Labor & Employment Law Practice Group Podcast Ronald E. Meisburg November 30, 2016
Ronald Meisburg, former National Labor Relations Board Member and General Counsel, joined us to discuss recent updates to joint employment law. Joint Employment is defined under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act as a form of employment that “exists when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.”
This issue has risen to the forefront of labor law as President Obama’s Department of Labor has become more aggressive in his last year and as businesses grapple with the coming of a new administration.
2016 National Lawyers Convention
- Hon. Ronald Meisburg, Special Counsel, Hunton & Williams
The “gig" or “on demand" economy may be the fastest growing segment of our economy, with 22.4 million consumers spending $56.6 billion annually. By 2020, according to some studies, 7.6 million Americans will be working as independent contractors in the gig economy. At the same time, however, the U.S. Department of Labor has narrowed standards for classifying workers as independent contractors, and entered enforcement partnerships with 30 States looking to find misclassified independent contractors in order to increase workers' compensation, unemployment and employment tax revenue. A battle has begun between regulators and entrepreneurs, between independent contractor and employee status. This panel will explore who should win, who will win, and whether there is a third way – creating a new legal category, the “independent worker," for those who occupy the grey area between employee and independent contractor.
This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.
Labor & Employment Law: The Battle for the Gig Economy
1:45 p.m. – 3:15 p.m.
- Hon. Mark Brnovich, Attorney General, Arizona
- Mr. Mark Floyd, Senior Director and Global Relations Lead, Uber Technologies Inc.
- Mr. Randel K. Johnson, Senior Vice President, Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce
- Mr. Bill Samuel, Director of Government Affairs, AFL-CIO
- Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit
The Mayflower Hotel Labor & Employment Law Practice Group Podcast
Friedrichs v. California Teachers Association was anticipated to be one of the most significant cases of the Supreme Court’s term. In Friedrichs, the Court was considering whether to overrule its prior decision in Abood v. Detroit Board of Education (1977), which held that public employees can be required to financially support union collective-bargaining with government, but not union political activities. In 2014, the Court sharply criticized Abood’s rationales in Harris v. Quinn, but stopped short of overruling it. Friedrichs was primed to be the final word on Abood’s continuing validity. However, with Justice Scalia’s passing in February, the Court deadlocked 4-4 in Friedrichs, and Abood remains the law of land.
This Teleforum explored the legal landscape post-Friedrichs. This includes the other cases challenging Abood that are pending in the lower courts, and the legal arguments for and against upholding Abood. It also includes cases that concern related matters, such as whether individuals can be required to affirmatively object to paying “non-chargeable” union dues under Abood, and whether individuals who are not full-fledged employees can be included in systems of exclusive representation in the wake of Harris.
SCOTUScast 6-16-16 featuring Kenton J. Skarin
- Scott A. Kronland, Partner, Altshuler Berzon LLP
- William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.
On May 19, 2016, the Supreme Court decided CRST Van Expedited, Inc. v. EEOC. In 2007, the Equal Employment Opportunity Commission (EEOC) filed a sexual harassment suit against CRST Van Expedited (CRST) on behalf of approximately 270 female employees. When a number failed to appear for depositions, however, the district court barred the EEOC from pursuing their claims as a discovery sanction. The remaining claims were dismissed on various other grounds, including 67 claims that the district court dismissed for failure of the EEOC to separately investigate, find reasonable cause for, or attempt to conciliate them. In addition, the court awarded CRST some $4.46 million in attorney’s fees and expenses, on the basis that the claims were frivolous, unreasonable, or without foundation. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of all but two claims, vacated the award of fees and costs, and remanded the case. On remand, one of the remaining claims was withdrawn and the other settled. CRST renewed its petition for fees, costs, and expenses, and the district court again awarded it approximately $4.6 million.
On a second appeal, the Eighth Circuit again reversed the award, finding that claims which had been dismissed for the EEOC’s failure to meet presuit obligations could not serve as grounds for a fees award, and remanding for an individualized determination as to whether other claims were frivolous, unreasonable, or without foundation.
The U.S. Supreme Court granted CRST’s subsequent petition for certiorari, vacating the judgment of the Eighth Circuit and remanding the case by a vote of 8-0. Justice Kennedy’s opinion for a unanimous Court held that a favorable ruling on the merits is not a necessary predicate to find that a defendant is a prevailing party for purposes of awarding attorney’s fees award. Justice Thomas filed a concurring opinion.
To discuss the case, we have Kenton J. Skarin, who is an Associate at Jones Day. Fourth Annual Executive Branch Review Conference
The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory. Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.
This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.
- Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
- Mr. James Scanlan, Attorney at Law
- Mr. James Sharf, Sharf & Associates
- Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis
The Mayflower Hotel