January 17, 2009
Tribute to Paul Secunda
What with the abrupt transition from the holidays and conferencing in San Diego to beginning-of-the-semester catch-up, I haven't found time to properly thank Paul for his last several years of service to Workplace Prof Blog and his ongoing service to the labor/employment law academic community. A few months after I inherited the blog that Rafael Gely had founded but then discontinued, while I was still in the process of emailing every labor/employment professor individually to let them know I was resurrecting the blog, I received an email out of the blue from Paul asking whether I was interested in having a co-blogger. I immediately accepted, and it was the best blog-related decision I ever made.
Paul has a level of energy that I wish I had when I was 20. He's been a compulsive blogger, which no doubt helps explain why he's feeling burned out. His posts often dug beneath the superficial story to the deeper meaning below. He's a team player in the best sense of the phrase -- one of the things I like most about Workplace Prof Blog -- and it's a value Paul helped instill -- is that it's not about the bloggers, but rather about helping readers forge and maintain connections in the labor/employment law academic community.
Paul's a brilliant academic, a cheerleader for all of us, a great friend, and an all-around fantastic person. It's been a privilege working with him on the blog, and it's comforting to know that the one thing Paul will never be to anyone is a stranger.
Sullivan on Not Waiving the Unwaivable
Charlie Sullivan (Seton Hall) shares with us his thoughts on Edwards v. Arthur Andersen:
The California Supreme Court’s recent decision in Edwards v. Arthur Andersen, 189 P.3d 285 (Cal. 2008), is best known for rejecting the Ninth Circuit’s interpretation of California law as permitting “narrow restraints” in the employment context, a development widely noted in the blogosphere and which has already resulted in an SSRN paper posted by Lemley & Pooley. While its reaffirmance of California’s ban on noncompetition clauses in the employment context is probably the most significant aspect of the opinion, employment law profs shouldn’t ignore another aspect of the decision – its affirmation that employers may not take an adverse employment action against an employee for his refusal to waive a nonwaivable right. Edwards has already influenced the in-process Restatement of Employment Law to re-insert a provision to this effect in its treatment of the public policy tort.
For more, see Waiving Unwaivable Rights.
SSRN Top-10 List of Recent Employment & Labor Downloads
- David C. Yamada, Workplace Bullying and Ethical Leadership (565).
- Anup K. Basu, Alistair Byrne, & Michael E. Drew, Dynamic Lifecycle Strategies for Target Date Retirement Funds (177).
- David C. Yamada, Human Dignity and American Employment Law (153).
- Cass R. Sunstein, Is OSHA Unconstitutional? (132).
- Katherine Van Wezel Stone, John R. Commons and the Origins of Legal Realism; or, the Other Tragedy of the Commons (131).
- Edward A. Zelinsky, Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco (110).
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (98).
- J. Robert Brown, Returning Fairness to Executive Compensation (86).
- Gregory Mitchell (photo above), Second Thoughts (63).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (62).
January 16, 2009
Editorial on Female Bullying
In last weekend's regular Preoccupations feature in the Sunday New York Times was an interesting column on female bullying and the obstacle that a lack of solidarity can be to workplace equality for women. Peggy Klaus, a leadership coach, described some reasons why some women stand in the way of other women's progress. Drawing on a 2007 survey by the Workplace Bullying Institute which found that in the workplace, women bullies targeted other women more than 70% of the time.
Klaus was careful to make clear that many women support each other, but there are some who do not. As for why, she opined
I’ve heard plenty of theories on why women undermine one another at work. Probably the most popular one is the scarcity excuse — the idea that there are too few spots at the top, so women at more senior levels are unwilling to assist female colleagues who could potentially replace them.
Another explanation is what I call the “D.I.Y. Bootstrap Theory,” which goes like this: “If I had to pull myself up by the bootstraps to get ahead with no one to help me, why should I help you? Do it yourself!”
Some people argue that women aren’t intentionally undermining one another; rather, they don’t want to be accused of showing favoritism toward other women.
Others contend that women mistreat one another because of hyperemotionality, leading them to become overly invested in insignificant nuances and causing them to hold grudges. I’ve encountered this phenomenon among women who feel personally assaulted when someone criticizes them or their ideas.
Research shows that, in general, women are the more empathetic sex and are by nature more attuned to their own and others’ feelings. This is a great advantage when dealing with the human complexities of the workplace. But there’s a downside: If women take things too personally when challenged or criticized, they are prone to overreaction. When that happens, there’s trouble.
And, of course, some people assert that while women compete quite ably on the sports field and in the classroom, they haven’t learned how to compete in a healthy way at the office. For example, men often handle their feelings of envy and jealousy with humor and a left-handed compliment: “I’m going to whip your butt on our sales goals this month.” Or, “Who’d you have to pay off for that promotion?” They deal with it, and they move on. Although considered perfectly acceptable for men in most business settings, this kind of banter is not as socially acceptable for women.
Figuring out why, she continued, is much less important than refraining from treating other women badly and holding others accountable if they do. The editorial is worth reading in full and reminds me of the points raised by Susan Estrich, though from a different perspective, in Sex and Power.
Hat tip: Paul Secunda
The End of Circuit City
A company's demise isn't normally something that warrants a post. However, as blogger emeritus Paul Secunda pointed out, there's irony in comparing news of Circuit City shutting its doors and our earlier post on the company firing its highest-paid employees, while allowing those employees to reapply after several weeks for a new job with lower wages. As some news articles reporting the shut-down have noted, this move hurt employee morale and lost Circuit City customers. It's unclear what its exact impact was, but it clearly didn't help.
New Rules on 401k & IRA Investment Advice
The Department of Labor today publication of a final rule on employers providing advice to employees regarding 401k and IRA investments. The final rule will be published in the Jan. 21, 2009, edition of the Federal Register. The rule includes a regulation that implements the new statutory exemption for investment advice added to ERISA by the Pension Protection Act and a related class exemption.
The PPA amended ERISA by adding a new prohibited transaction exemption that allows greater flexibility for participants of 401(k) plans and IRAs to obtain investment advice. One of the ways in which investment advice may be given under the exemption is through the use of a computer model certified as unbiased. The other way is through an adviser compensated on a "level-fee" basis. Several other requirements also must be satisfied, including disclosure of fees the adviser is to receive.
Being Drunk on Job Not Dischargeable Offense ...
The Constitutional Tribunal yesterday ordered that Pablo Cayo be given his job back as a janitor for the municipality of Chorrillos, which fired him for being intoxicated at work. The firing was excessive because even though Cayo was drunk, he did not offend or hurt anybody, Fernando Calle, one of the justices, said yesterday.
The Gender Wage Gap
The University of Pittsburgh Law School is hosting a conference on February 20, 2009 entitled The Gender Wage Gap: Strategies for the Future. Here's a brief description:
Why do women still earn so much less than men? Why is the gender wage gap significantly worse in Pittsburgh and Southwestern Pennsylvania? What new legal and policy strategies might help to address these persistent inequalities? Nationally recognized scholars in law, economics, and public policy will address these questions, with responses by state and local political and nonprofit leaders and by a panel of prominent women graduates of the University of Pittsburgh College of General Studies.
Speakers include Deborah Brake (Pitt Law) and many other prominent folks.
Secunda on "Dooced" Employees
Our own Paul Secunda (Marquette) has just posted on SSRN an article of particular interest to those of us he left behind, Blogging While (Publicly) Employed: Some First Amendment Implications. Here's the abstract:
While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.
Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one's employer has even led to a term being coined: "dooced." So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.
This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.
Guess I'd better read the article carefully to make sure I'm not violating Kentucky law!
January 15, 2009
Senate Votes to Invoke Cloture on Ledbetter Bill
The Senate voted 72 to 23 today to invoke cloture on the Ledbetter Act, S. 181, which, if the Democratic majority holds on this as everyone predicts, means that this may be one of the first pieces of legislation for the new President to sign next week.
Employment Law for Business: New Edition
Dawn Bennett-Alexander (Legal Studies - Georgia) and Laura P. Hartman (Dep't Management, DePaul) have just published the 6th edition of their text Employment Law for Business (McGraw-Hill, 2009). Here's a description:
Bennett-Alexander and Hartman's Employment Law for Business, 6/e addresses law and employment decisions from a managerial perspective. It is intended to instruct students on how to manage effectively and efficiently with full comprehension of the legal ramifications of their decisions.
Students are shown how to analyze employment law facts using concrete examples of management-related legal dilemmas that do not present clear-cut solutions. The methods of arriving at resolutions are emphasized, so that when the facts of the workplace problem are not quite the same, the student can still reach a good decision based on the legal considerations required by law, which remain relevant.
Percy on ERISA Subrogation
Farish Percy (Mississippi) has just published in Florida Law Review an article on ERISA subrogation . Here's a great description of the basic problem:
Imagine that you sustain brain injury when your car collides with another vehicle. You incur $1 million in medical expenses, which your employee welfare benefit plan, governed by the Employee Retirement Income Security Act of 1974 (ERISA), covers. You will never be able to work again and are likely to suffer from physical and emotional pain for the rest of your life. You sue the driver of the other vehicle in state court for negligence, seeking $6 million in damages-$3 million for the present net value of your future lost wages, $2 million for past and future physical and emotional pain and suffering, and $1 million for past medical expenses. You settle with the other driver for $1 million-the limit of liability under his automobile liability insurance-in large part because he has no unencumbered assets with which to satisfy any judgment.
As soon as you receive your settlement proceeds, the fiduciary of your ERISA plan sues you in federal court for reimbursement of the $1 million in medical benefits the plan paid on your behalf. The court orders you to pay the $1 million in settlement proceeds to your ERISA plan, even though you were not made whole as a result of your tort lawsuit. Moreover, the court rules that the ERISA plan is not required to pay one cent to your lawyer. You realize that you have gotten absolutely no net benefit from your ERISA plan, that you wasted substantial time pursuing the negligence case, and that you may still owe your lawyer a contingency fee that you will have to pay out of your own pocket.
The article is Applying the Common Fund Doctrine to an ERISA-Governed Employee Benefit Plan's Claim for Subrogation or Reimbursement, 61 Fl. L. Rev. 55 (2009). Another person to contact on this issue: Roger Baron (South Dakota), who has been arguing against subrogation in a variety of contexts for quite awhile now.
January 14, 2009
Some Unwanted Attention for the NLRB
As a further sign that the NLRB is going to get a lot more attention this year than it has in a while, Washington Post columnist Joe Davidson (The Federal Diary) has a story on some inside baseball at the NLRB that we've been posting on for a while.
The first issue involves General Counsel Meisburg's challenge to the FLRA's approval of a bargaining unit including both Board- and GC-side employees. Davidson sets up the challenge as a direct refusal to comply with an FLRA decision, although he mentions eventually that refusing to bargain with the merged unit is the only way the GC can appeal the order. Davidson notes as well that the FLRA has made a similar order with the NLRBPA union (headquarters) and the GC is likely to follow the same path. As I mentioned in one of our earlier posts, I don't find the GC's arguments on this issue to be particularly persuasive, and I'm willing to bet that his successor drops the matter if it's still pending when he or she is confirmed.
The second issue goes to a new appraisal system that's having a big impact on the Board-side. As we noted earlier, an interesting twist on this is that the Democratic Board member, Wilma Liebman, is the one taking most of the heat. According to union officials who spoke to Davidson, the new systems is generating a significant increase in grievances and is having a disproportionate effect on black employees.
The column is worth a full read and gives a good account of the unions' side of these issues. Davidson wasn't able to get any substantive comments from Board officials, which is unfortunate because I know, particularly with regard to the appraisal system, that they very strongly believe that the system and its effects are being mischaracterized. A big question is whether this will impact any NLRB nominations or confirmations, particularly if Liebman is renominated. I don't know enough of the facts to have an opinion on what's going on, but the union has been quite aggressive on the appraisal system and may jump at the chance to make a high-profile protest.
Davidson has just published a correction of this column, which states:
Correcting information reported by the Federal Diary on Jan. 13, the National Labor Relations Board says there are five Asian American, two Latino and two black lawyers on the board side (as opposed to the general counsel staff) of the agency. No black lawyer who left the NLRB was evaluated under the new appraisal system used by the board side. I hate errors, and I'm sorry for these.
Hat Tip: Barry Hirsch
Recently Published Scholarship
Thinking Outside of the Box: A Post-Sago Look at Coal Mine Safety
111 W. Virginia L. Rev. No. 1 (Fall 2008)
- Anne Marie Lofaso (photo above), Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective, 111 West Virginia L. Rev. 1 (2008).
- David C. Vladeck, The Failed Promise of Workplace Health Regulation, 111 West Virginia L. Rev. 15 (2008).
- Alison D. Morantz, Mining Mining Data: Bringing Empirical Analysis to Bear on the Regulation of Safety and Health in U.S. Mining, 111 West Virginia L. Rev. 45 (2008).
- C. Gregory Ruffennach, Free Markets, Individual Liberties and Safe Coal Mines: A Post-Sago Perspective, 111 West Virginia L. Rev. 75 (2008).
- Lynn Rhinehart, Workers at Risk: The Unfulfilled Promise of the Occupational Safety and Health Act, 111 West Virginia L. Rev. 117 (2008).
- Edward Clair, Let’s Not Abandon What Works, 111 West Virginia L. Rev. 135 (2008).
- Jeffery L. Kohler, Integrating Technology to Improve Mine Safety in the Wake of Recent Mine Disasters, 111 West Virginia L. Rev. 149 (2008).
January 13, 2009
Political Hiring at DOJ's Civil Rights Division
As we've posted on several times before, the DOJ has been hit with numerous allegations of blatant political hiring over the past several years (see here for a recent post). A recent DOJ Inspector General study finds that this practice was particularly rampant in the Civil Rights Division. According to the Washington Post:
Ideological considerations permeated the hiring process at the Justice Department's civil rights division, where a politically appointed official sought to hire "real Americans" and Republicans for career posts and prominent case assignments, according to a long awaited report released this morning by the department's inspector general. The extensive study of hiring practices between 2001 and 2007 concluded that a former department official improperly weeded out candidates based on their perceived ties to liberal organizations. Two other senior managers failed to oversee the process, authorities said.
The key official, former Deputy Assistant Attorney General Bradley Schlozman, favored employees who shared his political views and derided others as "libs" and "pinkos," the report said. . . .
The report's release was delayed by more than six months after inspector general agents referred the case for possible prosecution by authorities in the District. But prosecutors in the U.S. Attorney's office declined to pursue the matter last week, according to lawyers involved in the case.
The decision means that Schlozman, who went on to serve as an acting U.S. attorney in Missouri, will not face criminal sanctions for testimony he provided to Congress two years ago. Internal Justice Department investigators determined that Schlozman had made "false statements" to lawmakers about his role in the affair, they said in today's report. . . .
Investigators interviewed more than 120 employees and reviewed 200,000 e-mails, according to the report. They also performed a statistical analysis of hiring practices during Schlozman's tenure, finding that "political and ideological affiliations did not appear to have been a factor when attorneys were hired without Schlozman's involvement."
Among the many disgusting aspects of these political hiring practices is that the DOJ, and the Civil Rights Division in particular, can often take the cream of the crop. I interviewed with the Civil Rights Division in 2000 (unsuccessfully--no doubt because I was not part of the cream) and it was readily apparent how tough the competition and interest was for those positions.
Unemployment Rate Higher for Men than Women
USA Today has an article that reports the unemployment rate is higher for men than for women. From December 2007 to December 2008, the unemployment rate for men rose from 4.4% to 7.2%. For women during that same time period, the unemployment rate rose from 4.3% to 5.9%. More men than women are in the workforce, which probably accounts for the overall unemployment rate coinciding with the rate for men at 7.2%, but 61% of women over age 20 are in the workforce.
The sex differential may be based on sex segregation in occupations or differences in hours:
Three-quarters of the workers in the health care and education sectors are women, according to economic consulting firm IHS Global Insight. Employers added 536,000 workers in those two fields in 2008, a 2.9% gain.
At the same time, men represent 93% of workers in construction and 72% in manufacturing. Employers cut 632,000 construction jobs in 2008, an 8.5% drop, while 791,000 manufacturing jobs were cut, a 5.7% decline.
Such a division is nothing new and has been seen in prior recessions, says Anne Winkler, economics professor at the University of Missouri-St. Louis.
•Women are more likely to work part time than men, perhaps making them less vulnerable. Approximately 25% of women work part time vs. 12% of men, Mission Residential chief economist Richard Moody says.
"When employers are actively cutting hours for the workers they do keep, it could be that those already working part time have a bit more security … as they are not likely to be receiving benefits and in general, are likely to cost employers less than full-time workers," he says.
Some of the women who remain employed are already the sole breadwinners for their families, and the lower unemployment rate is good news for them, but does not signal an easy route through the recession by any means. For those families that have both male and female breadwinners, the lower unemployment rate for women may help them keep their heads above water. Lots of food for thought.
January 12, 2009
Zelinsky: Abolish Minimum Distribution Requirements
Edward Zelinsky (Cardozo) suggests, in the OUP Blog of Oxford University Press, that Congress should immediately abolish the minimum required distribution which the IRS imposes on retirement savings accounts. The MRD rules provide that individuals over 70.5 years old must annually receive and pay taxes on minimum payments from their retirement plans.
Last year, however, there was a big problem. The minimum withdrawal for a given year is a percentage of the total amount in the retirement account, as calculated on December 31 of the previous year. A retirement account worth $100K in December 2007 was likely worth only a fraction of that by December 2008, which is when many retirees take their mandatory distribution. Proportionately, then, they were withdrawing a much larger percentage of their retirement account than a prudent person would if s/he were trying to avoid outliving his/her savings.
Following the 2008 crash, there occurred an Alphonse-and-Gaston routine under which Congress and President Bush suspended the MRD rules for 2009 on the theory that the Treasury would, pursuant to its regulatory authority, abate the MRD rules for 2008. The Treasury, however, concluded (correctly, in my judgment) that, under the Code, it lacked authority to suspend or modify the rules for 2008. Thus, Congress and the President relieved our 72 year old of the need to take an MRD withdrawal from his IRA in 2009 but gave him no relief from the MRD rules in 2008 – even though his plight in 2008 was the immediate motivation for lifting the rules. And, starting in 2010, the MRD rules will come back with full force, requiring individuals who are seventy and one-half or older to take minimum annual distributions annually from their IRAs and 401(k) accounts based on their respective adjusted life expectancies and the value of their accounts as of the preceding December 31st.
I propose a simple fate for the MRD rules: Abolish them permanently.
Gould on the EFCA
William Gould, currently at Stanford and formerly NLRB Chair during the Clinton administration, has been kind enough to share with us his thoughts on the Employee Free Choice Act. He argues that labor and management should compromise: (1) elections should be held within 10-15 days of a union filing an election petition; (2) Board election proceedings should be nearly unappealable; and (3) union organizers should have the right to respond during work time to captive audience speeches.
Here's the full text of Gould's remarks: Gould_on_the_efca.
New Study on Impact of Ergonomics Rules
The current issue of the American Journal of Industrial Medicine has an article on the importance of ergonomics standards. The article, written by Michael Foley, Barbara Silverstein, Nayag Polissar, and Blazej Neradilek, is entitled, Impact of Implementing the Washington State Ergonomics Rule on Employer Reported Risk Factors and Hazard Reduction Activity. The study focuses on a rule adopted in the state of Washington in 2000, which focused on finding and fixing hazards before they caused work-related musculoskeletal disorders. The rule was to be phased in over time to apply to the largest and most hazardous workplaces first. In 2003, before the rule became applicable to all workplaces, it was repealed by an industry-financed voter initiative. The study looked at injury rates before the rule took effect, during its operation, and after the repeal. The study found that the rule was effective to protect workers from musculoskeletal
injuries and saved employers money, but it also found that companies were
unlikely to implement such measures on their own--or maintain them once initiated--without a plausible threat of enforcement.
OSHA experimented with promulgating ergonomics standards a number of years ago, and it continues to work on a four-pronged approach:
1. developing industry or task-specific guidelines for a few industries;
2. conducting inspections for ergonomic hazards and issuing citations under the General Duty Clause where appropriate;
3. creating a National Advisory Committee to research the issue and identify gaps in research on ergonomics in the workplace;
4. and engaging in outreach and assistance to help small businesses develop better ergonomic practices.
This study suggests that as a matter of public policy and even economic sense at the firm level, encouragement may not be enough to promote good practices.
Federal Government and Automakers Make No-Strike Agreement
It sounds odd that the government and an employer entered into an agreement that said that a union can't go strike, but that's exactly what happened recently. According to a recent SEC filing by GM, the loan agreement between the automaker and the Treasury Dept. has a provision stating that a strike by the UAW would invalidate the terms of the agreement. Chrysler apparently has a similar provision. According to the Wall Street Journal:
The terms are part of the agreement GM and the U.S. Treasury Department hammered out in December. They surfaced late Wednesday in a regulatory filing by GM and surprised union leaders, including President Ron Gettelfinger, people familiar with the matter said. Treasury spokeswoman Brookly McLaughlin said that the no-strike provision was "included as a taxpayer protection" and that it could be waived if the government determines that was appropriate.
The chances of a UAW strike are small because both sides are under orders from the government to work quickly to cut costs to help GM get on the path to recovery. Any delay could push the auto maker to the brink of bankruptcy again, a fate that was put off for now after the government provided the first $4 billion portion of a $13.4 billion emergency loan. The company and the union have until Feb. 17 to negotiate cuts. If they do, GM could be in line for additional loans. Still, the strike ban is likely to give GM some additional leverage as it negotiates with its largest U.S. union. In the loan agreement, the Treasury stipulated that there can be no labor strikes against GM pending or threatened between the period from Dec. 31 to Feb. 17. . . .
GM and the UAW are set to start negotiating Monday on issues ranging from job security to compensation. When the White House gave GM and Chrysler a $17.4 billion bailout last month, it insisted that the UAW make concessions that would allow the auto makers to become more competitive with foreign rivals like Toyota Motor Corp. During a joint interview on NBC Thursday morning, GM Chief Executive Rick Wagoner and the UAW's Mr. Gettelfinger expressed optimism about their ability to come to an agreement that puts the auto maker on a stronger footing and meets the government's demands. . . . "
Barring the UAW from a strike has taken a critical bargaining chip away from the union. In years past, when negotiating with the Big Three and key automotive suppliers, the UAW has often encouraged workers to walk off the job, leading to major cost penalties and a lack of vehicle supply for the auto makers. On Monday, as bargainers from GM and the UAW begin hashing out concessions, some UAW members -- under the banner of a group called autoworkercaravan.org -- are planning to protest the proposed cuts by rallying at the Detroit auto show. . . . At this point, however, with U.S. light-vehicle demand tracking at its lowest point in decades and GM perilously close to collapse, the UAW might well have been reluctant to strike in any case.
I'm not surprised that the automakers and the government would want this provision, but I'm perplexed at how it was done. As the article notes, there's little chance that it would have any impact; the UAW is very unlikely to strike and if it did, the automakers would probably be toast no matter whether or not they had a federal loan. Given that and the fact that the UAW was never informed, much less consulted, about this, it just seems like a stick in the union's eye, and I wonder whether this was an idea from the Bush Treasury Dept. that the automakers were only too happy to go along with. Whether it ends up ticking off the UAW enough to affect negotiations remains to be seen. I doubt it--there's too much at stake--but it certainly doesn't help.