Category: Employment Law

19

Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump’s cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show.

When I’ve asked people – especially my students – why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many ‘Apprentice’ watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal.

Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

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4

Immigration and Worker Owned Businesses

Last week, I posted my article, Decentering the Firm: The Limited Liability Company and Low Wage Immigrant Women Workers, 39 U.C. Davis L. Rev. 787 (2006) to SSRN.

In the article, I look at the low-wage jobs held by many immigrant women workers and conclude that part of the reason why so many of these jobs – often in positions such as nannies and housecleaners – are paid so poorly and are so exploitative – is because of the intersection between several types of oppression: gender, ethnicity, race, and immigration status.

When one takes a job in the underground economy, many of the typical benefits that we think of as being associated with work simply don’t apply. Obviously, the situation is worse for undocumented workers who are hesitant to enforce their rights (for fear of being deported), and because they may not even be able to receive any remedies (the Hoffman Plastics precedent).

As a – partial – solution to this problem, I talk about re-organizing these types of work, eliminating the intermediary who normally sets up the work and takes a profit, and transforming the workers into owners who are members of an LLC. This allows for collective benefits – such as health insurance and workers’ compensation – and allows for the LLC to pay taxes, so that if a worker is able to regularize their immigration status, they will not have tax problems.

I wrote this piece months before the proposals for immigration reform came to the forefront. Although the article assumes the legal status quo, worker-owned businesses could still have an important role to play in the future (regardless of what happens with the immigration bill). I’m glad that I have the opportunity to blog about these issues – it gives me a good way to follow up on my scholarship.

0

Labor and Employment Law Conference

Marquette University Law School will host the 2006 Colloquium on Current Scholarship in Labor and Employment Law on Friday, October 27, 2006. From the conference website:

The Colloquium offers an opportunity for labor and employment law scholars from around the country to present their works in progress or recent scholarship, to get feedback from their colleagues, and to have a chance to meet and interact with those who are also teaching and researching in the labor and employment law area. Although all participants are encouraged to present their scholarship, one need not present in order to attend.

More here, or to register, click here. The conference, interestingly, is the result of a blog post by Scott Moss (Marquette) and responses to that blog post from Paul Secunda (Ole Miss) and Joe Slater (U. Toledo).

4

Law Firm “Internships” and the Fair Labor Standards Act

The past few weeks, I’ve had questions from One-Ls about summer internships and job opportunities. Many are working for judges, legal services agencies, or at other public interest organizations. For One-Ls especially, an unpaid internship with the government or with a non-profit can provide significant benefits. Such an internship gives the students a sense of what lawyers do, an exposure to an area of practice, and perhaps the opportunity to work on a sustained project that will give them a good writing sample. At the same time, courts and non-profits are understaffed, don’t have a lot of money to throw around, and can benefit from the additional summer help.

I understand all of this, but lately an increasing number of students have been telling me about “internships” – unpaid – with for-profit law firms servicing paying clients. From what I have heard, the student intern will perform tasks normally handled by an associate, paralegal, or secretary, all in exchange for the grand total of nothing. (Well, except to occasionally get a free lunch or commuting expenses). From what I have heard, the level of supervision varies at these internships; students sometimes say the feedback and experience is good, other times they are mostly ignored and set to the routine task of document review.

Recently the Department of Labor promulgated the following list of factors to determine whether unpaid externships comply with the Fair Labor Standards Act (FLSA), otherwise known as our minimum wage law:

1. The training is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees or students;

3. The trainees or students do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;

5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Although I’m sure that the last two factors are met with a for-profit law firm unpaid “internship,” the other four could cut against a law firm that doesn’t give students a good training experience.

In my mind, the entire practice of using students to perform for-profit legal work and not paying them leaves me highly suspicious. Pay the intern below what you would an associate, paralegal, or secretary, heck, pay them minimum wage. But pay the intern something.

2

Retaliation Against Workers at Immigration Rallies

Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.

According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.

Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.

If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.

Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so

.

I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.

Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.

0

You gotta have Friends

The California Supreme Court has ruled in Lyle v. Warner Bros., the Friends sexual harassment case. The plaintiff alleged a hostile work environment, stemming from writers’ use of offensive jokes about sex during script writing sessions. The court disagreed, ruling unanimously against plaintiff in upholding the trial court’s summary judgment decision. The decision states in part:

Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

In addition, Justice Chin argued in a concurrence (relying largely on the writings of Eugene Volokh) that the plaintiff’s claim is barred by the defendant’s freedom of expression under the First Amendment. David Bernstein at Volokh.com has a post suggesting that the majority should have based its decision on that ground.