November 22, 2008
SSRN Top-10 List of Recent Employment & Labor Downloads
- John R. Graham, Si Li, & Jiaping Qiu, Managerial Ability and Executive Compensation (127).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 3 (94).
- Danielle Keats Citron, Cyber Civil Rights (93).
- Jeffrey N. Gordon, 'Say on Pay': Cautionary Notes on the UK Experience and the Case for Muddling Through (90).
- Joseph Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases (90).
- Ariana R. Levinson (right), Industrial Justice: Privacy Protection for the Employed (74).
- Mark N. Mercer, Roth Retirement Accounts: A Practitioner's Approach (74).
- David J. Doorey (left), Union Access to Workers During Union Organizing Campaigns: A New Look through the Lens of Health Services (71).
- Patrick Macklem (right), Indigenous Recognition in International Law: Theoretical Observations (66).
- Amy C. McCormick & Robert A. McCormick, The Emperor's New Clothes: Lifting the NCAA's Veil of Amateurism (63).
November 21, 2008
More on Smithfield Election
• The company drops its suit, and the union drops its boycott and public pressure campaign. The Justice@Smithfield website, for example, was quickly dismantled. Funding for the environmental justice group will end. (The group had been told at the outset funding was probably temporary, because UFCW’s priority was starting a local. Community-initiated lawsuits against hog farm pollution will continue.)
• In the run-up to the election, neither party may attack the other. If one party objects to the other side’s literature, a monitor rules on any violations and can order changes before the piece is circulated.
• The union has a regular schedule for access to workers inside the plant.
• The two parties will jointly establish a “Feed the Hungry” campaign. (The union sees this move as Smithfield’s attempt to repair its image.)
It's not technically a neutrality agreement, as Smithfield (just like the UFCW) can say positive things about itself, which obviously may affect employees' take on the need for a union. The increase in access is also an important feature. We'll see how it comes out.
Incidentally, Labor Notes also posits that Smithfield may have been motivated to settle because of the difficulty in establishing malice and because the union hadn't stopped its corporate campaign despite the RICO suit.
Significant Canadian Labor Decision on Right to Bargain
David Doorey (York Univ.) sends along word that there was a big decision this week from the Ontario Court of Appeal that ruled unconstitutional a statute that did not require employers to bargain collectively with unions selected by a majority of employees, and that provides for no dispute resolution mechanism to deal with bargaining impasses.
Although the statute in question applied only to agricultural workers, David points out that it is an interesting case in the development of the constitutional right to collective bargaining that they have had in Canada since the a decision of the Supreme Court in 2007.
Here's David's blog blog entry on it, which links to the decision in Fraser v. Ontario, so that readers from other countries can keep up on these important labor developments.
Feuer on the Supplemental Briefs in Kennedy ERISA Case
Here is additional commentary from Albert Feuer on the Supplemental Briefs requested after oral argument in the ERISA case of Kennedy v. Dupont Savings Plan Administrator. As the title of the piece suggests, it is Albert's view that this case has even become more confused with the filing of these briefs.
Albert points out that what he has written takes a different approach than a piece written by the SCOTUSBlog.
He concludes that:
The Supreme Court may still be able to discern three ERISA core principles from all the briefs that have been filed in this case and from the oral argument. First, ERISA benefit entitlements are determined by Plan terms. Second, ERISA protects benefit entitlement after the plan has paid the benefits. Third, the QDRO Provisions apply to all DROs pertaining to pension plans. The Court may reinforce each principle by using them explicitly in a decision on behalf of the Plan administrator.
It would be great if the parties and the Court would take under advisement the considered views of an ERISA practitioner who practices in this complex on a daily basis. Here's hoping.
November 20, 2008
United Gets Injunction Against ALPA
United Airlines has just gotten a preliminary injunction against the Air Line Pilots Association in response to the union's alleged sick outs. ALPA has been seeking reversal of some of the bankruptcy-era concessions they gave to United, without success. According to United, ALPA encouraged sick-outs that resulted in over 300 flight cancellations and the lost of approximately $8 million in revenue and $4 in profits. ALPA denied the encouragement, but a federal district judge agree with United. From Newsday/AP:
[In addition to the sick-outs, United] also argued that some pilots were carrying more fuel than needed and taking so-called work-to-rule actions, such as refusing to take off in planes with minor mechanical issues that did not require immediate attention under federal rules. . . .
The case required [the judge[ to parse carefully-worded union statements to pilots to figure out whether ALPA leaders were trying to discourage unnecessary use of sick time, as they claimed, or whether they were really sending coded signals to pilots that they should maximize the use of sick time.
It didn't help that beginning in February the union began including in every update a quote from Sun Tzu's "The Art of War," — that you can fight with a small army as well as a large one, "it is merely a question of instituting signs and signals." "This quote plainly suggests that ALPA's 'army' — the pilots — should look for 'signs and signals' from ALPA as to what actions they should be taking in the 'fight' against United," Lefkow wrote. That included phone calls to pilots to encourage them to call in "fatigued" instead of sick, because a fatigue call gets a pilot out of a flight no-questions-asked. The airline said fatigue calls more than doubled beginning in June, from one a day to more than 2.5 per day.
She also cited language from union publications saying pilots should "fly the contract," ''know the contract," ''honor the contract," saying they were understood in the business to mean "work-to-rule," an attempt to interfere with the airline's operations. She placed the blame for this with Master Executive Council Chairman Stephen Wallach, saying he "personally intended these phrases to signal ALPA's direction to engage in a job action." . . .
I don't think I've ever seen a labor dispute turn on a party's use of Sun Tzu before. Probably not the best move by the union in hindsight.
Hat Tip: Paul Secunda
2008 Newsletter for AALS Employee Benefits Section
I have just finished editing the 2008 AALS Newsletter for the Section on Employee Benefits.(There are separate newsletters for the Sections on Employment Discrimination Law and Labor Relations and Employment Law).
The newsletter is chock full of interesting tidbits, including sections on the 2008 AALS Annual Meeting in San Diego this coming January, Members News to Know, Information on the 2009 Midwinter Meeting of the ABA Employee Benefit Committee, and Case Law Developments.
Thanks for all of you who responded to my information request. I look forward to seeing many of you at the AALS Annual Meeting.
An Alternative Path to Washington
If a member of the Obama transition team has not yet tapped you on the shoulder ... Rachel Levinson, Senior Counsel for the American Association of University Professors, writes to say that she's looking for an associate counsel in her two-person in-house legal department, The job description is below. If interested, peruse the detailed job description and send a cover letter and resume to email@example.com.
Associate Counsel, American Association of University Professors. Three years or more experience preferred. The position, in a department of 2.5 lawyers, involves substantial in-house work for the Association; appellate brief writing, articles, and presentations on issues of academic freedom and the First Amendment; and consultation with faculty members, attorneys, and administrators on higher education issues and litigation. Experience strongly desired in union-side labor matters; experience preferred in one or more of the following legal areas: employment, higher education, non-profit organizations or associations, or civil liberties; experience with a range of legal issues desirable.
Yamada's Latest on Workplace Bullying
David Yamada (Suffolk) has been busy. We posted last week on his Human Dignity article; fresh on its heels is the new article Workplace Bullying and Ethical Leadership (forthcoming J. Values Based Leadership). Here's the abstract:
Workplace bullying presents serious challenges to organizations, but it remains one of the most neglected problems in the realm of employment relations. This article addresses the implications of workplace bullying for organizational leaders and suggests measures that can be undertaken to respond to it. In addition, it considers workplace bullying in the context of individual dignity and the practice of values-based leadership.
November 19, 2008
Unions, As Shareholders, Use Bailout to Push Executive Compenstion Reforms
My labor and employment law colleague, Phoebe Williams, who also teaches business associations, brings to my attention the roles unions, as shareholderes, are seeking to play in the current government bailout scheme.
The Laborers’ International Union of North America and the International Brotherhood of Teamsters are filing new proposals that seek compensation reforms at companies that participate in the U.S. Treasury Department’s bailout program.
In the supporting statement for these 2009 resolutions, the labor funds argue that the pay restrictions in the Treasury’s Troubled Asset Relief Program (TARP) “fail to adequately address the serious shortcomings of many executive compensation plans.” Instead, the unions urge directors to adopt “more rigorous executive compensation reforms that we believe will significantly improve the pay-for-performance features of the Company’s plan and help restore investor confidence.”
According to the Associated Press, more than 110 financial firms have indicated that they likely will participate in the TARP’s Capital Purchase Program, under which the government has so far committed up to $250 billion to buy preferred stock. The labor funds have filed this resolution at JPMorgan Chase, KeyCorp, Bank of America, American Express, and SunTrust Banks, and plan to submit the proposal at more than 45 other firms.
The proposal calls for directors to adopt the following reforms:
* Limit annual incentive compensation to an amount not exceeding one times the senior executive’s annual salary;
* Require that a majority of long-term compensation be awarded in the form of performance-vested equity instruments;
* Freeze new stock option awards to senior executives, unless the options are indexed to peer group performance so that relative, not absolute, future stock price improvements are rewarded;
* Require senior executives to hold for the full term of their employment at least 75 percent of the shares of stock obtained through equity awards;
* Prohibit accelerated vesting for all unvested equity awards held by senior executives;
* Limit all senior executive severance payments to an amount no greater than one times the executive’s annual salary; and
* Freeze the accrual of retirement benefits under any supplemental executive retirement plan (SERP) for senior executives.
The labor unions urge directors to adopt all of these reforms unless barred by existing executive employment agreements.
In short, the bailout has presented an opportunity for unions to actively challenge excessive executive compensation. This is an example of how unions through their roles as shareholders are seeking to influence executive pay, voting for boards of directors, and other corporate governance issues.
Reduction of Pensions in India
Global Pensions has this story about how one of the leading employers in India has been forced by the global economic crisis to reduce pension payments for current retirees. As the article explains, this action has the potential for causing a strike by current employees of the Reserve Bank of India:
Employees of the Reserve Bank of India (RBI) are to stage a mass casual leave at the beginning of December, calling for restoration of pension arrangements for retired employees.
The country’s central bank, which has 22,000 employees, last month reduced monthly pension payouts for around a third of employees who retired before 1997 by between Rs700 (US$14) and Rs5,000 (US$100) per retiree.
The decision means employees and officers of the bank will go on mass casual leave on 1 and 2 December in protest over the revised pension provision.
In a statement, the United Forum of the Reserve Bank Officers and Employees explained the government had suddenly withdrawn the upgraded pension that the superannuated employees had received over a period of six years.
Although U.S. unionized employees have also been know to strike over pensions, what strikes me about this action is that involves both employees and officers of the bank (a big no-no under American labor law). Also, it is interesting that the term "mass casual leave" instead of strike or work stoppage. Any of our readers have an explanation for the use of this term?
Labor and Employment Professor Members of Obama Agency Review Teams
As the country waits in suspense to see who will fill the prominent positions in the coming Obama administration, I have to admit that I am much more interested in learning who is playing a role currently in reviewing the labor and employment federal agencies.
We now have some answers with the posting of the Agency Review Teams for the Obama-Biden Transition.
As far as labor and employment law professor members, the list contains some eminent names including: Seth Harris (NYLS) (Working Group Member and Labor Team Lead); Tom Kochan (MIT) (Labor Team Lead); Cindy Estlund (NYU) (Labor Team Lead (NLRB)); Phyllis Borzi (GW Health) (Labor Department Team Member); Paul Miller (Washington) (Labor Department Team Member); and Emily Spieler (Northeastern) (Labor Department Team Member). Additionally, my former labor law and employment law professor at Georgetown, Walter Kamiat, is heading of the agency review of the PBGC.
Further information about the Team Leaders reveals that Tom Kochan will be leading review of the FMCS and Cindy Estlund will be doing the same with the National Labor Relations Board (NLRB).
My hope is that the number of labor and employment law academics on the transition team will translate to some appointments for our academic community in the new Obama Administration. My list of such possibilities (if anyone was on the transition team was reading) was published last week.
Hat Tip: Paul Mollica
Smithfield Election Set
As we reported earlier, part of the settlement of the RICO suit by Smithfield against the UFCW was agreement to a "fair election." That election has now been set for December 10-11. I'm still not sure what, if any, special procedures were established for the secret-ballot vote, but the results are to be made public immediately afterward, so stay tuned.
November 18, 2008
Donning, Doffing, and Booting Up?
Paul Caron at Tax Prof Blog has a post on a National Law Journal story (subscription required) discussing lawsuits alleging that employers unlawfully failed to pay employees for the time it takes to boot up and log off their computers each day. The argument is that 15 to 30 minutes each day is spent on these activities and that the employees should be paid for that time. The question is whether employees are free to do nonwork things while the computer is doing its thing.
My biggest question is: 15 to 30 minutes?! Speaking as one who is forever cursed by slow computer performance, that still seems outrageously long. Although I imagine that all the software required at some companies could take that long to load up.
Hat Tip: Kathleen Lyon
2008 Newsletter for AALS Labor Relations and Employment Law Section
I have just finished editing the 2008 AALS Newsletter for the Section on Labor Relations and Employment Law. (There will be separate newsletters for the Sections on Employment Discrimination Law and Employee Benefits Law).
The newsletter is chock full of interesting tidbits, including sections on the 2008 AALS Annual Meeting in San Diego this coming January, Members News to Know, Publication of Last Year's Panel, and Case Law Developments.
Thanks for all of you who responded to my information request. I look forward to seeing many of you at the AALS Annual Meeting.
Stone: Employment Stability Critical to Solving Mortgage, Consumer Credit Crisis
Kathy Stone (UCLA) has jut published an essay in UCLA Today on The Deeper Roots of the Mortgage Crisis: Employment Instability:
Long-term mortgages assume that borrowers have reliable and long-term employment relationships. Due to fundamental changes in the nature of economic life over the past two decades, that kind of employment stability is no longer the norm.
* * *
According to the Bureau of Labor Statistics, the median length of time a worker spends with a particular employer has decreased in every age group. Today people have a more episodic experience in the labor market, moving from employer to employer, with periods of employment often followed by periods of unemployment and transition.When unemployment strikes, mortgage payments that once had been manageable become impossible.
What this means is that we need to redesign our housing policy (as well as other social policies, such as health insurance, which assume long-term employment) to meet the new reality of people’s work life cycles. For example, we should explore redesigning mortgages to have flexible resets that permit mortgage holidays during spells of unemployment.
Some commercial loans currently have this feature for businesses that are in temporary difficulties. Because the nature of employment has changed profoundly, it is time to revisit the structure of housing finance, as well as the many other social institutions that were built on a foundation that is no longer there.
Supreme Court Takes Pass on NLRB Undocumented Workers Case
The United States Supreme Court decided yesterday to deny certiorari in an NLRB case concerning whether undocumented workers are considered employees under Section 2(3) of the NLRA. Both the NLRB and the D.C. Cir. found that they were in Agriprocessors v. NLRB. The issue about the status of the undocumented workers became important because the company refused to bargain with the union once it won the election because 17 out of 21 employees were challenged as being in the United States illegally.
Agriprocessors, a company that specializes in the production of kosher meats, has also been in the news lately after the company was raided by the government based on the employment of a large number of undocumented workers and after its top offcials were arrested for lying about its workers citizenship status.
This is an interesting case because it can be contrasted with the view that the Supreme Court took in the case of Hoffman Plastics, in which the Court held that undocumented workers who were illegally fired under the NLRA could not seek backpay.
Like everything else in this area of the overlap of immigration law and labor law, it is unlikely this is the last we have heard about this issue.
Home Depot en Espanol
Home Depot has, according to yesterday's Wall Street Journal, become one of the first American retailers to offer a Spanish-language version of its website. Good for Home Depot, but it's hard for me to imagine why other retailers are so slow. Maybe a recession-era scramble for sales will motivate others to follow Home Depot's lead.
Recently Published Scholarship: The Labor Lawyer
Volume 24, Number 1, Summer 2008
- Martin H. Malin (photo above), Revisiting the Meltzer-Howlett Debate on External Public Law in Labor Arbitrartion: Is it Time for Courts to Declare Howlett the Winner?, p. 1.
- John F. Fullerton III & Bruce R. Millman, NLRA Issues for the Non-Union Workplace, p. 31.
- Thomas W. Meiklejohn, Hostility of the National Labor Relations Board Toward Union Oranizer-Job Applicants, p. 57.
- Stuart R. Buttrick & Brian R. Garrison, Cut Back on Your Salt: Recent Developments Regarding Union Salts - Toering Electric Co. and Oil Capitol Sheet Metal, Inc., p. 71.
- Joseph P. Norelli, Permanent Replacements: Time for a New Look?, p. 97.
- Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employer’s Legal Guide to the Interactive Internet, p. 109.
- Elizabeth L. Lewis, A Review of Business and Commercial Litigation in Federal Courts, p. 143.
Shaving Seconds to Trim Labor Costs
Daniel A. Gunther has good reason to keep his checkout line moving at the Meijer Inc. store north of Detroit. A clock starts ticking the instant he scans a customer's first item, and it doesn't shut off until his register spits out a receipt.
To assess his efficiency, the store's computer takes into account everything from the kinds of merchandise he's bagging to how his customers are paying. Each week, he gets scored. If he falls below 95% of the baseline score too many times, the 185-store megastore chain, based in Walker, Mich., is likely to bounce him to a lower-paying job, or fire him.
The brains behind Meijer's system is a consulting and software company known for decades as H.B. Maynard & Co., which last year became the Operations Workforce Optimization unit of Accenture Ltd. Borrowing from time-motion concepts first developed for U.S. steel mills and factory floors [remember Taylorism, anyone?], it breaks down tasks such as working a cash register into quantifiable units and devises standard times to complete them, called "engineered labor standards." Then it writes software to help clients keep watch over their work forces.
For more, see Stores Count Seconds to Trim Labor Costs. Hat tip: Dennis Nolan.