Friday, February 27, 2009
The ABA reports that nearly half of the nation's large law firms offer job protections to transgender employees. Forty-five percent of the nation's top 200 law firms have policies that bar discrimination based on gender identity according to a report by the Human Rights Campaign. It found job protections for gay, lesbian and transgender employees have surged in recent years at both large private employers and large law firms.
In private business, 35% of the Fortune 500 have protections based on gender identity and 60% of the Fortune 100 have similar protections. In 2000 just three of the Fortune 500 businesses had such protections. The report's examination of policies at the nation's top 200 law firms found that 75% have policies barring discrimination based on sexual orientation, 75% offer domestic partner benefits and 4% have transgender-inclusive health benefits.
The ABA recently reported that if you can make it to trial, these days seem to be good for plaintiffs employment discrimination lawyers. In 2007, the median discrimination verdict rose approximately 70% from $147,00 in 2006 to $252,000. Employers won only 38% of discrimination cases in 2007, prevailing most often in race discrimination cases (43%) and lost most frequently in sex discrimination cases (30%). Employers in the manufacturing and industrial sectors had the biggest verdicts, followed by the government, transportation and service sectors.
As we noted last year, the Bush Administration had implemented a new rule permitting health-care workers to refuse to give treatment that violates the workers' personal, moral, or religious beliefs. Reports today indicate that the Obama Administration will soon begin the process of rescinding that protection. From the Washington Post:
The Office of Management and Budget announced this morning that it was reviewing a proposal to lift the controversial "conscience" regulation, the first step toward reversing the policy. Once the OMB has reviewed the proposal it will be published in Federal Register for a 30-day public comment period. "We are proposing rescinding the Bush rule," said an official with the Health and Human Services Department, which drafted the rule change.
The administration took the step because the regulation was so broadly written that it could provide protections to health-care workers who object not only to abortion but also to a wide range of health-care services, said the HHS official, who asked not to be named because the process had just begun.
"We've been concerned that the way the Bush rule is written it could make it harder for women to get the care they need. It is worded so vaguely that some have argued it could limit family planning counseling and even potentially blood transfusions and end-of-life care," the official said.
After the 30-day comment period, the regulation could be lifted entirely or it could be modified to make the protections more specific, the official said.
"We support a tightly written conscience clause. We recognize and understand that some providers have objections about abortion, and we want to make sure that current law protects them," the official said. "We want to be thoughtful about this."
Obviously, the devil will be in the details; it'll be interesting to see how limited the wording of the rule becomes.
On the same day that President Obama's proposed budget reignited the debate over the future of American health care, Edward Zelinsky (Cardozo) posted on SSRN his article Muddling Through: The Continuing Importance of Employer-Provided Health Care (forthcoming Yale J. Health Policy, Law, & Ethics). Here's the abstract of this timely article:
For the foreseeable future, employer-provided health care will remain the central means of financing medical coverage for working Americans and their families. There are, moreover, strong normative grounds for perpetuating the existing system of employer-sponsored medical coverage. Among these grounds, an employer-based system is our best means for constraining medical costs, given the inability of the political process to control health care outlays.
This article examines the recent trend of transferring employer retiree health care liabilities to VEBAs. After providing a brief history of retiree health benefits and an overview of the basic tax rules governing VEBAs, the article explains the difference between traditional VEBAs and the new retiree health VEBAs. The article then discusses the advantages and limitations of the new VEBAs. The article concludes that the new VEBAs may be an appropriate vehicle for pre-funding retiree health benefits for some employers, particularly financially distressed employers with significant retiree health liabilities and large union forces, but they are not a panacea for the country's health care financing woes.
As Moore points out, in theory, VEBAs should insulate retired and retiring employees from firm performance: if the firm tanks, money should be left in the VEBA to fund current and future retiree health care. The rub is described in Section 7.06: firms often fund VEBAs with company stock, which by definition is worthless if the firm tanks.
In fact, I'd go even a step farther, and suggest (based only on anecdotal, and no empirical, evidence) that a large proportion of firms (automakers, auto parts suppliers) that have been setting up VEBAs in the last year or so are firms that expect to tank, and that are using VEBAs as a vehicle to dump their underfunded retiree health care liabilitesknowing full well that the deposited "assets" are or soon will be worthless. Their balance sheets look a little better now, and PBGC will be paying the piper later.
Thursday, February 26, 2009
Ross Runkel from LawMemo, Inc. writes to let us know that the AT&T has filed a supplemental brief in response to the employees' supplemental brief (we noted the employees' brief here, and Ross' entry has links to both briefs and a summary of their points here), which had argued that the issue was resolved by the Ledbetter Fair Pay Act of 2009. The Hulteen case involves whether employees who took pregnancy leave before the Pregnancy Discrimination Act made clear that discrimination on the basis of pregnancy was discrimination on the basis of sex should be given the same service credit towards retirement benefits as those who took other temporary disability leave.
The employer argues that treating pregnancy leave differently at the time it was taken was legal, that the Ledbetter Act only applies to conduct that was illegal when it was taken and that the Ledbetter Act does not define as a substantive matter what an unlawful employment practice is. In making this argument, the employer distinguishes between current discrimination, through a facially discriminatory policy, and giving effect to conduct that was itself lawful when performed but would not be lawful now. While that might create a disparate impact, this case was not brought as a disparate impact case. Additionally, the employer distinguishes between discrimination in compensation and maintenance of a neutral seniority system. A facially neutral seniority system will only violate Title VII if it was adopted with discriminatory purpose. Finally, the employer argues that if the Ledbetter Act is seen to apply at all, the Court should decide the issues briefed without reference to the Act (i.e. whether the actions taken by AT&T were lawful when taken), but then remand the matter to the 9th Circuit for further proceedings on whether the Ledbetter Act changed that retroactively.
Wednesday, February 25, 2009
The city of Paris, Texas has been in the news lately as a result of recent racial tensions, fostered in part by the killing last September of an African American man by two white men who were his friends. It is not clear that the killing was racially motivated, although it may have been, but civil rights advocates have suggested that the town police did a poor investigation into the killing and the state was reluctant to prosecute because of the victim's race. A year earlier a young African American woman was sentenced to juvenile prison after she shoved a hall monitor into a wall while three months earlier, the same judge had sentenced a white girl the same age to probation for burning down her family’s house. The racial tension in the town was serious enough that the Department of Justice sent a team of community mediators to get residents to begin talking about the problem and to propose possible resolutions.
This tension has manifested into alleged employment discrimination, as well. According to an article in today's Chicago Tribune,
Now fresh racial tensions are erupting inside one of the town's biggest employers, the Turner Industries pipe fabrication plant, where black employees charge that hangman's nooses, Confederate flags and racist graffiti have been appearing throughout the workplace for months.
One worker, Karl Mitchell, took pictures of the offensive symbols in early February and filed a formal complaint with the federal Equal Employment Opportunity Commission last week. Other African-American employees assert that they've repeatedly complained about the racist symbols to their bosses, only to be ignored or told to keep quiet.
Officers at the plant's headquarters deny that they knew of any discrimination at the plant and have begun an investigation.
I've said it before, and I'll say it again, it seems that at least every couple of years a big story like this breaks, and we see behavior straight out of the 1970s. Mike Selmi has even written about it in these terms, as Seventies-style discrimination. For all of the scholarly work on the subtlety of modern discrimination or the institutional forms it takes, these examples suggest to me that the subtlety may often mask the kind of overt discrimination that is the core behavior Title VII was designed to eradicate.
I've just started hearing of major law firms rescinding or "indefinitely deferring" employment offers to this year's 3Ls. At our school, this is disproportionately hurting our top students -- students who clerked for major firms last summer, received what they thought was a job offer, did not participate last fall or early this spring in the job-search process under the rational assumption that they already had a job, and only now are being informed that that job does not exist. Some of these students are being put on indefinite "hold" -- they might have a job in January, they might not. Others are not being given a stipend, a "severance" package, or anything else to help tide them over -- they're just being told "see ya later."
I'm soliciting comments on:
- What firms are withdrawing offers to their 3Ls? There's a reputational cost to doing this, which I am more than happy to facilitate. I have heard about several large firms, but have only confirmed Thompson Hine and Luce Forward.
- Do the 3Ls have a promissory estoppel claim? Share your thoughts.
There's less to this one than meets the eye. As we've been following for a while, the NLRB has been challenging the FLRA's March 2007 decision to allow a merged unit of the NLRBU union that includes Board- and General Counsel-side employees (there's a related case with the much smaller NLRBPA union). The NLRB's General Counsel decided to continue challenging that decision by refusing to bargain (the equivalent of a technical 8(a)(5) under the NLRA) with the union, thereby prompting an unfair labor practice charge. The FLRA, as expected, has found that the NLRB's refusal to bargain was a ULP--based entirely on its rationale in its 2007 decision.
This recent decision (and the GC's refusal to bargain) was simply a means to achieve court review of the 2007 decision, which General Counsel says that he will now seek. However, the smart money says that no court will ever decide this case, as there's a good chance that a new Obama GC will decide to drop this case before the appellate court gets a chance to decide the case. (Although, I've been reminded that Meisburg's term goes until August 2010, which makes things less clear; however, given the D.C. Circuit's delays, my guess may be right anyway.)
Hat Tip: Dennis Walsh
- Christine N. Cimini (left), Ask, Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation, 61 Stanford L. Rev. 355 (2008).
- Joseph O. Oluwole (center), On the Road to Garcetti: 'Unpick' Erring Pickering and Its Progeny, 36 Capital U. L. Rev. 967 (2008).
- Rachel K. Alexander (right), Federal Tails and State Puppy Dogs: Preempting Parallel State Wage Claims to Preserve the Integrity of Federal Group Wage Actions, 58 Am. U. L. Rev. 515 (2009).
Tuesday, February 24, 2009
Apparently the desire of having a Secretary of Labor walk down the aisle before Obama's speech tonight was the trick. Today, the Senate confirmed Hilda Solis as labor secretary by a vote of 80-17. The margin really shows that the opposition had been somewhat deep, but not particularly broad. Good news for the Department of Labor today as they've now got their number 1 and number 2 officials in place.
As predicted by Paul Secunda (including the vote), the state has won the Ysura case, which addressed Idaho's ban on dues checkoffs for political spending. According to the Court's syllabus (care of Cornell's Legal Information Institute):
Idaho’s Right to Work Act permits public employees to authorize payroll deductions for general union dues, but prohibits such deductions for union political activities. Respondents—a group of Idaho public employee unions—sued, alleging that the ban on payroll deductions for political activities violated the First and Fourteenth Amendments. The District Court upheld the ban at the state level, but struck it down as it applies to local governments. In affirming, the Ninth Circuit stated that, while Idaho has the ultimate control over local governmental units, it did not actually operate or control their payroll deduction systems. The court applied strict scrutiny to hold that the statute was unconstitutional as applied at the local level.
Held: Idaho’s ban on political payroll deductions, as applied to local governmental units, does not infringe the unions’ First Amendment rights.
(a) Content-based restrictions on speech are “presumptively invalid” and subject to strict scrutiny. Davenport v. Washington Ed. Assn. The First Amendment does not, however, impose an obligation on government to subsidize speech. See Regan v. Taxation With Representation of Wash. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Idaho’s public employee unions are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor. Idaho’s decision to limit public employee payroll deductions as it has does not infringe the unions’ First Amendment rights. The State accordingly need only demonstrate a rational basis to justify the ban. Idaho’s justification is the interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. See, e.g., Civil Service Comm’n v. Letter Carriers. And the State’s response to the problem is limited to its source—political payroll deductions. Cf. Davenport, supra. The ban plainly serves the State’s interest in separating public employment from political activities.
(b) The ban at issue is valid at the local level. The same deferential review applies whether the ban is directed at state or local governmental entities. Political subdivisions have never been considered sovereign entities but are instead “subordinate governmental instrumentalities.” Reynolds v. Sims. The State’s legislative action is subject to First Amendment scrutiny whether it is applicable at the state level, the local level, both, or some subpart of either, but no case suggests that a different analysis applies depending on the level of government affected. The ban furthers Idaho’s interest in separating the operation of government from partisan politics, and that interest extends to all public employers at whatever level of government.
The vote was basically 6-3, with the conservative justices fully in the majority, Ginsburg concurring in part, Breyer concurring in part and dissenting in part, and Stevens and Souter dissenting.
Hat Tip: Paul Secunda
Recall that back in 2007 and 2008, we reported that Samuel Kent, federal judge in Galveston and author of several well-known opinions excoriating lawyers, had been accused of sexual harassment and indicted for sex crimes: see posts of 11/20/07, 11/29/07, and 9/5/08. Today's Philadelphia Enquirer, in an AP article authored by Juan Lozano, reports that Kent has pled guilty to a lesser charge of obstruction of justice, and immediately resigned to avoid impeachment. Under the plea agreement, prosecutors will seek no more than three years imprisonment when Kent is sentenced on May 11. The plea comes as jurors were about to be selected in Kent's criminal trial.
No one's above the law.
Photo by Pat Sullivan, also of A.P. Hat tip: John Beckerman
Harris was recently the Obama Transition Project’s Agency Working Group Leader for the labor, education, and transportation agencies. In addition to being a Professor and the Director of Labor & Employment Law Programs at New York Law School, he is also a Senior Fellow of the Life Without Limits Project of the United Cerebral Palsy Association and a member of the National Advisory Commission on Workplace Flexibility. He served as the Chair of Obama for America’s Labor, Employment, and Workplace Policy Committee and a Co-Chair of its Disability Policy Committee. During the Clinton Administration, he served as Counselor to the Secretary of Labor and Acting Assistant Secretary of Labor for Policy, among other policy-advising positions. Before joining the administration, he was a law clerk to Judge William Canby of the U.S. Court of Appeals for the 9th Circuit and Judge Gene Carter of the U.S. District Court for the District of Maine. He graduated cum laude from New York University School of Law where he was Editor-in-Chief of the Review of Law & Social Change. He received his Bachelor’s degree from Cornell University’s School of Industrial & Labor Relations.
Coincidentally, the same press release announcing Harris's nomination also announces the nomination of Michael Selmi's wife, Kathleen A. Merrigan, to be Deputy Secretary of the Department of Agriculture.
Hat tips: Michael Selmi, Paul Secunda.
Congratulations to Peggy Smith, Ann Hodges, Susan Stabile, & Rafael Gely on the publication of their new book Principles of Employment Law (West Concise Hornbook Series, 2009). Here's the publisher's description:
This book provides a comprehensive overview of employment law and is a useful supplement to any employment law casebook. The book is divided into six chapters. Chapter 1 examines who is an employee and who is an employer. Chapter 2 analyzes the employment-at-will doctrine and job security claims. Chapter 3 focuses on privacy, autonomy and dignity. Chapter 4 analyzes claims that employers may have against employees. Chapter 5 discusses employment terms and benefits that are directly mandated by law, like minimum wage, or strongly encouraged or regulated by law, such as pensions. Finally, Chapter 6 examines workplace health and safety.
Hat tip: Paul Secunda.
Monday, February 23, 2009
Don Wollett (emeritus McGeorge) has just published his book Getting on Base: Unionism in Baseball. Here's the author's description:
After almost half century as a labor lawyer and arbitrator, I firmly believe that preserving the game, as we want it to be, will require a real union to “step up to the plate” and challenge both the MLBPA and major league owners. The present system is a perversion of collective bargaining.
Wollett's thesis is that a union should step up and organize minor league baseball players.
The EEOC has announced a public meeting on the subject of genetic discrimination at 10 a.m. EST Wednesday, Feb. 25, at the agency's new headquarters, 131 M Street, N.E., Washington, D.C. At the meeting, the Commission is scheduled to present its Notice of Proposed Rule Making implementing Title II (employment provisions) of the Genetic Information Non-Discrimination Act of 2008 (GINA). Title II of GINA requires the EEOC to issue implementing regulations by May of this year.
The Commission is scheduled to hear from the following invited panelists about the new law and the impact of genetic discrimination in the workplace:
- Susannah A. Baruch, Law and Policy Director, Genetics and Public Policy Center
- Karen S. Elliott, attorney with Gregory Kaplan, PLC and member, Society for Human Resource Management
- Jeremy Gruber, President and Executive Director, Council for Responsible Genetics
- Andrew J. Imparato, President and Chief Executive Officer, American Association of People with Disabilities
- Rae T. Vann, General Counsel, Equal Employment Advisory Council
The Labor Lawyer
Volume 24, Number 2, Fall 2008
- Charles A. Shanor, Employment Cases From The 2007-2008 Supreme Court Term, p. 147.
- Mary Theresa Metzler, We Never Talk Anymore: Evaluating Confidentiality Rules and No-Fraternization Policies--Exactly Who Are The Carthusian Monks?, Cintas Corp. v. NLRB and Guardsmark, LLC V. NLRB, p. 175.
- Wendi L. Lazar, Employment Agreements and Cross Border Employment--Confidentiality, Trade Secret, and Other Restrictive Covenants in a Global Economy, p. 195.
- David A. Lowe, Enforcing the Employment Rights of American Workers Abroad, p. 213.
- Wendy Castor Hess & Jonathan A. Grode, Representing Corporate Clients: A New Union Between Labor, Immigration, and Criminal Counsel, p. 223.
- Alan M. Goldstein & Shoshanah D. Epstein, Personality Testing in Employment: Useful Business Tool or Civil Rights Violation?, p. 243.
Hofstra Labor & Employment Law Journal will present The Grand Irony of ERISA?: Intersectionality of ERISA Preemption and Remedial Issues on Friday, March 13, 2009. Here's the all-star lineup:
9 a.m. Preemption
This panel will explore the comprehensive and reticulated nature of remedies under ERISA and how this has led to a convoluted systems of awarding relief under the statute.
- James A. Wooten, Professor of Law Buffalo Law School
- Debra Davis, Tax Counsel Union Pacific Railroad
- Phyllis Borzi, Research Professor of George Washington School of Public Health
10:30 a.m. Remedies
This panel tackles the many issues surrounding ERISA preemption, including state health care reform initiatives, ERISA subrogation, and the availability of common law remedies related to employee benefit plans.
- Peter K. Stris, Professor of Law at Whittier Law School
- Eric D. Chason, Professor of Law at William & Mary Law School
- Donald Bogan, Professor of Law at The University of Oklahoma College of Law
12 p.m. Lunch and Keynote Speaker:
- Edward Zelinsky, Morris and Annie Trachman Professor of Law, Benjamin N. Cardozo School of Law, Three Decades of ERISA: The Tyranny of Good Intentions and Unintended Consequences.
1 p.m. Intersectionality
The third panel considers ERISA's preemption and remedial provisions together and considers the problem of intersectionality: ERISA plaintiffs are preempted out of adequate state remedies, only to be placed into a federal ERISA remedial scheme which has proven largely inadequate.
- Paul M. Secunda, Professor of Law at Marquette University Law School
- Nell Hennessy, President & CEO of Fiduciary Counselors Inc.
- Andrew L. Oringer, Partner at White & Case, LLP
2:30 p.m. Going Forward
This final panel will consider whether the current system of remedies and preemption under ERISA should be left alone or should be amended to provide for more effective remedies that will protect the employee benefits of participants and beneficiaries.
- Elizabeth Pendo, Professor Law at St. Louis University School of Law
- Thomas P. Gies, Partner at Crowell & Moring, LLP
- Jonathan B. Forman, Alfred P. Murrah Professor of Law at The University of Oklahoma College of Law
A settlement on health care contributions between the UAW and the Big Three automakers appears to have developed. The UAW has just reached an agreement with Ford--not coincidentally, the automaker in the least bad shape--on contributions to the VEBA health plan. The major change is that Ford is now allowed to use stock for up to 50% of its contributions if it wants. According to the parties, via the New York Times:
“The modifications will protect jobs for U.A.W. members by ensuring the long-term viability of the company,” the union’s president, Ron Gettelfinger, said in a statement. Union leaders plan to vote on the proposal early this week, Mr. Gettelfinger said, before presenting the deal to U.A.W. members at Ford for ratification. The changes would also require court approval. . . .
“We will consider each payment when it is due and use our discretion in determining whether cash or stock makes sense at the time, balancing our liquidity needs and preserving shareholder value,” Joseph R. Hinrichs, Ford’s group vice president for global manufacturing and labor affairs, said in a statement. “The agreements, if finalized, will allow Ford to become competitive with foreign automakers’ U.S. manufacturing operations, and are critical to our efforts to operate through the current deep economic downturn without accessing government loans and continue to fully invest in our One Ford product plan.”
Expect to see a similar agreement worked out with GM and Chrysler in the near future. It looks like it'll take a couple of weeks at a minimum for the agreement to be fully approved, after which we should expect to see what other changes the UAW and Ford made to their 2007 CBA (they've been refusing to release any details pending approval of all negotiated issues).