A Modern Union for the Modern Economy

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes. This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship. This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. This Article further explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections

Weathering Wal-Mart

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers. Instead, this Article attempts to find a solution to the problem created by Wal-Mart. The academic literature has yet to thoroughly explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This Article offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This Article also situates these proposals in the context of the existing literature. The thesis of this Article is simple. Taking at face value the argument of scholars that Wal- Mart has created a gaping hole for victims of systemic discrimination, this Article asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. This Article takes on that challenge

Commonality and the Constitution: A Framework for Federal and State Court Class Actions

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. This Article explores the possible constitutional implications of the Wal-Mart decision. This Article explains the potential due process concerns of commonality in class-action claims and critiques the argument that Wal-Mart creates a constitutional floor for all systemic litigation. This Article further fills a void in the scholarship by establishing a framework for analyzing whether class-action claims satisfy commonality under the Constitution. This Article develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim complies with due process guarantees. This Article explains the implications of adopting the proposed guideposts, and situates the suggested framework within the context of the existing academic literature. Wal-Mart signals a sea change for how commonality will be analyzed in all class-action cases. This Article helps define what commonality means under the Constitution, and the guideposts identified here will help streamline all future complex litigation

The Discrimination Presumption

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This Article argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies that demonstrate the fact of employment discrimination, and this Article also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship

A Modern Union for the Modern Economy

Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes. This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship. This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. This Article further explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections

Platform Pleading: Analyzing Employment Disputes in the Technology Sector

The technology sector has created thousands of new jobs for workers across the country in an emerging multi-billion dollar industry. Many companies in this platform-based sector are attempting to characterize their workers as independent contractors rather than employees, thus stripping them of both federal and state workplace protections—including the right to bargain collectively, receive fair compensation, and avoid discrimination. The federal courts, which have always grappled with the question of worker classification, are now struggling to define employment with respect to these gig sector jobs. The result has been scattered court decisions with inconsistent and conflicting analyses. This Essay seeks to provide the courts with much needed guidance on the question of worker classification in the technology sector at the pleading stage of a case. This Essay performs a review of the recent cases that have addressed this issue, synthesizing the varied analyses of these decisions. Navigating the reasoning used by the courts, as well as the Supreme Court’s evolving pleading precedent, this Essay proposes a new analytical framework for addressing the question of worker classification for technology sector claims. The model proposed by this Essay will assist the courts and litigants in better evaluating whether an employment relationship has been established by a platform-based worker in the gig econom

Weathering Wal-Mart

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers. Instead, this Article attempts to find a solution to the problem created by Wal-Mart. The academic literature has yet to thoroughly explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This Article offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This Article also situates these proposals in the context of the existing literature. The thesis of this Article is simple. Taking at face value the argument of scholars that Wal- Mart has created a gaping hole for victims of systemic discrimination, this Article asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. This Article takes on that challenge

Time, Equity, and Sexual Harassment

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims. The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate. This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct

The Discrimination Presumption

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This Article argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies that demonstrate the fact of employment discrimination, and this Article also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship

Weathering Wal-Mart

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers. Instead, this Article attempts to find a solution to the problem created by Wal-Mart. The academic literature has yet to thoroughly explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This Article offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This Article also situates these proposals in the context of the existing literature. The thesis of this Article is simple. Taking at face value the argument of scholars that Wal- Mart has created a gaping hole for victims of systemic discrimination, this Article asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. This Article takes on that challenge