April 21, 2007
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Annamaria Lusardi & Olivia S. Mitchell, Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (165).
- Daniel I. Halperin (photo above) & Ethan Yale, Deferred Compensation Revisited (81).
- Piet J.W. Duffhues & Rezaul Kabir, Is the Pay-Performance Relationship Always Positive? (79).
- Faith Guvanen & Burhanettin Kuruscu, A Quantitative Analysis of the Evolution of the U.S. Wage Distributions: 1970-2000 (69).
- Wolfram J. Horneff, Raimond Maurer, Olivia S. Mitchell, & Michael Stamos, Money in Motion: Dynamic Portfolio Choice in Retirement (65).
Top-5 International Employment & Labor Law SSRN Downloads
- Eric V. Edmonds, Child Labor (66).
- Katherine V.W. Stone, A New Labor Law for a New World of Work: The Case for a Comparative-Transnational Approach (63).
- Harry W. Arthurs, Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law (53).
- Franklin A. Gevurtz (photo above), Disney in a Comparative Light (42).
- Margaret M. Blair, Cynthia A. Williams, & L-Wen Lin, Assurance Services as a Substitute for Law in Global Commerce (14).
April 20, 2007
Does Due Process Exist for Law Professors?
Apparently not if one reads this troubling story from the Chronicle of Higher Education (subscription required):
The American Association of University Professors has protested the University of Tulsa's decision to suspend an assistant professor of law and ban him from the campus without a hearing and without any charges being brought against him.
The faculty member, Gregory M. Duhl, was also prohibited from contacting colleagues or students. He will continue to be paid during his suspension.
Two faculty committees have asked the university's administration to reinstate Mr. Duhl, whose courses were abruptly canceled on the first day of the spring semester, in January. He taught two sections of a course in selling and leasing, neither of which was rescheduled.
I, of course, do not know the specifics of the case (except that the article refers to a murky grading dispute involving two students), but I do know something about notions of due process and fundamental fairness and they seem to have been violated to a substantial degree in this case.
Law schools, which seek to teach fundamental concepts of justice and fairness to their students, should at the very least abide by these same principles when dealing with their own faculty members.
Domestic Violence in the Workplace Plan Introduced in Senate
Workforce Management has an timely report on a new Senate bill introduced by Senator Patty Murray (D-Washington) [pictured left] which would provide leave for victims of domestic violence in the workplace:
On the day after the worst shooting rampage in U.S. history at Virginia Tech University, Sen. Patty Murray, D-Washington, introduced legislation that would address violence in another sometimes volatile location—the workplace.
Murray’s bill, the Survivors’ Empowerment and Economic Security Act, would allow 30 days of leave for victims of domestic violence in the workplace so that they can appear in court, seek legal assistance and secure their homes and families.
One victim of domestic violence at work, however, told the panel her harrowing story—and asserted that her employer didn’t help her.
Yvette Cade’s estranged husband attacked her while she was working at a T-Mobile store in suburban Washington, D.C., on October 10, 2005. He doused her with gasoline, chased her from the facility to the parking lot, crushed her foot and set her on fire. The incident occurred a few weeks after a judge declined to place a restraining order on the man.
As compelling as these cases are, some from the outset appeared skeptical about the proposed bill: "Although each witness at the hearing agreed that office violence should be prevented, an employment lawyer representing the Society for Human Resource Management cautioned against assuming that employers are not doing enough to prevent workplace tragedies."
Bales in the Daily Labor Report on Updated Guidance on Employment Arbitration Issues
Big kudos to my blogging partner-in-crime, Rick Bales (Chase-Northern Kentucky), for a long article summarizing his paper at the NAA's Protocol Conference last weekend in today's BNA Daily Labor Report.
Here's a taste:
The 1995 due process protocol on employment arbitration needs to be updated to provide guidance to arbitrators, employers, and the courts on a number of critical legal issues that have arisen since then, a law professor said in a paper presented April 13 at a National Academy of Arbitrators conference. The protocol drafted by a task force representing employers, employees, and arbitration service providers "set minimum procedural safeguards for inclusion in all employment arbitration agreements" and has been "extremely influential" with many employers and courts, Professor Richard A. Bales said in his paper. However, he observed that the protocol's drafters never anticipated some of the fairness issues that have developed in the past 12 years.
Bales teaches at Northern Kentucky University's Chase College of Law. In his paper, he reviews the case law on a number of contested issues affecting whether an employer's arbitration plan is an enforceable contract, whether the plan creates barriers that prevent employees from pursuing their employment law claims, whether the arbitration procedures are fair, and whether employees can obtain all the remedies they would be entitled to if successful in court. "A procedurally lopsided arbitration agreement that effectively waives an employee's ability to enforce an underlying statutory antidiscrimination law ... would effectively waive the employee's substantive rights, contrary to the Supreme Court's prescription" in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 55 FEP Cases 1116 (1991), Bales said. He asserted that "as some unscrupulous employers continue to find new and inventive ways to tilt the arbitral playing field in their favor, courts should uphold their responsibility to ensure fair arbitral processes by refusing to enforce lopsided arbitration agreements."
You can download Rick's full article, which will appear in Volume 12 of the Employee Rights & Employment Policy Journal, here.
Way to go, Rick!
April 19, 2007
Georgetown Gets Grant for Workplace Flexibility
Georgetown University Law Center’s Federal Legislation Clinic has received a $3 million grant from the Alfred P. Sloan Foundation to continue and expand the activities of Workplace Flexibility 2010, a research, outreach and consensus-building initiative to support the development of a comprehensive national policy on workplace flexibility.
"Workplace Flexibility 2010 has been the driving force in beginning a national conversation on how flexibility in the workplace can benefit both businesses and families," said Georgetown Law Dean T. Alexander Aleinikoff. "This new grant will allow that critical conversation to continue."
Since its inception in 2003, Workplace Flexibility 2010 has engaged in thorough, objective research to determine how existing laws and practices – in areas such as labor, employment, anti-discrimination, tax, health and benefits – support or hinder workplace flexibility. It also has brought together stakeholder organizations including business and management groups, unions, and family and community advocates in order to establish alliances that will serve as the foundation for creating a consensus-based, comprehensive national policy on the issue.
EEOC Discusses Family Responsibility Discrimination
Thanks to Cynthia Calvert (Center for Worklife Law, UC-Hastings) for bringing to my attention the fact that the EEOC Commissioners held a discussion with experts on family responsibility discrimination (FRD). Here is a taste of Cynthia's post on the Worklife Law Blog:
The EEOC Commissioners held a meeting yesterday to discuss work/life balance and job bias. They invited five experts to testify: WorkLife Law's Joan Williams; Zachary Fasman of Paul, Hastings; Heather Boushey, Center for Economic and Policy Research; Jennifer Tucker, Center for Women Policy Studies; and Elizabeth Grossman, EEOC Regional Attorney.
The experts' remarks are available online and are well worth reading.
In response to the Commissioners' questions, Professor Williams and Mr. Fasman debated the current state of FRD caselaw under Title VII, and ultimately agreed that "sex plus" is an outdated concept that isn't necessary or helpful as a theory for bringing FRD cases. The two also agreed that "loose lips" cases -- cases in which supervisors make blatantly discriminatory remarks such as "I'm terminating you so you can stay home with your baby" and "I don't see how you can be a good worker and a good mother" -- will likely become less prevalent in the future and the courts will see more pretext-type cases.
Cynthia tells us to keep an eye on the EEOC website in the near future for a transcript of the meeting and for notices of future meetings on FRD discrimination.
Herbert on Human Tracking Technology and Geoslavery
Bill Herbert (Senior Counsel, Civil Service Employee Assn.)
has forwarded to me his article in I/S: A Journal of Law and Policy concerning
the increased use of human tracking technology in the workplace. It is
Direction Home: Will The Law Keep Pace With Human Tracking Technology to
Protect Individual Privacy and Stop Geoslavery?
Here's the abstract:
Increasingly, public and private employers are utilizing human tracking devices to monitor employee movement and conduct. Due to the propensity of American labor law to give greater weight to employer property interests over most employee privacy expectations, there are currently few limitations on the use of human tracking in employment. The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase “geoslavery” to describe the abusive use of such technology underscores its power. This article examines the use of such technology under current federal and state law and suggests potential means for developing greater legal protections against the abusive use of the technology and the intrusion into personal privacy.
Given the increasing number of employee privacy violations as a result of this type of technology in the workplace, this is an extremely timely article. Hopefully, it will come to the attention of legislatures and will lead them to consider legislation to mitigate the harms caused by the proliferation of this technology in the workplace.
An EBRI study released last night indicates that Americans are woefully ignorant about the status of their preparations for retirement. The study surveyed, in January 2007, a cross-section of American workers and retirees. Among the findings:
- Workers are counting on benefits that will not be there when they retire. For example, 62% of workers say they expect to receive retirement benefits from a spouse's retirement plan, but only 41% of the spouses actually have such a plan. There is a similar discrepancy between the percentage of workers expecting to receive retiree health insurance and the percentage of workers who actually receive such benefits.
- Workers overestimate long-term care coverage. A quarter of workers and a third of retirees think they have long-term care coverage (other than health insurance, Medicare, and Medicaid), but only 10% actually have it.
- Most workers do not understand when they will be eligible for full Social Security benefits.
- More than half of workers say they would welcome retirement-planning investment advice, but two-thirds of these would implement only some of the advice, and 10% would implement none of it.
- Savings are modest. Many workers aren't saving at all. Of those who are saving, about half have saved less than $25,000.
- Workers do not understand the ways that the U.S. retirement system is changing, and workers are not adapting to those changes.
For the complete report, see Ruth Helman et al., The Retirement System in Transition: The 2007 Retirement Confidence Survey.
April 18, 2007
American Job Tenure
A study posted on SSRN today by Crag Copeland of EBRI reports some striking information about the average job tenure of American workers. The study compares job tenure in 1983 with job tenure in 2006. Among the findings:
- The median tenure for all wage and salary workers age 25+ was virtually unchanged from 1983 (5.0 years) to 2006 (4.9 years). However, during that period, tenure for male workers decreased from 5.9 years to 5.0 years, and tenure for females increased from 4.2 years to 4.8 years.
- The median tenure for private-sector workers held steady from 1983 to 2006 at 3.9 years. However, the median tenure for public-sector workers increased from 6.0 years to 7.0 years.
For the complete report, see Employee Tenure, 2006.
Maryland Wal-Mart Bill Dead
In Retail Industry Leaders Association v. Fielder, No. 06-1840 (4th Cir. Jan. 17, 2007), the 4th Circuit held that the Maryland Wal-Mart Bill, which would have required Wal-Mart to pay 8% of its payroll toward employee health care costs, was preempted by ERISA. (Here's our previous post on that decision).
Now comes word that Maryland will not appeal the 4th Circuit's decision to the Supreme Court (via the Baltimore Sun):
Maryland won't challenge a federal court decision striking down the state's "Fair Share" health care act, ending a two-year effort to force Wal-Mart Stores Inc. to pay more for employee health care, Attorney General Douglas F. Gansler said yesterday.
Gansler - who made the announcement standing alongside representatives of the O'Malley administration, the comptroller's office and labor groups that pushed for the first-of-its-kind law - said he concluded that an appeal was likely to fail.
Even if an appeal succeeded, Gansler said, litigation could take years and delay other efforts to more directly extend coverage to the 800,000 Marylanders who lack health insurance.
Maryland officials will now head back to the drawing board and look to examples in Massachusetts and other states to determine how best to provide health care to its citizens.
From my perspective, this seems like a wise decision given the current makeup of the Supreme Court and the direction which ERISA preemption precedent points. It would be a blow to all states' efforts to engage in health care reform if a broad decision by the Supreme Court prevented state experimentation in this important area of employee benefits law.
Hat Tip: How Appealing
Cameron on California Supreme Court Overtime Decision
Here is a summary of the the decision in Murphy v. Kenneth Cole from the article:
The California Supreme Court handed workers a major victory Monday, in effect tripling the back pay they can seek if they are forced to work through meal and rest breaks required by state law.
The long-awaited decision affects hundreds of thousands of white-collar workers in industries such as retail, food service, insurance and banking who are called managers or assistant managers but who spend much of their day ringing up sales, stocking shelves or sweeping the floor alongside the workers they oversee.
Here's one of Chris's two quotes in the article:
This is the single biggest area of employment litigation today and California is the leader, for better or worse . . . .Some employers would say we're terribly overregulated. But [the] plain fact is that most of [the regulations] aren't enforced.
Keep up the good work, Chris!
April 17, 2007
DOL to Update Child Labor Regs
Key proposals include new bans on particularly hazardous activities such as working at poultry slaughtering plants, riding as passengers on forklifts, fighting forest fires, and loading and operating non-paper products balers and compacters. The Department proposes to expand employment opportunities for 14- and 15-year-olds in industries such as advertising, banking and information technology. The proposal also would prohibit 14- and 15-year-olds from employment in door-to-door sales.
In a Notice of Proposed Rulemaking, the Department is requesting comments on proposed changes to seven non-agricultural hazardous occupation orders and on suggested revisions to the rules for 14- and 15-year-olds. In an Advance Notice of Proposed Rulemaking, the Department seeks information to update certain hazardous occupation orders for which there was not sufficient information to propose new rules.
Government Asked Views By Supreme Court in Two More Employment Cases
Although, as indicated yesterday, the Supreme Court did not grant certiorari in any new employment cases, it did ask the views of the solicitor general in an ERISA case and in a labor preemption case.
Here's a summary from SCOTUSblog:
The Metlife case questions whether the manager of an employee benefit plan has an illegal conflict of interest if the plan gives the manager both the authority to pay benefits and the power to rule on eligibility. There is a conflict in the Circuit Courts on the issue.
The Chamber of Commerce appeal tests whether federal labor law bars states from curbing the rights of employers to speak out about labor union organizing by their workers, even when the employer does not engage in any threats or reprisals of workers who are sympathetic to unions. The case involves a California law that forbids employers to use any state funds to pay for any expression, pro or con, about organizing. The appeal says that at least 15 other states are considering similar legislation.
Two very interesting and important cases. On the Metlife case, we recently described the issues in these structural conflict of interest cases that arise in denial of benefit claims under ERISA Section 502(a)(1)(B).
The Chamber of Commerce case addresses significant questions about the permissibility of state law regulation of employer speech, especially in situations where such speech takes on a captive audience dimension.
I will update developments in these cases as they become available.
The Labor Lawyer
Volume 22, Number 2, Fall 2006
- Robert J. Rabin (left), A Review of the Supreme Court’s Labor and Employment Law Decisions: 2005-2006 Term, p. 115.
- David K. Haase and Emma Sullivan, The Fall-Out From Dukes v. Wal-Mart Stores, Inc. – The Extent to Which Subjective Decision-Making Processes Are Susceptible To Class Treatment And How Employers Can Minimize Their Risk, p. 153.
- Cameron G. Shilling (right), Electronic Discovery: Litigation Crashes Into The Digital Age, p. 207.
- Kiren Dosanjh Zucker, Retrieving What Was Luce: Why Courts Should Recognize Employees’ Refusal Of An Employer’s Mandatory Arbitration Agreement as ‘Protected Activity’ Under Title VII’s Antiretaliation Provision, p. 233.
April 16, 2007
Supeme Court Argument in Coke
The Supreme Court heard oral arguments today in Long Island Care at Home v. Coke (06-593), which was the subject of a recent NPR report quoting Peggy Smith (Iowa), who, as noted in Paul's recent post, has done some great work in this case. The llibulletin at the Legal Information Institute (LII) at Cornell Law School recently gave the follow preview of Coke:
The Fair Labor Standards Act sets the minimum wage and other mandatory benefits for workers. Homecare workers such as babysitters and companions to the elderly are exempt from its provisions when employed directly for the family they work for, but what about when they are employed by a third party provider of such services? After following a notice-and-comment rulemaking procedure the Department of Labor said, in 29 C.F.R. § 552.109(a) under the heading "interpretations," that such third-party employed workers are exempt from the minimum wage requirement. Coke, a homecare worker employed by third-party provider Long Island Care at Home, brought suit questioning the validity of § 109(a). The Second Circuit Court of Appeals held the regulation was unenforceable. The United States Supreme Court now takes up the question of whether the Second Circuit gave the proper amount of deference to the Department of Labor's stance on the regulation in question.
I'll go out on a limb and predict a win for the Department of Labor. Although I don't think the exemption of home care workers paid by third-parties follows the FLSA's intent, the tea leaves don't look good for the plaintiff here. Even ignoring the fact that the Court chose to hear the 2nd Circuit's decision striking down this regulation, the case reads more like an administrative law issue of deference than anything else. Given this Court's lineup, I don't see them striking down a regulation to give employees more protection. Indeed, the two former administrative law professors on the Court--Breyer and Scalia--both seemed supportive of the Department of Labor's argument.
Supreme Court Denies Review of Jordan v. Alternative Resources
In a number of posts last year, we discussed a disturbing case in which the Fourth Circuit upheld the termination of an employee for reporting a racial epithet to his employer:
[T]he case concerned an employee complaining to his supervisors about being called an extremely ugly racial [epithet] at work. After he complained, his work life became difficult and he was eventually fired.
A 2-1 divided panel of the 4th Circuit found that the plaintiff did not engage in protected activity for purposes of Title VII's anti-retaliation provisions. A vigorous dissent argued that the court's reasoning placed the employee in a Catch-22 by placing "employees like Jordan in an untenable position, requiring them to report racially hostile conduct, but leaving them entirely at the employer’s mercy when they do so."
Later, the Fourth Circuit vacated its original position, but
reissued its opinion in Jordan v. Alternative Resources Corp., No. 05-1485 (4th Cir., Aug. 14, 2006) (on rehearing), and again found that the employee was not protected in reporting the offensive conduct.
The Supreme Court has today denied review of the case in its Order list and thus, we arrive at an unfortunate ending to an unfortunate case.
Just Another Example That NLRB Remedies Do Not Work
Thanks to Ross Runkel at the NLRB Law Memo for highlighting yet again just how inadequate the current remedies are for employees discriminatorily discharged for their union activities:
Pollock Electric, Inc., 16-CA-18629, 18629-2, 349 NLRB No. 69 (Apr. 6, 2007).
The Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging union member John Rogers on May 12, 1997 because of his activity for Electrical Workers IBEW Local 716. It reversed the judge and found that the Respondent did not implement and maintain discriminatory hiring practices on and after March 21, 1997, and that the Respondent did not refuse to hire or consider hiring five union applicants on and after March 21. The Board in 2002 remanded this proceeding to the judge to reconsider his earlier findings and conclusions in light of its decision in FES, (A Division of Thermo Power), 331 NLRB 9 (2000).
That's right folks, this employee had to wait 10 years for justice to be served. Totally unacceptable.
Congress needs to fund the NLRB and its affiliates at a sufficient level so that it can be an effective enforcement agency and 10(j) injunctions should be used much more aggressively by the Board to enforce the labor laws and so employees like Mr. Rogers need not suffer without a remedy for an appalling amount of time.
Comments & Notes
- Scott Aripoli, Hungry Hungry HIPAA: Has the Regulation Bitten Off More Than It Can Chew by Prohibiting Ex Parte Communication with Treating Physicians?, 75 UMKC L. Rev. 499 (2006).
- Aaron Kirkland, "You Got Fired? On Your Day Off?!" Challenging Termination of Employees for Personal Blogging Practices, 75 UMKC L. Rev. 545 (2006).
The Future (?) of Employment & Consumer Arbitration
At the NAA's Beyond the Protocol conference Friday and Saturday, folks from the AFL-CIO and SEIU said flat-out that one of their legislative priorities in 2009 will be nuking employment and consumer arbitration. How likely is that?
Here are some of the factors that I think will go into the equation: (1) a Democratic sweep in the 2008 national elections is probably a prerequisite. (2) Consumer arbitration is becoming uniquitous and egregiously lopsided. I tried to buy a $20 gift certificate at the mall yesterday and was presented with an arbitration agreement requiring arbitration at my expense in front of a 3-arbitrator panel in Guam and, of course, I couldn't bring my case as a class action. This begs for a backlash. (3) Look for one well-publicized case of a broad swath of consumers or employees getting screwed by a lopsided arbitration clause. That'll create political momentum. (4) Today's Wall Street Journal reports that the Securities and Exchange Commission is exploring a new policy that would require shareholder derivatives to be brought in arbitration. Not surprisingly, investor-rights groups are digging in their heels. The pendulum's shifting. And if the fight continues to make headlines, regular folks are likely to start wondering: if arbitration shouldn't be foisted on well-heeled investors, why should it be foisted on me?
It'll be interesting to see what this will mean for employment arbitration. Judicial insistence that employees retain the ability to enforce their statutory rights has given employees somewhat more protection than consumers, and my sense is that most (though certainly not all) employment arbitration provisions are better for employees than the litigation alternative. Will the FAA be amended to nuke both consumer and employment arbitration? Will a "bill of due process rights" be added to the FAA to protect consumers and employers? Will employers succeed in differentiating employment and consumer arbitration? Stay tuned . . . .