could not prove race discrimination in a case where the “dismissal was based upon their commission of a serious criminal offense against their employer.” The Court noted, “While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be applied, alike to members of all races, and Title VII is violated if, as petitioners alleged, it was not.”

The ultimate impact of Comcast will depend on whether courts properly apply “but for” cause within the context of the procedural rules governing motions to dismiss and motions for summary judgment.

Sandra Sperino

March 31, 2020 | Permalink | Comments (0)

Friday, March 27, 2020

Charting a global way forward: COVID-19 special edition of the ABA Int'l LEL Newsletter


The ABA International Labor & Employment Law Section has published a Special COVID-19 edition of its Newsletter, describing the myriad different responses that countries have taken to adjusting LEL laws to respond to the virus. Here's a description:

COVID-19 is now a truly global pandemic and is affecting hundreds of millions of people at both deeply personal and professional levels. Countries are attempting to respond in different ways, from quarantines to special health care initiatives to financial stimulus packages. Countries also are responding in myriad ways that affect workers and workplaces.

This special edition of the newsletter contains a series of short articles describing how several countries from throughout the world are using workplace laws to combat the spread of COVID-19 and to mitigate its effects on workers and workplaces. Though our survey is not comprehensive, it nonetheless provides a snapshot of the often thoughtful and creative ways that countries are responding to the crisis. We hope it will provide guidance not only to the international labor and employment attorneys who regularly read this newsletter, but also to policymakers worldwide considering how their countries might best restructure workplaces and protect workers in a time of crisis to mitigate both the devastating health effects of the virus and its disruption of the economic activity on which we all depend for our livelihoods.


March 27, 2020 in International & Comparative L.E.L., Labor and Employment News, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Thursday, March 26, 2020

COVID-19 Unemployment Assistance for Independent Contractors

Updated on April 6, 2020

Congress has now enacted the CARES Act that, among other things, substantially extends unemployment insurance benefits (UI) because of COVID-19. (For an overview, see NELP 2020; CRS 2020; DOL 2020). Here's a look at how Title II(A) of the CARES Act, or the "Relief for Workers Affected by Coronavirus Act" will likely affect professional drivers, family child-care providers, and other workers who, before COVID-19 hit, were treated (accurately or not) as "independent contractors," not "employees". (For background on prior legislation, as well as moves by States to relax UI eligibility, see here.)


Typically, State UI laws exclude unemployed claimants who were classified as "independent contractors", not "employees". Indeed, some firms misclassify their labor-contract counter-parties as "independent contractors" in order to avoid UI payroll taxes imposed on an employer "with respect to . . . individuals in his employ," 26 U.S.C. § 3301.

In contrast, federal disaster unemployment assistance does not turn on "employee" status. Rather, it covers not only an unemployed worker, but also "an unemployed self-employed individual," 20 C.F.R. § 625.4(c). To date, twelve States have been declared COVID-19 major disaster areas, but the President has not authorized unemployment assistance for any of them.

Title II(A) of the CARES Act provides. among other things, two kinds of new Federal UI benefits: (1) pandemic emergency unemployment compensation (CARES Act § 2107) and (2) Pandemic Unemployment Assistance (CARES Act § 2102). Bottom line: Individuals who've been classified as independent contractors can qualify for Pandemic Unemployment Assistance, if otherwise eligible. But they are unlikely to qualify for pandemic emergency unemployment compensation if they are indeed independent-contractors under State UI law.

Pandemic Emergency Unemployment Compensation

Here, any State and the US Department of Labor (DOL) can enter into an agreement under which the State pays "pandemic emergency unemployment compensation" to individuals who are "able to work, available to work, and actively seeking work"; have "exhausted all rights to regular compensation" under State or federal law; aren't getting UI from Canada; and have "no rights to regular compensation with respect to a week under such law or any other" State UI law "to compensation under any other Federal law." CARES Act § 2107(a)(2). If eligible, the claimant can get, in a particular week, an amount equal to what that individual would have otherwise been able to get under State UI law plus the amount they can get under Pandemic Unemployment Assistance.

The problem: Someone can't exhaust their rights to "regular" UI compensation if they never had those rights in the first place because of their independent-contractor status. Notably, this is not a problem for workers who are or should be classified as "employees" under the applicable State law, including but not limited to workers in the so-called gig economy. See, e.g., Vega v. Postmates, Inc., No. 13 (N.Y. 2020). Accordingly, for workers misclassified as independent contractors, the burden is on them to prove that misclassification to access pandemic emergency unemployment compensation.

Pandemic Unemployment Assistance

If someone can't get UI under State or federal law (and isn't eligible for pandemic emergency unemployment compensation), that individual may be able to get Federal Pandemic Unemployment Assistance under CARES Act § 2102 (except if they "telework with pay" or are receiving "paid sick leave or other paid leave benefits," CARES Act § 2102(3)(B).

Here, claimant individuals must self-certify that they are "otherwise able to work and available for work" under State UI law, but they are "unemployed, partially unemployed, or unable or unavailable to work," CARES Act § 2102(a)(3)(A)(ii)(I), because of one of several qualifying conditions.

Such qualifying conditions include that the individual is caring for a family or household member diagnosed with COVID-19, or primarily cares for a child who can't attend school because of COVID-19 and such school is required for the individual to work. See CARES Act § 2102(a)(3)(A)(ii)(I)(aa)-(hh)

Other qualifying conditions include:

(ii) the individual has to quit his or her job as a direct result of COVID-19;

(jj) the individual's place of employment is closed as a direct result of the COVID-19 public health emergency; or

(kk) the individual meets any additional criteria established by the Secretary for unemployment assistance under this section.

Id. § 2102(a)(3)(A)(ii)(I)

Now, the key provision: If one of these qualifying conditions exist, and the individual is otherwise eligible, that individual is still covered even if that individual

is self-employed, . . . or otherwise would not qualify for regular unemployment or extended benefits under State or Federal law or pandemic emergency unemployment compensation.

CARES Act § 2102(a)(3)(A)(ii)(II).

This clause seems to cover anyone who couldn't get regular State and federal UI law, as well as pandemic emergency unemployment compensation, because they'd be treated as an independent contractor. It's drafted as a catch-all inclusion, as indicated by the phrase "otherwise would not qualify"; thus, it would still cover independent contractors even absent the phrase "self-employed".

Still, of workers who are independent contractors, some may find it unclear whether they meet a qualifying condition. For example, suppose a driver who is the (nominal) owner-operator of the vehicle she drives and who, because of COVID-19, can't derive any income from driving, either because passengers are staying home to avoid COVID-19 exposure or because the driver, fearing COVID-19 exposure, stops driving. Another example: A family child-care provider (someone who runs a child care in their home) feels that she has to close the child care, because she fears the COVID-19 exposure to herself and her family arising from caring for other people's children in her home. In either case, which qualifying condition applies? Would we say that, in each case, the individual's "place of employment" (the vehicle or residence, respectively) "is closed" because of COVID-19? Or that the individual "has to quit" because of COVID-19?

These and other edge cases will turn on how (and how fast) the DOL moves, not only to issue "operating instructions or other guidance" documents, CARES Act § 2116(b), but also to use its authority to identify other qualifying conditions ("additional criteria" under § 2102(a)(3)(A)(ii)(I)(kk)) to cover such cases.

On April 5, 2020, DOL issued a guidance in which it partly addressed this issue by identifying an additional qualifying condition:

[A]n individual who works as an independent contractor with reportable income may also qualify for PUA benefits if he or she is unemployed, partially employed, or unable or unavailable to work because the COVID-19 public health emergency has severely limited his or her ability to continue performing his or her customary work activities, and has thereby forced the individual to suspend such activities. For example, a driver for a ridesharing service who receives an IRS Form 1099 from the ride sharing service may not be eligible for PUA benefits under the other criteria outlined above, because such an individual does not have a “place of employment,” and thus cannot claim that he or she is unable to work because his or her place of employment has closed. However, under the additional eligibility criterion established by the Secretary here, the driver may still qualify for PUA benefits if he or she has been forced to suspend operations as a direct result of the COVID19 public health emergency, such as if an emergency state or municipal order restricting movement makes continued operations unsustainable.

DOL (2020, p. I-6).

--- Sachin Pandya

March 26, 2020 | Permalink | Comments (1)

Tuesday, March 24, 2020

Sixth Circuit, Erie and McDonnell Douglas

There is an unresolved question about whether McDonnell Douglas is procedural or substantive for purposes of Erie analysis. Today, the Sixth Circuit held that it did not need to resolve this question when analyzing a claim under the Kentucky Civil Rights Act. The Sixth Circuit held that Kentucky state courts would also apply McDonnell Douglas to state law claims, so there was no conflict between federal and state law. A link to the case, Turner v. Marathon Petroleum Company, LP, is here:

Readers should note that this issue may be less straightforward in some cases.  Even if a state does generally apply McDonnell Douglas to its discrimination statute, state and federal versions of McDonnell Douglas have developed differently over time. Some states have more restrictive or more expansive versions of the McDonnell Douglas test than the versions used by federal courts.  Given the discrepancies and circuit splits that have occurred over time, McDonnell Douglas is not truly one unified test, but an umbrella term that describes many different tests.  There are currently circuit splits on a number of different aspects of the test.

Hat tip to my colleague Michael Solimine for alerting me to this case.

Sandra Sperino

March 24, 2020 | Permalink | Comments (0)

Monday, March 23, 2020

Comcast and McDonnell Douglas

            In today’s Comcast opinion, the Supreme Court held that plaintiff must prove “but for” cause to prevail on a section 1981 claim.  On page 12 of the opinion, the Court discussed how this holding intersects with McDonnell Douglas.  Here are the highlights:

  • The Court seems to leave McDonnell Douglas intact, while also cryptically noting that a plaintiff may not use the test to survive a motion to dismiss when the complaint fails to allege essential elements of a claim.
  • There are two components to the Court’s Comcast holding: (1) that the plaintiff bears the burden of proof and (2) the required substantive standard is “but for” cause. There is a way to align McDonnell Douglas with both components. Current McDonnell Douglas doctrine would allow a plaintiff to establish “but for” cause either through the prima facie case or through pretext. If a plaintiff can establish the prima facie case, this creates a rebuttable presumption that a protected trait was the cause of the action.  Similarly, if a factfinder finds pretext, the factfinder may find that the protected trait was the cause of the challenged action.
  • In one sentence, the Court indicated a way that McDonnell Douglas can procedurally align with the holding that the plaintiff bears the burden. The Court noted that McDonnell Douglas only shifts the burden of production to the defendant. The Court may be hinting that since the burden of persuasion always remains with the plaintiff, that the slight shift of the burden of production in step two of McDonnell Douglas does not contradict the Comcast
  • The Court noted that the purpose of McDonnell Douglas is to help courts assess claims when a plaintiff relies on indirect evidence. However, the Court noted that the test sought to create a test for courts to use at summary judgment. This sentence is problematic because it is unclear why courts would use a different test than the one a factfinder would ultimately use. In other words, there should not be one test at summary judgment and another at trial.  Judges often instruct juries using the core concepts from McDonnell Douglas (like pretext), but often refuse to instruct them under the entire framework.
  • It should be noted that McDonnell Douglas itself was a bench-tried case. At the time the Court decided the case, Title VII did not apply to jury trials.
  • The Court hinted that McDonnell Douglas may not apply in Section 1981 cases, but it is difficult to tell. The Court started a sentence with the following: “[w]hether or not McDonnell Douglas has some useful role to play” in Section 1981 cases.  It is not clear what this introductory phrase means.
  • The Court stated that McDonnell Douglas arose in a context where “but for” cause was the undisputed test. This is not completely accurate.  It is true that many courts were using “but for” cause in 1973; however, the question of causation had not crystallized in the case law at the time. It would be more accurate to say that the courts generally were not seriously focusing on the question of causation in 1973. Recall that the major contours of Title VII and its administrative process were still being interpreted at this time.

Here is a link to the opinion:

Sandra Sperino

March 23, 2020 | Permalink | Comments (1)

COVID's Unique Risk to Garment Workers

MaquiladoraMany thanks to Tequila Brooks for forwarding a link to
Maquila Solidarity Network's report Brands Must Urgently Take Steps to Minimize Impact of the Coronavirus on Garment Workers’ Health and Livelihoods. I can tell you firsthand that these workers are extraordinarily vulnerable -- they work in crowded conditions for long hours, have poor access to health care, and sometimes live in high-density shantytowns surrounding the garment factories. They usually are the primary or sole breadwinner for an extended family, and hence can ill-afford to lose their jobs due to supply-chain disruptions. Here's an excerpt from the report:

The new coronavirus has reached global pandemic levels and is affecting people across the world, including garment workers in global supply chains. Protecting those most at risk means both taking steps to limit exposure and ensuring that people surviving on the poverty line are not pushed below it. Due to their low wages and widespread repression of freedom of association rights, garment workers already live in precarious situations and the economic fallout of the pandemic is having far-reaching consequences. We urge all clothing brands to take immediate proactive steps in their due diligence to protect workers who make their goods in the face of this global pandemic. Brands must take responsibility for workers throughout their supply chains and ensure that the garment workers who have made their profits possible do not carry the industry’s financial burden during this pandemic.


March 23, 2020 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

SCOTUS opinion in Comcast

The Supreme Court announced its opinion in Comcast today. The Court held that a Section 1981 plaintiff is required to establish “but for” cause to prevail.  The Court claimed that statutes have a default rule for causation: a plaintiff is required to establish “but for” causation.  The Court held there may be exceptions to this canon of construction, but that none were present in this case. The reasoning of the case largely rehashes the arguments adopted in Gross and Nassar.  Surprisingly, the opinion is joined by all of the Justices.  Justice Ginsburg did not join one footnote and wrote a concurring opinion.  I will write more about the opinion soon.

Sandra Sperino

March 23, 2020 | Permalink | Comments (0)

Sunday, March 22, 2020

Latest Issue of the Journal of Collective Bargaining in the Academy

Readers may want to check out the latest issue of the Journal of Collective Bargaining in the Academy, "Some Impacts on Faculty: 50+ Years of Academic Collective Bargaining and Counting":  Here's the table of contents.



Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih

Practitioner Perspectives

Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak

Jeff Hirsch

March 22, 2020 in Labor and Employment News, Labor Law, Scholarship | Permalink | Comments (0)

Friday, March 20, 2020

Tippett on New Sick Leave Legislation

Readers might be interested in a new post by Professor Elizabeth Tippett on new federal sick leave legislation.  Prof. Tippett explains coverage and exceptions.  Find her post here.


March 20, 2020 | Permalink | Comments (0)

Thursday, March 19, 2020

On Unemployment Insurance and COVID-19

As COVID-19 causes layoffs, workers will turn to State unemployment insurance (UI). Here are what some States and the federal government have done thus far to make it easier for workers affected by COVID-19 to qualify for UI benefits. (Note: This post was updated on March 24, 2020.)


Although States set the eligibility requirements for UI, for the US Department of Labor to certify a State's UI program (a condition for federal funding and tax credits), that State's UI law must require that, "for regular compensation for any week, a claimant must be able to work, available to work, and actively seeking work." 42 U.S.C. § 503(a)(12). State UI rules also typically deny UI benefits to anyone who voluntarily quits their employer absent good cause for doing so (DOL 2019, chap. 5).

How can unemployed workers meet these "available" and "actively seeking" requirements in a pandemic? And what if they are asymptomatic but quit to self-isolate or care for a family member with symptoms?

The States Move

As a recent US Department of Labor (DOL) guidance noted, States have some room to maneuver in deciding how to meet these requirements. For example, a State may take an individual as "available" to work if that individual is "on temporary lay-off and is available to work only for the employer that has temporarily laid-off the individual." 20 CFR § 604.5(a)(3).

In response to COVID-19, some States have moved to relax UI eligibility.

Under Washington State's UI law, see Wash. Stat. § 50.20.101, the State recognizes a category of UI-eligible "stand by workers" that includes someone "temporarily unemployed due to natural disaster." Wash. Admin. Code 192-110-015(1)(a)(iii). As part of its COVID-19 response, Washington now provides that, for such workers, that "[t]he requirement to register for work and search for work is fulfilled so long as you are on standby and take reasonable measures to maintain contact with the employer." Id. 192-110-015(1)(b).

In Ohio, the governor has declared that, under Ohio UI law, a UI applicant is unemployed and not required to "actively seek" work if the applicant is "requested by a medical professional, local health authority, or employer to be isolated or quarantined as a consequence of COVID-19 even if not actually diagnosed with COV-19," except where the worker has "access to leave benefits from their employer(s)." Ohio E.O. 2020-03D

In Michigan, the governor has suspended "strict compliance" with key parts of Michigan's UI law until April 14. For example, for UI eligibility, an individual must be deemed to have been laid off, or to have left work involuntarily for medical reasons, if that person became unemployed, or left work, respectively, because of

self-isolation or self-quarantine in response to elevated risk from COVID-19 due to being immunocompromised, displaying the symptoms of COVID-19, having contact in the last 14 days with someone with a confirmed diagnosis of COVID-19, the need to care for someone with a confirmed diagnosis of COVID-19, or a family care responsibility as a result of a government directive.

Michigan E.O. No. 2020-10.

In Wisconsin, the governor has declared, among other things, that during any week in a which there is a "public health emergency," its UI system will assume that a claimant is "available for suitable work" that week, provided that an employer "perceive[s]" the claimant "as exhibiting COVID-19 symptoms preventing a return to work" or the claimant is quarantined; and one of the following applies:

a. The employer has instructed the claimant to return to work after the employee no longer exhibits symptoms, after a set amount of time to see if the disease is present, or after the quarantine is over.

b. The employer has not provided clear instruction for the claimant to return to work.

c. The claimant would be available for other work with another employer but for the perceived COVID-19 symptoms preventing a return to work or the quarantine.

Wisconsin Emergency Order #7,

In Connecticut, the State's Commissioner of Labor has waived the active-search requirement "during the pandemic crisis, so long as such individuals remain ready to return to work once the pandemic crisis measures have been lifted."

States have more flexibility with respect to UI eligibility requirements that the federal law does not mention, such as waiting periods. For States suspending waiting-week requirements, see, e.g., Calif. E.O. N-25-20 and N.Y. E.O. No. 202.1, p. 3.

If undocumented, however, a worker is likely ineligible for UI in any case. To be federally-certified, a State's UI law must provide that a claimant, in order to be "available to work," must, if a non-citizen, be legally authorized to work in the United States. See 20 CFR § 604.5(f). Moreover, in 1996, Congress made undocumented workers ineligible for "any State or local public benefit," 8 U.S.C. § 1621(a), a term that includes any "unemployment benefit," id. § 1621(c)(1)(B). (Section 1621 does not apply to public health assistance for testing and treatment for COVID-19. See 8 U.S.C. § 1621(b)(3).)

Congress and Emergency UI Funding to States

The recently-enacted Emergency Unemployment Insurance Stabilization and Access Act of 2020 authorizes about $1 billion in emergency grants for State unemployment insurance programs. One of the conditions: The State shows that it has or is moving to "ease eligibility requirements and access to unemployment compensation for claimants, including waiving work search requirements and the waiting week and directly or indirectly relieving benefit charges for claimants and employers directly impacted by COVID-19 due to an illness in the workplace or direction from a public health official to isolate or quarantine workers." Act § 4102(a).

That Act also provides that, for purposes of applying its regular UI certification requirements, the DOL "shall" disregard any State modifications of UI "law and policies with respect to work search, waiting week, good cause, or employer experience rating on an emergency temporary basis as needed to respond to the spread of COVID-19." Act § 4102(b). Thereafter, DOL issued a guidance on what temporary measures States might adopt accordingly. For example, DOL suggests that States modify their UI requirement that any voluntary quits must be for "good cause" to allow workers to leave work "due to reasonable risk of exposure or infection (i.e., self-quarantine) or to care for a family member affected by the virus." (DOL 2020, p. 8)

Disaster Unemployment Assistance?

On March 20, the President declared all of New York State a "major-disaster" under the Stafford Act because of COVID-19. He's now done the same for Washington State and California.

Once he issues this kind of "major disaster" declaration, the Stafford Act authorizes the President to provide unemployment assistance to workers laid off because of COVID-19 who otherwise wouldn't qualify under State UI law. The President hasn't done that yet, even though at least California and New York asked for it.

Section 410 of the Stafford Act authorizes the President to provide "to any individual unemployed as a result of a major disaster such benefit assistance as he deems appropriate" while that individual is unemployed. That individual, however, can't be "entitled to any other unemployment compensation." And disaster unemployment assistance only lasts "as long as the individual's unemployment caused by the major disaster continues or until the individual is reemployed in a suitable position," but no longer than 26 weeks after the major disaster is declared. The amount can't be more than the maximum under the UI law of the State "in which the disaster occurred." 42 U.S.C. § 5177(a). Federal regulations set forth eligibility requirements for such relief, see 20 C.F.R. § 625.4, including that the "individual is able to work and available for work within the meaning of the applicable State law," id. § 625.4(g). Notably, eligibility does not depend on employee status; it extends to either an unemployed worker or "an unemployed self-employed individual," id. § 625.4(c).

Can COVID-19 count as a "major disaster" under the Stafford Act? The Act defines the term "major disaster" to mean

any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

42 U.S.C. § 5122(2).

Because this definition does not expressly refer to a disease outbreak, a Congressional Research Service (CRS) report, dated March 12, 2020, tersely opined that disaster unemployment assistance "will not be available under current law in response to COVID-19." A more detailed 2008 CRS report, however, concluded that an influenza epidemic is neither clearly included or excluded from the term "natural catastrophe" under the Stafford Act's definition of "major disaster".

Processing Claims

Even if States make it easier to become UI eligible, what's unclear is how COVID-19 will affect government capacity to process claims and get funds to claimants. Most UI claims are filed via the Internet, though in some States (e.g, Kansas, Vermont), many file by phone (DOL 2020). As UI claims increase, State will have to fortify their UI website portals (for reports of State UI website crashes, see, e.g., here and here) and have enough government employees available to process those UI claims.

--- Sachin Pandya

March 19, 2020 | Permalink | Comments (0)