Friday, May 4, 2007
My wife, coincidentally a stay-at-home mom, left a hard-copy version of this article in a strategic place where I would find it this morning (via CNN.com):
The typical mother puts in a 92-hour work week, the company concluded, and works at least 10 jobs. In order of hours spent on them per week, these are: housekeeper, day-care center teacher, cook, computer operator, laundry machine operator, janitor, facilities manager, van driver, chief executive officer and psychologist. By figuring out the median salaries for each position, and calculating the average number of hours worked at each, the firm came up with $138,095 -- three percent higher than last year's results.
For the record (and for some brownie points?), I deeply appreciate all that my wife, the true CEO, does for our family.
Now, is there any way we can get our hands on some of that money she is owed?
reporting in News Dash this morning:
President George W. Bush intends to nominate Bradford P. Campbell, who currently serves as Acting Assistant Secretary and Deputy Assistant Secretary at the Employee Benefits Security Administration, to be Assistant Secretary of Labor (Pension and Welfare Benefits). Previously, Campbell was Senior Legislative Officer in the Office of Congressional Affairs at the Department of Labor.
More on this appointment can be found here.
And in other appointment news:
President Bush also intends to nominate Charles E. F. Millard to be Director of the Pension Benefit Guaranty Corporation. Millard currently serves as Managing Director at Broadway Partners, LLC. Previously, he served as a Managing Director at Lehman Brothers. From 1995 to 1999 he served as President of the New York City Economic Development Corporation. He also served as Group Head and Managing Director at Prudential Securities, Inc. and was twice elected to the New York City Council.
More information about Millard's appointment can be found here.
Well, there are not many things more relevant to me than getting tenure at law school, so I couldn't passed up mentioning this article from Inside Higher Ed this morning:
The American Bar Association — at the urging of some law deans and to the dismay of many law professors — is considering an end to having tenure systems be one requirement for law school accreditation. A special task force of the ABA has been working on a set of recommendations about accreditation and will not submit its findings until next month. But reports about what the group may recommend, and what law deans have urged it to recommend, have been circulating in recent weeks — and e-mail has been flying among law professors.
At a meeting of the ABA Accreditation Policy Task Force last week, a preliminary vote found by a slim majority that they should recommend that most if not all terms and conditions of employment should not be part of the requirements for accreditation, according to Gary Palm, a retired clinical law professor at the University of Chicago who is a former member of the ABA’s accrediting body and who was present at the meeting. While the vote is not by any means final and does not definitively suggest any particular outcome in the final report, it does signal the split of opinion on the task force and the direction in which its recommendations were at least recently headed . . . .
For some time, the American Law Deans Association has been advocating that the ABA stop regulating the employment contracts of accredited law schools. Currently, tenure and academic freedom are mandated for regular faculty, along with protections “reasonably similar to tenure” afforded to full-time clinical faculty members, and measures to protect the academic freedom of legal writing teachers. Library directors and deans are also required to have tenure or tenure-track faculty appointments. The law deans’ association itself does not have a position on tenure, but it stresses the autonomy of law schools to formulate their own employment policies and the gains in innovation that would come through loosening the standards.
It will not surprise anyone that I am not a fan of this proposal. I believe that tenure is essential to the academic freedom that law faculty, and other faculty, must possess to take controversial stands on the issues of the day without facing repercussions. I certainly would not feel comfortable at a school where my livelihood was based on not offending the dean, other faculty, students, or alumni, with my academic research or writing.
And although it may be that schools might still have tenure systems even without the accreditation requirement, I agree with Michael Olivas (Houston), who states in the article: "The public record certainly suggests that this position would erode the requirement protections of tenure, tenure-track status, and professional security that various legal educators currently hold under the accreditation regime that has been in place for many years."
Thursday, May 3, 2007
An individual employee is not a party to the collective bargaining agreement between a union and an employer. Additionally, under the terms of most collective bargaining agreements, the union owns the arbitration procedure, and therefore, it is entirely up to the union whether it will proceed with the arbitration. As a party to the arbitration, it is also the union's decision whether to appeal any adverse arbitration award. Stated another way, the grievant simply does not have standing to proceed without the support of his or her union.
Under existing law, if the union does not agree that an arbitration case has merit, there is very little an individual employee can do other than to sue the union for breach of the duty of fair representation. This Article argues, however, that there is a way to avoid hostility and unnecessary litigation in a way which will satisfy the grievant, his or her union, and perhaps even the employer. It is submitted that in certain cases the union could assign its right to proceed with the arbitration to the grievant. The grievant would have his day in court, and the union would not have to bear the time and considerable expense of arbitration with respect to a claim it believed either lacked merit or which should be presented by the individual grievant.
To this commentator's astonishment, there is no academic commentary addressing the important issue of whether or not unions can assign their right to arbitrate or their right to appeal to an individual grievant. Additionally, there are only three judicial decisions on this issue, and all three opinions arose in the public sector. In all three of these decisions, the courts held that the union could not make the assignment. As explained in this Article, a close examination of these decisions demonstrates that all three of these decisions were wrongly decided.
Thanks to Stephen Rosenberg at the Boston ERISA Law Blog for bringing to my attention this interesting article in the New York Times concerning behavorial economic insights into 401(k) participant behavior. Stephen writes:
I have written before about my thesis that 401(k) litigation, and the tendency of individuals to pursue such suits, may be driven in part by the psychology of retirement benefits and the uncertainty for employees as to whether they will be able to fund their retirement that these types of retirement savings vehicles create, particularly as opposed to pensions, which, on anecdotal evidence, seem to generate far less litigation than 401(k) plans. Along these lines, this article out of today’s New York Times about behavioral economics and the impact of consumer choice on 401(k) contributions caught my eye. The article compares retirement savings to research into the strange behavioral distortions that appear to underlie overeating, and discusses how the Pension Protection Act is written in a manner intended to remove certain behavioral distortions from the decision to make 401(k) contributions . . . .
[T]he article sums up the research into consumer behavior as follows: “[w]hether it’s 401(k)’s or food, the way choices are presented to people — what the economist Richard Thaler calls ‘choice architecture’ — has a huge effect on the decisions they make.”
Interesting stuff. Like Stephen, I wonder: "If we are presenting 401(k)s to employees in a way that makes for retirement uncertainty and for doubt (or at least fears, founded or unfounded) as to the abilities and fidelity of those managing them, the question becomes whether we are creating a 'choice architecture' that points people towards litigation, rather than away from it."
This is clearly an area ripe for academic discussion and debate.
Here's an easy-to-understand explanation from Frank Cummings [pictured left], one of the architects of employee benefits law in this country, on the BNA Pension and Benefits Blog about the shift from pension plans that put the investment risk on employers to those that shift the risk to employees:
The benefit gambit currently in vogue is a new kind of risk-transfer. Instead of having the employer assume the employee’s long term risk (by defined benefit pensions, and by comprehensive health benefits), the name of the game now seems to be: transfer the risk to the employee. How? First, by giving the employee a defined contribution 401(k) and letting the employee take the risk that it might not be sufficient for retirement; and second, by designing a health benefit plan where large components of the risk of health costs are transferred back to the employee, and giving the employee a Health Savings Account that may or may not be sufficient to cover that risk. And so on.
So can employees insure this new risk that they are undertaking? There does not appear to be a current market for such insurance, but Frank argues convincingly:
This is a market in need of new insurance products. The insurers have a well-established but perhaps obsolete habit of “selling” group products primarily to employers, designed to save money for employers and reduce the employer’s risk. What new safe harbors or other law changes are needed to facilitate an insurance industry effort to reduce employees’ risks? What new “suitability” issues are involved? Surely the need is there, and the need should make the market.
Edward Zelinsky (Cardozo) has posted on SSRN his forthcoming piece in the William & Mary Law Review: The New Massachusetts Health Law: Preemption and Experimentation.
From the abstract:
Major features of the new Massachusetts health law are ERISA-preempted as forbidden regulation of employer-provided health care.
This is a regrettable conclusion but one mandated by the ERISA Section 514 and the controlling case law. ERISA preempts the new law's mandate requiring covered Massachusetts employers to sponsor medical plans for their employees and to make “fair and reasonable” contributions to such plans. ERISA also preempts the new law's requirement that Massachusetts residents maintain “minimum creditable coverage” for health care as that requirement effectively mandates for Massachusetts employers the substantive medical coverage they must offer their employees....
At a minimum, Congress should amend ERISA Section 514 to validate the new Massachusetts health law. More comprehensively, Congress should amend Section 514 to permit all states to experiment with health care reform insofar as such experiments “relate to” employer-provided health care. Ideally, Congress should repeal Section 514 and thus abolish altogether the jurisprudence of ERISA preemption.
A provocative argument from a scholar at the forefront of ERISA preemption law.
Wednesday, May 2, 2007
OK, not so surprising that age discrimination exists in other countries outside the United States, but the extent of it according to this recent study by Peter Riach and Judith Rich at the Institute for the Study of Labor in Germany is eye opening.
Here's an abstract of their findings:
In a field experiment of age discrimination, pairs of men aged twenty-seven and forty-seven, inquired, by email, about employment as waiters in twenty five Spanish towns. Discrimination against the older waiters, corresponded to the highest rates ever recorded anywhere, by written tests, for racial discrimination.
To download the full study and to see how the authors determined whether age discrimination actually occurred, you can follow this link.
Of course this concerns Great Britain, so what other types of scandals are there? (via the New York Times):
John Browne, an aggressive but mannerly British magnate who transformed BP into one of the most successful global companies, resigned abruptly yesterday after losing a court battle with a London tabloid over details of his relationship with a younger man.
In one of the most humiliating come-downs in British business life, Mr. Browne acknowledged offering an “untruthful account” to a court about the circumstances under which he had met the man, a former companion.
His fall seemed all the more magnified after his rise to the top at BP, the company where he had worked since he was a university student. He had already been forced to announce an early retirement after the energy company suffered problems relating to its safety record, including an accident at its Texas refinery that killed 15 workers.
Let's hope this is not about the fact that the man is homosexual, but because he perjured himself when confronted with allegations that he had improperly used company funds to support his male companion. Also, given the horrific castastrophe that took place at the Texas refinery during his watch, it is hard to have much sympathy for Mr. Browne.
The cost of his being forced to retire three months early: a cool $30 million dollars.
Brent Hunsberger at The Oregonian At Work Blog reported yesterday:
With Gov. Chris Gregoire's signature expected, Washington should become the second state in the nation to provide workers with pay when they take leave to care for a child. See The Associated Press' coverage of the bill that passed the Washington Legislature last month that would provide, beginning in 2009, workers $250 a week for five weeks of leave. The story notes the influence of momsrising.org
The final version of the bill got watered down, however. The Senate removed language that would have extended pay to workers caring for an ill family member. California's program does that, and the federal Family Medical Leave Act allows for such time off, albeit unpaid. The financing of the measure also is uncertain. The compromise upset Vancouver Republican Sen. Don Benton, who criticized Democrats for capitulating on the original bill, saying, "Where is the Senate's backbone on this issue?
The gesture of providing some pay for workers who have sick children is an important first step. But one wonders with the small amount of pay (probably less than unemployment compensation in some cases) and with the lack coverage for one's own illness or sick family members whether this bill will have much effect at all.
Something is better than nothing, but this is much closer to nothing for a lot of people I suspect.
Tuesday, May 1, 2007
Thanks to a good friend of this blog, Patrick S. O'Donnell, for reminding us that today is May Day, a day when workers around the world are honored. We, of course, have our own Labor Day, but May Day is truly international.
Here are some reading suggestions and background on the workers' holiday from Patrick:
The historian Eric Hobsbawm has a nice discussion of May Day in his book, Workers: Worlds of Labor (New York: Pantheon, 1985), specifically, chapter 5, 'The Transformation of Labor Rituals,' pp. 66-82.
As Jeremy Brecher writes in Strike! (San Francisco, CA: Straight Arrow Books, 1972), ‘In 1884, a dying organization, the Federation of Organized Trades and Labor Unions passed a resolution that “eight hours shall constitute a legal day’s work from and after May 1, 1886.”’ Opposed by organized labor’s leadership (e.g. the Knights of Labor), ‘the idea of a general strike for the eighth-hour day had caught the imagination of tens of thousands of workers.’ Demonstrations up to the date were followed by strikes that began on May 1, 1886 and continued for several days afterward. The hysteria in the wake of the Haymarket bombing (see Paul Avrich, The Haymarket Tragedy, 1984) ‘gave the signal for law and order forces throughout the country to act.’ Brecher concludes that, although a ‘pattern of demoralization and compromise’ reverberated throughout the country, it is worth recalling that ‘the mass strike of 1886 was an attempt by the new class of industrial workers to use their power to gain some control over the conditions of their life and work. [….] The eight-hour strike was both an assertion that the worker was a human being whose life should not be consumed in toil, and an attack on the deliberate policy of keeping hours long and unemployment high in order to get the most work for the least wages.’
Thanks to Patrick for the reminder and for providing us with a wonderful dose
of our labor heritage.
Here are the shocking details from CNNMoney.com:
Wal-Mart Stores Inc. has used a myriad of tactics, including some that are illegal, to hinder the ability of its workers to form labor unions, a human rights group said in a report to be released Tuesday.
According to Human Rights Watch, the world's largest retailer has restricted the dissemination and discussion of pro-union views, threatened to withhold benefits from workers who organize, interrogated workers about their union sympathies and sent managers to eavesdrop on employee conversations.
And the canned reply from Wal-Mart (who us?):
Wal-Mart spokesman David Tovar said the Human Rights Watch report is based on "unsubstantiated allegations" and added that the retailer respects its workers' right to a free and fair unionization vote.
"Wal-Mart provides an environment of open communications and gives our associates every opportunity to express their ideas, comments and concerns," Tovar said in an emailed statement.
"It is because of our efforts to foster such an environment that our associates have repeatedly rejected unionization attempts."
And the fact that they close stores when unionization is successful (more here on the closing of the unionized Canadian Walmart store) and the fact they spy on their employees. But who's really paying attention anyway?
Now back to our regularly scheduled programming.
Marty Katz (Denver) raises an issue I haven't encountered before: does the 1991 Civil Rights Act apply to pregnancy discrimination cases? One would think the answer is an easy "yes," since the PDA amended the Title VII definition of "sex," and the 1991 CRA clearly covers "regular" sex discrimination. However, least one court has held that the PDA was not covered by the 1991 CRA -- see R. Joseph Barton, Determining the Meaning of "Direct Evidence" in Discrimination Cases Within the 11th Circuit, FLA. B.J., Oct. 2003, at 44 & n.15, citing Venturelli v. ARC Community Servs., Inc., No. 02-2294, 2003 WL 21659465 (7th Cir. Jul. 16, 2003) (concluding that a "direct evidence" case under the PDA must be "without reliance on inference or presumption" and "essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus"). Also, as Marty points out, the consensus view of courts seems to be that the 1991 CRA does not apply to retaliation cases -- might it similarly not apply to pregnancy cases?
Comments are welcome and appreciated.
For many years, proponents of civil rights for homosexuals, lesbians, and transgendered individuals have been seeking to amend Title VII to add sexual orientation as a protected classification under the Act. All previous attempts have failed, but there is new momentum this year with Democratic majorities in both Houses and there is even an outside chance the Employment Non-Discrimination Act (ENDA) will become law. Indeed, it would be interesting to see if President Bush would veto such a bill and on what grounds.
What is also interesting about this version of ENDA, and as pointed out in a series of excellent posts by Jillian Weiss at the Transgender Workplace Diveristy Blog, is that this incarnation of the legislation would also provide specific protection from employment discrimination for transgendered indivduals in the form of prohibiting unlawful discrimination on the basis of gender identity.
Thanks to Jillian for providing a text of the ENDA bill.
An increasing proportion of American workers are disabled, reports today's Wall Street Journal. The Journal cites a forthcoming survey from the Council for Disability Awareness finding that the number of workers receiving disability payments was up 4.4% last year, and Social Security figures showing that recipients of Social Security Disability Income likewise were up 4.4% last year. The increase isn't attributable to workplace safety issues. It's attributable to obesity, unhealthy lifestyles, and an aging workforce.
Monday, April 30, 2007
A number of months ago, a number of commenters and I debated
how careful one needs to be when handing out employment references for current
or former employees. I recommended that employers take the "name,
rank, and serial number" approach, given the risks of being sued by an
employee who is given a negative reference.
Law.com points out the 11th Circuit recently examined the other side of this issue during oral argument in the consolidated cases of Stephens County School District v. Dale, No. 06-14083, and White County School District v. Dale, No. 06-11565: What happens when a first employer knew relevant negative information about an employee and failed to tell a second employer? Can there be liability for the first employer when that employee causes harm at the second employer?
[A] case argued [this past] Thursday at the 11th U.S. Circuit Court of Appeals showed that staying quiet has its risks, too -- especially if the employer was a public school official who did not warn a colleague at another school that a former teacher had left amid allegations he touched female students inappropriately.
When the teacher was accused of molesting children at the second school, the parents of two girls sued both school districts. A federal judge refused to dismiss the claims against the first district, Stephens County, Ga., even though the molestation alleged by the plaintiffs' children had taken place at the second school district, in nearby White County.
Lawyers in the case said the question of a school district's liability for a professional reference is a new one for the 11th Circuit.
This might be a new question for the 11th Circuit, but other courts have considered similar issues. For instance, in Randi W. v. Muroc Joint Unified School District, 929 P.2d 582 (Cal. 1997), a school district gave a positive reference to an employee who was discharged for sexual misconduct. The school district was sued in for fraud and negligent misrepresentation when that employee later sexually abused a thirteen-year-old student at the new school. The California Supreme Court held that employers giving good reference to bad employees may be liable if the reference causes a foreseeable and substantial risk of physical harm to third parties.
Interestingly, the Randi W. court said the school would not have been liable if it had chosen to give no information. So perhaps under this line of reasoning, the school district in the 11th Circuit may be able to escape liability. Should be an interesting decision.
Hat Tip: How Appealing
So suggest this article in the St. Louis Post-Dispatch. Here's a taste:
Cross' firing and the ensuing age-bias litigation is a scenario being repeated across the country as companies' streamlining efforts take their toll on baby boomers who want to stay on the job but whose salaries make them targets for layoffs . . . .
The large number of baby boomers in the work force is helping to drive what some lawyers see as a steady rise in the number of age-bias complaints.
According to the Census Bureau, there were 78.2 million baby boomers as of July 1, 2005. Many boomers, the generation born between 1946 and 1964, have fought for civil rights, are bolder than the previous generation, and will stand up for themselves when they fall victim to what they see as unfair treatment.
"It's shocking and hurtful to them," said Donna L. Harper, a plaintiffs' lawyer with Sedey Harper P.C. in St. Louis. "It's like being cheated on by a spouse. You find out and you are sick to your stomach. It is such a betrayal for so many of these clients. Your whole world falls apart. A job is like that to people."
There are, however, fewer age bias discrimination claims being reported by the EEOC in recent years, but some believe that these numbers under-represent the problem because many cases go through state administrative processes or settle before being reported. There is also a chance that more claims will be filed with the recognition of disparate impact claims under the Age Discrimination in Employment Act (ADEA) after the 2005 Smith case (although succeeding under such claims is likely to be exceedingly difficult).
In any event, with many in the baby boomer generation at or reaching retirement, expect the number of these types of lawsuits to increase as industries continue to go through growing pains and engage in reduction-in-forces (RIFs).
Hat Tip: Kara Lincoln
New features of this edition include expanded discussion of consumer-directed health care plans; the latest research on participant investment behavior in 401(k) plans; the Department of Labor’s advisory bulletin on the fiduciary duties of directed trustees; the updated presentation of recent developments in ERISA litigations, including the Supreme Court’s decision in Sereboff v. Mid-Atlantic Medical Services, Inc., 2006; and an updated discussion of ERISA preemption of state laws, including state law mandates designed to expand the scope of health care insurance coverage.
This coming Fall semester will mark the third time that I have used Colleen's book, and nothing against the other competitor books out there, but for an employment-type like myself, it is really an easy-to-follow, comprehensive book. I am particular thankful that Colleen has updated this book so quickly with the advent on the Pension Protection Act of 2006 and the Supreme Court's recent decision in Sereboff.
You can find more information about the book here.
- Paul R. Koster (left), Workplace Searches by Public Employers and the Fourth Amendment, 39 Urb. L. 75 (2007).
- Judy Fudge, Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope of Labour Regulation, 44 Osgoode Hall L.J. 609 (2006).
- Christine Neylon O'Brien (second) & Stephanie Greene (third), Employee Threshold on Federal Antidiscrimination Statutes: A Matter of the Merits, 95 Ky. L.J. 429 (2006-07).
- William P. Kratzke (right), The (Im)Balance of Externalities in Employment-Based Exclusions from Gorss Income, 60 Tax Law. 1 (2006).
Comments & Notes
- Hona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561 (2007).
- Austin Ozawa, Reasonable Accommodation for Those "Regarded As" Disabled: Why Requiring It Will Create Positive Incentives for Employers, 2007 Columbia Bus. L. Rev. 313 (2007).