May 12, 2007
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Daniel I. Halperin & Ethan Yale, Deferred Compensation Revisited (199).
- Piet J.W. Duffhues (left) & Rezaul Kabir (right), Is the Pay-Performance Relationship Always Positive? (98).
- Rik G.P. Frehen, Rob Bauer, Roger Otten, & Hubert Lum, The Performance of US Pension Funds (89).
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation (82).
- Ilan Guedi & Amir Barnea, CEO Compensation and Director Networks (67).
Top-5 International Employment & Labor Law SSRN Downloads
- Eric V. Edmonds, Child Labor (84).
- Margaret M. Blair (left), Cynthia A. Williams (right), & Li-Wen Lin, Assurance Services as a Substitute for Law in Global Commerce (60).
- Judy Fudge, The New Discourse of Labour Rights: From Social to Fundamental Rights? (49).
- Ruth V. Aguilera, The Evolution of Enterprise Unionism in Japan: A Socio-Political Perspective (11).
May 11, 2007
Wal-Mart Wins Religious Pharmacist Case
Ross Runkel brings word about a Seventh Circuit case, Noesen v. Medical Staffing Network (7th Cir 05/04/2007) (nonprecedential disposition), involving Wal-Mart and a religious pharmacist who refused to dispense contraceptives:
Neil Noesen went to work for Wal-Mart as a pharmacist. He had religious objections to contraceptive articles, so the boss set things up so Noesen did not have to fill birth control prescriptions, take customer orders for birth control, or handle birth control items.
That wasn't enough for Noesen. If a customer phoned in with a birth control prescription, Noesen put them on hold and walked away without alerting someone else. When a customer came to the counter with a birth control prescription, he would walk away without telling anyone that a customer needed assistance.
The Court found for Wal-Mart on the employee's religious discrimination claim, holding that it would be an undue hardship for the Wal-Mart to change around its entire operation to suit the employee.
Given the employee's insubordinate actions, however, I think the Court could have upheld the termination for reasons unrelated to the employee's religious beliefs without doing a religious accommodation analysis.
Colorado Set to Ban Sexual Orientation and Gender Identity Workplace Discrimination
Assuming the bill is signed into law by Gov. Bill Ritter, Colorado will become the 20th U.S. state to ban workplace discrimination on the basis of sexual orientation and the 12th to ban discrimination on the basis of gender identity.
Members of the Colorado Senate voted to pass a bill prohibiting employment discrimination on the basis of sexual orientation and gender identity last week. This legislation, which previously passed the Colorado House, now goes to Gov. Bill Ritter’s desk.
Assuming the bill is signed into law, Colorado will become the 20th U.S. state to ban workplace discrimination on the basis of sexual orientation and the 12th to ban discrimination on the basis of gender identity.
Could a federal law be next? Here's hoping.
6th Cir: ERISA Preemption Has Limits
Thanks to Michael Fox at Jottings By An Employer's Lawyer for bringing to my attention this interesting ERISA preemption decision from the Sixth Circuit: Thurman v. Pfizer, Inc., 06-1571 (6th Cir. May 8, 2007).
Here is Michael's recitation of the facts of the case:
The facts are simple and straight forward (they always are when, as here, the court must accept plaintiff's pleadings as true). Dr. Thurman, a veterinary pathologist, interviewed for a job with Pfizer and was told that if he accepted the position, at age 62 he would be entitled to a pension in the amount of $3,100. He accepted and later was told that the information he received was incorrect and his monthly pension benefits would be about $816 a month.
Thurman sued seeking either the difference or for rescission and reliance damages in the form of benefits he relinquished by leaving his prior position (higher wage and stock options among others). The district court held that his entire claim was preempted by ERISA.
The Sixth agreed that seeking damages for the difference of what he would have made in the absence of the misrepresentation was preempted, but not the rescission and reliance claims:
What we have here is simply a case of a person who left his old employer based on promises made by his new employer. These promises could have concerned anything — for example, an increase in wages, more vacation days, or free parking. Here, these promises just so happened to concern retirement benefits. We see no reason to bind employers to some promises used to induce acceptance of an employment offer, but give them a ‘get out of jail free card’ when their promises concern the scope of a plan governed by ERISA.
I like the outcome because I think the employee should have an effective state law claim here, but I'm not sure this analysis is consistent with Supreme Court precedent concerning ERISA preemption. The question is whether the state law claim relates to an employee benefit plan either by having a connection with or reference to such a plan. It seems fairly clear to me that these state law claims have everything to do with an ERISA plan and just don't "so happen to concern retirement benefits."
If courts are unhappy with the remedies that ERISA provides and believe that it gives employers a "get out of jail free card," I certainly understand. But it is for Congress to fix this mess.
May 10, 2007
Deans Nance, Wu Receive Awards
Congratulations to Deans Cynthia Nance (Arkansas) and Frank Wu (Wayne State) for each receiving a Lifetime Achievement Award from the American Association for Affirmative Action. The awards are given to recognize individuals who have devoted a lifetime to the principles of access, equity, and diversity.
The Department of Labor's Wage & Hour Division has created an FLSA Overtime Calculator designed to help employers and workers understand overtime pay. The Calculator computes overtime pay due in a sample pay period based on information submitted by the user, such as the primary method of pay, additional compensation paid in the form of bonuses, commissions and shift differentials, and information relating to the hours employees worked. The Calculator then totals the hours worked during the sample pay period and, based on the user's input, calculates the overtime pay due for any overtime hours worked.
I haven't tried the Caclulator yet, but in my book, anything that makes calculating overtime easier is a very good thing.
Court Orders Arbitration of Discrimination Claim Notwithstanding Bar of Punitive Damages
The U.S. District Court for the Southern District of Iowa has enforced an arbitration agreement containing a clause forbidding the arbitrator from awarding punitive damages. The court reasoned that under Eighth Circuit precedent, the court's only role was to ascertain (1) whether there was a valid arbitration agreement, and (2) whether the claim fell within the agreement. All other decisions, concluded the court, were for the arbitrator.
This is nuts. The arbitrator's role is constrained by contract -- if the arbitrator rules the punitive-damages bar unenforceable, the arbitration award will be vacated for exceeding the scope of the submission. If courts like S.D. Iowa abdicate their responsibility to police arbitration agreements for (at the very least) compatibility with statutory rights, then those statutory rights are absolutely meaningless.
The case is Faust v. Command Center, Inc., ___ F. Supp.2d ___, No. 4:07-cv-00039 (S.D. Iowa May 3, 2007), 2007 WL 1290586 (Westlaw subscription required).
McCallum Defends Labour Law
This paper articulates a defence of labour law in the face of a multidimensional attack on the very existence of labour law in Australia. It critiques the Work Choices legislation from a number of angles, including: the elevated importance of individual agreement-making over collective bargaining; the erosion of conciliation and arbitration; and the corporatisation of labour law. It outlines the dangers inherent in Australia's new regulation-centred labour law scholarship. Finally, the paper emphasises the importance of labour law scholarship at universities.
Lobel on Targeting Giants
Orly Lobel (San Diego) has posted on SSRN her article (forthcoming in the Conn. L. Rev. symposium "Wal-Mart Matters") Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions. Here's the abstract:
Wal-Mart matters to the form and substance of law and social reform in several distinct ways. This article describes Wal-Mart as serving three key purposes - as target, symbol, and model - in the contemporary social reform landscape. First, Wal-Mart, the largest employer in the United States is an effective target, serving as a deep, large pocket which impacts huge numbers of stakeholders. Second, Wal-Mart as a familiar, visible, and brazen corporation serves as a compelling symbol of the dilemmas about the costs and distribution of benefits of for-profit enterprises. And third, Wal-Mart serves as an experimental model for strategically exploring the efficacy of alternatives in legislation, litigation, and political struggles for social reform. Describing these three key purposes, the article demonstrates how recent confrontations between Wal-Mart and the environments within which it operates are shaping contemporary forms of political deliberation, legal strategies and social reform activism. In particular, the article links these three ways in which Wal-Mart has been shaping legal debates by examining developments in Wal-Mart anti-discrimination suits, including the Dukes v. Wal-Mart Stores recently certified class action, ADA suits, and wage and hour claims against the superstore. The article further focuses on efforts by local governments and state legislature to target, and use big-box retailers as a symbol of record wealth gaps and a model for welfare reform, in the areas of health care provision and living wage ordinances.
May 9, 2007
More on Independent Contractors vs. Employees
Update: Thanks to Hank Leland for supplying me with this report on worker classification for tax purposes from the U.S. Congress Joint Committee on Taxation. And here is more from a May 8th hearing from the Subcommittee on Income Security & Family Support and the Subcommittee on Select Revenue Measures of the House Ways & Means Committee on “The Effects of Misclassifying Workers as Independent Contractors.”
One of the most important threshold issues in any area of employment law is whether a worker should be classified as an independent contractor or an employee. Not only is this classification important for determining whether an employer meets the employee threshold for a statute, but it also indicates whether a worker can bring a lawsuit under these statutes and how a company has to treat a worker regarding such things as employee benefits.
The importance of these issues was recently on display in an interesting Vermont Supreme Court opinion involving the classification of workers who made clothes at home for the Fleece on Earth company. Ross Runkel has the details.
Now comes Linda H. Donahue, James Ryan Lamare, and Fred B. Kotler, all of Cornell University's Industrial Relations School, adding to the scholarship with their new empirical piece: Employee or Independent Contractor? Misclassification Comes at a Price.
Here's the abstract:
Misclassification of workers occurs at the time of hiring, when individuals are categorized as employees or independent contractors. The legal distinction between the two relates to the right of control over work: employees take direction from employers as to the means, methods, and outcome; independent contractors are in business for themselves and retain the right to control how they will accomplish the task they’ve been hired to perform.
This study covers certain key industries in New York State for the years 2002-2005. Audits performed by the Department of Labor Unemployment Insurance Division indicate approximately 10% of private-sector employers did not comply with state regulations when classifying new hires; construction industry employers accounted for an estimated 14.9% of this group. The data also show that approximately 10.3% of private-sector workers were misclassified as independent contractors and about 14.8% of this cohort worked in construction.
These empirical findings indicate what is the probably just the tip of the iceberg of a very large problem in the United States. It will be interesting to see if these findings spur enforcement officials to more carefully scrutinize employer classifications of their employees.
Innovative Website for Employment Law: Private Ordering and Its Limitations
We are pleased to announce the launch of the website companion to our casebook, Employment Law: Private Ordering and Its Limitations. The site is designed to be a resource for both professors and students. It will contain employment law updates and developments, helpful links, sample exams, teaching ideas, and even powerpoint slides ready for use in the classroom.
We are particularly excited about what we think is a new approach to the standard Teacher’s Manual. While it will be available in traditional format, our Manual also is now presented in a "blog" form that allows you to comment on the materials and your experiences in teaching from our book. Obviously, this part of the site is password-protected, and we hope that its interactive nature will allow both adopters and the authors to share ideas about the material in each chapter. We also hope this feature will facilitate ongoing communication between employment law teachers and thereby enhance the classroom experience.
We invite you to preview the website at http://law.shu.edu/private_ordering/.
We will be adding additional content over the coming weeks (and, of course, continuously updating after that), and would like to include any suggestions you make. If you have any questions of comments about the book or the site, please do not hesitate to contact us. We look forward to the opportunity to work with you.
Recently Published Scholarship: The Law of Diversity
Vermont Law Review
Volume 30, Number 3, Spring 2006
- Francesco Palermo (top left), Accommodating Differences: The Present and Future of the Law of Diversity: An Introduction, p. 431.
- Stefania Scarponi (top center), The Present and Future of the Law of Diversity: Antidiscrimination in Employment and European Law, p. 693.
- Pascale Bloch (top right), Diversity and Labor Law in France, p. 717.
- Matteo Borzaga (bottom left), Accommodating Differences: Discrimination and Equality at Work in the International Labor Law, p. 749.
- Richard Janda (bottom center), Why Does Form Matter? The Hybrid Governance Structure of Makivik Corporation, p. 785.
- Linda O. Smiddy (bottom right), Responding to Professor Janda – The U.S. Experience: The Alaska Native Claims Settlement Act (ANCSA) Regional Corporation as a Form of Social Enterprise, p. 823.
May 8, 2007
White Guys Running Corporate Diversity Programs
[E]nlisting white males to foster diversity efforts ... is gaining currency at U.S. companies. White men run the diversity programs at big employers such as Coca-Cola Co. and Southern Co.'s Georgia Power unit. Coke last fall brought in a consultant to talk to employees about "engaging white men in diversity efforts." PwC and others have given white male managers part-time assignments to promote diversity alongside their regular jobs.
It's part of an effort to get diversity programs off the sidelines and into the mainstream of the business. Having a white man champion diversity efforts -- particularly one who works in operations rather than human resources -- can help bring other white males on board, the theory goes.
So . . . white men will only listen to other white men? In any event, it goes without saying that a company shouldn't hire a white male for a corporate diversity role because he's a white male.
Recently-Published Scholarship: A Tribute to Paul Weiler
Comparative Labor Law & Policy Journal
Volume 28, Number 2, Winter 2007
- John Trumpbour, The Crisis in Workplace Governance: Special Issue in Honor of Paul C. Weiler, p. 93.
- Thomas A. Kochan, Updating American Labor Law: Taking Advantage of a Window of Opportunity, p. 101.
- David Weil, Crafting a Progressive Workplace Regulatory Policy: Why Enforcement Matters, p. 125.
- Harry Arthurs, Reconciling Differences Differently: Reflections on Labor Law and Worker Voice After Collective Bargaining, p. 155.
- Daphne Taras, Reconciling Differences Differently: Employee Voice in Public Policymaking and Workplace Governance, p. 167.
- James J. Brudney, Recrafting a Trojan Horse: Thoughts on Workplace Governance in Light of Recent British Labor Law Developments, p. 193.
- Peter Hanau, Immigration to the Workplace: The German Experience, p. 213.
- Mary Cornish, Closing the Global Gender Pay Gap: Securing Justice for Women’s Work, p. 219.
- Takashi Araki, Changing Employment Practices, Corporate Governance, and the Role of Labor Law in Japan, p. 251.
- William B. Gould, IV, Globalization in Collective Bargaining, Baseball, and Matsuzaka: Labor and Antitrust Law on the Diamond, p. 283.
- Kenneth G. Dau-Schmidt and Timothy A. Haley, Governance of the Workplace: The Contemporary Regime of Individual Contract, p. 313.
- Cynthia Estlund, Something Old, Something New: Governing the Workplace by Contract Again, p. 351.
The Newest Hazardous Occupation: Beer Taster
Here's a cautionary tale from Brazil about jobs that might not be appropriate for alcoholics (via PlanSponsor.com's News Dash):
TASTER'S "CHOICE?" A Brazilian court has ordered an employer to fork over about $50,000 to compensate a worker for contributing to his alcoholism. The employer - a local brewery by the name of Ambev was ordered to pay 100,000 reals (US $49,400) to an unidentified worker who, as part of his job as a beer taster, allegedly drank about a liter and a half (3.2 pints) of beer each day. The employee said in his lawsuit that for more than a decade, he drank between 16 and 25 small glasses of beer during his eight-hour shifts at the company and he claims he also received a bottle of beer after each shift, according to Reuters. The company alleged the employee was an alcoholic before becoming a beer taster but the judge said an alcoholic should never have been placed in that position.
You can read more about this story here. Trenchant quips welcome.
ADA Case Heading to Supreme Court?
SCOTUSblog lists USF-Red
Star Express v. Taylor, 06-1284, decided by the Third Circuit, as having a reasonable chance of having certiorari being granted at this Friday's conference when the Supreme Court considers new cases for review.
The question presented is "[w]hether, in an action under the ADA, an instruction to the jury that a 'major life activity means an activity that an average person can perform with little or no difficulty' was consistent with this Court's decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams, which ruled that 'major life activities' are 'those activities that are of central importance to daily life.'"
Good luck to my friend and former colleague, Ed Mazurek of Morgan Lewis [pictured above], in getting the chance to argue this case before the High Court.
International Employment Law: Pandora's Box
Good article in this month's ABA Journal on the difficulties of practicing international employment law.
Here are some highlights:
[I]f the employment relationship crosses national boundaries, there may be little about it that is routine. Instead, the question of which jurisdiction’s law governs any number of employment issues—hiring and firing, privacy, benefits, immigration, discrimination—can quickly become complicated enough to intimidate even experienced practitioners.
In the field of international employment law, say experts, it’s crucial to recognize what you don’t know . . . .
Philip M. Berkowitz [pictured above] says that, even after a decade in the international employment law field, he never advises clients on issues arising under foreign law.
“I’m a New York lawyer. I won’t advise on New Jersey law, so I’m not going to advise on the law of the European Union,” says Berkowitz, who chairs the international labor and employment specialty team at Nixon Peabody. “I have a general familiarity with those laws. I can give a good speech on data privacy in Europe, and I can talk about the conflicts between the Sarbanes-Oxley hotline requirements and how they may conflict with the laws of France and Germany and the European Union generally. But I’m ultimately going to point my client in the direction of a European lawyer.”
And I couldn't agree with Mr. Berkowitz more. I also used to have international clients when I was in practice and the best thing I did when ever I had an employment issue for a client in England, Belgium, or Japan was to retain a legal expert from one of those countries. This is truly one of those areas where a lawyer has to recognize his or her limits.
May 7, 2007
The End of the French 35-Hour Work Week?
The election of conservative President Nicolas Sarkozy might not bode well for French workers (via HR.BLR.com):
Winning the election for the presidency of France on Sunday, Nicolas Sarkozy won much of his support from citizens who supported his main campaign promise to "let people work more in order to earn more" by eliminating governmental constraints on the 35-hour workweek.
In an article in the International Herald Tribune, many voters interviewed cited the workweek as a main reason for their vote.
I also found interesting this part of the analysis of the French vote:
I also found interesting this part of the analysis of the French vote:
Sarkozy's opponent, Socialist Ségolène Royal, who would have become the first female president of France, ran on gender-based issues, including pay equality and ending violence against women, but received fewer votes from women than Sarkozy did.
Women Lawyers of the World Unite
Robert Ambrogi over at Law.com's Legal Blog Watch has this story concerning an email a fellow blogger received about protesting the conditions at work for female attorneys. She writes:
I fantasized about a walk out of female attorneys, hopefully accompanied by their male supporters -- perhaps only an hour or two in length, to protest current conditions and to express support for the ideas/strategies proposed at yesterday's briefing. Or an all day conference, a sort of pre-planned walkout, filled with workshops on getting better assignments, business development, the work-life continuum, ... self-care, etc. -- not held on the weekend, but pointedly during the workday.
In response, Roberts asks:
Why not? Imagine the impact if women lawyers throughout the United States walked off their jobs for a single, organized day of workshops and events. Even better, imagine if their male supporters joined them. Would the business of law grind to a halt? You bet it would. Would progress be made? No doubt.
Why not indeed.