Saturday, November 24, 2007

LaRue Set for Oral Argument on Monday

Supreme_ct_2 LaRue v. DeWolff, Boberg & Assoc., 06-865, set for oral argument on Monday, involves a 401k plan participant who claims that the plan administrator failed to make certain investments that the participant had directed and that he therefore is entitled to bring a 502(a)(2)/409 claim.  The plan administrator argues that ERISA permits suit against a plan administrator only for “losses to the plan,” and that the participant’s losses were personal to him and did not affect the overall plan.  The participant rejoins that his losses “directly [affect] the overall amount of assets held by the plan.”  I think the participant has the better argument and that a loss to an individual participant is by definition a loss to the plan, thereby entitling the participant to sue for breach of fiduciary duty.

If the Court finds that a 502(a)(2)/409 claim does not exist, than the court is scheduled to consider whether appropriate equitable relief is available under 502(a)(3) under an equitable surcharge/make whole argument.

Paul plans to post an extensive commentary on the case once the transcript of the oral argument is available.  Watch for Paul's post on Monday afternoon or Tuesday morning.


November 24, 2007 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship

Forman Suk_3 Conway


  • Jonathan Barry Forman (left), Making American Work: Alfred P. Murrah Professorship Inaugural Lecture, 60 Okla. L. Rev. 53 (2007).
  • Julie C. Suk (center), Discrimination at Will: Job Security Protections and Euqal Employment Opportunity in Conflict, 60 Stanford L. Rev. 73 (2007).
  • Rebecca Smith & Catherine Ruckelshaus, Solutions, Not Scapegoats: Abating Sweatshops Conditions for All Low-Wage Workers as a Centerpiece of Immigration Reform, 10 NYU J. Leg. & Pub. Pol. 555 (2006-07).
  • Alexis Conway (right), Leaving Employers in the Dark: What Constitutes a Lawful Appearance Standard After Jespersen v. Harrah's Operating Co.?, 18 Geo. Mason U. C.R. L.J. 107 (2007).


November 24, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Top-5 Employment SSRN Downloads

Top-5 Labor SSRN Downloads

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation/Pension SSRN Downloads

Friday, November 23, 2007

Age Discrimination and the Legal Profession in India

Ever wonder how other parts of our world deal with workplace issues like age discrimination. I have.
Indiaflag Fortunately, Robert Ambrogi of Legal Blog Watch has one of these types of stories:

Until this month, lawyers over age 45 could not be newly enrolled to practice as advocates in the Indian state of Delhi. The policy existed, one member of the Delhi Bar Council explained, because, "We have often seen that lawyers above 45 just get into the profession for time pass. They don't contribute anything, engage in malpractice and crowd in."

Wow, and we thought we had invidious stereotypes about older workers in this country! I know of many excellent lawyers who have come to the legal field later in life.  Thankfully, the Dehli Bar ended up figuring things out:

Some post-45 "senior citizen" lawyers disagreed with that policy. Six months ago, a half dozen of them appealed to the Delhi High Court. Earlier this month, before the court could rule, the Delhi Bar Council reversed itself and abolished the age restriction.

As NDTV reports, this is welcome news for lawyers Prem Chand Kashyap, 60, and Sudhi Kumar Bharadwaj, 61. Kashyap, a 1975 law graduate, retired this year after 35 years in banking and hoped to spend his "golden years" as a lawyer. Bharadwaj had earned his law degree in 1979 and retired last year as chief income tax commissioner of Mumbai, likewise wanting to practice law.

You can read more about age discrimination in the legal profession in India from The Hindu or watch this video of NDTV's report.


November 23, 2007 in International & Comparative L.E.L. | Permalink | Comments (1) | TrackBack (0)

Experts: More Employees Working Through Pain

Medical_bag has the report:

There are 130 million people who have one or more chronic conditions in the United States today, according to Gerard Anderson, professor of Health Policy and Management at Johns Hopkins Bloomberg School of Public Health.

There are few solid numbers on how many of workers like Williams, are staying on the job even though they suffer an ongoing illness, including arthritis, diabetes, multiple sclerosis, asthma, cardiac and cardio-vascular diseases, and even cancer.  But experts believe the numbers of individuals with such diseases in the workplace is increasing.

The aging population and the rise in the nation’s obesity rate are contributing to the growth in the numbers of individuals with chronic illnesses. But what are also driving the increase, experts say, are therapeutic advancements such as drugs and rehabilitation programs for a host of chronic diseases.

As much as three-quarters of the population with a chronic illness can be helped through disease management and continue to work, says Chris Wilhide, the director of program development and research for Nationwide Better Health, a division of insurance giant Nationwide that provides disease management programs to employers.

As a result, employees today are living and working with a host of chronic diseases that may have once meant a quick trip to the unemployment line.

I wonder if this trend is also a partially unintended result of federal and state workplace disability laws' inability to adequately protect workers from disability discrimination?  On the other hand, this trend might indicate that employers are more willing to reasonably accommodate chronically-ill employees (or more cynically, want to avoid litigation).


November 23, 2007 in Workplace Trends | Permalink | Comments (0) | TrackBack (0)

What's In an Initial?

C_cookie Orly Lobel (San Diego) over at PrawfsBlawg has an interesting post on the importance of a person's initials in predicting their success in school and the workplace. Here are some of the highlights:

A couple of years ago, MIT/Univ of Chicago economists Marianne Bertrand and Sendhil Mullainathan tested the effects of names that prime race on the labor market prospect of job candidates. In Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination they describe an experiment they responded with fictitious resumes to help-wanted ads in Boston and Chicago newspapers, manipulating only the perception of race,  randomly assigned either a very African American sounding name or a very White sounding name. Their results were clear: White names received 50 percent more callbacks for interviews. A new study suggests that naming your kids may affect not only the reactions of others, but also their own behavior. In a forthcoming article in Psych Science, Business School Profs  Leif Nelson (UCSD) and Joseph Simmons (YALE) find that although most students want As in school, those whose names begin C or D have lower grade point averages than students whose names begin with A and B—with an even greater effect if they say they like their initials . . . .

Here is the abstract of Moniker Maladies: When Names Sabotage Success.

The authors conclude that, "these findings provide striking evidence that unconscious wants can insidiously undermine conscious pursuits."

I understand the outcome in the first study concerning typical white and black names, but why the initials of your first name should indicate your success in school or later in work makes little sense to me. Does the same thing happen in other countries with different grading scales and different common names or is this a uniquely American phenomenon?


November 23, 2007 in Workplace Trends | Permalink | Comments (0) | TrackBack (1)

Thursday, November 22, 2007

OSHA Signs Alliance with National Turkey Federation

Turkey OSHA announced last week (yes, I've been holding this in my back pocket for today) that it has formed an alliance with the National Turkey Federation and the National Chicken Council "to provide the associations' members and others with information, guidance and access to training resources that will assist in protecting the safety and health of employees, including non-English speaking employees. The Alliance's focus will be on machinery hazards and providing solutions to reduce worksite injuries, such as amputations."

Happy Turkey Day!!!!!


November 22, 2007 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship

Kuhn Pearceedu Swiftken_3 Mandel_3 Roberts_2

Hofstra Labor & Employment Law Journal
Volume 24, No. 2, Winter 2007


  • Dennis R. Kuhn (left) & John A. Pearce II (second), The Legality of Using Employee Appearance Policies to Promote Organizational Culture, p. 181.
  • Kenneth R. Swift (third), Void Agreements, Knocked-Out Terms, and Blue Pencils: Judicial and Legislative Handling of Unreasonable Terms in Noncompete Agreements, p. 223.
  • Marc Mandelman (fourth) & Kevin Manara, Staying Above the Surface - Surface Bargaining Claims Under the National Labor Relations Act, p. 261.
  • Kathy Roberts (right), Correcting Culture: Extraterritoriality and U.S. Employment Discrimination Law, p. 295.


  • Tracie Watson & Elisabeth Piro, Bloggers Beware: A Cautionary Tale of Blogging and the Doctrine of At-Will Employment, p. 333.
  • Daniel N. Kuperstein, Finding Worth in the New Workplace: The Implications of Comparable Worth’s Reemergence in the Global Economy, p. 363.


November 22, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 21, 2007

Wal-Mart, ERISA Subrogation, and "The Grand Irony"

Walmart_1 Roy Harmon of the Health Plan Law Blog brings to my attention a distressing Wall Street Journal article discussing the overlap between employer-provided health insurance plans under ERISA and the law of subrogation:

A collision with a semi-trailer truck seven years ago left 52-year-old Deborah Shank permanently brain-damaged and in a wheelchair. Her husband, Jim, and three sons found a small source of solace: a $700,000 accident settlement from the trucking company involved. After legal fees and other expenses, the remaining $417,000 was put in a special trust. It was to be used for Mrs. Shank's care . . . .

Instead, all of it is now slated to go to Mrs. Shank's former employer, Wal-Mart Stores Inc.

Two years ago, the retail giant's health plan sued the Shanks for the $470,000 it had spent on her medical care. A federal judge ruled last year in Wal-Mart's favor, backed by an appeals-court decision in August. Now, her family has to rely on Medicaid and Mrs. Shank's social-security payments to keep up her round-the-clock care.

As Roy points out, and some out there may be shocked to hear this, but this inequitable, horrendous outcome is considered appropriate, equitable relief for the Wal-Mart plan under ERISA and the states are helpless to do anything about it.  Two reasons why:

1.    The Scope of Equitable Relief under ERISA Section 502(a)(3): This provision provides participants, beneficiaries, and fiduciaries with the ability to sue for appropriate, equitable relief for violations of ERISA. Here, Wal-Mart's health plan is suing the Shanks (non-fiduciaries) under a reimbursement clause for the money the Shanks received from a third-party tortfeasor.  Since 1993 and the Mertens case, the Supreme Court has looked to the "time of the divided bench" to define what equity means rather than what was available under the common law of trusts (which Congress intended ERISA to incorporate to make it a full remedial statue).   As a result of this strict, literalist construction, the Wal-Mart plan had a claim for an equitable lien based on an agreement because the money in question was specifically identifiable, in the possession of the Shanks, and under the reimbursement clause, belonged rightfully to the plan. So "equity" in this bizarre world is served by the Shanks entire settlement fund being wiped out by the insurer.

2.   State Law Preemption: States are impotent to change this state of affairs. In FMC Corp. v. Holliday, the Supreme Court found that a Pennsylvania anti-subrogation law was preempted by ERISA. The analysis is somewhat complicated under the Savings and Deemer clauses of ERISA, but suffice to say that state insurance regulation of self-insured plans, like Wal-Mart's, is no longer possible.

Finally, and not that it matters that much, but this is really a reimbursement clause case, not a suborgation case. Subrogation cases allow the insurance company of an employer to put themselves in the shoes of the insured and sue the third-party tortfeasor for the medical expenses the plan has paid out. When a company like Wal-Mart is self-insured, they place reimbursement clauses in their plans which require participants and their beneficiaries to pay back the plan for money they received from a third-party tortfeasor.  The difference is that the self-insured employer does not have a claim unless the insured decides to sue, but once the insured does, the plan has the right to full reimbursement, regardless of whether the employee beneficiary takes home at the end of day more or less than what the plan demands.

In short, a truly horrible situation under ERISA, and not that far-fetched when one comes to understand the manner in which the scope of equitable relief under ERISA and ERISA preemption work together to create what I call the "Grand Irony of ERISA": that employers now use ERISA as a shield against employees; the same employees whose benefits ERISA was supposed to protect.

A Kafka-esque scheme is very there was one and yet another publicity black eye for Wal-Mart.

Finally, kudos to Roger Baron (South Dakota) for being quoted in the Wall Street Journal article.


November 21, 2007 in Pension and Benefits | Permalink | Comments (1) | TrackBack (2)

Big Brother at Boeing

Bigbortherorwell Seattle Pi is reporting:

Within its bowels, The Boeing Co. holds volumes of proprietary information deemed so valuable that the company has entire teams dedicated to making sure that private information stays private.

One such team, dubbed "enterprise" investigators, has permission to read the private e-mails of employees, follow them and collect video footage or photos of them. Investigators can also secretly watch employee computer screens in real time and reproduce every keystroke a worker makes, the Seattle P-I has learned.

For years, Boeing workers have held suspicions about being surveilled, according to a long history of P-I contact with sources, but at least three people familiar with investigation tactics have recently confirmed them.

My thought about these disturbing practices from a legal perspective come down to whether surveilled employees knew they were being monitored and watched. If so, at lest there is some argument that they did not have a legitimate expectation of privacy and it would be harder to show what Boeing is doing is highly offensive to a reasonable person under invasion of privacy law.

Of course, if these employees have been caught unawares, which it appears, the proverbial book should be thrown at Boeing. The problem is finding an employee whose principles cannot be bought and is willing to sue on the issue:

One company source said some employees have raised internal inquiries about whether their rights were violated. Sometimes, instead of going to court over a grievance on an investigation, Boeing and the employee reach a financial settlement. The settlement almost always requires people involved to sign non-disclosure agreements, the source said.

Of course, this is not the first time this type of invasive employer conduct has reared its ugly head in the corporate world. Last year, Hewlett-Packard was at the center of a media storm after the company investigated leaks from its board of directors.

Hat Tip: Christopher Timmermans


November 21, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship

Leonard Kirkland12 Jackall_2 Worth_2


  • James Leonard (left), Title VII and the Protection of Minority Languages in the American Workplace: The Search for a Justification, 72 Missouri L. Rev. 745 (2007).


  • Kimberly Kirkland (second), Confessions of a Whistleblower: A Law Professor's Reflections on the Experience of Reporting a Colleague, Geo. J. Leg. Ethics 1105 (2007).
  • Robert Jackall (third), Whistleblowing and Its Quandaries, 1133 (2007).

Comments & Notes

  • Tobin M. Nelson, Word-of-mouth Recruiting: Why Small Businesses Using This Efficient Practice Should Survive Disparate Impact Challenges Under Title VII, 68 U. Pitt. L. Rev. 449 (2007).
  • Richard D. Worth (right), No "Free Pass" for Employees: Missouri Says "Yes" to Individual Liability Under the Missouri Human Rights Act, 72 Missouri L. Rev. 947 (2007).


November 21, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Meyerson on the NLRB

Meyerson_2 In today's Washington Post, Harold Meyerson has an op-ed piece criticizing the NLRB and its rash of controversial decisions this year.  He specifically notes one case that we've posted on, Dana Corp., and a few others (see here for our post on the AFL-CIO rally).  According to Meyerson:

Last Thursday, a band of roughly 1,000 demonstrators assembled by the AFL-CIO paraded past the White House in a driving rain, to the headquarters of the National Labor Relations Board. They asked the board, which was established 72 years ago to protect workers' right to bargain, to cease and desist. No more rulings. And no more new members (the terms of three of the board's five members are due to expire shortly) who see their mission as destroying the right of employees to bargain with their bosses.

The outburst was prompted by the board's September work product: 61 decisions that both weakened workers' rights and ran counter to the purpose of the National Labor Relations Act, which proclaims that the policy of the United States is to protect "the exercise by workers of full freedom of association [and] self-organization." Absent such rights, the act states, the nation's economy would suffer from workers' diminished purchasing power and run greater risks of economic downturns. It's a very Keynesian act, the NLRA.

And, at the moment, it is being interpreted by Bush-appointed board members who take their cues from Brits more venerable (if more nominally fictitious) than Keynes -- the heavies in the novels of Charles Dickens, who invoke Victorian nostrums as they treat their workers like dirt.

You've got to love a piece that can alternatively describe federal labor law as Keynesian and Dickensian.


November 21, 2007 in Labor Law | Permalink | Comments (2) | TrackBack (0)


Lemon Stephen F. Diamond (Santa Clara) has just posted on SSRN his essay Legal Implications of Proposed GM/UAW VEBA.  Here's the abstract:

This research note provides an initial exploration of the potential securities law implications of the proposed Voluntary Employees Beneficiary Association (VEBA) of General Motors and the UAW.

And here's the conclusion:

[T]op UAW officials are campaigning to secure ratification of the decision to establish the VEBA including the sale to the VEBA of the Convertible Note.  Such efforts could be viewed as a sale and/or distribution of a security.  Because the current information made available to the UAW member/investors by the union’s top officials is not adequate, if the SEC or a federal court deemed top UAW officials to be engaged in the sale and/or distribution of a security, I believe they would be doing so in violation of federal securities laws.  This may call into question the validity of the financing of the VEBA itself.

I.e.,  UAW leadership has sold membership a lemon.


November 21, 2007 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

What Do Unions Do in China?

Ying Ge (University of International Business and Economics, Beijing, China) has just posted on SSRN his article What Do Unions Do in China?  Here's the abstract: 

This paper is the first to use a large micro - level data set to investigate the activities and effectiveness of Chinese unions. We show that Chinese unions have a strong State - Party voice face and a collective voice face but lack a monopoly face. The empirical findings on the effectiveness of unions are remarkable: the presence of unions in the workplace is positively related to average wage and benefit levels, productivity, research and development investment and human capital investment, but negatively related to enterprise profitability. The unions in China do have real effects.


November 21, 2007 in International & Comparative L.E.L., Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Leiter's Most-Cited Faculty List

Weiler03 .
Here's Brian Leiter's top-10 list of most cited faculty in Labor & Employment Law, based on citations from 2000-07:
    1. Paul Weiler (Harvard University) (photo above), 610 citations.
    2. Samuel Estreicher (New York University), 520 citations.
    3. Stewart Schwab (Cornell University), 500 citations.
    4. Katherine van Wezel Stone (University of California, Los Angeles), 490 citations.
    5. Cynthia Estlund (New York University), 380 citations.
    6. Catherine Fisk (University of California, Irvine), 360 citations.
    7. Matthew Finkin (University of Illinois), 270 citations.
    8. Michael Wachter (University of Pennsylvania), 260 citations.
    9. Karl Klare (Northeastern University), 240 citations.
    10. Deborah Malamud (New York University), 230 citations.


November 21, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court To Hear NLRA Preemption Case

Supreme_court The Supreme Court has just granted cert. in Chamber of Commerce v. Brown, No. 06-939 (previously discussed here by Paul). That case involves a California statute that prohibited private employers that receive state grants over $10,000 annually from using state funds to "assist, promote, or deter union organizing."  Other categories of employers were also included.  The NLRB voted 3-2 to intervene in the case, arguing that it was preempted by the NLRA.  An en banc panel of the Ninth Circuit reversed, by a 12-3 vote, a 2-1 panel decision holding that the California law was preempted.  BNA's Daily Labor Report (subscription required) describes the issue:

The Ninth Circuit reasoned that California's exercise of its sovereign power to control the use of its funds does not intrude on conduct meant to be left to the free play of economic forces because a "state's choices about how to spend its funds are by definition not controlled by the free play of economic forces." The appeals court also found that "California's refusal to subsidize employer speech for or against unionization does not regulate an activity that is actually protected or actually prohibited by the NLRA." . . .

[The Solicitor General, which recommended granting cert., argued
in its amicus brief that the]California law is preempted under the Machinists doctrine "because it regulates employer speech that Congress intended to leave unregulated." . . . He added that a fundamental policy of the NLRA "is the importance of robust debate as a means of protecting the Section 7 rights of employees to make informed decisions about whether to select an exclusive bargaining representative." 

[The SG] also argued that the state law "does not apply its constraints on employer speech neutrally" because it allows employers to use state funds for expenses incurred in negotiating, entering into, and carrying out a voluntary recognition agreement with a union and expenses incurred in agreeing to recognize a union that demonstrates by means other than a board-conducted election that it has the support of a majority of unit employees. 

The California law also is preempted under the Garmon doctrine, the solicitor general said, because it "regulates coercive or prejudicial employer speech during organizing campaigns," which NLRB has the primary jurisdiction to address. "There is no place in the NLRA's comprehensive regulatory scheme for state regulation of employer speech to effectuate state labor policy."

This is an important question in a very messy area of the law.  It basically pits states' ability to control how state funds are expended against the NLRA's robust preemptive effect.  I'm normally pretty bad at guessing the outcome of Supreme Court cases, and I have no reason to think that I'd do any better with this one.  At first blush, however, I've got to predict a reversal.  Even ignoring the union/employer viewpoints of the Justices, that the Court took this case indicates to me that they want to reverse it.  That's not always true, of course, so I'll be very interested to hear reports on the oral argument.  Stay tuned.


November 21, 2007 in Labor Law | Permalink | Comments (1) | TrackBack (1)

Tuesday, November 20, 2007

Yes, Virginia, There Still Are Gissel Bargaining Orders

Nlrb The NLRB has long been criticized for its dwindling number of Gissel bargaining orders (see this post on the AFL-CIO's recent ILO complaint making this point, among others).  Under a Gissel II order (no Virginia, there really aren't Gissel I orders any more), an employer that committed enough ULPs to undermine the ability to hold a fair election must bargain with a union that once had evidence of majority support, but cannot show such support at the time of the order.  The Board deserves some of the blame for the dearth of these cases, but the other side of the coin is that the courts have been extraordinarily hostile to Gissel orders for quite some time.  It was therefore heartening--shocking may be a better description--to see not only the current Board issuing a Gissel order, but also to see a court not known as being particularly union-friendly enforcing the order.  That's exactly what happened in a recent Fifth Circuit decision, Cal. Gas Transp. v. NLRB, 06-60871 (5th Cir. Nov. 7, 2007).

The court relied the unit's small size, the severity of the ULPs, and high-level officials' anti-union activity in agreeing with the Board that traditional remedies could not ensure a fair election.  One interesting issue in the case that the court did not address was the Board's reliance on ULPs committed in Mexico and whether the Board had jurisdiction over those actions.  According to the court, the foreign conduct wasn't necessary to support the order in the cases.  However, the question of the Board's ability to consider or govern the foreign activities of U.S. employers and employees is a serious one.  The Board and courts have already begun struggling with the issue and its only likely to become more relevant as the economy becomes increasingly global in nature.


November 20, 2007 in Labor Law | Permalink | Comments (1) | TrackBack (0)