February 23, 2008
According to BBC News, via Andrew Scott-Howman's Life at Work, an employee at Leeds Metropolitan University suffering from severe irritable bowel syndrome brought claims of disability, racial discrimination, and constructive dismissal:
The tribunal heard one of the woman's colleagues had said the office window had to be opened because of the smell and "we shouldn't have to put up with it".
The woman said she had been subjected to fellow workers making sniffing noises and bowel jokes when she was in earshot.
She complained about being harassed, but disciplinary proceedings were started against her because concerns had been raised about the quality of her work and increased sickness absences, the tribunal was told.
The tribunal panel dismissed all her claims.
What would be the outcome if such a claim were brought in the U.S.? I suspect the disability claim would turn on whether the employee could show that her condition affected a major life activity.
Top-5 International Employment & Labor Law SSRN Downloads
- Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (63).
- Leilani O. Baumanis & Robert W. McGee, The Economic, Cultural, and Ethical Effects of International Outsourcing (45).
- Shae McCrystal, Smothering the Right to Strike: Work Choices and Industrial Action (27).
- Shae McCrystal, Collective Bargaining and the TRAde Practices Act: The Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth) (13).
- Shae McCrystal, Collective Bargaining by Independent Contractors: Challenges from Labour Law (11).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Susan Liemer & Hollee Temple, Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time (217).
- Richard L. Kaplan, Top Ten Myths of Social Security (192).
- Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (152).
- A.G. (Tassos) Malliaris & Mary Malliaris, Investment Principles for Individual Retirement Accounts (76).
- Edward A. Zelinsky (photo above), Golden Gate Restaurant Association: Employer MandaateERISA Preemption in the Ninth Circuit (67).
February 22, 2008
Studying Employment Arbitration Empirically
Mark Weidemaier (U.N.C.) has just posted on SSRN his essay (forthcoming Mich. J. L. Ref.) From Court Surrogate to Regulatory Tool: Re-Framing the Empirical Study of Employment Arbitration. Here's the abstract:
A growing body of empirical research explores the use of arbitration to resolve employment disputes, typically by comparing arbitration to litigation using relatively traditional outcome measures: who wins, how much, and how quickly. On the whole, this research suggests that employees fare reasonably well in arbitration. Yet there remain sizable gaps in our knowledge. This Essay explores these gaps with two goals in mind.
The first and narrower goal is to explain why it remains exceedingly difficult to assess the relative fairness of arbitration and litigation. The outcome research does not account for a variety of "filtering" mechanisms that influence the relative merits of the cases adjudicated in each system. This Essay explores these filters, focusing on one in particular: most employee grievances are resolved within the workplace through relatively informal procedures. Workplace structures thus filter out most employee grievances before they reach arbitration. This fact has significant implications for efforts to interpret the arbitration outcome research. It also highlights the significance of the workplace as a locus of dispute resolution activity. Indeed, a growing body of research focuses directly on workplace compliance and grievance procedures.
Recognizing the significance of workplace dispute resolution leads to this Essay's broader goal. That goal is to expose, and hopefully bridge, an artificial conceptual divide that separates the arbitration research from research into workplace dispute resolution. Many researchers view internal compliance and grievance procedures as a means of harnessing the employer's own regulatory capacity. This conception drives a research agenda that explores the role of workplace structures in generating private norms and in implementing (or subverting) public norms like anti-discrimination. By contrast, the arbitration outcome research conceives of arbitration narrowly as a court surrogate, one that should ideally yield equivalent outcomes at lower cost. Although legitimate to a degree, this conception artificially separates arbitration from other employer-structured disputing procedures and yields an empirical agenda that leaves fundamental questions unanswered. This Essay closes by discussing two of these questions: First, do arbitrators play a meaningful regulatory role, either by shaping other arbitrators' practices or by shaping the terms of arbitration contracts? Second, under what circumstances do arbitrators effectively generate and enforce norms?
I think Mark makes a good point here. Arbitration is not merely a substitute for judicial resolution of employment disputes. Rather, arbitration does (and should) complement a much broader employer-provided system of dispute resolution. I'll post in the next few weeks a study I've been doing (along with Jason Plowman) of one employer with a comprehensive dispute resolution process culminating in binding arbitration.
February 21, 2008
Federal Unions Upset About FLRA Rule Change
Unionized federal employees are unhappy with rule changes adopted by the Federal Labor Relations Authority (FLRA), according to this article by Employment Law360:
Under the revised regulations, FLRA agents will not attempt to mediate a settlement between the complaining employee and the government until after the agency has closed its investigation into the case. If the review reveals merits to the employee's case, and the FLRA decides to file a complaint, the agency's regional director will then be allowed to take part in a possible alternative dispute resolution.
The measure also increases the amount of information and evidence that plaintiffs must provide when lodging unfair labor practice complaints with the FLRA and states that if the plaintiff does not cooperate with the FLRA's investigation, the agency could dismiss the charges.
“It's kind of infuriating because it reveals the FLRA general counsel's attitude towards unions,” said Daniel Minahan, a partner at the labor and employment law firm Minahan and Shapiro PC, which represents federal employees and unions. “This was not unexpected at all; for the last few years, this general counsel has been known to choke off life in the labor relations program.”
Just another reason why unions and their allies will be working extra hard to elect a Democratic president in 2009.
Northwest and Delta Airlines Rediscover the Relevancy of Labor Law
The Detroit News points out that a $20 billion dollar merger between the two airlines may rise and fall based on whether unionized pilots can be persuaded to support the deal:
A $20 billion deal to combine Delta Air Lines Inc. and Northwest Airlines Corp. was in "serious jeopardy" late Tuesday because the pilots unions from both companies were unable to reach an agreement on blending their seniority lists, two people close to talks told the Associated Press.
The people said the pilots unions have agreed on a comprehensive joint contract, but they are unable to agree to how seniority for the 12,000 pilots would work under a combined carrier. The people asked not to be named because of the sensitive stage of the talks.
They said the pilot talks were expected to continue today, but if no agreement is reached, the combination of the two airlines would be in "serious jeopardy."
The boards of both companies were expected to vote on a combination agreement today if a pilot deal is in place by then. Otherwise, they were expected to just get an update on the merger talks, three people close to the talks said.
Corporate lawyers everywhere (especially those who thought they needn't take labor law in law school), labor law is still very much relevant in this country, especially in the airline industry. I can only suspect that pilots at Northwest also may not be in a giving mood after the way Northwest treated the pilots and others throughout the bankruptcy process.
Hat Tip: RA Brent Klein
FTC: Unionization of Home Health Aides Violates Antitrust Laws
Steve Hitov of HealthLaw.Org writes:
An interesting Federal Trade Commission response to an Ohio effort to allow independent home health workers to bargain collectively when the services they provide are reimbursed by Medicaid. Here the FTC treats each worker as a "small business" for purposes of its
evaluation, which of course dictates the outcome (and implicitly rejects the entire concept of unionization, at least outside of a strict employment context). So, as things now stand with this administration, and the judges it has installed on the Supreme Court, home health workers can be forced to work long hours without overtime, and states cannot even voluntarily allow them to act cooperatively to improve their lot. This certainly bodes ill for home health workers,
and perhaps even more so for the vulnerable people that they serve.
BNA has more:
An Ohio executive order, designed to confer a labor exemption for independent home care providers, is likely to result in "certain anticompetitive conduct that is inconsistent with federal antitrust law and policy," according to the Federal Trade Commission's staff, which warned that such conduct could work to the detriment of Ohio home health care consumers.
The Feb. 14 letter from the FTC's Office of Policy Planning, Bureau of Competition, and Bureau of Economics responded to a request by Ohio State Sen. William J. Seitz (R) regarding Ohio Executive Order 2007--23S, issued by Gov. Ted Strickland (D) in July 2007.
Can home health aid workers get a break sometime, somewhere? Paging Peggie Smith, there is more work to be done now to educate the good folks at the FTC who seem not to understand that antitrust issues have largely been dead in the labor law environment since Apex Hosiery.
Hat Tip: "Sweet" Joe Slater
Petition Urges Congress to Reverse Ledbetter
The National Women's Law Center is circulating a letter urging Congress to reverse Ledbetter v. Goodyear. Recall that the Court in Ledbetter held that the Title VII limitations period begins to run when an employment decision is made and communicated to an employee.
February 20, 2008
Oral Argument Analysis of CBOCS Section 1981 Retaliation Case
Right on the heels of the oral argument of the Gomez-Perez case yesterday (dealing with whether a retaliation action exists for federal employees under the ADEA), the Supreme Court today didn't have to switch gears too much to hear oral argument in the case of Humphires v. CBOCS West, the question being whether a retaliation claim exists under the civil rights statute, Section 1981 (Civil Rights Act of 1866).
And you will not be surprised to learn that similar arguments, and even mention of the Gomez-Perez case, litter the argument of the CBOCS case. However, CBOCS may be more closely related to the Jackson Title IX case which implied a retaliation claim to vindicate the intent of the statute than Gomez-Perez because whereas the latter involves similar provisions providing and not providing a retaliation action in the same statute, Section 1981 and Title IX are statutes whose language stand alone. It also helps that the Court has already inferred a private cause of action for discrimination and harassment in two previous separate case. Also favoring a Jackson-oriented implying of a private retaliation action is the fact that there is no other statute that provides important background considerations like the Civil Service Reform Act of 1978 does for federal employees in Gomez-Perez. Of course, it is helpful that the Government is supporting the plaintiff, and not arguing against the plaintiff as in yesterday's case.
Favoring a finding of no retaliation claim under Section 1981 is the fact that unlike Title IX, Section 1981 was recently amended in the Civil Rights Act of 1991 to clarify its scope. Congress could have supplied a retaliation claim, but did not (at least expressly). That being said, CBOCS attorney's argument that the CRA of 1991 narrowed Section 1981 is ludicrous (and even Scalia, Alito, and Kennedy agreed that there was no sense in his argument), and he certainly didn't help his side of the case with that exchange.
So, in short, this case has all the trappings of a very-closely contested and important case. Section 1981 is particularly important in states like Mississippi where there is no state anti-discrimination law, and race discrimination plaintiffs in companies with less than 15 employees need to rely on 1981 for relief. It is also an important vehicle for those plaintiffs who do not wish to be subject to the compensatory and punitive damage caps of Title VII, the relatively short statute of limitations under Title VII (180/300 days), and retain the ability to go right to federal court without exhausting administrative remedies with the EEOC or similar state agency.
Paul Mollica, of Daily Developments in EEO Law, has already helpfully done highlights on the oral argument transcript so I'm going to piggyback on his observations. First, he not surprisingly writes:
The court wrestled with the collision between stare decisis -- whether to extend or contract decisions in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969) (implying retaliation under section 1982) and Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (same under Title IX) -- and the Court's recent retrenchment in implying private rights of action. Summarized in a sentence, the survival of retaliation claims under section 1981 depends on a change of heart by Justice Kennedy, who dissented in Smith and behaved skeptically here.
My only additional thought here is that Kennedy did not ask questions yesterday during argument in Gomez-Perez and his noted skepticism might not only be bad for plaintiff in the CBOCS case, but also in the Gomez-Perez case.
On other issues:
1. I'm also a little shocked that Chief Justice Roberts doesn't understand that discrimination and harassment cases on the one hand are different from retaliation cases, on the other. Most importantly, you can be retaliated against not based on your race, but on the mere fact that you filed a complaint. (Even Justice Scalia couldn't believe his Chief's views on this: "Surely -- surely, you [referring to CBOCS attorney who agreed with Roberts] don't mean what you just said a minute ago, that in order to have a retaliation claim you must have a discrimination claim." I think it would have been funny (and knowing Scalia's sense of humour, he might have too), if Counsel had responded: "I do. And don't call me, Shirley."
2. Amazing that someone representing Cracker Barrel could rub all the Justices the wrong way (given what a cuddly place the restaurant has shown itself to be to blacks, women, and gays), but Mr. Hawkins seemed to achieve that feat throughout his argument. CBOCS will win not because of his oral argument, but in spite of it (to borrow from the Section 1983 Feeney case).
3. Another non-surprise is that Justice Breyer nicely helped to summarize Humphries' argument in this case:
Well, here we have a Federal policy, and the Federal policy is that black people shall be treated the same as white in respect to making a contract. But were the law to allow you to fire anybody who complained about it, then black people wouldn't have that right. And therefore the policy is that you can't do it under this statute because otherwise the written policy is ineffective.
4. Leading those who would find no retaliation claim here, Chief Justice Roberts remarks: "And my question for you is: Under principles of stare decisis, which body do we follow, the earlier case interpreting 1982 under the more freewheeling approach to statutory interpretation or this later body of law that says we're not going to do that any more?" I think he knows the answer for himself and so do Thomas, Alito, and Scalia.
5. And here's Justice Scalia's textualist argument:
That's a good argument to Congress. Congress should enact a retaliatory provision. But the statute says what it says, and what it says is that there has to be discrimination on the basis of race. And firing somebody for -- in retaliation for making a complaint is not firing him on the basis of race. Indeed, the person making the complaint may not have been the person who was racially discriminated against. You would acknowledge that you couldn't fire -- if retaliations claims lie, you couldn't fire a white whistleblower who says this employer has been discriminating against blacks. Wouldn't that white whistleblower have a cause of action for being fired?
6. Like Paul Mollica, I think Solicitor General Clement is a class act (though I don't tend to agree with him). I also think he is a highly effective speaker and beats Justice Scalia on this argument:
No, Justice Scalia, we're not asking to you to go back to the bad old days. But I think it's important to recognize that we are simply asking you to interpret the scope of the cause of action you've already inferred.
Though, in order to make nice (kiss ass?), he says something which I disagree with 100% (at least with labor and employment cases in mind):
GENERAL CLEMENT: The bad old days ended when you got on the Court, Mr. Justice Scalia.
Was it derisive laughter at least?
7. Finally, because Kennedy is inevitably going to be the swing vote in this case (though I know Ross Runkel is likely to disagree with me and say that the employer wins 7-2), this quote from Kennedy is probably the most important said in all the transcript because it signals that Kennedy is heavily leaning toward CBOCS:
Well, you say it's clear, but neither you or the government seems to tell me any words in this statute. Your argument is that we should create a cause of action in order to make this effective. I understand that argument. I think the Court's cases stand against it, and if you want to -but it seems to me that you're admitting that nothing in the words of the statute as amended help you. And the government -- which as well is an impairment, which I think is quite wrong because that's not what section (c} intended for. But that's almost an admission on the government's part that it can't find any words in section (b) either . . . .
What I'm -- what I'm taking away from the argument is that if I were to write this opinion in your favor, I would have to say that it's necessary to imply a cause of action prohibiting retaliation in order to make these other words effective. And that seems to me a very limited argument and a very difficult argument for you to prevail upon, given the authorities and the approach of the Court that we've discussed.
Eerily, it is almost like Kennedy knows that he will have the opportunity to write the majority decision in this case and he is telling plaintiff's counsel, "Don't count that I will be ruling in your favor.
So, prediction: like Gomez-Perez, but for different reasons, a 5-4 victory for CBOCS.
Reflections on the LaRue Decision
Now that I have had a chance to read in some detail the Supreme Court's decision in LaRue v. DeWolff, Boberg & Associates, I am more convinced than ever that this case will go down as one of the more important ERISA remedies cases in recent memory; more important than merely its essential holding that, "that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account." Nevertheless, many additional issues that could have been decided were avoided or not addressed by the full court and still need to be considered in the future.
Here are my reflections on the ERISA case of the day:
1. Justice Stevens was the perfect person to write the majority opinion (joined by Souter, Breyer, Ginsburg, and Alito) because twenty-three years earlier he wrote the decision in the Russell case, which found that consequential damages were not permitted under a Section 502(a)(2) breach of fiduciary duty claim. His understanding that Russell applied to the the meaning of a plan loss in the defined benefit plan context as opposed to the defined contribution plan (401(k)) context of this case, carries considerable weight in trying to decide the relationship between LaRue and Russell. In fact, and this is rank speculation on my part, I wonder if Alito joined the progressives because he was particularly swayed by the meaning of that case given to it by its original author.
2. This was some thought that the Court would also decide whether LaRue could bring his breach of fiduciary claim under the catch-all provision of Section 502(a)(3) for "appropriate equitable relief." Although that was the provision LaRue filed his case under, the Court decided that it was not necessary to address issues about whether make whole relief is available under (a)(3) in order to come to a decision in this case. So the issue of make whole relief under (a)(3), aptly highlighted by Justice Ginsburg in her 2004 concurrence in Davila will have to await another day.
3. A point not only stressed by the majority, but bought into by Justices Thomas and Scalia, in their textualist concurring opinion in the result, is that a loss is a loss is a loss when considered what is a plan loss under Section 409 in the defined contribution context. As Stevens put it: "Although record does not reveal the relative size of petitioner's account, the legal issue under Section 502(a)(2) is the same whether his account includes 1% or 99% of the total assets of the plan.
4. I could not agree less with the concurrence written by Chief Justice Roberts, and joined by everybody's favorite swing vote, Justice Kennedy, that this case is really not a fiduciary breach case under 502(a)(2), but rather a denial of benefit case under 502(a)(1)(B), subject to exhaustion and Firestone discretion. I think it is interesting that Justice Scalia did not join Roberts opinion since he asked most of the questions in the oral argument about (a)(1)(B) alternative, but it seems clear that he and Thomas believed this was a fiduciary case and not a benefits case being mischievously recast.
5. Justice Roberts concurrence has the potential to completely undermine the holding of the LaRue majority. Roberts writes that lower federal courts in the future should consider whether 502(a)(1)(B) applies in a case like this and if so, whether there must be exhaustion of internal remedies before the 502(a)(2) issue is reached, if at all. There is the argument under Varity that if appropriate relief is available under (a)(1)(B), there is no need to consider an (a)(2) remedy. This would be disastrous for ERISA participants because the (a)(1)(B) remedy would not provide any meaningful remedy to make up their losses from their individual accounts.
6. Indeed, even the majority leaves open in footnote 3 of its opinion the possibility that LaRue may still lose the case on the merits, including because there is still the question open of "whether he was required to exhaust remedies set forth in the Plan before seeking relief in federal court pursuant to Section 502(a)(2). That being said, I think there is an important difference between recharacterizing this case as an (a)(1)(B) case (Robert's view, mistaken I believe), and whether one must exhaust internal remedies under (a)(2) like one must under (a)(1)(B).
7. Justice Stevens also seems to approve of the loss of profit point under Section 409 in footnote 4 of the opinion. Since at least 1985's Bierwirth decision by the Second Circuit, loss of the plan does not go to whether the plan made money or lost money, but whether the plan could have made more profit if fiduciary duties had not been breached. From my own recollection, this is the first type that the Supreme Court has sanctioned the Bierwirth formulation in this context.
8. Kudos to Susan Stabile, Bruce Wolk, and John Langbein for having their employee benefit case book relied upon by Justice Stevens in his opinion.
9. Double kudos to Ed Zelinky, "Mr. ERISA," for not only having his Yale Law Journal piece relied upon twice by the majority, but for apparently providing the necessary distinction between Russell and LaRue that the Court relied upon!!!
10. Also kudos to Radha Pathak for organizing the amicus brief of eleven law professors that I joined which opposed the motion to dismiss on mootness grounds filed by DeWolff in this case. Justice Stevens mentioned in footnote 6 of the majority opinion why he agreed with us and others that the case was not moot: simply because a participant as defined by ERISA includes a former employee with a colorable claim to benefits.
Judge Alex Gets Reversed
Earlier posts here and here describe the facts in Preston v. Ferrer. "Judge" Alex [E. Ferrer] arbitrates petty civil disputes in a taped television series. He signed an agreement containing an arbitration clause with Artist Manager Arnold Preston, but didn't make the stipulated payments. Preston filed for arbitration, but Judge Alex challenged the legality of the entire agreement under the California Talent Agencies Act. This Act, among other things, provides that disputes under the Act must be referred to the California Labor Commissioner. California courts ruled that the legality of the Alex-Ferrer agreement should be decided by the Labor Commissioner.
The Supreme Court today reversed, holding that "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA." Questions of contract validity must be decided by an arbitrator.
Here's the Supreme Court opinion in Preston v. Ferrer.
Flash: LaRue Wins! 502(a)(2) Again Viable for ERISA Participants
Petitioner, a participant in a defined contribution pension plan, alleged that the plan administrator's failure to follow petitioner's investment directions "depleted" his interest in the plan by approximately $150,000 and amounted to a breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court granted respondents judgment on the pleadings, and the Fourth Circuit affirmed. Relying on Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134 , the Circuit held that ERISA §502(a)(2) provides remedies only for entire plans, not for individuals.
Held: Although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, it does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant's individual account. Section 502(a)(2) provides for suits to enforce the liability-creating provisions of §409, concerning breaches of fiduciary duties that harm plans. The principal statutory duties imposed by §409 relate to the proper management, administration, and investment of plan assets, with an eye toward ensuring that the benefits authorized by the plan are ultimately paid to plan participants. The misconduct that petitioner alleges falls squarely within that category, unlike the misconduct in Russell. There, the plaintiff received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. Russell's emphasis on protecting the "entire plan" reflects the fact that the disability plan in Russell, as well as the typical pension plan at that time, promised participants a fixed benefit. Misconduct by such a plan's administrators will not affect an individual's entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. For defined contribution plans, however, fiduciary misconduct need not threaten the entire plan's solvency to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants or only to particular individuals, it creates the kind of harms that concerned §409's draftsmen. Thus, Russell's "entire plan" references, which accurately reflect §409's operation in the defined benefit context, are beside the point in the defined contribution context.
Justice Stevens wrote the majority opinion (which was interestingly joined by Justice Alito). Two other concurring opinions also issue (one by Roberts which Kennedy joined and one by Thomas which Scalia joined), but a unanimous court agrees with the result of allowing these type of 502(a)(2) suits going forward.
I will have further commentary once I digest the decision. But clearly as one of the law professors who filed an amicus on behalf of LaRue to fight off a motion to dismiss, I couldn't be more happy with the result. I had predicted 6-3 for LaRue, but did get that there would be three opinions, including one from Roberts and one from the Scalia/Thomas duo.
Also major kudos to Peter Stris of Whittier Law who did not an outstanding job arguing this case for LaRue at the Supreme Court.
Secunda Quoted on Proposal to Eliminate Preexisting Coverage Exclusions
“This is first time I have seen a proposal to do away with pre-existing coverage exclusions,” said Paul Secuda, an employment discrimination and employee benefits law professor at the University of Mississippi School of Law. “One reason for why they want to get rid of this, I think, is that it currently leads to gaps in health insurance.” Secuda added, “It will definitely draw opposition from the health insurance lobby because, at the end of the day, this will increase their bottom line.”
Hudson & Rosenthal on the Pending Retaliation Cases
David Hudson, Jr. (First Amendment Center) and Lawrence Rosenthal (Chase) have just written an article for Legal Times on the retaliation cases currently pending before the Supreme Court. Here's an excerpt:
The increasing number of retaliation claims and the many divisions in the lower courts regarding various aspects of retaliation claims will give the Court many opportunities to offer much-needed guidance in this area. As the Court addresses these issues, let us hope that it will recognize the vital importance of protecting employees from retaliation—and rule accordingly.
House Democrats Seek to Eliminate All Preexisting Coverage Exclusions in Health Care
Democrats in the House have introduced legislation that would eliminate the ability of health plans to take away when health insurance for employees who have preexisting conditions when they change from job to job.
Under the No Discrimination in Health Insurance Act of 2008, Section 701 of ERISA (added by HIPAA in 1996) would be amended "to eliminate the application of pre-existing condition exclusions in all group health coverage policies and all individual health insurance policies."
Currently, complicated rules under Section 701 permit employers to exclude new employees from health coverage for up to one year depending on when the preexisting condition occurred, whether the employee can offset the exclusion period with creditable coverage, and whether there have been significant breaks in coverage.
I suspect the health insurance lobby will fight this bill because it will necessarily cut into its profits, but the bill makes sense if one is serious about universal health coverage and wants coverage for everyone, all the time. Also, it is much more administratively easier to administer. I could only imagine the joy of future employee benefits students knowing they didn't have to learn the current mess of preexisting condition exclusion rules.
Symposium on Work and Family
Workplace Restructuring to Accommodate Family Life
- Elizabeth R. Schiltz, Workplace Restructuring to Accommodate Family Life, p. 343.
- Sr. Prudence Allen, Analogy, Law and the Workplace: Complementarity, Conscience and the Common Good, p. 350.
- Joan C. Williams, The Politics of Time in the Legal Profession, p. 379.
Panel on Feminist Legal Theory: Dialogue Across Philosophical and Faith Traditions
- Marie A. Failinger, Women’s Work: A Lutheran Feminist Perspective, p. 405.
- Susan J. Stabile, Can Secular Feminists and Catholic Feminists Work Together to Ease the Conflict Between Work and Family?, p. 432.
- Eva Feder Kittay, Searching for an Overlapping Consensus: A Secular Care Ethics Feminist Responds to Religious Feminists, p. 468.
Panel on Policy Prescriptions
- Gregory Acs, A Good Employee or a Good Parent? Challenges Facing Low-Income Working Families, p. 489.
- Michael A. Scaperlanda, Reflections on Immigration Reform, the Workplace and the Family, p. 508.
- Kirsten K. Davis, The Rhetoric of Accommodation: Considering the Language of Work-Family Discourse, p. 530.
Panel on Gender Perspectives
- Allan Carlson, Rise and Fall of the American Family Wage, p. 556.
- Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men and Responsibility, p. 573.
- Katharine K. Baker, The Problem with Unpaid Work, p. 599.
On the "Lighter" Side
Courtesy Andrew Scott-Howman's Life at Work comes word of the Hula Chair, aka Hawaiian chair. The idea, apparently, is to exercise while sitting. Watch it in action. Watch your colleagues search online for straightjackets.
February 19, 2008
Oral Argument Transcript Analysis in Gomez-Perez Retaliation Case
The U.S. Supreme Court heard oral argument today in Gomez-Perez v. Potter, which asks the question of whether federal employees can bring a retaliation claim under the ADEA. As discussed in a post last Fall, the issue comes down to whether the federal employee provisions of the ADEA must mention retaliation expressly or whether retaliation actions can be implied from the discrimination language and similar language in the non-federal employee parts of the ADEA.
Going into oral argument, my sense was that this case will pit those members of the Court who do not wish to imply private rights of action without express Congressional intent and that part of the Court which is willing to imply protections in order to meet the broader remedial aspects of the law. The remedial part of the Court was successful in implying a retaliation action under Title IX without express language, but that decision in Jackson was written by Justice O'Connor in a 5-4 decision on a Court without Alito and Roberts.
The transcript today plays out like most people thought it would: Scalia, Alito, and Roberts expressing skepticism (and a silent Thomas apparently agreeing) that Congress could not have mistakenly left out the retaliation language, and Breyer, Souter, Ginsburg, and Stevens to varying degrees suggesting the lack of retaliation language in these provisions is not fatal given that the Court has read in such protections in cases like Jackson and that a discrimination right would mean little if an employee did not have protection from retaliation after filing such a claim.
These two quotes from the respective sides seem to sum up the arguments:
MR. GUERRA [attorney for plaintiff]: . . . .By its plain terms, Section 633a(a) bars retaliation against covered workers who have complained that have they suffered age discrimination. Such retaliation is directed at persons over --
JUSTICE SCALIA: Excuse me. By its plain terms?
MR. GUERRA: Yes, Justice Scalia.
JUSTICE SCALIA: Read it to me, would you?
MR. GARRE [attorney for defendant]: . . . . The Age Discrimination and Employment Act does not expressly prohibit retaliation in the Federal sector context and it should not be read to impliedly prohibits such conduct either.
JUSTICE GINSBURG: Why not, given the Jackson precedent, where there was a similarly general ban on discrimination and we defined discrimination to include retaliation for complaining about discrimination?
Based on the make-up of this Court today, I see a 5-4 decision against the plaintiff. Although Kennedy was silent and as usual may be the decisive vote, he dissented in Jackson and is likely to do the same here. Kennedy and the majority are likely to find that this case is different from the Jackson Title IX case because of the legislative history of the ADEA, these federal provisions' interaction with provisions in the Civil Service Reform Act of 1978, the difference between federal provisions in Title VII and the ADEA, and because the comparable provisions in Jackson were in a different statute, but are in the same statute here.
The Distressing State of Muslim Employment Discrimination in the United States
These numbers from a recent article by Adam Liptak in the New York Times could be construed to suggest that Muslims in the United States are being targeted by workplace discrimination, harassment, and retaliation, but are not gaining sympathy from the courts in the current political environment:
The decisions Mr. Breinholt collected do provide a snapshot of public and judicial attitudes. Beyond the terrorism cases, two trends are clear: the number of civil cases brought by Muslim plaintiffs is growing fast, and the plaintiffs almost always lose.
There were, for instance, 69 employment discrimination decisions involving Muslim plaintiffs in 2007. Only one involved a victory, if you can call it that.
Abdul W. Azimi, a meat slicer in Portland, Me., sued his employer, Jordan Meats, for what an appeals court called “myriad and outrageous” mistreatment. Mr. Azimi found pieces of pork in his jacket, a picture of Osama bin Laden in his locker and his shoes in the toilet. A Maine jury ruled in his favor but awarded him no damages, leaving him with only a judicial declaration that his employer had violated the law.
Clearly, Muslim plaintiffs should have the same equal justice under the law as any other American citizen. Although there are many frivolous employment discrimination claims filed in any given year (my own practice experience on the management-side attests to this), these numbers are well-beyond what one would expect in a random sampling of employment discrimination cases.
Hat Tip: Jack Sargent
More on Today's Supreme Court Certs: Karass & DuPont
The Maine State Employees Association (MSEA) is the exclusive bargaining agent for certain state workers, and collects compulsory "agency fees" from non-members who are in the bargaining unit. Some of these fees are transferred to Service Employees International Union (SEIU), MSEA's national affiliate. MSEA included in its calculation of chargeable expenditures those costs of litigation (by both itself and SEIU) that was germane to collective bargaining. This meant that nonmembers contributed, through their service fees, to some litigation that was not undertaken specifically for their own bargaining unit, but rather was conducted by or on behalf of other units or the national affiliate, sometimes in other states. Included within this general category of expenditures were the salaries of SEIU's lawyers, and other costs of providing legal services to bargaining units throughout the country. Costs of litigation that was not related to collective bargaining, however, were not included in the service fees assessed to MSEA's nonmembers. The 1st Circuit held that MSEA may lawfully charge non-members for this "extra-unit litigation" so long as it is germane to the union's collective bargaining duties.
This is a Court that has already shown itself to be suspicious of union security fees that must be paid by non-members in the recent Davenport case, but this case seems closer to the union's non-political interests of providing services to its members and non-members. I am concerned for the labor movement that the Court thought this case cert. worthy.
Ross has this backgrounder on the other case granted cert. today, the ERISA anti-alienation case of Kennedy v. Plan Administrator for Dupont Savings and Investment Plan:
William Kennedy's ERISA plan contained a no-alienation provision. William designated his wife Liv as the sole beneficiary. Upon their divorce, Liv agreed to be divested of all her rights. However, there was no Qualified Domestic Relations Order (QDRO). The 5th Circuit held that an ERISA Qualified Domestic Relations Order is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA.
This case takes us back to the designated beneficiary days of Egelhoff, but this case does not appear to be about preemption but whether there is an exception to the general rule of non-alienation of pension benefits in the divorce context. Generally, A qualified domestic relations order would be necessary, but the Court might find that although the employee cannot be divested without a QDRO, a spouse can.
Both of these cases will likely be argued in the Fall.