Saturday, August 1, 2009
- Lucian A. Bebchuk & Holger Spamann, Regulating Bankers' Pay (1753).
- Susan Mangiero, ERISA Litigation Study (210).
- Wei-Yin Hu, Who Should Save in a Roth 401(K)? (It’s Not Just About Tax Rates) (209).
- Michael S. Lynk, Labour Law and the New Inequality (122).
- Guido A. Ferrarini (photo above), Niamh Moloney, & Maria-Cristina Ungureanu, Understanding Directors' Pay in Europe: A Comparative and Empirical Analysis (116).
- Kathleen J. Mullen, Richard G. Frank, & Meredith B. Rosenthal, Can You Get What You Pay For? Pay-for-Performance and the Quality of Healthcare Providers (95).
- Thomas D. Jeitschko & Byung-Cheol Kim, Signaling, Learning and Screening Prior to Trial: A Theory of Preliminary Injunctions (93).
- Charles A. Sullivan, Raising the Dead? The Lilly Ledbetter Fair Pay Act (83).
- Suja A. Thomas, Frivolous Cases (76).
- Robert S. Chang & Adrienne D. Davis, Making Up is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom (75).
Friday, July 31, 2009
The White House has just announced two nominees for the Merit Systems Protection Board. The nominees are Susuan Tsui Grundmann (nominated for Chairperson) and Anne Wagner (for Vice-Chair). Here are the White House bios:
Susan Tsui Grundmann, Nominee for Chairman, Merit Systems Protection Board
Since 2002, Susan Tsui Grundmann has served as General Counsel to the National Federation of Federal Employees (NFFE), which represents 100,000 federal workers nationwide and is affiliated with the International Association of Machinist and Aerospace Workers (IAMAW). At NFFE, she has successfully litigated cases in the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia. In 2004, Ms. Grundmann represented NFFE and other labor unions in the statutory "meet and confer" process with officials from the Department of Homeland Security (DHS) and the Office of Personnel Management (OPM), which sought agreement on how to proceed with new DHS personnel regulations. She currently represents NFFE and the United Department of Defense Workers Coalition, consisting of 36 labor unions, and has served on the Coalition’s litigation team in a coordinated response to the proposed personnel changes at Department of Defense (DoD). In addition to DoD employees, Ms. Grundmann represents employees in the Forest Service, Department of Agriculture, Passport Services, Veterans Administration, General Services Administration, and some 25 additional federal agencies. Since 2003, she has been a regular instructor on federal sector law at the William W. Winpisinger Education Center in Placid Harbor, Maryland. Prior to joining NFFE, she served as General Counsel to the National Air Traffic Controllers Association (NATCA). She earned her undergraduate degree at American University and her law degree at Georgetown University Law Center.
Anne M. Wagner, Nominee for Member of the Merit Systems Protection Board, with the Designation of Vice Chair
Anne Wagner is currently the General Counsel of the Personnel Appeals Board of the U.S. Government Accountability Office. As General Counsel, she has vigorously prosecuted prohibited personnel practices and other violations of federal employment law. Prior to that, she served a five year statutory term as an adjudicating Member of the Personnel Appeals Board having been appointed to that position by the Comptroller General of the United States. Ms. Wagner began her career as a staff attorney in the Office of the General Counsel for the General Services Administration, where she primarily handled labor and employment issues. From there, she went on to become an Assistant General Counsel for the American Federation of Government Employees, AFL-CIO, the largest federal sector labor organization representing more than 600,000 federal and District government employees. In her nearly twenty years with AFGE, she led precedent setting litigation and handled cases arising under the full array of laws governing federal employment. Ms. Wagner graduated from the University of Notre Dame and received her J.D. from the George Washington University Law School.
Hat Tip: Patrick Kavanagh
A group of Continental Airline pilots, afraid they'd lose their pension benefits when the airline was nosediving financially, cooked up a scheme to get a lump-sum distribution: divorce the wife (but don't tell anyone, including the kids, and continue to live together), have her obtain a QDRO order from the domestic relations court, use that order to get a lump-sum distribution from Continental's pension fund, then remarry. All was fine until Continental found out about it and sued the pilots. The Houston Chronicle has the story; Jerry Kalish at Retirement Plan Blog provides the benefits angle.
Thursday, July 30, 2009
The Department of Labor issued this news release today, asking for nominations for the 2010 ERISA Advisory Council.
The Employee Retirement Income Security Act (ERISA) established the bipartisan council, which consists of 15 members appointed by the secretary of labor to represent specified groups and fields that are involved in employee benefits. The council meets four times a year and makes recommendations to the secretary regarding functions carried out under ERISA.
Nominations are being accepted for one vacancy each to represent the fields of employee organizations, employers, actuarial counseling, investment counseling and the general public.
Interested persons or organizations may nominate qualified persons for membership. Recommendations must be submitted by letter, resolution or petition and signed by the person or, in the case of a nomination by an organization, by an official representative of the group making the recommendation.
Nominations should briefly describe the candidate's qualifications and the group or field for which the candidate is being nominated, including contact information and indicating the candidate's acceptance of the appointment if offered.
Nominations should be submitted to Larry Good, Executive Secretary, ERISA Advisory Council, Room N-5623, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210.
At least in Utah (via Derek Thompson at The Atlantic):
Not sure this will start a craze, but the fewer day workweek clearly has some benefits, as illustrated above. Moreover, Thompson points out:
But, on the other hand, any increase in telecommuting will lead to less face time in the office. Will that have deletrious effects on the culture of the workplace and make employees feel that they are not part of a team, part of something more than just what they contribute to the enterprise?
Am I overstating my concerns here?
Congratulations to Steve Befort (Minnesota) and John Budd (Minnesota Business) who has just published their new book: Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (Stanford University Press, 2009).
Here's a synopsis:
"Invisible Hands, Invisible Objectives" develops a fresh, holistic framework to fundamentally reexamine U.S. workplace regulation. The text provides a much needed rubric for workplace law and public policy that embraces equity and voice for employees, as well as economic efficiency, and which reveals significant deficiencies in our current practices. In response, the authors blend their expertise to propose a comprehensive set of reforms, tackling such issues as regulatory enforcement, portable employee benefits, training programs, living wages, workplace safety and health, work-family balance, security and social safety nets, nondiscrimination, good cause dismissal, balanced income distributions, free speech protections for employees, individual and collective workplace decision-making, and labor unions. The book, which also includes descriptions of the evolution and current state of U.S. workplace regulation, is suitable for classroom use with students in law, human resources, economics, and public policy.
Steve tells us that the table of contents and additional information about the book is available here.
I've been bad about posting on the split of UNITE HERE!, but now that employers have begun to try to use the split in cases, I've got no more excuses. The merged unions have been going through a nasty separation much of the year; I won't go through the details, but Labor Notes has been doing a good job reporting on it (check out this recent article, which links to previous pieces).
As you would expect, employers have begun citing the split as a reason to conduct a representational election to determine the identity of employees' bargaining representative. Thus far (at least to my knowledge), regional directors have been rejecting this argument, as happened recently in San Francisco (BNA link, subscription required). On Tuesday, the NLRB stepped in by affirming the regional directors in the San Francisco case and other case in Chicago (another BNA link, which describes the two-sentence unpublished order finding "no substantial issues warranting review").
Although challenges are likely to continue, I haven't seen anything that looks like the split has actually put the question of who is representing employees into doubt. That could change, of course--especially in individual cases--but we're likely seeing more of an attempt by employers to tweak the unions than a real attempt to get an election.
Hat Tip: Dennis Walsh
This paper argues that, in most cases, market justifications for pay disparity in equal pay for equal work litigation should be rejected. The paper then takes on the more ambitious project of proposing an alternative model of gender discrimination, which is not restricted to causation . . . . [This alternative model] would restrict the employer’s ability to defend differential wages for equal work to cases where he can present evidence that individual ability or productivity considerations support the disputed pay disparity.
Wednesday, July 29, 2009
Anyone interested should send Scott Moss (firstname.lastname@example.org) and Tristin Green (email@example.com) an email by August 10 with a resume and, optionally, a brief (1 sentence or 1 paragraph) explanation of why you would be a good choice for this role.
Here is more description about the panel:
Reviving Employee Rights? Recent and Upcoming Employment Discrimination Legislation
I am thrilled with the announcement that President Obama intends to nominate David Michaels to be the next head of OSHA. Not only is OSHA in dire straits as far as its enforcement program, but also in its ability to promulgate new safety and health standards anywhere near close to what the new global workplace requires. I hope Mr. Michaels, if confirmed, will get right to work on rejuvenating this important area of labor and employment law.
As far as Michaels' background, I believe he would come to the job with the requisite knowledge and ability to get these issues addressed. He is currenty the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C., and he serves as director of the university's Project on Scientific Knowledge and Public Policy.
The word on the street is that he is likely to work for employee rights and management and industry people are alerady grumbling.
The Third Circuit has not yet addressed the scope of ERISA’s antiretaliation provision and, more specicially, whether internal workplace complaints are protected activity under section 510. Only four circuits--the Ninth, the Fifth, the Fourth, and the Second--have considered this issue, [and they have split on the outcome] . . . .
[W]e agree that the proper inquiry is whether the Plaintiff’s alleged objections and complaints to management in the present case were given as part of an inquiry . . . . After reviewing the allegations in the Amended Complaint, we find that they were not.
Consequently, the Ninth Circuit went on to hold that making informal, workplace complaints to managers regarding potential ERISA violations is protected activity under section 510. I think, consistent with the purposes of ERISA to protect employee benefits, the employee should have been given the chance to show that she was attempting to bring potential ERISA violations to the attention of her bosses.
A troubling story today from the New York Times regarding the relationship between the head of the Pension Benefit Guaranty Corporation (PBGC), the federal agency that insures defined benefit pension plans, and Wall Street.
From the New York Times:
BlackRock, one of the world’s largest money-management firms, assigned a high school classmate of Mr. Millard’s to stay in close contact with him, and it made sure to place him next to its legendary founder, Laurence D. Fink, at a charity dinner at Chelsea Piers. A top executive at Goldman Sachs frequently called and sent e-mail messages, inviting Mr. Millard out to the Mandarin Oriental and the Ritz-Carlton in Washington, even helping him hunt for his next Wall Street job.
Both firms were hoping to win contracts to manage a chunk of that $50 billion. The extensive wooing paid off when a selection committee of three, including Mr. Millard, picked BlackRock and Goldman from among 16 bidders to manage nearly $1.6 billion and to advise the agency, which Mr. Millard ran until January.
But on July 20, the agency permanently revoked the contracts with BlackRock, Goldman and JPMorgan Chase, the third winner, nullifying the process. The decision was based on questions surrounding Mr. Millard’s actions during the formal bidding process. His actions have also drawn the scrutiny of Congressional investigators and the agency’s inspector general.
I know, I know. This is Washington D.C. and unethical, if not illegal, practices like this should be expected. But I can't help believing that a situation like this (if true) could have been avoided by simply putting into place some balance and checks on how the PGBC retirement funds are invested.
Three proposals: (1) Do not make the head of the PGBC an investment manager. The head of the PGBC should be a person well familiar with employee benefit plans and the law surrounding the management and operation of such funds. (2) Do not place the head of the PGBC on a committee that selects the investment firms. Conflicts of interest need to be stomped out from the get go. (3) Obviously, an investment manager-type will be needed for advice on who to invest the money with. However, such a person should completely disclose all personal and professional relationships and should be recused from dealing with those firms.
Is that really so hard?
VanderVelde told the Daily Iowan that the Wiki helped illustrate that each state takes its own approach to employment law. Each student was responsible for researching the law of two states and posting it on the Wiki.
“Several people expressed the view that it was the most fun class to come to,” VanderVelde said. “It wasn’t just reading the textbook, being called upon, or having the professor lecture to them.”
This appears to be an interesting approach to teaching the common law subjects, like wrongful discharge, covered in employment law. But does it work as effectively for those who teach statutory topics like FLSA, OSHA, ERISA, unemployment compensation, and workers' compensation? My guess is that statutory material doesn't become as quickly dated.
This, of course, would be an ideal time for all you employment law casebook people to chime in and tell us why we all shouldn't start using the Wiki method. To be fair, even Vandervelde concedes that the wiki method would not work in all classes.
BNA's Daily Labor Report (subscription required) is reporting that the Senate may not vote on EFCA until well after the August recess. According to Sen . Harkin--EFCA's lead sponsor in the Senate--the bill's prospects may improve later in the fall, especially if the health of Sens. Byrd and Kennedy improves. Harkin notes that negotiators are 80%-90% towards reaching an agreement that would pass, although he wouldn't give any specifics.
Looks like "stay tuned" will be the mantra for a while longer.
Tuesday, July 28, 2009
It's no surprise that of three nominees to the NLRB, Craig Becker is the one receiving the most opposition. As General Counsel to the SEIU, both his own positions (he was also a former law professor) as well as the union as a whole are targets. One early salvo is from the Chamber of Commerce blog, which has used selected quotes to predict a Becker-aided assault on employers by the Obama NLRB (including raising the extraordinarily unlikely possibility that a new Board will seek to implement card-check recognition--against current Supreme Court precedent--on its own).
Expect to see more of the same. My guess (and it's really just a guess) is that Becker's nomination is not seriously at risk, especially given that the three will probably be a package deal. Instead, employer-side groups are likely to use the confirmation process as a PR tool, just like unions did during the Bush years.
Patricia A. Shiu, currently vice president for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC), has been named Director of the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the branch of the Department of Labor responsible for enforcing Executive Order 11246 and other laws which prohibit discrimination and require affirmative action by businesses contracting with the federal government. Here's a bio of Shiu, courtesy of NELA’s Twentieth Annual Convention last month in Rancho Mirage, California:
Martin Feldstein, a brilliant conservative economist, has his facts wrong on the health care debate in an op-ed he penned today in the Washington Post.
Nate Silver of FiveThirtyEight concisely explains Feldstein's error:
Feldstein is simply mistaken here. "Single-payer" has to do with who pays for health care (in the case of single-payer, the federal government does). It has absolutely nothing to do with who provides health care. It's the difference between the Canadian system, in which private doctors and hospitals are paid by the Canadian government (and indirectly, Canadian taxpayers) to provide health care to its citizenry, and the British system, in which the providers themselves -- doctors, nurses, hospital administrators -- are actually in the employ of Her Majesty's Government. For that matter, it's the difference between Medicare -- a single-payer system for American seniors -- and the British system. The Canadian system is nationalized health insurance. The British system is nationalized health care -- or if you prefer, socialized medicine.
Obama has never expressed or implied any admiration for the British system of socalized medicine. Not that there aren't admirable elements of it -- but I doubt that you'd find even very many self-identified liberals who would suggest that it's the right system for America. Obama, rather, has expressed admiration for a government-run monopoly on insurance -- single-payer -- as do about half of Americans in opinion polls.
Got it? Get it? Good.
Paula Brantner of Workplace Fairness and the excellent Today's Workplace Blog has some interesting new details concerning the recent rise of the federal minimum wage to $7.25 on July 24, 2009:
Employers in the following 30 states will now have to pay their workers $7.25 an hour as a result of the change in the law:
Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.
Brantner points out that twenty states already have state minimum wages higher than, or the same as, the federal level. More insight on the federal minimum wage increase can be found at Federal Minimum Wage Increase, by Hannah Goitein, at Today's Workplace, the Workplace Fairness blog.
Ben Bratman (Pitt) has written a thought-provoking, and I believe insightful, article on the bruhaha over Judge Sotomayor's "Wise Latina" remark on Findlaw entitled: A Defense of Sotomayor's "Wise Latina" Remark - with No Rewording Required.
Here's a taste:
I teach a law school course on a subject—employment discrimination—in which gender and ethnicity matter, and in which the unique perspectives of women and of Latinas (as well as of African Americans, Asian Americans, etc.) matter. It is a subject in which I encounter and teach federal appeals court decisions by white judges and male judges who are doing their best to adopt the perspective of an employee who is a woman and/or a member of an ethnic minority.
These cases—concerning alleged harassment in the workplace because of sex, race, or national origin—illustrate the relevance and importance of Sotomayor's remark. They also counsel against superficial rejection of that remark on the grounds that personal experiences categorically can never play a role in judging.
I agree wholeheartedly with Ben on this point, but what I, and others, are dismayed about is that Sotomayor did not stick to her guns on her judicial philosophy. Instead, she merely threw out empty platitudes to attempt to win conservative Republican votes that she had little chance of winning.
I hope that President Obama's next nominee to the Court learns their lesson from this little farce and just says what he or she really believes about judicial philosophy and not attempt to explain away their previous statements. After all, the conservative view of the proper role of a judge is not the only legitimate one and definitely not sacrosanct.