Saturday, September 29, 2007
Yesterday's Texas Lawyer reports:
The Judicial Council of the 5th U.S. Circuit Court of Appeals today issued an order reprimanding and admonishing U.S. District Judge Samuel B. Kent of Galveston. The order relates to a complaint of judicial misconduct lodged against the judge on May 21 alleging sexual harassment toward an employee of the federal judicial system. A former case manager for Kent, Cathy McBroom, confirms she filed a complaint against the judge. She declines further comment. McBroom currently works in the clerk's office in the Houston Division of the Southern District of Texas.
Fifth Circuit Chief Judge Edith Jones, who signed the order, wrote that a Special Investigatory Committee appointed to investigate the complaint expanded the original complaint under Rule 9(A) of the Rules Governing Complaints of Judicial Misconduct or Disability, and investigated other “instances of alleged inappropriate behavior toward other employees of the federal judicial system.” The committee recommended a reprimand “along with the accomplishment of other remedial courses of action,” and by a majority vote the judicial council accepted the recommendations. The council concluded the proceedings “because appropriate remedial action had been and will be taken, including but not limited to the Judge's four-month leave of absence from the bench, reallocation of the Galveston/Houston docket and other measures.”
The Fifth Circuit's reprimand order, however, provided that the special investigatory committee's Report, Findings of Fact, Conclusions of Law and Recommendations, and the Response to the Report "are confidential and will not be disclosed."
That is most unfortunate. If Judge Kent engaged in sexual harassment, the public has the right to know that, and to know whether he has been held to the same Title VII standard that he is charged with applying to litigants appearing in his court. If Judge Kent acted offensively but in a way that did not run afoul of Title VII (he has long had the reputation of, to put it mildly, not suffering fools gladly), the attorneys practicing in his courtroom should know that as well. The public and practicing attorneys alike have every right to know whether federal judges are being held to the same standards as the rest of us.
- 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 (1133).
- Keith Cunningham-Parmeter (photo above), Fear of Discovery: Immigrant Workers and the Fifth Amendment (156).
- Laurence R. Helfer, Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (52).
- Yaraslau Kryvoi, Why European Trade Sanctions Do Not Work (48).
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (36).
- Kenneth M. Rosen, Fiduciaries (196).
- Zvi Bodie , Jonathan Treussard , & Paul Willen, The Theory of Life-Cycle Saving and Investing (206).
- Sharon Reece, ERISA Preemption and Fair Share Legislation (106).
- David I. Walker, Unpacking Backdating: Economic Analysis and Observations on the Stock Market Option Scandal (104).
- Brett McDonnell (photo above), Two Goals for Executive Compensation Reform (58).
Friday, September 28, 2007
The minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) are not the most glamorous part of labor and employment law practice. However, they are becoming one of the most lucrative part of labor and employment practice for plaintiff attorneys. Here's a taste about the scope of the problem from the Law Blog at the Wall Street Journal:
Business Week says the wage and hour litigation cases have more than doubled from 2001 to 2006. Companies have collectively paid out more than $1 billion annually to resolve wage-litigation claims, which are usually brought on behalf of large groups of employees. And once one case is resolved, companies can face suits from different groups of workers. Wal-Mart, for instance, is fighting about 80 such suits and has lost a couple of multi-million dollar verdicts in the past year.
“This is the biggest problem for companies out there in the employment area by far,” J. Nelson Thomas, a Rochester attorney, tells Orey. “I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will.”
I think it is safe to say that like a decade ago when companies started paying more attention to sexual harassment suits, there will be a new initiative by companies to insure that decisions like who is exempt and non-exempt from the FLSA will be scrutinized to a much greater degree going forward.
The New York Times reported yesterday:
The federal government announced this afternoon that it had filed a lawsuit against Bloomberg L.P., the financial services company founded by Mayor Michael R. Bloomberg, accusing the company of discriminating against women.
In its lawsuit, filed this afternoon in U.S. District Court in Manhattan, the Equal Employment Opportunity Commission said the company engaged in a pattern of discrimination against pregnant women, including “decreasing their pay, demoting them, diminishing their job duties and excluding them from employment opportunities.”
Judith Czelusniak, a spokeswoman for Bloomberg, denied the accusations. “The company believes strongly that the allegations are without merit and we intend to defend the case vigorously,” she said by e-mail.
The EEOC files about three hundred lawsuits against companies every year, but what makes this one unusual is that it involves a company founded by Mayor Bloomberg and it involves pregnancy discrimination as opposed to sex discrimination in promotion or hiring.
Whatever the merits of the suit, it is certainly true that no working mother should have to choose between a career and motherhood.
Hat Tip: Brent Klein
Thursday, September 27, 2007
The AFL-CIO Blog is reporting that:
IBM workers in Italy have taken the next step in challenging the corporate globalized world—they’ve set a Virtual Strike on Second Life for Sept. 27.
The members of UNI and the Communications Workers of America, through its Alliance@IBM, are waging the online effort after IBM canceled a provision in its contract with Italian workers that resulted in the loss of 1,000 Euros per year for each employee. The works council, supported by the majority of IBM employees in Italy, had asked for a small salary increase . . . .
UNI is a global union for skills and services with 15 million members in 900 unions.
Don’t know what Second Life is? Here’s a good time to give it a try. Second Life is an online 3-D platform that enables you to create your own persona (”avatar”) and take part in virtual group events.
Is a strike in a virtual world a strike or a virtual complaint box? And is it a strike when you have to do it off work hours and on your own property? These are important questions to ponder as more of the world world moves off the docks and out of the factories and into bits and bytes.
Stay tuned for some virtual answers as to whether this becomes an important organizational too for labor around the world.
Maria Ontiveros (San Francisco) has just posted on SSRN both an article (Toledo L. Rev.) and a book chapter on immigrant workers and the Thirteenth Amendment:
- Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs. This article offers a Thirteenth Amendment analysis of “guest worker programs.” In these visa programs, non-United States citizens may come to work in the United States for a limited period of time. Under most of these programs, the worker must leave if they get fired or quit. The article offers a historical perspective of agricultural guest worker programs from1770 through today and concludes that poorly crafted guest worker programs may violate the Thirteenth Amendment.
- Immigrant Workers and the Thirteenth Amendment. This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, “guest workers” and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration rights and human rights groups.
The news wires are filled with stories about the suspension without pay of MLB Umpire Mike Winters for apparently escalating a confrontation with a player through use of foul language which led, in a bizarre twist, to the player suffering a serious injury (any tort professors out there?):
The key moment in the decision, according to multiple sources, came as a result of Winters calling [Milton] Bradley a "f------ piece of s---" during the heated argument at first base.
That moment is what appears to have escalated what already was a heated argument into a situation that spun so badly out of control that Bradley suffered a season-ending knee injury while being restrained by Padres manager Bud Black
Ok, there are all sorts of interesting, proximate cause-type questions concerning the injury that Bradley suffered, but I want to focus on the employment angle. Should Bradley have also been suspended for being so enraged about a call in a baseball game? Was it really that important that he blow up to the point where it was possible for him to suffer an injury? And if both Winters and Bradley were equally culpable, does that make the penalty against Winters unnecessarily harsh?
The National Law Journal (subscription required) has an interesting article about how an agreement among brokerage houses has led to a reduction in covenant not to compete litigation when employees move from one firm to another:
A three-year-old pact among brokerage houses that outlines what customer information brokers can take when moving from one employer to another has cut employment litigation among brokerage shops. But some say the rules are too general and that brokerages are starting to seek court relief again.
Ted Levine of New York's Wachtell, Lipton, Rosen & Katz helped Merrill Lynch & Co., the Smith Barney division of Citigroup Global Markets Inc. and UBS Financial Services Inc. establish the so-called Protocol for Broker Recruiting three years ago. Currently, about 30 companies are on board, including large and small industry players, Levine said . . . .
Still, litigation among member firms has dwindled from hundreds of cases a year to a handful . . . .
No system is perfect and there will always be some who want the flexibility to do things their own way, but the proof is in the pudding of the merits of addressing these type of unfair competition concerns in a given industry in this manner.
Alvin has published in the CCH Pension and Benefits Reporter, September 26th Edition: "Cash Balance Decisions Busting Out All Over" (Alvin may be surprised that I got the Carousel reference. 6th grade play, go figure).
Here's a taste of the article:
By my count 23 courts have now explicitly ruled on the question whether cash balance pension plans unlawfully discriminate against participants because of age (i.e., advanced age, I should add, mindful of Candidate Reagan's gracious disavowal of an intent to denigrate his opponent's qualifications because of relative youth). Just think of that, 23 decisions have been adjudicated in just the 20-plus years since the first known cash balance plan (Bank of America's) surfaced. In fact, all 23 decisions in less than a seven-year span starting with the first decision in this area, 13 in just the past 12 months! That total of 23 does not include inconclusive but significant action by the Supreme Court in considering and then declining to grant certiorari in a most important case decided by the Seventh Circuit. It also does not count an opinion by the First Circuit affirming a lower court's ruling upholding a cash balance plan, that, while expressing partiality to the trial court's position on age discrimination, declined on procedural grounds to review that aspect of the decision. Of course, also not counted is a fully briefed case, Hirt v. Equitable Retirement Plan, not yet decided by the Second Circuit that has been on appeal since last October . . . .
Most unlikely of all about the present state of the law is that, of the full array of 23 decisions addressing this issue, only the four in the district courts of the Second Circuit and the trial decision in the IBM case have held the cash balance design inherently violative of the anti-age-discrimination statutes. The remaining 18, three in the circuit courts and 15 in district courts from ocean to ocean --California, Colorado, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Missouri, New Jersey, New York, and Pennsylvania --have lined up on the side of the cash balance plans; and one can add to that the First Circuit's opinion mentioned above that upheld the ruling of the Massachusetts district court sustaining the plan, with language strongly supportive of the plan's non-discrimination, but, as noted, without a direct ruling (because plaintiffs were deemed to have waived the issue below).
This is a must-read for anyone who has been following the cash balance pension plan conversion saga. Alvin has put together a witty, comprehensive analysis of the issues involved.
Hat Tip: Lane Williamson
We're looking forward to re-acquainting with old friends, meeting new ones, and learning about the cutting edges in labor/employment scholarship over the next several days. Special thanks to Roberto Corrada, Melissa Hart, and Marty Katz for putting this Colloquium together. Follow these links to the conference schedule and conference abstracts.
Paul, Jeff, and I are proud to announce the publication of our new LexisNexis book Understanding Employment Law. Here's the "abstract":
Barely thirty years ago, what today is known as “employment law” was known as “master-servant law.” The change of nomenclature is telling. Historically, “regulation” of the workplace amounted to little more than market forces and employer whims. The modern workplace, however, is governed by a complex and multifaceted legal framework that is continually evolving both as a result of federal and state statutes and as a result of decisions by state courts.
Understanding Employment Law strikes a balance between comprehensiveness and selectivity. It provides the substantive material needed to succeed in practice and in the classroom and on final examinations, without overwhelming the reader with details that are unduly esoteric or tangential. The book begins with common-law employment doctrines such as employment at-will, employment contracts, employment torts, workplace privacy issues, and restrictive covenants. It then turns to federal and state statutory regulation of the workplace, covering topics such as compensation (including wage and hour legislation and unemployment insurance), employee benefits (including leave time, pensions, and health insurance), and workplace safety legislation.
Wednesday, September 26, 2007
- First, the Supreme Court has granted certiorari in Preston v. Ferrer, on a Buckeye preemption issue. "Judge" Alex [E. Ferrer] arbitrates petty civil disputes in a taped television series. He signed an agreement containing an arbitration clause with Artist Manager Arnold Preston, but didn't make the stipulated payments. Preston filed for arbitration, but Judge Alex challenged the legality of the entire agreement under the California Talent Agencies Act. This Act, among other things, provides that disputes under the Act must be referred to the California Labor Commissioner. Judge Alex obtained an injunction in state court against the arbitration; the state court ordered that the legality of the Alex-Ferrer agreement be decided by the Labor Commissioner. An appellate court affirmed, and the California Supreme Court denied review without opinion. The issue on which the Supreme Court granted cert is whether the FAA and Buckeye require that an arbitrator determine the gateway arbitrability issue, or whether Buckeye is distinguishable because the California statute at issue in Preston vests initial jurisdiction in an administrative agency and does not involve a party seeking judicial determination of the issue. Here's the writ petition.
- Second, the Ninth Circuit has joined several other circuits in holding that arbitrators, like federal courts, have broad discretion in deciding whether to apply offensive non-mutual collateral estoppel. The federal circuit courts currently are divided on the issue. Part of the confusion among the courts results from the very different factual posture of cases in which a similar legal issue arises. For example, was the original case an arbitral or judicial decision? Were both or only one of the parties identical? Was the issue below whether the arbitrator was required, permitted, or forbidden to apply collateral estoppel? For the Ninth Circuit case, see Collins v. D.R. Horton, Inc. Hat tip: Ross Runkel.
Senator Tom Harkin (D-IA) introduced legislation on September 19 to ensure that home care workers are covered by the FLSA's minimum wage and overtime protections. The Fair Home Health Care Act of 2007 (S. 2061) would extend FLSA protections to all home care workers who are employed by a home care agency, work more than 20 hours a week, or perform home care on a regular basis. A companion measure (H.R. 3582) was introduced in the House.
Not sure of the bill's chances, but it sure seems to make a whole lot of sense when one considers the policy reasons behind the Fair Labor Standards Act.
Ross Runkel's Employment Law Memo has the details of a case challenging on constitutional grounds a public employer's residency requirement:
Municipal employees sued their employer, asserting (among other things) claims that the employer's residency requirement violated their federal constitutional rights to equal protection and travel and was unconstitutionally vague. The trial court dismissed for "failure to state a claim" under Fed.R.Civ.P. 12(b)(6). The 6th Circuit affirmed, concluding that 1) the United States Supreme Court has rejected the contention that a municipal employee has "a constitutional right to be employed by the city ... while he is living elsewhere." (citing McCarthy v. Philadelphia Civil Serv. Comm'n, 424 US 645 (1976)); 2) the residency requirement didn't violate the equal protection clause - either "facially" or "as applied;" and 3) the residency requirement was not void for vagueness.
No surprises here, but just good black letter public employment law to remember. The case is Association of Cleveland Firefighters v. City of Cleveland, 06-3823 (6th Cir. Sept. 25, 2007).
The UAW-GM strike has been settled after two days:
Negotiators from the United Auto Workers union and General Motors reached a tentative agreement on a groundbreaking deal early Wednesday to end a two-day old strike by 73,000 workers, according to the union and the company.
Terms of the agreement were not immediately available, but the statement from the company said the deal does include the establishment of a union-controlled trust fund that will assume responsibility for future retiree health care costs from GM (Charts, Fortune 500), the nation's No. 1 automaker.
Getting agreement for that shift of costs, estimated at more than $50 billion, was the key bargaining goal of the talks for GM.
This is an important development not only for the future of the auto industry, but also for how retiree benefits liabilities will be handled by large industries in the future.
Tuesday, September 25, 2007
The second certiorari in an employment discrimination case granted by the Court today involves the question of whether a retaliation claims exists under the race discrimination provisions under Section 1981. In CBOCS West v. Humphries, 06-1431 (petition for cert.):
The sole legal issue presented here - whether race retaliation is cognizable under Section 1981 - is an issue that has suffered from years of jurisprudential vacillation and uncertainty. Appellate and district courts around the country have struggled mightily with the question of whether retaliatory discharge is encompassed within those five seemingly unambiguous words in Section 1981: "to make and enforce contracts." This Court has not squarely addressed this reoccurring question, arguably contributing (albeit inadvertently) to the vacillation and uncertainty with its decisions in Sullivan v. Little Hunting Park and Patterson v. McLean Credit Union.
The petitioners, not surprisingly, make a textual arguments that racial retaliation is not actionable. This should be an interesting case because it pits a textualist reading of the statute against the fact that Section 1981 race discrimination claims have been read consistent with Title VII race claims in the past. 5-4 with Kennedy deciding the case is my prediction.
Two other employment discrimination case have already been granted cert. for this term. Paul Mollica provides the details: Federal Express Corp. v. Holowecki (06-1322) (whether an EEOC Intake Questionaire may be treated as a charge for purposes of filing an ADEA lawsuit) and Sprint/United Management Co. v. Mendelsohn (06-1221) (concerning the admissibility of anecdotal witnesses who claim that they also suffered discrimination during the same reduction in force).
And yet in another case, Gomez-Perez v. Potter (petition for cert), the question granted cert by the Court is whether federal employees have protection against retaliation for complaining about age bias in the workplace.
With four employment discrimination cases, one employee benefit case, and one public sector case, there is going to be another year which just goes to prove again how important labor and employment law has become in the legal world.
The Supreme Court today granted certiorari in an interesting public pension plan case involving claims of age discrimination. In Kentucky Retirement v. EEOC, 06-1307:
[the] Petition involves a public employee retirement plan that includes normal and disability retirement benefits. A member who is eligible for normal retirement benefits based on attained age plus a minimum service requirement, or based on service alone, is not eligible for disability retirement benefits. Because age may be a factor in determining eligibility for normal retirement, it is an indirect factor in determining eligibility for disability retirement. Moreover, the calculation of disability retirement benefits is based upon actual years of service plus the number of years remaining before the member reaches retirement age or eligibility based on years of service alone; age may thereby be an indirect factor in determining the amount of disability retirement
The question presented is:
Whether any use of age as a factor in a retirement plan is "arbitrary" and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?
More to follow on this important case at the intersection of employment discrimination and employee benefits law.
Hat Tip: SCOTUSblog
The United States Supreme Court will be hearing the LaRue ERISA case after all. SCOTUSblog reports today:
In another order Tuesday, the Court denied a motion to dismiss a previously granted case -- LaRue v. DeWolff, Boberg & Associates (06-856). The case involves the right of a pension plan participant to sue the plan manager to recover losses that worker suffered in a pension account. The motion to dismiss claimed that the individual involved had cashed-out his account, so there remained no live issue.
As I and ten other law professors argued, along with petitioner, there is still standing because there would have been more money to cash out if there had not been a breach of fiduciary in the first place. Nice to be on the right side of an issue once in a while!
Here's the abstract:
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine's infliction of first generation, or status discrimination against sexual minorities by conflating “sex” - and the prurient representation of sex that constitutes obscenity - and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or “cover” traits constitutive of their group identities. However, some groups, particularly those in civil rights law's “second wave” - sexual minorities, women, the elderly, and the disabled - continue to suffer first generation discrimination harms. This Article bridges first amendment and anti-discrimination literatures, which until now have not come together to address a harm that falls within their individual, and collective, jurisdictions. Moreover, and perhaps more importantly, the Article addresses a pervasive harm that courts will likely not have the opportunity to resolve. Because their representation is classified as obscenity, and therefore unprotected speech for first amendment purposes, sexual minorities are effectively barred by obscenity doctrine from bringing suit to assert their first amendment rights.
More than just an employment discrimination piece, Liz seeks to explore a much more fundamental tension in the law between civil rights and civil liberties in a whole new way. Her argument that obscenity doctrine should not be used to violate the civil rights of sexual minorities and others is truly illuminating.