Workplace Prof Blog

Top-5 Employment SSRN Downloads

1. Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (116).
2. Edward A. Zelinsky, Maryland's Wal-Mart Act:  Policy and Preemption (95).
3. Minna J. Kotkin (photo above), Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (83).
4. Richard C. Reuben, Democracy and Disute Resolution: Systems Design and the New Workplace (78).
5. Michael L. DeMichele & Richard A. Bales, Unilateral-Modification Provisions in Employment Arbitration Agreements (54).

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Top-5 Labor SSRN Downloads

1. Orly Lobel (photo above), The Paradox of Exdtra-Legal Activism: Critical Legal Consciousness and Transformative Politics (36).
2. Michael Fischl, Rethinking the Tripartite Division of American Work Law (26).
3. Michael J. Rawling, Australian Trade Unions as Shareholder Activists: The Rocky Path Towards Corporate Democracy (24).
4. David A. Matsa, Capital Structure as a Strategic Variable: Evidence from Collective Barganing (22).
5. Terry Carney, Welfare to Work: Or Work Discipline Revisited (21).

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Top-5 International Employment & Labor Law SSRN Downloads

1.  Richard M. Locke (photo above), Fei Qin, & Alberto Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (103).
2. Christian Haefke & Monique Ebell,  Product Market Regulation and Endogenous Union Formation (18).
3. Sanjay G. Reddy,  Pareto-Improving International Labor Standards Agreements: A Simple Model (11).

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Top-5 Benefits/Compensation//Pension SSRN Downloads

1. David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (327).
2. Colleen Medill, Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3) (235).
3. Alan D. Jagolinzer, Steven R. Matsunaga, & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (138).
4. Edward A. Zelinsky, Maryland's Wal-Mart Act:  Policy and Preemption (95).
5. James D. Cox (photo above), Fair Pay for Chief Executive Officers (82).

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Workplace Injuries Decline

According to a report issued yesterday by the Department of Labor's Bureau of Labor Statistics, nonfatal workplace injuries and illnesses declined in 2005—to 4.6 cases per 100, compared to 4.8 cases in 2004.  For the complete report, see Workplace Injuries and Illnesses in 2005.

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Update on Serio Contraception Case

Back on January 13th of this year, I wrote:

The New York State Appellate Court has just ruled that religious private employers (not otherwise qualified for an exemption under the refusal clause) who do not believe in contraception must nevetheless abide by a New York state mandated benefit law (N.Y. Ins. Law §§ 3221, 4303, 4322 (Enacted 2002)) which requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception. The opinion in Catholic Charities of Diocese of Albany v Serio (NY App. Jan 12, 2006) can be found here.

In this prior post, I had focused my attention on whether an ERISA preemption analysis would have been possible to help the religious employers. I have since been convinced that these plans would probably qualify as "church plans" under Section 4(b) of ERISA and therefore, would have been exempted from ERISA.

In any event, the New York Appeals Court (New York's highest appellate court) yesterday decided to affirm the intermediate appellate court based mainly on federal and state free exercise analysis.  You can access that decision here.  I don't think there is anything momentous on the federal side of things, so I wouldn't expect the case to be accept by the United States Supreme Court if cert is filed.

Thanks to Steven Sholk for sending me the opinion.

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What Would Homer Simpson Make?

I had to pass along this funny post this morning from the News Dash at PlanSponsor.com:

HOUSE "CALL."  Salary.com has matched as-seen-on-TV salaries to characters from some of the top TV shows - giving you a chance to see what your favorite on-screen personality would actually earn  if they were actually in the job they play on TV.  The list includes Dr. Gregory House (of "House"), Michael Scott, Regional Sales Manager ("The Office"), Betty Suarez, Executive Assistant ("Ugly Betty"), Homer Simpson (remember that he's a Nuclear Safety Inspector), and Jack Bauer, Special Agent ("24").   

So who do you think makes more: Homer Simpson or Michael from The Office?

Go here to find out!

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Law Firms Looking North for Associates

Brisk business and a dwindling talent pool are prompting law firms to fortify their efforts in recruiting from their neighbors to the north.  Many of the country's top firms are increasingly relying on law schools in Canada to provide them with the fresh talent they need in private equity, mergers and acquisitions, general corporate work and more.  The strategy appears to be a good fit between Canadian students who want a hand in the big deals-and the big salaries-that big U.S. law firms can provide, and hiring partners seeking associates who possess an international edge.

For more, see Leigh Jones, U.S. Firms Look to Canada for Talent, National Law Journal (10/20/06).  Thanks to Lee Feldman for the tip.

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Kim Posts Pair on SSRN

Pauline Kim has just posted an article and a chapter on SSRN:

• The Story of Luck v. Southern Pacific Transportation Co.: The Struggle to Protect Employee Privacy (chapter in Employment Law Stories).  In the mid-1980's, urinalysis drug testing of workers by government and private employers expanded rapidly, provoking a spate of lawsuits challenging their legality. The high profile cases involved constitutional challenges based on the Fourth Amendment's prohibition of unreasonable searches and seizures. For the typical private sector employee, however, constitutional arguments were unavailable, and a worker who wished to challenge mandatory workplace drug testing had to rely primarily on existing common law doctrines. The Story of Luck tells of one such worker and how one California court of appeal attempted to fashion a framework for analyzing employee privacy claims under the common law . . . .
• Collective and Individual Approaches to Protecting Employee Privacy: The Experience with Workplace Drug Testing.  This contribution to a symposium on workplace privacy asks what difference it makes to think about workers' rights under a collective as opposed to an individual rights model in a particular context: that of protecting employee privacy. More specifically, it undertakes an examination of the range of disputes between employers and employees over workplace drug testing in the late 1980's and the 1990's, focusing on the differences between cases brought with union involvement and those brought by individual workers acting alone. In doing so, it asks how collective forms of disputing about drug testing differed from individual approaches, and whether these differences affected the ability of workers to assert and protect their interests in personal privacy. What this examination suggests is that unions were far more likely than individual litigants to bring broad-based challenges intended to benefit the workforce as a whole; however, their ability and willingness to do so appeared to depend heavily on both the legal and the bargaining environment. Over time, union-initiated challenges increasingly focused on the application of drug testing policies to particular workers rather than class-wide challenges. Union involvement also influenced how these challenges were framed in legal terms. Disputes channeled through the collective bargaining system emphasized workers' interests in job security, while an individual rights approach more often framed the issue in dignitary terms, alleging claims such as invasion of privacy, defamation or intentional infliction of emotional distress. And although individual litigants occasionally obtained damage awards, they primarily brought after-the-fact challenges to the implementation of drug testing policies rather than seeking prospective, class-wide relief. This exploration suggests that individual privacy rights are not mere substitutes for collective mechanisms that aggregate worker interests. However, deciding how collective and individual rights should be coordinated raises difficult questions requiring further study, including more empirical work to better understand the tradeoffs involved.

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Can a Manager Be Sexually Harassed By Subordinates?

Ann Juliano says yes, in her recently-posted article Harassing Women With Power: The Case for Including Contra-power Harassment Within Title VII.  Here's an excerpt of her abstract:

Women who reach managerial positions are still subject to harassment. At times, this harassment comes from subordinates. The incidence of those employees with “lesser” power harassing those with more power presents a dilemma for traditional thinking on sexual harassment and for the developing judicial doctrine of sexual harassment. . . .  Traditionally, sexual harassment was considered an abuse of power in the workplace. . . .  Accepting contra-power harassment as an actionable claim requires courts to conceive of “power” in a different manner than a hierarchical/organizational power. I argue in this article that courts should conceive of power in a socio-cultural manner and accept contra-power harassment claims.   A contra-power harassment claim is limited to a hostile environment claim in that subordinates do not have the power to grant or deny tangible employment benefits. Two of the elements of a hostile environment claim require special consideration. First, a plaintiff must prove that the behavior at issue is severe or pervasive so as to affect a term, condition, or privilege of employment. An analysis of the case law shows that courts are downplaying the severity of behavior when the victim of the harassment is a supervisor. I argue that courts should not consider the organizational relationship of the target and the harasser when deciding if the workplace has been rendered hostile. In doing so, the courts are ignoring the importance of social-cultural power which allows lower status men to harass women at work. By exercising their societal power, men are able to harass their supervisors and to change the terms and conditions of women's employment.   However, the organizational relationship is important for determining employer liability. The standard to hold the employer liable for harassment by its employees turns on the organizational status of the harasser and the employer's response to the harassment. I argue that a negligence standard is the appropriate standard for contra-power harassment claims. In applying this standard, courts should not presume that women who have risen to the rank of supervisors are incapable of choosing to exercise their power simply by virtue of their status as women. However, courts should not require the supervisor-target to exercise discipline preemptively. In other cases of sexual harassment, a complaint of sexual harassment puts the employer on notice. There is no compelling reason to create a different rule here. Supervisors should be penalized for failing to exercise power only when the employer explicitly authorizes the exercise of such power. rb

Ballooning Overtime Claims

Thanks to Adam Savett for this link to Pain-and-a-Half, by John Goff, at CFO.com:

According to the Administrative Office of the U.S. Courts, there were more than 4,000 FLSA-based civil suits filed last year. That's a nearly 50 percent increase over the number of wage-and-hour cases filed in 2003 –  the year before the DoL revised the law.

Some of the trouble stems from a common misconception that if an employee is salaried, overtime pay goes out the window. Given that many employees ask to be salaried (perceiving it as a status-booster) and managers are often happy to comply (seeing it as a way to save money), a potential problem may balloon until a lawsuit comes along to pop it.

Some employers try to dance around the issue by giving salaried workers lofty titles that suggest plenty of managerial discretion, when in fact the employee has none. But "the first thing the DoL will do when evaluating whether an employee is properly classified as exempt or nonexempt is look at the employee's job description and the actual tasks the employee performed – not the job title."

Another common misstep is the creation of special accommodations for an employee, such as flexible work hours or trading comp time for extra hours worked.  Even though the arrangements often benefit the employee, as Bill Coleman, chief compensation officer at Salary.com, notes, "they don't override the Fair Labor Standards Act." [Moreover, supervisors often have an incentive to look the other way.]  Off-the-clock arrangements tend to boost productivity, which makes a supervisor look good.

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The Hewlett-Packard Scandal and Privacy in the Workplace

Alexander Wolfe over at the ACSBlog has a nice piece about how the recent Hewlett-Packard spying scandal implicated important workplace privacy concerns.  Here's a taste:

The uproar over the Hewlett-Packard spy scandal has brought to the forefront the issue of companies spying on their own employees. Executive employees of Hewlett-Packard employed private investigators to spy on members of HP’s board in an effort to determine where leaks pertaining to internal operations originated from, and they are now facing criminal charges in California. But to what extent may a company legally monitor the activities of its employees, both in and out of the work place?

The rest of the post nicely outlines the current state of the law in the area of private sector employee workplace privacy.   

What I am trying to figure out is why the mere fact that one employee works for a government employer means that that employee has more privacy rights (under the Fourth Amendment) than a similar worker in the private sector?

No, I know the technical answer is "state action."  Even an employment guy knows that.  My point is: does this distinction between employees based on state action make any rational sense?

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D'Souza = Racially Hostile Environment? Huh?

What is intimidating and harassing about this man here pictured?  Apparently, his ideas.

I have to say that I am with Walter Olson at Overlawyered on this recently-filed case concerning two former private school teachers in Washington State who filed a racially hostile environment claim based in part on the fact that Dinesh D'Souza (a conservative commentator on affirmative action issues) was invited to speak at the school.

To be clear, Title VII harassment provisions can cover employee speech that is part of an overall scheme to make an employee's workplace abusive and hostile based on that employee's protected characteristics such as race.  But saying that the mere fact that someone who you disagree with has been invited to engage in an open forum at your workplace is harassing? That's just plain ludicrous, and does illustrate where important civil liberties under the First Amendment can be needlessly infringed by inflated conceptions of the scope of civil rights law.

Most amazing thing about this case?  Because of these and other employees protests, D'Souza was actually disinvited from speaking at the school.  So according to these teachers' lawsuit, it was apparently not the presence of D'Souza at the school that was abusive and intimidating, but the mere invitation! 

Unbelievable.

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Seton Hall's First Annual Employment and Labor Law Scholars’ Forum

Thanks to Timothy Glynn (Seton Hall) at Concurring Opinions for giving us a brief recap of events at last week's First Annual Employment and Labor Law Scholars' Forum at Seton Hall Law School. It sounds like it was a wonderful event:

My sense (hopefully not over-influenced by optimism bias, one of the many topics discussed) is that the participants found it to be a great success. Part of this is attributable to the terrific and diverse working papers presented by Elizabeth Emens, Julie Chi-hye Suk, Noah Zatz, and Matthew Bodie. But I think the format and size also worked well. There were fourteen participants (including the authors) who collectively covered the waterfront of the labor and employment law fields. Each author presented for about fifteen minutes, with two commentators giving their thoughts for about ten minutes apiece. This set the stage for what was a terrific informal interchange for about an hour for each paper. Everyone learned a lot, in large part because the conversation began on such a high level, everybody had read the papers in advance, and the size of the group permitted all of us to participate in a meaningful way with each paper.

Timothy concludes his post by asking for ideas for sharing ideas in this type and other formats.

As one of the co-organizers of next week's First Annual Colloquium on Current Scholarship in Labor and Employment Law at Marquette (more later), I am a big fan of events like these that allow professors from across the country (and even the world) to share their thoughts with others who can provide important feedback.

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Accommodating the Religious Interests of Public Employees

Another update: Dale Carpenter has news that the transit authority has somewhat backed off its original position.  You can also find an interesting back and forth between Dale and Stephen Clark (Albany) in the comments.

Update:  Here are some thoughtful insights by Dale Carpenter at The Volokh Conspiracy.

Thanks to Nick Pladson, a student at the William Mitchell Law School, for pointing out this highly interesting article to me today in the Minneapolis Star-Tribune.  It concerns how the city transit authority accommodated the religious request of a city bus driver not to have to drive a bus with gay-themed ad on its side.

Here's a taste:

A city bus driver who complained about a gay-themed ad got official permission not to drive any bus that carries that ad, according to an internal memo confirmed Tuesday by Metro Transit.

Transit authorities call it a reasonable accommodation to the driver's religious beliefs.

Amalgamated Transit Unit Local 1005 officials at the bus company say it condones intolerance; besides, drivers never have been excused from other buses carrying ads they found objectionable -- from political candidates to pink bras.

This area of religious accommodation under Title VII is a tricky one.  It usually comes down to whether a religious belief can be accommodated without undue hardship.  And hardship is de minimis under Hardison. 

I guess the transit authority felt that it could make this accommodation and avoid a potential lawsuit, but I wonder if a lot of employees start making these requests whether you have more substantial disruptions with operations that could amount to an undue hardship.  Of course, there are very express religious organization exemptions in Title VII, but clearly the city bus service does not qualify.

Also, being a public employer, there are Free Exercise and Establishment Clause issues potentially, though if the city chose not to have accommodated, I don’t think there would have been a free exercise violation under the reasoning of Hialeah.  However, if this policy going forward is unevenly applied, there could be all sorts of constitutional claims, from equal protection to viewpoint discrimination.

Last, I wonder whether public employees have less rights than private employees when it comes to free exercise claims in the workplace.  The analogy here would be to the Connick/Pickering line of public employee free speech cases where public employees have fewer First Amendment rights than the average citizen because of public employer efficiency concerns.   

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Post-Doc Fellowship Program at UCLA Institute of Industrial Relations

Kathy Stone (UCLA) writes to tell us of an exciting opportunity for young scholars to do post-doctoral fellowships at the UCLA Institute of Industrial Relations.

Here is some of the information from the position announcement:

The UCLA Institute of Industrial Relations’ Postdoctoral Fellowship Program is designed to support a new generation of scholars engaged in research on issues of labor and employment. The program offers a unique opportunity for recent Ph.D.s to pursue research on labor and employment in an interdisciplinary setting. We will select two Postdoctoral Fellows for the 2007-08 academic year.

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Applicants must have earned a Ph.D. degree from an accredited university between January 1, 2003 and June 30, 2007 to be considered for the 2007-08 fellowship year. Applications must be received by January 10, 2007. The final selection will be announced in April 2007.

For further information and application forms, visit this website.

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Dispute Resolution in Action: Examining the Reality of Employment Discrimination Cases

 

There will be a joint program of the ADR and Employment Discrimination Sections at the AALS Annual Meeting in D.C., on Friday, Jan. 5, 10:30-12:15:

Moderators:

• Andrea Kupfer Schneider  (top left)
• Michelle A. Travis (top right)

Speakers:

• Susan Bisom-Rapp (botom left)
• Michael Z. Green (bottom center)
• E. Patrick McDermott
• Jean R. Sternlight (bottom right)

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Study Shows Abuse of Undocumented Katrina Workers

A new study released yesterday indicates that undocumented workers are being mistreated even as they provide critical help to rebuild New Orleans after Hurricane Katrina.  The  study of more than 200 workers surveyed in March 2006 by researchers at the Payson Center for International Development and Technology Transfer at Tulane University and the International Human Rights Law Clinic and the Human Rights Center at the University of California, Berkeley discovered vulnerability of undocumented workers, including severely reduced access to health care, wage discrepancy, wage nonpayment, and unsafe working conditions.

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Jolls and Yoshino Among New Faculty Chairs at Yale

Christine Jolls has been named the fourth Gordon Bradford Tweedy Professor of Law and Organization. Her most recent article is The Law of Implicit Bias (with Cass R. Sunstein), forthcoming in California Law Review, and she is currently working on a book entitled Equality’s Tools.

Kenji Yoshino has been named the inaugural Guido Calabresi Professor of Law.  Yoshino teaches antidiscrimination law among other things.  His most recent book is Covering: The Hidden Assault on Our Human Rights.

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Qualified Default Investment Alternatives and Pension Investment Simulation

I just discovered this new retirement benefits blog, The Retirement Plan Blog by Jerry Kalish, which has some interesting posts on the world of pensions.

Here's a taste of a recent entry concerning how the recently released proposed regulations for default 401(k) investment options may lead to more individual investing through their pensions:

As we know, the recently issued proposed 401(k) default investment regulations by the Department of Labor (DoL) allows 401(k) plan sponsors to select default investments funds that strive to achieve long-term capital appreciation as opposed to mere preservation of capital.

But what was the DoL's basis for permitting the use of investments other than the historically selected money market and stability of principal funds?

The DoL used  a simulation model to estimate the impact of the proposed 401(k) default investment regulations on retirement savings in the U.S. The model, called PENSIM, was developed by the firm Policy Simulation Group that specializes in the use of computer simulation models to estimate the implications of private sector and public sector policies in the areas of portfolio management, health insurance and pensions.

Check out the rest of this post and other interesting posts concerning all things pensions at The Retirement Plan Blog.

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