Workplace Prof Blog

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.

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Conference: Work & Inequality in the Global Economy

Work & Inequality in the Global Economy

University of California, Los Angeles
October 7-9, 2009

Proposals due April 30, 2009

Here's a description:

We live in an increasingly globalized economy. Contemporary globalization has increased three critically important flows: the flow of goods and services (trade), capital flow (above all, foreign direct investment), and the flow of people (migration). These flows have an impact on various aspects of people’s lives, including consumption and culture. But the most revolutionary impact of all is on labor.

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.

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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:

First, the arbitration provision must clearly and unmistakably require the arbitration of statutory claims. The clause at issue in 14 Penn Plaza specifically listed claims arising under the ADEA as among those that were mandated for arbitration.

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.

-JH

Congratulations to Scott Moss . . .

. . . on the publication by Duke L.J. of his article Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L.J. 889 (2009).

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Annuitizing 401Ks?

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.

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Disability Studies, Education and Law Conference at Syracuse

Righting Educational Wrongs: Disability Studies in Education, Policy and Law

May 1-3, 2009

Syracuse University

Syracuse, NY

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

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Zelinksy: Obama Embraces Defined-Contribution Paradigm

Ed Zelinsky writes at OUPblog:

Many important decisions are embedded in the federal budget proposed by President Obama. Among these are the President’s embrace of the defined contribution paradigm. That paradigm promotes retirement savings through individual accounts such as IRAs and 401(k) accounts.

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.

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Bad Economy = Good News for Labor/Employment Practice ...

... says an article in today's Wall Street Journal:

U.S. businesses, fearful of rising union influence and a crackdown by the Obama adminstration on workplace practices, are scrambling for legal advice and training, creating a windfall for labor consultants and law firms.

Layoffs trigger lawsuits, and pending legislation like the EFCA creates a demand for legal advice.  See Labor Fears Spawn Boom in Workplace Legal Advice.

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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.

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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:

Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law, and on critical damages-and-liability issues the Supreme Court and litigators face regularly, the law essentially ignores the lessons of behavioral economics and the affective sciences.
. . .
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.

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Sperino on Punitive Damages in E'ment Discrim Cases

Sandra Sperino (Temple) has just posted on SSRN her article Judicial Preemption of Punitive Damages (forthcoming Cincinnati L. Rev.).  Here's an excerpt from the abstract:

. . .  [The scholarly] literature has been insufficiently attentive to the manner in which the lower courts have implemented the Supreme Court's standards for assessing whether punitive damages are excessive. This Article suggests that the process judges use to review punitive damages awards for substantive constitutional excessiveness results in de facto judicial preemption, where judges improperly exercise power belonging to other constitutional actors and impinge upon important interests, such as federalism, the separation of powers, and the dynamism of the common law. Whether such de facto judicial preemption is motivated by conscious or unconscious desire to manipulate damages awards or even just by sloppy or unprincipled analysis, the effects are equally serious.

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.

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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:

In this case, the City of New Haven declined to certify test results for promotional examinations for fire department captains and lieutenants that had an undisputed adverse impact on African-American and Hispanic employees taking those tests. Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), use of tests with such a disparate impact is a presumptive violation of the statute. Employers do not, as a matter of law, violate Title VII when they remove that presumptive violation by declining to use the challenged test results. Moreover, employers are expected, if not required, to engage in ongoing monitoring of results of selection procedures for disparate impact and to consider alternative selection procedures or methods of use with lesser disparate impact. The City of New Haven in this case was acting in conformity with the authoritative guidance of the EEOC and other federal agencies, as set forth in the Uniform Guidelines on Employee Selection Procedures.

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.

-JH

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.

Stay tuned.

-JH

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.

-JH