Saturday, May 31, 2008
Having grown up in Iowa, I can't help but pick up on stories from there. The NYT reports today on the effects of a job surplus and what that might foreshadow for the rest of the country:
As rising unemployment and layoffs beset workers around the country, Iowa faces a different problem: a surplus of jobs. Or to put it another way: a shortage of workers. A survey of companies by Iowa Workforce Development, a state agency, found as many as 48,000 job vacancies, in industries including financial services — Des Moines trails only Hartford as the nation’s insurance capital — health care and skilled manufacturing. One estimate projects the job surplus to reach 198,000 by 2014, with vacancies increasingly in professional positions. Greater Des Moines alone faces a shortfall of 60,000 workers in the next decade.
The state provides a small, advance view of what some economists predict will be a broader shortage of skilled workers in the next 20 or 30 years, as tens of millions of baby boomers retire from the workplace, and the economy produces more new jobs than workers. Potential consequences include slower economic growth and competitiveness, as well as higher wages for skilled workers and greater inequality.
Estimates of the national shortage run as high as 14 million skilled workers by 2020, according to widely cited projections by the labor economists Anthony P. Carnevale and Donna M. Desrochers.
But other economists believe the number will be lower, as the labor market adjusts to changes in the economy and advancements in technology.
Iowa has long bemoaned its "brain drain," exporting large numbers of well educated young people to other parts of the country:
Iowa’s surplus arises from colliding trends: the exodus of young college graduates, a state economy that adds 2,000 jobs a month, low immigration and birth rates, and an image problem that makes it difficult to recruit workers from out of state. Iowans’ median age is nearly two years above the national figure, and the state is near the top in the rates of women in the workforce and workers with multiple jobs — further shrinking the pool of people who might be drawn into the market.
As a member of that diaspora, I've received quite a bit of mail (e- and snail) designed to lure me and my family back. The state has worked pretty hard to recruit younger people. It's difficult, though.
Remedies are not simple. Companies want to be in Iowa because wages are lower than elsewhere in the nation or region, except South Dakota. But low wages also drive young college graduates out of the state, especially as student debt loads have risen, and they discourage workers from other states from moving to Iowa. Some, like . . . accept relatively low wages in exchange for Iowa’s low cost of living. Companies compete on amenities and benefits more than salary, said Craig Jackman, president of Paragon IT Professionals, a recruiter and consultant firm.
In large part, the problem may be the perception of the state:
[T]he state remains a tough sell with young Iowans. For Jessamyn Thomas, 18, a high school senior who hopes to move to Chicago after she graduates from Iowa State University, life in an economic bubble is not enough. “There’s opportunities here,” she said. “But it’s also the same place you’ve lived all your life, and it’s Iowa, so it’s not very exciting.”
Her classmate Tucker Slauson, 17, agreed. “There’s jobs here,” he said, “because everybody leaves.”
If the rest of the country does follow Iowa in terms of the job surplus anytime soon, things will get even tougher for employers there and in other small states with image problems.
- Richard A. Bales & Jason N.W. Plowman, Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example (198).
- Nathan B. Oman (photo above), Specific Performance and the Thirteenth Amendment (169).
- Steven L. Schooner & Danielle Conway-Jones, Emerging Policy and Practice Issues (168).
- Martin Gelter, The Dark Side of Shareholder Influence: Toward a Holdup Theory of Stakeholders in Comparative Corporate Governance (157).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (135).
- 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 (139).
- Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accomodation Provision (104).
- Katherine V.W. Stone, The Future of Labor and Employment Law in the United States (103).
- Rafael Gely & Timothy Chandler, Card Check Recognition: New House Rules for Union Organizing? (81).
- Aaron Halegua (photo above), Getting Paid: Processing the Labor Disputes of China's Migrant Workers (57).
Ariana Levinson again provides a summary of the day's proceedings at the 25th Warns Labor & Employment Law Institute:
Dwight T. Lovan, Executive Director, Kentucky Office of Workers' Claims provided an illuminating history of Kentucky workers' compensation. In response to a question from the moderator, he stated that he believes that the issue of an on-the-job injury is an issue about the employer and employee relationship. He told the story of a thirty-one year employee who refused a $70,000 lump sum payment because she would no longer get the annual Christmas ham. He views encouraging a positive relationship between employers and employees as a primary goal of the workers' compensation system.
Thea Lee, Assistant Director of Public Policy, AFL-CIO provided an informative analysis of the relationship between domestic labor standards and the international economy. She held out challenges to labor rights violations through the general system of preferences, Section 301 of the Trade Law, and new labor and environmental standards for bilateral free trade agreements as potential beacons of hope.
Ronald Meisberg, General Counsel, NLRB, provided an insiders view on the National Labor Relations Board. He currently has the power to unilaterally institute 10(j) proceedings and to confer with the Solicitor General on labor issues without authorization by the Board. (He believes, however, that it is better when the Board does have to provide authorization for 10(j) injunctions because it lends "more institutional heft" to the request.)
Professor Elinor P. Schroeder, University of Kansas, provided a fascinating overview of the status of at-will employment in the United States. If you are lecturing on or teaching the subject, you should ask her permission to use her animated maps that show the year in which each state's supreme court that has adopted either the handbook exception or the public policy exception did so.
Frederick Dennerline, of Filenworth, Dennerline, Groth & Towe, gave an overview of the intersection between ERISA and collective bargaining. He concluded with a discussion of the Pension Protection Act, which, certain plans facing critical funding crises, requires the negotiation of a "rehabilitation plan" by the union and the employers.
Carolyn L. Wheeler, Office of the General Counsel, EEOC, queried whether "when the Supreme Court speaks does anybody listen?" She pointed out that one instance where the Supreme Court needed to speak twice to get the lower courts to listen was when it held there was no "pretext plus" requirement. She believes the same may be necessary to refocus the lower courts on the proper definition of adverse action in retaliation cases which she assert is whether the action would dissuade a reasonable person from filing a charge.
Jeffrey C. Kauffman, of Seyfarth Shaw, LLP, gave an interesting and accessible talk on the WARN Act. Everyone was convinced that the forty-two cents to send an employee notice is money well-spent.
Professor Michael Z. Green, Texas Wesleyan University School of Law, concluded with a lively and thought-provoking discussion of an employment or labor attorney's ethical obligations when preparing witnesses and defending depositions.
- 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 (139).
- Lauren Carasik, Think Glocal, Act Glocal: The Praxis of Social Justice Lawyering in a Global Era (85).
- Stefano Liebman (photo above), Multi-Stakeholders Approach to Corporate Governance and Labor Law: A Note on Corporate Social Responsibility (65).
- Leticia Saucedo, A New "U": Organizing Victims and Protecting Immigrant Workers (58).
- 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 (45).
- Michael D. Hurd & Susann Rohwedder, The Retirement Comsumption Puzzle: Actual Spending Change in Panel Data (297).
- Yaniv Grinstein, David Weinbaum, & Nir Yehuda, Are Perks Excess? Evidence from the New Executive Compensation Disclosure Rules (214).
- Ian Hathaway & Sameer Khatiwada, Do Financial Education Programs Work (160).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (135).
- John Bronsteen (photo above), Brendan S. Maher, & Peter K. Stris, ERISA, Agency Costs, and the Future of Health Care in the United States (108).
Friday, May 30, 2008
Ariana Levinson (Brandeis) emails us with a description of yesterday's proceedings at the 25th Annual Carl A. Warns Labor & Employment Institute:
Today I had the good fortune to attend the Twenty-Fifth Annual Carl A. Warns Jr. Labor & Employment Law Institute. There was a great group of speakers who conveyed useful information on a broad spectrum of legal and workplace issues.
John T. Lovett, of Frost Brown Todd, LLC, summarized twenty-one labor and employment decisions decided this year. As noted by one participant, some of the cases were counterintuitive. For instance, in one case a plaintiff granted sexual favors to her supervisor in response to threats. The court held the employer could escape liability by asserting that the employee unreasonably failed to use the sexual harassment policy because there was no tangible adverse employment action. There were definitely a number of surprising decisions, so it will be worth viewing the video of his talk.
Professor Robert D. Dinerstein, of Washington College of Law, American University, provided an entertaining and informative review of disability discrimination law in the employment sector.
Professor Sharona Hoffman, of Case Western Reserve University School of Law, provided a comprehensive yet succinct overview of the ways employers are permitted to invade employees' privacy and the minimal limitations on such invasions. Particularly interesting points included the following: 1) After hiring an employee but before the first day of employment, employers "can obtain medical information of unlimited scope" regarding the employee (with the exception of information covered by the newly enacted GINA); 2) The European Union Privacy Directive prohibits the processing of certain types of personal data, including that revealing political opinions or philosophical beliefs or that concerning sex life.
David Cohen, Executive Director, Department for Professional Employees, AFL-CIO Washington DC, gave an innovative presentation about the future of work. He told the story of Kellogs of Battlecreek. In the 1930s, Kellogs instituted the six hour day rather than lay-off workers. In response, workers became so productive that Kellogs was able to reinstitute eight hours pay for six hours work! He also pointed out that wages have stagnated since the mid-1970s but production has continued to rise due to technological change and automation.
The keynote lecture was given by Professor Charles B. Craver of George Washington University. Professor Craver has an amazing breadth of knowledge about labor history, labor economics, and labor law. He started by discussing how one theory for the rise of unions between 1945 and 1955 is that the competition between the AFL and CIO unions was positive for unionization. He theorized that the same may be true of the more recent split between the AFL-CIO and Change to Win. He told the story of how when Henry Ford was walking Walter Reuther through a plant pointing out how this, and that, and the other thing would eventually be automated, Reuther asked something to the effect of, "and who will buy your automobiles then?" Professor Craver concluded with his proposal for mandatory worker participation at both the shop and board level. I encourage you to check out the video of his talk!
Barbara L. Johnson, of Paul, Hastings, Janosky & Walker, reviewed this year's employment Supreme Court decisions. "If she were a betting person," she would bet that the Kentucky Retirement System will prevail in the pending suit brought against it for age discrimination by the EEOC.
Professor Elaine W. Shoben, of University of Nevada, William S. Boyd School of Law (and University of Illinois), gave a thought-provoking talk on covenants not to compete incident to the end of an employment relationship. She suggested that the lack of clarity in the law in this area is analogous to the lack of clarity in products liability law in the 1920s. She predicts that, just as happened with products liability, more uniformity will develop in this area over time and the jurisprudence will be specific to this area and nontransferable to other areas of contract law.
Seventy years after Congress passed the National Labor Relations Act (NLRA), the scholarly consensus is that American labor law has become ossified. As I have argued elsewhere, however, while the NLRA is undoubtedly dysfunctional, the blockage of this traditional channel for collective action has led not to ossification, but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels.
This article explores the first of these new channels, which I name employment law as labor law. The article presents detailed accounts of collective campaigns in which workers turn to employment law, in particular the Fair Labor Standards Act and Title VII, as the legal architecture that facilitates and protects their collective activity. This legal architecture, provided here by employment statutes, is one we conventionally call labor law.
Drawing upon and moving beyond these descriptive accounts, the article offers a theoretical model that explains how employment law's individual rights regime can galvanize, insulate, and generate workers' collective action. By revealing employment law's capacity to foster collective action, moreover, the article provides a new way of understanding the relationship between labor law and employment law. The model developed here disputes the claim that labor and employment law constitute distinct - and inimical - regulatory regimes.
Finally, the article contends that employment law's ability to foster collective action invites future inquiry into the possibility for a great trade in labor law reform: a new regime that provides strong safeguards for the early stages of collective action but retreats from the cradle-to-grave regulation that has defined, and ultimately undermined, the NLRA.
Thursday, May 29, 2008
Via CCH Workweek:
The Senate unanimously passed H.R. 6081, the Heroes Earnings Assistance and Relief Tax (HEART) Act, which includes a tax credit for small employers (fewer than 50 workers) who pay a salary differential to employees called up for active duty. The bill now goes to the President for his signature.
More information and the full text can be found On Congress' website. I wonder how much time the drafters spend coming up with the right title for a nifty acronym. I know that sometimes it takes me hours to do it for exams.
The BLT (Blog of Legal Times) has posted an update on litigation by pilots against the FAA over the mandatory retirement age. Let me give you the background before that update to give the issue context.
In 1960, the FAA imposed a mandatory retirement age of 60 on pilots in the US. In 1978, the International Civil Aviation Organization (ICAO) adopted a less restrictive rule allowing any member State to prohibit pilots of "foreign" carriers from operating in its airspace as Pilot-in-Command (captain only, no age limit for co-pilots) on or after their 60th birthday. Other countries asked the ICAO to reconsider that rule, and over the last decade, the mandatory retirement age has been challenged in the US by a number of pilots grounded by it. In 2006, the ICAO adopted 65 as the maximum age for pilots to fly as captain in multi-pilot crews, provided another required pilot is under 60. The US was required as a matter of treaty to accept pilots of foreign aircraft that complied with the ICAO's new rule. In December of 2007, Congress passed and the President signed the Fair Treatment for Experienced Pilots Act (FTEPA), which raised the maximum age for pilots to fly as captain in multi-pilot crews as long as another required pilot is under 60, just like the ICAO rule.
After the ICAO rule went into effect but before FTEPA was enacted, several pilots petitioned the FAA to waive its rule on mandatory retirement at 60. The FAA denied all of those petitions, and last June, the Senior Pilots Coalition, represented by Jonathan Turley has sought review of those petitions in the Court of Appeals for the DC Circuit. When FTEPA went into effect, the law gave these pilots little relief because it was explicitly made not retroactive. In other words, pilots who were under 65 but who had been forced to retire before December 2007 were not exactly helped by FTEPA.
According to a report from bnet,
While not barring their re-employment, the law stipulates that they would have to return stripped of their seniority, meaning lower pay and a drop in schedule, route and vacation bidding as compared to where they were before being grounded. The law says commercial transport pilots who turned 60 prior to Dec. 13, 2007 must be treated as a new hire.
The FAA moved to dismiss the petitions for review on the grounds that FTEPA made them moot. Turley responded, challenging the constitutionality of FTEPA on a number of grounds (here is the memorandum). The BLT reports that the DC Circuit has now set a briefing schedule, and the Coalition's Brief is due June 11. For more information, see this great chronology with links to documents and the broader critique of the mandatory retirement age.
The usual arguments are being deployed for and against the mandatory retirement age. Advocates for mandatory retirement say that safety is the chief concern, and statistically speaking, catastrophic health events like heart attacks, are more likely to happen the older a person gets. Opponents argue that everyone is different, and that there should be an individualized assessment of each pilot's health and ability. They also argue that more experienced pilots are much safer.
One of the really interesting things about this issue is the division among pilots. Air Canada pilots, for example, according to bnet, voted by a 3 to 1 margin to retain the mandatory retirement age at 60. Similarly, according to an Online NewsHour Report, American Airlines pilots opposed FTEPA. Southwest pilots, on the other hand, oppose the mandatory retirement rule. The reason for this is probably tied to benefits.
Southwest pilots don't get a traditional pension from the airline. They have a 401(k) program and profit-sharing instead. If they can work longer, they can build a bigger nest egg.
But at American, pilots have a defined benefit pension plan, where monthly payouts are theoretically guaranteed for life. That could be an incentive to retire earlier.
Those pilots who have lost pension benefits after the financial trouble and restructuring of the last several years are also in favor of working longer to boost their savings. It will be interesting to see how even more recent developments, like mergers and rising fuel costs impact this issue.
Golden Gate University – University of Paris X (Nanterre)
Summer Program in Comparative Law – Panel Discussions
All panels will meet at 16:00 at the Université du Paris X (Nanterre) in Building “F.”
The public is welcome. Admission is free. The panels will be conducted in English.
Directions are provided at the end of this message.
Tuesday June 24 – Comparative Racial Injustice
Question Presented: From your experience as a scholar, teacher, lawyer, and/or activist, what is the most important insight you can share with us about the problem of racial inequality?
Professor David B. Oppenheimer
Golden Gate University
Slim Ben Achour
Avocat à la Cour
Sandra Johnson Blake
Equality and Human Rights Commission (UK)
Professor Sabine Broeck
Professor Sora Han
University of California, Irvine
American Civil Liberties Union
Haute Autorité de Lutte contre les Discriminations et pour l'Egalité (HALDE)
Conseil Representatif des Associations Noires (CRAN)
Professor Marie Mercat-Bruns
Institut d'Etudes Politiques de Paris
Professor Rachel Moran
University of California, Berkeley
Professor Sophie Robin-Olivier
Université du Paris X (Nanterre)
Professor Daniel Sabbagh
Centre d'études et de recherches internationales (CERI-Sciences Po)
Wednesday June 25 – Comparative Race, Poverty and the Environment
Professor Sheila Foster
Fordham Law School
Université du Paris X (Nanterre)
Center on Race, Poverty and the Environment
Professor Alan Ramo
Golden Gate University
Paul Secunda is quoted in today's Washington Post, in an article about how recent Supreme Court decisions may indicate the Court is moving toward the political center:
Paul Secunda, an employment law specialist at the University of Mississippi law school, said it is possible to distinguish the Ledbetter decision from Tuesday's twin rulings but acknowledged he was nonetheless surprised by the court's action.
Secunda said Supreme Court decisions are ones of "compromise and temporary alliances," that make the job of predicting the court difficult.
For more, see Robert Barnes, Justices Show Ability to Move to the Center.
- Charles Lawrence, III, Unconscious Racism Revisited: Reflections on the Impact and Origins of ‘The Id, The Ego, and Equal Protection’, p. 931.
- Amy L. Wax, The Discriminating Mind: Define It, Prove It, p. 979.
Evolution of the Id, the Ego, and Equal Protection
- Honorable Janet Bond Arterton, Unconscious Bias and the Impartial Jury, p. 1023.
- Mari J. Matsuda, Are We Dead Yet? The Lies We Tell to Keep Moving Forward Without Feeling, p. 1035.
- Gowri Ramachandran, Antisubordination, Rights, and Radicalism, p. 1045.
- Catherine Smith, Unconscious Bias and ‘Outsider’ Interest Convergence, p. 1077.
The Intersection of Law and Psychology
- Avital Mentovich & John T. Jost, The Ideological ‘Id’? System Justification and the Unconscious Perpetuation of Inequality, p. 1095.
Applying Unconscious Discrimination
- Natasha T. Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace, p. 1117.
- Eva Paterson & Kimberly Thomas Rapp & Sara Jackson, The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, p. 1175.
- John Tehranian, Selective Racialization: Middle-Eastern American Identity and the Faustian Pact with Whiteness, p. 1201.
Wednesday, May 28, 2008
The New York Times has an interesting article on problems with the employee stock ownership plan at U.S. Sugar. The ESOP basically acted as a retirement plan, but did not give employees much in the way of ownership rights. The result, unfortunately, aptly shows the danger in these types of ESOPs:
Thousands of workers at U.S. Sugar thought they were getting a good deal when the company shelved their pension plan and gave them stock for their retirement instead. They had a heady sense of controlling their own destiny as they became the company’s biggest shareholders, Vic McCorvey, a former farm manager there, said. . . .
Now that many U.S. Sugar workers are reaching retirement age, though, the company has been cashing them out of the retirement plan at a much lower price than they could have received. Unknown to them, an outside investor was offering to buy the company — and their shares — for far more. Longtime employees say they have lost out on tens of thousands of dollars each and millions of dollars as a group, while insiders of the company came out ahead.
Some former U.S. Sugar employees have since filed a lawsuit accusing company insiders of cheating them out of money that was rightfully theirs. Throughout, the worker-owners have been shut out of information about the company’s finances and unable to challenge management’s moves or vote because their shares were held through a retirement plan, not directly. . . .
Nearly 95 percent of the country’s 10,000 ESOPs are now at privately held companies, like U.S. Sugar. Because their shares are not publicly traded, there is no market price. So workers cash out shares without knowing what the price would be on an open market. . . .
Members of Congress tried to prevent disputes over the fair market value of shares in employee stock plans by requiring private companies to get independent appraisals each year. But workers at U.S. Sugar say the chairman and his allies withheld crucial information from the appraiser and artificially depressed the share price, something the chairman denies. The employees do not accuse the appraiser of wrongdoing.
To document their claims, the former workers cite two offers to buy U.S. Sugar for $293 a share — offers that came as the workers were being cashed out of their shares by the company for as little as $194 a share. The worker-owners were not told about these outside offers and had no chance to tender their shares. They found out only through word of mouth, after the board of U.S. Sugar had rejected both offers.
As retiring workers cash out their shares, the company then retires their stock. That leaves fewer shares outstanding over time, the lawsuit says, allowing the insiders’ control of U.S. Sugar to grow, without their having to spend a penny buying stock. . . .
While they wait for their lawsuit to inch through federal court, U.S. Sugar’s former employees say they are struggling to get by on fewer retirement dollars than they should have received. Many are former field workers, machine operators and mechanics, paid by the hour and living in one of Florida’s poorest counties. Some said the disputed stock plan was their sole retirement nest egg.
I wrote about labor law obstacles to ESOPs a while back (Westlaw link), arguing that these hurdles should be removed to encourage what could (and I stress, could) be a beneficial arrangement. The key is to distinguish plans that give employees access to information and a voice in how the the company is run from plans that do not. The risk in the latter type is exemplified by the U.S. Sugar ESOP. Employee-shareholders have no access to information, which would have been a significant help in deciding whether to take a buy-out. Moreover, the employees (like so many before them) ignored the golden rule of retirement investing: diversify. This is partially a statutory problem because ERISA diversification requirements do not fully apply to ESOPs. There are reasons for that (the ESOP may never be possible under ERISA's normal rules), but employees must be fully and repeatedly informed of the risks.
We've had several posts describing the Coalition of Immokalee Workers' attempts to expand its agreement with Taco Bell and McDonald's to provide increased compensation for immigrant tomato pickers (see here, here, and here). Burger King was one of the higher profile, and hardest fighting, targets--which makes the following news a surprise. Last week, Burger King signed an agreement with CIW to require its tomato suppliers to pay higher wages and agree to a code of conduct. As reported by BNA's Daily Labor Report (subscription required):
As a result of its signing the agreement, Burger King plans to pay the growers from whom it purchases tomatoes 1 cent more per pound, which will then be filtered down to the workers' wages. Amy Wagner, a Burger King senior vice president, said the company will also reimburse the growers for the extra payroll taxes and administrative costs they will incur with the wage increase.
Based on the amount of tomatoes Burger King purchased last year, Wagner said, the extra cent per pound would translate into an extra $250,000 per year paid to the workers. With the additional payroll costs added in, the total charges incurred by Burger King as a result of the wage increase would be between $300,000 and $325,000 per year, Wagner said.
In addition, Wagner said Burger King would have a zero tolerance policy for "certain activities" related to the exploitation of workers and would implement codes of conduct for its vendors.
John Chidsey, the chief executive of Burger King, said in a statement, "We, along with other industry leaders, recognize that the Florida tomato harvesters are in need of better wages, working conditions, and respect for the hard work they do. And we look forward to working with the CIW in the pursuit of these necessary improvements. We also encourage other purchasers and growers of Florida tomatoes to engage in dialogue with the CIW in support of driving industry-wide socially responsible change." Wagner said the plan would depend on the cooperation of the growers, but emphasized that Burger King would be paying the extra costs the growers would incur. She said the company soon would be "reaching out" to the growers to encourage them to participate in the agreement.
CIW's success in obtaining agreements from some of the largest corporations in America is nothing short of amazing. Rest assured that we'll be hearing more from the group in the future.
The Labor Lawyer
Volume 23, Number 3, Winter/Spring 2008
- Christine Cooper (left), Employment Cases From the 2006-2007 Supreme Court Term, p. 223.
- Stephen A. Mazurak (center), Significant Recent Employment Law Developments in State Common Law and Statutory Decisions, p. 253.
- Nicole Cuda Pérez, Too Many Arbitrators Do Spoil the Soup: NLRB Charges Filed By Non-Unionized Employees Should Not Be Subject to Mandatory Pre-Dispute Arbitration Agreements, p. 285.
- Liquita Lewis Thompson, Arbitrators–Unlike Too Many Cooks–Do Not Spoil The Soup! Making the Case for Allowing Pre-Dispute Mandatory Arbitration of Unfair Labor Practice Charges in Nonunion Workforces, p. 301.
- David Broderdorf (right), Overcoming the First Contract Hurdle: Finding A Role For Mandatory Interest Arbitration in the Private Sector, p. 323.
Jack Sargent brings news of a piece on Radio-Online, which says the Minority Media and Telecommunications Council (MMTC) has filed a FCC Comment on Proposed Rule Making.
The Proposed Rule Making advances the following points:
· FCC current EEO enforcement program is a stunning failure
· FCC's lack of EEO enforcement effort has led to the greatest purge of minorities in broadcasting history
· Minority news employment at non-minority owned, English-language radio stations is statistically zero, or about where it was in 1950.
Wow. Stay tuned (pun intended).
On May 21st, the US Solicitor General filed an invitation brief urging the Supreme Court to grant certiorari in AT&T Corp. v Hulteen, No. 07-543, a case that will decide whether employers violate Title VII by not restoring pension service credit to employees when calculating benefits for pregnancy leaves taken prior to the 1978 passage of the Pregnancy Discrimination Act. The Solicitor General urged the Court to reverse a Ninth Circuit decision against AT&T, which requires employers to retroactively apply such credits when calculating benefits.
On May 23rd, the Solicitor General recommended the Court grant certiorari in Amschwand v. Spherion Corp. (07-841). Amschwand asks whether a participant or beneficiary in an ERISA health benefits plan may sue for the insurance benefits that would have been available but for a violation of a plan administrator’s duty. It nicely tees up the issue of appropriate equitable relief under the statute.
The SG also recommended the Court deny certiorari in Board of Education of New York v. Gulino (07-270). Gulino involves the legal liability for allegedly racially discriminatory tests for determining the qualifications of public school teachers.
Finally, the Solicitor General recommended the Court hold the petition in another ERISA case, Geddes v. United Staffing Alliance Employee Medical Plan (06-1458), involving the standard for judging denials of medical benefits by plan administrators, pending the Court’s ruling in MetLife v. Glenn (06-923).
Hat Tip: SCOTUSBlog and CCH Workweek
Tuesday, May 27, 2008
... hasn't yet been released. But the several and positive citations to Alexander v. Gardner-Denver in today's Cracker Barrel case would seem to auger favorably for the employees in Pyett. Recall that the issue in Pyett is whether an arbitration clause, contained in a collective bargaining agreement but covering statutory issues as well as contract issues, is enforceable as to those statutory issues (see our prior discussions of Pyett here and here). Gardner-Denver said such an arbitration clause is not enforceable because the grievance procedure under a labor agreement is different from a Title VII lawsuit. The employer in Pyett is arguing that that part of Gardner-Denver should be overruled.
In Cracker Barrel today, the Court favorably cited Gardner-Denver twice, including for the proposition that “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” This would seem to indicate that Gardner-Denver is not dead yet. Moreover, the fact that the Court found the stare decisis argument persuasive in Cracker Barrel makes it far more likely the Court will do the same in Pyett.
The Court issued decision in Gomez-Perez v. Potter, 06-1321 (holding (6-3) that Section 633a(a) of the ADEA prohibits retaliation against a federal employee who complains of age discrimination.) and CBOCS West, Inc. v. Humphries, No. 06-1431 (holding (7-2) that Section 1981 encompasses retaliation claims).
Shortest Secunda analysis ever: yeah! (I was thrown a little when I saw Alito was the author of the Potter opinion and felt real good when Breyer was the author of CBOCS.
Wow, I'm going to be smiling next time I pass a Cracker Barrel restaurant! And guesses who the two non-activist dissenters were in the cases?