Saturday, October 28, 2006
Well, as I sit here in the Milwaukee airport waiting for my flight back to Memphis (and then on to Oxford), the First Annual Colloquium on Current Scholarship in Labor and Employment Law has come to a close today and after 48 speakers giving their papers on everything under the labor and employment sun, I can only say that the event was a smashing success (hence the big smiley face on the upper left side of this post).
It was not only a worthwhile conference because of the breadth of ideas presented and the intellectual exchanges that took place, but also because of the sense of community that was generated among the conference participants during the various meals, breaks, and happy hours that we shared together.
Which brings me to the next topic: where will the Second Annual Colloquium on Current Scholarship in Labor and Employment Law be? We already have a number of schools who have expressed interests, but I wanted to get other blog readers' input. I think we will have it more toward September next year, but we are open to any school that would like to host next year. Please contact me, Scott Moss, or Joe Slater with suggestions.
In the meantime, we are also looking for suggestions from participants and others on how we can continue to improve the format of the conference. In this regard, you can either write one of the three of us or respond directly be leaving a comment to this post.
Finally, to all those attended, thanks for making this conference a special event and I look forward to seeing you all at many more events in the future (AALS in January anyone?). And, of course, kudos to Scott Moss and Marquette for hosting us and providing everyone an exceptional experience.
- Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (119).
- Orly Lobel (photo above), The Paradox of Exdtra-Legal Activism: Critical Legal Consciousness and Transformative Politics (101).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (99).
- Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (87).
- Michael L. DeMichele & Richard A. Bales, Unilateral-Modification Provisions in Employment Arbitration Agreements (62).
- Orly Lobel, The Paradox of Exdtra-Legal Activism: Critical Legal Consciousness and Transformative Politics (101).
- Michael J. Rawling, Australian Trade Unions as Shareholder Activists: The Rocky Path Towards Corporate Democracy (26).
- Richard Michael Fischl, Rethinking the Tripartite Division of American Work Law (26).
- Terry Carney, Welfare to Work: Or Work Discipline Revisited (22).
- David A. Matsa, Capital Structure as a Strategic Variable: Evidence from Collective Barganing (22).
- Richard M. Locke, Fei Qin, & Alberto Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (117).
- Christian Haefke & Monique Ebell, Product Market Regulation and Endogenous Union Formation (20).
- Sanjay G. Reddy (photo above), Pareto-Improving International Labor Standards Agreements: A Simple Model (12).
- David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (349).
- Colleen Medill, Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3) (239).
- Alan D. Jagolinzer, Steven R. Matsunaga, & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (144).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (99).
- M. Todd Henderson (photo above), Paying CEOs in Bankruptcy: Executive Compensation When Agency Costs Are Low (70).
Friday, October 27, 2006
The Department of Labor announced today that eight states have volunteered to test $3,000 personal accounts that workers can use to get needed education and training. These Career Advancement Accounts (CAAs) can be used by displaced or current workers to pay for expenses directly related to improving their job skills, such as tuition, books, and fees.
Three states (Indiana, Pennsylvania and Wyoming) will conduct pilot tests for statewide use. Another five states (Georgia, Michigan, Minnesota, Missouri and Ohio) will use CAAs to help workers impacted by layoffs in the automobile industry. In addition, a competition will be held shortly to conduct a random assignment study of CAAs.
Individual workers will be eligible for accounts worth $3,000, renewable for one year, for a total of $6,000. Between 2,500 and 4,000 automotive workers could potentially take advantage of CAAs. States will be eligible for grants of $1.5 million from the U.S. Department of Labor, provided they contribute $1.5 million in matching funds.
For more, see the DOL's press release.
Thursday, October 26, 2006
Margaret Moses just posted on SSRN her article Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted by Congress. From the abstract,
The Supreme Court has so significantly rewritten the Federal Arbitration Act (FAA) over the last twenty-five years that today it bears little resemblance to the statute enacted by Congress in 1925. [It was intended as procedural; now it's substantive. It was intended to apply in federal courts; now it applies in state courts and preempts state law. It was intended for non-statutory commercial disputes; now it covers statutory disputes. It excluded workers' contracts; now it covers employees. It was intended for parties with equal bargaining power; now it applies to adhesive contracts.]
How does a statute acquire a totally different scope and application without any legislative intervention?
This article begins with the story of the Federal Arbitration Act's origins, and then discusses the interpretive methods used by the Supreme Court in the major cases that have defined the FAA. It concludes that none of the different interpretive methods used by the Court has served to cabin judicial discretion to legislate, resulting in a complete rewriting of the statute.
The article also considers the impact of the Court's policy choices on our legal system. The FAA is a statute that reduces protections legislated in the fields of federal antitrust, securities and employment law, and intrudes upon state police powers to control core state functions involving contract law and legal process. The new architecture of the FAA appears to reflect judicial policy preferences for the economically powerful, favoring corporations over consumers, and employers over employees.
Kimberly Ososio, canned from her job as an editor at The Source magazine, portrayed the magazine's offices as a "raunched-out workplace where executives watched porn, smoked pot and called female employees "b------."
An attorney for the magazine admitted that coarse and profane language was common there but said it was aimed at all parties, "not a gender-specific conduct". A jury agreed with Osorio's claim that she was sacked for complaining about sexualized goings-on; she also complained of defamation, but lost on sexual discrimination and harassment counts. (Jose Martinez, "Hip-hop mag bagged", New York Daily News, Oct. 24).
The magazine already faces bankruptcy proceedings due to other business problems. (Leonard Greene, "Editor's New 'Source' of Woe", New York Post, Oct. 25; Peter Carlson, "Hip-Hop Editor Wins Suit Over Her Firing", Washington Post, Oct. 25; Joshua Rhett Miller, "Ex-Source editor hopes ruling redefines rap", Metro New York, Oct. 25).
BTW, in case you are wondering, the verdict was for $15 million dollars. Now that is some serious bling-bling.
Update: a number of commentators have pointed out that the Vietnam and German positions just can't be right, given NLRB jurisdiction and all. Must be a misprint, but if someone applies and gets the job, please let me know!
Federalogovernmentjobs.us has recently listed the following open positions with the NLRB throughout the country and world:
Jobtitle Job Location Public Department Posted Deadline Supervisory General Attorney Officer In Charge Vietnam No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Germany No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Seattle, WA No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Portland, OR No National Labor Relations Board 10/24/06 11/13/06
Hat Tip: Paul Caron
It is now farily well-settled law that an employee severance agreement to waive all employment-related claims against his or her former employer may not include language that prohbits the employee from filing a charge of discrimination with the EEOC. The question in EEOC v. SunDance Rehabilitation (6th Cir., Oct. 24, 2006) was whether the mere inclusion of such a provision in a release is tantamount to retaliation.
The court thought not. In a 2-1 decision, the court found that although the provision was not enforceable, it did not rise to the level of retaliation:
SunDance’s mere offer of the Separation Agreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facial violation of those statutes’ antiretaliation provisions or under the conventional burden-shifting analysis. SunDance has not tried to enforce the Separation Agreement, and the question of the enforceability of the Agreement or any of its provisions is not before us.
The dissenting judge had this to say:
The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.
I understand the distinction the majority seems to be drawing here, but I wonder also whether an employer seeking to have severance money returned once an employee files a charge of discrimination with EEOC may not be able also to hit the employer with a Rule 11-type sanction for filing a clearly frivolous claim. Perhaps, the reality of sanctions will cause less of a chill on employee rights in these situations because sophisticated employer counsel knowing the law will never file these claims in the first place.
The Department of Labor has issued its Strategic Plan for Fiscal Years 2006-2011. My observation based on a quick glance: there's a lot in here about worker training, but not much about enforcement of existing worker protection laws.
Wednesday, October 25, 2006
Umm . . . let's just say that I am happy I didn't have this type of thug, juvenile principal in my school days (via Comcast News):
The principal of Park High School returned to school Tuesday after a six-day suspension for giving a student a "wedgie." The Livingston [Montana] School District Board held a special meeting Monday and approved Superintendent Hannibal Anderson's recommendation that Principal Eric Messerli be allowed to return to work.
"It has been clearly recognized and stated that the behavior is inappropriate, unprofessional and unacceptable," Anderson said.
Messerli's behavior "warrants substantial disciplinary action" but was not sufficient grounds for a recommendation for termination, he said.
Messerli was suspended for two days without pay and four days with pay for grabbing a Park High senior's soccer jersey and pulling it over his head and giving the student a "wedgie" by pulling up on the waist band of his underwear. The incident happened on Oct. 5 at a junior varsity soccer game.
Consider me old-fashioned, but if I am on the school board, this guy never has a leadership position involving children again. It's not that he just engaged in inappropriate behavior, but that the behavior can be seen as either having sexual or bullying connotations or both. Either way, clearly not someone with the judgment you look for in a principal and not someone you want setting an example for your children.
I was intrigued by this poll and story done by Rasmussen concerning whether individuals would be willing to sacrifice quality in order to have more affordable health care.
Apparently not. The findings:
While health care costs are rising rapidly, 64% of American adults say that quality care is more important than lower health care costs (25%). That sentiment is echoed across all demographics in the latest Rasmussen Reports survey (see crosstabs).
The survey also found that Americans underestimate how much it costs companies to provide insurance for an employee and their family.
Half (50%) of all Americans estimate the cost at $750 per month or less. Thirteen percent (13%) are in the right ballpark and estimate an average monthly insurance cost of $750 to $1,000. Only 10% overestimate the cost and assume that insurance premiums for a family would top $1,000 per month.
According to the 2006 Kaiser Family Foundation/Health Research and Educational Trust Employer Health Benefits Survey, the average cost of family health insurance coverage is $957 per month or $11,480 per year.
Of course, quality care only matters if you can afford it. I wonder if the survey question had been asked slightly differently whether there would be more individuals who would have answered that they just like to have some health care coverage from their employers versus none at all.
I would also be interested to hear whether most Americans believe they can still get quality health care coverage for affordable prices under the current employer-provided health care system. The lack of understanding of how much adequate health care costs suggests perhaps they are mistaken about what the current system can provide for them.
Here is a nice summary of the labor agreement agreed to by baseball owners and their owners (Yahoo! News via AP):
Bud Selig and Donald Fehr sat in the center of a dais, flanked by players and owners. For the second time in four years, they were proclaiming labor peace.
"The last agreement produced stunning growth and revenue," Selig said. "I believe that five years from now people will be stunned how well we grew the sport."
The five-year collective bargaining agreement, which runs through the 2011 season, is subject to ratification by both sides. The deal makes relatively minor changes to the previous agreement, and doesn't alter baseball's drug rules.
"This is the golden era in every way," Selig said. "The economics of our sport have improved dramatically, and that's good. That, after all, made for a more wholesome atmosphere. We didn't have to quarrel about a lot of things. So overall, it was a very, very important part of the environment that continues peace."
As an ardent baseball fan, I am thrilled to know that their will not be any work stoppages in the near future, but I wonder whether this is really the "golden age" of baseball and really doubt there is a "wholesome atmosphere."
With steroid and other drug use apparently rampant, as seen by recent cases, the players and owners need to address these issues head on and stop dancing around them. Baseball is being diminished everyday that these scandals continue to percolate.
Hat tip: Megan McGrew
Colleen Medill (left), Richard Wiener (center), Brian Bornstein (right), & E. Kiernan McGorty provide the answer in How Readable Are Summary Plan Descriptions for Health Care Plans? Here's the abstract, posted last week on SSRN:
The summary plan description (SPD) is the primary source of information for workers who participate in an employment-based health care plan. This paper investigates whether private-sector employers' SPDs are written so that an average plan participant can identify and read important information contained in the document, as required by federal law. Summary plan descriptions for 40 health care plans from a diverse national sample were collected and tested and subjected to content and readability analyses. The data from this study provide quantifiable evidence about whether summary plan descriptions cover the necessary topics that participants need to know about their health plans, and the educational level required to read them.
Tuesday, October 24, 2006
When it comes to the enforcement of covenants not to compete (also know as noncompetition clauses), which prevent employees from competing against their former employers for a certain period of time within a certain location, courts in all states look at the reasonableness of such a restrictive covenant given the interference with an employee's right to earn a livelihood (with the notable exception of California where such covenants are generally illegal).
Of the many factors that are considered in making this reasonableness determination, one area that tends to vary across the states is what constitutes "adequate consideration" to support a noncompetition agreement. Although offering new employment to a worker in return for agreeing to a covenant generally suffices, some states have gone so far to say that mere continued employment of a current worker is also sufficient. Others have taken a stricter view and have required employers to offer current employees some additional consideration like a bonus or other additional benefits, and provide that benefit at the time that the covenant is entered into.
The Texas Supreme Court last week changed its law about when such noncompetition agreements are supported by adequate consideration. In Sheshunoff Management Services, Inc. v. Kenneth Johnson and Strunk & Associates, No. 03-1050 (Tx. Oct. 20, 2006), the court found that a unilateral promise by the employer may support a covenant not to compete. More specifically, the court held:
In this case we revisit the Court’s 1994 decision in Light v. Centel Cellular Co. and again consider the enforceability of covenants not to compete in the context of at-will employment. The question today is whether an at-will employee who signs a non-compete covenant is bound by that agreement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always “no.” Today we modify our holding in Light and hold that an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant. In so holding, we disagree with language in Light stating that the Covenants Not to Compete Act requires the agreement containing the covenant to be enforceable the instant the agreement is made.
Can someone please explain to me how pursuing the matter described below is an effective use of the AFL-CIO's money and resources? Here is the story from Yahoo! News via AP:
The AFL-CIO, a federation of about 50 labor unions with 9 million members, said it would file a complaint [yesterday] with the International Labor Organization of the United Nations about a decision this month by the National Labor Relations Board.
The decision, covering a series of cases known as the Kentucky River cases, involved the role of a supervisor.
The board ruled that nurses who regularly run shifts at health care facilities should be considered supervisors and exempt from federal protections that cover union membership. The decision potentially has major implications for workers in other fields.
"This will demonstrate how far outside the mainstream of accepted international law the U.S. is moving," said Craig Becker, a legal counsel to the AFL-CIO.
While the committee of labor law specialists from around the world has no enforcement power, the AFL-CIO is looking for support in efforts to restore the more traditional view of what makes a supervisor.
Has the AFL-CIO been diminished to such an extent that it is left to make only these symbolic points?
I wonder if the Change to Win coalition believes that this maneuver is worth the time and energy?
Tomorrow in Labor Law class, I am scheduled to introduce my students to Mackay Radio and the permissible use of replacement workers by employers in the face of a strike. The reasoning of Mackay Radio for allowing replacement workers is less than adequate, but it has been followed by other courts for the last 70 years or so and the NLRA has not been amended to preclude such replacement workers.
Our neighbors to the North might have a different idea about replacement workers. Michael Fitzgibbon of Thoughts from a Management Lawyer has this post concerning a move by some legislators in Canada to prohbit the use of such replacements:
The Bloc Quebecois has again introduced a private members bill which, if passed, would prevent the use of replacement workers during a strike or lockout for employers subject to the Canada Labour Code. Bill C-257 was introduced by MP Richard Nadeau. The previous bill (Bill C-263) was defeated by 12 votes on April 7 2005.
Bill C-257 will come before the House of Commons for a vote on October 25, 2006.
It will be interesting to see how this comes out in Canada, and whether if successful this would inspire a potentially new Democratic Congressional majority in this country to pursue similar legislation.
To be honest, though, as long as there is a Republican president, I wouldn't hold your breath concerning prospects for such a bill in this country.
Two recent articles, both examining retirement security from a different angle, have been posted on SSRN in the last week:
- Benjamin A. Templin, Full Funding: The Future of Social Security. Investing the Social Security Trust Fund in a well diversified portfolio of stocks, bonds and other investments remains the best hope of continuing to fund social insurance without substantially raising taxes or reducing benefits. The problem with investing the Trust Fund in the market is the politically charged issue of government interference in the investment decision and corporate governance. Three primary solutions have emerged to the problems posed by government investment: (1) personal accounts, (2) index investing, and (3) the incorporation of the Trust Fund into a government-owned private corporation as an investment vehicle for the trust fund. I conduct a normative analysis of the ideological, political and economic issues which surround government investment. I examine each of the solutions in turn and conclude that the one which has the most potential given current political realities is the third alternative of creating a private corporation for the public purpose of investing Social Security assets. I look at the historical precedents for using private corporations to insulate agencies from political influence and also identify the constitutional and corporate government issues which would arise as a result of the creation of such a corporation. I end with a call for further study of the private corporate structure as an investment vehicle for Social Security.
- Susan J. Stabile, Is It Time to Admit the Failure of an Employer-Based Pension System? This article examines two aspects of the failure of an employer-based pension system, focusing first on the problems associated with defined contribution plans such as 401(k) plans, which have become the dominant means by which employers offer their employees pension coverage, and second, on the reality that millions of employees lack any pension coverage at all. It argues that the failures of the employer-based system can not be rectified by incremental changes and that serious consideration must be given to alternative models of providing Americans with retirement security. Although recognizing that neither of the models she discusses, i.e., the provision of a government pension for everyone and movement to a mandatory employment-based system with more stringent regulation than currently exists, would be politically easy to enact, the article argues that some major overhaul is needed if we remain convinced that adequate retirement security is an important social goal.
Monday, October 23, 2006
The Detroit Free Press reported Saturday, in a story picked up today by Associated Press, that a judge in a Detroit suburb dismissed the case of a Muslim woman because she refused to remove her veil:
A devout Muslim, she wore a niqab -- a scarf and veil to cover her face and head except for her eyes -- Oct. 11 as she contested a rental car company's charging her $2,750 to repair a vehicle after thieves broke into it.
Judge Paul Paruk said he needed to see her face to judge her truthfulness and gave Muhammad, 42, a choice: take off the veil when testifying or the case would be dismissed. She kept the veil on.
While obviously not an employment case, it seems to me the case has obvious employment implications. Any thoughts?
Thanks to David Elder for the heads-up.