January 27, 2007
Mueting on Recovering Legal Damages for ADA Employment Retaliation
An Iowa Law Student, Kate Mueting, has posted her Note in the Iowa Law Review on SSRN: A Clear Path through the Labyrinth: A Case for Allowing Victims of Employment Retaliation and Coercion to Recover Legal Damages under the Americans with Disabilities Act.
Here's the abstract:
More than a decade after Congress passed the Americans with Disabilities Act of 1990 (ADA) and expanded the remedies available for disability discrimination in employment with the Civil Rights Act of 1991, the Seventh Circuit in Kramer v. Banc of America Securities, 355 F.3d 961 (7th Cir. 2004) became the first federal appellate court to determine that victims of ADA retaliation and coercion in employment are ineligible for legal damages and jury trials.
After detailing the law and analysis implicated by this issue, this Note will assert that, based on the language, structure, and legislative histories of the ADA and the Civil Rights Act of 1991, the Seventh Circuit erred in its approach and conclusion. Furthermore, allowing victims of ADA retaliation and coercion in employment to recover punitive and compensatory damages is necessary to effectively further the ADA's anti-discrimination goals.
Hopefully, this Note will spur courts in future cases in this area of disability discrimination law to reevaluate the appropriate remedies for ADA retaliation.
Wal-Mart Owes $34 Million for Overtime Violations
Here's the lastest (via HR.BLR.com):
Wal-Mart Stores, Inc., has agreed to pay nearly $34 million in back wages and interest for calculating overtime incorrectly over a span of almost 5 years.
The agreement with the Department of Labor covers 86,680 employees who worked for the company from February 1, 2002 to January 19, 2007.
The department says that Wal-Mart brought the matter to its attention after an internal audit raised concerns regarding overtime calculations.
Wal-Mart says it failed to include periodic bonuses and other earned income in determining some employees' regular rate of pay for overtime purposes. In addition, some overtime payments were based on a regular rate calculated for each two-week payroll period, when they should have been calculated weekly.
Separately, some errors involved participants in the company's manager and programmer in training programs, who were entitled to overtime pay while in training, the company says.
Two thoughts: (1) kudos to Wal-Mart for bringing this situation voluntarily to the Department of Labor's attention; and (2) Wal-Mart should be spending a lot more money on good labor and employment attorneys who understand the FLSA (assuming that Wal-Mart is bringing these issues to their in-house and outside labor and employment counsel in the first place). This is very basic stuff that my employment law students would understand. PS
Two thoughts: (1) kudos to Wal-Mart for bringing this situation voluntarily to the Department of Labor's attention; and (2) Wal-Mart should be spending a lot more money on good labor and employment attorneys who understand the FLSA (assuming that Wal-Mart is bringing these issues to their in-house and outside labor and employment counsel in the first place). This is very basic stuff that my employment law students would understand.Interestingly, "[i]n addition to paying back wages, [Wal-Mart] also agreed to set up a website ( http://www.dol.settlement.wal-mart.com ) and to staff a toll-free telephone number to answer questions regarding the back wages."
January 25, 2007
Union Membership Continues to Fall in United States
Thanks to the Institute for Workplace Studies at Cornell for directing me to this Bureau of Labor Statistics news release about the depressing state of unionization in this country.
Here is some of what the release has to say:
In 2006, 12.0 percent of employed wage and salary workers were union members, down from 12.5 percent a year earlier, the U.S. Department of Labor's Bureau of Labor Statistics reported today. The number of persons belonging to a union fell by 326,000 in 2006 to 15.4 million. The union membership rate has steadily declined from 20.1 percent in 1983, the first year for which comparable union data are available.
Not happy news for union supporters. Other interest findings from the report include the fact that there are nearly five times more public sector union members than private sector ones and that blacks are more likely to join unions than whites, Asians, or Hispanics.
California Health Bill To Meet Same ERISA Preemption Fate?
Well, by now, most readers of this blog know that I am skeptical that any state, city, etc., health insurance plan that requires employers to pay a certain amount of their payroll toward health benefits will survive ERISA preemption. The recent Fourth Circuit decision in the Maryland Wal-Mart case clearly supports this proposition.
Now comes the new health insurance plan being trumpeted by Gov. Schwarzenegger (via the LA Times):
The governor's plan would spend $12 billion annually in combined state, federal and private-sector funds to provide basic health coverage for 6.5 million uninsured Californians.
The proposal would require all individuals to have coverage, and it would provide subsidies for the poor.
All employers with more than 10 workers would be required to offer insurance or pay the equivalent of 4% of their payroll into a state fund. Hospitals and doctors would also be taxed as part of a so-called shared-responsibility scheme.
As others in this same article point out, such a mandate to pay a certain percentage of payroll in a state fund would seem to be "in connection with" an employee benefit plan under Section 514 and substantially interfere with one of ERISA's purposes of promoting uniform administration and management of employee benefit plans by employers across the country:
Wal-Mart and some other California businesses are among those skeptical of the plan. Any California health insurance law that contains a payroll tax could be challenged in federal court upon passage, they suggest.
The 1974 law's federal "preemption is a problem the governor has to look at," said Trudi Hughes, Wal-Mart's senior public affairs manager, based in Sacramento. "I would say that any sort of mandate is going to be suspect."
Count me skeptical as well that the California plan as currently written will survive ERISA preemption. Also, the comments from the California official in the article seem to suggest that the state does not understand the underlying problem at all:
But the Schwarzenegger administration says no. It points out that the California plan would not be company-specific, nor would it mandate any specific kind of health benefit.
Not So Quick: Minimum Wage Raise Stalls in Senate
Apparently, the forthcoming minimum wage raise is not necessarily forthcoming. At least not just yet. Although the measure easily passed the House, the legislation is being held up in the Senate as a group of Senators seek to attach small business tax breaks to such a bill.
Here's the story from CNN.com:
The minimum wage increase that was supposed to zip through Congress veered off course Wednesday as lawmakers argued over business tax breaks that would be attached to ensure Republican support.
House Democrats demanded a clean bill from the Senate -- no tax attachment -- setting up a confrontation that could delay final congressional passage of the $2.10 an hour increase.
The Senate did vote 54-43 to advance a House-passed measure that would lift the minimum wage without any accompanying tax cut. However, that was well short of the 60 votes needed to keep that version moving.
The vote was a signal to the House that without the tax breaks a minimum wage bill appeared doomed in the Senate. And the Senate promptly moved to a broader bill, backed by its Democratic leaders, that would raise the minimum wage to $7.25 an hour over 26 months and provide $8.3 billion in tax benefits to businesses over 10 years.
Someone is going to have to blink to get this bill through. Let's hope that both Senators and House Members realize what is at stake and act quickly to bring wage relief to low-income workers.
January 24, 2007
Cataloging Her Efforts to Avoid Work
This priceless story about how not to be a productive worker comes from the Des Moines Register:
A Des Moines hotel worker has been fired for using her employer's computer to keep a massive, detailed journal cataloging her efforts to avoid work.
State records indicate that Emmalee Bauer, 25, of Elkhart was hired by the Sheraton hotel company in February 2005. During most of 2006, she worked at the company's Army Post Road location as a sales coordinator.
At one point during her employment, Bauer was allegedly instructed to refrain from using company time to work on her personal, handwritten journal. Rather than stop writing at all, Bauer allegedly began using her work computer to keep the journal up to date.
Over the next several months, Bauer composed a book-length journal of 300 single-spaced pages, describing in excruciating detail her dogged efforts to avoid any sort of work.
The best part of the entire story? The woman actually applied for unemployment compensation benefits. And in a sign that the system has not gone completely haywire, her claim was denied.
Hat Tip: Kara Lincoln
January 23, 2007
"Sexpresso": Bodacious Baristas and Bfoqs
Thanks to a Workplace Prof Blog reader who sent along this "steamy" article from The Seattle Times about how a number of coffee spots are trying to stand out in the Seattle area by selling a little more to their customers than just a cup of joe:
In a short, sheer, baby-doll negligee and coordinated pink panties, Candice Law is dressed to work at a drive-through espresso stand in Tukwila, and she is working it.
Customers pull their trucks up to the window, where Law greets each with an affectionate nickname, blows kisses, and vamps about as she steams milk for a mocha. "You want whipped cream?" she asks, a sly smile playing on her pierced lip.
Hot is not the half of it. To stand apart from the hordes of drive-through espresso stands that clutter the Northwest's roadsides, commuter coffee stops such as Tukwila's Cowgirls Espresso are adding bodacious baristas, flirty service and ever more-revealing outfits to the menu.
At Port Orchard's Natté Latté, baristas sport hot-pink hot pants and tight white tank tops. Day-of-the-week theme outfits ranging from racy lingerie to "fetish" ensembles are the dress code at Moka Girls Espresso in Auburn and at several Cowgirls Espresso stands in the area. Bikini tops are the special at Café Lorraine on Highway 9 in Woodinville, and the women of The Sweet Spot in Shoreline pose provocatively in Playmate-style profiles on the stand's Web site.
"In this area, we all know how to make good coffee," said Barbara Record, who opened Bikini Espresso in Renton last month. The trick is to set your business apart, she said, and sex is one sure-fire way to do that.
So I can't resist (and, BTW, this, if nothing else, proves how dorky law professors are). What if a man applied for one of these customer service positions and was rejected? A customer is quoted in the article as saying: "If I'm going to pay $4 for a cup of coffee, I'm not going to get served by a guy." Could the coffee shop in question follow Hooters and claim a bona fide occupational qualification (bfoq) in defense of a Title VII claim?
Unlike Hooters, I think not. The essence of these businesses is to sell coffee, not to provide vicarious sexual entertainment. I see this more like an advertisement case, in the spirit of the Southwest Airlines' "Love Airline" campaign of the late 70s and early 80s. And, of course, customer preference is not a bfoq.
Secunda Questions Court's Assumption that Public Employers Have Expressive Association Rights
Paul Secunda has posted a timely article on Rumsfeld v. FAIR. In that case, the Supreme Court assumed, without significant reflection, that a group of public employers (here, public law schools) have expressive association rights under the First Amendment. Secunda questions that assumption, explains how that assumption could lead to the loss of the free speach and other constitutional rights of public employees, and suggests how the Court might re-think its expressive association analysis.
The article is The Solomon Amendment, Expressive Associations, and Public Employment. Here's the abstract:
[The Supreme Court, in] the Solomon Amendment case of Rumsfeld v. FAIR . . . , apparently conced[ed] that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).
Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have First Amendment rights of any kind. This is just structurally unsound from the standpoint that the Bill of Rights protects the governed, not the governing. To the extent that public employers have interests in promoting messages consistent with their public mission and image, it is instead better to conceive of these interests as those discussed in the Pickering line of cases concerning the need for governmental efficiency and lack of disruption in the public employment sector when discussing public employee First Amendment rights.
The purpose of this paper then is to hopefully point out an inadvertent error that the Court made in FAIR on its way to doing the heavy analytical lifting in that case and thus, permit this mistake to be corrected before the specter of public employer expressive associations causes substantial harm to public employee civil rights in the workplace.
BNA Revives Summary of Circuit Splits
Thanks to Carol Bredemeyer for pointing out to me that BNA's United States Law Week has revived its "circuit splits" roundup, effective with its January 2, 2007 issue. I've found that the roundup is a fantastic source of topics for student research papers, and I've missed its absence over the last year or so.
Interview with SEIU President Andy Stern
Yesterday's Wall Street Journal published an interview by Kris Maher of SEIU's Andy Stern. The link is available by subscription only, but the hard copy is worth a read. It's at page R5. Here' an excerpt:
WSJ: If you could gather the country's top CEOs in one room, what would you tell them?
Mr. Stern: I would tell them the employer-based health-care system is dead. It's a relic of the industrial economy, and it makes them unable to fairly compete when American is the only country who asks its employers to put the price of health care on the cost of its products. I would say that employer-based pensions have the same problems, and that we need to create a new way that American workers do in fact have retirement security where employers are expected to contribute. And three, I would say that in each of our sectors we need to find ways where we can do better training, quality, and give workers an opportunity to be involved in dialogue about the services that are provided.
January 22, 2007
- Richard L. Barnes (top row, left), Buckeye, Bull's-Eye, or Moving Target: The FAA, Complusory Arbitration, and Common-Law Contract, 31 Vermont L. Rev. 141 (2006).
- W. Melvin Haas III (top row, second), William M. Clifton III (top row, third), & W. Jonathan Martin II (top row, right), Annual Survey of Georgia Law: Labor and Employment Law, 58 Mercer L. Rev. 211 (2006).
- H. Michael Bagley (second row, left), Daniel C. Kniffen (second row, center), & Katherine D. Dixon (second row, right), Annual Survey of Georgia Law: Workers' Compensation, 58 Mercer L. Rev. 453 (2006).
January 21, 2007
Supremes Take ERISA Fiduciary Case
The Supreme Court has accepted cert in Beck v. PACE International Union, to decide the issue of whether a pension plan sponsor’s decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA’s fiduciary obligations. As Ross Runkel points out, the case is expected to provide guidance on whether ERISA fiduciary duties apply when a plan administrator decides to terminate a plan, and whether the administrator has fiduciary duties as to the implementation of the termination.
Selmi on The Many Faces of Darlene Jespersen
Here's the abstract:
This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact that we often look to work as a place for authenticity, speech, democracy, or sex, simply confirms that we place too much importance on the workplace for our lives. Relatedly, it seems unrealistic to expect that courts would find a policy requiring makeup to be demeaning to women, or stereotypical in some way, as Jespersen argued, given that our existing social norms embrace makeup rather than condemn it. Finally, I conclude that this case is really more about power and status - the limited power and status of someone like Darlene Jespersen who worked as a bartender - rather than about the failings of antidiscrimination law.
This Sphinx-like titled article is an important new contribution to sexual stereotype discrimination law and the role courts should play in these cases.
Top-5 Employment SSRN Downloads
- Oliver Hart & John Moore, Contracts as Reference Points (89).
- Symeon C. Symeonides, Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria That Isn't (87).
- Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (74).
- Elizabeth Chika Tippett (photo above), The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law (57).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (54).
Top-5 Labor SSRN Downloads
- Scott Cummings, The Internationalization of Public Interest Law (63).
- David Allen Larson, Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR (46).
- Joseph E. Slater, The American Rule that Swallows the Exceptions (38).
- Dianne Avery (left) & Marion G. Crain (right), Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (36).
- Christopher J. Kippley & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (18).