December 15, 2006
Court: Nebraska Klan State Trooper Should Not Be Reinstated
Here's a case where one of my prognostications proved to be flat-out wrong, but because it means that a racist Nebraska state trooper won't be getting his job back, I can live with that (from KETV.com):
A Lancaster County judge on Wednesday vacated an arbitrator's ruling that Trooper Robert Henderson should not have been fired.
The state attorney general's office had appealed that decision.
The lawyer for a former state trooper fired for joining a group affiliated with the Ku Klux Klan said on Thursday that a decision hasn't been made whether to appeal the court decision.
More specifically (from News Net Nebraska):
Robert Henderson’s membership in the Knights Party violated Nebraska’s public policy against discrimination, Lancaster County District Judge Jeffre Cheuvront said in the order Wednesday.
The judge said Henderson’s involvement with the Knights Party could create public distrust of the agency. “All citizens must have faith that the enforcement and application of the laws of this State are done impartially and fairly,” Cheuvront wrote.
I have a feeling we will be hearing more about this case in the near future as Henderson's attorney did not feel the judge's ruling adequately addressed his client's First Amendment concerns.
Hat Tip: George Cochran
Retired Husband Syndrome and Who Should Retire First?
Not all spouses look forward to the day when they can spend heaps of time with their significant other in retirement. From SmartMoney.com:
When both spouses work, who should retire first? Consider the question carefully, because the wrong answer could kill you. Seriously. Well, almost. In Japan, for example, so many women have developed stress-related sicknesses as men have left the workforce that a doctor named Nobuo Kurokawa came up with a name for the complex of afflictions, from ulcers and throat polyps to rashes, that he had been diagnosing. He calls it "retired husband syndrome," and he has a basic prescription for women suffering from it.
"Come to therapy," he says. "Then spend as much time as possible away from your husband."
As more women make more money and gain more status and enjoyment from work, retirement decisions require a particular kind of planning, where you evaluate choices as a couple rather than as individuals.
The article provides three fundamental questions couples should ask themselves, including: who loves his or her job more, who has more definite plans for retirement, and what the other spouse thinks.
All sound advice and sure to keep away the dreaded retired spouse syndrome.
Peggie Smith and Home Health Care Workers
Here's a nice piece about some of the great work that Peggie Smith (Iowa) is doing in the area of legal protections for home health care workers.
As more and more Americans turn to in-home health care workers to take care of elderly family members, research from a University of Iowa law professor has found nobody is taking care of the caregivers.
Peggie Smith, an expert in employment law, has found that most home health care workers are protected by few of the federal labor standards that other Americans take for granted.
"For the most part, those government agencies responsible for enforcing labor laws, like the Occupational Safety and Health Administration, have turned a blind eye to home health care workers," said Smith. "The problem the government faces is, how do you regulate the employment relationship of someone who works in a private home?"
So what is to be done?:
Smith has little expectation that Congress or the legal system will change that atmosphere. Instead, she sees some hope in organized labor negotiating with state governments to improve working conditions. To date, unions have organized more than 300,000 home health care workers, and some improvements have been paid, most noticeably in terms of increased compensation and the provision of benefits. However, Smith said that limited progress has been made with respect to health and safety issues.
Kudos to Peggie for all her hard work in this important employment law area.
Fourth Circuit on Relationship Between ERISA Sections 502(a)(1)(B) and 502(a)(3)
Every so often as a professor you actually draft an examination which mirrors issues that are going on in the "real world." Imagine that. Case in point: Korotynska v. Metropolitan Life Insurance, 05-1613 (4th Cir., Dec. 13, 2006).
One of the questions that we spent a lot of time on in employee benefits this past semester was the meaning of "appropriate" within the phrase "appropriate equitable relief" under Section 502(a)(3). Specifically, Varity v. Howe (U.S. 1996), permits individual participants to sue fiduciaries under 502(a)(3) for breaching their fiduciary duties by failing to inform participants, or misleading them, about important changes in the plan. However, there is language in Varity which suggests that such equitable relief under the 502(a)(3) "catch-all provision" is only available if a participant does not have an adequate remedy under one of the more specific provisions under 502(a).
Apparently, the Fourth Circuit in Korotynska was following this language in Varity when it found that since the plaintiff had an adequate claim for denial of benefits under 502(a)(1)(B), relief under 502(a)(3) for breach of fiduciary duty was not appropriate.
This reading of ERISA almost certainly provides less relief to any plaintiff and one has to ask whether providing ERISA plaintiffs less relief in circumstances like these is consistent with the underlying primary purpose of the statute, which is to protect employees' rightful benefits.
Hat Tip: Ross Runkel
December 14, 2006
The First LaborProf Gets a Chair
From Paul Caron at TaxProf:
Rafael Gely has been named Judge Joseph P. Kinneary Professor of Law. Prior to joining the Cincinnati faculty in 2000, Rafael taught at Texas A&M business school and Chicago-Kent law school. He teaches Contracts and Labor Law. His recent publications include:
- Segmented Rankings for Segmented Markets, 81 Ind. L.J. 293 (2006)
- The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 Wis. L. Rev. 1421 (with Michael E. Solimine)
- What Law Schools Can Learn From Billy Beane and the Oakland Athletics, 82 Tex. L. Rev. 1483 (2004) (with Paul L. Caron)
There is no more deserving person. Congratulations, Rafael!
Butt Painting at Work
Folks, you can't (and I didn't) make this stuff up (via the ever vigilant people at FoxNews.com):
A Virginia school system has suspended an art teacher who they say may be setting a bad example for students with his own extracurricular activity — butt painting.
Stephen Murmer, a self-described "butt-printing artist," was placed on paid administrative leave Friday by Chesterfield County Public Schools, a suburban district of about 60,000 students south of Richmond, Va.
Going by the name Stan Murmur, the teacher sells floral and abstract paintings that he calls "anthropometric monotypes" created by plastering his rump and genitals in paint and pressing them against a canvas. His paintings — depicting tulips, tropical flowers and camouflage — sell online for upwards of $900.
1. How do you find a graphic to go with this post (I thought a sample abstract painting was the best I could do)?
2. How long will it be before Joe Slater comes along and explains to us how butt painting is expressive public employee speech?
Michael Green Elected to American Law Institute
Michael Green, who teaches Employment Law & Employment Discrimination (among other courses) at Texas Wesleyan, has been elected to become a member of the American Law Institute. He will be working on the ALI project involving the Restatement of Employment Law, a project that has generated a fair amount of controversy (see Matthew Finkin's Second Thoughts).
December 13, 2006
Final Rules on HIPAA Nondiscrimination
The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA), Internal Revenue Service, and Department of Health and Human Services yesterday announced the publication of final rules that provide guidance in complying with the nondiscrimination provisions of the Health Insurance Portability and Accountability Act (HIPAA). The final rules also provide guidance on the implementation of wellness programs.
HIPAA's nondiscrimination provisions generally prohibit a group health plan or group health insurance issuer from denying an individual eligibility for benefits based on a health factor and from charging an individual a higher premium than a similarly situated individual based on a health factor. Health factors include: health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability.
EBSA also issued updated frequently asked questions at www.dol.gov/ebsa on HIPAA’s nondiscrimination requirements to assist the employee benefit community in complying with the new rules.
The final rules are to be published in the December 13, 2006 Federal Register. The rules will be effective on the first day of the plan year beginning on or after July 1, 2007. For calendar year plans, the new rules generally apply beginning January 1, 2008.
Job Announcement: Institute of Labor and Industrial Relations at the University of Illinois
The Institute of Labor and Industrial Relations [at the University of Illinois, Urbana-Champaign] invites applications and nominations for the full-time position of Assistant, Associate, or Full Professor of Labor and Industrial Relations, assigned to the Labor Education Program. This is an extension education program that offers 80-100 courses annually that enroll as many as 3,000 union leaders and others and are taught at locations throughout Illinois. The successful candidate will pursue a career of research in areas relevant to the labor movement, teach off-campus, and develop and coordinate a series of on-line educational offerings to labor union members and workplace leaders throughout the State of Illinois. This position is based on the main campus in Urbana-Champaign, but the successful candidate will spend significant time on the Chicago campus. Considerable travel around the state is required, although some travel may be replaced by time spent supporting on-line learning.
For full consideration, applications must be received by
February 1, 2007.
For more information, contact Edward Hertenstein, Chair, LEP Search Committee, at this email.
Davis on Do-It-Yourself Retirement
Debra Davis (Reish Luftman Reicher & Cohen) has posted on SSRN her recent piece in the Journal of Labor and Employment Law: Do-It-Yourself Retirement: Allowing Employees to Direct the Investment of their Retirement Savings.
Here's the abstract:
Workers are increasingly encouraged to select the investments in which their retirement savings will be placed. Many in Congress and the Executive Branch advocate the creation of personal accounts in Social Security. As with many retirement plans, workers would be allowed to choose the investment for the amounts allocated to them, although the range of choices may be fairly narrow. The consequences of workers' investment choices will affect society and their employers as well as the individuals. The existing evidence raises questions about whether the individuals are well-suited to handle investment of their retirement savings when confronted with too many choices or too little understanding of markets.
In light of the on-going debates over pension and social security reform in this country, there could hardly be a more timely topic and Debra and her law firm provide some of the best information on this topic out there.
National Disability Law Symposium at UC-Hastings
Here are some of the details:
Panel topics include an overview of the ADA and the state of California law, accommodations in the workplace, access to voting and the courts, class action litigation, and disability and education. The keynote will address how to effectively communicate with people with disabilities, and will be given by Eve Hill, Director, Disability Rights Legal Center and Adjunct Professor, Loyola Law School. Other confirmed speakers include Professors Samuel Bagenstos, Wendy Hensel, Michael Stein, and Michael Waterstone.
Registration by January 5, 2007 is $150. After January 5, the cost is $175. Law students may attend for $25 if they register by January 5, and $40 thereafter.
The Registration Form for the conference is available here.
The Hastings Law Journal is also still accepting submissions on disability law as part of an upcoming symposium issue. Submissions are due by January 2, 2007. For further information on the symposium issue, contact Dria Fearn, Senior Symposium Editor, Hastings Law Journal, at firstname.lastname@example.org.
Is This Job Notice Discriminatory?
From Inside Higher Ed:
When professors at the University of Vermont sent information about a job opening to the American Economic Association this fall about a tenure-track opening, they didn’t think their notice was unusual. After describing the position, the notice said that the university “welcomes applications from women and underrepresented ethnic, racial and cultural groups and from people with disabilities.”
The AEA apparently thought so and deleted the above-quoted language from the notice. The Association's actions have caused a firestorm of criticism in the economics community:
“It’s ironic that an organization that believes in free markets is disrupting the free flow of information,” said Stephanie Seguino, associate dean of the College of Arts and Sciences at Vermont, and until recently the economics chair there. Seguino said that it was “just wrong” for the economics association to have called her department’s notice discriminatory. She said that the economics department was trying to build a diverse pool in a field dominated by white men and that the ad did not suggest any preference in selecting finalists or making an offer, but only wanted to encourage people to come forward for consideration.
Apparently, the AEA is set to revisit its job notice policy next month, but there is no guarantee that any changes will be implemented.
Of course, to the extent that the notice only encourages people from certain underrepresented groups to apply for a position, there should not be an employment discrimination law issue.
December 12, 2006
Who Says ULP Charges Can't Make a Difference?
Of course, a lot of tongue in cheek in the title to this post, but the NBA decided yesterday to go back using its old ball after the players' union filed an 8(a)(5) failure to bargain unfair labor practice charge against the league for failing to discuss with the players the change to the new ball
Some, however, apparently will never be satisfied:
"After playing with an authentic leather ball your whole life and going to a composite was very difficult, but after playing with it every day you become used to it," Nash said. "It's going to be another arduous time for us to adjust back."
Hey, coal miners and steel workers have it tough, but you don't know "arduous times" until you have to play with a synthetic ball for millions of dollars in the NBA?
Paging the NBA public relations department.
Estreicher on Disunity Within the House of Labor
Sam Estreicher (NYU) sent along his recent piece in the Journal of Labor Research entitled: Labor Law Disunity Within the House of Labor: Change to Win or to Stay the Course (pdf file).
Here's the abstract:
In September 2005, six unions representing 5.4 million workers held their founding convention as a new federation independent of the AFL-CIO. Infelicitously named "Change to Win Federation" (CTWF), the new alliance has called for a rededication of union resources and energies towards organizing the unorganized. Although CTWF has occasioned considerable interest and speculations among labor supporters and observers, it is difficult to determine why the break occurred, other than, perhaps, the personal agenda of some of its leaders. An unstated, significant reason may be a desire on the rebels' part to operate relatively free from of "no-raiding" strictures of the AFL-CIO, even though the group disclaims any interest in challenging existing bargaining relationships and has penned "solidarity pacts" with some of its principal AFL-CIO competitors and with state and local units of the federation. Competitive forces are missing in the marketplace for workplace representation services. The new group may reignite the rival unionism that spurred organized labor's marked growth from 1935-1954, but early returns suggest an emphasis on militant posturing and on trendy, implausible themes as "global unionism" and "subcontracting out strikes."
Well, I guess to say that this piece is provocative would understate things. It will be interesting to see how Change to Win responds to this piece and other challenges from critics.
Employee Training and Contingent Workers
Jan Sauermann has just posted on SSRN a new study entitled Who Invests in Training if Contracts Are Temporary? Evidence for Germany Using Selection Correction. Here's the abstract:
The effects of fixed-term contracts on participation and financing of work-related training are analysed with data from the German Socio-Economic Panel (GSOEP). In contrast to previous literature, we especially distinguish between employer- and employee-sponsored training to allow for diverging investment patterns of worker and firm. In order to control for the selection bias arising from different characteristics of individuals with fixed-term and permanent contracts, a bivariate probit model is applied. The main findings are (i), that temporary workers are faced by lower investments, and (ii), that there are no differences with respect to employer- and employee-sponsored training.
Comair Pilots Authorize Strike
Alexander Coolidge writes for this morning's Cincinnati Enquirer that
Comair's pilots overwhelmingly voted in favor of giving their leadership the go-ahead to call a strike if ongoing talks with the bankrupt carrier don't result in a new contract.
A potential strike was authorized by 93.2 percent of the vote, the union said Monday night. Officials did not disclose how many of Comair's 1,600 pilots participated in the balloting.
While the results don't portend an immediate strike, the vote means that the union is edging toward a confrontation with the airline, which is seeking to cut pilot pay to lower costs and get it out of bankruptcy.
December 11, 2006
Eight Circuit on Title VII Prima Facie Case
Thanks to Paul Mollica at Daily Developments in EEO Law for pointing out this interesting Title VII case from the Eighth Circuit which came down this past Friday. In Arnold v. Nursing and Rehab. Center, No. 05-4055 (8th Cir. Dec. 8, 2006), the court considered whether an employer's legitimate job expectations should be considered as part of the plaintiff's initial prima facie case or whether it should be considered as part of the larger pretext showing.
Although there has been some disagreements among the circuits on this issue, the consensus view, followed by the Eighth Circuit in Arnold, is that legitimate job expectations should be considered as part of the pretext case:
Arnold argues that the district court erred by requiring her to show that she performed her job satisfactorily instead of merely requiring her to show that she was qualified. We agree. By requiring Arnold to prove that she executed her duties satisfactorily, the district court 'raised the standard set by the Supreme Court for what suffices to show qualification.' Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2nd Cir. 2001), cert. denied, 534 U.S. 951 (2001)."
This view of what is required in the prima facie case seems right to me. The prima facie burden on plaintiff should be very slight given that its purpose is only to eliminate the most common non-discriminatory reasons for the employer's action and merely sets up an easily rebuttable presumption that the employer unlawfully discriminated against the employee.
Illinois Raises Its Minimum Wage
Following in the path of California, Illinois has passed legislation to raise its minimum wage:
The legislation will increase the minimum wage to $7.50 in July 2007, $7.75 in July 2008, $8.00 in July 2009, and $8.25 in 2010. The legislation awaits the signature of Governor Rod R. Blagojevich, who says he looks forward to signing it .
The state's minimum wage is currently $6.50 per hour.
Hat Tip: HR.BLR.com PS
Mexican Bosses are the Best!
So says this piece from HR.BLR.com:
When asked to rate their bosses on a 10-point scale, American workers give their bosses 7.3 on average--second only to the 7.6 their Mexican counterparts give their bosses, according to a survey by Kelly Services, a staffing firm.
According to the survey, what do American bosses need to work the most on? Communication.
Solution? Start company-wide blogs.
Most Professors Are Off Tenure Track
I knew that more and more schools were turning to so-called "contingent faculty" to teach courses and fill research positions, but the extent to which this trend has progressed is very surprising (from the Chronicle of Higher Education (subscription required)):
The sweeping shift toward non-tenure-track academic labor has been one of the most worried-over trends in American higher education. But it has been charted mostly with broad-brush data, which give little indication of the trend's progress at the institutional level.
With a publication called the Contingent Faculty Index, released this week, the American Association of University Professors has set out to fill in those gaps.
Drawing on data collected by the U.S. Department of Education in 2005, the AAUP has compiled the numbers of tenured, tenure-track, part-time, and full-time non-tenure-track faculty members employed at 2,617 American colleges and universities.
The index's cumulative findings confirm the omens that have loomed large to academic-labor activists for years: Since the 1970s, the proportion of tenured and tenure-track faculty members in the American professoriate has dwindled from about 57 percent to about 35 percent, while the proportion of full- and part-timers working off the tenure track has grown from about 43 percent to 65 percent.
Wow. One wonders whether the response to this increase use of part-time and adjunct professors will be the formation of more, separate unions (like the one we recently posted about at GW) representing the specific interests of these types of faculty members.