Textualism in statutory interpretation is a good thing because, as the late Justice Antonin...
n January 11, 2018, Jon Nash of Emory University School of Law and I submitted comments to the Department of Labor (“DOL”) on its proposed regulation regarding the freedom of employers that pay direct cash wages of at least the Federal minimum wage and do not take a tip credit to engage in the pooling of tips, even among employees who are not customarily and regularly tipped. We are also publishing a forthcoming article on the very subject of the proposed regulation, Samuel Estreicher & Jonathan Remy Nash, The Case for Tipping and Unrestricted Tip Pooling: Promoting Intrafirm Cooperation, 59 Boston College Law Review (Issue No.1, Jan. 2018). Our comments make the following principal points:
Professor Bagenstos suggests that I am somehow in league with “skeptics” of the civil rights laws and am calling for a form of “second-class citizenship” in my previous post urging greater use of the “safe harbor” approach in achieving antidiscrimination objectives. Just to repeat: I am advocating an EEOC-supervised program in which individuals in certain categories (identified by the agency) who want to work and, despite the best efforts over decades by administrative agencies and advocates, cannot find work, can enroll and seek work with participating employers who are encouraged to take a chance and hire them because they know that during a limited probationary period employment can be terminated for any reason. This is not an all-purpose panacea and is certainly not intended to foreclose bolstered enforcement efforts of a more traditional type (which I favor). It is intended to break through a kind of employment market logjam, to pursue the achievable good for individuals who chose to enroll and find employment.
Achieving Antidiscrimination Objectives Through “Safe Harbor” Rules for Cases of Chronic Hiring Aversion
As a general matter, and looking only at hiring barriers, our employment discrimination laws have done a good job encouraging employers to take advantage of available talent from populations they might previously not have previously have drawn from. This encouragement comes both from the “stick” – fear of liability and adverse publicity from administrative investigations and lawsuits -- but also from the “carrot” of benefiting from a broader pool of talent and having any negative preconceptions dissolved by favorable experience. In these situations, the laws have served to accelerate desirable market outcomes and, at the same time, enhance the participation in our economy of previously marginalized groups.