Workplace Prof Blog

Eisenstadt on #MeTooBots and the AI Workplace

A huge congratulations to Friend-of-Blog Leora Eisenstadt (Temple) on her wonderful new piece, #MeTooBots and the AI Workplace, which is forthcoming in the University of Pennsylvania Journal of Business Law.  This paper, which looks at the intersection of technology and the #MeToo movement, is definitely worth adding to your early semester reading list!  Professor Eisenstadt wanted me to make sure to acknowledge two of my wonderful colleagues, Marcia McCormick and Matt Bodie, for their extraordinary efforts and help with this great new Article, which is available on SSRN.  The abstract is below:

"Responding to the #MeToo Movement, companies across the United States and Europe are beginning to offer products that use AI to detect discrimination and harassment in digital communications. These companies promise to outsource a large component of the EEO compliance function to technology, preventing the financial costs of toxic behavior by using AI to monitor communications and report anything deemed inappropriate to employer representatives for investigation. Highlighting the problem of underreporting of sexual harassment and positing that many victims do not come forward out of a fear of retaliation, these “#MeTooBots” propose to remove the human element from reporting and rely on AI to detect and report unacceptable conduct before it contaminates the workplace.

This new technology raises numerous legal and ethical questions relating to both the effectiveness of the technology and the ways in which it alters the paradigm on which anti-discrimination and anti-harassment doctrine is based. First, the notion that AI is capable of identifying and parsing the nuances of human interactions is problematic as are the implications for underrepresented groups if their linguistic styles are not part of the AI’s training. More complicated, however, are the questions that arise from the technology’s attempt to eliminate the human reporter: (1) How does the use of AI to detect harassment impact employer liability and available defenses since the doctrine has long been based on worker reports? (2) How does this technology impact alleged victims’ vulnerability to retaliation when incidents may be detected without a victim’s report? (3) What is the impact on the power of victim voice and autonomy in this system? and (4) What are the overall consequences for organizational culture when this type of technology is employed?

This Article examines the use of AI in EEO compliance and considers whether the elimination of human reporting requires a reconsideration of the U.S.’s approach to discrimination and harassment. Appearing on the heels of revelations about the use of non-disclosure agreements and arbitration clauses to silence victims of sexual harassment, this Article posits that the use of AI to detect and report improper communications, an innovation that purports to help eradicate workplace harassment, may, in reality, be problematic for employers and employees alike, including functioning as a new form of victim abuse. Lastly, the Article considers the difficult work of creating open, healthy workplace cultures that encourage reporting, and the impact of outsourcing this work to Artificial Intelligence. Rather than rejecting what may be an inevitable move towards incorporating artificial intelligence solutions in the workplace, this Article suggests more productive uses of AI at work and adjustments to employment discrimination doctrine to be better prepared for an AI-dependent world."

-- Joe Seiner

Harkavy's Annual LEL SCOTUS Review

Many thanks to Jonathan Harkavy (Patterson Harkavy) for sharing with us the 2021 edition of his annual review of the labor/employment decisions from the Supreme Court. As always, it's a great resource. Here's the abstract:

This article provides extended summaries and (separately) the author's take on every employment and labor law decision rendered by the Supreme Court during its most recent term. Also covered in this piece are abbreviated reviews of all grants of certiorari for the upcoming term and short summaries and analyses of all other employment-related opinions published by the Court this term, including those on the so-called shadow docket portion of the orders lists. The article concludes with additional commentary on the work of the Supreme Court as it affects the labor and employment law sector.

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Elmore and Griffith on Franchisor Power as Employment Control

Congratulations to Andrew Elmore (Miami) and Kati Griffith (Cornell) on the publication of their new piece, Franchisor Power as Employment Control, in the California Law Review!  The piece can be downloaded here.  This Article provides a wonderful analysis of this issue, and is an excellent read and contribution to the scholarship in the field.  The abstract is below:

Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers’ rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility that franchisors and their subordinate companies (franchisees) are joint employers. Recent political developments mirror this foreclosure and pose a historic narrowing of the scope of joint employer liability. This Article challenges courts, administrative agencies, and legislators to take more seriously franchisors’ power over their franchisees and the working conditions of low-wage fast-food workers. To advance this argument, we rely on insights from an original empirical data set of (1) forty-four contracts between leading fast-food franchisors and franchisees in 2016 and (2) comprehensive documentation provided in joint employer legal proceedings against two major fast-food franchisors in the United States: McDonald’s and Domino’s Pizza. Our proposed “power as employment control” construct considers, within the confines of existing doctrines, the cumulative effects of lead franchisor firms’ reserved (unexercised) and exercised influence over the working conditions in their subordinate businesses. By giving power more consideration in analyses of joint employer liability, courts, administrative agencies, and policy-makers can bring more justice and consistency to this hotly contested area.

— Joe Seiner

Recent Posts on JOTWELL Worklaw

For those of you that are interested in some cutting edge scholarship in the employment law area, there are some great recent reviews on JOTWELL's Worklaw Section.  In the last three months alone, the following wonderful reviews have been posted:

Kerri Stone's review of Kimberly Bailey's piece, Male Same-Sex "Horseplay": The Epicenter of Sexual Harassment, which is available here;

Alex Long's review of Michelle Travis's article, A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility, which is available here; and

Charlotte Alexander's review of Yvette Butler's piece, Aligned: Sex Workers’ Lessons for the Gig Economy, which is available here.

Jotwell is a great way to keep up on some of the most important and emerging scholarship in our field.  You can take a look at all of the Worklaw Jotwell reviews here.  

-- Joe Seiner

COVID-Related Labor Arbitration Awards

My summer research project has been compiling and analyzing COVID-related labor arbitration awards. The result is an article that will be published this fall in the Ohio State Journal on Dispute Resolution. The title is COVID-Related Labor Arbitration Awards in the United States and Canada: A Survey and Comparative Analysis; here's the abstract:

The COVID-19 pandemic of 2020-21 has changed working conditions for millions of Americans and Canadians quickly and dramatically. Employers responded by requiring employees to quarantine, implementing workplace COVID policies, disciplining employees who violated those policies, changing work schedules, cancelling leaves or vacations, and furloughing or laying off employees. Unions have challenged many of these actions, raising a variety of novel issues that are now being resolved through labor arbitration. This article surveys those labor arbitration awards and then comparatively analyzes the awards from Canada and the United States.

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New Edition of Craver/Crain/Hayden's Labor Relations Law

Congratulations to Charlie Craver, Marion Crain, and Grant Hayden on the publication of the fourteenth (!!!) edition of Labor Relations Law: Cases and Materials (Caroline Academic Press). The book will be available for courses this fall. Here's a description:

The casebook is designed for an intensive examination of the union-management relationship throughout its major phases. Largely tracking the organization of the National Labor Relations Act, it covers the right of employees to join together for organizational purposes, the regulation of the union-organizing process including the use of economic weapons, the development of bargaining relationships, the negotiation and enforcement of collective agreements, and, more briefly, the law governing internal union affairs. The text responds generously to the most significant current developments in the field and provides a set of materials that will be truly manageable in the usual three- or four-hour courses. The fourteenth edition includes over sixty new hypothetical problems designed to test students’ knowledge of existing doctrines and push them to explore issues that don’t admit of ready answers (with detailed answers and explanations in the teacher’s manual). As with previous editions, the book will come with a comprehensive teacher’s manual and a biennial supplement to keep the book up-to-date.

Faculty should contact Erin Matthews at Carolina Academic Press for electronic review copies ([email protected] or 919-489-7486 ext. 123).

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Call for Submissions: Employee Rights and Employment Policy Journal

From Marty Malin, one of the editors of the Employee Rights and Employment Policy Journal (along with Michael Green and Noah Zatz). Note that this is one of the few, peer-reviewed law journals. I may be biased, as I'm on the board of the journal and participate in the editing process, but I think they do a very good job of providing quick and useful reviews of submissions--especially with its accelerated review process. 

Employee Rights and Employment Policy Journal invites you to submit your work for publication. This summer we are again using a special review process for submissions received by Thursday, July 1. For these submissions, we will complete our peer-review selection process by Friday, August 13. Selected articles will be published in the final issue of 2021 (volume 25). For more than twenty-four 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 13. 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 [email protected] 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 email addresses; and phone number—is on a separate cover).

Jeff Hirsch 

Hayden & Bodie: New Article, Book on Codetermination & Corporate Governance

Grant Hayden (SMU) and Matt Bodie (SLU) have both a new article and a new book out. The article is Codetermination in Theory and Practice, 73 Fla. L. Rev. 321 (2021). Here's the abstract:

Codetermination—a system of shared corporate governance between shareholders and workers—has been mostly ignored within the U.S. corporate governance literature. When it has made an appearance, it has largely served as a foil for shareholder primacy and as an example of corporate deviance. However, over the last fifteen years—and especially in the last five—empirical research on codetermination has shown surprising results as to the system’s efficiency, resilience, and benefits to stakeholders.

This Article reviews the extant American legal scholarship on codetermination and provides a fresh look at the current state of codetermination theory and practice. Rather than experiencing the failures predicted by our law-and-economics framework of shareholder primacy, codetermination has fared better than alternative systems, particularly with respect to the ravages of the Global Financial Crisis of 2008. At a time when corporate leaders, politicians, and academics are rethinking the shareholder primacy model, this Article presents an updated perspective on codetermination and invites U.S. scholars to reexamine their prior assumptions.

The new book is Reconstructing the Corporation: From Shareholder Primacy to Shared Governance (Cambridge Univ. Press, 2021). Here's a description:

Modern corporations contribute to a wide range of contemporary problems, including income inequality, global warming, and the influence of money in politics. Their relentless pursuit of profits, though, is the natural outcome of the doctrine of shareholder primacy. As the consensus around this doctrine crumbles, it has become increasingly clear that the prerogatives of corporate governance have been improperly limited to shareholders. It is time to examine shareholder primacy and its attendant governance features anew, and reorient the literature around the basic purpose of corporations. This book critically examines the current state of corporate governance law and provides decisive rebuttals to longstanding arguments for the exclusive shareholder franchise. Reconstructing the Corporation presents a new model of corporate governance - one that builds on the theory of the firm as well as a novel theory of democratic participation - to support the extension of the corporate franchise to employees.

Congratulations!!!

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Can you Invest Your 401k in Bitcoin?

Edward Zelinsky explains, in Is Bitcoin Prudent? Is Art Diversified?: Offering Alternative Investments to 401(k) Participants, 54 Connecticut L. Rev. ___ (forthcoming 2021). Here's the abstract:

Whether any category of alternative investments ought to be considered for the menus offered to 401(k) participants is a fact-intensive question.Central to this inquiry are ERISA’s legal tests of prudence, diversification and loyalty. These tests require such fact-driven inquiries as the acceptability of a particular category of investments to investors in general and to professional defined benefit trustees in particular and the trustee’s motivation for embracing such investments. Another important concern when making this inquiry is the financial unsophistication of many (perhaps most) 401(k) participants.

Real estate investment trusts (REITs) pass ERISA’s fiduciary tests because REITs now have a considerable track record amassed over six decades and have achieved broad acceptance, both among general investors and in the world of defined benefit pensions.In contrast, art funds, Bitcoin and other cryptocurrencies are today not prudent to offer to 401(k) participants in light of such investments’ novelty and the failure to date of defined benefit trustees to embrace such investments.

ESG funds are like art funds and Bitcoin, not objectively prudent under present circumstances and therefore not appropriate as a class for 401(k) investment menus. Hedge funds and private equity funds are closer to REITs in light of the widespread acceptance of these funds by defined benefit trustees.Consequently, as a class, such funds, if appropriately limited,qualify as prudent for 401(k) menus even if the trustee would not personally deploy his personal resources to such funds and even if some (perhaps many) such funds examined individually fail ERISA’s fiduciary standards.

These determinations may change over time with new factual circumstances, e.g., greater acceptance of a particular asset class by investors including professional defined benefit trustees as gatekeepers for the 401(k) universe; the emergence of robust markets which provide more experience with particular investment categories. But the approach is ultimately what counts as the norms of prudence, loyalty and diversification, applied to current facts, govern the construction of 401(k) investment menus.

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Sullivan on Noncompetes & Laid-Off Workers

Our own Charlie Sullivan (Seton Hall) has just posted on SSRN his timely article Noncompetes in a Downsizing World. Here's the abstract:

As the nation confronts multiple federal and state attacks on employee noncompetition agreements (NCAs), one issue has remained relatively obscure: may an employer that terminates a worker for reasons not related to performance nevertheless enforce an NCA? A scattering of cases mostly holds no, and the recent Restatement of Employment Law’s agreement with those decisions is likely to be very influential for the great majority of jurisdictions that have not yet addressed the question but may be forced to in light of massive COVID-related layoffs.

This Article supports the Restatement’s proposed rule, while exploring the fascinating doctrinal and policy issues implicated in the question. Ultimately, it sees the rule as rooted in concerns about fairness to employee that are typically given short shrift in current doctrine. This is true even for a Restatement that otherwise seems decided to opt for an economic approach that would validate NCAs that are “reasonably tailored” to defined legitimate employer interests.

Adoption of a rule denying enforcement in such situations also poses some interesting second-order questions, such as how to determine when a termination is performance-related and probable employer responses to a new dispensation. All are explored in the pages that follow.

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Porter: The Process Due for Sexual Misconduct in Workplace v. Schools v. Criminal Cases

Nicole Porter (Toledo) has just posted on SSRN her article #MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn. Here's the abstract:

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?

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ILAW Publishes First Issue of Global Labour Rights Reporter

The International Lawyers Assisting Workers (ILAW) Network has just published the inaugural issue of a new law journal – the Global Labour Rights Reporter. The journal is a forum primarily for labour and employment law practitioners globally, including ILAW Network members, to grapple with the legal and practical issues that directly affect workers and their organizations today. It takes a comparative approach, reflecting the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. The journal will be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues.

Current articles:

• WORKER-ENFORCEABLE SUPPLIER CODES OF CONDUCT AS A TOOL FOR ACCESS TO JUSTICE
  IN GLOBAL SUPPLY CHAINS, by BETTINA BRAUN, AVERY KELLY & CHARITY RYERSON
• ACCESS TO JUSTICE IN LABOUR RELATIONS IN GEORGIA, by RAISA LIPARTELIANI & TAMAR GABISONIA
• ACCESS TO LABOUR JUSTICE AND PROCEDURAL BARRIERS IN COMMENCEMENT OF PROCEEDINGS: A PARADIGM SHIFT IN ZIMBABWEAN COURT PRACTICE OR A JUDICIAL MIRAGE?, by MUNYARADZI GWISAI
• EFFECTIVE JUDICIAL PROTECTION AND THE RIGHTS OF WORKING PEOPLE UNDER COVID-19: A VIEW FROM COLLECTIVE LAW, by MIGUEL ANGEL GARRIDO PALACIOS
• THE RIGHT TO FAIR AND SATISFACTORY WORKING CONDITIONS: RISK PREVENTION AND ACCESS TO JUSTICE, by MARÍA PAULA LOZANO & MATÍAS CREMONTE
• AUSTRALIA’S UNIQUE AWARD SYSTEM HAS BEEN TESTED BY THE COVID-19 PANDEMIC: IT HAS BEEN SHOWN TO BE READILY ADAPTABLE TO PROTECT EMPLOYER INTERESTS BUT LESS EFFECTIVE AT PROACTIVELY PROTECTING EMPLOYEES, by TREVOR CLARKE
• COVID-19 & NEOLIBERALISM: IMPACTS ON LABOUR JUSTICE IN BRAZIL, by PEDRO DANIEL BLANCO ALVES & MAXIMILIANO NAGL GARCEZ
• THE COVID-19 PANDEMIC AND THE WHISTLE-BLOWER PROTECTION IN POLAND, by ŁUCJA KOBROŃ-GĄSIOROWSKA
• LABOUR INSPECTION: MORE THAN AN EXERCISE IN ETHICS, by SAMANTHA RAMSAY & BERYL TER HAAR

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Katsabian on How Tech Can Undermine LEL Protections

Tammy Katsabian (postdoc, Harvard Labor & Worklife Program) has just posted on SSRN her article The Rule of Technology – How Technology Is Used to Disturb Basic Labor Law Protections (forthcoming 25 Lewis & Clark L. Rev. ___ (2021). [Americans should note: she uses "labor" broadly to include what we usually refer to as "employment" law.] Here's the abstract of this timely article:

Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This article aims to contribute to the current scholarship by zooming it out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. This is done by referring to legal, sociological, and internet scholarship on the matter.

The main argument elaborated throughout this article is that digital technology is used to blur and distort many of the basic labor law protections. Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.

By providing four detailed examples, the article unpacks how employers, giant high-tech companies, and society use various forms of technology to constantly disturb legal categories in the labor field regarding time, sphere, and relations. In this way, the article demonstrates how social media sites, information communication technologies, and artificial intelligence are used to blur the traditional concepts of privacy, working time and place, the employment contract, and community. This increased blurriness and fragility in labor have created many new difficulties that require new ways of thinking about regulation. Therefore, the article argues that both law and technology have to be modified to cope with the new challenges. Following this, the article proposes three possible ways in which to start considering the regulation of labor in the digital reality: (1) embrace flexibility as part of the legal order and use it as an interpretive tool and not just as an obstacle, (2) broaden the current legal protection and add a procedural layer to the legal rights at stake, and (3) use technology as part of the solution to the dilemmas that technology itself has emphasized. By doing so, this article seeks to enable more accurate thinking on law and regulation in the digital reality, particularly in the labor field, as well as in other fields and contexts.

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Trade & Labor Policy in a Biden Administration

What has to change in U.S. trade policy to improve labor practices in global supply chains?

The Cornell ILR School’s New Conversations Project and Sandra Polaski, Senior Research Scholar at Boston University’s Global Development Policy Center, will hold a live discussion on Tuesday, 19 January 2021 from 9 – 10:15 EST on the topic of Sandra's recent paper, How Trade Policy Failed U.S. Workers--and How to Fix It. Register here.

A group of scholars and practitioners will debate the paper’s proposed changes and their possible impacts for workers. Participants include:

• Sandra Polaski, Senior Research Scholar in the Global Economic Governance Initiative at Boston University, and member of the Independent Mexico Labor Expert Board.
• Desiree LeClercq, Proskauer Employment and Labor Law Assistant Professor at Cornell University's School of Industrial and Labor Relations.
• Carlos Salas, Visiting Professor of Economics at Universidad Autónoma Metropolitana (UNAM), Azcapotzalco, Mexico City.
• Olabisi Akinkugbe, Assistant Professor at the Schulich School of Law, Dalhousie University, Canada.
• Dave Welsh, Country Director of the AFL-CIO Solidarity Center in Thailand.
• Jason Judd (Moderator), Executive Director of Cornell University's New Conversations Project in the School of Industrial and Labor Relations.

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Inaugural Issue: Contemporary Labour Law Review

Congratulations to Giorgi Amiranashvili and his team at the NNLE Center for Contemporary Labour Law on the publication of the first issue of Contemporary Labour Law Review. Here's an introduction:

We are pleased to present the fi rst issue of the scientific-practical journal Contemporary Labour Law Review, – published by the Center for Contemporary Labour Law. The journal has been launched on 29 November 2019. The launch event, hosted by Tbilisi State University, was attended by the representatives of government and non-governmental sectors working in the field of labour law, judges, legal practitioners, academics and students. The number of attendees at the event and subsequent feedback indicates how great the public interest in the journal has been, which, in turn, obliges us to satisfy the interest of readers and give them the opportunity to read useful information on current and problematic issues of contemporary labour law. We hope that together we will face this important challenge.

Articles include:

• Salome Uglava, Victimization as a Mechanism to Protect Employees from Discrimination

• Salome Beridze, The Practice of the Supreme Court of Georgia on Labour Disputes (Court’s Explanations About Some
  Norms)

• Lado Chanturia, Important Research in Civil Law - Review on the Book by Giorgi Amiranashvili

• Andrea Borroni, The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century – A Review

• Giorgi Amiranashvili, Review on the Monograph by Dr. Zakaria Shvelidze - “The Scope of Civil Claims in Labour Discrimination Disputes”

Here's a PDF of the new issue.

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Travis on Rethinking the Post-Pandemic Workplace

Michelle Travis (San Francisco) has posted on SSRN her article (forthcoming 64 Wash. U. J. L. & Pub. Pol'y ___ (2021)) A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility. Here's the abstract:

The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a “full-time face-time norm,” which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.

I think Michelle is exactly right: "with [57%] of U.S. employers now offering their employees flextime or remote work options as a result of [COVID], it is no longer tenable for courts to define work as something done only at a specified time and place." We can do better.

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Veterans, USERRA, and War Powers Abrogation

Forgive me for a bit of self-promotion, but I wanted to flag an amicus brief that a group affiliated with UNC Law filed with the Supreme Court supporting a petition for cert. by the Plaintiff in Torres v. Texas Department of Public Safety. The question centers on war powers abrogation, specifically whether state employers retain sovereign immunity in the face of congressional war powers legislation. In Torres, that legislation is USERRA, which prohibits employment discrimination based on military service and provides leave and other benefits for servicemembers called to active duty or attending training for, e.g., National Guard. Given the huge number of active and reserve servicemembers, this is an important statute even in normal times. But it's especially so now in a year that saw the greatest mobilization of National Guard troops since Wold War II.

Le Roy Torres was a Texas State Trooper who was called into active duty in Iraq. While there, he continually breathed toxic ash that made him, in addition to thousands of other veterans, very ill. So ill, he was unable to perform his usual trooper duties when he came home. According to Torres’ claim, the Texas Dept. of Safety refused to accommodate him with a desk job, instead forcing him to resign. Torres sued under USERRA, but his employer has argued that courts can’t even hear the claim because of state sovereign immunity. The Texas courts, like several other states, have agreed with this defense. But as I’ve argued in my research, which this and an earlier amicus draws on, these courts are wrong.

I actually first wrote on this topic when I was on the entry-level market. At the time, I argued that despite dicta saying that Article I can’t ever abrogate state immunity, the Court’s historical analysis leaves the door open for certain Article I powers to allow suits against states. Under this analysis, state sovereign immunity is determined by the “plan of the [Constitutional] Convention. In my earlier article, I argued that war powers should be an exception to the “no Article I abrogation” dicta. The Court has recognized that there are exceptions to state immunity; therefore, in what might be the unofficial theme of my research, “if not war powers, then what?” In other words, if there are areas in which states lack immunity, no area has a stronger claim than war powers. Indeed, subsequent to that article, the Court held in Katz that states lacked immunity when it comes to Article I’s Bankruptcy Clause. Which leads one to ask if the Bankruptcy Clause allows suits against states, then surely war powers does too.

Prompted by an earlier Torres amicus brief I wrote while the case was being considered for cert. by the Texas Supreme Court, I revisited this issue post-Katz in my new article, War Powers Abrogation, forthcoming in the George Washington Law Review. In this article, I thoroughly examined the history of the War Powers Clauses from the Articles of Confederation period, through the Constitutional Convention and text, and then the Ratification debates. The article provides the details, but the story is crystal clear: the only reasonable reading of the “plan of the Convention” is that the Founders and states adopted the Constitution fully knowing and intending states NOT to have any sovereignty when it comes to war powers. Instead, a central feature of the Constitution was assuring that the federal government was in charge of the nation’s security, free from state interference. In short, no one during that period—even those who objected to the Constitution—thought that states could interfere with the federal government’s war powers actions, including legislation like USERRA. So far, state courts (which currently have sole jurisdiction of USERRA claims against state employers) have failed to even address this history, instead siding with state immunity claims based on outdated dicta or superficial distinguishing of Katz. Our hope is that the Supreme Court will take up the issue to correct that error. So stay tuned.

Finally, I want to thank those who have helped with this brief and research (and, fingers crossed, one supporting the merits to come). This includes my research assistant, Kemper Patton, staff on the George Washington Law Review, and the several people who helped write the amicus: Elizabeth Fisher (Wiley), Rachel Grossman (UNC Law), Andy Hessick (UNC Law); and Rick Simpson (Wiley). Also thanks to the Torres’ ever-helpful counsel, including Brian Lawler (Pilot Law) and Andrew Tutt (Arnold and Porter). And, last but not least, thanks to Le Roy Torres, his wife, and the other veterans who are trying to simply get their day in court to exercise their rights under USERRA.

Jeff Hirsch

New Book: Worldwide Labor-Related Responses to COVID

Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.

Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.

Here's the publisher's description:

This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.

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Cherry's JOTWELL Review of Harris' Unconsionability in Contracting for Worker Training

Miriam Cherry just published on JOTWELL her piece, "Income Sharing Arrangements and Coding Bootcamps: Boom or Bust for the Blue Collar Breadwinner?" This is a review of of Jonathan Harris' forthcoming Alabama Law Review article, Unconscionability in Contracting for Worker Training? The review came out this week. An excerpt:

In his forthcoming article, Unconscionability in Contracting for Worker Training, Jonathan Harris explores the contractual issues that arise when workers or job applicants are asked to pay for their training outside of traditional educational structures. This could arise through a training repayment agreement (TRA), which requires an existing employee to repay the employer a fixed sum expended on training if the worker quits or is fired during a set period of time. This Jot, however, will focus on the other setting in which these non-traditional training arrangements are arising, and which Harris discusses at some length in the second part of his article. These are the so-called Income Sharing Agreements (ISAs), which for-profit code academies use. ISAs are contracts that require the trainee to repay a set percentage of future income in exchange for the tuition that enables them to attend a computer coding academy or bootcamp. ...

Ultimately, in Contracting for Worker Training, Jonathan Harris shines a light on novel TRA and ISA contracts. ISA contracts could help some workers upgrade their skills. Unfortunately, as Harris notes, the ISAs could also take advantage of anxious jobseekers. Harris’s article is an illuminating and worthwhile read for those interested in the future of work and a novel application of the unconscionability doctrine.

Check out the full piece, and congrats to both Miriam and Jonathan.

Jeff Hirsch

 

 

Bornstein on Pregnancy Discrimination & the Meaning of Equaltiy

Stephanie Bornstein has just posted on SSRN her article The Politics of Pregnancy Accommodation, 14 Harv. Law & Policy Rev. 293 (2020). It's a great description of the history -- and likely future -- of the meaning of "equality" in the context of pregnancy. Here's the abstract:

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.

This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.

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