Saturday, March 31, 2007
And the Slate article in which this quote appears does ask a very good question: why doesn't baseball have more female umpires? There have only been six female minor league and no major league umpires in the history of the professional game.
The (partial) answer given by the article: "Little League baseball is still a boys' game. Young girls tend to play softball or another sport, so they rarely join baseball teams in high school or college. And since many prospective umpires are former baseball players, there's an especially small pool of women who have a passion for umpiring."
This explanation is just too easy. It does not appear, for instance, that this reasoning would explain why there also only two female NBA referees. Girls and boys both play basketball and a good number of women play professional basketball.
Seems to me that gender bias better explains the almost complete lack of female officials in male professional sports. How else to explain this "inexorable zero"?
And at least for basketball and baseball, being male should not be a bfoq for these positions.
Friday, March 30, 2007
Kathy Stone (UCLA) has posted on SSRN her piece in the Lewis & Clark Law Review: A Fatal Mis-Match: Employer-Centric Benefits in a Boundaryless Workplace.
Here's the abstract:
In this article, Katherine V. W. Stone traces the origins of the uniquely American system of private, employer-centered welfare institutions and argues that the prevailing model must be replaced with an alternative that is both more portable and more affordable for the vast majority of workers. Stone shows how the current employer-centric system of benefits originated in the industrial era of the last century when employers sought to secure a stable workforce through internal labor markets. She argues that this employer-centered model of social insurance and welfare benefits has largely outlived its usefulness in the new "boundaryless" workplace of the twenty-first century.
In response to the aging of the population and a rapidly changing economy characterized by global competition, shorter production cycles, increased use of contingent and temporary employment and rising healthcare costs, in the last two decades employers have reduced their benefits coverage, shifted away from risk-pooling plans, such as defined benefits plans, in favor of a personal responsibility approach characterized by more portable but riskier defined contribution plans. She shows that these changes have generally shifted the costs and risks of healthcare and old age assistance onto their employees. As a result, the U.S. system of employer-centered benefits is irrelevant for large numbers of employees who have no coverage and increasingly inadequate, uncertain and costly for those who are covered.
It is wonderful to see that one of the most astute observer of the 21st Century workplace is focusing her sights on the employee benefits world. It is sure to be an important contribution to the on-going debate of how to reform this country's pension and health care systems.
Of course, ERISA is full of vexing areas of law, preemption and the scope of civil enforcement under Section 502(a)(3) to name just two. But right up there at the top of the list is the appropriate standard of review when a court reviews a plan administrator's decision to deny an individual's claim for benefits under the plan AND the plan is operating under a structural conflict of interest.
A structural conflict of interest exists when the plan administrator has to pay the claim out of its own assets. Courts are all over the place on the proper standard, ranging from saying there should be no change to the normal arbitrary and capricious standard at all to adopting a sliding scale approach under which the degree of the review becomes more intensive as the conflict involved becomes more severe.
So now the First Circuit in Denmark v. Liberty Life Assurance, 05-2877 (1st Cir. Mar. 28, 2007), has weighed in again and although maintaining their normal arbitrary and capricious review in a 2-1 decision (with three different opinions), two of judges agree that there needs to be en banc review of the issue.
Here is part of Ross Runkel's nice summary of the case in his Employment Law Memo:
Two judges agreed with the trial court that the denial of benefits was not arbitrary and capricious. One of them, however, opined that “our circuit should reexamine in an en banc proceeding the standard of review that applies when an insurer both reviews and pays disability claims, resulting in a structural conflict of interest.” The third judge concluded that the denial of benefits was arbitrary and capricious, and agreed that the 1st Circuit should reexamine the standard of review in such “structural conflict” cases.
The 1st Circuit’s current view is that “[t]he fact that … the plan administrator [ ] will have to pay [the] claim out of its own assets does not change [the arbitrary and capricious] standard of review.” The 1st Circuit has justified this approach on the grounds that “the market presents competing incentives to the insurer that substantially minimize the apparent conflict.” The court observed, however, that “other circuits have rejected the market forces rationale and specifically recognized a conflict of interest when the insurer of an ERISA plan also serves as plan administrator, although there is no consistent approach in accordingly adjusting the standard of review.”
Stephen Rosenberg at the Boston ERISA Law Blog has thoroughly analyzed this issue in the past and on this case comments that:
[T]he third judge['s] opinion emphasized his belief, much like mine, that the Circuit’s current approach is time proven and battle tested, and should not be overturned lightly; he also points out that, given the split among the circuits over this issue, it would make sense not to change course on this issue unless and until the Supreme Court resolves the split.
All I can say is that I'm happy that most people agrees that en banc review is required because further clarification is definitely needed and I don't think this issue should have to await Supreme Court review given the importance of this legal question to many plan participants and beneficiaries.
Update: Stephen Rosenberg just posted a helpful summary of where all the circuit courts stand on the structural conflicts of interest issue.
Thursday, March 29, 2007
In a complicated decision involving the intersection of the Bankruptcy Code, the Railway Labor Act (RLA), and the Norris-LaGuardia Act, the Second Circuit Court of Appeals today upheld a preliminary injunction designed to keep Northwest Airlines flight attendants from engaging in work stoppages while the carrier seeks to emerge from bankruptcy protection.
In Northwest Airlines Corp. v. Association of Flight Attendants (AFA), 06-4371 (2d Cir. March 29, 2007), the Second Circuit held:
With these principles in mind, we reach three conclusions: (1) Northwest’s rejection of its CBA after obtaining court authorization to do so under 11 U.S.C. § 1113 abrogated (without breaching) the existing collective-bargaining agreement between the AFA and Northwest, which thereafter ceased to exist; (2) Northwest’s abrogation of the CBA necessarily terminated the status quo created by that agreement, after which termination [of] both the RLA’s explicit status quo provisions and the implicit status quo requirement of Section 2 (First) ceased to apply; but (3) the AFA’s proposed strike would, at present, violate the union’s independent duty under the RLA to “exert every reasonable effort to make . . . [an] agreement,” 45 U.S.C. § 152 (First), and thus may be enjoined.
In short, the three laws combine to lead to the conclusion that although some day the AFA may be able to strike Northwest to obtain a more favorable contract, right now they cannot. They need to continue to negotiate to reach an agreement. How long must they negotiate for? There does not seem to be clear answer to that question. The court itself stated in this regard: "The 'reasonable effort' required by Section 2 (First) has uncertain contours," and even more unhelpfully, "[t]here is no need at this point to decide when and if the AFA will have fulfilled its duty; it has not done so yet."
Suffice to say, without the weapon of the strike, the flight attendants are going to have a difficult time getting their contract demands met.
Hat Tip: How Appealing
Thanks to Peggie Smith (Iowa) for reminding us that Supreme Court oral arguments in the case of Long Island Care at Home & Osborne v. Coke are scheduled for April 16th. The case involves whether home care aide workers employed by third-party agencies should be considered exempt from the FLSA's minimum wage and overtime requirements. The Second Circuit in this case overturned Labor Department regulations that exempted such home care aides.
Peggie, who has written much in the home health aide area, wrote an amici brief on behalf of a group of law professors and historians in support of the worker. The brief argues that when the FLSA was amended in 1974, Congress understood "domestic service employment," as that phrase is used in the Act’s companionship exemption, to refer to an individual and personal employment relationship, not a third-party relationship that involves an agency.
Peggie also points out that the New York Times ran a nice overview article on the case earlier this week.
Kudos to Peggie for her great work on this case!
Update: Ross Runkel predicts that the respondent Coke will lose:
This case turns on whether the courts must defer to the DOL's regulation. The 2nd Circuit held that the regulation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is an interpretive rather than a legislative regulation.
I think that's wrong. The statute left a gap, DOL had authority to fill the gap, and DOL filled it after notice-and-hearing procedures. The 2nd Circuit made a big deal out of where this regulation was positioned - under the heading "Interpretation" - but that misses the point. The real question is whether DOL intended the regulation to govern the conduct of private parties as opposed to being merely guidance for its own internal purposes. This was not a mere guideline for DOL employees; it was intended to regulate private conduct. Therefore, courts must defer to DOL under Chevron even if the regulation is inconsistent with other DOL regulations (which it is).
If I'm wrong on Chevron deference and the Court applies Skidmore v. Swift & Co., 323 U.S. 134 (1944), instead, then Coke should win because DOL's explanation of the regulation is not persuasive at all.
Posner, Easterbrook, & Evans released a telling opinion yesterday discussing the differences, as they see it, between conduct that is merely offensive and conduct that rises to the level of sexual harassment. Plaintiff, a school bus driver, alleged a litany of sex-related misconduct at the workplace. Examples included her manager watching pornography in his office, calling a female employee a "fat-ass," and describing an incident in which his male cat "raped" his female cat. That's not sexual harassment, said Posner. "The fact that one's co-workers [sic -- here it was the manager] do or say things that offend one, however deeply, does not amount to harassment if one is not within the target area of the offending conduct -- if, for example, the speech or conduct is offensive to women and one is a man, or offensive to whites and one is black." The conduct alleged in this case, the court found, "had only a tangential intersection with the plaintiff":
When the manager called one of the woman drivers a "fat ass," he may have been using a term that he would not have used of a man, but what if anything was he saying about the plaintiff, either directly or indirectly? And what if a male coworker [sic] is believed (apparently mistakenly in this case, but that is unimportant) to be watching pornography on his office computer? It wasn't any of the plaintiff's business what the manager was looking at on his computer. It is not as if pornographic pictures were exhibited on the walls of the workplace or emailed to the plaintiff. The relation between the manager's watching pornography on his own screen and the plaintiff's working environment was almost as attenuated as if she had learned that he watches pornography on his computer at home. [citation omitted]
The case is Yuknis v. First Student, Inc., ___ F.3d ___, 2007 WL 912121, (7th Cir. March 28, 2007). Comments are welcome.
Wednesday, March 28, 2007
According to this story from Yahoo! News and the AP, Circuit City has embarked on a cold-hearted corporate strategy to fire its highest paid store workers and then offer to rehire them at a lower wage after a period of time has passed:
A new plan for layoffs at Circuit City is openly targeting better-paid workers, risking a public backlash by implying that its wages are as subject to discounts as its flat-screen TVs.
The electronics retailer, facing larger competitors and falling sales, said Wednesday that it would lay off about 3,400 store workers — immediately — and replace them with lower-paid new hires as soon as possible.
The laid-off workers, about 8 percent of the company's total work force, would get a severance package and a chance to reapply for their former jobs, at lower pay, after a 10-week delay, the company said.
And here is how the company is trying to sell this employee betrayal to the public:
Circuit City . . . says the workers being laid off were earning "well above the market-based salary range for their role." They will be replaced with employees who will be paid at the current market range, the company said in a news release.
I'm not buying it. Whatever happened to loyalty to your employees and rewarding them for past service provided and a job well done? Shoot, corporate strategies like these could singlehandedly revive Ameican unions with their promise of just cause protection. At-will employees like these have no protections against arbitrary dismissals.
I wonder whether enough people will be outraged by this labor strategy that they will not shop the store and any gains made from savings in labor costs will be lost in terms of good will from customers. I also wonder whether the loss in remaining employee morale will significantly affect productivity.
In the end, this is such a short-sighted strategy that it must be the last desperate gasps of a company soon to be out of business.
It would appear so, based on this comment made by an aide to one of the leading Democrats in the House, Charles Rangel. Deloitte's Washington Bulletin of March 26, 2007 reports:
Some Congressional Democrats are talking about rolling back a series of enhancements to Health Savings Accounts (HSAs) enacted in the final hours of the Republican-controlled 109th Congress. According to a Washington Times report, an aide to House Ways and Means Committee Chairman Charles Rangel (D-NY) this week told a business group “We as Democrats are not going to be supporting [HSAs], and we will try to turn around those provisions snuck in last year.”
HSAs are consumer-driven health care accounts that permit
employees to save in a tax-deferred manner for qualified health care expenses. To take advantage
of the tax advantages of paying for qualified medical expenses for
beneficiaries using HSA funds, however, an employee must subscribe to a
high-deductible health plan (HDHP), under which employees must pay a larger
amount of out-of-pocket expenses before insurance coverage becomes operable.
Critics of these consumer-driven models believe that employees will just respond by putting off health care until conditions require more expensive treatment. They also worry about adverse selection: that healthy employees will flock to HSA/HDHP plans, leaving the traditional plans with sicker employees and much higher premium payments.
In any event, the Deloitte Bulletin piece signals skepticism that there will be successful legislation to roll-back enhancements to HSAs that President Bush signed into law at the end of last year.
As previously discussed, the Cracker Barrel restaurant chain has been the subject of much scrutiny as far as its labor practices towards blacks and women. This is also the company that once stated, it would hire only employees who displayed "normal heterosexual values which are the foundation of families in our society."
Now, it is apparently having some problems with its own employment practice liability insurers (via the Lexington Herald-Leader and AP):
Restaurant chain Cracker Barrel is suing two of its insurance carriers, claiming they did not reimburse the company after it settled sexual and racial harassment claims for $2 million.
The lawsuit filed last week in U.S. District Court in Nashville alleges Cincinnati Insurance Co. and Houston Casualty Co. violated their contracts.
Cracker Barrel says it requested last March that the insurance companies settle the lawsuit for $2 million, but the insurers say that they weren't obligated to do so under policies signed with Cracker Barrel.
Whether or not Cracker Barrel's claim against the insurer company is valid, I'm sure these poor insurance companies just didn't realize what they were getting themselves into when they agreed to underwrite this risk.
Tuesday, March 27, 2007
The NLRB held its oral argument today in the Register-Guard case, in which it is looking generally at the NLRA's regulation of employees' e-mail communications about union and other protected matters. The extremely rare argument, which I attended, gave a bit of a window into some of the members' views. I won't go into the details, as BNA and others will do a much better job, but my general impression is that the Board will have several different opinions (which isn't exactly going out on a limb).
Member Liebman was an active questioner and her primary focus seemed to be an interest in applying the existing Republic Aviation framework to Internet communications. Member Walsh seemed sympathetic to that view, although he was less clear. Member Shaumber had more varied questions, but if I had to predict based on his questions and past opinions, I'd say that he would apply a more restrictive approach similar to the one that several circuits have used for equipment like telephones and bulletin boards. Chairman Battista asked too few questions to guess about his thinking.
Member Kirsanow is the most interesting question mark, as he is the most likely to take an O'Connor/Kennedy role in this case. His questions were thoughtful and a major theme was a concern for employers' property and business interests, suggesting something along the lines of the equipment approach. However, I wouldn't be surprised if he tracks more of a middle course.
Take anything that even sounds like a prediction with a grain of salt, as I'm notoriously bad at predicting the lineup of cases. Not to be daunted by that fact, however, I'll also predict that the Board takes small steps in this case. Several parties urged the Board to move cautiously, and I saw few indications from the members that they had an appetite to create significant new rules or to dramatically reevaluate its old ones. As I argue in a recent article (I can't resist a little self-promotion), I think this is unfortunate because the Board's traditional approach to employee communications is in serious need of revamping. Moreover, the Internet is such a unique and important communications tool that, even if the old rules remain, it deserves special protection. Chances are though that the Board doesn't particularly care what I think and tries to pigeon-hole Internet communications into its current rules.
One of the less understood areas of employment law revolves around the False Claims Act (FCA), which provides employees and former employees the means to whistleblow on their employers when the employer submits false or fraudulent payment claims to the United States. In such situations, employees (who become former employee very quickly in these cases) file a qui tam suit on behalf of the public seeking to right the employer's wrong against the government. Employees and others who bring these suits are compensated for their trouble if the suit is successful by receiving a percentage of the the recovery against their employer.
The Supreme Court today, in the case of Rockwell Int'l Corp. v. United States, 05-1272 (U.S. Mar. 27, 2007), made it harder for employees to file these qui tam suits under the FCA. As Lyle Denniston explains on the SCOTUSblog:
The Supreme Court ruled on Tuesday, by a vote of 6-2, that a person bringing a lawsuit to recover misspent federal funds must have direct and independent knowledge of the facts behind the claim in order to be eligible to sue. The decision, written by Justice Antonin Scalia, clarified the meaning of the False Claims Act requirement that an individual bringing a so-called "qui tam" lawsuit must be able to show that he or she is the "original source" of the information about the false claim, and thus is not relying upon information previously disclosed to the public . . . .
In spelling out what [original source] means, the Court rejected the "qui tam" claim of a former employee of Rockwell International Corp. who had won a $4.1 million judgment after claiming radioactive contamination at the Rocky Flats nuclear weapons plant in Golden, Colo.
Justice Stevens, joined by Justice Ginsburg, dissented on the ground that, "the Court has misinterpreted these provisions to require that an original source in a qui tam action have knowledge of the actual facts underlying the allegations on which he may ultimately prevail." Stevens would rather focus on "the information underlying the publicly disclosed allegations, not the information underlying the allegations in the relators complaint (original or amended), of which the relator must be an original source."
Yet another Supreme Court case, like Ceballos, making it more difficult for employees to file whistleblowing claims against their employers to protect the public.
One wonders whether employees acting in the public interest will even bother bringing such claims in the future as the Court places greater and greater obstacles in the way of their claims.
Based on his previous writings in the cash balance plan area, I assume that I will be hearing an "I told you so" from my friend, Alvin Lurie (pictured left), soon. Here is another case, written up by PlanSponsor.com's NewsDash, finding a cash balance plan conversion not to be age discriminatory:
ACCRUAL "ACCOUNTING." Employees suing a Houston energy company over age-discrimination allegations regarding its cash balance plan won one issue but lost another in a ruling by a federal judge in Colorado. U.S. District Judge Walker D. Miller of the U.S. District Court for the District of Colorado sided with a growing number of jurists in other cash balance cases when he ruled that El Paso Corporation's cash balance program did not violate the Employee Retirement Income Security Act (ERISA). Miller said he agreed with the majority of federal courts that have ruled the "rate of benefit accrual" in ERISA's age discrimination provision should be based on what an employer puts into a participant's plan account, and not what the worker takes out at retirement.
The full article can be found here.
23 Hofstra Labor & Employment Law Journal (Winter 2006)
- Creola Johnson, Credentialism and the Proliferation of Fake Degrees: The Employer Pretends to Need a Degree; The Employee Pretends to Have One, p. 269.
- J. Brad Reich, Getting the Skinny: Fast Food Fat-Based Litigation is Not a Legal Threat to Business, But it Should Be, p. 345.
- Peter Caldwell, Hostile Environment Sexual Harassment & First Amendment Content-Neutrality: Putting the Supreme Court on the Right Path, p. 373.
- Jay Lapat & James P. Notter, Inspecting the Mine Inspector: Why the Discretionary Function Exception Does Not Bar Government Liability for Negligent Mine Inspections, p. 413.
9 University of Pennsylvania Journal of Labor & Employment Law (Winter 2007)
- James A. Sonne (photo above), Firing Thoreau: Conscience and At-Will Employment, p. 235.
- Ariel Meysam Ayanna, Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace, p. 293.
- Sara N. Barker, A False Sense of Security: Is Protection for Employees with Learning Disabilities Under the Americans with Disabilities Act Merely and Illusion?, p. 325.
- Robert Sprague, Fired for Blogging: Are There Legal Protections for Employees Who Blog?, p. 355.
- V. Nathaniel Ang, Teenage Employment Emancipation and the Law, p. 389.
- Adnan A. Zulfiqar, Religious Sanctification of Labor Law: Islamic Labor Principles and Model Provisions, p. 421.
Monday, March 26, 2007
Here is the press release about the book:
Building on the insights of both disability studies and civil rights scholars, Mark C. Weber frames his examination of disability harassment on the premise that disabled people are members of a minority group that must negotiate an artificial yet often damaging environment of physical and attitudinal barriers. The book considers courts' approaches to the problem of disability harassment, particularly the application of an analogy to race and sex harassment and the development of legal remedies and policy reforms under the Americans with Disabilities Act (ADA).
While litigation under the ADA has addressed discrimination in public accommodations, employment, and education, Weber points out that the law has done little to combat disability harassment. He recommends that arguments based on unused provisions of the ADA should be developed and new legal remedies advanced to address the problem. Disability Harassment also draws on case law to explore special problems of harassment in the public schools, and closes with an appeal to judges and lawmakers for expanded legal protection against harassment.
This is an important contribution to a developing area of disability law in both the employment and education context. Get a copy while its hot!
Michael Z. Green (Texas Wesleyan) will be visiting at Florida State University College of Law for the Spring 2008 term.
Michael is a prolific scholar and a frequent speaker on labor and employment arbitration issues. His pieces have appeared in such publications as the Berkeley Journal of Employment and Labor Law, University of Pennsylvania Journal of Labor and Employment Law, Penn State Dickinson Law Review, and Rutgers Law Journal. Michael is also a member of the American Law Institute.
Anne Marie Lofaso (a new faculty member at West Virginia and former attorney at the NLRB's Supreme Court and Appellate Court Branches), has just posted on SSRN her new article, Toward a Foundational Theory of Workers' Rights: The Autonomous Dignified Worker. Here's the abstract:
This article suggests an initial step toward grounding workplace laws in rights-based theory. Accepting that a legal right is nothing more than a reflection of the value attached by the political system to sundry, often conflicting, interests, I argue that American labor and employment law reflects the quintessential values of a free market economy, most notably efficiency, wealth maximization by rational decision-makers, and autonomy defined as freedom from coercion. Free market values tend to underlie several policies that favor individual over collective bargaining, employment at-will and strong management prerogatives, a dual labor market, and a welfare system with minimal wealth redistribution. Those policies favor the liberty and property rights of the owners of capital while tending to inflict harm on workers. Starting with Raz's conception of personal autonomy — becoming part author of one's life — and Dworkin's conception of dignity — promoting each person as having equal moral worth — I try to build a place for workers' legal rights based on the autonomous dignified worker. From there, I present a social action program to show how modest changes in the law would return the autonomous dignified worker to work.
I read a draft of this article, and it's really quite interesting and original--definitely worth taking a look at.
It seems that the Pension Benefit Guaranty Corporation (PBGC), the federal insurer of terminated defined benefit plans, is calling out Northwest Airlines for not being forthright about their remaining pension obligations once the airline emerges from bankruptcy protection.
From PlanSponsor.com's NewsDash this morning:
BUYER "BEWARE." The nation's private pension insurer has a message for potential investors in Northwest Airlines: Know what youre getting into. On Friday the Pension Benefit Guaranty Corporation (PBGC) said that Northwest hasn't been clear about the implications of its pension liabilities in the Chapter 11 disclosure statement it plans to send to creditors. In a court filing last week, the PBGC is asking that Northwest Airlines make it clear to creditors that the airline will remain stuck with "billions of dollars" in pension liabilities if it exits bankruptcy proceedings under its current Chapter 11 plan. "The disclosure statement should clearly state what is now, at best, implied and buried between the lines," the PBGC said, according to an Associated Press report.
The full story is here. This is a great example of one of the less-publicized, yet important, roles that the PBGC plays in insuring employers' pension plans. It is a watch dog group of sorts making sure not only that the plan termination insurance process is not abused by employers, but also acting as a conduit of information for other stakeholders.
- Rachel Arnow-Richman (left), Cubewrap Contracts and Worker Mobility: The Dilution of Employee Bargaining Power via Standard Form Noncompetes, 2006 Michigan St. L. Rev. 963 (2006).
- Patricia Nemeth (center) & Deborah Brouwer (right), Annual Survey of Michican Law: Employment & Labor Law, 52 Wayne L. Rev. 565 (2006).
Comments & Notes
- Kegan A. Brown, My Individual Acts Can Get Me Fired, But Can My Supervisor's Individual Acts Get Me Money?: Examining Individual Liability for Public Sector Supervisors Under the Family and Medical Leave Act, 58 Rutgers L. Rev. 1023 (2006).