Workplace Prof Blog

Top-5 Employment SSRN Downloads

1. Cynthia L. Estlund, Between Rights and Contract: Arbitration Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law (113).
2. Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (81).
3. Kirsten Anderson & Ian Malcolm Ramsay, From the Picket Line to the Boardroom: Union Shareholder Activsm (65).
4. Richard C. Reuben, Democracy and Disute Resolution: Systems Design and the New Workplace (62).
5. Minna J. Kotkin (photo above), Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (56).

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Top-5 Labor SSRN Downloads

1. Michael L. Wachter, Labor Unions: A Corporatist Institution in a Competitive World (118).
2. Kirsten Anderson & Ian Malcolm Ramsay, From the Picket Line to the Boardroom: Union Shareholder Activsm (65).
3. David J. Doorey, Neutrality Agreements: Bargaining Freedom of Association in the Shadow of the State (25).
4. Lisa B. Bingham (photo above), Cynthia J. Hallberlin, & Denise Walker, Dispute Resolution System Design and Justice in Mediation at the Workplace: Purpose Drives Practice (15).
5. Terry Carney, Welfare to Work: Or Work Discipline Revisited (14).

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Forman on Making America Work

Congratulations to Jon Forman (Oklahoma) who has just published his new book, Making America Work (Urban Institute Press, 2006).

Here's a description of the book:

Work. Hard work! And plenty of it. That is what has made the United States into the world’s foremost economic superpower. But while we Americans value and respect work, we are also concerned about economic justice. We like to see all workers earn a fair day’s pay for a fair day’s work. And we like having a safety net to catch those who cannot compete successfully in our labor markets. America works because of this balance between the desire to reward work and our concerns about economic justice. But according to Jon Forman, America could work even better.

In Making America Work, Forman explains how current government policies influence work and work behavior and makes the case for changing government tax, welfare, Social Security, pension, and labor market policies to encourage work and promote greater economic justice. It is a clear, provocative declaration of principles and a bold prescription for policies that restore and preserve the balance of work rewards and economic justice.

Congratulations, Jon!  Kudos for completing such a worthy project. I look forward to the good read.

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Top-5 International Employment & Labor Law SSRN Downloads

1. Matt Zwolinski, Sweatshops, Choice, and Exploitation (99).
2. Kirsten Anderson & Ian Malcolm Ramsay, From the Picket Line to the Board Room: Union Shareholder Activism (65).
3. Sanford M. Jacoby, Convergence by Design: The Case of CalPERS in Japan (32).
4. Monique Ebell (left) & Christian Haefke (right), Product Market Regulation and Endogenous Union Formation (12).

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Top-5 Benefits/Compensation//Pension SSRN Downloads

1. John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA (194).
2. Cary Coglianese & Michael L. Michael, After the Scandals: Changing Relationships in Corporate Governance (139).
3. David I. Walker (photo above), Some Observations on the Stock Options Backdating Scandal of 2006 (115).
4. Vidhi Chhaochharia & Yaniv Grinstein, CEO Compensation and Board Oversight (89).
5. Richard L. Kaplan, Means-Testing Medicare: Retiree Pain for Little Governmental Gain (64).

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David Palmer to be Apppointed to EEOC

President Bush has announced his intent to nominate David Palmer to be an EEOC Commissioner for the remainder of a five year term expiring July 1, 2011.   Mr. Palmer currently serves as Chief of the Employment Litigation Section of the Civil Rights Division at the Department of Justice.  Prior to this, he served as Acting Special Litigation Counsel in the Office of Special Counsel for Immigration Related Unfair Employment Practices at the Department of Justice.  Earlier in his career, he served as a Senior Trial Attorney in the Disability Rights Section of the Department of Justice.

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Ninth Circuit Affirms Dismissal of Employee's Discrimination Claims for Spoliating Evidence

The Ninth Circuit has affirmed the dismissal of an employee's discrimination claims because the employee deliberately destroyed evidence.  A week after the employee's discharge, the employer sent him a letter instructing him to return the employer-issued computer and warning that he should "ensure no data on the laptop is lost or corrupted so as to avoid any spoliation of evidence."  The employee nonetheless used a program to "wipe" files from the computer -- including pornography -- before returning the computer to the employer.  The court found that the employee's actions severely prejudiced the employer's case by compromising the employer's ability to prove the employee had been fired for a legitimate reason -- such as the receipt or distribution of pornography on company time using company property.  In addition to dismissing the employee's case, the court also imposed on the employee the $65,000 it had cost the employer to investigate and litigate the spoliation issue.

The case is Leon v. IDX Systems Corp., ___ F.3d ___, Nos. 04-35983, 05-35426 9/20/06).

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Silverman New EEOC Vice Chair

Leslie E. Silverman, a Member of the EEOC since 2002, has formally taken office as EEOC Vice Chair, the EEOC announced yesterday.  President George W. Bush designated Ms. Silverman as Vice Chair on September 8.

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ERISA/Benefits Books Out

ERISA Facts (by Frank J. Bitzer & Nicholas W. Ferrigno, Jr.) and Benefits Facts (by Frank J. Bitzer et al.) are both out.  Both are comprehensive-yet-readable manuals that will be indispensable for lawyers, accountants, human resources and beneifts professionals, tax advisors, and anyone else who works with benefits and benefit plans.

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Voluntary Reinstatement and Backpay Does Not Bar Title VII Relief

Thanks to Ross Runkel's Employment Law Memo for pointing out this interesting case about whether a Title VII plaintiff can still seek judicial relief after being voluntarily reinstated and given back pay.  Not surprisingly, of course the plaintiff can still seek Title VII relief even if given voluntary backpay and reinstatement by the employer.

Here's Ross' description:

The court framed the primary issue on appeal as "whether a Title VII plaintiff who is wrongly terminated should be foreclosed from pursuing her claims where her employer eventually reinstates her with back pay." The 7th Circuit held that the answer to this question is "no."

The court reasoned, "we decline to endorse a rule that would allow employers to escape liability by merely reinstating the aggrieved employee months after termination, whenever it becomes clear that the employee intends to pursue her claims in court." The court continued, "[s]uch a rule could create an unintended economic incentive for employers to reinstate an employee who files a discrimination suit as a means to avoid Title VII penalties whenever the costs of reinstating the employee are lower than the employer's exposure in [a] Title VII suit."

That being said, an unconditional offer of reinstatement by the employer can stop the back pay clock from running.

The case is Phelan v. Cook County, No. 04-3991 (7th Cir. 09/18/2006).

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2006-2007 Louis Jackson National Student Writing Competititon in Employment and Labor Law

Marty Malin (Chicago-Kent) writes to provide us with information about the 2006-2007 Louis Jackson National Student Writing Competition in Employment and Labor Law, cosponsored by Jackson Lewis and the Chicag-Kent College of Law Institute for Law and the Workplace.  One top honors award of $3,000 and two $1,000 awards will be presented to the top three entries. In addition to the cash awards, the top three entries will be published on the Institute for Law and the Workplace website.

Here are some of the details:

TOPIC - Judges will consider papers on any topic relating to the law governing the workplace, such as employment law, labor law, employee benefits, or employment discrimination.

REQUIREMENTS & ELIGIBILITY -  Entries must be the law student author's own work and must not be submitted for publication elsewhere. Authors must have completed or be currently taking course work in employment or labor law, and must be enrolled in an accredited law school during the Fall 2006 semester. Only the first two submissions per law school will be accepted as entries for consideration.

SUBMISSION - The deadline for submission is Tuesday, January 16, 2007.

For further details and submission guidelines, see the flyer for the competition here or email Marty Malin.

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Recently-Posted Scholarship

Several timely articles have been posted on SSRN in the last week.  Rather than reproducing their abstracts in individual posts, here are summaries:

• Joseph E. Slater (top left), The American Rule That Swallows the Exceptions.  The “American” rule of employment at-will cripples the effectiveness of the two most important exceptions to that doctrine, the National Labor Relations Act and Title VII.  Scholars often cite at-will as an area in which exceptions swallow the rule but ignore the opposite effect the rule has in undermining rights widely viewed as fundamental.  This article goes beyond the standard critiques of the NLRA and Title VII and uses two other areas of law [union organizing in the public sector to compare the NLRA; Batson challenges to compare Title VII) to make this case.  The article then balances the at-will rule against the exceptions it undermines.  From the inception of the rule, there have been many attempts to create exceptions to it. Today, numerous, small, and often unclear inroads have been made.  This makes the rule less useful to both sides, offering uncertainty to employers yet scant protection to employees.  At the same time, the cost of at-will is the lack of effective labor and anti-discrimination regimes. Scholars and policy-makers should understand this cost when debating labor law, antidiscrimination law, and the future of the at-will doctrine.
• Michael Selmi (top right), Privacy for the Working Class: Public Work and Private Lives.  Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer's domain at the specific workplace. This is, in part, because for most employees workplace privacy is not a central concern and the justifications for broad protections of workplace privacy are often quite weak. While conceding the workplace as the employer's domain, I also advocate creating a strict barrier to employer encroachments outside of the workplace so that employers would not be able to interfere with the off-work activity of their employees absent some compelling justification. This would include circumstances in which employers provide employees with computers or other gadgets that employees are permitted to use outside of the workplace.
• Elizabeth Chika Tippett (bottom left), The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes-Oxley Mean for Employment Law.  This article discusses punitive approaches to whistleblowing -- imposing liability on employees for failing to act in the face of wrongdoing.  There has been little in the way of in-depth analysis of the subject, as it has been almost universally dismissed as a terrible idea.  Punitive approaches to whistleblowing are no longer a matter of mere conjecture, however, since the Sarbanes-Oxley Act of 2002 imposes disclosure-related liabilities akin to compelled whistleblowing on attorneys, executives and audit committee members.  The article then argues that punitive approaches to whistleblowing offer a number of previously unrecognized benefits.  Sarbanes-Oxley is a good illustration of how whistleblower duties can be imposed on high-ranking employees, who are best able to bear the social penalties of whistleblowing.  Indeed, compelled whistleblowing may serve to reduce the stigma of whistleblowing over time and increase organizational responsiveness to voluntary whistleblowers.
• Amy Monahan (bottom center), Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform. Every state regulates the substance of health insurance contracts issued to its residents, requiring the coverage of certain treatments, services, and providers.  These state-mandated health benefit laws apply only to insured health plans, while self-insured plans (typically sponsored by a large employer) are exempt.  The disparate application of state mandated-benefit laws is criticized as contributing to an unjust and expensive system of health care in the United States.  As a result, state-mandated benefit laws are under attack and the subject of numerous federal reform efforts.  This article explores three possible approaches to mandated benefit reform: (1) exclusive state regulation of mandated benefits, (2) deregulation of mandated benefits, and (3) positive federal regulation of mandated benefits. The article concludes that there are compelling arguments against both exclusive state regulation and deregulation.  While federal regulation is far from perfect, it has significant advantages over the status quo and represents the best way forward for mandated benefit reform.  Current and proposed mandated-benefit reforms are analyzed in light of these conclusions.  The article exposes these reform efforts as coordinated movements toward deregulation, an option that, while respecting individual rights, will harm the sick while improving the position of the healthy.
• Michael L. DeMichele & Richard A. Bales (bottom right), Unilateral-Modification Provisions in Employment Arbitration Agreements.  Unilateral-modification clauses give one party the unfettered right to amend or reject the underlying contract, often with neither notice to nor consent from the other party. State and federal courts are divided on the issue of whether employment arbitration agreements subject to such clauses are enforceable (and the courts holding the arbitration agreements are unenforceable are divided on which of several contract law doctrines apply).  This article argues that under existing contract law doctrines, employment arbitration agreements subject to unrestricted unilateral-modification provisions should not be enforceable.  However, courts should permit employers to retain the ability to unilaterally modify arbitration agreements so long as the agreements provide employees with (1) adequate notice of changes, (2) sufficient consideration for the promise to arbitrate, and (3) conscionable arbitration terms.  Courts can overlay this three-step framework onto existing contract doctrines to fairly and consistently analyze the enforceability of unilateral-modification clauses in employment arbitration agreements.

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Hardgrave on Garcetti v. Ceballos and the Future of Public Employee Speech

Joseph Hardgrave (Nova Southeastern Student) has posted on the ExpressO Preprint Series his work entitled: If You Work for the Government, Then Shut Your Mouth: Garcetti v. Ceballos and the Future of Public Employee Speech.

From the introduction:

If you work for the government beware. You may not be a citizen, but merely dispensable
property of the state, if you say anything that could be termed part of your “official duties.” The Supreme Court’s recent five to four decision in Garcetti v. Ceballos holds, “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 means that dedicated government employees who would otherwise voice concerns over
inefficiency and corruption must make a difficult decision. Speak up and try to improve the government they have dedicated themselves to or keep their mouths’ shut for fear of being fired by supervisors who don’t want to hear it? The ultimate irony comes from the basis of the majority’s reasoning in Garcetti: promote governmental efficiency by giving supervisors latitude to control their employees, when the effect of this decision will be the chilling of employees willing to expose inefficiency internally, because it would be safer to expose the grievance off the clock by holding a press conference on the office lawn.

You can read the rest of his take on this important and developing area of public employee free speech law here.

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Northwest Airlines / Flight Attendants Decision

The decision enjoining the flight attendants from striking Northwest Airlines is available at Northwest Airlines Corp. v. Association of Flight Attendants, ___ F.Supp.2d ___, No. 05-17930(ALG), 06-1679(ALG), (9/14/06) (Westlaw password required).

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Dannin & Singh on Collective Bargaining: Theory, Data, and a Plan for Future Research

Ellen Dannin (Penn State/Dickinson) and Gangaram Singh (San Diego State (Management)) have posted on SSRN their article: Collective Bargaining: Theory, Data, and a Plan for Future Research.

Here's the abstract:

Many factors that appear to affect collective bargaining have received no attention from researchers. This article identifies a number of these factors and explains how they may be affecting collective bargaining. In addition, it describes the methodologies that would be appropriate for researching specific issues.

The areas of research identified are appropriate for either dissertation topics or faculty research across a wide range of social science disciplines. Taken together they comprise a comprehensive social science research agenda that can be used to understand how collective bargaining is faring today. An additional use for the research would be as part of the litigation strategy advanced in Ellen Dannin, Taking Back the Workers' Law: How to Fight the Assault on Labor Rights (Cornell University Press 2006).

Sounds like a wonderful blueprint for gathering new information about the American collective bargaing process and this resulting new research should contribute greatly to improving labor relations throughout the country.

You can download the piece here.

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Limas on Employment Issues in Federal Indian Law

Vicki Limas (Tulsa) was a contributing author to the 2005 edition of Cohen’s Handbook of Federal Indian Law, which came out in Spring 2006. 

This publication is considered the “bible” of federal Indian law.  The sections Vicki wrote were on employment issues, application of general federal statutes to Indian tribes and the Indian Arts and Crafts Act.

Congratulations Vicki!

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Oppenheimer Developing Comparative Law Summer Program in Paris

David Oppenheimer (Golden Gate) sends word that he has moved from being Academic Dean to Research Dean.  In this new capacity, he will be developing a comparative law summer program in Paris.

He writes:

Our Paris program has provided a great opportunity for students and faculty interested in comparative employment discrimination law.  Our special guests have included Catharine MacKinnon speaking on comparative sexual harassment in 2005 and Charles Ogletree speaking on comparative racial justice in 2006.  Eva Paterson of the Equal Justice Society is scheduled to join us for a week in 2007.  Our classes in 2006 included Comparative Labor Law with Joe Grodin of Hastings and Pascal Lochiek of the University of Paris, and Comparative Equality Law (with a major emphasis on employment discrimination), which I co-teach with Sophie Robin-Olivier of the University of Paris.  Anyone planning to be in Paris next June is invited to drop by.  We host several mini-conferences and receptions and are always happy to have visitors from other law schools.

Congratulations, David, on your new position and much luck with developing this exciting new comparative law program!

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Options Scandal Hits Corporate Counsel; Henning (photo below) Quoted

Thanks to Lee Feldman for alerting me to Jill Nawrocki's article A Date to Remember in Corporate Counsel:

William Sorin became the first corporate legal chief to be criminally charged for suspicious option grants.  Sorin was the outside GC of Comverse Technology, Inc., for more than 20 years . . . .

"It seems like a pretty straightforward case," says Peter Henning, a former lawyer in the enforcement division of the Securities and Exchange Commission and in the criminal division of the U.S. Department of Justice.  "The government is going to look at what the general counsel did, because ultimately that's the GC's role — to keep track of the records," says Henning, currently a law professor at Wayne State University.
. . .

Henning teaches, among other things, Professional Responsibility and White-Collar Crime.  He also is a member of the Law Professors Blawg Network over at White Collar Crime Prof Blog.

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2nd Circuit Dismisses ERISA Fiduciary Claim Because Not Brought in Representative Capacity

Thanks to Ross Runkel's Employment Law Memo for bringing this interesting 2nd Circuit case concerning ERISA fiduciary remedies and their intersection with class action requirements to my attention.

Rather than reinvent the wheel on this one, here is Ross' summary of the case, Coan v. Kaufman, 04-5173 (2nd Cir. Sept. 11, 2006):

Coan sued her employer's retirement plan, individually and on behalf of the plan, under the Employee Retirement Income Security Act (ERISA). The trial court granted summary judgment in favor of the plan. The 2nd Circuit affirmed.

Coan asserted a breach of fiduciary duty claim on behalf of the plan under ERISA Sections 502(a)(2) and 409. The trial court dismissed this claim based in part on its conclusion that Coan "failed to do anything to demonstrate that her action was intended to benefit former plan participants other than Karen Coan[,]" and that Coan's claim was thus not actually brought in a representative capacity. The court agreed.

ERISA is silent as to the procedures that a plan participant must follow in order to bring suit on behalf of a benefit plan. Commenting on that silence, the court stated, "[i]t seems to us ... that Congress was content to leave the procedures necessary to protect absent parties, and to prevent redundant suits, to be worked out by parties and judges according to the circumstances on a case by case basis." The court opined, "[w]e think it neither necessary nor helpful to delineate minimum procedural safeguards that section 502(a)(2) requires in all cases. But, in our view, although plan participants need not always comply with [FedRCivP] Rule 23 to act as a representative of other plan participants or beneficiaries, those who do will likely be proceeding in a 'representative capacity' properly for purposes of section 502(a)(2)." The court concluded however, that "[u]ltimately ... the requirement is only that the plaintiff take adequate steps under the circumstances properly to act in a 'representative capacity on behalf of the plan.'"

A very interesting case, which appears to be rightly decided. 

But it leaves open the question of whether ERISA should be amended to require that a class action device be utilized for 502(a)(2) claims given that individuals suing the Plan under this section are doing so in a representative capacity.

Such a bright line might not only prevent prejudice to absent parties and redundant suits, but also would avoid the administrative expense and delay and unpredictability that would inevitably flow from case-by-case determinations.

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Bogan and Fu on Conflicted ERISA Plan Administrator Claim Denials

Donald Bogan (Oklahoma) and Benjamin Fu (student) have published in the Oklahoma Law Review: ERISA:  no further inquiry into conflicted plan administrator claim denials,  58 Okla. L. Rev. 637-684 (2005).

From the preface of the article:

Part II below provides background analysis of the ERISA standard of review controversy. This Part illustrates the continuing failure of the circuit courts to produce a consistent and just claims process in employee benefit cases where courts defer to self-interested plan administrators. The analysis begins with Firestone and its pronouncement that trust law should guide review of challenged benefit claim denials.

Next, Part II argues that the lower courts have struggled to tease a clear message from Firestone's "opaque" standard of review analysis. In particular, this Part explores the Tenth Circuit Court of Appeals's attempt in Fought to cure this wounded process, and we describe the unfortunate failure of the Tenth Circuit to discover a trust law-based antidote to Firestone.

Finally, Part III of this comment works within the parameters of Firestone to re-introduce the historic trust law-based solution to the problem of self- dealing fiduciaries: the no-further-inquiry rule. Here the article capitalizes on prolific trust law and ERISA scholar Professor John H. Langbein's recent examination of the no-further-inquiry rule. Professor Langbein's analysis is adapted to support a thesis that he did not reach, by applying his discussion of the no-further-inquiry rule to ERISA benefit cases. This Part describes how the summary adjudicative process, invented by contemporary ERISA courts under the guise of deferential review, mimics the archaic circumstances existing in courts of equity that spawned the no-further-inquiry rule.

Finally, Part IV concludes that ERISA courts should apply the no-further-inquiry rule to irrebuttably counter the mischief that courts have historically presumed attach to the actions of self-dealing fiduciaries. Ultimately, by application of the no-further-inquiry rule in ERISA benefit claims, courts can, and should, return federal Article III trial judges to their role as neutral, de novo referees in plan participant claims for benefits due under ERISA.

All ERISA people should give this article a read when they have the chance. It brings some common sense to this increasingly arcane area of ERISA law (OK, since all of ERISA is somewhat arcane, let's say "super-arcane area" of ERISA law).

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