Friday, September 4, 2009
Using an unusual theory of vicarious liability, the family of Michelle Hatchel is suing the Morgans Hotel Group for wrongful death, seeking $645 million in damages, according to this On.Point news story. Hetchel was dating then-CEO Ed Scheetz, who had flown her from New York to Las Vegas on the company jet for a weekend of sex and drugs (and one presumes, rock and roll). The plaintiffs' theory appears to be that Scheetz was effectively the living proof or alter-ego of the Hard Rock's marketing strategy of hedonism and thus that his hedonistic behaviors were part of his job, part of what he was hired for by the Morgans Hotel Group. On Point News was skeptical
Even if Morgans sanctioned his “hedonistic proclivities” and he was using its plane and condo, it surely did not assign him the “very task” of providing illegal drugs to Hatchel.
Moreover, “considering the nature and scope of his employment,” it was hardly foreseeable to Morgans that Scheetz's behavior would result in Hatchel's death.
According to police, Scheetz returned home to the condo about 8 p.m. on Aug. 29, 2007 and called 911 to report that a woman, whom he described as his girlfriend, was not breathing. Hatchel's family say in their suit that he lied to police when he told them she was still alive when he left the condo for work at 9 a.m.
Read the whole story for more on Nevada Law and a link to the complaint.
HHS Secretary Kathleen Sebelius has reappointed John Howard as the head of the National Institute of Occupational Safety and Health (NIOSH). NIOSH is responsible for conducting research and making recommendations for the prevention of work-related illnesses and injuries to OSHA and other interested stakeholders.
Howard previously held the job from 2002 to 2008. Because the appointment does not require Senate confirmation, Howard starts his job on September 8th. It is a six year appointment.
Hat Tip: Susan Bisom-RappPS
The US Airline Pilots Association (USAPA) has filed a lawsuit against the Pension Benefit Guaranty Corporation (PBGC) seeking the removal of the PBGC as trustee of US Airways pilots’ pension plan.
The lawsuit also requests the immediate appointment of a temporary trustee to perform the investigatory functions - a role it alleges the PBGC has refused to perform on behalf of pension plan beneficiaries since 2003.
USAPA president captain Mike Cleary said: "The PBGC has not fulfilled its obligation as trustee of our pilots' retirement fund. Our own investigation has uncovered a number of questionable circumstances surrounding activities and investments of our retirement fund prior to its termination.
"Our request to the PBGC for a thorough investigation has fallen on deaf ears, so we are asking the court to appoint a trustee who will do its due diligence in this matter and investigate the management, or perhaps the mismanagement, of our pilots' retirement fund." . . . .
The PBGC assumed control of the pilots' pension on March 31, 2003, when US Airways terminated the plan during its bankruptcy proceedings over the objections of the pilots.
The suit will be in the nature of a breach of fiduciary duty under ERISA by the USAPA, which represents more than 5,000 US Airways pilots.
The Department of Labor has just released the August unemployment figures which, while still bad, is showing some early signs of life--just barely. There were 216,000 job losses in August, pushing the unemployment rate back up to 9.7% (after a wave of people stopped looking for work in July, dropping the rate to 9.4%). According to the New York Times:
Economists had expected 230,000 job losses for the month, and believed the unemployment rate would hit 9.5 percent. The government also revised monthly job losses for July higher, saying the economy had shed 276,000 jobs compared with the 247,000 that had originally been reported. The June number was revised to 463,000 job losses from 443,000. . . .
The slower pace of job losses suggested that the worst recession since the 1930s was losing steam, but the figures offered few hints that employers who had slashed their payrolls to conserve money were ready to hire again. Economists say employers must create 300,000 to 400,000 jobs a month to bring unemployment rates back to pre-recession levels — a difficult hurdle after such a prolonged downturn. . . .
Average earnings scarcely budged, illustrating the effect of pay freezes and employee furloughs. And record numbers of workers are spending six months or more without a job. . . . But the loss of 216,000 jobs in August, while grim by normal standards, underscored how far the economy had come from its worst days, when an average of 691,000 jobs were lost each month in the first quarter. Economists credited the Obama administration’s $787 billion stimulus plan and other rescue efforts by the Treasury Department and the Federal Reserve with stabilizing the economy and slowing job losses.
Thursday, September 3, 2009
I've been particularly struck by two presentations, one by Wilma Liebman (NLRB Chair) and another by Guy Davidov (Hebrew U. - Israel). Wilma spoke a bit more directly about the shortcomings of the NLRA than I think she usually does for American audiences. In response to a question about how she would order U.S. labor relations if she could scrap the NLRA and start over from scratch, she first pointed out that radical overhaul of U.S. labor law is a political impossibility, then noted that exclusive representation based on bargaining units does not work because today's bargaining unit may vanish tomorrow through merger, acquisition, outsourcing, etc. Guy, returning to the ee/independent contractor issue that he worked on several years ago, has come up with what I think is a brilliant way to distinguish the two. I'm going to oversimplify here, but his basic idea is that we should pitch the 20-factor test in favor of a simple two-part test: where there is subordination + dependence, a person should be treated as an employee and given employment protections.
A large and growing number of labor law and industrial relations scholars have argued that labor rights ought to be understood and conceptualized as fundamental human rights. In a parallel movement, a growing number of labor rights organizations have begun to deploy human rights discourse and methods, while some international human rights scholars and organizations have also, although to a lesser degree, begun to direct some of their attention to questions of labor rights – an issue long left to unions and labor law scholars.
Few scholars have challenged this move to human rights discourse, however. In this essay I argue that there are important and salient differences between labor rights and human rights, not only in how these rights operate conceptually, but also and perhaps equally importantly, in how these rights are actualized by their respective movements. I argue that the strategies, politics, culture, and ideologies that inform human rights and much of the U.S. human rights establishment are quite at odds with those of labor rights movements, and a hard human rights turn by labor rights advocates risks eviscerating the fundamental commitments to economic justice and worker democracy in which the labor rights movement is grounded.
Coincidentally, Dennis Nolan (NAA, ret. S. Carolina) made much this same point to me yesterday at the ISLSSL conference. The Europeans and South Americans in particular take it as a given that labor rights are human rights, whereas American labor law is predicated on a very different set of assumptions. The Eurpoean/S. American camp has no desire at all to reconsider their assumptions, and the Americans don't see much point in joining the discussion because a radical reinvention of American labor law is politically inconceivable at this time (a point Wilma Liebman made here in her keynote). This frequently has resulted, at the conference, of the two camps talking completely past each other.
The 2010 IEEE International Symposium on Technology and Society is scheduled for June 7-9, 2010 at the University of Wollongong in New South Wales, Australia. The subject of the conference is the social implications of emerging technologies. Attendees at the conference will be scholars, from around the world, who are studying the implications of emerging technologies in their respective disciplines.
The conference will provide legal scholars studying emerging technologies and privacy in the workplace with a unique opportunity to exchange their research, thoughts and ideas with computer scientists and social scientists in various disciplines who are engaged in analogous scholarly work.
Deadline for the abstract submission (200 words) is October 2, 2009 and the deadline for Full/Short paper submission (5000/2000 words) is. November 13, 2009. Author notification will be by February 26, 2010.
All submissions should be to Katina Michael at firstname.lastname@example.org.
The Employee Benefit Security Administration (EBSA ) issued a News Release today, which proposes civil penalty rules for multiemployer defined benefit pension plans that fail to take corrective funding action under ERISA Section 502(c)(8):
The proposed regulation is to be published in the Sept. 4 edition of the Federal Register. The public may submit comments to the department at email@example.com or through the federal e-rulemaking portal at www.regulations.gov.
The U.S. Department of Labor has proposed a regulation to assess civil penalties against plan sponsors of multiemployer defined benefit pension plans that fail to adopt a funding improvement or rehabilitation plan in accordance with the Employee Retirement Income Security Act (ERISA) as amended by the Pension Protection Act (PPA).The PPA amended ERISA and the Internal Revenue Code to require those plans certified to be in endangered or critical status to adopt a funding improvement plan or a rehabilitation plan within 240 days from the required date of the certification. PPA also gave the Labor Department authority to assess civil monetary penalties of up to $1,100 per day against plan sponsors that fail to timely adopt funding improvement or rehabilitation plans. The proposed regulation sets forth the administrative procedures for assessing and contesting such penalties.
Hat Tip: Marcia, Marcia, Marcia
Wednesday, September 2, 2009
In 2004, Wayne Tomlinson and other employees brought a class action against their employer, El Paso Corp., for age discrimination caused by changes made to accrual rules when the company switched from a defined benefit plan to a cash balance plan in 1997. Tomlinson alleged that the company selectively froze the pension benefits of workers 40 and older. He alleges that he didn't know enough about the changes to file his action until 2004.
The action was originally dismissed in January of this year as untimely, but plaintiffs' attorneys filed a motion to reconsider after the Ledbetter Act was signed into law. According to the Denver Post, Tomlinson was one of the invitees to the signing.
Late last week, according to BNA's Daily Labor Report (sorry, paid subscription only), the district court reinstated the action, finding that the Ledbetter Act made the action timely. This may be the first application to a pension case, so stay tuned for more developments. And to read more about the case, see this site created by the attorneys for the class to collect relevant documents and news.
Hat tip: PS
Friend of the blog Jeff Nowak brings to our attention a new Illinois law which significantly broadens leave entitlements for (and rights of) employees who are victims of domestic or sexual violence. It's effective immediately, and applies to all private employers with 15 or more employees and all public employers.
Here's more from Jeff's firm's, Franczek Radelet,newsletter:
Originally enacted in 2003, the Illinois Victim's Economic Security and Safety Act ("VESSA") provides certain protections to employees who are, or whose family or household members are victims of domestic or sexual violence. Among other things, VESSA prohibits discrimination against such employees, requires employers to provide them with reasonable accommodations, and allows them to take up to 12 weeks of statutorily protected leave.
Effective August 24, 2009, Public Act 96-0635 amends VESSA by, among other things, extending the law's coverage to smaller employers and expanding the definition of "family or household member" so that more employees are covered by the Act.
Low-wage workers are routinely denied proper overtime pay and are often paid less than the minimum wage, according to a new study based on a survey of workers in New York, Los Angeles and Chicago.
The study, the most comprehensive examination of wage-law violations in a decade, also found that 68 percent of the workers interviewed had experienced at least one pay-related violation in the previous work week.
“We were all surprised by the high prevalence rate,” said Ruth Milkman, one of the study’s authors and a sociology professor at the University of California, Los Angeles, and the City University of New York. The study, to be released on Wednesday, was financed by the Ford, Joyce, Haynes and Russell Sage Foundations.
In surveying 4,387 workers in various low-wage industries, including apparel manufacturing, child care and discount retailing, the researchers found that the typical worker had lost $51 the previous week through wage violations, out of average weekly earnings of $339. That translates into a 15 percent loss in pay.
Part of the study's findings were that employers of low-income workers were successful in intimidating them not to bring workplace claims, including worker compensation claims.
I actually think this study resonates with the current fight between unions and companies over the Employee Free Choice Act and the need for voluntary recognition of unions versus the need to keep secret ballot elections.
Really what this argument is all about is whether you are more concerned about union intimidation or management intimidation in the workplace. I think, at least in the low income world, this study is further proof that employer intimidation is much more prevalent and impactful. As someone recently put it to me: there is just something about an employer having the ultimate power of hiring and firing workers.
Christoper Null: The Working Guy, who has a Tech blog over on Yahoo!, has this interesting story about a New Zealand worker fired for sending confrontational emails:
WHAT COULD BE MORE ANNOYING THAN THIS? MAYBE IF IT WAS BOLD? AND RED? . . . .
And if you worked for New Zealand's ProCare Health, it could even get you fired.
That's exactly what hapened to Vicki Walker, who was abruptly kicked out of her job for sending "confrontational emails" with text formatted in a variety of red, bold, and all caps fonts. Walker had sent the emails to fellow workers within the company, usually with stern and detailed instructions on how forms should be properly filled out.
Someone at ProCare didn't like her approach, suggesting she caused "disharmony in the workplace" and was being too confrontational via email, eventually firing her without warning.
Walker, however, got the last laugh. She sued for wrongful termination and won the case, pocketing $17,000 in lost wages and for other unspecified harm caused due to the firing.
OK, so Null brings up some good questions about this unusual workplace situation, including: "Is it OK to fire someone for misuse of their caps lock button?" I love his witty repartee about those responding in caps being fired!
What would happen in the United States? Well, with our vaunted employment at will system, probably not much, unless you could make the argument that this type of firing causes intentional infliction of emotional distress (hard to see how this would qualify as utter intolerable in a civilized society, no?).
Just cause for firing in a union or civil service environment - here, I have to agree with the Tribunal in New Zealand, I DON'T THINK SO!!!
Hat Tip: MIKE ZIMMER!!!!
The AP is reporting that Justice Stevens, who has usually hired a full complement of four clerks by this time of the year has only hired one. This invariably leads to speculation that he's preparing possibly retire at the end of the term (retired Justices often have one law clerk to help when they ride circuit, write articles, etc.).
Tuesday, September 1, 2009
Reports are coming out that the Labor Department is investing the NFLPA for colluding with the NFL owners in secret over future labor discussions. The information came out of a retaliation suit by an NFLPA employee (incidentally the daughter of the scandal magnet, Rep. Jim Moran). According to the AP:
The NFL Players Association has confirmed it is the target of a federal investigation into whether union leaders attempted to collude with NFL officials by holding secret meetings to discuss labor talks. NFLPA official George Atallah said Tuesday the union has been cooperating with the Department of Labor probe, which came to light in a lawsuit filed against the union last week by NFLPA employee Mary Moran. Moran claims she was wrongfully removed from her job as director of human resources and placed on administrative leave with pay on Aug. 3 because of her role as a confidential informant in the investigation.
In court documents filed in District of Columbia Superior Court on Thursday, Moran said she provided investigators evidence that former NFLPA president Troy Vincent(notes) and other union members met with NFL commissioner Roger Goodell and Houston Texans owner Bob McNair, allegedly to provide the league access to confidential union information.
She alleged that NFLPA executive committee member Mark Bruener(notes) and Texans player representative Kris Brown(notes) also attended the meetings, which she claims were not authorized by or reported to the union. She alleged the meetings were a bid by union members to gain influence with the NFL while providing “owners a toehold in the NFLPA.”
It's unclear what's really going on here. For instance, it seems odd that the union is being investigated--if the allegations are true, the owners and a rogue union official are the perpetrators and the union is the victim. We'll none doubt hear more later.
[Alex Long also points out that Pro Football Talk--which knows more about this than me--has confirmed that the headache is more the owners' than the union's.]
The Wall Street Journal's Law Blog was recently perplexed by a case in which the Third Circuit reinstated a sex stereotyping claim by a gay male employee. The court, noting that sexual orientation isn't protected by Title VII, noted that an effeminate gay man can pursue a stereotyping claim just like an effeminate straight man. To clear up their confusion, the WSJ turned to our own Paul Secunda:
We found ourselves a bit puzzled by this distinction, which, on first blush, strikes us as a bit arbitrary: If a gay man is fired because he’s acting in conformity with the stereotype of a gay man, he can sue under Title VII. At the same time, if he’s fired because he’s gay, he can’t sue. That struck us as odd.
So we checked in with Paul Secunda, an employment-law expert and law professor at Marquette, for a bit more clarification.
Secunda confirmed the fact that, yes, this was the law, largely dating to a U.S. Supreme Court case from 1989 called Price Waterhouse v. Hopkins, in which a woman was not made a partner at Price Waterhouse because her demeanor did not conform to stereotypical notions of femininity. “That’s called sex-stereotype discrimination,” says Secunda, “when an employer says to someone ‘you’re not acting ‘female enough’ or ‘male enough,’ therefore we’re firing you.” . . .
That said, explains Secunda, while certain states and cities have laws prohibiting employment discrimination on the basis of sexual orientation, the Supreme Court has never ruled that sexual orientation is covered by Title VII.
The law could change soon, however. Secunda says that two different versions of a proposed change to Title VII, called ENDA (The Employment Non-Discrimination Act), were recently introduced in both houses of Congress. ENDA, which would prohibit employment-discrimination on the basis of sexual-orientation, is likely to be taken up in the fall.
If nothing else, says Secunda, ENDA’s passage will mean that plaintiffs no longer have to “artfully plead” that discrimination is based on sex-stereotyping and not on sexual-orientation.
Jerry Kalish over at Retirement Plan Blog discusses the most recent study issued by Dalbar, a Boston-based financial research firm that annually issues a report called the Quantitative Analysis of Investor Behavior (QAIB). The QAIB examines the returns that investors actually realize and the behaviors that produce those returns. What jumped out at Jerry was the following:
While the S & P 500 earned an average return of 8.41% from 1988 to 2008, the average equity investor earned a mere 1.87%.
Wow. And these were equity investors, not folks who had stashed their stuck all their retirement money in bonds and Treasuries. As Jerry points out, this is bad news for folks relying on their 401k investments for retirement.
Men who skipped annual vacations were about 20 percent more likely to die over a nine-year period than men who consistently took a breather, according to a study by Brooks Gump, a health psychologist at SUNY Oswego, and Karen Matthews, a professor of epidemiology and psychology at the University of Pittsburgh.
Women who took vacations only once in two years were more likely to experience depression, tension, fatigue and marital dissatisfaction than women who took time off at least twice a year, according to a five-year study of 1,500 women by Cathy McCarty of the Marshfield Clinic.
Women are twice as likely to have a heart attack -- while men are a third more likely -- if they don't take regular vacations, according to research by Elaine Eaker of the Framington Heart Study project.
The International Society for Labour and Social Security Law gets into full gear today. Wilma Liebman gives the keynote later this morning. Gilliam Lester will lead a roundtable discussion of Work and Family Life following afternoon tea. Other members of the American delegation include Janice Bellace, Chris Cameron, Matt Finkin, Dennis Nolan, Calvin Sharpe, Ted St. Antoine, Kathy Stone, and Steve Willborn.
"Once Upon A Job..."
Tuesday, September 1, 2009
Wednesday, September 2, 2009
Thursday, September 3, 2009
This is perhaps the toughest job market since the Great Depression. More than six million Americans are drawing unemployment benefits and countless others have seen their benefits run out. For the next three nights NBR Midwest Bureau Chief Diane Eastabrook introduces us to the faces behind those figures.Pt. 1 – We meet an unemployed Sales Executive from Gurnee, IL
Pt. 2 – We meet an unemployed Technology Manager from Skokie, IL
Pt. 3 – We meet an unemployed couple from Arlington Heights, IL
Plus, there will be a Labor Day Special Edition on NBR: “Working It Out,” Monday, September 7th.
The National Employment Law Project (NELP) brings to our attention a report, Labor Confronting the Gloves-Off Economy: America's Broken Labor Standards and How to Fix Them, published jointly by the UCLA Institute for Research on Labor and Employment, the Center for Economic Policy Research, the Center on Wisconsin Strategy, and the NELP.
Here's a taste:
Across the United States, growing numbers of employers are breaking, bending, or evading long-established laws and standards designed to protect workers, from the minimum wage to job safety rules to the right to organize. This "gloves-off economy," no longer confined to a marginal set of sweatshops and fly-by-night small businesses, is sending shock waves into every corner of the low-wage -- and sometimes not so low-wage -- labor market. What can be done to reverse this dangerous trend?You can purchase a hard copy of the report for $10 by contacting Joanna Lukowicz, firstname.lastname@example.org.
This report, based on the book The Gloves-Off Economy: Labor Standards at the Bottom of America's Labor Market (a Labor and Employment Relations Association volume published by Cornell University Press), provides a comprehensive yet compact summary of gloves-off practices, the workers who are affected by them, and strategies for enforcing workplace standards. The editors, four prominent labor scholars, have brought together economists, sociologists, labor attorneys, union strategists, and other experts to offer varying perspectives on both the problem and the creative, practical solutions currently being developed in a wide range of communities and industries.
Hat Tip: Dan Idzikowski