November 15, 2008
SSRN Top-10 List of Recent Employment & Labor Downloads
- John R. Graham, Si Li, & Jiaping Qiu, Managerial Ability and Executive Compensation (121).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 3 (87).
- Danielle Keats Citron, Cyber Civil Rights (84).
- Jeffrey N. Gordon, 'Say on Pay': Cautionary Notes on the UK Experience and the Case for Muddling Through (81).
- Joseph Seiner (left), The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases (79).
- Mark N. Mercer, Roth Retirement Accounts: A Practitioner's Approach (71).
- Ariana R. Levinson (right), Industrial Justice: Privacy Protection for the Employed (64).
- David Allen Larson, Conflicts of Interests and Disclosures: Are We Making a Mountain Out of a Molehill? (63).
- David J. Doorey, Union Access to Workers During Union Organizing Campaigns: A New Look through the Lens of Health Services (63).
- Amy C. McCormick & Robert A. McCormick, The Emperor's New Clothes: Lifting the NCAA's Veil of Amateurism (62).
Bonior Says He's Not Interested in being Secretary of Labor
Our first solid bit of news about Obama labor and employment appointments is in and, not surprisingly, it's someone pulling their name. Former Rep. David Bonior of Michigan, a name high on most list of possible DOL nominations, has said that while he'll help the administration, he's not interested in being labor secretary. Apparently teaching labor law is too good of a gig to give up.
November 14, 2008
Holiday Parties: Another Victim of the Economic Crisis
This obviously doesn't rise to the level of job losses and declining real income. However, the veritable tradition of holiday parties is being threatened by the economic downturn. According to Yahoo! News:
From American Express to MTV to the Bend, Ore., city government, employers are canceling Christmas celebrations because of the gloomy economy. At some other workplaces, last year's catered affair is this season's potluck.
"It's grim," said Daniel Briones, president of the National Association of Catering Executives and catering director at the Four Seasons Hotel Philadelphia. He called the drop-off in business the worst since 2001, when the holidays unfolded in the shadow of the Sept. 11 terrorist attacks. . . .
One in five companies is scuttling or scaling down its year-end bash, according to the workplace consulting firm Challenger, Gray & Christmas Inc. Surveys by the catering executives group and the trade magazine Special Events found a majority of event planners are losing at least 10 percent of their corporate holiday business.
Larry Weaver, a Durham, N.C., comedian and booking agent who specializes in corporate events, said cancellations are nearing an unprecedented 20 percent. "It's been devastating," Weaver said, noting that some of the entertainers he represents earn the bulk of their income during the holiday season. . . .
This is a reminder that a cut-back in parties has economic affects of its own. So maybe it's a civic virtue to hold a Holiday Party . . . .
Hat Tip: Dennis Walsh
More Commentary on the Grand Irony of ERISA
Thanks to Ian Millhiser (National Senior Citizens Law Center) who wrote this piece about the inequities of employee benefits law under ERISA with his colleague Simon Lazarus for the U.K. Guardian.
Here's a taste:
Erisa sets strict standards to ensure that employers and insurers administering group benefit plans act "solely in the interests of beneficiaries for the exclusive purpose of providing benefits," not their own bottom-line. But the court has rendered these protections meaningless. In a Catch-22 decision written by Justice Scalia, a 5-4 majority held that, when plan administrators violate their obligations under the law, victims may not recover any monetary compensation for resulting losses they suffer. Adding insult to injury, the court has read Erisa as a warrant for "pre-empting" – ie abolishing – pre-existing state law protections, leaving victims with literally no recourse. Thus, in the words of, the late Justice Byron White, the supreme court has achieved the "perverse anomaly of leaving those Congress set out to protect with less protection than they enjoyed before Erisa was enacted."
When forced to apply the supreme court's "tangled" Erisa rules, ordinarily circumspect federal judges have often harshly attacked them. Most famously, the late Chief Judge Edward Becker, a Republican named to the third circuit court of appeals by President Reagan, excoriated Justice Scalia and his allies for converting Erisa "into a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs directly contrary to the intent of Congress." Judge Becker stressed that the court's distortion of Erisa creates "strong incentives for HMOs to deny claims in bad faith or otherwise 'stiff' participants." The systemic result, he added, is a "'race to the bottom' in which the most profitable HMOs will be those that deny claims most frequently."
This topic is near and dear to my heart and the subject of my current paper: Sorry, No Remedy: The Grand Irony of ERISA. I agree with the authors of this commentary that the Obama administration must take action to right this ship. They recommend legislatively "fixing" bad ERISA precedent and to select new judges that are more sensitive to the aims of the law. \
More specifically, I would like to see Congress clarify current ERISA preemption doctrine to allow for more state experimentation in the area of health care financing and to make clear that "equitable relief" under Section 502(a)(3) of ERISA means exactly what it means under Title VII - backpay and other make whole relief.
Doorey on York University Strike
Unbeknownst to me until today, there has been a strike on-going at York University in Canada where friend of the blog, David Doorey, teaches. He writes on his blog:
The CUPE 3093 strike began on November 6th at York, and picket lines are up (see my entry on the rules of picketing). All classes are cancelled, including mine. We’ll have to watch carefully what happens in the coming days. It sounds like the parties are still quite far apart. The employer has offered to go to interest arbitration, which would end the strike, but the Union has so far shown no interest in that option to date. But that might change as the strike lingers on.
Remember that the striking workers are not being paid any wages during the strike (although they will receive some amount of strike pay from the union, usually on condition that they show up for picketing duty), and many of them depend on that income to pay their rent, travel home over the holidays, and feed themselves and their families. So pressure may build on them to resolve this dispute quickly. The University too will be under pressure from students to save the term some how. So both parties are now feeling pressure to settle the dispute. And that is how a strike is supposed to work.
Some more information from David:
The strikers are part-time sessional instructors and teaching assistants, who are mostly graduate students. The university deciced to cancel all classes, since earlier strikes by the same union and by the faculty union created chaos when classes were permitted to be continued throughout the strike.
The last time I remember a labor strike impacting a university in North America was at the University of Miami in 2006. It will be interesting to see how this turns out and who eventually "wins."
Yamada on Human Dignity
For decades, American employment law has been framed by the ideas of the unfettered free market and unilateral management control. This "markets and management" framework has helped to deliver growing levels of income inequality, job insecurity, and stress at work. This essay argues that human dignity should be our framing perspective for examining and shaping American employment law, building its case around sources ranging from Enlightenment philosopher John Locke and America's Founding Fathers, to newer fields such as therapeutic jurisprudence and the works of relational psychology theorists Carol Gilligan and Jean Baker Miller. The essay discusses several important employment law issues against the backdrop of this new "dignitarian" framework and closes with ideas about advancing this agenda in the public arena.
November 13, 2008
Employer Agrees to Give Prayer Breaks to Muslim Workers
In what may be the first settlement in the country securing prayer rights, a federal district court in St. Paul, Minn., last Friday preliminarily approved consent decrees that settle two religious discrimination and retaliation lawsuits brought by the EEOC against St. Cloud, Minn.-based chicken processor, Gold’n Plump Poultry, Inc., and an employment agency, The Work Connection, which referred workers to it.
Under the decree Gold'n Plump will add, for one area of its plants, a paid break during the second half of each shift in addition to a break early in the shift and lunch breaks it had been providing as required by law. The additional break will accommodate the religious beliefs of Muslim employees who wish to pray during the course of the work day. The timing of the breaks will fluctuate during the year to coordinate with the religious timing for Muslim prayers, which is governed in part by sunrise and sunset. Gold'n Plump has also agreed to pay $215,000 to a class of Muslims who may have been disciplined or discharged when they took breaks to pray.
The Work Connection, which referred workers to Gold'n Plump, has agreed to pay $150,000 to the class for requiring applicants to sign a form stating that they would not refuse to handle pork in the course of their jobs and for turning away workers who refused. The Work Connection will no longer use that form and will offer placement at Gold’n Plump to job seekers previously turned away for refusing to sign the form.
For more information, the EEOC's press release is here and a Minneapolis - St. Paul StarTribune article on the settlement before it was approved can be found here. This is an important religious accommodation case for a group that the EEOC has been particularly concerned about discrimination against for some time.
Hat tips: Oliver Broudy, Paul Secunda
Nelson, Berrey, and Nielsen on Structural Discrimination
Robert L. Nelson (left), Ellen C. Berrey (center), and Laura Beth Nielsen (right) have an article coming out in the December issue of the Annual Review of Law and Social Sciences. The article, Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences, argues that the law conceives of employment discrimination too narrowly, which enables discriminatory organizational processes to continue.
From the abstract,
Legal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a “perpetrator” model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that documents the pervasiveness of unintentional bias and the persistence of organizational processes that generate workplace discrimination. This narrow legal conception, coupled with a system of employment discrimination litigation that emphasizes individual claims and individual remedies, fails to support the organizational approaches that are most promising for redressing workplace discrimination. We review the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination, and the impact of equal employment law on organizations. We conclude by discussing the reasons for and implications of this divergence between law and social science.
This is another call in the growing body of literature on sociology, social psychology, and discrimination for the law to take social science research into account. Berrey, Nelson and Nielson along with several others, many of them friends of the blog, held a conference this past weekend at the Stanford University Law School, Discoveries of the Discrimination Research Group (DRG). The conference was funded by the American Bar Foundation, the Center for Advanced Study for the Behavioral Sciences, and the Ford Foundation. Click on the conference's link to see the program, hear the keynote speech, and access other materials from the conference.
November 12, 2008
Buchanan on Why Do Women Lawyers Earn Less than Men?
Neil Buchanan (George Washington) has posted on SSRN his piece: Why Do Women Lawyers Earn Less than Men? Parenthood and Gender in a Survey of Law School Graduates.
Here is the abstract:
Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature.
Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take part-time status are almost entirely women who take on child-rearing duties, and they reduce their work hours by an average of approximately thirty percent. These statistical results are, however, significantly less reliable because of the very small numbers of respondents (male or female) who work less than full time.
Not surprised about the "mommy penalty," though I think its continuing existence is more than unfortunate. The "daddy bonus," on the other hand, seems to jibe with archaic notions of men as family bread-winners. Perhaps with the forthcoming legislative nullification of Ledbetter, more pay discrimination claims will ferret out these types of insidious "bonuses."
November 11, 2008
Befort Earns Minnesota Justice Foundation Outstanding Service Award
Stephen F. Befort (Minnesota) has been selected the 2008 recipient of the Minnesota Justice Foundation (MJF) Outstanding Service Award in the Law Professor category. The award goes to a professor who is a public interest advocate both inside and outside the classroom. Advocacy must be demonstrated through activities such as building public interest law into coursework and creating extracurricular pro bono opportunities for students.
Befort teaches labor law, employment law and discrimination, public employment, comparative labor and employment, and disability in the workplace. He serves on the Minnesota State Bar Association's Legal Assistance to the Disadvantaged Committee and the University's Public Service Committee, and he was one of the initial members of the Legal Scholarship for Equal Justice Committee. He directed Minnesota's clinical program from 1982 to 2002.
Albany to Host Symposium on "Defining Race"
The Albany Law Review and Albany Law Journal of Science and Technology will host "Defining Race," a symposium exploring the intersection of race and law, on Friday, Nov. 14 from 9:30 a.m. to 5 p.m. Top scholars from around the country will participate in three panel discussions to examine how race is defined, as well as the implications of these definitions in a legal context.
- Bridgette Baldwin, Western New England College School of LawAnthony Paul Farley, Albany Law School
- James Gathii, Albany Law School
- Phyllis Goldfarb, George Washington University Law School
- Neil Gotanda, Western State University College of Law
- Cesar Cuauhtemoc Garcia Hernandez, Law Offices of Raul Garcia and Associates
- Annette Kahler, Albany Law School
- Hope Lewis, Northeastern University School of Law
- Bekah Mandell, Woodbury College
- Janai Nelson, St. Johns University School of Law
- Reginald Oh, Cleveland-Marshall College of Law
- Imani Perry, Rutgers School of Law
- Deborah Post, Touro Law Center
- Vilma Santiago-Irizarry, Cornell University
- Christian Sundquist, Albany Law School
- Donna Young, Albany Law School
Supreme Court Denies Cert in Employment Discrimination Record Sealing Case
In a previous post, I discussed the fact that the U.S. Supreme Court was considering whether to weigh in on when employment discrimination case records should be sealed.
The reporters committee for freedom of the press blog now reports that the Court has denied cert. in the case:
The Supreme Court today declined to accept review of an appellate court ruling that has allowed all records in a federal employment discrimination case to be hidden from the public for seven years.
The Court offered no explanation for its refusal to accept the case, New York Law Publishing Company v. Doe.
The publishing firm and two affiliated publications filed a petition for review after the Third Circuit Court of Appeals rejected its request to intervene in the case. It s ought to unseal the docket and record in the case, in which the plaintiff claimed she was wrongly fired because she had an abortion.
I have to say that I was skeptical of such a blanket rule of sealing in such cases and asked whether a similar rule could potentially apply in a sexual harassment case with particularly horrific acts.
Hat Tip: Jack Sargent
Zelinsky on Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco
Ed Zelinsky (Cardozo) has posted on SSRN his forthcoming piece in State Tax Notes: Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco.
Here is the abstract:
The Ninth Circuit's recent decision in Golden Gate Restaurant Association v. San Francisco saves the employer mandate of the San Francisco ordinance from ERISA preemption by slighting the language of the statute and by misapplying the U.S. Supreme Court's existing case law under ERISA Section 514(a). If (as is likely) the Supreme Court rules upon the ERISA status of employer mandates like San Francisco's by adhering to its past decisions, the Court will strike such mandates as ERISA-preempted. Under current law, the Ninth Circuit's opinion in Golden Gate II is not sustainable.
Although I think Ed's critique is probably consistent with the traditional way of interpreting ERISA preemption, I have argued elsewhere that the majority's reasoning in this case which focuses on the "presumption against preemption" in matters of traditional state concern per Travelers is more apt in this case.
I guess we shall see.
Comparative Labor Law & Policy Journal
- Lance Compa, Corporate Social Responsibility and Workers’ Rights, p. 1.
- Aaron K. Chatterji, Siona Listokin, “A Comment on Corporate Social Responsibility and Worker’s Rights,” p. 11.
- Sanford M. Jacoby, Finance and Labor: Perspectives on Risk, Inequality, and Democracy, p. 17.
- Simon Deakin, The Rise of Finance: What Is It, What Is Driving It, What Might Stop It?, p. 67.
- Gerald Friedman, The Dialectics of Management and Politics, p. 77.
- Teresa Ghilarducci, Solving the Paradox of Workers as Shareholders: A Comment on Sanford Jacoby, p. 85.
- Thomas A. Kochan, Beyond ‘Financialization’: The Era Ahead, p. 89.
- Brishen Rogers, The Complexities of Shareholder Primacy: A Response to Sanford Jacoby, p. 95.
- Sanford M. Jacoby, The Future of Labor and Finance, p. 111.
- Walter Nicholson, The Evolution of Unemployment Insurance in the United States, p. 123.
- Guy Mundlak, reviewed by Ariel C. Avgar, The Inextricable Link Between Labor Law and Industrial Relations Transformation: A Review of Fading Corporatism: Israel’s Labor Law and Industrial Relations Transition, p. 135.
Mantouvalou on Off-Duty Conduct, Privacy, and Unfair Dismissal
Virginia Mantouvalou (U. Leicester) has just published her article Human Rights and Unfair Dismissal: Private Acts in Public Spaces in The Modern Law Review. Here's the abstract:
This article addresses the termination of employment because of the conduct of the employee in her leisure time, in the light of the right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of UK courts and tribunals, which is based on a primarily spatial conceptualisation of privacy, is flawed. A fresh approach to privacy, resting on the idea of domination, is proposed, which is sensitive to the particularities of the employment relationship. Considering the fairness enquiry in dismissal, it argues that off-duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not su⁄ce. It further proposes that a particularly meticulous test is appropriate when certain suspect categories, such as the employees’ sexual preferences, are at stake.
November 10, 2008
EEOC, U. Phoenix Settle Religious Discrimination Claim for Nearly $2M
The EEOC today announced that Federal District Court Judge Mary H. Murguia has entered a consent decree for nearly $2 million and significant remedial relief to resolve a class religious discrimination lawsuit against the University of Phoenix, Inc., and its parent corporation, Apollo Group, Inc. The EEOC's complaint alleged that
managers in the Online Enrollment Department at the University of Phoenix discriminated against non-Mormon employees, and favored Mormon employees, in several ways, including: (1) providing the Mormon employees better leads on potential students; (2) disciplining non-Mormon employees for conduct for which Mormon employees were not disciplined; (3) promoting lesser-qualified or unqualified Mormon enrollment counselors to management positions while repeatedly denying such promotions to non-Mormon enrollment counselors; and (4) denying tuition waivers to non-Mormon employees for failing to meet registration goals, while granting the waivers to Mormon employees.
For more, see the EEOC's press release on the settlement.
Some Thoughts/Speculation on Labor and Employment Appointments in the Obama Administration
So what do you get when you put together the election of a Democratic President and the fact that much of the labor and employment law professoriate is, shall we say, on the progressive side of things?
Answer: many said academics wandering what role, if any, they will be playing in the new Obama administration. From the lowest of assistants to the assistant Deputy of something to the head of some important agency, the number of positions open in places like the Department of Labor, the NLRB, the EEOC, etc. is staggering.
What follows then is some combination of sheer speculation and educated guesses. Although I served on two of President-elect Obama's policy committees (labor and government reform), the latter as the Midwest Chair, I am completely outside of this process and do not serve on any of the transition teams in these areas.
In any event, here are my predictions/guesses (with a little help from my friends), and of course only a part of these appointments in any case will be from the academic world. Feel free to put forward your suggestions/predictions in the comments that follow. Who knows maybe somebody with some influence will be reading this post!
Secretary of Labor: Robert Reich (Dick Gephardt and David Bonior have also been mentioned)
Deputy Secretary of Labor: Ed Montgomery (also national chair of Obama's Labor Policy Committee)
Solicitor of Labor: Seth Harris, Kathy Stone
Deputy Solicitor of Labor: Sam Bagenstos, Eric Schnapper, Marion Crain
NLRB Members: Dennis Walsh, Anne Marie Lofaso, Jeff Hirsch, Sam Estreicher, Joan Flynn, Sharon Block, Jim Brudney
NLRB General Counsel: Michael Gottesman, Cindy Estlund, Craig Becker
Office of Labor-Management Standards: Ken Dau-Schmidt, Laura Cooper
EEOC Commissioners: Wendy Williams, Chai Feldblum, Charlie Sullivan, Mike Zimmer, Roberto Corrada
Women's Bureau: Nancy Levit, Susan Carle, Angela-Onwuachi-Willig
OSHA: Jordan Barab
Office of Disability Employment Policy: Paul Miller, Michael Waterstone, Michael Stein, Mark Weber
FMCS: Rick Bales, Marty Malin
Employment Standards Administration: David Weil, Tom Kochan
Wage and Hour Division: Catherine Fiske, Matt Bodie, Steve Befort, Peggie Smith
MSPB: Marty Malin, Joe Slater, Helen Norton
Office of Special Counsel: Richard Moberly
EBSA: Colleen Medill, Ed Zelinsky, Jon Forman
PBGC: Albert Feuer, Jim Wooten
OFCCP: Melissa Hart
Bureau of International Labor Affairs: Lance Compa, Matt Finkin, Hillary Josephs
One last thought: it will be interesting to see if Obama keeps the Center for Faith-Based and Community Initiatives.
Have at it everyone.
A Letter from Europe
Bruno Ciccaglione has an informative post today in Global Labor Strategies about the status of labor in Europe. Here's an excerpt:
The good old days [of a generous welfare state, collective bargaining, and more-or-less full employment] are gone. Today, the fundamental goals of the European Union are guided by the principles of neo-liberalism. Collective social programs such as health insurance, pensions, and educational systems have become partially privatized in some countries as politicians seek to open new markets to private capital. “Precarity” of work now extends to the entire life of an increasing number of workers. And collective bargaining is under direct attack by many European institutions. For instance, in the last two years, the European Court of Justice ruled on cases –filed by both corporations and the European Commission itself—which, while acknowledging that fundamental labor rights such as the right to strike and the right to collective bargaining exist in Europe, also ruled that they are less important than the right to freely compete by the employers. And the EU is just about to approve a new Directive (the term for European laws) which not only allows companies to increase working time to more than 60 hours per week, but also introduces individual bargaining in place of collective bargaining on this issue.
Recently Published Scholarship
- Jennifer S. Hendricks (left), Instead of ENDA, A Course Correction for Title VII, Northwestern U. L. Rev. Colloquy (2008).
- David Copus (second) Pay Discrimination Claims After Ledbetter, 75 Defense Counsel J. 300 (2008).
- Spencer H. Silverglate (third) & Bradley S. Paskievich (fourth), Don't Get Mad, Get Even: Practical Strategies for Dealing with Retaliation Claims by the Plaintiff-Employee, 75 Defense Counsel J. 388 (2008).
- Robyn S. Stoter (right), Discrimination & Deference: Making a Case for the EEOC's Expertise with English-Only Rules, 53 Villanova L. Rev. 595 (2008).
November 9, 2008
Armageddon Over the EFCA?
Unions, delighted that they will have a friend in the White House after eight years of fighting President Bush, also plan to push for universal health coverage and a huge stimulus program to create jobs and counter the downturn. “Our major priority in the short and long term,” said Andy Stern, president of the Service Employees International Union, “is to get the economy working for Americans who work.”
But corporate America has already declared war on labor’s push for new legislation that would help unions organize. “This will be Armageddon,” said Randel Johnson, vice president for labor policy at the United States Chamber of Commerce.
Several possible compromises have been floated. One would keep the secret ballot vote, but hold the vote just a few days after the union requests an election. Another would give union organizers access to workplace sites and to limit employers’ ability to campaign against the union.
For the entire story, see After Push for Obama, Unions Seek New Rules. Hat tip: Andrew Vandiver.