Saturday, December 6, 2008
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 3 (101).
- Michael H. LeRoy (left), Crowning the New King: The Statutory Arbitrator and the Demise of Judicial Review (90).
- Patrick Macklem, Indigenous Recognition in International Law: Theoretical Observations (87).
- David C. Yamada (right), Human Dignity and American Employment Law (84).
- Edward A. Zelinsky, Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco (82).
- David J. Doorey, Union Access to Workers During Union Organizing Campaigns: A New Look through the Lens of Health Services (81).
- Mark N. Mercer, Roth Retirement Accounts: A Practitioner's Approach (76).
- Amy C. McCormick & Robert A. McCormick, The Emperor's New Clothes: Lifting the NCAA's Veil of Amateurism (74).
- Brian D. Galle, Do Hidden Taxes Increase Welfare? (69).
- Simon Deakin, Legal Origin, Judicial Form and Industrialisation in Historical Perspective: The Case of the Employment and the Joint-Stock Company (66).
Friday, December 5, 2008
The Sixth Circuit picked a side this week in a circuit split about whether retirees are covered by Title I of the ADA in McKnight v. General Motors. The plaintiffs in this case retired from General Motors early and then later became disabled, before they reached the normal retirement age. Their pension plans provided that if they became eligible for social security disability benefits before they reached normal retirement age, their pension benefits would be reduced by the amount of social security disability benefits they received. The plaintiffs argued that reducing their benefits because they became disabled violated Title I of the ADA.
The court agreed with the Seventh and Ninth Circuits that retirees were not covered by Title I, reasoning that only "qualified individuals with disabilities" were covered, and that an individual is qualified only if the individual "can perform the essential functions of the employment position that such individual holds or desires." This language, all in the present tense, led to the conclusion that Congress had put temporal limiations on the definition of covered individuals, suggesting that these individuals had to be current employees or applicants, not former employees--at least not former employees who no longer desired to work, which is what the retirees in this case were. That temporal limitiaton distinguished Title I of the ADA from Title VII, which the Supreme Court had held did cover former employees in Robinson v. Shell Oil Co.
On the other side of the split are the Third and Second Circuits, which held that the ADA explicitly prohibits discrimination in the provision of fringe benefits, some of which only become possible after an employee retires. To give effect to this language, those courts reasoned that Congress must have meant to include former employees in the definition of covered individuals.
Based on the language of the Act and its purpose to increase employment opportunities for people with disabilities, the Sixth Circuit seems to be on solid ground finding that at least employees who retire and then later become disabled were not meant to be covered by Title I of the ADA. These just aren't individuals who desire work but are being denied it based on stereotypes. And the injury here doesn't seem to be the kind of thing that the ADA was designed to prevent. The core purpose of the ADA was to promote the employment of people with diabilities. Additionally, the reason for this employer policy seems analagous to disability insurance or workers' compensation principles, where a total amount of income is ensured, but the income from the employer source is offst by the income from the other source of benefits. There is an appeal of consistency there.
There is one glaring problem with the Sixth Circuit's opinion, though, that the federal courts geek in me is compelled to analyze. The court frames the issue as one of standing, explicitly concluding "that former disabled employees do not have standing under Title I of the ADA." In framing the issue as one of standing, the Sixth Circuit conflated the merits of coverage with the constitutional, jurisdictional question. Clearly, these plaintiffs have standing because they suffered an injury--their benefits from the plan were lower than they would have been had the plaintiffs not become disabled. They have something real at stake that a judgment could remedy. That is standing for purposes of Article III. These plaintiffs' problem instead was that their injury was not legally cognizable. They had no cause of action under the statute. That's a merits issue.
I was just completing an exam review today with my employment discrimination law students and I noted that they should remember that the old Price Waterhouse standard might still apply to mixed motive cases under Section 1981, the ADEA, ADA, and retaliation claims under Title VII. The argument is that the Civil Rights of Act of 1991 only applies to Title VII claims and not to the other laws which are not mentioned in the amendment.
Today, the Supreme Court decided to take cert. in the case of Gross v. FBL Financial Services, Inc., No. 08-441 (opinion below: Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008), that will help decide exactly what standards should apply in a non-Title VII mixed-motive discrimination case.
From Ross Runkel's Law Memo:
Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial. The 8th Circuit reversed . . . .
The 8th Circuit held that "Section 2000e-2(m) [Section 703(m)] does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The 8th Circuit noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act." Since the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.
The US Supreme Court granted certiorari on December 5, 2008 to review the judgment of the 8th Circuit.
My thought is that the Court's ruling should not only apply to the ADEA, but to all the other non-Title VII employment laws, including the retaliation provisions of Title VII (Section 704), the Americans with Disabilities Act (ADA), and Section 1981.
As far as my prediction, this case is going to be a tough one to predict. On the one hand, I could see the conservative Justices saying that the CRA 1991 does not touch the ADEA and other laws and Congress has the power to change this if it wants. On the other hand, there might be some weight to the argument that since Title VII substantially applies the proof schemes for these other laws, it was not necessary to specifically name them.
I always thought this was a gaping hole in employment discrimination law and even if the Court finds the old Price Waterhouse standards apply, the one good things about cert being granted is that now the Obama administration and he Democratic Congress will be alerted for the need for legislation to harmonize this mixed-motive area of employment discrimination law.
The November unemployment numbers were expected to be bad, but most didn't expect this big of a jump in unemployment. The job losses appear to be affecting virtually all industries, especially the service sector (although health care and education added jobs) and don't look to get any better for a while. From the New York Times:
With the economy deteriorating rapidly, the nation’s employers shed 533,000 jobs in November, the 11th consecutive monthly decline, the government reported Friday morning, and the unemployment rate rose to 6.7 percent.
The decline, the largest one-month loss since December 1974, was fresh evidence that the economic contraction accelerated in November, promising to make the current recession, already 12 months old, the longest since the Great Depression. The previous record was 16 months, in the severe recessions of the mid-1970s and early 1980s. . . .
The job losses far exceeded the 350,000 figure that was the consensus expectation of economists.
Over all, the job losses since January now total more than 1.9 million, with most coming in the last three months as consumers and businesses cut back sharply in response to the worsening credit crisis. . . .
The report on Friday by the Bureau of Labor Statistics included sharp upward revisions in job-loss figures for October (to 320,000 from the previously reported 240,000) and for September (to 403,000 from 284,000).
A mass departure from the labor force helped to hold down the unemployment rate in November, which was up only two-tenths of a percentage point from October’s 6.5 percent. More than 420,000 men and women who had been working or seeking work in October, left the labor force in November. Most presumably gave up looking for a job, the bureau’s report suggests. If they had continued that search, the unemployment rate in November would have been closer to 7 percent.
John Leonhardt also has a column in the New York Times that does a good job explaining what we've been writing about for a while: the unemployment number by itself doesn't tell the whole story, because it doesn't capture underemployment and people who have dropped out of the labor market because they can't find work.
From Jerry Kalish's Retirement Plan Blog comes word of this National Bureau of Economic Research article by Robert Novy-Marx and Joshua Rauh, The Intergenerational Transfer of Public Pension Promises. Here's an excerpt:
The value of pension promises already made by US state governments will grow to approximately $7.9 trillion in 15 years. We study investment strategies of state pension plans and estimate the distribution of future funding outcomes. We conservatively predict a 50% chance of aggregate underfunding greater than $750 billion and a 25% chance of at least $1.75 trillion (in 2005 dollars). Adjusting for risk, the true intergenerational transfer is substantially larger. Insuring both taxpayers against funding deficits and plan participants against benefit reductions would cost almost $2 trillion today, even though governments portray state pensions as almost fully funded.
Thursday, December 4, 2008
Stephen Greenhouse at the New York Times is reporting on the recent arrests of the owners of Saigon Grill, a popular group of Manhattan restaurants. The arrests stem from charges of falsifying records and tampering with evidence involved in a long-running litigation between the restaurants and its workers. The list of wage and hour violations looks like something an evil professor cooked up for an employment law exam, with some labor law thrown in for good measure (no comments from my students please--remember that I haven't graded the exams yet):
The prosecution of the Ngets was led by the office of Andrew M. Cuomo, the state attorney general. An official in that office said the Ngets were charged with 151 counts of falsifying business records in the first degree with regard to wage violations, 45 counts of tampering with physical evidence and 46 counts of offering a false instrument for filing in the first degree. . . .
For nearly two years, Saigon Grill has been locked in a battle over wage violations with its deliverymen and their supporters, with picketing in front of the restaurants and allegations that Saigon Grill had illegally fired its deliverymen for asserting their rights.
In October, a federal judge awarded $4.6 million in back pay and damages to 36 delivery workers at two Saigon Grill restaurants in Manhattan, after finding blatant and systematic violations of minimum-wage and overtime laws.
Magistrate Judge Michael H. Dolinger of United States District Court in Manhattan found that Saigon Grill and the Ngets often did not pay their deliverymen for all the hours they worked and often made illegal deductions from their pay.
The judge found that the restaurants had paid $520 a month to many deliverymen who worked more than 260 hours each month. This meant that their pay came to less than $2 an hour, far less than the federal and state minimum wage. . . .
In the trial, the deliverymen, all immigrants from Fujian Province in China, testified that they were required to work 11 to 13 hours a day, usually six days a week. But their employers testified that the deliverymen had to work only at peak delivery times: 11:30 a.m. to 2:30 p.m., and 5:30 to 9:30 p.m.
Judge Dolinger found that the company had often illegally deducted pay, from $20 to $200, when deliverymen committed infractions like letting the restaurant door slam on their way out or failing to log in a delivery. The case covered wage violations from 1999 to 2007.
Last February, a judge with the National Labor Relations Board ruled that Saigon Grill had illegally fired 28 deliverymen nearly a year earlier and should reinstate them. The labor board judge found that the firings constituted illegal retaliation to punish the workers’ plans to file their lawsuit over wage violations.
It's nice to see arrests because of employment law violations rather than immigration violations. The New York AG's office has had a long history of going after problems in the workplace and it looks like that's not going to change for a while.
Hat Tip: Dennis Walsh
Just in time for the second congressional hearing with the big-three automakers CEOs, the UAW has offered to make substantial concessions if part of a government rescue plan. The UAW's president, Ron Gettelfinger, has long been willing to work with automakers (no doubt due, in large part, to necessity) and this time is no different as the union is offering to accept changes to its current collective-bargaining agreement. According to the New York Times:
Currently, the average U.A.W. member costs G.M. about $74 an hour in a combination of wages, health care and the value of future benefits, like pensions. Toyota, by comparison, spends the equivalent of about $45 an hour for each of its employees in the United States.
Base wages between the Big Three and the foreign companies are roughly comparable, with a veteran U.A.W. member earning $28 an hour at the Big Three compared to about $25 an hour at Toyota’s plant in Georgetown, Ky. (Toyota pays less at its other American factories.)
But the gap in labor costs becomes larger when health care, particularly for thousands of retirees and surviving spouses, and job security provisions are considered.
Mr. Gettelfinger said Wednesday that the union would suspend the much-criticized “jobs bank” program, which allows laid-off workers to continue drawing nearly full wages.
He also said the union would agree to delay the multibillion-dollar payments to a new retiree health care fund that the automakers were scheduled to start making next year.
Beyond those two concessions, Mr. Gettelfinger said the U.A.W. would be open to modifying other terms of its contracts. Changes could include reductions in wages, health care or other benefits, and would require approval from union members.
As the figures show, one of the big labor costs that the Detroit automakers face that their competitors don't are those associated with a large number of retirees and the promises made to them. The extent to which that can be cut back remains to be seen. Moreover, note the lack of noise about job security. The American auto industry is still bloated and job losses are going to have to occur. The UAW is obviously hoping to limit the pain of those cuts and, more important, ensure that one or more companies don't go belly up and cause even worse job losses.
Gettelfinger sums up the situation faced by the union with this comment: “Concessions, I used to cringe at that word. . . . But now, why hide it? That’s what we did.”
The Center for Economic and Policy Research has just issued a study, Unions and Upward Mobility for Women Workers, that demonstrates that unionization raises the wages of the typical woman worker by 11.2 percent compared to their non-union peers and increases the likelihood that a woman worker will have health insurance and a pension. The study notes that union membership results in health care and pension gains on par with the gains of a college education.
From the press release, the study
also shows that unionization strongly benefited women workers in otherwise low-wage occupations. Among women workers in the 15 lowest-paying occupations, union members earned 14 percent more than those workers who were not in unions. In the same low-wage occupations, unionized women were 26 percentage points more likely to have employer-provided health insurance and 23 percentage points more likely to have a pension plan than their non-union counterparts.
All of which led the author, John Schmitt a senior economist at the CEPR to conclude, "For women, joining a union makes as much sense as going to college . . . All else
equal, joining a union raises a woman's wage as much as a full-year of
college, and a union raises the chances a woman has health insurance by
more than earning a four-year college degree."
This study adds an interesting dimension to the fair pay debate and suggests that legislation making it easier for workers to organize might go some distance to raising women's wages, particularly at the low end of the scale.
Next Wednesday, the Supreme Court will hear oral argument in AT&T v. Hulteen (the ScotusWiki page with links is here), a case involving pregnancy leave and the calculation of years of service for retirement benefits.
The plaintiffs are women who worked for AT&T and its predecessor, Pacific Bell, who took leave related to pregnancies before 1979, and who retired between 1994 and 2000. Before 1979, the company limited the amount of pregnancy leave that would count towards service for calculating pension benefits, but did not limit the amount of other temporary disability leave that would count for service. In other words, before 1979, the company treated pregnancy leave differently from other temporary disability leave to calculate pension benefits at retirement.
In 1979 the Pregnancy Discrimination Act took effect, prohibiting employers from treating pregnancy leave different from other temporary disability leave, in seniority systems. The PDA did other things, too, but this is the part that matters for this case. The plaintiffs, thus, did not get full service credit for their leaves taken before 1979 and were awarded smaller pensions than if they would have received full credit. The question in this case is whether the decision at the time of these plaintiffs' retirements to calculate their benefits without giving full credit for pregnancy leave taken before 1979 is a violation of Title VII.
There are essentially two issues that the Supreme Court will consider: whether AT&T's calculation was a current violation of Title VII or whether construing Title VII to prohibit an employer from following its pre-PDA rule in calculating service credit is an impermissible retroactive effect. A related issue is when the discrimination (if there is any) occurred, triggering the time to file a charge with the EEOC. Several parties have weighed in as amici on both sides, including the US Solicitor General, which weighed in on the side of the employer, despite the fact that the EEOC agrees with the interpretation of the employees. Law.com has a good article summarizing those arguments and quoting Melissa Hart (Colorado), friend of the blog, among others.
This case presents some fascinating statutory interpretation and nature of discrimination issues that probably could not arise in another context, all related to when the discrimination actually occurred and what the state of the law was at the time. The discrimination may have occurred when the decision was made to create the policy, it may have occurred at the time the policy was put into effect, it may have occurred when the women took leave, it may have occurred when the PDA went into effect, it may have occurred the first time the women were effected by the seniority system, it may have occurred when the pensions were awarded, or it may have occurred at each of those points. And the meaning of the PDA is somewhat at issue. Some might say that it, for the first time, prohibited discrimination on the basis of pregnancy, and others would argue that it simply made clear that discrimination on the basis of pregnancy was discrimination on the basis of sex which Title VII had prohibited since its enactment.
There are some difficult issues here, but in my view, the case should be affirmed. The point at which the benefit was ultimately calculated was at retirement, and it was at that point AT&T decided not to give full credit for pregnancy leave. The language of Title VII itself makes clear that "an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose . . . when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system." 42 U.S.C. § 2000e-5(e)(2).
Hat tips: Jeff Hirsch and Barry Hirsch
David Doorey writes that the Saskatchewan Labour Board is considering a case in which the UFCW argued that Wal-mart's closure of a unionized store in Quebec amounts to intimidation under the Saskatchewan legislation, because it effects how Saskatchewan Walmart workers feel about the risk of joining the union. I think the UFCW may have difficulty winning on the merits, but the argument survived a preliminary objection.
Presumably, if behavior of an employer in another province can intimidate workers, than so too can behavior in other countries, such as the U.S. But the argument might be weaker in that instance if there is little media attention of the events occurring in the other jurisdiction. How the employees learn of the employer’s behavior elsewhere may be relevant. Note also that the Sask. Board does not intend to decide if the store closure in Quebec was legal or illegal. Rather, it is only asking whether closing a store, or threatening to close a store, to avoid a union satisfies the test of intimidation in Saskatchewan.
I was on the legal team of the United Steelworkers in the case that led to the first ever unionized Wal-Mart, at Windsor, Ontario. Marie Kelly was lead counsel, and did an excellent job convincing the labour board that Wal-Mart had committed numerous illegal acts during the organizing campaigns. I recall that we kept a well-marked version of the Sam Walton biography on the table during cross-examinations, which included a variety of comments about how Walton and Wal-Mart is determined to keep unions out. Wal-Mart’s much publicized anti-union philosophy certainly adds credibility to the argument that Wal-mart’s decisions to mass terminate employees who support unions is intended to be a warning to all other Wal-Mart employees. Intent to intimidate is not a requirement in the Saskatchewan legislation, so Wal-Mart’s objective will not be directly relevant.
This all reminds me of the Darlington line of cases from the States which says that an employer can completely go out of business in response to unionization without violating labor law, but may not partially close one of its facilities if it seeks to chill employees at other facilities (sometimes in other states) from exercising their Section 7 rights.
So, although this legal theory might seem far-fetched at first glance, it is not at all unheard of for similar theories to be successful in the United States.
Wednesday, December 3, 2008
The almost-final chapter in the Midwest Generation settlement we posted on earlier is here. An NLRB ALJ approved the settlement of charges brought over an illegal partial lockout. Under the agreement, approximately 1,200 employees are to be paid $15.5 million in backpay and benefits, as well as $170,000 to IBEW Local 15 for legal fees. The employer has already transferred the funds to the NLRB. The Board's press release states that:
The global settlement not only provides backpay to employees locked-out during the 2001 negotiations, but provides backpay and other monies, including 401(k) contributions, for the employees to compensate them for potential losses they suffered as a result of less favorable terms and conditions of employment implemented in the 2001 collective-bargaining agreement.
Hat Tip: Dennis Walsh
The federal government on Tuesday recommended the court deny certiorari in AK Steel v. West (07-663), an ERISA case. The brief, filed in response to an order last June inviting the views of the Solicitor General, is available here. To read previous certiorari stage filings in the case, click here.
As we wrote before, the case concerns:
The issue in this case is the manner in which a participant's benefit is calculated in the event his or her participation in the AK Steel Plan is terminated prior to reaching normal retirement age. Under the AK Steel Plan, such a participant may elect to receive his or net pension benefit in the form of an immediate lump sum disbursement. The amount of the lump sum disbursement is equal to the amount of a participants's hypothetical account balance.
Plaintiffs have brought the current action alleging than the manner in which their lump sum disbursements were calculated under the AK Steel Plan violated ERISA and the I.R.C . . . .
On the cash balance issue, the Sixth Circuit found that each retiree was entitled to have their lump-sum distribution reevaluated using the “whipsaw calculation” as determined by the district court, plus interest because the plan provided that whenever a participant elected lump-sum distribution, the benefit received would be equal to balance of participant's hypothetical account and because the interest credit rate specified in the plan was higher than statutory discount rate.
It is now less likely that the Court will grant cert. This is somewhat a disappointment as the Court not only could have cleared up "the cash balance/lump sum question, but also [could have] further define[d] the nature of equitable relief under ERISA," since the claim was denied as a Section 502(a)(3) claim below.
I am sure it is even more disappointing to AK Steel as this case will cost them $46 million, not including attorneys fees.
Friend of the blog, Jack Sargent, sends along this interesting group of observations about the use of declaratory judgments by employers in employment discrimination cases to head off (or try to take control of) an employee's discrim lawsuit. :
1. Here, American Apparel (AA), anticipating a sex harass/discharge lawsuit by a former employee, files first, asking a court to declare that it (AA) did not discriminate against a named employee. As anticipated, the same employee, later (and on the same day) files her lawsuit.
2. The use of a declaratory judgment action by employers is interesting for a number of reasons, not the least of which is choice of forum.
3. The last time I remember seeing this tactic was back in the late 90's during my time with the Cleveland EEOC. Here, Ameritech, in a Hulteen-type case, filed a 1997 Declaratory Judgment action in Chicago, more than 2 years after an Ameritech female filed a 1995 action in Cleveland, OH (the EEOC intervened in the Cleveland action). Ameritech successfully removed the Cleveland action to Chicago and the rest is history. Ameritech won in the district court and on appeal. And, needless to say, the Ameritech decision is a mainstay of AT&T's position in Hulteen [which is set to be argued before the Supreme Court this term].
Anyone else out there have similar stories of employers using declaratory judgment in employment discrimination cases - especially, where you believe the strategy paid off for the employer?
In our forthcoming case book on Global Issues in Employee Benefits Law, Sam Estreicher (NYU), Rosalind Connor (Jones Day-London), and I write about the emergence of Institutions for Occupational Retirement Provisions (IORPs) in the European Union:
A driver in Europe over recent years has been an attempt to create a single market in employee benefits, particularly pensions. The recent Pensions Directive (the "IORPs Directive") and the applications of the draft new insurance directive ("Solvency II") has been part of a push to make a level playing field. The Directive grappled with a range of different pension plan structures (UK trust-based plans, Dutch wholly insured plans, German self-funded plans and French government underwritten plans, to name a few) with a view to allowing Belgian employers to employ German employees through an Irish trust based plan, if that is what is wanted.
Apparently, according to Global Pensions, there is still much work to be done:
The European Commission consultation on possible changes to the Institutions for Occupational Retirement Provision (IORP) law should not lead to further harmonisation in the current climate, an industry body has warned.
The European Federation for Retirement Provision (EFRP) said a harmonisation agenda “could prove inconsistent” with the aim of providing adequate retirement income and added the scope of such a “major and complex” undertaking would be both “untimely and inappropriate”.
EFRP said the IORPs directive as it stands provides for minimum common standards, which provided the necessary legislative stability it felt was needed at present.
Furthermore, it added the IORPs Directive “has had insufficient time to develop significantly” since it was introduced in June 2007 with only 70 cross border IORPs schemes active, the majority (39) of which pre-dated the directive.
I agree with the EFRP that effective implementation of such a European single market for pension schemes may still be at least a decade away.
- James A. Sonne (photo above), Monitoring for Quality Assurance: Employer Regulation of Off-Duty Behavior, 43 Georgia L. Rev. 133 (2008).
- John Monahan, Laurens Walker, & Gregory Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks", 94 Virginia Law Rev.1715 (2008).
- Major Timothy J. Tuttle, USAF, Three’s a Crowd: Why Mandating Union Representation at Mediation of Federal Employees’ Discrimination Complaints is Illegal and Contrary to Legislative Intent, 62 The Air Force L. Rev. 127 (2008).
- Shannon Barrows Bjorklund, The Impact of Pregnancy Discrimination on Retirement Benefits: A Present Violation of Title VII or a Claim Belonging to History?, 75 Univ.of Chicago L. Rev. 1191 (2008).
- Timothy A. Steadman, Fighting Windfalls: The PBGC’s Battle for Workers’ Pension Benefits (and Its Own Financial Health), 61 Arkansas L. Rev.509 (2008).
What would our world look like if women wrote the laws? What would your life be like? Noted Professor Laurie L. Levenson ... explores how the Good Samaritan laws, Voluntary Manslaughter and Heat of Passion laws and Laws of War would have made our society very, very different had they only been written by women.
Hat tip: Ms.JD.
Tuesday, December 2, 2008
From the Daily Texan a couple of weeks ago:
Texas A&M International University in Laredo fired a professor for publishing the names of students accused of plagiarism.
In his syllabus, professor Loye Young wrote that he would “promptly and publicly fail and humiliate anyone caught lying, cheating or stealing.” After he discovered six students had plagiarized on an essay, Young posted their names on his blog, resulting in his firing last week.
“It’s really the only way to teach the students that it’s inappropriate,” he said.
Young, a former adjunct professor of management information systems, said he believes he made the right move. He said trials are public for a reason, and plagiarism should be treated the same way. He added that exposing cheaters is an effective deterrent.
This seems like a shaming method of punishment. Does it actually matter whether it works as an effective deterrent or is the medicine much worse than the disease?
Monday, December 1, 2008
St. George Warehouse, one of the September Massacre cases that placed a new burden on the GC in certain backpay cases, has reached its conclusion before the NLRB. In the most recent supplemental decision, the NLRB concluded that the employer did owe backpay to the two employees involved, despite the new mitigation rule created in the case. Basically, the Board agreed with an ALJ decision that the GC provided enough evidence about the employees' job search (including testimony by one of the employees, who had died) to meet the new rule.
Good to know that the St. George rule--to the extent it lasts much longer--isn't fatal in fact.
General Counsel Meisburg has just released a new memo on the enforcement of Levitz cases (dealing with an employer's ability to unilaterally withdraw recognition, which can happen only if there is an actual loss of majority support). The memo is intended to update a memo issued shortly after the original Levitz case. It recommends submission of cases the Division of Advice where employee petitions about union support (e.g., requests for decert elections) are questionable. The memo also discusses cases looking at what is appropriate evidence of a loss of majority support; in particular, there must be
objective evidence sufficient to demonstrate actual loss must be specific enough to show that a numerical majority of the unit no longer supports the union. Thus, in every post-Levitz case in which an employer successfully established actual loss, the employer presented evidence that a numerical majority no longer wanted the incumbent union as its collective-bargaining representative.Where the employer failed to present a numerical loss of majority support, the Board found that the employer had not met its burden.
The memo also emphasizes that Regions should dismiss 8(a)(5) charges where there is direct evidence of a loss of majority support: either firsthand statements by employees or untainted and clear employee petitions.
Unless I'm missing something (which is always possible), this seems like a pretty straightforward application of current law under Levitz. Indeed, given some of the evidentiary discussion in Allentown Mack, unions should be relatively pleased with the memo. There's the part about dismissing 8(a)(5) charges of course, but you can't reasonably expect anything else, especially as it's limited to clear showings of a loss of majority support.
Hat Tip: Paul Secunda