January 19, 2008
New Blog: Second Life Unions
A group of mostly British (I believe) trade unions have joined together to create a new blog SLUnions. The purpose of the blog is to help co-ordinate the Union Island project in Second Life:
A number of trade union organisations from around the world are coming together to set up a home for unionists and union issues in the virtual world Second Life.
We’re planning to launch it later in 2008, but in the meantime want to hear from anyone with an interest in unions and virtual worlds.
The image above is the SLU meeting hall.
Top-5 International Employment & Labor Law SSRN Downloads
- Simon Deakin, Priya Lele, & Mathias M. Siems, The Evolution of Labour Law: Calibrating and Comparing Regulatory Regimes (80).
- Ying Ge, What Do Unions Do in China? (43).
- Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (35).
- Vicki Schultz, Sex and Work (31).
- Michael J. Zimmer, Decent Work with a Living Wage (photo above) (22).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Stephen F. Diamond, Legal Implications of Proposed GM/UAW VEBA (230).
- Michael J. Hussey (photo above), Has Congress Stopped Executives from Raiding the Bank? A Critical Analysis of I.R.C. Section 409A (197).
- Susan Liemer & Hollee Temple, Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time (159).
- Jie Cai & Ralph A. Walkling, Shareholders' Say on Pay: Does It Create Value? (91).
- Guy Davidov, The (Changing?) Idea of Labour Law (79).
January 18, 2008
Supreme Court Can't Get Enough ERISA
An ERISA case added to the docket tests whether the manager of an employee benefit plan has an illegal conflict of interest if the plan gives that individual the authority both to pay benefits and to rule on eligibility for benefits (MetLife v. Glenn, 06-923). In addition to that question, the Court added a second issue to be addressed: if that is a conflict of interest, how should that be taken into account by a court reviewing a specific benefit decision. The Sixth Circuit Court, in conflict with some federal appeals courts but in agreement with others, ruled that the dual role of funding and decider for plan administrators is a potential conflict of interest that must be weighed in judging a plan manager’s benefit eligibility ruling.
The Supreme Court had asked the SG for its input on this case and the SG recommended granting cert.
I know my good friend Stephen Rosenberg is apt to disagree with me on this, but I am all for giving de novo review in these type of conflict of interest situations in denial of benefit cases.
Put differently, plans should not be able to take advantage of Firestone discretionary language for plan appeals if the plan administrator is operating under a conflict of interest. I don't even think the 3rd Circuit's heightened arbitrary and capricious standard quite does it. Any advantage a plan has in this context should disappear and the standard should revert back to de novo where the decisionmaker is in the dual role of funding and deciding benefit appeals.
Including the two employment discrimination cases discussed in the previous post, this meaning (even taking into account that Huber ADA will no longer be heard), that there are eleven pending labor and employment cases in front of the Supreme Court! Perhaps, we are not the Rodney Dangerfields of the legal academy any longer.
Supreme Court Takes Two More Employment Discrimination Cases
Among other cases granted is a test of whether federal law protects a worker from being fired after being a witness in a company or agency’s internal investigation of sexual harassment on the job (Crawford v. Metro Nashville Government, 06-1595). The Sixth Circuit Court ruled that only workers who pursue their own complaint about discrimination or persuade the federal government to pursue a charge are protected from retaliation under Title VII of federal civil rights law.
In a separate case involving workers’ rights — here, a claim of age bias in the workplace — the Court granted review of whether a worker or the employer has the burden of proving that the action taken was or was not done for a valid reason other than age (Meacham v. Knolls Atomic Power Laboratory, 06-1505, grant limited to first question). Justice Stephen G. Breyer is recused from the case. The Second Circuit Court ruled that workers claiming a violation of the Age Discrimination in Employment Act bear the burden of demonstrating that the layoffs at issue in the case were unreasonable and not justified by a reason other than age.
I had mistakenly written in another post that Crawford had not been granted. This has been fixed in the other post.
As far as Crawford, this is an important case because it directly concerns whether employees are likely to cooperate with their employers' internal investigations of harassing, discriminatory, or retaliatory content.
FWIW, I think 6th Circuit is clearly wrong and that the participation clause of Section 704(a) clearly does protect witnesses who participate in an internal investigation both for textual and policy reasons.
As far as Meacham, the issue of burden on the RFOA issue, I hope the Court reverses the Second Circuit and finds that the RFOA defense is in the nature of an affirmative defense and therefore, the employer has the burden. This should be so for either a disparate treatment or disparate impact case.
Racism Still Very Much Alive
Paul Mollica over at Daily Developments describes yesterday's Eleventh Circuit decision of Goldsmith v. Bagby Elevator Co. as "one of the most powerful civil rights opinions I've read from any U.S. Court of Appeals in quite some time." Here's the opening paragraph of the opinion:
Forty-five years ago, "the civil rights movement swirled into Birmingham, a city whose bitter resistance to change made it a battleground." Jack Bass, Unlikely Heroes 201 (1981). Dr. Martin Luther King Jr. remarked, "If we can crack Birmingham, I am convinced we can crack the South. Birmingham is a symbol of segregation for the entire South." Id. By blood, toil, and tears, segregation was, of course, cracked in Birmingham, and today the city is led by its fourth black mayor and a majority-black city council. Against this historical backdrop, this appeal from the Northern District of Alabama offers, amid a host of technical issues, an important reminder: despite considerable racial progress, racism persists as an evil to be remedied in our Nation.
Paul describes the opinion in considerable detail. Check it out.
Why Do U.S. Picketers Walk in Circles . . .
. . . while their British counterparts huddle together in groups? The BBC News reports two theories. First, says Donald Oliver of Blitman & King of New York, it's so they "can permissibly walk in front of a gate or entrance of a picketed establishment without blocking or impeding ingress or egress, which is prohibited by law." Second, he notes, picketers can more effectively convey their message while on the move. See Why Do US Pickets Walk in Circles?
Amtrak and Union Reach Deal
Amtrak reached a deal with its union, averting a possible strike at the end of this month, people familiar with the negotiations told The Associated Press.
The deal averts not onlybut commuter chaos in many East Coast suburbs where short-distance trains run on Amtrak infrastructure.
People familiar with the agreement, speaking on condition of anonymity because it had not been formally announced, said the labor agreement adopts the recommendations of a presidential emergency board report issued Dec. 30.
Interesting, especially since the presidential emergency board agreed largely with the union in its report.
Labor History Dissertation Prize
Craig Phelan (Swansea) writes the LERA-listserv about the Labor History Dissertation prize:
To encourage the study of labor, Labor History is pleased to encourage submissions for its annual Dissertation Prize for labor studies, broadly defined. In keeping with the journal’s dedication to a multi-disciplined approach to the field, and its commitment to chronological and geographical breadth, the prize will be awarded to the best Ph.D. dissertation on a labor topic, historical or contemporary, in the US or worldwide, regardless of discipline.
Winners will receive an award of £750 / $1500, and publicity in both the journal and the Labor History website . . . .
All dissertations on labor topics completed in 2007 are eligible for the Labor History Dissertation Prize.
Please email your applications to Craig Phelan, at email@example.com by 15 February 2008.
Zelinsky on the San Francisco ERISA Preemption Decision
Over on the Oxford University Press Blog, Ed Zelinsky (Cardozo), author of The Origins of Ownership Society: How the Defined Contribution Paradigm Changed America, tells exactly where he stands on the 9th Circuit's recent decision to allow the San Francisco health care plan go forward:
In an important decision under the Employee Retirement Income Security Act (ERISA), the U.S. Court of Appeals for the Ninth Circuit, reversing the U.S. District Court for the Northern District of California, permitted San Francisco’s new health care ordinance to go into effect. On the merits, the Ninth Circuit’s reasoning does not persuasively implement the ERISA preemption case law of the U.S. Supreme Court. Consequently, the Ninth Circuit’s opinion will not be followed by other appeals courts nor will it ultimately be sustained by the U.S. Supreme Court. Moreover, and more seriously, the Ninth Circuit’s opinion reduces the political pressure on Congress to amend or repeal ERISA’s preemption provision to grant the states greater latitude to regulate in the health care arena . . . .
The Ninth Circuit opinion thereby puts that court in direct conflict with the U.S. Court of Appeals for the Fourth Circuit which held Maryland’s “Wal-Mart” Act, a similar employer mandate, preempted by ERISA.
For the long run, the Fourth Circuit, as a matter of law, has the better argument as its opinion more convincingly reflects the relevant case law of the U.S. Supreme Court. Particularly unpersuasive is the Ninth Circuit’s contention that the San Francisco ordinance (and, by extension, any similar employer mandate) “does not require any employer to adopt an ERISA plan or other health plan…Any employer covered by the Ordinance may fully discharge its expenditure obligations by making the required level of employee health care expenditures, whether those expenditures are made in whole or part to an ERISA plan, or in whole or in part to the City.”
As the Fourth Circuit observed, no rational employer would view the penalty payment to the government as a realistic alternative to the equivalent payment for its own employees. An employer which consistently pays “employee health care expenditures” has an ERISA plan, i.e., a “plan, fund, or program” to provide medical care for employees.
And like Ed, I believe the more immediate concern emanating from the 9th Circuit opinion is that it will reduce the pressure on Congress to amend ERISA preemption provisions to allow more state experimentation in the area of state and municipal health care reform.
January 17, 2008
Directors Guild Reaches Agreement
Update (JH): The New York Times has an article filling in some more details of the agreement. According to the paper:
The preliminary, three-year deal between the Directors Guild of America, which represents about 13,500 directors and associated production workers, and the Alliance of Motion Picture and Television Producers will take effect when the directors’ existing deal expires on June 30.
The union said its bargainers would submit the deal to its board with a recommendation for approval on Jan. 26. If approved, a member vote would follow.
The agreement achieves a breakthrough for union members in several digital areas. It roughly doubles the residuals rate that was paid for decades when films and television programs were resold on cassettes or DVDs. It also requires Hollywood studios and production companies — for the first time — to pay a reuse fee when advertising-supported programs are streamed free over the Internet, as many television networks do now on their Web sites.
The residual starts after a 17-day period to promote the program, and is pegged at about $600 an episode of a one-hour network prime-time drama, for 26 weeks. (In the first year of a new series, the promotional period is 24 days.) That is a rate considerably higher than was last offered to writers when their negotiations with companies fell apart in early December. . .
Over all, the agreement — which also increases minimum compensation rates and other gains for the union — was meant to reflect the directors’ belief, bolstered by an independent study of industry economics, that digital media will provide a negligible amount of revenue during the life of the contract. In the directors’ opinion, digital media revenues will become significant only after 2010.
After just five days of formal negotiations, the Directors Guild of America and the major Hollywood studios said they had reached agreement on a new three-year contract, according to people close to the talks. The deal turns the spotlight again on the striking film and TV writers who must now examine the directors' deal and decide if they will accept a similar contract. The proposed new contract addresses hot-button issues including how to compensate union members for use and re-use of their work on the Internet, one of the main obstacles that sent the writers out on strike. Details of the proposed new contract were not immediately disclosed.
Of course, the striking writers were hoping for additional leverage with the Directors also being out on strike, but that potential leverage now depends on the Screen Actors Guild, and whether the performers will join the writers on the picket line. it is more likely that SAG with remain supportive of the writers because, "SAG has thus far closely aligned itself with the [writers], while the directors union has kept its distance from the other two major creative guilds."
Once details of the DGA deal are disclosed, this post will be updated. Such details will also shed light on whether the writers and actors could live with a similar deal.
Miller on Lopsided Terms in Arbitration Agreements
Meredith Miller (Touro) has just posted on SSRN her article (forthcoming Tennessee L. Rev.) Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process. Here's the abstract:
There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here is, more specifically, on the appended, additional procedural limitations that often appear to be contained within arbitration clauses.
As an outgrowth of the trend toward arbitration, corporations have increasingly used standardized forms to have contracting parties - often, for example, franchisees, borrowers, consumers, employees, insureds - expressly limit significant procedural rights. The examples of express, pre-dispute procedural limitations that are the focus of this Article are class action waivers, discovery limitations and shortened statute of limitations. These express, pre-dispute limitations may, in effect, work to create a barrier to enforcement of substantive laws concerning, for example, consumer and employee protection, civil rights and common law negligence. Thus, these contractual limitations have been aptly analogized to exculpatory clauses. Further, to the extent that pre-dispute limitations are inserted in arbitration clauses that are used in various industries in standard form agreements, they have effectively become the legislation governing contractual relationships of corporations. They have, in essence, provided an opportunity for corporations to flout legislative and social policy and deregulate themselves.
Part I of this Article provides a brief background of the rise of pre-dispute arbitration and the use of the unconscionability doctrine to police arbitration agreements. Part II discusses collective action waivers, discovery limitations and shortened statute of limitations as examples of express, pre-dispute limitations that have arisen in arbitration clauses and examines the use of the unconscionability doctrine to police them. Part III explores some of the concerns raised by express, pre-dispute limitations on procedural rights and the use of the unconscionability doctrine in this context. Finally, by analogy to the treatment of exculpatory clauses, Part IV argues that federal legislative reform should specify that certain express limits on procedural rights contained in standardized form agreements are per se invalid. While perhaps facing an uphill political battle, the simplest way to accomplish this reform is by amending the Federal Arbitration Act. If Congress is not prepared to ban pre-dispute arbitration clauses outright, Congress should at least act to prohibit these further procedural limitations.
I agree 100%. Legitimate arguments can be and have been made regarding whether arbitration agreements are per se unfair to employees. The terms discussed in this article, however, are largely indefensible -- they are bald attempts to make it difficult or impossible for employees to pursue legitimate claims. Courts should not enforce them, and if the courts abdicate such responsibility, Congress should appropriately amend the FAA as Miller suggests.
January 16, 2008
Dreeben Named Head of NLRB's Appellate and Supreme Court Litigation Branch
The NLRB has just announced that Linda Dreeben will head the NLRB's new Appellate and Supreme Court Litigation Branch. This new branch is a merger of the from Appellate and Supreme Court Branches. Actually, it's more of a takeover, as the Supreme Court Branch was very small (a couple of attorneys usually), thanks to the Solicitor General's current practice of taking all NLRB oral arguments. The General Counsel's press release states that:
The new Branch will be responsible for the conduct of federal court litigation involving the enforcement and review of the orders of the National Labor Relations Board as well as the NLRB's litigation in the Supreme Court of the United States. The Branch will assist the Divisions and Offices supervised by the General Counsel in litigating important legal issues. The Branch also will advise the General Counsel and the Members of the Board concerning the litigating positions that the Agency should take in Supreme Court cases and work closely with the U.S. Department of Justice, Office of the Solicitor General, in formulating the government's position before the Supreme Court.
Commenting on the appointment, General Counsel Meisburg stated: Linda Dreeben is extremely deserving of this promotion. She has over 30 years of experience in the Appellate Court Branch, many managing complex appellate litigation which involves crafting and mounting the strongest possible defense of the Board's decisions in court. During her tenure as Acting Branch Chief and Branch Chief of the Supreme Court Branch, she has earned the Agency’s trust for the high quality of her work and the soundness of her judgments in overseeing its appellate and Supreme Court litigation. We are fortunate to have a person with her long and exemplary record of leadership, skills and experience to serve in this important position.
As a former attorney in the Appellate Court Branch, I can tell you that the new branch is in capable hands. Also, as a bit of trivia, if you're a frequent Supreme Court observer her name may sound familiar because her brother, Michael Dreeben, is a Deputy Solicitor General.
Congratulations, Senator . . . You're Fired!
You win election to the Mississippi state senate and for your victory, you are fired from your job (via Jackson Clarion-Ledger):
Freshman state Sen. Eric Powell learned two days after his swearing-in last week that he had been fired from his regular job.
Powell, D-Corinth, said his firing from Packaging Corporation of America in Counce, Tenn., on Thursday came as a result of his election as a state senator in Mississippi.
Lawmakers will be in session about four months this year and three months in each of the remaining three years of this term. The governor also could call them back to the Capitol for special sessions.
“I’m still in shock, but I’m also angry that after saying all these months that they would support me, they send me a letter of termination,” Powell told the Northeast Mississippi Daily Journal on Monday. “When I spoke with company vice president Mark Kowlzan, he said he didn’t see a problem, that it was great for the company.”
PCA corporate spokesman Steve Calhoun in Lake Forest, Ill., did not immediately return a call to the newspaper . . . .
“All of a sudden, with no phone call or anything, just a letter in the mail after 11 1/2 years of service,” said Powell, who is married and has three children. “That’s the kind of thanks I get for hard work and loyalty. It’s the kind of thing I came to the Senate on behalf of working people to fight.”
Uh-oh. PCA might as well pony up right now. And reading the Clarion-Ledger article, it is pretty clear Powell's termination is directly related to his election.
Now, this is not to say that if the company had taken the approach initially that legislative service was incompatible with his job they may not have had a business justification defense. But once assuring Powell that running for office was OK, it seems like this is a public policy tort of the type where we don't want citizens not to fulfill their public obligations to society for fear of being fired.
Such action may also violate state statutory law which protects political candidates from being fired and Powell is a union member, so expect a grievance to be filed as well.
One more thought: where was PCA's labor and employment lawyer on this bone-headed decision? Even if they can win this case (assume Powell files a grievance or sues, which I assume), doesn't the cost of publicity outweigh any benefit? And besides, do you really want a state senator to be your sworn enemy?
Young Female Professionals and the Work/Life Question
Interesting post by Peter Lattman at the Wall Street Journal Law Blog:
There’s a page-one WaPo story on young professionals in their 20s and early 30s who decide to buck demographic trends and have children. It’s the third in an ongoing series about the choices young professionals make. We posted on the last story in this series — about a third-year law student who could not decide between taking a law firm job or pursuing a non profit position or fellowship.
So, like Pete, I want to ask readers of this blog whether having kids relatively early make work/life balance easier for women to achieve later on?
Monitoring Workers, Microsoft-Style
Today's Times of London reports:
Microsoft is developing Big Brother-style software capable of remotely monitoring a worker’s productivity, physical wellbeing and competence.
The Times has seen a patent application filed by the company for a computer system that links workers to their computers via wireless sensors that measure their metabolism. The system would allow managers to monitor employees’ performance by measuring their heart rate, body temperature, movement, facial expression and blood pressure. Unions said they fear that employees could be dismissed on the basis of a computer’s assessment of their physiological state . . . .
Microsoft submitted a patent application in the US for a “unique monitoring system” that could link workers to their computers. Wireless sensors could read “heart rate, galvanic skin response, EMG, brain signals, respiration rate, body temperature, movement facial movements, facial expressions and blood pressure”, the application states.
The system could also “automatically detect frustration or stress in the user” and “offer and provide assistance accordingly”. Physical changes to an employee would be matched to an individual psychological profile based on a worker’s weight, age and health. If the system picked up an increase in heart rate or facial expressions suggestive of stress or frustration, it would tell management that he needed help.
I don't think tort laws would have much to say about such monitoring, so long as the employer discloses the monitoring to employees up front. The monitoring may, however, run afoul of disability and medical-privacy laws. As or more importantly, I suspect that employees will demand a significant wage premium from an employer wanting to do this kind of monitoring. I know I would.
Hat tip: Work Related Blogs and News.
January 15, 2008
Leslie's Labor Law Nutshell (5th Edition)
Congratulations to Doug Leslie (Virginia) for the publication of Labor Law in a Nut Shell (5th Ed. 2008 Thomson/West).
A venerable publication that I used mysekf to survive Professor Kamiat's labor law classes at Georgetown back in 1996, this publication is a favorite with students and practitioners alike.
Hard to believe that the First Edition came out in 1979!
Recently Published Scholarship: Employee Benefits Law Symposium
- Alison McMorran Sulentic, Secrets, Lies & ERISA: The Social Ethics of Misrepresentations and Omissions in Summary Plan Descriptions, p. 731.
- David Pratt (left), The Past, Present and Future of Health Care Reform: Can It Happen?, p. 767.
- Mark D. DeBofsky (second), What Process Is Due in the Adjudication of ERISA Claims?, p. 811.
- Craig C. Martin (third) & Joshua Rafsky (fourth), The Pension Protection Act of 2006: An Overview of Sweeping Changes in the Law Governing Retirement Plans, p. 843.
- Barry Kozak (fifth) & Joshua Waldbeser, Much Ado About the Meaning of ‘Benefit Accrual’: The Issue of Age Discrimination in Hybrid Cash Balance Plan Qualification Is Dying but Not Yet Dead, p. 867.
- Kathryn L. Moore (right), Book Review: The Battle for Social Security: From FDR’s Vision to Bush’s Gamble, Nancy J. Altman, p. 909.
- Albert Feuer, Who Is Entitled to Survivor Benefits from ERISA Plans?, p. 919.
- Adrienne Detanico, Banning Smoking in Chicago’s Social Scene: Protecting Labor and Broadening Public Health Policy, p. 1063.
Welcome to the Blogosphere: Contemporary Working
Manpower's newest blog is Contemporary Working. It discusses issues facing today's worker, many of which could have legal repercussions. The blogger is Melanie Homes, who is VP of World of Work Solutions at Manpower North America.
From the press release:
The blog . . . serves as an open forum to facilitate an exchange of ideas on tips, tools and topics as diverse as the workplace itself. Frequent topics include the aging workforce, the looming talent crunch, working women, work-life balance, workplace diversity of all kinds, professional etiquette and more.
Melanie’s posts are inspired by a multitude of sources, some of which incorporate current events, Manpower research, what she is watching on TV or listening to on her iPod, and even her two dogs: Wilson, a Cavalier King Charles Spaniel, and Hannah, a yellow Lab.
Check out the blog and let Melanie know your thoughts.
January 14, 2008
A Cacophonous Tune Called Discrimination
Jazz great Wynton Marsalis laments that some employers "play a cacophonous tune called discrimination" in one of two public service announcements that the EEOC unveiled today.
Both 30-second PSAs feature Marsalis and focus on the value of diversity in the workplace and the dangers of discrimination. The PSAs were produced in cooperation with Jazz at Lincoln Center and shot at JALC's New York facility in October. The EEOC plans an aggressive push to air the PSAs on television and cable stations, on web sites and on radio. The spots are close-captioned for the hearing-impaired.