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Has the Meaning of “Because of” Finally been Solved?

D'andra Millsap Shu, The Coming Causation Revolution in Employment Discrimination Litigation, __ Cardozo L. Rev. __ (forthcoming 2022), available at SSRN.

Two simple words, “because of,” are at the heart of most anti-discrimination statutes, which preclude employers from taking adverse action because of a protected characteristic. Two simple words. Yet, the myriad attempts by courts and commentators to make sense of these two simple words has appropriately been referred to as a “morass,” a “jungle,” and a “quagmire.”

There have been two battlegrounds. First is the question of which causal standard applies. Does the phrase refer to “but for” causation? “Motivating factor” causation? “Primary” or “predominate” causation? “Substantial factor” causation? “Sole” causation? Some combination of these? Or something else? Second–and the focus of Professor Shu’s article, The Coming Causation Revolution in Employment Discrimination Litigation–is that even when courts seem to agree on a standard, such as “but for,” they seem unable to agree on what that standard means. Now that the Court appears to have coalesced around the idea that “because of” generally refers to “but for” causation (even if some scholars might still argue for other standards), Professor Shu convincingly argues that the second battleground – over the meaning of “but for” – is the most important one.

My first question, as a scholar of causation, might be: How can people disagree over the meaning of “but for”? This concept, also known as “necessity,” has been with us since the time of the ancient Greek philosophers. It asks whether, if you remove Factor X, the event in question would still have occurred. If the answer is no, then Factor X is a “but for” cause of the event (or “necessary” to the occurrence of the event).

But never underestimate the ability of employment lawyers, professors, and courts to mess things up.  And Professor Shu makes the case that our crowd managed to create uncertainty over the meaning of “but for,” with some pretty serious consequences.

The confusion has to do with a third word that the Gross court added to the phrase “because of.” Gross may be best known for equating “because of” with “but for” causation. But instead of saying that the ADEA required plaintiffs to prove that age was a “but for” cause of the adverse employment action, the Court said that plaintiffs need to show that age was the “but for” cause of that action. This may have been a mistake, or it may have been a backhanded attempt by the Court to invent a narrower version of “but for.” But as Professor Shu points out, the Court’s addition of the word “the” to “but for cause” added to the confusion in the causation arena, prompting several courts to assume (incorrectly) that there can be only one “but for” cause, and therefore effectively applying a “sole cause” standard in anti-discrimination cases. (“Sole cause” is much more restrictive than “but for.”)

This back-door “sole cause” test wrought havoc on cases with multiple causes – including those in which plaintiffs plead alternative theories (such as race or retaliation), those in which plaintiffs allege intersecting causes (such as age and sex), and even McDonnell-Douglas pretext cases in which the defendant was able to offer a single unrebutted legitimate reason for the adverse employment action.

Professor Shu makes the optimistic argument that the Supreme Court has now fixed this problem in Bostock. Though Bostock is known as the case that held that sex discrimination includes discrimination on the basis of sexual orientation and gender identity, Professor Shu focuses on its “but for” reasoning: that sex is a “but for” factor in sexual orientation or gender identity discrimination. In reaching that conclusion, Justice Gorsuch provided a mini-class on “but for” causation, emphasizing (correctly) that there can be – and often are – multiple “but for” causes of a decision. Not only does he debunk the idea that there can be only one “but for” cause, he makes painfully clear that the statute (Title VII, in that case) does not require “sole causation,” and that “but for” is the exclusive standard. For example, he makes clear that there is no “primary” or “predominant” cause requirement.

Professor Shu argues that Justice Gorsuch’s lesson in causation is completely clear and, perhaps more importantly, that it applies to any statute for which the Court has adopted its default “but for” standard.  In other words, in any employment case involving “but for” causation, courts should now have a roadmap that lets them avoid the pitfalls of “sole cause,” “primary cause,” or any other distraction. I love her optimism, and I hope she is right (though she notes that at least one court–the 6th Cir.–has continued to hold to the Gross-induced idea that “but for” somehow means “sole cause.”)

The article is unabashedly doctrinal, though with a good understanding of and integration of the normative literature in the field. It identifies an important but underappreciated problem caused by an unheralded part of Gross, and a solution grounded in an unheralded part of Bostock.

Some of the many reasons to read Professor Shu’s new article include:

  • A laser-like focus on “but for” causation. Many scholars have argued, based on normative and/or doctrinal reasons, that “but for” should be replaced by another standard, such as “motivating factor.” But Professor Shu argues persuasively that this boat has sailed; the Court has chosen “but for.” So we would do best to focus on making sure that the courts get “but for” right. She also includes a nice summary and interpretation of some empirical work suggesting that when judges and juries fully understand “but for” – and distinguish it from “sole cause” – they can and do find for plaintiffs in appropriate cases.
  • An excellent typology and explanation of the stakes when the courts get “but for” wrong. Perhaps most important in her list is the concept of intersectionality, which, though well theorized, can quickly become a victim of bad causal reasoning. Additionally, she explains how bad causal reasoning can quickly derail McDonnell-Douglas pretext cases, erroneously allowing defendants to win if they advance a single unrebutted reason for their actions.
  • A good explanation of how courts have been confused by – or perhaps simply resistant to – Justice Gorsuch’s attempt to clarify “but for” in Bostock, along with a good argument for why this clarification should apply in “but for” cases under all statutes; that it makes little sense to think of Bostock’s “but for” lesson as being limited to Title VII.

Perhaps what I like best about Professor Shu’s article is its reflection of her optimism. She believes that a clear, cogent explanation of “but for” by one of the top jurists in the country not only should, but just might, clear up the confusion in this area. Optimism is good. (Said the optimist.)

Cite as: Martin J. Katz, Has the Meaning of “Because of” Finally been Solved?, JOTWELL (July 18, 2022) (reviewing D'andra Millsap Shu, The Coming Causation Revolution in Employment Discrimination Litigation, __ Cardozo L. Rev. __ (forthcoming 2022), available at SSRN),

Behind the Myths: Paving the Way for Real Redress of Sexual Harassment and Sex Discrimination in the Workplace

Pat K. Chew, Hiding Sexual Harassment: Myths and Realities, 21 Nev. L.J. 1223 (2021).

Pat K. Chew’s Hiding Sexual Harassment: Myths and Realities exhorts the reader to view sex discrimination’s and sexual harassment’s invisibility as being among their most nefarious attributes. This piece is convincing and thought-provoking. As the #MeToo movement hits a crossroads, this article deserves to be centered in the literature, and in any discussion of workplace sex discrimination and sexual harassment.

The article is organized as a series of myths: “Sex discrimination is no longer prevalent,” “Sexual harassment is no longer prevalent,” and “Sexual harassers are stopped and punished,” and upon reflection, it does appear that these are still widely-held societal beliefs. By probing into why these beliefs persist despite so much evidence to the contrary and into how they operate to obscure and amplify the harm caused by sex discrimination and sexual harassment, this piece yields a novel angle from which to confront these problems.

Of particular note is the author’s stating outright as her premise something that very much bears iteration: despite the much-lauded #MeToo movement and the heralded progress it has made in the headlines, this is just the proverbial “tip of the iceberg,” when it comes to truly ending this scourge on the American workplace. From there, Professor Chew’s handling of the three myths is rich in both its approach and its conclusions, one of the most powerful being that “harassed employees are disadvantaged at every stage of the reporting and resolution process, often leading to their frustration and failure.”

Myth number one, that sex discrimination is no longer prevalent, is, as the author notes, a widely-shared belief, but completely untrue. Professor Chew demonstrates this after concretizing notions of “discrimination,” as specifically: 1) pay disparities between the sexes; 2) the underrepresentation of women in whole career categories and spaces; and 3) microaggressions that women must disproportionately endure in the workplace. I really enjoyed Professor Chew’s discussion of the narrative that has emerged that the American workplace is somehow “post sex-discrimination,” and her probing and interrogation of that narrative.

According to Professor Chew, the commonly upheld narratives that 1) “there are natural and appropriate roles for women and men that justify discrimination in the workplace;” and that 2) “that it is just a matter of time for women to achieve parity and that it is largely up to women to do so,” serve to engender a complacency and even a denial of reality that harms women as a group. This articulation really hits the nail on the head, especially the first one, which invokes the idea of the “ideal worker,” whose attributes are at odds with those of the societally-held conception of the “ideal woman.” These narratives deserve aeration and probing.

The second myth, that sexual harassment is no longer prevalent, receives similarly thorough and eye-opening treatment. As with the first myth Professor Chew assembles the latest and greatest literature on the subject, adding her own illustrations and insights to illuminate and spark thought. The role of sex segregation in the workplace and the role of power disparities in engendering harassment are set forth and richly illustrated with caselaw. Professor Chew also establishes the interrelatedness of sexual harassment and sex discrimination in a way that is pointed and powerful.

The third and final myth explored in this piece, that “sexual harassers are stopped and punished,” is just as crucial to interrogate as the first two myths. After establishing that harassers are too often given license to become recidivists, Professor Chew breaks down the root causes of this phenomenon: victims failing to report harassment, the obstacles and impediments erected in victims’ paths by the litigation process (everything from stacked legal standards to the potential for retaliation from all angles), and arbitration’s disadvantaging victims in various ways. Illustrations animate and inform Professor Chew’s points in this well written, well-researched piece that ought to spark much conversation and thought.

In sum, it is crucial that we interrogate and eviscerate the rationalizations that drive complacency when it comes to sexual harassment and sex discrimination in the workplace. This piece identifies powerful forces that engender and perpetuate both workplace sexual harassment and sex discrimination. It also critiques the view that we, as a society, have somehow moved past these problems and that those responsible for them have been stopped.

Moreover, it furnishes proposals at its conclusion that are as worthy of consideration as they are ambitious. Centered around closing the loops of the aforementioned disparities in the workplace and reconciling society with the falsities embedded in so many of its popularly-held narratives, these proposals are concrete and detailed. This piece is a much-needed wakeup call, replete with the research, insights, and conclusions that everyone who cares about workplace equality ought to be focused on right now.

Cite as: Kerri Lynn Stone, Behind the Myths: Paving the Way for Real Redress of Sexual Harassment and Sex Discrimination in the Workplace, JOTWELL (June 15, 2022) (reviewing Pat K. Chew, Hiding Sexual Harassment: Myths and Realities, 21 Nev. L.J. 1223 (2021)),

More Just, More Efficient Workplace Regulation

Hiba Hafiz, Interagency Coordination on Labor Regulation, 6 Admin. L. Rev. Accord 199 (2021).

Dozens of administrative agencies regulate American workplaces. Yet, those agencies often fail to coordinate to their full potential, leaving workers and employers without efficient and just labor market regulation. For example, consider the 2015 memorandum of understanding (MOU) between the EEOC and the DOJ’s Civil Rights Division regarding ADA and GINA charges against state and local governments, which clarifies the jurisdiction of the respective agencies, but fails to establish a mechanism for sharing information between them. On the other hand, the MOU between the DOL and the DOJ regarding criminal prosecutions of workplace safety laws from the same year establishes an information-sharing mechanism, but fails to coordinate interagency investigation and enforcement efforts. Neither commits to interagency consultations, compliance reviews, or research initiatives.

Should they? How are federal labor market regulators coordinating, and what might ideal coordination look like? Professor Hiba Hafiz’s new essay, Interagency Coordination on Labor Regulation, answers those questions with the support of untold legal histories, administrative law doctrine, and a remarkable empirical analysis. She assesses how these regulators coordinate in haphazard, ineffective ways—like long-time business partners slowly hammering out, over the span of decades, how to best work together when they could have sat down and established the framework for an efficient working relationship years earlier. Having explicated the problem, she concludes by identifying some best practices and offering a normative proposal for agencies to benchmark the effectiveness of their coordinating efforts. In my estimation, Hafiz’s essay is that rare piece that not only identifies a problem that has not been given proper attention, but also proposes a salve that would make regulation more just and more efficient at the same time.

Hafiz begins by untangling the history of interagency coordination of labor regulation, which predominantly has been achieved via MOUs. Shockingly, to me at least (and probably to many others in my generation who only began to first study workplace law during the Obama Administration), interagency coordination of labor regulation began in the Nixon Administration as a tool of deregulation. For instance, Nixon- and Ford-era interagency coordination sought to: (a) delimit agencies’ jurisdictional boundaries so businesses wouldn’t be regulated by competing forces; and (b) mandate a centralized review of significant regulations to minimize unnecessary and burdensome overlap. Future Republican administrations largely mirrored this approach, whereas Democratic administrations leveraged interagency coordination for pro-regulatory ends such as the Obama Administration’s “expansive use of MOUs to ensure interagency coordination on worker protections and labor market regulation”—part of its broader “system of ‘strategic enforcement’ to prioritize high-propensity violators.” (P. 218.)

This history is a law-reform goldmine. Trying to convince a conservative regulator to pursue interagency coordination? Talk up its deregulatory merits. Progressive regulator? Talk up its utility as a tool for strategic enforcement. Indeed, interagency coordination is often both at the same time, as with Obama-era initiatives to streamline investigations and coordinate referrals between agencies, which was simultaneously deregulatory (because it decreased regulatory overlap) and a conduit for strategic enforcement (because it “target[ed] policy priorities in a range of underregulated areas or areas where workers were particularly vulnerable”). (Pp. 218-20.) Consolidating this complex history into a few digestible pages not only offers an expansive menu of options for interagency coordination, but also demonstrates that such efforts can serve seemingly-discordant ends. While I fully recognize that others might value the history that Hafiz has marshaled here out of intellectual curiosity, a desire to be exposed to different perspectives, or to leverage that history in furtherance of legal arguments, I found it most beneficial as a means of highlighting the sorts of external pressures that can effectively shape regulation.

Subsequently, Hafiz analyzes 112 examples of interagency coordination (e.g., MOUs) in an effort to identify best practices like “joint enforcement, joint investigation, and information-sharing.” (P. 228.) She then concludes by proposing six policy considerations that ought to drive benchmarking of the effectiveness of interagency coordination. Grading agencies, as Hafiz has, on the extent to which they effectuate the purposes underlying marquee workplace laws is ideal. It helps further Congressional intent and, therefore, mitigate against the common critique in both administrative law and workplace law circles—a critique levied with renewed zeal in the wake of the Supreme Court striking down the Biden Administration’s flagship workplace vaccine-or-test mandate in National Federation of Independent Business v. Occupational Safety and Health Administration—that the regulation of workplaces by unelected agencies is undemocratic.

If laws are like sausages (it’s better not to see them being made), I can only imagine what metaphor might appropriately describe regulations. At present, regulating the workplaces is a complex and dirty affair. Overlapping and underlapping jurisdictions. Opaque policies and practices. Fragmented approaches. Entropy. Into that morass, Hafiz’s essay deftly shines a light. And, more than that, she offers sound solutions for how to clean it all up.

Cite as: Ryan Nelson, More Just, More Efficient Workplace Regulation, JOTWELL (May 17, 2022) (reviewing Hiba Hafiz, Interagency Coordination on Labor Regulation, 6 Admin. L. Rev. Accord 199 (2021)),

Employer Accountability for Diversity Measures in a Time of Racial Reckoning

Veronica Root Martinez and Gina-Gail S. Fletcher as co-authors of a Yale Law Journal Forum essay, Equality Metrics, as well as Katrina Lee as an author of a Denver Law Review article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, have 2021 papers that offer excellent reads and make important contributions to the discussion of ways to evaluate and hold employers accountable for their diversity commitments to their employees. In recognizing that employers have a responsibility to deliver results in response to their diversity commitments, the paper by Martinez & Fletcher and the paper by Lee both focus on transparency and accountability by seeking measurable means to determine diversity successes in the workplace.

Martinez and Fletcher focus on corporate entities of all types and Lee focuses on law firms. Both employer groups responded with increased diversity commitments and training efforts in support of the Black Lives Matter movement when heightened concerns about systemic racism arose after the senseless killing of George Floyd in July 2020. With the resulting backlash toward workplace diversity training after an Executive Order by President Trump and related initiatives, the importance of measuring diversity consequences became a key issue for 2021 that both papers seek to address.

In Equality Metrics, Martinez and Fletcher assert that there are specific and concrete steps that institutional investors may take to make sure corporations adopt what they refer to as “equality metrics” that disclose the current demographic diversity of their workforces as well those of related businesses within their supply chain and identifiable measures to meet improved racial equity goals. The co-authors acknowledge that many corporations had responded to George Floyd’s death through statements that involved “performative actions that met the moment without doing more” or without “actions likely to create sustained, meaningful change throughout their organizations.” As a response, their paper focuses on “starting at the top” to make changes by having institutional investors use their power and influence as an incentive for corporations to be accountable for their diversity pledges.

Martinez and Fletcher note that institutional investors possess “approximately eighty percent of the outstanding equity in the top 500 companies.” Although corporations and investors have historically shied away from taking positions on controversial social issues, the co-authors suggest that changing societal expectations have led to corporations taking more public and progressive stances on environmental, social, and governance matters.

In particular, the co-authors highlight as a key example the actions taken in 2020 in response to the Black Lives Matter movement by institutional investor BlackRock, the world’s largest asset manager. BlackRock provided transparent information about its workforce diversity along with concrete goals on how it intended to increase Black representation at various levels within its organization. But, BlackRock went further by also asking corporations that it invests with to publish specific diversity data.

The co-authors also explained that their solution of relying on institutional investors to encourage corporations to make voluntary disclosures and chart specific measures for diversity success represents an alternative to using an external regulatory source such as the Securities Exchange Commission (SEC) which has issued a rule seeking some disclosure of diversity information. They note that there are some limits and doubts as to whether the SEC may mandate corporate diversity actions.

Finally, in what I consider the most important aspects of the co-authors’ arguments, they explain how the pressure by institutional investors to encourage more transparent data on diversity demographics and to seek more specific measures to deliver concrete results will have a synergistic effect on other market participants in addressing systemic workplace discrimination based on race. Specifically, they assert that creating a database of information “measuring a firm’s current state of demographic diversity, setting a goal, measuring the firm’s progress toward that goal in light of the strategies it employed” can lead to identifying broad and “valuable insights for not only the firm itself, but also for the market more generally.”

This data set can establish a baseline for more comprehensive empirical analysis as to what measures are successful and those measures proving to be ineffective. Also, this transparent database of “equality metrics” can guide institutional investors and lead to changes in corporate behavior while debunking critics who do not accept the existence of any systemic discrimination and challenge any diversity efforts as being unnecessary and discriminatory.

Likewise, Lee pursues the same agenda of making employers more transparent in providing diversity data and being held accountable for their diversity pledges. Unlike corporate entities, Lee focuses on large law firms in her article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, Lee describes how large law firms in the United States responded to the killing of George Floyd and also Breonna Taylor in 2020 by “issuing statements acknowledging systemic inequities and bias” while also pursuing “their commitment to diversity and inclusion, and to racial justice.”

In noting that large law firms in the partnership ranks “remain very white and very male,” Lee seeks to discover a mechanism that “holds large law firms accountable for perpetuation of systemic discrimination.” Lee proposes that states should modify attorney ethics rules of professional conduct to require diversity transparency in pay practices, measures for self-assessment in obtaining milestones, and financial incentives to obtain compliance. Specifically, Lee seeks to modify Rule 8.4(g) of the ABA Model Rules of Professional Conduct and corresponding state ethics rules concerning discrimination and harassment in the legal profession.

In pursuing this objective, Lee catalogs the significant history of systemic bias and gender discrimination by large law firms in their partnership compensation decisions. Lee then explains how numerous initiatives aimed at increasing diversity and inclusion have failed in improving the representation of women and women of color at the partnership level. Lee asserts that current attorney ethics rules including Rule 8.4(g) regarding discrimination and harassment merely operate as “window-dressing . . . with no disciplinary force” to make law firms accountable to address terms and conditions including salary disparities. As a response, Lee argues for changes through a combination of state legislation and state modifications of the adopted Model Rules to mandate specific policies and procedures that law firms must comply with or face ethical sanctions.

In particular, and what is most salient to the issues identified in this Jot, Lee’s proposal would require large law firms to provide transparency in pay information decisions and a self-assessment and reporting of progress in achieving stated milestones developed by either the state supreme court or by the ABA in its model rules as adopted by the states. The firms must report mean and median pay data across the law firm, including for both associates and partners, and also provide the gender and racial make-up of those assessing partner compensation. The milestones might include “bias-interrupting suggestions [to] include instituting a formal succession planning process; annualizing billables based on the average of months the attorney was at work; and accounting for a ramp-up and ramp down period.” Lee views the self-assessment information as being extremely helpful in educating all firms in compliance with the diversity-related goals of the firm that have to involve more than just diversity training.

Lee ends her proposal by suggesting that there must also be a financial incentive for firms to comply with the transparency goals to achieve diversity and inclusion and to take efforts to meet established milestones. Such financial incentives might encompass payment of an administrative fee subject to refunding when goals are met or having state authority to punish non-complying firms with a donation as a financial penalty.

Lee recognizes that there are barriers to state adoption of her proposal including a lack of state resources, a need for law firm autonomy, unintended harms to lawyers in underrepresented groups due to financial penalties that may end up providing less opportunities for advancement, and the current problem that many states have not even adopted Rule 8.4(g) and would be even more unwilling to do so with the modifications Lee suggests. Lee argues, however, that law firms and their leaders who have heartfelt concerns that led them to adopt diversity pledges in response to the Floyd and Taylor deaths in 2020 will be helped by having state bar disciplinary bodies as an enforcing function when responding to those who object to their diversity pursuits.

As the papers by Martinez and Fletcher and by Lee highlight, employers must be incentivized to meet the need for transparent data aimed at adopting successful measures to achieve diverse workplaces. Regardless of whether their suggestions of using institutional investors or state ethics rules will result in the development of such transparent data will be a question for future development. These papers have independent and immediate importance by clarifying how necessary it is to find ways to obtain this data in the midst of employer responses to a desire for a racial reckoning in our society related to Black Lives Matter and related 2020 deaths. With little indication that diversity training and other related initiatives have moved the needle in any fashion in accomplishing key racial improvements in the workplace, these papers unearth different methods to provide employer transparency regarding their diversity results.

By also seeking to provide transparency about self-assessment of various measures, this Jot emphasizes the significant value presented by both papers in seeking to establish key databases that will assist with ongoing empirical assessments to address systemic workplace discrimination. Then employees will have the benefit of employing tools to measure and hold employers accountable for their diversity commitments rather than being subjected to empty statements and useless actions.

Michael Z. Green, Employer Accountability for Diversity Measures in a Time of Racial Reckoning, JOTWELL (June 14, 2022) (reviewing Veronica Root Martinez & Gina-Gail S. Fletcher, Equality Metrics, 130 Yale L.J. Forum 869 (2021).; Katrina Lee, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, 98 Denv. L. Rev. 581 (2021).),

Collective Bargaining Without the Protection of Labor Law

Cynthia Estlund & Wilma Liebman, Collective Bargaining Beyond Employment in the United States, 42 Comparative Labor Law & Policy Journal __ (forthcoming, 2021), available at SSRN.

A conventional (and oversimplified) account describes U.S. work law as a mix of two regulatory structures: the labor law model and the employment law model. In the labor law model, law facilitates workers to act collectively to negotiate from a position of relative equality over any terms they and their employer consider important. The labor law model allows flexibility to address the different needs of different industries and minimizes judicial and agency intervention. In the employment law model, law imposes minimum conditions to protect workers regardless of whether they negotiate collectively. This model protects numerical minorities whose right to fair treatment will not be protected by the majority through collective bargaining; it protects those unable or unwilling to unionize; and it protects the interests of the public in ensuring that no individual or collective labor contract falls below certain minimum standards.

Companies determined to avoid both of these regulatory regimes have found a boon in classifying their work force to be nonemployees. Presto: no need to comply with the myriad employment laws, and no legal right to unionize! And, faced with the possibility that workers might unionize even without any legal protection, they invoke antitrust law – presto, collective action is not only unprotected, it is illegal! App-based ride hailing or delivery companies have been leaders in this strategy. Using technology, Uber, Lyft, DoorDash, and other companies have figured out they can have all of the benefits of a huge, centrally-managed, on-demand fleet of drivers and none of the costs. Without any employment protections or the power to bargain collectively, app-based drivers endure wages well below the federal minimum wage of $7.25 on hour, and no social insurance of any kind.1

In some blue states and cities, worker advocates turned to legislation to secure protection denied to independent contractors under federal law. When Seattle, through a combination of state and city legislation, created a system allowing collective representation for drivers, the Chamber of Commerce destroyed it through protracted antitrust litigation.2 When the California Supreme Court and Legislature both extended many state employment protections to all workers, the app-based service companies spent over $200 million to secure adoption of a wildly misleading ballot initiative (Proposition 22) wiping out those protections.3 A hidden term in that measure—one buried so deep in fine print that the nonpartisan legislative analyst failed to mention it in the voter information pamphlet—prevents the Legislature from authorizing any collective representation. The obvious and only purpose of that hidden provision is to enable the app companies to use federal antitrust litigation against any drivers or unions that might seek to organize and negotiate collectively. Litigation challenging the validity of various aspects of Proposition 22 is now in the California Court of Appeal, after worker advocates won a trial court ruling that the initiative violates California constitutional restrictions on the permissible use of legislative initiatives.4

Surveying the law that has led us to this situation and the welter of state and local efforts to address it, Cynthia Estlund and Wilma Liebman offer a crisply-written and clearly-argued analysis in Collective Bargaining Beyond Employment in the United. They explain how the field of work law in the United States has returned almost to where it was during the dark days of Jim Crow and the Gilded Age. Workers theoretically have legal rights, but companies use a combination of one-sided contracts, with class action waivers and arbitration agreements, and the threat of antitrust litigation to ensure that workers actually have no rights.

This article is an ideal source to use in a work law and policy seminar or as an overview for anyone curious about the state of the law and of political organizing to combat the deregulatory use of misclassification and the corporate turn to antitrust to thwart state or local efforts to address misclassification.

The article begins with an admirably clear explanation of the use of antitrust law to prevent collective action by “self-employed” workers. They point out that workers “are reenacting on a much smaller scale the pre-New Deal history of organized labor in the United States” when corporations and sympathetic courts wielded antitrust law as a powerful weapon against worker organizing.5

Estlund and Liebman then explore three “safe harbors” from antitrust liability for self-employed workers. First, they briefly explain the so-called “labor exemption” from antitrust. This is the argument that both the 1914 Clayton Act, which amended antitrust law to exempt labor actions from antitrust liability, and the 1932 Norris-LaGuardia Act, which stripped federal courts of the power to enjoin “labor disputes,” protected from liability any worker collective action over working conditions, not just the activities of “employees.” Thus, as Estlund and Liebman explain, section 20 of the Clayton Act prohibits the application of antitrust law to “prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor …, or from recommending, advising, or persuading others by peaceful means to do so.” And the Norris-LaGuardia Act strips jurisdiction from courts to issue injunctions or other relief in “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” They explain, relying in part on the Supreme Court’s recent construction of the 1925 Federal Arbitration Act, that in the early twentieth century a clear distinction between employees and independent contractors did not yet exist, and the term employment was used “more or less as a synonym for work,” and “[a]ll work was treated as employment, whether or not the common law criteria for a master-servant relationship happened to be satisfied.”

The second antitrust safe harbor is the First Amendment. Although the Supreme Court has denied First Amendment protection for concerted labor activity that is “coercive” or motivated by financial self-interest, however those are defined, it has under the Noerr-Pennington doctrine sheltered from antitrust collective lobbying for government action.

Finally, the article brings much needed clarity to the state action exemption from antitrust liability. A state can authorize anticompetitive activity if its policy is clearly articulated and if the state “actively supervises” the regulatory framework that authorizes anticompetitive activity. This exemption has been at issue when, as in Seattle, state or local governments have created collective bargaining rights for workers excluded from federal labor law. And it is the threat that Proposition 22 hangs over incipient organizing.

The second part of the article (“Experiments in Collective Bargaining Beyond Employment”) surveys the efforts (mainly on both coasts and in other blue areas) to find legal and organizing strategies for legislating and bargaining minimum labor standards for “non-employee” workers. A central choice worker organization leaders face is whether to accede to the companies’ adamant insistence that any collective bargaining must accept the premise that the workers are independent contractors (as the Machinists did when agreeing to a limited form of collective representation of New York for-hire drivers in 2016), or whether to push for employee status (as labor did in California until Proposition 22 wiped away labor’s win). This is an issue that has divided the labor community and, as Estlund and Liebman forthrightly show, there are good arguments on both sides of that debate within the house of labor.

One approach has been to push for state legislation creating a sectoral bargaining framework for drivers regardless of their employee status. The article describes legislative efforts in Connecticut and New York to achieve this. Although neither legislature has yet passed such a bill, it is clear that states can create collective bargaining rights for workers excluded from the NLRA. California did exactly that for farmworkers when it enacted the Agricultural Labor Relations Act in 1975, and other states did so too. Although agribusiness sued to invalidate the ALRA, and the United Farm Workers challenged Arizona’s more anti-labor agricultural labor relations act, in both instances asserting that Congress intended, when excluding farmworkers from the NLRA, to prevent collective bargaining, state and federal courts rejected the challenges to the ability of states to regulate farmworkers excluded from the NLRA.6

Another approach that Estlund and Liebman consider is for states to create tripartite standards-setting boards composed of representatives of workers, employers, and the public. As Estlund and Liebman point out, tripartite negotiated labor standards-setting is common outside the U.S. and was used in the U.S. during both World War I and World War II. Tripartite negotiated regulation is also common in areas of law other than work. As Kate Andrias pointed out in her seminal work that has revived interest in tripartite sectoral bargaining, many states have tripartite boards in various sectors.7 California has them for regulating energy, public utilities, water, and for the state’s 840 miles of coastline, and is considering legislation that would adopt a tripartite board in the franchised fast-food sector.8 Seattle created a tripartite sectoral bargaining framework in 2018 for in-home care and cleaning work.9

There is a bitter irony in reading an article by a leading scholar of labor law and the former Chair of the National Labor Relations Board that pays zero attention to the elegant structure of the federal labor law in which they have long worked. It’s a sign of how broken our legal system is that federal labor law experts must turn their back on that law and dig deep into both antitrust law and state and local law to find a path to legal protection for some of the poorest and most exploited workers in the world’s wealthiest country. As the authors acknowledge, millions of workers in the U.S. are designated as non-employees. Their article focuses on a single slice of them—those working for app-based driving and delivery services—because the handful of fantastically wealthy companies that dominate that space have acted as the most rapacious capitalists in driving down labor prices for their predominantly nonwhite and immigrant workforces, buying legislative dominance, and resorting to antitrust litigation to invalidate the few protective laws that manage to elude their legislative and litigation juggernaut. But the intriguing story told in this article is that there is a path forward.

  1. See Ken Jacobs & Michael Reich, The Uber/Lyft Ballot Initiative Guarantees Only $5.64 an Hour, UC Berkeley Labor Centere and UC Berkeley Center of Wage and Employment Dynamics (2019); Veena Dubal, The Drive to Precarity: A Political History of Work, Regulation, and Labor Advocacy in San Francisco’s Taxi and Uber Economies, 38 Berkeley J. Emp. & Lab. L. 73 (2017).
  2. Chamber of Commerce v. City of Seattle, 890 F.3d 769 (9th Cir. 2018).
  3. Dynamex v. Superior Court, 4 Cal. 5th 903 (2018).
  4. Castellanos v. State of California (Cal. Super. Ct. Aug. 20, 2021), available at; Prop. 22 Backers Appeal Ruling Striking California Gig Work Law, Daily Lab. Rep. Sept. 22, 2021,
  5. See, e.g., Lawlor v. Loewe, 235 U.S. 522 (1915).
  6. Agricultural Labor Relations Board v. Superior Court, 16 Cal. 3d 392 (1976); United Farm Workers of America, AFL-CIO v. Arizona Agricultural Employment Relations Board, 669 F.2d 1249 (9th Cir. 1982). See generally Michael H. LeRoy & Wallace Hendricks, Should “Agricultural Laborers” Continue to Be Excluded from the National Labor Relations Act? 48 Emory L.J. 489 (1999) (arguing that there is no policy reason to exclude farmworkers from NLRA).
  7. Kate Andrias, An American Approach to Social Democracy: The Forgotton Promise of the Fair Labor Standards Act, 128 Yale L.J. 616 (2019); Kate Andrias, The New Labor Law, 126 Yale L.J. 2 (2016).
  8. Catherine L. Fisk & Amy Reavis, Protecting Franchisees and Workers in Fast Food Work, American Constitution Society Issue Brief (December 2021).
  9. Seattle Mun. Code §14.23 (2018). See Ken Jacobs, Rebecca Smith & Justin McBride, State and Local Policies and Sectoral Labor Standards: from Individual Rights to Collective Power, ILR Review (June 2021). Doi: 10.1177/000197939211020706.
Cite as: Catherine Fisk, Collective Bargaining Without the Protection of Labor Law, JOTWELL (April 12, 2022) (reviewing Cynthia Estlund & Wilma Liebman, Collective Bargaining Beyond Employment in the United States, 42 Comparative Labor Law & Policy Journal __ (forthcoming, 2021), available at SSRN),

Public Accommodations, Public Perceptions, and Workplace Law

Doran Dorfman, [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, 10 UC Irvine L. Rev. 557 (2020).

In [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, Professor Doron Dorfman performs a superb analysis of the issue of accommodations for individuals with disabilities and the perception and attitudes of the public with respect to these accommodations.

The Americans with Disabilities Act (ADA) requires, under federal law, that those individuals with disabilities be provided with reasonable accommodations that do not cause undue hardship. The accommodation provisions of the ADA are wide-ranging, and cover both public and workplace accommodations. Though Professor Dorfman’s analysis in this paper is largely in the public accommodation context, the research is directly applicable, and important to, workplace issues and employment.

In this piece, Professor Dorfman looks at the many types of accommodations to which those with disabilities are entitled under federal law, and explores how nondisabled persons may perceive that these types of “special rights” are being abused. More specifically, he examines the perception by some that these accommodations are unnecessary or are being exploited, resulting in the (phrase coined by Professor Dorfman), “fear of the disability con.” In this paper, Professor Dorfman examines how these types of concerns by nondisabled members of the community can begin to erode trust in the ADA, as well as subject individuals with disabilities to both harassment and questions about their protected status.

In performing this analysis, the paper draws from an online experiment performed by the author involving 3,200 Americans on the topic, as well as numerous qualitative interviews. The results of this study were fascinating. Indeed, Professor Dorfman found that the relative scarcity of the resource being provided (e.g. parking spaces) did not impact the extent to which those perceived that individuals with disabilities were engaged in “the disability con.” Instead, Professor Dorfman’s novel research found that the suspicions were largely motivated by a subjective perception of “deservingness” of the accommodation by those non-disabled members of the public. This is a somewhat surprising and important distinction—those who believe that individuals with disabilities are engaged in a “con” of the system through their membership in a protected class hold these beliefs not because of the limited availability of a particular accommodation/resource but instead because of the perception that these individuals are not deserving of the particular accommodation in question.

There is far too little empirical work of the type being done so expertly here by Professor Dorfman in the legal academy. Both the numerical results and qualitative data are illuminating, and provide an important look at the perceptions of the public on this type of disability rights legislation. Professor Dorfman takes the next step with his research in the paper, and explains the importance of his research for the ways civil rights laws are drafted and implemented. As he eloquently concludes, “With regard to fear of the disability con, it is essential for policy makers, law enforcement personnel, disability rights advocates, and academics to continue to raise awareness of the topic, expand the views of deservingness with regard to disability rights, and take action to prevent the harassment of disabled individuals.”

As noted previously, this paper primarily explores these types of misplaced attitudes of the public in the context of public accommodations. The paper looks specifically at two examples of such accommodations, disabled parking and line-access at Disneyland, both of which provide fascinating examples for exploring this topic. Professor Dorfman uses these examples to examine the psychology of what he refers to as “the disability con.” The type of perceived “fakery” goes well-beyond the public accommodation context, however, and has direct implications for work law and employees across the country.

I selected this paper to review specifically because of the importance of Professor Dorfman’s work here outside of the public accommodation context. As others have addressed, there are similar misplaced concerns over these types of perceived “disability cons” taking place in the workplace setting. See, e.g., Nicole Porter, Special Treatment Stigma After the ADA Amendment Act, 43 Pepp. L. Rev. 213 (2016). Many non-disabled workers likely perceive that those receiving a requested accommodation as part of their employment are similarly “abusing” the system the same as those requesting public accommodations. Intuitively, it would seem that these misplaced perceptions are the result of scarce resources, i.e. employers providing limited resources to workers with disabilities instead of others. Professor Dorfman’s research suggests otherwise, and implies that these attitudes are instead the result of some workers’ belief that an employee with a disability is simply not “deserving” of a particular accommodation.

Of course, extrapolating Professor Dorfman’s research into the area of employment law must be done carefully, and further empirical analysis should be done in this area before drawing any firm conclusions. Nonetheless, it is an area worth exploring given the novel results of the research in this paper. Indeed, a better understanding of this area of workplace law will help legislators to craft future laws in this area, and assist employers in enacting these specific provisions. It is important to enhance trust in the workplace provisions of the ADA, as well as to help prevent individuals with disabilities from being harassed (as well as being subjected to other adverse treatment and unwarranted scrutiny) because of the misplaced perceptions of some over accommodations that are provided.

As a final note, Professor Dorfman follows up his work in this paper with another novel look at the perceived “disability con” in the context of service dogs and emotional support animals in his paper, Suspicious Species, 2021 U. Ill. L. Rev. 1364. That paper explores the perception of the public of this type of more specific accommodation.

Cite as: Joseph Seiner, Public Accommodations, Public Perceptions, and Workplace Law, JOTWELL (March 3, 2022) (reviewing Doran Dorfman, [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, 10 UC Irvine L. Rev. 557 (2020)),

The Depth of Liminal Space: Liminal Labor Law

Michael Oswalt, Liminal Labor Law, 110 Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.

As a labor law scholar of a certain age, it is increasingly rare for me to encounter takes on unions and the National Labor Relations Act (NLRA) that provide a new theoretical framework that generates fresh and important insights. I am happy to say that this article does both. Imaginative in its conception and convincing in its details, Liminal Labor Law is a fascinating contribution to the field.

The article applies the social anthropology concept of “liminal” spaces—being “in between”—to labor law, and it does so in multiple ways. While the article describes the “liminal” concept in depth, for purposes here, consider Oswalt’s observation that “a certain vitality or even creativity can spring from middles and intermediacies . . . although labor law’s in-betweenness reflects a seriously defective regime, the gaps may also contribute to the labor movement’s perseverance and adaptability over time.” Labor law doctrines, because they so often shift dramatically depending on which political party controls the National Labor Relations Board, are in an “in between” state. Also, certain actors in the labor law world are in such a state, often because of shifting rules. For example, the law alternately describes university graduate assistants as primarily “students,” outside the coverage and concerns of the National Labor Relations Act (NLRA), or, conversely, as sufficiently “employees” to justify NLRA coverage. Most broadly, the COVID-19 pandemic has put the world of employment and worker responses to employment in an “in between state.” While not all attempts to apply theoretical concepts from fields outside law to legal scholarship are successful, this article is. The use of “liminal” theory illuminates both the shifting and often contradictory commands of labor law rules and polices and the practical and creative responses to this by players in the field.

The article provides too many examples of the “liminal” state of labor law and actors subject to it to discuss in detail here. But to pick one, Oswalt gets at something I know is much on the minds of both labor law academics and practitioners: frustration with the increasingly wildly-oscillating nature of labor law rules. Oswalt tracks the evolution in labor law scholarship, from James Atleson’s insight in his seminal book Values and Assumptions in American Labor Law (1983) that Supreme Court interpretations of the NLRA had adopted key, pre-NLRA, “values and assumptions,” to beliefs that labor law had become “ossified” (in part due to the seeming political impossibility of amending the statute). Cynthia Estlund, The Ossification of American Labor Law, 102 Columbia L. Rev. 1527 (2002). But in the past two decades, the increasingly dramatic shifts in central legal rules, depending on which party controlled the presidency, have taken center stage. While those in the field recognize that this is a highly problematic state of affairs, this article is the first I’ve seen to put a useful theoretical construct around this reality. Even with this example, Oswalt finds multiple sub-examples of liminal spaces: he discusses changing doctrines; reconceptualizes the “values and assumptions” model as an expression of a liminal space; and explores the practical effects of constantly-shifting rules on players in the field. The quotes from actual people involved in labor relations remind the reader of what is at stake.

Oswalt also provides fascinating discussions of the liminal state of worker identities. Examples include “salts,” undocumented workers, and the often fine line between workers the NLRA covers and workers it excludes (e.g., supervisors, “gig” workers, and certain college athletes). Also, the example of shifting “joint employer” rules fits the “liminal” framing on multiple levels. I wish he had also discussed the arguably incoherent “duty to bargain in good faith” rules in this theoretical context, but the article is chock-full of other great examples.

As befits an article on the potential of “in between spaces,” Oswalt’s discussions are impressively nuanced. For example, his description of how workers respond to legal doctrines that make it difficult for unions to win strikes skillfully avoids the two most common tropes: that this difficulty means labor is doomed unless the rules radically change; or, on the opposite extreme, that workers have found alternatives that are just as effective as traditional strikes. Here again, “liminal space” is a fascinating and useful lens (e.g., Oswalt notes how some creative union strategies risk violating secondary activity rules).

Further, this article remains very timely. Oswalt correctly describes the “shock” that COVID created, and the reluctance of some workers to return to the status quo. As of this writing, the U.S. is experiencing remarkably high levels of labor shortages and strikes, and more broadly, a sense of “in betweenness” continues to capture the world of work as 2021 nears its end. This is an excellent article; I liked it a lot.

Cite as: Joseph Slater, The Depth of Liminal Space: Liminal Labor Law, JOTWELL (February 16, 2022) (reviewing Michael Oswalt, Liminal Labor Law, 110 Cal. L. Rev. __ (forthcoming, 2022), available at SSRN),

Recasting the Workers’ Compensation Grand Bargain

Nate Holdren, Injury Impoverished (2020).

In his excellent book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era, Nate Holdren satisfyingly scrutinizes the “Grand Bargain,” through which workers are said to have traded tort rights for workers’ compensation statutory rights. It has always been a little difficult to swallow the idea that in 1911—the year of enactment of the first U.S. workers’ compensation statutes—American workers were sufficiently organized nationwide to compel employers and Government to make this trade. Still, as Holdren makes clear, American workers had every incentive to be interested in supplanting a negligence system that defeated worker injury claims through operation of the dreaded “unholy trinity” of contributory negligence, assumption of the risk, and the fellow servant rule. But the Grand Bargain may have been more about what industry and Government wanted than what workers wanted.

Holdren retells the story of how national employers’ associations like the National Association of Manufacturers, the National Metal Trades Association, and the National Civic Federation threw their support behind workers’ compensation laws during the first decade of the 20th century. (P. 110.) In so doing, he repeatedly and appropriately problematizes the familiar, and in some ways too comfortable, Grand Bargain narrative, that employees happily gave up tort rights because they were always losing. As it turns out, workers were beginning to win negligence suits by around 1910, and the costs of employer third-party tort liability insurance were steadily rising during the early 20th century (Pp. 95-97). The truth of the matter seems to be that courts of the era were becoming increasingly unpredictable by rendering decisions in favor of workers, a fact independently true even before considering proliferating federal and state employer liability statutes that deprived employers of some traditional affirmative defenses to negligence claims. (Pp. 102-03.)

Workers’ compensation models developed in the U.K. and Europe before they developed in the US, and Injury Impoverished effectively sketches out U.S. players (Pp. 53-56) who travelled to Europe in the first decade of the 20thcentury to, in effect, select between the English and German workers’ compensation models that had recently emerged. Bismarck and the Prussians had enacted a state Railroad Law in 1838, implementing a strict liability regime in connection with railroad injuries, and Bismarck led Germany in enacting the first major national workers’ compensation law in 1884. (Some scholars argue that the law of negligence was at bottom a mid-19th century subsidy in favor of the railroad industry and that strict liability was the early 19th century default.) Parallel developments took place in the U.K, with the U.K. Employer’s Liability Act in 1880, and the U.K. Workers’ Compensation Act in 1897. (See David G. Hanes, The First British Workmen’s Compensation Act, 1897 (1968)).

Eventually, the U.S. selected the English model in 1911. Indeed most U.S. workers’ compensation and employer-liability law developments were presaged in the U.K. during the 1880s, as the British electorate was expanding, and its labor movement was becoming more militant. (See P. W. J. Bartrip & S. B. Burman, The Wounded Soldiers of Industry (1983)). (Ironically, if either of the work injury models had been selected in full, we might have had a universal health care system in the U.S. by the early 20th century; Germany implemented de facto national health in 1884; the U.K. in 1911, see John Henry Watt, The Law Relating to National Insurance: With an Explanatory Introduction, 76 (1913)).

Where Holdren really shines is in his extended discussion of actual (as opposed to professed) policies behind the Grand Bargain. One fascinating postulate is that workers’ compensation was a sublimation of the legal conflict that often emerges when badly injured employees have an opportunity to tell their stories in open court. Outrageous exposes of worker injury and disease, as related by contemporary chroniclers like Crystal Eastman, the Pittsburgh activist, lawyer, journalist, and expert, when coupled with bitter court cases, had the effect of generating bad feelings of a type that could lead to labor and class conflict. (Pp. 103-07.) But in the no-fault environment of workers’ compensation there was no tale of employer negligence to tell because breach of a duty of ordinary care was irrelevant. Provided an injury arose out of and in the course of employment, a case could be quickly and quietly resolved: 400 weeks of compensation for the loss of both hands—forget about telling a jury how the hands were lost. (P. 111.) This knocks an account of law as agent of social order a bit askew: law might paradoxically provoke; administrative adjudication governed by “tables” determining compensation might mollify or at least conceal. On this telling, workers’ compensation may have been an anti-union/anti-radical initiative, (P. 104), which was all well and good for those whose chief desideratum was stability.

Holdren focuses on the habit of assessing the Grand Bargain in relentlessly distributive terms: is a workers’ compensation statutory remedy monetarily adequate, or sufficiently proportional, when compared to foregone tort damages? (Indeed, I have a difficult time not thinking of workers’ compensation adequacy in these terms.) To be sure, and as powerfully revealed in the 1972 Report of the National Commission on Workmen’s Compensation Laws, workers’ compensation remedies have probably been inadequate in the distributive sense for a long time; compliance with the Commission’s 19 essential recommendations for operation of a minimally adequate workers’ compensation system has not even been tracked since the early 2000s. But as Injury Impoverished notes, “[t]he overly narrow and exclusively distributive perspective written into those [workers’ compensation] laws is inattentive to recognition and bound up with—or at least uncomfortably close to—commodification.” (P. 113.)

Early 20th century critics of the system thought it was “too cheap” in monetary terms; but implicit in that assertion was that there was some “just right” quantum of benefits that would make surrender of negligence damages acceptable. (P. 113.) Holdren shares that he has a blue-collar background and has had personal experience of workplace injury. (Pp. 4-5.) I have the same kind of background and have always been struck by the fact that those rendering grim assurances of “just right” commodification of the human body are typically at a far remove from the risk of suffering bodily misfortune. I suspect Holdren agrees.

In the end, financial remuneration could at least be (though it is not presently) “recognitional”: American workers’ compensation could at least fully “recognize” that a living human being has suffered economic loss and compensate the loss in a way that is “not too cheap.” (P. 112.) But what has a worker suffered in a workplace injury? As Holdren states, “[t]he body, the person, and the self-overlap, and so the body is laden with meaning and feeling.” (P. 2.) This is common sense to anyone who has been hurt or has even been at real risk of being hurt. As I used to think in law school, workers care as much about losing their right arms as landowners care about losing Blackacre. What a brave and unusual book Injury Impoverished is to be asking questions of such fundamental importance to the working class—particularly during a period of pandemic when public policy in many states appears comfortable in dispossessing a variety of workers of both workers’ compensation and negligence remedies.

Cite as: Michael C. Duff, Recasting the Workers’ Compensation Grand Bargain, JOTWELL (February 1, 2022) (reviewing Nate Holdren, Injury Impoverished (2020)),

Changing the Legal Baseline for Effecting Mass Economic Dismissals

Rachel Arnow-Richman, Temporary Termination: A Layoff Law Blueprint for the COVID Era, 64 Wash. U. J. L. & Pol’y 1 (2021).

In her article, Temporary Termination: A Layoff Law Blueprint for the COVID Era, Professor Arnow-Richman argues “that the exigencies of the pandemic bring to light a long-neglected flaw in the pre-existing regulatory framework: there is no reliable just-in-time source of continued pay, nor any form of separation rights, for laid-off workers.” (P. 20.) The article is divided into three main sections. First, it describes the dearth of protections for laid-off workers. Second, it explains the legal significance this gap holds in protecting laid-off workers. Third, it “sketches a new law of layoffs focused on income continuity and job attachment.” (P. 4.)

In Part I (Pp. 5–12), The Economic Termination Gap, Professor Arnow-Richman explains that there are few federal (or state) protections for workers whose employment is terminated, permanently or temporarily, for economic reasons. The one federal right that Congress has created is a limited right to advance notice of job termination under the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109. The WARN Act requires certain large employers to provide 60-days’ advance notice of job loss resulting from a plant closing or mass layoff, as those terms are statutorily defined.

But like all labor statutes, the WARN Act is only as good as the breadth of its protection. Professor Arnow-Richman points out that the Act is limited even in the best of circumstances—it applies only to employers with at least one hundred workers that either close a plant affecting at least fifty workers or order a mass layoff affecting at least fifty workers and comprising one-third of the employer’s workforce. But even if those conditions are met, then workers still may not be entitled to advance notice if an exception applies. Professor Arnow-Richman explains, the WARN Act’s advance notice provision does not apply to temporary employment separations during a pandemic precisely because the unforeseen business circumstances (UBC) exception can be successfully invoked by the employer. This result highlights that the WARN Act’s “fundamental goal” of “re-employment” undercuts another value underlying work, “income continuity.” The latter turns out to be significantly more important during an infectious disease pandemic when no one can safely work. (Pp. 11–12.) In effect, the WARN Act is inadequate in dealing with temporary job losses resulting from such outbreaks.

In Part II (Pp. 12–19), The Income Continuity Crisis, Professor Arnow-Richman explains the significance of this income replacement gap for “COVID-affected workers—individuals whose jobs have been temporarily or permanently eliminated due to the pandemic.” (P. 4.) In Section II.A., Arnow-Richman starts with the acknowledgement that some employers will voluntarily provide severance pay for workers who are temporarily or permanently laid off resulting from a world-wide pandemic. These voluntary payments come in two forms: informal and formal. Under informal agreements, such as those contained in employee manuals, the employer can generally and legally modify or suspend such payments under state law. Arnow-Richman explains that most workers will fall into this category if they are fortunate enough even to have access to voluntary severance payments, which “turns on the employer’s internal policies or practice” and therefore “depends on the employer’s unilateral choices about how it wants to handle terminations.” (P. 13.)

Formal agreements also come in two types. First are actual contracts such as severance pay provided in collective-bargaining agreements and those provided by contract typically for firm executives. Second are “[t]hose . . . more formalized and more complex [agreements that] likely qualify as welfare plans under the Employee Retirement Income Security Act (ERISA).” (P. 14.) Whether formal or informal, these agreements cover a fraction of the U.S. labor force and therefore fail to provide the blanket income continuity that Professor Arnow-Richman suggests.

In Section II.B., Arnow-Richman discusses public benefits for income replacement, which includes unemployment insurance (UI) and the “Federal Pandemic Unemployment Compensation (FPUC) program authorized under the CARES Act, [which] provided an additional $600 per week to any worker receiving UI.” (Pp. 16–18.) Although the FPUC gave workers access to income replacement in terms of “increasing the amount and availability of income continuity,” there were such “extraordinary delays” in both applying for and waiting for benefits that many workers simply gave up, never to collect the benefit. (Pp. 18–19.)

In Part III (Pp. 19–29), Professor Arnow-Richman explains that her “purpose is not to critique either the corporate or government response to what are truly unprecedented circumstances.” Rather, her point is to highlight the deficiencies of the WARN Act in providing income replacement during pandemics and other circumstances that may trigger an exception. (P. 20.) Her solution, some of which she has written about in prior articles, is two-fold. First, “Congress should enact a ‘law of layoffs’ that would require employers to provide severance pay to terminated workers where they are either unable or choose[] not to provide advance notice of termination.” (P. 20, Pp. 20–23.) Second, she “propose[s] the creation of a deferral option, like what exists in Canada, for terminations formally classified as temporary. Workers would receive streamlined access to UI during the temporary period, after which employers could choose either to reinstate them or pay their deferred severance obligation.” (P. 20, Pp. 23–29.) These triggering events would avoid some of the disastrous results that occurred while workers waited for their COVID benefits due to administrative delay.

Mass economic dismissals are ubiquitous in the history of capitalist economies. In these circumstances, employers, employees, and local communities suffer when a plant closes, or a mass economic dismissal is effectuated. This is especially true in economic circumstances that are not localized, such as is the case in a world-wide pandemic. Mass economic dismissals are difficult problems to solve because typically no one is at fault and therefore there is no actor on which efficiently to place the duty of income replacement for the workers. Add to that a pandemic and even the government may not be able to handle the situation. This article is an excellent start to a conversation about how to handle these types of situations in the future, before they recreate the type of suffering that we all witnessed in 2020.

Cite as: Anne Marie Lofaso, Changing the Legal Baseline for Effecting Mass Economic Dismissals, JOTWELL (January 4, 2022) (reviewing Rachel Arnow-Richman, Temporary Termination: A Layoff Law Blueprint for the COVID Era, 64 Wash. U. J. L. & Pol’y 1 (2021)),

What If I Told You That Employer Power Is a Legal Construct

Gali Racabi, Abolish the Employer Prerogative, Unleash Work Law, 43 Berkley J. Emp. & Lab. L. __ (forthcoming), available at SSRN.

What is an “employer,” and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece—Abolish the Employer Prerogative, Unleash Work Law—Gali Racabi analyzes the law’s basic concepts for governing the workplace. Digging deep into the substratum of the law’s framework, he excavates the idea of the “employer prerogative”: namely, that the employer’s designated representatives have “the legal authority to make unilateral decisions in the workplace.” (P. 4.) Racabi’s simple proposal is to end this prerogative and consider alternative ways of allocating workplace power. His concept is both simple and staggering: a complete reorganization of the governance of firms within our economy.

Abolishing the Employer’s Prerogative is centered on a notion that is so much a part of our common cultural and economic understandings that it may even take a moment to realize what it is. Our economy delegates control over economic activity and decision-making to individual firms. Firms are a little hard to define, as they are economic (and not scientific) phenomena, but essentially they are the businesses that we work for, buy from, and contract with when engaging in our economic lives. We rely on firms to organize our behavior such that we can carry on extensive, long-lasting economic engagements within the rubric of a firm, rather than simply a market. The theory of the firm has proven a useful yet frustrating subfield of economics, as economic methodologies have not always proven suitable for the subtle, complex intricacies of interpersonal cooperation and competition that are contained within the firm.

Our legal system has assigned the task of sorting out the very real issues of power and control over the firm to the laws that govern business entities. Out of the variety of potential types of such entities—common law partnerships, limited liability companies, cooperatives—by far the most popular are corporations. Corporations are governed by state law—with Delaware winning the race to the top or the bottom, depending on your perspective—and share a common set of governance mechanisms such as the board of directors, the exclusive shareholder franchise, and fiduciary duties. These governance mechanisms control all other aspects of the firm, including decisions with respect to employees. Those decisions are limited by regulations, including the many mandatory and default rules within employment, but the firm holds the primary discretion.

Racabi points out, however, that it doesn’t have to be this way. He explains how the law assumes that employers—which are almost always business entities under law—have the authority to decide how to run their businesses, absent some other legal constraint. Describing it as a “vast ocean of prerogative” (P. 7), Racabi methodically details the particular aspects of this discretion and the ways in which it is indulged, rather than cabined. The common law assumes employer power, most notably in the super-sticky employment at-will doctrine. Efforts to inject worker participation into the mix—most notably the Wagner Act—have been minimized and eroded by the prerogative’s exalted status. In a clever and important move, Racabi does not focus simply on at-will, which has received waves and waves of academic treatment. Instead, he points out how at-will undercuts contractual efforts to circumscribe the employer prerogative in other areas by allowing employers to rip up existing agreements at any time, rendering them close to meaningless. All roads lead back to the foundational principle that an “employer”—almost never an actual person, but instead a fictional entity—has the authority to run “its” business the way “it” wants.

Why does this system persist? Racabi focuses on two mechanisms that reinforce the prerogative: a “whack-a-mole” effect and a “cage/jeopardy” effect. Because those who run the business entity control the entity’s decision-making in other areas, they can dodge efforts to regulate the employment relationship by restructuring that relationship. And employers can also threaten to punish workers and the community by withdrawing or withholding the benefits generated by the firm’s business. Racabi illustrates these mechanisms with the example of Uber, which both endeavored to structure its relationship with workers to avoid employment responsibilities, and then used its economic power to threaten a withdrawal from California to get the state to change its laws.

So what are the alternatives? It seems mad-eyed to contemplate a world in which business entities do not control their own businesses. But again with calm and measured analysis, Racabi uncorks some wild possibilities: an employee prerogative, where decisions are made by “employee governance bodies” (Pp. 53-54); the social prerogative, in which representatives from the community, the workforce, and management have joint power; a no-default rule, where parties would interact as if in an arm’s-length market; a separation of powers model, where factions are balanced against each other using various internal institutions; and an ad hoc approach that would unbundle the collection of prerogatives over different areas and allocate different rules in each. In order to manage these reallocations of power, Racabi suggests a national agency to regulate systems within firms, or a legal right for firms to waive the default rule but only under conditions of collective bargaining.

Abolish the Employer Prerogative is quite a ride. Throughout we have Racabi’s even, contemplative tone as we swoop and whoosh through a complete reimagining of the basics of our economic system. As he correctly points out, his proposal may be anti-free-enterprise, at least as free enterprise has been practiced in this country, but it is definitely not a rejection of the market economy. He acknowledges that there may be a loss in economic efficiency, but he also points out that there is the potential for tremendous upside. And for those who might expect a cats-and-dogs-living-together level of chaos, he understands but does not seem too concerned. He knows there is much more to do—much more to consider, contemplate, and envision—before we get there.

Part of me wonders why Racabi didn’t talk about all the other things that would seem to be an essential part of this discussion he undertakes: the exclusion of workers from corporate governance; the potential of employee ownership and worker cooperatives; workplace practices such as quality work circles and holacracy that foster employee participation;; the allocation of rights in trademark, trade secrets, and other IP to the business entity; the role of antitrust in regulating coordination rights; the teaching that various theories of the firm might have to impart on his endeavor. In particular, it would be useful to hear more about the efforts of labor law to overcome the employer prerogative, and why those efforts have failed to this point. While he does touch on some of these briefly, of course all of these things are largely outside the scope of his article as constructed. They are not outside the scope of this dialogue, mind you, but they are outside of the article’s thesis: the law gives the employer the power to control its business and its workplace, but—emphatically—the law does not have to be this way.

In the article’s concluding paragraph, Racabi makes clear that he is not offering a detailed policy prescription; rather, his hope is “to provoke work law scholars, students, and activists into engaging in systemic, political, and imaginative thinking about the relationship between law and workplace power.” (P. 67.) I really enjoyed Racabi’s thoughtful and provocative piece, and I hope others take him up on his invitation to reimagine the way we organize the law of business and of the workplace.

Cite as: Matt Bodie, What If I Told You That Employer Power Is a Legal Construct, JOTWELL (November 26, 2021) (reviewing Gali Racabi, Abolish the Employer Prerogative, Unleash Work Law, 43 Berkley J. Emp. & Lab. L. __ (forthcoming), available at SSRN),