September 25, 2009
Drawing upon more than 25 years experience as a business lawyer, arbitrator, and mediator, Gary Kaplan not only explains why litigation is so costly, but also how to manage disputes sensibly to avoid unnecessary litigation, reduce costs, and improve results.
The Executive Guide draws from the latest scientific research and economic theory to explain, contrary to popular sentiment, that the high cost of litigation is systemic, rather than the fault of supposedly greedy lawyers. Indeed, litigation is a perfect storm of circumstances that leads to bad decisions about when and if to settle business disputes and why it is such an inefficient process for obtaining decisions and resolving claims.
The Executive Guide shows how ADR (i.e., Alternative Dispute Resolution), such as mediation and arbitration, can short-cut disputes, and how to use often inexpensive dispute management programs to contain costs and achieve favorable outcomes that focus on cultivating positive business, workplace, and healthcare relationships.
I had the pleasure to read a draft last year. It's a well-written book, aimed at business managers.
Kaplan: Should You Roth?
Richard Kaplan (Illinois) has just posted on SSRN his article (published in Daily Tax Report) To Roth or Not to Roth: Analyzing the Conversion Opportunity for 2010 and Beyond. Here's the abstract:
Beginning in 2010, all taxpayers will be able to convert their existing Individual Retirement Accounts (IRA) to Roth IRA's, without regard to their level of income or marital status. In effect, taxpayers will be able to lock in current income tax rates on account values that have been eroded by recent investment market declines. This article analyzes who should take advantage of this opportunity, using the barest minimum of arithmetic (and no calculus).
This is a helpful and practical essay that weighs the advantages and disadvantages of Roth conversions.
UK Court Approves Mandatory Retirement Age
The BBC, via pjhlaw, reports that the UK High Court has upheld a law -- against a challenge that it violated an EC Directive against age discrimination -- permitting employers to set a mandatory retirement age of 65. However, the judge said that there is a "compelling case" for changing the law, and the government has indicated that it plans to review it.
September 23, 2009
But Will They Give Up Their Priuses?L.A. Times, Toyota is demanding $2 million from the state for training its workers, even though it plans to shut down the plant involved early next year. This is the joint Toyota-GM NUMMI plant, which Toyota now owns by itself:
Toyota Motor Corp. is closing California's last automobile plant, but that isn't keeping the factory from asking the state for $2 million in taxpayer money for recent training that made some of its workers better car builders. The automaker says it deserves to be paid back money it spent on training this year at its Fremont plant under a Feb. 27 agreement with the state's Employment Training Panel.
But critics are incensed, noting that there won't be any more auto assembly plants left in the state where workers can make use of their training. . . .
The employment training panel hands out funds to companies that want to improve or expand their workforces. The $2-million payment is being sought by New United Motor Manufacturing Inc., which was launched as a joint venture between Toyota and General Motors Corp. to build cars at the Fremont plant. . . .
According to the agreement between the automaker and the state panel, the training involved "continuous improvement manufacturing skills" as well as "business and computer skills" for jobs that pay $19.58 to $23.64 an hour.
It doesn't look like the agreement required Toyota to keep its plants open, but the company's move here has got to look bad to a lot of California taxpayers.
Seiner on After Iqbal
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court extended the controversial pleading standard that it announced in Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007), to all civil cases. Iqbal thus confirms that all civil plaintiffs must plead enough facts to state a plausible claim to relief. In addition, the Court’s decision goes even further by defining the contours of pleading discriminatory intent. Iqbal makes clear that an allegation of discriminatory intent cannot be general or conclusory, and must be supported by the proper factual context. While Iqbal and Twombly dramatically rewrite the law on federal pleading, the decisions provide little guidance for employment discrimination litigants, who must routinely establish an employer’s discriminatory intent in a typical Title VII case. This Article attempts to provide that guidance – after Iqbal.
This Article undertakes multifaceted research which uncovers the success rate of employment discrimination plaintiffs at trial and when facing summary judgment, and outlines various other studies suggesting that discrimination continues to permeate through our society. Given the pervasiveness of the discrimination highlighted in these studies, a reasonable inference can be drawn that a claim of employment discrimination – with the proper factual support – is far more plausible on its face than the more doubtful allegations set forth in Twombly and Iqbal. Based on the research set forth in this paper, this Article proposes a unified analytical framework for pleading discriminatory intent in Title VII cases which navigates the Iqbal and Twombly decisions. The proposed pleading framework should serve as a blueprint for Title VII litigants, helping the courts and the parties to better evaluate allegations of discrimination. This paper further explains why Swierkiewicz v. Sorema, 534 U.S. 506 (2002), is still good law as applied to Title VII cases.
Joe has become the real go-to-person on these procedural question involving Title VII issues. I look forward to hear him presenting it live at the Colloquium in a couple of days.
EEOC Proposes New ADA Rules
The EEOC has just announced new rules for the ADAA (lots of alphabet soup today), triggering the 60-day notice and comment period. Interested parties will have until November 23 to provide comments on the proposed rules. From a notice by Thompson Publishing Corp.:
The regulations implement the ADA Amendments Act of 2008, which expanded the ADA's protections. Notably, the commission created a list of "certain impairments that will obviously be substantially limiting." In addition to listing impairments that are rarely disputed, the rules include impairments such as autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, major depression and post-traumatic stress disorder.
The regulations also expand on the list of major life activities spelled out in the Amendments Act and add several items to the law's list of major bodily functions. In addition, they offer a list of impairments that could likely qualify as disabilities under the law's new provision for impairments that are episodic or in remission. Alternatively, the rules list impairments that usually will not be disabilities, such as broken limbs that heal normally, sprained joints, appendicitis and seasonal or common influenza.
An individual still must show a "substantial limitation" on a major life activity to have a disability, but the proposed rules replace the former "condition, manner and duration" standard. Now, an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity "as compared to most people in the general population" -- as opposed to those "similarly situated," as some courts required in the past. Furthermore, the major life activity of working is now considered substantially limited when an impairment limits an individual's ability to perform the "type of work" at issue. This removes the former "broad range or class of jobs" performance standard.
Also, as required by the Amendments Act, the regulations require that disability determinations be made without regard to mitigating measures such as medication or mobility devices. The commission expanded this list in its rules by including "surgical intervention."
The regulations may be viewed online at http://edocket.access.gpo.gov/
2009/E9-22840.htm. The public may submit comments via mail or fax to the locations specified in the proposal, or through http://www.regulations.gov. The EEOC issued a question-and-answer document on the regulations, available at http://www.eeoc.gov/policy/ docs/qanda_adaaa_nprm.html.
Hat Tip: Kathryn McGovern
Congressional Research Service Updates
The Congressional Research Service has released a couple of reports recently that will interest anyone who speculates on the effects of our aging workforce (which means pretty much all of us). First, CRS has updated report RL30629, "Older Workers: Employment and Retirement Trends," to incorporate data recently released by the Census Bureau. Here's a glimpse at the summary:
As the members of the “baby boom” generation—people born between 1946 and 1964—approach retirement, the demographic profile of the U.S. workforce will undergo a substantial shift as a large number of older workers will be joined by relatively few new entrants to the labor force. According to the Census Bureau, there will be 204 million Americans aged 25 or older in 2010. By 2030, this number will increase by 23% to more than 251 million. Most of this growth will occur among people aged 65 and older. The Census Bureau estimates that while the number of people between the ages of 25 and 64 will increase by 15.5 million (9.4%) between 2010 and 2030, the number of people aged 65 and older is projected to grow by 31.7 million, or 79.2%.
The full report analyzes the trend and suggests ways that it will affect things like healthcare, worker shortages, and changes to incentives employers might provide for only partial retirement. You can download a copy from this link: Download CRS RL30629
As another result of the new census data, the CRS updated report RL30122, "Pension Sponsorship and Participation: Summary of Recent Trends." From that summary,
A CRS analysis of the [Current Population Services] indicates that, among private-sector workers aged 25 to 64 who were employed year-round, full-time:
- The percentage of workers whose employer sponsored a retirement plan was 59.9% in 2007 and 59.0% in 2008.
- The percentage of workers who participated in employer-sponsored retirement plans was 52.0% in 2007 and 51.1% in 2008.
- Only 25.8% of workers at firms with fewer than 25 employees participated in an employer-sponsored retirement plan in 2008, compared to 45.9% of workers at firms with 25 to 99 employees and 63.6% at firms with 100 or more employees.
- Among those who were employed year-round, full-time, 51.2% of men and 51.0% of women participated in an employer-sponsored retirement plan in 2008.
- Only 43.3% of private-sector workers aged 25 to 34 and employed year-round, full-time participated in an employer-sponsored retirement plan in 2008, compared to 50.9% of workers aged 35 to 44, 55.4% of those aged 45 to 54, and 56.6% of those aged 55 to 64.
- Black, Hispanic, and other non-white workers were less likely to have participated in an employer-sponsored retirement plan than white, non-Hispanic workers. Fifty-seven percent of white workers participated in an employer-sponsored retirement plan in 2008, compared to 45.6% of black non-Hispanic workers, 30.3% of Hispanic workers, and 47.9% of other non-white workers (mainly Asian-American and Native American workers).
- Only 27.7% of workers whose annual earnings were in the lowest quartile in 2008 (under $28,000) participated in a retirement plan at work, compared to 68.6% of workers whose earnings were in the top quartile (above $65,000).
Hat tip: Pat Purcell
Labor Troubles at Tavern on the Green
The New York Times is reporting on labor troubles for the new owner of Tavern on the Green. As the report notes, the workers' union has had several run-ins with NYC restaurants in the past (including Tavern), and usually comes out on top. Whether that happens here is unknown, but no matter the result, it looks like it's going to get ugly first:
Dean J. Poll, who was awarded the license to Tavern by the Parks Department last month, has made a proposal to the union representing some 400 Tavern employees that would nullify most of the provisions of the current contract. The proposal by Mr. Poll — who runs the nonunionized Boathouse restaurant in Central Park — calls for significant reductions in many employees’ wages, overtime pay, seniority and vacation time, and changes in pension, benefit and scheduling provisions.
Peter Ward, the president of the restaurant’s union, the New York Hotel Trades Council, responded bluntly. “This proposal is an insult, an atrocity and a slap in the face of not only this union but every New Yorker,” he said in an interview. “We will strike this guy for a hundred years over this, and we will never, ever give in.” . . .
[Poll's lawyer stated that] “Mr. Poll’s initial proposal does not change salary, health care or pension benefits for the workers already employed at the restaurant.” But the five-page 23-section proposal sent to the union recently, a copy of which was furnished to The New York Times, would nullify many of the provisions in the current collective bargaining agreement.
Mr. Poll proposes a two-tier system under which all newly hired employees are paid minimum wage (for tipped waiters, this would amount to $4.65 an hour, instead of the current $5.26). It provides no advance notice for layoffs or reduction in hours. And it would pay the banquet staff an hourly rate to be negotiated, without tips. Now they are paid $5.26 an hour, plus tips. . . .
The proposal would also remove job categories from union jurisdiction, such as sous-chefs and coat-check workers, and would require more flexibility in assigning workers to different jobs. Seniority would not govern the amount of employees’ vacation time under the proposal, and management would be given the right to change schedules without prior notification.
The proposal would also move some employees from the union pension plan and into a plan of Mr. Poll’s choosing, and would no longer require the operator to absorb increases in medical-coverage costs.
There are some interesting bargaining issues here, including whether trying to change the union's jurisdiction sounds like a push for a permissive topic. We'll see how far this gets pushed.
Pope on the Labor Meaning of "Involuntary Servitude"
James Gray Pope (Rutgers) has just posted on SSRN his article (forthcoming Yale L.J.) Contract, Race and Freedom of Labor in the Constitutional Law of "Involuntary Servitude". Here's the abstract:
The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the involuntary servitude clause. This article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the original meaning and appears to have important advantages from a doctrinal point of view. The article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.
September 22, 2009
"Son of a B****" - Acceptable Form of Workplace Conversation in Spainthis recent story reported on The Stoop Blog:
A Barcelona court says calling your boss a "son of a bitch" is not grounds for dismissal, insisting the slight is common in arguments in Spain and not that big a deal. The plaintiff in the case was fired in January 2008 for hurling that insult at his boss during a money dispute, then calling him "crazy" as he stormed out of the office. "Without a doubt, both expressions are insulting," the judge said, but not grounds for dismissal.
The man lost a first court challenge, but won on appeal with the Superior Court of Justice of Catalonia in February. The ruling states that the worker should either be reinstated, or receive $9,472 in compensation. It's unknown which option the employer picked.
You know, I always knew that adopting a just cause termination standard like in Europe would lead to more creative expression in the workplace.
HT: Margaret Bach
Clueless Employer of the Week - Legal Prescription Drugs Are Not Ilegalthe National Law Journal:
Testing employees for illegal drug use is one thing. But what about testing them for legal prescription drug use?
The latter concept has one Tennessee employer in hot water, battling two separate lawsuits in which employees claim they were forced to undergo unlawful drug tests that checked for various prescription medicines such as painkillers. The suits claim that the employer — Dura Automotive Systems Inc., an auto parts supplier — had no valid reason to order the tests and took adverse action against employees who tested positive for various legally prescribed drugs, including firing some who refused to stop taking the medications or couldn't work without them.
The most recent lawsuit was filed by the Equal Employment Opportunity Commission in federal court in the Middle District of Tennessee on Sept. 11. The suit alleges that the drug tests — initiated in 2007 — were unlawful medical inquiries under the Americans with Disabilities Act. The EEOC contends that Dura Automotive screened out persons with disabilities, failed to keep confidential the information obtained from the drug tests, and took unlawful adverse actions against at least 30 employees who tested positive for legally prescribed medications.
Am I missing something here? Did somebody forget to check with their employment discrimination attorney before putting this policy into place? I mean there were allegedly no safety concerns for the plaintiffs here who were tested and now suing.
Call for Papers
Proposal Submission Deadline: October 9, 2009.
Please remember to submit a proposal to present at the 2010 MPSA National Conference.
- More research papers are presented here than any other political science conference.
- Hundreds of interdisciplinary panels, including Latin American Politics, European Politics, African Politics, Asian Politics, Mass Media, Political Philosophy, Law, Public Policy, Public Administation, Sociology, Religion, Anthropology and more. For a full list, click here.
- New Opening Reception on Wednesday night, as well as the Exhibitor Reception on Thursday evening and the President's Reception on Saturday night.
- Everything happens in the newly restored Palmer House Hilton in Downtown Chicago.
Please forward this Call for Proposals to colleagues you think may be interested.
Founded in 1939, the MPSA is located in Bloomington, Indiana (320 West 8th Street, Suite 218).
Third Circuit Suggests Gross Won't Apply to 1981 Claims
Paul Mollica at
Another Two-Member NLRB Cert. Petition
two cert. petitions to the Supreme Court raising the validity of the two-member NLRb decisions, and now comes number three. This one is in the Snell Island case, in which the Second Circuit held that the two-member decisions were valid. We'll see what happens . . . .
Hat Tip: Patrick Kavanagh
Recently Published Scholarship
- Paul-Erik Veel, Clarity and Confusion in Employment Law Remedies: A Comment on Honda Canada, Inc. v. Keays, 67 U. Toronto Faculty of L. Rev. 135 (2009).
- David Thompson, Teachers' Sexual Harassment Claims Based on Student Conduct: Do Special Education Teachers Waive Their Right to a Harassment-Free Workplace?, 42 Indiana L. Rev. 475 (2009).
- Jonathon Wright, The Problematic Application of Title VII's Limitations Period in the Pay Discrimination Context: Ledbetter v. Goodyear, the Ledbetter Fair Pay Act, and an Argument for a Modified Balancing Test, 42 Indiana L. Rev. 503 (2009).
The Washington Post, via Adjunct Prof Blog, reports that card-check is out, interest arbitration is in (but changed to a type of last-best-offer-arbitration as used in professional baseball), and a host of changes are in store for union election proceedings.
Lemos on the EEOC
Maggie Lemos (Cardozo) has just posted on SSRN her article (forthcoming Vanderbilt) The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII. Here's the abstract:
Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the existing theories, and little on which to base new ideas about what ought to be driving the legislative decision.
This Article takes a new approach to the choice between judicial and administrative process. Using a real-world example of a delegation to courts-Title VII of the Civil Rights Act of 1964-I examine how the Supreme Court and the Equal Employment Opportunity Commission interpreted the statute over more than four decades of enforcement. The analysis confirms the importance of the choice of delegate, revealing substantial differences between judicial and agency interpretations of the statute. It also calls attention to some surprising similarities between the two institutions, both of which exhibited markedly stable decision making in the face of political upheavals in Congress and the White House. The picture that emerges is far more complicated and context-dependent than the stylized models of prior work would allow-but so is the decision that Congress must make. By exposing the legal and political consequences of a delegation to courts in one area of federal law, this Article offers a richer and more nuanced understanding of a critical, but largely overlooked, question of institutional choice.
September 21, 2009
Yamada on Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace"Employment Law as If People Mattered: Bringing Therapeutic Jurisprudence into the Workplace."
During the past 20 years, scholars and practitioners drawn to therapeutic jurisprudence (TJ) have produced a substantial body of work, with mental health law, criminal law, family law, and legal education being focal points for examination under a TJ lens. Employment law, however, has been conspicuously underrepresented in TJ-inspired scholarly and law practice literature. This essay is built on the premise that employment law scholars and lawyers, as well as the public at large, would benefit by applying a TJ perspective to the law of the workplace, and it suggests some framing concepts drawn from psychology and related disciplines to guide future research, analysis, and practice. It also applies these ideas to the challenges of representing employees and employers, using workplace bullying as a specific scenario for discussion.
I am all for this interdisciplinary perspective that David brings to the table in the fight for employee rights. If David can do as much in the TJ area of employment law as he has done previously with workplace bullying law, employees will surely glean the benefit of David's efforts.