May 26, 2007
Invitation to Submit Labor Proposal for NPREC
Lance Compa (Cornell) writes with the following information:
The National Prison Rape Elimination Commission has issued an RFP for four separate projects, prepared to grant $75,000 for each of the four.
One of the four is a labor-related project. It is the 4th bullet point in the attached RFP. They want someone who is knowledgable about labor law, labor contracts, disciplinary procedures and the like. I suppose that experience in arbitration would be useful, but this is just my speculation.
AFSCME is part of the Commission, so there is a union voice.
It occurs to me that law profs might be well situated to carry out such a project. Perhaps as part of a clinical program, too.
The deadlines stated in the RFP have been changed. The date for proposal submission is now June 8. I think that can slip some. If you need more time to prepare a proposal, I am in a position to advise them that they should wait for your proposal, and I think they would.
The deadline for submission of the final report is still February 1, 2008.
Please consider this important project.
You can see the request for proposal here.
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Daniel I. Halperin & Ethan Yale, Deferred Compensation Revisited (222).
- Edward A. Zelinsky (photo above), The New Massachusetts Health Law: Preemption and Experimentation (108).
- Matthew D. Hutcheson, Uncovering and Understanding Hidden Fees in Qualified Retirement Plans, Second Edition-- Published February 1, 2007 (60).
- Wei-Yin Hu & Jason S. Scott, Behavioral Obstacles to the Annuity Market (55).
- Lisa Mensah & Pamela J. Perun, Savings for Life: A Pathway to Financial Security for All Americans (48).
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 (75).
- Judy Fudge, The New Discourse of Labour Rights: From Social to Fundamental Rights? (55).
- Orly Lobel, Big-Box Benefits: The Targeting of Giants in a National Campaign to Raise Work Conditions (30).
- Kirsten Anderson, Shelley D. Marshall, & Ian Malcolm Ramsey, Do Australian Institutional Investors Aim to Influence the Human Resource Practices of Investee Companies? (15).
- Dae Yong Jeong & Ruth V. Aguilera (photo above), The Evolution of Enterprise Unionism in Japan: A Socio-Political Perspective (13).
May 25, 2007
Illinois to Require Coverage of Breast Exams
BREAST PRACTICES. A new bill, H.B. 147, passed the Illinois Senate by a unanimous vote this week, having passed the state House of Representatives on April 27, according to Business Insurance - making the state the second in the nation (Oregon was the first) to enact legislation mandating that health insurers cover comprehensive breast exams for women (the mandate doesn't apply to self-insured employer-sponsored health plans). The bill now goes to Governor Rod Blagojevich, who has 60 days to either sign or veto it. If he does nothing, the bill will become law though he is expected to sign it.
The reason that this new legislation will not apply to self-insured plans is because of operation of the deemer clause under ERISA preemption. Is it any wonder that there has been significant transitioning to these types of health plans, and to stop-loss insurance, by many employers?
May 24, 2007
Overtime for Blackberrying?
Mitchell Rubinstein over at Adjunct Law Prof Blog notes the article Tech-Tock in Monday's New York Law Journal that considers the issue of whether non-exempt employees using technology such as Black Berry devices, cell phones, and laptops away from the office are entitled to overtime pay under the Fair Labor Standards Act. As the authors of the article point out, employers may be providing employees with these devices with the unspoken assumption that employees will use them to work during non-work hours.
WSJ on Caregiver Discrimination
As noted in yesterday's post, the EEOC has just issued a Guidance on the Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. Sue Shellenbarger provides a nice description of the Guidance in today's Wall Street Journal. However, I have a quibble about one thing she says.
Ms. Shellenberger correctly points out that the new EEOC Guidance does not create a new protected class of parents or caregivers. The next sentence, however, gives me pause: “It could be permissible, for example, for a company to refuse to hire parents – as long as the rule is sex-blind, affecting fathers and mothers equally.”
This sentence seems to conflate disparate treatment (the “sex-blind” part of the sentence) and disparate impact (the “affecting fathers and mothers equally” part of the sentence). A facially neutral “no parents” rule would pass muster under the disparate treatment theory. It’s hard to imagine, however, how such a rule would pass the disparate impact test. Empirically: (1) While paternity is often in doubt, maternity is not, so the rule will exclude all mothers but only a subset of fathers (fathers whose paternity is certain or acknowledged). (2) While it’s usually fairly obvious when a woman is a few months from becoming a mom, there’s no such physical change for men about to become a dad, so women who get pregnant on the job are likely to get fired while men who are about to become fathers may be able to hide that fact and retain their jobs. (3) When parents are separated or divorced or never together to begin with, the children are much more likely to live with mom than with dad. If the employment rule is “no parents with childcare responsibilities,” the rule will exclude more women than men because women are more likely to be the residential parent. Even if the rule is simply “no parents,” it’s much easier for a noncustodial father to hide his fatherhood than it is for a custodial mother to hide her motherhood.
So, while technically it’s correct to say that a “no parents” rule would be permissible if the rule affects mothers and fathers equally, it is very unlikely that such a rule would ever affect mothers and fathers equally.
No First Amendment Public Concern Here
A porn star claims a state trooper who stopped her on a highway let drug charges slide in exchange for oral sex. And she says she's got proof — the trooper's own video images of the roadside tryst. The allegations have led to a Tennessee Highway Patrol investigation and the trooper's suspension.
The trooper, James Randy Moss, declined to comment Tuesday. Highway Patrol spokesman Mike Browning confirmed investigators have interviewed the porn star, who is identified on a citation by her real name, Justis Richert . . . .
At least, he doesn't have to worry about Ceballos being applicable . . . .
May 23, 2007
EEOC Issues Guidance on Discrimination Against Caregivers
Donna Adkins of the U.C. Hastings Center for WorkLife Law reports that the EEOC today has issued a Guidance on the Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. The Guidance advises that discrimination can take the form of different treatment of men and women with young children, such as selecting fathers but not mothers for a training program. It also advises that discrimination can take the form of stereotyping, such as giving less desirable assignments to mothers on the assumption that they are not as committed to their jobs. Here's an excerpt from the Guidance's introduction:
Although the federal EEO laws do not prohibit discrimination against caregivers per se, there are circumstances in which discrimination against caregivers might constitute unlawful disparate treatment . . . . This document is not intended to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability. An employer may also have specific obligations towards caregivers under other federal statutes, such as the Family and Medical Leave Act, or under state or local laws.
As Paul reported last month, Worklife Law's Joan Williams was one of the folks who testified before the EEOC about the need for such a Guidance.
Rich Joins U.S.C.
U.S.C. has just announced that Camille Gear Rich, formerly of Debevoise & Plimpton in New York, will join the faculty to teach Employment Discrimination, among other things. Apparently Rich is taking the summer off, as Debevoise has already taken down her firm web page.
Are Medical Residents "Students" or "Employees"?
The Eleventh Circuit, as Mitchell Rubinstein points out at Adjunct Law Prof Blog, doesn't give a definitive answer, but instead says this must be decided on a case-by-case basis. The case is U.S. v. Mount Sinai Medical Center of Florida, ___F. 3d ___, and the formal legal issue is whether medical residents enrolled in graduate medical education programs qualify for the student exemption from FICA taxation found in 26 U.S.C. Sec. 3121(b)(10).
Solicitor General Supports Supreme Court Review of ERISA Remedies Case
[I]t looks like the Court may have another case for its OT2007 line-up: the United States (in a brief available here) recommended that cert. be granted in No. 06-856, LaRue v. DeWolff, Boberg & Associates . . . .
LaRue presents two questions: (1) whether, pursuant to Section 502(a)(2) of ERISA, a participant in a defined contribution pension plan may sue to recover losses to the plan caused by a breach of fiduciary duty, even when those losses affected only the participant’s individual account; and (2) whether an action by a plan participant against a fiduciary to recover losses caused by a breach of duty seeks “equitable relief” for purposes of ERISA Section 502(a)(3).
In the view of the U.S., the Fourth Circuit in LaRue erred in answering both of the two questions presented in the negative.
Read the rest of the SCOTUSblog post to get a good summary of why the government thinks these remedial sections of ERISA should be construed more broadly.
Recently Published Scholarship
- Ramona L. Paetzold, Supreme Court’s 2005-2006 Term Employment Law Cases: Do New Justices Imply New Directions?, p.303.
- Douglas D. Scherer & Robert Belton, Introduction, p. 351.
- Melissa Hart, Learning from Wal-Mart, p. 355.
- Nantiya Ruan, Bringing Sense to Incentives: An Examination of Incentive Payments to Named Plaintiffs in Employment Discrimination Class Actions, p. 395.
- Laura L. Ho, Collective Action Basics, p. 427.
- Steven G. Zieff, Advanced Issues in Collective Actions, p. 435.
- David Borgen, Advanced Issues in FLSA Collective Actions: Joint Employment, p. 447.
- Adam T. Klein, Mark R. Humowiecki, Tarik F. Ajami, & Cara E. Greene, The DOL’s New FLSA White Collar Exemption Regulations and Working with the DOL on FLSA Actions, p. 459.
- Charles Tompkins, Damages Issues in Fair Labor Standards Act Collective Action Litigation, p. 475.
- Janet Herold, Fighting the Good Fight: Prosecuting and Defending Class Wage Claims for Immigrant Workers, p. 487.
- Barry Goldstein, Ethical Issues in the Strategy for Preparing and Litigating an Employment Discrimination Class Action, p. 505.
- Thomas J. Henderson, Practical Considerations in Selecting Class Representatives, and Managing Their Expectations in Litigation and Settlement, p. 531.
- Susan M. Coler, Laurie A. McCann, & Cathy Ventrell-Monsees, Handling Class Actions Under the ADEA, p. 553.
- Wayne N. Outten & Piper Hoffman, Working with the Equal Employment Opportunity Commission, p. 615
- Michael T. Kirkpatrick, Employment Testing: Trends and Tactics, p. 623.
- Elizabeth Lawrence, See You in Court, But Which Court? Venue in Title VII Class Actions, p. 639.
- Ellen J. Messing, James S. Seliky, & Jessica A. Cunningham, “Silence Like a Cancer Grows” or “You Talk Too Much?” Ethical and Strategic Issues in Communications by Plaintiff’s Counsel with Putative Class Members, p. 649.
- Michael D. Lieder & Mark A. Amadeo, Class Actions Under ERISA, p. 665.
- David A. Pratt, Patricia E. Dilley, Pamela Perun, & Marilyn Moon, Reinventing Retirement: Reforming Social Security, Medicare and Private Pension Plans: Proceedings of the 2006 Annual Meeting, Association of American Law Schools, Section on Employee Benefits, p. 695.
Carle on Acknowledging Informal Power Dynamics in the Workplace
Susan Carle (American) has posted on SSRN her article in the Duke Journal of Gender Law & Policy: Acknowledging Informal Power Dynamics in the Workplace: A Proposal for Further Development of the Vicarious Liability Doctrine in Hostile Environment Sexual Harassment Cases.
From the abstract:
In this paper I do not take issue with the incentive-creating aspect of the Court's affirmative defense doctrine. On the other hand, I document cause for reservations about the way the affirmative defense doctrine has developed. I show that the current, extremely confused and contorted articulation of that doctrine by the courts has increasingly moved away from the original understanding of the purposes and policy underlying recognition of sexual harassment as a form of sex discrimination. To do so I survey the case law, discussing several examples of the courts' application of the affirmative defense doctrine in considerable factual detail in order to capture the application of law to facts. I then draw on the excellent, burgeoning general literature on sexual harassment law and on the research of experts who study organizational dynamics to argue that these courts' application of the affirmative defense writes out of sexual harassment law concern for crucial issues concerning the operation of informal power dynamics in the workplace. I propose an alternative approach that would call on courts to engage in more searching scrutiny on these questions, and demonstrate that this proposal is a feasible one by pointing to examples of courts that have engaged in such searching, fact-sensitive analyses.
An interesting new take on a crucial area of sexual harassment law. Check it out.
May 22, 2007
Supreme Court Dismisses Congressional Employment Case for Lack of Jurisdiction
One of the more quirky employment cases, Office of Sen. Mark Dayton v. Hanson (No. 06-618) (U.S. May 21, 2007), in recent memories has come to an unceremonious end at the Supreme Court. The LII Bulletin at the Legal Information Institute at the Cornell Law School has this concise summary of the case:
After his discharge from employment with former Senator Dayton, appellee Hanson sued appellant, the Senator's office (Office), invoking the District Court's jurisdiction under the Congressional Accountability Act of 1995 (Act). The court denied a motion to dismiss based on a claim of immunity under the Constitution's Speech or Debate Clause, and the D. C. Circuit affirmed. The Office then sought to appeal under sec. 412 of the Act, which authorizes review in this Court of 'any … judgment … upon the constitutionality of any provision' of the Act.
The Court held in an unanimous opinion by Justice Stevens that:
th[e] Court lacks jurisdiction under sec. 412 because neither the dismissal denial nor the D. C. Circuit's affirmance can fairly be characterized as a ruling 'upon the constitutionality' of any Act provision. The District Court's order does not state any grounds for decision, so it cannot be characterized as a constitutional holding. Moreover, neither the Court of Appeals' rejection of the Office's argument that forcing the Senator to defend against Hanson's allegations would necessarily contravene the Speech or Debate Clause, nor that court's leaving open the possibility that the Clause may limit the proceedings' scope in some respects, qualifies as a ruling on the Act's validity. The Office's argument that the appeals court's holding amounts to a ruling that the Act is constitutional 'as applied' cannot be reconciled with sec. 413's declaration that the Act's authorization to sue 'shall not constitute a waiver of … the privileges of any Senator … under [the Clause.]' Nor do any special circumstances justify exercise of this Court's discretionary certiorari jurisdiction, the D. C. Circuit having abandoned an earlier decision that was in conflict with another Circuit on the Clause's application to suits challenging a congressional Member's personnel decisions.
I guess we will have to await another day to get to the
bottom of the burning question of whether the Speech or Debate Clause applies
to Congressional employment law cases.
Invitation to Young Worklaw Teachers from LERA
Ellen Dannin (Penn State-Dickinson) wrote the worklaw listserv with the following invitation to young worklaw scholars:
About 10 years ago, I started an on-line newsletter for what was then the IRRA (and is now the LERA). The goal was to help people in nonlaw fields learn about legal issues and about legal writing and research.
Until about three years ago, I included a section in the newsletter called Work in Progress to profile the work of one worklaw scholar, again, with that same goal. I stopped including it, because it just took so much work. I think I would like to resume profiling one scholar's work an issue but with a focus on new faculty. Their work is more likely to benefit from wider exposure, and I think it is a good idea to remind people in other fields what legal scholars are doing.
The newsletter - actually the LERA Labor and Employment Law Section Newsletter - gets the highest number of hits of any page on their website. The newsletter also goes out to the LERA listserve. It is very popular, based on emails and comments I get at LERA conferences and is a good way to create a bridge to other disciplines.
So if you have been in the academy 5 years or less, you are a new scholar. And if you are at a school that has a new scholar coming in for next year, please let them know about this.
Here is what I would like from you: One concise paragraph written for a lay audience that describes work you have just completed and/ or work you are beginning. I cannot overemphasize the issue of writing at a level for a lay audience.
If you want to see past issues, they are located here.
May 21, 2007
EEOC Meeting to Focus on Work/Family Balance
The EEOC meeting on Wednesday, May 23, 2007 will focus on work/family balance. Invited speakers include Lisa Dodson (photo above) from Boston College, who will speak on Best Practices for Low and Middle Income Workers.
Legal Times Focuses on Labor & Employment Practice
This week's issue of Legal Times (subscription required) focuses on Labor & Employment Practice. Articles include:
- Mark Cheskin & Kristen Foslid, Bullied by the Boss? Companies, not state legislatures, should act to stop abusive supervisors.
- Richard G. Vernon & Anne B. Fox, Don't You Say A Word: Corporate confidentiality policies can run afoul of labor law if not carefully drafted.
- Martin Katz, No Intent, No Foul: Unconscious bias in employment decisions is actionable under current law.
- Natasha Benn, Obesity Lawsuits Loom: Claims of discrimination because of weight are likely to increase in number.
- Paul Secunda (photo above), More Than Employees: Citizens working in government need better constitutional protection from retaliation.
Here's an excerpt from Paul's article:
Well before the Supreme Court’s April bombshell decision in Gonzales v. Carhart that upheld a federal ban on “partial-birth” abortion, Justice Samuel Alito Jr. was the decisive vote in another significant case.
This case most likely would have come out differently if Justice Sandra Day O’Connor, not Alito, were still on the Court. Indeed, Garcetti v. Ceballos had to be argued again after O’Connor retired, apparently because the Court’s remaining members had deadlocked.
Alito’s vote with the majority in Ceballos involved not abortion, but the free-speech rights of public employees. In Ceballos, the Supreme Court held that the First Amendment provided absolutely no protection to an assistant district attorney who alleged that he suffered retaliation when he spoke out against law enforcement corruption. The majority held, “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
It has been almost a year since that decision, and with the benefit of that perspective, the ruling’s significance, though not necessarily apparent on its face, can hardly be overstated.
The case does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers.
Unions for Former Gang Members
The LA Times has a story today about how some former gang members are making it going the union route:
Shortly after his release from prison four years ago, Julio Silva entered the apprenticeship program in the Ironworkers Union Local 433 in La Palma . . . .
The more he worked at his new job, the more his skills improved. Ironwork became the one legal thing he had done well. It also paid $29 an hour, plus benefits . . . .
Silva is among a large and growing number of Southern California gang members who have joined building-trade unions over the last decade as construction work has boomed. These good-paying jobs were once reserved for those with family connections, as fathers recruited sons.
But today, beset by nonunion competition and an aging membership, unions have stepped up recruitment in minority enclaves where many young men have criminal pasts. Now homeboy recruits homeboy.
This appears to be a win-win situation for both the labor movement and former felons. Unions are proving that these former gang members are capable of rehabilitation and showing them that solidarity does not need to be harnessed for destructive purposes. Unions are also benefiting from a reinvigorated and diverse workforce.
Hat Tip: Ronald Turner
Is Automatic Enrollment Making a 401(k) Difference?
Maybe not. PlanSponsor.com has this interesting re-think article on the benefits of employers offering automatic enrollment options for their salary deferral/401(k) plans. Here are some highlights:
The 10th annual version of PLANSPONSOR's assessment of the activities of nearly 5,000 plan sponsors (see 2006 PLANSPONSOR DC Survey: Brave New World) found that the median participation rate for plans that had implemented automatic enrollment was 80%. Now, that’s certainly nothing to sneeze at, but it’s not very much ahead of the 75% median rate for the plans in the same survey that had not taken the step toward automatic enrollment—and it’s well short of the outcome that one normally sees touted alongside that option (generally in the 90-95% participation range) . . . .
[E]ven with the passage of the PPA . . . automatic enrollment safe harbor does not require a retroactive application.
In fact, IMHO, it seems quite likely that this decision to implement these programs on a “prospective only” basis likely accounts for the negligible uptick in participation rates in automatic plans reporting in PLANSPONSOR’s DC Survey.
It still may be early to make any good predictions about the impact that automatic enrollment will have on an employee retirement investment behavior, but, at the very least, there is much food for thought here.
- Zachary A. Kramer (top left), After Work, 95 Cal. L. Rev. 627 (2007).
- Marybeth Herald (top center), Deceptive Appearances: Judges, Cognitive Bias, and Dress Codes, 41 U.S.F. L. Rev. 299 (2007).
- Megan E. Mowrey, Establishing Retaliation for Purposes of Title VII, 111 Penn. St. L. Rev. 893 (2007).
- Judith J. Johnson (top right), Rescue the Americans With Disabilities Act from Restrictive Interpretations: Alcoholism as an Illustration, 27 N. Ill. U. L. Rev. 169 (2007).
- Linda D. Elrod (bottom left) & Robert G. Spector (bottom center), A Review of the Year in Family Law: ERISA, Jurisdiction, and Third-Party Cases Multiply, 40 Fam. L.Q. 545 (2007).
- Geoffrey Christopher Rapp (bottom right), Beyond Protection: Invigorating Incentives for Sarbanes-Oxley Corporate and Securities Fraud Whistleblowers, 87 B.U. L. Rev. 91 (2007).
Comments & Notes
- John S. Hong, Can Blogging and Employment Co-Exist?, 41 U.S.F. L. Rev. 445 (2007).
- Jill V. Cartwright, Why Fight Fought? A Missed ERISA Opportunity in the Ninth Circuit, 37 Golden Gate U. L. Rev. 563 (2007).