Friday, October 3, 2008

Political Speech at the University of Illinois?

Illinois The Chicago Tribune has a story on the University of Illinois' attempts to clamp down on political speech on campus (that already sounds bad, doesn't it?).  Citing a state law banning state workers from certain types of political activity while on state time, the school went overboard:

The University of Illinois has sparked outrage by telling faculty, staff and graduate students that a 5-year-old state law designed to prevent state workers from campaigning for candidates on state time or with state resources meant they could not express support for candidates or parties through pins, T-shirts or bumper stickers while on campus. Nor could they attend any political rally or event on campus, the administration said.

The governor's Office of Executive Inspector General, which investigates ethical violations, has gone one step further, saying state law meant that university students, not just employees, were prohibited from participating in political rallies on campus--an assertion at odds with the university's interpretation.  On Friday, the state attorney general's office said the ethics law did not apply to students. The office did not answer whether the law prohibited university employees from wearing political buttons while at work, attending political rallies on campus on non-work time or some of the other specific interpretations made by the university. . . .       

Tom Hardy, a University of Illinois spokesman, said Thursday that the university only wanted to inform its employees of the law and had no intention of enforcing it. The university, he said, would take no action against participants in [a] pro-Obama rally [challenging the school's interpretation]. . . .

Similar controversies are surfacing in other states, according to Foundation for Individual Rights in Education, a Philadelphia-based group that advocates for free speech on college campuses. The University of Oklahoma, for example, drew criticism last month when it told employees and students that they could not use university e-mail to endorse or oppose a candidate or to forward political humor and commentary.

I don't know where to begin.  First, the line about "informing" employees but not enforcing the law seems silly.  Why inform if you don't care enough to enforce (maybe the law requires some informational component?). 

Second, I'm not familiar with the Illinois law, but I have serious doubts whether the interpretation is correct.  The law sounds like the state equivalent of the federal Hatch Act.  The Hatch Act prohibits federal and certain state employees from running for office, soliciting political donations, and using government resources or time to engage in certain types of political activity.  But it most certainly does not prohibit public employees from expressing their personal political views in an area as public as a university campus.  Incidentally, the Hatch Act also does not apply to educators.

Finally, even if the Illinois law is more restrictive than the Hatch Act, it's probably unconstitutional.  Even under the Supreme Court's narrowing view of public employee free speech, a public employer would have a very difficult time defending discipline against this type of activity.  Unless there's some effect on work performance, or government time or resources, public employees should have as much right to express their political preferences in a public forum as anyone else.


October 3, 2008 in Labor and Employment News | Permalink | Comments (7) | TrackBack (0)

Declining Employment

Graph_down The DOL has just released its September employment figures, and they're bad.  Very bad.  In the worst loss recorded in five years, almost 160,000 jobs were lost last month--and this is before the Wall Street crisis hit.  It's also part of nine consecutive months of job losses, now totally approximately 760,000.  The bigger problem is that there's a strong likelihood that the worse is still yet to come. According to The New York Times:

The American economy lost 159,000 jobs in September, the worst month of retrenchment in five years, the government reported on Friday, amplifying fears that an already painful downturn had entered a more severe stage that could persist well into next year. . . . Only a few weeks ago, many economists still held hopes that the economy might recover late this year or early next. But with the job market now contracting faster, and fear dogging the financial system, the broad assumption has taken hold that 2008 is a lost cause. Most economists have concluded that the economy will struggle well into next year. More pessimistic forecasts envision the economy remaining weak through most or all of next year. . . .

For the first eight months of the year, the economy lost an average of 75,000 jobs each month. September’s report more than doubled the pace. . . . The unemployment rate remained steady at 6.1 percent in September, but economists said that reflected how people who had given up looking for work were not counted. Over the last year, the unemployment rolls have swelled by 2.2 million, to 9.5 million. On Friday, Goldman Sachs forecast that the jobless rate would reach 8 percent by the end of next year, which would be the highest in 25 years. . . .

The report amounted to a catalog of woes afflicting Americans who depend on paychecks.

Manufacturing lost 51,000 jobs in September, bringing the decline so far this year to 442,000. Retailers lost 35,000 jobs, and construction shed 35,000. Employment in transportation and warehousing slid by 16,000. Jobs in financial services dropped by 17,000, and have slipped by 172,000 since employment peaked in that part of the economy in December 2006. Health care remained a bright spot, adding 17,000 jobs in September. Mining added 8,000 jobs. Government payrolls grew by 9,000 jobs — a trend with a limited shelf life as the economic slowdown shrinks tax revenue. . . .

Unemployment rose to 11.4 percent among African-Americans in September, and to 19.1 percent among teenagers. More than 21 percent of those receiving unemployment checks have been without work for more than six months, up from 17.6 percent a year ago, the report said. . . .

The number of Americans working part time because their hours were cut or they could not find a full-time job increased by 337,000 in September, to 6.1 million — a jump of 1.6 million over the last year, and the highest number since 1993. Average weekly wages for some 80 percent of the American work force have risen by a meager 2.8 percent over the last year, with the gains more than reversed by increases in the prices of food and fuel.

It's hard to determine what's worse about all of this.  However, the dramatic increase in people giving up looking for work or involuntarily working part-time is a figure that doesn't get enough attention. As I've said before, the unemployment rate by itself is only part of the picture.  And while the rate is going up, the conditions for workers in the U.S. is still far worse.


October 3, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Locke v. Karass

Supreme_court As Paul noted in his earlier post, this upcoming week--never mind the term--is a blockbuster for labor and employment cases.  I thought it would be helpful to give a more detailed reminder of the first case on tap for Monday:  Locke v. Karass (courtesy of Cornell's Legal Information Institute):

The state of Maine has designated the Maine State Employees Association (“MSEA”) as the exclusive “collective bargaining agent” for Maine state employees, including certain employees who are not members of the union. As a result, the nonmembers are required to pay service fees to MSEA, with part of the nonmembers’ fees pooled into the resources of a larger umbrella union. A group of nonmembers recently sued MSEA, claiming that this pooled arrangement with MSEA violates their First Amendment rights, because some of these litigation fees end up contributing to units outside MSEA. The District Court for the District of Maine held that the arrangement was constitutional and ruled for the unions, and the Court of Appeals for the First Circuit affirmed. At issue before the Supreme Court is whether such a pooling arrangement for extra-unit, collective-bargaining litigation expenses is constitutional. The Court’s decision will affect the financial burden on both nonmembers and local unions. Moreover, several circuit courts have decided differently on the issue of extra-unit litigation. With this case, the Court has the opportunity to reaffirm, clarify, or change the existing law.

It's worth noting, as mentioned by one of our commentors, that James Young of the Right To Work Foundation is arguing this case.  James is a frequent commentor on this blog and although we don't generally agree on labor issues, including this one, I wish him luck (but not too much).


October 3, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

RTWF on Dana/Metaldyne

Nrtwheader Patrick Semmen's at the Right To Work Foundation's blog has a recent post on the Dana and Metaldyne cases (see here for our descriptions of Dana).  Some of the post continues the discussion on Anne Marie Lofaso's (WVU) "September Massacre" piece, which was hashed out quite thoroughly here earlier (see also here).  The main thrust of the post is the following:

Ever since the National Labor Relations Board ruled in the Dana/Metaldyne case exactly one year ago yesterday, pro-forced-unionism "scholars" have rushed to decry the decision as "revolutionary." Apparently giving workers more freedom of choice is deeply disturbing to union bosses. . . .

The truth is that even with the Foundation-won protections afforded employees under Dana/Metaldyne, employees face a system drastically skewed to get unions in power and keep them in power [which Semmen's describes as "easy-in and hard-out']. And under "card check," these systemic biases are multiplied exponentially.

First - and most obviously missing from Lofaso's discussion - is the fact that under a card check "voluntary recognition" both the union organizers and the employer favor instituting the union (otherwise the employer would demand a secret-ballot vote).

Similarly, her complaint about "captive-audience speeches" rings hollow because under the current so-called "voluntary recognition" process captive audience speeches are most likely to be used to aid organizers in imposing the union on employees. Take the case of the Johnson Controls, for example.

Finally, Lofaso completely ducks the issue of the deep problems with card check compared to less coercive methods. There have been numerous employee reports of intimidation, half truths, lies and harassment of employees by union organizers during card check drives, where organizers corner workers one on one to pressure them into signing cards that are later counted as "votes" but Lofaso never addresses, or even references, those obvious problems that help provide the basis for the Dana/Metaldyne decision.

Ultimately despite what Lofaso and other pro-Big Labor "academics" say, Dana-Mataldyne does only one thing... give workers an additional right to challenge a union's claim of majority support via a secret ballot election. This important yet modest check represents only a small rebuke against the ability of union organizers to gain monopoly control over a workplace without even the support of a majority of employees.

My initial thoughts when Dana was first released are still relevant to this discussion:

I support the idea of maximizing employee free choice and the advantages of a free and fair election.  However, I find the Board's use of these ideas to be disingenuous.  The current majority has done nothing to rectify the obvious imbalance that exists in Board-run elections; to the contrary, they seem intent on minimizing employee choice whenever it is to the employers' advantage.  There is a lot of room for real NLRA reform in this area--reform that would truly maximize employees ability to freely choose to unionize and to refuse to unionize.  But, at this point, the battle is little more than each side trying to maximize whatever advantage they can muster.


October 3, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Duff on Hoffman and NLRA Practice

Duff_2 Michael Duff (Wyoming) has just posted on SSRN his article forthcoming in the Berkeley Journal of Employment and Labor Law, Embracing Paradox: Three Problems the NLRB Must Confront to Resist Further Erosion of Labor Rights in the Expanding Immigrant Workplace. The abstract:

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on the broad crediting of employee witnesses to establish unlawful employer conduct. How can NLRB attorneys win credibility-based cases heard before judges who may be predisposed to disbelieve witnesses based on the witnesses' unauthorized status? Third, after Hoffman bargaining units under the NLRA, which are certified when a union gains the support of a majority of employees in a work setting, can be severely impacted by the absence of a discharge remedy. How can the structural integrity of the NLRA be maintained if employers may simply discharge union-represented, unauthorized workers, without real remedial consequence, until the union's majority support, and with it the employer's obligation to bargain, is destroyed? Assessing the NLRB's peculiar, post-Hoffman investigative policy of assiduously avoiding immigration issues, the article contrarily recommends active engagement with the problems identified, and chides the agency's failure to embrace new paradox in the expanding immigrant workplace as a serious abdication of its mission.

This article is quite interesting and takes a different look at the impact of the Hoffman case.  Also, Duff's experience as a regional attorney for the NLRB provides a helpful perspective.  Check it out!


October 3, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Exciting Term Ahead at Supreme Court for Labor and Employment Law

4united_states_supreme_court_112904 Not quite as many case as last year, but 2008-2009 could be a blockbuster year for Supreme Court labor and employment law cases.

BNA Daily Labor Report provides some context:

The U.S. Supreme Court is scheduled to open its 2008-2009 term Oct. 6 with six labor and employment law cases awaiting oral argument.

The two First Amendment cases raise questions about whether public employee unions can require nonmembers to pay for extra-unit litigation costs as part of their agency fees and whether a state can prohibit local government employers from allowing payroll deductions for political activities. The justices also will consider whether Title VII of the 1964 Civil Rights Act protects an employee who is fired after she cooperated with her employer's internal investigation by reporting sexual harassment.

A pension benefits case raises the question whether an employer is liable for not giving full service credit to women who took pregnancy leaves before the Pregnancy Discrimination Act required that all temporary disability leaves be treated equally. An Employee Retirement Income Security Act case involves a divorce decree's effect on a beneficiary designation made by a now-deceased employee. The sixth case involves whether an employee covered by a bargaining contract that requires arbitration of employment discrimination claims may sue for such claims.

Additionally, there is an extremely important retaliation case under Title VII concerning the ability to gain protection under the law for internal complaints. The ACS Blog has some background on the Crawford case:

Crawford v. Metropolitan Gov’t of Nashville may fall under the radar of many who watch the Supreme Court’s upcoming term.   It should not as it is one of the most important cases before the high court this fall.  The case impacts employees and employers nationwide and addresses an important issue under the anti-retaliation provision of Title VII.  Title VII’s anti-retaliation provision contains an opposition clause and a participation clause.  It protects those workers who oppose unlawful employment discrimination practices and those workers who “in any way” participate in an employment discrimination proceeding, such as a formal EEOC investigation.   

However, the federal courts of appeals have ruled in their lack of wisdom that employees who give testimony or participate in internal employer investigations receive no protection under Title’s anti-retaliation provision.    The Sixth U.S. Circuit Court of Appeals in a cursory per curiam opinion reached such a result in the case of Vicky Crawford – a 30-year employee of the Metro School District who was terminated after she said during an employer interviewer that her supervisor sexually harassed her and other employees.

I agree with David Hudson at ACS that, "Employee-witnesses will be chilled from speaking the truth about inappropriate sexual conduct by supervisors and co-workers for fear of meeting the same fate of Vicky Crawford.   The message such a perverse result sends is 'tell the truth about harassment and discrimination and face possible termination.'”

There is also some optimism because the Roberts Court has a surprisingly good record on employee retaliation claims in such cases as Burlington Northern, CBOCS, and Gomez-Perez.


October 3, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

WPB Cage Match: Hirsch and Secunda on Workplace Federalism

Hirsch_3 Paulsecunda It's not quite Thunderdome, but our very own Jeff Hirsch and Paul Secunda face off in the online companion to Penn's law review, Pennumbra. The debate, on Workplace Federalism is an excellent one. Pennumbra's teaser says,

Paul Secunda and Jeffrey Hirsch debate whether it is the federal government or the states who are best able to protect the rights of workers. Professor Secunda argues that the states should serve as laboratories to “engage in thoughtful, legislative experimentation” in labor and employment laws. Professor Hirsch counters that such a proposal would exacerbate the problems with the current underenforcement of workers’ rights and, instead, the federal government should be given exclusive control of the workplace, under a single system of enforcement and regulation.

Read the whole thing. It's great work.


October 3, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (1)

Thursday, October 2, 2008

Political Strike at WV Mine

Umwa The TV station WBOY in West Virginia has a report on an interesting work stoppage at a WV mine.  It's not clear whether any CBA provisions are implicated, but the reason for the stoppage is somewhat unusual:

Coal production at a mine in Monongalia County came to a halt today when every union miner stayed home, as part of a political protest. . . .  Union officials say they took the day to protest after a film crew from the National Rifle Assocation showed up at the Consol mine last week to interview union workers. They say the crew tried to get union coal miners to speak out against Barak Obama. The UMWA has endorsed the democratic presidential nominee. . . .

"Consol doesn't let anybody on their property - never," said Safety Committee Member Mark Dorsey, "And for them to let the NRA come on the property and solicit our membership was totally uncalled for. We made our endorsement to our political process and we didn't bother them and they shouldn't be harassing our membership over this."

The company didn't comment, so it's unclear what explanation they may have, although it sounds a bit like Wal-Mart's actions in the runup to the November election.  In addition to helping establish a possible future discrimination claim if the union is ever excluded from the mine, this case could be an early application of GC Meisburg's political action memo.  There's no indication yet that the company will punish the strikers, but if that happens, my reading of the memo indicates that they're likely not to be protected under the NLRA.

If anyone has more info on this, I'd love to hear about it.


October 2, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 1, 2008

EEOC and HHS Clash on Proposed HHS Rule

Usdeptofhhsseal_2In late August, the US Department of Health and Human Services proposed a regulation on health care "Provider Conscience." That proposed regulation would, among other things, prohibit discrimination

against any physician or other health care professional in the employment, promotion, termination, or extension of staff or other privileges because he performed or assisted in the performance, or refused to perform or assist in the performance of a lawful sterilization procedure or abortion on the grounds that doing so would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions concerning abortions or sterilization procedures themselves.

This language, along with language that provides that health care professionals cannot be made to provide these services, assist in the provision of these services, provide information about these services, or refer patients to those willing to provide these services, is viewed by supporters and critics alike, according to a Washington Post article, as "broad enough to protect pharmacists, doctors, nurses and others from providing birth control pills, Plan B emergency contraception and other forms of contraception."

According to BNA's Daily Labor Report, the EEOC has filed a comment objecting to the proposed regulation on the grounds that it interferes with the employer/employee balance on religious accommodation struck by Title VII:

A proposed rule from the Department of Health and Human Services that would prohibit discrimination against health care workers refusing to participate in abortion-related services due to religious objections runs afoul of federal anti-discrimination law and could result in "profound confusion and extensive litigation," the Equal Employment Opportunity Commission says in comments on the proposed rule.

As the 30-day comment period for proposed regulations ends, HHS says it is reviewing a "higher than usual number of comments" to decide whether to go forward with the rule. Among several comments from key interest groups reviewed by BNA, EEOC is joined by the American Hospital Association in expressing concerns about the proposal, while the American Center for Law and Justice submits a comment in support of the rule.

In its comment, EEOC says Title VII of the 1964 Civil Rights Act ensures a constitutionally sound right to the accommodation of religious practices "for all employees, including health care employees." The proposed rule, purporting to create "an absolute right to religious accommodation," detracts from the employer’s ability to show "undue hardship" and throws off the balance of Title VII analysis, it says.

The BNA report can be found here (subscription required). The language here tracks the language of the Church Amendments, 42 U.S.C. § 300a-7 (2000), although it adds a definition for what it means to assist, and so it seems that the EEOC's real problem is with Congress, rather than the HHS.


October 1, 2008 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Magyar v. Saint Joseph Regional Medical Center: A Warning to Employers

Seventh_circuit On September 12, 2008, the U.S. Court of Appeals for the Seventh Circuit decided Magyar v. Saint Joseph Regional Medical Center.  This case serves as a warning as a warning to to employers.  An employer in the future might want to keep an employee informed about the status of the investigation of their complaint.

The plaintiff, Jessica Magyar was a college student working at the Hospital.  The equivalent of a full-time surgery scheduler position was covered by three people, one regular part-time employee who worked half-time and two PRN employees, one of which was Magyar, who worked the other half of the hours.  As a  PRN employee her work hours depended on the needs of the Hospital and didn't necessarily conform to regular hours, she didn't receive benefits and she was not required to accept work hours when offered.  While employed there, a co-worker named Carl and 30 years older than Magyar, on two separate occasions sad in her lap and whispered i her hear that she was "pretty."  Magyar reported the incidents to her immediate supervisor, Goddard, instead of thing through the ordinary harassment complaint process.  Goddard agreed to speak to Carl and did speak to Carl later that day.  Magyar heard nothing about the complaint, but also suffered no further harassment by Carl.

Hearing nothing and "fearing that at any moment there might be a third incident," Magyar next went to the Hospital's General Counsel and Organizational Integrity Officer, Wade, complaining about Goddard's failure to respond to the complaint.  Wade instructed Goddard to meet with Magyar again.  Approximately a week later, Goddard informed Wade that Magyar's issues "are resolved."

A couple of weeks later, Magyar found her part-time job posted on the hospital job listing, an act she deemed retaliatory.  Goddard had arranged to consolidate Magyar's job and that of another part-time staffer into a single full-time position for legitimate business reasons.  Magyar received no further work and was eventually terminated because she did not work enough hours. 

The Court of Appeals reversed summary judgment, holding that Magyar presented genuine issues of material fact about participating in a protected activity, establishing a causal link to the adverse action and the employer's defense that Magyar's job would have been eliminated anyway.

The majority finds that Magyar's complaints to Wade about Goddard's investigation was protected activity, that a causal connection between the protected activity and the adverse action and the employer's defense at most raised another material fact to be decided by the jury. 

In his dissent, Judge Posner views Magyar as a disgruntled employee who is trying to set up a retaliation claim by complaining about the processing of her sexual harassment complaint.  Therefore, he determines that no reasonable jury could find that the Hospital's actions were retaliatory, however, even if a jury could, it could not find that the "retaliation was for statutorily protected activity, that is, for 'oppos[ing] any practice made an unlawful employment practice by [Title VII].'"

Judge Posner argues that "[t]he majority's reasoning places employees such as Pam Goddard in an impossible position: If the employee reacts indignantly to being complained about, this is taken as evidence of retaliation; but if she reacts by admitting that the complaint about her to her superior is justified, or by not protesting seems tacitly to admit that, she sets herself and her company up for a lawsuit (with the admission as evidence for failing to handle a claim of sexual harassment in accordance with Title VII."

I disagree with the majority in this case.  It seems that Judge Posner is correct.  Magyar's complaint about the processing of her sexual harassment complaint  is not protected activity under Title VII.  An internal investigation is not a practice made an unlawful employment practice by Title VII.  It is rather a complaint about the handling of an internal investigation which is an internal business decision.


October 1, 2008 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Issue Exhaustion and ERISA

Scalesred Sticking with my theme of ERISA today, the Ninth Circuit has a decision of first impression concerning issue exhaustion and ERISA in the denial of benefits context.  In Vaught v. Scottsdale Healthcare (9th Cir 09/29/2008), the Ninth Circuit declined to impose an "issue exhaustion" requirement under ERISA.

Ross Runkel provides the details:

Vaught sued his healthcare plan under the Employee Retirement Income Security Act (ERISA), asserting (among other things) a claim challenging the plan’s decision denying his claim for benefits.  The trial court granted summary judgment in favor of the plan.  The 9th Circuit reversed as to that claim.

In court, Vaught asserted a theory that he had not presented during the course of the plan’s internal appeal procedure.  The plan argued that Vaught failed to exhaust his administrative remedies with respect to that theory and was therefore barred from relying on it in court.  The court rejected that argument, declining to impose an “issue exhaustion” requirement under ERISA.  The court noted that “[n]o ERISA statute precludes courts from hearing objections not previously raised to the Plan, nor does any ERISA statute or regulation require claimants to identify all issues they wish to have considered on appeal.”

The DISSENT argued that “the majority allows an ERISA claimant to engage in a court-sanctioned game of Texas Hold ‘Em against a Plan playing with all of its cards face up.”

I am with the majority on this one.  Absent textual or legislative historical direction that all theories must be exhausted at the internal appeal level, it does not seem this type of claim should be forbidden.  Also, considering the high hurdles that ERISA plaintiffs have to negotiated in these 502(a)(1)(B) cases, an additional procedural obstacle seems inconsistent with the primary purpose of ERISA, which is to protect and secure employees and their beneficiaries' benefits.


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

Federal Income Taxation of Retirement Plans

Erisataxation Friend of the blog Alvin Lurie writes about a major new treatise just published by Lexis/Bender: Federal Income Taxation of Retirement Plans, for which Alvin served as General Editor.

Among the authors of the 22 chapters are ten law professors: Edward Zelinsky, Jayne Zanglein, Norman Stein, Susan Stabile, David Pratt, Kathryn Moore, John McFadden, Brant Hellwig, Jonathan Forman and Eric Chason. Its remaining chapters were written by well-known benefits practitioners.

The book is a 2-volume set, and covers ERISA, the Pension Protection Act, Section 409A, cash balance plans, fiduciary responsibilities, prohibited transactions, funding, and most of the other major aspects of the taxation of retirement  plans, as well as a survey of the principal forces that led to ERISA, and the legislation between ERISA in 1974 and the PPA in 2006. Semiannual updates are contemplated.


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

9th Cir.: San Francisco Health Care Law Not ERISA Preempted

Sanfran In a first in the health care reform context, and in opposition to the 4th Circuits holding in the Wal-Mart Bill case of RILA v. Felder, the 9th Circuit has ruled in Golden Gate Rest. Ass'n v. San Francisco, No. 07-17372 (9th Cir. 9/30/08), that the San Francisco health care law is not preempted by ERISA.

From the BNA Daily Labor Report this morning:

The Employee Retirement Income Security Act does not preempt a San Francisco ordinance that requires medium and large employers in the city to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city, the Ninth Circuit holds . . . .

Writing for the court, Judge Fletcher says ERISA preemption is limited in areas that historically are matters of local concern, that employers subject to the city ordinance law lacked the sort of discretion that would render the program an ERISA plan, and that the ordinance does not "relate to" a benefit plan covered by ERISA.

The case has been watched closely by employer representatives and employee groups, which predicted the decision could have wide-ranging implications for the future of health care funding. San Francisco Mayor Gavin Newsom in a statement calls the ruling ''a huge victory for this city and the 46 million Americans who don't have health insurance.'' Business groups, however, call the decision "devastating" for small business owners.

Over the years following this issue, I have reluctantly agreed with the findings of ERISA preemption against these types of laws (see here for an example).

However, I am now persuaded that the 9th Circuit's ruling is consistent with the Travelers precedent from 1995 that unless a law is historically a matter of local concern, there should be a presumption against finding ERISA preemption. It seems to me that courts have read ERISA incorrectly in this regard in past cases.

My epiphany came in writing my new paper on the intersectionality of ERISA preemption and remedial provisions.  In order for many plaintiffs not to be deprived of the remedy that they deserve, the preemption provision must be strictly construed according to the language in Travelers.  This reading will ensure that defendant employers are not able to inappropriately use ERISA as a shield against meaningful health care reform or appropriate types of relief in ERISA cases.

BTW, I think it is pretty safe to assume that because this case has been characterized as "devastating" to small employers, and also considering the economic turmoil this country finds itself in, that there will be an en banc (and potentially Supreme Court challenge) to this ruling.


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

Tuesday, September 30, 2008

New Union Trust Rule

Dol The Department of Labor has just announced issuance of a new rule governing information about union trusts.  According to the DOL press release:

The U.S. Department of Labor's Office of Labor-Management Standards (OLMS) today posted at a final rule that enhances financial reporting and provides union members with more complete information about finances held in union trusts. The final rule, issued under the authority of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), further implements the LMRDA goal of securing the right of labor union members to have meaningful information about union finances and expenditures. The final rule also will be published in the Federal Register shortly.

"This final rule builds on the administration's commitment to transparency and accountability for corporations, pension funds and labor unions. Union members expect access to relevant and useful information in order to make fundamental investment, career and retirement decisions, evaluate options and exercise legally guaranteed rights," said Don Todd, deputy assistant secretary for labor-management programs. "With meaningful disclosure, the department hopes to deter potential misuse of union trusts that have occurred in the past and allow union members to know exactly where their hard-earned dollars are being spent." . . . .

The Form T-1 will use the same basic template as the existing Form LM-2, which has been in effect since Jan. 1, 2004, and unions have experience with filing. OLMS also has limited the burden on smaller unions that are unlikely to have significant funds in LMRDA-covered trusts. Only labor unions with total annual receipts of $250,000 or more will need to file a Form T-1. Additionally, labor unions will not be required to file a Form T-1 on trusts subject to certain other disclosure requirements.


September 30, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Say It Ain't So

Rat The rat is gone, at least in western New York.  Various unions' use of the inflatable rat has raised the ire of employers--and confusion of the NLRB--for years.  But at least one group of unions have given it up.  According BNA's Daily Labor Report (subscription required):

Building and construction trade unions in western New York state have decided that they need a new public image and will no longer display a 12-foot-tall inflatable rat on picket lines and at union demonstrations.  

During a rally in Buffalo, N.Y., on Sept. 14, union leaders punctured the gray rat and cut it into pieces, announcing that they were giving up use of the symbol in labor disputes because it was inconsistent with their hope for more cooperative union-management relations. 

One of the rally organizers, Paul Brown, president of the Buffalo Building & Construction Trades Council, told BNA Sept. 23 that "instead of being confrontational we'll be working for more participation in jobs." Brown said that by publicly destroying the inflatable rat, the council was offering "a symbolic gesture to show we're trying to work with everybody now." . . .

Michael McNally, business manager of Plumbers and Steamfitters Local 22, told BNA Sept. 23 that publicly destroying the inflatable rat, a symbol he called "offensive," already has improved organized labor's image in Buffalo. "It shows the business community and politicians this is a new era for organized labor in the Buffalo area," McNally said, adding that "[w]e've had a positive response" to abandoning use of the inflatable rat. 

Emmett L. Reilly, president of John W. Danforth Co., a western New York mechanical contracting firm, told BNA Sept. 24 that he was happy to see the rat symbol discarded. "It was not a tactic we were in favor of," Reilly said, stating that "30- and 40-year-old tactics" are no longer effective. But Reilly said that "[t]he issue with the building trades is they aren't competitive on price." Destroying the inflatable rate was a positive "step," Reilly said, but he cautioned that union-management relations still have "a long way to go."

All joking aside, I'm happy to see unions take the opportunity to improve relations with employers (although a more confrontational approach may be appropriate in certain situations).  However, Reilly's comments is a reminder that the rat's demise isn't a silver bullet.

Hat Tip:  Dennis Walsh



September 30, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Report and Special Prosecutor in DOJ Firings

DojEarlier this week, the Department of Justice's Office of the Inspector General and Office of Professional Responsibility issued a nearly 400-page report criticizing the firings of nine United States Attorneys as at the very least arbitrary and fundamentally flawed. The report also detailed the ways that the White House failed to cooperate with the investigation.

As part of the fallout, yesterday Attorney General Mukasey announced the appointment of Nora R. Dannehy as special prosecutor to continue the investigation.

Although the special prosecutor has not been charged with investigating the other hiring problems that we've noted here and here, it would not be surprising to me if the special prosecutor's investigation turned up further details on those issues. Taken together, the DOJ under Gonzalez appears to have been thoroughly infected with partisan political decisionmaking. This is the right step to reassert a culture of independence from partisan politics.


September 30, 2008 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Hasday on Women in the Military

HasdayjillJill Hasday (Minnesota) recently posted on SSRN her article, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 1 (2008). Here's the abstract

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, and the public has become more enthusiastic about women's military service, including in combat.

This Article brings long overdue attention to the record of women's legal status in the military in order to make three broad theoretical and historical points. First, women's continued exclusion from registration, draft eligibility, and some combat positions undermines the common assumption that legalized sex inequality has faded into history. Second, the record of women's legal status in the military helps illuminate how extrajudicial events can shape the Supreme Court's constitutional interpretation and then render that interpretation much less plausible over time. Rostker reflected contemporaneous understandings of sex equality. The extrajudicial transformation in women's military role since Rostker has undercut the factual premises and cultural assumptions behind Rostker's interpretation of constitutional equal protection, making clear that Rostker is inconsistent with the rest of the Court's sex discrimination jurisprudence. Third, and most strikingly, the record of women's legal status in the military illustrates how extrajudicial actors can develop and enforce their own evolving understanding of sex equality norms, sometimes becoming a more important source of those norms than courts. The extrajudicial transformation in women's military role has shifted the foundational normative commitments that shape the evolving meaning of constitutional equal protection. This transformation makes limits on women's military service that seemed just and reasonable in the 1970s and 1980s, even to many proponents of sex equality in constitutional and statutory law, now appear increasingly wrong, inequitable, and invidious. Over time, that shift in perspective is likely to affect demands for further change and judgments that both courts and extrajudicial decisionmakers reach about how the Constitution's open-textured language of equal protection applies to specific questions about women's military role. The Article concludes by exploring some of the practical consequences of the extrajudicial shift in perspective on women's military service.

This is an important article about the process of social change and the involvement of the Supreme Court.


September 30, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: EREPJ

Hodges Hebert_camille

Employee Rights and Employment Policy Journal
Volume 12, Number 1, 2008

Symposium: The Electronic Workplace

Foreword by symposium editors:

Symposium Articles

  • Richard Warner, The Employer's New Weapon:  Employee Liability Under the Computer Fraud and Abuse Act, p. 11.
  • Wendy R. Carroll, The Effects of Electronic Performance Monitoring on Performance Outcomes:  A Review and Meta-Analysis, p. 29.
  • William A. Herbert, The Electronic Workplace:  To Live Outside the Law You Must Be Honest, p. 49.

Other Articles

  • Steven E. Abraham, The Arizona Employment Protection Act:  Another 'Wrongful Discharge Statute' That Benefits Employers?, p. 105.
  • M. Neil Browne & Mary Allison Smith, Mobbing in the Workplace:  The Latest Illustration of Pervasive Individualism in American Law, p. 131.


September 30, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2008

Rosenthal on Garcetti

Rosenthal_l Lawrence Rosenthal (Chapman) has posted on SSRN his article (Fordham) The Emerging First Amendment Law of Managerial Perogative.  Here's an excerpt from the abstract:

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because his expressions were made pursuant to his duties.... The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance. Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law. Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence. The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions. This article endeavors to fill out the sketch.


I had the pleasure of seeing Lawrence present this paper at last year's LEL Scholars' Colloquium.  It will come as no surprise to readers of this blog that Paul Secunda disagrees with Lawrence's thesis (see Garcetti's Impact on the First Amendment Speech Rights of Federal Employees).  Lawrence is definitely swimming against the academic current -- but it's as yet unclear whether the academic current is merely an eddy, or a tide that will persuade the judiciary to take a different course.


September 29, 2008 in Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship



  • Megan E. Mowrey, Discriminatory Pay and Title VII: Filing a Timely Claim, 41 John Marshall L. Rev. 325 (2008).
  • Franita Tolson (photo above), The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, 33 Delaware J. Corp. L. 347 (2008).

Student Scholarship

  • Amy Kathryn Brown, Baghdad Bound: Forced Labor of Third-Country Nationals in Iraq, 60 Rutgers L. Rev. 737 (2008).


September 29, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)