Saturday, January 31, 2009
In an effort to make 401k plans (and fees) more transparent, Brightscope has launched the country's first online 401k rating system. RetirementPlanBlog describes the rating system here; here's the Brightscope press release. This is a very good thing -- fees have a huge impact on long-term investment performance, and it's too easy now for these fees to be buried in the fine print.
- David C. Yamada, Workplace Bullying and Ethical Leadership (592).
- Katherine Van Wezel Stone, John R. Commons and the Origins of Legal Realism; or, the Other Tragedy of the Commons (143).
- J. Robert Brown, Returning Fairness to Executive Compensation (126).
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (109).
- Carola Frydman, Learning from the Past: Trends in Executive Compensation over the Twentieth Century (100).
- Gregory Mitchell, Second Thoughts (79).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (77).
- Jeffrey M. Hirsch (photo above), Revolution in Pragmatist Clothing: Nationalizing Workplace Law (67).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (66).
- Mitchell H. Rubinstein, A Lawyer's Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged because the Nurses Resigned En Mass (56).
Friday, January 30, 2009
This piece offers a fresh perspective on the upper-level employment law class based on the theme of employment as transaction. Like much of law school, employment law is often taught from a public advocacy perspective in which the primary role of the lawyer is to vindicate workers' rights or responsively defend managerial action. As a doctrinal matter, however, courts are showing increased attention to the role of private ordering in defining workplace rights and assessing liability, even in regulatory areas. Courts routinely examine employers' efforts to redress unlawful behavior under antidiscrimination law and consistently sanction the use of arbitration agreements waiving rights to a federal jury trial if they satisfy the requisite contract formalities. At the same time, an evolving branch of employment law scholarship has recognized the role of corporate actors and other intermediaries in achieving the normative goals of workplace regulation. Thus, the way in which employers internally implement and respond to the law is an important site of study for those seeking to ensure the realization of legal rights.
These complementary developments in law and theory provide both a unifying theoretical framework for teaching employment law and policy and an opportunity to reconfigure the course to address both recent and long-standing critiques of legal education. A principle insight of the Carnegie Foundation's 2007 report on the quality of legal education is that legal pedagogy artificially segregates instruction in substantive expertise, practical skills, and professional values. Using an actual class exercise as an illustration, the piece demonstrates how a basic employment law course can be redeployed as a skills/doctrine hybrid that not only integrates practical training into the substantive course, but exposes students to the especially neglected area of transactional skills. Incorporating a transactional learning experience is a significant stride toward preparing students for a proactive practice in which they are capable of counseling clients, ensuring regulatory compliance, and managing risk, skills sorely needed in a world of increasingly transactionalized relationships.
This is fantastic stuff. The Carnegie Report, Best Practices, etc. say we should be finding new ways to engage our students -- most students learn best by doing. I've been using employment litigation to teach my Employment Discrimination and Civil Procedure courses, but I never thought of teaching the employment courses transactionally until Rachel presented this paper last fall at the Third Annual Colloquium.
Every night in February, Nightly Business Report will be taking a look at the jobs/unemployment situation in the U.S., in a series called, “Reviving the Economy: Jobs.” As part of this month-long series, NBR reporters will tackle the following topics:
- How those with jobs can prepare for possible unemployment.
- How to look for work.
- What sectors/areas are still hiring.
- Problems with employment insurance system.
Hat tip: Paul Secunda.
At a White House event today in which Obama launched a task force on the middle class to be headed by Biden, the President signed three labor-related executive orders. According to Obama's statement:
One of these orders is going to prevent taxpayer dollars from going to reimburse federal contractors who spend money trying to influence the formation of unions. We will also require that federal contractors inform their employees of their rights under the National Labor Relations Act. Federal labor laws encourage collective bargaining, and employees should know their rights to avoid disruption of federal contracts. And I'm issuing an order so that qualified employees will be able to keep their jobs even when a contract changes hands. We shouldn't deprive the government of these workers who have so much experience in making government work.
However, as Politico notes:
[T]he policy reversals Obama will make on Friday are not among labor’s top priorities, nor are they the toughest labor decisions the administration will face. Obama will not take action, for example, on labor’s top concern: the controversial Card Check rule, which, if adopted, would make it easier for unions to organize.
Biden said in an interview Thursday that the administration will get to the Card Check rule “this year, we hope.”
Interestingly, the Politico story also describes one of the executive orders as eliminating the ability of firms to post notices informing employees that they don't have to join a union. This seems inconsistent with other descriptions of the order, but I can't find the text yet to confirm what it says. If anyone know what's going on, please let us know.
In the comments section, JK has a description of the order and he was kind enough to share a copy of it, which I'm happy to pass along to anyone who emails me. And now, Ross Runkel at LawMemo has shown his superiority over me by posting all three orders.
Employee Benefits Law Symposium
John Marshall Law Review
41 The John Marshall L. Rev. (2008)
- Joshua Waldbeser, Case Note: Golden Gate Restaurant Association v. City and County of San Francisco: Setting the Stage for Supreme Court Review of the Most Important Preemption Matter in the History of ERISA, p. 995 (2008).
- Debra A. Davis, How Much is Enough? Giving Fiduciaries and Participants Adequate Information about Plan Expenses, p. 1005 (2008).
- Craig C. Martin, Matthew J. Renaud & Douglas A. Sondgeroth, Baby Ka-Boom! Coming Developments in ERISA Litigation Due to Social, Demographic, and Financial Pressures From the Baby Boom Generation, p. 1037 (2008).
- Kathryn L. Moore, The Future of Social Security: Principles to Guide Reform, p. 1061 (2008).
- David Pratt, Retirement in a Defined Contribution Era: Making the Money Last, p. 1091 (2008).
- John Sanchez, The Vesting, Modification, And Financing of Public Retiree Health Benefits In Light of New Accounting Rules, p. (2008).
- Yves Stevens, European and American Issues in Employee Benefits Law Compared, p. 1189 (2008).
Thursday, January 29, 2009
The Ninth Circuit recently denied a motion to hear the Quon case en banc. In Quon, a panel held that employees may have a Fourth Amendment expectation of privacy in text messages and the content of emails. What's interested about this denial is a vehement dissent and an equally strong response to that dissent in a concurrance.
The dissent, authored by Judge Ikuta and joined by six other judges, states that the decision undermines government employers' ability to monitor their workforce and was contrary to O'Connor v. Ortega. The concurrence--written by Judge Wardlaw, the author of the panel decision--responded that the dissent's "seriously flawed underpinnings" ignores both O'Connor and the realities of the workplace. In short, the court is strongly split on this issue and we could be seeing a Supreme Court issue in the making as more courts get similar cases.
Hat Tip: Dennis Walsh
Our own Marcia McCormick was recently quoted in the Yale Daily News about the Ricci case, which she's blogged about frequently (see here for her latest). As a reminder, Ricci involves the question whether a municipality can refuse to certify an exam that would disproportionately make white applicants eligible for promotion because the municipality fears that certifying the exam would lead to charges of racial discrimination by minority applicants. Marci was one of four experts interviewed and her take on the case is below:
“I think it is important because it calls into question really what discrimination is and the entire state of Title VII,” said Cumberland School of Law at Samford University professor Marcia McCormick.
According to Title VII, even if a test were carefully designed to be race-neutral, employers could not use it if it had a “disparate impact” on one ethnic group unless there were no less discriminatory alternatives. It is unclear how an affirmative action or reverse discrimination case would be handled under Title VII, McCormick said.
The equal protection clause of the Constitution, which, in the absence of facial racial classification, focuses more on discriminatory purpose than on discriminatory impact, says nothing about disparate impact. This, McCormick says, complicates the case. The firefighters claim that the New Haven Civil Service Board violated the equal protection clause when it threw out their exam results because of racial classifications.
McCormick and Yale Law School professor Drew Days, a former U.S. solicitor general, both said they were surprised the Supreme Court decided to hear the case.
Days, who argued cases in front of the Supreme Court on behalf of the government from 1993-’96, said the case is not like most cases the Court chooses to review because it is highly fact-based. The case does not present a conflict between courts of appeals, he said.
“The issues are multiple and those issues have not been resolved by lower courts, which is the type of case the Supreme Court is usually reluctant to get involved in,” Days added.
McCormick agreed: “The case is so complicated, I am frankly a little surprised the court took the case,” she said.
The two professors said the case’s history probably played a role in the Court’s decision to take the case.
“In almost every step in the appellate process there has been something unusual,” McCormick said.
After the case was summarily dismissed by the trial court, a three-judge panel of the 2nd U.S. District Court of Appeals issued a brief affirmation of the lower court’s decision that contained only one substantive paragraph.
“For such a complicated case, it is unusual that the district court just summarily affirmed,” McCormick said. “It did not explain why it was affirming.”
The brevity of the panel’s ruling disturbed some judges on the Court of Appeals. So the whole court, on its on motion, voted whether to re-hear the case en banc, which means in front of all the judges of the court.
“For a circuit court to ask that question on its own is highly unusual,” McCormick said.
The whole court declined to hear the case in a 7-6 vote, which Post said was unusually close. And six judges signed onto dissents, which McCormick called “pretty unusual.”
I'll be looking forward to her making sense of this one after the Supreme Court issues its decision (no pressure, Marcia). -JH
I'll be looking forward to her making sense of this one after the Supreme Court issues its decision (no pressure, Marcia).
As promised Obama has signed into law the first act of his administration: the Lilly Ledbetter Fair Pay Restoration Act. The White House Blog (gotta love that!) has an introduction and full text of the ceremony, which includes the following excerpt of Obama's signing statement:
First of all, it is fitting that the very first bill that I sign -- the Lilly Ledbetter Fair Pay Restoration Act -- (applause) -- that it is upholding one of this nation's founding principles: that we are all created equal, and each deserve a chance to pursue our own version of happiness. . . .
Equal pay is by no means just a women's issue -- it's a family issue. It's about parents who find themselves with less money for tuition and child care; couples who wind up with less to retire on; households where one breadwinner is paid less than she deserves; that's the difference between affording the mortgage -- or not; between keeping the heat on, or paying the doctor bills -- or not. And in this economy, when so many folks are already working harder for less and struggling to get by, the last thing they can afford is losing part of each month's paycheck to simple and plain discrimination.
So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.
Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time. . . .
It's worth checking out the full text for his other comments, including tying the importance of the act to his grandmother and daughters, as well as some well-deserved words of appreciation for Lilly Ledbetter herself.
Thanks to David Yamada for forwarding to us this BLS report finding that union density was up a bit in 2008. Here are the highlights:
In 2008, union members accounted for 12.4 percent of employed wage
and salary workers, up from 12.1 percent a year earlier, the U.S.
Department of Labor's Bureau of Labor Statistics reported today. The
number of workers belonging to a union rose by 428,000 to 16.1 million.
In 1983, the first year for which comparable union data are available,
the union membership rate was 20.1 percent, and there were 17.7 million
- Government workers were nearly five times more likely to belong to a union than were private sector employees.
- Workers in education, training, and library occupations had the highest unionization rate at 38.7 percent.
- Black workers were more likely to be union members than were white, Asian, or Hispanic workers.
- Among states, New York had the highest union membership rate (24.9 percent) and North Carolina had the lowest rate (3.5 percent).
- The union membership rate for public sector workers (36.8 percent) was substantially higher than the rate for private industry workers (7.6 percent).
UPDATE (from JH):
I just wanted to add a few glosses on these numbers, with thanks to my personal labor economics expert. First is that the biggest increase occurred in the public sector, where unions have been successfully organizing. Second, the private sector had a very slight increase (0.1%). This increase--or lack of a decrease--is largely the result of two factors: a disproportionate number of nonunion jobs being lost and a small number of new jobs being created.
The first factor makes the the public sector increase appear more significant, as the public sector number increased despite having significant job losses. The second factor is based on the fact that millions of jobs are being created and destroyed every year, with most new jobs being nonunion. Thus, even to maintain union density levels, unions must organize new workers. They've been able to do so the last few years, partially because their work has been made easier by relatively low numbers of new jobs being created. Whether this trend can continue long-term remains to be seen.
Wednesday, January 28, 2009
I blogged about a week ago about the upcoming issue of the International Journal of Comparative Labour Law & Industrial Relations on the pedagogy of international and comparative labor law, and Susan Bisom-Rapp sent along updated order information. You can use Kluwer's updated form, e-mail Danka Kok-Gabarova (sorry; I don't know how to put in the diacritical marks to spell her name correctly), or fax her at +31 172 64 15 55.
Today's New York Times has an editorial calling for labor protection for home health care workers as part of the economic stimulus package. Putting the issue in terms of the current economic situation, the editorial begins,
With more jobs being lost all the time across the board — more than 71,000 layoffs in the United States were announced on Monday and Tuesday alone — there should be comfort in the fact that one sector, health care, continues to add jobs. In December, employers added 32,000 health-related positions.
Unfortunately, one of the fastest-growing areas within the health care field — home care for the elderly — also is one of the lowest paid and most exploitable.
. . .
According to the Labor Department, personal and home care aides are expected to be the second fastest-growing occupation in the United States from 2006-2016, increasing by 51 percent, slightly behind the expected growth in systems and data communications analysts.
The editorial goes on to explain why these workers, who are primarily women, members of minority racial or ethnic groups, and immigrants, are particularly exploitable. Protecting these workers' labor standards through wage, overtime, and safety measures would help these workers, shift a significant burden on government resources from the government to the market, and provide for better quality care. It's a very thoughtful piece, and I recommend reading the whole thing.
Peggie Smith (Iowa) writes in this area, and you should look at her work for more on the subject.
Hat tip: Paul Secunda
The Georgia State University College of Law will hold a one-day symposium on Friday, October 23, 2009, to mark the tenth anniversary of the United States Supreme Court’s integration mandate in Olmstead v. L.C., 527 U.S. 581 (1999), a landmark decision considered by some to be the disability law parallel to Brown v. Board of Education. Attorneys and the surviving plaintiff from the Olmstead litigation, which originated in metropolitan Atlanta, will participate in the Symposium.
The Symposium is co-sponsored by the College of Law, the Center for Leadership in Disability, the Atlanta Legal Aid Society, Sutherland Asbill & Brennan LLP and the Georgia Advocacy Office. Attorneys from Atlanta Legal Aid and Sutherland participated in the original Olmstead litigation.
The Symposium will examine the current status of the right of individuals with disabilities to receive services in community-based settings and explore the next steps in implementing and expanding the Olmstead decision. The College of Law welcomes papers, essays, and symposium-length articles on these topics and related subjects. The format is flexible in order to encourage academics, advocates, attorneys, practitioners, and providers alike to participate. Selected conference papers will be published in a future issue of the Georgia State University Law Review.
Those interested in participating should e-mail a one-page abstract to firstname.lastname@example.org by March 20, 2009. Participants will be notified by late April if their papers have been accepted for publication. For more information, please contact Laurice Rutledge, Law Review Symposium Editor, at email@example.com or Talley Wells at firstname.lastname@example.org.
Hat tip: Paul Secunda
The law review at Rutgers-Newark is starting an online companion to its print journal, and as part of that effort is looking for papers from professors in the region on Emerging Issues in Employment law. The deadline is March 7. Here's the announcement:
The Rutgers Law Record has announced that it is now accepting submissions for its upcoming issue "Emerging Trends in Employment Law." Scholars, practitioners, policy-makers, activists, and members of the judiciary are invited to submit papers on emerging trends in Employment Law for publication in the Rutgers Law Record. Submissions must be received by March 7, 2009, to be considered for publication.
The Rutgers Law Record is an online student-published general interest law journal affiliated with the Rutgers School of Law - Newark. Beginning in January 2009, the Record will publish op-ed length articles in an on-line symposium format. Each issue of the Record will serve as an online symposium, featuring several short, scholarly articles that revolve around a single, unifying legal topic.
Submissions for publication must be received by March 7, 2009. All submissions should be written in English and submitted as MS Word documents. Citations in submissions should appear in footnotes, not endnotes, and follow The Bluebook: A Uniform System of Citation (18th ed. 2005). The style of citations and text should conform to The Chicago Manual of Style (15th ed. 2003). Finally, submissions should be 5 – 15 pages in length (footnotes are not included in the page total).
Please include with article the author’s phone number and email address. Submissions and questions regarding submissions should be e-mailed to email@example.com
An email confirmation will be sent to the email address you provide. If you do not receive this email confirmation within 48 hours, please kindly email us at firstname.lastname@example.org.
Rutgers Law Record Staff
Hat tip: Rachel Arnow-Richman
Mike Zimmer has just posted on SSRN his new article, A Pro-Employee Supreme Court? --the Retaliation Decisions. The article will be appearing in South Carolina Law Review's inaugural peer-review issue (a great idea that I hope is emulated by other journals). The abstract:
In its three years, the Roberts Supreme Court has decided three employee retaliation cases. In all three, the employee won. So, the question is whether the Supreme Court is pro-employee, at least in retaliation cases. My answer is yes, but not in the sense of "liberal" or "conservative" in the conventional political sense that Democrats tend to be liberal and Republicans conservative. This should be no surprise since seven of the Justices were appointed by Republican Presidents. My thesis is that these decisions are a product primarily of a pragmatic approach to judicial decision making. To support that answer, I will first discuss all three decisions. Then I will analyze the positions of the Justices who spoke to the issue of retaliation in these cases to see if they support my thesis that a pragmatic approach governed, leading to plaintiffs winning. The final section will attempt to place these Justices on a spectrum from pragmatist to formalist.
Check out this interesting piece, and congratulations to Mike for its acceptance.
Colin Fenwick at the International Labour Organisation has sent out a call for abstracts for a conference entitled, "Regulating for decent work: innovation regulation as a response to globalization," to be held in Geneva, Switzerland July 8-10, 2009. The call states:
Deregulatory narratives have recently gained ground in both the research and policy arenas in efforts to quantify and compare labour laws and to assess their economic impacts. In initiatives to advance global production and investment too, flexibilisation is advanced as necessary and desirable for enhancing competitiveness and creating employment. These variants of the deregulatory agenda more firmly target less-developed economies while extending further into the traditional corpus of labour law. They also offer policy actors a narrow vision of labour market regulation - one that assumes that the curbing or removal of legal entitlements is the sole pathway to economic prosperity – and thereby obscure the research that points to the design of labour law regimes suited to contemporary economic conditions that also have the potential to foster the wellbeing of workers, their families and communities.
Given the pace and intensity of the attacks on labour standards and the signs of an evolving ‘global consensus’ on the acceptable contours of labour law frameworks, it is timely to scrutinize the emergence of the deregulatory discourse in its contemporary forms, and to consider whether reinforcing rather than retreating from labour laws may be the more promising avenue for future social and economic progress. The Regulating for Decent Work (RDW) network has been established as a forum to advance research on these questions. It is also intended to facilitate the involvement of academic researchers in policy processes, and in particular with the international body responsible for advancing social justice in the labour field, the International Labour Organization (ILO).
To advance these objectives, abstracts are requested for an international Conference on Regulating for Decent Work: Innovative Regulation as a Response to Globalization to be held in the International Labour Office, Geneva from 8-10 July 2009.
In line with the objectives of the RDW network, the Conference will explore responses to current deregulatory agendas and examine techniques for strengthening regulatory measures in substance or scope and heightening their influence on the practices of working life. Researchers from all regions are encouraged to attend and from a range of disciplines including law, economics, industrial relations, development studies, sociology and geography.
Abstracts for papers are invited that address one or more of the Conference Themes outlined below. The papers will address central features of the contemporary debates on labour market regulation, and will therefore be expected to include contributions on the measurement and comparison of domestic labour standards; the impact and influence of labour laws; the regulation of ‘non-traditional’ workers and employers (‘non-standard’ and ‘informal’ working relationships, small- and micro- enterprises etc.); the role of labour law in developing economies; innovative or overlooked modes of regulation (public procurement, financial incentives etc.); and the relationship between public and private regulatory initiatives and multi-stakeholder alliances. In line with the objectives of the RDW network, papers are particularly welcome that address regulatory domains beyond the ‘core’ labour standards of the ILO’s Declaration on Fundamental Principles and Rights at Work and in particular on the regulation of wages, working hours, work/family, health and safety, security of employment and social protection, including the ability of vulnerable workers to access these labour rights.
The deadline for abstracts is Saturday, January 31, 2009, and the deadline for the final paper is May 31, 2009.
Here is a pdf document with the details: Download rdw_call_for_abstracts.pdf
Hat tip: Paul Secunda
Who knew that participating in the Inaugural Parade would be such a risky proposition? Apparently, the drum major of an Ohio firefighters pipe and drum band was given a six-month suspension for nodding to President Obama during the parade. According to MSNBC (check out the link for a video of the nod):
The band leader, Pipe Major Mike Engle, said the firefighter from Cleveland Heights [a 17-year veteran of the band] violated the proper decorum required in a military parade. He said members were warned not to make such gestures during the parade.
Coleman insisted he was just acknowledging the president. He told WEWS-TV that "contact was made with our eyes both together." "He smiled and waved at the band and just as a gesture, I nodded my head," Coleman added. "I gave him a slight wave and went on."
Sheesh, talk about taking things too seriously! Reminds me why I quit the marching band when I was in school (the uniforms didn't help either). Finally, although this doesn't strictly speaking appear to be an employment law issue, as it looks like the band is a voluntary activity, one could easily imagine this blowing up as a work suspension, with all of its first amendment issues.
Hat Tip: Lynn Dancy Hirsch
Yesterday, the House passed the Senate version of the Lilly Ledbetter Fair Pay Act by a vote of 250-177. Pres. Obama is due to sign the bill tomorrow, making it the first act of his administration. Between all the recent labor and employment Supreme Court cases and Washington's new emphasis in the area, all you casebook authors had better be drinking extra coffee to get those new editions on the shelves.
Terry has taught at Fordham since 1993. His principal subjects are Employment Law, Labor Law, Public Sector Labor Law, Civil Procedure, and Voting Rights. Before teaching, he was an Associate at Kirkland & Ellis from 1990-93, and a Law Clerk to the Hon. Nathaniel R. Jones, United States Court of Appeal for the Sixth Circuit, 1989-90.
Terry's most recent article is Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 American University L. Rev. 523 (2008).
All the best, Terry!
From whorunsGOV, via Randy Enochs, via Paul Secunda:
Why hasn’t Hilda Solis been confirmed as Labor Secretary yet, and why haven’t we heard from the unions or from the Obama administration about it?
Some top operatives in the labor movement are frustrated with the Obama administration for not giving them the go-ahead to publicly target Republicans who appear to be stalling Solis’ confirmation, people in the labor movement familiar with the situation tell me.
The silence from Obama aides on Solis is ominous to some labor officials, because they view the Republican efforts to hold up Solis as a first shot in the larger coming war over the Employee Free Choice Act, a top labor priority. Some labor officials worry that the Obama administration’s refusal to make an issue of the hold-up on Solis is a sign that the Obama team won’t act aggressively on Employee Free Choice.
Of course, as Jeff has pointed out before, the link between Solis and EFCA is tenuous at best. The EFCA would amend the NLRA, and the NLRA is administered by the National Labor Relations Board, not the Department of Labor.