May 7, 2010
April Unemployment Numbers
Department of Labor released its April employment numbers and they
were generally better than expected. Approximately 290,000 jobs were
added--much more than we've seen in years and, after some upward
adjustments for previous months, this represents the fourth straight
month of job growth. The unemployment rate actually went up 0.2% to
9.9%, but this actually represented some perceived strength in the job
market as part of that increase was due to a large number of people who
had dropped out of the job market searching for jobs once again.
EBRI: Recession Hits Employment-Based Health Coverage
Paul Fronstin (Employee Benefit Research Institute) has just posted on SSRN the report The Impact of the Recession on Employment-Based Health Coverage (EBRI Issue Brief, No. 342, May 2010). Not surprisingly, the recession has significantly reduced employee access to employment-based health insurance, both because fewer Americans are employed and because employers are dropping coverage. Moreover, even for workers lucky enough to have coverage, benefits are down and costs are up. Here's the abstract:
This paper examines changes in health coverage among workers during the recession that started in December 2007. Data from the Survey of Income and Program Participation are used to examine health coverage prior to the recession, and as recently as July 2009. Monthly changes are examined for 2007 and May 2008-July 2009, with emphasis on changes that occurred between September 2007 and April 2009. Health coverage through the work place is by far the most common source of health insurance among the population under age 65. In 2008, 160.6 million individuals under age 65, or 61.1 percent of that population, were covered by employment-based health benefits. Fifteen percent were covered by Medicaid or the State Children’s Health Insurance Program (SCHIP), 6.3 percent purchased coverage directly from an insurer, and about 3 percent were covered by Medicare or Tricare/CHAMPVA. Nearly 17.5 percent were uninsured. Since the recession started in December 2007, the uninsured have grown. The unemployment rate was as low as 4.4 percent in May 2007, but by July 2009 it had reached 9.4 percent. The percentage of the nonelderly population with employment-based coverage was 61.3 percent in May 2007, and by July 2009 it was down to 58.2 percent. The uninsured rate was 12.3 percent in May 2007, and by July 2009 it was up to 16.4 percent. Between December 2007-May 2008, the percentage of workers with coverage in their own name (the policyholder) fell from 60.4 percent to 56.8 percent. The period between May 2008-July 2009 shows a continuing decline in the percentage of workers with employment-based coverage in their own name, falling to 55.9 percent. The benefits that are being offered have also changed. Deductibles, copayments for office visits, and prescription drug copayments have been increasing. In general, workers least likely to have employment-based coverage at the beginning of the recession were more likely than other workers to experience a decline in the percentage with such coverage one year later. Younger workers were more likely to lose coverage than older workers. Hispanic workers were more likely to lose coverage than whites or blacks. Part-time workers were more likely than full-time workers to have lost employment-based coverage. The percentage of workers with own name employment-based coverage declined the most among those employed by for-profit private-sector employers and those employed by the federal government. Workers with the lowest earnings were the least likely to have employment-based coverage in their own name and experienced the largest decline in coverage.rb
Wiedenbeck on ERISA: Principles of Employee Benefit Law
More information is available at the TaxProf Blog.
May 6, 2010
Recently Published Scholarship: Comparative Labor Law & Policy Journal
- Introduction to Objectionable Work, p. xi.
- Tadishi Hanami, Conscientious Objection in Japan, p. 441.
- Rolf Wank, Objectionable Work in Germany, p. 455.
- Amir Paz-Fuchs, Objectionable Work in Israel, p. 471.
- Esther Sanchez, Conscientious Objection in the Workplace: Some Reflections Based on Spanish Jurisprudence, p. 487.
- Matthew W. Finkin, An Employee's Right Not to Obey Orders in the United States, p. 497.
- Roger Cotterrell, Conscientious Objection to Assigned Work Tasks: A Comment on Relations of Law and Culture, p. 511.
- Brian Langille, Imagining Post 'Geneva Consensus' Labor Law for Post 'Washington Consensus' Development, p. 523.
- Anne Trebilcock, Putting the Record Straight About International Labor Standard Setting, p. 553.
- Jorge Luis Silva Mendez, Are Common Perceptions on Termination Cases in Mexico Supported by Empirical Data? p. 571.
- Renee-Claude Drouin, Promoting Fundamental Labor Rights Through International Framework Agreements: Practical Outcomes and Present Challenges, p. 591.
Managing your Online Identity
We've posted frequently about employer use of online information to make employment decisions (here most recently), and apropos of that, I recently ran across this primer on how to Establish and Maintain Your Online Identity on Lifehacker, another of those geeky tech-ish blogs I like to read instead of doing real work. Essentially, it's a guide on how to make yourself known, primarily. This may seem to be the opposite advice that our posts usually send, but bear with me a minute. People have to exercise good judgment about the content they post, most importantly and that is consistent with what we often caution, but the answer may not necessarily be to have no online presence at all. Having an online presence that a person can control may enhance that person's ability to exercise that good judgment, and also may enhance that person's ability to keep information they do not want to be easily found private.
Here's the logic. By going through the work to set up the steps that are recommended, one of which is for people to use their own names and link between various sites they control, people may get more in the habit of thinking about what they post as essentially public, not private. Additionally, the more established an online identity is with your real name, and the more links to a central site, the more likely that those controllable sites will be what predominates the results of an online search of your name given the way that search engines work.
And although this isn't covered, maybe a person who wants to stay more anonymous can be careful not to use a real name on anything, but instead a psuedonymous username (probably safest to use something that is clearly not a real person's name), that is not linked easily to their real name for things they want to be sure an employer could not find.
So why not simply avoid the whole thing and not ever sign up for any social media or other internet-type thing? I think there are a couple of problems with that, at least for some contexts. First, for at least some jobs, employers may expect people applying to have some kind of online presence, and not having one may be seen as unusual. Second, not signing up for anything doesn't necessarily mean that information about you, true or false, actually about you or not, cannot be discovered online. For example, I recently did a search of my name at one site that purports to aggregate information about people from public sources. It said that I lived with my parents, who were incorrectly identified as my actual father and my brother with the wrong age. That same source also listed my name in connection with my current address, but incorrectly identified my homeowner and familial status as well as the value of the home I live in. That doesn't even consider the people I share a name with that I might be confused with by someone searching for information about me.
Lots to keep in mind when you think about what employers are searching when they make employment decisions.
Kramer on Heterosexuality and Military Service
Zach Kramer (currently at Penn State, on his way to Arizona State) has posted on SSRN his forthcoming piece in the Northwestern University Law Review Colloquy: Heterosexuality and Military Service.
Here is the abstract:
The military’s “Don’t Ask, Don’t Tell” Policy (DADT) is based on a faulty understanding of the relationship between heterosexuality and military service. DADT is built around the idea that because gay sex disrupts unit cohesion, lesbians and gay men cannot be allowed to serve openly in the military. The policy rests on the idea that gay sex is more harmful to military effectiveness than other kinds of sexual conduct. Yet the military regulates a wide range of heterosexual sexual conduct—from blanket rules against sexual conduct altogether, to criminal laws targeting specific sexual acts and relationships, such as sodomy, adultery, fraternization, and a short-lived criminal law against pregnancy—and these regulations are all designed to protect unit cohesion. This Essay argues that DADT’s focus on homosexuality is misplaced. What the military thinks of as a problem with homosexuality is really a problem with sexual conduct in general.
Interesting and timely piece by Zach, especially given the possibility of imminent Congressional action on DADT. Check it out.
May 5, 2010
House HELP Subcommittee Hearing on ADEA Amendment to Fix Gross
The House Committee on Education and Labor's Subcommittee on Health, Employment, Labor, and Pensions held hearings today on H.R. 3721, Protecting Older Workers Against Discrimination Act. From the committee's web posting,
The legislation would restore civil rights protections for older workers stripped away by the U.S. Supreme Court’s 2009 decision, Gross v. FBL Financial. In Gross, the Supreme Court overturned well-established precedent – making it harder for older workers facing age discrimination to enforce their rights.
H.R. 3721 corrects the unnecessary lawmaking of the Supreme Court. H.R. 3721 overturns Gross and restores the law to what it was prior to the decision, by allowing older workers to prove age discrimination by showing that age was a motivating factor in the decisions made by their employer, but not necessarily the sole factor.
Protections against age discrimination are especially important to workers who may be facing layoffs in an uncertain economic climate. The court’s ruling specifically means that victims of age discrimination face a higher legal burden of proof than those alleging race, sex, national origin or religious discrimination.
Testifying were Gail Aldrich (AARP), Eric Dreiband (former GC of EEOC), Michael Foreman (Penn St.), and Jack Gross, the plaintiff in Gross v. FBL Financial Services. See here for links to the testimony, pictures, and the archived webcast.
DOL Releases Online Disability Law Advisor
The U.S. Department of Labor (DOL) today announced the availability of a new tool to help employers ensure their employment policies and practices do not discriminate against qualified individuals with disabilities.
The interactive, online Disability Nondiscrimination Law Advisor helps employers determine which federal disability nondiscrimination laws apply to their business or organization and their responsibilities under them. To do this, it asks users to answer a few relevant questions and then generates a customized list of federal disability nondiscrimination laws that likely apply, along with information about employers’ responsibilities under each of them.
The Disability Nondiscrimination Advisor is one of a series of elaws (Employment Laws Assistance for Workers and Small Businesses) Advisors developed by DOL to help employers and employees understand federal employment laws.
May 3, 2010
Graduate Students To Be Considered Employees Under the NLRA Again?
In what may be a precursor to the first Obama NLRB reversal of a Bush Board rule, the UAW recently presented NYU with a petition to have the school voluntarily recognize the union as the representative of over 1,000 research and teaching assistants. NYU has indicated that it will not recognize the union--not surprising given the school's 2004 victory before the NLRB in having grad students declared as students, rather than statutory employees. The UAW has promised to petition the NLRB for an election if NYU doesn't recognize the union--also not a surprise given the new Democratic majority on the NLRB.
I'd predict a reversal of the 2004 NYU case, but that's probably akin to shooting fish in a barrel. Of more interest is how the Board will approach the case. I always found the 2004 Board's refusal to use agency common- aw perplexing given the Supreme Court jurisprudence in this area, so a return to the previously established approach to determining employee status could have a more far-reaching effect than the organization of grad students (although it was never clear how serious the 2004 Board was about this point, aside from its use in the NYU case).
Walsh Appointed Chairman of MSPB Special Panel on Appeals
For the benefit of the MSPB fanatics who read this blog, the Senate Homeland Security and Governmental Affairs Committee last week approved Dennis Walsh's nomination to be Chairman of the Special Panel on Appeals by voice vote.
The Chairman of the Special Panel on Appeals is a part-time position created by the Civil Service Reform Act of 1978. In the event the EEOC and the MSPB issue conflicting decisions on "mixed" cases that involve both merit systems and anti-discrimination principles, the Chairman convenes a panel comprised of himself, a Member of the MSPB and a Member of the EEOC to resolve the conflict and decide the case.
The Chairman is appointed by the President and confirmed by the Senate, for a 6-year term.
Congrats to Dennis, who is also the Deputy General Counsel at the Federal Labor Relations Authority.
Recently Published Scholarship
- Deborah Thompson Eisenberg, Shattering the Equal Pay Act's Glass Ceiling, 63 SMU L. Rev. 17 (2010).
- Frank J. Menetrez, Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010).
- Sandra Sperino, Judicial Preemption of Punitive Damages, 78 U. Cin. L. Rev. 227 (2009).
- Sonia Goltz, Roger Reinsch, & Joel Tuoriniemi, University Women's Experiences in Bringing Second Generation Sex Discrimination Claims: Further Support for Adoption of a Structural Approach, 18 Tex. J. Women & L. 145 (2009).
- Gina M. Cook, When the Duty to Provide a Reasonable Accommodation Seems Unreasonable: Accommodating and Managing Employees with Episodic Impairments or Impairments in Remission Under the ADA Amendments Act of 2008, 32 N.C, Central L. Rev. 1 (2009).
- JoAnn M. Dodson, The Seventh Circuit Holds that Oral Employee Complaints Are Not Protected Activity Under FLSA, 63 SMU L. Rev. 237 (2010).
- Evan Sauer, The ADA Amendments Act of 2008: The Mitigating Measures Issue, No Longer a Catch-22, 36 Ohio N. U. L. Rev. 215 (2010).
Post-Ricci Black New Haven Firefighter Case Dismissed
The district court in Connecticut recently dismissed the Briscoe lawsuit that followed the landmark Ricci employment discrimination lawsuit. No opinion yet, but WTNH in New Haven has this story:
A federal judge has dismissed a lawsuit by a black firefighter against New Haven over a 2003 promotion exam that was the subject of a landmark U.S. Supreme Court ruling in June.Having not seen the court's reasoning, it would be premature to comment, but I would not be surprised to see if the decision does not give us some clue to how lower courts might interpret the controversial Ricci decision.
Firefighter Michael Briscoe alleged he was unfairly denied a chance for promotion to lieutenant because the city wrongly gave more weight to the test's written part than the oral section.
Judge Charles S. Haight Jr. dismissed Briscoe's lawsuit Wednesday, saying he would issue his reasons in a subsequent opinion.
I didn't see anything on the blog about it, but I might have missed it. I just thought that I would pass this along. I hope all is well!
Hat Tip: Allen Kamp and Joe Seiner
May 2, 2010
A McCormick 2-Fer
Marcia L. McCormick (St. Louis U.) has been busy. She has just posted two articles on SSRN. The first is Regulatory Adjudication. I hope the folks working on regs for the financial services industry read it and take good notes. Here's the abstract:
Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the crises of tomorrow, this article seeks to explore one piece of the regulatory solution: adjudication. Adjudication is used both to deter harmful behavior and to remedy harmful behavior engaged in. And it is used in a variety of contexts.
To explore how we might construct agencies with greater adjudicatory power, I will use the regulation of equal employment opportunity as a case study. This article explains the weaknesses of the current system to enforce the anti-discrimination laws and outlines a proposal for what an adjudicative agency designed to maximize the benefits from an agency perspective would look like. The paper goes on to analyze the limits article III may place on the structure of adjudicating agencies and ways those limits might be overcome.
Her second article, Back to Color Blindness: Recent Developments in Race Discrimination Law in the United States, is forthcoming in Revue des Affaires Europeennes. Here's the abstract:
The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent decision in Ricci v. DeStefano, which appears to fall into the formalist category, but actually may not. The decision may not have been color blind or formalist at all. The City’s explanation that it rejected the results of the promotional test because it feared a disparate impact suit was not race per se. Moreover, applicants who would have been promoted had the results been used included applicants from all backgrounds, and the pool of those who would get a second chance at promotion if the list were discarded also included members from all backgrounds. Thus, there was no formal separation on the basis of race. This and other doctrinal problems created by the decision are analyzed.
Dept of Labor Goes Off the Grid
This morning, when I tried to go to dol.gov, I got the message "Authentication Required: Enter name and password for www.dol.gov." Does anyone have any idea what this is all about?