The federal government has recommended that the Court grant certiorari in No. 06-923, MetLife v. Glenn, limited to the question presented of whether an ERISA plan administrator that both evaluates and pays claims operates under a conflict of interest that must be weighed on judicial review of benefit determinations. The government also recommended the Court direct the parties to address how courts should weigh such conflicts of interest in reviewing the discretionary benefit determination of a dual-role administrator.
January 5, 2008
Top-5 International Employment & Labor Law SSRN Downloads
- Simon Deakin, Priya Lele, & Mathias M. Siems, The Evolution of Labour Law: Calibrating and Comparing Regulatory Regimes (59).
- Ying Ge, What Do Unions Do in China? (31).
- Vicki Schultz, Sex and Work (21).
- Michael J. Zimmer (photo above), Decent Work with a Living Wage (15).
- Marie-Ange Moreau & Maria Esther Blas-Lopez, Trade Unions in the EU Facing Global Companies: Legal Obstacles and Innovations (13).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Stephen F. Diamond, Legal Implications of Proposed GM/UAW VEBA (221).
- Jie Cai (left) & Ralph A. Walkling (right), Shareholders' Say on Pay: Does It Create Value? (67).
- Guy Davidov, The (Changing?) Idea of Labour Law (66).
- Brian Kanner, Reservists Are Like Pregnant Women: A Fertile Battleground for a Reinterpretation of USERRA (61).
- Michael J. Hussey, Has Congress Stopped Executives from Raiding the Bank? A Critical Analysis of I.R.C. Section 409A (53).
January 4, 2008
Sting Gets Stung . . .
. . . for unfair dismissal and sex discrimination. His former cook claimed Sting and his wife verbally abused her and refused to reinstate her after a maternity leave. See pjhlaw to upload the appellate decision.
Maternal Profiling . . .
. . . is employment discrimination against a woman who has, is believed to have now, or is expected to have in the future, children. For more:
- Maternal Profiling Enters the Lexicon.
- Selected Reading on Gender Discrimination Issues.
- "Maternal Profiling" Listed as Buzzword of 2007.
- Pregnancy Discrimination and Maternal Profiling.
- Maternal Profiling: A New York Times Buzzword.
January 3, 2008
Collective Bargaining in Australia
Shae McCrystal (Sydney Law School) has just posted on SSRN a trio of articles on collective bargaining Down Under:
- Collective Bargaining and the Trade Practices Act: The Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth), 20 Australian J. Labour L. 207 (2007). In December 2006, the Australian federal Parliament passed the Trade Practices Legislation Amendment Act (No 1) which was designed to make it easier for small businesses to form collectives and engage in collective bargaining with larger suppliers or purchasers of their goods or services. This article reviews those changes, with a particular emphasis on whether or not the changes make it easier for groups of independent contractors to access collective bargaining. The article examines the changes to the process for bargaining and the competition law principles involved in a collective bargaining notification. The article concludes that there are a number of problems with the provisions in practice which will undermine the goals of the Act.
- Collective Bargaining by Independent Contractors: Challenges from Labour Law, 20 Australian J. Labour L. 1 (2007). Collective bargaining by small business actors, including independent contractors, is subject to the anti-competitive conduct provisions in Part IV of the Trade Practices Act 1974 (Cth) (TPA). The Australian Competition and Consumer Commission can authorise the pursuit of conduct that would otherwise breach Part IV, but the process is lengthy and difficult. This article examines suggested changes to the authorisation process that would institute `collective bargaining notices' for small business actors. The proposed changes were embodied in a Bill introduced into Federal Parliament to amend the TPA in 2005 but which subsequently failed to be enacted. The article discusses the content of the proposed changes and explores the `traps' lying in the common law (breach of contract, restraint of trade, economic torts) and in the TPA (secondary boycotts) that were not adequately addressed by the proposed collective bargaining notice system. The article argues that common law and TPA challenges to employee collective bargaining remain relevant for independent contractor bargaining. In order to provide meaningful access to collective bargaining for non employee actors, any changes to the TPA must address these alternate areas of potential liability.
- Smothering the Right to Strike: Work Choices and Industrial Action, 19 Australian J. Labour L. 198 (2007). This article examines the recent changes to the federal legal regime that controls the taking of protected industrial action in Australia. It considers the impact of both the Building and Construction Industry Improvement Act 2005 (Cth) and the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The article provides an overview of the restrictions now faced by federal system employees and unions that wish to engage in protected industrial action. This includes the imposition of secret ballots, restrictions on the level and content of bargaining and the removal of the discretion of the Australian Industrial Relations Commission in decision making. The article concludes that the Work Choices changes represent the most fundamental attack on the right to strike in Australia since its introduction in 1993, smothering the ability of employees and trade unions to take strike action in support of free collective bargaining.
BE&K Guidance Memo
General Counsel Meisburg has released a guidance memorandum for handling BE&K cases. BE&K was the Supreme Court case limiting the NLRB's ability to find that a retaliatory lawsuit was an unfair labor practice. On remand, the Board ruled that "the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of whether the lawsuit is ongoing or completed, and regardless of the motive for initiating the lawsuit" (see here for our earlier post on this decision). Meisburg's guidance on these cases states:
First, claims that are novel and unsupported by existing precedent may nevertheless be reasonably based if they raise a "reasonable argument for the extension of existing law" or involve an area of law that is not settled. . . .
Second, the Board's inquiry into factual or legal claims or theories as part of its "reasonably based" analysis is generally limited to whether they are "frivolous" or "plainly foreclosed.". . .
Third, as under Bill Johnson's, survival of a motion for summary judgment generally indicates that a lawsuit should be deemed reasonably based. . . . Finally, a lawsuit can be considered reasonably based even where it is dismissed on summary judgment,particularly if it involves an area of the law that is unsettled. . . .
When a Region receives a charge alleging that a lawsuit is unlawful, it should initially investigate whether the suit is reasonably based.43 If the Region concludes that the suit is reasonably based, it should dismiss the charge, absent withdrawal. If the Region determines that the lawsuit is baseless, it should fully investigate the evidence that the suit was brought with a retaliatory motive. . . . The Region should then submit the case to the Division of Advice with a reasoned analysis supporting its conclusion as to why the lawsuit is baseless and its recommendation on the sufficiency of the evidence of retaliatory motive.
Not much to comment on here. After the Supreme Court and Board spoke on this issue, there's not much else for the General Counsel to do. However, I will raise one issue that I think may become a big deal soon: whether calling the police is given BE&K protection. The Board's Division of Advice has taken different stands on this question, although for several years now it has taken the position that calling the police is considered a First Amendment petition for government redress, which is the basis for BE&K protection (I think it still follows this, but I'm not sure). That could be significant in solicitation cases, because employers often call the police, which the Board used to consider as a possible (I repeat, possible) ULP.
Predictions for Auto-Enrollment in 401(k)s for 2008
Jerry Kalish of the Retirement Plan Blog, following up on some of my prognostications for 2008, points out another development that will almost definitely be part of the pension and benefit world this year: 401(k) automatic enrollments:
[L]et me add one more trend for 2008 that I consider an easy prediction to make: more employers adding auto-enrollment for 401(k) plans. The impetus for which is, of course, coming from the Pension Protection Act of 2006. Here are some of the early returns:
- Schwab reports that more than 20% of its Retirement Plan Services clients now automatically enroll employees into a 401(k) plan (a four-fold increase from two years ago).
- New York Life found that 32% of its 401(k) plan clients had adopted automatic enrollment as of September 30, 2007, up from 18% on January 1, 2007.
- A recent Spectrum Group survey suggests that within two years, automatic enrollment will be in place at more than 80% of plans with $10 million or more in assets.
And how do employees feel about auto-enrollment? Very positively based on a recent survey by Retirement Made Simpler, a Washington, D.C.-based coalition that provides resources that help employers simplify the auto-enrollment process.
All this enrollment in 401(k)s is good for the retirement savings environment in the States, but will participants still be willing to be put enough away now, so they will have enough for retirement?
January 2, 2008
Santa Barbara News-Press Workers Victorious in Labor Dispute
Thanks to Patrick O'Donnell for pointing out the victory of
the Santa Barbara News-Press workers in their hearing before a Adminstrative
Law Judge. The LA Times article can be found here.
And a popular local blogger (a law prof in town) can be heard on the issue here: http://craigsmithsblog.blogspot.com/
Our previous coverage of this writer dispute can be found here.
Paul and I will be available at the AALS Open Blogger Meetup Thursday, January 3, 10:00-11:00 (note the time change), at the CALI booth in the Exhibit Hall. Gene Koo explains this as a "casual meeting space where [bloggers] can meet up with readers to share ideas. Chairs, sofas, and cool vibe included." Thanks to CALI and the Berkman Center for hosting us, and to Gene for organizing it. Here's the complete schedule:
Thursday, Jan. 3
- 10am -- Conglomerate (Victor Fleicher and Gordon Smith)
- 11am -- Workplace Prof Blog (Rick Bales and Paul Secunda)
- 12pm -- Blogger Luncheon
- 3pm -- White Collar Crime Prof Blog (Ellen Podgor, Peter Henning)
- ??? -- TaxProf (Paul Caron)
- 9pm -- Blogger Happy Hour at the Sheraton Hotel library bar (not sponsored by us)
Fri, Jan 4
- 9am -- Mitch Rubinstein (Adjunct Prof blog)
- 1pm -- Jim Milles
Hope to see you there!
From Evil HR Lady:
- People are different.
- We should be polite to people--even those who look/talk/dress/act differently than we do.
- Jokes about race/gender/religion/sexual anything are not appropriate for the workplace. Save them for your friends and family, not your coworkers.
- Remember, that when you are with your co-workers or boss, even if it's at happy hour after work, you are still at work. If you are at the grocery store and you run into your co-worker, you are immediately at work.
- If someone makes a comment that insults your race/gender/origin/hairstyle/significant other/religion say to them seriously, "I found that comment offensive." If they don't know you find something offensive, can you really expect them to change their behavior?
- If you say something that you don't mean to be offensive and find out someone is offended, please apologize and don't do it again. I don't care that your co-worker is over sensitive and that joke about how many people of [ethnic origin] it takes to change a light bulb is really, really, funny and this is the only person in the planet that finds this joke offensive, apologize and don't tell it again.
- Stop being so darn sensitive. Assume that people are not racist/sexist at heart and that their offensive statements are without malice.
- There is no such thing as a "diverse" candidate. There can be a diverse slate of candidates, which would mean you have a bunch of candidates with different backgrounds. There can be a candidate which would help you achieve your affirmative action goals, but there is not a "diverse" candidate. So, stop saying that.
- Remember point 2? We need to be polite to everyone.
- Leave dating out of the office. It only results in problems (and, well, a few happily ever afters, but boy the potential problems are huge and I am in HR and I do worry about such things).
December 31, 2007
Letterman Inks Deal With Writers
As we noted earlier, David Letterman was trying to reach an independent deal with the striking writers--a possibility that existed because he owned his own show. Letterman was ultimately successful and his writers will be back to work tomorrow (Wednesday). Other talk shows are also returning to air soon, including those hosted by Jay Leno, Conan O'Brien, Jimmy Kimmel, Carson Daly, Jon Stewart, and Stephen Colbert. Yet those shows will be without striking writers. Some reports have stated that the networks (or at least NBC) told those shows that if they didn't go back on air, many non-writer employees would be fired, thereby placing some of the stars in a difficult position.
Details on the Letterman deal have not emerged, but the show has essentially said that they gave the writers what they were asking for, which wasn't very much. This fits my understanding of the dispute, which seems not to be about any significant amount of money. The writers are asking for a percentage of revenue that may come from the Internet and other digital sources, much like they do from more traditional sources. The studios are objecting, in part because they can't predict what will happen. But, isn't that what a percentage takes into account? If there's nothing, the studios don't have to pay anything more. If significant revenues eventually occur, they would have to pay--but why shouldn't they? This seems much more of a power play than anything related to studios bottom-line, a story that is quite familiar to those of us who have practiced in this area.
Yet Another ERISA Case Coming to Supreme Court?
Secunda To Marquette
Please join me in congratulating our own Paul Secunda, who has just accepted a teaching offer from Marquette University Law School. Paul will be starting there in fall 2008. Paul is a prodigious scholar, a fantastic colleague, and, of course, a master blogger. Catch him at the Marquette Martini Party at AALS and wish him well.
Paul currently is the Jessie D. Puckett, Jr. Lecturer and Assistant Professor of Law at the University of Mississippi School of Law. He joined Ole Miss in 2002. He teaches employment law, employment discrimination law, employee benefits, labor law, civil procedure, school law, higher education law, and special education law.
Paul's recent articles appear in the UCLA Law Review, Wisconsin Law Review, Colorado Law Review, U.C. Davis Law Review, Florida State University Law Review, Villanova Law Review, Kentucky Law Review, Duke Journal of Gender Law & Policy, and the Comparative Labor Law & Policy Journal. He is also the author, along with yours truly and Jeff Hirsch, of Understanding Employment Law, and, along with Sam Estreicher, of the forthcoming case book, Global Issues in Employee Benefits Law.
His legal scholarship primarily focuses on the civil liberties and civil rights of employees, with a focus on public employee speech, privacy, and associational issues. He has also written on innovative remedial approaches to group employment discrimination claims and the dynamics of administrative agency adjudication in the labor law context. His current project concerns the lack of employee benefit protection for employee participants under ERISA’s remedial and preemption scheme.
Paul is the current national Chair of the AALS Section on Employment Discrimination Law. He co-edits, again with yours truly and Jeffrey Hirsch, the Workplace Prof Blog. He moderates the empdiscr listserv, the AALS-sponsored email discussion group of employment discrimination law professors in the United States. Professor Secunda is also a Research Fellow at the NYU School of Law's Center for Labor and Employment Law.
Professor Secunda serves as a special education mediator for the State of Mississippi's Office of Special Education and as a public arbitrator for FINRA. He is also a frequent commentator on labor and employment law issues in the national media and has written columns for the National Law Journal and Legal Times.
Levitz Withdrawal of Recognition Standard Upheld
Thanks to Mitch Rubinstein at Adjunct Prof Law Blog for bringing to my attention the fact that the D.C. Circuit has upheld the Board's Levitz Furniture withdrawal of recognition standard:
In Levitz, the Board held that an employer can lawfully withdraw recognition only if it establishes that the union actually lost its majority status. A good faith doubt will not suffice. What this case adds is that this standard must be met on the day the employer withdrew recognition and not by "after the fact evidence". Thus, the employer was found to have committed a ULP by withdrawing recognition in that the petition it had was signed by less than a majority of unit employees.
The case is Highlands Hospital Corp. v. NLRB, ___F.3d___(D.C. Cir. Nov. 30, 2007).
This is important because before the expiration of his term, Chairman Battista was making sounds that he disfavored the Levitz standard. Labor law buffs will remember that Levitz was the Clinton Board's response to the Supreme Court's Allentown Mack decision.
FMLA Expansion Hits Snag
President Bush's pocket veto on Friday of the defense spending bill ensnared a bi-partisan proposal to expand FMLA benefits for military families. Bush objected to a provision in the bill that would have exposed the Iraqi government to lawsuits seeking damages from the Saddam Hussein era. Daniel Schwartz, over at Connecticut Employment Law Blog, expects the FMLA extension to be worked out in January.
Sternlight Favors Arbitration!
Well, sort of. Jean Sternlight (UNLV), who has spent most of her academic career criticizing employment and consumer arbitration, has just posted on SSRN her article (forthcoming Nevada L.J.) In Defense of Mandatory Binding Arbitration (If Imposed on the Company). Here's the abstract:
Having spent much of her academic life battling companies' mandatory imposition of binding arbitration on consumers and employees, the author now switches gears. This Article contemplates whether mandatory binding arbitration is acceptable if imposed by the government on companies (governmental mandatory arbitration) rather than by companies on their employees and consumers (private mandatory arbitration). Specifically, the Article considers the possibility of statutes that would provide "little guys" (consumers and employees) with an opportunity to take their disputes to binding arbitration rather than litigation. If the "little guys" chose arbitration over litigation, post-dispute, companies would have to agree to such arbitration, and the results of the arbitration would then be binding on both "little guy" and company. If on the other hand the "little guys" preferred to litigate their disputes, they would reserve that right. After first examining the policy implications of this approach, and finding some reasons to favor the proposal, the Article next considers the constitutional arguments that would likely be raised in opposition to such statutes. Specifically, it considers the legitimacy of governmentally imposed mandatory arbitration in light of Article III, the Seventh Amendment, and the Due Process Clause. The Article finds that it may be possible to governmentally impose mandatory arbitration in some situations without violating the Constitution. Nonetheless, the Article concludes that trying to introduce such legislation is probably unwise, as a matter of realpolitik. At a minimum, however, the Article should discourage companies and their lobbyists from insisting, as they often do, that privately imposed binding arbitration is the best way to ensure "little guys" get access to arbitration. Instead, if such companies and lobbyists truly believe arbitration is better for little guys than litigation they should favor the governmental imposition of arbitration on companies, as discussed in this Article.
What's good for the goose is good for the gander.
December 30, 2007
2008 Workplace Trends
Workplace Trends for 2008 as reported by Kansas City.com:
Expect any substantive workplace regulatory changes to be put on hold pending the outcome of the presidential election. There’s not likely to be the political will to do anything but possibly a minor adjustment to the Family and Medical Leave Act . . . .
Expect a lot more talk about sustainability, LEED (Leadership in Energy and Environmental Design) construction and “reducing your carbon footprint.” . . . .
Expect more employers to create and push employees to take advantage of healthful lifestyle programs . . . .
Expect health-care insurance costs to continue to increase, and expect more small-business operators to say they can’t afford to subsidize it.
Similarly, expect more small businesses to look for ways to reduce the cost of benefits administration by turning to professional employer organizations. With PEOs, some businesses take advantage of economies of scale and relieve their human-resources staff of some duties.
Expect the long-predicted wave of baby-boomer retirements to gain steam.
These all sound right to me, and I would add that there will be more ERISA class actions by 401(k) account holders, more use of Voluntary Employee Benefit Associations (VEBAs) to deal with the growing problem of retiree health care, and there will be more emphasis on helping employees returning from military service.