Saturday, November 11, 2006
- Richard M. Locke, Fei Qin, & Alberto Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (146).
- Guy Davidov, In Defence of (Efficiently Administered) Just Cause Dismissal Laws (30).
- Sanjay G. Reddy , Pareto-Improving International Labor Standards Agreements: A Simple Model (17).
- Jennifer Gordon (photo above), Transnational Labor Citizenship (13).
- Rubiana M. Chamarbagwala & Rusty Tchernis, The Role of Social Norms in Child Labor and Schooling in India (12).
- David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (410).
- Colleen Medill, Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3) (251).
- Alan D. Jagolinzer, Steven R. Matsunaga, & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (166).
- Susan J. Stabile (photo above), Is It Time to Admit the Failure of an Employer-Based Pension System? (164).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (111).
Friday, November 10, 2006
I know there are a hundred and three reasons why corporate executives deserve every penny of their exorbiant salaries, but this following opinion piece by Nicholas Kristof of the New York Times about Barry Diller establishes that you can get paid an awful lot even when your company is not doing very well:
Last year, Barry Diller took home a pay package worth $469 million, making him the highest-paid chief executive in America.
His shareholders didn’t do so well. Stock in the main company he runs, IAC/Interactive, declined 7.7 percent last year. For the three years ending in December 2005, the stock was up just 11 percent — compared with 49 percent for the S. & P. 500.
There’s nothing wrong, in principle, with a big pay package. Baseball players, movie stars and investment bankers often get outrageous pay, but after arms-length negotiations. That is capitalism at work, and nobody is getting ripped off.
In contrast, as John Kenneth Galbraith once noted: “The salary of the chief executive of the large corporation is not a market award for achievement. It is frequently in the nature of a warm personal gesture by the individual to himself.”
IAC . . . said that the package was necessary to “motivate Mr. Diller for the future.” Goodness, this man needs a lot of motivation! He required about $150,000 every hour just to get motivated — suggesting that he may be the laziest man in America.
Take home quote: "The average C.E.O. earns 369 times as much as the average worker, compared with 36 times as much back in 1976."
Lisa Fairfax had an interesting post on Conglomerate yesterday discussing the fast-food chicken restuarant, Chick-fil-A, and its focus on developing its employees. Here is some of what Lisa had to say about that corporation's pro-employee management philosophy:
[Founder, S. Truett] Cathy focuses on investing in people early. Hence, the company provides college scholarships to employees--something many other companies do. However, the company also seeks to give all of its employees the ability to have some ownership-type interest in the company. Not through stock options, but through operating franchises. To that end, the company invites any employee interested in operating a franchise to its corporate headquarters to learn about the company. Chick-fil-A also seeks to make franchises affordable in a variety of ways. And according to the article, franchises are typically only $5,000. Apparently as a result of these efforts, 65% of Chick-fil-A franchisees worked for Chick-fil-A in high school or college. Also, employee turnover at Chick-fil-A is only 3.5%. In Cathy's view these extra efforts with employees translates into more satisfied employees, customers and ultimately a higher profit.
I have said it before, and I'll say it again: it is mind-boggling in this day and age that the following type of workplace behavior by professional employees still goes on (from dpa German Press Agency via LA Times):
A black firefighter who was served dog food in his dinner by fellow firefighters has been awarded a settlement of 2.7 million dollars by the Los Angeles City Council, the Los Angeles Times reported Thursday. The decision will settle the lawsuit in which Tennie Pierce, 51, alleged that racial harassment within the Los Angeles Fire Department motivated his colleagues to mix canned dog food in his spaghetti and then laugh as he ate it.
A lawyer for the Fire Department claimed that the incident was just a "good-natured prank" that crossed the line, but Pierce's legal team argued that it was "racially motivated" to "humiliate and dehumanize" Pierce.
"The association of a black man and dog food resonates with the deep historical roots of slavery and the corresponding dehumanization," said sociologist David Wellman, who testified on behalf of Pierce.
I'm sure this will seem like a large verdict to many, but a loud, clear message needed to be sent to the Los Angeles Fire Department that this type of behavior cannot be tolerated to any degree.
Hat Tip: The Raw Story
Thanks to the New Mexico Labor and Employment Law Blog for bringing to my attention and summarizing the following DOL opinion letter from this past September concerning whether a manager has to be physically present in order to qualify for the executive exemption from the overtime provisions of the FLSA.
Here's a taste:
The Department of Labor recently decided that a store manager does not necessarily have to physically supervise all employees under his or her control on a regular basis to meet the executive exemption under the Fair Labor Standards Act (FLSA).
The manger qualifies because he “customarily and regularly directs the work of subordinate employees even when he or she is not present in the store because the store manager continues to be responsible for ensuring that company policies and his or her instructions are carried out by all subordinates.”
Thursday, November 9, 2006
One of the less covered ballot initiatives that passed during this election cycle was Proposition F in the City of San Francisco, which will require employers in that city to provide a certain level of paid sick leave to their employees.
Here's some summary and commentary on this new workplace law by Brent Hunsberger at The Oregonian At Work Blog:
It might not impact as many workers as the minimum-wage measures approved yesterday in six states. But to At Work blog, San Francsico's Proposition F is the most interesting new workplace-related law of Election Day 2006.
Yesterday, the "Baghdad by the Bay" became the first city to require employers to provide paid sick days, the San Francisco Examiner reports. The ordinance requires employers with 10 or fewer workers to provide a minimum 5 days of paid sick leave. Workplaces with more than 10 employees must provide at least 9 paid sick days. The time can be used to care for sick family members or domestic partners.
The measure could cost businesses in the more liberal city to the south $33.5 million a year, according to a report by the Institute for Women's Policy Research. But proponents of the measure note the same report found that employers would see a net benefit through $46 million in reduced turnover and other costs.
It will be interesting to see whether the increased costs of doing business in San Francisco, an already expensive city, will cause some employers to relocate. My sense is the law's impact on the local economy will be minimal, but only time will tell.
As Brent points out, it also bears watching to see if these types of initiatives are taken up in the future by other municipalities.
Paul Miller (Washington) sent me this interesting blurb to an article (subscription required) from BNA on the EEOC finding that regulatory compliance may be a defense to a Rehabilitation Act claim. Here are some excerpts:
Although the confidentiality provisions of the Rehabilitation Act of 1973 prohibit disclosure of medical information, agencies may use compliance with regulations governing equal employment opportunity investigations as a defense to claims that they violated the statute by releasing the information, according to an Equal Employment Opportunity Commission informal advisory letter.
In particular, [the advisory letter] addresses a situation where release of medical information may be required as part of an investigation under Title VII of the 1964 Civil Rights Act or the Age Discrimination in Employment Act.
That seems to make a lot of sense to me. An agency, or any other employer, should not be placed in a Catch-22 where cooperating with an EEOC investigation requires them to violate the law.
My assumption is that this advisory opinion would equally apply to ADA claims, since the ADA has similar confidentiality provisions.
Jurist's Paper Chase Newsburst has this interesting piece about an upcoming case which will decide whether the NLRB has jurisdiction over workers at Indian casinos (you might recall we did a post a number of months ago about whether employment discrimination laws apply to a sovereign Indian nation).
Here's a taste of the Jurist posting:
Lawyers for a southern California Indian tribe argued before the US DC Circuit Court of Appeals Monday that the tribe is exempt from the National Labor Relations Act on grounds of tribal sovereignty. The San Manuel tribe is appealing a 2004 ruling which asserted National Labor Relations Board jurisdiction over tribal businesses. If the decision is upheld, tribes would be covered for the first time by the National Labor Relations Act, which bars unfair labor practices and gives workers the rights to organize and bargain with employers.
Consistent with my previous post on the sovereignty of Indian nations, I would not be surprised at all if the D.C. Circuit finds that these casinos should be treated as being located in a separate nation and therefore, not covered by the Act.
Michael LeRoy (Illinois) has posted on the bepress Legal Repository his forthcoming article entitled: As the Enterprise Wheel Turns: New Evidence on the Finality of Labor Arbitration Awards.
From the abstract:
Our study examines 281 federal court decisions from April 2001- May 2006 that ruled on challenges to labor arbitration awards. These award appeals are regulated by the Supreme Court’s Enterprise Wheel decision. District courts confirmed 77.6% of challenged awards, an increase of about 7 percentage points compared to our earlier studies of litigated awards from 1960 - 2001. The result was very similar for appellate cases— a confirmation rate of 76.3%, and nearly the same gain in percentage points.
These results clearly suggest that the Supreme Court’s rebuke of lower courts in Eastern Associated Coal Corp. (2000) and Garvey (2001) have changed how judges review arbitrator rulings. But this uniformly positive development masks observable differences in the federal circuits where these cases were decided.
Overall, the empirical results are healthy indicators for the national policy that favors arbitration. The Supreme Court’s on-going investment in promoting judicial deference to awards is paying dividends not only for the institution of labor arbitration, but by implication, for newer ADR applications in individual employment, commercial transactions, environmental disputes and others.
Empirical works like this really give important insights in to whether the labor law in practice is following the principles set out by the Supreme Court. This piece is another fine example of how empirical work can be harnessed to better understand the dynamics of a particular area of law. You can download Michael's article here.
Wednesday, November 8, 2006
Michael Dorf of Columbia Law School has a new blog out called, appropriately enough, Dorf on Law. Today, Michael has an interesting post on the results of the Michigan ballot initiative prohibiting racial preferences in, among other things, employment. Of course, on the education front, this initiative was in direct response to the Grutter case of three years ago.
The ballot initative, which amends the Michigan Constitution, would:
[P]ohibit the University of Michigan and other state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin.
Michael points out:
With voters in Michigan approving a measure barring state affirmative action in education, employment and contracting, Michigan joins California and Washington as states with such voter-approved bans. It is striking that these ballot measures succeeded in three pretty reliably blue states.
I agree with Michael that it is indeed striking that these bans of affirmative actions passed in traditionally Democratic states. And, of course, because the equal protection clause as interpreted by Grutter does not mandate affirmative action for diversity purposes, this initiative, at least for Michigan universities and colleges, signals the death knell of the criticial mass approach in education for these schools.
The Journal of Individual Employment Rights, published by Baywood Publishing Co., focuses on issues pertaining to labor/management relations, employment discrimination, and employment law. Beginning with Volume 13, the Journal will change its name and scope. The final issue of Volume 12, which should be published in late 2007, will be devoted entirely to research by doctoral students. Co-written papers are acceptable as long as all authors are doctoral students. Submissions, which should be 25-35 pages in length including all tables and references, must follow the Journal’s style guide for authors. The submission deadline is February 1, 2007 and the Journal will strive to complete its double-blind review process within three months of this date. If prospective authors have any questions, they may contact Editor Joel Rudin.
Tuesday, November 7, 2006
Ed Zelinksy (Cardozo) has posted on SSRN his new piece forthcoming in the New York University Review of Employee Benefits and Executive Compensation entitled: Cooper v. IBM Personal Pension Plan: A Critique.
Here's the abstract:
Since the Cooper decision will the starting point for the other appellate courts addressing the pre-PPA status of cash balance pension plans, Cooper merits close scrutiny. Such scrutiny indicates that Cooper is laudably transparent in its reasoning and contains many important insights. However, given what the pre-PPA pension age discrimination statutes say, in the final analysis, Cooper is wrong on the merits.
Read the whole thing. I have and it is one of the most understandable explanations of how cash balance plans work and their relationship to age discrimination laws. It also provides a very persuasive argument (one that Judge Baer of the South District of New York clearly agrees with) about why Judge Easterbrook got it wrong in the Cooper decision.
You can download the paper here.
Interesting article from the New York Times yesterday about how state and local governments are working behind the scenes to reduce their pension burdens. The story highlights, for instance, the steps that San Diego (a city that has had it share of pension problems) is taking to minimize its retiree burden. Of course, it is probably just as difficult to cut-back on pension benefits in the public sector as under ERISA:
Across the country, government workers’ pensions are protected by guarantees even stouter than those on pensions in the private sector. The legal promises, often backed up by union contracts, cover more than 15 million people.
Years of supporting court interpretations have enshrined the view that once a public employee has earned a pension, no one can take it away. Even during New York City’s fiscal crisis 30 years ago, no existing pension promises were reduced.
But now a number of state and local governments are quietly challenging those guarantees. Financially troubled San Diego is the highest-profile example, but a handful of states, cities and smaller government bodies have also found ways to scale back existing promises and even shrink some current payments.
While still only scattered cases, these examples may be an early warning sign of what could be coming elsewhere. As local officials take stock of unexpectedly large obligations to retired public workers, some are starting to question whether service cuts, sales of government property and politically acceptable tax increases can ever go far enough to bring things into balance.
Beyond the sheer political difficulty of removing an existing benefit, an array of legal guarantees — some in statutes, some in state constitutions, some in city charters — were supposed to prevent such reversals. But lawyers have been finding chinks in the armor.
In Texas, the pension guarantee in the state constitution has an unusual clause, giving towns and cities the chance to hold referendums on whether to opt out.
As the article points out, a pension promise backed by unequivocal collective bargaining agreement language is a difficult thing to circumvent (we see the same reluctance of courts to supersede these promises in the retiree health care context). I would expect numerous lawsuits to result as a conseqeunce of municipialities trying to find chinks in the legal armor.
But with so much at stake for both sides, this is one of those areas that will continue to be at the center of the debate over how this country should structure its employee benefits system.
Hat Tip: Mercer Bullard
Thanks to Joe Hodnicki over at the Law Librarian Blog for pointing out excellent blog resources for election day. In particular, BallotWatch of the Initiative and Referendum Institute has put out a very helpful summary of all the state ballot questions for Election 2006.
Of course, one of the ballot questions in a number of states is whether to raise the state minimum wage law. This is considered to be a wedge issue that favors Democrats and is highly popular among the public; however, as BallotWatch points out, Democrats were less than successful in getting the issue on all the ballots it wanted:
One issue that failed to emerge in a big way despite some hype is the minimum wage. Progressive groups fastened on this issue as a way to increase turnout for Democratic candidates, as a counterbalance to the gay marriage amendments perceived by some to have helped the GOP in 2004 (although political scientists have generally concluded that they did not help.) Proponents of the minimum wage measures announced plans to place measures on the ballot in 11 states, to match the number marriage amendments in 2004, but ended up with only six measures (Arizona, Colorado, Missouri, Montana, Nevada, Ohio).
Nevertheless, there are some very important Congressional races in Missouri, Montana, Arizona, and Ohio, and will be interesting to see if the minimum wage measures in these state will help Democratic candidates.
The NLRB released yesterday its case resolution numbers for FY 2006. The Board issued 477 decisions, of which 324 were unfair labor practice cases and 153 were representation cases. In FY 2005, the Board issued 508 decisions, meaning that the number of decided cases declined last year by 6%.
The Board's FY 2006 goal under the Government Performance and Results Act (GPRA) was to issue 90% of (a) unfair labor practice cases that were pending for 17 or more months and (b) representation cases that were pending for 12 or more months. The Board didn't come close, issuing only 46% of the unfair labor practice cases and 77% of the representation cases. It didn't help, of course, that the Board was perpetually short-staffed.
Monday, November 6, 2006
In SNE Enterprises, Inc., 348 N.L.R.B. No. 69 (Nov. 3, 2006) (not yet posted by NLRB), the Board retroactively applied Harborside Healthcare. In Harborside, the Board declared that it would treat supervisors' pro-union conduct, even outside an election's critical period, as grounds for overturning an election absent mitigating evidence showing that the conduct did not interfere with employees' free choice. SNE involved leadpersons who solicited union authorization cards before the 2004 decision in Harborside changed the Board's past practice of evaluating supervisory pro-union conduct on a case-by-case basis.
The Board's 2-member majority (Chairman Battista and Member Shaumber) overruled the Regional Director's finding that the leadpersons' limited authority over the employees and past eligibility to vote mitigated the tendency of their conduct to interfere with employee free choice. Member Liebman dissented; she reiterated her objection to Harborside and stated that it was unfair to overturn the union's election victory because leadmen with minimal supervisory authority engaged in conduct that was not objectionable at the time it occurred.
The Harborside line of decisions would be easier to swallow if the Board treated supervisors' anti-union conduct equally, but as Liebman notes, it doesn't. This case also shows yet another area affected by the Board's recent supervisor cases. As more workers become classified as supervisors expect more decisions like this one. Ironically, one could read Liebman's dissent as using the new supervisor cases to argue that as more workers with very minimal authority are considered supervisors, the rationale for Harborside becomes weaker.
Apparently, so does Miriam Cherry (McGeorge-Pacific). She has posted on the bepress Legal Repository her new piece entitled: A Satire of Law Firm Employment Practices (Book Review of Anonymous Lawyer, by Jeremy Blachman).
Here's the abstract:
My essay is a review of Jeremy Blachman’s new book, Anonymous Lawyer. The book is a black-humorous stab at the hearts and souls of large elite law firms everywhere (if firms had such things as hearts and souls). In this review essay, I discuss why the blog struck a chord with so many readers, and why the novel Anonymous Lawyer contains a serious message about employment at law firms.
First, I place Anonymous Lawyer within the tradition of satire surrounding the legal profession. Specifically, I compare Blachman’s novel to John Jay Osborne Jr.’s earlier novel The Associates, which also takes large law firm life as its subject. Second, I want to examine how this novel fits into the literature that describes working life at a large elite law firm. Anonymous Lawyer highlights the issues of associate turnover, work-life imbalance, and workplace hierarchies that seem to characterize employment at large law firms. Ultimately, I conclude that Anonymous Lawyer adds to the formal academic discourse on law firm culture and, through its humor, challenges and goads the system toward change.
You can download what is sure to be this very enjoyable, satirical look at large law firm life at this link.
Ellen Dannin (Penn State-Dickinson) wrote both the Law & Society and worklaw listservs about the Call for Participation for the 2007 Law and Society Annual Meeting, which will be held in Berlin, Germany this summer.
Here's some of the details:
This year the Joint Annual Meeting of the Law and Society Association and the Research Committee on Sociology of Law (International Sociological Association) will be held in Berlin, Germany, July 25-28, 2007.
Each year Law and Society Collaborative Research Network (CRN) 8 has taken a lead role in assembling panels. This year we are encouraging the creation of panels that are transnational in terms of topic and membership. We need your help in achieving that goal. In particular, if you have international connections, please forward this email to them.
The theme is "Law and Society in the 21st Century: Transformations, Resistances, Futures". It is intended to encourage debate on the transformations that are redefining law and society in the new century. This period of rapid change and transformation has been marked by resistance as well as adaptation. In order to imagine the future, we invite you to consider these transformations and spaces of resistance.
Please take a look at [the conference website] for details on themes.
For more information on the labor panels for the Law & Society conference, please contact Ellen by email.