July 27, 2011
Feuer on CIGNA v. Amara and the Use of ERISA §502(a)(1)(B) to Enforce Benefit Terms Used in SPD
Albert Feuer, a friend of the blog, brings to our attention his new brief article, “CIGNA v. Amara: Supreme Court Unconvincingly Rejects Use of ERISA §502(a)(1)(B) to Enforce Benefit Terms Used in SPD.” This article appeared in the July 18, 2011 issue of the Tax Management Weekly Report.
Unlike most other commentators, Albert does not focus on the scope of the relief the Supreme Court majority held was available, but rather on the relief all the participating Justices seemed to hold was unavailable.
The abstract may be found at http://ssrn.com/abstract=1889404.
Fwiw, Workplace Prof Blog has been named a "top-50 human resources blog". I don't know the methodology, so I'm not exactly going to take this to my dean and demand a raise or anything. Regardless, readers of this blog might be interested in perusing some of the other blogs on the list.
Court Permits RICO Suit Against SEIU
The Blog of Legal Times reports today that a Virginia federal judge has just refused to dismiss a RICO suit brought by Sodexo against the SEIU for the union's "corporate campaign" against the company. Here's an excerpt from the BLT post:
In a one-page Order, U.S. District Judge Claude Hilton wrote that he was denying the motion because Sodexo, a domestic subsidiary of French multinational corporation Sodexo S.A., "has stated a claim upon which relief can be had." He did not elaborate.
Sodexo filed suit in March in U.S. District Court for the Eastern District of Virginia, accusing the union of carrying out a negative publicity campaign in order to strong-arm exclusive access to Sodexo’s non-union employees. Sodexo claimed the union was attempting to unlawfully unionize employees and increase revenue in violation of the federal Racketeer Influenced and Corrupt Organizations Act.
In response, the labor group accused Sodexo of filing suit to divert attention from what the union characterized as the company's anti-union behavior. In the motion to dismiss (PDF), the SEIU argued that Sodexo failed to show that the publicity campaign amounted to the type of criminal activity and extortion envisioned under RICO.
IAM Organizes IKEA Plant
Here's an excerpt from the NLRB press release:
Employees at the Swedwood plant in Danville, Virginia voted in favor of representation by the International Association of Machinists in an NLRB-supervised election Wednesday.
Results, released by the NLRB at 5:30 p.m., were 221 votes in favor of the union and 69 opposed, with one challenged ballot and one void ballot. There were a total of 318 eligible workers at the plant, which assembles products for IKEA.
Marty Malin points out: "After getting killed all year, labor won one at IKEA in the south and the election wasn’t even close."
Amicus Signing Opportunity in Hosanna-Tabor
Leslie Griffin (Houston) and Caroline Mala Corbin (Miami) have drafted an amicus brief and are looking for signatories. Here's their description (from Feminist Law Professors; hat tip Jessica Roberts):
We have drafted an amicus brief for law professors in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.
Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired. Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.
Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister. If she is not a minister, she would probably win. After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
The ministerial exception grants religious organizations immunity from employment discrimination suits brought by “ministerial” employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination. The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it
The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.
We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply. Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.
As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.
If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us.
LEL Scholars in Australia
Yesterday, I was thrilled to post Daria Chernyaeva's compilation of labor/employment scholars in the area comprising the former Soviet Union. Today I am equally thrilled to post Paul Harpur's compilation of labor/employment scholars in Australia.
Australian National University
University of Adelaide
University of New South Wales
University of Melbourne, Centre for Employment & Labour Relations Law
- John Howe
- Helen Anderson
- Anna Chapman
- Sean Cooney
- Beth Gaze
- Glenn Patmore
- Joo-Cheong Tham
- Colin Fenwick
- Tess Hardy
- Tessa Dermody
University of Queensland
University of Sydney
Conference on Public Sector Employment
Ann Hodges (Richmond) writes to tell us of this upcoming conference. Here are the details:
On September 9, 2011 from 8:30-5 p.m. the University of Richmond School of Law Austin E. Owen Lecture, in conjunction with the Labor Law Group, the American Constitution Society, and the Center for Leadership in Education, will host a one-day conference, Public Sector Employment in Times of Crisis, in the law school's Moot Court Room. This conference will bring together experts on issues relating to public employment that have been the focus of political debate in the current economic crisis. There is no charge for the conference but registration is required for both the conference and parking. MCLE credits are pending. This program has been submitted to the HR Certification Institute for review.
Public Employee Compensation
- Moderator: Professor Paul Thompson, University of Richmond
Public Sector Pensions in Crisis
- Dr. Robert Clark, Professor, Poole College of Management, North Carolina State University
- Eric Madiar, Esq., Chief Legal Counsel and Senate Parliamentarian, State of Illinois
Public Employee Compensation: Excessive or Inadequate
- Dr. Jeffrey Keefe, Associate Professor, School of Management and Labor Relations, Rutgers University
- Dr. Jason Richwine, Senior Policy Analyst, Empirical Studies, Heritage Foundation
Collective Bargaining: Existing Frameworks and Recent Changes
- Moderator: Professor Paul Thompson, University of Richmond
- Professor Martin Malin, Director, Institute for Law and the Workplace, Chicago-Kent College of Law
- Professor Joseph Slater, Eugene M. Balk Professor of Law and Values, University of Toledo College of Law
- Professor Ann C. Hodges, University of Richmond School of Law
- Theodore Clark, Esq., Clark, Baird & Smith
The Constitutional Framework for Public Employment
- Moderator: Professor Jonathan Stubbs, University of Richmond
- Professor Stephen Befort, Gray, Plant, Mooty, Mooty, & Bennett Professor of Law, University of Minnesota
- Barbara Zack Quindel, Esq., Hawks Quindel, S.C., Milwaukee
Education Reform: The Role of Teachers
- Professor Ann C. Hodges, University of Richmond
- Alice O’Brien, Esq., General Counsel, National Education Association
- Rob Weil, Director, Field Programs, Educational Issues, American Federation of Teachers
- Michael J. Petrilli, Executive Vice President, The Thomas B. Fordham Institute
- Andrew Rotherham, Bellwether Education Partners
Public Employee Job Security and Termination
- Moderator: Phyllis C. Katz, Sands Anderson Marks & Miller and Adjunct Professor of Law, University of Richmond
- Professor Laura Cooper, J. Stewart & Mario Thomas McClendon Professor in Law and Alternative Dispute Resolution, University of Minnesota
- Susan Tsui Grundmann, Esq., Chairman, Merit Systems Protection Board
Secunda on De-Biasing Labor Law
Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the law.
This article considers ways to reduce this needless cultural conflict over the law generally, and more specifically, in the highly polarized area of American labor and employment law. To this end, this article considers a spectrum of judicial reform debiasing strategies, ranging from opinion-writing debiasing strategies to more far-ranging specialized judge and court models, to reduce the incidents of cognitive illiberalism in labor and employment law. The article concludes by maintaining that the American legal system should at least experiment with institutional debiasing strategies to counteract cognitive illiberalism. Such experimentation would improve the public discourse on important workplace issues in the United States.
Kitov & Kitov on Employment Growth
Ivan Kitov (Russian Academy of Sciences) and Oleg Kitov (Warwick) have just posted on SSRN their article (a companion piece to their recent article on structural unemployment) Employment, Unemployment and Real Economic Growth. Here's the abstract:
We have modeled the employment/population ratio in the largest developed countries. Our results show that the evolution of the employment rate since 1970 can be predicted with a high accuracy by a linear dependence on the logarithm of real GDP per capita. All empirical relationships estimated in this study need a structural break somewhere between 1975 and 1995. Such breaks might be caused by revisions to monetary policy (e.g. inflation targeting) or/and changes in measurement units. Statistically, the link between measured and predicted rate of employment is characterized by the coefficient of determination from 0.84 (Australia) to 0.95 (Japan). The model residuals are likely to be associated with measurement errors.
July 26, 2011
LEL Scholars in the Former Soviet Union
Daria Chernyaeva (National Research University - Higher School of Economics - Moscow) has graciously compiled a list of the names and contact information for labobor/employment scholars in the area comprising the former Soviet Union. Hopefully, this will open the door to much future collaboration.
Daria has suggested -- and I think it's a terrific idea -- that we solicit similar lists from all over the world. If you're a scholar from outside the U.S., please consider compiling a list like this one and sending it to me so I can post it. If you're a reader inside the U.S. and you know someone outside the U.S. who might be willing to compile a list of scholars in their home country, please ask them to do so.
- Prof. Yuriy Petrovich Orlovskiy, LLD - National Research University – Higher School of Economics, law faculty, head of the labour law department: email@example.com; tel.: + 7 495 953 17 91.
- Prof. Nina Alekseevna Brilliantova, PhD - Academy of Labour and Social Relations, law faculty, vice head of the labour law department: firstname.lastname@example.org.
- Associate Prof. Daria Chernyaeva, LLM, PhD - National Research University – Higher School of Economics: email@example.com; tel.: +7 916 808 83 80 ; fax +7 495 455 99 66.
- Associate Prof. Nikita Lyutov, PhD - Moscow State Academy of Law, labour law department: firstname.lastname@example.org.
- Associate Prof. Elena Zabramnaya, PhD, - Moscow State University, law faculty, labour law department: email@example.com.
- Associate Prof. Yulia Korsanenkova, PhD – Moscow State University, law faculty, labour law department: firstname.lastname@example.org.
- Col. Vera Kurochkina, PhD – Moscow University of the Ministry of Home Affairs, head of the department of labour and ecologicy law; tel.: +7 495 335 50 55.
- Mrs. Anna Gvozditzkikh – partner at the Center for labour and social rights: email@example.com; tel.: +7 495 729 39 06 ; tel./fax: +7 495 721 95 58.
- Prof. Alia Favarisovna Nurtdinova, LLD - Constitutional Court of the Russian Federation, head of the Department for constitutional foundations of labour legislation and social protection: firstname.lastname@example.org.
- Prof. Sergey Petrovich Mavrin, LLD - Constitutional Court of the Russian Federation, deputy chairman; also works for St. Peterburg State University, law faculty, department of labour law and occupational safety and health : email@example.com; tel.: +7 812 329 28 32.
- Prof. Yevgeniy Borisovich Khokhlov, LLD - St. Peterburg State University, law faculty, head of the department of labour law and occupational safety and health: firstname.lastname@example.org; tel.: +7 812 329 28 32.
- Associate Prof. Alexander Zavgorodniy, PhD – St. Peterburg University, law faculty, labour law department: email@example.com; tel.: +7 812 329 28 32 ; fax: +7 812 329 28 00.
- Prof. Marina Vladimirovna Lushnikova, LLD - Yaroslavl’ State University, law faculty, vice dean on research activity: firstname.lastname@example.org; tel.: +7 0852 72 83 82.
- Prof. Svetlana Yurievna Golovina, LLD - Ural State Law Academy, head of the labour law department: email@example.com, firstname.lastname@example.org , email@example.com ; +7 343 245 09 26
- Prof. Leonid Yurievich Bugrov, LLD – Perm State University, law faculty, head of the labour law department: firstname.lastname@example.org; tel.: +7 3422 39 65 49.
- Associate prof. Marina Sedelnikova, PhD – Omsk State University, law faculty, head of the labour law department: email@example.com.
- Mrs. Tatiana Zykina, PhD - Arkhangelsk State Technical University, law faculty, head of the civil law department: firstname.lastname@example.org; tel.: +7 8182 62 78 95 ; tel./fax: +7 8182 61 91 73.
- Associate Prof. Filchakova Svetlana, PhD – Baikal State University of Economics and Law, faculty of civil and entrepreneurial law, vice-dean of the faculty: email@example.com ; tel.: +7 3952 24 09 43.
- Mrs. Elena Petrova, PhD – Siberia Federal University, Law Institute, deputy director of the Institute: firstname.lastname@example.org.
- Associate Prof. Tatiana Postovalova, PhD – Belorussian State University, law faculty, department of civil procedure and labour law: email@example.com.
- Associate Prof. Tomashevskiy Kirill, PhD – International Institute of labour and social relations (Minsk), law faculty, dean of the faculty: firstname.lastname@example.org
- Prof. Kasumov Alysh Mamish Ogly, LLD - State University of Baku, law faculty, head of the department of civil procedure, labour law and ecological law: email@example.com; tel./fax: +994 12 510 56 25 ; +994 12 438 74 32.
- Associate Prof. Oksana Lavriv, PhD, - Lvov State University of Interior, Prikarpatskiy Law Institute of the University, civil law department: firstname.lastname@example.org; tel.: +380 97 981 06 03; fax: +342 73 51 75.
- Associate Prof. Alla Yushko, PhD, - National University “Yaroslav Mudryy Law Academy of Ukraine”, law faculty, labour law department: email@example.com; tel.: +380 57 704 92 15 ; +38 050 972 00 16.
- Mrs. Alla Shirant, labour lawyer: firstname.lastname@example.org; tel.: +380 63 233 51 51 ; +44 404 48 25.
- Mrs. Irine P. Lavrinchuk, PhD, - Verkhovna Rada (Parliament) or Ukraine, division on social and labour Issues, chief scientific and expert department, chief scientific adviser of the department. Mailing address: apt. 17.32/v, G. Gongadze av., Kyiv, Ukraine. - tel. office: + 380 44 235-79-12 ; tel. home: + 380 44 433-73-48 ; Mobile tel: 067 935 64 59 ; e-mail: email@example.com.
- professor Oleg Nikolaevich Yaroshenko, LLD, - National university "Yaroslav Mudryy law academy of Ukraine", labour law department: firstname.lastname@example.org; tel.: +380 95 615 13 40.
- Professor Sergey Nikolaevich Prilipko, LLD, - National academy of legal sciences of Ukraine, Institute of the legal support of innovative development, director of the Institute: email@example.com (the same as for prof. Yaroshenko) ; tel.: +380 50 304 01 30.
- Professor Nikolay Ivanovich Inshin, LLD, - Taras Shevchenko national university of Kiev, department of labour, ecological and agrarian law: firstname.lastname@example.org (the same as for prof. Yaroshenko) ; tel.: +380 50 641 13 83.
- Mr. Mykhaylo Shumylo, PhD, - National academy of Ukrain, V.M. Koretzkiy Institute of state and law, scientific associate: email@example.com; tel./fax: +380 44 278 59 94 ; mobile tel.: +380 67 293 11 83.
- Mrs. Svetlana Bortnik, - Verkhovna Rada (Parliament) of Ukraine, division on social and labour Issues, chief scientific and expert department, chief scientific adviser of the department. Mailing address: 04053 Ukrain, Kyev, Nesterovskiy per, 4-615 ; e-mail: firstname.lastname@example.org ; tel.: +380 44 235 79 16 ; mobile tel.: +380 50 900 29 56.
- prof. Natalia Nikolaevna Khutoryan, LLD - National academy of Ukraine, V.M. Koretzkiy Institute of state and law, department of problems of civil, labour and entrepreneurial law, head scientific researcher; also is a corresponding member of the National academy of legal sciences of Ukraine: email@example.com; Tel./fax: +380 44 278 59 94.
* * *
Here is the list of the labour law departments (or departments that include labour law subdepartments or give lectures in labour and employment law) at the law faculties of the leading Russian universities. Take into account that not all of the addresses are “active” since some departments and faculties have no habit of e-mail communication and will probably not answer anything except an official paper letter.
- National Research University Higher School of Economics – labour law department : firstname.lastname@example.org
- Moscow State University – labour law department: email@example.com.
- St. Peterburg State University – labour law department: firstname.lastname@example.org.
- Novosibirsk State University: - there is no labour law department e-mail address; law faculty address is email@example.com.
- Far East State University - there is no labour law department e-mail address; law faculty address is firstname.lastname@example.org.
- Saratov State Academy of Law – labour law department: email@example.com.
- Ural State Law Academy – labour law department: firstname.lastname@example.org.
- Irkutsk State University – labour law department: email@example.com.
- Siberia Federal University – department of labour and ecological law (e-mail address of the head of the Law Institute of the University): firstname.lastname@example.org; e-mail address of the law faculty: email@example.com.
- International Independent Ecological-Politological University – there is no labour law department e-mail address; law faculty: firstname.lastname@example.org.
- State University of Nijniy Novgorod - there is no labour law department e-mail address; law faculty: email@example.com.
- Tver State University – there is no labour law department e-mail address; law faculty: firstname.lastname@example.org.
- Mari State University – there is no labour law department e-mail address; law faculty: email@example.com.
- Khabarovsk State Academy of Economics and Law – there is no labour law department e-mail address; law faculty: firstname.lastname@example.org.
- Moscow Institute of Economics, Politics and Law – there is no labour law department e-mail address; general institute e-mail address: email@example.com.
- Perm State University – labour law department: firstname.lastname@example.org ; law faculty: email@example.com; firstname.lastname@example.org.
- Omsk State University – e-mail address of the labour law department: email@example.com.
Porter & Vartanian on Pay Discrimination
Nicole Porter (Toledo) and Jessica Vartanian have just posted on SSRN their article (Georgetown J. Gender & L.) Debunking the Market Myth in Pay Discrimination Cases. Here's the abstract:
Despite the enactment of the Equal Pay Act (EPA) almost 50 years ago, the pay gap between men and women stubbornly persists. While the pay gap can be attributed to many causes, one of the primary causes explored here is courts’ willingness to allow employers to use “market excuses” to defend pay discrimination suits under the EPA’s fourth affirmative defense. The market excuses we refer to occur when employers defend their decisions to pay a man more than a woman doing equal work because of an applicant’s prior salary, an outside competitive offer given to an employee, or the fact that a man negotiated for more pay. Employers defend these cases by arguing that the pay differential is not based on sex; it is based on the market, which is alleged to be neutral. This Article argues that the market is not neutral but is instead tainted with gender bias. Relying on the social science literature, we demonstrate that unconscious discrimination causes employers to value men more than women and also influences how women value themselves. Both of these phenomena cause pay bias to perpetuate. The recently defeated bill, the Paycheck Fairness Act (PFA), had the potential to foreclose employers’ reliance on market excuses because it would require employers to prove that the factor causing the pay disparity between a man and a woman performing equal work is “job related” and “consistent with business necessity.” Despite the failure of the PFA, we continue to believe it has great potential to not only minimize the use of market excuses but also to clarify and reinforce the EPA’s strict liability framework, which will hopefully revive the suffering statute. Perhaps a modified PFA – one that maintains the important revisions to the fourth affirmative defense but modifies the highly criticized damages provision – will bring us one step closer to ending the pay gap.
Levinson on Workplace Monitoring
Ariana Levinson (Louisville) has just posted on SSRN her article Workplace Privacy and Monitoring: The Quest for Balanced Interests. Here's the asbstract:
This article describes some of the difficulties for employers and employees resulting from advancing technology. It briefly describes some of the technology available to employers with which to monitor employees. The article then provides an overview of the primary sources of law governing employer monitoring and employee privacy, such as the Electronic Communications Privacy Act, state statutes providing for notice of monitoring or protection of the integrity of personnel records or lawful off-duty activity, the tort of invasion on seclusion, and the Fourth Amendment. The article concludes by offering suggestions for attorneys who represent employers, employees, or unions and are interested in addressing these issues. Attorneys and their clients can advocate for federal or state legislation, address these issues in collective bargaining or through private policies, or become involved in educational efforts.
July 25, 2011
NFL Lockout Almost Officially Over
The end to the NFL lockout is coming. Just recently, all 32 player team representatives voted to recommend the proposed agreement. Because of this, the NFL will now begin ramping up its operations over the next week in stages. However, all the players most vote on the agreement is for a vote by all the players, but that vote is almost certain to be positive. What remains to be seen is how long it takes to recertify the union.