Saturday, September 22, 2007
Yaraslau Kryvoi (clerk, D.C. Cir.) has jut posted on SSRN his article Why European Trade Sanctions Do Not Work. His article focuses on sanctions for violations of labor standards. Here's the abstract:
This Article analyzes the role of legal, political and economic factors in determining the effectiveness of trade sanctions imposed in response to violation of labor standards. It begins by addressing the theoretical aspects of the linkage between trade and labor and then turns to the practical aspects by examining the application of the recently revised European Union's Generalized System of Preferences (GSP). The Article suggests that the reasons why countries fail to respect core labor standards are of critical importance in determining the potential effectiveness of sanctions. If the reason is principally economic the mere threat of sanctions may be enough to motivate a country to modify its policies to prevent economic damages resulting from sanctions. Sanctions are less effective in changing the conduct of countries which violate core labor standards primarily due to political reasons. The European Union's decisions to terminate trade preferences for labor rights violations for Myanmar in 1997 and Belarus in 2006 did not have any significant impact on these countries and are unlikely to achieve their desired objectives in the future for two main reasons. First, the main motivation for these countries' violations is political and the cost of the undemocratic regimes' compliance with international obligations is greater than the cost of non-compliance. Second, both countries have powerful 'sponsors', which undermine the economic impact of the European Union's sanctions. Despite the limited effectiveness against the target countries, the withdrawal of trade preferences may have other important effects, such as deterring other potential violators, demonstrating the European Union's commitment to promote core labor standards and strengthening the link between trade and fair labor practices.
Jonathan Fineman (Colorado) has just posted on SSRN his article The Inevitable Demise of the Implied Employment Contract. Here's the abstract:
This article examines the consequences of the courts' decision in the early 1980s to apply implied contract doctrine to employment relationships. Although courts did not use the rhetoric of "norms" popular in academic discourse today, their actions were in fact an attempt to enforce workplace norms, specifically the voluntary system of job protection policies employers devised in order to increase worker loyalty and productivity.
What happened when courts began giving job security practices the force of law? The results were not what the courts intended. Employers immediately began restructuring their employment documents, policies and practices to avoid liability. Through a process of trial and error, employers eventually found a way to essentially avoid liability through careful drafting of personnel documents. Not only are implied contract claims now essentially impossible to win, many employees no longer have the benefits of the voluntary system of job protections that were previously in place.
I argue that the failure of contract law was inevitable. Because the terms of the employment �contract� are typically controlled by employers, they can restructure the terms of the agreement to avoid obligations. If the contract is clear, courts must enforce it absent extraordinary circumstances, even if the terms are not fair to employees. As long as individual employers are able to define the scope of their own obligations, efforts to enforce workplace norms will be unsuccessful.
Finally, this article builds on some existing proposals and suggests directions for future work. To successfully enforce workplace norms, we must remove employers' unilateral ability to restructure the employment relationship to avoid liability. I suggest looking beyond the relationship between the particular employee and employer to broader-based norms prevalent in the industry or applicable to the type of job position at issue. Essentially, I argue that employers should not be able to opt out of the norms followed by similarly-situated employers dealing with similarly-situated employees. This aggregate norm approach would allow greater flexibility for employers than contract obligations but still protect reasonable employee expectations.
Harry Hutchison (George Mason) has just posted on SSRN his article Reclaiming the First Amendment Through Union Dues Restrictions?. Here's the abstract:
In its recent Davenport v. Washington Education Association decision, the United States Supreme Court unanimously enforced a Washington State paycheck protection initiative that placed restrictions on the extraction of labor union dues for political purposes. This decision appears to substantiate the free speech interest of union dissenters. This case also provides an additional example of the ongoing conflict between individual and group interest and between individual and group preferences that have erupted in a society that appears to be falling apart. In such a society the myth of the "universal worker" is collapsing in the face of escalating incredulity, and an increasing focus on autonomy. Although human autonomy may find some protection in the First Amendment, I argue that the Supreme Court's holding in this case cannot fully vindicate individual liberty despite the claims and counter-claims of a number of observers. Correctly understood, this decision promises little and delivers less because it fails to deal decisively and comprehensively with issues that both earlier private sector and public sector union dues disputes illuminated but failed to settle. Tied to earlier precedent, the Davenport case falls short of recapturing fully the First Amendment values of expression and association.
This article represents an extension of my prior work that has considered the union dues controversy. I provide arguments, recommendations and some speculations that are aimed at reclaiming human autonomy, individual liberty and a principled understanding of First Amendment ideals. However ultimately, I suggest the implausibility of recapturing a principled understanding of the First Amendment in a society torn apart by simmering disagreement. While the Supreme Court rightly enforced Washington State's dues restrictions, it is unlikely that paycheck protection legislation or referenda can rescue First Amendment rights and values from adjudication that transforms principle into a wobbly platform.
- Vivek Wadhwa, Guillermina Jasso, Ben Rissing, Gary Gereffi, & Richard B. Freeman, Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America's New Immigrant Entrepreneurs, Part III (1083).
- Keith Cunningham-Parmeter, Fear of Discovery: Immigrant Workers and the Fifth Amendment (149).
- Laurence R. Helfer, Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (51).
- Yaraslau Kryvoi (photo above), Why European Trade Sanctions Do Not Work (41).
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (31).
- Kenneth M. Rosen, Fiduciaries (196).
- Zvi Bodie , Jonathan Treussard , & Paul Willen, The Theory of Life-Cycle Saving and Investing (195).
- Jeffrey N. Gordon, The 'Prudent Retiree Rule': What to Do When Retirement Security Is Impossible? (112).
- Sharon Reece, ERISA Preemption and Fair Share Legislation (99).
- David I. Walker (photo above), Unpacking Backdating: Economic Analysis and Observations on the Stock Market Option Scandal (78).
Friday, September 21, 2007
An organizing dispute between UNITE HERE and the Hartford Marriott has come to an anticlimactic end. In Marriott Hartford Downtown Hotel, N.L.R.B., No. 34-RM-88 (Sept. 14, 2007) (unpublished), the Board affirmed the Regional Director's dismissal of the employer's election petition. This comes as a surprise because last year the full Board (in a 3-2 order) granted review of the Regional Director's decision, stating that it raised issues meriting review, 347 N.L.R.B. No. 87 (2006). The background of the case (as quoted from BNA's Daily Labor Report (subscription required)) is as follows:
Marriott opened a hotel in August 2005 in downtown Hartford, Conn., next to a new convention center. Both the hotel and the convention center are part of a publicly funded development . . . . A UNITE HERE Local 217 representative requested in August 2005 that the hotel "begin discussions about a Labor Peace agreement." Hartford's Living Wage and Labor Peace Ordinance requires that employers involved in development projects with the city sign an agreement with a union upon request specifying procedures for determining whether the employees want to be represented by the union. The agreement also must provide that the union "will not strike the development project in relation to the organizing campaign."
After getting no response from the hotel, the union in the fall of 2005 sought community support. . . . The city of Hartford sent a letter in January 2006 to Marriott stating that the hotel was covered by the city ordinance. The city pointed out that Marriott had entered into a tax-abatement agreement with the city that required the hotel to comply with the ordinance. . . . In an April 6, 2006, letter to Marriott, the union said it would be "commencing an organizing drive" among the hotel's employees and was "prepared to begin discussions to determine whether we might reach a 'labor peace agreement' setting ground rules for organizing." Marriott on April 18, 2006, filed a petition with NLRB seeking a representation election to determine whether the hotel's employees wanted UNITE HERE to represent them
Marriott challenged the Regional Director's denial of its petition, arguing that union demanded recognition, which justified the employer's election petition. The Board agreed to hear the case, saying that it raised significant issues implicating neutrality and card-check agreements. That order was viewed as the potential death knell of New Otani Hotel & Garden, 331 N.L.R.B. 1078 (2000), in which the Board concluded that informational picketing and requests for neutrality and card-checks agreements were not demands for representation.
I agree with the dissenters
(Members Liebman and Walsh) in the first Hartford Marriott order--the
union's conduct in this case should not be considered a demand for
recognition. The Board has long recognized the need to permit unions to
be able to control in most instances when they want an election held. By
trying to penalize unions for merely seeking to inform the public and
requesting ground-rules for an organizing drive, employers supporting
Marriott here are trying to stack a deck already heavily tilted in their favor.
However, they may also be shooting themselves in the foot in some cases.
If the definition of a demand for recognition is expanded, employers could face
more 8(a)(5) refusal-to-bargain charges. When I was at the Board, I lost
(badly) a case in the D.C. Circuit which turned on whether a newly merged union
demanded bargaining. The D.C. Circuit took what I viewed as an overly
restrictive view of what constitutes such a demand. It's not the same
issue and those type of cases are rare, but if New Otani is overturned,
cases like mine may be harder for employers to win in the future.
Dean Dad has this to say about diversity training. Comments are welcome.
[T]he point of diversity training isn't to sensitize employees to diversity. Anybody with any teaching experience at all can tell you that herding a hundred people into an auditorium for mandatory consciousness-raising for ninety minutes won't work. It's terrible pedagogy, and virtually designed to fail; it's also insulting. If the point of the workshops were to change attitudes and/or behavior, those would be valid objections. But that's not the point of the workshops. The point of the workshops is to be able to answer a legal complaint alleging bias with “we take these issues seriously. See, we run mandatory workshops on them for all employees!” It's about defusing potential liability.
(Admittedly, this implies a shockingly low opinion of the judicial system. But that's another post altogether.)
If deposed, a manager can say “we provide x number of hours of training.” As with credit hours, what gets measured is seat time. Changed behavior and/or attitudes are devilishly hard to quantify, but seat time is remarkably easy. If somebody alleges, say, racism, and can prove some kind of different treatment at something (which is sort of like proving that the sun rose in the East), the burden shifts to the college to show that it isn't racist. (The presumption of innocence is remarkably weak in this area of the law.) You can't prove a negative, so the college has to use proxy measures. (Quick – prove you're not thinking about a polar bear!) Seat time in diversity seminars counts as a proxy measure. If the discrimination laws were more intelligently written and enforced – say, dispense with the requirement to prove a negative -- we could dispense with these Potemkin rituals. But they aren't, so we can't. If we did, we'd lose every case, whether it had any merit or not.
Thursday, September 20, 2007
Well, you could find out if you were willing to move north of the Border:
Statistics Canada has released Perspectives on Labour and Income dealing with Unionization in 2006 and the first half of 2007. The Unionization rate remained at 29.7% with 7 provinces seeing increases while there were decreases in 3 provinces. There's some very interesting information in this publication and anyone practicing in this area should have themselves a read.
I just assumed that unionization rates were increasing across Canada, so it is interesting to understand why three provinces have seen decreases and why the overall percentage remains stable? Any comparative lessons for the United States? Canadian readers?
The September 20th BNA Daily Labor Report (subscription required) has news about the House HELP subcommittee approval of the RESPECT Act, which would legislatively change the definition of supervisor under the NLRA:
The House Education and Labor Committee Sept. 19 approved legislation (H.R. 1644) that would modify the definition of supervisor under the National Labor Relations Act.
The bill, titled the Re-empowerment of Skilled and Professional Employees and Construction and Tradesworkers Act, or RESPECT Act, would change the definition of "supervisor" to eliminate the tasks "assign"
and "responsibly direct" from a list of 12 supervisory duties to clarify, in the view of the bill's sponsors, that workers who lack actual supervisory authority are not supervisors under the law.
Employees covered by the NLRA's definition of supervisor are not entitled to have union representation, engage in collective bargaining, or engage in protected concerted activity.
As much as I think this is a needed development in light of recent NLRB decisions in this area, I am under no illusion that this bill has any chance with the ability of the Republicans to filibuster and the president to veto. But perhaps, like other legislation, it sets the stage for 2009.
Hat Tip: Hank Leland
Melissa Hart (Colorado) has posted on SSRN her forthcoming piece: Retaliatory Litigation Tactics: The Chilling Effects of After-Acquired Evidence.
From the abstract:
Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing, was widely viewed as a victory rather than a defeat for plaintiffs, because the Court held that such after-acquired evidence of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial of relief for victims of discrimination, it is surprising that there has been little academic inquiry into the actual effects of McKennon on discrimination claims.
This Article documents how the after-acquired evidence doctrine of McKennon plays a troubling, role in civil rights litigation: it shifts the focus of the discussion off the employer's illegal acts and onto the worthiness of the plaintiff; and it chills full enforcement of discrimination laws. Using both an empirical analysis of judicial decisions and a series of interviews with attorneys, this Article uncovers new evidence that employers most often seek to limit a plaintiff's remedies based on evidence of relatively minor transgressions, most commonly resume fraud, that would not likely have been discovered had the plaintiff not sued to challenge employment discrimination. Further, both the data from judicial opinions and the evidence from practicing attorneys suggest that the potential for disclosure of negative personal and professional information dissuades plaintiffs from pursuing even meritorious claims of discrimination.
Melissa is absolutely right. There is a lack of academic pieces examining the role that the after-acquired evidence doctrine plays in employment discrimination law. I look forward to reading this timely and important piece.
Wednesday, September 19, 2007
Update: More on this story from the New York Daily News (Hat Tip: Jennifer Wright):
The NFL and its union, already under heavy fire from former Bears coach Mike Ditka and others who claim officials deny aid to retired players with debilitating injuries, yesterday received a no-nonsense directive from Congress: Fix your pension and disability policy or we'll do it for you.
Lester Munson at ESPN.com provides the story:
[Mike] Ditka and other ex-players claim that NFL owners and the players union have failed to provide properly for aging athletes who face debilitating injuries. The league and the union reply that they have established the most generous disability system anywhere, and that it is improving every year.
Goodell and Upshaw will tell the senators that the NFL pension/disability fund has grown from $88 million in 1982 to $1.1 billion today. They will show that the 1,800 players in the NFL this season will contribute an average of $82,000 each to health, pension and disability benefits for former players, a total of $147.5 million. And they will focus on their assertion that many former players are collecting disabilities and pensions in annual amounts that are more than they made as players.
The debate will be fierce. Despite the impressive numbers presented by the league and the union, many old players feel wronged and aren't hesitant to say so. They're quick to use words like "fraud" and "crime" and "corruption." At a hearing in June before a House subcommittee, former Vikings player Brent Boyd, who suffered a series of concussions, compared the NFL to the tobacco industry, saying, "They lie about the NFL and concussions the same way the tobacco companies lied about tobacco and cancer."
Mike McCann, my favorite resident sports law expert has his comprehensive thoughts on the situation at SI.com. My take is that I still cannot get over how clueless Gene Upshaw is on retiree issues. This is the same man who said not too long ago:
"The bottom line is, I don't work for [retired NFL football players]. They don't hire me and they can't fire me. They can complain about me all day long. They can have their opinion. But the active players have the vote. That's who pays my salary."
Umm, Gene, it does appear that retired players can make a whole lot of trouble for you and have you testify before Congress.
Hat Tip: Lane Williamson
(GM.N) would give new union members 401(k)-style retirement plans instead of traditional pensions for the first time under a proposed contract, Bloomberg News said on its Web site, citing people with knowledge of the talks.
GM also has proposed freezing cost-of-living raises to help pay for a union-run fund that would take responsibility for retiree health care, the report said.
After breaking off talks at around 9 p.m on Tuesday, GM and UAW negotiators were prepared to return to the bargaining table on Wednesday morning, a person familiar with the talks said.
The move from a defined benefit plan to a defined contribution plan would certainly be consistent with the larger movement in this country to consumer-driven benefit plans. It is also interesting that the company is proposing to tie wage concessions to the proposed VEBA plan.
Hat Tip: Dennis Nolan
The newest in a string of campaign speech flubs from Gov. Bill Richardson came yesterday at a rally for SEIU. First Read reports that at the end of Richardson’s speech the Gov. shouted “Thank you, AFSCME!” Not only did he thank the wrong union, but he thanked a union that is a rival of SEIU on many issues in many states.
Marty Malin (Chicago-Kent) and Charles Kerchner (Clarement Graduate Univ.) have just posted on SSRN their article (forthcoming Harv. J. Law & Pub. Policy) Charter Schools and Collective Bargaining: Compatible Marriage or Illegitimate Relationship?. Here's the abstract:
The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teachers in charter schools. This development prompts the question whether unionization and charter schools are compatible.
In contrast to traditional public schools whose labor relations are based on the traditional industrial labor relations model, charter schools are envisioned as high performance workplaces in which teachers gain enhanced psychological purchase as a result of sharing in the risks of the enterprise. We look to traditional public schools and find exceptions where teachers and their unions have become agents of change and risk takers. We ask why these exceptional cases have not spread more broadly and find the answer in public sector labor law doctrine which has channeled teacher unions away from risk sharing and toward insulating their members from the risks of the enterprise.
We then consider the labor law governing charter schools. We discuss whether charter schools are governed by the National Labor Relations Act or state law and survey the different approaches that have developed under state law. We conclude that all of these approaches are based on the industrial relations model which is incompatible with the high performance workplaces envisioned for charter schools. We propose to free charter schools and their teachers from traditional labor law doctrine and propose a new approach to teacher voice that, in keeping with the vision of charter schools as shaking up the status quo by injecting competition, will lead to competition and innovation in teacher involvement in the regulation of their workplaces.
I'll admit that I was initially taken aback by the assertion that unions are incompatible with high performance workplaces. However, as the article makes clear, the authors do not mean by this that organized workplaces are incapable of high-quality output (in this case, presumably, student test scores). Instead, the authors define "high performance workplaces" as workplaces that emphasize "flexibility, employee involvement, responsibility, accountability, and an incentive system of rewards," in contrast to a "command and control system [in which] subordinates are not expected to think creatively but are instead confined to carrying out specifically and narrowly assigned tasks."
Katharine Baird Silbaugh has just posted on SSRN her essay (forthcoming Connecticut L. Rev.) Wal-Mart's Other Woman Problem: Sprawl and Work-Family Balance. This essay dovetails nicely Silbaugh's recent article on urban planning, housing design, and work-family balance. Here's the abstract:
Wal-Mart is often said to be bad for its workers, including those workers in its production chain in developing countries, and good for its consumers, most of whom are women. Most people argue that its consumers gain from low prices. This brief essay argues that consumers absorb a share of the costs of Wal-Mart's low prices. Contrary to intuition, Wal-Mart may increase significantly the financial and time pressures on its shoppers, the majority of whom can ill-afford increases in either. Most small retail is sited to take advantage of travel routines people have already established to meet their residential and work needs. In contrast, Wal-Mart's site choice is driven by the need for a plot of land large enough for a 150,000-200,000 square foot store and a parking lot three times that size. The market plan of a Big Box store includes changing the travel behavior of its shoppers, while small retail merely catches people as they move from home to work to school. Wal-Mart's plan for influencing consumer conduct is more ambitious socially. Compounding this effect, Wal-Mart drives smaller retail stores out of business. The consumer then loses choices over whether to drive to purchase goods. She can no longer mix long trips to Wal-Mart for low-cost goods with shorter trips to local retail for relatively higher-priced goods. Wal-Mart thus introduces barriers for those without cars, financial burdens for those with access to cars, and logistical strains on time use for time-starved consumers. Time and logistics already strain those attempting to balance work and family responsibilities, and the sprawled placement of big box development increases these burdens. I argue that most Wal-Mart consumers intend to choose its low prices, but do not intend to eliminate logistically easier shopping options.
Tuesday, September 18, 2007
Congratulations to our own Paul Secunda, who was quoted in an Associated Press article distributed late yesterday afternoon. The article so far has been picked up by CNNMoney.com and the Houston Chronicle. The article discusses negotiations between General Motors and the United Auto Workers over creating a trust, funded initially by GM but managed by the UAW, for retiree health costs. The risk to the UAW, as Paul discussed in an earlier post here, is that if funds in the trust are inadequate, the UAW will be left holding the bag. Quoth the AP:
The only reason the union would agree to such a trust is because it has no choice, said Paul M. Secunda, lecturer and assistant professor of law at University of Mississippi and co-editor of the workplaceprofblog. The alternative is bankruptcy.
Lexis Nexis has just published the multi-volume 2007New York University Review of Employee Benefits, edited by Alvin Lurie. This is one of the most comprehensive publications of the current state of employee benefits and is chocked full of pieces by the best academics and practitioners in the field.
Here is the Table of Contents:
Chapter 1. Edward A. Zelinsky, Cooper v. IBM Personal
Pension Plan: A Critique
Chapter 2. Edward A. Zelinsky, Maryland’s “Wal-Mart” Act: Policy and Preemption
Chapter 3. Alvin D. Lurie, No Accounting for FASB’s New Pension Accounting Rules
Chapter 4. Alvin D. Lurie, The Fateful Summer of ’06 When Cash Balance Plans Seemed to Come Back from the Brink to the Cusp of Redemption – And Then?
Chapter 5. Bruce J. McNeil, Section 457 and Deferred Compensation: A Valuable Tool for Colleges and Universities
Chapter 6. Marcia S. Wagner, Fiduciary Issues Associated with Default Investment Alternatives under Participant Directed Individual Account Plans
Chapter 7. Marcia S. Wagner, Barry M. Newman, Will ERISA Preemption Derail Massachusetts Health Care Reform?
Chapter 8. Thomas R. Hoecker, Reexamining Moench – When Must a Fiduciary Sell Employer Stock?
Chapter 9. Jonathan Barry Forman, The Future of 401(k) Plan Fees
Chapter 10. Eric D. Chason, Why Pension Funding Matters
Chapter 11. Scott J. Macey, Bradford E. Klinck, Solving the Conundrum of Frozen Pensions Plans
Chapter 12. Kirsten H. Jensen, Limits of the Fiduciary Exception to the Attorney-Client Privilege – With Particular Attention to the Special Concerns of In-House Counsel Who Advise Plan Fiduciaries
Chapter 13. T. David Cowart, Greta E. Cowart, 409A: In Flux (as of March 2007)
Chapter 14. Thomas F. Commito, Life Insurance: A
little Bit of This and a Lot of That
Chapter 15. Alden J. Bianchi, The (Code § 409A) Elephant in the (Deferred Compensation) Room – Adjusting to New Realities After The American Jobs Creation Act of 2004
Chapter 16. Herbert A. Whitehouse, The Impact of 104(k) Fiduciary Governance Structures on Corporate and Board Liability Risk
Chapter 17. Stephan R. Leimberg, Howard M. Zaritsky, Natalie B. Choate, IRS Rejects Defined Benefit Plan Insurance Sub-Trust: From “Under the Radar” to “Into the Cross-Hairs”
Chapter 18. Jayne Elizabeth Zanglein, Circumnavigating the Serbonian Bog: The Use of ERISA Special Masters to Expedite Employee Benefit Cases
Chapter 19. Gregory K. Brown, Kathleen Sheil Scheidt, Fiduciary Hurdles in Selling an ESOP-Owned Company
Chapter 20. Daniel Halperin, Ethan Yale, Deferred Compensation (Under Section 409A) Revisited
Chapter 21. Robert E. Brown, Tabitha M. Croscut, Paul S. Fusco, Insulation from Environmental Liability for ESOP Trustees
Chapter 22. Kathryn L. Moore, Social Security Reform: An Analysis of the Ball/Altman Three-Point Plan
Chapter 23. Paula A. Calimafde, Arnold B. Sherman, Miguel A. Martinez, Jr., Tax Gap: Reform and Simplify Employee Benefits Tax Law
Chapter 24. Laurence Reich, Severance Pay and SERPs Under Section 409A: The Final Regulations
Chapter 25. David Pratt, The Minimum Distribution Rules
Chapter 26. David M. Walker, 21st Century Challenges: Economic Security in Retirement
Ireland and Bales on Title II of the Americans with Disabilities Act and its Prohibition of Employment Discrimination
Jamie Ireland (Northern Kentucky/Chase - student) and Rick Bales (Northern Kentucky/Chase) have posted on SSRN their forthcoming piece in the Northern Illinois Law Review entitled: Title II of the Americans with Disabilities Act and its Prohibition of Employment Discrimination.
Here's the abstract:
Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination. Title II of the ADA prohibits discrimination in the provision of programs, services, or activities by federal, state, and local government entities. Title I, however, contains significant coverage gaps: federal employees, and employees of employers with less than fifteen employees, are not covered. When these employees are discriminated against on the basis of disability, they often sue under Title II, which does not contain the Title I exclusions.
The federal circuit courts are split on the issue of whether the ADA Title II applies to employment discrimination claims. The Ninth Circuit has held that it does not, reasoning that the exclusions in Title I would be meaningless if litigants could back-door their claims via Title II. The Second, Fourth, Fifth, and Eleventh Circuits, however, relying on the plain language of the statute and on Department of Justice regulations, have held that Title II does apply to employment discrimination claims. This article agrees with the latter set of circuits, arguing that such an interpretation is consistent with the statute's plain language, legislative history, legislative intent, and administrative regulations.
Interesting and important article that explores the plight of many types of employees, including federal employees, who do not come under the traditional ADA Title I framework. It also shows how individuals who are excluded by Title I, may have federal anti-discrimination protection. Check it out!
Michael LeRoy has just posted on SSRN his article (forthcoming Notre Dame L. Rev.) Misguided Fairness? Regulating Arbitration By Statute: Empirical Evidence of Declining Award Finality. Here's an excerpt from the abstract of his important findings:
I collected data in 426 federal and state court rulings in employment disputes from June 1975 through April 2007. Federal district judges confirmed 92.7% of arbitrator awards, compared to 78.8% for state courts. This statistically significant difference was also observed for appellate courts, where the confirmation rate in federal courts was 87.7%, contrasted to 71.4% for state courts.
The anomalous structure of the FAA explains why federal courts are more deferential than state courts. The statute allows litigants to choose federal or state court to challenge an award. In federal court, the standard of review is among the narrowest in the law . . . . Fewer states now replicate the FAA, as a growing number adopt more intrusive standards.
The Revised Uniform Arbitration Act is exacerbating this situation. Passed in 2000, RUAA has been enacted by 12 states - and the number is likely to grow. RUAA aims to curb recent abuses in arbitrations by legislating fairness into this process. However, by strictly regulating arbitrator disclosures, and limiting arbitrator powers to order attorney's fees and other relief, RUAA creates new and more conditions that erode the finality of arbitration decisions . . . .
State expansion of reviewing standards poses three significant problems: (1) Foremost, this trend is fragmenting the national policy that favors arbitration by allowing a plurality of judicial review standards. When Congress and the Supreme Court beat the drum to proclaim that the FAA provides a national arbitration policy, they are wrong. (2) The results imply that RUAA will stimulate forum shopping. Award winners should run to federal court to confirm their awards, while challengers should race to state court to improve their odds of vacatur. In time, the judicial inconsistency that I document will undermine cost, efficiency, and time saving advantages of arbitration over court adjudications. (3) A moral hazard is created when losers at arbitration are tempted to renege on their contractual promise to submit to binding arbitration in order to pursue do-over adjudication . . . .