June 17, 2006
Top-5 International Employment & Labor Law SSRN Downloads
- Laurence R. Helfer, Understanding Change in International Organizations: Globalization and Innovation in the ILO (56).
- Peer Zumbansen (photo above), The Parallel Worlds of Corporate Governance and Labor Law (46).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- Bengt R. Holmstrom, Pay Without Performance and the Managerial Power Hypothesis: A Comment (108).
- Ruth Helman, Craig Copeland, & Jack VanDerhei, Will More of Us Be Working Forever? The 2006 Retirement Confidence Survey (93).
- Katherine V.W. Stone, Legal Protections for Workers in Atypical Employment Relationships (86).
- Jeremy Telman, The Business Judgment Rule, Disclosure, and Executive Compensation (67).
- Xavier Gabaix (left) & Augustin Landier (right), Why Has CEO Pay Increased So Much? (47).
"Being Enroned" Over Time By Mutual Fund Fees and Expenses
The criminal convictions in the Enron trial a few weeks ago brought back memories of 401(k) plan participants who were "Eroned" -- waking up one morning and discovering that your 401(k) plan account balance had suddenly shrank by 25%, 30%, or more virtually overnight. "Being Enroned" has resulted in a new form of ERISA class action litigation involving company stock offered as an investment option in participant directed individual account plans.
The next wave of ERISA class action litigation may involve 401(k) plan participants who similarly were "Eroned." Not overnight, but rather over time by mutual fund fees and expenses. The Employee Benefits Security Administration booklet, A Look at 401(k) Plan Fees for Employees, explains the phenomenon of being Enroned over time:
Assume that you are an employee with 35 years until retirement and a current 401(k) account balance of $25,000. If returns on investments in your account over the next 35 years averaage 7 percent and fees and expenses reduce your average returns by 0.5 percent, your account balance will grow to $227,000 at retirement, even if there are no further contributions to your account. If fees and expenses are 1.5 percent, however, your account balance will grow to only $163,000. The 1 percent difference in fees and expenses would reduce your account balance at retirement by 28 percent.
The Department of Labor first highlighted the problem of potentially excessive mutual fund fees and expenses in 401(k) plans in its 1998 report, Study of 401(k) Plan Fees and Expenses. In 2004, the ERISA Advisory Council reported that "the weakness of the present 404(c) regulatory framework is in the manner the fee information is made available," but recommended only minor regulatory changes in how fee and expense information is presented to plan participants.
Greatly simplified, Section 404(c) of ERISA is the statutory provision that protects the employer from fiduciary liability for investment losses that result from a plan participant's exercise of independent control over the investment of the participant's plan account. Section 404(c) does not, however, provide protection from potential fiduciary liability for the employer's selection of investment options for the plan. The Department of Labor's original 1998 report makes clear that fees and expenses are one factor (not the sole factor, but one factor) for consideration by the employer in selecting investment options for a participant-directed 404(c) plan.
How employers should be weighing mutual fund fees and expenses, and when such fees and expenses become excessive, is unclear. This uncertainty, coupled with the potential for large damages claims under ERISA Section 502(a)(2) (or "monetary restitution" claims under ERISA Section 502(a)(3)) makes the area ripe for future ERISA fiduciary class action litigation
Of Public School Teachers, Artistic Expression, and Topless Photos
CNN.com had a story yesterday about a public school art teacher in Austin, Texas, an excellent teacher by all accounts, fighting for her job after topless photos were discovered of her on the internet by students and colleagues (photo of the art teacher, Tamara Hoover, to the left from Celestadanger.com via the Austin American-Statesman).
What makes this case interesting is that Hoover is claiming that she was engaging in a form of artistic expression and thus should be protected by the First Amendment from being fired by the school district. In this regard, Hoover has stated:
I'm an artist and I'm going to participate in the arts . . . . If that's not something they want me to do then I want to be told that. I don't feel as if I was doing anything that was beyond expectations.
In fact, this is not as novel as a claim as it might seem. Courts have considered in a number of cases whether the Connick/Pickering framework for public employee free speech equally applies to the engaging in expressive activities or associations. The consensus seems to be that as long as the expressive activity or association has some speech elements, and is not just a pure association, the same Connick/Pickering test applies to the individual claiming protection for her expressive conduct.
What that means in this case is that even if the art teacher can claim she was expressing herself of a matter of public concern (which she might be able to do if she can claim that she was making a statement about artistic freedom or censorship), the Pickering balance between her First Amendment interest and the interests of the school district in maintaining a disruption-free educational environment would probably favor the school district given the amount of dispruption these photos are likely to cause in her high school community.
And even if you believe like me that there should be separate protection for public employees' right to decisional non-interference in private affairs after Lawrence under substantive due process, the amount of disruption her off-duty conduct has caused at her workplace will still probably cause her to lose the modified Pickering balancing test that I set out for these constitutional rights in my recent paper.
Robinson on Reconciling Artistic Freedom and Antidiscrimination Norms
Russell Robinson (UCLA) has posted on SSRN his forthcoming piece in the California Law Review entitled, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms.
Here's the absract:
This article examines the legality of race and sex classifications in casting announcements for actors, which are common in the film industry and have profound social consequences, yet have been entirely overlooked by legal scholars. Such announcements or "breakdowns" are used to channel people of color and women to low-paying, marginal roles. Title VII provides no categorical exception for this highly unusual practice - it makes no exception for race and contains only a narrow bona fide occupational qualification ("BFOQ") defense with respect to sex.
Divergent strands within Title VII and First Amendment law point in contradictory directions on the legality of discriminatory breakdowns. With respect to Title VII, the EEOC Guidelines opine that sex discrimination in casting may constitute a BFOQ for "authenticity" purposes, but this conclusion is at war with core Title VII principles. With respect to the First Amendment, the Supreme Court has held that generally applicable laws, such as Title VII, may be applied to expressive organizations without triggering heightened free speech scrutiny. Recent cases, however, created exceptions to antidiscrimination laws for the Boy Scouts and a parade group notwithstanding the aforementioned contrary precedent.
I conclude that the First Amendment requires treating casting decisions with a degree of deference that Title VII would not ordinarily afford employers. But our constitutional commitment to free speech does not exact a wholesale abandonment of antidiscrimination law in this context. It can accommodate the goal of reducing the uncritical use of race/sex classifications and reserving such classifications to a subset of casting decisions in which they would demonstrably advance the narrative. Alternatively, a court might ban race/sex classifications in all breakdowns and yet recognize that the ultimate casting decision is protected by the First Amendment.
This examination of casting discrimination also provides a reminder that society's tastes for certain gender conventions, such as makeup on women and the routine requirement that female actors appear in nude scenes, temper Title VII's capacious language and confine its impact. In short, there is a gap between Title VII's broad promise of equal employment opportunity and the reality of continuing differential treatment that has become naturalized and goes largely unchallenged.
You can download this interesting article at the intersection of Title VII and First Amendment law at this link.
June 16, 2006
Labor Panels at the Law and Society Conference
Taking my cue from Fred Tung at the Conglomerate Blog, I wanted to take this opportunity to highlight the labor and employment-oriented panels at the upcoming Law and Society Annual Meeting in Baltimore, Maryland from July 6 to July 9:
Thursday, July 6.
International and Comparative Labor Law
Chair: Harry W. Arthurs (York University); Alex Colvin (Penn State), Protecting Employee Rights in Liberal Market Economies: A Comparative Perspective on the United States, Canada, Australia, and the United Kingdom; Guy Mundiak (Tel-Aviv Univ.), Mapping the Terrains of Hard and Soft Law; Rolf Rogowski (Univ. of Warwick), The European Social Model and Soft Law
Constructing Employee Protections in Labor, Employment, and Benefits
Chair: Seth Harris (New York Law School); Rick Bales (Northern Ky.), Employment Arbitration; Guy Davidov (University of Haifa),The Principle of Proportionality in Israeli Labor and Employment Law: Crossing the Public/Private Divide; Melissa Hart (Colorado), The Wal-Mart Class: A Lesson in Culture and Geography; Paul M. Secunda (Mississippi), The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Privacy Rights
Leveraging Law: Working Time, Pay, and Benefits
Chair: Neil Buchanan (Rutgers-Newark); Susan Cancelosi (Wayne State), For Better or Worse? Considering the Position of Medicare Beneficiaries Post-Part D; Lonnie Golden (Penn State), More or Less Fair? FLSA Overtime Law and Workers' Preferences Regarding Comp Time versus Pay
Chair: Ruben Garcia (California Western); Harry Arthurs (York Univ.), The Mysterious Disappearance of Labor; Joan Fitzgerald (Northeastern), Labor Unions and Job Advancement in the Service Sector Economy; Robert Horwitz (UCSD), A New Alliance Between Religion and Labor?; Ana Ilha (Northeastern), When the Press (Un)Covers: The Undocumented at Work
Friday, July 7.
There will be labor history tours, organized by Frank Munger (New York Law School) from 8:15 to 12:00.
Roundtable--Social Europe in the Cauldron of Wider Regional Integration and Globalization
Participants: Chair: Marley Weiss (Maryland) and Rolf Rogowski (Warwick); Joel Handler (UCLA); Csilla Lehoczky (Central European Univ.); Andras Toth (Hungarian Institute of Political Science); David Trubek (Wisconsin)
Working at the Boundaries of Markets
Chair: Noah Zatz (UCLA); Discussant: Joan Williams (UC-Hastings); Eileen Boris (UC-Santa Barbara), Jennifer Klein (Yale), Neither Nurses, Nor Maids: Defining Home Care as Labor; Chad Goldberg (Wisconsin); Paupers or Citizens? Contesting the Status of Relief Workers During the New Deal; Kirk Stark (UCLA), Using State Welfare Programs to Increase EITC Payments: Ambiguities in the Scope of "Earned Income"; Noah Zatz (UCLA), Employment Without a Contract, Prison Laborers as Statutory Employees
Saturday, July 8.
Building New Foundations for Worker Rights I: 13th Amendment and International Law
Chair: Risa Lieberwitz (Cornell); James Gross (Cornell), The Consequences of Applying International Human Rights Principles to U.S. Labor Law and Labor Arbitration; Philip Harvey (Rutgers-Camden), Applying Human Rights Norm to Economic Analysis; Maria Ontiveros (San Francisco), Using the Thirteenth Amendment to Improve Workers Lives: Challenging Guest Worker Programs and Other Arrangements; Jim Pope (Rutgers-Newark), The Present-Day Case for the Rights to Organize and Strike Under the Thirteenth Amendment
Building New Foundations for Worker Rights II: Constructing Law
Chair: Laura Kessler (Utah); Ellen Dannin (Penn State), Constructing a Litigation Strategy to Take Back the Workers' Law; Fred Feinstein (Maryland), State Focused Labor Policy Strategies; Joe Slater (Toledo), The Rule that Swallows the Exception: How Employment At Will Undermines Labor and Anti-Discrimination Law; Rebecca Zeitlow (Toledo), Belonging and Social Citizenship: The New Deal and the Wagner Act
Roundtable--Building New Foundations for Worker Rights III: Brainstorming a Strategy to Rebuild Worker Rights
Organizer: Ellen Dannin; Chair: Catherine Fisk (Duke); Joe Berry (Illinois-Chicago); Mark Dudzic (Labor Party); Bill Fletcher (TransAfrica Forum)
Sunday, July 9.
Law and the Construction of Class: Class and the Construction of Law
Chair: Orly Lobel (San Diego); Ellen Dannin (Penn State), NRLA Values, Labor Values, American Values; Risa Lieberwtiz (Cornell), The Role of Law in Shaping Class Identities of Academic Employees in U.S. Universities; Jim Pope (Rutgers-Newark), Next-Wave Organizing and the Shift to a New Paradigm of Labor Law
Finally, kudos to Ellen Dannin for the significant amount of work she did in helping to organize all of these labor and employment panels at Law & Society. Hope to see many of you there!
Fronstin on The Impact of Hours and Work on Employment-Based Health Benefits
Paul Fronstin (Employee Benefit Research Institute) has posted on SSRN his paper entitled: The Impact of Hours and Work on Employment-Based Health Benefits.
Here's the abstract:
This paper examines changes in the distribution of workers by hours of work and the resulting impact on employment-based health benefits. The percentage of workers in the labor force employed either full time or part time tends to vary with the strength of the economy, and for various other reasons. In 2004, 17.5 percent of workers ages 18-64 were employed part time, up from 16.3 percent in 2000.
The movement of workers from full-time status to part-time status has significant implications for their health benefits: In 2004, 18.6 percent of workers employed part time were covered by employment-based health benefits through their own employer in 2004, compared with 61.5 percent of full-time workers. As a result, any shift of workers from full-time to part-time status will likely lead to fewer workers with employment-based health benefits unless they obtain them from another source, such as a working spouse.
You can download this important piece of empirical employee benefits scholarship at this link.
June 15, 2006
Supreme Court Decides Difficult Federal Health Insurance/Jurisdictional Issue
Ross Runkel has posted this summary of this complicated employment decision handed down today by the Supreme Court in Empire HealthChoice v. McVeigh, No. 05-200 (US. June 15, 2006), as part of a Supreme Court Extra on his Employment Law Memo newsletter (which everyone should sign up for as an essential way of keeping track of labor and employent cases throughout the country).
Here is Ross' to-the-point summary of Empire HealthChoice:
Under the Federal Employees Health Benefits Act, the US Office of Personnel Management (OPM) negotiates and regulates health benefit plans for federal employees. OPM contracts with Blue Cross to provide a nationwide health plan, and Empire administers the plan in New York. McVeigh's decedent was injured and received medical benefits under the plan, and later McVeigh recovered a settlement against third parties who allegedly caused the injuries.
Empire sued McVeigh in federal court seeking reimbursement, and asserting jurisdiction under 28 USC Section 1331 (actions arising under the laws of the United States).
The US Supreme Court held that federal courts do not have jurisdiction under Section 1331. Empire's claim was based on provisions in the contract between OPM and Blue Cross, and are governed by state law. Empire's claim is not a creature of federal law. The DISSENT would hold that the claim arises under federal law within the meaning of Section 1331 because it "arises under federal common law."
Wow, I didn't think it was possible for something to be more convoluted than ERISA. Guess I was wrong.
The Double Employment Discrimination Suit Whammy
The Chronicle of Higher Education is reporting in this blurb (full article requires password) that Northern Arizona University has been found liable in one reverse discrimination suit involving male professors receiving adverse wage treatment compared to minority and females:
A judge has decided that 40 white male professors who brought a discrimination suit against Northern Arizona University 11 years ago are entitled to $1.4-million in back pay and raises.
And now comes word that even a bigger reverse discrimination class action is on the horizon for Northern Arizona:
At the same time, one of those professors [in the first suit], George H. Rudebusch, together with a group of about 200 other white male professors and 80 female professors, filed a class-action reverse-discrimination lawsuit against the university's president at the time, Eugene M. Hughes.
Clearly, not a good year, at least as from an employment discrimination litigation standpoint, for Northern Arizona.
Apple iPod Produced under Sweat Shop Conditions?
Apple completely denies that it engages in such practices in China, but such violative practices are suggested by this report in Macworld UK:
Apple has issued a statement in response to the Mail on Sunday's claims regarding working conditions within the facilities of some of its Chinese iPod manufacturing partners.
"Apple is committed to ensuring that working conditions in our supply chain are safe, workers are treated with respect and dignity, and manufacturing processes are environmentally responsible," the statement explains.
The company also explains that it is "currently investigating the allegations regrding working conditions in the iPod manufacturing plant in China".
Apple stresses that: "It does not tolerate any violations of its supplier code of conduct, which is posted online".
Let's hope that the investigations lead to the findings of no violations or if there are violations, that Apple takes swift and decisive action to set an example for other international corporations.
Hat Tip: Raw Story
June 14, 2006
More Fathers Want to Spend More Time with Kids
As a father of two, I often bemoan the lack of time I have to spend with my pre-school age children. Apparently, I'm not alone in feeling this way (via an article on PlanSponsor.com):
According to a recent CareerBuilder.com survey, almost a third (28%) of working dads said work is taking a toll on their relationship with their children and almost half (44%) would accept a pay cut if they could spend more time with their children.
According to a news release on the survey, three-in-ten fathers said they spend less than two hours per day with their children, while one-in-ten spend less than one hour a day with the kids. Forty percent of working dads report they bring home work at least once a week, with one-in-five doing so at least three days a week.
More than half (58%) of fathers said that, because of work, they have had to miss one important activity in their children's lives in the past year, and almost a fifth (19%) said they have had to miss five or more, the release said.
On the other hand, I have had the distinct pleasure of being with my children for eight straight days without interruption while their mother was out of town and to be frank, I'm not sure, as much as I love to spend time with them, that I would be a very good stay-at-home dad.
The Employment Implications of Psychological Testing of NBA Players
Couple days back, Mike McCann had a thought-provoking post on the Sports Law Blog concerning whether professional sports team psychological testing of athletes as part of the recruitment process count as medical records due certain protections under the Americans with Disabilities Act (ADA).
You can read the whole post here, but here are some of the more interesting things that Mike had to say on the topic:
Revealing that a prospective draft pick failed or struggled with a psychological test is a rather disparaging nugget of information. Granted, this revelation was made two years after the fact, and since that time, [Al] Jefferson has played reasonably well for the Boston Celtics, who drafted him with the 15th pick in the 2004 NBA Draft.
Generally, employers are forbidden from disclosing to a third party any medical information requested of an applicant or voluntarily revealed by an applicant during the interview process. In fact, any medical information obtained by a prospective employer must be safeguarded from other applicant materials (i.e., kept in a different file, with heightened protection from accidental disclosure). This is part of the duty of confidentiality owed by employers to applicants. This duty can be waived if the applicant later assents to a disclosure, or if there is a court order directing a disclosure.
Presumably, Patterson[, the Portland Trailblazers executive] would argue that the process leading up to a sports draft should be considered qualitatively different from a normal interview process. This argument, however, would probably not work, as plaintiffs and defendants in lawsuits concerning pro sports drafts have usually treated them akin to collectively-bargained employment practices. Moreover, even if there was a distinction, it may not be salient to the circumstances in this instance.
A better argument for Patterson may be that a psychological examination for a prospective draft pick is not a medical examination.
Regardless, I do question the appropriateness of Patterson’s comment. Badmouthing someone in public is almost never a good idea, particularly when you question their mental state. Perhaps there is a pattern here with NBA teams and NBA players.
I agree with Mike's two larger points: (1) it is unlikely that the psychological testing of NBA players is likely to be considered a medical exam for ADA purposes; but even so (2) it is really bad practice to bad-mouth players you have once considered for your team.
Smith on Mental Illness, Employment Discrimination, and the ADA
Deirdre Smith (Maine) has posted on SSRN her forthcoming piece in the George Mason University Civil Rights Journal entitled, The Paradox of Personality: Mental Illness, Employment Discrimination, and the Americans with Disabilities Act.
Here's the abstract:
Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation.
This Article reviews the demarcation drawn by psychiatry and the courts between “disfavored personality” and “mental illness,” a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them “disabilities,” it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act (“the ADA”) to persons with “impaired” personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while improperly assigning responsibility to the people who must interact with them, notably employers.
Thus the invocation of “personality” in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of “mental illness” by employing approaches that ensure that “personality issues” are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people with mental illness in the workplace.
You can download this highly interesting and insightful article at this link.
June 13, 2006
ABA's Labor and Employment Law Newsletter
The Amercian Bar Association's Labor and Employment Law quarterly newsletter is available online at the Labor and Employment Law Section's website. Mark Risk, the newsletter's editor, reports that the newsletter is actively soliciting writing by law faculty, and that the Section is actively encouraging faculty participation in its programs, activities, and publications. Folks interested in writing or otherwise participating may email him directly.
"We hired you at a size C and now you're a [expletive] D!... You need to lose those boobs now!"
Ann Althouse, based on an Washington Post article, describes in much detail the various background facts that led Alyse to sue for $100 million dollars the producers of the show, as well as a number of other officials, including Sprotsy, all for sexual harassment and wrongful dismissal.
Of course, this is a serious case with all sorts of interesting aspects to consider, such as whether having smaller breasts is a bfoq for being a Broadway dancer and whether such adverse employment actions constitutes gender stereotype discrimination or whether this is just another non-discriminatory appearance code case like the one recently examined by the en banc Ninth Circuit in the Jespersen casino case.
It may be all this, but as Althouse points out, the Washington Post piece is filled with choice quotes, including:
"It's a virtue to have bigger breasts on Broadway, in my expert opinion," Klayman[, Alyse's well-known attorney] observes one balmy evening, over dinner with Alyse at a seaside restaurant called Bongos.
And Billy Joel himself, not a party to the suit, chiming in and protesting that:
Under no circumstances would I ever have anyone fired for having breasts that were too large.
Well, as I always say to my students when teaching employment discrimination law, you just can't make this stuff up and truth is stranger than fiction.
Indemnify Those Employees!
Here's a quirky story in which AutoZone employees confront and subdue a would be violent robber and for their trouble, are sued by the robber for assault and intentional infliction of emotional distress:
Police said Dana Buckman entered the AutoZone in Rochester, N.Y., last July, brandished a semi-automatic pistol and demanded cash.
That's when employees Eli Crespo and Jerry Vega beat him with a pipe and held Buckman at bay with his own gun.
[Buckman] pleaded guilty to first-degree robbery and was sentenced to 18 years in prison as a repeat violent felon.
Now, Buckman is suing the auto parts store and the two employees who beat him, claiming they committed assault and battery and intentionally inflicted emotional distress.
A story like this makes you think: doesn't anyone have respect fo the job that are armed robbers are trying to do?
You know, armed robbers have feelings too.
Hat Tip: Wasted Blog
Separate Counsel Appointed in Sidley Austin Age Discrimination Case
Here's a news piece this morning that suggests that Sidley Austin, fighting an age discrimination claim brought against it by the EEOC, might have a more difficult road to negotiate than first thought (from Law.com):
Sidley Austin Brown & Wood, now fighting a suit by the Equal Employment Opportunity Commission over the Chicago firm's alleged age discrimination against partners, said it is seeking separate counsel for a former firm administrator who described a mandatory partner retirement policy in a 1999 letter to the Social Security Administration.
The EEOC had moved last week to disqualify Sidley's defense counsel at Chicago's Grippo & Elden from also representing the letter's author, retired financial director William B. White. The agency claimed White's letter "flatly contradicted" Sidley's argument that it has never had a mandatory retirement policy and the firm's lawyers therefore had a strong interest in showing that White made a false statement.
In a response filed Friday in federal court in Chicago, Sidley said it disagreed with the EEOC about whether its lawyers were conflicted but was acting to appoint separate counsel to "avoid injecting extraneous issues into the litigation."
In the letter, White wrote that it was "the general policy of [Sidley Austin] not to permit a partner of the firm to continue as a partner commencing the first of the year following the year age 65 is reached."
The plot thickens for this case which may help put large law firms on notice that certain employment practices regarding older partners are no longer acceptable.
June 12, 2006
Another Recently-Posted Article
Although ERISA expressly permits employers to act as both an employer/plan sponsor and fiduciary of an ERISA employee benefit plan, the statute does not address itself to whether corporate counsel should represent an employer in both of these capacities. Conflicts of interest frequently arise in this context because corporate officers have a fiduciary duty to act in the best interests of their shareholders, while ERISA plan fiduciaries have a duty to act in the best interests of the plan participants and beneficiaries.
Although the Model Rules speak generically of how to identify the client in corporate situations, and also of how to resolve concurrent conflicts of interests between two clients, the Model Rules do not adequately address themselves to the common ERISA circumstance in which counsel represents simultaneosuly the company in its employer and plan fiduciary capacities. This article for the first time therefore proposes a modification to the current version of the Model Rules to address these recurring and inherent attorney conflict of interest situations under ERISA.
Although the new provision, denominated Rule 1.13(h), would not ban outright joint representation of dual role fiduciaries under ERISA, it would establish a strong presumption against such joint representations because of the inevitable conflicts of interest that develop between the interests of the employer in its corporate capacity and the fiduciary interests of the employer as ERISA plan fiduciary. The only way such joint representation of ERISA dual role fiduciaries should be considered ethically appropriate is if counsel can assure herself under the conflict of interest principles for current and former clients under Model Rules 1.7 and 1.9 that such recurring conflicts will not jeopardize the effectiveness of the legal representation for either the company or the plan.
New York Public Employee Workplace Violence Prevention Law Signed
Keeping with my theme of workplace violence issues today, Jordan Barab over at Confined Space has news about the new public employee workplace violence prevention law that the State of New York has passed.
Jordan writes this about the law on his blog:
In a major victory for New York public employees -- and for the organizing efforts of New York's public empoyee unions -- Governor George Pataki has signed a bill calling for managers of government worksites where at least 20 permanent full-time employees work to assess the sites' potential for violence.
Passage of the bill was the result of a major organizing campaign by the New York Public Employees Federation and the Civil Service Employees Association (ASFCME Local 1000).
Apparently, two further workplace violence bill remain under consideration in New York:
The Judi Scanlon bill (S.207 Maziarz/A.2570 Hoyt) directs that an Office of Mental Health employee who is required to enter the residence of a person with serious mental illness can request to be accompanied by another employee for safety reasons. The Workplace Injury Disclosure and Accountability bill, (S.6480 Robach/A.9692 John) amends the Civil Service Law to require that the state Department of Civil Service prepare an annual report about injury rates among state employees due to workplace injuries in state agencies and the costs incurred by the state as a result of those injuries.
We here in Mississippi have also had some recent initiatives in this area and have had workplace violence guidelines put into place by the State Attorney General.
As these types of guidelines and laws can only help the current workplace violence epidemic in this country, here's hoping that this is just the start of a larger national movement.
Sexual Harassment and Murder
In case anyone was under the misimpression that allegations of sexual harassment are anything other than deadly serious, consider this piece from Inside Higher Ed today:
State prosecutors in Virginia charged a professor at Tidewater Community College last week with plotting to murder a departmental colleague who had filed a sexual harassment complaint against him.
College officials suspended Jay A. Glosser on Friday, citing his arrest on “serious criminal charges involving another TCC faculty member.”
In court records and testimony at a bond hearing Friday, according to reports in The Virginian-Pilot and other local newspapers, prosecutors and the Virginia State Police laid out what appeared to be a well-documented scheme to kill Kimberly Perez, who also teaches information systems technology at Tidewater’s Norfolk campus. According to the college’s Web site, the two have collaborated on courses on how to use Blackboard,among other things.
As described by prosecutors, Glosser feared that the sexual harassment complaint could damage his career. “Because he was concerned for his job, he was going to have her killed,” The Virginian-Pilot quoted the prosecutor, David Laird, as saying in court on Friday.
I have to say that in the ten years or so that I have been keeping track of sexual harassment issues, this is a first as far as I know.
You can read more about this bizarre and disturbing tale here.