Workplace Prof Blog

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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Acevedo & others on Regulating the Gig Economy

Congratulations to Deepa Das Acevedo (Alabama) on the publication of her edited volume Beyond the Algorithm: Qualitative Insights for Gig Work Regulation (Cambridge University Press, 2020). Here's the publisher's description:

In Beyond the Algorithm: Qualitative Insights for Gig Work Regulation, Deepa Das Acevedo and a collection of scholars and experts show why government actors must go beyond mass surveys and data-scrubbing in order to truly understand the realities of gig work. The contributors draw on qualitative empirical research to reveal the narratives and real-life experiences that define gig work, and they connect these insights to policy debates being fought out in courts, town halls, and even in Congress itself. The book also bridges academic and non-academic worlds by drawing on the experiences of drivers, journalists, and workers' advocates who were among the first people to study gig work from the bottom up. This book is a must-read for anyone interested in gig work, the legal infrastructure surrounding it, and how that infrastructure can and must be improved.

Look for a paperback edition to be published in about six months, priced at about $35-40.

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Jones Day Discrimination Claim

Several discrimination claims against law firms have made the news recently, but this complaint filed against Jones Day on August 13 is a doozy. It involves a married woman and man (to each other) who were both discriminated against on the basis of sex in different ways, in part connected with the firm's parental leave policy. There are facts about intersectional sex and race discrimination as well. At the very least, it's a fact pattern made for a final exam. For an entertaining read in a nutshell, read this thread on Twitter by @gokpkd. For a more nuanced one, see Melissa Murray's (NYU). Jones Day has also responded. 

MM

Disability Rights at UDC

Marcy Karin (UDC) sends word that on March 29th, the UDC Law Review is hosting its annual symposium, Disability Rights: Past, Present, and Future.  The focus of the symposium will be on protecting and improving disability rights in today’s challenging environment and tomorrow’s uncertain future.  Chai Feldblum, former Commissioner of the U.S. Equal Employment Opportunity Commission, will be the keynote speaker.  A number of friends of the blog are speaking on a range of topics, including:  The ADAAA at 10; Disability and the #MeToo Movement; Disability, Police Interactions, and the Criminal Justice System; Disability and Education; Disability, Leave, and Caregiving; and Disability Beyond the Workplace. 

Anyone in the DMV area – or who wants to see the cherry blossoms and come to the DMV area—is welcome to join for any part of the day-long dialogue about disability rights.  Registration (and a full panel/speaker list) is available at bit.ly/DisabilitySymposium.  The Law Review’s related call for papers is here: Download UDC Law Review Call for Papers - Disability Rights.   

In addition to the symposium, UDC is hosting a reception at Arent Fox at 6pm on March 28th to kick-off the symposium and launch The ADA Project, a new public education resource from the UDC Legislation Clinic and Quinnipiac University Civil Justice Clinic.  Registration for the reception is available at bit.ly/TheADAProject.

This looks great!

MM

Breastfeeding at Work

Liz Morris (U.C.-Hastings Center for WorkLife Law), Jessica Lee (U.C.-Hastings Center for WorkLife Law), and Joan Williams (U.C.-Hastings) have posted on SSRN their report Exposed: Discrimination Against Breastfeeding Workers. Here's the abstract:

Due to the medical consensus that breastfeeding reduces major health risks to both babies and mothers, the United States is waging an ongoing struggle to improve breastfeeding duration rates. Yet legal protections for breastfeeding parents in the workplace have not kept pace with the U.S.’s public health goals. Based on a review of workplace breastfeeding legal cases from the last decade, an analysis of all federal and state workplace laws protecting breastfeeding workers including coverage statistics, and interviews with women who faced workplace discrimination, this report documents the anemic legal landscape of breastfeeding rights at work. Discrimination against breastfeeding workers often forces them to stop breastfeeding or lose their jobs, at a devastating cost to their families. Almost three-fourths of breastfeeding discrimination cases studied involved economic loss, and nearly two-thirds ended in job loss. The legal tools to prevent and respond to such discrimination are lacking in both efficacy and scope. The report offers policy solutions to fix the gaps in our patchwork of laws to protect breastfeeding workers.

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U.S. Women's Soccer Team Members Sue Over Pay Discrimination

Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:

In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.

The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.

One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned. 

-Jeff Hirsch

Emerging Technology in the Workplace: AI, Robotics, Virtual Reality, & Monitoring

I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:

The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.

This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work. 

Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.

Thanks.

-Jeff Hirsch

 

New York City Halts New Uber Licenses and Creates Minimum Pay

NYC's City Council just passed legislation to stop issuing new ride-hailing licenses for one year. The legislation also requires Uber and similar companies to ensure that drivers earn at least $17.22 per hour (calculated over a week)--like the FLSA tip rule, if drivers don't make that much, the companies must pay the drivers the difference. This can be significant especially in a city like NYC, where almost 85% of drivers make below $17.22/hour and two-thirds of drivers work full-time for ride-hailing companies.

I find the minimum pay provision to be interesting because it puts in motion something I've been thinking about for a while. One of the difficulties in the current "employee"/"not-employee" dichotomy is how much rides on that distinction (pun intended). It's always struck me that this definitional question misses the point. We're stuck with this outmoded definitional hang-up because of current law, but the real question we should be asking is what type of protections do we want for which type of workers. There will always be difficult line drawing, but I think there are areas of agreement. For instance, we've got a long-standing policy of ensuring a minimum pay for the vast majority of "employees." Are there many workers--even those currently classified as independent contractors--who shouldn't also receive at least $7.25/hour? I don't think so. Same for workplace safety and other protections. The devil's in the details, to be sure, but NYC's new legislation represents one step in the direction of ensuring worker rights, rather than just employee rights. And it's a move I'm glad to see.

Finally, a brief plug for a recent article I co-authored with Joe Seiner exploring non-traditional collective action in ride sharing and other modern industries. There's a lot of interesting things going on, but also a lot of legal questions prompted by new activity fitting into old laws.

-Jeff Hirsch

Secunda on the Right to Disconnect

Paul Secunda (Marquette) has just posted on SSRN his article (8 Notre Dame J. Int'l & Comparative L. (2018)) The Employee Right to Disconnect. Here's the abstract:

U.S. workers are increasingly finding it difficult to escape from work. Through their smartphones, email, and social media, work tethers them to their workstations well after the work day has ended. Whether at home or in transit, employers are asking or requiring employees to complete assignments, tasks, and projects outside of working hours. This practice has a profound detrimental impact on employee privacy and autonomy, safety and health, productivity and compensation, and rest and leisure. France and Germany have responded to this emerging workplace issue by taking different legal approaches to providing their employees a right to disconnect from the workplace. Although both the French legislative and German corporate self-regulation models have their advantages, this paper puts forth a hybrid approach using existing U.S. safety and health law under OSHA to respond to this employee disconnection problem. Initially under the general duty of clause of OSHA, and then under OSHA permanent standards and variances, this article provides a uniquely American approach to establishing an employee right to disconnect from work.

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Widiss on Workplace Effects of Intimate Partner Violence

Deborah Widiss (Indiana) has just posted a new book chapter on SSRN: Addressing the Workplace Effects of Intimate Partner Violence, in Violence and Abuse in the Workplace (Cary Cooper & Ronald Burke eds., forthcoming 2018).

Here's the abstract:

Although most physical violence against intimate partners occurs in the home, intimate partner violence (IPV) also affects workplaces. It often causes absences, productivity losses, and employee turnover; less commonly, perpetrators physically attack their intimate partners at work. This book chapter discusses best practices for decreasing workplace disruptions and the risk of workplace violence caused by IPV, and it explains legal standards that may apply. The primary focus is the United States, but research and legislation from other countries is also included. It also identifies websites that provide research, model policies, and other tools for organizations seeking to address IPV, including resources regarding employment of perpetrators of IPV.

This topic feels especially salient given the role of family violence in recent high profile shootings. This chapter looks like a helpful resource, and I'm looking forward to the book's release.

MM

11th Circuit: Employers must accommodate breastfeeding workers under Title VII

The Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.

The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue.  As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.

The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences." 

MM 

 

Gender Budgeting - Or Why Tax is a Feminist Issue

Last week's The Economist ran a couple of stories on how "gender budgeting" can help persuade governments to pay more than lip service to women's rights. Below is an excerpt from the summary Making Women Count; an extended-play version is Tax is a Feminist Issue: Why National Budgets Need to Take Gender into Account.

... [S]ome policymakers have embraced a technique called gender budgeting. It not only promises to do a lot of good for women, but carries a lesson for advocates of any cause: the way to a government’s heart is through its pocket.

At its simplest, gender budgeting sets out to quantify how policies affect women and men differently. That seemingly trivial step converts exhortation about treating women fairly into the coin of government: costs and benefits, and investments and returns. You don’t have to be a feminist to recognise, as Austria did, that the numbers show how lowering income tax on second earners will encourage women to join the labour force, boosting growth and tax revenues. Or that cuts to programmes designed to reduce domestic violence would be a false economy, because they would cost so much in medical treatment and lost workdays.
...
Partly because South Korea invested little in social care, women had to choose between having children, which lowers labour-force participation, or remaining childless, which reduces the country’s fertility rate. Gender budgeting showed how, with an ageing population, the country gained from spending on care. Rwanda found that investment in clean water not only curbed disease but also freed up girls, who used to fetch the stuff, to go to school. Ample research confirms that leaving half a country’s people behind is bad for growth. Violence against women; failing to educate girls properly; unequal pay and access to jobs: all take an economic toll.

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Worker Valuation of Alternative Work Arrangements

    How much of your wages would you be willing to give up for more control over what days and how much you work?  In a new working paper, Alexandre Mas and Amanda Pallais, “Valuing Alternative Work Arrangements,” NBER Working Paper No. 22708 (Sept. 2016), the authors conducted a field experiment to find out.  Here’s the abstract:  

We use a field experiment to study how workers value alternative work arrangements. During the application process to staff a national call center, we randomly offered applicants choices between traditional M-F 9 am – 5 pm office positions and alternatives. These alternatives include flexible scheduling, working from home, and positions that give the employer discretion over scheduling. We randomly varied the wage difference between the traditional option and the alternative, allowing us to estimate the entire distribution of willingness to pay (WTP) for these alternatives. We validate our results using a nationally-representative survey. The great majority of workers are not willing to pay for flexible scheduling relative to a traditional schedule: either the ability to choose the days and times of work or the number of hours they work. However, the average worker is willing to give up 20% of wages to avoid a schedule set by an employer on a week’s notice. This largely represents workers’ aversion to evening and weekend work, not scheduling unpredictability. Traditional M-F 9 am – 5 pm schedules are preferred by most job seekers. Despite the fact that the average worker isn’t willing to pay for scheduling flexibility, a tail of workers with high WTP allows for sizable compensating differentials. Of the worker friendly options we test, workers are willing to pay the most (8% of wages) for the option of working from home. Women, particularly those with young children, have higher WTP for work from home and to avoid employer scheduling discretion. They are slightly more likely to be in jobs with these amenities, but the differences are not large enough to explain any wage gaps.

Puzzled by the low willingness to pay for a flexible number-of-hours option, the authors posed the same choice to Mechanical Turk workers, and asked them to explain their choice. The Mechanical Turk workers are more likely to prefer flexibility.  Of those who preferred the M-F 9 am - 5 pm option, they “typically mentioned that they liked having someone else set the schedule and tell them how many hours they should work. They expressed concern that if they could choose it would be difficult to force themselves to work their desired number of hours.” (p. 14).

 

--Sachin Pandya

Bisom-Rapp on lifetime disadvantage for working women

Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:

In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.

"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."

Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.

"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."

In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.

"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.

The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.

Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.

Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.

MM 

Call for papers from the Center for Applied Feminism & Intersectionality

The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:

CALL FOR PAPERS

APPLIED FEMINISM AND INTERSECTIONALITY: 

EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/. 

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?

We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to [email protected]. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at [email protected]. For additional information about the conference, please visit law.ubalt.edu/caf.

MM

Ontiveros on the Exploitation of High-Skilled Tech Workers

Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming BJELL) H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers. Here's the abstract:

This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.

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New Book: Invisible Labor

Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:

Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.

The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!

MM

Pilots Who Are Nursing Moms Bring EEOC Charges against Frontier Airlines

It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.

Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.

Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.

If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.  

The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.

In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.

MM

FLSA and Mt. Clemens after Tyson Foods v. Bouaphakeo

    Today, the US Supreme Court decided Tyson Foods v. Bouaphakeo, an appeal from a jury verdict for plaintiffs seeking overtime pay via a Fair Labor Standards Act (FLSA) collective action and a Rule 23 class action under Iowa’s wage payment statute—which the parties assumed required the same proof as for the FLSA claim.  The defendant: their employer, Tyson Foods, who hadn’t paid them for time they spent donning and doffing safety gear at a pork processing plant.

    There’s a lot going on in this Court opinion—both on the page and in between the lines. I’ll focus here just on how the Tyson Court treated a decades-old FLSA precedent: Anderson v. Mt. Clemens Pottery Co, 328 U.S. 680 (1946). 

    In Mt. Clemens, the Court had declared this: In FLSA cases, if plaintiff-employees can’t prove how much time they spent doing under-compensated work because their defendant-employer failed to keep FLSA-required records, so long as the employee has produced enough evidence that he did the under-compensated work and the “amount or extent” of that work “as a matter of just and reasonable inference,” the employer must produce evidence of “the precise amount of work performed” or evidence to “negative the reasonableness of the inference to be drawn from the employee’s evidence.”

    Fast forward decades later to Tyson Foods.  The plaintiffs there faced this problem: For FLSA overtime claims, a plaintiff-employee has to prove that he or she had worked for over 40 hours in a work week.  But, because Tyson hadn’t kept proper records of employee donning and doffing time, the plaintiffs had no individualized work time records to prove their total hours worked.  So, at trial, the plaintiffs submitted “representative evidence”—key among which was study in which an expert observed a sample of 744 employees, counted donning and doffing times for each, and calculated averages by the sampled employees’ departments (cut and retrim departments: 18 minutes; kill department: 21.25 minutes).  With these averages, along with individual work time records that Tyson had kept, another expert concluded that all but 212 employees in the Rule 23 certified class worked more than 40 hours, and thus might be owed overtime pay. Tyson argued against this evidence to the jury, but the jury awarded about $2.9 million in unpaid wages. 

    In a post-verdict motion, and later on appeal, Tyson argued for decertifying the Rule 23 class and for dismantling the FLSA collective action: Given the inadequacy of plaintiffs’ “representative evidence,” some class or collective action members would be eligible for overtime pay even though they hadn’t worked over 40 hours in a work week---or as Tyson put it, even though they hadn’t been actually injured. 

    On this point, the plaintiffs pressed Mt. Clemens, and the Court agreed that, given Mt. Clemens, the plaintiff’s use of its sample of donning-and-doffing times was “a permissible method of proving classwide liability.”  Had each Rule 23 class member sued individually, he or she could have relied on that sample, provided that it “could have sustained a reasonable jury finding as to hours worked in each employee’s individual action.”  Here, as in Mt. Clemens, the plaintiffs submitted their donning-and-doffing sample

to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [that sample] to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. . . . [I]n this case each employee worked in the same facility, did similar work, and was paid under the same policy. As Mt. Clemens confirms, under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them.

    In so reasoning, the Court added that representative evidence can’t support “just and reasonable” inferences under Mt. Clemens if that evidence is “statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked.”  (Tyson hadn’t challenged the admissibility of plaintiffs’ expert opinions under Daubert.)

    In dissent (and joined by Justice Alito), Justice Thomas describes Mt. Clemens as a precedent on “shaky foundations” that the Court fundamentally misread and has now effectively expanded.  Although Mt. Clemens applies only if the defendant-employer fails to keep FLSA-required records of compensable work time, for Justice Thomas,

that limitation is illusory. FLSA cases often involve allegations that a particular activity is uncompensated work . . . The majority thus puts employers to an untenable choice. They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.

Justice Thomas’ reading of Mt. Clemens is worth reading in full—as arguments implicitly rejected by the Court majority or just as the path not taken.

 

--Sachin Pandya

New resource by Center for WorkLife Law: Pregnant@Work

The Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers.  The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.

The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.

MM