Saturday, November 3, 2007
It appears that Ford will be the only U.S. automaker to avoid a strike this year. As reported in the New York Times:
Ford, in a statement, said the agreement included a memorandum of understanding to establish an independent health care trust for retirees. Analysts have estimated that Ford owed as much as $31 billion in future retiree health care costs. Ford was the last Detroit automaker to hammer out a deal with the union. Neither Ford nor the union were providing other details of the agreement, which still must pass a ratification vote by a majority of the UAW's 54,000 employees at Ford. . . .
Ford is considered the Detroit automaker in the deepest trouble, and UAW President Ronald A. Gettelfinger, who once worked in a Ford plant, had promised not to pursue a deal that could put the automotive icon out of business. Last year Ford surrendered its No. 2 position in U.S. sales to Toyota Motor and posted a loss of $12.6 billion. It has announced the closing of 10 plants, borrowed $23 billion and is breaking up its European luxury division to raise cash. . . .
A major area of contention in the talks was an announced plan by Ford to stop producing vehicles at six factories --which are still unidentified -- by 2012. Analysts have said Ford was using the plants and the promises of new vehicle projects as bargaining chips as it pushed for deeper concessions. . . .
General Motors and Chrysler completed contracts within the past two months. Both agreements came after short strikes. GM and Chrysler won sweeping concessions from the union, including changes to health care and retirement benefits and wage cuts for certain workers. In exchange, GM offered the UAW assurances that it would continue to keep many of its U.S. plants open. Chrysler's labor deal lacked such guarantees and was nearly defeated in ratification votes. Analysts were expecting Ford to push for the same concessions from the union that GM and Ford got, or even for more given its precarious financial condition.
As the article notes, this round of talks results in significant concessions by the UAW, but the union really had little choice. Due to the perilous state of American auto companies, merely cushioning the pain should be considered an accomplishment. The membership still has to vote on the contract, but I suspect that the UAW leadership has a good read on what is acceptable.
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (58).
- Virginia Mantouvalou (photo above), Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (38).
- David J. Doorey, The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (34).
- Lea S. Vandervelde, The Thirteenth Amendment of Our Aspirations (30).
- Maria Linda Ontiveros, Immigrant Workers and the Thirteenth Amendment (27).
- William F. Sharpe, Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (135).
- James A. Wooten (photo above), A Legislative and Political History of ERISA Preemption, Part 1 (96).
- James A. Wooten (photo above), A Legislative and Political History of ERISA Preemption, Part 2 (85).
- John H. Langbein, Why Did Trust Law Become Statute Law in the United States? (78).
- Shlomo Benartzi, Ehud Peleg, & Richard H. Thaler, Choice Architecture and Retirement Savings Plans (74).
Friday, November 2, 2007
Here are some highlights:
The U.S. Supreme Court will hear argument next week in Federal Express Corp. v. Holowecki. The case considers what procedures a plaintiff must follow in order to successfully invoke her rights under the Age Discrimination in Employment Act (ADEA) - the federal law that prohibits employers from discriminating against employees aged 40 and over on the basis of age . . . .
Here, Patricia Kennedy, a FedEx employee, filed an intake questionnaire (Form 283), supported by an affidavit outlining her claims, on December 3, 2001; filed a lawsuit in federal court on April 30, 2002; and filed an EEOC charge (Form 5) on May 30, 2002.
After the questionnaire was filed, the EEOC did not notify FedEx of her claim, nor did it attempt to bring about a voluntary resolution of the claims, as it is supposed to do . . . .
Kennedy argued in response, however, that her earlier-filed intake questionnaire was itself sufficient to constitute a "charge" with the EEOC, and thus her subsequent lawsuit, filed more than four months after she filed her intake questionnaire, was timely.
At stake in Holowecki: what constitutes a proper charge for EEOC purposes? Should be an interesting case with the SG actually siding with the plaintiffs in this one.
Women are closing the pay gap with men and are outpacing men in the race to get college diplomas. But the fact is that the remarkable burst of productivity of the past decade has not been widely shared with the women or men living at the middle of the American middle class.
Thus, while the disparity between women and men is narrowing, both women and men in the middle class are getting squeezed. The winners -- no surprise here -- are the folks at the high end of the income distribution.
For the numbers, see One Pay Gap Shrinks, and Another Widens.
Thursday, November 1, 2007
The Roman god Janus had one head but two faces, so he could look both forward and backward both in time and in space. Scott Moss (Colorado) argues in his most recent article that the Supreme Court's recent employment discrimination cases can be explained as the Court's often-inconsistent attempts to control both the front-end and back-end of litigation. Scott has just posted this article (forthcoming Fordham L. Rev.) on SSRN: Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts. Here's the abstract:
The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.
This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:
Policy 1: Employees must try internal dispute resolution before suing—or lose their claims.
Policy 2: Employees must sue promptly after discrimination starts—or lose their claims.
These policies are plausible independently but incoherent together. Harassment plaintiffs lose by suing too quickly, without trying internal resolution; pay or promotion discrimination plaintiffs lose by delaying suit to seek internal resolution. This inconsistency exists even within the same cases: "dual-claim" plaintiffs alleging both harassment and pay or promotion discrimination face competing demands to file promptly and to delay filing. The Court has given no rationale for this difference, and the reverse would make more sense: delaying litigation is more troubling for he-said/she-said harassment cases than for pay disparity cases based on objective data, and day-to-day harassment seems harder to resolve internally than pay disparities.
An explanation for this inconsistency is that the Court has wavered in its commitment not to fighting discrimination, but to fighting discrimination with litigation—a theory based on the Court's broader hostility to litigation as a tool of dispute resolution. Thus, the Court continues to produce pro-plaintiff outcomes with its continued adherence to the policy of broadly construing Title VII—except in cases implicating anti-litigation policies.
The Court's anti-litigation policies, however, place inconsistent demands on employees and significantly harm the Court's commitment to the older policy of construing discrimination statutes broadly. Lower courts can mitigate these problems in several ways: exempt "dual-claim" harassment plaintiffs from requirements of pre-litigation dispute resolution, broadly construe exceptions to that requirement (which most courts wrongly construe as a per se rule), and mitigate the harshness of short limitations periods with a "discovery rule" that the limitations period begins not when discrimination starts, but when the employee reasonably should have discovered the discrimination.
This way of looking at the cases makes a lot of sense to me. It's also very consistent with the Court's treatment of related areas of law, like arbitration.
One of the important, but often overlooked cases, in public employment free speech law is Board of County Commissioners v. Umbehr (U.S. 1996).
Oyez.org succintly explains the facts and holding of the case:
Umbehr was an independent trash-hauling contractor for Wabaunsee County, Kansas. He frequently criticized the County's Board of Commissioners (the Board). When the Board voted to terminate his contract, supposedly because the Board grew tired of his constant criticisms, Umbehr filed suit against two of the Board's members. Umbehr alleged that his termination resulted from his criticisms of the Board and, therefore, infringed on his First Amendment right to freedom of speech. On appeal from the District Court's grant of summary judgment to the Board, the Tenth Circuit reversed and the Supreme Court granted Umbehr's petition for certiorari . . . .
In a [7-2] opinion by Justice Sandra Day O'Connor, [with Justices Scalia and Thomas dissenting], the Court held that the First Amendment's guarantee of freedom of speech shielded Umbehr, as a government employee, from termination due to things he might have said about the Board. Umbehr successfully proved that his criticisms of the Board preceded his termination and were the primary motivating factor behind its retaliatory termination of his contract. The Court added that, in balancing an employee's interest in commenting on public concerns against an employer's interest in promoting efficient performance by its employees, it could not find any countervailing county interest justifying its infringement of Umbehr's freedom of speech.
Now, the contractor's wife, Eileen, has written a truly inspirational story, Small Town Showdown, about her husband and how this case made its way up to the Supreme Court:
Small Town Showdown is the true story of Keen A. Umbehr, a trashman who dared to challenge the powers that be in his hometown of Alma, Kansas, population 850. While hauling trash for the towns within Wabaunsee County, Keen also wrote a weekly newspaper column called "My Perspective" wherein he often criticized the decisions of the local county commissioners. The Board of commissioners were not accustomed to being challenged, and after an investigation by the State Attorney General's Office and KBI, the commissioners voted to terminate the newspaper's designation as the official county paper. Shortly thereafter, they voted to terminate Keen's trash collection contract, despite 10 years of perfect service. Five of the six towns signed individual contracts with Keen; he filed a First Amendment lawsuit over the loss of the sixth town.
Five years later, on June 28, 1996, the case was settled in Keen's favor (7-2) by the United States Supreme Court. Small Town Showdown chronicles the conflict between Keen and the commissioners from 1981 through the final showdown at the Supreme Court. (www.keenjustice.com)
In 1998, Keen sold his trash business to return to college, graduating from Kansas State University in 2001, before enrolling in law school at Washburn University School of Law in Topeka, Kansas. Keen graduated from law school in 2005 and has been in private practice ever since.
Wow. Doesn't get any better than that. You can read more about this book here.
Thanks to Jon Forman (Oklahoma) for pointing out to me that Norm Stein (Alabama) (pictured left) testified a couple of days ago before the House Ways and Means Committee on pension fee disclosure legislation. Here is the roster of the speakers for the hearing.
PlanSponsor.com has more details about the hearing and what was discussed. Here are some highlights:
The House Committee on Ways and Means held a hearing October 30 to determine whether workers’ retirement savings are being eroded by excessive and unnecessary administrative and investment fees assessed by pension plan providers.
In a statement Committee Chairman Charles B. Rangel (D-New York) said, "As we move away from a system where the responsibility for retirement savings is shared by the employer and employee, Congress - and this Committee in particular - owe it to our workers to ensure their ability to maintain a high quality standard of living once they stop working."
Some studies have indicated that some providers who service 401(k) plans are charging as much as 1% (100 basis points) in fees and expenses over the prevailing average rates, the statement said. These excessive expenses and fees directly reduce the value of the workers' total retirement savings . . . .
Many participants are not even aware they pay any plan fees and those who are aware may not know how much they are paying, according to testimony submitted by Barbara D. Bovbjerg of the Government Accountability Office (GAO). A report from the GAO said, “Participants need fee information to make informed decisions about their investments—primarily, whether to contribute to the plan and how to allocate their contributions among the investment options the plan sponsor has selected.”
Given the support for this legislation, I would not be surprised to see pension fee disclosure reform this year or next. PS
Given the support for this legislation, I would not be surprised to see pension fee disclosure reform this year or next.
Susan Bisom-Rapp (Thomas Jefferson) writes to tell us about a conference, she, Mike Zimmer (Seton Hall), and Bill Corbett (LSU) are co-organizing, The Global Workplace: Expanding Intellectual Borders with International and Comparative Workplace Law. It is set to take place in San Diego on February 15 & 16, 2008.
The program will also run by videoconference at Seton Hall and LSU. Here’s a link to the conference webpage: http://www.tjsl.edu/globalworkplace.
It sounds like a wonderful conference about workplace law beyond our borders and I encourage everyone to attend.
Wednesday, October 31, 2007
Breaking labor/political news: Hillary Clinton has just received an endorsement from AFSCME. Given other major international unions' reluctance to make such an early pick, this is a big deal (and crushing to Edwards, who has courted unions hard for the last couple years). As reported by the New York Times:
Gaining one of the biggest endorsements that organized labor has to offer, Senator Hillary Rodham Clinton received the endorsement of the American Federation of State, County and Municipal Employees, a union official said today. The union is one of the nation’s largest, with 1.4 million members, and is especially powerful in Iowa, where it has 30,000 members, making it a major force in that state’s Democratic caucus. . . . .
The federation of state, county and municipal employees plans to spend $60 million in the current campaign cycle on the presidential, congressional and state races, second only to the Service Employees International Union. Moreover, the union, known as Afscme, plans to mobilize at least 40,000 volunteers in the campaign. . . .
One official who attended today’s board meeting said 23 board members had voted to endorse Mrs. Clinton while 10 voted for other candidates or for no endorsement. At the meeting several officials argued against backing Mrs. Clinton, saying that she would have trouble beating a Republican in November 2008 because her negatives are so high. As a result of the Afscme endorsement, its members will be battling on behalf of Mrs. Clinton in Iowa against members of several other unions — the steelworkers, the carpenters and several service employee locals — that have endorsed Mr. Edwards.
Mr. Edwards is also getting some good news today – he is receiving the endorsement of the service employees’ state council in New Hampshire, even though former President Bill Clinton had personally intervened in his wife’s behalf. Because the service employees have 10,000 members in New Hampshire, that should be a significant boost for Mr. Edwards. in the state that has the first primary.
Marty Malin (that's Lou Jackson at left, not Marty) writes once again to remind us of the Louis Jackson Memorial National Student Writing Competition in
Employment and Labor Law, administered by Chicago-Kent College of Law. As in the
past, students may submit essays of up to 35 pages in length. Essays will be
blind judged by a panel of five law professors. Neither Jackson Lewis nor
Chicago-Kent have any say in the selection of winning essays. Here's a complete description.
Looks like the Writers Guild will be on strike shortly. We haven't covered it here at Workplace Prof Blog because it's been in the mainstream media plenty enough.
Garnering less national attention is the UFCW's impending strike of Kroger (see today's story in the Cincinnati Enquirer, which kindly quotes yours truly). It's a local dispute (Cincinnati, Dayton, and Northern Kentucky), so a strike won't cripple Kroger financially. But Cincinnati is Kroger's home, and the company can ill-afford to lose market share here to the likes of Wal-Mart. As Michael Carrell points out, the Kroger-UFCW dispute is shaping up to be a classic modern power match: management threatens to hire replacements and seeks public support versus a union threat of a long costly strike ending in lost market share.
Brian Kanner, a student at Emory Law, has just posted on SSRN his article Reservists Are Like Pregnant Women: A Fertile Battleground for a Reinterpretation of USERRA. Here's an excerpt from the abstract:
The article examines the Department of Labor's ("DOL") newly issued regulations of the Uniformed Services Employment and Reemployment Act of 1994—the act that guarantees workplace non-discrimination and reemployment rights to our military reservists. Under the regulations, reservists are given non-seniority rights [e.g., the employer is required to continue fo pay for medical benefits] only if the employer offers them to similarly situated non-military employees on a comparable non-military leave. Making comparisons to pregnant women subject to policies formed for a male-centric workplace, I argue that the assessment for determining a reservist's non-seniority rights is inherently disingenuous: what employee is truly similarly situated to a reservist called to duty and what non-military leave is truly comparable to the unpredictable military leave?
My article argues that when forced to find some group that is similarly situated to reservists on a comparable leave, pregnant women on leave are the most similarly situated, as a group, and their leave is most comparable. Therefore, reemployed reservists should receive all rights and benefits that an employer offers to pregnant women.
Makes sense to me. USERRA is a sleeping giant -- I suspect we'll be seeing a lot of it in the near future.
Who am I to ignore a request from such an eminent blogger as Belle Lettre? She brings to my attention an article in the New York Times by Adam Liptak and wonders what its employment discrimination ramifications are.
How abou two posts, Belle? Rick writes below about an Adam Liptak article in which law students are grading law firms based on diversity. She wants my expert reaction.
Now, my first reaction is similar to that of eric over at the Debris Blog:
So students from elite law schools will know at which firms woman, people of color, and LBGT people have the best opportunities to make bucketloads of money working on behalf of corporate power.
Taking Belle's question a little less cynically, I am not sure what the employment discrimination issues are. The firms may respond by seeking to hire more diversity candidates, but as long as they don't have quotas and take other factors into consideration when hiring, there shouldn't be an employment discrimination issue. Of course, over-eager firms may put in place a de facto quota and find itself being sued under a reverse discrimination theory.
The students are handing out “diversity report cards” to the big law firms, ranking them by how many female, minority and gay lawyers they have.
“Many of the firms have atrocious, appalling records on diversity,” said Michele Landis Dauber, a law professor at Stanford and the adviser for the project, called Building a Better Legal Profession. The rankings are at www.betterlegalprofession.org.
In New York, Cleary Gottlieb Steen & Hamilton got the top grade, an A-minus. At Cleary, the project says, 48.8 percent of the associates are women, 8.7 percent are black, 8.3 percent are Hispanic and 4.5 percent are openly gay.
Herrick, Feinstein, by contrast, got an F. Its numbers: 37.7 percent women, 4.9 percent black, 1.6 percent Hispanics, and no openly gay people.
... The numbers were provided to a central clearinghouse by the firms themselves. “Our process is simple,” the student group said in explaining its methodology. “Cut, paste and rank.” Firms in the top fifth received A’s, in the second fifth B’s, and so on. Overall grades were arrived at by averaging grades for partners and associates in five categories: women, blacks, Hispanics, Asians and gay people.
At least around here (southern Ohio and Kentucky), most big-and-medium-sized firms are sold on diversity. It's not out of altruism -- it's because their clients demand it. But the firms have a difficult time recruiting minority lawyers if the law schools aren't producing enough of them and the bar exams further reduce the pool disproportionately. And law schools have a difficult time recruiting minority law students if the colleges aren't producing enough of them and the LSAT further reduces the pool disproportionately.. And so on and so on. That's why I'm a huge supporter of pipeline projects like Wingspread -- they won't solve the underlying problems, but they at least can help address some of the symptoms.
Tuesday, October 30, 2007
You know, I teach the General Duty Clause of OSHA every year in Employment Law class and not once did I consider that this amorphous provision may preempts state laws which prevent employers from banning guns from work.
But I'm glad someone thought about it. From Society of Human Resources Management (SHRM):
In a long-awaited decision, a federal judge of the U.S. District Court in Oklahoma sided with SHRM in finding that a workplace weapons bill passed by the Oklahoma legislature in 2004 (and amended in 2005), which prohibits employers from establishing policies banning employees from bringing weapons onto company property, is pre-empted by the federal Occupational Safety and Health Act's (OSHA) 'general duty' clause.
More specifically, the judge held:
[T]he Amendments [the Oklahoma weapons laws] conflict with and are preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives.
The case is ConocoPhillips v. Henry, 2007 WL 2908879 (N.D. Okla. 2007) (Westlaw Subscription required).
Amir Efrati writes in today's Wall Street Journal about law student strategies for finding jobs and minimizing debt. He points out that while demand (and salaries) at big firms is robust, job growth in other legal fields has stagnated over the past 20 years. One of his suggestions is to start at an in-state public law school, then look for transfer opportunities to the elite schools that feed into the upper-echelon law firms. On the practice that many top-tier schools seem to be taking of padding their USNWR ranking by cherry-picking gobs of second-year transfer students, see Bill Henderson's post on Empirical Legal Studies Blog.
Monday, October 29, 2007
It will come as no surprise that the SEIU has been in the midst of ramping up its political machinery for the 2008 election. Steven Greenhouse reports in the New York Times:
The union movement, led by the service employees and the A.F.L.-C.I.O. has been straining to increase labor’s power after decades of membership decline and efforts by Republicans to win over workers through appeals on national security and social issues.
Within labor, the S.E.I.U. president, Andy Stern, has been especially active in trying to maintain influence. While he has a reputation as divisive — he orchestrated a split with the A.F.L.-C.I.O. in 2005 that some analysts say has set back labor’s efforts to keep a strong voice in politics — he has made his union the nation’s fastest growing over the past decade, and his focus on politics has led the Democratic presidential candidates to court the S.E.I.U. endorsement aggressively.
After the union said it would not consider endorsing anyone who did not put forward a plan for universal health coverage, all the leading Democratic candidates produced one. When it demanded that the candidates spend a day in the shoes of a worker, Mr. Edwards, Mr. Obama and Mrs. Clinton did so, all spending a day with a health care worker. . . .
The union is expected to collect $40 million for its political action committee, which was the largest in the 2006 campaign. It plans to spend $30 million more in internal funds for getting out the vote and shining a spotlight on lawmakers who have helped thwart its agenda on national issues like expanding the State Child Health Insurance Program. For the first time, officials say, the union plans to spend as much on House and Senate races as on the presidential one. . . . Union officials say they will help Democratic candidates for governor in Indiana, Missouri, North Carolina and Washington. And in a move that could make life harder for Democratic incumbents who do not stand by the union on the issues it considers most important, Mr. Stern and his team say they will consider backing primary challengers who are more in line with the union’s agenda.
The union is known for mobilizing its members far more than other labor groups, with Mr. Stern predicting that 100,000 members will work as campaign volunteers next year. . . . Mr. Stern spends much of his week on politics, engaging in strategy talks at the union’s Washington headquarters, discussing legislation in Congress, conversing with local leaders about what is happening around the country and giving pep talks to the rank and file about the importance of the campaign.
Whenever I'm asked whether unions are still relevant (which seems to be a regular occurrence), politics is always one of the first things out of my mouth, as they still hold considerable sway with candidates and can make a significant impact on elections. That they're particularly energized this cycle is no wonder. It seems like half of our blog entries this past year have decried one anti-employee development after another. From unions' perspective, some of those problems represent longer-term projects, like the make-up of the judiciary. But others represent near-term possibilities, such as getting a majority on the NLRB and other agencies. If a Democrat does get in the White House, it will be with labor's help and expect to see the favor returned very quickly. If you think the Employee Free Choice Act made a big splash, wait and see what will happen if the Democrats sweep.
- Ruth Colker, The Mythic 43 Million Americans with Disabilities, 49 Wm. & Mary L. Rev. 1 (2007).
- Richard E. Moberly, Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win, 49 Wm. & Mary L. Rev. 65 (2007).
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation, 49 Wm. & Mary L. Rev. 229 (2007).
- Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745 (2007).
- Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 Vand. L. Rev. 849 (2007).
Surveys of Employment Law
- Illinois: Debra Stegall, Marueen R. De Armond, & Nathaniel E. Strickler, in 31 S. Il. U. L.J. 859 (2007).
- Texas: Bryan P. Neal, Stephen F. Fink, & Elizabeth A. Schartz, in 60 SMU L. Rev. 941 (2007).
Comments & Notes
- Sarabeth A. Rayho, Divorcees Turn About in Their Graves as Ex-Spouses Cash In: Codified Constructive Trusts Ensure an Equitable Result Regarding ERISA-Governed Employee Benefit Plans, 106 Mich. L. Rev. 373 (2007).
We just covered the child labor provisions of the Fair Labor Standards Act in Employment Law last week, so it seems appropriate to point out that American employers must keep close track of who is supplying their materials internationally to avoid being complicit with those who use child labor (via CNN.com):
The president of Gap North America says a subcontractor accused of using child labor to sew Gap clothes in India has been fired and the Gap will not sell clothes made in the New Delhi sweatshop.
"It's deeply, deeply disturbing to all of us," Gap President Marka Hansen said after watching video of the children at work. "I feel violated and I feel very upset and angry with our vendor and the subcontractor who made this very, very, very unwise decision."
Hansen blamed the alleged abuse on an unauthorized subcontractor for one of its Indian vendors and said the subcontractor's relationship with the Gap had been "terminated."
Here is the original investigative report from The Observer in the UK.
Kudos to take Gap for taking strong and immediate action. Apparently, this isn't the first time either: "In 2006, Gap Inc. ceased business with 23 factories due to code violations. We have 90 people located around the world whose job is to ensure compliance with our Code of Vendor Conduct."
Let's hope more employers that hire international contractors take the same proactive approach.
Hat Tip: Hank Leland