Pay Equity: Somebody Has to Regulate - By Sabine Jean - Wiley Rein
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WINTER 2020 ■ VOLUME 48, NUMBER 2
SECTION OF LABOR AND EMPLOYMENT LAW ■ AMERICAN BAR ASSOCIATION
Pay Equity: Somebody Has to Regulate
By Sabine Jean
S Should employers be incentivized American Advancement filed
to report pay data? Well, as with against the Office of Manage-
everything else in the law, it ment and Budget and various
depends. The panel, “The EEOC individuals regarding the
Pay Reporting Requirement: Will enforcement of the EEOC’s pay
It Persist and Impact the Pay reporting requirement.
Gap?,” featured Olamide Adetunji, The discussion turned to the
the Fight for $15 Law Fellow Ser- audience with an attorney asking,
vice Employees International “Wouldn’t it be easier for employ-
Union; Joshua Mitchell, Ph.D., ers to simply collect this data
Senior Economist at Welch Con- internally and report out if there
sulting; Maranda Rosenthal, is a pay gap?” Shaver was quick to
Director and Senior Attorney at comment with some skepticism of
American Airline, Inc.; and Anne what employers will report. As
Shaver, a Partner at Lieff, the conversation continued, Ade-
Cabraser, Heimann & Bernstein, tunji and Rosenthal spoke of the
LLP. The program was moderated public shaming that could serve
by T. Scott Kelly of Ogletree, Dea- as a potential incentive to get
kins, Nash, Smoak & Stewart, P.C.. companies to comply with the
Pay reporting requirements in requirement. Is public shaming a
foreign countries have been a good incentive? Shaver took
hot topic of discussion in recent another view. She looked at
years. As Kelly stated while reporting as a utility. Shaver com-
framing the discussion, “the mented that “equal pay for equal
more well-known requirement is work” is not the only question.
from the United Kingdom. She suggested employers look at
Employers there that have 250 the “unadjusted median pay gap”
or more employees have to that would span beyond job title
report on their pay gap at the and geographical location and
end of each financial year.” The look at where women, employees
panelists gave overviews of dif- of color, and other protected
ferent points in the history of groups may fall—“is there a sig-
the EEOC’s pay requirement nificant difference in where
data, including discussing a women and employees of color
pending lawsuit that the and other protected groups are in
National Women’s Law Center a company? . . . [A]re they not in
and Labor Council for Latin continued on page 11
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
THE SECTION By Christopher T. Hexter
Our Section and the Wealth of Opportunities We Have to Gain
with the Latest Cutting-Edge Information in Our Field
I In the past two weeks, I have been lucky enough to have been a guest at an inspired lawyer always looking for creative ways to expand the rights
the Midwinter Meetings of three of our substantive committees: State and and security of the workers he chose to defend including modestly paid
Local Government Bargaining and Employment Law, ADR in Labor and custodians at the largest reform temple in St. Louis where Charles had
Employment Law, and Employee Benefits. At these meetings, I witnessed been president for several years. Throughout his legal career, Charles
participants discuss the latest “hot topic” issues affecting millions of was active in the Section of Labor and Employment Law, culminating in
employees, employers and retirees. For example, how likely will it be that 2005–06 as its Chair. Over the past two months, I have heard from many
federal arbitration law, as it is being interpreted almost every year by the of Charles’ friends in the Section, all of whom commented on his generos-
Supreme Court, will either require independent contractor contract ity of spirit, openness to new ideas and ways of contributing to the com-
claims to be arbitrated or permit class litigation of those claims against munity we serve. He will be sorely missed. n
the backdrop of the federal preference for arbitration? How will the rights
of individual public employees fare against the claims of public sector
unions’ contractual rights to collect bargained for dues essential to ser-
vice collective bargaining agreements? How will our country and its pub-
lic deal with the impact on pension plans, Social Security and health
insurance when more than one half of the working public have no funds Labor and Employment Law (ISSN: 0193-5739)
to cover their retirement after they no longer can work? In addition, it is published four times a year by season, by the
was gratifying at the Employee Benefits Committee Midwinter Meeting to Section of Labor and Employment Law of the
participate in its proceedings with over 50 union attorneys (out of 230 American Bar Association, 321 North Clark Street,
Chicago, Illinois 60654, 312/988-5813.
total attendees)—the largest number I have ever been with at a Midwin- www.americanbar.org/laborlaw
ter Meeting.
Well, that’s a small picture of the discussions held in the first three pro- Chair, Christopher T. Hexter, St. Louis, MO
grams of the 2020 Midwinter Meeting season. The Section will present ten Chair-Elect, Samantha C. Grant, Los Angeles, CA
more Midwinter/Midyear Meetings over the next three months. In short, Vice Chair – Union & Employee, Stephen B. Moldof
we in the Section of Labor and Employment Law have an abundance of Vice Chair – Employer, Douglas E. Dexter
riches including the opportunity to learn from experts about the rights of Immediate Past Chair, Joseph E. Tilson
driver-contractors to impact how they are paid for their work and poten- Editors
tially organize as employees in their workplaces, to learn about the latest Channah S. Broyde, U.S. Department of Labor, Atlanta, GA, broyde.channah@dol.gov
issues affecting the practice of religion as it might conflict with dress in in Amy Moor Gaylord, Akerman LLP, Chicago, IL, amy.gaylord@akerman.com
the workplace, to learn about the right of employees in engaging in politi- Robert B. Stulberg, Stulberg & Walsh, LLP, New York, NY, rstulberg@stulbergwalsh.com
cal protest at their non-unionized place of employment including orga- Lesley Tse, Getman & Sweeney, PLLC, Kingston, NY, ltse@getmansweeney.com
nized work stoppages, and how all of these national workplace issues Associate Editors
also play out internationally. In the present political environment, all of
Amanda R. Clark, Asher, Gittler & D’Alba Ltd., Chicago, IL, arc@ulaw.com
us in the Section should have a compelling interest in protecting the free-
dom of association that is essential to preserving the wages, health and H. William Constangy, Arbitrator and Mediator, Constangy@mindspring.com
welfare of employees both in the United States and across the world. Dur- Todd F. Jackson, Feinberg, Jackson, Worthman & Wasow, Berkeley, CA,
ing the next few months, I look forward to attending more Midwinter todd@feinbergjackson.com
Meetings, and along with Section Chair-Elect Samantha Grant, getting to Amber M. Rogers, Hunton Andrews Kurth LLP, Dallas, TX, arogers@huntonak.com
meet with many of you both who may be attending the Section’s Midwin- Young Lawyers Division Liaison
ter Meetings or those who may not, but who may always contact Saman- Sarah Bryan Fask, Philadelphia, PA, sfask@littler.com
tha and me about the Section.
Managing Editor, Brad Hoffman
Last, I want to recognize and celebrate the life and work of my law
partner Charles A. Werner. Charles died on December 7, 2019 one week Art Director, ABA Design, Mary Anne Kulchawik
after he celebrated his 90th birthday, surrounded by his family, friends The views expressed herein are not necessarily those of the American Bar Association or its
Section of Labor and Employment Law. The articles published in this newsletter are presented
and law partners. I practiced law with Charles for over 35 years. He was for informational purposes only and are not intended to be construed or used as general legal
advice or as solicitations of any type. Copyright © 2020 American Bar Association. Produced
by ABA Publishing. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means (electronic, mechanical, photocopying, recording,
Christopher T. Hexter (cth@schuchatcw.com) is a Partner with Schuchat, Cook or otherwise) without the prior written permission of the publisher. To request permission,
email the ABA’s Department of Copyrights and Contracts at copyright@americanbar.org
& Werner in St. Louis, Mo. He became Chair of the Section on August 10, 2019.
2 Labor and Employment Law Winter 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Tips for Identifying the Best Jury for Your Case
in the Social Media Age
By Alyssa Sediqzad
W
What trial attorney wouldn’t want done, as there is a lot of variation
to get to know his or her potential from federal judge to federal judge.
jurors better during the jury selec- Royal suggested that you
tion process? What if you could should always do your due dili-
research potential jurors and find gence beforehand. A good, time-
out all the things a judge will not efficient way to get more informa-
explicitly let you ask during voir tion about potential jurors is to
dire—for example, the political fig- provide them with a question-
ures a person follows or “likes” on naire so you can get to know
social media or how that person potential jurors quickly. Jury
feels about relevant topics, like the selection happens very quickly,
“#MeToo” movement. In some so you need to use your time as
instances, you can find that infor- efficiently as possible.
mation easily. But, when that infor- Royal also proffered that jury
mation is not readily available, or “selection” is really more like jury
you are otherwise too pressed for “de-selection,” as you are deciding
time, you would be well-served to who you don’t want on your jury.
find information about potential And, the people you want to kick
jurors in other ways. off your jury should largely be
Several panelists explored vari- driven by the facts of that case.
ous ways of identifying the best Mulaire agreed with that senti-
jury in today’s age, at the 13th ment, expressing that “the profile
Annual Labor and Employment of the juror favorable to you
Law Conference in New Orleans, should be driven by the facts of
Louisiana. The panelists were The your case.” Taylor added that it is
Hon. Nannette Jolivette Brown, important for attorneys to formu- with just a few clicks, it will save hanging out with each other on
Chief United States District Judge late questions so as to get at those them a ton of work and time. breaks? Or, are certain potential
of the United States District Court “case-specific attitudes.” However, Even if attorneys can get just a jurors reacting to certain state-
for the Eastern District of Louisi- in practice, it is not always easy to few tidbits of information on ments or questions? For example,
ana, Michael Subit of Frank, get that information. A judge is not each particular juror to help Mulaire once saw a potential juror
Freed, Subit, & Thomas in Seattle, likely to allow you to ask questions them ask targeted questions, rolled his eyes whenever the
Michael Royal of Littler Mendelson like “What is your political affilia- they still should be in a more word “transgender” was used. As
in Dallas, Dr. Jill Huntley Taylor, tion?” Rather, you want to drill advantageous position. an attorney for the EEOC, Mulaire
Director with Dispute Dynamics, down on things that may help you However, the panelists also quickly realized he probably
Inc. in Philadelphia, and Justin get to the answer. For example, warned against going too far in the would not want that person to be
Mulaire, attorney at the Chicago people more likely to side with the social media search, as you could on his jury.
office of the U.S. Equal Employ- defense see life more in “black and make a potential juror feel vio- Overall, attorneys should
ment Opportunity Commission. white” than in “gray.” lated. Many of us feel a sense of approach the jury selection pro-
Initially, the panelists noted the Beyond that, attorneys really privacy on our Facebook, Linke- cess as prepared as possible. If
differences between selecting a should focus on potential jurors’ din, etc. So, if you are going to use social media is an option, use it! If
jury in state court versus select- life experiences. Attorneys want information from a potential not, attorneys should utilize the
ing a jury in federal court. While to “put the human back in the juror’s social media to ask them a plethora of other resources avail-
state court is more relaxed, fed- process” and appreciate the question, you should be careful able and tailor questions so as to
eral court can be pretty rigid. importance of being “fair and how you use that information. If it elicit useful information, pay atten-
Judge Brown noted she often impartial.” Most of the time, is obvious to them you have tion to potential jurors’ non-verbal
asks the questions during jury potential jurors understand the researched them beforehand, you cues, and, above all, remember
selection. However, she would importance of the duty and genu- could risk alienating them. that jurors are human, too. n
encourage the attorneys on each inely want to be fair. When all else fails, Subit and
side to propose questions they Obviously, whenever possible, Mulaire suggest you pay attention Alyssa Sediqzad is an associate
want her to ask. If not, she will attorneys want to make use of to non-verbal clues. If it helps, you at Littler Mendelson P.C. in Kansas
stick to more general questions. our newfound resources in voir may want to recruit a colleague City, Missouri, where she advises
Regardless, attorneys should dire, including a potential juror’s to pay attention to such physical and represents employers in a wide
always ask a judge at the pretrial social media. If attorneys can get cues from counsel’s table. For range of labor and employment
conference how jury selection is the answers they are looking for example, which jurors are matters.
www.americanbar.org/laborlaw Winter 2020 Labor and Employment Law 3
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
A Pox on Both Your Houses
Executive Order 13839 Leaves Practitioners
on All Sides Struggling to Find a Way Forward
By Martha G. Vázquez
H Historically, the “clean record set- of the agency in resolving an language, noted that she was apprehension for agencies and a
tlement” has been a powerful bar- employee controversy. “very skeptical” of the terminology disadvantage to future employers,
gaining chip that agencies have The Executive Order states that: but also “quite certain [the writers the panelists seemed to feel quite
utilized to resolve an employee of the Executive Order] have noth- the opposite. In practice, the abil-
controversy. Such settlements Agencies shall not agree to ing to do with litigating federal sec- ity to enter into a clean-record
cost little for the agency and erase, remove, alter, or with- tor claims.” Mr. Rosenblum had to settlement was almost universally
allow the employee to move on hold from another agency agree and admitted that even recognized as a method of resolv-
from a workplace that did not any information about a agency counsel was “perplexed” ing disputes fairly at an early
work out, without documentation civilian employee’s perfor- by the terminology used in the stage, thereby saving money, time
that may hold the employee back mance or conduct in that Executive Order, which was “not and resources for both employ-
from finding a new place of employee’s official personnel the most precisely drafted.” ees and the agencies. Further, the
employment. In many ways, a records, including an employ- The Office of Personnel Man- panelists strongly felt that the
clean record settlement is a win- ee’s Official Personnel Folder agement (“OPM”) issued guid- problem of employees moving on
win for both the agency and the and Employee Performance ance to clarify the no-clean to other agencies with impunity is
employee: the costly and time- File, as part of, or as a con- record provision of the Execu- not at all the major concern the
consuming appeal and grievance dition to, resolving a formal tive Order on October 10, 2018, White House appears to believe it
process is avoided, the agency is or informal complaint by but that guidance only served to is and should not have been dealt
free of an unwanted employee, the employee or settling an muddy the waters around the with in the blunt manner taken in
and the employee is able to move administrative challenge to requirements of the Executive the Executive Order. “There are
on without a mark on his or her an adverse personnel action. Order. OPM clarified that much better ways to achieve the
record, whether deserved or not. changes to a personnel file could same goals,” opined Mr. Rosen-
However, the White House Seems pretty straightforward— be altered to reflect a mistake or blum. Ms. Harris agreed: “Limit-
apparently decided this process or is it? an inaccuracy and where there ing the agency options at an early
was bad for government. In Exec- To a practitioner in the federal is corrective action based on stage through alternative dispute
utive Order 13839 of May 25, 2018, sector, however, this obligation the discovery of material infor- resolution is counter-productive.”
called “Promoting Accountability has created a big—and mation prior to a final agency All around, this Executive
and Streamlining Removal Proce- unwanted—splash that reflects a action. Notably, two key terms Order has been a hindrance on
dures Consistent with Merit Sys- lack of practical understanding of were not defined in the guid- agencies and employees alike. In
tem Principles” (the “Executive the world of federal employment ance: what is a mistake or inac- the words of a panelist, the
Order”), the President did away law. For example, there is no such curacy? And what is final agency White House seems to have taken
with the clean record thing as an “Employee Perfor- action in this context? These are a “pox on both your houses”
settlement—maybe. mance File”; the only record that open questions that neither the view in dealing with what it sees
As discussed by Cathy Harris, meets that definition is the agencies nor the employee attor- as a major problem in federal
co-manager of the firm Kator, employee’s Official Personnel File, neys are able to answer. employment procedures. For
Parks, Weiser & Harris, PLLC, aka the e-OPF. This may seem For both agencies and employ- both agency management and
Tristan Leavitt of the U.S. Merit minor, but because agencies main- ees, the “biggest splash” of this federal employees, the effect of
Systems Protection Board, Cathie tain a number of different person- Administration has been this this sea change is yet to be fully
McQuiston, Deputy General Coun- nel files, including ones that do not Executive Order and the resulting realized. In the meantime, the
sel at the American Federation of make it into the e-OPF, it is almost restrictions on agencies. Both Ms. panel agreed that practitioners
Government Employees, and Jeff impossible to know what the Harris and Mr. Rosenblum noted should continue to look for cre-
Rosenblum, Assistant General agency can or cannot remove, or that the Executive Order has ative ways to deal with the ever-
Counsel for Labor, Employment, even from where those files can or greatly curtailed agencies’ ability changing landscape. n
and Administration at the Federal cannot be removed. For example, to negotiate a clean record settle-
Deposit Insurance Corporation agencies sometimes maintain sep- ment, leading to increased litiga-
during the panel “The Current arate discipline files, which stay tion costs and a feeling of a lot of Martha G. Vázquez is an
Administration’s Impact on the with the agency. Are these cov- hassle for very little pay off. associate at Wiley Rein, LLP in
Federal Workplace,” the wording ered under the Executive Order? While the White House seems Washington, D.C. where she
of the Executive Order creates That depends whom you ask. to be overwhelmingly concerned counsels and represents corporate
more questions than answers Ms. Harris, referencing the that keeping this information out clients and government contractors
when it comes to the obligations “Employee Performance File” of an employee’s record is a major in all aspects of employment law.
4 Labor and Employment Law Winter 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.The “Fissured Workplace”
By Blaine Taylor
T The emergence of digitally-medi-
ated platforms that let people
earn money by driving passen-
gers for Uber or Lyft, delivering
groceries for Instacart, or becom-
ing a “Dasher” for DoorDash, have
classifying workers as “indepen-
dent contractors.”
There was a sharp divide
amongst the panelists about the
policy implications of the fissured
workplace. Mr. Pitts emphasized
sparked debate about the “rise of that the “independent contractor”
the gig economy,” in which work- classification “has really had sub- requires many contract workers of social media has fueled orga-
ers are no longer employed in tra- stantial consequences on labor to be treated as regular employ- nizing efforts, not necessarily
ditional workplaces. However, employment rights and the social ees, which means that they are associated with unions, where
research conducted by the U.S. safety net.” Typically, businesses covered by minimum wage, over- workers can discuss their griev-
Bureau of Labor Statistics shows do not have to withhold or pay time, unemployment insurance ances and feel emboldened to
that the number of gig workers is Social Security, Medicare and and other traditional labor speak out online.”
idling and not expanding. Accord- unemployment taxes for “inde- protections. Ms. Rhinehart and Mr. Washing-
ing to Lynn Rhinehart from the pendent contractors.” Obviously, The “increased flexibility” for ton both agreed that headlines
Economic Policy Institute, “Despite if there are fewer “employees” both businesses and workers was about losing jobs to automation
what you might think. And, despite paying taxes into the social safety a factor that Mr. Washington and artificial intelligence were
what you’re seeing in the papers. net, then there will be fewer tax really supported. Mr. Washington overhyped. Mr. Washington
And, despite the title of our ple- dollars to provide critical social emphasized that there were explained that the notion that
nary, we’re not becoming a nation services. “other ways to provide benefits automation and artificial intelli-
of gig workers. We just aren’t.” On the other hand, Mr. McClel- and protections than simply rely- gence are taking over the work-
At the 13th Annual Labor and land criticized the Obama Admin- ing on payroll and social security place or killing jobs is “over-
Employment Law Conference in istration for taking a “very aggres- taxes.” However, Mr. Washington stated.” Ms. Rhinehart, who
New Orleans, panelists discussed sive stance” on “so called” also brought up recent studies remarked: “I agree with George! Is
changes in the traditional misclassification, and he praised that pointed out that the current that allowed here?,” cited an MIT
employer-employee relationships the Trump Administration for tak- “independent contractor or study concluding that the “evi-
during the “Changing Workplace” ing steps to “preserve and pro- employee” paradigm is “not well dence does not show there is, or
program. Ms. Rhinehart was tect” a company’s right to use suited for today,” and perhaps we will be, massive worker displace-
joined on the panel by Dennis independent contractors. For should take a look at modifying ment due to artificial intelligence.”
McClelland from Phelps Dunbar example, the NLRB’s General the traditional model that adds a According to Ms. Rhinehart, “there
LLP, P. Casey Pitts from Alt- Counsel recently issued an Advi- “third category” of workers that will be some displacement, but
shuler Berzon LLP, and George sory Memo finding that Uber and would grant some—but not all— other jobs will pop up elsewhere.”
Washington Jr. from Orange Lyft drivers are independent con- labor law protections to workers In fact, Ms. Rhinehart encouraged
Business Services. tractors because of their entre- engaged in nontraditional work the audience to “embrace” artifi-
Ms. Rhinehart urged labor and preneurial opportunities, control relationships. cial intelligence and to use it to
employment attorneys to pay spe- over their own schedule, and free- The panel concluded with a “create better jobs.”
cial attention to the rise of dom to work for competitors. short discussion about the “voice Right now, the trend at the local
another major trend in the labor Mr. Pitts took issue with Mr. gap” and “automation and artifi- and state level has been to enact
market: the “fissured workplace” McClelland’s “preserve and pro- cial intelligence.” The “voice gap” laws similar to California’s AB-5
because “that’s really where the tect” rhetoric and referred to the at work refers to the lack of bar- that make it much more difficult to
action is.” The workplace is “fis- moves made by the Trump gaining power that workers have classify workers as independent
suring” because businesses, now Administration as a “roll back to with respect to terms and condi- contractors. On the other hand,
more than ever, are concentrating the 1930s.” Mr. Pitts applauded tions of employment. For the trend at the federal level is to
on their core competencies while the efforts at the local and state instance, “stagnant wages,” make it much easier to classify
finding subcontractors to perform level “to try and protect workers according to Ms. Rhinehart, have workers as independent contrac-
jobs that would normally be done who may be misclassified as inde- “driven a resurgence of collective tors. Because workplaces often
in-house. Today, our food and/or pendent contractors.” The most action in the workplace.” Ms. change faster than the laws that
product deliveries are often made prominent example of state action Rhinehart provided examples govern them, attorneys should
by contractors and our hotel was California AB-5, which signifi- such as digital journalists who regularly think about how busi-
rooms are often cleaned by tem- cantly narrowed the definition of recently organized digital news ness models will look in the pres-
porary employees from staffing independent contractors. Under outfits, students who are attempt- ent and in the future. n
agencies. In today’s fissured work- the “ABC” test, a worker is pre- ing to organize schools, and
place, businesses are utilizing a sumed to be an employee and the employee walk outs over sexual
variety of different models such burden to demonstrate their inde- harassment and forced arbitra- Blaine Taylor is a labor and
as subcontracting, using staffing pendent contractor status is on tion clauses at Google. According employment attorney at Butsavage
agencies, franchising or the company. The legislation to Mr. Washington, “the explosion & Durkalski, P.C. in Washington, DC.
www.americanbar.org/laborlaw Winter 2020 Labor and Employment Law 5
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Updates from the NLRB and the Office of the General Counsel
By Alan H. Bowie, Jr.
T The updates from the National Significant Board Decisions
Labor Relations Board (“Meet the Members Kaplan and McFerran As of August 2019, there was a
National Labor Relations Board”) discussed (and disagreed) on the
and the Office of the General Board’s recent decisions involv- surplus at the agency, and most of the
Counsel (“Meet the National ing employee access to employer money has been spent on technology.
Labor Relations Board General premises. Kaplan and the Board
Counsel”) at the 13th Annual majority viewed these decisions
Labor and Employment Law Con- as consistent with Supreme Court sign an arbitration agreement cases are now closed in an aver-
ference summarized the second and other precedent. By contrast, will result in discipline or age of 9.1 days (a 34% reduction.)
full year of the NLRB under the McFerran viewed these decisions discharge or creating a manda- He stated that the quality of
Trump Administration as inconsistent with settled prece- tory arbitration agreement in decided cases did not diminish
dent and/or the spirit and pur- response to a class action. and that the decreased process-
Updates from the National pose of the National Labor Rela- ■ Phelox Express where the ing time has not affected the
Labor Relations Board tions Act (the “Act”) or a Board held that employers do merit or settlement rates.
Chairman Jonathan Ring and misapplication of the law. not violate the Act solely by
Board Members Lauren McFerran, The significant access deci- misclassifying employees as Budget
William Emanuel and Marvin sions are the following: independent contractors. Generally, the NLRB has been flat
Kaplan gave updates on behalf of ■ Walmart Stores where the funded for the past 5 years. As of
the Board. Chairman Ring gave a ■ UPMC Hospital where the Board held that the employ- August 2019, there was a surplus
status update on the Board and Board held that a Hospital did ees’ intermittent strike at the agency, and most of the
its administrative initiatives. not violate the Act by ejecting strategy rendered the employ- money has been spent on
Members McFerran, Emanuel and non-employee union orga- ees’ walkouts unprotected. technology.
Kaplan discussed the key deci- nizers from its cafeteria for
sions the Board issued. meeting with employees and McFerran strongly disagreed Vacancies and Staffing
discussing union activities. with these decisions and described Stock discussed the NLRB’s
Board Composition ■ Kroger where the Board held the Cordua Restaurants case as issues with staffing and vacan-
Chairman Ring noted that the that a grocery store opera- “a joke.” cies. She noted, in general, that
Board currently has one vacancy tor did not violate the Act by NLRB cases have decreased by
resulting from the expiration of ejecting the union organiz- Updates from the National an average of 2 percent per year.
former Member and Chairman ers from the parking lot where Labor Relations Board Staff numbers have similarly
Mark Gaston Pearce’s term. With they were soliciting support of General Counsel Peter Robb and decreased over the years through
the expiration of McFerran term the store’s customers. Deputy General Counsel Alice attrition. As a result, the NLRB
on December 16, 2019, there will ■ Bexar County where the Board Stock gave updates on behalf of has seen an imbalance in staffing
be another vacancy. Chairman held that the property owner the Office of the General Counsel. and has encouraged sharing
Ring opined that a Board with a did not violate the Act by Robb and Stock were joined on resources between regions (such
maximum number of participants removing bargaining offsite the panel by Jennifer Abruzzo as compliance officers) and the
is preferable but noted that the contractors, who were dis- and Amy Zdravecky, who asked consolidation of regional offices.
Board has no control over tributing leaflets, from their several questions about the Robb stated that he is opposed to
appointments. property. Board’s statistics, legal positions closing regional offices and has
and initiatives. not seen whether consolidation
Administrative Update and In addition to these decisions, the will save money. Further, the
Rulemaking Board is seeking to propose a rule Statistics Board has consolidated adminis-
In 2019, the Board piloted a pro- to clearly define the right of an Robb stated that he was “struck” trative professional positions into
gram for expedited case pro- employer to prohibit activities on that the current case processing one position that has several dif-
cessing to decide more effi- its private property by: (1) off time was significantly higher than ferent requirements and skills.
ciently and expeditiously. The duty contractors and (2) employ- his initial stint at the NLRB. As a In summary, the NLRB is con-
program first targeted the oldest ees of various different types. result, he has sought to decrease tinuing to develop under the new
cases. In its first year, the Board Chairman Ring and Members case processing time and the administration and deal with
issued 300 decisions and Emanuel and McFerran also dis- Agency’s backlog. For FY2019, the tough substantive and administra-
reduced the median age of cases cussed the following significant processing time has decreased tive issues. n
33% (from 233 days to 157). decisions: 11.5% (from 173 days to 153), the
Lastly, Chairman Ring discussed office of appeals backlog has Alan H. Bowie, Jr. is an associate
the Board’s proposed rules on ■ Cordua Restaurants where the decreased from 298 cases to 98, at Carmody Torrance Sandak &
joint-employer status, election Board held that employers do advice cases have been reduced Hennessey LLP where he practices
rules and protection, and gradu- not violate the Act by inform- to 38.6 with an average process- primarily in the area of Labor and
ate student organizing. ing employees that failing to ing time of 54 days, and FOIA Employment.
6 Labor and Employment Law Winter 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
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Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Circuits Differ in Applying Rule 23 Amendments
By Tana Forrester
I In December 2018, Federal Rule of
Civil Procedure 23, which governs
class actions, was amended for
the first time in 15 years. The
amendments included several key
changes which impact federal
this includes: an analysis of the
cost, risks and delay of trial
and appeal; an analysis of how
relief will be distributed to the
class; an analysis of any agree-
ment required to be identi-
circuit factors and the amended
Rule 23 factors in her settlement
approval motions. Panelists
advised that practitioners fully
examine the district court deci-
sions in one’s own circuit before
noted that high quality claims
administrators who are willing to
address the specific circum-
stances of the class and foresee
obstacles to class members
receiving notice significantly
class action litigation in signifi- fied under Rule 23(e)(3); and replacing one’s circuit court fac- impact both receipt of notice and
cant ways. Panelists at the 13th an analysis of the terms of any tors with the amended Rule 23 the response rate.
Annual Labor and Employment proposed award of attorney factors.
Law Conference addressed the fees, including timing of pay- Addressing Serial Objectors
effect of the amendments during ment; and Providing the Best Notice The 2018 amendment to Rule 23(e)
the panel “All You Need to Know 4. the equitable treatment of that is Practicable Under the (5) explicitly addresses the issue
about Rule 23 Amendments,” fea- class members. Circumstances of bad faith “serial” objectors to
turing Tracey Holmes Donesky of The amended Rule requires proposed class action settlements
Stinson Leonard Street LLP, Loren Panelists noted that despite courts and counsel to focus on by mandating that objectors state
B. Donnell, Burr & Smith, LLP, and the fact that the amendments set the method or combination of the specific grounds for their
Jennifer L. Kroll of Martin & Bon- out to create uniformity, in prac- methods that are most likely objection. Prior to the 2018 amend-
nett P.L.L.C. tice the application of the Rule 23 deliver effective notice in a partic- ment, Rule 23 allowed any class
factors varied greatly across cir- ular case. Under the amended member to object to a class action
Uniform Criteria for Granting cuits, with some courts wholly rule, notice by electronic means settlement and only allowed with-
Preliminary Approval adopting the amended Rule 23 is now specifically mentioned in drawal of the objection with court
Under the amended Rule, parties factors, other courts using their Rule 23(c)(2) as an appropriate approval. This allowed “serial” or
are required to provide the court own precedent in conjunction
with information needed to evalu- with Rule 23 standards and a
ate the proposed notice and set- number of courts ignoring the Rule 23 as amended provides a uniform
tlement. A court must “frontload”
the analysis at the preliminary
amended Rule 23 factors, and
instead relying on their own prec-
set of criteria that must be examined
approval stage, examining many edent to determine what consti- at the preliminary approval stage.
of the same factors it will con- tutes a fair, reasonable and ade-
sider when determining a grant of quate settlement.
final approval. The Advisory Com- The Advisory Committee Notes means of providing notice to the “professional” objectors to seek
mittee Notes provide the ratio- underscore that the amendment class. The panel, echoing the compensation in exchange for
nale for this frontloading stating was not intended to eliminate fac- Advisory Committee, cautioned withdrawal of their objections.
that “[t]he decision to give notice tors or supplant individual circuit that electronic means may not be The amendment requires objec-
of a proposed settlement to the tests but rather provide guidance the best means of furnishing tors to state specifically why they
class is an important event. It about priorities: notice in every case and that the are objecting and indicate if the
should be based on a solid record parties must examine which objection applies to the objector
supporting the conclusion that [t]he goal of the amend- means or combination of means only, some subset of the class, or
the proposed settlement will ment is not to displace any will best serve the goal of provid- the entire class. The Advisory
likely earn final approval after factor, but rather focus the ing notice to a particular class. Committee Notes caution that the
notice and opportunity to object.” court and the lawyers on Parties must consider class mem- amendment should not be used to
Rule 23 as amended provides a the core concerns of pro- bers’ access and familiarity with burden unsophisticated class
uniform set of criteria that must cedure and substance that email. In addition to carefully con- members who are not represented
be examined at the preliminary should guide the decision sidering the means by which by counsel and wish to object. “[A]
approval stage. Rule 23 (e)(2) whether to approve the notice is delivered, parties and class member who is not repre-
requires courts to analyze four proposal. the court must also consider the sented by counsel may present
factors: content of the notice and the way objections that do not adhere to
Panelist Jennifer L. Kroll noted that it will be received and under- technical legal standards.” n
1. the adequacy of representa- that at this early stage it is still stood by class members. Panelist
tion by class representatives uncertain as to whether the Loren B. Donnell emphasized the
and class counsel; courts in her circuit will adopt the importance of conducting thor- Tana Forrester is an associate at
2. whether settlement negotia- amended Rule 23 factors or con- ough research when selecting a Kessler Matura P.C. in Melville,
tions were done fairly at arm’s tinue to rely on the circuit test claims administrator. Donnell New York and represents
length; that had been developed through underscored that the purpose of employees in negotiation and
3. the adequacy of relief pro- precedent. Because of this uncer- notice is to protect class mem- litigation in discrimination and
vided under the settlement, tainty, Kroll fully briefs both bers’ due process rights and wage and hour cases.
8 Labor and Employment Law Winter 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Do You Smell What the Department of Labor Is Cooking?
Insight into the DOL’s Strategic Direction
By Kyle E. Simmons
U Understanding why the Depart-
ment of Labor issues certain regu-
lations and what changes are in
store for 2019 and beyond are just
some of the topics discussed at
this year’s 13th Annual Labor and
will allow small businesses to
group together to purchase retire-
ment plans based on industry and
location; 3) a proposed revision
to fluctuating the workweek for
the purpose of computing over-
Employment Law Conference. The time; 4) a proposed rule relating
panel, “Meet the Department of to sharing tips with back of the
Labor: A Discussion of Strategic house staff and not management;
Initiatives in 2019 and Beyond,” 5) an update to regular rate regu-
featured Hon. Kate O’Scannlain, lations (i.e. time and a half in
Solicitor of Labor at the U.S. overtime calculations); and 6) a
Department of Labor; Cheryl M. proposed regulation regarding
Stanton, Administrator of the joint employers being jointly
Wage and Hour Division at the responsible for employee wages. each year. Ms. O’Scannlain said address the comment in the final
U.S. Department of Labor; Mr. Fortney reminded the audi- “The DOL will look at a number of version of the regulation, then the
Michelle R. Fisher, employee ence and panel that “due to the factors to include: 1) what is the government must provide reason-
attorney at Nichols Kaster, PLLP; Administrative Procedure Act priority of the current administra- ing as to why it will not incorpo-
and David S. Fortney, employer (APA), the panelists from the tion; 2) are there any regulations rate that suggestion. Nonetheless,
attorney at Fortney & Scott, LLC. Department of Labor are not able that are outdated and need to be attorneys from both employee
Ms. O’Scannlain and Ms. Stan- to discuss proposed regulations updated; 3) are there industries and employer law firms would be
ton provided some background that are in the comment period.” looking for help; and 4) have there best served by participating in
and context to the work that is This included the six proposed been decisions made by the court drafting comments for different
performed, critical regulations regulations listed above. that need to be addressed.” Ms. rules whereby their constituen-
that have been adopted and/or However, the one regulation Stanton also added that the “DOL cies are most impacted. The
proposed, and how the DOL will that was discussed was the tracks complaints and allows the upcoming proposed regulations
operate moving forward. Ms. update of the overtime rule. This data that they collect from differ- that the panel was unable to dis-
O’Scannlain first highlighted the was the first time the rule was ent regions to help direct what cuss will be worthwhile to follow,
Wage and Hour Enforcement Divi- updated since being implemented specific areas or industries that especially for how the fluctuating
sion and added that “changes in almost fifteen years ago. Mr. Fort- need to be helped.” workweek is implemented and
2019 come from enforcement: ney stated, “The updated rule is Despite hearing the multiple whether that will override exist-
compliance and regulations.” She the equivalent of increasing the variables that go into determining ing collective bargaining agree-
added that filings regarding the salary by the cost of living allow- which regulations will be revised ments, whether the update to reg-
Fair Labor Standards Act (FLSA) ance increase since 2004.” Ms. or proposed, Ms. Fisher asked, “If ular rate regulations, i.e.
are down, but that is likely due to Stanton went on to add that “The the DOL is open to hearing from time-and-a-half in overtime calcu-
more cases being handled on the salary level means that those per- plaintiff attorneys about what lations will increase the cost to
state level and in arbitration. Ms. sons making that salary level or issues need to be addressed and/ overtime, and how the proposed
Stanton stated that an increase in less are automatically non- or revised.” Ms. Scanlon regulation for joint employers will
companies disclosing FLSA viola- exempt and eligible for overtime.” responded that they currently impact businesses both large and
tions through the Payroll Audit A question was asked of the panel hear from both management small. n
Independent Determination if whether they anticipated litiga- attorneys and plaintiff attorneys.
(PAID) pilot is also responsible for tion based on the update of this She added that the DOL wants to
the decrease in the number of new rule. Ms. Fisher stated, “Liti- hear from all stakeholders and Kyle E. Simmons, Esq., M.P.A.
FLSA filings. gation is likely based on the new that even if you are not in the provides strategic advice and
The second highlight from the overtime rule that will be effec- Washington, D.C. area, you can expertise to management on labor
panel was hearing about a num- tive January 1, 2020.” Ms. contact the DOL. and employee relations issues
ber of regulations that have been O’Scannlain replied, “If the other At the conclusion of the panel, including collective bargaining
proposed. The regulations high- Trump era regulations are any both Ms. O’Scannlain and Ms. interpretation and conducts
lighted were: 1) the allowance of barometer, we (the DOL) expect Stanton added that the public has Title VII investigations at Kaiser
online retirement disclosures that that there will be litigation.” the ability to have their voice Permanente—Mid-Atlantic States.
will allow for a cost savings of The last segment of the pro- heard during the comment He is the In-House Council Vice-
$2.5 billion over the next ten gram addressed how the Depart- period. All comments are Chair to the Outreach to Law
years; 2) the expansion of the ment of Labor determines what reviewed. and if for some reason Students Committee to the Section
association retirement plan that regulations will be addressed the government decides not to of Labor and Employment Law.
www.americanbar.org/laborlaw Winter 2020 Labor and Employment Law 9
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.ABA Resolution Encouraging Use of Technology-based Platforms
Adopted with Section of Labor and Employment Law Support
By Wendy L. Kahn
A At its 2020 Midyear Meeting, with As the Report to Resolution 113
support of the Section on Labor points out, “the ABA has recog-
and Employment Law, the ABA nized that the re-victimization of
adopted Resolution 113, encour- survivors in the legal system com-
aging legal professionals “to use pounds the injustice, as survivors
and promote technology-based are often criminalized in that sys-
platforms that facilitate the effi- tem. And many current avenues of
cient, timely, and targeted match- relief are inadequate…”5 As cited
ing of survivors of human traffick- in the Report at 2-3, “{m}any sur-
ing who have legal needs with vivors … have been arrested for
lawyers who have the requisite offenses stemming from the vic-
specialization and availability to timization. Resulting criminal
meet those needs pro bono.” The records—both arrest and court
resolution was sponsored by ABA documents—then follow sur-
Center for Human Rights (“CHR”).1 vivors and create barriers that
In addition to LEL, the resolution impact their independence, stabil-
was supported by the ABA Stand- ity, and safety.”6 Of the 130 survi-
ing Committee on Pro Bono and vors surveyed in the 2016 National
Public Service, the Commission Survivor Network Survey, 90.8% there are three key players: (1) resources on combatting human
on Youth at Risk and the Section reported having at least one crim- survivors; (2) community part- trafficking in the workplace. The
of Science and Technology Law. inal record.7 Further, nearly 73% ners (social service agencies and Section encourages its members
Human Trafficking is a modern reported losing or not receiving other screening partners) who to provide pro bono assistance to
form of slavery; from forced labor employment because of their crim- meet with survivors and post trafficking victims. On the
to forced prostitution, human traf- inal records while 58% suffered requests on their behalf on the resource page on the Committee’s
ficking is an egregious human barriers to accessing safe and app platform; and (3) the lawyers webpage, there are links to some
rights abuse that permeates into affordable housing due to their who receive and respond to tar- of the important pro bono organi-
the world of work. As set forth in past criminal convictions.8 geted notifications of pro bono zations that can help coordinate
the Report to Resolution 113, “The Recognizing (1) there is a great opportunities on the platform. such pro bono work.
scale of human trafficking is enor- need on the part of survivors for Thus, survivors can efficiently be For example, The Human Traf-
mous. Even with the understand- pro bono legal services to resolve connected to specialized, pro bono ficking Pro Bono Legal Center pro-
ing that statistics cannot capture legal issues that impede their res- legal services from previously vides training and assistance to
the full extent of a crime that ben- toration to security and indepen- untapped expertise in the legal attorneys who want to offer such
efits from keeping its victims in dence, and to avoid revictimiza- community. The range of legal pro bono assistance. (https://
the shadows, the latest data from tion, and (2) that many lawyers issues spans family, criminal, civil www.htlegalcenter.org/) Informa-
the International Labour Organiza- want to provide those services litigation and commercial/contract tion about a technology-based
tion show that, in 2016, globally pro bono, Resolution 113 areas—including employment- platform, such as ALIGHT’s
40.3 million people were estimated describes a replicable, technol- related matters among others. model, that blends law, technol-
to be in ‘modern slavery,’ a term ogy-based model using an app The Section of Labor and ogy and human trafficking-spe-
that reflects 24.9 million in forced platform that has emerged Employment Law’s Immigration cific considerations to create a
labor, bonded labor, forced child recently.9 This model involves the and Human Trafficking Commit- marketplace where survivors with
labor, and sexual servitude and matching of a lawyer who has the tee is a “home” and a resource for limited opportunities can seek
15.4 million in forced marriage.2 required expertise, proximity and attorneys interested in human help and connect with specialized
Women and girls are dispropor- prompt availability to a survivor’s trafficking and pro bono service. attorneys on a pro bono basis will
tionately affected by forced labor, specific nuts-and-bolts and com- (https://www.americanbar.org/ be a valuable addition to the Com-
accounting for 99% of the victims plex legal needs and also incorpo- groups/labor_law/committees/ mittee’s materials. n
in the commercial sex industry, rates supportive social services immigration/) In addition to pro-
and 58% in other sectors. Overall, to provide a comprehensive viding information, education and Wendy L. Kahn retired from the
71% of modern slavery victims are approach to a survivor’s situation. a forum for discussion regarding labor union and employment
women and girls.”3 “Walk Free’s The model, developed by the Alli- key immigration issues relating to practice at Zwerdling, Paul, Kahn
2018 Global Slavery Index esti- ance to Lead Impact in Global labor and employment law, the & Wolly, P.C. in Washington, D.C.
mates that there were approxi- Human Trafficking (ALIGHT),10 is Committee also aims to assist She is a former member of the
mately 400,000 people ‘living in based in Denver, Colorado and is lawyers in obtaining information Council of the Section of Labor and
conditions of modern slavery in being tried in some other states.11 about legal and regulatory devel- Employment Law.
the United States’ in 2016.”4 In this technology-based model, opments and to identify Endnotes continued on page 11
10 Labor and Employment Law Winter 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.You can also read
