Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act
, ABA J. on Lab. & Emp. L.
(forthcoming 2017), available at SSRN
At the heart of Emily Spieler’s incisive critique of the whistleblower protections of the Occupational Safety and Health Act (OSH Act) is a basic design question: How might a society enforce workplace safety mandates? On one hand, a top-down government inspectorate might proactively investigate occupational hazards and punish violating employers. On the other, workers who are ill or injured, or who have knowledge of safety risks, might take bottom-up enforcement action through a private lawsuit or other direct action. Or there might be combinations of the two: workers might feed complaints and tips to government, while retaining (or not) some right to take action on their own. In all cases, workers play a central role: as tipsters, complainants, witnesses, litigants. Here is where law and policy makers face a second set of design choices. Given workers’ key role in enforcement, how might they be incentivized to take action, and protected against the downside risks of doing so?
Spieler’s subject, Section 11(c) of the OSH Act, seeks to protect workers who make safety complaints or otherwise participate in investigatory and enforcement proceedings under the Act. Though the OSH Act contains no private right of action – placing it closer to the top-down end of the enforcement spectrum – worker complaints and worker-provided information are nevertheless central to the agency’s investigation and enforcement activities. And as Spieler’s careful analysis reveals, Section 11(c) falls far short of incentivizing or protecting those workers. However, Spieler offers a way forward at the state level, and so her article simultaneously identifies a suite of problems and offers at least a partial fix.
Drawing on data on the processing and outcomes of 11(c) claims, Spieler identifies four major design flaws. First, workers who claim retaliation for activity protected by the OSH Act must proceed through an opaque, often dead-end administrative exhaustion process, and have no private right of action. Workers must first file a complaint with the relevant regional OSHA office. If the regional investigator finds merit and cannot facilitate settlement, the complaint is referred to the regional office of the Solicitor of Labor (SOL), which decides whether to litigate the claim in federal district court. As Spieler observes, SOL decisions are “entirely non-reviewable,” and unlike the Equal Employment Opportunity Commission’s litigation decisions about employment discrimination charges, workers have no right to proceed to court on their own after an SOL decision. Spieler’s data reveal that about two-thirds of 11(c) complaints were screened out by regional OSHA investigators in FY 2011-2015, and the SOL declined to pursue almost sixty percent of the referrals that it received in the period from 1996-2008.
Second, workers must initiate an 11(c) claim within an extremely short, thirty-day statute of limitations period. As Spieler observes, federal antidiscrimination and wage and hour statutes allow much longer time periods, and “every whistleblower law passed after 2000 allows at least 180 days for filing with the appropriate administrative agency.” Given that OSH Act whistleblowers may themselves be recovering from occupational illness or injury, the thirty-day complaint period almost certainly suppresses claims.
Third, 11(c) does not provide for preliminary reinstatement for terminated workers upon a determination that their retaliation claims are non-frivolous – an option offered by other recent whistleblower statutes and the Mine Safety and Health Act of 1977. Thus, even workers with meritorious claims can be left jobless during the pendency of a retaliation investigation.
Fourth, workers must satisfy a high standard of proof, establishing that retaliation was a “but for” cause (though not necessarily the sole cause) of the adverse action they experienced. Like the statute of limitations, this standard departs from other whistleblower laws, which require proof only that retaliation was a “contributing factor” in the employer’s decision. And like the other flaws that Spieler identifies, this high standard of proof makes 11(c) claimants’ uphill climb even steeper.
Spieler’s data reveal a final problem with the design of the 11(c) scheme: of the claims settled at the initial OSHA investigation phase between 2009 and 2015, the average worker recovery was only $7300. Though we do not know from Spieler’s data the value of these workers’ original claims, or their possible recovery via litigation, it seems clear, in Spieler’s words, that these amounts are “unlikely to reflect the full value of lost wages” or to be “large enough to discourage employers from unlawful retaliation.” Taken together, Spieler’s analysis shows how these shortcomings leave terminated workers with little incentive to go to OSHA to enforce their rights against retaliation; bad-actor employers have little incentive to refrain from retaliation.
Against this bleak backdrop, Spieler does note several bright spots in 11(c) claims processing and enforcement. During the Obama Administration, the SOL began taking action on substantially more 11(c) referrals, and OSHA has implemented various training and policy improvements around retaliation issues. Whether any of these reforms survive in a Trump Administration Department of Labor is anyone’s guess. However, Spieler notes one additional area of promise that may be somewhat insulated from federal executive branch politics. Under the OSH Act, states may design and implement their own occupational safety and health plans that equal or exceed the protections offered by federal law. Twenty-one states have done so. These states are therefore free to change the structure of their OSH whistleblower protections. In doing so, they can draw from the menu of design choices in place in other areas of whistleblower and employment law, even beyond those that Spieler identifies: a private right of action for retaliation claims after administrative exhaustion, double or treble damages, attorneys’ fees, class and collective action mechanisms, extended statutes of limitation, and preliminary reinstatement. Further, as Spieler points out, even states without OSHA state plans might recognize a state-law cause of action for wrongful termination to protect whistleblowers who are fired after raising safety concerns. Given perpetual federal inertia, and what is likely to be outright hostility to workplace regulation in a Trump Administration, states should take Spieler’s critique to heart and design a better system for incentivizing and protecting OSH whistleblowers.
Cite as: Charlotte S. Alexander, Incentivizing and Protecting OSH Whistleblowers
(April 14, 2017) (reviewing Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act
, ABA J. on Lab. & Emp. L.
(forthcoming 2017), available at SSRN), https://worklaw.jotwell.com/incentivizing-and-protecting-osh-whistleblowers/
In Confusion on the Court, Professor Michael Harper discusses how in two recent cases the United States Supreme Court appeared to confuse two critically important concepts in employment discrimination law: disparate treatment (intentional discrimination) and disparate impact (unintentional discrimination). Professor Harper’s essay is worth a Jotwell jot because it rigorously analyzes a core doctrinal issue in employment discrimination law while subtly reminding readers how issue framing can drive doctrinal analysis. I am partial to Professor Harper’s approach because it is useful to four groups: judges shaping the employment discrimination field, legal scholars thinking about the field, legal practitioners working in the field, and law students just learning about the field.
The essay considers the Court’s different approaches to seemingly similar factual situations. In Young v. UPS, 135 S. Ct. 1338 (2015), the Court viewed UPS’s application of its disability policy to refuse to accommodate a worker’s pregnancy as a disparate impact issue; whereas in EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015), it viewed Abercrombie & Fitch’s application of its headwear policy to decline to hire a Muslim applicant who wore a headscarf as a disparate treatment issue. As Professor Harper notes: “The Court seemed to give contradictory answers to an important, unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group, based on their protected status, to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or, in the alternative, does such an assignment have only a disparate impact on the protected group?” (P. 545.) Professor Harper describes how the Court analyzed the cases, explains how he thinks the Court misanalyzed the cases, and suggests future course corrections.
In discussing the cases in depth, Professor Harper explains why the Court treated the cases differently. In Young, UPS applied its light-duty accommodation policy to a pregnant employee and declined to accommodate her. It treated the employee as a part of the larger group of people who had disabilities that did not need to be accommodated under the policy. The Court suggested that the employer’s placement of the plaintiff in the broader class of people who did not need to be accommodated was not motivated by her pregnancy. Consequently, the case was treated as a disparate impact case involving the application of a rule that might lead to unintentional discrimination against pregnant women. Conversely, in Abercrombie & Fitch, the employer declined to hire a Muslim woman applicant who wore a headscarf. Abercrombie & Fitch functionally treated her as part of the larger group of people who would violate the company’s “Look Policy” by wearing caps, whether those caps were worn for religious reasons or other reasons. However, the employer contemplated (without knowing) whether the applicant wore the headscarf for religious reasons before applying the rule and before denying her employment. Consequently, the Court treated the case as a disparate treatment matter involving intentional discrimination.
Professor Harper argues that both cases should be treated as disparate treatment cases. He explains that in both cases, the employer’s policy treats a protected group as part of a larger group that is disadvantaged under the relevant policy. Applying the policy to the larger group constitutes disparate treatment of the protected group. To him, the cases appear indistinguishable, and should be analyzed the same. The essay’s careful critique of the Court’s approaches to the two cases is worth the read, even if the reader is not as critical of the Court as Professor Harper is.
Ultimately, the essay requires the reader to consider how crucial framing is to doctrinal analysis. Professor Harper frames the issues in both cases as being the same. If the Court framed the issues as Professor Harper does, it would treat the cases in the same way; it does not. Professor Harper focuses on how the employers’ policies applied to and affected protected groups. The rules treated protected groups differently than some non-protected groups, so the protected groups were disparately treated. Conversely, the Court focused on the employers’ narrow motivation in the two cases. In Abercrombie & Fitch, the employer considered the applicant’s protected status before applying the policy. That consideration triggered the disparate treatment (intentional discrimination) framework. In Young, the employer applied its policy, arguably without explicit consideration of the employee’s pregnancy. Without such contemplation, the policy’s application triggers merely the disparate impact (unintentional discrimination) framework. Whoever is correct, the essay forces us to think harder about why Professor Harper and the Court frame the issues differently and reach different conclusions regarding how to analyze Young.
The essay is good for employment discrimination judges, scholars, practitioners, and students to read because it raises doctrinal issues that courts need to decide. The doctrinal test for finding an employer liable for disparate treatment discrimination is different than the test for finding an employer liable for disparate impact discrimination. In addition, the defenses to disparate treatment are much narrower than the defenses to disparate impact. So whether a case implicates disparate impact rather than disparate treatment, or vice-versa, is important. This is especially true in pregnancy and religious discrimination cases, because employment discrimination law suggests that pregnant employees and religious employees ought to be accommodated when possible so that they may continue to work. Treating a pregnant or religious employee’s case as a disparate impact matter rather than a disparate treatment matter may make a refusal to accommodate the employee easier. Thus, determining when a situation involves disparate impact rather than disparate treatment is critical. Professor Harper and the Supreme Court take different approaches to when the application of a policy should be analyzed as a disparate treatment matter. The reader can determine who is more convincing. Nonetheless, the discussion is illuminating. That makes this essay worth a serious read.
The nature of workplace protests was highlighted this past year by the actions of San Francisco 49ers National Football League quarterback Colin Kaepernick. Kaepernick sparked a national controversy by his actions, in deciding to first sit and then kneel peacefully, during the playing of the national anthem at the start of his games as a mechanism of protest against treatment of black men by the police. Kaepernick’s method of peaceful protest was attacked viciously by members of the public as being unpatriotic and even by a Supreme Court Justice who asserted that Kaepernick’s actions were disrespectful and dumb. Despite claims from his general manager that Kaepernick’s actions justified him not being the quarterback of the team, a position of leadership, and that he had created unrest and unnecessary divisions within the team, Kaepernick’s protests did not end up subjecting him to disciplinary actions. His co-workers even voted to give him an award for courage, which rebutted any suggestion that his actions had divided his teammates.
Even in the workplace environment where most individuals know each other or have some knowledge about the other person involved in a dispute, that familiarity does not increase the opportunity for happy results as a response to an employee’s protest, whether made peacefully or angrily. A 2013 Gallup worldwide study of worker feelings indicated that “work is more often a source of frustration than one of fulfillment for nearly 90% of the world’s workers.” As a result, Professor Susan Carle’s recent article, Angry Employees: Revisiting Insubordination in Title VII Cases, offers an important perspective regarding the sources of worker unhappiness and how the law can protect employees when employers overreact to angry employee outbursts.
Specifically, Professor Carle criticizes a host of cases involving unsuccessful claims under Title VII where employees have engaged in angry responses to discriminatory treatment. An interesting aspect of Professor Carle’s analysis involves her references to cases where supervisors have uttered racist statements or pursued acts of sexual harassment with impunity. Despite the employer’s discriminatory behavior being the source of the angry response, employees lost these cases because the courts considered their angry responses as insubordination warranting disciplinary action. Professor Carle’s thesis, relying on cases decided by the National Labor Relations Board (NLRB), asserts that angry employee outbursts, when not involving violence or actual threats of violence, should not result in loss of protection under Title VII as insubordination. Instead, Professor Carle suggests that these forms of angry employee behavior, or what she refers to as mild or moderate insubordination, should not automatically preclude an employee’s Title VII claim based on workplace discrimination.
In the article, Professor Carle shines an important light on how the law of Title VII fails to protect employees who reasonably respond in an unhappy and angry manner to discriminatory behavior by supervisors because courts find their actions involved insubordination. Further, by arguing that Title VII analysis should adopt the approach employed by the NLRB, she interestingly carves out a specific area of law where employees could reasonably respond angrily to their supervisors and still bring a valid claim of employment discrimination. Professor Carle even argues that her purported change to Title VII jurisprudence may encourage important prophylactic measures because “when employers know that courts will look beneath their reasons for firing employees for insubordination to search for provocation arising from employees’ reasonable perceptions of discriminatory conduct, employers will have greater incentives to look out for and eliminate such scenarios.” (P. 197.)
The article enlists the NLRB’s Atlantic Steel doctrine to assess the inappropriateness of an employee’s angry outburst by first analyzing four factors before deciding the employee’s actions warrant discipline: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice.” (Pp. 218-19.) Professor Carle also takes great care to point out that the Atlantic Steel doctrine does have limits, as employees who engage in threatening behavior or take acts that exceed what a reasonable employer should tolerate can lose their protections. Accordingly, Professor Carle recognizes that employees may not assert absolute protection from employer discipline when their acts represent insubordination.
Professor Carle does not limit her suggested changes to applying NLRB law. She also asserts that when insubordination is raised, Title VII law should shift the burden of persuasion to the employer to prove that it would have taken the adverse employment action against the employee even if he or she had not complained of discrimination. According to Carle, by placing the burden of persuasion on the employer, it “would help deter the continued existence of the discriminatory environments reflected in the facts of many cases despite plaintiffs’ inability to win their claims of underlying discrimination.” (P. 213.)
Professor Carle’s article raises important questions for all of us to consider about the current application of Title VII law. In these cases where an employee’s reason for an angry response started as a reaction to an employer’s discriminatory behavior, either the judiciary has decided to refuse blatantly to acknowledge any valid argument that a claim of insubordination can be pretext, or plaintiffs have been woefully inadequate in persuading courts that purported insubordination can be challenged at least beyond summary judgment by creating a genuine issue of fact regarding pretext. While the analysis generated by Professor Carle does help us understand an unusual phenomenon where employees being subjected to racist statements and sexual harassment may still lose their cases by responding in an insubordinate manner to that discriminatory behavior, I do question why the courts would likely change their analysis to incorporate NLRB doctrine or shift the burden of persuasion to employers to address this problem.
With changes expected in the make-up of the Supreme Court and in the focus of federal government agencies under the President Trump administration, it will be an uphill fight to get the courts, agencies, or even Congress to pursue the analytical changes Professor Carle suggests. All of those entities will not likely be seeking an opportunity to expand upon rights and analysis for employee claims under Title VII or shifting the burden to employers in assessing claims. Also, any NLRB doctrines that Professor Carle has relied upon may be subject to reversal as Republican NLRB members, who have objected to the doctrines Professor Carle cites, will be in the majority. However, her analysis does give plaintiffs and their attorneys a framework to start building a strong foundation under existing law to make key pretextual arguments as a response to an employer’s purported justification for its actions as being a response to insubordination. Professor Carle’s analysis and reference to the underlying principles supporting her argument for analytical changes gives those plaintiffs a roadmap to explain how insubordination claims have been wrongly and pretextually asserted against employees who angrily responded to discriminatory treatment by their employers.
With the increasing spotlight on viable methods of employee protest to discrimination being highlighted by the Kaepernick situation, employers have been warned that they should be more thoughtful about how they respond. As a result, employers should make sure the workplace is not permeated with discriminatory actions that could lead already unhappy employees into angry outbursts that may be incorrectly deemed insubordination. With the increasing dissatisfaction of employees with their work environments and the heightened desire to protest those working conditions, Professor Carle has achieved an important result by raising awareness regarding discriminatory acts by employers as a possible source of angry outbursts that should be better addressed under Title VII jurisprudence. As employers continue to seek methods to create happier work environments resulting in more productive workers, Professor Carle’s article suggests a very important incentive for employers to also make sure they do not rush to judgment in assessing an angry employee outburst as insubordination when it could have resulted as a byproduct of discriminatory actions by supervisors.
In her article, A Positive Right to Free Labor, Professor Zietlow recounts the history of the working person’s claim to free labor. Zietlow traces that history from its roots – in the antislavery and labor movements of nineteenth-century antebellum America – right through to the post-Title-VII era of today, showing us that there is much more work to be done.
Professor Zietlow begins by defining a positive right to free labor as including “the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state’s infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties.” (P. 861.) From there, she states her thesis – a positive right to free labor cannot be found in the Fourteenth Amendment but is found in the Thirteenth Amendment, which is unique among constitutional provisions insofar as it applies to non-state actors and obliges the state to take positive action to ensure workers’ rights. In Zietlow’s view, by picking up this strand of positive rights that have been lost to history, the potential for progressive regulation of private employers’ duties to employees is great.
Zietlow beautifully summarizes the history. In antebellum America, labor and antislavery activists worked in concert, albeit often separately, to “formulate the ideological basis for the positive right to free labor”:
Northern labor activists voiced their opposition to “wage slavery”: work under conditions and wages so unfavorable that it was tantamount to slavery. Free Soil, Free Labor activists insisted that slavery should be abolished because it was an oppressive system of labor that harmed all workers by depressing wages and conditions of labor. Other antislavery activists opposed the race discrimination that was also central to the institution of slavery.
(Pp. 861-62, emphasis added.)
Wage depression and increasingly poor working conditions were common ground for black chattel slaves, on the one hand, and white indentured servants and wage slaves, on the other. This common ground allows for comparison. Indentured servants (who were all immigrants) were bound to their employer for a period of several years; even white artisans were often bound by contract to work for a specific employer for a period.
Zietlow reminds us that during the nineteenth century, the nature of work changed from largely “agricultural and artisanal,” in which white American men were mostly “self-employed” and “enjoyed considerable autonomy in their working lives,” to largely industrial, in which white American men largely worked in urban factories. (P. 863.) At the same time that the North became increasingly urban and industrial, Southern slavery, which had been waning, began to pick up with the invention of the cotton gin.
Zietlow adds that, by mid-century, indentured servitude was outlawed and replaced with the idea that one’s labor was a commodity to be bought and sold. The paradigm was shifting from status (slavery, servitude) to free labor, a shift that was accelerated by the Civil War and Reconstruction. But as all labor scholars know, this shift was an illusion: “[S]ervants were no longer legally bound to their masters through indentures, but employers, not workers, still controlled the workplace. Longing for autonomy and control over their lives, many U.S. workers turned to the nascent labor movement.” (P. 865.)
The discussion of the alliance between the labor and antislavery movements comprises one of the most interesting parts of the article. We labor scholars have all heard of organized labor’s racist and sexist practices toward nonwhites and women during this time and well into the twentieth century. Zietlow recounts a subtler story, one in which many early-nineteenth-century labor activists were drawn to the antislavery movement: “Some labor activists saw slavery as part of the continuum of exploitative labor practices and viewed the abolition of slavery as an essential step to improve the conditions of workers throughout the country. They argued that the institution of slavery hurt all workers, including white workers, North and South.” (P. 872.) Zietlow further explains that the “alliance between labor and antislavery activists led to the first major breakthrough in the success of the political antislavery movement, the Free Soil Party,” which emphasized “the link between slavery and the exploitation of northern workers.” (P. 873.) As Free Soiler Thaddeus Stevens explained, “laws which oppress the black man and deprive him of all safeguards of liberty, will eventually enslave the white man.” (P. 874.) These attitudes ultimately influenced the newly minted Republican Party.
A positive right to free labor is the product of efforts to ratify the Thirteenth Amendment’s ban on slavery and involuntary servitude, and its resultant legislation. Zietlow’s discussion of the 1866 Civil Rights Act, whereby Congress sought to abolish race discrimination in economic transactions, is particularly interesting for once again drawing the link between that legislation and free labor:
The 1866 Civil Rights Act enforces all three prongs of the positive right to free labor. First, it empowered black workers to escape the unduly coercive conditions of labor to which they were subjected even after the end of slavery. Second, it enabled black workers to bargain for better wages and conditions of work. Without Black Codes and vagrancy laws, blacks could use the “labor shortage” to their economic advantage, and consequently, wages rose for southern blacks from 1867-1873, the period in which Reconstruction was enforced in the South. Finally, the 1866 Civil Rights Act outlawed race discrimination in contracts, including employment contracts, and guaranteed equality of the law to all people regardless of race. Thus, the 1866 Civil Rights Act, the very first Act of Congress using its Thirteenth Amendment enforcement power, established a positive right to free labor for freed slaves and all other workers in the United States.
The article’s next few sections, which discuss the connection between labor and the progressive legislation associated with both the New Deal (1933–1937) and the Civil Rights movement (1954–1968), once again trace labor’s contribution to achieving racial equality and justice. But as Zietlow points out, New Deal legislation often exempted agricultural workers and domestic servants – those whose work mostly closely resembled the work of former slaves. And thus, by the time of the Civil Rights Movement, “the positive right to free labor was removed from the canon of civil rights law, replaced by cases and statutes protecting social equality without economic rights.” (P. 892.) As important as the Civil Rights Act of 1964 was, that statute sacrificed the black worker’s economic security and well-being for a less ambitious goal – the negative right of equal employment opportunity – albeit extended to the private employer.
Along these lines, Zietlow characterizes the Civil Rights era – our second Reconstruction – as the historical period during which the positive right to free labor succumbed to this more social and less economic view of equality. It is this historical happenstance that, Zietlow argues, has resulted in decreasing union density by allowing the right-to-work ideology to weaken the labor movement. With this, Zietlow calls upon us to “revitalize the positive right to free labor.” (P. 898.)
As this article shows, the Thirteenth Amendment and the positive right to free labor have been ignored in recent years, much to the labor movement’s detriment. This article does a wonderful job of helping those of us committed to a more egalitarian and just society to imagine such a world.
In Accommodating Pregnancy, Professor Bradley Areheart takes on the ambitious project of evaluating the current law of pregnancy discrimination in the workplace. Professor Areheart reviews the existing proposals to “accommodate” pregnancy under workplace laws, disagreeing with any characterization of pregnancy as a disability. The article suggests alternative ways of providing these same types of accommodations while avoiding the “disability” label. It is also one of the first published works to examine the Supreme Court’s recent decision in Young v. UPS – a case alleging pregnancy discrimination in the workplace that has generated substantial discussion and debate among legal scholars.
Courts and litigants have struggled for decades with how to formulate the rights of pregnant employees in the workplace. Professor Areheart begins by examining the various protections afforded by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). In place of treating pregnant workers as disabled or advancing pregnancy-specific accommodation rights, Professor Areheart suggests a different model. Under this new approach, he identifies alternatives that would not present the same risks he identifies for disabled workers yet would still provide important accommodations to pregnant employees. The approach considers accommodation law from a more “gender-symmetrical” point of view.
Professor Areheart acknowledges the need to make accommodations for pregnancy, but notes the danger to women of identifying pregnancy as a disability. Such a characterization could “revitalize exclusionary and paternalistic attitudes toward pregnant employees.” Professor Areheart does an excellent job of reviewing the relevant scholarship in this area, and of arguing that the mischaracterization of pregnancy carries substantial risks for female workers. Quite simply, labeling pregnancy as a “disability” may provide certain legal protections for women, but it also carries with it many potential risks and drawbacks in the context of our current social structure.
Accommodating Pregnancy advances a new approach to an important and timely topic. The article is rich in detail and provides substantial information for both scholars and historians of gender issues. The unique approach identified by this work will further spark a critical dialogue needed in this area. Pregnancy and family-related issues continue to be an area of workplace law requiring much more in-depth analysis and exploration. And, these issues continue to dominate the political and legal landscapes, receiving widespread publicity across the county. Many of the laws protecting employees in the workplace were adopted at a time when family-related issues were not given as much weight, and when the workforce was more male-dominated. Given the sensitivity and political nature of these issues, as well as the changing times, then, a careful review of the topic is imperative.
Professor Areheart’s impressive article will greatly advance the national conversation about this controversial and high-profile topic. In all, the paper’s substantial examination of existing accommodation proposals, review of the current case law on pregnancy, and proposal for a new approach to accommodating pregnancy in the workplace make this piece a substantial and important contribution to the academic literature.
Massive nationwide mobilization of low-wage workers and their advocates (mainly since 2012, though preceded by the nationwide “Day Without an Immigrant” one-day strikes in 2006 and 2007) has spurred recent changes in state and local labor standards: increases in the minimum wage to fifteen dollars an hour, paid sick leave, and measures to address wage theft, abusive scheduling practices, and misclassification of employees as independent contractors. As Michael Oswalt explains in Improvisational Unionism, the fast food, Fight for 15, and Walmart strikes did not produce bargaining leverage, but instead something possibly more difficult to conjure: public awareness and a sense among workers that something could be and should be done.
The article explains how these one-day strikes were different from many of the labor strikes since the Depression. Some were initiated by a single employee who was angry at poor working conditions and lack of respect, some were inspired by news and social media coverage of protests elsewhere, and some were the result of organizing by community groups; unions only later began to lend support. Workers acted collectively and with the support of unions, yet the workers and the unions both knew that the unions hadn’t a prayer of representing them for purposes of collective bargaining. It is unclear whether this activism – what Oswalt, with his penchant for catchy phrases, calls organizing by unions, but not union organizing – will result in any lasting change beyond the state and local minimum wage increases. But what is clear is that labor unrest is once again a part of the contemporary debate even as its form and goals have altered quite significantly since the strikes of the post-WWII period through the death of the strike in the early 1990s.
Improvisational Unionism is, in my judgment, the single best description of and theorization about the nature, goals, and innovative aspects of this aspect of contemporary low-wage worker mobilization. In Oswalt’s account, the distinctive feature of the mobilization is its improvisational quality; no one knows what the outcome of a strike or other protest might be, which certainly seems an apt account of the nature of the worker protest and its possible future.
Oswalt’s crucial analytic insight is that this “collective action for the sake of collective action” (as he puts it) should be understood and theorized as a form of improvisation. As Oswalt explains, improvisation has been adopted by organizational behavior theorists to promote strategic team-based innovation by training members of a group to say “yes” rather than “no” to another’s idea and then to enhance it in some way. (This “yes-anding,” Oswalt says, is the distinctive feature of improv.) Improvisation helps people to break free of constraints and to join others in taking control of a situation, and the article describes how activists embraced yes-anding as a way to empower workers to stand up for their rights. His account changed the way I think about worker mobilization now, as well as worker action in the 1930s, when the major sectors of the American workforce unionized.
Turning to the law, Oswalt argues that the fast food and Walmart strikes and picketing are protected by the right to strike guaranteed in sections 7 and 13 of the National Labor Relations Act. The National Labor Relations Board and the courts have imposed many limits on the right to strike, including by declaring slowdowns and intermittent strikes to be unprotected by the NLRA. Oswalt builds on Craig Becker’s “Better Than a Strike”: Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act, 61 U. Chi. L. Rev. 351 (1994), to show how these short-term strikes that are so much a part of improvisational unionism are protected notwithstanding the intermittent strike doctrine.
Although the right to strike is a core protection of the NLRA, the courts have held that employers have the right to permanently replace striking workers, and to close or to relocate operations in response to labor unrest. Long strikes are at best highly risky, and sometimes even suicidal. Short strikes reduce the risk to workers by depriving the employer of the time to recruit replacement workers. And for low-wage workers who cannot afford to lose even a week’s pay, a one-day strike sends a message and causes the employer hassle without the employee suffering a debilitating financial loss. The problem is that the Supreme Court in UAW v. Wisconsin Employment Relations Board (Briggs & Stratton), 336 U.S. 245 (1949), branded as “indefensible” (and, therefore, unprotected) a union’s attempt to exert bargaining leverage by calling twenty-six surprise “special meetings” during working hours in one four-month period.
Oswalt deftly argues alternatively that the contemporary one-day strikes are protected under current law because they lack the coordinated plan in support of a unified goal that the Board and courts found objectionable in Briggs & Stratton and later cases, and, moreover, that changes in the nature of work and unions since the 1970s have undermined any plausible defense of the intermittent strike doctrine. The article speaks quite plainly both to lawyers seeking legal strategies and to scholars, and it does a nice job explaining the intricacies of labor law to the non-specialist. In substance and in style, Oswalt speaks to a broad and diverse readership.
Improvisational Unionism is a major contribution to the labor law literature for its rich description of contemporary worker mobilization, its trenchant analysis of what is distinctively new, its melding of organizational theory with legal analysis, and its inspiring vision and passionate legal defense of worker activism and mobilization. Oswalt’s zippy and crisp prose is refreshing. He candidly acknowledges the limitations of improvisation as a theory and practice for rebuilding a mass movement of workers, but his fresh voice and new ideas stand as good a chance as any to inspire and energize a new generation of lawyers, activists, and scholars. Because change to labor law will come about only from worker activism that forces the Board and the courts to rethink old rules, this work is important for its reimagining of the nature of collective action and making the case for changing doctrine to reflect the new reality.
How should we apply constitutional protections to public employees? The state action doctrine exempts private employers from constitutional scrutiny. However, public employers are bound to abide by the Constitution in their exercise of power. Governments must protect the free speech and privacy rights of not only ordinary citizens but their own employees as well. The difficulties in matching up these rights with the employment relationship have long bedeviled courts. If a worker’s speech in the workplace had the same protections as a citizen’s in the square, or an office had the same protections against searches as a home, governments’ workforce management could quite easily break down. As a result, courts have increasingly turned to private sector norms to guide their application of these rights in the public sector.
In her article Market Norms and Constitutional Values in the Government Workplace, Pauline Kim critically evaluates this trend toward the “privatization” of constitutional norms. Kim argues that the Constitution is designed to provide important protections to governmental employees—protections that are justified by the differences between private and public employers. Focusing on First and Fourth Amendment protections, the article explains why speech and privacy rights are particularly important to public employees. Although Kim does not reach hard and fast doctrinal solutions, she does provide specific theoretical contributions to the literature for courts and academics to use in developing a deeper approach.
Kim first sets the scene by describing the academic and judicial forces that are bringing the regulation of public and private workplaces together. On one side, supporters of privacy and autonomy rights for private sector employees attempt to elide the differences so as to give private workers more protections. On the other side, critics of public sector employment rights seek to bring more market discipline to government agencies by importing private sector rules. Both sides have pushed the notion that public sector and private sector employment regulation should not be so different after all. Courts have turned to this approach themselves in order to deal with tricky issues of employee speech rights and privacy expectations. Recent Supreme Court decisions have held that if a particular employer action would have been reasonable in the private sector, it should be considered reasonable in the public sector, too—even in the face of constitutional protections.
The article turns to theory to show why this shouldn’t be the case. Kim leans on notions from law and economics in arguing that private sector employers are different than their public sector counterparts in critical respects. She notes that private employers have property rights in their business, and that capitalism provides a significant degree of economic liberty. Although these rights and liberties are justifiably limited, governmental employers have no such claim to private rights. The First Amendment, according to the general consensus, provides no speech rights to governments themselves. And while governments have interests in managing their workplaces and controlling their message, these interests do not have the same constitutional import as those of either public employees or private employers. In addition, government employers have a level of power and control that private employers do not have. While both public and private employers may compete against each other in subsets of the labor market, private companies must compete for customers and capital in a way that government agencies do not. If a private employer is too draconian in its speech or privacy policies, various markets can punish this employer and drive it out of business. Not so for government agencies. Elected officials can step in to correct bad practices, but improved speech and privacy protections for public workers make such corrections more likely by opening the channels of communication to these officials and the electorate that empowers them. Illustrating this principle, the article’s opening anecdote explains how FDA scientists were punished by their managers for publicizing allegations of misconduct and corruption at the agency. In retaliation, these employees were secretly surveilled and monitored to such a degree that sensitive family and health information was surreptitiously collected. Employee whistleblowing ultimately facilitated public oversight of the agency, but only after the employees suffered reputational attacks and serious invasions of their personal privacy.
It is this last point that Kim could, in fact, expand upon in making her case that the government is different as an employer. Although companies like Amazon and Facebook have tremendous resources and can wield significant power, they do not have the legal authority that government possesses. Leslie Knope may seem like a less intimidating employer than Jeffrey Bezos, but Jeffrey Bezos can’t have you arrested. Kim plays down the ultimate power of the government by focusing simply on the public employer’s power over employment. But as her initial example shows, it is the government’s power to go beyond the employment relationship, and into our personal lives and personal liberty, that seems most frightening. Constitutional restraints are appropriate for government because of government’s power. And although the average citizen stands in a different place than a government employee, both are ultimately vulnerable to state action and state power.
The article also raised another question for me that Kim did not directly address: should public employees be treated differently than private ones as to their collective bargaining rights? Right-to-work proponents have long argued that mandatory agency fees violate the First Amendment rights of dissenting employees. Proponents of public sector unions have argued for exclusive representation and fair-share fees by analogizing to the private sector model. Is this analogy also inappropriate? Should public employees have greater rights not only against their employer, but their union as well? Given the First Amendment ramifications, it would be interesting to explore the rights of employees in this context as well.
Pauline Kim’s dissection of speech and privacy rights for public employees shows that there are important reasons for protecting these employees with a strong constitutional framework. Her article makes a compelling case for reconsidering the trend towards fuzzing the line between public and private workers. Public employees are different. The Constitution protects individual citizens against the depredations of unconstrained government power. Because public employees can bear the brunt of the exercise of such power, they need the Constitution on their side.
Joni Hersch & Jennifer Bennett Shinall, Something to Talk About: Information Exchange Under Employment Law
, 165 U. Pa. L. Rev.
(forthcoming 2017), available at SSRN
Being finicky by nature, I sometimes take issue with those who claim that certain questions in the interview process are illegal. While that’s true for questions about disability under the ADA and genetic information under GINA, I’ve long resisted the conventional wisdom that asking a female applicant about her marital status or her plans for having children is illegal. I agree that, even putting aside all sorts of other reasons why raising such personal topics may not be a good idea, there are legal risks in such inquiries. But at most it would be illegal to ask only women the questions, and even that is incorrect. A violation of Title VII requires an adverse employment action, and such questions by themselves don’t count.
At this point I can hear a chorus of voices objecting that, while that’s technically true, such questions hand a rejected applicant a case on a silver platter: they indicate that the employer thinks gender is relevant to the hiring decision, and the failure to hire is the adverse employment action. Plus, given Title VII’s motivating factor liability, an employer might find itself in violation of the law even if it would have made the same decision in any event. So it’s risky to start down this road from a legal perspective and, given societal norms, it seems a bad idea from any number of other perspectives – although there are those who see such questions as valuable for employers in a variety of ways, such as signaling family-friendliness or allowing the employer to tout the advantages of its environment, such as good schools.
All of which is why Joni Hersch and Jennifer Bennett Shinall’s recent posting on SSRN, forthcoming in the University of Pennsylvania Law Review, is so interesting. Something to Talk About: Information Exchange Under Employment Law explores the phenomenon of “little or no information about family status being provided in pre-employment interviews,” reaching the counterintuitive conclusion that the result is reduced opportunities for women.
Now, I’m not so sure this problem is solvable. As the authors document, putting such topics off-limits is deeply woven into our culture, whether or not the impetus arose from legal sources such as EEOC guidance. And, absent the creation of some kind of privilege, management attorneys are never going to advise clients to raise such issues. Maybe more to the point, interviewers will be discouraged from discussing these questions even if the applicant is the one to raise them, which is one suggestion the authors make. Thus, while the pedant in me applauds the demonstration that these kinds of questions are not per se illegal, even when asked only of women, where we go with that observation is another issue.
Nevertheless, Hersch and Shinall’s piece provides a great read along two axes. The first is its empirical demonstration that “information exchange” is a good thing even on sensitive topics, and the second is its intriguing hypothesis of why that might be.
As to the former, the empirical piece is aimed at one aspect of the phenomenon the authors address, how to deal with career “pauses” or “breaks” due to child rearing. With 3000 subjects participating in a vignette study, the authors found that “otherwise identical applicants with a substantial gap in their work history who do not explain the personal family circumstances for their job search are far less likely to be hired than those who do.” This finding, assuming its accuracy, doesn’t reach the broader situations that I raised at the outset – discussions about marriage and family plans for those first entering the workforce – but their theoretical explanation suggests application to that setting also.
As to that theory, Hersch and Shinall argue that their findings are consistent with “the behavioral economics theory of ambiguity aversion (or the Ellsberg Paradox), which finds that individuals prefer known risks over unknown risks.” I’d be tempted to call it “the devil you know” phenomenon, but, by whatever name, it seems well established.
The piece, then, is somewhat in the vein of another counterintuitive article finding that employers who conduct criminal background checks are more likely to hire black applicants than employers that do not. In that research, the potential adverse consequence of such checks in terms of the likelihood of hiring African Americans are more than offset by the positive effect of eliminating “statistical discrimination.”
Although the theoretical explanations for the counterintuitive findings in both studies are framed somewhat differently, they are not inconsistent, and both suggest that more information will yield fairer results in terms of race or gender in hiring. Both are grounded in the notion that, absent fuller information, humans are likely to act in ways that will be disadvantageous to minorities and women. That means that both raise real questions about the unintended consequences of attempting to limit information flow in labor markets. If Hersch and Shinall are correct, a number of proposals – such as restricting employer use of credit information or limiting employer internet searches about applicants – might be counterproductive.
Given that this is Jotwell, it’s inappropriate to stir in too much criticism with praise for something I like a lot, but I’m not so sure about everything in the article: for example, the broad statement that the “dominant theoretical explanation for inferior labor market treatment of historically disadvantaged workers is statistical discrimination,” although maybe that’s because we have a somewhat different view of what “statistical discrimination” means.
Perhaps more seriously, I wonder about the consistency of one of the study’s findings with its prescriptions. The vignette study showed that those who provide some explanation for their “break” do better than those who don’t, but it also showed that those who provide a “financial” reason for their return to the labor market (divorce) do far better than those who say that they have been raising children. That would suggest that the “open and honest” conversations that the authors would encourage at the interview stage are not the optimal solution to the plight of women who are seeking reentry after pausing to raise children.
None of which should undercut the important contribution of the article in calling attention to psychological processes that can undercut even the best-intentioned of reforms. It truly is a careful and thought-provoking piece, which is all one can ask of scholarship.
Finally, I should also thank Steve Willborn, with whom I have been discussing the information question, on and off, for years, and who kindly offered some thoughts on this post.
Recent Supreme Court decisions that embrace corporate personhood in rights-bearing contexts have caused broad public debates. Non-lawyers have long accepted the view that a corporation is a legal entity separate from its owners and managers and that this entity should be treated by the law like a person sometimes, like for tax purposes, liability for injuries, and property ownership, for example. The idea that corporations might have some “rights” linked to those situations, like those that attend to property ownership, is also fairly well accepted. Despite that widespread acceptance, many balked when the Supreme Court held that corporations had additional rights that we tend to consider limited to humans, like the right to engage in political speech and practice religion. Complicating the debate, the Court provided little guidance on why corporations are like people in these situations, and why they might not always be in future cases.
Although the high-profile cases are not centrally about employment, they have serious worklaw overtones. If corporations have exactly the same speech rights as individuals, are they free to silence employees, like public employers often may? Do corporations have a substantive due process right not to pay minimum wages or privacy rights that could limit OSHA inspections or protect against disclosure of EEO or safety data to federal regulators? If corporations have religious beliefs and practices, can they insulate employment decisions from limits imposed by civil rights laws? Can they avoid paying minimum wages by designating some or all employees ministers? If corporations have a racial identity, does that affect their ability to engage in different kinds of affirmative action? These normative questions about the rights and responsibilities corporations have to their employees and, because of the way we use work to distribute social goods, to society, are central to the work of most worklaw scholars. Yet the ordinary tools of legal doctrine have not provided answers.
In Culture in Corporate Law, Gwendolyn Gordon explains how cultural anthropology provides the tools for keeping corporate law connected to social reality that worklaw scholars focus on. By using the concept of culture as an analytical tool, anthropologists can “analyze complexities of human communal behavior otherwise hidden from view” through the empirical method of ethnographic analysis, a long-term, in-depth qualitative study of group dynamics. Using these tools, the law can do a better job of laying out the rights and duties of corporations in our society.
The article compares how the concept of culture is used in legal scholarship and anthropology. As in many other areas, the legal concept of corporate culture as a static, single thing, is out of date. As a result, courts fail to take into account the relational aspects of the forces that make up the corporation in setting policies about corporations’ effects on human lives.
The article then uses the anthropological idea of culture to analyze changes to the jurisprudence of corporations based on the courts’ theories of the nature and dynamics of social groups in three cases: Citizens United; Carnell Construction Corp. v. Danville Redevelopment and Housing Authority, a recent Fourth Circuit case deciding that corporations could claim racial identities; and Hobby Lobby. These cases view corporations as deriving socially oriented characteristics from their associated individuals but remaining separate entities capable of singular “actions.” Corporations in Citizens United are individual speakers. In Hobby Lobby, they have beliefs, a concept usually limited to ensouled individuals. Gordon traces this view of the corporation-as-entity with the characteristics, social ties, civic commitments, and internal lives of the aggregated humans involved with it to earlier concepts of the socially entangled corporatist bureaucracies of Émile Durkheim and Adolf Berle. Gordon uses this prior work to show how the concept of the corporation “lends itself both to a salutary elasticity and toward particular conceptions of its place in society” (P. 358).
The article goes on to address the normative implications and theoretical challenges of using the lens of culture to examine corporate law and practice. Using an example from Gordon’s long-term fieldwork with a New Zealand corporation owned by Māori people, the article shows how the organic, internal relationships and dialogue among directors, managers, employees, shareholders, and other stakeholders combined with the external forces exerted on the corporation by the law combine to create a culturally Māori corporation rather than a corporation simply owned by Māori people. Using this work as an example, the article demonstrates how the courts’ thinner view of corporate personhood (as mostly conflated with the personal attributes of a small group of owners) lacks the attentiveness to social consequences that is vital in cultural analysis. Without that attentiveness, the doctrine is likely to cause the kinds of problems some worry about: for example, all of the freedom to act with none of the responsibility for the consequences of those actions.
In the conclusion, Gordon exhorts courts to engage in deeper analysis in cases involving corporations that claim personal rights. Although that deeper analysis is messy and ill-suited to creating broad rules of general applicability, Gordon argues that it is necessary. As she puts it,
The stakes here are high. Cultural theory does not merely allow us to describe more accurately the life and the law of corporations; it also contains normative implications. The Supreme Court’s simplified conceptualization of corporations supports doctrine that hurts important human interests, obscuring or enervating what should be rich conversations about heterogeneity, responsibility, and the admixture of business and social values. Serious attention to cultural analysis within corporate law will help us to identify better legal rules and build better institutions.
The conclusion could easily have been written by just about any worklaw scholar critical of the current legal approach to employment law. Gordon’s article suggests that we ought to engage more with the literature on cultural anthropology, and provides an accessible way in.
Cite as: Marcia L. McCormick, Culture as Keystone
(July 21, 2016) (reviewing Gwendolyn Gordon, Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Māori Corporation Walk into a Bar ...
, 39 Seattle U. L. Rev.
353 (2016)), https://worklaw.jotwell.com/culture-as-keystone/
Rachel Arnow-Richman, Modifying At-Will Employment Contracts
, 57 B.C. L. Rev.
(forthcoming 2016), available at SSRN
I’m always pleasantly surprised when I stumble across a piece of scholarship that seeks to solve a doctrinal puzzle in the law. I’m even more pleasantly surprised when the puzzle in question is one that I’ve puzzled over myself. And I’m really pleasantly surprised when the author offers a convincing solution to the puzzle. Those are but three reasons why I like Rachel Arnow-Richman’s article Modifying At-Will Employment Contracts.
Arnow-Richman’s article explores the contractual enforceability of what she calls “mid-term modifications,” a set of non-negotiable contract terms offered by an employer after the start of an at-will employment relationship. These mid-term modifications often involve new terms that are less favorable to an employee, such as covenants not-to-compete or reduced benefits. The situation presents the type of conflict of competing interests that makes employment law so fascinating. Employees, whose employment status is already tenuous under the at-will employment rule, obviously want to be able to rely on “the deal” as to the terms and conditions of their employment when they first started to work. For their part, employers may have a legitimate need for flexibility in responding to changed circumstances. The law is then asked to produce an equitable solution to the conflict when an employer seeks to alter the deal after the relationship has commenced. But as Arnow-Richman demonstrates, “the common law has developed neither a coherent legal framework for analyzing mid-term modifications, nor a cogent theoretical basis for understanding existing doctrine.” (P. 3.)
For those who have taught the basic employment law survey course, the dilemma is probably a familiar one. Arnow-Richman lays out the two standard judicial approaches to the dilemma. Under the first (which Arnow-Richman refers to as the “unilateral modification” approach), courts permit employers to unilaterally offer new terms, reasoning that because at-will employment may be terminated at any time, continued employment constitutes consideration for any new terms. In contrast, other courts utilize what Arnow-Richman calls the “formal modification” approach. Under this approach, an employer must provide some additional form of consideration (a bonus, a pay increase, etc.) to support its modification. Arnow-Richman delves into the contract doctrine in the area, exploring the courts’ decisions to treat employment relationships as unilateral contracts and their focus on consideration. She concludes that the courts’ focus on consideration in this context is something of a relic. Instead, Arnow-Richman looks to more modern conceptions of good faith under the UCC and decisional law involving mid-term modifications of employment handbooks in crafting a proposed rule that strikes the appropriate balance. Ultimately, she advocates for a rule whereby “mid-term modifications unilaterally imposed by employers in at-will relationships should be enforceable only if the employer provides reasonable advance notice of the change.” (P. 5.) In so doing, she argues that her proposed rule “advances the principles of good faith and voluntariness that underlie contemporary contract modification law within the constraints of employment at will.”
One of the more refreshing features of the article is that Richman actually dives into the decisional law in an attempt to clarify what the courts are really doing. Instead of merely speculating about how courts approach mid-term modifications to employment relationships, Arnow-Richman digs into the cases and summarizes the different approaches courts take when considering the enforceability of different kinds of mid-term modifications. She looks at cases involving modifications in which employers attempt to impose non-compete agreements, arbitration agreements, and changes to existing employee handbooks and then examines the different ways in which courts respond to such attempts. Equally refreshing is the fact that Arnow-Richman is actually engaging in the type of doctrinal scholarship that sees value in wrestling with conflicting policy values in the face of uncertain case law in an attempt to propose a workable solution. As the issues confronting employers and employees in the modern workplace continue to evolve, the issues that the article explores continue to be of significant importance.
Arnow-Richman’s article also comes along at an interesting time in employment law. One of the things I most enjoy about teaching the basic Employment Law survey course is that the course involves a roughly equal mix of tort and contract law. Lately, tort law has taken on an increasingly dominant role, at least in the employment discrimination context. Arnow-Richman’s article is a useful reminder of the role that contract law plays in the law of the workplace and how that law needs to evolve to keep pace with the challenges facing employers and employees.