“If forms of ‘digital addiction’ qualify as a diagnosed psychiatric disorder, then employees who suffer from it may be protected by the ADA.” Employers might then be obliged under federal law to enter the so-called interactive process to negotiate possible courses of action and accommodations with the affected employee, rather than lay down hard-and-fast rules for what sorts of conduct will result in termination. [Jon Hyman, Ohio Employer Law Blog]
- Lancaster, Calif. Mayor R. Rex Parris proposes that city ban employers from requiring male employees to wear neckties [Laura Newberry, L.A. Times]
- Reasons to settle employment-law claims: “It’s Not the Damages, It’s the Attorneys’ Fees” [Daniel Schwartz]
- “Court Ruling Casts Constitutional Doubt on State and City Salary-Inquiry Bans” [Marc Dib, WLF; related here, here]
- I’m quoted hailing Supreme Court ruling on workplace arbitration [Jeff John Roberts, Fortune]
- Federal labor regulators versus local food truck operators [Ira Stoll]
- “What is happening to French labor law?” [Tristan Bird, On Labor]
“Two city legislators on Tuesday are expected to announce legislation banning on-site workplace cafeterias in an effort to promote and support local restaurants.” The Golden Gate Restaurant Association, embracing the role of villains in an Ayn Rand novel, are backing the measure, sponsored by San Francisco supervisors Ahsha Safai and Aaron Peskin. The bill would be prospective only, so that while the famed in-house dining options at tech headquarters like Twitter’s could continue, new corporate arrivals would not be allowed to start anything similar. [Joe Fitzgerald Rodriguez, San Francisco Examiner]
Yesterday’s 5-4 Supreme Court decision upholding agreements to individually arbitrate wage-and-hour claims was neither surprising nor novel as a legal matter. Nor – notwithstanding the variously breathless, furious, and apocalyptic reactions it has drawn from stage Left – is it objectionable as a matter of policy, or “anti-worker.” It is pro-liberty, pro-contract, and pro-respect for private ordering….
NPR, which really should know better, misreported on Twitter that “The Supreme Court in a 5-4 vote has delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws,” of which the first eight words count as accurate reporting, the next half-dozen as erroneous opinion, and the remainder as merely false in fact….
…an oft-heard argument is that a contract presented as a take-it-or-leave-it matter, as is typical of employer handbook policies, credit card terms and the like, doesn’t count as a “real” contract and is entitled to no respect as a matter or law or, presumably, from libertarians. … Properly evaluating that claim is a task for another occasion, but my colleague Andrew Grossman is surely right when he points out that every hour of the day workers choose to accept overall employment packages including some terms they welcome (health insurance coverage, paid vacations) along with others they may not (some weekend hours required, don’t take staplers home) and that the lack of dickering over individual terms does not mean that they are not voluntary or have somehow been imposed by force.
Whole thing here. As I wrote after Italian Colors, millions of people “sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that” those rights are mostly of value to the class action industry.
Speaking of Italian Colors, the outcome in Epic Systems would surely have been no different had Scalia lived, since he led the way on the Court toward respecting contractual arbitration clauses and upholding the broad scope of the Federal Arbitration Act. More from Archis Parasharami and Dan Jones at SCOTUSBlog: “The best available empirical evidence shows that employees who arbitrate their claims are more likely to prevail than those who go to court, and to obtain awards that are the same as or larger than court awards in a shorter amount of time.” More: James Copland.
- “Three Bad Arguments for Government Paid Leave” [Vanessa Brown Calder, Cato]
- So much wrong with Bernie Sanders scheme of a guaranteed government job for everyone [Ryan Bourne, Cato] “This old socialist standby deserves to stay exactly where we left it — on the ash heap of history.” [Megan McArdle]
- NYC legislates “dues checkoff” payable to activist groups [Ruth McCambridge, Nonprofit Quarterly]
- “Ralph Lauren interns get next to nothing after winning lawsuit” [Julia Marsh, New York Post]
- Uh-oh: Ford Foundation funding Harvard Law School project to redesign U.S. labor law from ground up [Benjamin Sachs, On Labor]
- The federal law that forbids employers from ceasing to participate in union (multiemployer) pension plans unless they pay massive “withdrawal liability” including obligations of other employers is unjust and destructive. Now it’s playing havoc with the makers of Peeps confections [Damien Paletta, Washington Post/Lehigh Valley Live, related earlier]
Noting that Britain’s 2006 Noise at Work Regulations “recognize no distinction as between a factory and an opera house,” a British judge has approved the claim of a violist for the Royal Opera House Covent Garden who says he suffered hearing loss from the loudness of the close-by brass section during a rehearsal of Die Walküre, part of Wagner’s Ring Cycle. Damages are yet to be determined; he is seeking £750,000. [Mark Savage, BBC] The opera house argued that it had gone as far as a reasonable employer to reduce the risks of loudness, including issuing ear protection which he was using, and that his condition “had in fact been the result of his coincidentally developing Meniere’s disease at around the same time.” [Damien Gayle, Guardian] Earlier on the United Kingdom regulations on sound in the workplace here (police dogs’ barking, with links to many other posts), etc., and related here and here on European orchestra noise regs.
With a political push still under way for costly mandates on employers to provide paid family leave, there is interest in proposals for family leave based on borrowing from future Social Security benefits. Under a plan proposed by Kristin Shapiro of the Independent Women’s Forum, “new parents would agree to defer their collection of Social Security benefits upon retirement for the period of time necessary to offset the cost of their parental benefits.” Some critical commentary on the idea: Vanessa Brown Calder And Chris Edwards, Cato. A more favorable view: Ramesh Ponnuru.
- California becomes fourth state to ban asking job applicants about salary history. Bad law. [Gerald Skoning, WSJ] Together with required disclosure of “pay range,” ban on salary history inquiries could hurt studios, talent biz [Philip Bonoli, Forbes]
- Claim: age-targeted Facebook employment ads unlawful under age discrimination law, even if hiring firms are listing jobs and soliciting applicants through many other channels as well [Julia Angwin, Noam Scheiber, and Ariana Tobin, New York Times] More: Charles Sullivan, Workplace Prof (“It’s not at all clear that the practice is illegal under current federal law.”)
- “‘Opt Out’ Provisions May Provide Path Forward for Class-Action Waivers in Employment Contracts” [Andrew Trask, Class Action Countereasures]
- Payments to workers’ comp attorney: “Former NBA Player Pleads Guilty to Charity Fraud Scheme” [Phil Yacuboski, WCI360] Report: jihadist group in Colorado in 1990s funded acts of terror through workers’ comp fraud [Liz Carey, WCI360]
- Will #MeToo scandal result in a leftward lurch in employment law? Some certainly hope so [Terri Gerstein, On Labor]
- Weirdly influential “pay workers enough to buy back the product” fallacy, associated with Henry Ford, doesn’t work for aircraft carriers or matches or most other products [David Henderson, earlier here, etc.]
As workplace expectations change in response to the #MeToo scandal, there is no point in hoping that some new set of norms will emerge that avoids exclusionary “you don’t belong” signals to some workplace participants: “Whatever new norms emerge will also exclude people, and not all of those cast out will be bullies, predators, or, for that matter, men. All norms draw lines. Norms that police speech and attitudes, as opposed to physical actions, are particularly likely to snare violators whose deviance is unconscious or benign.” [Bloomberg View]
Meanwhile, in France: “The letter [from revered actress Catherine Deneuve and ‘around 100 French women writers, performers and academics’] attacked feminist social media campaigns like #MeToo and its French equivalent #Balancetonporc (Call out your pig) for unleashing this ‘puritanical… wave of purification’.” [AFP; France Culture interview with Sarah Chiche (in French); Le Monde open letter reprint (in French)]
The Silicon Valley figure, known for an unsuccessful sex discrimination suit against Kleiner Perkins, basks in largely favorable press as well as the praise of figures like Hillary Clinton and Sheryl Sandburg. Naomi Schaefer Riley, however, takes a contrary view [Commentary, I’m quoted] Even as Pao writes pieces in the popular press encouraging techies to turn their discontents into legal claims against their employers, she urges the services of her Project Include on the same employers:
Much of the evidence suggests that sensitivity training does little good. And in some cases, talking to employees about negative stereotyping of women or racial minorities might actually spur employees to think negatively about their colleagues in ways they hadn’t considered before.
Which brings us back to the threat of litigation. Thanks to Pao’s case, companies are not only quivering over multimillion-dollar lawsuits, they are also considering ways to mitigate the possibility. And that means working with people like Pao to provide cover. While they may not be able to, or even care to, control the behavior of individual employees, they’d at least like to avoid the accusation of a “hostile workplace,” which could cost considerably more in court. Working with Pao and her colleagues won’t automatically ensure that lawsuits against them get thrown out, but signing on to Project Include will go a long way toward protecting them.