April 11, 2009
DOL Investigates Tribune
We described here and here the shenanigans the Tribune Company was taking with its ESOP. Samuel Zell, the real-estate mogul, took the media company private in December 2007 by taking on a huge sum of debt and putting all the equity in the company ESOP. That equity almost certainly got wiped out in December 2008 when the company filed for bankruptcy. Now comes word from Chicagotribune.com that the Department of Labor has subpoenaed documents related to the ESOP.
Hat tip: Elizabeth Dale.
Conference: Work & Inequality in the Global Economy
University of California, Los Angeles
October 7-9, 2009
Here's a description:
In this conference, we seek to advance the analytical conversation about globalization’s effects on labor by focusing on three important and related countries in the global economic system: China, Mexico, and the United States. Within this geographic frame, we will examine comparisons between the three countries and analyses of the connections—current and potential; economic, social, and political—among them. The conference is open to both scholars and practitioners, and we particularly seek the participation of those who seek to link research and policy. One panel will be specifically dedicated to graduate student work. Plenary speakers will include leading labor scholars and advocates from China and Mexico as well as the US. A small number of papers will be published in a special issue of New Labor Forum.
Seyfarth Shaw on Pyett Decision
In addition to Rick's analysis of the Pyett arbitration decision, Seyfarth Shaw has an alert out on the case with the employer-side perspective. Much like Rick, the alert focuses a lot on what the decision didn't do:
Second, the majority indicated that judicial review of arbitration awards was sufficient to ensure arbitrators comply with the law. This represents something of a change and may expand the deference accorded to arbitration awards accorded by the courts and the National Labor Relations Board.
Third, given the majority’s treatment of Gardner-Denver in situations in which the labor contract does not require arbitration of statutory claims, the courts may nevertheless give an arbitration award greater weight than has been given to such awards in the past when an employee loses in arbitration and subsequently sues for discrimination.
Congratulations to Scott Moss . . .
April 10, 2009
Phyllis Borzi (photo left), just nominated as Assistant Secretary of Labor for the Employee Benefits Security Administration, says it's coming. See Borzi Strong on DC Fee Disclosure Issue in PIonline.com, via RetirementPlanBlog.
April 8, 2009
Disability Studies, Education and Law Conference at Syracuse
Speakers will share their research, expertise, and activism with an emphasis on histories of exclusion and activism, discourses and practices that shift the conversation from inclusion to belonging, critical and theoretical perspectives on disability studies, law and policy, and global perspectives on disability studies in education and law.
Co-sponsored by Disability Studies in Education, the Syracuse University Center on Human Policy, Law, and Disability Studies, the SU College of Law Disability Law and Policy Program, and the SU School of Education, this year’s conference brings together scholars in disability studies in education and disability law to explore both the history of disability advocacy and continued struggles for disability rights in educational contexts.
Speakers from the AALS disability Law section include Bob Dinerstein, Wendy Hensel, Arlene Kanter, and Mark Weber. Additionally, Martha Minow is giving a keynote presentation.
For a complete schedule or to register for the conference, visit: http://www.disabilitystudiesineducation.org/2009conference.htm
Hat Tip: Paul Secunda
Zelinksy: Obama Embraces Defined-Contribution Paradigm
The Internal Revenue Code currently provides a savers’ income tax credit for lower income individuals who contribute to IRAs and 401(k) accounts. The Obama budget proposes to expand this credit and make it refundable. In addition, the Obama budget proposes to establish administrative infrastructure in the Department of Labor as the first step toward requiring employers without pension or profit sharing plans to enroll their employees in workplace IRAs.
Together, these two proposals commit the Obama Administration to the existing system of individual accounts as the prime means of encouraging private retirement savings.
For more, see President Obama Embraces the Defined Contribution Paradigm.
Bad Economy = Good News for Labor/Employment Practice ...
Layoffs trigger lawsuits, and pending legislation like the EFCA creates a demand for legal advice. See Labor Fears Spawn Boom in Workplace Legal Advice.
Job Posting: Notre Dame
The Notre Dame Office of the General Counsel is accepting applications for the position of Assistant Vice President and Counsel. The person in this position is responsible for providing legal advice to various constituents in the University community on employment-related issues. The candidate should have at least ten years experience in employment law, including federal anti-discrimination laws, FMLA, FLSA, and employment contracts, and should also have extensive experience investigating and resolving harassment, retaliation and discrimination claims and communicating with the EEOC, DOL and other government agencies charged with enforcing employment-related laws. Apply directly online at the ND jobs site to Job # 09111.
Hat tip: Phil Sparkes.
April 7, 2009
Moss & Huang on New Economics & E'ment Discrim Law
Scott Moss (Colorado) and Peter Huang (Temple) have just posted on SSRN their article How the New Economics Can Improve Discrimination Law, and How Economics Can Survive the Demise of the 'Rational Actor'. Here's an excerpt from the abstract:
. . .
This Article  offers a half-full/half-empty assessment of the usefulness of economics, and of behavioral and happiness research, to law. It sounds a cautionary note against using social science to assess grand legal policies, but a hopeful note that such research can improve decisionmaking by judges, firms, and individuals.
Sperino on Punitive Damages in E'ment Discrim Cases
This Article describes the three problematic analytical mechanisms that cause judicial preemption and the distinct harms associated with each of them. It also demonstrates that judicial preemption is especially worrisome in the employment discrimination context, which relies on overlapping remedies regimes for full enforcement, where statutorily enacted punitive damages caps are not necessarily related to punishment and deterrence goals, and where a judge's personal opinions about punishment and deterrence may be at odds with those of legislatures and juries.
It then considers ways to counteract these harms. It concludes by asserting that the way in which the lower courts have implemented the Supreme Court's standards actually directs courts away from, rather than toward, the questions they should be asking in reviewing punitive damages awards.
April 6, 2009
NYU Supreme Court Clinic's Amicus Brief in Ricci
Marcia recently posted on a source for the briefs on the Supreme Court's Ricci case. One of those is by NYU's Supreme Court Clinic (with Sam Estreicher as counsel of record), which filed an amicus brief on behalf of the Society of Human Resource Management in support of the employer. The summary of argument:
Petitioners have no basis in the record for suggesting pretextual racial discrimination. Ongoing monitoring for disparate impact and consideration of alternative approaches with lesser disparate impact are expected, if not required, by the EEOC and reflect responsible employer behavior, not the kind of racial consciousness informing adverse employment.
This brief leads me to one complaint: Where was this clinic when I was a student at NYU?! I would've loved to have been able to do work like this. Congratulations to the students involved, who now get the joy of seeing what the Court does with the case.
Possible EFCA Compromise
My predictions are so rarely correct, but it looks like my sense that EFCA would have to be amended as part of a compromise if it were to pass is coming to fruition. BNA's Daily Labor Report (subscription required) is reporting that Senate Democratic aides are now working to craft a compromise that could pass in the face of recent opposition to the original bill. The details aren't out, but BNA is saying that one of the compromises being floated would require the use of dual-purpose-like cards, offering the employee a choice of selecting the union or simply asking for an election. The cards could also be mailed in.
Oil Capitol Challenge Ruled Unripe
The D.C. Circuit recently rejected two unions' challenge to the NLRB's new Oil Capitol rule. Oil Capitol was one of the "September Massacre" cases, in which the Board reversed its previous presumption that all discriminatorily rejected applicants--including salts--would would have stayed on the job for an indefinite period. In Oil Capitol, the Board reversed that presumption for salts, requiring the General Counsel to prove how long the salt would have stayed on the job.
In Sheet Metal International Association, the D.C. Circuit held that the recent challenge to Oil Capitol was premature because the NLRB had not applied the new rule to a compliance proceeding the unions' cases. The court dismissed the unions' concerns that they would have to turn over sensitive documents in a compliance proceeding, holding that it was too early to determine the extent to which that concern would become a reality. In other words, this will back soon.