December 23, 2006
Employees v. Independent Contractors
Jerry Kalish, over at Retirement Plan Blog, is reminding employers how important it is to make sure employees are treated as employees for tax and benefits purposes. Along the way, he provides a link to a handy IRS publication, Independent Contractor or Employee, that I'll pass along to my students next time we cover the issue in class. It's far from comprehensive, but it's a good place to start.
Top-5 International Employment & Labor Law SSRN Downloads
- Jennifer Gordon, Transnational Labor Citizenship (55).
- Scott Cummings, The Internationalization of Public Interest Law (48).
- Guy Davidov, In Defence of (Efficiently Administered) Just Cause Dismissal Laws (46).
- Rubiana M. Chamarbagwala & Rusty Tchernis, The Role of Social Norms in Child Labor and Schooling in India (30).
- Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications (23).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (793).
- Susan J. Stabile, Is It Time to Admit the Failure of an Employer-Based Pension System? (214).
- Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (131).
- Lily Batchelder (left), Fred T. Goldberg (center), & Peter R. Orszag (right), Efficiency and Tax Incentives: The Case for Refundable Tax Credits (130).
- Michael S. Weisbbach, Optimal Executive Compensation vs. Managerial Power: A Review of Lucian Bebchuk and Jesse Fried's Pay Without Performance: The Unfulfilled Promise of Executive Compensation (79).
December 22, 2006
9th Cir.: No Individual Liability Under ADA
Walsh sued the public employer and individual defendants, asserting claims for disability discrimination under the Americans with Disabilities Act (ADA). The trial court granted judgment on the pleadings in favor of all defendants. The 9th Circuit affirmed.
A primary issue on appeal (an issue of first impression in the 9th Circuit) was whether individuals may be held personally liable for damages under the ADA. The court held that the answer to that question is "no." The 9th Circuit previously held, in Miller v. Maxwell's International, Inc., 991 F2d 583 (9th Cir. 1993), that individuals are not personally liable for damages under Title VII. The court reasoned, "[b]ecause Title I of the ADA adopts a definition of 'employer' and a remedial scheme that is identical to Title VII, Miller's bar on suits against individual defendants also applies to suits brought under Title I of the ADA."
Should State Be Required to List Religious Job Requirements for College in Database?
A small Christian school in Pennsylvania and the state have become ensnared in a legal dispute over whether the state must list religious requirements for college jobs at the college in its jobs database.
Inside Higher Ed reports:
Geneva College, a Christian college in Pennsylvania, is suing the state for refusing to include its jobs — which have religious requirements — in a database of available positions.
In a complaint filed [last] Friday in U.S. district court, lawyers with the Center for Law & Religious Freedom of the Christian Legal Society and the Alliance Defense Fund charge that in the state’s failure to provide employment and recruiting services for positions with religious criteria, the government is denying faith-based organizations their First Amendment rights. The lawyers argue that the First Amendment, along with Title VII of the 1964 Civil Rights Act and the Pennsylvania Human Relations Act, affirm the right of a religious institution to hire employees on the basis of faith.
The case surrounds Pennsylvania’s administration of the federal Workforce Investment Act of 1998, which funds and assists state efforts to provide employment and job training services. The act includes a stipulation that programs receiving federal assistance must comply with a nondiscrimination provision that expressly prohibits religious discrimination and does not exempt religious institutions. According to the complaint, the Pennsylvania Department of Labor and Industry informed Geneva College in 2004 that the department was “precluded from listing a job opening that would limit the applicant pool to members of one faith” on the agency’s CareerLink job database. In 2005, Geneva College administrators were told that they could not include the word “Christian” in job listings, except for jobs with “bona fide” religious requirements (such as to be a priest, one must be Roman Catholic).
Like Robert Tuttle, a professor of law and religion at George Washington University quoted in the article, I think perhaps the biggest hurdle for the plaintiffs is the case of Locke v. Davey (U.S. 2004), which permits states to provide funding to religious colleges in appropriate neutral circumstances, but does not require them. This has been described in the past as the "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses.
In any event, another interesting test case to determine where the line exists between permissible religious accommodation and impermissible state establishment of religion.
December 21, 2006
This employment ad from the Irish Times is courtesy Brian Leiter, at Brian Leiter's Law School Reports:
Madam, - This week's Health Supplement publishes an employment advertisement from Trinity College for a "Lecturer in Conscious Sedation". It is not clear whether this job description refers to the preferred state of mind of the academics who are sought, or to the effect applicants are intended to have on their students. In either case, no doubt there will be a wide range of qualified candidates from within the third level system. - Yours, etc,DAVID LOWE, Abingdon Park, Shankill, Dublin 18.
New Jersey Law Against Discrimination Amended to Protect Transgendered Individuals
From our friends at the New Jersey Employment Law Blog:
The Newark Star-Ledger reports today that the New Jersey Law Against Discrimination has been amended to protect from discrimination transgender[ed] persons.
"The bill (S-362) defines transgendered individuals as having or perceived as having a different gender-related identity or expression than the one typically associated with a person's sex at birth."
The published bill is not yet available, but needless to say, this legislation will have a substantial impact on employment relationships in New Jersey. New Jersey joins Washington State and the City of Indianapolis, among others, in having such legislation.
Previously, at least one other court had defined "sex" in Title VII to cover transgendered individuals, but this legislative action codifies this protected classification into the New Jersey anti-discrimination law, rather than making it a matter of interpretation for the courts.
Job Qualification Standards and the Title VII Prima Facie Case
One of the elements of a Title VII plainitff's prima facie case is that the individual has to be qualified for the job in question. This is generally a light burden, and one does not have to be the best qualified, but merely objectively meet the minimum requirements for the job.
In Scheidmantle v. Slippery Rock University, 05-3850 (3rd Cir., Dec. 19, 2006), the district court held on summary judgment against a female locksmith because two years experience was a prerequisite, but the plaintiff only had training. One problem said the Third Circuit Court of Appeals: other male locksmiths also did not have the two years of training, but were hired for the position the plaintiff was seeking.
Summary judgment motion overturned. The qualification must be one that is actually applied consistently and uniformly by the employer, or a finding of pretext and unlawful employment discrimination is a definite possibility,
Hat Tip: Decision of the Day
Sex-Specific Workplace Dress and Appearance Codes
Patrick Shin has just posted on SSRN his article, Vive la Difference? A Critical Analysis of the Justification of Sex-Dependent Workplace Restrictions on Dress and Grooming. Here's the abstract:
How is it possible that sex-specific workplace dress and appearance codes do not constitute sex discrimination? I argue in this article that the general doctrines of employment discrimination law do not themselves provide a principled basis for distinguishing sex-dependent workplace dress codes from other kinds of policies that would clearly count as sex discrimination, and that supplementary strategies that courts have used to carve out dress and grooming codes as an area of separate concern are either inconclusive or question-begging. I then consider whether the courts' seemingly sui generis approach to sex-dependent restrictions on dress and grooming can be justified on the grounds that they do not implicate the main concerns of equality that the laws forbidding sex discrimination embody. I conclude with a suggestion that the courts' current approaches to sex-based dress and grooming codes depend on a substantive claim that there is positive value in preserving a social state of affairs in which men and women enjoy economic equality but adhere to sex-dependent social norms in respect of their physical appearance.
OSHA Seeks Comments on Standards Revisions
OSHA has announced that it is seeking comments on phase three of its
Standards Improvement Project (SIPs III), the third in a series of
rulemaking actions intended to improve and streamline OSHA standards
and lessen regulatory burdens without reducing employee protections. An
advanced notice of proposed rulemaking is scheduled for
publication in the Federal Register on Dec. 21, 2006.
Through the SIPs III rulemaking, OSHA is seeking to improve its standards by revising confusing, outdated, duplicative, or inconsistent requirements. The revisions are intended help employers better understand their obligations, which will lead to increased compliance, ensure greater safety and health for employees, and reduce compliance costs and paperwork burdens.
Changes being considered include revisions to eleven standards that OSHA has preliminarily identified to be addressed during the SIPs III rulemaking. OSHA is also asking for comments on updating medical testing and industrial hygiene sampling requirements in the various health standards. OSHA is also considering methods to make training requirements in both health and safety standards consistent.
EBSA Issues New Guidance Related to 2006 Pension Protection Act
The U.S. Department of Labor’s Employee Benefits Security Administration yesterday released Field Assistance Bulletin (FAB) 2006-03, which provides guidance relating to individual benefit statements and notices of freedom to divest employer securities.
The Pension Protection Act of 2006 improved the individual benefit statements that ERSIA requires employers to give to participants and beneficiaries. Among the new requirements are more frequent periodic pension benefit statements and new notices regarding participant diversification rights. These new requirements generally are effective for plan years beginning after December 31, 2006.
FAB 2006-03 provides guidance on form, manner, content, and timing requirements pertaining to individual benefit statements. The FAB also provides guidance on the extent to which furnishing the first individual benefit statements can satisfy diversification notice requirements.
December 20, 2006
Contested Issues in Employment Arbitration
Several employment arbitration cases released yesterday raise issues on which courts are split:
- Can an employer use an arbitration agreement to shorten a statute of limitations? The North Carolina Court of Appeals, in an unpublished decision involving an employee's breach-of-contract claim, says yes. The court upheld a requirement that a request for arbitration must be filed within 180 days of a dispute, notwithstanding a statutory three-year limitations period on contract claims. The court noted that some statutory employment claims have a 180-day limitations period under North Carolina law, and held that this indicated that a 180-day filing requirement was not per se unreasonable. The court also noted, however, that the agreement containing the arbitration clause in this case had been individually-negotiated between the employer and employee, and that the employee had successfully excised some of the clauses the employer had originally written. This leaves open the possibility that the court might rule differently on an arbitration agreement that was imposed by the employer on a take-it-or-leave-it basis. The case is Morgan v. Lexington Furniture Industries, Inc., No. COA06-1, 2006 WL 3717555 (N.C. App. Dec. 19, 2006) (Westlaw password required).
- Can an employer use an arbitration agreement to forbid employees from bringing claims in class actions? Yes, says a California Court of Appeal. An employee brought a class action claim for unpaid overtime and vacation pay. The trial court ordered that the the class action be dismissed and sent the individual employee's claim to arbitration. The court of appeal, citing precedent stating that class action waivers would only be unconscionable if the effect would be to eviscerate an employee's access to a forum, held that the employee had not shown that the class members could expect "predictably . . . small amounts" of damages, and therefore had not shown that a class action was the only available forum for resolution of the claims. The case is Konig v. U-Haul Co. of Calif., ___ Cal.Rptr.3d ___, No. B190547, 2006 WL 3720248 (Dec. 19, 2006) (Westlaw password required).
- Can an employer impose filing and forum fees, and severe restrictions on discovery, in a case subject to arbitration? No, says a California Court of Appeal in an unpublished decision. The arbitration agreement required the employer and employee to share fees equally, up to a cap determined by the employee's salary. The court rejected an after-the-fact offer by the employer to waive the fee, finding that the fee would have a chilling effect deterring other employees from pursuing legitimate claims. The court also rejected an arbitration clause presumptively limiting the employee to a single deposition, finding that would be inadequate to allow the employee in this case to vindicate the myriad statutory claims she had brought. The case is Tibbs v. Automobile Club of Southern Calif., No. B189149, 2006 WL 3719422 (Cal. App. 2 Dist. Dec. 19, 2006) (Westlaw password required).
December 19, 2006
Are Worktime Visits to Sex-Related Chat Rooms Protected by the ADA?
One employee seems to think so. David Fish at Litigation Blog reports that an IBM employee, fired after he was caught red-handed in a sexually explicit chat room, argued that he suffers from post traumatic stress disorder (from Vietnam) and that he self-medicates in Internet chat rooms. IBM has moved for summary judgment.
Women Belong in the Boardroom
Douglas Branson (Pittsburgh) has just published his book No Seat at the Table: How Corporate Governance and Law Keep Women Out of the Boardroom (NYU Press, 2006). Branson notes a recent Catalyst study showing that women hold 15% of all “Fortune 500" board seats, and that at the current rate of progress it will take approximately 70 years for women to attain equal representation with men on corporate boards.
In his book, Branson argues that neither career counselors nor scholars have
paid enough attention to the role that corporate governance plays in
maintaining the gender gap in America's executive quarters.
Career counselors, he argues, tend to reinforce the notion that females should act like their male counterparts. Instead, Branson suggests, women who aspire to the boardroom should focus on the decision-making processes that nominating committees employ when voting on board membership. He concludes that women have to follow different paths than men in order to gain CEO status, and as such, encourages women to be flexible and make conscious, frequent shifts in their professional behaviors and work ethics as they climb the corporate ladder.
Wagner Moot Court Competition
The topics are out for the NYLS 2007 Robert F. Wagner National Labor & Employment Moot Court Competition. This marks the second year in a row that one of the issues presented tracks an article I published the preceding year. Last year, the issue of how courts define "adverse employment action" in retaliation cases was announced shortly after publication of Adverse Employment Action in Retaliation Cases, 34 U. Balt. L. Rev. 313 (2005) (co-authored with Brian Riddell). This year, the issue of an employer notifying employees of an arbitration "agreement" by email is discussed in my recently-published Contract Formation Issues in Employment Arbitration, 44 Brandeis L.J. 415 (2006).
Public Employers Who Used Pension Funds to Pay for Retiree Health Care Now In Bind
The New York Times has an article today about how the practice of municipalities to use surplus pension monies in the past to pay for retiree health coverage and has now turned into a double problem: underfunded pension plans and no money to pay for rapidly-expanding retiree health care:
Many local governments began turning to their pension funds to help pay for health care for retired public workers in the 1990s. Some are now regretting it.
When the financial markets were producing soaring returns, governments sought to use the gains in their pension funds to help cover rising health costs. Then came years of investment losses and double-digit increases in health care costs.
Now, in some places, money for retiree health care is running out, and money for pensions is dwindling fast, too. Rising medical costs are particularly wreaking havoc on public pension funds in Chicago; Battle Creek, Mich.; and the state of Alaska. They threaten longer-term harm in Cincinnati.
The story goes on to tell about specific problems each of these local governments are facing and suggests that the only way of "[r]elieving the strain on government budgets from rising health care costs will probably mean taking one or more unwelcome steps: tax increases, union givebacks, sales of bonds or public assets, mass-transit fare increases, or increases in the cost of other local services."
I'm not sure exactly what will happen, but the state of public pensions and retiree health care has reached a point that something massive must be done for municipalities to financially survive the looming crisis. And at the very least, governments must start thinking about how they can restructure these benefits programs.
Calculating the One Year Threshold for FMLA Purposes
Among the threshold requirements for an employee to be covered under the Family and Medical Leave Act (FMLA) is that the employee must have been employed for at least one year and have worked at least 1250 hours during the proceeding year.
In Rucker v. Lee Holding Co., No. 06-1633 (1st Cir., Dec. 18, 2006), the First Circuit Court of Appeals considered whether an employee has to be employed consecutively for one year in order to be covered by the FMLA or whether breaks in service during that year are permitted and employees may count previous periods of employment with the same employer toward satisfying the 12-month requirement.
The car salesman in Rucker had worked five years for the company, took five years off, and then was working again for the company for seven and half months when he ruptured a disc in his back.
Both the statute and regulations are silent on this issue, as is the legislative history, so the First Circuit followed language in the regulatory preamble and the view of the Department of Labor in its amicus brief it filed in the case,and found that the year of service for FMLA purposes need not be consecutive and such breaks in service are allowed as long as the employee can cobble together other periods of employment to meet the 12-month requirement.
Hat Tip: Appellate Law & Practice
December 18, 2006
Study: Retirees Having to Pay More For Healthcare
More companies that made generous retiree health care promises to their employees decades ago are now seeking to repudiate these expensive promises and are requiring retirees to pay more of their health care costs.
Workforce Management tells about the most recent study indicating this trend:
With more of the burden of health care falling on individuals, the cost of retiring is escalating, according to a report released Wednesday, December 13, by the Kaiser Family Foundation and Hewitt Associates.
“There is no precipitous drop-off in the immediate future, but at the same time retirees are paying more out of their pockets,” says Tricia Neuman, a vice president of Kaiser and co-author of the report. “Workers and people looking forward to their retirement may not be able to experience this coverage.”
Employers looking to save on retiree health care costs are opting to require retirees to pay more for their health care. In 2006, 74 percent of employers increased the premiums that retirees under 65 must pay and 58 percent of employers raised premiums for Medicaid-eligible retirees. In 2007, 80 percent of the 302 large employers surveyed in the report plan to increase the amount individual retirees pay toward health care premiums.
As the article points, these increased costs in retirement caused by rising health care expenses are leading many older workers not to retire at all or to find part-time work in order to maintain benefits.
Goldscheid on Domestic and Sexual Violence as Sex Discrimination
Julie Goldscheid has posted on SSRN her piece in the Thomas Jefferson Law Review entitled: Domestic and Sexual Violence as Sex Discrimination: Comparing American and International Approaches.
Here's the abstract:
Feminist theory's insights into the ways in which domestic and sexual violence reflects and perpetuates sex-based inequality have been critical in advancing both domestic and international advocacy. This essay, part of a symposium on “The Global Impact of Feminist Legal Theory,” explores the comparative roles those arguments have played. It first surveys the nature of recent reforms in the United States. Despite the fact that many reforms were grounded in arguments exposing domestic and sexual violence as a manifestation of historic sex-based discrimination, the current landscape of legal remedies and social services, with few exceptions, lack an express acknowledgement of domestic and sexual violence as a problem of sex discrimination. Yet the daily experience of domestic and sexual violence survivors continues to reflect sex discrimination's ongoing legacy.
International human rights law contrasts with that of the United States in that it explicitly defines violence against women as a problem of inequality. The essay investigates the impact of that express link by analyzing the steps countries have reported taking to comply with international human rights laws' express anti-discrimination mandates, through the reports of the Special Rapporteur on Violence Against Women. It concludes that international human rights frameworks' structural incorporation of a mandate to address the root causes of domestic and sexual violence holds the potential to ensure that states address prevention and social and cultural transformation in addition to improved social services and criminal interventions.
Not exactly an employment discrimination law piece, but nevertheless an important comparative law piece that should be of interest to anyone concerned about gender issues in the workplace.
Alabama Appellate Court Compels Arbitration of Workers' Comp Claim Against Ryan's
In doing so, the court rejected the employee's claims that: (1) the arbitration agreement lacked consideration because Ryan's could change the arbitration rules at any time (the court found that the non-retroactivity of the rules changes preserved consideration); (2) Ryan's three-month delay in requesting arbitration, during which it obtained discovery from the employee through civil litigation, waived Ryan's right to compel arbitration (the court found that although Ryan's "invoked the litigation process", it had not "substantially invoked the litigation process"); and (3) workers' compensation cases are not subject to mandatory arbitration (the court found that the FAA "does not provide an exclusion for workers' compensation claims").
Perhaps even more importantly, the court did not even bother to address the reasons other courts have given for rejecting the arbitration agreement imposed by Ryan's on its employees. These reasons were discussed by dissenting judge William Thompson. They included: (1) the for-profit nature of Ryan's arbitral service provider, coupled with Ryan's fee structure for arbitration, creates the potential for arbitral bias; (2) discovery is extremely limited; and (3) the process for creating pools of potential arbitrators seems designed to ensure the selection of a defendant-friendly arbitrator:
The individuals in the supervisor and employee pools are neither randomly selected nor chosen by a disinterested person for their skills. Instead, all members of these two pools are chosen by the small number of employers who, like Ryan's, have signed alternative dispute resolution agreements with EDSI: Golden Corral Steak Houses, K & W Cafeterias, Papa John's Pizza, Sticky Fingers Restaurants, The Cliffs at Glass, Inc., and Wieland Investments, Inc. In addition, the rules do not prevent a supervisor of a signatory company from sitting on an adjudication panel with a nonsupervisory employee from the same company, including someone whom the supervisor directly supervises. Further, EDSI has no policy in place that prohibits a signatory company from discussing the arbitration process or specific claims with its employee adjudicators or from attempting to improperly influence its employee adjudicators.
The case is Ryan's Family Steakhouse, Inc. v. Kilpatric, ___ So.2d ___ 2006 WL 3691554 (Ala. Civ. App. Dec. 15, 2006) (Westlaw password required).