Friday, October 21, 2011

Office of Special Counsel Flexes Its Muscles

WhistleblowerAfter years of troubled leadership, the Office of Special Counsel appears to be finging its groove again.  According to the Washington Post, new agency head Carolyn Lerner has been actively pursuing whistleblowing cases, including filing requests with the MSPB to stay adverse personnel actions.  

Once more stats are released it will be interesting to compare the OSC's numbers over the last several years.


October 21, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Wal-Mart Slices Health Benefits

WalmToday's New York Times reports that Wal-Mart is substantially "rolling back" health care coverage for part-time workers and raising premiums for full-timers:

Citing rising costs, Wal-Mart, the nation’s largest private employer, told its employees this week that all future part-time employees who work less than 24 hours a week on average will no longer qualify for any of the company’s health insurance plans.

In addition, any new employees who average 24 hours to 33 hours a week will no longer be able to include a spouse as part of their health care plan, although children can still be covered.
In Wal-Mart’s 2012 health offerings, premiums will increase for some plans by more than 40 percent, although many of their workers pay relatively low premiums in comparison to more generous plans offered by other employers. But many Wal-Mart employees complain that their low premiums are accompanied by high deductibles that sometimes exceed 20 percent of their annual pay.

Wal-Mart’s new health offerings will require many employees who smoke to pay a significant penalty. They will be required to pay an extra $10 to $90 each pay period — $260 to $2,340 a year — if they want health coverage.

If it were just Wal-Mart, this would be bad enough.  But I strongly suspect that this will put pressure on -- or give excuses to -- other retailers (almost all of whom have huge part-time salesforces) to cut benefits for their part-time workers as well. 

Hat tip: Jennifer Clemons.


October 21, 2011 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Thursday, October 20, 2011

Women DO Ask

WomenHere's a great article from Psychology Today that helps explain at least part of the reason why women still earn less than men:

... Despite all the advice women receive telling them that they fall behind men in the workplace because they don't ask for raises; because they don't network; because they don't promote themselves, it turns out that women actually do all of these things, as much as or more than men. The problem isn't us, it's them.

The Catalyst report takes aim at the claim - now almost taken for a truism in business literature - that women don't ask for promotions and salary increases at the same level as men. According to the Catalyst report, women were actually found to ask more than men for both increased compensation (63% of women to 54% of men) and a higher job position (19% of women and 17% of men) when they moved on from their first job. And yet, despite the popular wisdom that an employee willing to move to a new company has more negotiating power, women who moved around in their career earned an average of $53,472 less than their counterparts who stayed at the same company.
What the Catalyst report doesn't say is that not only does a lot of the advice out there not help women, much of it actually hurts them. Social scientists [explain that this is the result of a] the Backlash Effect. If you're seen as too feminine, you won't get the same opportunities as men in the first place. If you're seen as too masculine, you'll be seen as capable, but judged as undeserving of realizing the opportunities you would otherwise merit, on account of your personality problems. It's a classic damned-if-you-do, damned-if-you-don't situation. Unfortunately, much of the advice out there only addresses one side of the problem.

The Catalyst Report referred to in the excerpt above is The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?


October 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Bent: Reform Workers' Comp to Enhance Workplace Safety

BentJason Bent (Stetson) has just posted on SSRN his article on a much-neglected topic of LEL scholarship: workplace safety.  Some of you may recall that he presented it at the Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law.  His article is An Incentive-Based Approach to Regulating Workplace Chemicals, and I hope it will spur some action.

Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.

The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.


October 20, 2011 in Scholarship, Workplace Safety | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 18, 2011

Unions See Opportunity in Occupy Wall Street Movement

Occupy Wall St.The Dail Kos has a piece describing how the Occupy Wall Street movement may provide fertile ground for union organizing. Not necessarily traditional organizing--although that's possible too--but some of the newer techniques that unions have been using outside of the collective representation area.  The piece quotes a Washington Post blog story on the AFL-CIO's Working America affiliate, which signed up 25,000 new recruits over one weekend.  It remains to be seen whether this translates into concrete action, but it should be interesting to watch.

Hat Tip:  Michael Duff


October 18, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • James Leonard, The Zero-Sum Game of Language Accommodations in the Workplace, 33 Cardozo L. Rev. 1 (2011).
  • Stephen A. Plass, Mandatory Arbitration as an Employer's Contractual Perogative: The Efficiency Challenge to Equal Employment Opportunity, 33 Cardozo L. Rev. 195 (2011).
  • Michal Kukreja, Employees Should be Treated Fairly: A Plea to Change the [Ohio] Workers' Compensation Retaliation Statute, 39 Capital U. L. Rev. 961 (2011).


October 18, 2011 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, October 17, 2011

US Supreme Court Grants Cert. on Federal Employee Civil Service Reform Act Case

4United States Supreme Court 112904Update: Thanks to Ross Runkel for providing background materials for the Elgin case.

Hooray for public sector employment law!

The United States Supreme Court granted cert. today in Elgin v. Dep't of the Treasury, No. 11-45, cert. granted (opinion below at 641 F.3d 6 (1st Cir. 2011)), asking whether former federal employees may bring claims for reinstatement for constitutional violations directly into federal court.  The claims here were for violations of the bill of attainder provision and equal protection clause under the Fifth Amendment because the employees were removed from the federal service for failure to register for the draft by age 26, in violation of a federal statute. 

The federal employees did not first file their claim with the Merit Systems Protection Board (MSPB) under the Civil Service Reform Act of 1978 and so the First Circuit majority dismissed the claim on jurisdictional  grounds without reaching the merits. Interestingly, although the concurring judge disagreed with the jurisdictional argument, he would have dismissed the claims on the merits.

I think I am one of the few people to discuss the ability of federal employees to bring Bivens claims (albeit under the First Amendment's freedom of speech clause), though my argument in that article was basically the same as petitioners here: such plaintiffs should not have to go the CSRA route and the MSPB before bringing their constitutional claim in federal court where there is no adequate remedy under the CSRA. (Here is my article: Whithering the Pickering Rights of Federal Employees).

The Supreme Court has already ruled that Bivens-type constitutional claims for damages cannot bypass CSRA limitations, see Bush v. Lucas (U.S. 1983) , but as to equitable constitutional claims, there is a circuit split.

Way too early for predictions, but it is interesting that the Court took the petition from the employees, who lost, 2-1, in the First Circuit.  Also, the Justice Department had urged that cert be denied.


October 17, 2011 in Public Employment Law | Permalink | Comments (3) | TrackBack (0)