Volume 31, Number 1, Fall 2015

The Editors' Page
By Stephen F. Befort and Laura J. Cooper
With this first issue of Volume 31, the University of Minnesota Law School commences its seventh year as the editorial home of the ABA Journal of Labor & Employment Law. From the start, our editorial work has been a collaboration between the two Faculty Co-Editors and a group of third-year law student editors and second-year law student staff members. Read further for an introduction to the articles presented in this issue.

Human Trafficking and Forced Labor: A Primer
By Marley S. Weiss
Human trafficking is widely referred to as “the slavery of our times” or “modern-day slavery.” The International Labour Organization (ILO) has estimated that over a ten-year period, 20.9 million people—roughly three out of every one thousand people worldwide—have been victims of forced labor or sexual exploitation. The fields in which most labor trafficking victims work include large portions of the private sector in developed economies and nearly all sectors of developing economies. According to a recent study of U.S. labor trafficking, agriculture, hospitality, restaurants, assisted living facilities, and household domestic services are among the top industries using trafficked labor. Part I of this article describes international laws prohibiting labor trafficking, including UN declarations, treaties, and conventions as well as ILO measures and regional human rights instruments; customary international law; and business standards created by international organizations to assist businesses in implementing prohibitions against forced labor. Part II discusses American anti-trafficking efforts. Part III reviews EU measures to implement binding international prohibitions of human trafficking and modern forms of slavery. The conclusion offers best practices for attorneys counseling businesses, trade unions, non-governmental organizations, and workers. The author details how attorneys’ representation of domestic clients can further internationally the ABA Section of Labor and Employment Law’s goal to promote fairness, justice, and human welfare in labor. She concludes by identifying supply chain management policies that employers can implement proactively to prevent complicity in human trafficking.

Worker (Mis)Classification in the Sharing Economy: Trying to Fit Square Pegs into Round Holes
By Robert Sprague
Businesses and courts continuously struggle to determine whether certain workers are employees or independent contractors. Originally, the focus was whether a company was liable to third parties for injuries arising from its workers’ conduct—if it controlled its workers’ actions, it should be responsible for them. In the mid-twentieth century, the analysis shifted to whether workers were covered by labor and employment laws, such as unemployment insurance, workers’ compensation, tax responsibilities, compensation, and other employee-associated benefits and liabilities. Under this test, courts look to the economic reality of the relationship—i.e., whether the worker is truly economically independent—but control is still a critical factor. Part I of this Article describes the emerging business model of the “sharing economy,” in which workers use online intermediaries to connect with potential customers seeking various services, such as a ride to the airport or a room to rent. Part II reviews the history of legal tests used for assessing whether workers are employees and demonstrates why current classification tests, particularly the economic reality test, fail when applied to new, sharing-economy enterprises, such as Lyft and Uber. Part III addresses this failure, arguing that analysis of work in the sharing economy should turn from the worker’s dependence on the company to the company’s dependence on the worker. In the “sharing” economy, the author asserts that the proper test for determining whether sharing economy workers deserve protection as employees is to evaluate how much the business depends on the worker, the opposite of the traditional test that asks, in part, how much the worker depends on the business. If companies in the sharing economy depend on service providers for the company’s existence, concludes the author, the service providers should be considered their employees.

NLRA and RLA Jurisdiction over Airline Independent Contractors: Back on Course
By Brent Garren
The National Labor Relations Act (NLRA) excludes employers and employees covered by the Railway Labor Act (RLA). Whether independent contractors performing services for airlines (airline independent contractors or AICs) are subject to the NLRA or the RLA is critically important to federal labor policies—industrial peace through collective bargaining and employee free choice concerning union representation. The author examines a recent case, Airway Cleaners, LLC, in which the National Mediation Board (NMB), by a two-to-one majority, used a two-part test to determine that Airway Cleaners was not subject to RLA jurisdiction: (1) whether the nature of the work was similar to work traditionally performed by air carrier employees and (2) the airline’s degree of control over the AIC. Representing a shift from earlier NMB opinions, the Airway Cleaners standard finds that “typical” AICs fall under NLRA jurisdiction and that substantial airline control over contractor personnel decisions is required for RLA jurisdiction. This Article argues that the Airway Cleaners standard should find RLA jurisdiction only if one or both of the following circumstances exists: (1) an air carrier controls its AIC similar to a corporate parent’s control over its subsidiary or (2) an air carrier’s control over the AIC and AIC workers meets the common law agency test. This proposed standard, contends the author, would properly return RLA jurisdictional analysis to that used by the NMB for decades after Congress passed the RLA.

Between the Possible and the Plausible: Employment Litigation in the Wake of Twombly and Iqbal
By Julie A. Totten and Michael W. Disotell
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that plaintiffs plead each claim with “a short and plain statement of the claim showing that the pleader is entitled to relief.” For decades, plaintiffs were able to meet this pleading requirement by merely alleging the elements of a claim and relying on discovery to unveil additional facts supporting the claim. In Bell Atlantic Corp. v. Twombly, however, the U.S. Supreme Court raised federal pleading standards by requiring plaintiffs to allege “plausible” claims. Two years later, the Court clarified Twombly in Ashcroft v. Iqbal. Lower courts have disagreed over several residual issues, particularly in the area of employment litigation, that Twombly and Iqbal left unresolved, as the case law discussed in this Article demonstrates. Until the Court clarifies these murky issues, litigators must understand the pleading requirements in their jurisdiction, err on the side of alleging specific facts, and remain apprised of state and federal pleading developments. The author describes strategic methods for leveraging courts’ incongruent pleading requirements through the two most common methods for achieving jurisdictional arbitrage—removal and transfer. Inconsistent application by federal courts of Twombly and Iqbal creates an opportunity for litigants to evaluate the best jurisdiction for their case. That is, plaintiffs may seek to bring their claims in a favorable forum, and defendants may seek to transfer an action to another forum to avail themselves of an advantageous pleading standard.

Equitable Estoppel in ERISA: Reviving a Dead Remedy
By Jeffrey A. Herman
In section 1132(a)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), Congress authorized civil actions for “appropriate equitable relief.” In theory, section 1132(a)(3) authorizes courts to use equitable estoppel to help employees harmed by misrepresentations. However, federal courts have imposed four limitations on ERISA equitable estoppel that have rendered the remedy almost entirely unavailable: (1) representations cannot contradict unambiguous written plan terms, (2) representations cannot be oral, (3) representations cannot be based on silence or omissions, and (4) there must be “extraordinary circumstances.” The author argues that these limitations are inconsistent with equity courts’ traditional application of estoppel and that, if faced with the issue, the Supreme Court is likely to strike them down. Such a holding would have two major implications. First, because ERISA authorizes fiduciaries to obtain appropriate equitable relief against other fiduciaries or participants, participants and plan fiduciaries would find it much easier to estop each other. Plans would be able to use estoppel to bar employees from making certain legal or factual claims, permitting an entirely new realm of employee liability. Second, without the protections of these limitations, fiduciaries would be subject to liability under equitable estoppel for written or oral misrepresentations concerning plan enrollment requirements, terms, coverage, and benefits. They might also be liable for breaching their statutorily mandated duty to disclose important plan information. The author concludes by suggesting that attorneys representing plan fiduciaries should advise clients how to adjust their practices accordingly.

Sex-Plus-Age Discrimination: State Law Saves the Day for Older Women
By Katlyn J. Lynch
Judicial interpretation of federal employment discrimination statutes and their regulatory structures often preclude relief when discrimination based on both sex and age combine to adversely affect older women. Despite Congress’s intent to eliminate sex and age employment discrimination and stereotyping by passing in Title VII of the 1964 Civil Rights Act and the Age Discrimination in Employment Act (ADEA), application of these laws by federal courts has created a gap, leaving older women without a remedy. Title VII prohibits employer discrimination on the basis of race, color, religion, sex, or national origin. Notably missing from Title VII is age; Congress later provided protection against age discrimination in employment in the ADEA. Nevertheless, despite the general acceptance of sex-plus-race claims, no federal appellate court has adopted, and some have explicitly rejected, Title VII sex-plus-age claims, noting that if Congress had intended for age to be a protected class, it could have amended the statue to provide protection to older Americans. This Note argues that federal decisions that reject Title VII sex-plus-age claims are inconsistent with application of sex-plus theory in other contexts, illogically disadvantaging sex-plus-age claimants. Unless and until the Supreme Court acts favorably on such claims, sex-plus-age plaintiffs are more likely to prevail under state statutes protecting both sex and age. The Note presents case studies to identify which state statutory structures are most advantageous to older women plaintiffs and offers a detailed comparison chart of all state laws to guide forum selection.