Saturday, March 10, 2007
Aditi Bagchi (Penn) has posted on NELLCO her new piece entitled: Varieties of Employee Ownership: Some Unintended Consequences of Corporate Law and Labor Law.
Here's the abstract:
Theories of employee ownership implicitly assume that its essential features are the same in all countries. In fact, employee ownership varies considerably across institutional environments. In this paper, I compare its development in the
United States, German, and Sweden to show that the institutional background - in particular, the existing bodies of corporate and labor law - against which a program of employee ownership arises determines its course. Background institutions determine the cost of worker control over management, the cost of collective decision-making, and the expected gains from risk-bearing. Those consequences of corporate and labor law in turn determine whether employee ownership legislation transfers, or creates incentives for firms to transfer, a share of profits to workers (residual income rights); or whether legislation instead empowers workers to raise the present and/or deferred price of labor in proportion to profitability (control). Workers and their representative organizations push (or allow) only those employee ownership programs that secure what is absent but feasible in light of their existing range of tools. Even when employee ownership is a viable program, employee ownership legislation can only augment, not revise, the present institutional resources of organized labor.
This sounds like an interesting, multi-layered comparative labor law piece from a new author in the labor law world. Give it a read.
Thomas Kohler (Boston College) will speak March 27 at Chicago-Kent's Institute for Law and the Workplace on the topic of Religion and the Workplace. Kohler will discuss the link between religion and labor and employment law, including how the NLRA and FLSA are rooted in Catholic social thought and the influence of the African-American Protestant churches on the enactment of Title VII. Commentary will be provided by Interfaith Worker Justice Executive Director Kim Bobo and NiSource, Inc., Senior V.P. Robert Campbell.
Cheryl Wade (St. John's) will speak March 29 at Western New England College of Law on the topic of Advancing the Corporate Discourse About Race. The topic will cover the problems that arise when corporate spokespersons talk and write about diversity without attending to the persistent problem of race discrimination. Wade will explore whether the types of discussions about race that typically occur in the corporate setting advance or impede the goal of achieving racial equality in the workplace.
- Lucian Arye Bebchuk, Martijn Cramers, & Urs Peyer, Pay Distribution in the Top Executive Team (217).
- Annamaria Lusardi & Olivia S. Mitchell, Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (142).
- Clark C. Havighurst & Barak D. Richman, Distributive Injustice(s) in American Health Care (122).
- Joshua D. Rauh, Risk Shifting versus Risk Management: Investment Policy in Corporate Pension Plans (110).
- Dorothy A. Brown (photo above), Pensions and Risk Aversion: The Influence of Race, Ethnicity, and Class on Investr Behavior (82).
- David Kinley & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (107).
- Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey (84).
- Harry W. Arthurs, Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law (37).
- Katherine V.W. Stone (photo above), A New Labor Law for a New World of Work: The Case for a Comparative-Transnational Approach (21).
- Sangheon Lee & Deirdre McCann, Measuring Working Time Laws: Texts, Observance, and Effective Regulation (18).
Friday, March 9, 2007
The AALS Section on Labor Relations and Employment Law has decided to do a Call for Papers to select speakers for its upcoming Section panel at the 2008 AALS Annual Meeting, which is scheduled to take place in
The full call for paper can be accessed here, but some of the more important details include:
The title of the Panel is: The Employment and Labor Law Professor as Public Intellectual: Sharing Our Work with the World.
The Call for Papers is for employment and labor law professors who are engaged in activities that share their scholarly work with the general public. Such activities may be done as an individual professor working independently or collaboratively, via affiliations with non-profit and public agencies, or by establishing centers that directly engage the public.
Those who are selected must commit to presenting at the 2008 annual meeting and to preparing a short essay (2,500-5,000 words, including footnotes) that will be distributed at the annual meeting and published soon afterward in the Suffolk University Law Review.
Proposals should concern interesting work that engages the general public, rather than work directed primarily to academe, the bench, or the bar.
Any full-time law professor may submit a proposal of up to 500 words detailing a topic. Proposals must be received no later than April 23, 2007; those who submit a proposal will receive a response by the end of May.
Please send your submission as an e-mail attachment (Word preferred) containing (1) a cover sheet with your name, affiliation, and contact information, and (2) the proposal itself without your name to: Professor David Yamada, Suffolk University Law School, and Chair, Section on Labor Relations and Employment Law, c/o Andrea Shannon, Staff Assistant, at firstname.lastname@example.org.
Further questions should be directed to Professor Yamada.
Thursday, March 8, 2007
Thanks to Rosario Vega Lynn of the New Mexico Labor and Employment Law Blog for bringing to my attention this opinion letter from the Department of Labor's Wage and Hour Division on whether home salespersons qualify for the outside salesperson exemption from overtime under the Fair Labor Standards Act (FLSA).
Rosario summarizes the ruling thusly:
The U.S. Department of Labor has issued an opinion letter concluding that home sales employees who work in “temporary sales facilities” qualify as exempt for overtime as outside sales employees. These employees are typically provided temporary offices in model homes or trailers located in or near the community where the builder is selling homes.
The DOL allows an exemption for outside sales employees if the employee is regularly and customarily engaged “away from the employer’s place or places of business.” The DOL Wage and Hour Division has further allowed that, “So long as a salesman customarily and regularly goes to the site of the property or to prospects as a part of making his sales, this requirement for ‘outside’ sales work would be met.”
You can read the entire opinion letter here.
Wednesday, March 7, 2007
The Equal Employment Opportunity Commission today filed an employment discrimination class lawsuit against Walgreens, the Illinois-based national drugstore chain, alleging widespread racial bias against thousands of African American workers. The EEOC charges that Walgreens assigns managers, management trainees, and pharmacists to low-performing stores and to stores in African-American communities because of their race. Additionally, the EEOC asserts that Walgreens denies these managers and professionals promotional opportunities based on race.
Walgreens’ actions were investigated by the St. Louis and Miami district offices of the EEOC after more than 20 current and former employees from around the country complained to the federal agency. The EEOC filed the litigation (Case No. 07-cv-00172-MJR-CJP) in the U.S. District Court for the Southern District of Illinois.
Seth Harris (NYLS) writes to tell us about New York Law School's Justice Action Center hosting the Third Annual Tony Coelho Lecture in Disability Employment Law & Policy. The event is scheduled for Monday, March 26, 2007, at Wellington Conference Center from 8:30 - 11 a.m.
Congressman F. James Sensenbrenner, Jr. [pictured left] will deliver the Lecture in Disability Employment Law and Policy. His speech will focus on opportunities to improve the Americans with Disabilites Act. Congressman Sensenbrenner co-sponsored last year HR 6258, the Americans with Disabilities Act Restoration Act. This legislation sought to amend the definition of “disability” in the ADA to make it more inclusive, and thus have more of an impact in the lives of disabled Americans.
You can register to attend the event or register to watch the national webcast. For more information, visit the Lecture website.
The NewsDash e-newsletter from the PlanSponsor.com had this blurb this morning:
A Congressional hearing addressed Tuesday whether fees paid by 401(k) participants take too big a chunk out of workers retirement savings and whether those fees should be more completely disclosed to individual investors. Representative George Miller (D-California) asked the House Education and Labor Committee to consider whether employers should be forced to give workers a clearer understanding of the fees they are paying and to explore whether the fees are carving too big a lump out of retirement savings.
In his opening remarks to the committee, Miller said that workers are "simply not in a position to compare plans" and that improving "401(k) transparency is just the beginning of our efforts to ensure that all American have access to a secure retirement." However, Miller was countered by Representative Howard "Buck" McKeon, (R-California), who warned in his statement that forcing fee disclosure should be approached with caution.
It sounds like the debate over plan fee disclosures will be about balancing the competing goods of clarity and comprehensiveness in making such information available to plan participants.
You can read the whole Plan Sponsor article on the plan fees testimony here.
A streaming video of the House Committee hearing can be accessed here.
Tuesday, March 6, 2007
The Senate just approved a bill (51-46) that would allow Transportation Security Administration employees to unionize, which Paul Secunda posted on a few days ago. As the House has already done, the provision was part of a larger effort to implement the 9-11 Commission's recommendations. The Bush Administration has threatened to veto the entire bill if the union provision is part of it. We'll see if they follow through.
Although opponents argue that this is a mere "sop" to unions, I (like Paul) see no reason to object to giving TSA employees the same rights most other federal employees have other than pure anti-unionism. Opponents' primary argument is that unionization would cause a loss of flexibility, thereby endangering national security. This is spurious As many readers are aware, even if a union is elected, the TSA doesn't have to agree to any terms as long as they bargain in good faith. Insisting on flexibility to address national security issues is certainly reasonable. Moreover, no union would resist such measures. The truth is that federal unions generally have little bargaining power to begin with, as many of the most significant terms of employment are fixed (when I was a unionized NLRB attorney, this fact because painfully obvious). At best, such a union acts as an advocate for federal employees; the union may be able to prompt some modifications at the margins and can perhaps exert enough clout and independence to hold the agency's feet to the fire in public. Given the mess that is currently the TSA, I suspect that a union would actually help national security.
Symposium Issue: Employer-Sponsored Health Care Plans
St. Thomas Law Review
Volume 19, Number 1, Fall 2006
- Elizabeth A. Pendo, Foreward, p. 1.
- David Pratt (left), Healthy and Wealthy and Dead: Health Savings Accounts, p. 7.
- Larry Grudzien (second), Can Consumer-Driven Health Care, Health Reimbursement Arrangements and Health Savings Accounts Save Employer Sponsored Health Care From Ruin?, p. 39.
- Susan J. Stabile (third), State Law Health Care Initiatives, p. 87.
- Julia Contreras & Orly Lobel (fourth), Wal-Martization and the Fair Share Health Care Acts, p. 105.
- Jonathan Barry Forman (right), Making Universal Health Care Work, p. 137.
PlanSponsor.com has word this morning about a new, modernized approach the Equal Employment Opportunity Commission (EEOC) is undertaking to fight racism in the workplace:
According to a press release, E-RACE is an outreach, education, and enforcement campaign to advance the statutory right to a workplace free of race and color discrimination - the most prevalent cause of employment discrimination, according to the agency.
The EEOC will identify specific issues, criteria and barriers that contribute to race and color discrimination; explore strategies to improve the administrative processing and litigation of race and color cases; and enhance public awareness of race and color discrimination in employment.
Although the details seem somewhat sketchy at this point, this has the potential to be another weapon in the agency's arsenal to eradicate discrimination from the workplace.
If you are interested in learning more about E-RACE, you can go here.
Brent Hunsberger at The Oregonian At Work Blog had this entry yesterday concerning legislation Oregon is considering to curtailing the use of non-competition agreements:
Two bills in the Oregon Legislature -- Senate Bill 248 and House Bill 2257 -- aim to void noncomplete clauses under some circumstances, including when a worker gets laid off. The House bill has the backing of Oregon Labor Commissioner Dan Gardner but drew opposition from the American Electronics Association, a high-tech trade group, which says says it could compromise trade secrets.
It could well be that such legislation is in response to increasing litigation over such clauses:
Now comes Jay Shepherd, author of Gruntled Employees blog, reporting that the number of published court decisions in cases involving noncompete clauses has increased 37 percent between 2004 and 2006 and 81 percent in the past decade.
It seems that an employer should be able to protect proprietary information from unfair use by competitors, but many non-compete clauses are much broader than that and seem to unnecessarily staunch the productive flow of information and knowledge from company to company through mobile employees.
Monday, March 5, 2007
Preis on Bivens and the State Remedy Mistake and Whither the First Amendment Rights of Federal Employees?
Jack Preis (Brooklyn) has posted on bepress Legal Repository his article entitled: Bivens and the State Remedy Mistake. Although Bivens claims are not bread-and-butter labor and employment, there may be some real important implications here for the First Amendment rights of federal employees.
Jack's abstract explains:
The federal courts have started to give up on Bivens and they could not have picked a worse time. At a time when aggressive federal law enforcement is arguably at its apogee, federal courts are starting to hold that Bivens actions—actions routinely used to test the constitutionality of the federal government’s law enforcement efforts—are unavailable if state law provides relief for the offending behavior.
This rule, which I term “the state remedy rule,” is problematic in three respects. First, the rule is likely to be unworkable in the extreme because it will be difficult, if not impossible, to determine from the litigants’ pleadings whether a state remedy is in fact available. Second, the state remedy rule, when read together with the Federal Tort Claims Act, squarely contradicts Carlson v. Green, a case that is indispensable to the Court’s current Bivens jurisprudence. Third and most importantly, the state remedy rule impoverishes the value of constitutional rights and constitutional adjudication. It renders constitutional rights little more than gap-fillers—rights that will be vindicated only when state law fails in the first instance, and passes up the national applicability of constitutional adjudication in favor of non-uniform, localized adjudication via state tort law. After addressing these three problems, this Article suggests the way forward—which is to abandon the state remedy rule—and deals with several possible objections to that recommendation.
Along the way, Jack makes the point in his article that previous Supreme Court case law in the form of Bush v. Lucas, has held in the federal employment area that: "First Amendment claims 'arising out of a [federal government] employment relationship" are not subject to Bivens claims because there are other adequate procedural and substantive remedies available.
This line of reasoning would seem to suggest that federal employees have no Pickering First Amendment free speech rights and yet there is nothing in Pickering or any other case, besides Lucas, that suggests state and federal employees should be treated differently. Indeed, the language of Lucas sounds eerily like Garcetti v. Ceballos when it concludes that public employees, acting according to their official duties and now without First Amendment rights, should not be concerned about this state of affairs since there exist other laws like whistleblowing statutes to protect them.
I not only find this reasoning singularly unreassuring given the current state of statutory and common law whistleblower protection, but because the existence of a constitutional right should not hinge on whether there are other non-constitutional rights available. In this sense, federal employees should have Pickering and other constitutional rights under a Bivens claims and Lucas should be overturned as wrongly-decided.
Pat Chew (Pittsburgh) has posted on bepress Legal Repository her article forthcoming in the Oregon Law Review: Freeing Racial Harassment from the Sexual Harassment Model.
From the abstract:
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.
This Article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment . . . .
Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model.
Fascinating insight! I've always assumed in teaching this area of harassment law that the two forms of harassment should be treated alike and spent most teaching time on sexual harassment. I'm looking forward to reading Pat's piece for new angles on this issue.
- Kevin Kolben (left), Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes, 48 Harv. Int’l L. J. 203 (2007).
- Michael L. Wachter (center), Labor Unions: A Corporatist Institution in a Competitive World, 155 U. Pa. L. Rev. 581 (2007).
- Steven J. Burton (right), The New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate, 2006 J. Disp. Resol. 469.
Comments & Notes
- Jared M. Mellott, The Diversity Rationale for Affirmative Actiom in Employment After Grutter: The Case for Containment, 48 William & Mary L. Rev. 1091 (2006).
- Jeffrey M. Gorris, Waivers of ERISA Plan Benefits: Preventing Judicial Interpretations of a Complex Statute from Frustrating the Statute's Simple Purpose, 155 U. Pa. L. Rev. 717 (2007).
- Jessica Niezgoda, Kicking Ash(Trays): Smoking Bans in Public Workplaces, Bars, and Restaurants: Current Laws, Constitutional Challenges, and Proposed Federal Regulation, 33 J. Legislation 99 (2006).
- Kristin P. Abbinante, Taming the Nature of the Beast: Why a REasonable Accommodation For a Perceived Disability Should No Longer Be Considered the ADA's Necessary Evil, 32 U. Dayton L. Rev. 63 (2006).
Sunday, March 4, 2007
- Joanna Shuang Wu (left) & Ivy Zhang (right), Voluntary IAS and U.S. GAAP Adoption by Continental European Firms: The Role of Labor Relations (138).
- Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (110).
- Oliver Hart & John Moore, Contracts as Reference Points (92).
- Diane Avery (left) & Marion G. Crain (right), Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (87).
- Christopher J. Kippley & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (85).