Saturday, December 9, 2006

Top-5 Employment SSRN Downloads

New DOL Opinion on Overtime for Financial Advisors and Stockbrokers

Ny_exchangeUpdate (12/27): Here is the actual opinion letter.

Rosario Vega Lynn at the New Mexico Labor and Employment Law Blog points out that the Department of Labor (DOL) Wage and Hour Division has issued a yet-to-be published opinion letter finding that certain financial advisors and stockbrokers who receive a guaranteed draw plus commission are not entitled to overtime compensation.

Rosario explains:

The employer requesting the opinion from the DOL described the duties the registered representatives to include collecting clients’ financial information (including assets, income, debts and other liabilities, cash flow and tax status), analyzing the information, comparing and evaluating possible investment options, and identifying investment strategies and potential investments based on their knowledge of market conditions and clients’ particular circumstances. 

According to the DOL, the employees fall within the administrative exemption of the FLSA, and therefore would not be entitled to overtime pay. The Code of Federal Regulations allows an administrator to be exempt as long as the salaried employee’s primary duty must be non-manual work, directly related to the management or general business operations of the employer or the employer's customers, and he or she must exercise discretion and independent judgment with respect to matters of significance.

The DOL Opinion letter is dated November 27, 2006.


December 9, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Top-5 Labor SSRN Downloads

Top-5 International Employment & Labor Law SSRN Downloads

Candidate Wal-Mart

Walmart_1_12 Interesting article by Kris Hudson in the about how Wal-Mart is aggressively trying to remake its public image by running a PR campaign similar to a political candidate. Of course, part of this is related to its continuous run-ins with the labor movement:

For years Wal-Mart did little to promote itself as a positive social force, believing its low prices would speak for themselves. But as it mushroomed to become one of the world's biggest companies -- with 6,700 stores and $312 billion in sales last year -- it increasingly felt the sting of public criticism and pressure to fight back.

The pressure grew last year when unions started two organizations to hammer Wal-Mart: the Service Employees International Union's Wal-Mart Watch and, funded by the United Food and Commercial Workers union. At Wal-Mart's annual meeting on June 3, 2005, Mr. Scott said: "Your company is the focus of one of the most well-organized and well-financed corporate campaigns in history...A coalition of unions and others are spending over $25 million this year alone to try to do damage to this company."

The battle lines have been drawn.  Expect there to be a lot more employee and customer friendly initiatives by Wal-Mart like the recent $4 prescription drug plan and also a lot more organizational efforts by unions.

Not to be too melodramatic, but one might even say that in Wal-Mart the future of unionization in this country lies.

Hat Tip:  Steve Sholk


December 9, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Top-5 Benefits/Compensation//Pension SSRN Downloads

Friday, December 8, 2006

Recently-Published Scholarship

Hirsch_3 Zelinsky Bloom_3


  • Jeffrey M. Hirsch, Taking State Property Rights Out of Federal Labor Law, 47 B.C. L. Rev. 891 (2006).
  • Edward A. Zelinsky, Maryland's "Wal-Mart" Act: Policy and Preemption, 28 Cardozo L. Rev. 847 (2006).
  • Anne Bloom, "Milking the Cash Cow" and Other Stories: Media Coverage of Transnational Workers' Rights Litigation, 30 Vermont L. Rev. 179 (2006).

Notes & Comments

  • Jennifer Schechter Sharrett, Refining the Production Burden for "Regarded As Disabled" Claimants, 28 Cardozo L. Rev. 991 (2006).
  • April Szabo, Don't Let the Bed Bugs Bite: Employer Liability for Sexual Favoritism in California, 28 Whittier L. Rev. 463 (2006).


December 8, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

New Edition of Willborn, Schwab, Burton, and Lester Employment Law Casebook

Casebooks_1 Congratulations to Steve Willborn (Nebraska), Stewart Schwab (Cornell), John Burton (Rutger, Labor Relations), and Gillian Lester (Berkeley,) on the new Fourth Edition of their widely adopted Employment Law: Case and Materials (Lexis-Nexis 4th ed.).

Here's more about the new edition from the LERA listserv:

The book covers a wide range of topics, including employment at will, employee privacy rights, enforcement of noncompetition clauses, discrimination, wages and hours legislation, employee benefits, including health insurance, workers’ compensation, occupational safety and health, and enforcement of employment rights through arbitration and the courts. This edition is au courant, as demonstrated by the new chapter on leave time.

The casebook is accompanied by new editions of the statutory supplement and the teacher’s manual. You can view the Table of Contents at The new chapter on leave time is also there. LexisNexis, the publisher, will make PDF versions of the entire casebook available for review this month (December 2006). You may contact Sean Caldwell (sean.m.caldwell@lexisnexiscom) for access to the PDF files. The casebook, the statutory supplement, and the teacher’s manual will be available for distribution in January. The new edition will thus be available in time for spring classes. Please contact Lisa Hughes ( / 518-487-3024) to request a review copy of Employment Law: Cases and Materials.


December 8, 2006 in Book Club | Permalink | Comments (0) | TrackBack (0)

Moss on Age-Based Mandatory Retirement at Large American Law Firms

Scott Moss, over at PrawfsBlawg, notes today's New York Times story on the mandatory retirement of partners at big U.S. law firms, and shares his thoughts.  One conclusion: mandatory retirement is "just younger lawyers grabbing business from older lawyers" -- a thesis entirely consistent with Rebitzer & Taylor's explanation for the up-or-out track for big-law-firm associates.


December 8, 2006 | Permalink | Comments (0) | TrackBack (0)

EBSA: Most HSAs Not Covered by ERISA

Hsa_1_1 Benefits Alert from the Alexander Hamilton Institute has this interesting piece from its December 7th Newsletter about two recent opinions from the Employee Benefits Security Administration (EBSA) about whether health savings accounts (HSAs) constitute employee benefit plans under ERISA. 

The answer in most cases appears to be no:

In two recently released Field Assistance Bulletins, the Employee Benefits Security Administration (EBSA) has concluded that, provided employers' participation with health savings accounts (HSAs) is minimal, HSAs won't be covered under Title I of ERISA as an employee welfare benefits plan. The EBSA has thus removed a critical impediment to employers that had been leery of offering HSAs to employees.

More specifically:

The EBSA noted that while employer contributions are usually an important factor in determining whether a benefit is an employee welfare benefit covered under Title I of ERISA, it said that employer contributions aren't the only factor. More important, the EBSA said, is that HSAs are personal health care savings vehicles, not a form of group health insurance. The EBSA did stress, however, that the high-deductible health plan used for HSAs is probably covered under ERISA as an employee welfare benefits plan.

So high deductible health plans (HDHPs) are most likely covered by ERISA, but not stand-alone HSAs,
established voluntarily by individuals.

You can read the two Field Assistance Bulletins here and here.


December 8, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (1)

Up-or-Out at Law Firms

Rebitzer Taylor Images_94



Aaron Rutkoff, of The Wall Street Journal Online, writes about a new explanation for the up-or-out culture of large American law firms:

The American law firm has some unusual labor practices. Junior employees, recruited and cultivated at great effort and expense to the firm, either make partner after years of hard work, or they're asked to leave -- if they haven't yet done so on their own -- at which time they're replaced by another fleet of young lawyers.

Up to now, many economists have argued that the privileges and financial rewards of partnership drive the fearsome up-or-out competition. The quest for partnership is like an elimination tournament, the theory goes, which pushes young lawyers to invest time and energy developing valuable skills. Partners can wield the up-or-out mechanism as both carrot (i.e. "you made partner!") and stick (i.e. "you're fired!"), assuring that ambitious associates work their tails off to become productive lawyers.

But economists James Rebitzer (left) and Lowell Taylor (right) explain the up-or-out system differently. For them, the system is a natural solution to a property-rights problem. Law firms, in their view, contend with a constant challenge: protecting their only real assets, relationships with clients. And any dissatisfied attorney can, at least theoretically, walk away with those assets by stealing clients. That's why firms need to jettison top attorneys whom they aren't letting into the partnership.

In their new paper, When Knowledge Is an Asset, to be published next year in the Journal of Labor Economics, Messrs. Rebitzer and Taylor argue that it's law-firm partners' desire to protect their "knowledge assets" that maintains the law firms' unusual and fragile labor structure.

Rutkoff's article is Why It's Still Up-or-Out for Associates at Big Law Firms.

December 8, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, December 7, 2006

Criminalizing Construction Site Safety Violations

Hardhat For years, many observers have criticized the Occupational Safety and Health Act (OSHA) as not containing sufficient punitive measures to deter employers from engaging in unsafe workplace practices.  The state of affairs is particularly bad in the construction industry.

After a particularly deadly accident in Massachusetts involving scaffolding, lawmakers have decided to take matters into their own hands and propose criminalizing certain construction site safety violations (via

In the wake of the April 2006 collapse of a scaffold in downtown Boston, which killed two construction workers and a passing motorist, Bay State lawmakers are taking a long, hard look at worksite safety violations and proposing jail time for companies that dismiss monetary sanctions as part of the cost of doing business.

If such criminal penalties had been in effect at the time of the Boston scaffolding collapse, the managers of the company involved, Bostonian Masonry, would have faced up to 21/2 years in prison. Currently, the company's only sanction is a fine of $119,000, issued by the federal Occupational Safety and Health Administration (OSHA).

One of the sponsors of this new legislation stated that construction firms view OSHA fines as part of the cost of doing business, "[b]ut criminal prosecutions will get their attention where monetary fines can't."


December 7, 2006 in Workplace Safety | Permalink | Comments (2) | TrackBack (1)

Congress and 401(k) Fees

401k_2_8 The next (current?) round of ERISA class action lawsuits will allege that plan fiduciaries do not properly pick mutual funds with reasonable fees for employees' 401(k) plans, leading to less investment return for participants (the previous round concerned so-called ERISA stock drop litigation). 

According to Jerry Kalish at The Retirement Plan Blog, the new Congress is likely to take steps to insure that employees receive more information about mutual fund fees:

Yesterday’s article in the San Francisco Chronicle, Dems set to take on pension, health industries, reported that Rep. George Miller, D-Cal., said the House Education and the Workforce Committee that he is in line to chair under the new Democratic-controlled Congress should hold hearings next year to examine the fee issue.

Congressman Miller has said more specifically in this regard:

It's critical that workers' hard-earned savings not be wasted on excessive fees. Workers need complete, accurate and clear information about the total cost of different investment options so they can choose the ones that are best for them.

To learn more about the 401(k) mutual fund fee situation, check out the Government Accounting Office report, Changes Needed To Provide 401(k) Plan Participants and the Department of Labor Better Information on Fees, in which the GOA lays out disclosure and conflict of interests proposals to protect employees from excessive fees.


December 7, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Performance Review Software

Images_93 Michel Totty, in The Wall Street Journal Online, writes of new computer software designed to help managers standardize performance reviews:

Even a diligent supervisor might benefit from software that could help figure out whether Dick in accounting "meets" or "exceeds" expectations in leadership ability, or whether Jane in sales deserves an overall rating of 3.5 or 4.5 if she consistently beats monthly sales targets but shows up late for staff meetings.

This kind of help is a lot closer than many managers realize.  New software promises to make the annual performance review easier and faster, while assuring top executives that employees are being rated consistently on skills and objectives that are in line with overall corporate goals.  The tools, usually part of a suite of performance-related applications, can coach bosses through the appraisal process, help them calculate scores and offer tips for writing reviews.  At the same time, they provide reports on who has and who hasn't completed their reviews, along with a full picture of the capabilities, experience and accomplishments of the entire work force.

Companies offering such software include Halogen Software, Inc. of Ottawa, and Kenexa Corp. of Pennsylvania, and SuccessFactors, Inc. of California.


December 7, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 6, 2006

Some Elite Lawyers No Longer Running the Rat Race

Ratrace More elite attorneys are deciding to do legal temp work and are apparently enjoying the new lifestyle according to this post yesterday on the Wall Street Journal Law Blog:

A New York-based company called Axiom Legal Solutions Inc. targets lots of graduates of elite law schools and refugees from top firms who may have grown tired of billing 2200 hours a year, but who don’t want to take a full-time in-house job or abandon legal practice entirely. Once hired, lawyers get sent out to clients, where they might spend anywhere from several days to several months or more working on legal projects. Temp work gives them time a better work-life balance, yet still offers a reasonable salary and a rewarding way to use their education, the lawyers say.

The full article by Ashby Jones in can be accessed here.

These non-prestige obsessed individuals have probably come to the conclusion that even if you win the law firm rat race, you're still a rat.


December 6, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Colker on Anti-Subordination and Disability

Colker_ruth Ruth Colker (Ohio State) has posted on SSRN her forthcoming piece in the Notre Dame Law Review entitled: Anti-Subordination Above All: A Disability Perspective.

Here's the abstract:

An integrationist perspective underlies federal law and policy in the areas of education, institutionalization and voting for individuals with disabilities. Professor Colker argues that an integrationist perspective historically evolved in response to subordinating, stigmatizing and degrading disability-only policies. Extending her 1986 work on the appropriateness of an anti-subordination perspective for the fields of race and sex discrimination, she argues that an anti-subordination perspective should also guide the field of disability discrimination. She contends that the measure of equality should be anti-subordination rather than integration. Disability-only policies can serve an effective role in the disability civil rights movement and should not be dismissed as 'inherently unequal'.

A certainly interesting view about the purposes of disability discrimination law and one that has important implications for not only how the ADA is interpreted in the employment context today by courts, but also for how disability law might be modified by Congress in the future.


December 6, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Finkin on Comparative Labour Law

Mfinkin_7 Congratulations to Matt Finkin (Illinois) who has just published a chapter in The Oxford Handbook of Comparative Law (Oxford Univ. Press, eds. Reimann & Zimmermann).  Matt's Chapter is entitled, not surprisingly, Comparative Labour Law.

From the Chapter Introduction:

The following proceeds in four stages.  It will first take up the emergence of labour law and its comparative offspring as a discipline.  It will next provide a crude taxonomy of comparative labour law scholarship.  Third, it will treat the role comparativism has played in the development of national labour policy from the nineteenth century to the present.  Fourth, and to come full circle, comparative study will be situated with respect to the contemporary quandary of labour law as discipline.

Congratulations Matt on this fine and important accomplishment.


December 6, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Notice Required For Employee Stock Diversification Rights Under PPA


Deloitte's December Washington Bulletin has this following piece about the notice required for employee stock diversification rights under the Pension Protection Act of 2006:

On December 1, 2006, the Treasury Department and the IRS released Notice 2006-107 on the diversification rights of plan participants and beneficiaries who hold publicly traded employer securities in their employer’s retirement plan accounts. This diversification rights notice, required by the Pension Protection Act of 2006, describes the new rights and provides transitional guidance, pending the issuance of regulations.  The Department of Labor has stated it will not require the diversification of rights notice before January 1, 2007.  IRS Notice 2006-107 includes a model diversification of rights notice that can be used to satisfy the PPA notification requirement. 

Notice 2006-107 is available here.

Hat Tip:  Debra Davis


December 6, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Robinson Says Entertainment Industry May Be Violating Title VII

Robinson_1 Russell Robinson, UCLA, has conducted an entertainment industry casting study -- in conjunction with the UCLA Chicano Studies Research Center -- which finds that Latino, black, Asian American and Native American actors have few acting opportunities available to them. Professor Robinson notes that these actors may have grounds for legal recourse under Title VII.  The problem is not casting for roles designed for a specific sex or race, he concludes, but limiting casting calls by sex or race when a particular sex or race is not important to the story line.


December 6, 2006 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 5, 2006

PBGC Takes Over Delta Pilots Pension Plan

Deltalogo It looks like the issues surrounding the distress termination on the Delta Pilots Retirement Plan have finally been resolved. 

From WebWire:

Delta Air Lines [yesterday] announced that it has reached a comprehensive settlement agreement that will resolve all issues in connection with the termination of the Delta Pilots Retirement Plan (Pilot Plan) with the Pension Benefit Guaranty Corporation (PBGC), the federal agency charged with insuring the nation’s pension plans under ERISA.

Delta’s Official Committee of Unsecured Creditors also fully supports and has signed the agreement, which has been submitted to the U.S. Bankruptcy Court for approval.

Under the settlement agreement, the PBGC will make a final decision whether to accept the PBGC staff’s recommendation that the Pilot Plan meets the statutory criteria for distress termination. If the agency agrees that the Pilot Plan meets all legal criteria for distress termination, the PBGC will become the Plan’s trustee, establishing a Sept. 2, 2006 termination date for the Plan. In settlement of its claims against Delta and its affiliates, the PBGC will be allowed a pre-petition unsecured claim against Delta of $2.2 billion, and the debtors’ proposed plan of reorganization will provide for the distribution to the PBGC of $225 million in senior unsecured notes.


December 5, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)