October 25, 2008
Workplace Prof Bloggers Go AWOL
Well, not AWOL exactly -- we're all in San Diego for the Third Annual Colloquium on Current Scholarship in Labor and Employment Law. I had planned to live-blog it, but there's just too much good stuff here to cram into even a dozen posts. (And unlike my students, I can't type and participate simultaneously.)
October 22, 2008
Big Advance for Smithfield in UFCW RICO Case
They haven't won the case yet, but if the recently ruling by Judge Payne (E.D. Va.) in Smithfield's RICO suit against the UFCW and its corporate campaign is any indication, the union is in big trouble (see here for some background of the case). I'm having trouble getting a link to the decision, but some key holdings include:
- denial of UFCW's motion for summary judgment
- granted summary judgment to Smithfield on four of UFCW's defenses (including First Amendment claims)
- excluded evidence from New York Times about working conditions at plant
- refused to exclude evidence about past UFCW corporate campaigns
The amount of money involved could cripple the union (think treble damages). That makes this decision even tougher to accept. This opinion reads like it was copied from Smithfield's brief and, if applied elsewhere, threatens to chill any future corporate campaigns. Possibly the scariest part is the judge's holding that the truthfulness of the union's claims was not a defense to the state tortious interference issues involved. The idea that a public campaign that is truthful could result in a RICO violation is hard to swallow. Other problems include excluding evidence on safety given that part of the RICO action alleged that the union's claims about safety problems were false. Also, the judge's suggestion that petitions to the government that were intended to harass enjoy no First Amendment protection seems in conflict with the Supreme Court's recent BE&K decision.
Hat Tip: Dennis
Global Economic Crisis Having Impact on Pensions in Argentina
We already know that the global economic crisis is having far-reaching effects in the United States on the 401(k) plans of individuals and may also mean that less employers are able to afford offering health plans. Now comes word from foreign countries that have national pension scheme that the economic impact of the collapse is causing governments to invade the money locating in those national pensions.
Argentina's leftist President Cristina Kirchner signed a proposal nationalizing the country's private pension funds in what could be seen as a grab for cash and power amid the global economic crisis.
Details of the proposal -- which must be approved by the country's legislature -- were not immediately available. It was signed by Ms. Kirchner, along with Labor Minister Carlos Tomada and Amando Boudou, the head of the national social security system, ANSES. But an announcer during the televised signing ceremony described it as a project to "eliminate" the "capitalization system," a reference to the defined-contribution plans run by 10 private funds known as AFJPs.
In a speech following the signing ceremony, Mr. Boudou said the reform would "rescue Argentine retirees from uncertainty."
The proposal, which triggered a steep drop on Argentina's stock market after it was disclosed by union officials and reported in the Argentine press, reinforces Argentina's image as a pariah in financial circles and represents a repudiation of a system of private pensions that had been in vogue in developing countries. In 2001, Argentina announced the largest sovereign debt default in history.
The government said the takeover of the private system, created as an option to state pension funds in 1994, aimed to protect investors from losses due to the global market turmoil. But economists said the underlying motive would be to provide the government with about $5 billon in annual pension contributions that it needs to plug a gap in financing next year and avert a second debt default.
So add to the employee benefit consequences associated with the global economic collapse the reversion in developed countries away from private defined contribution plans to traditional, nationalized defined benefit plans.
It will be interesting to see whether other developing countries take Argentina's lead and re-nationalize their countries pension plans.
October 21, 2008
Daniels and Bales on Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases
Northern Kentucky/Chase law student Troy Daniels (left) and our own Rick Bales (right)have posted on SSRN their forthcoming piece in the Gonzaga Law Review: Plus at Pretext: Resolving the Split Regarding the Sufficiency of Temporal Proximity Evidence in Title VII Retaliation Cases.
Here is the abstract:
Courts in Title VII retaliation cases disagree over the evidentiary value of temporal proximity evidence when an employer fires an employee weeks or a few months after the employee engaged in protected activity. Seven circuits have adopted the Temporal Proximity Alone approach, which views temporal proximity evidence as sufficient, standing alone, to establish the causal connection element of a plaintiff's prima facie case. Three circuits have adopted the Temporal Proximity Plus approach, which requires that temporal proximity be combined with other evidence before it can establish the causal connection element. The Supreme Court has acknowledged the split of authority but has not yet granted certiorari.
This article argues that courts should require Temporal Proximity Alone at the prima facie case stage of the analysis, but require Temporal Proximity Plus at the pretext stage, an approach we call the Plus at Pretext approach. This novel approach maintains a relatively light burden on discrimination plaintiffs at the prima facie case stage of proof, but compensates by imposing a heavier burden at the pretext stage. It is both the best policy approach and it neatly reconciles existing case law.
This approach makes a lot of sense and one that would probably have mollified my students in employment discrimination law class this semester who seemed unpersuaded that temporal proximity alone should be enough to prove a retaliation plaintiff's case.
Trevino Bravo on Securities Litigation under the Guise of ERISA
Georgetown law student Clovis Trevino Bravo has posted on SSRN her article: ERISA Misrepresentation and Nondisclosure Claims: Securities Litigation under the Guise of ERISA?
Here is the abstract:
In the wake of recent corporate scandals and dramatic market downturns, many employees whose retirement savings plans were heavily invested in the stock of their employer have seen their account balances substantially depleted. To recover for their losses, plan participants have filed lawsuits under the Employee Retirement Income Security Act (ERISA) alleging that plan fiduciaries made misrepresentations or failed to disclose material information about the suitability of investing in the company stock. These suits are generally derivative or companion cases to securities class actions based on the same allegations of misrepresentations or nondisclosures. Even though there is a significant overlap between the ERISA and the securities suit, the procedural and substantive rules governing the two actions are substantially different.
This Article responds to the substantial need to identify these differences side by side and to examine whether ERISA fiduciary misrepresentation and nondisclosure claims amount to securities litigation in disguise, and if so, whether these claims should be allowed to proceed in the absence of the procedural safeguards imposed by the Private Securities Litigation Reform Act (PSLRA).
I have predicted recently the U.S. economic collapse will inevitably lead to a significant increase in the number of these types of ERISA stock drop suits. Unless the PSLRA is amended or other safeguards are added under ERISA, there is every reason to believe that these types of ERISA claims may become the new securities litigation claims of this decade.
It's Hard to Make a Case when You've Deported All of the Witnesses
In yet another odd turn of events in the investigations relating to a number of legal violations at the Agriprocessors meat processing plant in Iowa, the government may have suffered a serious blow. According to WHO TV news, the NBC affiliate in Des Moines, the Department of Labor miscalculated when to file a notice of deposition for nine witnesses scheduled for deportation. The depositions are related to alleged labor violations at the plant. Court rules require twenty-days' advance notice for depositions. The attorney believed that the witnesses were scheduled to be deported on November 1, but they were actually scheduled to be deported on October 10 (and were as far as I can tell). The judge allowed the depositions to be taken before the witnesses were deported but has not yet ruled on whether the depositions will be admitted into evidence.
Wooten on ERISA Preemption
James Wooten (Buffalo) has just posted on SSRN his article A Legislative and Political History of ERISA Preemption, Part 3. (15 J. Pension Benefits 15 (2008)). Here's the abstract:
The preemption language in section 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA) is exceedingly broad. The preemption language in the law ERISA replaced - the Welfare and Pension Plans Disclosure Act of 1958 (WPPDA) - was exceedingly narrow. There were four stages in Congress's journey from the narrowly circumscribed preemption of state law under the WPPDA to the sweeping suppression of state law under ERISA. This article covers the first three stages, tracing the evolution of ERISA's preemption language from the enactment of the WPPDA to the end of the Ninety-Second Congress. The next article in this series will describe the legislative history of the preemption provision in the Ninety-Third Congress, which enacted ERISA.
October 20, 2008
Supreme Court Takes Immigrant Identity Theft Case
The Supreme Court granted cert. today in Flores-Figueroa v. U.S., (No. 08-108). The case deals with federal prosecutors' attempts to bring theft-identity charges against undocumented workers who use other individuals' Social Security numbers to obtain employment. The circuits have been split on these attempts, as the New York Times describes:
The government has used the charges -- with the possibility of prison time -- to persuade people to plead guilty to lesser immigration violations. In other cases, defendants have been convicted of ''aggravated identity theft,'' even without proof that they knew their phony ID numbers belonged to real people. . . .
The central question is whether the defendant must know that the counterfeit identification belongs to someone else. Federal prosecutors have increasingly been bringing the more serious identity theft charges against undocumented immigrants, including many who were arrested in raids on meatpacking plants.
Defense lawyers have argued that their clients should not be charged with stealing an identity because the immigrants were seeking documentation only to allow them to work. They didn't know if the numbers were fictitious or belonged to someone else, their lawyers say. . . . The Bush administration, however, contends that the conviction was justified under a provision of federal law that makes it a crime to ''knowingly'' use a means of identification of another person.
Yet another example of ICE throwing the book at undocumented workers. I don't know enough about this law to have a decent opinion on whether it's should be covered. It does seem, however, that this isn't the type of action that Congress probably considered when enacting the law on "aggravated identity theft."
Hat Tip: Dennis Walsh
Seventh Circuit affirms that a disability attributed to AIDS is not synonymous with a disability attributed being HIV-positive
In EEOC v. Lee's Log Cabin, Inc., Korrin Stewart applied to work at Lee's Log Cabin restaurant in 2004. Stewart admitted on her application that she had a lifting restriction of ten pounds, which was less than 25-30 pounds as provided in the job description. A month after applying, Stewart returned to ask the assistant manager, Zastrow, whether they had considered her application. Zastrow, in the meantime, had learned through a newspaper story that Stewart was HIV-positive, had been fired by her prior employer and that the EEOC had reached a settlement on her behalf for disability discrimination. When Stewart got her application returned to her, it had "HIV +" written on the front.
The EEOC filed suit against the restaurant claiming it had violated the ADA when it refused to hire Stewart for a wait-staff position "because she was HIV-positive." After Log Cabin moved for summary judgment, the EEOC switched to describing Stewart's condition as "AIDS." The district judge thought the shift in factual basis was consequential and came too late. The court held that a disability attributed to AIDS was "not synonymous" with a disability attributed to being HIV-positive. Addressing the claim as originally configured, the court disregarded affidavits that identified AIDS, rather than HIV infection, as a pertinent disability. The court entered summary judgment for Log Cabin, and the EEOC appealed.
The Seventh Circuit affirmed because of EEOC's failed attempt to substitute factual premises left an empty record on whether Stewart's HIV infection limited one or more of her major life activities. For this reason, summary judgment was appropriate. In addition, Stewart was not a "qualified individual" under the ADA because the job description for wait-staff positions at Log Cabin required the ability to lift 25-30 pounds multiple times during the shift, and indicated on her application that she had a 10 pound lifting restriction that could not be accommodated.
The court agreed with the dissent in that Stewart may not cease being HIV-positive once she developed AIDS. But the court clarified that the opinion only hods that the physical effects of AIDS are different from HIV as they are more severe; thus the district court could reject the evidence. Admitting that the HIV-infection goes through progressive stages, the court further counters the dissent and explains that an allegation that Stewart has AIDS is consistent with an allegation that she was HIV-positive, but not vice versa. A person who is HIV-positive does not necessarily have AIDS, but the opposite is true. It is undisputed that at the time applied for the job and throughout litigation, Log Cabin knew that Stewart was HIV-positive, not that she had AIDS. In short, because the threshold "disability" determination turned on the extent to which Stewart's impairment limited her major life activities and because an AIDS sufferer's symptoms and their effect on major life activities differ from those of someone who is only HIV-positive, the EEOC's belated attempt to substitute AIDS for HIV-positive as a basis for this ADA claim came too late.
The court was careful not to decide whether HIV and AIDS are synonymous for all purposes under the ADA. It only addresses the limited issue of whether to entertain the EEOC's belated alteration of the factual basis of its claim because the EEOC essentially failed to give notice to the opposing party.
While HIV and AIDS may have differing stages by which it impairs the infected individual, the evidence that the EEOC presented before the trial court should not have been disregarded in this particular case. It is conceded that the EEOC initially alleged HIV-positive as the "disability" but later alleged AIDS. But in this case there is no difference in the evidence that would be required to meet the threshold requirement that the "disability" limited one or more of Stewart's major life activities. As the district court explained, "an allegation that Stewart has AIDS is consistent with an allegation that she was HIV-positive. [For] a person who has AIDS necessarily has HIV." The fact that Stewart has AIDS, which encompasses HIV, is materially different from someone who only has HIV. Thus, the EEOC did not alter the factual basis for the claim. Accordingly, the evidence regarding the effect that AIDS has on here major life activities easily doubles as evidence regarding the effect HIV has on her major life activities and should have been admitted. The district court may have erred on this point.
However, the case may still not survive summary judgment on the issue of whether Stewart was a "qualified individual." She could not meet the minimum lifting requirements, and when asked whether accommodations could be made to overcome her lifting restrictions, she answered "no." The court reasoned that an employer is not required to inquire into Stewart's subjective reasons for answering "no." Thus, the factual dispute over whether the lifting restriction was temporary or permanent was immaterial.
With the recent enactment of the ADA Amendments Act of 2008 requiring the definition of disability to be construed "in favor of broad coverage," all of the foregoing may ultimately be irrelevant and unnecessary.
Schedule for Third Annual Colloquium on Current Scholarship in Labor and Employment Law
As many of you know, this week is the Third Annual Colloquium on Current Scholarship in Labor and Employment Law. This year's program, which runs from Oct. 23-25, takes place in San Diego, and is co-sponsored by the University of San Diego, Thomas Jefferson, and California Western.
The organizing committee, led by Orly Lobel (San Diego), Ruben Garcia (Cal. Western), and Susan Bisom-Rapp (Thomas Jefferson) have put together an amazing program, featuring all presentations on all aspects of labor and employment law, and featuring some seventy law professor, practitioner, and graduate student presentations.
Here is the program schedule for the Third Annual Colloquium for both those attending and for those who cannot attend (so that the latter group can get an idea of the breadth of the subject matter being covered).
NALP: Law Firm Diversity Still Slow to Change
National Association for Law Placement (NALP) statistics indicate that the percentage of women and minority lawyers at law firms continues to increase, although the rate of change is very slow, and minorities and women and minority women continue to be dramatically underrepresented at the partnership level:
During the 16 years that NALP has been compiling this information, law firms have made steady, albeit slow progress in increasing the presence of women and minorities among their lawyers and summer associates. In 2008, minorities account for 6.09% of partners in the nation's major firms, and women account for 18.74% of the partners in these firms. In 2007, the figures were 5.40% and 18.34%, respectively. The total change since 1993, the first year for which NALP has comparable aggregate information, has been only marginal. At that time minorities accounted for 2.55% of partners and women accounted for 12.27% of partners. Looking at all lawyers represented, minorities now make up just over 12% of lawyers at these law firms, just under one-third of lawyers at these same firms are women, and minority women account for just over 6% of lawyers at these firms.
Minority women are particularly underrepresented:
Minority women make up less than 2% of partners in the nation's major law firms. At just 1.88% of partners, this group is thus particularly underrepresented in the partnership ranks, even more so than minority men, who account for just 4.21% of partners.
One bright spot: the representation of women and minorities in associate and summer associate ranks:
[W]omen and minorities continue to be much better represented in associate and summer associate ranks than in the partnership ranks. Women account for 45.34% of associates, minorities for 19.11% of associates, and minority women for 10.74% of associates. Each group lags in their representation by 3 to 5 percentage points compared to the population of recent law school graduates. ... Summer associate classes best reflect law school enrollment, with women comprising 45.42% of summer associates, minorities 24.04%, and minority women 12.99% of summer associates in 2008. Despite a slight decrease from 24.19% in 2007 to 24.04% in 2008, minority representation in summer programs slightly exceeded their representation among law students for the fourth year in a row.
The NALP study also found considerable variation in the representation of women and minorities among cities. Los Angeles, San Francisco, and Miami excel; Charlotte, Grand Rapids, Kansas City, Las Vegas, Raleigh/Durham, Richmond, Salt Lake City, and St. Louis are laggards.
Fire the Performance Review, . . .
. . . says Samuel Culbert (UCLA-Management) in today's Wall Street Journal:
To my way of thinking, a one-side-accountable, boss-administered review is little more than a dysfunctional pretense. It's a negative to corporate performance, an obstacle to straight-talk relationships, and a prime cause of low morale at work. Even the mere knowledge that such an event will take place damages daily communications and teamwork.
The alleged primary purpose of performance reviews is to enlighten subordinates about what they should be doing better or differently. But I see the primary purpose quite differently. I see it as intimidation aimed at preserving the boss's authority and power advantage. Such intimidation is unnecessary, though: The boss has the power with or without the performance review.
For more, and for Culbert's proposed alternative to the performance review, see Get Rid of the Performance Review!
Recently Published Scholarship
- Harry G. Hutchison (photo above), What Workers Want or What Labor Experts Want Them to Want?, 26 Quinnipiac U.L. Rev. 799 (2008).
- Brian P. McCarthy, Trans Employees and Personal Appearance Standards Under Title VII, 50 Ariz. L. Rev. 939 (2008).