Saturday, November 5, 2005
Leonard Sandler and the University of Iowa Law Clinic recently received two honors for their work in helping persons with disabilities overcome barriers to transportation and employment.
The clinic, which Professor Sandler co-directs, received the Distinguished Agency Award from Citizens for People with Disabilities in Cedar Rapids for helping improve access to paratransit and public transportation for persons with disabilities.
Sandler received the Commissioner's Award from the Iowa Commission of Persons with Disabilities for exemplary service in the area of employment. Some of his activities include designing and negotiating workplace accommodations for disabled workers, particularly in the use of assistive technology; facilitating workshops and presentations on improving workplace accessibility; conducting accessibility audits for businesses; and collaborating with a host of public- and private-sector employers, organizations and agencies.
Friday, November 4, 2005
FLSA section 13(a)(1) exempts from the minimum wage and overtime provisions “any employee employed in a bona fide executive, administrative, or professional capacity,” as those terms are defined in 29 C.F.R. Part 541. These regulations were revised effective August 23, 2004.
The DOL Wage & Hour Division released yesterday four opinion letters (FLSA 2005 37-40) governing the application of the 13(a)(1) exemption to bookkeepers/office managers, maintenance supervisors, maintenance personnel, beauty school instructors, substitute teachers, police lieutenants, police captains, and fire battalion chiefs.
The U.S. Department of Labor has sued Circle Trust Company (CTC) to restore millions of dollars in losses on imprudent and risky investments with the Trust Advisors Stable Value Plus Fund (SVF), a collective trust administered by CTC. Circle Trust serves as a trustee to SVF, which had invested approximately $200 million from 1,500 pension plans nationwide.
“The company's actions have jeopardized millions of dollars in workers retirement benefits,” said U.S. Secretary of Labor Elaine L. Chao. “The department is aggressively seeking to recover these assets for workers and their families.”
The suit alleges that for the last six years, CTC violated ERISA by, among other things, causing SVF to invest in a number of speculative and imprudent investments that resulted in millions of dollars in losses to the trust fund. On Sept. 30, SVF filed for bankruptcy.
The DOL suit seeks to permanently bar CTC from serving as a fiduciary to any employee benefit plan covered by ERISA. The suit also asks the court to order CTC to reimburse SVF for all losses, with interest, resulting from its fiduciary breaches.
For more, see the DOL's press release.
Thursday, November 3, 2005
Three top executives (president/COO, CFO and General Counsel) of Mercury Interactive, a publicly-traded Silicon Valley company that makes testing software, resigned yesterday. The resignations followed an internal investigation that revealed that Mercury has been manipulating the grant date of employee stock options to benefit its employees. For more, see Bill Sjostrom's post at Business Law Prof Blog.
Legal forms of sex discrimination still exist in the military and in private employment, leaving women at a disadvantage in the workplace, Anne Coughlin said during a Women of Color luncheon. When assessing a person, “sex is one of the characteristics that we just automatically notice and use,” Coughlin said. “We immediately pick up on it and use it to place the person into a specific category.”
According to social science, sex is the most important individual characteristic, Coughlin said, although she stressed that race also is significant. Coughlin focused on two examples: women in the military and appearance code cases, which she acknowledged are “strange bedfellows.”
Wednesday, November 2, 2005
Paul Secunda, on behalf of the AALS Executive Committee of the Section on Employment Discrimination, is creating an AALS Listserv on Employment Discrimination. If you would like to subscribe but did not receive an email from him, please send your email information to firstname.lastname@example.org.
Listserv membership is limited to law professors interested in employment discrimination law and policy, who are at AALS law schools.
LexisNexis and AAA today announced a strategic relationship to deliver a new electronic collection of searchable Labor Arbitration Awards exclusively via the LexisNexis research services.
"We look forward to working with LexisNexis over the coming months to provide our extensive Labor Arbitration Awards to labor and employment practitioners," said Ted Pons, vice president of publications, American Arbitration Association. "The robust content offerings and ease-of-use of the LexisNexis services puts these awards at the user’s fingertips to help answer arbitration-related questions."
The Government Accounting Office, in a Report released last week, has criticized the EEOC’s internal restructuring plan.
In May 2001, the EEOC and other federal agencies were directed by the Office of Management and Budget (OMB) to prepare restructuring plans to make government more responsive to citizens' needs. By June 2001, agencies were to submit a workforce analysis to OMB that would include, for example, demographic information on the agency's employees and would serve as the baseline for agency-specific restructuring plans.
Although the EEOC did not develop or submit to OMB a restructuring plan as required, it has developed and submitted a workforce analysis to OMB, contracted with the National Academy of Public Administration (NAPA) for a study of its operations, and taken action to implement some of the study's recommendations. OMB officials stated that they have found EEOC's restructuring approach to be acceptable. EEOC chose to implement three major initiatives from the study of its operations but did not have an organized strategy to consider all of the study's recommendations. These wide-ranging recommendations address multiple topics, including EEOC's mission, needed technological improvements, and human capital management. In the GAO Report, the GAO recommends that the EEOC develop and implement an organized strategy to consider all of the NAPA recommendations. EEOC disagreed with this recommendation, indicating that it had already implemented such a strategy. The GAO Report concludes that the EEOC should more systematically evaluate each of the NAPA recommendations, which would include an examination of the implementation costs, contributions to Commission goals, as well as establishing a means for measuring the impact of those recommendations that are implemented.
Shortly after 10:00 p.m. last night, Delta filed a motion with a New York bankruptcy court to void or modify its collective bargaining agreement with ALPA (the pilots union). The move appears to be a strong-arm tactic intended to force concessions from the union at the bargaining table, since Delta said in a pre-filing memo to ALPA that Delta "remain[s] hopeful of reaching a consensual agreement." The motion, like last month's similar motions from Delphi and Northerwest Airlines, raises the issue of the proper legal standard that a bankruptcy court should use in voiding or modifying a collective bargaining agreement under 11 U.S.C. 1113. The Third Circuit permits rejection or modification only upon a showing that, absent rejection or modification, the debtor will be faced with certain liquidation. The Second Circuit (which includes New York, where Delta's bankruptcy was filed) makes it much easier for a debtor to obtain rejection or modification: the debtor must only show that rejection or modification is made in "good faith" with the purpose of furthering the debtor's successful reorganization. The legal standard in the Sixth and most other Circuits is uncertain. This helps explain why so many large companies with large wage contracts have filed for bankruptcy in New York.
Tuesday, November 1, 2005
A new study finds a consistent correspondence between the quality of a state's environment for workers and its economic health. States ranking high on such issues as average pay, employment opportunities, employee benefits, percentage of low-income workers, fair treatment between genders and ability for employees to unionize, generally have faster economic growth and lower poverty rates. Conversely, states ranking low on such issues tend to have slower economic growth and higher poverty rates.
The Report, Decent Work in America, was developed by researchers at Political Economy Research Institute (PERI) at the University of Massachusetts. It ranks all 50 states and Washington, D.C. Each state received a ranking on a scale of 1 – 100 in three categories – Job Opportunities, Job Quality and Workplace Fairness – which were then averaged out to determine the state's total score. Among the states at the top of the list are Delaware, New Hampshire, Minnesota, Vermont, and Iowa, while Louisiana, Texas, Arkansas, Utah, South Carolina are ranked the lowest.
Miriam Cherry, in an essay titled Reality at Work to be published later this week in Legal Times, points out that the television show "The Apprentice" potently illustrates the law of the workplace. "Collegiality concerns, the presence of cliques in the workplace, the at-will employment rule, and employer-versus-employee expectations all factor into the choice of an 'Apprentice' winner. We see played out on TV the reasons why women and minorities don't fully realize their potential at work, as well as common misunderstandings about the extent of job security."
Monday, October 31, 2005
The EEOC released today a Report on the efforts of nine states to employ more disabled individuals in government jobs. The study, Final Report on Best Practices for the Employment of People with Disabilities in State Government, examined nine states that voluntarily allowed the EEOC to review a wide range of practices affecting disabled state government employees or applicants. The practices related to recruiting and hiring, retaining, advancing, and providing reasonable accommodations to disabled employees, as well as the employment of disabled individuals more generally in both public and private sector jobs.
On the positive side, the Report notes that several states have established training and hiring programs specifically for individuals with disabilities, and that states have made significant efforts to increase the number of qualified disabled applicants for jobs available to the general public. The Report also found that individuals involved in the hiring process have access to more than adequate training on subjects such as interviewing people with disabilities and preparing job descriptions in ways that do not inadvertently screen out qualified disabled individuals.
On the negative side, however, the Report found little evidence of mentoring programs or training opportunities specifically aimed at promoting the advancement of disabled employees after they are hired, or evidence that the states have tried to determine the distribution of disabled employees among the various levels of the state government workforce.
ABSTRACT: Data collected from 1,295 employers on 15,293 law firm associates who graduated from law school between 2001 and 2003 were used to develop a “total quality score” for every ABA-accredited law school, both nationally and for nine geographic regions. Quantitative methods were then used to identify factors to help explain the variation in a law school’s national career placement success at elite law firms. The findings revealed that while a law school’s academic reputation is the single biggest predictor of placement, several other factors were also highly significant. Differences in grading system, class rank disclosure policies, and the number of first year courses required were responsible for significant variation. Numbers grading systems, such as those used at the University of Chicago, and honors/pass/fail grading systems, such as those used at Yale, both have a strong negative impact on placement when all else is held equal. This is likely because both systems impair the middle of the class’s job prospects relative to traditional letter grade systems. Law schools that do not disclose class rank to students or employers place better than schools that do disclose rank, when all else is held constant. It is unclear whether this is due to employer preferences or due to disparate psychological effects on students that impact their career placement strategies. Law schools that require a greater number of first year classes, however, can make up for deficiencies in these other areas.
And the winners are:
Richard Victor-Schmidt Luna, Caveat Fiduciarius: Unions, Pension Fund Investments, and the Capital Pre-Recognition Agreement Exchange, 54 Catholic U. L. Rev. 1313 (2005).
Anthony Ciolli, The Legal Employment Market: Determinants of Elite Firm Placement and How Law Schools Stack Up, 45 Jurimetrics 413 (2005).
And, from St. Louis University Law Journal, a series of lectures, responses, and articles examining the continuing development of the Civil Rights Act of 1964:
Drew S. Days, III, “Feedback Loop”: The Civil Rights Act of 1964 and its Progeny, 49 St. Louis U. L.J. 981 (2005).
Samuel R. Bagenstos, Trapped in the Feedback Loop: A Response to Professor Days, 49 St. Louis U. L.J. 1007 (2005).
George Rutherglen, Controversy, Consensus, and the Concept of Discrimination, 49 St. Louis U. L.J. 1021 (2005).
Sheryll D. Cashin, The Civil Rights Act of 1964 and Coalition Politics, 49 St. Louis U. L.J. 1029 (2005).
Melissa Cole Essig, Gimp Theory and the ADA’s “Feedback Loop,” 49 St. Louis U. L.J. 1047 (2005).
Harold S. Lewis, Jr., Walking the Walk of Plain Text: The Supreme Court’s Markedly More Solicitous Treatment of Title VII Following the Civil Rights Act of 1991, 49 St. Louis U. L.J. 1081 (2005).
Joel K. Goldstein, Constitutional Dialogue and the Civil Rights Act of 1964, 49 St. Louis U. L.J. 1095 (2005).
Gerald N. Rosenberg, The 1964 Civil Rights Act: The Crucial Role of Social Movements in the Enactment and Implementation of Anti-Discrimination Law, 49 St. Louis U. L.J. 1147 (2005).