Saturday, August 19, 2006
The next time someone you know (not you, of course) owes back taxes, they may get a visit not from the IRS, but from a private debt collector. The New York Times is reporting that the IRS is giving the accounts for 12,500 taxpayers that owe under $25,000 to three debt collection agencies. Nothing remarkable on the face of this, particularly given the administration's push for privatization. What's troubling is that, by the IRS Commissioner's own admission: "I freely admit" that the IRS will net approximately $1.1 billion from debt collectors over the next 10 years, but would net $87 billion if they used IRS employees to collect the debt. The explanation is apparently that Congress has not approved additional hiring, but the contracting doesn't need explicit authority due to special budget rules.
Aside from the obvious criticism that Congress deserves for this, the article illustrates that contracting out government work isn't always the panacea it's made out to be. Even ignoring the privacy issues involved with allowing private companies to collect debts, the cost differences here are staggering.
Chester Chuang has just posted on SSRN his article Assigning the Burden of Proof in Contractual Jury Waiver Challenges: How Valuable is Your Right to a Jury Trial? From the excerpt:
Employers have long used arbitration agreements to manage the risk associated with the resolution of employment disputes. But as dissatisfaction with arbitration increases, employers are fundamentally changing their approach to dispute resolution by incorporating jury waivers into their employment agreements as an alternative. These jury waivers are an attractive compromise between arbitration and jury trials because they offer the full procedural protections of the public judicial system at a considerably lower cost than a comparable jury trial. Some courts have invalidated such jury waivers, however, making the enforcement of such waivers uncertain. In order for pre-dispute jury waivers to be used effectively, this uncertainty must be addressed and resolved. In this Article, Chester Chuang surveys the law surrounding the use of pre-dispute jury waivers in employment agreements and traces the inconsistent judicial treatment of such waivers to a disagreement over which party bears the burden of proof when such waivers are challenged in court. Chuang argues that strong public policy considerations support placing the burden of proof on the party seeking to enforce the waiver. Chuang concludes that resolving the burden of proof question in this way will allow such waivers to be used to mitigate risk when appropriate.
- Ian Malcolm Ramsay, Andrew Barnes, Tanya Josev, Jarrod Lenne, Shelley D. Marshall, Richard Mitchell, & Cameron Rider, Employee Share Ownership Plans: Evaluating the Role of Tax and Other Factors Using Two Case Studies (39).
- Kirsten Anderson & Ian Malcolm Ramsay, From the Picket Line to the Board Room: Union Shareholder Activism (16).
- Zvi Bodie & Jonathan Treussard, Making Investment Choices as Simple as Possible But Not Simpler (133).
- Ethan Yale (left) & Gregg D. Polsky (right), Reforming the Taxation of Deferred Compensation (121).
- John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA (111).
- Cary Coglianese & Michael L. Michael, After the Scandals: Changing Relationships in Corporate Governance (89).
- Paul Fronstin, The Tax Treatment of Health Insurance and Employment-Based Health Benefits (80).
Friday, August 18, 2006
The EEOC announced today today the authorization of the most extensive one-time hiring of field staff in at least the last five years. The EEOC’s Office of General Counsel and Office of Field Programs have been given the go-ahead to hire 70 new staff for front-line field office positions.
Volume 21, Number 3, Winter/Spring 2006
- Michael Starr (top left) & Amy L. Strauss (top right Sex Stereotyping in Employment: Can the Center Hold?, p. 213.
- Joseph L. Paller, Jr. (middle row left), Gentlemen Do Not Read Each Other’s Mail: A Lawyer’s Duties Upon Receipt of Inadvertently Disclosed Confidential Information, p. 247.
- Allan G. King center row center) & Marlene S. Muraco center row right), Class Wide Determinations of Overtime Exemptions: The False Dichotomy Posed By Sav-On and a Suggested Solution, p. 257.
- David K. Haase (bottom left) & Darren M. Mungerson (bottom right), Agreements Between Employers Not To Hire Each Other’s Employees: When Are They Enforceable?, p. 277.
- Gregory Fortescue, 2005 Student Writing Competition Winner: Running Late With Nowhere to Go: Searching For Enforcement of Federal Unemployment Insurance Timeliness Regulations After Gonzaga University v. Doe., p. 307.
New Study Stresses Importance of Women in Senior Management Positions to Reduce Gender Gap in Income
Last Sunday's Washington Post had this interesting story on a large sociological study which found that there are less gender pay inequities throughtout a company when women hold senior positions:
American women earn substantially more money and narrow the long-standing gender gap in income if other women in their workplaces reach the ranks of senior management, according to a new national study presented here.
By contrast, the study found, increasing the number of women managers in junior positions makes no difference to the gender gap -- women on average continue to earn about 20 percent less than men.
The study answers for the first time what happens to workers when women break through the glass ceiling, and is based on 1.3 million American workers in nearly 30,000 jobs and 79 metropolitan areas.
It seems that Wal-Mart needs to invest a little bit more time selecting individuals to help it rebuild its image (from The New York Times):
The civil rights leader Andrew Young, who was hired by Wal-Mart to improve its public image, resigned from that post last night after telling an African-American newspaper that Jewish, Arab and Korean shop owners had “ripped off” urban com munities for years, “selling us stale bread, and bad meat and wilted vegetables.”
In the interview, published yesterday in The Los Angeles Sentinel, a weekly, Mr. Young said that Wal-Mart “should” displace mom-and-pop stores in urban neighborhoods.
“You see those are the people who have been overcharging us,” he said of the owners of the small stores, “and they sold out and moved to Florida. I think they’ve ripped off our communities enough. First it was Jews, then it was Koreans and now it’s Arabs.”
Personally, and FWIW, I'm happy to report that my family gave up selling stale bread and bad meat to minority communities years ago.
The Department of Labor's Employee Benefits Security Administration has created a web site with several resources pertaining to the "Pension Protection Act" President Bush just signed. The site contains links to, among other things, a technical explanation of the law, a summary of the law, a fact sheet pertaining to the law, and a press release and video clip announcing Bush's signature.
Thursday, August 17, 2006
A federal bankruptcy judge on Thursday denied a Northwest Airlines Corp. request to block a strike by its flight attendants that could begin as soon as Aug. 25.
Northwest immediately said it would appeal.
Judge Allan Gropper in New York wrote that he does not have the authority to block a strike as Northwest had requested.
Flight attendants have said they may begin random, unannounced strikes after 9:01 p.m. CDT Aug. 25 unless Northwest negotiates a new contract with them. Northwest imposed pay cuts and work rules on flight attendants last month after they voted down a negotiated settlement.
Gropper wrote that federal labor law generally bars federal courts from blocking strikes. And nothing in bankruptcy law overrides that, wrote Gropper, who is overseeing Northwest's reorganization under Chapter 11.
In the same ruling, Gropper denied the union's request to force Northwest to impose a different contract that was more favorable to workers.
You can read more about the conflict in cases like these between traditional labor law and bankruptcy law at the excellent post that Rick did on this topic recently.
A list of 101 money-saving ideas suggests they ask friends and family for hand-me-down clothes or ask a doctor for free samples of their prescription drugs. Idea No. 46 - "Don't be shy about pulling something you like out of the garbage." Also included is an advertisment for a real estate agent, in case laid-off workers need to sell their homes, and tips on how to keep a positive attitude after losing a job.
The above is from Zachary Franz of the Bismarck Tribune.
All's fair in love and labor strife, I suppose.
Reacting to increasing pressure from outside forces that have lambasted their anti-union, wage, and labor practices, Wal-Mart has decided that it may be best to try to convince its own workers that working for the company ain't so bad.
From the Washington Post yesterday:
The world's largest retailer yesterday sent letters to its 18,000 workers in Iowa, lambasting critics and political leaders for attacking the company during a nationwide bus tour sponsored by labor unions. The move marks the first time the company has solicited support from its own employees to help polish its image and is the first step in an aggressive new campaign dubbed the Voter Education Program.
"We would never suggest to you how to vote, but we have an obligation to tell you when politicians are saying something about your company that isn't true," wrote Tom Underwood, regional general manager.
"We want our associates to be aware of the misguided attacks that are occurring . . . by elected officials playing politics with our company," said Dan Fogleman, a Wal-Mart spokesman. "We think elected officials should spend their time on real solutions to real challenges."
Two quick questions: 1) Why is this "playing politics" and why shouldn't politicians care if a large number of employees are potentially being treated unfairly be their employers? Isn't this a "real challenge" for politicians to address? 2) In what ways are the union attacks against Wal-Mart "misguided" and "not true"? At least in the parts of the letter quoted by the Post, there is no direct justification by Wal-Mart of their wage and labor policies.
Wal-Mart's current tact does not strike me as an effort by an employer really interested in trying to reach out to its employees, but rather reminds me of a rather large animal trapped in a corner with its claws out.
Noah Zatz (UCLA) has posted on SSRN his recent piece in the Hastings Law Journal: Welfare to What?
Here's the abstract:
Work lies at the center of recent transformations in the American welfare state. Tough new work requirements "ended welfare as we knew it" while major expansions in "work supports" were designed to "make work pay." Despite this enormous weight placed on work, careful examination of precisely what counts as work is virtually absent from the welfare reform literature. This article examines how the Temporary Assistance for Needy Families (TANF) program, as implemented in the States, and the Earned Income Tax Credit (EITC) define work that satisfies their work requirements.
Studying what counts as work with greater specificity reveals two flaws in the common claim that TANF and the EITC reflect a new consensus about the role of work in anti-poverty policy. First, under TANF, "work" does not mean simply paid employment. Instead, States define work to include many unpaid activities but differ greatly as to which. In addition to education and training, some include rehabilitative medical and social services, community service, and even forms of unpaid family caregiving. Second, because the EITC, unlike TANF, does equate working with earning income, TANF and the EITC cannot be understood simply as two faces of one work-based transfer system. These disjunctures in how programs define work demand renewed evaluation of rationales for work requirements that sound compatible in theory but conflict in practice. Moreover, decisions about what to count as work inevitably interact with other dimensions of policy design, such as income eligibility rules and time limits.
This is an important piece at the intersection of welfare law and employment law. It asks questions not previously addressed that add important insights to this recently neglected area of public policy. The article is available for download here.
Mary Anne Moffa, the Executive Director of the The Peggy Browning Fund, writes to tell us about the 8th Annual National Law Students Workers' Rights Conference. The Conference is scheduled for Friday and Saturday, October 13 and 14, 2006, at the National Labor College in Silver Spring, MD.
Each year this conference brings together law students, experts, and practitioners from all over the nation to discuss workers' rights laws in a thought-provoking, stimulating, educational environment.
I have personally now sent 9 students to this conference over the last three years and every one of them has had a wonderful time and told me what a great educational experience it was for them.
You can find more information about the conference at The Peggy Browning Fund website, as well as learn about the legacy of former NLRB Board Member Peggy Browning and the summer fellowship program the Fund sponsors.
Our very own Rick Bales (N. Ky.-Chase) and Raphael Won Pil-Suh (Univ. of Cologne) has posted on SSRN their recent piece in the Oregon Review of International Law: German and European Employment Discrimination Policy.
From the abstract:
German employment discrimination law is in considerable flux. German law does not protect private-sector employees from discrimination on the basis of race, ethnic origin, religion, or sexual orientation, and it provides only limited protection from sexual harassment and discrimination on the basis of sex, disability, and age. The European Union, however, has issued two Anti-Discrimination Directives requiring E.U. Member States to offer protection from employment discrimination far greater than the protection currently afforded by German law.
Germany, however, has failed to implement the Anti-Discrimination Directives. E.U. directives normally do not apply directly to E.U. citizens. However, because the deadline for German implementation has passed, German judges must interpret German laws consistently with the Directives, thus giving the Directives indirect horizontal effect. The legal indeterminacy thus created is exacerbated by considerable political uncertainty emanating from the fall 2005 German Parliamentary elections. The clear losers amidst all the confusion are German workers, who have no effective protection from workplace discrimination. This article urges the new German Parliament to quickly rectify this unfortunate situation by passing a workplace Anti-Discrimination law complying with the E.U. Anti-Discrimination Directives.
This is an important, timely piece on an issue of international employment discrimination law that merits concern. You can download it here.
ADR World reports that:
National insurance company John Hancock is asking the U.S. Supreme Court to settle the question of whether arbitration awards can be vacated for reasons not explicitly spelled out in the Federal Arbitration Act, particularly for an arbitrator's manifest disregard of the law. In a July petition for a writ of certiorari in John Hancock Life Insurance Co. v. Patten, the company said the U.S. Supreme Court needs to establish the correct standard for analyzing a motion to vacate an award based on that ground, an area of the law it described as being in "complete disarray."
The petition was spurred by a ruling [by the Fourth Circuit in Patten v. Signator Insurance Agency et al.] that endorsed vacating an award where an arbitrator's decision was "not reasonable" based on the terms of a contract. The court overturned an award after determining that the arbitrator incorrectly dismissed the case by inferring a one-year statute of limitations from an expired contract, finding that the arbitrator acted in manifest disregard of the law by imposing his own "personal notions of right and wrong."
Wednesday, August 16, 2006
The U.S. Attorney General's Office today announced the launch of a new Web site designed to safeguard the civilian employment rights, voting rights and financial security of members of the Armed Services and veterans. The Web site, http://www.servicemembers.gov, is a partnership between the Justice Department and other federal agencies that oversee these protections.
Thanks to Carol Furnish for the heads-up.
Back in Feburary, we did a lengthy post on the standards of review for ERISA denial of benefit cases and specifically, focused on Abatie v. Alta Health & Life Ins. Co., in which a panel of the 9th Circuit Court of Appeals decided (in my words):
that a life insurance plan gave the necessary discretion to the plan administrator so that the abuse of discretion standard was appropriate. Moreover, the panel majority held that there was not sufficient evidence of a disabling conflict of interest, even though the insurance company served in the dual roles as administrator and payor, such that the standard review should be de novo. Finally, under the abuse of discretion standard, the court upheld the plan's denial of life insurance to the plaintiff.
As predicted in that previous post, the 9th Circuit en banc has now reversed the panel and remanded the case back to the district court to apply the appropriate standard.
Here is the en banc opinion in Abatie and here are some the important parts of that opinion as reported by Fuguerre at the Pensions and Benefits Weblog:
We conclude that our earlier opinion in Atwood v. Newmont Gold Co., 45 F.3rd 1317 (9th Cir. 1995), misinterpreted Firestone. We now establish a more comprehensive approach to ERISA cases in which a conflict of interest exists. As we will explain below, abuse of discretion review, tempered by skepticism commensurate with the plan administrator’s conflict of interest, applies here.
That approach wrongly aligns incentives. Instead of being encouraged affirmatively to demonstrate their impartiality and the reasonableness of their decisions, plan administrators are rewarded for suppressing dissent and denying claims with as little explanation as possible.
Although this new approach to conflict of interests in benefit denials cases is similar to other circuit's, Fuguerre aptly points out:
[T]he 9th consciously rejects the “sliding scale” basis, whereby a court applies less deference as is sufficient to offset the conflict, while recognizing that, “An egregious conflict may weigh more heavily (that is, may cause the court to find an abuse of discretion more readily) than a minor, technical conflict might.”
Instead, the 9th calls for a case-by-case “indefinite” abuse of discretion review that weighs conflict on the basis of the particular facts and circumstances. The influence of a potential conflict is to be taken into account, without first requiring the participant to show presence of a serious conflict. Although the burden is not necessarily passed back to the plan administrator, the court suggests that “a conflicted administrator, facing closer scrutiny, might find it advisable to bring forth afirmative evidence that any conflict did not influence its decisionmaking process….”
Thanks to Michael Fox at Jottings By An Employer's Lawyer for first bringing the case to my attention.
Here is the job description:
PENN STATE UNIVERSITY’S DICKINSON SCHOOL OF LAW invites applications from both established and entry-level scholars for several tenured and tenure-track faculty positions beginning in 2007 and 2008.
We wish to remind prospective applicants that, since the merger of The Dickinson School of Law and Penn State University, applications for admission to the law school have increased by more than 100 percent, student body diversity has more than tripled, and student body academic credentials have improved dramatically. Additionally, the University is investing $110 million dollars in new facilities for the law school (occupancy 2009) and allocating an additional several million dollars to the law school on a recurring annual basis to support new faculty appointments, the most recent of which have included several world renowned scholars commonly recognized as among the leaders of their respective fields.
The law school has immediate needs for scholars whose work focuses on corporate governance, securities, mergers and acquisitions, banking, commercial law, contracts, environmental law, employee benefits, intellectual property, state and local government, constitutional law, and federal courts. We welcome inquiries from prominent lateral candidates regardless of substantive area. All applicants should possess qualifications warranting appointment by Penn
State University: outstanding academic credentials, an international reputation or demonstrated capacity for serious and sustained scholarly work, and superior teaching ability.
Penn State is committed to affirmative action, equal opportunity and the diversity of its workforce and we welcome applications from persons of color, women, and other groups traditionally underrepresented in the legal profession. Contact: Professor Gary S. Gildin, Chair, Faculty Appointments Committee, Penn
State University, The Dickinson School of Law, 150 South College St., Carlisle, PA 17013 (or firstname.lastname@example.org).
From the abstract:
Considerable attention has been given to the Implicit Association Test (IAT), which finds that most people have an implicit and unconscious bias against members of traditionally disadvantaged groups. Implicit bias poses a special challenge for antidiscrimination law because it suggests the possibility that people are treating others differently even when they are unaware that they are doing so. Some aspects of current law operate, whether intentionally or not, as controls on implicit bias; it is possible to imagine other efforts in that vein. An underlying suggestion is that implicit bias might be controlled through a general strategy of "debiasing through law."
Implicit bias and the IAT have been all the rage in employment discrimination scholarship recently (see our past post on the topic here).
You can download this important new article on this issue here.