June 3, 2006
Do all (Male) Labor Law Professors Look Somewhat Alike?
A deep thought for this Saturday:
Jolls Leaves Harvard for Yale
Christine Jolls; a teacher and scholar in employment law, law and economics, and behavioral law and economics; will join the Yale Law School faculty as of July 1, 2006.
Professor Jolls has been Professor of Law at Harvard since 2001, where she has taught employment law and contracts, and won the Dean’s teaching award in Spring of 2003. A Phi Beta Kappa graduate of Stanford University, where she majored in English and Quantitative Economics, and Harvard Law School (magna cum laude), where she won the John M. Olin Prize in Law and Economics, Professor Jolls earned a Ph.D. in economics from the Massachusetts Institute of Technology, and joined the Harvard faculty in 1994. She served as a law clerk for Judge Stephen F. Williams of the D.C. Circuit, and then for U.S. Supreme Court Justice Antonin Scalia, before returning to the Harvard faculty in 1997.
Top-5 International Employment & Labor Law SSRN Downloads
- Peer Zumbansen (photo above), The Parallel Worlds of Corporate Governance and Labor Law (34).
- Laurence R. Helfer, Understanding Change in International Organizations: Globalization and Innovation in the ILO (24).
- Alan Hyde, A Stag Hut Account and Defense of Transnational Labor Standards - A Preliminary Look at the Problem (18).
- Marie-Jeanne Moreau, Restructuring and the European Works Council (16).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- Bengt R. Holmstrom, Pay Without Performance and the Managerial Power Hypothesis: A Comment (102).
- J. Michael Orszag & Neha Sand, Pensions: Corporate Finance & Capital Markets (96).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Litigation (92).
- Katherine V.W. Stone, Legal Protections for Workers in Atypical Employment Relationships (71).
- Elizabeth Rose Schlitz, Motherhood and the Mission: What Catholic Law SChools Could Learn From Harvard About Women (46).
June 2, 2006
Turn About is Fair Play?: Employer Sues EEOC Over Investigation
Here's a situation you don't see every day in the world of employment discrimination law. Apparently, a business owner in Oklahoma was sued by three subordinate female employees for sexual harassment. Although the business owner denied the allegations, he ended up settling the case for $65,000. So far, not that unusual.
Now comes word that the business man is suing the EEOC in tort for more than $2.5 million, claiming the EEOC’s investigation
last year was inaccurate and unfair. He also claims that he suffered “severe emotional distress,” citing damage to his
health, his marriage and his business, as well as a “loss of faith” in
local representation of the federal government, according to his attorney.
Now, as much as it pains me to see someone lose faith in the local representation of the federal government, I'm pretty sure this claim is probably going nowhere, either dismissed for lack of subject matter jurisdiction or for failure to state a claim for which relief can be granted.
The court in Uberoi v. EEOC, 180 F. Supp. 2d 42 (D.D.C. 2001) probably explained best why principles of sovereign immunity are not going to permit any monetary recovery in a case like this:
Under the doctrine of sovereign immunity, the United States is immune from suit and may define the conditions under which it will permit actions against itself . . . . Waivers of sovereign immunity must be "unequivocally expressed" in "statutory text," . . . , and "[waivers] are not to be implied."
[C]ourts have held that "claims for money damage against the EEOC are barred by sovereign immunity," Clissuras v. EEOC, 1990 WL 96754, *4 (S.D.N.Y.1990); see also McCartin v. Norton, 674 F.2d 1317, 1321-22 (9th Cir.1982) . . . . Moreover, as discussed above, when a court is uncertain whether the government has waived sovereign immunity, the court must assume that immunity has not been waived.
So, in short, I would be surprised if this case makes it by an initial motion to dismiss. Any disagreement out there? In fact, is it so obvious that this case is a non-starter that the attorney should be sanctioned under Rule 11 for filing such a frivolous claim?
Snowbarger to Serve as Acting Executive Director of PBGC
U.S. Secretary of Labor Elaine L. Chao today announced that former U.S. Rep. Vincent K. Snowbarger will serve as acting executive director of the Pension Benefit Guaranty Corp. (PBGC) effective immediately. Snowbarger has served as PBGC's deputy executive director since November 2004 and will act as an interim replacement for Bradley D. Belt, who announced his departure on March 23 and completed his term on May 31. Additionally, Snowbarger served as the PBGC's assistant executive director for legislative affairs from June 2002 until November 2004.
June 1, 2006
THINK FAST! - What's Your Social Security Retirement Age?
When you're 65, you still probably won't qualify for full Social Security benefits. If you didn't know that, you're not alone. Most workers don't. Only 19 percent of workers over age 25 correctly identify when they can get a full monthly Social Security check, according to a recent survey by the Employee Benefit Research Institute and Mathew Greenwald & Co. The rest guess too early (49 percent), too late (8 percent), or admit they don't know (22 percent) or think they're not eligible (2 percent).
So what's the correct answer?:
[A]nyone born after 1937 (in other words, anyone who turns 69 or less this year) can't collect full benefits at 65. The required age for full benefits gradually increases for those born from 1938 through 1942. For example, someone born in 1940 becomes eligible at 65 years, 6 months. If you were born between 1943 and 1954, you can claim full benefits at 66. Then, for those born from 1955 through 1959, the full retirement age again increases in increments. As the rules currently stand, if you were born in 1960 or later, you are eligible for full Social Security benefits at age 67.
Of course, the important word here is full social security benefits, as anyone can start collecting reduced SS at age 62. On the flip side, if you wait until you are up to 70 years of age, you will be eligible for enhanced social security benefits.
I might be missing something here (and so please correct me if I am), but isn't easler for wealthier individuals to put off collecting social security until 70 and so doesn't this system pay more handsome benefits to exactly those individuals who are less likely to really need it?
Telman on the Business Judgment Rule, Disclosure and Executive Compensation
Jermey Telman (Valparaiso) has posted on SSRN his new piece entitled: The Business Judgment Rule, Disclosure and Executive Compensation.
From the abstract:
Despite its ubiquity in corporate law, the business judgment rule remains a doctrinal puzzle. Both courts and scholars offer different understandings of the Rule's role in litigation brought against corporate directors and different justifications for its deployment to insulate such directors from liability for breaches of fiduciary duties.
This Article rejects all existing justifications for the Rule and argues that the Rule is no longer needed to protect directors from liability, either because the justifications offered never made any sense or because directors are now protected by other, statutory means. Rather, the Rule is needed today to protect not directors but the corporations they serve from the irreparable harm corporations would suffer if forced to disclose prospective business plans in order to defend decisions taken by their boards.
This Article follows some recent scholarship in arguing that the Rule is best understood as an abstention doctrine and argues that courts should invoke the Rule and abstain from the review of the business judgment of corporate directors when the litigation that gives rise to such review would compel the corporation to disclose information relating to its prospective business plans. The Article then illustrates why the Rule should not apply in cases involving challenges to board decisions relating to executive compensation through a detailed discussion of the on-going litigation relating to the hiring and dismissal of the Walt Disney Company's former President, Michael Ovitz.
You can download this thought-provoking and potentially controversial article here.
OSHA Announces 2006 Site-Specific Targeting Plan
The Occupational Safety and Health Administration announced yesterday that its 2006 Site-Specific Targeting Plan will focus on approximately 4,250 high-hazard worksites in its primary list for unannounced comprehensive inspections over the coming year.
Over the past eight years, OSHA has used a site-specific targeting inspection program based on injury and illness data. This year's program (SST-06) stems from the agency's Data Initiative for 2005, which surveyed approximately 80,000 employers to attain their injury and illness numbers for 2004.
The following worksites will go on the primary inspection list:
- worksites with 12 or more injuries or illnesses resulting in days away from work, restricted work activity, or job transfer for every 100 full-time workers (the national average is 2.5);
- worksites with 9 or more “days away from work injury and illness” for every 100 full-time workers (the national average is 1.4);
- nursing homes and personal care facilities with above-average injuries or illnesses;
- 175 worksites reporting low injury and illness rates, in industries with relatively high injury and illness rates; and
- many worksites that did not respond to OSHA’s survey.
May 31, 2006
The Light a Fire Under the NLRB Improvement Act
Chris Shays, a Republican congressman from Connecticut, has introduced a bill that would amend the National Labor Relations Act in order to mandate quicker determinations of labor law disputes by the National Labor Relations Board.
require the Board to: (1) certify an election result not later than 12 months after the representation petition was filed; and (2) issue its order in a ULP case not later than 6 months after the General Counsel issued his complaint (not later than 12 months for “novel” issues). These statutory deadlines may be extended only with the agreement of the parties.
As the Labor Law Blog notes, by requiring these quicker case disposition times, there would be a substantial improvement over the current rate at which cases are decided:
In FY 2005, the median for processing a ULP case from complaint to order was approximately 19 months. See Seventieth Annual Report of the NLRB at 171 (Table 23).
The median for representation cases awaiting Board decision as of September 30, 2005, was approximately 27 months from the date the petition was filed.
Of course, you cannot get blood out of a stone and you can legislate all the statuotry deadlines you want, but if the NLRB does not have the resources in order to process cases quicker, the only thing this bill may do is deprive the NLRB of jurisdiction to decide some cases (certainly an outcome some in Congress would be delighted to see).
Hutchinson on Infusing the Labor Union Dues Dispute with First Amendment Values
Harry Hutchinson (George Mason) has posted on SSRN his forthcoming article in the William & Mary Bill of Rights Journal, A Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment Values, 14 Wm & Mary Bill Rts. J. (forthcoming 2006).
From the abstract:
This article deploys public choice theory and postmodern identity claims to develop a far-reaching understanding of the union dues dispute, which suggests that the burden of proof on the existence of and/or the possibility of an enduring union community should be placed on proponents of this view. While the postmodern project can be seen as an unsettled approach that is driven by coherency issues, not the least, its insistence on offering the good without the true, it supplies modest benefits by revealing the conceivably infinite varieties of human preferences in contemporary America.
The absence of preference convergence, understood from the perspective of both public choice theory and postmodern identity construal, vitiates prevalent assertions that unions operate as a paradigm of voluntary cooperation characterized by solidarity. The conflict between putative solidarity and the actual presence of preference diversity might well be the genesis of this ongoing dispute.
I intend to show that union expenditures, such as organizing, that do not embrace an explicitly political purpose can nevertheless diminish the interest of workers in freedom of expression, freedom of association, and a variety of other interests that allow individual workers and subgroups of workers to define their own identities in what has become a pluralistic society. Lastly, I supply a number of proposals for clarifying judicial, NLRB, and scholarly analysis associated with the intensely fought debate over union dues.
You can download this provocative labor law article here.
Smith Barney Overtime Settlement
Citigroup's (C) Smith Barney brokerage unit has agreed to pay $98 million to settle claims on behalf of thousands of current and former brokers that they are owed overtime pay and other reimbursementsThe proposed settlement is the latest and largest by securities firms that claim brokers are exempt from state and federal overtime laws because they are salaried, administrative employees. Brokers' draw on commissions, a monthly loan most receive, qualify as a salary, they argued.
********************************************************************************The securities industry swallowed hard in making the argument that brokers are salaried employees because it likes to portray them as trusted financial advisors, not mere administrators, said Mark Thierman, a lawyer in Reno, Nevada. He is one of more than a dozen class-action labor lawyers who have brought the suits on behalf of brokers, primarily in California.
Their primary argument is that brokers are not salaried but receive incentive-based compensation, such as commissions, that are tied to sales. They also countered the brokerage firms' claims that the Fair Labor Standards Act exempt salespeople from overtime because the exemption applies only to store sales, not trades of securities.
It would be interesting to see what would happen if one of these cases made its way to trial. I don't think either side would have a slam dunk case under the salary basis test of the Fair Labor Standards Act (FLSA), and that might well explain why Smith Barney was so willing to settle.
Anyone else aware of any cases that discuss the exempt status of securities brokers? To the extent that these employees make fairly large salaries and carry out sophisticated job duties, is there not a policy argument that the FLSA was not meant to protect employees like these?
Two Courts Refuse to Enforce Arbitration Agreements
The Fifth Circuit has become the third federal circuit court (after the Sixth and Seventh) to refuse to enforce an employmnt arbiration agreement that Ryan's Family Steakhouse sought to impose on employees through the third-party for-profit arbitral service provider EDSI. In a decision released yesterday, the court said:
The Ryan's/EDSI contract does not contain any requirement that Ryan's submit to arbitration . . . . In fact, Ryan's ability to withdraw from its contract with EDSI after ten days' written notice suggests it retains the ability to avoid arbitration of any claim. The language in the employee/EDSI agreement that suggests that Ryan's would be bound to submit to the EDSI forum is, therefore, a misrepresentation. Because Ryan's has not yet cured this defect, EDSI canot guarantee that Ryan's will submit to arbitration, so its promise to supply a neutral arbitral forum to Ryan's employees is illusory, and the contract canot be enforced.
The case is Goins v. Ryan's Family Steakhouses, Inc., 2006 WL 1440687 (5th Cir. May 18, 2006) (Westlaw password required).
Separately, a U.S. District Court for the District of Massachusetts held that an employment arbiration agreemen containing a "no class actions" clause was unconscionable and therefore unenfoceable. That case is Skirchak v. Dynamics Research Corp., Inc., 2006 WL 1460266 (D. Mass. Apr. 6, 2006) (Westlaw password required).
May 30, 2006
Garcetti v. Ceballos Decided; Public Employee Free Speech Takes a Hit
Further Update: More interesting ruminations about the Ceballos decision by Kermit Roosevelt on Balkinization.
Update: Rather than reinvent the wheel on this one, here is some insightful commentary on Garcetti v. Ceballos by Jack Balkin over at Balkinization.
The United States Supreme Court today decided the public employee free speech case of Garcetti v. Ceballos, 547 U.S. x (U.S. May 30, 2006). You might recall that this case was scheduled for reargument in March after Justice Alito replaced Justice O'Connor on the court.
And apparently that substitution has made all the difference in this very cloe 5-4 decision, in which the court held that public employees are not speaking as citizens for First Amendment purposes when they engage in speech tied to their official duties. Justice Kennedy wrote the majority opinion, while Justices Stevens, Souter and Breyer all writing dissents.
Here is some early analysis from the AP:
The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct.
By a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner-workings. New Justice Samuel Alito cast the tie-breaking vote.
Justice Anthony M. Kennedy, writing for the court's majority, said the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job."
And Marty Lederman weighs in from the SCOTUSblog:
Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.
Stay tuned for more analysis on this very important case for the First Amendment speech rights of public employees.
University of Pennsylvania Journal of Labor and Employment Law
Volume 8, Number 3, Spring 2006
- Peggie R. Smith (left), Laboring for Child Care: A Consideration of New Approaches to Represent Low-Income Service Workers, p. 583.
- Nancy Modesitt (center), Wrongful Discharge: The Use of Federal Law as a Source of Public Policy, p. 623.
- Kye D. Pawlenko, Reevaluating Inter-Union Competition: A Proposal to Resurrect Rival Unionism, p. 651.
- Ronald Turner (right), Ideological Voting on the National Labor Relations Board, p. 707.
- Daniel E. Hartstein, Collateral Censorship and First Amendment Theory, p. 765.
Homer Simpson-Like Employee Behavior
Here's a story from The Pocono Record that should really instill confidence in all us about how our nuclear facilities are being guarded:
A security guard at the Three Mile Island nuclear power plant was so absorbed in playing a hand-held video game that he failed to see an inspector approach during a surprise inspection, the agency said.
The employee did not violate any rules as guards are allowed to engage in mind-stimulating activities, the state Department of Environmental Protection said.
But the alleged lapse - which follows five other reports of employee inattention in the past two years - is prompting officials to review current policies.
Brings to mind something Mr. Burns (Homer's boss of Simpson's fame and nemesis of Maggie Simpson) once said: "Oh, meltdown. It's one of those annoying buzzwords. We prefer to call it an unrequested fission surplus."
Hat Tip: Raw Story
"Bad Boys, Bad Boys, Watcha Gonna Do?": Labor Lawyers Behaving Badly
Here's an embarrassing-for-the-profession tale about two labor lawyers - one management-side, one union-side - going at it (though it appears mostly the management side lawyer doing most of the violence) during negotiations for a new contract between bakery workers and their company. Apparently, the scuffle involved of all things providing needed information for pension proposals.
The Labor Law Blog reports from an article in the Cleveland Plain Dealer:
"Negotiations on a contract for Schwebel's Bakery workers turned testy last week when a partner from the management firm of Duvin Cahn & Hutton allegedly attacked a labor attorney from behind, choking and punching him until he brought the lawyer to the floor." The employer's lawyer claims that the union's lawyer provoked him. The union has filed a ULP charge alleging that "Schwebel's representatives approved the assault by standing and watching the attack."
As the Labor Law Blog points out, it really doesn't matter whether the company's representatives approved the attack, since unfair labor practices can be brought against any agent of an employer who interferes with the exercise of union members' collective bargaining rights, and their lawyer is certainly an agent.
I hope the ALJ/NLRB throws the book at 'em. And as we all know, there are some truly terrifying remedies avaialble for ULPs under the NLRA. Perhaps, they'll hit the attacking management side lawyer with one of those cease and desist orders.
That will show him.
May 29, 2006
Another Transit Strike, Another Country
Update: Michael Fitzgibbon at Thoughts from a Management Lawyer explains in nice detail the applicable Canadian labour law that applies in a strike like this.
Why most in the United States had the day off for Memorial Day, Toronto did not have the day off and was dealing with a major transit strike.
However, as of about an hour ago, transit workers in Toronto have been ordered to return to work after the Ontario Labour Relations Board declared the walkout illegal and had issued a cease-and-desist order for the pickets.
All this brings back not-so-fond memories of the NYC transit strike of last December, though it is unclear from the CBC article the reason for the workers walking out in the first place.
Veteran Reemployment Notice Issues
A civilian employee called to military duty must provide two types of notice to her employer if she wishes to return to her military job: she must first notify her employer that she is leaving, and then later she must later notify her employer that she is returning. Heather E. DePremio discusses these notice issues in The War Within the War: Notice Issues for Veteran Reemployment, available on ssrn:
Three federal statutes provide reemployment rights to veterans called to duty who later seek to return to their original non-military jobs. The statutes require such a veteran to provide her non-military employer with two types of notice. First, the veteran must provide notice prior to leaving for military duty. Second, the veteran must provide notice when military duty is complete and the wishes to return to her original job.
Unfortunately, the applicable statutes and regulations provide little indication of what constitutes proper notice, other than that the notice must be “adequate” or “reasonable.” Not surprisingly, court decisions are inconsistent. The resulting indeterminacy disserves both employers and returning veterans. Employers cannot proactively implement reemployment policies, and instead must react to demands for reemployment on a case-by-case basis. Returning veterans may not know until they appear for work whether they still have a job.
This article examines in detail both the pre- and post-deployment notice obligations imposed by the federal statutes. It proposes that the federal statutes be amended to expressly enumerate the factors that courts will consider in evaluating notice. These factors should include the length of the veteran’s deployment, the veteran’s position within the company, and the (in)ability of the veteran to provide notice due to military commitments. Enumerating these factors in the statute will provide employers and returning veterans with better guidance regarding the adequacy of notice, and should result in more consistent case outcomes.
All three veteran reemployment right statutes were passed at times when the large numbers of veterans returning from major wars created unanticipated problems to which Congress was forced to react. There currently are more than 125,000 reservists on active duty, and another 2.6 million soldiers in the
U.S. military. Congress would serve these prospective veterans well by acting proactively to address the notice issue, so both these servicemembers and employers will know what to expect when the servicemembers return.
- Andrew S. Hartley (left), Making the Case for Mandatory Removal of Imprudent Investment Vehicles: Inside Information Can Make Employer Securities a Bad 401(k) Option, 5 Appalachian J. L. (2006).
- Joseph M. Pellicciotti (right), The Employee Polygraph Act of 1988: A Focus on the Act's Excemptions and Limitations, 51 Loyola L. Rev. 911 (2005).
- Ryan Patrick Dunn, Get a Real Job! The National Labor Relations Board Decides Graduate Student Workers at Private Universities Are Not "Employees" Under the National Labor Relations Act, 40 New Eng. L. Rev. 581 (2006).
- Megan Kelly, Making-Up Conditions of Employment: The Unequal Burdens Test As A Flawed Mode of Analysis in Jespersen v. Harrah's Operating Co., 36 Golden Gate U. L. Rev. 45 (2006).
- Joseph Mark Miller, Federal Preemption and Preclusion: Why the Federal Railroad Safety Act Should Not Preclude the Federal Employer's Liability Act, 51 Loyola L. Rev. 947 (2005).