December 2, 2006
Top-5 International Employment & Labor Law SSRN Downloads
- Richard M. Locke, Fei Qin, & Alberto Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (186).
- Jennifer Gordon, Transnational Labor Citizenship (39).
- Guy Davidov, In Defence of (Efficiently Administered) Just Cause Dismissal Laws (37).
- Rubiana M. Chamarbagwala & Rusty Tchernis, The Role of Social Norms in Child Labor and Schooling in India (26).
- Scott Cummings, The Internationalization of Public Interest Law (24).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- M.P. Narayanan (left), Cindy A. Schipani (center), & Hasan Nejat Seyhun (right), The Economic Impact of Backdating of Executive Stock Options (217).
- Susan J. Stabile, Is It Time to Admit the Failure of an Employer-Based Pension System? (198).
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (122).
- Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (111).
- Lily Batchelder, Fred T. Goldberg, & Peter S. Orszag, Efficiency and Tax Incentives: The Case for Refundable Tax Credits (75).
December 1, 2006
Mississippi Law Journal Symposium on the ADA
Volume 75, Number 4 (Spring 2006)
- Michael E. Waterstone (top left), Foreword: The Americans with Disabilities Act at 15–Past, Present, & Future, p. i.
- Helen A. Schartz, Kevin M. Schartz, D.J. Hendricks & Peter Blanck, Workplace Accommodations: Empirical Study of Current Employees, p. 917.
- Anita Silvers (top center), Michael E. Waterstone & Michael Ashley Stein (top right), Disability and Employment Discrimination at the Rehnquist Court, p. 945.
- Ann Hubbard (bottom left), A Military-Civilian Coalition for Disability Rights, p. 975.
- Kaaryn Gustafson (bottom center), Disability, Fluidity, and Measuring Without Baselines, p. 1007.
- Camille A. Nelson (bottom right), Starting Anew: The ADA’s Disability with Respect to Episodic Mental Illness, p. 1039.
- Elizabeth Mills, How Bizarre? The Application of Reasonable Accommodation to Employees “Regarded As” Disabled Under the ADA Does Not Necessarily Lead to Bizarre Results, p. 1063.
Symposium Book Review
- Elizabeth Penn, Disability Civil Rights Law & Policy, p. 1085.
Sholk on ERISA Pre-emption to the Rescue
Steven Sholk, an attorney at Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. in Newark, New Jersey, writes to tell us that his new article, ERISA Pre-emption to the Rescue, has been published in the November 20, 2006 issue of the New Jersey Law Journal and in the Employment Law Practice Center of law.com.
The article discusses Wal-Mart's challenge to the Maryland pay or play healthcare statute. I agree with Steve's conclusion that Fourth Circuit's decision on Maryland's Wal-Mart law will probably come down to which:
public policy the Fourth Circuit more strongly wishes to promote. If the Fourth Circuit wishes to promote the policy of national uniformity in ERISA plans, it will find preemption. If the court wishes to promote the policy of encouraging states to seek solutions to the problem of the large number of uninsureds, it will not find pre-emption.
I have little doubt that the Fourth Circuit will follow recent United States Supreme Court preemption cases in this area, including Egelhoff v. Egelhoff, 532 U.S. 141 (2001), and find that national uniformity in the area of employee benefit plans is of paramount importance and find against the Maryland law.
Personally, however, I think the preemption language of Section 514(a) should be legislatively modified to allow for such state experimentation in the area of health care reform.
The Match.com for Employees and Investors
Here is an article from the Wall Street Journal (subscription may be required) which provides detail on a company that is providing a new service in the investment world: "hook[ing] up current and former middle managers from hundreds of companies with professional investors desperate for an investing edge."
[These] moonlighting job[s are] the creation of Mark Gerson, a New York networking wizard who has done for professional investors something akin to what Match.com has done for the nation's singles . . . .
Two things have made Mr. Gerson's network both successful and controversial: Some of his consultants dish to investors without the knowledge of their bosses, sometimes in violation of their employers' policies. And they are doing so at a time when federal regulators have made executives at public companies gun-shy about talking shop privately with big investors.
Gerson Lehrman says it instructs its consultants never to disclose material nonpublic information or even to discuss their own companies. All of its consultants, it says, must agree in writing to follow the rules of their primary employers. (Most of them, it adds, do not even work for public companies, but are lawyers, accountants, professors and other professionals.)
Fascinating. I just don't see how this company can effectively monitor all of these consultants.
My best guess is that it won't be long before one of these employees is fired for divulging sensitive information to investors (if it already hasn't happened). Also, as the article points out, companies are going to start making employees with sensitive information to sign agreements which specifically forbid them to consult in this manner. Heck, there may even be a breach of the common law duty of loyalty claim lurking about these types of arrangements (as long as the employee remains employed with their primary employer).
Hat Tip: Mercer Bullard
The Use of Waivers in the University Classroom
Inside Higher Ed had an interesting piece the other day about a professor who is asking students to sign waivers before taking his class which has material that students might find offensive:
In an era in which seemingly anything can offend anyone, one professor at the University of Idaho is attempting to stay one step ahead by asking film students to sign a “statement of understanding” acknowledging the potentially offensive or repugnant content they’ll be viewing.
Dennis West, a professor of film and Spanish, said he thinks the statement, distributed on the first day of his film classes, acts as a check to ensure unsophisticated undergraduates know what they’re getting into. But others question the implications of a practice they believe to be well-intentioned but risky – should faculty be asking students to sign on to facing controversial subject matter?
I have to wonder not only whether such a waiver would be considered enforceable in court, but perhaps more importantly whether professors should even have to worry about such things given robust principles of academic freedom. Apparently, the American Association of University Professors (AAUP) and I are on the same page on this one (not surprisingly). Jonathan Knight, director of the program in academic freedom and tenure, had this to say about the waivers:
What does it mean to say to a person, ‘Sign this statement saying you might be offended?’ I would be worried that this opens the door slightly more than is typical ... to submit sensitive material for pre-judgment by students . . .
It all seems rather odd . . . . I should think that the professor’s laudable goal of letting the students know what they’re getting in for could be well-accomplished by just describing the content in the syllabus rather than having them sign a statement that raises implications about the authority responsible for the course.
Let's just say I won't be distributing any waivers in my employment discrimination law class this Spring semester, even though we do address many sensitive issues such as sexual harassment.
DOL Asks for Comment on FMLA
Now in its 13th year of existence, the Family and Medical Leave Act (FMLA) has wrought important changes in the American workplace. Now, with an eye to improving the law even further, the Department of Labor is asking for comment about certain areas of the law. In particular, according to this press release from the DOL:
The U.S. Department of Labor announced today that it is seeking information and comment from the public on the Family and Medical Leave Act (FMLA) and its implementing regulations. The request for information (RFI) will be published in the Federal Register on Friday, Dec. 1.
"The department has had the FMLA on its regulatory agenda for a number of years," said Victoria A. Lipnic, assistant secretary for the department's Employment Standards Administration. "We've realized we need some fresh information and fresh thinking on the issues that have developed over nearly a dozen years since the regulations were implemented. We'd like more input from the public, which is why we put out the request for information."
Written comments on the RFI should be submitted to Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Electronic comments may be submitted by e-mail to: firstname.lastname@example.org. Comments of 20 pages or less may be submitted by FAX machine to (202) 693-1432, which is not a toll-free number. Comments should be received by no later than 5 p.m., February 2, 2007.
For more information about the type of information the DOL is seeking, you can go to this web page.
W&L Student Argues Black Lung Case to Fourth Circuit
Third-year Washington & Lee law student Kate Speiker (foreground) argued yesterday a black lung case to the Fourth Circuit Court of Appeals. She became involved in the case through W&L's Black Lung Legal Clinic, and is being supervised by Mary Z. Natkin (background), Professor and Director of the Clinic.
- Ann C. Hodges, Strategies for Combating Sexual Harassment: The Role of Labor Unions, 15 Tex. J. Women & L. 183 (2006).
- Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. Rev. 1 (2006).
- Mitchell H. Rubinstein, Altering Judicial Review of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235.
- David J. Doorey, Who Made That? Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation, 43 Osgoode Hall L.J. 353 (2005).
- Marilee L. Miller, The Employer Strikes Back: The Case for a Broad Reading of Title VII's Bar on Retaliation, 2006 Utah L. Rev. 505.
Recently-Published Scholarship: The Labor Lawyer
- Rod M. Fliegel (top left) & Justin T. Curley (top center), Evaluating Eligibility for FMLA Leave: Federal Case Law Underscores The Need For Informed Decision Making, p. 1.
- Robert Rachal (top right), Russell L. Hirschhorn, & Nicole Eichberger, Cases and Issues in Cash Balance Plan Litigation, p. 19.
- Amy J. Zdravecky (bottom left), If I Only ‘Had A Brain’. . . . I Could Figure Out The Contours of Concerted Activity Versus Other Competing Rights”: Quietflex Manufacturing and Its Ten-Factor Balancing Act For Determining How Long A Protected Concerted Work Stoppage Can Continue On The Employer’s Premises, p. 69.
- Sam Heldman (botom center) & Hilary E. Ball (bottom right), Quietflex Manufacturing and The Unpredictable Case-By-Case “Balancing” Of Section 7 Rights: “Liberty Finds No Refuge in a Jurisprudence of Doubt, p. 97.
November 30, 2006
DePaul Professor Loses Bid to Have FBI Files Expunged
The Chronicle of Higher Education has an article (subscription required) on a DePaul professor who sought to have FBI files on him from the early 1970s erased. Both the district court and the 7th Circuit found for the FBI under the federal Privacy Act and now the Supreme Court has refused to hear the professor's appeal.
Here is some more detail about the case from the article:
The professor, Mahmoud Cherif Bassiouni, had sued the Federal Bureau of Investigation, arguing that the agency should expunge its records on him, in part because they describe actions that are protected by the First Amendment. The federal Privacy Act of 1974 prohibits agencies from keeping records describing such actions, with some exceptions.
Mr. Bassiouni also argued that the records, which he received in 2001 after filing a Freedom of Information Act request, were outdated and inaccurate. The records have to do with Mr. Bassiouni's activities in the early 1970s.
A federal district court in Chicago initially ruled in favor of the FBI, and the U.S. Court of Appeals for the Seventh Circuit upheld that judgment in January, noting an exemption in the Privacy Act for records that are "pertinent to and within the scope of an authorized law-enforcement activity."
The same professor had also sued the CIA in previous years and also lost that case.
Diversity Training Not Such A Good Thing?
Shout out time. There is an interesting new blog that Time Magazine has just launched called Work in Progress. The blogger is Lisa Takeuchi Cullen, who is a New York-based staff writer at Time. She writes about workplace, business and society trends for the magazine and Time.com. Welcome to the labor and employment blogging world, Lisa!
In any event, Lisa has a very provocative post today which points to a study that questions whether workplace diversity training has any efficacy. She wrties:
Therein lies the proof: these expensive and time-consuming training programs simply don't work in moving minorities and women into upper management. Those are the findings of a new study published in the American Sociological Review. Worse, it's apparently the first time anyone's actually bothered to check.
Three academics--Frank Dobbin, professor of sociology at Harvard, Alexandra Kalev of the University of California, Berkeley, and Erin Kelly of the University of Minnesota--did bother. They mined 30 years of employment data from 700 companies across nine industries to study the effects of programs to address a chronic shortage of minorities in business's upper ranks.
Those programs typically fall into three categories: diversity training that seeks to change the behavior and attitudes of managers; mentoring or networking; and task forces or staff delegated specifically to help retain and promote minorities and women.
Diversity training aimed at tamping bias among managers may actually make things worse: these programs typically were a 6% decrease in the proportion of black women in management.
Definitely food for thought. Lisa suggests that diversity task forces might be better, as their is more doing and less powerpointing.
Lesbian Fire Chief Recommended To Be Fired For Harassment and Discrimination
Update (12/24): The fire chief was demoted, not fired.
Here's an interesting piece from yesterday's Washington Post concerning a controversy surrounding the first lesbian, big-city fire chief.
A city panel [in Minneapolis] recommended Tuesday that officials fire Bonnie Bleskachek, the nation's first openly lesbian big-city fire chief, in the wake of firefighter lawsuits accusing her of harassment and discrimination.
Bleskachek, 43, was hailed as a trailblazer when she was promoted to the top job two years ago, but her tenure has been troubled.
Three female firefighters have sued, alleging various acts of discrimination and sexual harassment. Two of the lawsuits were settled. Earlier this month, a male firefighter brought another lawsuit, alleging he was denied advancement because he is male and not gay.
A city investigation is ongoing. This summer, a separate investigation by the city's Department of Civil Rights into a 2003 complaint by a male firefighter found it "likely" that the department gave preferential treatment to lesbians or those who socialized with them.
I have to say that my first thought was that this was just about a bunch of disgruntled employees who did not want a lesbian representing their fire department. But I am somewhat surprised that the city's own civil rights department found that it was likely that she gave preferential treatment to those who were also lesbian or their friends.
I guess anything is possible, including reverse-sexual orientation discrimination, but I just get the sense that a lot more is going on here that is not being reported.
November 29, 2006
Ontiveros on Harassment of Female Farmworkers
Maria Ontiveros (San Francisco) has posted on SSRN her forthcoming piece which will appear as a chapter in the book Multiple Voices: Reworking Women's Labor in the Global Economy. The piece is entitled: Harassment of Female Farmworkers - Can The Legal System Help?
Here is the abstract:
This paper provides an in depth and highly textured description of "sexual harassment" as experienced by female farmworkers in California. It explains how the harassment is affected by the extremity of the consequences she faces if she does not comply with the harassment; the structural difficulties in the reporting of and response to these incidents of sexual harassment; the sexualization of migrant women; the cultural factors that influence the harassment; and the fluidity of her workplace. It then critiques both current legal doctrine and current feminist theories of sexual harassment as inadequate to address these workers' concerns. It suggests an alternative, contextual approach to "sexual harassment" that would better help female farmworkers, as well as provide a more satisfactory theoretical framework for all female workers. This paper will appear as a chapter in the book Multiple Voices: Reworking Women's Labor in the Global Economy, edited by Sharon Harley and Lynne Bolles, and to be published by Rutgers University Press.
Second Circuit on Discretionary Firestone Language and SPDs
Ross Runkel in his most recent Employment Law Memo has a write-up on an interesting ERISA denial of benefits claim case out of the Second Circuit.
In Tocker v. Phillip Morris, No. 04-5904 (2nd Cir. Nov. 22, 2006), the court considered a situation in which the company failed to place the necessary discretionary Firestone language into its plan's summary plan description (SPD), but nevertheless sought and received arbitrary and capricious review of a plan administrators benefit determination (involving the calculation of pension credits) based on discretionary language in other ERISA plan documents.
The court said that the absence of the Firestone language in the SPD was not fatal as long as the appropriate language could be found in other plan documents.
Ross describes the court's analysis thusly:
The court held that "[t]he arbitrary and capricious standard of review is warranted where the plan documents provide for discretionary authority, the summary plan description does not contain any conflicting language, and the applicable statutes and regulations do not require that the SPD contain provisions addressing the issue." The court noted that "those of our sister circuits to have considered the issue have reached the same conclusion [more particularly, the 8th, 9th, and 11th Circuits]." Since the trial court correctly applied the appropriate standard of review, the court affirmed as to the pension credit claim.
I have to say that I disagree with the court's conclusion. The SPD is meant to provide information to plan participants and beneficiaries in lay terms about their benefits and the procedures for obtaining those benefits. An individual should not have to dig through complicated plan documents to discover the appropriate judicial review standard once his or her benefit claim has been denied. They should only have to look in the SPD and if the appropriate language is not in there, they should be able to rely on the more favorable judicial review standard.
November 28, 2006
The “Dilbertization” of America and Desk Rage
Are you a stressed-out worker in a crowded, noisy cubicle and just can't take it anymore? Then here's a story from MSNBC which tells you that you are not alone in suffering from "desk rage."
Desk rage manifests itself in many different ways:
Some desk-ragers “go postal,” screaming, cursing, trashing office equipment, even assaulting others. But desk rage also manifests as a slow boil that leads to gossiping at the water cooler, backstabbing, poor productivity, abusing sick days, stealing supplies or becoming irritable or depressed. Some people simply get fed up, stop communicating, put on a headset and emotionally “check out.”
So what's one possible solution according to the MSNBC article?:
In August, [National Seminars] group introduced — by popular demand — a new workshop titled “How to Manage Emotions and Excel Under Pressure” that’s aimed at helping companies combat desk rage. Human resources personnel asked for the course to help deal with office temper tantrums and other destructive work behavior.
All joking aside, preventative maintenance, including in the form of workplace seminars, is an important part of a well thought out workplace legal strategy and helps avoids workplace violence, sexual harassment, and other inappropriate workplace behaviors.
6th Cir: Tuck in Those Shirt Tails!
Robert Loblaw at Decision of the Day brings to our attention this interesting public employee dress code/First Amendment free speech case decided yesterday by the Sixth Circuit Court of Appeals.
In Roberts v. Ward, 05-6305 (6th Cir. Nov. 27, 2006), the court considered dress code rules that required Kentucky park employees to tuck in their shirts and cover up their tattoos from a First Amendment expression perspective.
As Robert observes, the court found no First Amendment violation because:
The employees’ reluctance to tuck in their shorts is a matter of personal comfort, not a matter of public concern protected by the First Amendment. A trickier question is whether one of the plaintiffs who wants to show off his Navy tattoo has stated a First Amendment claim. The Court explains that although the plaintiff may have a First Amendment right to express his support for the military, the plaintiff’s desire to show off his tattoo can also be fairly viewed as a personal one.
Personally, I would have not based the holding of this case of the increasingly bizarre distinctions being made between what is a "matter of public concern" and what is a "matter of private interest." Instead, using a Pickering constitutional balancing, I would have likely resolved this case by finding that whatever First Amendment right the employees have in their expression is outweighed by the efficiency concerns of the employer in maintaining its image and credibility in the community.
Supreme Court Sends Back ERISA Denial of Benefits Cases to Ninth Circuit
A number of months ago, we wrote in a previous post about the Ninth Circuit Court of Appeals en banc decision in Abatie. Abatie concerns the proper standard of judicial review in an ERISA denial of benefit claim case when the plan administrator is acting under a conflict of interest.
Fuguerre of the Blogging Employee Benefits Blog read the decision in Abatie this way:
[T]he 9th calls for a case-by-case “indefinite” abuse of discretion review that weighs conflict on the basis of the particular facts and circumstances. The influence of a potential conflict is to be taken into account, without first requiring the participant to show presence of a serious conflict. Although the burden is not necessarily passed back to the plan administrator, the court suggests that “a conflicted administrator, facing closer scrutiny, might find it advisable to bring forth afirmative evidence that any conflict did not influence its decisionmaking process….”
In light of this decision in August, the Supreme Court yesterday sent a similar ERISA case, Metropolitan Life Insurance v. Hawkins-Dean, 04-55277, 161 Fed. Appx. 684 (9th Cir. 2006) (Westlaw password required) (here is the petition for cert.) back to the Ninth Circuit for reconsideration under this new conflict of interest standard.
It will be interesting to see if the decision of the previous panel in Hawkins-Dean to overturn the judgment of the plan administrator will be upheld by the new panel in light of the new approach outlined by the Ninth Circuit in Abatie.
Hat Tip: SCOTUSBlog
November 27, 2006
Early Reports on Ledbetter Supreme Court Oral Argument
Update: Here is the Ledbetter oral argument transcript from today. Here's a quote from Justice Scalia from the transcript that I think best shows the way the Court is heading in this case:
JUSTICE SCALIA: I don't really see a vast difference between a promotion and being elevated to a higher pay grade. I mean, there may be no different responsibilities but it's a single act of discrimination: "No, you're not going to move up to the next pay level." I don't see why that's different from "no, you're not going to move up to the next job."
Well, as reported in a previous post, the oral argument in the pay discrimination case of Ledbetter v. Goodyear took place today.
Here are some early reports of that argument from the AP:
Justices engaged in a lively, but inconclusive debate over how to apply a 180-day deadline for complaining about discriminatory pay decisions under Title VII of the federal Civil Rights Act of 1964.
Eight justices joined in the questioning. Justice Clarence Thomas was, customary for him, silent, but he could play a pivotal role in deciding the case. Thomas once was chairman of the Equal Employment Opportunity Commission, which is responsible for investigating workplace discrimination claims.
Applying the 180-day deadline to decisions made years ago makes no sense in a situation in which the disparity grew over time, Justice Ruth Bader Ginsburg said.
Early on, "there is no reason to think there is going to be this inequality," she argued.
But Chief Justice John Roberts was skeptical that employees could "challenge the discrimination 15 years later."
Nothing to say exactly how the court will come out based on the above, but I too think that Justice Thomas will play a decisive role in this case in finding, consistent with the Morgan decision of four years ago, that this is a discrete act of discrimination case and Goodyear should prevail. It might, however, only be a 6-3 or 5-4 decision because other Justices, like Justice Ginsburg, might see this as a case in which a disparity in employment terms grows over time, and thus does not take place on any particular day. Hat Tip: How Appealing PS
Nothing to say exactly how the court will come out based on the above, but I too think that Justice Thomas will play a decisive role in this case in finding, consistent with the Morgan decision of four years ago, that this is a discrete act of discrimination case and Goodyear should prevail. It might, however, only be a 6-3 or 5-4 decision because other Justices, like Justice Ginsburg, might see this as a case in which a disparity in employment terms grows over time, and thus does not take place on any particular day.For further commentary on this case and its importance, see this FindLaw piece by Joanna Grossman (Hofstra) and Deborah Brake (Pitt), who wrote an amicus brief in support of the plaintiff in Ledbetter.
Hat Tip: How Appealing
Smith on Regulatory Reform for Equality Laws to Address Work-Family Conflict
Belinda Smith (Sydney Law) has posted on SSRN her forthcoming piece in the Sydney Law Review entitled: Not the Baby and the Bathwater - Regulatory Reform for Equality Laws to Address Work-Family Conflict.
From the abstract:
With the Work Choices transformation of the Australian industrial relations landscape we have seen the federal government confirm that it is not willing to regulate for family-friendly worker entitlements or workplace conditions directly, instead relying upon market and social forces to deliver outcomes within a decentralised regulatory framework. If we acknowledge the current political reality that legislation and awards are not likely to be used to establish family-friendly work conditions such as part-time and flexible hours, paid parental leave and family leave, what alternative regulatory mechanisms are available?
Given the gender dimension of work-family conflict, our federal sex equality laws - Sex Discrimination Act 1984 (Cth) and Equal Opportunity for Women in the Workplace Act 1999 (Cth) - have proven to be of some use in prompting greater family-friendliness in workplaces. However, the regulatory tools offered by these laws are not up to the task. In this article, I draw on new regulatory scholarship to explain the weaknesses of our current equality laws, and then to propose a new regulatory model that holds promise for better prompting, facilitating and holding accountable corporate initiatives to establish sustainable, family-friendly work environments.
This piece makes clear that Australia is dealing with many of the same workplace flexibility issues that we are currently seeking to address here in the United States. It is always a useful exercise to consider comparative law pieces such as this one to get further insight into how we might better our own employment laws.