Saturday, August 11, 2007

Top-5 Benefits/Compensation/Pension SSRN Downloads

Top-5 International Employment & Labor Law SSRN Downloads

Friday, August 10, 2007

Reece on ERISA Preemption

Sharon Reece (Maryland) has just posted on SSRN her article ERISA Preemption and Fair Share Legislation.  Here's the abstract:

This paper addresses the issues states face in creating healthcare initiatives for their citizens. The preemption provisions of ERISA have presented a formidable obstacle to the implementation of these laws. The paper offers some alternatives and proposals which could possibly minimize the effect of preemption.

Reece's article discusses extensively the Maryland Fair Share Act and the Fourth Circuit's holding that it was preempted by ERISA.   This is a thoughtful article on an important topic.


August 10, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (2)

Rosenthal on The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities Under Title VII's Anti-Retaliation Provision

Rosenthall Lawrence Rosenthal (North Kentucky-Chase) has posted on SSRN his forthcoming piece in the Arizona State Law Journal: To Report or Not to Report: The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities Under Title VII's Anti-Retaliation Provision.

From the abstract:

This Article will explore the opposition clause of Title VII's anti-retaliation provision, what constituted "protected activity" under that provision prior to Breeden, and how the Supreme Court's dicta in Breeden and the Fourth Circuit's recent opinion significantly undermine the goals of the anti-retaliation provision's opposition clause. The Article will then suggest that instead of requiring a plaintiff to prove both a subjective, good-faith belief that the practice she was opposing was unlawful and that her belief was objectively reasonable, an employee's subjective, good-faith belief that she experienced unlawful discrimination should be sufficient to gain Title VII protection. Although it is unlikely that this subjective-only approach will be adopted, this approach best promotes the purpose behind Title VII's anti-retaliation provision's opposition clause.

An interesting approach to one of the knottier question in employment retaliation cases.


August 10, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Dead Grandmothers

Hartman As an aside to the Paul Buchanan story, Laura Hartman (DePaul College of Commerce) writes that:

[A] colleague in the business law realm once wrote a wonderfully erudite and statistically appropriate analysis of the likelihood that a student’s grandparent’s would pass away the closer exams approached. In fact, there was a calculation for parents, as well, and even for relatives to pass away a second time if the student was taking a class with a new professor (unless of course that professor were related to a previous professor where the parents had already passed away, because she or he might have heard tell of the first passing . . .). I can’t seem to put my hands on it but perhaps you might be able to locate it. There is a meta-website that discusses some of these tales at Dead-Grandmother Syndrome.

I do not mean at all to poke fun at the Buchanan issue, which itself is quite a serious one involving the future of this gentleman’s career. I just mean to note that we should recognize that each story might be more than the picture one email might paint.

[For more, see Inside Higher Ed's The Time of Dead Grandmothers.]

If anyone is familiar with the "dead grandmothers" article, please let us know!


August 10, 2007 in Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2007

Labor Law Conference at Western Ontario

Westernontariologo Michael Lynx (Western Ontario) writes to tell us about an upcoming Canadian labor law conference:

[T]he 5th annual Labour Law Lecture and Conference [will be] at the University of Western Ontario, in bucolic London, Ontario (half-way between Detroit and Toronto), on 26 and 27 October. The website for the Lecture and Conference, with registration forms, is [here].

The theme of this year's Lecture and Conference will be: The Charter and Human Rights at Work: 25 Years Later. For our American friends, the title refers to the 25th anniversary of the enactment of the Canadian Charter of Rights and Freedoms, which, among many other things, has influenced a revolution in human rights culture in Canadian labour law and industrial relations.

The Chief Justice of Canada, The Right Honourable Beverley McLachlin, will deliver the 5th annual Koskie Minsky University Lecture in Labour Law, on the theme of the Charter and the workplace. She co-authored the landmark ruling by the Supreme Court of Canada in June (British Columbia Health Services) which has significantly expanded the access of trade unions to the constitutional right of freedom of association. The Honourable Donald Johnston, the former Secretary-General of the OECD in

Paris (1995-2005), will be speaking at the Conference's conclusion. As well, a number of leading Canadian labour law scholars will be presenting papers at the Conference.

Sounds like a great conference!


August 9, 2007 in Conferences & Colloquia | Permalink | Comments (2) | TrackBack (0)

More on the Paul Buchanan Story

Nolan Dennis Nolan (South Carolina) has this response to my earlier post on the fired New Zealand professor:

I got interested in the Paul Buchanan story when I first saw it on the NZ newspaper site I look at now and then.  I have to say I'm still puzzled.  I wouldn't be quite so blunt in my own correspondence with a student, but I certainly have thought similar things about some of them who spent more time dreaming up excuses than on working.  I wouldn't accuse someone who expressed those views of lacking "common sense" even if he might lack the sensitivity that modern academics are supposed to show.

Assuming that he had a reasonable basis for his statements (e.g., that she was performing poorly, skipped classes, that he had given her higher marks than she deserved), I don't understand how expressing them could lead to suspension, let alone termination.  Is there some rule in the NZ tenure regulations that lecturers have to be polite rather than blunt when addressing students?  One of the sites has a long collection of statements from his former students to the effect that he is great and supportive and demanding, so I'd be inclined to believe them rather than her.  With regard to her latest excuse, I gather that she still hasn't provided proof that her father actually died.

Add to this one subtext, and he looks even more like a victim.  NZ universities, like those in Australia, may have come to depend on wealthy foreign students.  One consequence in Australia has been pressure on academics not to fail those students, even when they are caught cheating or plagiarizing or when they do no work.  Australia has had a couple of notorious scandals along this line and it wouldn't surprise me if that were a consideration for Buchanan's employer as well.

Alternatively, it may just be a Down Under example of what we too often see in US universities, i.e., administrators cracking down on academics whose statements might offend powerful figures.

Other thoughts?


August 9, 2007 | Permalink | Comments (4) | TrackBack (0)

6th Cir. Approves UAW Retiree Healthcare Settlement

Scale_of_justice The Sixth Circuit Court of Appeals has approved the settlement agreement between the UAW, GM, and Ford over outstanding retiree healthcare benefit obligations. In UAW v. General Motors (6th Cir. Aug. 7, 2007), the court laid out the history of the settlement:

In 2005, GM and Ford tried to address one of these issues by reducing retiree healthcare benefits, only to be challenged by the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (the UAW), which represents hourly workers at both companies and which negotiated these healthcare benefits in the first place. Insisting that the retirees’ healthcare benefits had vested and could not be modified without the retirees’ consent, the UAW filed this declaratory-judgment action and eventually proposed a class of retirees from GM and Ford to defend its position. Through two similar agreements, the companies, the UAW and the classes proposed to settle their differences. A small percentage of retirees from each company (less than one half of one percent) objected to the proposed settlements and, when the district courts rejected their objections after a fairness hearing, appealed to our court. We have consolidated the appeals and now affirm.

The affirmance of the settlement came down to the fact that the Court did not buy:

[t]he objectors’ suggestion that the UAW compromised the vested benefits of the retirees . . . . The UAW had no such authority and never purported to exercise it. In the final analysis, the named class members—not the UAW—represented the retirees of each company, removing the risk of any conflict between the interests of the UAW and the retirees.

In short, the court find the dissenting retirees adequately represented by other retirees and thus found the settlement fair.  That does not take away the fact, however, that in the end GM was allowed to renege on retiree medical benefit obligations that it had previously undertaken and which most likely would have been deemed vested.


August 9, 2007 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Bad Academics

Robe_2 Two different stories from two different sources; both illustrate that academic garb does not necessarily equate with common sense.

The first, via PJH Law, involves New Zealand professor Paul Buchanan, who denied by email a Muslim graduate student's request for a one-day extension on an essay because her father had just died:

I say this reluctantly but not so subtly: you are not suitable for a graduate degree. It does not matter if your father died or if you have a medical certificate . . . .  You are close to failing in any event, so these sort of excuses-culturally driven and preying on some sort of Western liberal guilt-are simply lame.

Both the insensitivity, and the grammar, get worse.  Here’s the complete text of the email.  In any event, Buchanan, who was tenured, got fired, sparking a hubbub over academic standards, western sensibilities to Muslims, foreign students being milked as cash cows, and academic tenure.

The second story, via Daily Developments in EEO Law, involves Fred Gilbert, a community college provost who applied to be president.  When Gilbert didn't get the job, he sued.  During discovery, the college figured out that Gilbert had plagiarized his application out of textbooks.  He claimed it was all the fault of a consultant who had helped him prepare his application, but that explanation didn't seem any more trustworthy than his original application had been:

Gilbert stated he had paid [the consultant] about one thousand dollars in cash (with no receipt from the consultant), [who] had prepared the essay answers. However, Gilbert could not recall the consultant's name, the number of times he met with the consultant, or the length of their meetings. Gilbert was unable to provide a description of the consultant. When asked whether the consultant was male or female, Gilbert replied, “Both.” Gilbert then said, “I met with more than one sex.” When asked how many people he consulted, Gilbert stated, “It would be one or two, because I think there was [sic] two, but I'm not sure.”

Following the investigation of plagiarism, the college demoted Gilbert from provost to grants specialist.  Gilbert added a claim for retaliation.  The trial court, however, granted summary judgment, which was affirmed by the 8th Circuit.  The case is Gilbert v. Des Moines Area Community College, No. 06-3021 (8th Cir. Aug. 8, 2007).


August 9, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 8, 2007

Firefighters File Sexual Harassment Claims Over Being Forced to Attend Gay Pride Parade

Firehelmet Fox News brings word of an interesting lawsuit about to be brought in California.  In it, four San Diego firefighters allege that they were required to attend a gay pride parade as part of their duties. They then claim that they suffered severe sexual harassment:

[Fire Capt. John] Ghiotto and three other firefighters filed a sexual harassment complaint against the city's fire department last week after being forced to attend the parade in uniform despite objections they made to superiors.

“I don’t want anybody else to go through this. This is a whole different ball game. I think our officials up above need to look at this,” Ghiotto said.  

The firefighters claim parade attendees made obscene gestures, uttered inappropriate remarks and displayed lewd behavior that made them uncomfortable . . . .

“You could not even look at the crowd without getting some type of sexual gesture,” Ghiotto said in the complaint. “The experience left me feeling humiliated, embarrassed and offended by this event.”

The case has some interesting twists because the fire chief of San Diego is a lesbian (and has already apologized for the harassment the firefighters suffered).  One also senses, however, that there is quite a bit of homophobia going on here.  Here's Ghiotto again:

"I've dealt with finding bodies in burning buildings, traffic accidents with kids, but I've never been so stressed out before until this incident," Ghiotto told in an exclusive interview.

Another one of the firefighters in his charge of discrimination:

“While I was sitting there waiting for the parade to start, I felt that I was forced against my will to be at the Gay Pride Parade and forced to see men in tight shorts dancing provocatively and other men kissing and hugging wearing sexually suggestive material on T-shirts with writing 'Girth and Mirth,' 'Suit Up Before You Dive In,' according to the complaint.

“I was forced into a situation that would compromise what I hold true and what I believe in, my reputation, my character, my integrity, my morals, and my religion," the complaint says.

So burned bodies OK, but taunts from homosexuals, no? Is this really a religious accommodation case (though religious discrimination is not claimed)?  After all, the Thomas More Law Center, a religious conservative legal group, is representing the firefighters

As far as whether the lawsuit has a chance, there are a number of problems, ranging from the fact that the one incident might not be considered severe or pervasive enough to the issue of whether a reasonable person would have found the conduct created a hostile work environment.

There are also issues about whether they were harassed "because of their sex" or "because of their sexual orientation." In other words, are they claiming stereotype discrimination?  If the harassment was based on the firefighters sexual orientation, it is not covered under federal law, but may be covered under California law - a so-called reverse sexual orientation harassment case. My good friend Zak Kramer (Arkansas-Little Rock) may be happy to know that there may be indeed heterosexual discrimination claims after all. 

Finally, on the vicarious liability issue, doesn't this come under the Faragher/Ellerth affirmative defense since the firefighters did not suffer a tangible adverse employment decision? And didn't the fire chief already respond reasonably with corrective action by apologizing and pledging not to put them in that situation again?  Must the corrective action be a formal change in policy saying that firefighters need not go to parades they do not want to attend?

Here is a copy of the charges of discrimination filed with the California Department of Fair Employment and Housing.

Hat Tip:  Marc Harrold


August 8, 2007 in Employment Discrimination | Permalink | Comments (14) | TrackBack (0)

Bad Bosses Are The Best?

Boss_button So says a recent report published by Australian researchers at Bond University. According to the findings reported on China Economic Net:

In the study to be presented at a conference on management this weekend, almost two-thirds of the 240 participants in an online survey said the local workplace tyrant was either never censured or was promoted for domineering ways.

"The fact that 64.2 percent of the respondents indicated that either nothing at all or something positive happened to the bad leader is rather remarkable -- remarkably disturbing," wrote the study's authors, Anthony Don Erickson, Ben Shaw and Zha Agabe of Bond University in Australia.

Despite their success in the office, spiteful supervisors can cause serious malaise for their subordinates, the study suggested, citing nightmares, insomnia, depression and exhaustion as symptoms of serving a brutal boss.

The authors advocated immediate intervention by industry chiefs to stop fledgling office authoritarians from rising up the ranks.

The findings of this study are consistent with a post I did earlier this week that suggested that angry male employees (but not female employees) are rewarded at work.


August 8, 2007 in Commentary | Permalink | Comments (0) | TrackBack (0)

Shaming Police Officers in Thailand

Hellokitty So you want to subject your employees to humiliation? Here's an idea:

Thai police officers who break rules will be forced to wear hot pink armbands featuring "Hello Kitty," the Japanese icon of cute, as a mark of shame, a senior officer said Monday.

Police officers caught littering, parking in a prohibited area, or arriving late — among other misdemeanors — will be forced to stay in the division office and wear the armband all day, said Police Col. Pongpat Chayaphan. The officers won't wear the armband in public.

The striking armband features Hello Kitty sitting atop two hearts.

I wonder what Dan Markel (Florida State) would have to say about this type of shaming punishment? And more importantly, how can the Thais make fun of a figure so treasured by my own young daughter?


August 8, 2007 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

The Mysterious 4th Prong of Prima Facie Pretext Case

The 7th Circuit has helped to clarify the mysterious fourth prong of the plaintiff's prima facie case in an employment discrimination pretext case involving a termination.  In Pantoja v. American NTN Bearing (7th Cir. Aug. 6, 2007), the court commented:

It is worth noting that there has been a subtle evolution in the way that courts describe the McDonnell Douglas requirements for a prima facie case of discrimination, at least when the adverse action at issue is the employee's termination. 

As Ross Runkel points out in his Employment Law Memo:

The court clarified that as a result of this evolution, the fourth element is satisfied when "[the] employer sought someone to perform the same work after [the employee] left." The court reasoned that "the fact that the employer needs to find another person to perform that job after the employee is gone raises the same inference of discrimination that the continuation of a search does in the hiring situation." The court thus abandoned the trial court's formulation of the fourth element, pursuant to which Pantoja was required to show that "he was treated less favorably than similarly situated individuals who are not members of his protected class."

Never been a big fan of the prima facie case in light of how the Hicks case dealt a death blow to the sifting of evidence feature of the McDonnell Douglas framework, but given that McD is not going anywhere, this seems to be a reasonable clarification.


August 8, 2007 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2007

New Illegal Worker Rules

Farmworkers The New York Times is reporting on the Department of Homeland Security's new plans to crack down on illegal workers.  The rules would require employers to fire employees whose Social Security numbers do not match the Social Security Administration's records and who can't verify the accuracy of the number:

The expected regulations would give employers a fixed period, perhaps up to 90 days, to resolve any discrepancies between identity information provided by their workers and the records of the Social Security Administration. If workers’ documents cannot be verified, employers would be required to fire them or risk up to $10,000 in fines for knowingly hiring illegal immigrants.

The potential reach of the rules are significant; the Times notes that "[m]ore than 70 percent of farmworkers in the fields of the United States are illegal immigrants, according to estimates by growers’ associations."  Moreover, the Social Security Administration said that it "expected to send out about 140,000 no-match letters to employers this year, covering more than eight million workers. After the rules are announced, the agency is anticipating a surge in requests from employers seeking to clarify workers’ information."

Not surprisingly, labor groups and many employers are up in arms about the rules, which could create severe problems if there's any real enforcement.  Also, the fact that the Department of Homeland Security is essentially acting on their own on an issue with such far-reaching impact shows the need for the government to come up with a comprehensive policy on immigration.  Unfortunately, that's not likely to happen before 2009, at the earliest.


August 7, 2007 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

EEOC Head Nominee Withdraws

Eeoclogo Employment Law360 (subscription required) reported yesterday that President Bush is going to need to look for another person to be the head of the Equal Employment Opportunity Commission (EEOC):

After encountering stiff opposition from lawmakers and colleagues alike, President Bush's nominee to serve as the next head of the Equal Employment Opportunity Commission has withdrawn his name amid a stalled confirmation process.

U.S. Department of Justice veteran David Palmer took his name off the table for consideration over the weekend, claiming to be a casualty of bitter partisanship....

In the future, Bush may consider nominating someone who was not "the subject of at least one complaint of employee abuse in his supervisory role at the Justice Department" and who did not treat felllow employees "with disdain and contempt." He was apparently also "reprimanded for one performance lapse."

Wow, Bush really likes these Gonzales-incompetent, Bolton-bullying types.

Update: President Bush nominated Stuart Ishimaru for a second term as an EEOC commissioner.


August 7, 2007 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

"The DBeatification of the 401(k)"

Pensionact2007explanation Interesting commentary in the Washington Post this past Sunday how after the monumental shift to 401(k) plans and other defined contribution plans, workers are starting to realize that they really still want some of the old defined benefit plan features:

But a funny thing has happened now that we've accepted 401(k)s as the shape of retirement plans for the future. As financial experts and public policy folks thought about ways to make these plans better, they realized that some aspects of the old plans were quite attractive. The result, as J. Mark Iwry, a non-resident senior Brookings fellow and a principal in the Retirement Security Project, puts it, is "the DBeatification of the 401(k)."

Two recent trends are gaining momentum that could improve financial prospects for workers heading toward retirement. One is helping ensure that employees get themselves into a 401(k) without having to take direct action. The other provides professional investment choices, again with the worker barely having to break a sweat over it.

I agree that the addition of automatic enrollment and investment advice safe harbors as a result of the Pension Protection Act of 2006 has gone a long way to make retirement saving more attractive and easy for more workers.  I expect to see a growth in the amount in retirement funds in the years to come.


August 7, 2007 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

LaRue: ERISA Case Not Moot

4united_states_supreme_court_1129_2 The plaintiff in LaRue v. DeWolff, Boberg, the ERISA remedies case pending before the Supreme Court, has filed a brief in opposition to the defendant's claim that the case is now moot because the plaintiff cashed out his 401(k) account.  Here's a summary from Lyle Denniston at the SCOTUSblog:

Responding on Friday, LaRue's lawyers argued that his former employer was making "an eleventh hour attempt to avoid the resolution" of two legal issues that "affect the rights of tens of millions of American workers and retirees." Caliing the dismissal motion "frivolous," the opposition brief said that LwRue is a former employer who has "a colorable claim that he or she will prevail in a suit for benefits," and thus is entitled to sue under ERISA. Even if there were a dispute over his status as a plan participant, the brief said, that is only an issue that the plan and its administrator could raise later in defense, should LaRue's case be allowed to go forward.

The argument that LaRue is no longer a participant, the brief said, "is nothing more than a post-pleading defense on the merits that has no bearing on the two legal questions before this Court." If, however, the Court has any inclination to confront the issue of LaRue's status under the plan, that should be taken up when the case is heard on the merits, the brief contended.

The opposition to the dismissal motion in the case can be found here.

In addition, I joined an amicus brief with eleven other law professors to support LaRue's position. To me, just because he cashed out what he currently has in his retirement account does not mean that he does not have a potential remedy to recover what he allegedly lost from that same account as a result of mismanagement of his plan assets.  I agree that the defense's claim to the contrary is close to frivolous.


August 7, 2007 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Blogger Unions

Unionyes I'm not convinced yet that I need the power of the union behind me to deal with the benevolent dictatorship of Blog Emperor Caron, but some obviously do not have it as good as me:

Do bloggers need their own Norma Rae?

In a move that might make some people scratch their heads, a loosely formed coalition of left-leaning bloggers are trying to band together to form a labor union they hope will help them receive health insurance, conduct collective bargaining or even set professional standards.

The effort is an extension of the blogosphere's growing power and presence, especially within the political realm, and for many, evokes memories of the early labor organization of freelance writers in the early 1980s.

Organizers hope a bloggers' labor group will not only showcase the growing professionalism of the Web-based writers, but also the importance of their roles in candidates' campaigns.

Like some of the critics of this idea, I wonder in the eclectic blogospehere how they will ever find anything even approaching a community of common interest, but you just never know.


August 7, 2007 in Labor and Employment News | Permalink | Comments (1) | TrackBack (2)

Too Late

Pumpkin PJH Law notes that an English Employment Tribunal recently ruled that a wrongful discharge claim was untimely because it was filed 88 seconds too late.  Sixteen minutes before midnight on the 59th day of a 60-day deadline, the claimant emailed his claim in, but got one letter of the email address wrong, so the claim bounced back.  He sent a follow-up test message to the correct address.  When that didn't bounce back, he figured out that he had mis-typed the address on the original message, and re-submitted his claim to the proper address.  By then, however, the clock had struck midnight and his claim had expired.  Held: serves him right for waiting until the last minute, when he easily could have filed it early and given himself a wider margin for error.


August 7, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2007

Equal Remedies Act of 2007 Introduced in Senate

Beiner I just returned from the Southeastern Association of Law Schools Conference in Amelia Island, Florida (I know, it is a hard life) and one of the papers I heard given by Terry Beiner (Arkansas-Little Rock) was on lifting the damages caps under the Civil Rights Act of 1991.

Well, apparently, Terry, you and other powerful people think alike. Here's Michael Fox from Jottings of An Employer's Lawyer:

Although not yet announced on his website or available from the Senate's website, the Daily Labor Report is saying that Senator Kennedy has introduced the Equal Remedies Act of 2007. The intent is to remove the caps in Title VII which limits compensatory and punitive damages under that statute based on an employer's size. For an employer of more than 500, the cap is $300,000. That is in addition to back pay and other out of pocket damages, reinstatement and other equitable remedies and attorneys fees.

The stated reason -- to ensure equality for gender, disability and religious discrimination claims with those available to individuals who bring claims for race or national origin discrimination. Those claims can be brought under § 1981 which has no caps. (It also has a much longer statute of limitations and no requirement to file with the EEOC, so following the logic of this legislation, perhaps we could save some taxpayer money and abolish the EEOC.)

Although Mike would like to see caps put on Section 1981 and other laws, the Democrats have another idea. This isn't going anywhere with Bush at the helm, but more things seems possible come 2009.


August 6, 2007 in Beltway Developments | Permalink | Comments (0) | TrackBack (2)