January 20, 2007
Gary Roberts to Become Dean of Indiana-Indianapolis
Gary Roberts, currently Deputy Dean of Tulane Law School and Director of that school's Sports Law program, has been appointed the Dean of Indiana-Indianapolis. Though Dean Roberts is best known for his Sports Law work, he also has the good sense to teach Labor Law on a regular basis.
Top-5 International Employment & Labor Law SSRN Downloads
- Scott Cummings, The Internationalization of Public Interest Law (63).
- Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications (50).
- David Kinley (photo above) & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (43).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (1051).
- Takeshi Yamaguchi, Olivia S. Mitchell, Gary R. Mottola, & Stephen P. Utkus, Winners and Losers: 401(k) Trading and Portfolio Performance (110).
- Debra A. Davis (photo above), Do-It-Yourself Retirement: Allowing Employees to Direct the Investment of Their Retirement Savings (68).
- Lawton W. Hawkins, Compensation Representatives: A Prudent Solution to Excessive CEO Pay (57).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May
Affect Pension Benefits (54).
January 19, 2007
New Employment Law Casebook
Congratulations to Timothy Glynn, Rachel Arnow-Richman, and Charles Sullivan on the publication of their new casebook Employment Law: Private Ordering and Its Limitations. Here's how Professor Glynn describes the casebook:
As the title suggests, the book is organized around the enduring conflict between private ordering and public mandates in the workplace. There is a constantly changing border between the default rule allowing employers and workers to structure their relationships (usually to the employer's specifications) and public policy limits on that approach. This provides a lens that makes the course more coherent for students and, hopefully, even for teachers.
With that as the thematic backdrop, the book approaches traditional topics in innovative ways, such as devoting a chapter to accommodating workers’ lives and another to risk management techniques – often the bread and butter of employment practice. It also is especially attentive to increasing concerns regarding employer-employee competition. Overall, the book strikes a balance between a traditional litigation orientation and the counseling/planning perspectives that prevail in many employment-law practices, whether for employer or employee.
The book is published by Aspen, and though I received my review copy yesterday, Aspen does not appear to have the book up on its website yet.
January 18, 2007
Bales and Kippley on Extending OWBPA Notice and Consent Protections to Arbitration Agreements
Keeping with congratulating members of the Workplace Prof Blog today, kudos to Rick Bales (Northern Kentucky) for posting, along with Christopher Kippley, on SSRN their forthcoming paper in the Nevada Law Journal: Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers. Rick will be presenting this paper at the upcoming arbitration conference at UNLV.
Here's the abstract:
The Federal Arbitration Act (FAA) was created in 1925 to permit judicial enforcement of arbitration agreements covering commercial contract disputes between parties with roughly equal bargaining power. Today, however, the FAA is the legal authority for judicial enforcement of arbitration agreements covering not only contractual claims but also statutory claims, and not only of disputes between commercial entities but also disputes involving parties with grossly disparate bargaining power such as companies and employees/consumers. Moreover, the Supreme Court has interpreted the FAA as strongly favoring arbitration, and the Court has used preemption analysis to restrict the ability of states to regulate arbitration agreements. This has led many commentators to argue that the FAA is ill-suited to its new use - that it is unfair to permit companies to foist arbitration agreements on employees and consumers who have little understanding of what they are signing, and in any event have no meaningful choice if they want the job or product or service the company is offering.
In 1990, Congress faced a similar problem in a different context. Congress was amending the Age Discrimination in Employment Act (ADEA) to prohibit employers from discriminating on the basis of age in the administration of employee benefit plans. Congress wished to give employees the ability to agree to early retirement and to settle benefits claims, but was concerned that employers would coerce older employees into accepting grossly unfair agreements that the employees did not understand. Congress responded by passing the Older Workers Benefit Protection Act (OWBPA ). The OWBPA presumes that a waiver of ADEA rights is not knowing and voluntary (and therefore is unenforceable) unless certain procedural requirements are met. For example, the waiver must be written in a manner calculated to be understood by an average employee, the employer must advise the employee in writing to consult with an attorney prior to signing the agreement, and the employer must give the employee at least twenty-one days within which to consider the agreement.
This article argues that Congress should amend the FAA to add suitably-modified OWBPA-like notice requirements to arbitration agreements directed at most employees and consumers. This approach will help ensure that employees and consumers understand what it is they are signing, and thereby may encourage some companies to draft arbitration agreements that are substantively more balanced. This approach is not, however, a panacea that will cure all the ills of arbitration, but instead is designed as a politically feasible, incremental improvement on employment and consumer arbitration.
Sounds like a practical solution to a glaring hole in current arbitration law. Here's hoping that Congress has, as I say to my son, its listening ears on.
Secunda Named "Law Professor of the Day" By WSJ Law Blog
Congratulations to Paul Secunda, who today was named Wall Street Journal Online's Law Blog Law Professor of the Day for his accurate forecast and lightening-fast analysis of the Fourth Circuit's decision striking the Wal-Mart Bill as preempted by ERISA. See Fourth Circuit Puts Another Nail in Wal-Mart Bill's Coffin.
Way to go, Paul!!!!!
January 17, 2007
4th Circuit: Maryland Wal-Mart Law Preempted by ERISA
Update: Now that I have had a chance to glance over the Fourth Circuit's Opinion in Fielder, and not wanting to reinvent the wheel, I am linking to an overview of the case from Michael Fox at Jottings By An Employer's Lawyers and an argument about why the decision is wrong by Ross Runkel at Ross' Employment Law Blog.
Fresh off the presses today comes news that the Fourth Circuit Court of Appeals has affirmed the judgment of the District of Maryland that the Maryland Fair Share Healthcare Law (aka, the Wal-Mart Bill) is preempted by ERISA. The decision in RILA v. Fielder, No. 06-1840 (4th Cir. Jan. 17, 2007) is here.
Here's some of what the New York Times article has to say about the 4th Circuit's opinion:
A federal appeals court ruled today that Maryland violated federal law when it required Wal-Mart Stores to increase spending on employee health insurance, in a decision that appears likely to end a bitter yearlong legal battle that pitted state legislators, organized labor and health care advocates against the nation’s largest retailer.
The 2-to-1 ruling by a panel of the United States Court of Appeals for the Fourth Circuit is a major setback — if not a fatal blow — for a nascent campaign, called “fair share,” that sought to move millions of America’s working poor off of state-sponsored insurance programs, like Medicaid, and on to employer-based plans.
But the appeals court, upholding a lower court ruling, found that the Maryland rule violated a federal labor law intended to allow companies to create a uniform system of health benefits across the country, rather than navigate a patchwork of state-by-state requirements.
By requiring employers in Maryland to restructure insurance plans, the court found, the law “conflicts” with the intent of the federal labor law, known as the Employee Retirement Income Security Act, or ERISA.
Of course, this was how my ERISA preemption analysis came out way back when, but I still believe ERISA should be amended to allow for state experimentation in this area of health care financing.
One other point: I have not had the chance to read the 4th Circuit's opinion (and will update this post when I do), but the 2-1 split suggests that there is an outside chance for rehearing en banc or perhaps even Supreme Court review. The latter is less likely since there is not a circuit split on the issue and lower courts in general have not had the opportunity to weigh in on fair share legislation.
Labour Market Regulation and Industrial Performance in India
Aditya Bhattacharjea, Delhi School of Economics, has just posted his article Labour Market Regulation and Industrial Performance in India on SSRN. The article is obviously important to anyone studying the Indian labour market, but it's also relevant to a broader audience. For example, its questioning of the empirical assumption that increasing regulation stifles the quality and quantity of job growth is pertinent to the current American debate on raising the minimum wage. Here's the abstract:
This paper offers a critique of recent empirical research on the impact of labour regulation on industrial performance in India. It begins with a review of earlier studies that tried to infer the effects on manufacturing employment of amendments made by the central government to the Industrial Disputes Act (IDA) in 1976 and 1982, requiring official permission for layoffs, retrenchments and closures. The results of these studies are ambiguous, and this literature ignored crucial developments in the political and legal spheres which vitiate many of these findings. The widely-used index of state-level labour regulation devised by Besley and Burgess (Quarterly Journal of Economics, 2004) is then criticised for its miscoding of individual amendments and its misleading aggregation and cumulation procedures. Their econometric results, which indicate that states that enacted excessively pro-worker amendments to the IDA have displayed poorer performance in manufacturing, do not appear to be robust and also suffer from other methodological problems. Several recent studies that have used the Besley-Burgess index are also surveyed, and their limitations highlighted. Finally, the paper reviews a wide range of other evidence, pointing in a very different direction, on the actual enforcement of labour laws, labour flexibility, and industrial employment. Throughout, attention is paid to the crucial role of judicial interpretation of the IDA, which has been neglected in this literature.
Hirsch on Internet Communications & the NLRA
Jeff Hirsch has just posted on SSRN his article The Silicon Bullet: Will the Internet Kill the NLRA? His article is particularly timely given the NLRB's recent announcement that it will hear oral argument this March on a case raising the issue of whether employees have the right to use their employer's email system to communicate with other employees about unions or other protected, concerted matters.
Here's Jeff's abstract:
The NLRA's increasing obsolescence in the modern workplace is well-documented. Nowhere is this problem more apparent than where unions and employees use the Internet and other electronic communications to further employees' collective interests. Electronic communications pose significant challenges to several of the NLRB's anachronistic rules—-challenges so great that, as explained by public choice theory, the NLRB's failure to adapt sufficiently may result in the NLRA losing what little relevance it currently possesses. Yet, I remain sanguine about the NLRA's survival. Rather than representing its death knell, I am hopeful—-perhaps unrealistically so—-that the NLRB's recent signal that it will comprehensively address these issues promises change that the NLRA has long needed to become an effective and relevant statute in the modern economy.
How Do the French Prepare Inflatable Cockroach?
In what is appearing to be a trend, the inflatable cockroach has again shown its mandibles in New York City. Restaurant Opportunities Center (ROC), an organization started to help Windows on the World restaurant workers following 9/11, has organized protests--featuring the cockroach--against Daniel Boulud for engaging in racial discrimination at his very high-end restaurant, Daniel. Several employees have filed charges alleging that
dining room workers at Daniel have been denied promotion because they were Latino or Bangladeshi. The employees also say that Mr. Boulud and other managers yelled racial slurs. At one point, they say, Spanish was banned among employees; only English and French were allowed. Those are examples, they say, of how the working culture at Daniel favors white Europeans at the expense of other groups.
This is not the first, and certainly not the last, time that a high-end restaurant has been accused of these types of actions. The story does a nice job of showing the tension that many restaurant employers face between providing an expected type of service and compliance with discrimination laws. It also illustrates that employers can find solutions to these problems if they make the effort.
One other interesting note is the ROC's transformation from a post-9/11 advocacy group to one that assists immigrants working in the city's restaurant industry. ROC's ability to use publicity techniques that the SEIU (e.g., Justice for Janitors campaigns) and others have found to be effective recently shows the power of these campaigns, especially against high-profile employers.
"You're Too Old and Too Country"
Well, can you ever be "too country"? Allegedly, even the Grand Ole Opry in Nashville thinks so based on this story on topix.net (by way of the AP):
Grand Ole Opry singer Stonewall Jackson filed a $10 million federal lawsuit Thursday against the long-running country music show and its management, claiming age discrimination, breach of contract and retaliation.
Jackson, 74, has been a member of the show since 1956. He had a string of hits in the 1950s and '60s, including the No. 1s 'Waterloo' and 'B.J. the D.J.'
In the lawsuit, Jackson claims his appearances on the show declined after [general manager Peter] Fisher was hired in 1998.
Jackson said he approached Fisher on several occasions and was told things like, 'I don't want any gray hairs on that stage or in the audience, and before I'm done there won't be any' and 'You're too old and too country.'
In all seriousness, it always make me sad, regardless of the truth of the allegations, to see an employee who works for his whole life for one employer (here 50 years!) to have their employment relationship end in this manner. This guy should be given tribute dinners and Rolex watches galore!
Supreme Court Passes on 7th Cir. Cash Balance Plan Decision
We previously wrote that there might be a chance that the 7th Cir.'s decision in the cash balance plan case of Cooper v. IBM would be reviewed by the High Court.
Now, we know that no such chance remains (from PlanSponsor.com):
STAND, STILL. The U.S. Supreme Court has declined to consider an appeal brought by a group of IBM Corp. employees who accused the company of age discrimination when it converted its traditional pension plan to a cash balance design. Acting without comment, the justices let stand a 7th U.S. Circuit Court of Appeals determination that IBM's switch to a cash balance pension did not discriminate against older workers. That decision, in turn, overturned a July 2003 decision that the design was age discriminatory, claiming that it allowed younger workers to accrue benefits in the plan at a faster rate than older workers. Since then, a number of district courts have split on the issue.
With the degree of disagreement in the lower courts, and the importance of the issue to so many workers, I cannot imagine this issue won't some day may its way back to the Court.
Interestingly, however, PlanSponsor.com reports that, "IBM's plans to eliminate its cash-balance plan on January 1, 2008. IBM announced in January 2006 that it will throw out the program and enhance its 401(k) plan."
- D. Frank Vinik, Ellen M. Babbitt, & David M. Friebus, The "Quiet Revolution" in Employment Law & Its Implications for Colleges and Universities, 33 J. College & Univ. L. 33 (2006).
Comments & Notes
- Jennifer D. McCollum, Employers' Greatest Enemy: Second-Hand Evidence in Hostile Work Environment Claims, 59 SMU L. Rev. 1869 (2006).
- Jarad M. Lucan, Applying the Americans with Disabilities Act: Why Giving Traditional Reasonable Accommodation to "Regarded As" Disabled Individuals Brings About "Bizarre Results", 25 Quinnipiac L. Rev. 417 (2006).
- Alison A. Reuter, Subtle but Pervasive: Discrimination Against Mothers and Pregnant Women in the Workplace, 33 Fordham Urb. L.J. 1369 (2006).
- Tzvi Mackson-Landsberg, Is a Giant Inflatable Rat an Unlawful Secondary Picket Under Section 8(b)(4)(ii)(B) of the National Labor Relations Act?, 28 Cardozo L. Rev. 1519 (2006) [photo of rat above; see also Roach!, The New Yorker, Jan. 15, 2007 (explaining that the rat has been supplanted by a twelve-foot-tall inflatable cockroach, in an effort to circumvent the anticipated prohibition of the rat as a secondary picket].
January 16, 2007
Mental Health Claims Not Faring Well Under ADA
HealthNewsDigest.com is reporting on a new national study that finds people with psychiatric disabilities do generally worse in employment disability discrimination claims.
According to the article:
The study team, which included researchers from three universities, reviewed court settlements and judicial decisions from 4,114 cases filed between 1993 and 2001. Team members also conducted telephone interviews with a representative sampling of 148 plaintiffs who had a psychiatric disability and 222 plaintiffs who had a physical disability, to find out how they felt about the outcome of their case.
The researchers found that 37 percent of plaintiffs with psychiatric disabilities received a settlement from the defendant or a court ruling in their favor, compared with 49 percent of plaintiffs with physical disabilities.
The full results of this study, along with analysis, can be found in the current issue of the Maryland Law Review in the article: Justice Disparities: Does the ADA Enforcement System Treat People With Psychiatric Disabilities Fairly? (see also our previously post on this article).
Crain and Avery on Corporate Image and Sexual Stereotyping
Marion Crain (North Carolina) (left) and Diane Avery (Buffalo) (right) have posted on SSRN their new piece in the Duke Journal of Gender Law & Policy entitled; Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism.
Some excerpts from the abstract:
In this Article, we show how the adoption of increasingly sophisticated forms of marketing and branding strategies by service businesses creates property-like interests separate and distinct from workers' physical and mental labor, from which employers profit: “branded service.” We then analyze the role that law has played in reinforcing the practice of branding.
We explore the marketing of branded service and the law's response through an analysis of Jespersen v. Harrah's Operating Co., in which the Ninth Circuit rejected a female bartender's Title VII challenge to Harrah's “Personal Best” grooming and appearance policy, which required (among other things) that women wear makeup, a practice that Darlene Jespersen found both personally and sexually demeaning. We examine the branded service strategy that Harrah's adopted, explain how it created a new and valuable property-like right for Harrah's, and describe Jespersen's reaction to her sexualized commodification.
Finally, we make suggestions for reframing claims arising from branded service and the appearance and grooming codes associated with it. We urge reconceptualization of sex-stereotyped corporate branding as a collective harm to workers and evaluate avenues of resistance, including union organizing and collective bargaining, class-action sex discrimination or sexual harassment claims, and public consciousness-raising by social justice and community groups.
This piece takes the debate over company appearance and grooming codes to a new conceptual level. This is a must-read, from two of the most accomplished law professors in the business, for anyone interested in sexual stereotyping in the workplace.
Kessler on Keeping Discrimination Theory Front and Center
Laura Kessler (Utah) has placed on SSRN her new piece in the Pepperdine Law Review entitled: Keeping Discrimination Theory Front and Center in the Discourse over Work and Family Conflict.
Here's the abstract:
This essay is a contribution to a symposium on balancing career and family. It frames the problem of work/family conflict as a form of sex discrimination. It demonstrates that many of the constructs commonly used to illustrate an absence of employment discrimination in the context of work/family conflict - such the “accident,” “opt-out,” “time-lag” theories - actually fit quite comfortably within various discrimination frameworks. It also contextualizes the problem of work/family conflict within the larger issue of gender bias in the workplace, demonstrating how each contributes to and works together to produce workplace inequality for women. This approach contrasts with the traditional bifurcation of gender bias and work/family conflict into distinct categories of employment discrimination.
An important contribution to the continuing debate over workplace flexibility issues. Looking forward to reading this piece in more detail.
January 15, 2007
Sayen Elementary School
January 14, 2007
Forman on Taking On 401(k) Plan Fees
Jon Forman (Oklahoma) has posted to the BenefitsProf listserv his recent piece in the January 8, 2007 issue of the Journal Record entitled: Taking on 401(k) plan fees that take away from you.
Here are some excerpts:
[T]here are many fees associated with 401(k)-plan stock funds. Companies charge fees for portfolio management, fund administration, shareholder service, and other miscellaneous costs. According to a recent report by the U.S. Congress’ Government Accountability Office, these investment fees make up between 80 and 99 percent of all plan fees, depending on the number of participants in the plan. In addition, there are record-keeping fees associated with maintaining participant accounts, processing fund selections, and mailing account statements. These, too, cut into your bottom line.
The Government Accountability Office and the Department of Labor want Congress to amend federal pension laws to require mutual funds and 401(k) plans to provide a summary of all fees that are paid out of plan assets or by participants.
Look for Congress to enact some legislation this year, and look for all investors to benefit. Our capital markets will work better if investors have complete information about all investment and record-keeping fees.
This area of employee benefits law is an increasingly important one, especially as the number of class action suits based on unreasonably high plan fees begin to rise. Although the current law addresses some of these issues under ERISA Section 404(c) and its regulations as far as fiduciary liability, as Jon points out, there is likely going to be more legislation introduced this year so that plan participants can more easily discover information about such fees and keep more of their retirement savings.
Large Gender Bias Class Certified in Costco Case
Looks like Wal-Mart is not going to be the only big box retailer fighting a massive gender discrimination class action. Peter Lattman at the Wall Street Law Blog reports:
A federal judge granted class-action status yesterday to a lawsuit filed on behalf of more than 700 female workers at Costco claiming that the retailer had systematically discriminated against women seeking jobs as managers. Here’s the story from the New York Times.
The lawsuit’s key statistic: 13 percent of the company’s store managers were women, while nearly half of its employees were women. The case, before Judge Marilyn Hall Patel of federal court in San Francisco, smudges Costco’s image as a wonderful place to work. “Plaintiffs have presented strong evidence of a common culture at Costco which disadvantages women,” she wrote in her ruling.
Interestingly, the plaintiffs' lawyer, Brad Seligman (pictured above) who runs the non-profit Impact Fund, is the same attorney who brought the Wal-Mart litigation.
If companies were not already noticing that alleged glass ceiling practices will no longer be tolerated, I think they are quickly getting the picture.
Top-5 Employment SSRN Downloads
- Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (140).
- Yofi Tirosh, Adjudicating Appearance: From Identity to Personhood (88).
- Symeon C. Symeonides, Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria That Isn't (82).
- Oliver Hart & John Moore, Contracts as Reference Points (78).
- Samuel R. Bagenstos (photo above), US Airways v. Barnett and the Limits of Disability Accommodation (61).