Saturday, January 12, 2008

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation/Pension SSRN Downloads

Thursday, January 10, 2008

Employment Retaliation Claims and the Supreme Court

4united_states_supreme_court_112904 Apparently, the United States Supreme Court might not be quite done with considering employment retaliation issues. Even after the much-watched Burlington Northern decision of two terms ago, the court is still set to consider this term retaliation provisions for federal employees under the ADEA in Gomez-Perez v. Potter and race retaliation claims under Section 1981 in CBOCS West v. Humphries.

Now comes word that the Supreme Court is closely looking tomorrow at granting cert in yet another retaliation case: Crawford v. Metropolitan Government of Nashville.  The SG has already filed his views in this case, recommends cert, and sides with the plaintiff. SCOTUSBlog informs us that:

On Friday, the justices will consider whether to grant certiorari on a related question with a potentially sweeping impact for modern workplaces: whether the law’s “anti-retaliation” provision even applies to workers who voluntarily provide information during an internal office investigation of suspected discrimination or harassment.

Agreed, huge issue.  After all, what incentives will employees have to cooperate with employer's internal investigations if all that awaits them is standing in line for an unemployment check?


January 10, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Rosenberg on The Three Rules of the Tripartite Insurance Coverage Relationship

Insurancepolicy Roy Harmon of the Health Plan Law Blog brings to our attention a handy little guide that Stephen Rosenberg of the Boston ERISA and Insurance Litigation Blog has written on how defense counsel should defend insurers in health plan litigation:

The whole issue can really be boiled down to three handy rules of thumb. First, the defense counsel appointed by the insurer must focus only on defending the case as though the insured were his or her only client, and cannot muddle about between the insurer and the insured over any coverage issues that remain outstanding. Second, the insurer needs to retain separate lawyers, in the role of so-called coverage counsel, to take the factual information developed by defense counsel in defending the case and evaluate how it affects coverage. And third, an insured must remember that the defense counsel is solely going to defend the case, without regard to coverage disputes and is not looking out for the insured’s interests with regard to whether any recovery in the case will actually be covered; the insured has to instead hire independent coverage counsel of its own to take steps to parlay the evidence developed by the defense counsel into a commitment of coverage by the insurer.

Roy then goes on to point out that many defense attorneys don't understand these rules and concludes:

Having your insurance carrier provide a legal defense has its advantages and disadvantages. Employers should view the responsibility of understanding the conflicts that can arise as on their own watch. In many cases, the best approach will be to have regular corporate counsel advise of the specific issues that may be of concern.

Also to be considered in this conflict of interests area is the inherently conflicted state of dual role fiduciaries of employee benefit plan who must work simultaneously in the best interests of plan participants and the corporation and its shareholders.  I wrote about this issue a few years back in the John Marshall Law Review in Inherent Attorney Conflicts of Interest under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries.


January 10, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Bousquet on Higher Education and the Low-Wage Nation

Bousquet Marc Bousquet (Santa Clara-English) and his new book, How the University Works: Higher Education and the Low-Wage Nation is highlighted in today's Inside Higher Ed.

Some excerpts from the Inside Higher Ed article:

And while tenure may lessen the fervor of some critics, that hasn’t been the case with Bousquet. He’s just published How the University Works: Higher Education and the Low-Wage Nation (NYU Press), in which he takes an uncompromising look at the way colleges employ those who teach — and how many professors have done nothing as tenured positions have been replaced with adjunct slots.

In the book and in a blog by the same name, Bousquet mixes a history of the shifts in the academic job market over the last few decades, with in-depth looks at a few topics. One of them is a critique of “Prospects for Faculty in Arts and Sciences,” a 1989 report that predicted major shortages of faculty — especially in the humanities and social sciences — starting in the late 1990s. The analysis of the report reflects a central conviction of Bousquet’s book, which is that those who entered the job market in that era, only to find themselves without many opportunities, weren’t naïve idealists who shouldn’t have been surprised at the lack of opportunities for literature professors. Rather, he argues, many of them were led to believe by some of higher education’s top leaders (the report was co-written by the then-head of the Andrew W. Mellon Foundation and was endorsed by the likes of Derek Bok) that good jobs were to be plentiful.

Marina Angel at Temple has highlighted similar concerns for women in the legal academy. Clearly, law deans and others legal administrators need to place under scrutiny the emerging majority of contingent law professors and ask in a comprehensive manner what is to be done about it.


January 10, 2008 in Book Club | Permalink | Comments (1) | TrackBack (0)

The Labor Lawyer

Garrison Jcpettyg Fleischer_2 Stern_2 Cohen

Volume 23, Number 2, Fall 2007

  • Brian R. Garrison (left) & Joseph C. Pettygrove (second), Yes, No, and Maybe: The Implications of Federal Circuit Court Split Over Union-Friendly State and Local ‘Neutrality’ Laws, p. 121.
  • Charles H. Fleischer (third), Validity and Effect of Will-Not-Reapply Covenants in Employment Discrimination Settlement Agreements, p. 151.
  • Theodore A. Olsen, The Dangers of E-Mail Recruiting: One Person’s ‘Sales Pitch’ is Another Person’s ‘Spam’, p. 163.
  • Stephen B. Stern (fourth) & Jonathan Cohen (right), Pleading a Sarbanes-Oxley Act Whistleblower Claim: What is Required to Survive?, p. 191.

January 10, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 9, 2008

Flash: 9th Cir. Overturns San Francisco ERISA Preemption Decision

California Count me surprised (and 3-0 to boot!) and look definitely for en banc review (via San Francisco Chronicle):

The city of San Francisco won approval from a federal appeals court today to begin providing health coverage to all uninsured adult residents under a new ordinance and require employers to share the cost.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals granted the city's request to suspend a federal judge's Dec. 26 ruling striking down a key funding provision of the ordinance. That provision requires large and medium-size companies to offer insurance to their workers or pay a fee to the city.

The appeals court said the city was likely to prove that U.S. District Judge Jeffrey White was wrong when he ruled that local governments lack the power to force employers to contribute to a health care program. Today's decision allows the city to enforce the entire ordinance while it appeals White's decision.

I like the result because it will help give health insurance to the uninsured, but I think from my initial analysis that the decision is flawed.  A mandate is a mandate is a mandate and such mandates, under ERISA preemption precedent, cause a significant impact on the management and administration of employment benefit plans, even if not solely on employee benefit plans.

This is clearly not the last we have heard of this case.

The decision is Golden Gate Restaurant Assoc.v. City and County of San Francisco, 07-17370 (9th Cir. Jan. 9, 2008). Also note the panel: GOODWIN, REINHARDT, and W. FLETCHER - a pretty liberal bench.

Hat Tip: Ben Arnoldy


January 9, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (1)

Oral Argument Transcript Analysis of Kentucky Retirement Systems v. EEOC

4united_states_supreme_court_112904 The United States Supreme Court heard oral arguments this morning in the case of Kentucky Retirement Systems v. EEOC, a case about the intersection of age discrimination law and public pension plans.

Rather than reinvent the wheel on the facts, here is brief backgrounder by the ACS Blog:

Kentucky drew the ire of the EEOC because its pension program for workers in hazardous state jobs, such as fire or police protection, provides younger workers with a richer disability retirement package than it provides for their older counterparts. Under the plan, hazardous duty workers under the age of 55 – the age at which Kentucky employees become eligible for retirement – if forced to retire because of a disability, are eligible for a special enhanced package of benefits. In contrast, disabled hazardous duty workers over 55 are eligible only for “normal” retirement benefits. In addition, the Kentucky formula uses age as an explicit criterion for determining individual benefit levels for eligible disability retirees in ways that produce better results for younger retirees than similarly situated older colleagues.

In its defense, Kentucky insists that its two-tiered, age-based design was not driven by the sort of invidious stereotypical assumptions about older workers that the architects of the ADEA aimed to banish from American workplaces. Rather, Kentucky explains, their plan aims at giving younger disabled employees an appropriate “boost” by ensuring that their benefits approach or equal the levels for which they would have been eligible, had they been able to work a full career until normal retirement age. The age-discriminatory formula is justified, the state contends, because older workers, having been in the workforce longer, may reasonably be expected to have accumulated additional resources, whereas their younger colleagues would not have had that chance.

In response, the Solicitor General’s brief for the EEOC – echoing an en banc Sixth Circuit Court of Appeals decision (467 F.3d 571) in the EEOC’s favor – spotlighted a 1991 amendment in which Congress acted to clarify that discrimination in the provision of fringe benefits like pensions was covered by the Act (overruling a Supreme Court decision to the contrary). In this revision, Congress spelled out a particular, narrow, exception: it permitted differential treatment of fringe benefits for older and younger workers if necessary to equalize the amount of actual payments or the actual costs incurred. The government stressed, “Congress wisely chose a regime of specific, objective defenses over a regime in which certain ‘non-malevolent motives’ for facially discriminatory laws would preclude the establishment of a prima facie case.”

So on to an analysis of the oral argument transcript which should certainly interest millions of baby boomers in the public sector:

(1)  Justice Breyer, not surprisingly, goes right for the jugular and is clearly siding with the EEOC/SG on this one:

Now, this individual says, I was working there after the age of 55, I only worked for 14 years, now I become disabled. If I become disabled before I was 55, let's say I had six years to go, they would give me six years extra. But because I was disabled after I'm 55, I get nothing extra. Nothing is imputed. Is that right?


See, that's why I think the result in this case is just terrible. I think it takes disabled people and cuts their benefits with no benefit. I cannot believe for two minutes that Congress would have intended that result. But the reason I asked you the question was I want you to tell me how to get to that result under this statute.

Similarly, the SG states:

If they are going to give the 45-year-old with 10 years of service 10 years of credit, they have to give the 55-year-old 10 years of service --with 10 years of service 10 years of credit, again, unless they can establish the cost-justification defense.


We are simply saying the method of determining how many years will be imputed, absent an affirmative defense, can't be dependent on the employee's age.

Justice Ginsburg also clearly sees the case this way. In fact, she schools counsel on the legislative history of Title VII. No surprise there.

(2)   But Kentucky's advocate is game: "The purpose of the plan for disability purposes, which is not a separate plan, it's simply a means of getting one to normal retirement who is not otherwise eligible."

(3)  Justice Kennedy, always an important vote, seems to be supportive of Breyer (not good for Kentucky):

You began by saying something to the effect that this does not discriminate on the basis of age. It does. Age is the explicit factor that the statute uses in order to answer Justice Breyer's question. And the Act does not prohibit the use of age in all circumstances to which it applies, but it does -- the Act goes on to prohibit the use of age in some of the circumstances. And one of those circumstances is the hypothetical of the 55-plus-year-old person used in Justice Breyer's statement and example.


I think this does explicitly discriminate based on age as to some people, and you're telling me you don't want me to do that. But Suppose I don't agree with you. Is there some other way to reach the result?

(4)   Justice Scalia comes to the side of the employer: "You're saying you're one step removed. You're making your determination on the basis of eligibility for retirement, which in turn is based on age." And Chief Jusice Roberts chimes in that he agrees with this assessment. Justice Alito is also on board:

Because when someone is over the retirement age, it's rather hard to see how many years you would add on projecting how long that person would continue to work beyond the age of retirement eligibility.

And one can only imagine, so is the ever-silent Justice Thomas.

(5)  Justice Souter restates petitioner's argument:

And the tradeoff is because the 55-year-old retiree may get a benefit after very little work and very little risk, it is therefore fair and not a discrimination that on the average the windfall is less for that person by the imputation than the windfall to the person who retires on the basis of age 20.

(6)  Most interestingly, Justice Stevens is ambiguous about whether he agrees with Kentucky or if he is merely pointing out that implausibility of Kentucky's argument.  Consider this further exchange between Stevens and the SG:

JUSTICE STEVENS: It seems to me your argument boils down to the claim that people who have already reached -- become eligible for retirement by either age or period of service, the State has a duty to give them a chance to recover a disability benefit if they give a disability benefit to younger workers.
MR. STEWART: No. Our point is that they should use the same computation methodology for both categories of employees.
JUSTICE STEVENS: The computation is for a different purpose in that -- in -- for the younger workers the purpose is to make them eligible for retirement. For the older workers, they are already eligible for retirement.

I have to admit that after reading this transcript, my head was swimming with numbers and different scenarios and it really hurt.  In any event, this might be one of those cases in which the usual sides are not the same with Kennedy siding with the progressives and Stevens with the conservatives. If so, look for a 5-4 reversal in favor of Kentucky allowing it to continue this system for those who started in the system before 2004.

In practical effect, this may lead to the case being remanded back to the district court to determine whether Kentucky can meet the cost-justification defense under the ADEA.


January 9, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Health Care Reform Takes Center Stage

Medicalcare With the New Hampshire primary now recent history, there appears to be a lot of thoughtful discussion about which direction a new administration in 2009 should take the health care reform debate.

Take for instance this opinion piece by former Clinton Labor Law Secretary, Robert Reich, about the increasing case for universal health coverage in this country. He writes in today's Wall Street Journal (subscription required):

But instead of celebrating, the candidates and left-leaning pundits are squabbling over whether the plans should include so-called mandates that require everyone to purchase health insurance. Talk about self-inflicted wounds. Mandates are a sideshow, and fighting over them risks turning away voters from the main event . . . .

Given the myriad ways universal health insurance might otherwise be organized -- single payer, employer mandate, health-insurance vouchers, tax credits -- this Democratic consensus is striking. It also highlights the abject failure of Republicans to come up with any coherent plan . . . .

A mandate may not make much difference anyway. Columbia University professor Sherry Glied and her colleagues investigated health-insurance mandates now in place in Switzerland and the Netherlands. They report in the November-December issue of Health Affairs that mandates can, but don't always, increase coverage. Whether they do depends on the cost of complying with them and the penalties for not doing so. Overall, they found, the effects of mandates largely reinforced existing high levels of coverage. Switzerland now enjoys near-universal coverage, but this reflects only a tiny increase over the rate of coverage before it was mandated, when over 98% of population had mostly voluntary coverage.

It's expected that gloves will come off in the last months of a primary campaign. But by warring over mandates, Democrats are leading with their chins. It's the least important aspect of what they're offering. It's also, to many Americans, the least attractive because it conjures up a big government bullying people into doing what they'd rather not do.

What I find striking about Reich's piece is that it does not take seriously recent surveys that suggest that a majority of Americans are ready for a single payer system.  In a recent poll, 54% said that they consider themselves a supporter of a single-payer health care system, that is a national health plan financed by taxpayers in which all Americans would get their insurance from a single government plan. And 65% said that the United States should adopt a universal health insurance program in which everyone is covered under a program like Medicare that is run by the government and financed by taxpayers.

Finally, universal health coverage is only the first step in solving the health care debacle in this country. Consider the continuing lack of retiree health care that most employees will find themselves with in the coming decades given the astronomical costs of such coverage.


January 9, 2008 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Recently Published Scholarship


I inadvertently overlooked a couple of student comments earlier this week.  Both are well-written articles on very timely topics:

  • Kristen A. Williams (left), Employing Ex-Offenders: Shifting the Evaluation of Workplace Risks and Opportunities from Employers to Corrections, 55 UCLA L. Rev. 521 (2007) (states should (1) shift from employers to corrections departments risk-assessments related to ex-offenders, (2) forbid most discrimination against ex-offenders, and (3) limit employer liability for hiring ex-offenders).
  • Rachael M. Simon (right), Workers on the March: Work Stoppages, Public Rallies, and the National Labor Relations Act, 56 Catholic U. L. Rev. 1273 (2007) (arguing that attendance at immigration reform rallies is a protected activity under Section 7 of the NLRA, and that employer discipline based upon such attendance is an unfair labor practice).


January 9, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 8, 2008

Estreciher and Landsberg on Global Issues in Employment Discrimination Law

Estreicher_2 Landsberg2 Sticking with the Estreicher motif today, Sam's new case book with Brian Landsberg (Pacific-McGeorge) just came out: Global Issues in Employment Discrimination Law.

Here's the description:

This book is designed to facilitate the introduction of international, transnational, and comparative law issues into an employment discrimination course. The book is very accessible for law students (and their professors). The chapters can be used in any combination and in any order. The book can be assigned or recommended as optional reading to supplement a domestic-only course to advance the students’ understanding of their own system.

A little disclosure here: I am a big fan of this series on Global Issues as Sam and I are currently at work on a Global Issues in Employee Benefits Law.

Ordering information for the Employment Discrimination book can be found here.


January 8, 2008 in Book Club | Permalink | Comments (0) | TrackBack (0)

Estreicher & Yost Examine Employment Class Action Settlements

Estreicher Yost_3Samuel Estreicher (NYU) and Kristina Yost (Jones Day) have just posted on SSRN their article Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment.  Here's the abstract:

This paper represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue them on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are slated to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of certain "off the clock" wage-hour and ERISA claims, the average individual potential recovery found was not an insignificant amount, though still generally smaller than the average employment arbitration awards. This result calls into question the "negative value" justification for the claimed superiority of class action litigation.

Much work needs to be done to determine if these potential recoveries would be obtainable in individual litigation or arbitration, or whether there is something special about the class action vehicle that makes possible such potential recoveries. We would also need to account for a selection bias in class action cases - that plaintiff lawyers may under-report less favorable settlements and are highly selective in picking cases for class action treatment. If so, the characteristics of individual and class claims may differ in systematic ways. In the interim, our data shows that potential individual recoveries for many types of employment disputes are valuable enough to place in question the arguments that these are "negative value" cases that will be brought forward, if at all, only through the class action vehicle.

    This article is important because several courts recently have struck class-action bars from arbitration agreements.  Most of these cases are consumer cases in which individual damages are low and the number of claimants is high, such as the Illinois Supreme Court case from last year challenging Cingular's $150 termination fee on cell phone contracts (Kinkel v. Cingular Wireless LLC).  As Estreicher and Yost point out, however, many employment cases may not fit this  low-damage model.  I look forward to seeing more empirical work on this topic.


January 8, 2008 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Supreme Court Ready to Hear Public Employee Disability/ADEA Case Tomorrow

4united_states_supreme_court_112904 Just a reminder that oral argument in Kentucky Retirement System v. EEOC is scheduled for tomorrow afternoon.

CCH Workweek provides this preview:

The Supreme Court hears oral argument on Wednesday, January 9 in Kentucky Retirement Systems v EEOC (Docket No 06-1037). The High Court will consider "whether any use of age as a factor in a retirement plan is 'arbitrary' and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act." A divided en banc Sixth Circuit held the EEOC established a prima facie showing that a disability retirement benefits plan for state and county employees was facially discriminatory on the basis of age. The Supreme Court granted cert on September 25, 2007.

We will follow up with an analysis of the oral argument transcript in the next couple days.

Our previous coverage is here and here. Look for a Supreme Court reversal of the Sixth Circuit.


January 8, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: Focus on Disability

Sunstein Samaha_2 Smith Moberlym_2


  • Cass R. Sunstein, Cost-Benefit Analysis without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms, 74 U. Chi. L. Rev. 1895 (2007).
  • Adam M. Samaha, What Good is the Social Model of Disability?, 74 U. Chi. L. Rev. 1251 (2007).
  • Deirdre M. Smith, Who Says You're Disabled? The Role of Medical Evidence in the ADA  Definition of Disability, 82 Tulane L. Rev. 1 (2007).
  • Michael D. Moberly, The Disability History Mystery: Assessing the Employer's Reasonable Accommodation Obligation in "Record of Disability" Cases, 35 Pepperdine L. Rev. 1 (2007).


January 8, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2008

"The Wire" Misunderstands Public Sector Labor Law

634272_daniels_ep51_252In my humble opinion, the HBO series "The Wire" has been the best thing on TV in the past four years.  Relevant here, an overarching theme in the second season of "The Wire" focused on a union leader on the docks of Baltimore.  The show depicted the leader and his union in a thoughtful, complex, and nuanced manner:  it raised issues of union corruption but also portrayed sympathetically and accurately the struggles of working class folks faced with de-industrialization and loss of work.  I highly recommend it.

So I was looking foward to last night's season premiere of the fifth (and, sadly, final) season of "The Wire."  While it looks to be another great set of episodes, I feel it is my duty to point out the following serious mistake regarding U.S. labor labor law.  [Alert:  this doesn't spoil anything significant to the plot of the show].

In an early scene, members of a police department are complaining about budget cuts causing them various problems, including not being paid overtime properly.  While this situation is sadly realistic, one of the police officer characters then says, essentially:  "our union rep says we might have to take this to the NLRB."

But of course this was a police department, a public employer, and thus of course it wouldn't be the NLRB, because the NLRA only covers private sector employees.

The moral:  everyone should learn more about public sector labor relations.  And maybe stay away from drugs and drug dealers too, but at least as importantly, learn more about public sector labor relations.

--Joe Slater

January 7, 2008 in Public Employment Law | Permalink | Comments (5) | TrackBack (0)

Recently Published Scholarship

Merritt Katz_3 Levinson_2 Nahmod_2 Lee Shank_4


  • Deborah J. Merritt (left), Bias, the Brain, and Student Evaluations of Teaching, 82 St. John's L. Rev. 235 (2008).
  • Martin J. Katz (second), Reclaiming McDonnell Douglas, 83 Notre Dame L. Rev. 109 (2007).
  • Justin D. Levinson (third), Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007).
  • Sheldon H. Nhamod (fourth), Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 Richmond L. Rev. 561 (2008).
  • Konrad Lee (fifth), The Employees' Quest for Medical Record Privacy Under the Family and Medical Leave Act, XLI Suffolk U.L. Rev. 49 (2007).

Comments & Notes

  • Jonathan R. Shank (right), Retaliation in the Wake of Burlington Northern: Making the Case for an Updated Standard for Proving an Adverse Action in Massachusetts Under Chapter 151B, XLI Suffolk U.L. Rev. 217 (2007).

January 7, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Top Ten List for Striking Writers

LettermanAs only Letterman can (via

Striking television writers delivered David Letterman's Top 10 list, "Demands of the Striking Writers," on his show [last] Wednesday:

10. "Complimentary tote bag with next insulting contract offer" -- Tim Carvell, from "The Daily Show."

9. "No rollbacks in health benefits, so I can treat the hypothermia I caught on the picket lines" -- Laura Krafft, from "The Colbert Report."

8. "Full salary and benefits for my imaginary writing partner, Lester" -- Melissa Salmons, writer for daytime TV.

7. "Members of the AMPTP must explain what the hell AMPTP stands for" -- Warren Leight, writer for "Law & Order: Criminal Intent."

6. "No disciplinary action taken against any writer caught having inappropriate relationship with a copier" -- Jay Katsir, from "The Colbert Report."

5. "I'd like a date with a woman" -- Steve Bodow, from "The Daily Show."

4. "Hazard pay for breaking up fights on 'The View' " -- from writer and director Nora Ephron.

3. "I'm no accountant, but instead of us getting 4 cents for a $20 DVD, how about we get $20 for a 4-cent DVD?" -- Gina Johnfrido of "Law & Order."

2. "I don't have a joke. I just want to remind everyone that we're on strike, so none of us are responsible for this lame list" -- Chris Albers from Conan O'Brien's "Late Night."

1. "Producers must immediately remove their heads from their -----" -- author Alan Zweibel.



January 7, 2008 in Commentary | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Confirms that Undocumented Workers are Employees Under NLRA

Nlrb In a 2-1 decision (Agri Processor Co. v. NLRB), the D.C. Circuit has held that undocumented workers can still be classified as employees under the NLRA.  Following the Supreme Court's holding in Hoffman Plastics that undocumented workers are not entitled to backpay under the NLRA, it is no surprise that employers pushed the issue further.  But, as BNA's Daily Labor Report (subscription required) explains, the D.C. Circuit refused to go along:

A New York kosher meat company must recognize a United Food and Commercial Workers Union local as representative of its workers even though many of the workers are undocumented aliens . . . With all three members of the D.C. Circuit panel writing, Judge David S. Tatel wrote for the majority that Agri Processor Co. Inc. was required to bargain with the local, even though many of the employees were later discovered to be undocumented, because of the expansive definition of "employee" under the National Labor Relations Act.

 The majority found that while the IRCA may have made hiring an undocumented worker illegal, it did not necessarily mean that the NLRA's definition of "employee" had been amended. "[T]here is absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of 'employee' includes undocumented aliens," Tatel said. "Thus, the NLRA's plain language, as applied by the Supreme Court in Sure-Tan, continues to control after IRCA, as the Seventh, Ninth, and Eleventh Circuits have all held."

 [T]he majority also] said that despite changes to the status undocumented workers by IRCA, nothing in the legislative history indicated an intent to modify the NLRA. Instead, the D.C. Circuit pointed to two passages in legislative history that support an opposite conclusion--that labor rights were unaffected by the new law. Rejecting the company's argument that Congress intended to end job protections when it made it illegal to hire undocumented workers, the D.C. Circuit said "it is quite possible that even as Congress barred employers from hiring undocumented aliens, it still intended for the NLRA to apply to such aliens." . . . 

In a dissent, Judge Brett M. Kavanaugh argued that because the workers were not permitted to work legally under the Immigration Reform and Control Act passed in 1986, the U.S. Supreme Court's ruling in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) was outdated. While concurring with the majority, Judge Karen LeCraft Henderson called the requirement to bargain with illegal workers "somewhat peculiar" and agreed that Sure-Tan may be outdated, but still said it was up to the Supreme Court or Congress to alter the law.

I think the court got it right here.  Even the Supreme Court in Hoffman did not say that the undocumented workers at issue were not employees--that decision only limited the NLRB's remedial power.  Moreover, the vast majority of cases dealing with other statutes consider undocumented workers as employees; indeed, many of those statutes, such as the FLSA, have been interpreted to permit backpay notwithstanding Hoffman.  Finally, giving protection for undocumented workers is the better choice as a matter of policy.  One of the problems with Hoffman was the Court's failure to recognize that allowing employers to refuse to abide by workplace laws with respect to undocumented workers both undermines the goals of IRCA and hurts the rights of documented workers.  That ability makes undocumented labor cheaper than documented work and, given the near-total lack of enforcement of IRCA, employers would have a strong incentive to increase their use undocumented workers.


January 7, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Sunday, January 6, 2008

Writers Strike Deconstructed

Hollywood Paul Farhi, the Washington Post's entertainment reporter, has just written an article with a very informative description of the issues at stake in the writers strike:

If the two sides in the deadlocked writers' strike agree on anything, it could well be this: The outcome will likely determine how screenwriters and their studio bosses will divvy up the billion-dollar spoils of their business for decades to come.  By the platinum-plated standards of the TV and movie business, the dollars at stake over the next three years sound like mere popcorn money. The Writers Guild of America estimates that its last contract proposal, made in November, would cost Hollywood's networks and studios about $150 million through 2010 -- or less than the budget of a "Pirates of the Caribbean" sequel.

The two-month-old strike -- Hollywood's longest work stoppage in 20 years -- revolves around two questions that have long-term implications: What kinds of writers and programs should be covered by the guild's collective bargaining agreement; and how should writers be compensated when their creations are reused, especially in digital form?

The WGA represents 10,500 people who write scripts for sitcoms, dramas, talk shows and movies for major entertainment companies. Significantly, however, the guild does not represent other kinds of TV writers. Those who write for animated series, shape the story lines on reality shows and produce material exclusively for the companies' Web sites fall outside the guild's jurisdiction. The studios . . . have adamantly resisted the guild's attempt to organize these non-guild workers. Among the entertainment companies' concerns is that an enlarged Writers Guild membership would have even greater leverage, leaving the networks with few sources of original programming in the event of another writers' strike. . .

Because talks have been suspended since Dec. 7, no progress has been made on issues involving guild representation or compensation. In addition to receiving upfront compensation, TV writers receive fees known as residuals after a program is rebroadcast or resold. When a network reruns a show, for example, its writer is paid about $20,000, the WGA says. Writers also get residuals on the syndication of shows to local stations or cable networks and on the sale of DVDs. . . .  The writers are concerned that their traditional sources of compensation are threatened by changes in the entertainment industry. With a steady supply of reality programs available to the networks, scripted sitcoms and dramas aren't being repeated as often, cutting into writers' income . . . . Meanwhile, DVD sales are flattening because of such factors as market saturation and file-sharing.

Just as ominous from the writers' perspective is that they receive almost no residuals for material streamed over the Internet or on other digital platforms, such as PDAs and cellphones. Although the digital market is still relatively small -- the two sides even offer conflicting estimates on the market size -- writers fear that they will lose out on billions of dollars as digital programming booms. . . .  The studios have called the WGA's proposals for digital residuals excessive, contending that online video is a developing business that has unpredictable profit potential. The AMPTP's last proposal, in early December, called for paying writers an annual fee of $250 for each one-hour program streamed over the Internet, for example, as well as a small payment thereafter. The studios have offered to pay writers the same residual for downloaded content that they now pay for DVD sales.

Not good enough, say the writers, who are still bitter about deals the Writers Guild made with the companies two decades ago. The original formula for home-video residuals was established while the video market was developing in the mid-'80s, at a time when the studios said that the high cost of manufacturing cassettes eroded profits. For more than a decade, the guild has sought, and the studios have rejected, paying higher residuals on DVDs and home videos. . . .   The studios maintain that the original formula is fair, given that marketing and production costs have risen dramatically. The studios "never made a promise" to readjust the home-video residual formula, says one studio source, who asked not to be identified because of the sensitivity of the issue. The rate, he adds, "was negotiated in good faith."

Farhi also notes that both the writers and studios seem to be comfortable with the lines they've drawn in the sand, so this may go on for a while.  Get used to those reruns.


January 6, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

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