Labor and Employment Law
“Running the Government Like a Business”: Wisconsin and the Assault on Workplace Democracy
Introduction: Democratic Spring
Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
119 Yale L.J. 1474 (2010). The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.
Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257
Realizing the Potential of the Joint Harassment/Retaliation Claim
117 Yale L.J. 120 (2007). This Note assesses the relationship between hostile work environment harassment and retaliatory harassment claims by reviewing several cases in which both claims were brought. It argues that courts have unjustifiably narrowed the reach of both claims by disaggregating harassment from retaliation in a variety of ways, including considering harassment that occurs after the discrimination complaint to be solely retaliatory, rather than both retaliatory and discriminatory; interpreting harassment to be motivated simply by personal animus rather than by a retaliatory or discriminatory purpose; and disaggregating explicitly racialized or sexualized forms of harassment from nonracialized or sexualized forms of conduct. This Note concludes by describing the potential of joint harassment/retaliation claims to respond to both status-based and conduct-based discrimination and by offering specific recommendations to courts for reaching an integrated understanding of the two claims.
From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce
116 Yale L.J. 170 (2006) The American workplace has undergone a fundamental transformation as businesses increasingly have replaced traditional employees with independent contractors. Yet many of these individuals fall outside federal employment law, including Title VII's antidiscrimination protections. This Note addresses the legal gap in coverage and proposes using 42 U.S.C. § 1981, a Reconstruction-era provision that forbids race discrimination in "mak[ing] and enforc[ing] contracts," to modernize the workplace antidiscrimination regime to cover these workers. Drawing on the history and original purpose of the provision, the Note proposes reforms to § 1981 that would leave it structurally, doctrinally, and theoretically sound.
Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal
115 Yale L.J. 2193 (2006)
The Future of Disability Law
114 Yale L.J. 1 (2004) Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities. That result has occurred, Professor Bagenstos contends, not because of the narrowing interpretations the Supreme Court has placed on the ADA, but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. Even the ADA's requirement of accommodation--which has been seen as a far-reaching expansion of the scope of civil rights law--operates in a way that is much more similar to traditional antidiscrimination laws than many commentators have appreciated. To eliminate the structural barriers to employment for people with disabilities, the government must do more than simply mandate that individual employers cease discriminating and provide accommodations; the government must adopt more direct and sustained interventions such as the public funding and provision of benefits. Indeed, activists "on the ground" have increasingly understood the importance of the social welfare system to achieving the goals of the disability rights movement. But if it is to be true to the disability rights movement, any turn (back) to social welfare law must seek to solve the problems of paternalism and oppression that advocates identified in an earlier generation of disability welfare programs. Professor Bagenstos hopes to show some of the ways that current social welfare initiatives pursued by disability rights advocates do and do not take account of these problems, and to highlight the dilemmas advocates face in relying on the social welfare system.
Is the Right To Organize Unconstitutional?
113 Yale L.J. 1999 (2004) Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004). Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act (NLRA); nonemployee union organizers have virtually none. Until a recent decision by the D.C. Circuit, however, there was little reason to believe that federal law, much less the Constitution, prevented states from granting workplace access rights to nonemployee organizers. While the issue had not been squarely addressed, it seemed safe to assume that state right-to-organize laws were the type of economic regulation subject to highly deferential constitutional review since the end of the Lochner era.
"Hostility to the Presence of Women": Why Women Undermine Each Other in the Workplace and the Consequences for Title VII
113 Yale L.J. 1579 (2004) When women undermine and undercut each other, vying for advancement, they are reacting to workplace segregation and low organizational power. Employers must work to integrate workplaces to the best of their abilities, ensuring that women are present in ample numbers at all levels of the organization. They must ensure that women hold positions of authority, supporting them if they are undermined from above or below. When full integration is not possible (as in fields where there are few women in the labor pool), employers must ensure that the women hired are protected from loyalty tests or intentional comparisons to other women that lead to dissociation. Yet responsibility for eradicating workplace segregation lies not only with employers, but with federal courts as well: Female-on-female sexual harassment demands redress under Title VII. Critics may question why Title VII, and harassment law more specifically, should be used to address female-on-female hostility-based harassment. The answer is twofold: Such harassment falls squarely within the scope of Title VII, and its coverage remains true to the statute's purpose of eradicating barriers to advancement for women and minorities. As detailed earlier, the sexual harassment hostile work environment cause of action now covers all sex-based harassment that satisfies the required elements. It has developed to cover behaviors that were not originally envisaged by the drafters of the statute, including same-sex harassment. In the aftermath of Oncale, there is little doubt that hostility-based sex harassment among women would be actionable under Title VII. However, hostile work environment claims should be used against female-on-female hostility not just because they can be, but because doing so helps achieve the original purpose of Title VII. Title VII was created with the intention of reducing segregation and eliminating the barriers that stand in the way of women and minority success in the workplace. Female-on-female hostility-based harassment both results from and perpetuates sex segregation and limited opportunities for women in the workplace. Thus, to the extent that employers structure the workplace in ways that give female employees incentives to compete with and undermine each other, they should be held responsible for violating the mandates of Title VII. Some may argue that Title VII's prohibition of discrimination based on sex was meant to address male supremacy, and that a recognition of female-on-female harassment would be a significant departure from Title VII's goal. However, legal recognition of female-on-female sex harassment does work to combat male supremacy in the workplace. As explained throughout this Note, the exclusion of women from male-dominated jobs and from positions of authority creates hostile relations among women in the workplace. Holding employers liable for the dynamics that they have created among women shifts the focus back to segregation, and thus creates additional incentives for employers to integrate their workplaces and empower female workers. Others may fear that liability will lead employers to regulate female relationships and potentially overdiscipline women workers. Some may even worry that if women do opportunistically undermine each other, recognition of female-on-female harassment will simply give them another tool with which to do so: the ability to "run to daddy" and complain about other women to their bosses. Yet all harassment claims carry the potential for abuse; the fear of unfounded accusations or overexuberant enforcement should not deter courts from extending protection to those deserving of it. A woman experiencing discrimination because of her sex should not remain without recourse merely because the person harassing her is also female. Discrimination based on sex is prohibited by Title VII, and so long as a woman can prove the elements necessary for a successful hostile work environment claim, she should have a cause of action. It would be a welcome change for employers to regulate hostile behaviors among women when many currently refuse to intervene in behaviors "between girls." Women should not have to constantly tiptoe around each other. Instead, they should be aware of the factors that encourage them to compete with each other, recognizing that they can help each other advance and that the success of one can lead to the success of another. With healthy competition, women can push each other to do their best, supporting each other in the face of conditions that would have others thinking that it's every man for himself.
A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections
112 Yale L.J. 2415 (2003) The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As the Supreme Court wrote in the canonical case of New York Times Co. v. Sullivan, the First Amendment's function is to create the "uninhibited, robust and wide-open" public debate necessary for the exercise of self-governance. The Amendment plays a prominent role in the regulation of workplace representation elections, the process by which unorganized workers decide whether or not to unionize. Since the 1940s, and particularly since the passage of the Taft-Hartley Act in 1947, Congress and the courts have used the First Amendment to protect the right of employers to campaign against unionization. Holding that employers may say nearly anything in order to persuade their employees to vote "no" in a union election, the Supreme Court has permitted the National Labor Relations Board to proscribe employer speech only when it contains threats of reprisal or coercive promises. In so ruling, the Court has sought to balance employers' right of free speech, as well as their common-law property and managerial rights, with workers' right to unionize. Yet whether deeming speech to be prohibited or protected, the Court has framed the issue with the First Amendment weighing only on the side of employers. For the most part, existing academic work on union elections has implicitly accepted this approach, viewing employers' rights of speech, property, and management as clashing with workers' statutory right to organize, without invoking any countervailing First Amendment right on behalf of workers. This Note challenges the Court's approach to the First Amendment for failing both to recognize and to protect the very real speech interests of workers and union organizers at stake in workplace representation elections. Building on the work of "democratic" free speech scholars, such as Alexander Meiklejohn, Owen Fiss, and Cass Sunstein, and applying their theories to a new arena, this Note argues that the Court's exclusive focus on safeguarding employer speech from state incursion leaves society vulnerable to powerful forces of private censorship. Specifically, the regime governing workplace elections allows employers to suppress worker speech and union messages, even as employers' own speech is protected. In so doing, the current law inhibits robust debate and collective self-governance both within the workplace and in society at large, and thereby contravenes the fundamental purpose of the First Amendment. This Note identifies two distinct, but related, ways in which current doctrine governing workplace elections restricts the freedom of speech. First, it constrains the ability of workers to speak freely and limits the existence of robust debate inside the workplace. The law grants employers extensive rights to campaign against unionization, including the power to compel workers to listen, to suppress their responses, and to exclude the messages of union organizers from the workplace. At the same time, the law fails to protect effectively worker speech. In fact, over the past half-century, reprisals suffered by workers who engage in pro-union speech have increased dramatically to well over 10,000 documented cases per year. Second, the suppression of worker speech and the exclusion of pro-union messages within the workplace hinders employees' exercise of free speech and the existence of robust debate outside of the workplace as well. When Americans spend much of their time without rights of expression and collective self-governance, they lose some ability to participate as active citizens in our society's democratic project. Furthermore, because the suppression of worker speech and pro-union messages enables employers to thwart the formation of unions, the ability of individual worker-citizens to engage effectively in public debate through their own collective organizations is impeded. For these reasons, the First Amendment permits, and indeed requires, us to revise the flawed regime governing workplace representation elections, even if doing so entails some further limits on employer speech. Toward that end, this Note will propose a new framework that protects worker speech and union messages, a framework more faithful to the First Amendment's purpose of safeguarding democracy. Part I of this Note examines the historical development of the "false paradigm," which views employers' First Amendment rights as in tension with statutory collective bargaining rights. It shows that, in the face of concerted pressure from employer groups, the Court, the Board, and Congress increasingly recast property and managerial rights in First Amendment terms while failing to consider the Amendment's democratic purposes. Narrowly focused on protecting individual autonomy from incursion by the state, the Court granted extensive First Amendment protection to employers but neglected the speech interests of workers and union organizers. Part II argues for a revised paradigm: Speech vs. Speech. This Part discusses how employer speech silences workers, and demonstrates that the current doctrine governing union elections fails to provide effective remedies for employer retaliation against pro-union speech, limits the right of workers not to hear employer speech, and constrains the ability of pro-union workers and union organizers to communicate their messages. Part III looks at the purposes of the First Amendment and argues that the jurisprudence on union elections fails to fulfill those purposes, both inside and outside the workplace. Part IV considers what a regime that protects worker and union free speech interests and furthers the democratic aims of the First Amendment might look like. It argues that new regulations on employer speech, as well as regulations to enable worker and union speech, are not only vital public policy, but are both permitted and required by the First Amendment.
The Sanitized Workplace
112 Yale L.J. 2061 (2003) One of American society's most cherished beliefs is that the workplace is, or should be, asexual. This ethic is a legacy of our historic commitment to a conception of organizational rationality that treats sexuality as irrational and unproductive--a conception that had come under challenge until sexual harassment law gave it a new lease on life. Using a historical and sociological analysis, this Article demonstrates that the law's focus on eliminating unwanted sexual conduct has provided added incentive and increased legitimacy for a managerial project of suppressing sexuality in the workplace. In the name of preventing sexual harassment, many employers are prohibiting potentially benign forms of sexual conduct, without attending to the larger structures of sex segregation and inequality in which genuine sex harassment flourishes. Employers have begun to impose strict disciplinary measures, costing many people their jobs or reputations and threatening employees' ability to form their own work cultures. Employers also increasingly ban or discourage employee romance, chilling intimacy and solidarity among workers of both a sexual and nonsexual variety. Evidence also suggests that employers sometimes use sexual harassment charges as a pretext for punishing employees for discriminatory or other suspect reasons, and employees are quicker to accuse coworkers of a different race, sexual orientation, or class whose sexuality threatens or offends them. Contrary to the prevailing orthodoxy, this Article argues, workplace sexuality is not always discriminatory or disruptive: Sexual conduct takes its shape and meaning from the larger organizational context. Sociological research shows that women who work in well-integrated, egalitarian settings often participate and take pleasure in sexual interactions--probably because their numerical strength gives them the power to help shape sexual norms to their own liking. Thus, rather than encourage employers to desexualize, we should encourage employers to desegregate. To create the incentive to do so, the law should make sex harassment easier to prove in significantly segregated and unequal work settings, and harder to prove in fully integrated and equal ones. At an even more basic level, legal actors and reformers must abandon the traditional definition of harassment as unwanted sexual conduct in favor of a broader focus on discriminatory conduct, because the emphasis on sexual conduct as harmful has given the law a "cultural tilt" that meshes well with the classical organizational view of sexuality as unproductive and motivates managers to extend the reach of the law within organizations. By the same token, the fact that managers can justify their actions with reference to a feminist-inspired body of law has facilitated their ability to implement overzealous sexual harassment policies. Thus, this Article's account of the development of sexual harassment law teaches that law makes a difference, but the difference it makes depends on how it interacts with larger institutional and cultural forces that will shape it in everyday life. Ultimately, it argues, those who seek to halt sanitization must offer a new vision in which sexuality can coexist with, and even enhance, gender equality and organizational rationality.
Unions and the Duty of Good Faith in Employment Contracts
112 Yale L.J. 1881 (2003) Some American scholars of law and economics have expressed dismay at the anticompetitive and illiberal body of legal doctrine that is labor law. Their respondents, often in other fields if not other countries, have defended unions and the laws that support them on both economic and ethical grounds. On the one hand, unions may contribute to efficient workplace governance and correct the monopsony power of employers in imperfect labor markets. On the other hand, by increasing workers' bargaining power vis- -vis firms, unions may effectuate distributive social policies by winning workers a larger fraction of firms' surplus. By affording employees more control over their work, unions may also leave them less alienated in the production process. I will offer another account of the function of labor law that appeals to both efficiency and equity principles: Unions correct for the unique opportunities for bad faith in the employment relationship. The duty of good faith is a background condition imposed on all contracts that limits the negative effects of unequal bargaining power, but its enforcement is particularly challenging in the context of most employment relationships. I will argue first that the duty of good faith is not self-enforcing between worker and firm. I will then argue that third-party enforcement is not a viable alternative. Finally, I will present unions as an institutional means by which the duty can be enforced at low cost, and compare the American and German systems as variations on that possibility. In Germany, collective bargaining remains the predominant means by which the employment relationship is regulated. By contrast, in the United States, the decline of unionism has been matched with a rise in administrative regulation. Although collective bargaining is not without its own difficulties, substantive standards are neither an efficient nor a complete response to the problems of good faith explored in this Note. My account of the role that labor law plays in the employment relationship is consistent with other sympathetic accounts. In fact, there is substantial overlap insofar as much of the employer behavior that results in inefficient or inequitable bargains for workers can be characterized as bad faith. The argument here differs from those dominant in the existing literature, however, in two respects. First, the problem it addresses is not just economic but also legal. Evaluating the individual employment relationship from the standpoint of contract law sheds light on the dilemmas courts face in the absence of collective bargaining. The alternative to collective bargaining principles is not, after all, an unregulated labor market. All employment contracts are subject to certain universal, immutable contract rules, including the duty of good faith. The inadequacy of individual employment contracting reflects legal as well as market failure. Understanding employment contracts as legal as well as economic instruments is more foreign to the literature than one would expect. The tools of economics do incorporate problems of interpretation, but they are incorporated as transaction costs not qualitatively different than the cost of paper; the purpose of economic analysis is to assess contractual efficiency. Political and ethical analysis of the employment relationship, on the other hand, ultimately appeals to fairness--for example, in the form of norms about control, distributive justice, or property rights. No commentator can be fairly assigned to one camp or the other, since no argument that fails to address both fairness and efficiency is plausible. Torn between two isolated principles, observers can do little more than strike an (ultimately subjective) balance between these competing values. The advantage of a self-consciously legal analysis, focused on the challenges posed by employment contracts from the perspective of lawyers, is that these values have already been incorporated into a single framework: the common law. For example, these values are two interpretive aspects of the duty of good faith, which cannot properly be understood without reference to both. Although the common law no longer governs many terms of employment, due to both collective bargaining and an array of employment legislation, it nevertheless provides a useful framework by which to assess the difficult task any alternative legal regime must perform. My second departure from prevailing accounts lies in an attempt to assess the interaction between an inequality of bargaining power, on the one hand, and information and monitoring costs, on the other. Bargaining power is an important part of the story behind the intervention of labor law, but it is only part of that story. It interacts with other features of the employment relationship to complicate workers' capacity to protect their interests on an individual basis. Standing alone, the consequences of bargaining-power disparity are not obvious; although all else equal it will result in a less equal distribution of the gains of trade, the weaker party's loss could be offset by her (albeit small) share of transaction-cost savings. If employers and employees were equally invested in each other, they would be situated in a bilateral monopoly. This normally results in high bargaining costs because each party knows that the other cannot easily go elsewhere. In the employment context, however, workers cannot afford to hold out inefficiently and prolong negotiations about each exercise of discretion by the employer that the worker considers a modification of the original contract. Unequal bargaining power means less bargaining, and where bargaining is costly, workers' absolute share of transaction-cost savings may offset a decline in their relative share of total gains from the employment contract. Clear legal allocation of discretion to the employer may have the sanguine effects associated with bright-line property entitlements (as opposed to fuzzy entitlements protected by liability rules). Unequal bargaining power may also reduce transaction costs and underinvestment by workers and employers if discretion and penalties are specified contractually at the outset. Some commentators suggest that parties can anticipate attempts to renegotiate or shirk by allocating all discretion to one party and providing for a positive default level of trade or employment. Workers may underinvest or demand renegotiation if, as a result of employer exercise of discretion, their returns to investment (effort, years, training) decline over time. If their contract, however, guarantees them some default "average" employment terms, they are more likely to invest--in the event of employer abuse, they can invoke those inflexible terms. Employers have incentive to agree to such defaults, even where they have all the bargaining power, as a mechanism to reduce shirking. Although the background problem of shirking recognizes that effective monitoring is impossible, this model of efficient bargaining inequality presumes that parties are able to specify efficient and enforceable default terms. A final benefit of bargaining-power disparity may result if employer discretion increases production quality and flexibility; workers' wage gains may eventually reflect their increased marginal productivity. While this implies that workers would voluntarily curb their demands even if they had bargaining power, they might not if their short-term loss was certain while their wage gains depended on other workers similarly cooperating. The concentration of decisionmaking in the employer resulting from its bargaining power could effectively resolve a collective action problem among workers. The indirect effects of unequal bargaining power therefore complicate its aggregate effect on workers' returns. But its indirect effects do not all lower transaction costs. The costs of information gathering and monitoring are actually greater in the face of an imbalance in bargaining power. Moreover, the costs are more likely to be borne by workers because of this imbalance. In the following discussion, I introduce a number of stylized assumptions about the labor market. Not all labor markets are characterized by the imbalance of bargaining power and high transactions costs discussed here. The costs of information and monitoring vary and are not always borne by the employee. For example, law students working at corporate law firms are provided with information few workers could assemble on their own. And at least when they start, entrants into the law job market appear to enjoy substantial bargaining power. It is not surprising, then, that law students do not organize themselves into unions. The same is true to varying degrees of most professions. When employers invest in individual employees and employees are mobile--due to high skills, tight labor markets, or a strong social wage (government-provided safety net)--much of the argument does not apply. In the labor markets I have in mind, employees' work products are fairly homogenous and a single firm employs a large number of people engaged in similar work. This applies to much of the manufacturing sector and a significant portion of the low-skilled service sector. In these labor markets, nonunionized workers are "price takers"--employers can always find ready substitutes at their named price. Under these conditions, workers do not have a credible threat of exit for any but the grossest of employer abuses; they lack credible, graded threats with which they can respond to lesser violations. These are essentially the markets in which unions have historically been active. The argument here is intended to explain the role that unions play and may be used to predict which markets will be most receptive to unionization; I am not making any empirical claim about the proportion of the total work force to which these assumptions apply. But I expect that the duty of good faith is self-enforcing in those markets in which these assumptions do not apply, and as expected, unions have the least market presence in these sectors.
Responsible Direction and the Supervisory Status of Registered Nurses
112 Yale L.J. 665 (2002) The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied the collective bargaining rights the National Labor Relations Act (NLRA) extends to other employees. The Act clearly recognizes that professional employees exercise some level of judgment and discretion. The Act, however, also makes "independent judgment" in the exercise of certain acts (e.g., hiring, firing, and promotion) the touchstone of supervisory status. So the distinction between supervisors and mere professional employees turns on the level of independent judgment exercised in certain capacities; this distinction becomes crucial to determining which employees receive bargaining protection. Reading as de minimis the amount of independent judgment needed to clear the supervisor threshold would remove professionals from the coverage of the Act completely--a result clearly at odds with congressional intent, given the express inclusion of professional employees in the Act. This inherent tension between the inclusion of professional employees and the exclusion of employees who exercise independent judgment has been at the root of much of this conflict. This Comment examines a recent Supreme Court decision, NLRB v. Kentucky River Community Care, Inc., that exemplifies the struggle over the classification of professional employees, specifically registered nurses, as "supervisors." The Board has consistently tried to classify nurses as nonsupervisory professional employees, while the Court has repeatedly cabined nurses within the class of supervisors. The Board's efforts have been focused on achieving protection for all nurses who exercise any kind of discretion, crafting statutory arguments that would narrowly interpret the supervisory-status requirements. Striking down these interpretive strategies, the Court has rejected broad protection for registered nurses. This Comment suggests a new interpretive strategy that the NLRB could adopt in order to afford at least some bargaining protection to certain classes of nurses and other professional employees, albeit not the broadest level of protection that the NLRB has previously sought. This strategy counsels focusing on one of the statutory criteria that defines a supervisor, the "responsibly to direct" term, which the NLRB has largely ignored in litigation. The plain text of the Act, standard interpretive tools, and policy considerations of the statute all militate toward differentiating mere professional employees from supervisors, not on the grounds of mere "independent judgment," but via the capacity in which that judgment is exercised. When a professional exercises independent judgment to carry out functions with respect to other employees and is accountable for the results and performance of the other employees, clearly he is responsibly directing these employees. This narrow reading of the "responsibly to direct" term splits the difference between inclusion of professional employees and exclusion of supervisors who exercise "independent judgment," resolving the inherent tension between these two terms. Responsible direction should therefore be the touchstone of supervisory status when the professional employee is not carrying out one of the specific functions that automatically qualify as supervisory.