January 14, 2006
50 OSHA Violations = Seven Finger Amputations
It is still amazing to me that in this day and age of supposed enlightened workplaces that there are still employers who apparently do not take worker safety and health very seriously.
The Jefferson City News Tribune (Missouri) reports in this story on a St. Louis metal products manufacturer which has allegedly ignored the safety of its workers to the tragic detriment of a good number of them:
Federal labor officials have proposed $788,000 in fines against a metal product manufacturer for alleged safety violations in an inspection that revealed a history of machine injuries, including seven finger amputations.
The Department of Labor's Occupational Safety and Health Administration cited the John J. Steuby Co. in St. Louis for more than 50 alleged safety and health violations on Friday.
The company makes machined metal products for automotive, appliance and other industries.
The alleged violations were seen during an inspection of the Steuby plant that began on July 13, following an employee complaint, OSHA said in a statement.
A phone call to the John J. Steuby Co. after business hours to seek comment went unanswered.
Inspectors also found the company had not taken the proper steps to prevent machinery from starting up during maintenance or repair.
And, it seems, that's what led to SEVEN amputated fingers. If these allegations prove true, I'm not sure a mere financial penalty is appropriate. I would love to hear what my OSHA friends out there think about this underwhelming (and frankly late in coming) fine.
I wrote earlier this week about an OSHA whistle blower who felt that the agency was still serving a worthwhile purpose and its best days were ahead. Stories like this make me doubt such prognostications.
Northwest Airlines Ground Workers to Vote on New Contract
The union representing about 14,000 ground workers at bankrupt Northwest Airlines said on Saturday that it would let members vote on a settlement proposal that could eliminate the need for the airline to void the workers' contract as it seeks labor savings.
The International Association of Machinists said it has found some common ground with the No. 4 U.S. airline, which requires $190.4 million in concessions from the workers.
"Our negotiators were able to convince Northwest to move off of some of their initial proposals," said IAM District 143 President Bobby DePace. "Many of our ideas are contained in the company's settlement proposal."
Northwest has secured temporary savings from its ground workers, pilots and flight attendants but says it needs $2.5 billion in permanent annual savings to emerge from bankruptcy.
The Northwest mechanics remain on strike and the Northwest pilots just agreed to a freeze of their defined benefit pension plan.
To be sure, a very different airline looks to be emerging from bankruptcy protection. Whether this will be a good or bad thing for the airlines' workers in the long term (for those who have a long term) remains to be seen.
Federal Labor and Employment Jobs
The Federal Government Jobs website is listing the following labor and employment jobs:
1. Manager, Participant And Employer Appeals Division (PBGC) (Washington D.C.)
2. Labor Attorney Advisor (Government Printing Office) (Washington D.C.)
3. General Attorney, Civil Rights (Department of Education, Office of Civil Rights) (Dallas, TX)
More hopefully to follow soon.
BR Judge to Rule on 1113 Petition by Northwest Airlines
Susan Carey reports in today's Wall Street Journal that U.S. Bankruptcy Judge Allan Gropper will rule Tuesday on the petition by Northwest Airlines to void its collective bargaining agreements with its pilots, flight attendants, customer-service agents, and ramp workers. Past petitions by other airlines have ended in last-minute settlements when the unions caved. Carey reports that settlement is unlikely this time. Northwest is "emboldened by flying through a mechanics strike last year and then outsourcing most of those jobs"; the unions are dug in and not about "to watch their jobs get shipped to other companies." The stakes are high, Carey says: a "lengthy walkout could spell the end of Northwest" because, unlike mechanics, pilots are not easily replaced. The full article is on page A2 of the Journal.
January 13, 2006
Insensitive Employer of the Week
From the AP:
A Houston firefighter took a promotion test 12 hours after giving birth because fire officials wouldn't bend the department's policy to allow a postponement.
Beda Kent gave birth to a healthy baby daughter at 9 p.m. Tuesday, slept for about 2 1/2 hours and then took the Houston Fire Department captain's exam at 9 a.m. Wednesday.
"It was uncomfortable," said Kent, a 12-year veteran of the department. "I had my Motrin -- thank God -- but that only lasts for so long."
Civil service regulations mandate that everybody take the test at the same time, District Chief Jack Williams said. A person who is given a temporary reprieve could gain an unfair advantage if they learn about the test from other test-takers, he said.
The rest of this heart-warming story can be read here.
Hat Tip: WastedBlog.com
Another Pension Freeze, This Time Northwest Pilots
Northwest Airlines pilots have approved the freezing of the NWA Pilots Defined Benefit Pension Plan, effective January 31, 2006. An interim 5% allocation under a defined contribution plan will replace the frozen benefit accruals, together with terms for a new long-term disability program and a new family member benefit program. [MEC Hotline (1/12/06)].
Contraception, New York Religious Employers, and (Yet Again) ERISA Preemption
The New York State Appellate Court has just ruled that religious private employers (not otherwise qualified for an exemption under the refusal clause) who do not believe in contraception must nevetheless abide by a New York state mandated benefit law (N.Y. Ins. Law §§ 3221, 4303, 4322 (Enacted 2002)) which requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception. The opinion in Catholic Charities of Diocese of Albany v Serio (NY App. Jan 12, 2006) can be found here.
There is an interesting debate brewing here about religious freedom and Free Exercise and Establishment clause jurisprudence, but putting my ERISA preemption hat on (yet again), the teaching of the Supreme Court's Metroplitan Life case is that employers who self-insure are preempted out of state insurance regulations such as New York's. So one may ask, if these employers do not want to be covered by this law, why don't they just self-insure?
And before you think that self-insurance is only for wealthier employers, mind you that most self-insured employers can buy stop-loss insurance with fairly low attachment points which permits them to insure their self-insurance plan once plan costs rise past a certain level. Such employers are still considered self-insured regardless of how low the attachment point goes where the stop-loss coverage kicks in (e.g., after $10,000).
Also mind you that I'm not a big fan of the Court's maddening ERISA preemption law, which seems to lead to bizarre and absurd results, but this appears to be where the current law leaves us.
Actress Whurer Sues ABC for Pregnancy Discrimination
The AP is reporting this morning:
Former "General Hospital" actress Kari Wuhrer sued ABC-TV on Thursday, contending her character was written out of the soap opera and she was fired for becoming pregnant.
Wuhrer, 38, filed the discrimination and wrongful termination suit in Los Angeles County Superior Court. She is alleging she suffered at least $3 million in damages to her earnings, career and through the cost of emotional distress.
Details of the suit were first reported by TMZ.com.
"We have not been served and we do not comment on pending litigation," ABC said in a statement.
Wuhrer played Reese Marshall on the show. According to her suit, she notified the writers and producers that she was pregnant in August so they would have time to write her condition into the script.
Instead, Wuhrer said she was fired two weeks later.
The rest of the story is available here.
January 12, 2006
Maryland Wal-Mart Bill Looks Like A Go, But What About ERISA Preemption?
Update: Maryland Attorney General disagrees with my preemption analysis (thanks to Matt Bodie at PrawfsBlawg for the tip).
This just in: House Overrides Governor's Veto on Maryland Wal-Mart Bill.
Maryland's Senate voted today to become the first state to enact a law forcing large employers -- namely Wal-Mart Stores Inc. -- to spend a certain amount of their payrolls in the state on health insurance for their workers.
The Senate voted 30-17 this afternoon to override Republican Gov. Bob Ehrlich's veto of the bill last year. The Maryland House, needing 85 votes for an override, is expected to vote this evening.
The bill proposed requiring employers with more than 10,000 workers in Maryland to pay a penalty to the state's health-insurance program if they fall short of paying the equivalent of 8% of their payroll in the state for health insurance for those employees.
Only four companies are large enough in Maryland to be covered by the bill; Of those, only Bentonville, Ark.-based Wal-Mart might fall short of the 8% threshold and therefore pay a penalty. Wal-Mart representatives told Maryland lawmakers last year that the company's contributions toward health insurance for Maryland workers equaled between 7% and 8% of its payroll in the state. Wal-Mart employs 16,988 workers at 53 stores and two warehouses in Maryland.
Wal-Mart spokesman Nate Hurst declined to comment on Wal-Mart's plans should the override effort succeed.
All of this, of couse, is very interesting to this employee benefits guy, but I wonder whether such a law would survive ERISA preemption?
Recall that Massachusetts and Illinois are considering legislation which would require employers to foot the bill for employee health care through a "pay-or-play system." My previous post discussing those laws is here.
My first impression conclusion here is probably the same conclusion I came to there: it all depends on whether Wal-Mart self-insures its health plans. If it does, the deemer clause should lead to ERISA preemption of the state law; if not (that is, it insures its health plans through another company), it should be saved from ERISA preemption as a law that regulates insurance under ERISA's Savings Clause.
Hat Tip: Peter Lattman
Study: 7% of American Workers "Three Sheets to the Wind" On The Job
This dandy blurb from Benefitslink.com this morning:
DRINK LINKS. New research suggests that about 7% of American workers drink during the workday (mostly at lunch), while 9% have nursed a hangover in the workplace, according to findings by the University at Buffalo's Research Institute on Addictions. The research, drawn from telephone interviews with 2,805 employed adults from January 2002 to June 2003, also suggested that young, single men are tied most often to workplace-related drinking - especially managers, salespeople, restaurant workers - - and those in the media.
Lobel on OSHA Regulation
Orly Lobel (San Diego) writes to say that she has a new piece out dealing with OSHA regulation. The title of the piece is: Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety, 57 Admin. L. Rev. 1071 (2005). The abstract on SSRN can be found here.
She would love to get readers' comments!
Comparative Labor Law Scholarship
All articles/essays/reviews below are in the just-published 26 Comparative Labor Law & Policy Journal.
Proceedings of the Toronto Conference:
- Jeffrey Sack, Introduction, page 159.
- W.J. Ford, Politics, The Constitution, and Australian Industrial Relations: Pursuing a Unified National System, page 161.
- Manfred Weiss, The Interface Between Constitution and Labor Law in Germany, page 181.
- Carole Cooper, Right to Fair Labor Practices, page 199.
The National Labor Relations Board in Comparative Context:
- James J. Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, page 221.
- Judge Stephen Adler, Further Reasons for the NLRB’s Inability to Guarantee American Workers the Freedom to Organize and Bargain Collectively: Comment on Autonomous and Politicized: The NLRB's Uncertain Future, page 261.
- Pamela A. Chapman, The Risks of Engagement: Labor Boards and Government in Canada, page 269.
- Bertram Zwanziger, Collective Labor Law in a Changing Environment: Aspects of the German Experience, page 303.
- Luis Aparicio Valdez(reviewd by), Labor in Latin American and European Constitutions (Ricardo Marcenaro Frers), page 323.
- Breen Creighton (reviewed by), Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (Lance Compa), page 327.
- Neville Rubin, ed., Codes of International Labour Law: Law, Practice and Jurisprudence, page 337.
January 11, 2006
The Under-Theorized Asterisk Footnote
Charles A. Sullivan (Seton Hall) has been selected as an "exemplary legal writer" by The Green Bag for his tongue-in-cheek examination of the use of the asterisk footnote in legal scholarship.
In his article The Under-Theorized Asterisk Footnote, Sullivan notes, “The asterisk footnote, although universally deployed in legal scholarship, has been equally universally ignored by the academy as a focus of scholarly interest.” In its humble origins, the asterisk footnote merely identified an article’s author in terms of his or her academic credentials and institutional affiliation. Today, however, such footnotes serve a “more robust, and perhaps more pretentious, function,” says Sullivan. Now they typically consist of long passages of homage to an eye-straining list of co-authors, researchers, readers, editors, grantors, supporters, and even conference and workshop participants. As evidence of this growth, Sullivan points out that his research found an article in the Harvard Law Review that named 51 people, 23 conferences or workshops (in at least three counties) [should that be countries? --rb] and 34 research assistants in its asterisk footnote. "Could it be that authors are using the asterisk to signal to law review editors that their pieces are really, really significant?” asks Sullivan.
Sullivan explains he decided to write on the asterisk footnote “for the same reason Hillary climbed Everest: it was there, and nobody else was tackling it.”
The Under-Theorized Asterisk Footnote originally was published by The Georgetown Law Journal (March 2005). As part of the Exemplary Legal Writing 2005 list, it now will be republished in The Green Bag Almanac and Reader 2006.
8th Circuit Arbitration Case on Scope of Transportation Worker Exemption from FAA
CA 8: Customer service representative for transportation company, which serves primarily as carrier of general commodities by truck, who was subject to arbitration agreement is not included in "transportation worker" exemption of Federal Arbitration Act (FAA), and thus, employer's motion to compel arbitration of his discriminatory discharge claim was wrongfully denied, even though he did have duty to "coordinate freight flow by expediting movement of shipment and contacting terminal and/or central dispatch," where, taking customer service representative's job duties as whole, his central task was to answer questions of and provide information to customers, not to supervise packages moving in interstate commerce (Lenz v. Yellow Transportation Inc.).
Comment: I was already skeptical about how the Supreme Court engaged in activist statutory interpretation in the Circuit City v. Adams case in 2001 in order to find that the FAA covers most individual employee arbitration agreements, but this decision seems to further eviscerate the transportation worker exemption left over from that decision. Rather than focusing on the individual job duties of individuals in an organization, I believe the court should focus on the general work performed by a company, i.e., in this case, trucking. Thus, all transportation company workers should be exempted from FAA coverage and all non-transportation company workers (including those who drive trucks for such companies) should be covered by the FAA.
Just my two cents.
The full decision in Lenz v. Yellow Transportation, Inc., No. 05-1641(8th Cir., Dec. 16, 2005) can be found here.
NYLS LEL Archives Lesbian/Gay Law Notes
Lesbian/Gay Law Notes, edited by Professor Art Leonard (left), is now archived at the website of the New York Law School Labor and Employment Law Program. Lesbian/Gay Law Notes is a monthly publication that reports on lesbian/gay, transgender, bisexual, and AIDS related legal developments. It tracks significant new legislation, reports on new court decisions, administrative rulings, and executive actions, and highlights new publications of interest. Here's the archive; here's the most recent issue. The NYLS LEL Program is directed by Professor Seth Harris (right).
Weyco Demands Healthy Workers
According to a news report in the Christian Science Monitor, Weyco, a medical benefits firm in Michigan, in the past year fired employees for refusing to quit smoking. Now, the company has taken an even more aggressive approach and is demanding that employees live healthier lifestyles.
Indeed, Weyco wants to make its employees go under mandated medical tests and physical examinations, and those employee who refuse "will see their monthly health
insurance premiums jump by $65. By next year, their annual insurance
bills will grow by more than $1,000 if they still fail to follow
instructions." It is not clear from the article whether those who comply with the testing who come back with "bad" results will still have their premiums raised (Wouldn't they have to be?).
I have previously posted about workplace privacy issues, obesity regulation, and other organizations firing workers for smoking, but this is the first time I posted on workers actually being penalized in the form of increased health insurance costs for refusal to take medical examinations.
Three questions to think about in this increasingly important area of the law:
1. Does the Weyco regime violate the ADA? (see my comments to an earlier post here on this subject of medical testing under the ADA). I think the take home point is that after one has started employment, such medical testing is permitted as long as it is job-related and consistent with business necessity. Is it here?
2. Even if the ADA is not violated, are forced medical tests too invasive given the purposes of the program? I mean aren't we treating unhealthy employees like drug offenders?
3. And finally, what about workers' privacy rights on and off the job? Is this just the employer saying: "We don't care what you do on your own time, but if what you do impacts our bottom line (through increased health insurance costs), we are going to make you pay for it"? Finally, is there too much stick here and not enough carrot in this approach?
Of course, all comments and thoughts are welcome.
Wouldn't You Love to Be a Professor Too?
Not so the job category of Professor. According to Yahoo! Finance:
Professor. This career offers stimulating work, lots of autonomy, status, and the comforting confines of academe. The job market has been tight, but that should start to improve–there was a wealth of hiring in the '60s, and most of those professors are approaching retirement age. Long term, the job market should remain good because we're in an era of degree proliferation: More students go on to college, and more adults return to school.
On the other hand, the article does recognize drawbacks to being a professor:
Colleges, more than most organizations, like to hire people part time or on a temporary basis. Over 30 percent of faculty hold part-time positions, and that percentage is increasing.
In any event, truth be told, I love being a professor and the lifestyle that it permits. At this point in my life, I wouldn't want to be doing anything else.
Hat Tip: Nate
- Ellen Dannin (left) & Gangaram Singh (middle), Creating a Law Reform Laboratory: Empirical Research and Labor Law Reform, 51 Wayne L. Rev. 1 (2005).
- Christine Neylon O’Brien (right), The NLRB Waffling on Weingarten Rights, 37 Loyola U. Chicago L.J. 111 (2005).
- Michael E. Nitardy, Note, Moran, Kentucky Ass’n of Health Plans, and Davila: The (R)evolution of ERISA Preemption, 18 St. Thomas L. Rev. 139 (2005).
- Brandon S. Long, Note, Protecting Employer Investment in Training: Noncompetes vs. Repayment Agreements, 54 Duke L.J. 1295 (2005).
- Hope N. Chau, Comment, Challenges and Solutions for Public Employers: Maintaining Work Environments Free of Harassment and Discrimination by Non-Employees, 93 Calif. L. Rev. 1455 (2005).
AFT Does Not Heart Member Kirsanow
In his writings and statements, Mr. Kirsanow has been openly hostile toward unions, taken stands against the minimum wage, affirmative action, prevailing wages, voting rights legislation and other basic protections for U.S. workers and citizens. In a speech in Detroit last year, Mr. Kirsanow, who serves on the U.S. Civil Rights Commission, even raised the idea of detention camps for Arab-Americans if the United States is ever again attacked by terrorists with the same ethnic background as the Sept. 11 highjackers.
This surely isn't the best choice for a person whose job is to ensure that workers' rights are protected. This isn't the best person to be counted on to see that representation elections take place in a timely manner and that a federal board designed to enforce labor laws remains fair and neutral.
President Bush's latest appointment does nothing to improve the board’s credibility or neutrality. It is a disgrace.
January 10, 2006
Covington Comments on Harassment Documentation
Robert Covington (left), Vanderbilt School of Law, has issued a public comment concerning the importance of companies adequately documenting their harassment investigations. The Tennessee Education Lottery Corp. apparently dismissed its chief administrative officer after an internal investigation indicated that he was the source of workplace harassment. The TELC officer, who has denied having harassed anyone, reportedly is considering a suit against TELC. TELC has refused to release information about its internal investigation, citing state-law attorney-client privilege.