Saturday, February 11, 2006

GM Seeks Early Retirements to Provide Vacancies for Former Delphi Workers

Gmhall1 Delphi

I'm not sure there is any precedent for this type of arrangement, but according to the Detroit Free Press:

General Motors Corp. and the UAW are working on an early-retirement program aimed at averting a crippling strike at automotive parts supplier Delphi Corp., according to people briefed on the talks.

The program would create job openings for Delphi workers, particularly at five GM assembly plants.


UAW Vice President Richard Shoemaker has told leaders of union locals that a deal may not come before Feb. 17, when Delphi is allowed to ask a U.S. bankruptcy court in New York to void its union contracts, slash workers' pay and benefits by 60% or more, close plants and cut jobs.

Shoemaker told the leaders at recent meetings in Detroit and Washington, D.C., that if Delphi voided the contract, it would result in a lengthy strike by the union.


Despite those ominous signs, GM and the UAW are negotiating a buyout package to encourage GM hourly workers to retire early and free up jobs for Delphi workers, according to UAW local leaders briefed by Shoemaker.


About 45,000 of GM's 105,000 hourly workers are eligible to retire over the next few years, David Cole, an industry expert who runs the Center for Automotive Research in Ann Arbor, said Friday.


Of the approximately 23,000 UAW workers at Delphi, more than 20,000 have the right to flow back or take jobs at GM if they become available, and if GM workers currently employed or in the jobs bank turn down the opportunity, Delphi said.


February 11, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Pension Lawsuit Filed Against Duke Energy for Cash Balance Plan Conversion

From GreenvilleOnline:

Six former and current Duke Energy Corp. employees, including a Seneca resident, claim the company committed age discrimination and violated pension laws when it made changes to its retirement plan in the 1990s, according to a lawsuit filed in federal court.

The lawsuit, which seeks class-action status and could affect thousands of Duke employees, wants a court-ordered overhaul of the company's retirement plan and an independent auditor to review the plan. It also seeks unspecified restitution for lost benefits and interest.

The lawsuit claims "older workers lost thousands of dollars in the value of their pensions, after putting in decades of work" for the Charlotte-based company when it converted its traditional pension to a cash-balance plan.

"We believe that the conversion of the pension plan was done properly," Duke spokesman Randy Wheeless said Friday. "We are still looking at the lawsuit, reviewing it, but we will be ready to address it as the suit moves forward."

The conversion, the plaintiffs said, trapped employees in "wearaway," in which their cash balances would take years to move ahead of their pension benefits, which were frozen under the old plan.

And since age was factored into the calculation, older employees received less in interest credits than younger workers, the plaintiffs said.

In one example, Henry Miller, a Duke employee from North Carolina and one of the plaintiffs, had accrued pension benefits of $258,000 under the old plan, according to the lawsuit. It said that under the new plan, his opening account balance was $129,000.

I have written before on cash balance plan conversions here.  The recent Register case against PNC in the Eastern District of PA discussed in that post does not bode well for these Duke Energy plaintiffs. That being said,

Th[e Register] holding is in direct opposition to the Southern District of Illinois' finding in Cooper v. IBM Personal Pension Plans, 274 F. Supp. 2d 1010 (S.D. Ill. 2003), which concluded that cash balance plans almost inherently violate the benefit accrual rate age discrimination provisions of ERISA because the employee's benefit accrual must be determined solely in terms of a single life, normal retirement age annuity. 

The Register Court disagreed and concluded that, "the accrual rate should be 'the change in the employee's cash balance account from one year to the next.'"

A decision by a Carolina district court on either side might make its way to the 4th Circuit and add further to a split among the federal circuit courts.  As I noted in my previous post, this circuit split could eventually lead to a Supreme Court decision in this important area of employee benefits law.


February 11, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

MSHA Seeks $16 Million in Fines from Mine Operators

From the AP:

Kentucky mine operator Stanley Osborne has accumulated more than $200,000 in safety fines since the 1980s, but the federal government has not been able to collect the money.

In a new approach, the Mine Safety and Health Administration filed suit against Osborne this month. "We just can't be chasing people around for these collection cases when they should be paying their civil penalties," said Thomas Mascolino, deputy associate solicitor at the Labor Department.

MSHA, part of the Labor Department, was owed more than $16 million in delinquent fines at the end of last year, said agency spokesman Dirk Fillpot. More than $11 million was for violations at coal mines.

The problem isn't new, but it has gained attention following mining accidents that have left 21 miners dead so far this year.

Rick previously posted on this new proactive MSHA strategy here.

My only thought: It's about time. Workplace safety, especially in dangerous industries like coal mining, must be at the top of a company's business priorities in order that safety and health considerations become part of the culture of that company. 

No better way of giving incentives than by actually enforcing safety violation fines against these companies.


February 11, 2006 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Another Morning After Pill Pharmacist Cries Foul

This time, however, the pharmacy at issue is not Walgreens (see post here and here). Target is the target.

Here's the article (from the Catholic News Service):

A pharmacist at a Target store who had religious objections to dispensing the morning-after pill was fired from her job after Planned Parenthood threatened to boycott the chain, according to Americans United for Life.

Target's corporate communications department in Minneapolis said the company "never failed to accommodate" the religious beliefs of pharmacist Heather Williams. It said that company policy, formulated without any involvement by Planned Parenthood, required all pharmacists to ensure that prescriptions to which they objected were filled by another Target pharmacist or at another pharmacy.

Target called the statements made in a news release by Americans United for Life "completely inaccurate and misleading."

Williams has filed a complaint with the Equal Employment Opportunity Commission. Her attorney, Ed Martin Jr. of Americans United for Life, told the St. Louis Review, archdiocesan newspaper, that she is considering further action in state and federal courts.

Of course, this little tete-a-tete between Planned Parenthood and Americans United for Life has always been part of previous disputes. What's interesting here is that they themselves have become part of the story now.


February 11, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

New Zealand: McDonald's Takes on a Union

Although McDonald's does not seem to have much to worry about when it comes to organizational campaigns in the United States, apparently this is not the case in New Zealand:

A group of Auckland McDonald's workers went on strike on Friday despite a threat of being sued by the fast food company.

About 12 workers and 50 supporters picketed the Queen St McDonald's for about an hour and half at lunchtime.

President of the Unite union Matt McCarten says the strike happened after a workers plan to attend a union stop work meeting on Sunday, found they were no longer rostered on to work that day.

Another example of the fact that large multi-national corporations like McDonald's might face very different labor issues outside of the United States.  It will be interesting to see if McDonald's takes a strong, anti-union stance like a number of other large companies in the U.S or seeks some form of compromise.


February 11, 2006 in Union News | Permalink | Comments (0) | TrackBack (0)

Friday, February 10, 2006

Delta Pilots Threaten to Strike

From the AP:

Delta Air Lines Inc. pilots aren't mincing words anymore: The chairman of the union's executive committee said Thursday the pilots will strike if their contract is thrown out as part of the carrier's attempt to impose $325 million in concessions.                   

The chairman, Lee Moak, also told The Associated Press that the airline has informed the union that it believes the pilots' defined benefit pension plan will be terminated.

"If our contract is rejected, we will strike," Moak said in an interview, in his most definitive statement on the subject to date.


The nation's third-largest carrier has said a strike would put the Atlanta-based company out of business.

In response to Moak's comments, Delta spokesman John Kennedy repeated past company statements that the airline hopes to reach a consensual agreement with its pilots.

Better start checking your future airline reservations.


February 10, 2006 in Union News | Permalink | Comments (1) | TrackBack (0)

Live Blogging Continues at LSU Privacy Conference

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On the final day of this enjoyable conference on workplace privacy, the audience was treated to presentations by Michael Selmi (George Washington), Charlie Craver (George Washington), and Anita Bernstein (Emory and New York Law School).

Professor Selmi argued that privacy should not be the central value in the workplace and employees should have very little privacy in the workplace. His talk focused on how we have come to expect too much from the workplace and,as a result, we have invariably received too little.  Professor Selmi contended that we should return privacy rights to outside of the workplace and generally downsize employment and the employment relationship.

Professor Craver asserted that employers talk about privacy when they want to restrict the privacy rights of their employees, such as when they restrict employees from discussing salaries and benefits among themselves or seek protection for their trade secrets.  When employees bring up privacy rights, on the other hand, employers are generally not as enthusiastic in recognizing their employees' rights to privacy at the workplace, such as when employees object to employer electronic monitoring.

Professor Bernstein provided some concluding thoughts about workplace privacy. She explored concepts that had been discussed by the other panelists including:  "Personality," "Autonomy," "Secrets," and "Power."  She commented that there appeared to be two larger employment law themes explored at the conference: (1) individual versus collective approaches to workplace privacy issues and (2) the tension between workplace privacy and the employment at will doctrine.

Overall, it was a thought-provoking and worthwhile intellectual exercise and the folks at the Louisiana Law Review and Professor Bill Corbett (LSU) deserve much credit for a wonderful conference.


February 10, 2006 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

OLMS Internet Public Disclosure Room

The Department of Labor / Employment Standards Administration / Office of Labor-Management Standards has created an Internet Public Disclosure Room, which is powered by a  database query system.  From this site you can (1) view and print reports filed by unions,  union officers and employees, employers, and labor relations consultants for the year 2000 and after and reports filed by unions for trusts in which they have an interest, (2) order reports for the year 1999 and prior, and (3) search the union annual financial reports for the year 2000 and after and the trust reports for key data items.

Using this new query system, you can access facsimiles of labor organization financial reports, as well as retrieve union and trust financial data.  Searchers are now able to select results they wish to save, and can generate a number of reports comparing data saved from multiple searches.

OLMS will conduct a free seminar on how to use the site on February 27 in D.C.


February 10, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Bales Named Interim Dean at NKU-Chase

Northern Kentucky University (NKU) Provost Gail Wells announced yesterday that she has appointed Chase Professor Richard Bales to serve as Interim Dean of Salmon P. Chase College of Law, effective March 27th.

The law school's current dean, Gerard St. Amand, was recently named Vice President for University Advancement at NKU.

Congratulations Rick, and good luck as you start your new adventure!


February 10, 2006 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Keeping Romance out of the Workplace

Teddies_diaperheart reports:

Four percent of human resource (HR) professionals and 14 percent of employees say that dating in the workplace shouldn't be permitted, according to a survey by the Society for Human Resource Management and the Wall Street Journal's

However, 80 percent of HR professionals and 60 percent of employees oppose dating between a supervisor and a subordinate, the survey found.

The survey included responses from 493 HR professionals and 408 employees. The researchers conducted a similar survey in 2001.

Although there is general agreement among HR officials and employees that dating among supervisor and subordinates is a bad idea,

70 percent of organizations have no policies on workplace romance, and of those that do, the vast majority discourage dating rather than forbid it. Only 9 percent of organizations prohibit dating in the workplace entirely.

This is actually another workplace privacy issue, which requires the needs of the employer to avoid disruptions in the workplace to be balanced against the rights of individuals to form intimate relationships with whom they want. 

What is really interesting is whether new state off-duty conduct statutes that protect legal off-duty conduct protect these types of relationship, which of course inevitably spill over into the workplace.  Traditionally, at least relationships between those with unequal power have been frowned upon.

But to the extent that companies do not have policies in place, regulation of such relationships in the workplace may be harder to prevent, with arbitrary and uneven enforcement of such rules will no doubt continue to be the biggest challenge.

Hat Tip: George's Employment Blawg


February 10, 2006 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

From the Life is Stranger Than Fiction Files

According to the Winston-Salem Journal:

A woman attacked at work and kidnapped by her boss and his wife is fighting with an insurance company over her worker's compensation claim.

The issue is whether the attack was work-related or personally motivated.

Tabitha Sells was working at a Glass Pro automobile glass repair shop on Sept. 18, 2004, when her manager and his wife hit her with a bat and threatened her with a gun. She and a co-worker were forced into the trunk of a car, and were freed only after it crashed while the police chased the couple.


Sells, 27, filed a claim for worker's compensation. But Glass Pro and its insurance company, The Hartford, denied it.

Sells said it's because the companies believe the attack was personal, motivated by Shelly Daugherty's belief that her husband and Sells were having an affair.

For once, I'm speechless.

Hat Tip: Eric Fink


February 10, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Work/Family Issues and Black Women

From yesterday's New York Times:

Around the country black women are opting out of the "opt-out" debate, the often-heated exchange about the compatibility of motherhood and work. Steeped in issues like working versus staying at home, nannies versus day care, and the benefits or garish excess of $800 strollers, the discussion has become a hot topic online, in newspapers and in book publishing.

It is not that black mothers do not wrestle with some of the same considerations as white mothers. But interviews with more than two dozen women suggest that the discussions as portrayed in books and the news media often lack the nuances and complexities particular to their experience.

For professional black women, debates about self-fulfillment can seem incomprehensibly narrow against the need to build sustainable wealth and security for their families. The discussions also pale in comparison to worries about shielding sons and daughters from the perils that black children face growing up, and overlook the practical pull of extended families in need of financial support.

The rest of the article is here.

This is really a fascinating story that adds another level and dimension to the on-going debate about women and workplace flexibility issues.

Hat Tip: Dana Nguyen


February 10, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

EEOC Reports 5% Drop in Charges

Discrimination charges filed with U.S. Equal Employment Opportunity Commission (EEOC) against private sector employers declined last year by 5 percent, the agency reported today as part of its Fiscal Year 2005 data.  Complete FY 2005 data is available at EEOC FY 2005 Performance and Accountability Report.  Charge filings break down as follows:

  • Race - 26,740 charges (35.5% of all filings).
  • Sex - 23,094 charges (30.6% of all filings).
  • Retaliation - 22,278 charges (29.5% of all filings).
  • Age -16,585 charges (22% of all filings).
  • Disability - 14,893 (19.7% of all filings).
  • National Origin - 8,035 (10.7% of all filings).
  • Religion - 2,340 (3.1% of all filings).
  • Equal Pay - 970 charges (1.3% of all filings).

Additionally, there were 12,679 sexual harassment charge filings and 4,449 pregnancy discrimination filings in FY 2005 with EEOC offices and state and local Fair Employment Practices Agencies (combined). Of the total number of sexual harassment charges, 14% were filed by men..


February 10, 2006 in Government Reports | Permalink | Comments (0) | TrackBack (0)

More Blogging from LSU on Workplace Privacy

Gely Kimp Tnwillborn
Continuing with the faculty presentations yesterday afternoon, three more interesting talks on workplace privacy were given by Dean Steve Willborn (Nebraska), Rafael Gely (Cinnicinnati) & Len Bierman (Texas A&M), and Pauline Kim (Washington University).

Dean Willborn discussed employee consent in the workplace privacy context and critiqued the current draft of the Restatement of Employment Law. Specifically, he expressed concern that the conception of privacy in the Restatement minimizes the ability of employees to consent in workplace privacy situations, thereby interfering with employee autonomy in the process.  Dean Willborn would allow the market to play a greater role in protecting employee privacy rights.

Professors Gely and Bierman talked about Workplace Blogs and Workplace Privacy, a topic which unsurprisingly I found of great interest. They discussed blogging as creating a "new space" where employees interact and where employers want access.  They also described the vast growth of blogging by both employer and employees and concluded that the common law (in form of public policy torts or implied in fact contracts) does not offer much protections for bloggers.  An interesting discussion ensued over whether the NLRA may protect employees when they engage in concerted activities through blogging about the workplace.

Professor Kim discussed collective and individual approaches to privacy in the workplace, with special emphasis on employee drug testing. On the hand, the collective approach to privacy seems to focus on job security (especially in the union context) to the detriment of privacy and dignitary concerns.  On the  other hand, the individual approach involves claims that deal with mostly after-the-fact challenges and such claimants have a hard time raising broader policy issues when many of them have already tested positive for drugs.  Professor Kim argued that there is some irreducible core of privacy that one cannot consent to give up and she was troubled with the ability of unions to waive the privacy interests of individuals.

All in all, it was a fascinating day and we have one more group of speakers still to go this morning.  One more update will follow.


February 10, 2006 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2006

Live Blogging from LSU Workplace Privacy Conference

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Today and tomorrow, I am in Baton Rouge at LSU attending the Examining Privacy in the Workplace Conference (see previous post announcing the conference here).

This morning we have already heard two thought-provoking presentations from Matthew Finkin (Illinois) and Catherine Fisk (Duke) about emerging workplace privacy issues. 

Professor Finkin spoke about privacy protections for employees outside of the workplace from a comparative law perspective.  In particular, he talked about the more significant privacy protections (referred to as "personality interests") that employees in Germany and France have outside of the workplace and how such conceptions can help shape off-duty work privacy protections for employees in the United States.

Professor Fisk spoke about employee autonomy at work, and in particular, in the area of dress code regulations.  She provocatively suggested that dress code regulations should be analyzed under privacy law rather than anti-discrimination law.  Specifically, Professor Fisk proposed a new tort for protecting at-work autonomy which balances employee interests in workplace autonomy against legitimate employer business interests.

More updates to follow.


February 9, 2006 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Legal Affairs Debate About ADA

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Over at the Legal Affairs Debate Club, Sam Bagenstos (Washington University) and Ruth O'Brien (John Jay) are debating the topic: Is the ADA Expanding?

For those interested in learning more about the history of the ADA, its current interpretation by the courts, and where ADA jurisprudence is heading in the future, this is a wonderful opportunity to become more knowledgeable about all things ADA.

Check it out!


February 9, 2006 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Selmi on Disparate Impact Theory

Michael Selmi (George Washington) has placed on SSRN his paper entitled, "Was the Disparate Impact Theory a Mistake?", 53 UCLA L. Rev. 701 (2006).

From the abstract:

The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory’s legacy and challenges much of the conventional wisdom.

Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that the theory has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed.

In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced could likely have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of intentional discrimination. Disparate impact theory has always been seen as beginning where intentional discrimination ends, and by pushing an expansive theory of impact we were left with a truncated theory of intentional discrimination, one that continues to turn on animus and motive. Rather than a new legal theory of discrimination, what was needed, Professor Selmi concludes, was a greater societal commitment to remedying inequities and the ultimate mistake behind the theory was a belief that legal theory could do the work that politics could not.

Download this highly interesting article while it's hot here.


February 9, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 8, 2006

New Feature: "Ask the Workplace Prof"


Rick and I have decided to start a new feature on this blog called: "Ask the Workplace Prof"

Although we will certainly not be offering "legal advice" on specific cases or in any sense of those words, we hope to be able to generically answer questions people have concerning labor and employment law.

So while we will not answer questions like: "My best friend's boss is hitting on her, does she have a claim?", we will be happy to field questions about the intricacies of employer liability for supervisory sexual harassment.

Please send all questions to me at with "Ask the Workplace Prof" in the subject line.  Rick and I will then choose which questions to feature as part of our weekly blog postings.


February 8, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

A Story About Non-Union Retiree Health Care

From the Detroit Free Press today:

General Motors Corp. will cap its contribution to salaried retirees' health care costs at 2006 levels, leaving them to bear the mounting costs of future increases.

The decision affects 100,000 salaried retirees and 26,000 active employees hired before 1993, as well as their spouses and eligible dependents.

Northville resident Robert Stasiak retired from General Motors in 1989 believing he'd have free health care for life.

But by the mid-1990s he started paying co-pays and premiums. This year, he was startled when his health insurance premium more than doubled to $75 per month from $35 per month and his office visit and prescription drug co-pays rose to $30 from $20.

But under this cap announced Tuesday, he and other GM retirees will see their annual health costs increase in much larger increments -- potentially thousands of dollars -- beginning in 2007 when they will begin to carry all increases in health care costs.

Unlike retiree health care cases in the unionized sector which tend to favor employees who have vested in these status benefits based on previous promissory language in their CBA under which they retired (see post here), the legal landscape looks vastly different for non-union workers seeking to hold their employers to promises of lifetime health care.

Here, rather than looking at a CBA, the court looks to plan documents, summary plan descriptions, other materials explaining the plan, and oral assurances made by the company, to determine if the employee vested in any retiree health care promises made to them. 

The problem for these employees is that to the extent that a company like GM has placed a reservation of rights clause in even some of these plan documents (which permits them to modify the benefits unilaterally when they see fit), the retirees have a hard time arguing that there has been an ERISA violation, a breach of contract, an equitable estoppel violation, or a breach of fiduciary duty.

Finally, even if there is a conflict between various plan documents, such that some documents have a reservation of rights clause, but other documents have a guarantee of lifetime benefits, the 6th Circuit has held in case involving GM and a different group of salaried employees (Sprague v. General Motors Corp., 133 F.3d 388 (1998)), that in essence the reservation of rights clause trumps any inconsistent lifetime benefit language:

We see no ambiguity in a summary plan description that tells participants both that the terms of the current plan entitle them to health insurance at no cost throughout retirement and that the terms of the current plan are subject to change.

I, on the other hand, see the ambiguity quite clearly ... and the unfairness to retiree health beneficiaries in these situations. 

As other Circuits have disagreed with the 6th Circuit's approach on retiree health benefit for non-union workers, there is some hope that this issue will eventually make its way to the Supreme Court.  Of course, what happens there (especially when it comes to ERISA decisions), is anyone's guess.


February 8, 2006 in Pension and Benefits | Permalink | Comments (3) | TrackBack (0)

DOL Wage and Hour Division Collects Less Money in 2005

From Suits in the Workplace:

The Department of Labor’s Wage and Hour Division collected more than $166 million in back wages in fiscal year 2005, marking a four-year low. Could it be that many employers are beginning to hear the cry of employment lawyers and HR consultants? Is there an increased recognition of the financial risk involved in not complying with highly complex labor laws such as the Fair Labor Standards Act and the Family and Medical Leave Act? Or is it mere coincidence – a random twist of fate? Well let’s see.


Well critics may differ, but for those of us who wake up in the morning wondering, “does X employee perform the requisite number of job activities directly related to management or the general business operations to qualify as exempt employees under the FLSA and corresponding state statues?” the answer is clear. Increased awareness and attention, preventative “simulated” audits, and perhaps a mortal fear of collective actions in California have guided an increasing number of employers toward safe shores.

Thus, while numbers for 2005 have decreased, employers still need to focus on a number of areas for improvement. Notably, the largest awards were for violations of the FLSA’s overtime rules. In FY 2005, 188,954 employees received back wages totaling over $119 million dollars for unpaid overtime. This amount represented 89 percent of all wages collected under the FLSA.

All this seems right to me: from not wanting to face a class action overtime suit in California as a management attorney to recognizing that overtime claims, and especially class action claims based on overtime violations, continue to play a large role in high stakes employment litigation in this country.  Indeed, one need look no further than the recent mega case filed against IBM for overtime violations to know that this is still the case.


February 8, 2006 in Government Reports | Permalink | Comments (1) | TrackBack (0)