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Protective Legislation and Its Critics: an Enduring Legacy

While some readers may already know this work, legal academics do not always keep up with monographs that focus on history. So, I will try to widen the audience for this excellent book.

A Class by Herself traces the story of “protective legislation” — e.g., laws regulating wages and hours — concentrating on debates over statutes that applied only to women. The story begins in the Progressive Era of the late nineteenth and early twentieth centuries, continues through the New Deal, and ends with questions about modern laws such as the Pregnancy Discrimination Act and Title VII. The book does an impressive job with multiple historical subjects: legal history, history of “worklaw,” history of feminist thought, and history of politics and of the state.

Most prominently, the book features a nuanced take on the tensions between “difference” feminists (who favored protections that applied only to women) and “equality” feminists (who insisted the same rules should apply to both sexes). Both sides get their due. The “Brandeis Brief” from Muller v. Oregon (1908), once romanticized for trying to bring evidence from social sciences into the courtroom and later castigated for its jarring patriarchal assumptions, gets a balanced treatment. Notably, the book covers a wide time period, and it shows the enduring importance of these debates while still putting them in specific political, social, and legal historical contexts. Scholars of modern law will have much to ponder with Woloch’s discussion of UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), an emphatic expression of the “equality” feminism the New Deal and Great Society had adopted, in which the Court held that an employer rule barring women from working around substances dangerous to pregnant women violated Title VII. While good history doesn’t necessarily need to draw explicit parallels with the present, it’s impressive to see such history done well.

Woloch also has a wonderfully interesting and complex cast of characters. The book features not only famous actors such as Florence Kelly (of the National Consumers League, an advocate of protective legislation for women) and Alice Paul (of the National Woman’s Party, an advocate of equality feminism), but also other fascinating, lesser-known figures, including but not limited to progressive contemporary Elizabeth Baker and, later, Women’s Bureau Director Esther Peterson. In this regard, Woloch adds some fascinating new primary sources, such as Baker’s PhD dissertation.

In telling this story, Woloch shows she understands the internal rules regarding legal doctrine (including debates between “sociological” and “formalist” jurisprudence) without pretending such evolution occurs in a vacuum. Much of the work is told from the point of view of reformers, and the book demonstrates both how political activists shaped the law and how the law shaped the strategies of activists. As with the best history, Woloch stresses how complex and contingent many events were: actual results were far from inevitable, and it is a virtue of the book that its goal is not to crown as “correct” one side or the other in the debates. Woloch rejects simplistic analysis, and her contributions include the memorable line, “[E]quality tends to favor those best equipped to claim it.” I liked this book a lot.

Cite as: Joseph Slater, Protective Legislation and Its Critics: an Enduring Legacy, JOTWELL (December 8, 2017) (reviewing Nancy Woloch, A Class by Herself: Protective Laws for Women Workers, 1890s–1990s (2015)), https://worklaw.jotwell.com/protective-legislation-and-its-critics-an-enduring-legacy/.

Limiting the Limitless

Ifeoma Ajunwa, Kate Crawford & Jason Schultz, Limitless Worker Surveillance, 105 Cal. L. Rev. 735 (2016).

The hottest new subject area for legal academics is privacy law. The field is still in its infancy, which means that many of the foundational issues of categorization and taxonomy remain to be worked out. Even defining privacy is thorny, as the label is applied liberally to all sorts of invasions, intrusions, disclosures, and interests, with questions about how to delineate and frame privacy concerns arising in several sub-categories. In the labor and employment context, the Restatement of Employment Law has divided privacy interests into three categories: interests in the privacy of persons and locations (including electronic ones); interests in the privacy of personal information; and interests in the nondisclosure of information that was disclosed to the employer confidentially.1 Within these broad contours, a myriad of different types of violations sit uncomfortably next to one another, each raising its own specific issues.

In Limitless Worker Surveillance, Ifeoma Ajunwa, Kate Crawford, and Jason Schultz take on one specific type of privacy invasion: workplace surveillance. Because of employers’ ownership and control of the workplace, courts have generally interpreted the common law to allow employer surveillance of working areas. Moreover, employers can expand their observation into private areas when employees give their consent to the intrusion. Management has generally run into trouble only when it surreptitiously and secretly records employees in private areas, such as bathrooms, medical examination offices, and employee homes. But routinized, disclosed surveillance is commonplace and seen as part of the job. Ajunwa, Crawford, and Schultz, however, want to disrupt this equilibrium. They argue that freedom from surveillance should be a non-waivable right, and they propose three different federal statutes, varying in scope, to enforce variations of this right against employers.

The article does not spend a lot of time exploring why surveillance, at root, is problematic as a practice—the authors assume that sustained and continuous observation is noxious and enervating. Instead, they dig into the technological changes that afford companies cheaper and easier ways of observing, measuring, and tracking their employees than existed in the days of Frederick Taylor and Henry Ford. Now, digital cameras can record an eternity of activity without the cost of film or videotape. RFID tags and GPS tracking can follow workers all over town without significant investment. Computer software can record everything an employee does online without the employee ever knowing. There really has been a sea change in the levels and types of information available to most employers about their employees. The authors single out wellness plans and productivity apps for special attention, discussing how these programs generally work and how they access workers’ private information in the name of health outcomes and improved productivity.

Ajunwa, Crawford, and Schultz survey the existing legal protections for workers and find them wanting. They point out the absence of regulation in privacy statutes such as the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. Federal discrimination statutes likewise do not address surveillance; the NLRA does address surveillance, but only in limited circumstances. There are state-level regulations of video and audio monitoring, as well as a growing number of state restrictions on employer access to employee social media accounts. But these protections are spotty and often limited, sometimes allowing surveillance with notice (or even without it). (Interestingly, the authors use state statutes protecting off-duty smoking as a proxy for privacy, even when these statutes were often more a result of tobacco-industry lobbying than an interest in workers’ rights.) Although states like California have fairly robust surveillance regulations, many states offer little to no protection.

The solution, according to the authors, comes in the form of a federal statute to regulate surveillance on the job. They begin with the possibility of a comprehensive privacy regime along the lines of the European Union’s General Data Protection Regulation. Ironically, they argue such a wide-ranging approach might fail because it would necessarily be susceptible to too many exceptions based on consent or work-related data collection. Instead, they suggest a federal “Employee Privacy Protection Act” that would prohibit surveillance outside the workplace as a mandatory, non-waivable rule. A third possibility would be a federal “Employee Health Information Privacy Act,” which would fill the existing gap left by HIPAA regarding employer responsibility over personally identifiable health information. This act would give employees the right to consent to use of their health data as well as the right to have data destroyed at the end of the employment relationship.

Limitless Work Surveillance takes on an important area of workplace concern and provides a set of legislative solutions for consideration. And the authors savvily ascertain how technological changes are driving—and will continue to drive—the ways in which employees will find their personal privacy invaded and degraded. By calling attention to the issue of surveillance in the workplace at this particular moment in our history, Ajunwa, Crawford, and Schultz have made an important contribution to the literature. The article will hopefully spur additional research into the ways in which employers and employees can work together to manage their legitimate interests while protecting the core of human dignity.

  1. Restatement of Employment Law § 7.02 (Am. Law Inst. 2015). []
Cite as: Matt Bodie, Limiting the Limitless, JOTWELL (November 10, 2017) (reviewing Ifeoma Ajunwa, Kate Crawford & Jason Schultz, Limitless Worker Surveillance, 105 Cal. L. Rev. 735 (2016)), https://worklaw.jotwell.com/limiting-the-limitless/.

A Framework for Thinking About Regulating Platforms

Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016).

Much ink has been spilled over whether platform workers — be they Uber drivers, Task Rabbit taskers, or others — are employees or independent contractors, and litigation over alleged misclassification of platform workers is ongoing. Likewise, there is robust debate over whether the rise of such platforms benefits workers by expanding their earning capacity and flexibility, or simply serves to increase income insecurity and income inequality. Beyond employment, similar debates rage over other platforms, such as whether Airbnb and other home-sharing platforms enhance consumer choices and provide individuals with positive ways to monetize underutilized space, or exacerbate shortages of affordable housing and undermine stable residential neighborhoods.

Orly Lobel’s article provides a broad framework in which to analyze such issues. The article is much broader than the work law implications of the platform economy, but it is extremely useful for scholars and policymakers facing work law issues.

Lobel usefully catalogues ten characteristics of platforms: They achieve economies of scale for individual-to-individual transactions. They facilitate utilization of idle capacity, whether it be spare bedrooms or workers’ otherwise unproductive time. They facilitate commerce over extremely small transactional units, even a few minutes. They allow individuals to monetize almost anything, turning them into mini entrepreneurs. They facilitate customization of transactions. They substitute access for ownership in consumption. They reduce overhead. They reduce barriers to entry. They facilitate dynamic pricing driven by demand. They offer dynamic ratings of providers by consumers and consumers by providers.

Lobel discusses what she regards as easy cases for applying traditional regulation to platforms. For example, she sees no difference with respect to taxation, which she regards as designed to extract a percentage of profits wherever they are produced. She sees the issue of taxing platform transactions as a question of efficient collection and suggests that requiring the platform company to collect taxes may be the most efficient solution. (Interestingly, Lobel does not follow through on the implications for collection of employment taxes.) Other easy cases are permitting and occupational licensing. Lobel urges that where these regulations serve primarily to erect barriers to entry, they be replaced by liability rules and insurance requirements.

Lobel regards the employment question as one of the hard cases. Another hard case is zoning regulations. These raise tradeoffs that policymakers must confront. With respect to the employment status of platform workers, Lobel suggests focusing not on classification but on the protections that are valuable to society, such as anti-discrimination, safety and health, insurance, and portable benefits, regardless of classification. Generally, she observes that “[o]ff-on categories such as consumer-business; employee-freelancer; residential-commercial are, in some instances, no longer viable as organizing frameworks…. What this means for regulators is that, rather than a unified legal entity, which has traditionally been the object of regulation, transactions are now shaped by multiple actors, with varying capacities, interests, and needs.”

Consistent with her scholarship concerning the “new governance” approach to regulation, Lobel highlights private approaches to handling risk: platforms providing insurance, platforms performing background checks, and dynamic ratings of service providers by consumers and of consumers by service providers. She recognizes that some of these developed as responses to litigation or were compelled by regulatory authorities. She observes that the advanced technologies employed by platforms enable better data collection and analysis, and urges that rather than devising regulations top-down, lawmakers collaborate with platforms to use the data to analyze problems and develop responses. Examples given include addressing ride-hailing platforms’ shortcomings in serving persons with disabilities and preventing discrimination by hosts on home-sharing platforms.

Lobel’s article raises many questions and provides no definitive answers. But it provides a very useful framework to consult in approaching legal issues raised by the platform economy with respect to treatment of platform workers as well as other social policy issues.


Editor’s note: For an earlier Jotwell review of The Law of the Platform see Margot Kaminski, Disruptive Platforms (July 19, 2017).

Cite as: Martin H. Malin, A Framework for Thinking About Regulating Platforms, JOTWELL (October 23, 2017) (reviewing Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016)), https://worklaw.jotwell.com/a-framework-for-thinking-about-regulating-platforms/.

Limitations on the Business Case for Diversity

Jamillah Bowman Williams, Breaking Down Bias: Legal Mandates vs. Corporate Interests, Wash. L. Rev. (forthcoming 2017), available on SSRN.

Those working in antidiscrimination law are well-versed in the central role that the business case for diversity plays in shaping policy. Even as enthusiasm for legal interventions in business or education has waned, the business case for diversity has remained persuasive. Courts have even relied on it to find practices that disparately impact certain groups discriminatory, affirmative action plans legal, and accommodations required. In fact, I would submit that the business case for diversity has eclipsed arguments about justice, inequality, or morality as reasons to support such measures.

That is why Jamillah Bowman Williams’ article, Breaking Down Bias: Legal Mandates vs. Corporate Interests, Wash. L. Rev. (forthcoming 2017), is so important. Williams asks the foundational question of whether the business case for diversity actually accomplishes the goal of antidiscrimination law – reducing bias and promoting racial inclusion – and reports on experimental research that tests the relative efficacy of the business case rationale versus a legal case for equity and inclusion. Williams finds not only that the legal case for diversity is more effective for reducing bias and promoting inclusion, but also that it exerts a stronger normative influence on actors than the business case.

Williams starts from the premise that we should work toward reduced bias, and her analysis focuses on the workplace. From that starting point, she traces the shift of strategies from antidiscrimination law to arguments that underrepresented groups should be integrated into organizations because their involvement makes those organizations work better or be more profitable. In this section, Williams describes the literature on why antidiscrimination law works to change behavior and why the focus shifted to diversity and inclusion in the 1990s and then became so entrenched.

Three main theories have developed to explain why antidiscrimination law is thought to reduce bias. The first assumes employers are rational actors who fear sanctions. The second posits that decision makers act based on moral beliefs about the right thing to do, which are in turn shaped in part by law. The third holds that decision makers act without thinking, based on roles and scripts, so that law is effective if it prompts the creation of new roles and scripts. While there is some experimental evidence supporting both the first and second theories, the history of antidiscrimination enforcement as recounted by Williams suggests that the third has a role as well.

Lack of enforcement in Title VII’s early days gave way to expansion and serious enforcement by the Equal Employment Opportunity Commission after the Equal Employment Opportunity Act of 1972. Heightened standards led to adoption of affirmative action policies, which, in turn, led to demand for EEO and management specialists to better shield companies from litigation. Then, in the 1980s, President Reagan cut the EEOC’s budget, opposed affirmative action, and appointed judges hostile to regulation and especially to affirmative action. But, the new cadre of EEO and management specialists remained popular. Employers simply reframed the purposes and goals of their affirmative action practices to focus on diversity management as a way to increase business effectiveness and profitability.

Williams explains the attractiveness of the business case for diversity:

a business case for diversity may be perceived as more legitimate than antidiscrimination law because it offers a connection between increased diversity and inclusion and positive performance outcomes. It may also be favored because it frames the efforts as proactive, to reap financial rewards, rather than reactive, to stop discrimination and avoid punishment.

There is some empirical evidence to suggest that diversity imposed as a result of an externally driven legal reason and not an internally motivated organizational value may result in resistance. Yet, Williams notes that “[t]he business case for diversity may persuade Supreme Court justices and America’s top business leaders, but the question remains whether this rationale is persuasive to the remainder of America’s workforce.”

To help answer that question, Williams conducted a laboratory experiment to look at whether the business case for diversity decreased bias and increased inclusion of racial minorities. Her results showed that white participants exposed to the business case actually reacted more harshly toward minority teammates than white participants who were not. She then conducted a survey-based experiment to look at whether the traditional legal case for inclusion might be more effective. That study showed that emphasizing civil rights law evoked more positive responses than the business case or no rationale at all.

Williams wraps up the paper by discussing some important implications of her results. First, she notes that conventional wisdom emphasizing the business case for diversity might actually undermine efforts toward greater inclusion. She uses social psychology to explain why. Essentially, the business case challenges deeply ingrained stereotypes and hierarchies without countering them overtly. Making people think about race may activate negative stereotypes, which can lead to negative treatment of minorities. The business focus on diversity may paint minorities as competitors for economic and social resources and may thus cause resistance because that competition poses a threat to scarce resources and privileges of the dominant group. Additionally, by emphasizing the benefit of diversity, organizations may send a message that the dominant group is less valuable. Finally, diversity values may generate resistance because they conflict with color-blind “meritocratic” ideology that is becoming more and more pervasive.

Williams stresses that not only may the business case backfire, but civil rights law has greater potential to promote positive beliefs and behaviors about inclusion. Although she does not frame the issues this way, as lawyers, we may be trained to be skeptical of the moral force of law; non-lawyers, though, find the law to be an expression of what is good and morally right. Williams is careful to say that she does not intend to cast doubt on the accuracy of the business case for diversity, which has a reasonable empirical basis, but instead to provide guidance on how organizations might communicate that goal to their members. Her findings offer compelling reasons to heed that recommendation.

One issue left unaddressed by this paper and open for future work is what to do with this information when it comes to the courts. As Williams notes, many legal scholars are concerned about the lack of antidiscrimination enforcement. She suggests that even with this lack of enforcement, the legal case for diversity is more effective than the business case at achieving diversity within organizations. Yet at some point, non-enforcement by courts might lead to the law’s erasure as a practical matter. So what then? If judges and lawyers are not persuaded by the moral foundations of the law apart from the law’s existence, then how can we stop them from undermining it?

I think that Williams’ work offers food for thought there, as well. Perhaps greater focus by advocates and scholars on those moral underpinnings of the law and on the current lived experiences of people of color can help persuade judges that the law should be enforced vigorously. Lawyering is often at least partially storytelling. We would do well to be sure we are telling the stories of the disempowered and focusing on the moral force of robust equality norms.

Cite as: Marcia L. McCormick, Limitations on the Business Case for Diversity, JOTWELL (September 20, 2017) (reviewing Jamillah Bowman Williams, Breaking Down Bias: Legal Mandates vs. Corporate Interests, Wash. L. Rev. (forthcoming 2017), available on SSRN), https://worklaw.jotwell.com/limitations-on-the-business-case-for-diversity/.

Comprehending Causation and Correlation

James Grimmelmann & Daniel Westreich, Incomprehensible Discrimination, 7 Calif. L. Rev. Online 164 (2017), available at SSRN.

I’m a fan of off-beat approaches to legal scholarship, having attempted a couple of efforts myself. And I try to keep up with developments in the real world that threaten to impact our discipline, like the concern about “Big Data” that has begun to appear in the law journals. So it’s no surprise that I was very taken by a particularly creative piece by Professors James Grimmelmann and Daniel Westreich, which combines an amusing conceit with dead-on analysis of an emerging and important question.

Incomprehensible Discrimination explores one aspect of a much longer article that appeared recently in the California Law Review by Solon Barocas and Andrew Selbst on data-driven algorithmic methods of making employment decisions.1 The aspect Grimmelmann & Westreich explore is the ability of such analyses to find correlations between, say, job performance and any of a variety of data points with no apparent causal connection to better performance. Barocas and Selbst conclude that traditional disparate impact analysis is not likely to invalidate these kind of selection process. Given sufficient data and robust tests of significance, it’s hard to conclude that reliance on such factors is irrational, even in the absence of any articulable explanation for what one has to do with the other. For Grimmelmann and Westreich, that’s exactly the problem.

For example, it is at least conceivable that better job performance can be predicted from characteristics such as the applicant’s favorite kind of music, whether she owns a car, or her zip code. But what confidence can we have in the resulting explanation?

Grimmelmann & Westreich’s method of exploring this question is a “(fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia,” which is designed to explore the disparate impact implications of this use of Big Data. They posit a hiring process that could easily result in racial (or, in the world of Zootopia, species) distinctions without any intent to discriminate. Thus, the Zootopia Police Department

uses a mathematical model to predict which applicants will be successful police officers. Four facts about this model are undisputed. First, its scores are significantly correlated with a reasonable measure of job performance. Second, the model does not explicitly consider applicants’ species. Third, it nonetheless systematically favors carnivorous applicants over herbivores. Fourth, no one has explained how and why the model works at predicting job performance or how and why it disadvantages herbivores.

The second undisputed fact is designed to rule out intentional discrimination. (Although it remains possible for a facially neutral model to be adopted for discriminatory purposes, that is very difficult to prove.) And, while the third raises a prima facie case of disparate impact, the first would seem to necessarily mean that the practice satisfied the business necessity/job relation standard under traditional analysis.

As for the fourth, that consideration does not currently have a place at the table under either disparate treatment or disparate impact analysis and, to be frank, wasn’t especially relevant before Big Data raised exactly that question. But it is this possibility that Grimmelmann & Westreich argue should be determinative in any court challenge to such a practice. According to them, such algorithmic analysis may “both predict[] job performance and discriminate[] against herbivores” without anyone being able to provide a causal explanation for the result. (P. 170.) The Zootopia Supreme Court elaborates:

The [plaintiff] League is correct that the factors that the model identified correlate with species, and the [employer] is correct that these factors also correlate with job performance. The problem is that there is no explanation in the record as to which of these two correlations, if either, is causal. It may be that the factors directly measure applicant characteristics that determine success in the challenging and dangerous field of police work, and that those characteristics happen to be unequally distributed in our diverse society. It may also be that these factors are instead measuring applicants’ species and that they measure likely job performance only because they are identifying species in an applicant pool where the relevant characteristics are unequally distributed. (P. 170.)

To deal with this risk, the authors argue that the defendant’s business necessity burden “requires it to show not just that its model’s scores are not just correlated with job performance but explain it.” (P. 170.) They suggest the necessity for “an explanation in terms of the chains of causation by which one state of affairs leads to another,” and elaborate that a good explanation “is one that identifies the hidden and nondiscriminatory variables connecting the observed factors with the predicted target variable.”

The reason, of course, is that, even a model that is scrubbed of any explicit race factors will still yield racially-slanted results if the factors actually used are correlated with race. Nor is this so strange. Although the authors don’t mention it, the Supreme Court has repeatedly had to deal with the question of whether legislative redistricting decisions are race-motivated (unconstitutional absent a compelling state interest) or politically motivated (constitutional) given that African Americans vote very heavily Democratic so there is a very strong correlation between the two.

According to the authors, that kind of inquiry is necessitated whenever impenetrable algorithms yield disparate results for protected classes. They end with a cri de coeur:

Our holding today is simple. Incomprehensible discrimination will not stand. Applicants who are judged and found wanting deserve a better explanation than, “The computer said so.” Sometimes computers say so for the wrong reasons–and it is employers’ duty to ensure that they do not. (P. 177.)

As is often the case, this Jot can’t do justice to the Grimmelmann & Westreich piece, which is well worth a read, as is the Barocas & Selbst article to which it responds.

  1. Solon Barocas & Andrew Selbst, Big Data’s Disparate Impact, 104 Calif. L. Rev. 671 (2016). []
Cite as: Charles A. Sullivan, Comprehending Causation and Correlation, JOTWELL (August 4, 2017) (reviewing James Grimmelmann & Daniel Westreich, Incomprehensible Discrimination, 7 Calif. L. Rev. Online 164 (2017), available at SSRN), https://worklaw.jotwell.com/comprehending-causation-and-correlation/.

Timekeeping and Wage Theft in the 21st Century

Elizabeth Tippett, Charlotte S. Alexander & Zev J. Eigen, When Timekeeping Software Undermines Compliance, 19 Yale J.L. & Tech. 1 (2017).

Nearly sixty percent of American workers are paid on an hourly basis. Despite this reality, wage and hour law typically generates little attention in academic literature. While there has been considerable discussion about “the gig economy” and independent contractors, the nuts and bolts concerning how most Americans get paid goes largely unaddressed in legal scholarship. For this reason alone, a new article by Elizabeth Tippett (Oregon), Charlotte S. Alexander (Georgia State), and Zev J. Eigen (Littler Mendelson) represents a welcome addition to the literature.

The article focuses on workplace timekeeping software and the ways in which employers can use such software to commit wage theft. The authors review the functionality of thirteen different timekeeping software programs and explore how such software can be used by supervisors to effectively cheat employees out of wages for hours worked. Without going into great detail here, these programs vary considerably in their structure. Several of the programs allow – and in some cases, tacitly encourage – supervisors to review an employee’s submissions and then edit those submissions without providing any sort of notification to employees. The authors postulate that these types of programs pose the greatest risk of wage theft. Programs that afford supervisors less discretion present less risk.

Although the authors do not make any sort of empirical claims as to how common employer wage theft is, they do apply behavioral ethics theory to this situation to suggest, at least, that it would be unsurprising if supervisors engaged in unlawful edits to employees’ time and attendance data. For example, the authors discuss how behavioral ethics suggests that people are more likely to cheat when they can distance themselves from the dishonest transaction (such as where a supervisor can adjust an employee’s overtime hours online rather than directly ordering the employee to work off the clock). The authors speculate that, in light of all of this, employers might be underestimating the litigation risks associated with certain timekeeping systems.

These are all interesting observations, but part of what makes them noteworthy is the fact that this type of analysis is so uncommon in legal scholarship involving the law of the workplace. Questions about hours worked and overtime pay are of central importance to most employees. Yet, legal academics rarely discuss the nitty-gritty of how these things are measured in the workplace and how timekeeping systems might be abused.

The other feature of the article that makes it especially noteworthy is the fact that it serves as a reminder of an obvious, yet valuable, point. The Fair Labor Standards Act (FLSA), the primary federal wage and hour law, is an old statute. Like really old. And its main provisions have largely remained the same over time. Thus, as the authors note, it’s important to reflect on the fact that “the main law regulating work hours and pay for most employees in the United States has remained unchanged since before the Second World War.” (P. 9.) Even though the Department of Labor recently updated regulations regarding the overtime exemptions, the associated recordkeeping regulations have not been updated since 1987 and somewhat comically still contain references to “microfilm.” (P. 46.)

The authors ultimately offer a sensible update to the regulations in this area based on Department of Defense contractor guidelines. These guidelines, among other things, impose greater limitations on the ability of employers to modify timesheets without the knowledge of employees. But as part of their attempt to address the specific concerns associated with the regulation of timekeeping software, the authors make an important point regarding the need for workplace regulations to stay current with technological changes. As employers increasingly turn to technological advances to monitor their employees, the Department of Labor also needs to adjust. Nowhere does that fact seem more important than in the wage and hour context.

Cite as: Alex B. Long, Timekeeping and Wage Theft in the 21st Century, JOTWELL (July 10, 2017) (reviewing Elizabeth Tippett, Charlotte S. Alexander & Zev J. Eigen, When Timekeeping Software Undermines Compliance, 19 Yale J.L. & Tech. 1 (2017)), https://worklaw.jotwell.com/timekeeping-and-wage-theft-in-the-21st-century/.

A New Approach to Labor Law in States & Cities

Kate Andrias, The New Labor Law, 126 Yale L.J. 2 (2016).

Perhaps the greatest success story for unions and workers over the last five years is the wave of state and local ordinances that have raised minimum wages, guaranteed sick and safe time, and improved corporate scheduling practices, among other worker-friendly innovations. At the same time, though, union density has remained flat, as unions’ successes in campaigns for better working conditions have not translated into large numbers of successful union elections. Moreover, with the election of Donald Trump, further erosion of union density is likely: unions will face a hostile NLRB possibly compounded by federal labor law reform in the form of a national “right to work” law or evisceration of collective bargaining rights for federal employees. In other words, unions’ campaigns to improve working conditions have been wildly successful so far – they just haven’t led to more enterprise-based bargaining, as contemplated by the Wagner model of labor law.

Where does this leave unions? The pessimistic story is that private employers – aided by an anticipated spate of favorable NLRB decisions – will continue to rebuff union drives, Republicans will continue to weaken public sector unions in states they control and in the federal government, and the Supreme Court will eliminate mandatory dues or fees in public sector unions nationwide. And it goes nearly without saying that prospects for creating conditions in which unions could thrive – for example, by passing legislation to facilitate sectoral-level bargaining – went from “very unlikely” to “completely DOA” with the 2016 election. But Kate Andrias develops a more optimistic story in her pathbreaking article, The New Labor Law. She focuses with precision on exactly how unions have managed to achieve their recent successes, revealing that, in a sense, sectoral and regional bargaining are actually already here, and they can be nurtured and propelled at the state level.

How could a new model of union representation arrive without anyone noticing? The answer seems to lie in our tendency to place labor law and employment law in separate silos. Consider the process by which New York State raised wages for fast food workers or Seattle raised its minimum wage. In the New York example, public protests underwritten by the Service Employees International Union led Governor Andrew Cuomo to convene a wage board, comprised of representatives of management, labor, and the public. The wage board then heard testimony, weighed the evidence, and announced a decision phasing in a fifteen-dollar minimum wage. Similarly, the process by which Seattle raised its minimum wage entailed creating a task force on which both labor and business were represented. The task force hammered out a compromise proposal, which was ultimately enacted by the City Council. In both instances (and many others, which Andrias documents), union representatives literally bargained with management representatives over conditions for large numbers of workers – though the final result then had to be ratified by government. Andrias calls this tripartite process “social bargaining,” and she argues that it could be replicated: “Under the emerging model, employment law is no longer just a collection of individual rights to be bestowed by the state. Instead, it is a collective project to be jointly determined and enforced by workers, in conjunction with employers and the public.” (P. 68.)

In addition to identifying the practice of social bargaining in the United States, Andrias argues that it could lead to two results: first, improving union prospects for traditional collective bargaining for working conditions above the minimum guaranteed by law, and second, creating new forms of labor organizations and funding mechanisms. The most concrete manifestation of the first can be seen in minimum employment standards that contain a carve-out for unionized employers – as Andrias notes, a practice that can generate controversy. But beyond that, Andrias argues that growing political support for better pay and benefits can soften employer resistance to offering higher wages at the bargaining table. As to union funding mechanisms, Andrias’s possibilities are less concrete, but they include possible fee-for-service models (which the NLRB could facilitate), as well as government funding of union programs that benefit non-union workers.

As Andrias acknowledges, finding a way for unions to pay for social bargaining is perhaps the greatest challenge to the model’s success. Unions’ loss of density and political power have gone hand-in-hand – they are a vicious cycle. Movements like Fight for $15 have shown that labor can still deliver the goods for low-wage workers, but they are expensive, and dues-paying members may not be willing to fund them indefinitely. Whether labor can solve the funding problem while fighting off new threats from the federal government will likely be the single largest determinant of whether social bargaining proliferates. At the same time, the lack of a long-term funding mechanism is not the only challenge to social bargaining – Andrias also points to legal threats, including federal or state preemption of local laws.

Over the course of the next four years, we are likely to see manifested two diametrically opposed visions for improving the lives of low-wage workers – a deregulatory one in red states and cities, and a social-bargaining-based one in their blue counterparts. Andrias’s article offers scholars and other commentators a framework for thinking about the latter, and in doing so, performs a great service.

Cite as: Charlotte Garden, A New Approach to Labor Law in States & Cities, JOTWELL (June 8, 2017) (reviewing Kate Andrias, The New Labor Law, 126 Yale L.J. 2 (2016)), https://worklaw.jotwell.com/a-new-approach-to-labor-law-in-states-cities/.

(Un)Equal Opportunity Shaming

Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581 (2016).

This article, by Professor Wendy N. Hess, picks up on an important issue, largely ignored in the legal literature until now: so-called “slut-shaming” in the workplace. “Slut-shaming” involves denigrating a person – most often a woman – on the basis of her actual or perceived sexual activity. It reportedly takes place quite a bit in the workplace, and usually with deleterious effects on victims’ reputations, work product, and career trajectories. This article thus picks up on a salient issue in the contemporary American workplace and provides an excellent exposition of a split among courts that reveals the unwillingness of some judges to acknowledge the empirical truth that men who are perceived as promiscuous are often seen as “studs,” while women so perceived are seen as “sluts,” and subsequently downgraded in the esteem of co-workers and employers. Once so thoroughly presented, this collision between this double standard and the antidiscrimination mandate of Title VII crystallizes and cannot be ignored.

The article critiques the ways in which courts have dealt with hostile work environment sexual harassment claims stemming from rumors and/or attacks premised on the plaintiff’s perceived sexual promiscuity. The article expertly lays out courts’ historic confusion as to when alleged harassment has occurred “because of” the victim’s sex, as required by Title VII, and makes the compelling point that “Courts have often failed to recognize the gendered aspect of sexual rumors about women.” It boils down to the fact that, as Professor Hess contends, in many situations, due to the so-called “double bind” or “double standard,” seemingly similarly situated men and women could not, in reality, be any more differently situated. And when it comes to “slut-shaming,” Professor Hess could not have found more fertile ground upon which to make her point. She thus exhorts courts to identify the double standard that makes rumors about a female employee’s sexual promiscuity “uniquely insulting to women.”

One major contribution of the article is its substantiation with social science research of a matter that seems intuitively true: rumors of promiscuity undermine a woman’s professional, social, and intellectual credibility in a way that they do not undermine men’s. Particularly interesting is Professor Hess’s extrapolation of the phenomenon of “slut-shaming” in adolescents to adults in the workplace, and her citation to sources for her contention that “Sexually permissive women are judged more negatively than sexually permissive men, not just on the basis of sexual morality, but also on a variety of competency measures relevant to a person’s success in the workplace.” Of use to Title VII litigators, she amply articulates a basis upon which courts could find that despite the dissemination of rumors about men and women, women are uniquely harmed because of their sex.

The phenomenon that Professor Hess describes is similar to family responsibility discrimination (“FRD”), a legal doctrine that protects from workplace discrimination a woman who experiences prejudice based upon her status as the mother of small children. Courts recognized FRD because women are more likely than men to be judged negatively for their caretaking roles, even though either a man or a woman could in theory be discriminated against because of their family responsibilities. Professor Hess describes slut-shaming in much the same way. While both men and women are susceptible to attacks, speculation, and gossip about their sexual activities and feelings, women are made to suffer from these things in a uniquely harmful way. Given Professor Hess’s analysis, the potential doctrinal parallels are clear.

Particularly standout features of this article include Professor Hess’s exposition of the confusion over Title VII’s “because of” requirement and the various evidentiary routes that plaintiffs can use to move a court to the conclusion that their injury stems from discrimination or harassment “because of” their sex. Also of particular interest is Professor Hess’s nuanced critique of the misguided view that “because of” be construed to require that the harasser consciously desire to harass his victim because of her sex. As she incisively notes, this premise “incorrectly assumes that most harassers are self-aware enough to articulate a conscious motive,” and she reminds the reader that “it is conceivable that a harasser can [act]…without awareness that [he]…was motivated by hostility to a woman in the workplace.” Her characterization of rumors about promiscuity in the case of female plaintiffs as “gender-based insults” is astute, and it serves to guide the reader through her discussion of courts’ split over whether such rumors are inflicted because of sex and land them at her conclusion that “Women who are made the subject of sexual rumors in the workplace should be able to seek redress under Title VII because the harassing conduct meets the…requirement that it be ‘because of’ sex.”

Finally, Professor Hess’s discussion of the putative “equal opportunity harasser,” whom many courts would say could not be seen to have acted “because of sex,” is very important. Her characterization of this reasoning as an invidious stumbling block to sound analysis is excellent. Scholars have long decried the “equal opportunity harasser” and the perverse effect of his additional harassment of men as a form of insulation from liability arising from, or perceived mitigation of, the harm inflicted by his harassment of women. This article’s examination of “slut-shaming” through the lens of the equal opportunity harasser problem brings the issue into sharper focus and ultimately lends tremendous credence to her argument about the split she is addressing and her suggestion as to how it should be resolved. All in all, this is an important article about a largely ignored issue and doctrinal split, and it makes for an enlightening and enjoyable read.

Cite as: Kerri Lynn Stone, (Un)Equal Opportunity Shaming, JOTWELL (May 15, 2017) (reviewing Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims, 40 N.Y.U. Rev. L. & Soc. Change 581 (2016)), https://worklaw.jotwell.com/unequal-opportunity-shaming/.

Incentivizing and Protecting OSH Whistleblowers

Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act, ABA J. on Lab. & Emp. L. (forthcoming 2017), available at SSRN.

At the heart of Emily Spieler’s incisive critique of the whistleblower protections of the Occupational Safety and Health Act (OSH Act) is a basic design question: How might a society enforce workplace safety mandates? On one hand, a top-down government inspectorate might proactively investigate occupational hazards and punish violating employers. On the other, workers who are ill or injured, or who have knowledge of safety risks, might take bottom-up enforcement action through a private lawsuit or other direct action. Or there might be combinations of the two: workers might feed complaints and tips to government, while retaining (or not) some right to take action on their own. In all cases, workers play a central role: as tipsters, complainants, witnesses, litigants. Here is where law and policy makers face a second set of design choices. Given workers’ key role in enforcement, how might they be incentivized to take action, and protected against the downside risks of doing so?

Spieler’s subject, Section 11(c) of the OSH Act, seeks to protect workers who make safety complaints or otherwise participate in investigatory and enforcement proceedings under the Act. Though the OSH Act contains no private right of action – placing it closer to the top-down end of the enforcement spectrum – worker complaints and worker-provided information are nevertheless central to the agency’s investigation and enforcement activities. And as Spieler’s careful analysis reveals, Section 11(c) falls far short of incentivizing or protecting those workers. However, Spieler offers a way forward at the state level, and so her article simultaneously identifies a suite of problems and offers at least a partial fix.

Drawing on data on the processing and outcomes of 11(c) claims, Spieler identifies four major design flaws. First, workers who claim retaliation for activity protected by the OSH Act must proceed through an opaque, often dead-end administrative exhaustion process, and have no private right of action. Workers must first file a complaint with the relevant regional OSHA office. If the regional investigator finds merit and cannot facilitate settlement, the complaint is referred to the regional office of the Solicitor of Labor (SOL), which decides whether to litigate the claim in federal district court. As Spieler observes, SOL decisions are “entirely non-reviewable,” and unlike the Equal Employment Opportunity Commission’s litigation decisions about employment discrimination charges, workers have no right to proceed to court on their own after an SOL decision. Spieler’s data reveal that about two-thirds of 11(c) complaints were screened out by regional OSHA investigators in FY 2011-2015, and the SOL declined to pursue almost sixty percent of the referrals that it received in the period from 1996-2008.

Second, workers must initiate an 11(c) claim within an extremely short, thirty-day statute of limitations period. As Spieler observes, federal antidiscrimination and wage and hour statutes allow much longer time periods, and “every whistleblower law passed after 2000 allows at least 180 days for filing with the appropriate administrative agency.” Given that OSH Act whistleblowers may themselves be recovering from occupational illness or injury, the thirty-day complaint period almost certainly suppresses claims.

Third, 11(c) does not provide for preliminary reinstatement for terminated workers upon a determination that their retaliation claims are non-frivolous – an option offered by other recent whistleblower statutes and the Mine Safety and Health Act of 1977. Thus, even workers with meritorious claims can be left jobless during the pendency of a retaliation investigation.

Fourth, workers must satisfy a high standard of proof, establishing that retaliation was a “but for” cause (though not necessarily the sole cause) of the adverse action they experienced. Like the statute of limitations, this standard departs from other whistleblower laws, which require proof only that retaliation was a “contributing factor” in the employer’s decision. And like the other flaws that Spieler identifies, this high standard of proof makes 11(c) claimants’ uphill climb even steeper.

Spieler’s data reveal a final problem with the design of the 11(c) scheme: of the claims settled at the initial OSHA investigation phase between 2009 and 2015, the average worker recovery was only $7300. Though we do not know from Spieler’s data the value of these workers’ original claims, or their possible recovery via litigation, it seems clear, in Spieler’s words, that these amounts are “unlikely to reflect the full value of lost wages” or to be “large enough to discourage employers from unlawful retaliation.” Taken together, Spieler’s analysis shows how these shortcomings leave terminated workers with little incentive to go to OSHA to enforce their rights against retaliation; bad-actor employers have little incentive to refrain from retaliation.

Against this bleak backdrop, Spieler does note several bright spots in 11(c) claims processing and enforcement. During the Obama Administration, the SOL began taking action on substantially more 11(c) referrals, and OSHA has implemented various training and policy improvements around retaliation issues. Whether any of these reforms survive in a Trump Administration Department of Labor is anyone’s guess. However, Spieler notes one additional area of promise that may be somewhat insulated from federal executive branch politics. Under the OSH Act, states may design and implement their own occupational safety and health plans that equal or exceed the protections offered by federal law. Twenty-one states have done so. These states are therefore free to change the structure of their OSH whistleblower protections. In doing so, they can draw from the menu of design choices in place in other areas of whistleblower and employment law, even beyond those that Spieler identifies: a private right of action for retaliation claims after administrative exhaustion, double or treble damages, attorneys’ fees, class and collective action mechanisms, extended statutes of limitation, and preliminary reinstatement. Further, as Spieler points out, even states without OSHA state plans might recognize a state-law cause of action for wrongful termination to protect whistleblowers who are fired after raising safety concerns. Given perpetual federal inertia, and what is likely to be outright hostility to workplace regulation in a Trump Administration, states should take Spieler’s critique to heart and design a better system for incentivizing and protecting OSH whistleblowers.

Cite as: Charlotte S. Alexander, Incentivizing and Protecting OSH Whistleblowers, JOTWELL (April 14, 2017) (reviewing Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act, ABA J. on Lab. & Emp. L. (forthcoming 2017), available at SSRN), https://worklaw.jotwell.com/incentivizing-and-protecting-osh-whistleblowers/.

The Joy of Serious Doctrinal Analysis of Disparate Treatment and Disparate Impact Discrimination

In Confusion on the Court, Professor Michael Harper discusses how in two recent cases the United States Supreme Court appeared to confuse two critically important concepts in employment discrimination law: disparate treatment (intentional discrimination) and disparate impact (unintentional discrimination). Professor Harper’s essay is worth a Jotwell jot because it rigorously analyzes a core doctrinal issue in employment discrimination law while subtly reminding readers how issue framing can drive doctrinal analysis. I am partial to Professor Harper’s approach because it is useful to four groups: judges shaping the employment discrimination field, legal scholars thinking about the field, legal practitioners working in the field, and law students just learning about the field.

The essay considers the Court’s different approaches to seemingly similar factual situations. In Young v. UPS, 135 S. Ct. 1338 (2015), the Court viewed UPS’s application of its disability policy to refuse to accommodate a worker’s pregnancy as a disparate impact issue; whereas in EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015), it viewed Abercrombie & Fitch’s application of its headwear policy to decline to hire a Muslim applicant who wore a headscarf as a disparate treatment issue. As Professor Harper notes: “The Court seemed to give contradictory answers to an important, unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group, based on their protected status, to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or, in the alternative, does such an assignment have only a disparate impact on the protected group?” (P. 545.) Professor Harper describes how the Court analyzed the cases, explains how he thinks the Court misanalyzed the cases, and suggests future course corrections.

In discussing the cases in depth, Professor Harper explains why the Court treated the cases differently. In Young, UPS applied its light-duty accommodation policy to a pregnant employee and declined to accommodate her. It treated the employee as a part of the larger group of people who had disabilities that did not need to be accommodated under the policy. The Court suggested that the employer’s placement of the plaintiff in the broader class of people who did not need to be accommodated was not motivated by her pregnancy. Consequently, the case was treated as a disparate impact case involving the application of a rule that might lead to unintentional discrimination against pregnant women. Conversely, in Abercrombie & Fitch, the employer declined to hire a Muslim woman applicant who wore a headscarf. Abercrombie & Fitch functionally treated her as part of the larger group of people who would violate the company’s “Look Policy” by wearing caps, whether those caps were worn for religious reasons or other reasons. However, the employer contemplated (without knowing) whether the applicant wore the headscarf for religious reasons before applying the rule and before denying her employment. Consequently, the Court treated the case as a disparate treatment matter involving intentional discrimination.

Professor Harper argues that both cases should be treated as disparate treatment cases. He explains that in both cases, the employer’s policy treats a protected group as part of a larger group that is disadvantaged under the relevant policy. Applying the policy to the larger group constitutes disparate treatment of the protected group. To him, the cases appear indistinguishable, and should be analyzed the same. The essay’s careful critique of the Court’s approaches to the two cases is worth the read, even if the reader is not as critical of the Court as Professor Harper is.

Ultimately, the essay requires the reader to consider how crucial framing is to doctrinal analysis. Professor Harper frames the issues in both cases as being the same. If the Court framed the issues as Professor Harper does, it would treat the cases in the same way; it does not. Professor Harper focuses on how the employers’ policies applied to and affected protected groups. The rules treated protected groups differently than some non-protected groups, so the protected groups were disparately treated. Conversely, the Court focused on the employers’ narrow motivation in the two cases. In Abercrombie & Fitch, the employer considered the applicant’s protected status before applying the policy. That consideration triggered the disparate treatment (intentional discrimination) framework. In Young, the employer applied its policy, arguably without explicit consideration of the employee’s pregnancy. Without such contemplation, the policy’s application triggers merely the disparate impact (unintentional discrimination) framework. Whoever is correct, the essay forces us to think harder about why Professor Harper and the Court frame the issues differently and reach different conclusions regarding how to analyze Young.

The essay is good for employment discrimination judges, scholars, practitioners, and students to read because it raises doctrinal issues that courts need to decide. The doctrinal test for finding an employer liable for disparate treatment discrimination is different than the test for finding an employer liable for disparate impact discrimination. In addition, the defenses to disparate treatment are much narrower than the defenses to disparate impact. So whether a case implicates disparate impact rather than disparate treatment, or vice-versa, is important. This is especially true in pregnancy and religious discrimination cases, because employment discrimination law suggests that pregnant employees and religious employees ought to be accommodated when possible so that they may continue to work. Treating a pregnant or religious employee’s case as a disparate impact matter rather than a disparate treatment matter may make a refusal to accommodate the employee easier. Thus, determining when a situation involves disparate impact rather than disparate treatment is critical. Professor Harper and the Supreme Court take different approaches to when the application of a policy should be analyzed as a disparate treatment matter. The reader can determine who is more convincing. Nonetheless, the discussion is illuminating. That makes this essay worth a serious read.

Cite as: Henry Chambers, The Joy of Serious Doctrinal Analysis of Disparate Treatment and Disparate Impact Discrimination, JOTWELL (March 16, 2017) (reviewing Michael C. Harper, Confusion on the Court: Distinguishing Disparate Treatment from Disparate Impact in Young v. UPS and EEOC v. Abercrombie & Fitch, Inc., 96 B.U. L. Rev. 543 (2016)), https://worklaw.jotwell.com/the-joy-of-serious-doctrinal-analysis-of-disparate-treatment-and-disparate-impact-discrimination/.