Solicitor General Reverses Position in Murphy Oil

This post is part of OnLabor’s continuing analysis of National Labor Relations Board v. Murphy Oil USA.

Despite previously submitting a petition for writ of certiorari for the National Labor Relations Board, the Solicitor General’s office has reversed its position in the consolidated cases of Murphy Oil USA, Epic Systems, and Ernst & Young and urges that the Supreme Court find that class action waivers are enforceable.  In an amicus brief submitted to the Court on Friday, the Solicitor General’s office explained that it has rethought its support for the Board after the election of President Trump.  The Solicitor General’s office writes:

“We do not believe that the Board in its prior unfair-labor-practice proceedings, or the government’s certiorari petition in Murphy Oil, gave adequate weight to the congressional policy favoring enforcement of arbitration agreements that is reflected in the FAA.  More specifically, the Board’s view that the phrase “other concerted activities” in 29 U.S.C. 157 encompasses participation in collective or class litigation may reflect a permissible interpretation of that language, such that an employer might commit an unfair labor practice by discharging employees who initiated or joined such suits in accordance with other provisions of law.  It does not follow, however, that Section 157 expands the range of circumstances in which such litigation can go forward, by allowing employees who validly waived their collective-litigation rights under the FLSA to escape the consequences of that choice.  The Board’s approach fails to respect the FAA’s directive that arbitration agreements should be enforced unless they run afoul of arbitration-neutral rules of contract validity.”

This reading of the two statutes is a sharp departure from the government’s position in its petition for writ of certiorari where the Solicitor General argued:

“the ability to engage in concerted activities under the NLRA is not a mere procedural means for vindicating some other statutory right. It is, as the Board has concluded, ‘the core substantive right protected by the NLRA and is the foundation on which the Act and Federal labor policy rest….This Court has never held that arbitration agreements may waive such substantive rights or be given effect in contravention of the statutes that create and protect those rights.”

Again, the full amicus brief is available here.

Thinking About Parental Leave on Father’s Day

This Father’s Day, is it time to challenge our assumptions when it comes to parental leave?  Derek Rotondo thinks it is.  Rotondo, a JP Morgan employee, was denied parental leave because the company presumed his wife would be the primary caregiver for their children.  Last Thursday, Rotondo filed a complaint with the EEOC arguing that JP Morgan’s parental leave policy violates state and federal anti-discrimination laws.  The complaint alleges that Rotondo attempted to take advantage of JP Morgan’s leave policy, which provides 16 weeks of paid leave after the birth of a child to the “primary caregiver,” but was told both orally and in writing that the policy presumes that the primary caregiver is the biological mother.  The complaint was filed “on behalf of all fathers who have previously been eligible to receive paid parental leave from JPMC” and challenges JPMC’s “pattern or practice of discriminating against fathers in the provision of paid parental leave by denying them caretaking leave on the same terms as mothers based on their sex and sex-based stereotypes.”  Galen Sherwin, a senior staff attorney at the ACLU Women’s Rights Project, told the Washington Post that this case is thought to be the first private sector challenge to a parental leave policy which distinguishes between primary and secondary caregivers.  A case filed against CNN, which challenged parental leave policies that explicitly gave preference in giving caretaking leave to biological mothers, was settled in 2015.

Although the EEOC has not yet stated whether it will launch an investigation into Rotondo’s claims, the challenge has firm footing in the EEOC’s 2015 Guidance on Parental Leave, which unequivocally requires gender-neutral parental leave policies, stating that “[while] leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions…. parental leave must be provided to similarly situated men and women on the same terms.”  Additionally,  as Professor Vicki Schultz of Yale Law School argued to Bustle, the 2003 Supreme Court Case Nevada v. Hibbs already found that anti-discrimination laws could apply to unequal parental leave policies

Not only is gender-neutral parental leave supported by the law, it’s also good policy. Paternal leave policies which exhibit an explicit or implicit preference for biological mothers not only disadvantage men who choose to take parental leave, they also reinforce sex stereotypes, exacerbate the gender-pay gap, and have a disparate impact on LGBTQ+ workers and families.

Despite the notable disadvantages of policies like JP Morgan’s, it is worth mentioning that paid parental leave policies are still a rare benefit for the U.S. workforce.  According to Slate, 114 million people receive no paid parental leave, and nine of the top 44 US employers, including Amazon, Walmart, McDonald’s, Marriott, and Nike, provide paid leave only to its highly-paid workers.  The good news is that we may soon see significant change in parental leave policies across the country: the New York Times reports that bipartisan talks are in the works for a federal program which would provide paid parental leave to all new parents—including fathers.

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.

 

Deregistering Apprenticeships and Devaluing Accountability

On Thursday, President Trump signed an executive order purporting to boost the Department’s apprenticeship program. In announcing his plans to make available more federal grant money for new apprenticeship programs, Trump also announced that he would diminish federal oversight of these new programs. Traditionally, DOL has required grantees to register their apprenticeship programs with DOL or the appropriate state agency in order “to safeguard the welfare of apprentices, ensure equality of access to apprenticeship programs, and provide integrated employment and training information to sponsors and the local employment and training community.”  Calling regulations that protect the quality and integrity of apprenticeship programs “obstacles“, the Trump Administration instead will allow employers and other third parties to police their own quality control.  Trump’s weakening of the apprenticeship registration system is significant because in the past, including during the Obama Administration, job training had been one bright spot of bipartisanship. The reaction from Democrats to today’s announcement was mixed. While the White House touted the initiative as pro-worker because it includes a proposal to approximately double the amount of money for apprenticeship grants, the proposed increase would come from cuts to other DOL job training programs and pales in comparison to Trump’s proposed $2 billion in cuts to the overall workforce training budget.

Daily News & Commentary — June 15, 2017

The number of Americans filing for unemployment dropped 8,000 to 237,000 last week, which was 5,000 more than economists had expected. For 119 straight weeks, claims have been below 300,000, which is the threshold associated with a healthy labor market. The New York Times reports.

Baltimore is training youths for both public and private-sector jobs in the water industry. The Baltimore City Water Industry Career Mentoring Program aims to solve two of Baltimore’s biggest problems: joblessness and a polluted Inner Harbor and Chesapeake Bay. The program covers everything from working on pipes to fixing erroneous water bills, and includes mentoring for youth. Several city council members have advocated for more city agencies to create similar apprenticeship programs. The Washington Post reports.

Today, Trump is expected to sign an Executive Order to expand apprenticeships and job-training programs by giving more freedom to third-party companies and schools (previously noted here). Though the Department of Labor will provide oversight on the program, the order will shift certification of federally funded apprenticeship programs from the Labor Department to grant recipients themselves; instead of reporting to the Labor Department, companies can essentially monitor themselves.

This week, the EEOC commissioners held a meeting convening experts and lawyers to discuss the presence of age-related discrimination in the workplace. Advocates urged the EEOC to be more aggressive in pursuing cases of discrimination that begin as early as the job search. Some job listings require maximum years of experience or that applicants be “digital natives,” meaning the applicants grew up using technology. Past research has shown that younger applicants received more callbacks for entry-level positions than applicants aged 64-66, despite having identical resumes. For older women, the discrimination is more severe and starts earlier than for older men. The Washington Post reports.

Daily News & Commentary — June 14, 2017

Yesterday in Whole Foods Market, Inc. v. N.L.R.B., the Second Circuit upheld an NLRB ruling that an employer’s blanket policy prohibiting recordings in the workplace violated its employees’ rights to engage in protected concerted activities. The Second Circuit agreed with the Board majority that there was enough from previous NLRB cases to support that workers’ rights could be vindicated with recordings and that the broad rules could hinder their ability to gather evidence.

President Donald Trump has yet to nominate anyone for the two vacant seats on the National Labor Relations Board, though he did elevate the lone Republican, Philip Miscimarra, to Chairman. That position allows Mr. Miscimarra to slow the issuance of agency decisions, resulting in 40% fewer cases decided by the Board in the first half of this year as compared to 2016, reports the Wall Street Journal. Bloomberg has a list of the final candidates under consideration, all of which are expected to be much friendlier to employer interests than those nominated under President Obama.

Former Attorney General Eric Holder’s firm released its report and recommendations to Uber following allegations of widespread sexual harassment and a toxic culture. Business Insider and the New York Times offer good summaries of the report. CEO Travis Kalanick announced he would take a leave of absence following the report, an extraordinarily rare move for a sitting CEO.

Human Rights Watch announced today that workers building venues in Russia for the country to host the 2018 World Cup have been exploited and abused. The New York Times has a good summary of the report. FIFA, the organization that chooses host sites and oversees the World Cup, has repeatedly come under fire for ignoring such exploitation in connection with the tournament.

Daily News & Commentary — June 13, 2017

New York City’s Transport Workers Union (TWU) Local 100 endorsed Mayor Bill De Blasio’s proposed Brooklyn-Queens Connector (BQX)—a sixteen-mile, 24/7 streetcar planned to run along the East River.  The project is controversial in part because of how expensive it would be.  John Samuelson, TWU’s president, said that the project would facilitate “several hundred jobs.”

Yesterday, Teamsters working at Vistar Foodservice’s distribution facility in Ontario, CA began an unfair labor practice strike.  Vistar delivers food to movie theater chains throughout southern California.  The strike was undertaken in order to protest Vistar’s decision to give some workers a raise, but withhold a raise for others.

On Friday, the D.C. Circuit upheld the NLRB’s revision to the formula it uses to calculate backpay awards to workers who have been unlawfully terminated.  The D.C. Circuit panel ruled, unanimously, in the case against King Soopers (a division of the Kroger supermarket company) that King Soopers had to pay a former employee’s “search-for-work” expenses.  The rule laid down by the Board requires the NLRB’s general counsel to demonstrate that the unlawfully terminated employee’s expenses are reasonable.  Philip A. Miscimarra, who Trump appointed Chairman of the NLRB this past spring, was the lone dissenter in the NLRB’s 3-1 ruling.  In Miscimarra’s view, the rule would produce a windfall to claimants whose interim earnings equal or surpass the sum of their lost earnings and search-for-work expenses.

On Wednesday, the EEOC will meet, in honor of the 50th anniversary of the Age Discrimination and Employment Act (ADEA).  The meeting will feature speakers like Laurie McCann of the AARP Foundation Litigation, and Jacqueline James of Boston College’s Center for Research and Education.  The Commission will consider the state of age discrimination and the future challenges it poses.  Also on Wednesday, a subcommittee of the U.S. House of Representatives Committee on Education and the Workforce will hold a hearing on three Republican bills:  The Employee Rights Act (which we have previously discussed); The Workforce and Democracy Fairness Act; and The Employee Privacy Protection Act.