Weekend News & Commentary — July 1-2, 2017

This week, the Department of Labor expressed its intention to change its impending overtime rule.  The Labor Department filed a response brief in a Fifth Circuit case involving a challenge to the Obama administration’s overtime rule.  The rule, which was intended to go into effect last December, increased the salary threshold under which workers would receive time-and-a-half pay for work exceeding 40 hours per week to $47,467.  A month before the rule was supposed to take effect, a federal judge in Texas issued an injunction, enjoining the rule in State of Nevada v. United States Dep’t of Labor.  The Obama administration appealed, and the Trump administration elected to continue the challenge.  However, the government’s reply brief makes it clear that the Labor Department intends to revise the pending rule.  Instead of defending the salary threshold established by the rule, the Department of Labor is asking the Fifth Circuit to affirm the Department of Labor’s authority to set threshold salaries for overtime pay, which the lower court opinion called into question.

Last week, the Second Circuit enforced a National Labor Relations Board order finding that an employee’s Facebook post was protected by the National Labor Relations Act in NLRB v. Pier Sixty, LLC.  The employee was fired after his employers discovered the post, which included profanity-laced comments about the employee’s supervisor.  The employee subsequently filed a ULP complaint with the NLRB.  An Administrative Law Judge found that the employee’s comments were protected concerted activity under Section 7 of the NLRA.  The Second Circuit concluded that although the comments were at the outer bounds of protected activity, they were nonetheless protected because they encouraged employees to vote for the union in an upcoming election.  In reaching its decision, the Court considered the fact that the post was made two days before a union election and brought up workplace concerns.  The Court also considered the fact that Pier Sixty had not fired or disciplined other employees for similar behavior in the past.  Lastly, the Court considered the method the employee used to communicate, noting that social media is a popular forum for communicating and organizing among workers.

The Second Circuit also denied a plaintiff’s request to review Christiansen v. Omnicom Group, Inc. en banc.  In Christensen, the plaintiff argued that Title VII prohibits discrimination on the basis of sexual orientation.  Relying on circuit precedent establishing that sexual orientation-based discrimination is not sex discrimination under Title VII, a three-judge panel dismissed the plaintiff’s sexual orientation discrimination claim.  The Second Circuit’s denial does not mean it is unwilling to revisit the possibility that discrimination on the basis of sexual orientation is sex-based discrimination under Title VII.  In May, the Second Circuit granted en banc review of Zarda v. Altitude Express.  In Zarda, the plaintiff also brought suit under Title VII, alleging discrimination on the basis of sexual orientation.  The Court upheld the lower court’s finding that Title VII does not protect against sexual orientation-based discrimination.  If the Court overturns Zarda, the Second Circuit would join the Seventh Circuit in finding that discrimination based on sexual orientation violates Title VII.

On Friday, the New York Times chronicled female entrepreneurs’ experiences with sexual harassment in Silicon Valley.  More than two dozen women shared their stories about being sexually harassed by investors and venture capitalists.  Female entrepreneurs shared stories that ranged from being propositioned and touched without consent while seeking jobs, to sexist comments made in the course of trying to secure funding.  These stories speak to a pervasive culture of sexism that may help explain the gender imbalance in the tech industry.  As the article notes, more women have begun to speak out, which may signal the beginnings of a cultural shift within the industry.


Weekend News & Commentary — June 17-18, 2017

Recent statistics from U.S. Citizenship and Immigration Services show that thousands of undocumented immigrants have been issued work permits by the Trump Administration pursuant to the Deferred Action for Childhood Arrivals Program.  DACA provides undocumented immigrants with a work permit that is subject to renewal after two years.  The statistics show that over 17,000 new DACA applicants were approved, and 107,000 immigrants already enrolled had their two-year work permits renewed in the first three months of 2017.  Thus far, President Trump has been unclear as to whether or not he intends to keep DACA.

Last week, the 4th Circuit affirmed a judgment against an employer for failing to accommodate an employee’s religious belief in EEOC v. Consol Energy, Inc.  The employer, Consol Energy, installed a biometric hand-scanner system to monitor its employees in 2012.  An employee claimed that using the scanner would be contrary to his evangelical Christian beliefs because it would mark him with the “Mark of the Beast,” which he believed was associated with followers of the Antichrist.  After Consol declined the employee’s request for a religious accommodation, the EEOC brought suit.  The EEOC argued that Consol failed to provide an accommodation and constructively discharged the employee, violating Title VII.  The jury found in favor of the EEOC, determining that the employee had a sincerely held religious belief that he informed the employer of, and that the employee was constructively discharged.  The 4th Circuit affirmed the district court’s judgment, emphasizing that a jury could reasonably conclude the employee sincerely believed using the scanner would mark him, even in the absence of a physical mark.  The court also found that Consol could have feasibly made an accommodation that would not have imposed undue hardships.

On Friday, Amazon announced that it is purchasing Whole Foods for $13.4 billion.  The acquisition is the company’s latest attempt to establish a larger presence in the food and beverage market.  The sale will likely have significant impacts on Whole Foods employees, and cashiers more generally.  Although Amazon has not publicly stated how Whole Foods’ day-to-day operations will change, increased automation is likely.  Amazon has already begun experimenting with grocery stores that have no cashiers.  The company has opened an Amazon Go store in Seattle that has no checkout lines and no salespeople.   While Amazon Go is only in its testing phase, a shift towards automation in retail services may be imminent.  The Bureau of Labor Statistics projects that the rate of growth for cashier jobs will decline as a direct result of technological developments.  Studies show that a large portion of the work done by grocery store workers could be automated, and likely will be in the near future.  Amazon’s purchase may very well be a significant step towards this anticipated increase in automation.


Missing the Pointe: How Ballet Unionization Efforts Fall Short

Intense athleticism may not be the first thing that comes to mind when an audience watches a ballerina pirouette across a stage. Making challenging movements look effortless and graceful is part of the job, but make no mistake: ballet can be just as demanding and just as dangerous as a professional sport. Allynne Noelle knows that all too well. Noelle became a professional dancer at the age of 15. During her 17-year career, she has broken two ribs, had two metatarsal stress fractures, and tore her Lisfranc ligament midway through a performance without realizing it. Her last injury forced her off stage and into an operating room to remove the scar tissue in her right foot. Luckily, her surgery and rehabilitation were covered by workers’ compensation, but Noelle could not afford to purchase health insurance on her salary. She returned to the stage two years later, but her dance company didn’t offer her health insurance, leaving her uninsured for four years.

Unfortunately, Noelle’s story is not a unique one. The world of ballet is one filled with chronic and severe injuries, expectations that dancers will work through the pain, and too little compensation. The high risk of injury makes health insurance crucial, yet many dancers go without it. Unionization aims to solve many of these problems, but ultimately does not address them all. The labor issues in ballet have been largely ignored, but are beginning to come to the fore as dancers demand better working conditions

Too Many Injuries, Too Little Pay

Statistics on the rate of injury for ballet dancers reveal that they suffer injuries that are comparable to athletes in terms of severity. One study found that the rate of injury over an 8-month period was 61%, which is comparable to the rate of injury in contact sports like football or wrestling. Injuries frequently result in an average of 10.5 days of time lost per injury. A significant portion of these injuries were overuse injuries, caused by grueling rehearsal and performance schedules. Common overuse injuries include patellofemoral pain syndrome, rotator cuff injuries, stress fractures, and chronic hip and lower back injuries. The prevalence of overuse injuries is not surprising, given the physiological stress ballet places on the body. Common ballet positions like demi-pliés and en pointe require dancers to put a great deal of strain on their lower body, particularly their ankles and feet. Even with the most precise technique, this type of weight bearing over the course of nine-hour work days, coupled with dancers’ propensity to push through pain makes injury unavoidable.

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Weekend News & Commentary — June 3-4, 2017

Last week, the Illinois State Senate voted to increase the state’s minimum wage to $15 by 2022.  The bill provides for an incremental wage increase over the course of five years.  Currently, the state’s minimum wage is $8.25.  Many low wage workers have praised the bill, but many smaller employers have expressed concern.  While the bill would initially provide tax credits for small businesses to help them transition to paying higher wages, some business owners worry about how much the wage increase will impact profits. Illinois Governor Bruce Rauner must now decide whether or not he will sign the bill into law.  The governor has criticized the bill, claiming the measure would have detrimental impacts on job creation and small businesses.  If the bill becomes law, Illinois would be the third state to raise its minimum wage to $15.

On Thursday, the Second Circuit issued an opinion in Whole Foods Market Group Inc v. NLRB, No. 16-0346, a case involving a Whole Foods policy that prevented employees from making video or audio recordings at work.  The court held that the policy is unlawful because it violated provisions of the National  Labor Relations Act.  In a unanimous opinion, the three-judge panel determined that “the Board reasonably concluded that the policies’ overbroad language could “chill” an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert.”  The Second Circuit’s ruling upheld a 2015 National Labor Relations Board ruling, which determined that Whole Food’s policy was so broad that it could be construed to prevent employees from engaging in activities protected by federal labor laws.

According to the Washington Post, Walmart has begun asking its employees to deliver online orders on their way home from work.  Executives claim the program, similar to ride-sharing services like Uber, would make the fulfillment process less expensive by cutting transportation costs.  Walmart executives also hope the service will help the retailer compete with popular e-commerce platforms like Amazon.  Currently, Walmart is testing the delivery program in three stores.  The program is voluntary, and employees who participate would be paid extra and offered overtime pay for the deliveries.  The company has not specified how employees who participate in the program would be paid.  Some labor experts have raised concerns about the potential risks employees could incur, and the ways in which Walmart could abuse the policy.