August 14, 2009
New NYU Press Series on Immigration and Citizenship
From the Immigration Prof Blog comes this notice of a new series that may be of interest to our readers to be published by NYU Press. Ediberto Roman (left, Florida International) is the series editor. Also on the editorial advisory board are Kif Augustine-Adams (BYU), Associate Dean and Charles E. Jones Professor of Law, J. Reuben Clark Law School, Brigham Young University; Kevin Johnson (UC Davis); Stephen H. Legomsky, (Wash. U.); Gerald Neuman (Harvard); Angela Onwuachi-Willig, (Iowa); Victor Romero, (Penn. State); Gerald Torres, (Texas).
From the announcement,
The series editor and editorial advisory board seek theoretically sophisticated projects that broaden the parameters of immigration law and contribute to wider discussions of transnational citizenship in both domestic and international contexts. As such, future books published in the series might address the contours and parameters of labels such as national boundaries and legal membership. The series will also seek historical examinations that will add context and reference to contemporary issues such as the status of undocumented workers, the role of law enforcement, the relevance of international human rights, the interests of national security, free trade, economic development, and other topics that lie at the epicenter of immigration law and policy.
While individual titles will be quite diverse, the series editor will strive to ensure that all books published in Citizenship and Migration in the Americas consider the larger global themes of citizenship and migration. The series will publish a wide variety of books, including monographs, course texts, and general interest titles. Led by a group of academics that are highly respected scholars in the field, the series will publish provocative and timely works in an all-important public policy arena that has thus far not garnered the attention it merits.
Submission guidelines: Submissions should take the form of a 3-5 page proposal outlining the intent and scope of the project, its merits in comparison to existing texts, and the audience it is designed to reach. You should also include a detailed Table of Contents, 2-3 sample chapters or articles, and a current copy of your curriculum vitae. Please send submission materials to: Ediberto Román, Professor of Law, Florida International University, University Park, Miami, Fl. 33199
Cintas Workers Denied Punitives in License Plate Case
As we reported last year, UNITE HERE (back when it existed) was held to have violated federal Drivers' Privacy Protection Act by getting employees' addresses from their license plates. However, as reported by BNA's Daily Labor Report (subscription required), the district court has just denied punitive damages for the plaintiffs, finding that the union did not act with reckless disregard for the law. The court also denied the union's claim that it was entitled to a jury trial for damages under the statute.
Last term, the Supreme Court clarified how to define an EEOC "charge" in Federal Express v. Holowecki. As is often the case, however, a Supreme Court victory doesn't mean success for the overall case. Recently, as reported by BNA's Daily Labor Report (subscription required) the S.D.N.Y. dismissed the plaintiffs' claims. The case also represents one of the early illustrations of why the recent Gross case hurts plaintiffs so much, as the court found that the employees couldn't make out "but-for" causation.
EEOC Seeks Conciliation with Belmont Abbey over Denial of Oral Contraceptive Coverage and Retaliation
According to the Gaston (North Carolina) Gazette, the EEOC has issued a letter to Belmont Abbey, making a determination that the Catholic college discriminated against women by removing coverage for prescription contraceptives from the health insurance plan and by publishing the names of faculty members who filed a charge with the EEOC.
From the article,
Contraception, abortion and voluntary sterilization came off Belmont Abbey College’s faculty health-care policy in December 2007 after a faculty member discovered that coverage, according to an e-mail that college President Bill Thierfelder sent to staff, students, alumni and friends of the college.
“By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives,” wrote Reuben Daniels Jr., the EEOC Charlotte District Office director, in the determination. “By denying coverage, men are not affected, only women.”
. . .
David Neipert, a former associate professor who filed charges against the college, said he was glad of the outcome but concerned for the employees who remained there.
“I think the memo naming us was a pretty mean approach,” Neipert said.
The problems caused from the contraception issue caused him to seek out another job.
“I was labeled as someone who promoted abortion in a Catholic community,” Neipert said. “In my opinion, that’s a lot of damage.”
Neipert said the concern was solely about contraception, but others focused on abortion and contraception as word spread in Catholic circles. The Senior Fulbright Scholar in law said he tried to warn the college that they should get a lawyer’s counsel before taking away contraception and thought that would be the end of the issue.
“I thought that they’d say, ‘OK, we’ll pay for pills,” Neipert said.
The EEOC had found no cause on the discrimination issue, but cause on the retaliation claim in March, but decided to reconsider the discrimination claim in April. The President of the college issued this statement:
“We are disappointed that this matter has taken this very unusual twist, but we remain committed to ensuring that all of the College’s policies and practices follow the teachings of the Catholic Church, which includes valuing all life and treating individuals with dignity and respect, and providing equal opportunities for all,” Thierfelder wrote in a statement. “Belmont Abbey College disagrees with the EEOC’s new discrimination determination as well as with the retaliation determination the EEOC issued in March of 2009, and does not believe that it has discriminated against or retaliated against anyone. The College is confident that its actions ultimately will be found to be in compliance with all federal and state laws and with the U.S. Constitution. Accordingly, the College will be asking the EEOC to reconsider each of the current determinations it has made in connection with the charges filed against the College.”
The lower courts are split on this issue, some finding that prescription contraception is not related to pregnancy, and so not covered by the Pregnancy Discrimination Act's amendment to Title VII. Others have found that the lack of coverage impacts men and women the same because prescription contraception isn't covered for the female dependents of male employees either. In my view, this is sex discrimination. Prescription contraception is only available for women, and is one of very few ways that women themselves can control when and whether to have children. And having children has a huge impact on a woman's working life, so that female employees are in a position different from female dependents vis a vis work for this employer.
For an excellent and detailed analysis of the issue, check out Alyson L. Cantrell, Weaving Prescription Benefit Plans into the Birds and the Bees Talk: How an Employer-Provided Insurance Plan that Denies Coverage for Prescription Contraception is Sex Discrimination under Title VII as Amended by the PDA, 39 Cumb. L. Rev. 239 (2008-09).
Hat tip: Jamie Prenkert
Labor Issues Scuttle Southwest Bid for Frontier
NPR reports this morning that Republic Airways was won the bankruptcy court auction for Frontier Airlines. Southwest's higher bid was rejected because Southwest would not back down from its requirement that the pilots of both airlines agree prior to a merger on how they would integrate seniority lists.
Labor issues often are overlooked in corporate deals, but as this shows, labor issues can be dealbreakers.
August 13, 2009
Further Updates on Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law
One more set of updates on Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law, September 25-26, 2009, Seton Hall University School of Law from co-organizer Tim Glynn (Seton Hall):
Various aspects of the draft, including sections on defamation and intentional interference, will be addressed by Richard Carlson (South Texas), Markita Cooper (Florida A & M), and Alex Long (Tennessee).
Michael Zimmer (Loyola University Chicago) will serve as moderator.
A draft of this Chapter will be made available prior to the event.
This panel is in addition to the previously announced panel discussion on Chapter 7 (Employee Privacy), which will take place on Saturday.
Registration and hotel information are posted on the Colloquium website.
Please do not forget that presentation proposals (title and abstract) must be submitted online no later than THIS SATURDAY, August 15, 2009.
Reservations for conference-rate rooms at the Newark Hilton Hotel must be made no later than September 4, 2009.
Please contact Tim Glynn or Charlie Sullivan if you have any questions.
Update on Zimmer, Sullivan and White ED Supplement
Because they realize that classes at many schools, start before the supplement will be in the bookstores, Aspen is happy to send the supplement out in PDF form to instructors who want it in advance. All those teachers need to do is contact their Aspen rep. and ask for it.
Don't Call It A Comback: 401(k) Here and Here to Stay
With apologies to LL Cool J for the title of this post, CNNMoney has a report entitled: 401(k) Contributios Make a Comeback:
Boston-based Fidelity Investments, which manages retirement savings plans for 11.2 million workers, said participants decreasing contributions had outnumbered those raising them for the previous three quarters -- a period during which all the major stock indexes hit multi-year lows. The vast majority of workers did not alter their contributions in the quarter.
Two points. With the automatic enrollment features of the Pension Protection Act of 2006, this is not a surprise. The PPA automatically opts workers into their employers' 401(k) plans. If a worker does not want to contribute to their individual pension account, they have to affirmatively opt out. The laws of inertia and the laws-of-not-knowing-what-in-the-world-is-going-on, tell us that not only will more workers be enrolled in these 401(k) plans, but they will be putting more money in also. Why? Because Qualified Default Investment Alternatives (QDIA) that their employers put them into for 401(k) purposes assure that people who would otherwise not participate or participate at a low level will do so at a higher level if they don't indicate any preference. This is because these QDIA default investments not only diversify their investments, but also contribute a higher perecentage of income into these accounts.
Second point. 401(k) are here and here to stay and that is not necessarily a good thing. Unlike defined benefit accounts which have the ability to weather recessionary storms because of their formulaic, actuarial nature, defined contribution plans, like 401(k)s, even when properly diversified, can be walloped in an economy like this one. Any one notice that the older workers down the hall who told you they were retiring are not retiring so fast? I have heard some people have lost 30% to 50% of the value of their 401(k)s in the last two to three years. What will happen when almost everyone has these accounts? Social security does not make up the difference, people, even if solvent.
Solution: government insurance program, Pension Guaranty Benefit Corporation, set up to insure defined benefit plans, should be expanded to provide some safety net for these omnipresent 401(k)s. If some action like this is not taken soon, the future for retirement security in this country`is bleak.
Furloughs in Academia and Wage and Hour Laws
One of the things that I have often wondered about is whether all these furloughs happening at public law schools have any wage and hour consequences.
Well, fear not. The Department of Labor has a handy furlough tip sheet to help employees and employers through these difficult recessionary times. Nothing new here as far as wage and hour law, but still useful to have all in one place.
Here's a taste:
1. If an employer is having trouble meeting payroll, do they need to pay non-exempt employees on the
In general, an employer must pay covered non-exempt employees the full minimum wage and any statutory overtime due on the regularly scheduled pay day for the workweek in question. Failure to do so constitutes a violation of the FLSA. When the correct amount of overtime compensation cannot be determined until sometime after the regular pay period, however, the requirements of the FLSA will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable.
Read the whole thing and know your rights (with a nod to The Clash) if you happen to be in this situation right now.
August 12, 2009
Not a Great Judicial Temperament
Circuit Court Judge Robert C. Nalley made the statements in a conversation with William D. Missouri, the chief administrative judge for Maryland's 7th Circuit, which includes Charles County.
Missouri said in an interview Wednesday that Nalley apologized to him, not for having deflated the tire, but for not having notified him about the matter earlier. Missouri said he learned about the incident from a newspaper account early Wednesday.
Of course not a big deal unless you believe vandalism is not a crime. For his lack of remorse, I would throw the book at him (no, I mean a real heavy book).
Just another argument for getting rid of electing judges in the first place. Sheesh!
The Blue Pencil Comes to Wisconsin
[Cross-posted on the Marquette Law Faculty Blog]
In a fairly significant ruling in state employment law, the Wisconsin Supreme Court expanded the circumstances under which an employee covenant not to compete will be enforced in Wisconsin.
Previously,covenants had to not only be reasonable and necessary to be enforced (under Wis. Stat. § 103.465, non-compete agreements are lawful only if the restriction is “reasonably necessary for the protection of the employer”), but all provisions of the covenant had to meet those requirements. In other words, Wisconsin judges could not "blue pencil" out the offending, unreasonable part of the covenant, and had to hold the entire document unenforceable. Now, after the decision in Star Direct v. Dal Pra, 2009 WI 76 (WI. July 14, 2009), the blue pencil exists for judges to save otherwise unenforceable covenants not to compete.
Wisconsin Supreme Court adopted on July 14 new standards that tend to
save contracts aimed at preventing ex-employees from competing with
their former employers.
In Star Direct v. Dal Pra, 2009 WI 76, the court announced that portions of a restrictive covenant may be enforced even after another section is deemed unenforceable, so long as the surviving provisions remain understandable and capable of independent enforcement.
Dissenting justices criticized part of the majority’s analysis for assuming that a court signals approval of issues it could have addressed, but did not. The dissent warned that this new interpretative tool defies precedent and judicial restraint.
So, ladies and gentlemen of the Wisconsin judiciary, blue pencils out!
Recently Published Scholarship
- Dorothea Alewell, Eileen Schott, & Franziska Wiegand, The Impact of Dismissal Protection on Employers' Cost of Terminating Employment Relations in Germany: An Overview of Empirical Research and Its White Spots, p. 667.
- Luis Beccaria, Notes on the Evolution of Wage Distribution in Argentina, p. 693.
- Brian Etherington, The B.C. Health Services and Support Decision--The Constitutionalization of a Right to Bargain Collectively in Canada: Where Did It Come From and Where Will It Lead? p. 715.
- Yuval Feldman, Ex-Ante vs. Ex-Post: Optimizing State Intervention in Exploitive Triangular Employment Relationships, p. 751
- Nikita Lyutov & Daiva Petrylaite, Trade Unions' Law Evolution in Post-Soviet Countries: The Experiences of Lithuania and Russia, p. 779.
- Faina Milman-Sivan, The Virtuous Cycle: A New Paradigm for Democratizing Global Governance Through Deliberation, p. 801.
- Luca Ratti, Agency Work and the Idea of Dual Employership: A Comparative Perspective, p. 835
European Union Developments:
- Sebastian Krebber, Status and Potential of the Regulation of Labor and Employment Law at the European Level, p. 875.
- Edited by Hans-Werner Sinn et al., reviewed by Dieter Sadowski, Redesigning the Welfare State: Germany's Current Agenda for an Activating Social Assistance, p. 905.
- Greg J. Bamber, Jody Hoffer Gittell, Thomas A. Kochan & Andrew von Nordenflycht, reviewed by David Walsh, Up in the Air: How Airlines Can Improve Performance by Engaging Their Employees, p. 909
Capsule Review, p. 913
Another Sex Stereotyping/Gender Identity vs. Sexual Orientation Case
Matthew Heller at On.Point has this story on a hair stylist, terminated because he dressed in too feminine a manner.
“In response thereto, Kathy stated, 'it is okay for a girl to look like a dyke, but it is not socially acceptable for [Plaintiff Brant] to look like a girl,'” the complaint, which seeks unspecified damages for sex discrimination and retaliation, says. According to his complaint, the stylist also “typically dresses in women’s dress pants and shirts, and wears shoes with a heel. He curls his eye lashes and uses brown mascara, and also uses gel blush to color his cheeks. His hair is about chin-length."
Heller correctly points out the danger that a court will interpret this as discrimination on the basis of sexual orientation (not protected--hurry up ENDA) rather than discrimination on the basis of sex. There may be some hope in the transgender/sexual identity cases (note here, here, and here), where some courts have held that penalizing a person for failing to conform to expected gender roles is discrimination on the basis of sex. But as he quotes from a very similar Second Circuit case,
A lesson, in my view, that sexual orientation and identity discrimination both are types of sex discrimination, already covered by Title VII. More importantly, when does that vow happen? Is a person not gay unless they've been through some secret ceremony with robes and holy books? Why are people so rarely described as "avowedly heterosexual" except when we mean to doubt the veracity of their claim? But I digress.
Glenna Herald sends us a link to this msnbc.com article by Kiri Blakely: Where "omg, u look gr8" Can Land You in Court. She writes that "[s]exual harassment isn't about being chased around the desk anymore. It's about flirtation, subtle power plays, retaliation and, of course, text messages."
Those subtle areas can include everything from flirtation at a company party to a complimentary text message or an unwelcome invitation to discuss the latest project over dinner or drinks. "There's been a new generation of confusion in this area," says Jay Zweig, an employment lawyer with Bryan Cave in Phoenix.
Recently Published Scholarship: The Labor Lawyer
The Labor Lawyer
Volume 24, Number 3, Winter/Spring 2009
- Samuel Estreicher, "'Think Global, Act Local": Employee Representation in a World of Global Labor and Product Market Competition, p. 253.
- Allan G. King & Camille C. Ozumba, Strange Fiction: The 'Class Certification' Decision in FLSA Collective Actions, p. 267.
- Daniel B. Tukel, The Best Defense or a Good Offense? Are the Damage Caps in 42 U.S.C. § 1981a Waivable Affirmative Defenses? p. 303.
- Daniel B. Pasternak & Justin F. Keith, One of These Things is Not Like the Other: The Continuing Battle Over the Meaning of Discrimination -- Salmon Run Shopping Center LLC v. NLRB and Guard Publishing Company v. NLRB, p. 325.
- Yona Rozen, Christa Boyd-Nafstad & Tiffany C. Alvoid, One of These Things is Not Like the Other: The Continuing Battle Over the Meaning of Discrimination -- Salmon Run Shopping Center LLC v. NLRB and Guard Publishing Company v. NLRB, p. 339.
- Joseph M. Goldhammer & Naomi Y. Perera, We Never Talk Any More: Evaluating Confidentiality Rules and No-Fraternization Policies -- Cintas Corp. v. NLRB and Guardsmark LLC v. NLRB, p. 379.
- Erin-Ann Jurrens-Sudkamp, COBRA's Gross Misconduct Exception: Strategies for Compliance in the Face of Uncertainty, p. 399.
Hyde on the ILO
Alan Hyde (Rutgers) has just posted on SSRN his article (forthcoming J. L. & Ethics of Human Rts.) The International Labor Organization in the Stag Hunt for Global Labor Rights. Here's the abstract:
August 11, 2009
Health Care Insurers: I Think The Appropriate Word is "Disturbing"
Washington Post's Daily Dose Blog adds more fuel to the health care reform debate:
The Department of Health and Human Services put a spotlight on that practice Tuesday in its continuing campaign to build support for an overhaul of health insurance.
“When a person is diagnosed with an expensive condition such as cancer, some insurance companies review his/her initial health status questionnaire,” the HHS said in a posting at HealthReform.Gov. In most states, insurance companies can retroactively cancel individuals' policies if any condition was not disclosed when the policy was obtained, "even if the medical condition is unrelated, and even if the person was not aware of the condition at the time.”
“Coverage can also be revoked for all members of a family, even if only one family member failed to disclose a medical condition,” HHS said.
The department cited recent research by the staff of the House Committee on Energy and Commerce, which found that three large insurers rescinded almost 20,000 policies over five years, saving $300 million in medical claims.
At least one insurer included such savings in an employee performance evaluation.
I teach a case in employee benefits law class, McGann v. H&H Music (5th Cir. 1992), that describes a similar practice to this. Unfortunately, the court in McGann found that the participant could not prevail under an ERISA Section 510 retaliation claim when his coverage was dramatically reduced (1 million to $5000) when he told his employer he had AIDS.
Maybe I'll just start counting reasons why health care reform is a necessity and that health insurers cannot continue to exist in a world with little regulation and even less meaningful remedies against them for this type of disturbing conduct.
The employee performance part can be filed under "truly disturbing."
The Long Arm of the EEOC
Most of us are familiar with the controversies about working conditions at the factories that make most of our clothes in East Asia and the Pacific Rim. It's not always easy to remember, though, that at least some of those factories are in U.S. jurisdictions. That's why the recent $1.7 million settlement and consent decree between the EEOC and the largest garment manufacturers in Saipan is especially noteworthy. From the EEOC's press release:
The three-year, court-enforced consent decree will resolve four EEOC discrimination lawsuits against the employers and their affiliates: Tan Holdings Corporation; Tan Holdings Overseas, Inc.; Concorde Garment Manufacturing Corp.; Micro Pacific, Inc.; Seasonal Inc.; and L&T International Corp. The EEOC filed the cases in U.S. District Court for the Northern Mariana Islands. The consent decrees, signed by U.S. Federal Court Judge Alex R Munson on July 28, 2009, resolve the lawsuits filed by the EEOC in the Federal District Court.
“This major settlement shows that the EEOC will vigorously protect the rights of all workers, within every reach of our jurisdiction, to be free of discrimination,” said EEOC Acting Chairman Stuart J. Ishimaru. “The resolutions of these egregious cases bring a measure of justice to the many workers who were retaliated against and otherwise victimized by discriminatory employment practices because of their national origin, age, or pregnancy.”
. . .
Besides the $1.7 million obtained by the EEOC, the three-year consent decree also requires the companies to institute broad injunctive relief and remedies such as:
- Hiring of an equal opportunity consultant to train all managers and employees;
- Extensive training for all of its non managerial, managerial, and human resources employees;
- Enjoining the companies from discriminating or retaliating against its employees;
- Monitoring by the EEOC and reporting to the EEOC on their progress in fulfilling the terms of the consent decree;
- Reporting all complaints of national origin, age and pregnancy discrimination to the EEOC during the term of the decree;
- Establishing effective policies and procedures, including a complaint procedure for handling discrimination complaints; and
- Posting of a notice of the case at their various facilities.
The allegations against the four affiliates generally revolved around favorable treatment for Chinese and Nepalese employees and poor treatment for Filipino and Bangladeshi employees. Additionally, at least one of the affiliates routinely terminated or refused to renew the contracts of women of any national origin once they became pregnant.
The press release noted four additional recent settlements with companies in the Northern Mariana Islands and Guam. And, if you're wondering, the regional office that handles U.S. territories in the Pacific Rim is in Los Angeles.
Labor Law Smokin' On the Job Market
Cyndi Nance (Arkansas) posted this article from the ABA Journal on her Facebook page (can you imagine someone reading that line ten years ago!). In any event, as far as "Where the Work Is":
Record-high jobless rates and pro-union federal legislation may be negative news to some, but they add up to positive trends for America’s labor lawyers.
Firms specializing in labor and employment law say they’re growing busier as job losses result in cases related to wrongful termination, severance, unemployment disputes and discrimination, as well as work relating to how companies deal with labor unions.
“We’re not in hiring mode yet, but we’re taking on much more of a caseload,” says Matthew D. Austin, of counsel for Dublin, Ohio-based Mason Law Firm Co., a small shop representing privately held companies in the manufacturing, construction and grocery industries.
If passed, the Employee Free Choice Act could benefit his business, Austin says. The act would eliminate the veto power employers hold over the card-signing method of obtaining majority votes for unionizing. The push toward increased representation would bring a host of legal work.
The act “is going to pass in some form,” Austin says, adding that it will be “a major boon for what we do.”
Have to agree with Austin that EFCA is coming to us in some form soon and then there will be at least more legal work for labor and employment law attorneys.
The one thing this article fails to mention is that employee benefits/ERISA is also very hot, what with all the health insurance and pension issues out there.
The Dangers of Facebook
More evidence of why many of us warn our students about their Facebook accounts. A British worker added her boss at some point as a Facebook friend, but apparently forgot that fact later as she complained about her job and boss (I'm being selective because of the language--check out the link for the unedited version): "OMG I HATE MY JOB!! My boss is a totally pervvy wanker always making me do [sh*t] stuff just to piss me off!" As expected, her boss then commented:
This isn't going to help uncork the backlog of Facebook friend requests in my in-box. And if my Dean is reading this, I don't think you're a pervvy wanker at all.
Hat Tip: Jason Walta