February 14, 2009
SSRN Top-10 List of Recent Employment & Labor Downloads
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (119).
- Shawn Allen Cole (left) & Gauri Kartini Shastry (right), If You are so Smart, Why Aren't You Rich? The Effects of Education, Financial Literacy and Cognitive Ability on Financial Market Participation (116).
- Benjamin Alarie, Assessing Tax-Free Savings Accounts: Promises and Pressures (106).
- Joseph Gerakos, Christopher D. Ittner, & Frank Moers, Compensation Objectives and the Organization-Wide Use of Non-Cash Pay (100).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (96).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (82).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (82).
- Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (79).
- Nicholas Barr & Peter A. Diamond, Reforming Pensions (75).
- Steven L. Schwarcz, Conflicts and Financial Collapse: The Problem of Secondary-Management Agency Costs (67).
February 13, 2009
Does Ledbetter Act Resolve AT&T v. Hulteen?
You might remember AT&T v. Hulteen (see here and here), the case about whether retirees should be given service credit for maternity leave they took (and did not get service credit for) before Title VII was amended by the Pregnancy Discrimination Act. The Supreme Court heard oral argument on December 10. Well, Harper Jean Tobin reports at ACS Blog that the employees have filed a supplemental brief with the Court, arguing that the Ledbetter Fair Pay Act of 2009 resolves the issue in their favor.
The Act provides that
an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Here, the employees can say that the amendment makes clear that the unlawful employment practice took place when the benefit was ultimately calculated--at retirement, and it was at that point AT&T decided not to give full credit for pregnancy leave. Tobin also notes that the Act is expressly retroactive, reaching back to all cases pending when Ledbetter was decided, or filed since; several district courts have already relied on the Act to revive cases that were about to be dismissed. You might recall that Charlie Sullivan agrees with that interpretation and has explained why it's constitutional. We'll see if the Supreme Court agrees, too.
Hat tip: Paul Secunda
February 12, 2009
Elgin Baylor Sues for Employment Discrimination
First the Knicks and now this--I'm going to have to start assigning NBA games for my employment discrimination course. Basketball great Elgin Baylor has filed suit against the Los Angeles Clippers and the NBA following his dismissal as Clippers general manager. According to ESPN:
The lawsuit maintains that Baylor was "discriminated against and unceremoniously released from his position with the team on account of his age and his race" and that he was "grossly underpaid during his tenure with the Clippers, never earning more than $350,000 per year, when compared with the compensation scheme for general managers employed by every other team in the NBA." . . . .
Clippers attorney Robert H. Platt said in a statement Wednesday night that he had not seen the lawsuit and couldn't comment on Baylor's specific allegations. "However, I can categorically state that the Clippers always treated Elgin fairly throughout his long tenure with the team. Prior to his decision to leave the team last October, Elgin never raised any claims of unfair treatment," Platt said. "It's hard to believe that he would now make these ridiculous claims after the organization stood by him during 22 years and only three playoff appearances. It would be hard to find any sports team that has demonstrated greater loyalty to its general manager."
It's unclear what the details of Baylor's allegations are, but we'll let you know when we do.
Hat Tip: Paul Secunda
Labor & Worklife Program
The Labor and Worklife Program (LWP) at Harvard Law School provides opportunities for scholars and policy experts “to analyze critical labor issues in the law, economy, and society.” The Program also offers educational opportunities for labor leaders via the Harvard Trade Union Program, Harvard’s oldest executive training program. With a focus on improving the quality of work life, LWP projects and programs seek understanding and provide analysis of labor markets, labor law, and the role of unions, business, and government in the context of work. As expected, the website offers ample discussion of the LWP’s projects and special programs, including the Trade Union Program, the Pensions Project, and the Wertheim Fellowship. Publications are made available and are organized by author. Specific topics include pension fund investment, unions and Latinos, health care, and the role of universities in labor relations. A particularly interesting component of the site is the Salary Checker. The Checker allows users to specify a job category, job, and state. The Checker then provides multiple, relevant wage statistics as provided by the Bureau of Labor Statistics. Also, users have the option of taking a salary survey, which collects data about occupation, location, and salary.
Global Issues in Employee Benefits Law
Congratulations to Paul Secunda (Marquette), Sam Estreicher (NYU), and Rosalind Connor (Jones Day) on the publication of their book Global Issues in Employee Benefits Law (West 2009). Here's the publisher's description:
This book focuses on developing issues in international, comparative, and transnational employee benefits law. It is divided into four areas that practitioners will need to become familiar with in order to thrive in our increasingly global economy and legal practice: sovereignty and jurisdictional issues involving the Employee Retirement Income Security Act (ERISA); public and private pension issues with emphasis on the trend toward privatization and defined contribution plans; public and private health care issues surrounding national health care systems and private health insurance schemes; and the intersection between employment discrimination laws throughout the world and global employee benefit law issues.
Workplace Prof Blog Ranks Top-20 in Employee Benefits
Thanks to the Delaware Employment Law Blog for listing us in their top-20 list of Employee Benefit Blogs. Hat tip: Paul Secunda.
Senate HELP Committee Approves Solis
The committee delay on Hilda Solis' nomination as Secretary of Labor is now over after she provided an affidavit showing that her association with American Rights at Work presented no conflict of interest with her role in the House. According to The Hill, the committee approved her on voice vote, with two members voting no. Her nomination now moves to the full Senate. No sign yet whether any senators will place a hold on her, although Politico is reporting that some critics have said that her husband's tax issues will not be used against her.
Recently Published Scholarship
Comparative Labor Law & Policy Journal
Volume 30, Winter 2009, Number 2
Labor Law Systems:
- Ioannis D. Koukiadis, "General Characteristics of the Greek Labor Law," p. 145.
- Guy Mundlak, "The Israeli System of Labor Law: Sources and Form," p. 159.
- Melda Sur, "General Framework and Historical Development of Labor Law in Turkey," p. 183.
- Viktoria S. Douka, Prohibition of Discrimination: Law and Law Cases, p. 199.
- Guy Mundlak, The Law of Equal Opportunities in Employment: Between Equality and Polarization, p. 213.
- Nurhan Süral, Anti-Discrimination Rules and Policies in Turkey, p. 245.
Wrongful Dismissal and Managerial Prerogative
- Kostas D. Papadimitriou, The Managerial Prerogative and the Right and Duty to Collective Bargaining in Greece, p. 273.
- Guy Davidov, Unbound: Some Comments on Israel's Judicially Developed Labor Law, p. 283.
- Melda Sur, The Fundaments and Limits of Managerial Prerogative in Turkish Labor Law, p. 313.
- Nurhan Süral, Economic Implications of Employment Protection Legislation in Turkey: Has Turkey founds its Juste Milieu?, p. 335.
Labor Law Developments In China
- Hilary K. Josephs, Measuring Progress Under China's Labor Law: Goals, Processes, Outcomes, p. 373.
- Wolfgang Däubler and Qian Wang, The New Chinese Employment Law, p. 395.
- Yun Zhao, China's New Labor Dispute Resolution Law: A Catalyst for the Establishment of a Harmonious Labor Relationship?, p. 409.
- Feng Xu, The Emergence of Temporary Staffing Agencies in China, p. 431.
February 11, 2009
Connecticut comes closer to equal protection for transgendered
In Connecticut, a proposal to protect those who are transgendered was introduced during a legislative session. This proposal will prevent discrimination against people who in any way blur gender lines from being discriminated against in the workplace or while seeking housing or obtaining credit. Transgender includes a wide variety or people such as transsexuals, who alter their gender through surgery or other means; cross-dressers; and intersex individuals who are born with ambiguous genitalia.
While gays and lesbians have been making noticeable strides toward equality, transgendered individuals have not been so fortunate. The shifting effect seems to lie in our need to understand how it feels to live transgendered or how it feels to be transgendered before anti-discrimination protection may be extended to them. Many states, including California, Illinois, Maine, Massachusetts, Oregon and Rhode Island already have laws in place ensuring similar protection as the proposed Connecticut law. Some regard Connecticut as a forerunner in prohibiting discrimination against individuals based on gender and sexual orientation.
For those living in or near Connecticut, interested in this proposal and would like to participate in the political process, Love Makes a Family is hosting town hall forums to talk with members about what is next, and to build a strategy to pass this legislation.
Upcoming forums will be in:
New London - February 12th, Norwalk - February 17th, Mansfield - February 19th and Litchfield - February 25th.
Limbo for Arrested Immigrants
Among the problems faced by workers caught up in immigration raids is one that I hadn't thought about before. Apparently, some portion of workers are allowed to go free in the U.S. while their cases are pending. The catch, however, is that they are not allowed to work during that time. This is an increasingly stiff burden, as the backlog on these cases is significant. From the AP:
Ernesto Garcia counted himself lucky after he was swept up in a 2006 immigration raid on a northern Colorado meatpacking plant: Unlike hundreds of co-workers here illegally, he was allowed to stay in the U.S. Two years later, he's jobless and barely getting by while he waits for his immigration case to be resolved. The 34-year-old Guatemalan is among hundreds of people across the country stuck in limbo while their cases inch their way through immigration courts. A favorable ruling would get them a green card. But in the meantime — and the meantime can be years — they're barred from working. . . .
Immigration cases do not have the same "" requirements as criminal cases. Denver's four immigration judges each have up to 2,000 cases at a time, so delays are inevitable, said Christina Fiflis, an attorney who has represented some of the workers detained in the federal raid on the Swift & Co. plant in Greeley on Dec. 12, 2006. Some can apply for work permits, but often there's an "extraordinary delay" in getting them, she said. Unable to work, many rely on friends, family and charity. . . .
Carl Rusnok, a spokesman for U.S. Immigration and Customs Enforcement, said the agency doesn't know how many people arrested in raids are still in the United States waiting for immigration court hearings. "Although this is their right, there are limits on what they can and cannot do in the meantime. There is no provision in law to give work authorization to those who have been found working illegally in the United States," Rusnok said.
Elaine Komis, spokeswoman for the's — the immigration court system — said it's common for immigration cases to take years when people appeal a decision by the immigration judge.
Yet another example of why we need comprehensive immigration reform.
Hat Tip: Dennis Walsh
NPR has an update this morning on Solis's nomination for Secretary of Labor. Though her husband's tax issues aren't helping, Republicans are still hung up about her support of EFCA. Why someone in the national press doesn't mention that such "labor" issues are handled by a different federal agency is beyond me. Should the Department of Labor be renamed the Department of Employment? Or would that too loudly signal the increasing trend toward union irrelevance in the private-sector economy?
Recently Published Scholarship
- Ani B. Satz, Disability, Vulnerability, and the Limits of Antidiscrimination, 83 Wash. L. Rev. 513 (2008).
Parnass on State Constitutional Guarantees of Employment Equality
Jeffrey Parness (N. Ill.) has just posted on SSRN his article (forthcoming Charleston L. Rev.) Greater Employment Equalities in the New South through New Constitutional Guarantees. Here's the abstract:
Most American state constitutions contain equal protection clauses. The words in these clauses often follow the words in the equal protection clause of the federal constitution. Not surprisingly perhaps, many state courts read their own clauses as providing no greater equalities than are afforded federally, following "in lockstep". But some American state constitutions have special equality provisions having no federal counterparts. Such clauses not only facilitate, but seemingly require, greater independent state constitutionalism. For example, in Illinois there are three special equality provisions beyond the general equal protection clause. They deal with employment, housing, local government and school districts. Of course, special provisions can extend, but never diminish, federal constitutional, statutory and regulatory equalities.
In Illinois and elsewhere in the United States, constitutional equalities are promoted by provisions guaranteeing the equal protection of the laws and insuring freedom from discrimination. These two types of provisions typically are read as seeking comparable forms of equality and anticipating similar types of remedies. State Human Rights Commissions and their equivalents have been broadly delegated powers in many states regarding both equal protection and nondiscrimination. Nevertheless, there are sometimes reasons to treat differently equality and nondiscrimination provisions. Equality duties are often limited to governmental acts, as in the federal constitution, while nondiscrimination responsibilities are extended at times to private acts. As well, even where laws treat people and entities equally, discrimination may continue or arise. Antidiscrimination provisions can be read to impose upon government some affirmative duties to end discrimination not caused by government.
This paper was first presented on January 16, 2009 at a symposium sponsored by the Charleston Law School and the Riley Institute at Furman that was entitled, "State Constitutional Reform in the New South." The paper explores the extent to which American states in the New South should promote greater constitutional equalities and nondiscrimination than are afforded federally. It begins by examining the benefits of special equality and nondiscrimination guarantees. It then examines American state experiences inside and outside the New South. Finally, it explores arenas where new explicit guarantees seem warranted, finding one special Illinois equality provision particularly inviting.
February 10, 2009
Milwaukee's Paid Sick Leave Ordinance Enjoined
Before a packed courtroom of ordinance supporters and opponents, with many spilling into the hall where a monitor was set up so they could follow the proceedings, Judge Thomas R. Cooper granted the temporary injunction sought by the Metropolitan Milwaukee Association of Commerce.
The business organization called the ordinance a job killer for the city and has challenged the legality of the measure, which was passed with 69% of the vote in the Nov. 4 election.
Supporters argue that workers should not be forced to choose between being sick or caring for a sick child and a paycheck.
Milwaukee is only the third city in the country to pass such an ordinance. San Francisco and Washington, D.C., are the others.
Cooper set a hearing on a permanent injunction for May 11. He said he has not made up his mind how he will rule.
"But there's a dead certainty that the case will go to the Court of Appeals and the Supreme Court," he said of the likely appeals.
. . .
[Judge Cooper] called the decision to issue a temporary injunction necessary and not difficult.
"This call is such a big deal to everybody that we better do it right from the start," he said.
For the city and employers, implementing paid sick days is a major issue, he said. And if the ordinance is enacted and then overturned, those in low-paying jobs who can least afford it could be faced with paying back the benefit they had received, he said.
The proceeding also was unusual because the city, a defendant in the case, did not object to the request for a temporary injunction.
Instead, the case against the injunction was argued by attorneys for 9to5, National Association of Working Women, which asked to join the city as a defendant.
The City said that it couldn't defend the ordinance because the ordinance will be enforced by a commission that is still being created. Critics suggested that the lack of defense by the City was because the mayor opposed the ordinance.
Big Salaried Employee Cuts at GM
GM has just announced major layoffs and pay reductions for its salaried workforce. Nothing surprising there, but the level of cuts is a good illustration of what's happening around the country. Among the moves, some of which were previously announced:
- layoffs or buyouts of 10,000 salaried workers (14% of total salaried workers)
- "temporary" wage reductions of about 10 percent for executives and 3-7 percent for other workers
- CEO accepting only $1 a year in salary until government bailout paid back
- said that, overall, needs to eliminate 31,500 hourly and salaried workers
Whether these moves will work remains to be seen of course.
LLG/U.C.-Hastings Conference on the Proposed Restatement of Employment Law: Participants and Reports
Comments to my previous post, which I updated last night, recommended that I make available the participants in the Labor Law Group / U.C. Hastings Conference on the Proposed Restatement of Employment Law as well as the reports issues at that conference. The reports are still in draft form, but here are the participants:
- Ken Dau-Schmidt (Indiana-Bloomington): How Did We Get Here? What Are We Trying to Do?
- Chapter 1—The Definition of Employee. Comments by the Working Committee on Chapter 1: Dennis Nolan (South Carolina), Joseph Slater (Toledo), Theodore St. Antoine (Michigan), Alvin Goldman (Kentucky); response by Alan Hyde (Rutgers - Newark).
- Chapter 2—Employment Contracts Termination. Comments by the Working Committee on Chapter 2: Matt Finkin (Illinois), Lea VanderVelde (Iowa), William R. Corbett (LSU), Steve Befort (Minnesota); response by Rachel Arnow-Richman (Denver).
- [A draft of Chapter 3 has not yet been released by ALI.]
- Chapter 4—The Tort of Wrongful Discipline in Violation of Public Policy. Comments by the Working Committee on Chapter 4: Joseph Grodin (California-Hastings), Paul Secunda (Marquette), Pauline Kim (Washington U. St Louis), Catherine Fisk (UC--Irvine), Roberto Corrada (Denver), Rick Bales (N. Kentucky); response by Marley Weiss (Maryland).
February 9, 2009
Sullivan on the Retroactivity of the Ledbetter Fair Pay Act
Is the statute retrospective, or prospective only? Charlie Sullivan (Seton Hall) provides an answer.
Breastfeeding, Socio-Economic Class, and Capitalism
Corporate Voices for Working Families, Abbott Nutrition, and Working Mother Media have posted a press release at BenefitsLink.com on a new toolkit for employers to support breastfeeding for working women. The toolkit is specifically designed to address the obstacles faced by hourly and lower-wage employees. It is designed to help front-line managers implement lactation programs and educate hourly and lower-wage employees on the benefits of breastfeeding and how they can balance that with working.
Hat tip: Debra Davis.
This is certainly a great development in a lot of ways if it can help empower lower wage workers to make the choices that work best for them, when often these women don't have many real choices. And it seems that the sponsors really intend to empower these women and to promote maternal and infant health. So why am I not vehemently shouting this program's praises? It's all because I listened to an NPR interview a couple of weeks ago with Jill Lepore, who was writing an article for the New Yorker about the current politics surrounding lactation and work.
Lepore mentioned the usual politics--the historical swings in the prevalence of breastfeeding in this country, the reasons for cultural shifts, and the class-bound nature of the issue. But she also talked about the current politics of the lactation movement. The movement has focused on the milk, rather than the mother and child, medicalizing the process, which allows for greater control of women (if we end up prosecuting women for drinking and then nursing, for example), and greater opportunities for profit by companies that make accessories to help with expressing, storing, and feeding the milk to infants.
And it may be women that lose out the most. The infants get cuddled and fed, while the women lose the opportunity to bond (at least during the time they're expressing milk), may just get more stress (at expressing milk in quasi-public places, for example, but even using a breast pump at all), and may not get the same hormonal benefits as they would (the stress might interfere with the oxytocin production that goes along with breastfeeding) if they were feeding the child from the breast. There also can be pain involved, and using a breast pump can be less efficient than nursing, so that the milk supply may decrease prematurely. If breast milk isn't substantially more nutritious than formula after it's been expressed and stored for a period of time, either refrigerated or frozen, the increased stress and decreased contact with the baby might not be worth it.
Now let me say first that profit does not appear to motivate any of the entities involved in producing this toolkit. None of them, it seems, profits from expression, storage, or feeding of breastmilk. But Lepore's article does make one think. Why isn't the movement pushing for longer paid maternity leave, for example, or onsite childcare to nurse in person? Perhaps those things are harder to sell to employers as benefitting them, perhaps they're a lot more expensive, and perhaps they run the risk of disempowering women in their choices about work. Or maybe we (I) just assume that.
Another Labor-Related Executive Order
As we noted, President Obama signed three labor-related executive orders a week or so ago and he's now signed another on Friday. This order basically reestablishes a Clinton-era order that Bush rescinded. It encourages federal agencies to require project labor agreements on major ($25 million or more) federal construction projects. These agreements essentially require all contractors on a project to sign on to an agreement negotiated with relevant unions (the equivalent of an 8(f) agreement under the NLRA). Apparently, OMB will be looking at whether to broaden the order ofver the next few months.
You can see the full text of the executive order here.
Hat Tip: Barry Hirsch & Jeff Wilson
February 8, 2009
Feuer on the Supreme Court's Approach to Death Benefits
As we mentioned earlier, Albert Feuer's article, “Will the Supreme Court Reinforce or Undermine Basic ERISA Principles When it Decides a Death Benefit Dispute,” will soon be published in the Charleston Law Review (Vol 3, p. 289, 2009). The article is now on SSRN. A brief summary of the article:
The article suggests an approach different than the one taken by the Supreme Court in Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 2009 U.S. LEXIS 869 (January 26, 2009) or the approaches advocated by the parties in that case. First, the article states that a domestic relations order determines entitlements to benefits from pension plans subject to the ERISA prohibition against benefits, if and only if the order is a qualified domestic relations order. Plan documents are irrelevant to the determination of whether a domestic relations order determines benefit entitlements. Second, the article states that the terms of ERISA pension plans and ERISA life insurance plans determine which of two disputing parties are entitled to plan benefits. The article also argues that it is inadvisable for ERISA plans to provide that the designation of a participant's spouse as the beneficiary be revoked upon the divorce of the participant because in such case the plan may be forced to pay the benefits twice if the domestic relations order is not a qualified domestic relations order. Further, such a provision may violate the ERISA prohibition on the alienation of benefits applicable to most pension plans.
This appears to be the go-to article on Kennedy, so it's well worth the read.