Saturday, October 20, 2007
- 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 (1256).
- Yaraslau Kryvoi, Why European Trade Sanctions Do Not Work (61).
- David J. Doorey (photo above), Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (50).
- David J. Doorey (photo above), The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (29).
- Virginia Mantouvalou, Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (28).
- Brett McDonnell (photo above), Two Goals for Executive Compensation Reform (68).
- Shlomo Benartzi, Ehud Peleg, & Richard H. Thaler, Choice Architecture and Retirement Savings Plans (64).
- Fayez A. Elayan, Thomas O. Meyer, & Jennifer Li, Expensing Executive Stock Options: The Agency Problem and Structure of Management Compensation (56).
- Phelim P. Boyle, Ranjini Jha, Shannon Kennedy, & Weidong Tian, Stock and Option Proportions in Executive Compensation (53).
- Marieke van der Werf, Jan-Maarten Van Sonsbeek, & Raymond H.J.M. Gradus, The SADNAP Model (41).
Friday, October 19, 2007
The NLRB has just released its productivity numbers for Fiscal Year 2007. According to the brief press release:
The National Labor Relations Board issued 391 decisions during fiscal year
2007, which ended September 30. Of this total, 287 were unfair labor practice (C)
cases, and 104 were representation (R) cases. In the previous fiscal year, the Board
issued 477 decisions (324 C, 153 R).
The Board also reduced the inventory of pending cases for the fifth year in a row
(from 305 at the beginning of the fiscal year to 207 at the end). In FY 2007 the Board
adopted a new case processing initiative that focused on resolving the oldest and most
difficult pending cases. The Board’s goal was to dispose of 90% of R cases pending as of October 1, 2006, and to dispose of 90% of C cases pending as of May 1, 2006.
The Board exceeded its case production goal for R cases and it came close to
meeting its case production goal for C cases. As of September 30, 2007, the Board
disposed of 58 of 59 targeted R cases (98.3%), and it disposed of 181 of 215 targeted
C cases (84.2%).
As Chairman Battista noted in an accompanying remark, the overall number of C&R cases declined. I haven't seen the data yet, so I don't know if the drop in cases was the result of fewer charges being filed or the Board's processing of the cases. Either way, although several of the cases included in FY 2007 were actually released a week or so later, the Board's emphasis on reducing its backlog is a good thing. Indeed, given the number of controversial 3-2 decisions--which take a disproportionate amount of time--the Board deserves congratulations. Hopefully this emphasis on the need to reduce delay will continue.
Hat Tip: Rick Bales
As Paul and Rick have discussed in past posts, the Employee Non-Discrimination Act (ENDA) has been gaining momentum in Congress, although with a bump in the road caused by the decision whether to cut protection for transgendered employees. The House leadership, although supporting such protection, decided to cut it to maintain a chance of the bill passing in any form. BNA's Daily Labor Report (subscription required) has reported that the bill just got approved by the House Education and Labor Committee:
The Employment Non-Discrimination Act (H.R. 3685) (ENDA) cleared committee by a vote of 27-21 and is expected to reach the House floor the week of Oct. 22. The legislation would prohibit businesses with 15 or more employees, and public sector employers, from basing employment decisions such as hiring, firing, compensation, or promotions on an individual's sexual orientation.
After lawmakers rejected various amendments, the bill was approved with four Republicans--Reps. Mike Castle (R-Del.), Judy Biggert (R-Ill.), Todd Platts (R-Pa.), and John Kuhl (R-N.Y.)--voting to support the bill. Although the bill gained bipartisan support, disagreement over providing protection based on gender identity meant that four Democrats--Reps. Rush Holt (D-N.J.), Dennis Kucinich (D-Ohio), Yvette Clarke (D-N.Y.), and Loretta Sanchez (D-Calif.)--voted against the measure because it was not broad enough.
I agree with Paul that a half loaf may be better than no loaf on this one. Part of my thinking is that I'm still amazed that ENDA in any form has a chance of passing--and the worry that the opportunity window may not stay open forever.
The Seton Hall Employment Employment & Labor Law Scholars' Forum is being held today and tomorrow. On the agenda:
- Paul Secunda, Whither the Pickering Rights of Federal Employees.
- Adrian Smith, Business Restructuring and the Future of Labor Law: Lessons from Canada, the E.U., and the U.S.
- Russell Robinson, Perpetual Segregation.
- Orly Lobel, Legal Loyalties.
David Hyman (Illinois) has just posted on SSRN his article The Massachusetts Health Plan: The Good, the Bad, and the Ugly. Here's the abstract of this timely article:
In spring 2006, Massachusetts enacted legislation to ensure universal health insurance coverage to all residents. The legislation was a hybrid of ideas from across the political spectrum, promoted by a moderately conservative Republican governor with national political aspirations, and passed by a liberal Democratic state House and Senate. Groups from across the political spectrum supported the plan, from the Heritage Foundation on the right to Families USA on the left, although the plan had detractors from across the political spectrum as well.
This study briefly describes the basic structure of the Massachusetts plan and identifies the good, the bad, and the ugly. Although the legislation, as Stuart Altman put it, is not a typical Massachusetts-Taxachusetts, oh-just-crazy-liberal plan, there is enough bad and ugly in the mix to raise serious concerns, particularly when the desire to over-regulate the health insurance market appears to be hard-wired into Massachusetts policymakers' DNA.
If we want to make health insurance more affordable and avoid the bad and the ugly of the Massachusetts plan, Congress - or, barring that, individual states - should consider a regulatory federalism approach. Under such an approach, insurers and insurance purchasers would be required to subject themselves to the laws and regulations of a single state but allowed to select the state. As with corporate charters, this system would allow employers and insurers to select the regulatory regime that most efficiently and cost-effectively matches the needs of their risk pools. The ability of purchasers and insurers to exit from the state's regulatory oversight (taking their premium taxes with them) would temper opportunistic behavior by legislators and regulators, including the temptation to impose inefficient mandates and otherwise over-regulate.
Yes, says Robert Flannigan (U. Saskatchewan), in The Fiduciary Accountability of Ordinary Employees (Canadian Labour & Employment L.J.). Here's the abstract of this provocative essay:
It is frequently asserted that ordinary employees do not have fiduciary duties. Only senior or key employees are burdened by fiduciary accountability. That supposed dichotomy has the appearance of both simplicity and logic. In fact, it is a senseless dichotomy, the adoption of which constitutes fundamental juristic mistake. There is no conceptual or practical distinction between ordinary employees and key employees for the purposes of fiduciary accountability, either before or after the formal termination of the relation.
Jarod Spencer Gonzalez (Texas Tech) has just posted on SSRN his article (South Carolina) State Anti-Discrimination Statutes and Implied Preemption of Common Law Torts: Valuing the Common Law. Here's the abstract:
Many states have their own antidiscrimination statute that, like federal law, prohibit discrimination in employment because of prohibited characteristics such as race, sex, age, religion, national origin, and disability. In certain cases, a particular set of facts involving sexual, racial, or disability harassment could satisfy the required elements of a state common law tort and a state statutory antidiscrimination claim. It benefits the aggrieved plaintiff to pursue both a common law tort action and a state statutory discrimination action against the employer when the common law tort provides for greater remedies, as is sometimes the case. But when a common law tort claim is asserted, employers often argue that the presence of the state antidiscrimination statute impliedly preempts the common law tort claim.
In the absence of specific preemption language in a state antidiscrimination statute, principles must be established for determining whether the antidiscrimination statute preempts the common law. [This] article . . . argues that the legal analysis for determining whether a state antidiscrimination statute preempts common law tort claims based on employment discrimination or discriminatory harassment should depend on the type of common law tort in question. It identifies separate categories of common law torts, each of which is given different treatment. Torts that have an existence separate and apart from employment discrimination are not impliedly preempted by the mere presence of a state antidiscrimination statute. Torts that do not have an existence separate and apart from employment discrimination are impliedly preempted if they have no recognition under a state's common law prior to the enactment of the state antidiscrimination statute. Recognized common-law wrongful discharge torts that exist prior to the enactment of a state antidiscrimination statute are not impliedly preempted.
This is an important article on an issue that arises frequently in employment litigation.
Thursday, October 18, 2007
David Broder had a thought-provoking health care reform piece in the Washington Post this past Sunday. Here are some highlights:
[T]his week the Committee for Economic Development (CED), a high-powered business group, will give a strong push to the idea with a report saying in blunt terms that business can no longer afford to pay the rising costs and lacks the clout to curb the forces that are driving health-care inflation . . . .
Instead, [the CED report] outlines a two-step solution, aimed at producing a competitive marketplace with broad individual choices.
First, the federal government would establish independent regional "exchanges" through which individuals would purchase one of many competing private insurance plans. The exchanges would set standards for the insurers and each year conduct an "open season" when purchasers could change insurers. The exchanges would manage risk adjustments for insurers, but no one could be denied coverage because of age or prior illness.
Second, every family would receive a fixed-dollar credit, sufficient to pay the premium on the basic, low-cost plan in its region, so it could be insured without cost to the family budget. Any higher-cost policy would be paid by individuals with after-tax dollars.
The current tax credit for employer-financed health care would end (along with the company obligation to insure its workers), and that saving, plus some form of broad-based tax either on payrolls or income or on purchases, would finance the universal insurance payments.
I am completely in favor of doing away with employer-provided health insurance and I like the idea of fostering a competitive marketplace for insurance to gain the efficiency that comes with that. The current health care system in the U.S. is an on-going catastrophe, with no end in sight. A paradigm shift is necessary and this is a start.
And as far as how to pay it, I am all for higher "sin" taxes on tobacco, alcohol, gambling, guns, etc. (all purchases that directly correlate with higher health care costs). A more progressive income tax (that actually requires one to pay taxes) on the wealthiest 1% of Americans and multi-billion dollar corporations would also do the trick.
Apparently so, at least in the civil service in Pennsylvania. The Police Blotter at C/Net News.com reports:
Charles Webb was a senior highway maintenance manager with Pennsylvania's Department of Transportation, or PennDOT, making $84,000 a year. He supervised 156 employees and was the highest-ranking PennDOT official in the York County Maintenance Office. His duties included ensuring that his subordinates followed PennDOT's acceptable use policy for the Internet.
Instead of focusing solely on highway maintenance, however, Webb spent time forwarding sexually explicit, salacious and off-color e-mails.
Those included penis jokes, videos of stuffed animals simulating sex, a Microsoft Word document titled "The Benefits of Sex," and a series of photographs (sent to his male subordinates) of women with their breasts exposed or skirts lifted up.
Hysterical, right? So this guy was shown the door, right? Initially:
At an internal hearing in March 2006, Webb defended sending the messages as a way to boost morale and relieve stress. He was fired a month later for violating the Internet use policy, unauthorized use of PennDOT equipment, and failure to carry out his duties as a manager in a proper and responsible manner.
Stress-reliever, that's a new one, but wait there's more. Much more:
Firing a government [employee] under Pennsylvania's Civil Service Act is far more difficult. Webb appealed, and the Pennsylvania State Civil Service Commission held three days of hearings on his case over a four-month period.
In its final order released in January 2007, the Civil Service Commission agreed that some of the e-mail messages could have been inappropriate but said that firing Webb was inappropriate. Instead, the Civil Service Commission ordered that Webb be reinstated and demoted to assistant highway maintenance manager without back pay . . . .
Both appealed. On Monday, Pennsylvania's Commonwealth Court left intact the Civil Service Commission's recommendations, saying they weren't obviously wrong. That means Webb will get his old job back, minus a one-level demotion. He's currently working for PennDOT as an assistant highway manager in Lancaster.
Speechless doesn't quite capture it.
Hat Tip: Eric Fink
Stephen Barr of the Washington Post reports on the following troubling reports coming from the Office of Special Counsel, the federal agency designated to handle federal whistleblower and partisan influence claims:
The investigation has run for two years, and it's possible the Bush administration will have left office before the charges and countercharges are resolved.
The saga involves Scott J. Bloch, head of the Office of Special Counsel, the small agency that handles federal employee whistle-blower cases and investigates improper political activities on government property.
Bloch, a Bush appointee, has been accused of retaliating against employees who disputed his policies, unnecessarily reorganizing his office to try to run off critics, and arbitrarily dismissing complaints submitted by federal workers to reduce a backlog of claims.
In 2005, a group of anonymous employees, joined by public-interest organizations, filed a complaint against Bloch, which the White House referred to the inspector general at the Office of Personnel Management for investigation. Bloch has denied the allegations.
The last thing the federal employee whistleblowing system needs is a crooked agency that is supposed to be protecting federal employees. I hate to be cynical (not really), but this would be the coup de grace for an already broken system.
Hat Tip: Elaine Mittleman
Paul Secunda (left) has taped a radio interview on The Adam Taxin Show on the subject of the EEOC charge filed by Odell Thurman (right) alleging that the NFL discriminated against him (Thurman, not Secunda) on the basis of disability by extending his suspension for alcohol infractions. The interview will air on WNWR 1540 AM Philadelphia on Tuesday, October 23. Here's a written transcript of the interview: Secunda interview.doc. We've previously discussed Thurman's EEOC charge here and here.
Wednesday, October 17, 2007
One of the offices under the
NLRB’s General Counsel is the Office of Advice which, according to the NLRB
website, “provides guidance to the General Counsel and to the Regional Offices
with respect to difficult or novel legal issues arising in the processing of
unfair labor practice charges. It determines whether charges have merit and, if
so, what legal theories should be advanced in support.” In a recent memo,
General Counsel Meisburg has listed a significant number of issues that the
Regional Offices must submit to the Office of Advice for review. The list is too long to cite in full, but
Beck issues regarding:
a. the chargeability of expenses for organizing employees.
b. the chargeability of expense for a strike fund, or other types of
funds “beyond the competitive market” of unit employees.
c. chargeability of expenses for job targeting programs.
d. the type and level of audit unions must give Beck objectors.
e. litigation expenses beyond those incurred in defending or
prosecuting rights of unit employees.
f. whether Beck objectors are entitled to audits along with the notice
of their Beck rights.
Issues . . . concerning Oakwood Healthcare, Inc.:
a. whether in the healthcare industry a charge nurse’s consideration of
factors other than the training or skills of the healthcare provider
and the acuity of the patient demonstrates the use of independent judgment.
b. cases involving the supervisory status of rotating supervisors.
Cases involving the rights of employees (including off duty employees) to
have access to private property owned by their employer, or by a third
party at whose premises they are working, to communicate with coworkers
or with the public.
Cases involving claims that rules that prohibit or limit non-business use of
employer supplied e-mail, access to the Internet, cell phones, digital
assistants, or other employer-owned means of electronic communication
unlawfully interfere with the Section 7 protected activities.
Cases in organizing situations raising the issue of union access to lists of
employee names and addresses where those employees are widely
dispersed or have no fixed duty location . . . .
Cases involving whether a novel form of conduct (e.g., use of banners,
rats, coordinated “shopping,” excessive use of loudspeakers, corporate
campaigns, etc.) constitutes Section 8(b)(4)(i)or (ii) or 8(b)(7) conduct.
Cases presenting unresolved issues concerning undocumented workers
including whether undocumented workers, who presented no false
documents to their employer and whose employer knew their status, are
entitled to backpay . . . .
Cases involving to what extent an employer with a newly certified union or
a successor employer must bargain over a past practice of unfettered
exercise of discretion regarding discipline or work rules.
Cases involving the validity of partial lockouts.
to the fine investigatory work of Michael Duff (Wyoming, formerly an NLRB field
and trial attorney in the Philadelphia Regional Office), I also have
previous memos issued by Democratic General Counsel Leonard Page and
the Republican General Counsel Arthur Rosenfeld. As Michael notes, it isn’t unusual for a GC
to exert considerable control over the processing of cases (especially controlling because,
as Michael puts it, “there is nothing ‘advisory’ about Advice’s ‘advice’ - thou
shalt follow it - or else”). However,
Meisburg’s memo appears to cover a much more specific range of issues than
previous memos. This means that the
regions will have less discretion over which cases to refer. It also gives a clear sign, which Meisburg explicitly
acknowledges, of the issues that he thinks are particularly controversial. Some of the issues are obvious—continued
developments after Oakwood, for
instance—but many of the others can be considered a shot across the bow of
unions. Finally, the large numbers of specific
issues that must be referred creates more delay, and the last thing the
Board needs is something else slowing it down.
The Washington Post reported this past Sunday:
Employers have begun to find troubling racial differences within their 401(k) plans, a gap they say could leave black workers far less financially prepared for retirement than whites.
Investor surveys and research by two large employers strongly suggest that blacks participate in retirement plans at far lower rates and are much less likely than whites to invest in the stock market. An industrywide study of 401(k) plan activity by race has never been conducted.
Exelon, the country's largest operator of nuclear power plants, found this year that about 15 out of every 100 black employees did not participate in its 401(k) plan, compared with about 10 of every 100 whites. It also found that one in three black employees contributed less than 5 percent of pay to the plan, compared with just 14 percent of whites.
The solution to this problem may be as simple as the automatic enrollment provisions in the Pension Protection Act of 2006:
McDonald's found in 2004 that half of its black store managers contributed to the company's 401(k) plan, a lower percentage than whites. The company said that by auto-enrolling store managers into the plan it has reversed the trend; today, 95 percent of black restaurant managers are plan participants.
So is this a cultural phenomenon or is there just a lack of emphasis on retirement savings within some communities?:
Experts attribute lower investment rates to poor instruction on financial topics in public schools, and misconceptions about the risk of stocks within parts of the black community. Employers have also been urged to tailor their messages on retirement savings to account for what some black and Latino executives say are important cultural differences. And the federal government has been urged to strengthen its national strategy for financial literacy, which has been criticized as ineffective.
In the wake of the mulit-million dollar settlement of the Sidley Austin case involving the involuntary retirement of older partners, a trend may be starting to abandon mandatory retirement policies for partners at law firms.
Law firms clinging to their age-based retirement policies have another reason to rethink their methods for ushering out older attorneys.
The closely watched case involving the legality of the retirement practices at Sidley Austin ended on Oct. 5 without a court's decision on the merits.
But the way the case was resolved and the recent calls from attorney groups for law firms to abandon their age-based retirement policies do not bode well for the mandatory plans.
"This case, as well the [American Bar Association] and New York state policies are indicating a trend, even if the law doesn't require eliminating these policies," said Philip Berkowitz, a partner in the New York office of Nixon Peabody. He represents corporate clients in labor and employment matters.
It seems way past time for these "sophisticated" firms to overcome the old stereotypes about what older employees can accomplish and that it is just arbitrary to assume that when a partner turns 70 or some other age they no longer can provide sufficient value to the firm. But old myths die hard.
Here's the abstract:
Legal protection for transgender employees, where it exists at all, varies widely. A single federal circuit interprets Title VII as protecting transgender employees, but only when the employee is able to prove workplace stereotyping. Some state and local governments offer varying degrees of protection to transgender employees, but these statutes and ordinances are inconsistent, and often inappropriately attempt to graft transgender protection onto statutes and ordinances forbidding sexual orientation discrimination. One state protects transgender employees via its disability statute, but the federal disability statute explicitly excludes transgender employees, and in any event many transgender employees do not have (or want) a formal diagnosis of disability.
This article argues that the definition of "sex" in federal, state, and local antidiscrimination laws should be expanded to include transgender. This approach is consistent with the sex-stereotyping theory of discrimination announced by the Supreme Court in Price Waterhouse v. Hopkins. If a woman is discriminated against because she does not adhere to social stereotypes about what it means "to be a woman," then a transgender individual is discriminated against when he or she does not adhere to the social stereotypes about what it means to be a member of her or his biological sex.
The proposed approach has four advantages. First, it would create consistency among the federal, state, and local governments concerning the meaning of "sex" and the protection extended to transgender employees. Second, it would extend coverage to the entire transgender community rather than the piecemeal protection currently in effect. Third, it would provide protection to transgender employees immediately. Fourth, courts would easily be able to fit transgender discrimination into an existing legal framework.
Sounds like a well-reasoned argument and one that I agree with whole-heartedly. Of course, this article is as timely as they come with the House currently debating whether to include transgender individuals within the protections of the Employee Non-Discrimination Act (ENDA).
An Indianapolis crime lab employee sued her employer alleging that her supervisor had sexually harassed her by exposing her to videotapes containing pornographic necrophilia. The Seventh Circuit held that:
the video incident does not create a hostile work environment. The encounter was brief and not particularly severe--Crime Lab employees frequently worked with corpses, so pornography depicting necrophilia might not have the same shocking overtones there as it would in another setting.
Might not? At the very least, wouldn't this be a jury issue?
The court provided alternative grounds for granting the district court's summary judgment motion as well. See Coolidge v. Consolidated City of Indianapolis.
It's a 43 page PDF document that includes hypertext links that take the reader from a particular item in a chart to a detailed discussion within the document about that item. In addition, the discussions include hypertext links that jump to other IRS documents on the web (if connected to the Internet), such as checklists and revenue rulings. The chart lists 11 common, potential mistakes in 401(k) plan operation and documentation.
Tuesday, October 16, 2007
The Federal Mediation and Conciliation Service has issued a Call for Presentations for its 2008 National Labor-Management Conference, which will be held in the Washington (D.C.) Hilton June 9-11. This biennial conference is attended by more than 1,500 labor relations practitioners, academics, arbitrators, consultants and leaders from government, labor and management. The theme of the 2008 conference is “New Era, New Solutions.”
In addition to a distinguished line up of nationally known keynote speakers, the conference will offer some 60 workshop sessions on labor-relations topics. FMCS is inviting proposals from individuals and organizations that are interested in organizing and presenting a workshop on labor relations issues at the conference. The deadline for submitting a presentation proposal is December 21, 2007.
Follow this link for the Call for Presentations document and to the Proposal Outline information form.
Here is a situation I was not aware of until I saw this article in the Washington Post:
When Mark Elengold retired as a top government drug regulator in 2005, he received $18,733 in his final paycheck, on top of his normal salary. The money was not a bonus, overtime pay or compensation for unused vacation hours. Rather, it was for time he had reserved to go to synagogue but had not actually used for that purpose during his three-decade career.
In bureaucratic parlance, Elengold's payment was for "religious compensation time," a little-known benefit created by a 1978 law that allows civilian federal employees to work small amounts of overtime, bank those hours and use them to take time off for religious observances without spending their vacation leave.
While the goals of the law were broadly supported at the time and have been promoted by the Bush administration, government and congressional investigators have found evidence in recent years that the religious benefit has sometimes been used improperly to pad vacation time and retirement cash-outs.
Early in the Bush administration, the Navy determined that three civilian managers in Rhode Island had accrued hundreds of hours of religious leave and used the time to play golf, gamble, run marathons and travel to Europe. They banked their regular vacation leave so that they would be eligible for large cash payouts upon retirement.
The nonchalant attitude of one of these Navy managers is galling and captured when "asked whether he considered a golf tournament to be a religious observance, one of the workers told Navy investigators: 'They could be for some people.'"
Nothing knew about government waste and fraud, but what concerns me here is that the government is paying workers to attend the religious observance of their choice. Although the program is neutral among different religions, it is not neutral between religion and non-religion, and thus seems to violate the Establishment Clause. Indeed, an employee has to prove his faith before setting aside religious comp time:
They must identify in writing the specific religious observances they plan to use the time for, and they must expend all the banked hours at such observances before accruing new religious leave.
Now under current Supreme Court government spending on religion cases, like the Zelman school-voucher case, all you need to survive Establishment Clause scrutiny is a neutral program which gives private choice to the individual how to spend the money. I never bought this approach and see it as just a clever way of washing the government taint of federal money that is going for religious purposes.
Although not convinced it would be successful, I would certainly like to see a non-religious federal employee challenge this program on constitutional grounds.