May 22, 2010
Whistleblower Provisions of the Financial Services Industry Bill
Whistleblower Law Blog has a detailed description of the whistleblower provisions of the financial services industry bill. As the post states:
On May 20, 2010, the Senate passed the Restoring American Financial Stability Act of 2010 (S. 3217) by a vote of 59-39. The bill, which is the largest overhaul of financial services regulation since the New Deal, contains several new whistleblower protection provisions and strengthens the whistleblower protection provision of the Sarbanes-Oxley Act (SOX). This blog post summarizes these whistleblower provisions.
The post describes the following provisions:
- Section 922: Reward for Whistleblowing to the Securities and Exchanges Commission (SEC).
- Section 922: Prohibition Against Retaliation.
- Section 1057: New Whistleblower Protection for Financial Services Employees.
- Expansion of Sarbanes-Oxley Whistleblower Protection Provision
ISLSSL Regional Congress in Cartagena
Steve Willborn and I will be in Cartagena, Columbia for the American Congress of Workers' Rights and Social Security Law. If any other readers are going, please drop me an email and let me know.
Recently Published Scholarship
- Nantiya Ruan, Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers, 63 Vand. L. Rev. 727 (2010).
- LoValerie Mullins, Employees Losing Power, Losing Jobs: Making the Case for Mediating Power in the Era of Buy-Ins and Bailouts, 10 Pepeprdine Disp. Resol. L.J. 523 (2010).
- Matthew T. Bodie, The Case for Employee Referenda on Transformative Transactions as Shareholder Proposals, 87 Wash. U. L. Rev. 897 (2010).
- Ashley M. Rothe, Blackberrys and the Fair Labor Standards Act: Does a Wireless Ball and Chain Entitle White-Collar Workers to Overtime Compensation?, 54 St. Louis U. L.J. 709 (2010).
- Briana L. Seagriff, Keep Your Lunch Money: Alleviating Workplace Bullying with Mediation, 25 Ohio St. J. Disp. Resol. 575 (2010).
Arnow-Richman on Workplace Flexibility
Rachel S. Arnow-Richman (Denver) has just posted on SSRN her article (42 Conn. L. Rev. 1081 (2010)) Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance. Here's the abstract:
[T]his Paper examines the significance of a four-day, forty-forty work week to caregivers in need of individualized workplace accommodation. Employer interest in "four/forty" and other alternative work structures demonstrates that the current organization of market work is not inevitable and that its re-organization in ways that facilitate full participation by caregivers can sometimes be mutually beneficial. Yet it is unlikely that employers act optimally in responding to individual accommodation requests. Well-known limits on rational choice theory can impede supervisors’ ability to determine whether a particular accommodation will effectively enable the caregiver to perform her job and whether the costs entailed in adopting the accommodation will be outweighed by other savings. Thus, it is likely that some number of viable, cost-effective accommodations are not being implemented by employers.
The Paper argues that the law should play a role in facilitating optimal, individualized accommodation of working caregivers. Drawing on existing and pending legislation, it argues for the creation of a statutory “right to request” that would protect workers from retaliation for seeking accommodations and would require employers to consider such requests in good faith. By encouraging workers to come forward with their requests and requiring parties to engage in an “interactive process,” the law can potentially reduce some of the biases and informational gaps that currently plague discretionary employer decisions about accommodation requests. In this way, such a law may ultimately inspire mutually beneficial changes to work structure that would not have been achieved absent legal intervention.
Top-10 Labor & Employment Recent SSRN Downloads
- Richard H. Thaler, Cass R. Sunstein, & John P. Balz, Choice Architecture (1128).
- Carola Frydman & Dirk Jenter, CEO Compensation (451).
- Amy Monahan, Public Pension Plan Reform: The Legal Framework (397).
- Robert Pikowsky & John A. Miller, Taxation and the Sabbatical: Doctrine, Planning and Policy (302).
- Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure (198).
- Mark C. Weber, Unreasonable Accommodation and Due Hardship (181).
- Brian D. Galle, Conditional Taxation and the Constitutionality of Health Care Reform (179).
- Joseph Seiner (photo above) & Benjamin Gutman, The New Disparate Impact (136).
- Randall S. Thomas & Harwell Wells, Executive Compensation in the Courts: Board Capture, Optimal Contracting and Officer Fiduciary Duties (134).
- Robert Flannigan, Fact-Based Fiduciary Accountability in Canada (128).
May 21, 2010
ACS Panel on NLRB
Last week, the American Constitution Society held what looks like a great panel on "The National Labor Relations Board at 75--Looking Back, Looking Forward." Seth Harris, the Deputy Secretary of Labor, gave the keynote address. Next was a panel moderated by Anne Marie Lofaso (West Virginia), with speakers James Brudney (Ohio State), Dennis Walsh (Deputy General Counsel, FLRA and former NLRB member), and Marshall Babson (Hughes, Hubbard & Reed and former NLRB member). The topics varied from giving more union access to employees, minimum backpay awards, the definition of employee, rulemaking, informing all employees of their NLRA rights, filling NLRB vacancies, reducing policy oscillation, and trying to find more common ground among employees and employers.
You can watch the entire event here.
May 20, 2010
Fired - The Movie
Here is a film to see if you haven't. It is "Fired," which is about being fired. The film is a sort of comedy or at least an attempt to make the issue funny. The second link is to a scene/interview in the film. Not a PR vehicle for human resources, more like Michael Moore than Edward R. Murrow. Even so you may smell a bit of the truth there.http://www.firedthemovie.com/
Novartis Loses Sex Discrimination Class Action--Jury Awards More than $250 Million
We noted earlier that the trial for one of the largest class action discrimination cases to go to trial began last month, and apparently the jury came back yesterday, finding that Novartis had discriminated against thousands of female sales representatives over pay, promotion, and pregnancy. The jury awarded about $3.3 million in compensatory damages to just 12 of the class of over 6,500 women, and $250 million in punitives. The remaining class members can apply for damages now, which will likely be determined by a special master. This NY Times story has some more details. Ironically, Novartis is consistently ranked in Working Mothers' Magazine's top 100 companies to work for. Novartis says it will appeal.
May 18, 2010
Constitutionality of the Individual Insurance Mandate--The Congressional Research Service Report
As we've all heard lots about, the Patient Protection and Affordable Care Act will, among other things, require individuals to purchase health insurance or pay a penalty to the government if they do not. And this is what is being challenged in the lawsuit by state officials in Florida, thought to have the most traction of any of the proposed suits. Earlier this month, the Congressional Research Service issued this report, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis. The report analyzes likely arguments against the mandate brought under the Fifth and Tenth Amendments and also explores the sufficiency under the First Amendment of exceptions for certain religious groups.
The report analyzes whether Congress is empowered to impose this requirement through its taxing power and the power to regulate interstate commerce, and finds them somewhat difficult issues. Also potentially difficult, although not clearly a problem, is the religious exemption for some. Easier to reject, according to the report, would be challenges under the Fifth and Tenth Amendments. The report's analysis is thorough and very interesting. It's a good read for anyone concerned about this aspect of the new legislation.
NLRB Invites Amicus Briefs on Electronic Notices and Compound Interest
The NLRB has recently issued a call for amicus briefs on two issues. The first asks whether the Board's remedial notices should be posted electronically--for example, via the employer's email system--and what rules should apply to those notices. The second is whether the Board should order compound interest as part of backpay awards and, if so, how often they should be compounded.
See the notice for the exact cases involved and where to get more information about filing briefs.
Hat Tip: Patrick Kavanagh & Justin Keith
Jotwell's Worklaw Section
Jotwell (Journal of Things We Like Lots), is an on-line journal in which contributing professors review some of their favorite recent scholarship. The journal has several subject-area sites and its Worklaw section is now up (full disclosure: I'm one of the section editors). First up is Michael Harper's (BU), "Conceptualizing Disability Discrimination," which reviews Samuel Bagenstos' (Michigan) book, "Law and Contradictions of the Disability Rights Movement."
We'll be rolling out several more great reviews over the next several weeks, so check it out.
May 17, 2010
DOL Releases Online H-1B Advisor
The U.S. Department of Labor Friday released a new tool to help employers and others understand how to comply with requirements under the H-1B visa program, which allows for the temporary employment of foreign workers in the U.S. in certain specialty occupations.
The online H-1B Advisor describes the program's standards and provides detailed information about employers' and workers' rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping, worker protections, and enforcement.
The H-1B non-immigrant visa classification was created under the Immigration and Nationality Act to help employers who cannot obtain needed skills and abilities from the U.S. workforce by authorizing the employment of qualified individuals who are not otherwise authorized to work in the U.S. The act establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign workers under the H-1B program, as well as to protect H-1B workers themselves.
Responsibilities for the H-1B visa program are shared among the Labor Department's Office of Foreign Labor Certification and the department's Wage and Hour Division, the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Service and the U.S. Department of State. The new advisor tool focuses solely on compliance with the requirements enforced by the Wage and Hour Division. The tool does not review the process for participating in the program or for invoking H-1B visa portability.
Recently Published Scholarship
- Anthony J. Galdieri (left), The Fluctuating Workweek: How It Works, How It's Treated, How It's Perceived, 8 Pierce L. Rev. 157 (2010).
Ver Ploeg on an Alternative Model for Labor-Management Dispute Resolution
Christine D. Ver Ploeg (William Mitchell) has just posted on SSRN her article Other Models for Labor-Management Dispute Resolution: The Wisconsin Experiment. Here's the abstract:
Twenty-two years ago leaders from the Wisconsin Department of Labor Relations and leaders from the Wisconsin State Employees Union, AFSCME Council 24, agreed that they needed a more efficient way to deal with their backlog of grievances, many of which involved routine issues and did not require a precedential decision. To that end they mutually crafted two special arbitration procedures: the umpire arbitration process and the expedited arbitration process. In the intervening years the parties have resolved a large portion of their grievances using these special procedures, and today relatively few grievances are taken to conventional arbitration.
Given this extended and extensive track record, the parties were interested in now more closely examining their experience to determine how the advocates who have been in the trenches and use these special processes evaluate them and how they might be improved. To that end arbitrators prepared a ninety-question anonymous survey to which an advocate could respond with a quantifiable score and could also offer additional related thoughts.
All of the advocates – who among themselves had one to thirty-six years of labor relations experience – responded to this survey. Results revealed that both union and management advocates are highly satisfied with the umpire arbitration and expedited arbitration processes. Advocates suggested very few changes and none would support eliminating these special procedures as options.
In short, it is fair to say that the parties have realized their goal of resolving select grievances more efficiently while at the same time preserving fairness and effectiveness. These special arbitration procedures have worked well, and in today’s even more challenging economy other parties with substantial grievance backlogs could learn much from the Wisconsin experience.