May 19, 2007
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Daniel I. Halperin & Ethan Yale, Deferred Compensation Revisited (205).
- Rik G.P. Frehen (left), Rob Bauer (right), Roger Otten, & Hubert Lum, The Performance of US Pension Funds (104).
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation (99).
- Ilan Guedi & Amir Barnea, CEO Compensation and Director Networks (74).
- Matthew D. Hutcheson, Uncovering and Understanding Hidden Fees in Qualified Retirement Plans, Second Edition-- Published February 1, 2007. (52).
Top-5 International Employment & Labor Law SSRN Downloads
- Margaret M. Blair, Cynthia A. Williams, & Li-Wen Lin, Assurance Services as a Substitute for Law in Global Commerce (69).
- Judy Fudge, The New Discourse of Labour Rights: From Social to Fundamental Rights? (52).
- Orly Lobel (photo above), Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions (21).
- Ruth V. Aguilera, The Evolution of Enterprise Unionism in Japan: A Socio-Political Perspective (11).
May 18, 2007
Protecting SOX Whistleblowers
You might recall Paul's post on Tuesday of this week about Richard Moberly (Nebraska) testifying before Congress on the inadequate protection Sarbanes-Oxley offers to whistleblowers reporting financial and accounting fraud. Today's Daily Labor Report contains a nice summary of Richard's testimony. Yesterday, Geoffrey Rapp (Toledo) (photo above) posted on SSRN his article (forthcoming Boston U. L. Rev.) arguing that SOX should encourage whistleblowers not only by offering them legal protection, but also by providing them a share of any future legal recovery -- a la the qui tam provision of the False Claims Act. Geoffrey's timely article is Beyond Protection: Invigorating Incentives for Sarbanes-Oxley Coprporate and Securities Fraud Whistleblowers. Here's the abstract:
Section 806 of the Sarbanes-Oxley Act of 2002 (“SOX”) recognized the importance of private actors in bringing to light information about corporate financial and accounting fraud. That section provides some protection for whistleblowers against retaliation for objecting to, and reporting, violations of the federal securities laws. While this limited protection is a step in the right direction, current law does not go far enough to encourage whistleblowers to risk incurring the adverse social, psychological, and economic consequences of exposing serious corporate and securities fraud. This Article develops the “bounty” model for rewarding SOX whistleblowers, and argues that sound public policy counsels its adoption and implementation. By giving whistleblowers a share of the recovery of those damaged by corporate and financial fraud (a “bounty”), the law could increase incentives for whistleblowing. The federal False Claims Act provides a sensible precedent.
The Somewhat-Compensated Volunteer and the FLSA
Phil Sparkes (Chase) writes about folks who volunteer their time with city and local governments (e.g., parent volunteers at the local school). He writes:
One quarter of all people who volunteer donate their time to givernment, and 85 percent of them serve city and county governments. In response to greater service demands by citizens and cutbacks in federal aid, local governments have increasingly come to rely on a greater number of volunteers across a wide range of service areas.
Many who volunteer do not expect and do not receive remuneration from the public agency with which they serve. Others, however, receive insurance coverage, parking, childcare, tax credits, tuition credits, a stipend, a uniform allowance, or some other benefit often intended in part to recruit or retain them. These payments potentially blur the distinction between a volunteer and an employee, [raising an issue under the] Fair Labor Standards Act.
For more, see The Somewhat-Compensated Volunteer in Local Government Law News.
Bodie on Union Elections
Matthew Bodie (Hofstra, St. Louis U.) has posted on SSRN his article (forthcoming Virginia L. Rev.) Information and the Market for Union Representation. Here's the abstract:
In its oversight of union representation elections, the National Labor Relations Board seeks to create laboratory conditions to determine “the uninhibited desires” of employees. Despite its comprehensive regulation of union and employer campaign conduct, however, the Board fails to insure that employees get basic information relating to their decision. This Article proposes a new paradigm for the representation decision: that of a purchase of representation services. This “purchase of services” model demonstrates that the market for union representation lacks the standard features required under economic theory to drive information into the marketplace. The resulting information deficiencies may render employees poorly equipped to make their representation decision.
May 17, 2007
Who Saves for Retirement?
Kabir M. Hassan (University of New Orleans) has posted on SSRN his article Financial Preparation for Retirement: Factors Affecting Retirement Preparation Through Employer Sponsored Retirement Plans. Here's the abstract:
This study examines the effect of various social, demographic, and economic variables on retirement preparation and discusses ways in which policy makers can use this information to mandate legislation that will motivate individuals to save for retirement. Using data from the Survey of Consumer Finances, probit analysis indicates that respondents' income and job tenure have significant positive effects on predicting employer sponsored pension plan eligibility. Conversely, the findings do not support the assumption that the probability of pension plan eligibility increases with age and education levels. In addition, we did not find race, marital status or home ownership to be significant factors in pension plan eligibility.
Regarding contributions to pension plans, the findings indicate that income, education and net worth have significant positive effects on whether or not an individual is contributing to a plan. Conversely, the findings regarding household size were significant and negative regarding the contribution decision. Race, health, and an individual's savings habits do not appear to have significant effects on the decision to contribute to employer sponsored pension plans. Additional findings, however, indicate that individuals who report the reason for saving is retirement are more likely to contribute to their pension plans. Finally, the results regarding future expectations for the economy were insignificant in relation to whether or not an individual was contributing to his or her pension plan.
OSHA Regs on Personal Protective Equipment
OSHA today proposed to revise the personal protective equipment
sections of its general industry, shipyard employment, longshoring, and
marine terminals standards regarding the use of eye and face protective
devices, and head and foot protection. A notice of proposed rulemaking
was published in today's Federal Register and the agency is seeking
public comments until July 16, 2007.
Personnel Today, via Jottings by an Employer's Lawyer and Work-Related Blogs and News, conducted a survey about different characteristics that inspire workplace teasing, and H.R. reactions to such teasing. Apparently, 15% of [English] H.R. folks believe it's acceptable to tease co-workers about shortness, 8% about being overweight, 7% about large breasts, and 5% each about small breasts and dandruff. Follow the link for a more comprehensive chart of "teasible characteristics."
Tie Votes in Union Elections
Over at Prawfsblawg, Yair Listokin asks: why does a tie vote in a union election go to the company? His numbers are interesting:
In my dataset of over 84,000 NLRB certification/decertification votes from 1977-1999, there was a tie in over 3,000 votes (3.6% percent of all votes). This happens because many votes come from small workplaces with even numbers of workers, making ties a frequent outcome.
Supplemental Briefs for Washington Union Fees Supreme Court Case
As we discussed on Monday, the outlook of the Supreme Court Davenport union fees case appears to have changed with the amendment of the underlying Washington election law. SCOTUSblog reported yesterday that the petitioners have now submitted supplemental briefs discussing the impact of the changed law on the pending case. The respondents had filed a brief last Friday.
Marty Lederman points out that:
Both petitioners argue that the case is not moot and that the Court should proceed to decide the case as it otherwise would have, even though its judgment now will only have retrospective application, perhaps only in this one particular case (and perhaps not even that, if the union were to prevail on the state-law question of good faith).
Sarkozy Proposes Tax-Free Overtime Pay
Nicolas Sarkozy took over as France's new president on Wednesday. Below are details of what the right-wing politician has promised to do during his first 100 days in power. ... Tax measures would also include exempting overtime of tax and social security charges, making interest on home loans tax deductible and reducing inheritance tax for most French people.
May 16, 2007
An Unusual Sexual Harassment Case from Higher Education
It is not every day that you see a university agreeing to indemnify a professor accused of sexual harassment (via Inside Higher Ed):
A professor who was sued for sexual harassment has agreed to resign from Washington State University in return for indemnification and a settlement amount. In a somewhat surprising move, the university will assume the legal burden of the professor, Bernardo Gallegos, even though it declined to provide counsel for him when he first requested it in 2005 and encouraged the deal under which he is leaving.
In the agreement, approved last week by the university’s Board of Regents, Gallegos forfeits any legal claims against the university and receives $87,328.24 “in exchange for the sale of his tenure.” Even though Washington State’s internal Center for Human Rights conducted its own investigation and found that Gallegos violated faculty sexual harassment policies, the university filed for summary judgment along with the defendant, asking that the suit be dismissed. The agreement between the university and professor includes a clause in which both sides deny wrongdoing.
Gallegos said the agreement came after two and a half months of negotiations, which began after the university’s counsel, Washington assistant attorney general Suzanne Parisien, approached his lawyer with a settlement offer. Parisien wouldn’t comment on the negotiations or why the university decided to take responsibility for Gallegos’s defense, but she said, “It was part and parcel of the agreement severing his relationship with the university. It is in the best interests of the university.” . . . .
The original complaint, which will go to trial on Sept. 4, was filed by a graduate student who was on friendly terms with Gallegos, Christina Garcia. Since the professor was not her adviser and didn’t teach her in any classes, and because the alleged events occurred off campus, the university denies any legal responsibility. In doing so, Parisien appears to both endorse Gallegos’s version of events and sidestep whether the accusations are true.
What makes this case unusual is that the internal investigation found sexually harassing behavior, but the university is arguing that it is not legally responsible because of the relationship between the parties and where the harassment took place. It is also unusual that the university has agreed to buy out the faculty member's contract under such circumstances. If the university is wrong, and the school is held liable both in its own right and for individuals claims against Gallegos, would it have been better for the university to just have fired the professor?
Rubinstein on Labor Relations Evidentiary Privileges
Mitchell Rubinstein (St. John's, New York Law School) has posted on SSRN his forthcoming piece in the Berkeley Journal of Employment and Labor Law: Is a Labor Relations Evidentiary Privilege Developing?
Here's the abstract:
Whether a labor relations privilege is developing is one of the most interesting as well as difficult aspects of labor law and the law of evidence. This issue typically arises when an employee has a confidential conversation with a non-attorney union representative concerning a labor relations issue and the employer or a third party seeks to learn about that confidential communication. A labor relations privilege is a critically important issue in labor law because much of labor-management relations is conducted by non-attorneys.
As the Supreme Court has recognized, it is in no ones interest to have uncertain privileges. However, that is exactly the state of the law this Article addresses. The twelve courts which have addressed the issue of whether or not a labor relations privilege should be recognized have issued conflicting opinions. Remarkably, in light of this conflict as well as the importance of this issue, the subject of a labor relations privilege has received virtually no scholarly attention.
This Article examines general principles of privilege law, the treatment of lay privileges in other contexts, freedom of association principles and the litigation that has taken place concerning the recognition of a labor relations privilege. This Article also explores the unique features of labor law which supports the recognition of a labor relations privilege. The handful of courts and commentators who have examined whether a labor relations privilege should be recognized, have not examined these critically important labor law principles.
The most amazing thing to me is that Mitch is an adjunct professor given his prolific scholarly output. This is another must-read on another increasingly important topic in labor law.
Wildenthal on Federal Labor Law and Tribal Sovereignty
Bryan H. Wildenthal (Thomas Jefferson) has posted on SSRN his forthcoming piece in the Oregon Law Review: Federal Labor Law, Tribal Sovereignty, and the Indian Law Canons of Construction.
From the abstract:
In 2004 the National Labor Relations Board, over a powerful dissent, overruled its own 1976 precedent and effectively rewrote the National Labor Relations Act of 1935 to apply to Indian tribal government employment within Indian country. In February 2007 the D.C. Circuit upheld this decision in San Manuel Band v. NLRB. What was the occasion for these startling and activist exercises in administrative and judicial lawmaking? Apparently, the growth and success of Indian tribal casinos. Judge Janice Rogers Brown's opinion for the D.C. Circuit purported to reaffirm longstanding Supreme Court canons of construction governing Indian law, yet she ended up affirming the Board's decision. This article argues, in part, that the Board and D.C. Circuit decisions violate the canons and that only Congress, after careful and deliberate consideration of all competing policy interests, has any authority to make such a dramatic change in federal labor law as applied to Indian country.
This is an important new article in an emerging area of labor law. Check it out.
Friedman's Law of Employment Discrimination (6th Edition)
Congratulations to Joel Friedman (Tulane) on the publication of his Cases and Materials on The Law of Employment Discrimination, Sixth Edition (Foundation Press 2007).
Here's a description:
[The book] will be published in early August, well in time for the start of fall classes. This casebook covers all of the major aspects of employment discrimination law, including updates on benchmark legislative, administrative, and judicial developments. The Sixth Edition solidifies this volume's standing as the most teachable and comprehensive casebook in its field. It retains the organizational structure that has made the previous editions adaptable to 2-, 3- or 4-credit courses but reflects a significant amount of editing to remove redundancies, clarify some ambiguous textual material and provide a more manageable teaching tool.
Professors who would like to review this casebook can request it by emailing their Foundation Press Account Manager.
The Worst ADA Decision of the Year (By Far)
However, in Littleton v. Wal-Mart Stores, Inc., No. 05-12770 (11th Cir. May 11, 2007), the Eleventh Circuit found:
The record shows that Littleton is able to read and comprehend and is able to perform various types of jobs. It is apparent that Littleton is somewhat limited in his ability to learn because of his mental retardation. However, he has pointed to no evidence which would create a genuine issue of material fact regarding whether he was substantially limited in the major life activity of learning because of his mental retardation.
It is unclear whether thinking, communicating and social interaction are “major life activities” under the ADA. We acknowledge that a review of Littleton’s deposition testimony is not inconsistent with his assertion that he sometimes has difficulty thinking or communicating. Even if thinking and communicating are major life activities, however, Littleton has not shown that he is substantially limited in those activities . . . .
Assuming that thinking, communicating and social interaction are “major life activities” under the ADA, we conclude that Littleton has failed to create a genuine issue of material fact that he is substantially limited in those pursuits. Thus he has failed to assert a prima facie case of discrimination under the ADA.
I'll let Sam Bagenstos of the Disability Law Blog, who brought this case to my attention, have the last word: "Is this case a parody? No, it's an outrage."
May 15, 2007
Chrysler and the UAW
The New York Times has a story on the UAW's interesting stance on the proposed purchase of Chrysler by Cerberus, a private equity firm. Ron Gettelfinger, the UAW president, had earlier criticized the prospect of such a firm taking over Chrysler, warning that it could "strip-and-flip"--that is, sell off major parts of the company, including many of its employees, to turn a profit. Now, following a meeting between Cerberus and Gettelfinger, his view has changed, although whether that will last is unclear. As the Times reports:
[B]ased on what the union was told of Cerberus’s plans, Mr. Gettelfinger said Monday that the U.A.W. was “confident enough to say that we support this transaction.” That support may dwindle as the company and the union start discussing specifics. The most obvious way for Cerberus to make money off its investment is to cut costs — especially by reducing the benefits that workers hold sacred, including medical benefits for workers and their immediate families for life, with only modest co-payments or deductibles. . . .
By showing their support Monday for the Cerberus deal, U.A.W. leaders may have been trying to set the tricky groundwork of making the prospect of concessions palatable to union members as a way to keep Chrysler competitive. . . .
One idea may come from the Goodyear Tire and Rubber Company, which is giving the United Steelworkers union $1 billion to take over a health care plan covering 30,000 retired workers.
Executives from all of Detroit’s companies have studied the plan, which would probably cost the auto industry tens of billions of dollars to carry out in the United States. But if the U.A.W. did agree, it would mean removing the liability from the car companies.
Gettelfinger has long been a realist and his change in position here seems no different. Chrysler is in trouble and was going to be sold no matter what the UAW did. It makes sense that the UAW is trying to do the best it can--as early as it can--with a bad situation. Indeed, by getting at least tentative union support at this stage, Chrysler's prospects for survival may be greatly enhanced. Only time will tell.
Moberly to Testify on Whistle Blowing In Front of Congress
Congratulations to Richard Moberly (Nebraska) who will be testifying today at a hearing before the House Subcommittee on Workforce Protection. The title of the hearing is: "Private Sector Whistleblowers: Are There Sufficient Legal Protections?"
Among Richard's fellow panelists will be Jeffrey Wigand, the famed tobacco whistle blower who was played by Russell Crowe in The Insider.
Here is the schedule for the hearing.
Adjunct Law Prof Blog
Congratulations to Mitchell Rubinstein et al. on the launch of Adjunct Law Prof Blog. Check it out! Mitch frequently graces the pages of Workplace Prof Blog, as he is a very prolific author of articles on employment and labor law topics.
Lurie: The Mark Twain of ERISA
He was appointed Assistant Commissioner (Employee Plans and Exempt Organizations) as the first person to administer the IRS' ERISA program in the National office in Washington, in the mid-70's. Al has been a prolific author and speaker in the employee benefits community ever since.
Al's broad experience with employee benefit plan operation, design and policy, coupled with his gift for clever and insightful writing -- I think of him as the Mark Twain of ERISA -- make him a national treasure.
He currently is president of Alvin D. Lurie, P.C., in Larchmont NY, and of counsel to The Wagner Law Group, Boston MA.
News about Al's most recent employee benefits activities and the text of various articles he has written, including some published here on BenefitsLink.com, is found at this link.
Of course, we have featured Al's writings and insights on this blog as well and always feel privileged to have him share his point of view with us.