Saturday, May 13, 2006
- Christopher M. Fairman, Fuck (443).
- Richard A. Bales, Contract Formation Issues in Employment Arbitration (128).
- Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination (126).
- Richard A. Bales, The Employment Due Process Protocol at Ten: Twenty Unresolved Issues and a Focus on Conflicts of Interest (100).
- Eric Goldman (photo above), Co-Blogging Law (92).
- Richard A. Bales, The Employment Due Process Protocol at Ten: Twenty Unresolved Issues, and a Focus on Conflicts of Interest (100).
- Robert A. McCormick & Amy C. McCormick, The Myth of the Student-Athlete: The College Athlete As Employee (57).
- James J. Brudney, Isolated and Politicized: The NLRB's Uncertain Future (46).
- Katherine Van Wezel Stone (photo above), Legal Protections for Workers in Atypical Employment Relationships (41).
- Stephen A. Broome, An Unconscionable Application of the Unconscionability Doctrine: How the California Judiciary is Circumventing the Federal Arbitration Act (28).
A recent survey indicated that the rising costs all health insurance have caused more employees to forego signing up for their employer's health insurance plans.
The CoverTheUninsured Campaign, funded by the Robert Wood foundation, found that:
[T]he number of eligible employees who enrolled in their companies' health plan dropped from 85.3% in 1998 to 80.3% in 2003. In the same time, premiums for individuals increased from about $2,400 to $3,400.
Yet, another sign that health care costs in the country are spiralling out of control and that our current employer-sponsored health care system is broke.
The complete study and survey can be read here.
Although plans like Massachusetts' hold promise, there are ERISA preemption issues, and really what we need is a single payer type system where proper health care coverage does not depend on the whim of employers and private insurance companies.
Hat Tip: PlanSponsor.com
- Matthew Finkin, Life Away From Work (25).
- Rob Euwals, Daniel J. van Vuuren, & Ronald P. Wolthoff, Early Retirement Behaviour in the Netherlands: Evidence from a Policy Reform (22).
- John T. Addison, Claus Schnabel, & Joachim Wagner, The (Parlous) State of German Unions (20).
- Wolfgang Franz & Friedhelm Pfeiffer, Reasons for Wage Rigidity in Gemany (18).
- Marie-Jeanne Moreau, Restructuring and the European Works Council (13).
- J. Michael Orszag & Neha Sand, Pensions: Corporate Finance & Capital Markets (85).
- Jennifer G. Hill, Regulating Executive Remuneration: International Developments in the Post-Scandal Era (73).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Litigation (68).
- Elizabeth Rose Schiltz, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard About Women (42).
- Christian Grund & Dirk Sliwka, Performance Pay and Risk Aversion (41).
Sharona Hoffman has been named Associate Dean of Academic Affairs at Case Western Reserve University School of Law. Hoffman teaches Civil Procedure, Employment Dsicrimination, and a variety of seminars related to health care law. Prior to teaching and obtaining an LLM in Health Law, Professor Hoffman was a Senior Trial Attorney at the Equal Employment Opportunity Commission in Houston, an associate at O'Melveny & Myers in Los Angeles, and a judicial clerk for U.S. District Judge Douglas W. Hillman (Western District of Michigan).
Friday, May 12, 2006
Steve Greenhouse at the New York Times reported the other day on a significant win for the United Food and Commercial Workers (UFCW) at the Smithfield Packing Company in Tar Heel, North Carolina, the world's largest pork-processing facility.
From the story:
In a decision released on Monday, the United States Court of Appeals for the District of Columbia Circuit upheld a broad cease-and-desist order that the National Labor Relations Board issued against Smithfield in 2004 in response to complaints by the United Food and Commercial Workers. The union accused Smithfield of illegally skewing a 1997 election by intimidating and firing workers.
Concluding that Smithfield had engaged in "intense and widespread coercion," the appeals court upheld the labor board's ruling that one worker was improperly coerced when he was ordered to stamp hogs with a "Vote No" stamp.
The appeals court ordered Smithfield to reinstate four fired workers, one of whom was beaten by the plant's police the day of the election. The court concurred with the labor board's findings that Smithfield's managers were not credible when they insisted that the four workers were fired for reasons other than their support for the union.
Absolutely sickening. It is amazing to think anti-union tactics like these have not changed much over the last 100 years and much of the events dramatized in the 70's film Norma Rae with Sally Fields are accurate and still occuring today.
But until the NLRA is amended to the give the law some teeth, including criminal sanctions for egregious acts like those described above and a more expeditious route to judicial relief (this case started in 1997!), I don't expect that this will be the last time we'll see instances like this one. The incentives are just not there to deter employers from engaging in this type of activity.
The decision is UFCW, Local 204 v. NLRB, No. 05-1004 (D.C. Cir. May 5, 2006).
Hat Tip: Confined Space
Hillary Clinton is has just proposed a bill - along with Sens. Kennedy, D-Mass., Leahy, D-Vt., Harkin, D-Iowa, and Jeffords, I-Vt., that would tie the federal minimum wage to congressional salaries, so that the min. wage must go up the exact percentage of any congressional pay raise.
The link contains the full text of the bill, with some analysis.
I absolutely love this post from Joe Paduda at Managed Care Matters on how Dutch insurance companies are dealing with the massive amount of work about to be missed because of the Netherlands participation in this summer's World Cup.
In one of the more creative approaches to managing employee disability expense, an insurance company in Holland is issuing policies to employers who may suffer from significant increases in employee disability during the upcoming Soccer (sorry, Football) World Cup.
Insurance policies only pick up the payments after two weeks of absence, but the new policy, underwritted by SEZ, will cover absences the day of and the day after Dutch soccer matches.
And to think that we can't even get people in this country to care one lick about soccer.
Perhaps we could have our insurance companies come up with something similar for March Madness or just the entire NFL season.
The Congressional Research Service has a nice little summary of the various pay equity bills now pending before Congress. You can access it here.
Two current pieces of legislation include:
[T]he Fair Pay Act of 2005 (H.R. 1697/S. 840), mandating "equal pay for equivalent jobs" without regard to sex, race, or national origin. Another measure in the 109th Congress, the Equal Pay Improvement Report Act of 2005 (H.R. 157), directs the Equal Employment Opportunity Commission to prepare a report on how the Fair Labor Standards Act of 1938 has been used by public and private sector employees to foster or exacerbate pay inequity.
The Fifth Circuit yesterday held that employment claims brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA) are arbitrable under Gilmer just like other federal statutory claims. The case is Garrett v. Circuit City Stores, Inc., 2006 WL 1283743 (5th Cir. 2006) (Westlaw password required).
Thursday, May 11, 2006
So begins an article today at Law.com concerning how employers view and deal with employee personal internet surfing (including blogging) at work.
From the article, Firms See Waves of Problems From Employee Web Surfing:
[Kit] Murphy[, chief operating officer of Chester Willcox & Saxbe in Columbus, Ohio]. is referring to what experts now call "cyberslacking" -- employees whiling away their work hours wandering around the Web. Though the Internet has become an essential tool in many offices, it has also brought countless distractions directly to employees' desks. While some personal use of the Internet is generally acceptable to most employers, if no one's paying attention to the issue, the lost productivity can be costly.
Witness that last summer, America Online and Salary.com surveyed 10,044 workers, and nearly 45 percent cited personal Internet use as their number-one distraction at work. All told, the surveyors estimated that employers spend more than $750 billion each year on salaries for time that's frittered away, rather than for actual work.
And expect that just like in dealing with personal personal phone calls at work in years gone by, that it will be anything but easy for employers to rid themselves of this insidious problem.
Of course, the first obvious step would be to start adding cyberslacking policies to employee handbooks so that there is no misunderstanding about the employers' expectations when it comes to computer use at work.
Yet, the learning curve in this regard still appears pretty steep for most employers, especially when dealing with employee blogging issues.
Alex Long (Oklahoma City) has posted on SSRN his forthcoming piece in the Washington Law Review: (Whatever Happened To) The ADA Record of Disability Prong (?), 81 Wash. L. Rev. (forthcoming 2006).
Here's the article's abstract:
The ADA's record of disability prong is the prong least likely to be used by ADA plaintiffs in claiming protection under the Act. Between the years 2000 and 2004, ADA and Rehabilitation Act plaintiffs in federal court who alleged employment discrimination relied upon the record of disability prong less than one-third as often as the actual and perceived disability prongs in claiming disability status. Nor have ADA plaintiffs enjoyed any greater success when asserting coverage under the record of disability prong during that time period.
Congress, the Equal Opportunity Commission (EEOC), and the federal courts bear much of the blame for the record of disability prong's diminished stature. The requirement of some federal courts that a record of disability plaintiff must actually produce a tangible record documenting the existence of disability has limited the scope of the second prong. The Supreme Court's restrictive interpretations of the actual and perceived disability prongs have likewise limited the reach of the record of disability prong.
The record of disability prong was specifically intended to address those situations in which an individual has recovered from a once-substantially limiting impairment; yet, because of the Supreme Court's conclusion that an individual's use of mitigating measures must be taken into account when assessing the existence of disability, even this use of the record of disability prong is in doubt. However, in at least some instances, the limited role played by the record of disability prong can be attributed to the failure of plaintiffs' attorneys to fully understand and utilize the prong.
This Article argues that the only way that the record of disability prong can play a meaningful role in the elimination of discrimination against individuals with disabilities is if attorneys take a fresh look at this forgotten portion of the ADA.
You can download this intriguing article here.
Here is an interesting article from Inside Higher Ed about how adjuncts and part-time faculty at two community colleges in California have decided to make their own way to the bargaining table by trying to form their own unions, separate and apart from full-time faculty:
Adjuncts and full-time faculty members at two community colleges in southern California — Grossmont and Cuyamaca Colleges, near San Diego — are currently in battle mode over the [separate unions] question, and their contentions are highlighting an issue that is becoming of increasing concern to professors.
[David] Milroy[, an adjunct French instructor at Grossmont] has been rallying part-timers in the college district, and they could soon be granted the ability to vote to form a separate bargaining unit. He says that more than 600 adjuncts have now signed a petition in favor of doing so, which would be enough support to hold an election under state labor rules. The unit would be represented by the California Teachers Association, which has been supportive of the part-timers’ efforts thus far.
Not all are happy with the adjuncts and part time faculty branching out of their own:
“Objectively, any kinks in unity between adjuncts and full-timers in the same union are a perfect setup for administrators to be able to divide and conquer,” says Zoe Close, a full-time faculty member and chair of the humanities and religious studies departments at Grossmont. “The situation with part-timers amounts to exploitive labor. No full-time faculty member I know likes this situation.”
The tension between the different groups of faculty is aptly summed up in this passage from the article:
Many adjuncts say that their interests can’t be met by mixed unions because part-time issues tend to sit on the back burner, while full-timers make substantial progress. But some full-timers respond that they’re able to form a more effective overall bargaining unit for negotiations with administrators when the two groups work together, and that part-timers often don’t have the time, power or resources to wage negotiations that frequently take years.
To the extent that the part-time faculty at these community colleges are able to organize a separate bargaining unit based on a distinct community of interest, the success of these unions may go a long way in predicting whether separate adjunct/part-time faculty unions have a future in this country.
Dennis Nolan (South Carolina; NAA President-Elect) makes two good points about yesterday's post on the Sixth Circuit case limiting the cost-deterrent defense to cases involving federal claims. First, he points out that the formal holding of the case -- that there was no federal issue -- is unexceptional:
The FAA clearly envisions that parties can contract for arbitration, and must assume that they are willing to bear the costs of they do so. The only time such a contractual relationship becomes problematic is when the arbitration agreement might deter an assertion of federal statutory claims: thus Green Tree and subsequent lower-court decisions. Take away the statutory element, and there is, as the Sixth Circuit recognizes, no federal issue.
Second, he raises the issue of whether a state policy extending the cost-deterrent defense to common law claims would be preempted by the FAA. The argument for preemption is that the state policy would be a special rule of contract law applicable only to arbitration agreements -- that's precisely the sort of bar to arbitration that federal courts have consistently struck down. David Schwartz (Wisconsin) has pointed out that this is an unsettled issue. Clearly, Schwartz argues, a court may not invalidate an arbitration clause simply because the court believes in the superiority of a judicial forum, but what about provisions "that go beyond the choice of arbitration itself"? The unconscionability doctrine is a "general" contract doctrine applicable to all contracts (this is the argument against preemption), but particular applications of that general doctrine (such as a cost-deterrent defense, or a defense based upon the employer's unilateral power to select the pool of potential arbitrators) will affect only arbitration agreements and not other contracts.
For more on this issue, see David S. Schwartz, The Federal Arbitration Act and the Power of Congress over State Courts, 83 Or. L. Rev. 541 (2004) (Westlaw password required); Richard A. Bales, Contract Formation Issues in Employment Arbitration, 44 Brandeis L.J. 415 (2006) (available on ssrn).
Wednesday, May 10, 2006
PlanSponsor.com reporterd this ADA health plan discrimination case this morning in its NewsDash E-Newsletter:
The 11th US Circuit Court of Appeals has determined that a health plan administrator did not discriminate against a participant based on her disability when it amended its plan limitations to include the type of physical therapy she received.
Sonia Chaudhry, a dependent on her mother's health benefit plan administered by Neighborhood Health Partnership, Inc., suffered from a lung disease which required daily therapy to prevent mucus buildup in her lungs. The health plan limited coverage of physical, occupational, and speech therapy to 60 visits.
The HMO interpreted this to include Chaudhry's chest physiotherapy, and advised her that her benefits were exhausted after 60 visits. After a Florida agency determined that the physiotherapy was not included in the benefits limit, Neighborhood again began covering Chaudhrys therapy.
However, it amended its plan the following year to include the chest physiotherapy in the services that were limited to 60 visits - and again stopped covering Chaudhry's therapy.
The reason why the amendment to the plan was not considered discriminatory was because the "plaintiff [was] not treated differently than any other beneficiary who may need the same type of therapy."
This outcome appears consistent with similar health care discrimination cases which have been brought pursuant to Section 510 of ERISA, including McGann v. H & H Music Co., 946 F.2d 401 (5th Cir. 1991).
The Eleventh Circuit case of Chaudhry v. Neighborhood Health Partnership, Inc., No. 05-13146 (11th Cir. Apr. 26, 2006), can be accessed here.
Vanessa Ruggles (student at California Western?) has posted on the bepress legal repository her new paper entitled: The Ineffectiveness of Capped Damages in Cases of Employment Discrimination: Solutions Toward Deterrence.
From the abstract:
Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence.
Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions that would render punitive damages more effective as to large employers.
You can download this noteworhty article here.
This isn't strictly labor and employment news (although there are a lot of union and plaintiff attorneys in the mid-Atlantic region that are cheering), but Judge Luttig of the Fourth Circuit has just resigned to take a position as Senior Vice President and General Counsel for Boeing. Luttig, of course, was on the short-list for Bush's recent Supreme Court nominations. You can see his letter to the President here.
Perhaps Luttig's application for a first-year associate's job at Hogan & Hartson a few years ago, where he professed interest in a higher salary than what he was making as a judge, wasn't such a joke. If only John Roberts (yes, that John Roberts), to whom Luttig applied, hadn't turned him down, citing first-year associates' lack of life tenure, "battery of law clerks," and black robes. Maybe if the Boeing gig doesn't work out, Luttig could get a clerkship with the Chief Justice.
Hat Tip: Jason Walta
In an opinion released yesterday, the Sixth Circuit significantly limited the scope of the cost-deterrent defense to arbitration. The Sixth Circuit has previously ruled, in a pair of employment cases, that arbitration clauses were not enforceable if the party seeking to avoid arbitration could show that the costs of arbitration were so high that they would deter potential claimants from pursuing their claims. Yesterday’s decision, however, limits that defense to cases in which the underlying claim is based on federal law.
Buyers sued construction company for building a shoddy house. Construction company moved to compel arbitration. Buyers argued that arbitral costs were excessive. District court agreed and refused to compel arbitration. The Sixth Circuit reversed, stating that cases related to the cost-deterrent defense were
limited by their plain language to the question of whether an arbitration clause is enforceable where federal statutorily provided rights are affected. In this case, no federally protected interest is at stake. The [buyers], through diversity jurisdiction, seek to enforce contractual rights provided by state law. As a result, Morrison and Cooper [the prior cases recognzing a cost-deterrent defense] simply do not apply. Under the FAA, the [buyers] must look to contract defenses available in Kentucky rather than those found in federal common law.
The court did not then consider the obvious issue of whether Kentucky law would recognize a cost-deterrent defense. Judge Karen Moore, concurring, did consider this issue, but found no definitive answer in Kentucky law. She concurred in the judgment because she concluded that the buyers had made an inadequate showing of excessive costs to justify federal action in light of state law ambiguity.
Though this was not an employment case, it has obvious implications for employment law. The cost-deterrent defense which the Supremes hinted at in Green Tree and which has been recognized by several circuits, is limited (at least in the Sixth Circuit) to federal claims such as those brought under Title VII, the ADA, and the ADEA. The defense will not apply to purely state law claims such as contract or tort claims or claims brought under state antidiscrimination laws unless state law provides a parallel defense.
The case is Stutler v. T.K. Constructors Inc., ___ F.3d ___, 2006 WL 1223113 (6th Cir. May 9, 2006) (Westlaw password required).
Tuesday, May 9, 2006
Before teaching, I spent nearly four years as an attorney at the NLRB's Appellate Court Branch. The branch attempts to obtain enforcement of Board orders in the U.S. Courts of Appeal, and the bulk of the work usually seemed to consist of trying to convince judges with less-than-friendly views of unions to enforce an order that an employer had committed an unfair labor practice. This was certainly true for me, even though I arrived just before the 2000 election--in part because of delays in nominating and confirming a full complement of new Board members. Clearly enough time has passed, because times have changed. A quick review of cases decided over the last year involving union petitions seeking to overturn Board findings that an employer did not commit an unfair labor practice revealed six decisions (see examples here and here)--all of which went against the Board. Despite the small sample size, that loss-rate is eye-popping; the last reported fiscal year, 2004, showed a Board win-rate in the courts of appeal of a little under 70%.
These cases are yet another indication that the current Board has really shifted in favor of employers. However, they also restore a bit of my faith in the impartiality of judges (or at least mitigates my cynical view of judges' biases). Although the courts included the 2nd and 9th Circuits, the D.C. and 7th Circuits--which are rarely accused of being too pro-union--were represented as well. I'd like to see the 4th, 5th, 6th, and 11th Circuits join eventually, but it is heartening that at least some courts are willing to reverse Board findings in favor of employers.