Saturday, May 6, 2006

Top-5 Employment SSRN Downloads

Top-5 Labor SSRN Downloads

Top-5 International Employment & Labor Law SSRN Downloads

  1. Rob Euwals, Daniel J. van Vuuren, & Ronald P. Wolthoff, Early Retirement Behaviour in the Netherlands: Evidence from a Policy Reform (22).
  2. Matthew Finkin, Life Away From Work (22).
  3. John T. Addison, Claus Schnabel, & Joachim Wagner, The (Parlous) State of German Unions (20).
  4. Wolfgang Franz & Friedhelm Pfeiffer, Reasons for Wage Rigidity in Gemany (18).
  5. Marie-Jeanne Moreau, Restructuring and the European Works Council (13).


May 6, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Top-5 Benefits/Compensation//Pension SSRN Downloads

Thoughts on the Health Insurance Marketplace Modernization and Affordability Act

000084_2 Ann Bartow (South Carolina and Feminist Law Professors) had a post the other day on the so-called Enzi bill that the Senate is considering to make health insurance more affordable for small businesses by allowing them to pool together to purchase health insurance (I previously blogged about the concept of pooling here).

As Ann (through Families USA and the AFL-CIO blog) points out, one of the lesser known parts of the bill is that under the proposed law, "[s]tates will no longer be able to mandate coverage of benefits, services, or categories of providers for individuals, small groups, or large groups."

While all of this is indeed very troubling, it actually does not enact a large of a change in the law of employee benefits as one might think.  This is because of ERISA preemption. 

As I have described in a number of other posts (one example is here), if a health insurance plan is self-insured, then under the ERISA preemption scheme, state mandated benefits law, like the ones impacted by the Enzi pooling bill, would be preempted anyway.  This has been the law since the mid-1980s when the court decided the Metropolitan Edison case.

Additionally, statistics show that more and more employers are adopting self-insured health plans to avoid being subject to state insurance regulation like mandated benefit laws.  Indeed, even for small businesses like the ones impacted by the Enzi bill who usually could not afford to self-insure, they can buy something called stop loss insurance (explained more here) with a low "attachment point" which allows them to run a self-insurance plan but with insurance-like protection.

Not that any of this is good news for people who should have the additional insurance coverage states mandate. But given the nature of ERISA preemption and the increased use of self-insurance and stop loss insurance, the Enzi bill might have less impact in this area than some might have originally thought.


May 6, 2006 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Kohler on the Notion of Solidarity in Labor Law

Kohler_1 Thomas Kohler (Boston College) has posted on NELLCO his recent piece he published in the Buffalo Law Review entitled: The Notion of Soldarity and the Secret History of America Labor Law, 53 Buff. L. Rev.  883 (2005).

From the abstract:

The NLRA is unique not only among the labor relation schemes of other nations, but its terms do not fit well within American legal patterns either. It is the only place in our famously individual-oriented legal system where the law seeks to protect the status of the person through the regulation of freely-formed associations. Perhaps this anomaly is rooted in the predominant role the Catholic Church has exercised in shaping America’s labor movement.

The author suggests that two factors might explain the Catholic character of American labor law. Perhaps the manner in which Catholics understand community and the Church’s traditional teachings on social justice account for the consistent support the Church has given to organized labor and collective bargaining. By providing a short history of solidarity, and using the Corpus Christi celebration as an example of Catholic community values, the author assesses a uniquely Catholic contribution to American labor law.

You can download this original, insightful piece on one of the possible foundations of American labor law here.


May 6, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 5, 2006

Hot for Teacher: Former Porn Star Teacher Dismissed by School

Sch_building_3In my last law review article, The (Neglected) Importance of Being Lawrence, I examined the impact of Lawrence v. Texas on the sexual privacy rights of public employees. 

My argument there was that, post-Lawrence, courts should apply a Pickering-esque constitutional balancing test to determine whether public employers can constitutionally interfere with their employee's off-duty conduct in matters pertaining to sex.

In testing the contours of my new constitutional test, one hypothetical I explored in my article was that of a Jenna Jameson-like public school teacher, who did more than a competent job teaching during the day, but whose after-hour activities made her employers more than just a little uncomfortable.

Using my modified Pickering test borrowed from First Amendment jurisprudence, I  balanced the efficiency concerns of the employer against the substantive due process rights of the teacher to decisional non-interference in her private affairs.  I suggested that because of the significant disruption that employing a porn star would cause to the school environment, the school could most likely terminate her employment without violating the employee's substantive due process rights.

Now comes an article concerning a real-world case involving a public high school teacher in Paducah, Kentucky who ten years ago produced a professional X-rated videotape and which tape just came to the attention of the school community.  Although the teacher regrets her actions, is embarassed by the tape, and never plans to do anything like it again, she has been placed on administrative leave by the school district with the understanding that her contract will not be renewed. The local teacher's association is deciding whether or not to sue on her behalf.

As much as I symphathize with the plight of the teacher (especially because she appears to have been suffering from bipolar disease at the time the tape was made), based on my post-Lawrence Pickering analysis, it will be hard for the teacher to prevail on constitutional grounds.  This is because the school district will be able to make a strong case that her continued employment at the school, where students and parents knows of her lurid past, will cause substantial disruption to the operation of the school.  And even if such disruptions does not occur, the school seems to have a further interest in protecting its image and credibility in the community and hiring role models for its students.

All that being said, public employees in future cases concerning sexual off-duty conduct should have a better chance of prevailing under a Lawrence-based approach where issues of disprution and maintaining image are less crucial to the public employer.


May 5, 2006 in Commentary | Permalink | Comments (2) | TrackBack (1)

Carlson on the Small Firm Exemption and Single Employer Doctrine

Richard_carlsonRichard Carlson (South Texas) has posted on the bepress legal repository his new paper: The Small Firm Exemption and the Single Employer Doctrine in Employment Discrimination Law.

From the abstract:

The small firm exemption is a provision of Title VII and the other major federal employment discrimination laws that exempts very small firms from coverage as “employers.” Under the Title VII version of the exemption, for example, an employer is exempt as long as it employs no more than fourteen employees. However, a small firm might be affiliated or integrated with other firms, which collectively employ more than the number of employees required for coverage.

The single employer doctrine is a rule for treating separately organized firms as if they were one employer, for purposes of meeting the statutory threshold for coverage. Lately, a number of critics lead by Judge Posner have questioned the doctrine’s place in discrimination law. The critics charge that the collective bargaining cases in which the doctrine first evolved are not valid precedents for the doctrine’s use as a rule of coverage in discrimination cases, and that the doctrine defeats the purposes of the small firm exemption. Judge Posner and other critics would treat affiliated but separately organized firms as a single employer only if it would be appropriate to pierce to corporate veil or hold them jointly liable under traditional rules of corporate law.

In this article I explore the origins of the single employer doctrine and its vivid presence in the background of the Congressional debates leading to the small firm exemption. I also find support for the doctrine in the text of Title VII, and I show that the doctrine is not only consistent with the purpose of the small firm exemption but is necessary to fully achieve the exemption’s purpose.

You can download this interesting and thought-provoking paper here.


May 5, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 4, 2006

SSRN Top Labor Faculty Rankings

Ssrn_logo_71Following Paul Caron’s lead over at the TaxProf Blog, I have attempted to rank the Top Labor Faculty in terms of both new SSRN downloads within the past 12 months and in terms of all-time SSRN downloads. SSRN has updated its new monthly rankings of 343 American and international law school faculties and 1,500 law professors as of May 2, 2006. 

I did my best as I went over the list of law professors to try to identify those faculty members whose primary teaching and research interests in recent years have focused on the labor and employment law context. Of course, this ranking only includes labor and employment professors with at least one labor-related paper on SSRN.

I would appreciate if readers would use the comment section to please tell me about any individuals I might have missed and I will update this list accordingly in the days to come.  Thanks for the help!

                               Top 30 Labor Faculty SSRN Rankings

Recent Downloads 

  All-Time Downloads 

Labor Faculty (School)

Labor Rank

Overall Rank

Labor Rank

Overall Rank

Kenneth Dau-Schmidt (Indiana-Bloomington)





Rafael Gely (Cincinnati)





Orly Lobel (San Diego)





Richard Bales (N. Ky/Chase)





Miriam Cherry (Univ. of the Pacific-McGeorge)





Katherine Stone (UCLA)





Stewart Schwab (Cornell)





Michael Selmi (GW)





Christine Jolls (Harvard)





Angela Onwuachi-Willig (UC Davis)





Matthew Bodie (Hofstra)





Charles Sullivan (Seton Hall)





Samuel Bagenstos (Wash U.)





Scott Moss (Marquette.)





James Brudney (Ohio State)





Paul Secunda (Mississippi)





Matthew Finkin (UCLA)





Ellen Dannin (Wayne State)





Melissa Hart (Colorado)





Sharona Hoffman (Case Western)





Catherine Fisk (Duke)





Laura Kessler (Utah)





Stephen Befort (Minnesota)





Harry Hutchinson (Geo. Mason)





Seth Harris (New York Law)





Elizabeth Pendo (St. Thomas)





Jennifer Gordon (Fordham)





Alex Long (Oklahoma City)





Kim Yuracko (Northwestern)





Michelle Travis (San Francisco)





Michael Stein (William & Mary) -- 1540 5 477
J.H. Verkerke (Virginia) -- 1662 12 616
Gillian Lester (UCLA) -- 1693 14 679
Vicki Schultz (Yale) -- 1728 23 1204
Cynthia Estlund (NYU) -- 2406 22 1128

Like Paul Caron, I want to emphasize that these rankings are imperfect measures of faculty scholarly performance and the SSRN data only plays a role in faculty rankings along with other ranking measures.


May 4, 2006 in Scholarship | Permalink | Comments (4) | TrackBack (0)

Extra-Constitutional Speech Protections for Bloggers at Work

Woman_2Eugene Volokh over at the Volokh Conspiracy has a couple of interesting posts (here and here) exploring extra-constitutional speech protections for private employees who blog and whose employers do not approve of the contents of their blogs.

These extra-constitutuonal speech protections are important for private employees because the federal constitutional First Amendment protections generally do not apply in these circumstances because of the lack of state action.  Consequently, Eugene considers other types of speech protections provided by state constitutions, federal or state statutes, and the common law.

In particular, in one of the posts he considers political action or activity laws that California, Louisiana, and South Carolina have put into place.  He concludes that if the "speech undermines the employer’s business, either because it criticizes the employer, or because it’s controversial and makes coworkers and customers angry," the political activity speech would be protected as long as the defintion of political activity has been met and the worker is covered by the terms of the statute.

Eugene promises to write on more statutes in the coming days that might protect blogger extra-constitutional speech.  Specificallly, as a Higher Ed and the Law student of mine has recently wrote a seminar paper on off-duty conduct statutes, I'll be interested in seeing if he believes such statutes (like the ones New York, Colorado, and Massachusetts have) might provide additional protection to private blogger beyond the political speech context.  Having only looked at these laws briefly, my first impression is that they might indeed give additional protection to private employees who blog.


May 4, 2006 in Commentary | Permalink | Comments (0) | TrackBack (0)

Another Reason for Avoiding a Tax Audit

17aFrom United States v. Temple, 05-0165 (2nd Cir., May 1, 2006), which isn't even an employment case, but begs to be told:

As she was being transported, [Eva] Temple continued to scream and yell abusive epithets. At one point, she kicked Montes as they sat in the back seat. During the trip, she told the detectives that she was an IRS employee, with “the ability to initiate investigations and audits into the tax histories” of the detectives. She also stated that there “were a number of brothers and sisters who held a grudge against the NYPD” and that she would contact those employees to audit the detectives’ tax returns because of the arrest.

Approximately two months after Detectives Montes and Magaldi arrested Temple for aggravated harassment, the IRS fired Temple for misconduct unrelated to the arrest.

Upon arriving at work on the morning of June 13, 2003, [Senior Labor Relations Specialist] Petherbridge[, who recommended and implemented the decision to terminate Temple] found a message that had been placed on his office telephone voicemail by Temple on the afternoon of June 12. The message was placed at 5:12 p.m., after Petherbridge had left work for the day. The message was as follows: “Yeah, you faggot ass bitch ass stupid faggot fuck. I’m gonna fuck you up, you faggot bitch.”

Moral of the story?  File your taxes on time and accurately.

Thanks to Paul Caron at TaxProf and Robert Loblaw at decision of the day for the pointer.


May 4, 2006 in Commentary | Permalink | Comments (0) | TrackBack (0)

Duty to Warn Doctrine In New Jersey Extended to Spouses

WorkbootsThe Supreme Court of New Jersey has ruled that the state's "duty to warn" doctrine, which requires companies to inform workers of exposure to hazardous substances such as asbestos, also places am obligation on companies to inform spouses of such dangerous substances in they are also foreseeably exposed to the same  hazards. reports:

The New Jersey Supreme Court broadened the state's duty-to-warn doctrine last week by extending landowners' obligations to workers' spouses who handle clothes covered with asbestos dust.

Just as a company owes a duty to workers for the foreseeable risk of asbestos exposure, it has a duty to spouses "based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing," Justice Jaynee LaVecchia wrote in Olivo v. Exxon Mobil, A-23-05.

The 5-0 ruling runs counter to those by the highest courts in New York state and Georgia that found no such duty to inform spouses of potentially hazardous conditions.

The case, as mentioned above, Olivo v. Exxon Mobil, can be read in full here.

Interesting ruling. I wonder if readers are aware of other derivative workplace rights (excluding the obvious case of employee benefits) that spouses might have under federal or state law or is this sui generis?


May 4, 2006 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

The First Amendment Rights of Day Laborers

Tool_belt_2When one thinks of day laborers, from the movies or in real life, one thinks of large groups of ethnic men congregating in the parking lot of Home Depot or at a well-known intersection in a less desirable part of town to solicit work.

Well, one town in New York has decided that it does not like having these day laborer congregations at a park in their town because of the noise and pollution caused by their presence and has sought to shut down the site where day laborers assemble for work.

As a result, a federal class action lawsuit has now been filed by a group of day laborers against the Town of Mamaroneck for violation of their First Amendment rights.

The Westchester Journal News reports:

Lawyers for Mamaroneck day laborers filed a federal class-action lawsuit today against the village for shutting down its laborer hiring site.

The suit charges the village violated the laborers' freedoms of speech and assembly by its efforts to deter them from soliciting work.

Of course, the town has its reasons for wanting to rid itself of what sees as a public nuisance:

Laborers had gathered for years in Mamaroneck's Columbus Park to seek jobs from contractors who would drive by. Their ranks swelled into the hundreds some days, prompting complaints from some residents and from the developer of a new condominium complex being built near the park.

Complaints about workers' behavior included urinating and defecating in public, fighting, drinking, blocking sidewalks, littering, smoking marijuana and sleeping overnight.

But even in a public forum like Columbus Park, the town, rather than banning all such day laborer practices, should have instead put into place some sensible time, place, and manner restrictions to deal with the issue.  Such outright bans on speech and assembly are bound to be looked at unfavorably by the courts.

Indeed, such outright bans against day laborers have recently been found unconstitutional in California in a number of cases that Howard over at How Appealing has documented.


May 4, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 3, 2006

NEWS FLASH: AALS Moves 2007 Conference from San Francisco to Washington D.C.

Aals_logo_13Just in from Carl Monk, executive director of AALS, via email:

The AALS Executive Committee has decided to move the 2007 Annual Meeting from San Francisco to Washington, DC.

Many of you will recall the labor problems that threatened to cause strife during the 2005 Annual Meeting. Those problems have not been resolved, and there is currently a public union boycott of all of the major properties in San Francisco. Based on many discussions with both labor officials and hotel management over the last few months, we have concluded that there is a reasonable possibility that the current boycott could result in a strike during the time of the AALS Annual Meeting.

AALS has not investigated the merits of the San Francisco labor dispute and takes no position on that dispute. It is clear however that the quality of the Annual Meeting, and attendance at the meeting, would be negatively affected in the event of a strike. Some speakers would decide to cancel and, in all likelihood, it would be too late for Sections to substitute equally well qualified speakers; some potential registrants would also choose not to attend the meeting. Thus, the single most important AALS professional development program of the year would suffer significantly.

Of course, we here at the Workplace Prof Blog pointed out the potential looming issues surrounding holding the annual conference in San Francisco given the current labor climate (here and here). 

Kudos to Cindy Estlund and the rest of the Section of Labor Relations and Employment Law who added their voices to the chorus asking that the conference be moved if the on-going hotel labor dispute did not appear to be coming to a resolution.

Look forward to seeing everyone in D.C. in January!


May 3, 2006 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Illinois Establishes Program in Comparative Labor and Employment Law & Policy

02finkinmatthew1_w_1Matthew Finkin (Illinois) writes to tell us that the University of Illinois College of Law has established a Program in Comparative Labor and Employment Law & Policy

Although the program does not have a certificate or degree-granting function, it plans to brings in speakers and will support conferences and student research.

From the press release:

Professor Finkin intends to use the Program to regularize and broaden the College's   long-standing practice of hosting visiting faculty of global stature from universities   around the world, and to exploit the use of teleconferencing instruction and   team-teaching in order to partner with universities and research institutes   to create innovative curricular offerings that will expose students here and   around the world to comparative analyses of workplace issues.

He also plans   to sponsor and host conferences and public lectures that will unite comparativists   within the College and larger campus with scholars from other leading universities   both within and outside of the United States. And he has committed the Program   to encouraging student research and has arranged for students to be able to   spend summer residencies at the Institute for Labor Law and Labor Relations   in the European Community at Trier, Germany, which has a superb up-to-date library   collection in the labor laws of the E.C.'s member states.

If you would like more information about the Program, you can contact Prof. Finkin at this email.


May 3, 2006 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Mark Sidel Receives Award

Marksidelphpjpg Mark Sidel (Iowa) has received a Faculty Scholar Award.  He will use thw Award to study aspects of human trafficking and forced labor in the United States and Asia.  He p[lans to explore measures to protect victims, prevent trafficking and punish perpetrators at the federal and state levels; the use of civil remedies against traffickers; the distinctions between forced labor and severe unfair labor practices; anti-trafficking measures in American foreign policy; and the politics of anti-trafficking initiatives.


May 3, 2006 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 2, 2006

Church Plans and the Consequences of Being Exempt from ERISA

Cross_clip_art_1As hopefully most of my employee benefit students discover early on in studying ERISA, there are certain types of employee benefit plans which are exempted from coverage under Section 4 of ERISA.  Chief among these are government plans and church plans.

Today, the New York Times examines what the consequences have been for some church pension plan participants not covered by ERISA requirements. 

The article tells of a number of stories in which employees for church-affiliated employers are losing a sizable amount of their previously promised  pensions when such employers face financial difficulties and sometimes bankruptcies.  Not covered by ERISA, they cannot count on federal pension insurance to help them out.

To add to the problem is the fact that many of these employees do not even know when their pension plans, previously covered under ERISA, elect to become church plans not covered by ERISA.   There is no notice given to these employees of the change because "opting out of the pension law means opting out of the federal rules for disclosing pension information to employees." 

James J. Keightley, a former general counsel to the Pension Benefit Guaranty Corporation is quoting in the article as saying that, "The lack of notice is typical. As a participant, you don't know what's happened to you, that the P.B.G.C. protection isn't there."

And how has Congress responded to these gaps in pension protection for these church employees?:

When the church exclusion has come up in Congress, lawmakers have expressed confidence that religious employers will handle their pension plans fairly, because, they said, the religious employers answer to a higher authority.

Not satisfied to leave their retirements to a higher authority, one group of employees in New Jersey has now sued their employer, seeking to have the court find the church exemption in ERISA unconstitutional. They appear to be having little success so far.

Although clearly not all church pension plans face these troubling issues, this is yet another aspect of ERISA where its provision appear to be causing substantial inadvertent harm to employees.  Hopefully, a judicial or legislative response to these unfortunate church plan situations will be forthcoming in the near future.


May 2, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Long on Divergent Interpretations of State and Federal Employment Discrimination Statutes

Long_1Alex Long (Oklahoma City) has posted on SSRN his forthcoming piece in the Georgia Law Review entitled: If the Train Should Jump the Track...: Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 Georgia L. Rev. 469 (2006).

From the abstract:

As interpretational issues surrounding federal employment discrimination statutes have become more complex and controversial, there have arisen more opportunities for parallel state anti-discrimination law to jump the track and take alternative courses. Not surprisingly, when dealing with their own parallel state statutes, a number of state appellate courts in recent years have chosen this course of action.

Even where state and federal employment discrimination have not yet taken different paths, the potential for such divergent interpretations of state and federal anti-discrimination law has increased in recent years to the point where we may enter an era not unlike that of the new judicial federalism of the 1970s with respect to employment discrimination law.

This Article attempts to provide a workable approach for dealing with situations where state courts confront issues of interpretation already addressed by the federal courts in the area of employment discrimination law.

I think for a lot of us (like me!) that have just assumed that parallel state anti-discrimination laws will necesarily mirror their federal counterparts, this article will be eye-opening and add importantly to the way we teach state anti-discrimination statutes in class.

You can download the whole article from SSRN here.


May 2, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

2nd Cir: Lack of Written Documentation Not Necessarily Sufficient for ERISA Fiduciary Violation

Gavel_6From this morning:

The 2nd Circuit US Court of Appeals vacated a district court’s judgment that a trustee failed to satisfy its fiduciary obligation to make sure an employee stock ownership plan (ESOP) did not pay more than the fair market value for company stock.

In its decision the appellate court said the district court focused too much on notes that were taken in a meeting discussing the terms of the stock purchase. The appellate court said the lack of more written documentation was not sufficient evidence that the trustees failed in their fiduciary duties under the Employee Retirement Income Security Act (ERISA).

The more technical question at stake was whether the "trustee’s ....investigation into the terms of the [company] ESOP transaction failed to qualify for ERISA’s good-faith exception to the prohibition against transactions by ESOPs with interested parties, thereby rendering the transaction prohibited."

The district court had found for the plaintiffs on this matter, and awarded $15.7 million to plaintiffs.  However, because the district court's decision was based on there being only one set of written notes showing that the company and trustee had investigated the purchase of the stock for the ESOP, the 2nd Circuit remanded noting that there were other meeting and phone calls, potentially relevant on the question of breach of fiduciary duty, even though not memorialized.

The case, Henry v. Champlain Enterprises, Inc., No. 05-0606 (2nd Cir. Apr. 26, 2006), can be found here (navigate to decisions this month on 2nd Circuit webpage to access the decision).


May 2, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

The Legal, Social, and Linguistic Meanings of "F-ck"

Fairman_2The hyphen proves Chris Fairman's point, which is that the word "Fuck" (also the title of the article) is simultaneously culturally taboo and extraordinarily powerful.

From the abstract:

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck.  The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education.  The legal implications from the use of fuck vary greatly with the context.  To fully understand the legal power of fuck, the nonlegal sources of its power are tapped.  Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo.  Fuck is a taboo word.  The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community.  Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights.  Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.

You can download the whole article here.


May 2, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)