May 3, 2008
Top-5 International Employment & Labor Law SSRN Downloads
- Sean Cooney, Sarah Biddulph, Ying Zhu, & Li Kungang, China's New Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC (97).
- Lauren Carasik, Think Glocal, Act Glocal: The Praxis of Social Justice Lawyering in a Global Era (73).
- Leticia Saucedo (photo above), A New "U": Organizing Victims and Protecting Immigrant Workers (52).
- Stefano Liebman, Multi-Stakeholders Approach to Corporate Governance and Labor Law: A Note on Corporate Social Responsibility (48).
- Aukje A.H. van Hoek, Transnational Corporate Social Responsibility: Some Issues with Regard to the Liability of European Corporations for Labour Law Infringements in the Countries of Establishment of Their Suppliers (32).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Lauren E. Willis (photo above), Against Financial Literacy Education (162).
- Yaniv Grinstein, David Weinbaum, & Nir Yehuda, Are Perks Excess? Evidence from the New Executive Compensation Disclosure Rules (149).
- Ian Hathaway & Sameer Khatiwada, Do Financial Education Programs Work (144).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (119).
- Oliver G. Spalt, Small Chances and Large Gains: Why Riskier Companies Grant More Employee Stock Options (101).
May 2, 2008
ABA Labor & Employment Technology Meetings
I'm currently in Chicago, where the ABA's Labor and Employment Section's Technology In the Practice and Workplace Committee is having its mid-winter meeting. The meeting is covering a lot of interesting issues, including those related to virtual worlds, international privacy concerns, electronic discovery and evidence at trial, document management, ethics, agency use of technology, and a discussion of the NLRB's recent Register-Guard decision (which I had the pleasure of speaking on with Sam Estreicher, Wayne Gold, and Marty Malin). The panels I saw were quite interesting and, in addition to more well-known practioners than I have space to list, include law professors Matt Bodie, Miriam Cherry, and Arthur Miller. Better yet--and what else would you expect from the Technology Committee--all the submitted papers, as well as the agenda and other info is available on-line.
Check it out!
Female Soldier Wins Silver Star and Is Removed from Combat
This story comes from the Washington Post, which has a video interview. Monica Brown is an 18-year-old medic who treated fellow soldiers under attack in a remote part of Afghanistan, using her body to shield them from further injuries from mortars, grenades, rifles, and their own exploding Humvee during the attack. She was the second woman since World War II to win the nation's third-highest combat medal.
The only problem is that the Army does not allow women in combat positions.
"We weren't supposed to take her out" on missions "but we had to because there was no other medic," said Lt. Martin Robbins, a platoon leader with Charlie Troop, 4th Squadron, 73rd Cavalry Regiment, whose men Brown saved. "By regulations you're not supposed to," he said, but Brown "was one of the guys, mixing it up, clearing rooms, doing everything that anybody else was doing."
In Afghanistan as well as Iraq, female soldiers are often tasked to work in all-male combat units -- not only for their skills but also for the culturally sensitive role of providing medical treatment for local women, as well as searching them and otherwise interacting with them. Such war-zone pragmatism is at odds with Army rules intended to bar women from units that engage in direct combat or collocate with combat forces.
A Rand report released last year concluded that "The current policy is not actionable . . .Crafted for a
linear battlefield," the policy does not conform to the nature of
warfare today. For example, it uses concepts such as "forward and well forward
[that] were generally acknowledged to be almost meaningless in the
In Iraq and Afghanistan, non-combat units in which women serve face many of the same threats that all-male combat arms units do. Those women are performing well, according to commanders. "Army personnel were consistent in their perception that a strict adherence to the Army policy would have negative implications" and that the policy should be revised or revoked. The authors of the Rand report agreed.
The Future of Labor & Employment Law
Katherine Stone (UCLA) has just posted on SSRN her chapter (forthcoming Dau-Schmidt, Harris, & Lobel, Encyclopedia of Labor & Employment Law & Economics) The Future of Labor and Employment Law in the United States. Here's the abstract:
There is a serious problem with the labor and employment law system in the United States today: Unions have declined to the point where they represent less than 8 per cent of the private sector workforce, employee wages have stagnated for more than three decades, employers are cutting back on workers' health insurance and pensions, and there is a dramatic growth in the numbers of the working poor. At the same time, there has been a rising chorus of complaints from labor scholars and activists that the labor law has become an obstacle to rather than a facilitator of workplace justice.
This essay offers an analytic understanding of the history of labor law to explain why the field of labor and employment law is in such dire straits. It contends that the labor and employment laws no longer provide redress for the most pressing problems of workers today. The changing nature of work has caused new problems to arise in the operation of the labor market, problems that call for new kinds of regulatory interventions. According to the author, there are two possible scenarios for the future of labor law. One scenario is that labor law will continue to atrophy, unions will continue to decline, and individual employment rights will be chipped away. The other scenario is that labor laws will evolve in a way that represents a marked break with the present in order to address the needs and concerns of individuals in the new workplace. The author discusses the prospect of chances such as (1) a collapse of the distinction between labor law and employment law; (2) an expanded use of legislation rather than collective bargaining to set employment conditions; (3) an expansion of collective bargaining to new groups, such as independent contractors, atypical workers, immigrants, unemployed workers, and geographically-defined groups; (4) a broadening the field of labor and employment law to include issues such as health care policy, training and education, welfare, intellectual property protection, pensions and social security, housing policy, and other areas of social law; and (5) the creation of a new type of social safety net to focus on the problem of transitions and gaps in people's labor market experiences.
This essay begins what I hope will be a far more expansive "big picture" perspective on the current status of labor and employment law. It sounds to me like a blueprint for her Guggenheim fellowship project.
Employment Discrimination as a Bar Topic?
Ellen Dannin (Penn St.) writes to tell us of a conversation she had recently with the Bar Examiners in Pennsylvania. The Pennsylvania bar exam, unlike most, tests employment discrimination. Dannin asked how it came about that employment discrimination came to be added. They said they understand that the mission of law schools is broader than just teaching to legal practice and were not trying to dictate what was taught. But they did want to send a message to the law schools about what matters for a modern practice and where more preparation might be needed.
Are you Allergic to Work or Is It Occupational Asthma?
I'm not, but Patty Mulcahy claims she is (via the NY Times):
FOR Patty Mulcahy, it began with itchy eyes. They started to water two years ago when renovation began on the Midtown office building where she was working as an assistant at a television network. By the fifth day, after 30,000 square feet of new carpeting had been glued in place, the redness and swelling became unbearable. She ended up in the emergency room . . . .
Over the next three months, she developed a bad cough. Doctors at first suspected pneumonia, but it worsened in spite of antibiotics. When she collapsed at her desk in October 2006, barely able to breathe, she learned she had what doctors call “occupational asthma.”
In other words, she was allergic to work . . . .
Occupational asthma alone is estimated to be responsible for 24.5 million missed workdays nationwide annually, said Dr. Karin Pacheco, an occupational medicine specialist at the National Jewish Medical and Research Center in Denver, which specializes in respiratory illness . . . .
The Occupational Safety and Health Administration (osha.gov) has guidelines for handling these and other substances, and masks, ventilation systems and exposure rotations go a long way toward reducing allergies at work. But some people suffer even with the best of practices.
Severe allergies fall under the Americans with Disabilities Act, which requires employers to make reasonable changes in the workplace to enable an employee to do the job. And allergies developed at work often fall under workers’ compensation laws. But both routes can be complex and capricious, and redress is often dependent on the attitude of the employer.
The story goes on to explain some stories where employees have sued for a less allergy-causing workplace, including this one:
Conflicts over work-related irritants and allergens can end up in court. Last July, Susan McBride, who works in the planning department of the City of Detroit, sued the city in United States District Court for violation of the Americans with Disabilities Act.
Ms. McBride, her lawsuit says, suffers from severe migraines, dizziness, nausea, earaches and sinus and breathing problems when exposed to strong scents, and she regularly became ill at work when a colleague arrived wearing perfume. The colleague refused to stop spritzing (though she did agree to unplug an air freshener) and the women’s bosses refused to ban scents in the office.
I can just she the workers' right camaign now: "Hell No! I Won't Stop Spritzing." And yes, I have suffered perfume and cologne attacks, unprovoked, in many different office and elevator environments.
More Women Join Pregnancy Discrimination Suit against Bloomberg
The New York times reports that 54 more women have joined a class action against the Bloomberg firm brought by the EEOC alleging pregnancy discrimination. The suit does not name Bloomberg (left) and most of the events happened after he left the firm.
The number of women involved is likely to grow, Raechel L. Adams, a lawyer for the Equal Employment Opportunity Commission, told Judge Loretta A. Preska. The commission has identified 478 women at the company who were on maternity leave at some point from 2002 to the present and is reaching out to them, she said. Judith Czelusniak, a spokeswoman for Bloomberg L.P., said that the company had more than 10,000 employees in 126 offices around the world and that fewer than two dozen employment lawsuits had been filed against it in the United States since its founding in 1981.
The women in the lawsuit uniformly report demotions, pay cuts, and hostility after they told the firm they were pregnant and after they took maternity leave.
Feuer on Glenn ERISA Case
What is the basic review standard if there is no conflict? Arbitrary and capricious, abuse of discretion, or reasonableness. Counsel for Glenn kept referring to reasonableness as illustrated in the blog. Counsel for Metropolitan Life kept referring to arbitrary and capricious, which he asserted was the same as abuse of discretion (pp. 54-55).
The readers of your blog may be interested in the attached abstract of my article, "When Does a Domestic Relations Order Determine the Disposition of ERISA Plan Benefits?," which appears in the current issue of the Compensation Journal . . . .
The article argues that if the plan criteria for benefit designations and revocations for an ERISA plan do not provide for compliance with a domestic relations order, such an order may not determine the disposition of ERISA plan benefits by the plan or the participant's designee under the plan criteria. For pension plans subject to the ERISA anti-alienation rules, the benefit criteria must provide for compliance with QDROS but with no other domestic relations orders. For life insurance plans and top-hat plans, domestic relations orders may not generally affect the disposition of ERISA plan benefits by the plan or by the participant's designee under the plan criteria.
The U.S. Supreme Court will decide in this term whether domestic relations orders other than QDROs may determine the disposition of the benefits under a pension plan subject to the ERISA anti-alienation rules. Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 497 F.3d 426 (5th Cir. 2007) cert. granted 2008 U.S. LEXIS 1291 (U.S. Feb. 19, 2008). The briefs from the petitioner, Kennedy are due [today].
Interesting stuff. Check out Albert's article.
Prof. v. Students, Parts I & II
First came word that UALR Law Professor Richard Peltz (left) has sued several black students for defamation, alleging "false allegations of racism." Here's the story from Arkansas Online and the New York Times.
I regret to inform you that I am pursuing a lawsuit in which I am accusing some of you (whom [sic] shall go unmentioned in this e-mail) of violating Title VII of [sic] anti-federal [sic] discrimination laws. I am also writing a book detailing my experiences as your instructor, which will "name names," so to speak. I have all of your evaluation [sic] and these will be reproduced in the book. Have a nice day.
The New York Daily News reports that
[r]ealizing that she cannot actually sue her students for employment discrimination, Venkatesan now says she will merely name them in her list of grievances in a suit she plans against Dartmouth.
According to the Dartmouth Review, Professor Venkatesan has left Dartmouth and now is a research assistant at Northwestern.
GINA Passes House, Goes to Pres
The Genetic Information Nondiscrimination Act (GINA) passed the House yesterday by a vote of 414-1. The bill now goes to President Bush for signature; he has said he will sign it. Here's a press release from the National Human Genome Research Institute.
N.Y. Judges in Slowdown to Protest Low Wages?
Thanks to Ariana Levinson (Brandeis/Louisville) for forwarding word that New York state courts may be engaged in a “slowdown” to protest low wages. Here’s an article from Law.com:
Chief Judge Judith S. Kaye [photo above] wrote New York Gov. David A. Paterson Tuesday to assure him that reports of judicial "slowdown" were “without basis.”
In addition, the court system's Advisory Committee on Judicial Ethics issued an opinion Monday determining that Kaye's recent lawsuit to compel an increase in judicial salaries does not require judges to recuse themselves, but they may do so as a matter of individual conscience.
On Monday, Paterson cautioned the state's judges against engaging in any tactic that would slow litigation in order to press their case for a raise. A day earlier The New York Post had reported that increasing numbers of judges, most of them upstate, were refusing to hear cases where law firms with state legislators as members are appearing before them.
On Getting Fired for Off-Duty Conduct
This article addresses the issue of termination of employment because of the conduct of the employee in her leisure time, in the light of the human right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of domestic courts and tribunals on the matter, which is based on a spatial conceptualisation of privacy, is flawed. Having analysed the reasons why the current interpretation of privacy is wanting, the paper suggests a fresh approach, which rests on the idea of domination that the employer can exercise on the employee. The paper's proposition is based on an interpretation of the right to privacy as a right to control information, rather than a right to act in spatial isolation. It argues that life after work may lead to lawful dismissal only if there is a clear and present impact or a high likelihood of such impact on employment, whilst a speculative and marginal danger does not suffice.
Although here in the States we don't have much of a "human right to private life," Virginia's common-sense approach nonetheless provides a useful framework for where the law -- and enlightened employers -- ought to be going. The key question, I think, is: "... and this affects you -- how?"
May 1, 2008
Petitioner's Brief in Crawford
The plaintiff in Crawford v. Metro. Gov't of Nashville has filed her brief in the Supreme Court. Several amicus briefs have also been filed in her support: the National Association of Employment Lawyers, the American Association of University Professors, the National Employment Law Project, and Public Justice; the United States; Ohio, 19 other states, and Puerto Rico; the National Women's Law Center; and the Leadership Conference on Civil Rights and the Leadership Conference on Civil Rights Education Fund.
This case concerns whether an employer can retaliate against an employee for participating in an internal investigation into sexual harassment. The briefs all raise the same issues for the most part: the plain language of Title VII prohibits retaliation for this conduct, and to allow retaliation in this circumstance would completely frustrate the operation of Title VII.
This latter claim is particularly forceful in the context of sexual harassment, where an employer has an affirmative defense if it effectively prevents or remedies the harassment. If employers can retaliate against employees who participate in an investigation of alleged harassment, employees will no longer cooperate. It seems that one of two things would happen in that instance. The first possibility is that employers will not be able to prevent or remedy harassment because of that lack of cooperation, the facts will come out during the EEOC investigation or in preparation for trial (conduct which would be protected from retaliation), and the employer will have lost the defense because its efforts were ineffective. In other words, the affirmative defense would become useless. The second possibility is that when employer investigations uncover nothing because of the lack of cooperation and employers do nothing to prevent or remedy the harassment, courts will nonetheless allow them the defense, reasoning that the employer acted reasonably in the face of the lack of cooperation or perhaps that the plaintiff unreasonably failed to take advantage of the systems in place. This alternative would make Title VII completely ineffective. Employers could provide for empty internal investigations, knowing there will be no cooperation, and then completely avoid liability, reaping the rewards of the threat of retaliation.
Either way, it's hard to believe that this is what Congress intended.
Happy May Day, Workers Everywhere!
I'll leave it to the good people at Crooked Timber to explain the significance of May Day 2008:
[C]elebrating May Day in the United States remained a pretty good sign that you were on the political margins. That started to change two years ago. Turnout was lower in 2007. But it’s a good sign when the website of the AFL-CIO’s Washington, DC Metro Council runs an announcement for [today]’s protests . . . .
My digital penpal John V. Burke has been sending info about how the dockworkers are going to shut down all West Coast ports on Thursday to protest the war. Postal workers in New York and San Francisco have expressed support for them, and port truck drivers are calling for a day of protest against fuel prices.This counts for a lot more than the reclaiming of the original Labor Day. (A holiday that began as commemoration of an event in American labor history, no less.)
I'm pretty sure that all these proposed collective actions will
not come to pass (see here), but regardless and it is great to see people again taking another day out of the year to celebrate the worker in all of his and her glory.
And if you are not one for May Day, there is always Loyalty Day (hey, I thought McCarthyism was dead?).
Love and Marriage
Thanks to Dennis Nolan for flagging (via Daily Labor Report) Ellis v. United Parcel Service, Inc., a Seventh Circuit decision affirming summary judgment for UPS. A black manager claimed UPS fired him for dating a white employee. UPS said it fired him pursuant to a rule forbidding managers from dating hourly employees. The court declined to rule on whether firing an employee for involvement in an inter-racial relationship would violate Title VII, holding instead that the manager's failure to produce evidence that this had occurred warranted summary judgment. However, the court noted that the manager,
[a]fter 21 years with the company, met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That’s a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn’t seem quite right about that.
Sexual Harassment Through Administering Forced Female Hormones?
Yeah, apparently the EEOC didn't buy it either:
The Federal Equal Employment Opportunity Commission has decided to close its investigation into charges made by a former junior trader at SAC Capital alleging that his supervisor had sexually assaulted him and forced him to take female hormones.
The charges were filed in a discrimination lawsuit by former SAC trader Andrew Tong against his supervisor, former star trader Ping Jiang and SAC Capital, the big hedge fund. They included allegations that Jiang, who has since left the firm, sexually assaulted Tong and forced him to take female hormones which led to Tong wearing women’s clothing.
Hey, if the EEOC is wrong and the allegations do turn out to be true, I think we can safely nominate this case as one of the most bizarre for an employment discrimination case this year.
Other nominations are welcome as always.
April 30, 2008
American Axle Strike
The Washington Post has an interesting article on an employer that has gone from hero to goat in the eyes of its employees:
American Axle and Manufacturing employees viewed their boss Richard E. Dauch as a hero. He bet against the odds when he led a group of investors who bought five decrepit auto parts plants 14 years ago. An outspoken champion of American manufacturing, he backed his words by pouring $3 billion into modernizing the old factories. The strapping Dauch often walked the assembly line, stopping to arm-wrestle employees or to ask about their children.
But times are changing, and Dauch is reneging on a critical part of the wager. The America-first chief executive says he can no longer afford the $73 an hour his employees cost. Without worker concessions, he said American Axle's five major U.S plants could be forced to close. His employees aren't buying it. They walked out Feb. 26 after rejecting the company's demands that the union said would cut wages in half. The job action has idled not only the 3,650 striking employees but also tens of thousands of workers in related industries. . . .
For years, Dauch told his workers that if they embraced technology and were dedicated to making better axles, they would prosper with the company. By most every measure, American Axle has made good products. It invested substantial sums in worker training and new manufacturing systems. Orders poured in to make parts for sport-utility vehicles and pickup trucks that provide the bulk of its business. Workers did well, too, averaging $28 an hour in wages, with generous benefits.
But as SUV sales have fallen, even Dauch could not continue business the same way in the face of competitors who pay their workers far less for the same work. Two of Dauch's largest U.S. competitors that fell into bankruptcy, Delphi and Dana, have negotiated labor agreements that are less than half as costly as Americans Axle's, according to the company. Meanwhile, foreign firms that operate in the United States, including Bharat Forge, have far cheaper labor deals. Auto parts plants overseas have even lower labor costs.
The strikers see the job action as a last stand for the kind of factory wages that have supported the middle-class lifestyles of millions of manufacturing workers. Some have lashed out against free trade in response to the company's threat to move work out of the country to save money. If a profitable company refuses to maintain their wages, the workers ask, who will?
That final question pretty well sums up the union's position, although it ignores the fact that a company may be profitable in the short-run, but still be threatened in the long-run if its competitors are able to operate with significantly lower costs. In the end, however, much of this dispute appears to revolve around exactly what American Axle's costs look like, with the union disputing the $73 and hour number among others. Nothing like a strike to test each party's contentions, so we'll see what happens.
Hey, Did Easterbrook Read My Glenn ERISA Analysis?
Consider his lack of interest (pun intended) in the structural conflict of interest argument at stake in Metlife v. Glenn in this case, Williams v. The Interpublic Severance Pay Plan, 07-3146 (7th Cir. Apr. 29, 2008):
Williams contends nonetheless that we should review the decision de novo because the Plan is unfunded . . . .
This circuit has held otherwise, Perlman v. Swiss Bank Corp., 195 F.3d 975 (7th Cir. 1999), for three principal reasons. First, Firestone makes the standard of review a matter of contract. By using particular language, the plan’s sponsors can require deferential review. Trust law honors rather than overrides express contractual language specifying a trustee’s powers vis-à-vis a beneficiary. See generally John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L. J. 625 (1995). ERISA has some rules that displace contracts, but the degree of an administrator’s fact-finding and interpretive discretion is not among the subjects on which the law supersedes private choice.
Second, one must not anthropomorphize “the administrator.” Rarely is a pension or welfare plan’s administrator a person whose own welfare is at stake. Administrators commonly are large organizations, and the real people who make decisions on its behalf are no more interested in the outcome than federal judges are “interested” in the resolution of a tax case. True, judges’ salaries won’t be paid if taxes can’t be collected, but the effect of any one case on federal finances is so small that the judge does not care who prevails. Just so with the people who act on requests for pension or welfare benefits. Corporations often find it hard to align employees’ incentives with stockholders’ interests; they use stock options, bonuses,
piece rates, and other devices. Administrators usually don’t try. There would be a real conflict of interest if a given administrator put in place a method of linking decisionmakers’ income to the substance of their decisions. A quota system (“grant no more than 50% of all applications”) or some other means of tying the wages or promotion of staff to its disposition of claims could call for non-deferential judicial review. But Williams has not argued that anyone who handled his claim had any personal interest in the outcome.
Third, even if the employer made the decision directly, its financial interest would not necessarily imply a thumb on the scale. Interpublic adopted this Plan to attract and retain good workers. If it chisels on those benefits in the course of implementation, that would undermine its reputation for treating workers well. Unless a firm is on the verge of bankruptcy, that reputational interest leads it to make honest decisions on applications for health and
welfare benefits. See Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048 (7th Cir. 1987). Even though Campbell Mithun no longer has a Chicago office, employees in other cities may well learn whether the workers in Chicago have been treated well following the sale. Poor treatment of workers at a divested office would jeopardize Campbell Mithun’s ongoing business.
And just so were clear that Easterbrook may be unfamiliar with my oral argument analysis, but not the pending decision in Glenn:
The Supreme Court may decide this spring in MetLife v. Glenn, cert. granted, 128 S. Ct. 1117 (2008) (argued April 23, 2008), whether an administrator’s financial conflict of interest affects the standard of judicial review. We need not hold this appeal for the outcome of MetLife, however, because Williams loses even under de novo review.
Of course, Glenn is unlikely to say the new standard for dual-role insurers is de novo, but Easterbrook is apparently hedging his bets.
Hat Tip: Dana Muir
Public Employment On The Rise At All Levels
Federal, state and local governments are hiring new workers at the fastest pace in six years, helping offset job losses in the private sector.
Governments added 76,800 jobs in the first three months of 2008, the Bureau of Labor Statistics reports.
That's the biggest jump in first-quarter hiring since a boom in 2002 that followed the 9/11 terrorist attacks. By contrast, private companies collectively shed 286,000 workers in the first three months of 2008. That job loss has led many economists to declare the country is in a recession.
Job numbers for April, out Friday, will show if the trend is continuing. Some economists say a government hiring binge could soften a recession in the short term.
Hey, at least on the federal level (the federal government increased its workforce by 13,800 in the first three months of 2008), I thought Republican administrations were about smaller government? Probably just doing its best to fight the recession it created . . . .