Catherine Fisk and Martin Malin, After Janus
, 107 Cal. L. Rev. __ (forthcoming 2019), available at SSRN
Have you ever had an idea for an article, but then somebody else beat you to writing it and did a better job than you would have with the topic? After Janus is my first experience with that, and not surprisingly, its co-authors are scholars I respect immensely.
Janus v. AFSCME held that all union security clauses (contract provisions requiring members of union bargaining units to pay their share of the costs of union representation) in the public sector violate the First Amendment. This constitutionally imposed “right to work” rule will cause unions significant financial damage, mainly because under “duty of fair representation” (DFR) rules, unions generally must represent members of union bargaining units without regard to whether or not they pay any dues. Scholars have been working on ways unions could get around some or all of the negative effects of Janus. Current ideas include getting rid of the “majority exclusive representative” model, adjusting DFR rules, or requiring employers to pay for unions’ collective bargaining costs. AfterJanus responds to these proposals with what I believe is appropriate skepticism. Further, it creatively reframes the union’s financial dilemma as a collective action problem, as opposed to the more common framing of a free-rider problem. It also makes some potentially very useful alternative suggestions. Because it addresses so many topics, the summary below barely hits the highlights. Anyone interested in labor law and policy should read this article in full.
First, the article stresses that “right to work” rules create collective action, not free rider, issues. The problem is that, without a way to require everyone who benefits from union representation to pay for it, it becomes economically rational for more and more employees simply not to pay for the benefits. This means, crucially, that the union will be increasingly unable to provide common goods on which bargaining unit members could “free ride.” The article gives examples of bargaining units in “right to work” jurisdictions whose members vote by substantial majorities to unionize or to remain unionized, while only a minority pay any dues.
The article then critiques several proposals union supporters have made, showing that they do not solve the collective action problem and detailing other flaws. In one of my only quibbles with the article, it largely combines the “eliminate exclusive majority” idea with the “alter DFR rules in grievance/arbitration handling” idea under the general rubric of “Members Only Representation.” I think these ideas are more conceptually separate, but the article deals well with both.
Getting rid of majority/exclusive representation is popular among some labor law scholars, and it would solve the problem of forcing unions to represent those who don’t pay dues. However, there are at least two reasons this is not a way around Janus. First, it is unrealistic politically. As the article shows, among other things, the U.S. labor movement, including major public sector unions such as AFSCME, AFT, NEA, and SEIU, do not want to get rid of it. Second, and more controversially, the article argues that the limited experience with members-only bargaining in the U.S. shows that “such systems are fraught with problems for both employers and employees” (e.g. a system in California schools prior to 1976).
A less radical and more feasible solution would be to adjust DFR rules such that unions either did not have to represent workers who don’t pay dues in grievance/arbitration proceedings, or could require workers to pay the costs of arbitrations or other disciplinary hearings. Janus explicitly left the door open for that, although the opinion stressed that unions would still have to represent all members of bargaining units in contract negotiations. Again, this has some appeal at first glance, and a few states (Florida, Nebraska, Nevada, and New York) already have modified their DFR rules along these lines.
There are complications, however. What about other types of representation? Public-sector unions traditionally represent employees in, e.g., civil service hearings, in suits under employment laws and state and federal constitutional provisions. Moreover, the article shows that states that have adopted this option often have low union density rates. This is partly because most employees don’t think they will need a union in a discipline cases. It does not solve the collective action problem because it turns union membership into a form of last-minute insurance policy. Also, letting individual members handle arbitrations would limit the union’s ability to refine general contract language into specific rights in the interest of all bargaining unit members.
The article also analyzes the proposal that employers should, in some way, pay the costs of contract negotiation. Problems here include making unions financially dependent on employers, leaving union financial health vulnerable to political change, possibly impeding union democracy and lessening motivation for local unions to engage employees, and creating a perception that the public is paying for unions.
Malin and Fisk have some creative alternative suggestions. First, unions could compel employees to make contributions equal to the cost of agency fees to some other 501(c)(3) organization, as is done with religious objectors; this would lessen employees’ incentives to refrain from paying union fees for economic reasons, while still allowing ideological objectors an alternative to supporting a union. Second, unions could assess employees a pro-rata share of estimated total arbitration fees for a year. So, for example if a union spent a total of $25,000 in a given year on arbitrations, and the bargaining unit had 250 members, a bargaining unit member who refused to pay dues could be charged a $100 share of the total arbitration fees. Third, unions could add more “members-only” benefits, such as insurance, free legal representation, and voluntary shift-trading or leave banks. Fourth, unions can engage in more member education – a route that many unions are taking, assisted by state laws designed to facilitate union-worker contact.
A “Jot” can only scratch the surface of this sophisticated, multi-faceted article. It is a must-read for all labor scholars. I liked it a lot.
Elizabeth Chika Tippett, Harassment Trainings: A Content Analysis
, __ Berkeley J. Emp. & Lab. L.
__ (forthcoming 2018), available at SSRN
Every couple of years, some automated program at the University nags me about renewing my sexual harassment training. Since the computer provides no way for me to claim an exemption for my work on the topic over the years, I usually procrastinate a few weeks and then give in, log on, and spend the 20 or so minutes needed to run through the process and get my certificate of compliance. (Why I need a certificate when the program presumably keeps track of my efforts is another question). Each time, I finish thinking how incredibly stupid the training is—and not just because I—like pretty much everyone reading this on Jotwell—know more than the average person about the topic.
But “stupid” is probably counterbalanced by cheap and efficient—if “cheap” means compared to live efforts and “efficient” means a low cost way of checking the “reasonable care to prevent” box for avoiding liability for sexual harassment. And I don’t deny it works since I can’t recall a case where a court found colorable employer training efforts to be per se insufficient to “prevent” misconduct.
Nevertheless, I ask myself each time—can this possibly be what the Supreme Court had in mind?
The difference between me and Tippett is that I’ve never gone further to figure out whether my university is using “best practices” or even “ok practices” in training its employees on this important topic. Liz did, and in an impressive way. Harassment Trainings: A Content Analysis builds on the line of literature started by Susan Bisom-Rapp’s groundbreaking Fixing Watches with Sledgehammers, and Ounce of Prevention articles. It both updates the earlier research and provides a remarkable on-the-ground view of the cottage industry of antiharassment training, with a focus on the nearly two decades since the Supreme Court’s employer liability structure in theory changed the way employers did business.
From reading A Content Analysis, it turns out that my experience with sexual harassment training isn’t so unusual after all. And maybe the limitations of employer training have something to do with the reality that #MeToo has exposed: The Court’s elaborate social engineering effort to shift the incentives of both employers and employees in order to rid the workplace of harassment has largely been a failure.
Liz’s article has a number of unexpected findings. Examining the harassment training from 1980 to 2016, she shows that much of the content actually traces back long before Faragher/Ellerth. But, surprisingly, considering how so much else has changed in both law and learning theory, the training long ago coalesced into a “genre” consisting of an authoritative figure summarizing legal rules and giving examples of prohibited conduct. Further, she reports that “current trainings include large quantities of tangential legal information and overemphasize sexual conduct at the expense of other forms of harassment. They also tend to suggest that relatively trivial slights could give rise to harassment-related liability.” That certainly matches my experiences.
More interestingly, she also reports that earlier training had “two competing narratives”—abuse of power taking a toll on victims and liability risks that could affect company performance. But the “power-based narrative faded over time,” and current training tends to focus on the “business case” for preventing harassment—it’s a violation of company policy. That, she argues, tends to deemphasize that harassment is a form of discrimination, with the consequent dilution of the moral case against such conduct. For example, current training tends to ignore stereotyping discrimination or gender-based harassment. Liz argues that there is reason to believe that a focus on the wrongfulness of the conduct might also be more effective in deterring it than an “it’s against the rules” approach. Further, Tippett suggests that framing the law as prohibiting a “wide swath of behavior” may “inadvertently signal” that avoiding interactions with women or other potential victims is the best way to avoid problems, which has obvious negative implications for the cause of workplace equality.
The author concludes by sketching some “new and different approaches” that might be taken to training, including training more tailored to reported individual differences in attitudes, beliefs, or self-reported behavior. And resonating with my experiences was her recommendation of “more authentic content,” which strikes me as more engaging and therefore more likely to leave a lasting impression. One example was, rather than just identifying problematic conduct, having a session that requires managers to respond to how they would deal with a particular scenario. That not only gets the point across about the conduct in question but also engages the trainee in the complicated dynamics of changing objectionable behavior in the workplace.
This project can’t have been easy—to gather her data of 74 examples from 61 providers, Liz had to contact 175 professional trainers and law firms and scour libraries for historical materials. To my mind, that makes the project more important. After all, the point of legal rules is to affect conduct on the ground and it’s impossible to assess the success or failure of any particular regime unless one can determine how conduct changes.
There’s a lot more to the article than I have described, but I hope I’ve explained why I like the piece a lot.
However, there’s an obvious downside to studies such as this: while it is very effective in revealing the shortcomings of current training efforts, it also suggests that mediocre training is the current standard of care for employers, which might make it more difficult to reform such training. Another item to put on the #MeToo agenda.
Cite as: Charles A. Sullivan, Train Smarter
(November 16, 2018) (reviewing Elizabeth Chika Tippett, Harassment Trainings: A Content Analysis
, __ Berkeley J. Emp. & Lab. L.
__ (forthcoming 2018), available at SSRN), https://worklaw.jotwell.com/train-smarter/
Much has been written about employers’ mandates that their employees arbitrate claims on an individual basis. Empirical studies have examined employee success rates in arbitration, comparing them to employee success rates in litigation, and the effects of the employer being the only repeat player in the process. Scholars have also examined the evolving abdication by courts of their role in policing arbitration mandates. Cynthia Estlund’s article examines a more basic question: when employers impose arbitration mandates on their employees, do employee claims even get brought? Her answer is a resounding “rarely,” and much more rarely than when the claims can be brought in court.
Estlund acknowledges the challenges in collecting data about employment arbitration. She works with data assembled by Alexander Colvin and his colleagues. Colvin’s studies focus on the American Arbitration Association (AAA), which he estimates is designated in about half of employment arbitration agreements. Colvin also estimates that 56% of private sector non-agricultural employees are covered by arbitration mandates.
The starting point for Estlund’s analysis of claim filing is AAA’s report that in 2016, 2879 individuals filed employment claims. Given that AAA has about half of the employment arbitration business, she doubles this to produce an estimate of 5126 total cases. She then turns to the number of employment cases filed in federal court in 2016, 31,000. If 56% of employees nationwide were subject to employer-imposed arbitration mandates, Estlund reasons, and employees filed arbitration demands with the same frequency as they filed suit, we would expect 39,000 claims in arbitration. She reduces this figure to account for the 15.2% of employees who work in the public sector and to account for the possibility that some, even many, of the federal court filings were by employees subject to arbitration mandates. This yields an estimate of between 9600 and 28,400 expected arbitration claims if employees are as likely to pursue their claims in arbitration as in court. She adjusts the figure upward to take into account state court filings, relying on an estimate of 195,000 per year developed by Mark Gough, and for collective actions in Fair Labor Standards Act (FLSA) cases, which she estimates included 350,000 individuals. She concludes that if employees are as likely to file arbitration demands as law suits, there would be between 320,000 and 727,000 claims in arbitration, or that under 2 percent of the claims one would expect to find actually enter the arbitration process.
Estlund addresses two limitations of her analysis. First, she observes, larger employers are more likely than smaller ones to impose arbitration mandates, and they are also more likely to comply with the employment laws. Second, she relates that many large employers incorporate arbitration in a comprehensive dispute resolution system that includes mediation and many claims may get resolved in earlier stages of the system. But she urges, correctly in my view, that the disparity between the number of arbitration claims we would expect to be filed and the number that are actually filed is so great that these two limitations cannot come close to explaining it.
I have a few quibbles with Estlund’s work. First, I don’t agree with including the individual employees covered by FLSA collective actions in her total figures for law suits filed. Those who join collective actions have not taken the initiative on their own to file suit. They have responded to notices inviting them to join lawsuits already filed. A more apples-to-apples comparison would be between those employees who took the initiative to file suit and those who took the initiative to file arbitration demands. Second, Estlund relied on Colvin’s data, which focused exclusively on AAA cases. J. Ryan Lamar and David Lipsky have conducted extensive empirical analysis of FINRA employment arbitration. It would be nice to see if their data is consistent with Colvin’s with respect to likelihood that an employee will file an arbitration demand. Third, Estlund relied on data from 2016. She had to, as that was the most recent data available to her. But in 2016, the plaintiffs employment bar was just beginning to deal with the Supreme Court’s gutting of the key tools of judicial policing of the fairness of employer-mandated arbitration procedures in AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant.
In 2018, plaintiffs’ lawyers are increasingly responding to employer mandates of individual arbitration by filing hundreds, and in some cases thousands, of individual arbitration demands. Such actions give plaintiffs significant settlement leverage because under AAA rules, employers are responsible for all AAA fees and all arbitrator fees. In light of this development, it would not surprise me if the number of arbitration cases has increased significantly since 2016 and will continue to increase in the coming years. It also will not surprise me if employers drop their arbitration mandates once they realize that they could be facing hundreds of thousands of dollars, and in the cases with the largest number of filings millions of dollars, in arbitration fees.
These quibbles aside, Estlund makes a compelling case that under current conditions, employment claims mostly disappear into a black hole when employers mandate individual arbitration. The notion that by agreeing to arbitrate, an employee does not waive statutory rights but merely agrees to seek redress for violations of those rights in an arbitral rather than a judicial forum has become nothing more than a legal myth, or as Estlund puts it, judicial “complicit[y] in employers’ effective nullification of employee rights and protections.”
Lesley Wexler, Jennifer Robbennolt, & Colleen Murphy, #MeToo, Time's Up, and Theories of Justice
, available on SSRN
It may have been Ashley Judd’s allegations against Harvey Weinstein, the movie mogul, that finally unleashed the powerful movement to call workplace harassment to account, but the movement had clearly been building for some time. Spurred along by the sexism surrounding the 2016 presidential election and allegations of harassment and abuse against high profile figures in the news, entertainment, and tech industries, in politics, and even in the judiciary, the #MeToo movement feels like a public reckoning. The Time’s Up initiative, seeking to institutionalize reform and support victims of harassment, provides a concrete path forward to capitalize on the movement.
A number of activists have called for a restorative or transitional justice approach in order to create real change. Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy take up that call in #MeToo, Time’s Up, and Theories of Justice. They summarize the movement and initiatives currently under way, explore the key components of restorative justice, and look more broadly to the insights of transitional justice to help chart a way forward. As someone who has been advocating for years for a new approach to transparency and accountability surrounding discrimination in the workplace, I found this article incredibly valuable.
Wexler, Robbennolt, and Murphy summarize the evolution of Alyssa Milano’s #MeToo twitter hashtag and at least partial combination with Tarana Burke‘s MeToo movement into a broader phenomenon that focused at least initially on showing how widespread sexual abuse and harassment are and then on naming and shaming high level individuals who abused their power in this way. Acknowledging some critiques of the movement as benefitting mostly heterosexual cisgender upper-class white women, the authors note that even with those shortcomings, #MeToo has ignited a cultural reckoning that has prompted increased self-reflection, conversation, and changing perceptions of sexism, sexual harassment, and sexual assault.” Wexler, Robbennolt, and Murphy then explain how the Time’s Up initiative and other workplace reforms are being instituted to end sexual assault, harassment, and inequality in the workplace, not just for those in the entertainment industry, but also for people who do not have access to resources to enforce their rights in other industries. The comprehensive description of lobbying efforts, changes to workplace structures, cultural transformation, and access to resources for legal enforcement is particularly useful to understand the multi-pronged approach needed for real change.
After this summary of what is happening, Wexler, Robbennolt, and Murphy turn to theories of justice to explain how these efforts at reform might be most successful. They first describe what a restorative justice approach would include and how a transformative justice approach would supplement it. Restorative justice, they explain, “refers to a loose collection of practices or mechanisms that share a number of core commitments,” including participation of victims, offenders, and members of the community; a full description and acknowledgement of the harm the behavior caused; responsibility-taking by the actor; efforts to repair the harm; and reintegration of the offender into the community. Transitional or transformative justice emphasizes that restoration cannot be to an inequitable status quo, but must create a new equitable set of relationships. To do that, we must examine the institutions, structures, norms, and practices that contribute to and enable the wrongdoing.
The authors thoroughly apply the practices of restorative justice to the context of harassment and sexual violence, describing the challenges this context presents, and exploring where particular remedial efforts have satisfied the requirements of restorative justice and where they have failed to do so. They then explain why transitional justice theories could help create more expansive change. Wexler, Robbennolt, and Murphy acknowledge that transitional justice is usually practiced by states and often in situations where societies are transitioning from extended periods of conflict or repression towards more democracy. For this reason, there are some features that are disanalogous to a culture that is broadly mostly democratic, but where systemic wrongdoing nonetheless exists by private actors. Even so, the authors explain how many of the features offer useful guidance and how the structures of transitional justice might be adapted in this context.
For example, the focus of transitional justice on apologies by perpetrators, reparations, and acknowledgement of victims’ accounts are already features of the movement, and those can help lead to broader societal transformation. Additionally, a focus on institutional change seems to be underway and could include legislation to prohibit nondisclosure agreements for workplace discrimination. Finally, a proposed industry commission in Hollywood, chaired by Anita Hill and empowered to take reports of discrimination and enforce zero tolerance policies toward harassment and discrimination could transform that industry and have broader societal effects as well.
I hope this article is widely read and that it inspires and informs the creation of a new approach to ending discrimination at work.
Editor’s note: For a previous review of #MeToo, Time’s Up, and Theories of Justice see Brooke D. Coleman, #MeToo Justice.
Cite as: Marcia L. McCormick, Transforming the Workplace with Help from Transitional Justice
(September 19, 2018) (reviewing Lesley Wexler, Jennifer Robbennolt, & Colleen Murphy, #MeToo, Time's Up, and Theories of Justice
, available on SSRN), https://worklaw.jotwell.com/transforming-the-workplace-with-help-from-transitional-justice/
In Jackson v. Deen, 959 F. Supp. 2d 1346 (S.D. Ga. 2013), an employee brought a Title VII claim against her employer on the grounds that her coworkers had been subjected to racial harassment. The employee did not complain that she had been subjected to such harassment. Instead, she claimed to have suffered a cognizable injury because her employer’s harassment of coworkers “deprived her of ‘harmonious working relationships with her African-American subordinates …’” Id. at 1354. Rejecting the notion that the plaintiff was an aggrieved party under Title VII, the court explained that “[q]uite simply, workplace harmony is not an interest sought to be protected by Title VII.” Id. at 1355. In her article, Toward a Law of Coworkers, Professor Naomi Schoenbaum recognizes that this may be true as a matter of current employment law, but she takes issue with the notion that workplace harmony is not an interest worth protecting through employment law.
The premise of Schoenbaum’s article is relatively straightforward: modern employment law is so focused on individual rights that it is generally unconcerned about encouraging coworker bonds. One of the things that makes this thought-provoking article so interesting, however, is how clearly Schoenbaum explains exactly how employment law undermines coworker bonds and exactly why that is a bad thing.
The article begins by explaining some of the benefits of strong employee bonds. As Schoenbaum argues, strong coworker relationships increase the odds that employees will be able to obtain from their coworkers the information necessary to better assess whether their workplace rights may have been violated. They also increase the likelihood that coworkers will provide the emotional and other forms of support that may lead an employee to seek to vindicate her rights. Strong coworker bonds also encourage the sort of supportive behavior that discourages coworker or supervisor harassment and discrimination to begin with. Unfortunately, employment law often does little to encourage such relationships, nor does it seem to recognize that fostering such relationships is a recognizable goal of most employment statutes. Schoenbaum provides numerous examples of how modern employment law fails to give due weight to the value of strong workplace relationships and how that failure may adversely impact employees.
The example that resonated most clearly with me is workplace retaliation. An employee who complains internally about workplace discrimination is protected from employer retaliation only where the employee reasonably believed that the allegedly discriminatory actions were unlawful. Some courts have adopted a fairly demanding threshold for what qualifies as a “reasonable” belief. In order to better understand her legal rights, an employee might obviously seek out coworkers for their reactions to the employee’s situation or to see whether they have experienced similar treatment. But in a workplace where employees feel disconnected from their coworkers, an employee might be unable to acquire the information necessary to decide whether a reasonable basis exists for believing unlawful conduct has occurred. An employee who files an internal complaint of discrimination might also seek the assistance and support of a coworker during the process. But Title VII’s anti-retaliation provision as interpreted by federal courts does not protect those who assist another as part of an employer’s internal complaint procedure unless they actually make a point of demonstrating opposition to the employer’s actions. Given the current state of the law, a coworker could hardly be blamed for not rendering assistance as part of an internal investigation. Ultimately, this thwarts the purposes underlying anti-discrimination statutes.
Assuming employment law should encourage employee bonds – hardly a radical notion in light of labor law’s longstanding declarations in support of that very idea – the question becomes how can courts further this goal? In Jackson v. Deen, the court scoffed at the idea that an employee should have a cause of action for discrimination targeted at coworkers. The court complained that allowing this would “conscript federal courts as human resource departments that are responsible for imposing and monitoring a federally created standard for harmony in the workplace.” Id. at 1354-55. In the face of such judicial disdain (which is undoubtedly shared by many judges), Schoenbaum presents a problem with no easy solution.
Schoenbaum offers a number of doctrinal reforms that “would recognize coworker bonds as an interest of work law.” Doing those proposals justice would take more space than I have here. But for me, the more interesting part of the piece is in the identifying of the problem and the asking of the question. I can certainly sympathize with the federal judge who is unwilling to formally recognize a cause of action for discrimination targeted at a coworker. But I also can’t help thinking after reading Schoenbaum’s article that there are good reasons for courts to explicitly recognize strengthening employee relationships as a legitimate goal of employment law. This is an idea I had pondered before, but this article made me return to the issue and think about it more carefully. What’s more, I also can’t help thinking that by simply recognizing the inherent value of workplace bonds, courts could gradually begin to reshape employment law so as to encourage the formation of these types of bonds.
Ultimately, Toward a Law of Coworkers made me revisit an issue I’ve thought about before and inspired me to think about approaches I had not fully considered before. The article serves as a reminder of how the sometimes unhelpful split between labor law and employment law can work to the disadvantage of employees. At the same time, the article reminds us that this need not always be the case.
In the movie 1776, Benjamin Franklin infamously remarks to John Dickinson, “Revolutions…come into this world like bastard children—half improvised and half compromised.” The compromise, of course, was slavery. The rest of the dialogue and its context, which explains the improvisation, is often omitted in discussion of this scene. Recall that Franklin asks John Hancock to poll the Pennsylvania delegation on the question of independence. Franklin votes yea; Dickinson, nay. This is how the decision of American independence lands squarely on the shoulders of Judge James Wilson, who ultimately votes yea. As Dickinson incredulously and rhetorically posits, “And is that how new nations are formed? By a nonentity seeking to preserve the anonymity he so richly deserves?”
If we compare the founding of our nation with the foundational federal labor law statutes of the twentieth century, which statute—the Wagner Act or the Taft-Hartley Act—is the labor law compromise? Most American labor scholars would probably say Taft-Hartley. After all, the Wagner Act, as Professor Karl Klare has correctly observed, “was perhaps the most radical piece of legislation ever enacted by the United States Congress.” Moreover, it is Taft-Hartley that, among other things, narrowed the definition of employee by eliminating the National Labor Relations Act’s (NLRA’s) protection of supervisors and independent contractors and diluted the union’s legal economic weapons by eliminating the secondary boycott. But the late Austro-British labor scholar, Otto Kahn-Freund, would argue that the Wagner Act was in fact a compromise by the American labor movement. As Kahn-Freund allegedly explained, “What the law giveth, the law can taketh away.” And taketh away it did—not merely via congressional amendments but via Supreme Court judgments and ultimately by the Board itself.
In his article, The Right to Improvise in Low-Wage Work, Professor Michael Oswalt supplies the latest example of a labor law scholar offering insight on how to strengthen labor rights. By focusing on the improvisational portion of the social revolution equation, he brilliantly likens the Fight-for-Fifteen and other recent social justice movements to improvisation in jazz music. He understands that talking amongst workers—comparing injustices—is necessary to harness the power of concerted activity.
This characterization allows Professor Oswalt to see three manifestations of talking amongst workers. First, he sees the legal right to talk and engage in spontaneous concerted action, a legal right that is generally protected (unless waived) under the NLRA qua Washington Aluminum. Second, he sees the normative right to combat injustice with spontaneous activity coordinated through talking—a right that Oswalt views as desirable and justifiable. Third, he gleans “in-the-moment resistance” as an essential aspect of Section 7 of the NLRA but points out that the law may not do a good job of “preserv[ing] access to in-the-moment resistance by safeguarding improvisation’s prerequisite: relationships of trust.” Oswalt thinks that the law falls short in this regard because the “key doctrine,” the employees’ Section 7 rights via Republican Aviation, in conjunction with the key limitation “working time is for work,” are antiquated.
It is worth a moment to pause here to place Oswalt’s characterization in historical context. The NLRA has stood for decades as a well-intentioned compromise whittled away by all three branches of government to a shell of its former glory. Labor law scholars have asked in vain, how do we fix this? Kahn-Freund understood the answer. Social justice must be taken; it is never fully or freely given by governments. The law serves only to ossify the privileges of the privileged, justifying rules and the need to narrow those rules to accommodate the interests of the ruling class. For the disempowered, extra-legal solutions are needed. That’s the improvise, which members of the working class themselves must supply. Inequality is the fuel necessary to wake that sleeping giant.
Oswalt spends much of his article showing how labor reformers can fortify Section 7 simply by jazzing up concerted activity. Oswalt relies on “yes-anding”—accepting what comes (yes) then “enthusiastically build[ing] on it” (and)—for workplace reform, just as jazz musicians build upon each other’s melodies while they jam. Oswalt explains his proposal as follows:
I am proposing a right, grounded in section 7, for at least two employees to spontaneously stop working for a reasonable period and leave the active floor together, probably for no more than four or five minutes. Though there would not be a hard cap on the number of breaks that could be taken during a shift, to be protected the cumulative impact on production would need to be “modest,” meaning something like perceptible but not substantial.
Professor Oswalt predicts that these improv sessions or microbreaks will build trust among co-workers, trust being a necessary foundation for successful concerted activity. The article thus appropriately analogizes workers “hanging out” at the workplace to “trusting” and “yes-anding” and characterizes such moments as the oxygen needed for worker improvisation, the spark that ignites social change.
Of course, this is true. Concerted activity is a form of expressive conduct and typically comes in the form of a grievance that when aimed at the government, would notably be protected by the First Amendment. There is no revolution—political, economic, social, or otherwise—without speech. Oswalt thus contributes to our field by highlighting the importance of these moments and clarifying that it is these moments that create the most imaginative need for successful concerted activity.
Professor Oswalt does not, however, go far enough. As Oswalt concedes, talking is already protected by the Act. But Oswalt seeks further to entrench this protection by interpreting the NLRA to protect microbreaks and, more importantly, formalizing that interpretation. That move, in turn, will predictably ossify and stifle improvisation by opening the door to Board oversight of such activity that is currently left to free market forces. This is the lesson of the Act’s deradicalization, eighty years in the making.
To be fair, Oswalt understands this point, as he spends pages recognizing that the Board and reviewing courts have to, and are apt to continue to whittle away at the scope of protected activity. His solution—microbreaks for engaging in talk and spontaneous activity—doesn’t seem to fix the problem. Indeed, the cases he cites in support of this proposition are currently on the Trump Board’s chopping block, ready to further extinguish the fires of concerted activity.
For workers’ rights to flourish, workers must be sufficiently oppressed, sufficiently bold, and sufficiently bonded to one another to understand their condition; understand that they are not alone and have the willingness to fight—perhaps because they have so little to lose. This is where workers stand today. Witness the wave of teachers’ strikes across the country. In this context, I say, forget about the Board. The Fight-for-Fifteen and other similar movements are successful precisely because they are organically generated, grass-roots grown from legitimate grievances about social injustice and inequality. For improvisation to truly transform workers lives, workers must acknowledge that they’ve already compromised enough.
While it is always fun to comb my files of recent scholarship to find things that I “like lots,” it was particularly delightful to come upon What is Sexual Harassment? An Empirical Study of Perceptions of Ordinary People and Judges by Jill D. Weinberg and Laura Beth Nielson. For one thing, it’s all in the title. If the #metoo movement and public discourse surrounding sexual abuse and harassment in and outside of the workplace have indicated anything, it has been that the future of the way that the law and society will handle sexual harassment and abuse lies in how it is perceived, both by ordinary people and by judges. The ways in which laws are written, interpreted, and applied, as well as how mechanisms outside of the legal system will work to combat this problem, will be entirely dependent on how the problem is perceived. Moreover, there is no better way to explore this problem than with an empirical study that can substantiate the observations made and the conclusions reached.
This study was propelled, as its authors recite, “by a series of empirical and normative questions,” like, for example, whether the judiciary and regular people perceive sexual harassment the same way; and whether one’s experiences and background dictate one’s detection of sexual harassment, among others. The study brings us to a better and more refined understanding of the factors that predicate where people locate for themselves the line between lawful and unlawful workplace behavior. The resulting article reports on the results of the survey-based study that aims to coordinate one’s attitudes and perceptions with one’s identity as well as professional and social situations. The article provides more than the results of the study, though. It walks its reader through a literature review on the subject of how people come to discern unlawful sexual harassment, as delineated distinctly from behavior within the parameters of the law. It also lays out, in a fair amount of detail, the research methodology employed by the researchers, as well as the results of the study and their implications. Finally, the authors explore the possibility of broadening the concept and definition of sexual harassment legally, in light of the way in which it seems to be construed and discerned by most people.
I particularly appreciated the authors’ inclusion of a plethora of slants or perspectives into deriving or explaining sexual harassment as a phenomenon. Structural power, formalized policies and procedures, and inter-sex dynamics are explored as causes and predictors of the phenomenon. I also found valuable the positing of various hypotheses as to whether and when factors like one’s personal background and/or identity characteristics impact how people conceptualize social situations like harassment. Ultimately, the authors hypothesized that “an individual’s background will shape how they respond to questions about the presence or absence of sexual harassment.” According to their forecast, “white women and people of color—individuals who are traditionally the most [a]ffected by workplace discrimination and harassment—will identify the workplace vignettes as harassment, whereas white men will not.”
At the end of the day, the study appeared to find, among other things, that lay people or “ordinary” people seem to define sexual harassment more broadly than do judges. It was interesting to see what the numbers revealed, in that the reasoned hypotheses of the researchers did not always find themselves supported by the data. The researchers reported that among their “interesting findings,” was the conclusion that “judges are less likely to classify the very same scenarios as sexual harassment than ordinary people. While this was not a formal hypothesis, these results make sense; judges are trained legal professionals who know the essential elements and the required evidence to prove these claims. However, we did not anticipate to see a nearly 20% difference between ordinary people and judges.” Interestingly, the data seemed to bolster the researchers’ hypothesis that “gender hierarchy influences both populations,” showing that “[b]oth ordinary people and judges deferred to a sociocultural model of sexual harassment where harassment constitutes the male perpetrator and female victim.
The researchers concluded, among other things, that there are three “definitional approaches” to sexual harassment: 1) the legal approach (making use of statutory language and precedent); 2) the social scientific perspective (employing a broader definition and possibly variables that are “extra-legal”); and 3) the so-called “lived experience” or “empathetic” approach (informed by an individual’s background). They also found that one’s personal background actually “had minimal impact on the determination of sexual harassment,” though women from the ordinary people sample were more likely to view the scenarios as harassment than were men. Interestingly, the researchers found “no relationship between a judge’s identity and the determination of sexual harassment.”
Overall, the exposition of the research methodology and results was fascinating. In an area in which scholars often characterize, describe, and ascribe what they believe to be the attitudes, perceptions, and approaches of both society and the judiciary when it comes to discrimination and harassment cases, and scenarios without actual data to substantiate the claims, it is downright exciting to see empirical explorations and a scientific approach recounted in a law review article. The infusion of science and data collection into this field is always welcome and valued, and the chosen topic of these researchers—the factors that inform and predict the discernment of sexual harassment by lay people and judges—could not possibly be any more relevant and salient to the national discourse on the regulation of the workplace. More legal scholarship should avail itself of available empirical data, and more legal scholars should take an interest in the type of research that these researchers have done.
Cynthia Estlund, What Should We Do After Work? Automation and Employment Law
, NYU School of Law, Public Law Research Paper No. 17-28, NYU Law and Economics Research Paper No. 17-26 (Jan. 5, 2018), available at SSRN
Reams of law review pages have been written about the effects of technological change on employment law. The typical narrative tends to portray technology as a disruptor, changing the structure of work and challenging the assumptions on which our employment law regime is built. Scheduling software, for instance, enables employers to assign workers for last-minute shifts and send them home during slow periods, creating a form of wage and hour instability that was never contemplated by wage and hour law. App-based companies build their entire business models around workers they classify as independent contractors, and yet retain some measure of labor control, putting pressure on the legal definition of “employee.”
Cynthia Estlund’s timely new working paper offers a different description of technology’s relationship to the law that both challenges and complements the narrative above. Her particular focus is automation, or the takeover of previously human-performed tasks by technology both “hard” (robots) and “soft” (algorithms). Estlund portrays automation as related to the larger trend that David Weil has labeled “fissuring,” or employers’ “flight from direct employment.” Employers might choose to hire workers through layers of subcontractors, they might convert employees to independent contractors, they might hire foreign workers in other countries, and they might replace human workers entirely with automated or machine-provided labor. In the public imagination, as Estlund points out, the shorthand for these trends might be “Uber,” “China,” and “robots.” Each of these moves reduces the number of directly employed workers, and, concomitantly, reduces employers’ legal and regulatory obligations. Instead of focusing on the effect of these moves on employment law, however, Estlund conceives of employment law, at least in part, as their cause.
In Estlund’s telling, employment law imposes costs on employers – what she labels a “legal tax on employment.” Antidiscrimination mandates tie employers’ hands in selecting their workforce; overtime requirements increase the wage bill; employment litigation sucks up large portions of employers’ budgets. Employers, therefore, will do almost anything “to avoid the costs and risks of employing human beings.” As direct employment becomes more costly, employers seek out avoidance strategies, and automation and fissuring result. The pressures of the global capital markets for ever-higher profits also incentivize avoidance, as does technology itself. (Here, technology acts both as a driver of fissuring and as an enabler of automation: communications technology enables the offshoring of labor, for example, just as automation technology replaces human workers.)
As Estlund cautions, then, some worker-friendly proposals advanced in the face of automation and fissuring that would strengthen and extend employment law’s reach may actually have a perverse effect: increasing the legal tax on employment, and therefore also increasing employers’ incentives to automate, to offshore, and to move to a more contingent and contracted workforce. In her words, “[T]his sensible response to fissuring not only fails to meet the looming though uncertain challenge of automation-based job loss; it tends to further tilt firms’ calculus away from human labor and toward machines.”
Estlund offers solutions by performing a careful inventory of the costs that employment law – writ large – requires employers to bear. She then advocates reallocating employer mandates that are not directly related to guaranteeing decent work. So, a basic minimum wage, occupational health and safety protections, and antidiscrimination obligations should remain, as they are directly related to the quality and conditions of work. However, employer-provided health insurance, and its attendant costs, should end, as should employer-funded paid family and medical leave (where it exists), as these are essentially “politically expedient off-budget ways to fund social entitlements that bear no necessary relation to employment or to work.”
To be clear, Estlund does not argue that people should lose health insurance coverage or paid leave. The opposite is true: she proposes that these benefits should extend to more people outside the traditional employment relationship, and their costs should be funded via the tax system or another non-employment mechanism. Estlund also considers ideas such as increasing the reach and impact of the Earned Income Tax Credit, and implementing various forms of a universal basic income. In sum, she envisions replacing some employer mandates with a more robust and wide-reaching social safety net, which will perform two simultaneous, salutary functions: 1) reducing the costs of direct employment, thereby also reducing employers’ incentives to automate and fissure, and 2) protecting the workers who are harmed as a result of the fissuring and automation that does occur, in the form of job loss or job degradation.
Estlund closes by acknowledging probable objections to her approach, including the ideas that employers deserve to bear the cost of some societal guarantees, that her proposals are unlikely to succeed politically, that the current state of “churn” in the labor market will ultimately produce more and better jobs, and that her proposals will do no more than tinker with employers’ incentives at the margins, without slowing the inevitable march toward automation. In the face of these critiques, she acknowledges that none of us knows with certainty how fast automation and other forms of fissuring might take over jobs or pieces of jobs as we know them. However, she makes a compelling case for taking seriously the push toward ever more precarious and automated forms of labor, and for undertaking a clear-eyed assessment of the role of employer costs – and employment law – in driving that trend. And she admirably offers practical solutions, as a way “to start somewhere, even in a context of uncertainty and intense debate” over the future of work, and the future of employment law in a world increasingly dominated by Uber, China, and robots.
Cite as: Charlotte S. Alexander, Uber, China, and Robots
(May 14, 2018) (reviewing Cynthia Estlund, What Should We Do After Work? Automation and Employment Law
, NYU School of Law, Public Law Research Paper No. 17-28, NYU Law and Economics Research Paper No. 17-26 (Jan. 5, 2018), available at SSRN), https://worklaw.jotwell.com/uber-china-and-robots/
In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”
The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.
Among the article’s most interesting points is its argument that Title VII can no longer remedy class-based subordination in the workplace given how it has been interpreted. In Dinner’s telling, Title VII’s narrow effect stems from the rise of neoliberal thought in the United States, which has created a cramped focus on anti-stereotyping and workplace efficiency. That ideology, Dinner notes, “transform[s] citizens from democratic subjects and actors into individual wealth maximizers.” That leads neoliberal institutions to ignore the broader community-based goal of moving toward a fair and equitable workplace for all and to embrace the smaller individual-based goal of less granular discrimination against and between employees. The result is an employment discrimination regime that tolerates systemic inequality and economic inequality while championing individual freedom.
Dinner suggests that if the path that labor feminists had trod and attempted to continue to walk had not been choked off by neoliberalism, Title VII could have been interpreted to eliminate class subordination in the workplace, which would have led to a structural change that guaranteed substantive equality for women and less-advantaged workers. However, neoliberalism killed that approach and left Title VII focused largely on anti-essentialist stereotyping, leaving individuals free to fight for equality inside of a fundamentally unequal employment structure.
Though the thrust of the article – that neoliberalism choked off Title VII’s promise – is undoubtedly correct, it raises what might be considered a chicken-and-egg problem. Title VII arguably was a neoliberal law when passed or, at least, was passed with neoliberal impulses. It may be exactly the type of legislation a democratic, neoliberal society in the midst of the civil rights movement would produce. Title VII’s explicit focus on anti-discrimination rather than on anti-subordination may reflect the assumption that anyone can flourish based on merit if he is unburdened by discrimination on the basis of immutable or largely fixed characteristics. Whether that vision of the world comports with reality is beside the point if the 1960s America that passed Title VII believed in it.
Still, Title VII could have been interpreted to support anti-subordination, even if it may not have been intended to be a vehicle for that purpose. Fundamentally altering the workplace is a sensible goal, but may be more easily accomplished through legislation that – unlike Title VII – is not aimed so specifically at the treatment of individuals in the workplace. Passing substantive laws that require an explicit remaking of the workplace, e.g. the Family and Medical Leave Act or parental leave laws, may be more obviously aimed at anti-subordination than a statute that explicitly focuses on anti-discrimination. However, this is more a quibble than a criticism — a neoliberal interpretation of Title VII limits its effect.
No matter my quibbles with the article, I like it because it is a thoughtful consideration of the current limitations of employment discrimination law and their causes that also forces readers to think about the possibilities of employment discrimination law. The article should be read by anyone who is casually interested in employment discrimination or fully engaged in studying employment discrimination law.
In a recent Boston College Law Review article, Employer Liability for Non-Employee Discrimination, Professor Dallan Flake (Ohio Northern) addresses a subject that has generally perplexed me as well as many employees and employers—how courts can develop a cohesive framework under Title VII to address employer liability for employment discrimination actions due to the behavior of company outsiders. In particular, I have always wondered about the usual trope that customer preference cannot be a defense in discrimination claims while recognizing that there is nothing more important to employers than the preferences of their customers. This article catalogues a host of very interesting cases describing the acts of customers and other non-employee harassers or their biased preferences that raised liability concerns for employers in discrimination claims brought by their employees. Flake’s thought-provoking discussion of these cases offers a noteworthy guide for employers developing policies with respect to discriminatory influences from outsiders.
The article argues that increasing employer involvement in the service industry has led to a number of integrated business models, including outsourcing, that pose new legal challenges when considering non-employee actions. To a large extent, the article illustrates initially how the workplace has evolved from a binary employer-employee relationship by triangulating into an employer-employee-customer relationship. As a result, employees are more likely to interact with non-employee customers or clients, vendors, suppliers, temporary employees, and independent contractors all potentially located at the same worksite. Although the analysis discussed could apply to any of these influential non-employee relationships arising within many of the newer business structures, most of the article emphasizes the challenging dynamics posed by discriminatory actions of customers.
Under Flake’s thesis, the law should not use the same standard for discrimination by non-employees as it does for discrimination by fellow employees because an employer can more easily control its own employees’ harassing behavior. Flake offers a unitary standard of reasonableness for all employment discrimination claims involving acts by non-employees that would establish employer liability under a two-pronged approach: “(1) whether [the employer] knew or should have reasonably known about the non-employee discrimination and (2) whether it acted reasonably in response to the discrimination.” (P. 1173.)
In an intriguing classification of the ways in which non-employee discrimination against employees occurs, the article divides these claims into four categories:
(1) “conscious and direct (such as when a customer sexually harassed a waitress)”;
(2) also conscious but “indirect (such as when airlines hired only female flight attendants based on customer preference)”;
(3) “unconscious… directly, such as when restaurant diners unintentionally tip black servers less than white servers”; and
(4) also unconscious but “indirectly, such as when customers give implicitly biased feedback to employers that is then used to make employment decisions.” (P. 1174.)
The article also highlights how different analytical constructs may apply to these categories of claims. For harassment, an employer can be liable if it has actual or constructive knowledge of the non-employee’s behavior unless the employer shows that it promptly and reasonably acted to end the harassment. For an employer to prevail when subjected to a claim of customer-based preference as indirect discrimination, it must show that its actions were justified by a bona fide occupational qualification (BFOQ) necessary to the essence of the business. For unconscious discrimination, either directly from customers’ unintended actions or indirectly based upon customers’ hidden biases as submitted or inferred, an employer would need to establish that its actions were job-related and consistent with business necessity. Flake believes that these different approaches to dealing with non-employee discrimination have created confusion and fragmentation warranting a unitary standard requiring knowledge and reasonableness in responding as components related to establishing employer liability.
The article does not devote much detail to the inability of employers to control outsiders as compared to its own employees. In continuing explorations of these topics, it might be helpful to examine in more depth whether current employment discrimination analysis operates more as a shield for employer liability without the need for more flexible employer defenses. For example, one might question whether employees have the resources to bring claims challenging an employer’s systemic discriminatory decisions as being based upon customer preference or resulting in a disparate impact. Most discrimination claims tend to be focused on the treatment of individuals by their employers with employees facing difficult burdens of persuasion. Nevertheless, this article makes an important contribution by identifying how customers’ discriminatory preferences based upon unconscious bias might, at a minimum, require a more nuanced analysis regarding employer liability.
Furthermore, Flake asserts that any distinctions or difficulties in an employer’s ability to control the different actors may be covered within the reasonableness standard he suggests. That standard applies equally in cases involving both employee and non-employee harassment. The actual analytical changes imposed by the suggested unitary standard and its knowledge requirement would arise in intentional discrimination cases involving customer preferences and BFOQ claims that were not blatantly discriminatory when addressing concerns of privacy, safety, or authenticity. More provocatively, this unitary standard would also add an employer knowledge requirement in cases based on a disparate impact claim related to customer evaluations, a result possibly “unpalatable to some” as Flake has conceded. (P. 1215.) Apparently, he will address this issue more specifically in his next article, cited in footnote 88, When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? (forthcoming in the Minnesota Law Review in 2018).
Even if you do not agree with Flake’s assertion that lesser control over non-employees who discriminate and the challenges of identifying unconscious discrimination warrant a more flexible analysis requiring knowledge before employers become liable for intentional customer-preference discrimination or disparate impact, the article is an engaging read because of the creative way in which it chronicles the riveting theories of non-employee discrimination developed from the cases. Also, the article shines an important light on customer preference cases that may involve unconscious bias. Given the lack of scholarly attention to this subject, the article initiates some crucial steps in understanding the analytical development of employer liability related to the discriminatory behavior and preferences of influential outsiders.