May 11, 2012
Lisa Belkin's commentary, No, I Am Not Mom Enough in response to Time Magazine's cover featuring a woman who breastfeeds her three-year-old son with his mouth on her breast, is well worth a read. So is this one on Jezebel.
Widiss on Labor Arbitration of Statutory Discrimination Claims
Deborah Widiss (Indiana-Bloomington) has just posted on SSRN her essay Divergent Interests: Union Representation of Individual Employment Discrimination Claims. Here's the abstract:
This short essay, written for a symposium, argues that if unions agree to arbitrate employment discrimination claims (as newly permitted by 14 Penn Plaza LLC v. Pyett), there is a high risk that a union’s duty to protect and advance the collective interests of all members will diverge from the particular interests of an employee asserting a discrimination claim. The essay identifies three potential risks. The first is simply that union leaders may themselves hold discriminatory biases and accordingly fail to support individual employees adequately in the grievance and arbitration process. The more subtle — and probably more significant — risks stem from the fact that employment discrimination claims are likely to be valued significantly more highly by a discrete minority of union members than by the majority. Accordingly, a union acting entirely in good faith might bargain away the right to litigate in court in return for employer concessions that are valued more highly by the membership as a whole. A union might also value pursuing antidiscrimination claims less highly than other potential grievances. Additionally, supporting a member’s discrimination claim will often directly disadvantage other members. At least as traditionally understood, a union’s duty of fair representation would offer inadequate recourse in these scenarios.
In Pyett, the Court cavalierly dismissed concerns of potential conflicts as an attack on collective bargaining more generally. This improperly ignores a key distinction. Since most benefits secured by unions are not mandated by employment laws, labor relations law generally takes away from individual employees only the speculative potential that they might have made a better deal bargaining individually. But the right to bring an employment discrimination claim in court is guaranteed by statute — and accordingly individual employees stand to lose significant rights that they would otherwise enjoy.
Recently Published Scholarship
- Kimberly Y. Chin, Continuing the White-Collar Unionization Movement: Imagining a Private Attorneys' Union, 32 Pace L. Rev. 77 (2012).
- Griffin Toronjo Pivateau, Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action, 32 Pace L. Rev. 114 (2012).
- Vignaswari Saminathan, An Analysis of the United States Employment Immigration System in Attracting and Retaining Skilled Workers and the Effects of Its Dichotomous Objectives -- Competitiveness versus Protecionism: A Case for Reform?, 32 Pace L. Rev. 149 (2012).
- Sheila A. Bentzen, Safe for Work? Analyzing the Supreme Court's Standard of Privacy for Government Employees in Light of City of Ontario v. Quon, 97 Iowa L. Rev. 1283 (2012).
- Anthony J. Tucci, Worthy Exemption? How the DOL Should Apply the FLSA to Unpaid Interns at Nonprofits and Public Agencies, 97 Iowa L. Rev. 1363 (2012).
- Heather S. Dixon, Remedying State "Double Discrimination": the Argument for Abrogation of Eleventh Amendment Immunity for Gender-Related, Disability-Based Employment Discrimination Claims Brought Against State Employers Under Part II of the ADA, 32 Women's Rights L. Rep. 143 (2011).
Employment Ramifications of Dewey Collapse
It's old news that Dewey & LeBoeuf is collapsing / has collapsed. Yesterday, the PBGG announced it is taking over Dewey's pension plans, which collectively are underfunded by an estimated $80 million (see related story at Above-the-Law). The Wall Street Journal reports that a WARN Act suit already has been filed. And Bill Henderson has an excellent post over at the The Legal Whiteboard on the nonlegal obligations the partners at Dewey owe their staff:
What do Dewey & LeBoeuf partners (and recent ex-partners) owe their staff? I’m not talking about technical calculations based on the federal WARN law. I am talking basic principles of human decency that have to be followed in order to look one's self in the mirror each morning—what our non-professional parents or grandparents would tell us to do.
May 9, 2012
Rubinstein on Employment Status
Mitch Rubinstein (NYLS, Rutgers, Adjunct Prof Blog) has just posted on SSRN his article (14 U. Pa. J. Bus. L. 605 (2012)) Employees, Employers, and Quasi-Employers: An Analysis of Employees and Employers Who Operate in the Borderland between an Employer-and-Employee Relationship. Here's the abstract:
In most cases, coverage under our nation’s employment laws boils down to the question of whether or not the individuals in question are “employees” and whether or not the entity in question is an “employer.” Significantly, however, there are burgeoning numbers of cases where employer status is found in the absence of a direct relationship to a statutory employer. This Article refers to these entities as quasi-employers because they are not employers in the traditional sense, yet they are subject to the dictates of employment law legislation.
This Article reviews the following theories of quasi-employer responsibility: the Sibley Interference Theory, the Spirt Delegation Theory, the Joint Employer Theory, and the Single Employer Theory. This Article also reviews the issue of individual supervisory liability as employers under the major employment statutes. Individuals are not normally thought of as employers, but they sometimes have a great deal of influence over the terms and conditions of employees’ employment. Therefore, this Article considers them to be a type of quasi-employer.
In order to analyze the definitional status of employers and quasi-employers, it is necessary to examine the definitional status of employees. Significantly, however, the law is in a complete state of disarray with regard to the definition of employee. Therefore, it should come as no surprise that the definition of employer is also often unclear. Nevertheless, there is a significant body of law that supports treating quasi-employers as employers. Unfortunately, there has not been much scholarship focusing on employer status and virtually no academic commentary discussing the status of quasi-employers.
As with employee status, it is important for there to be a clear definition of who is an employer so that both employees and employers know what their rights and responsibilities are. The consequences of not knowing who ones’ employer is can be fatal to any litigation. It is also important to outline clear criteria because future generations will be looking to established case law to determine employer status in work environments that may look very different from work environments of today.
It is hoped that this Article contributes to bringing about certainty to, in Justice Rutledge’s words, “the borderland” between what is an employer-employee relationship and what is not.
May 7, 2012
NKU 30th Annual Labor-Management Conference
The Thirtieth Annual Labor-Management Conference will be held at Northern Kentucky University on May 16, 2012. This ecumenical conference is one of the largest of its kind in the country. Panels will include:
- ADR Advocacy: How to Present Yourself and Your Case at Arbitration and at Mediation
- New Directions in the Public Sector During The Great Recession
- NLRB is Keeping Labor and Management Busy! (This Isn't Your Father's NLRB)
- Labor-Management Relations: Valuing the Past, Looking Towards the Future
- Employee Absences: Navigating the FMLA, ADA, and Workers' Compensation
- Ethics in Mediation and Arbitration Retirement Plans: The Future is Here!
Summary Judgment & Pleading
For those who, like me, were unable to attend the New York Law School program on summary judgment and pleading in employment discrimination cases, some of the materials and presentations are available here. Thanks again to Rebecca Hamburg.
I'm still catching up after the Spring semester, and thought readers might be interested in Macy v. Holder, the EEOC’s Office of Federal Operations decision ruling that that gender-identity discrimination is a violation of the Title VII prohibition on sex discrimination. Hat tip to Rebecca Hamburg, Program Director, N ELA/Employee Rights Advocacy Institute For Law & Policy, who also recommends this article.
May 6, 2012
April Unemployment Data
The Department of Labor recently released its April unemployment data. There was job growth of 115,000 and the unemployment rate dropped slightly to 8.1%, but this wasn't as good as many had expected. However, the previous months' numbers were revised upward.
One interesting debate surrounding the unemployment rate, which will only heat up as the presidential race gets closer, is the labor force participation rate. I never thought that would be a hot political topic, but it's a number that I've mentioned frequently with the unemployment data releases. The participation rate is relatively low, which contributes to keeping the unemployment rate low. The question is whether this is the result of discouraged workers dropping out of the labor market or as consequence of baby boomers retiring. The answer includes both, but the degree of impact is unclear. Ibe theory is that retirements are a major piece of the participation rate, which means that we may not see the uptick in the unemployment rate that some have predicted when discouraged workers return to a healthier job market. The Washington Post's Wonkblog has done a nice job following this issue.
Feuer on Superseded ERISA Claims
Albert Feuer has posted on SSRN his latest article, "A Misguided Kennedy Offspring from the Third Circuit," which will appear in Tax Management Weekly. The abstract:
The Third Circuit, in Estate of William Kensinger, Jr. v. URL Pharma, 2012 U.S. App. LEXIS 5741 (3rd Cir. March 20, 2012) (“Kensinger”), recently held that a federal common-law waiver by a participant’s designee may be used to force the designee to transfer her benefit payment to the person who would be entitled to the benefit, if the designee were not so entitled. The Third Circuit, which relied largely on the tenth footnote in Kennedy v. Plan Administrator of the Du Pont Savings and Investment Plan, 555 U.S. 285 (2009) (“Kennedy”), thereby entered the fray over whether a person with a superseded claim to an ERISA benefit may, after the plan has distributed the benefit, wrest the benefit in full, or in part, from the owner and recipient of such benefit.
ERISA § 514(a) preempts state-law ownership claims to employee benefits, unless the terms of the ERISA plan provide for such a claim. The terms of most pension plans must provide for compliance with the terms of a domestic relations order that satisfies the QDRO requirements. The terms of other plans need not provide for the deference to any domestic relations orders. Kennedy discussed the effectiveness of a federal common-law waiver that is part of a domestic relations order.
Kennedy provided that (1) ERISA does not preempt a benefit waiver by a participant’s former spouse “embedded in a domestic relations order;” and (2) such waivers are superseded unless the plan terms provide for such a waiver. Thus, if the plan terms do not provide for such a waiver, the default designee may not use the waiver to force the plan to pay it the benefit rather than the former spouse. Moreover, the result appears to be the same if a plan’s terms provide for such a waiver without discussing the rights of the default designee to the waived benefit. Such plan provisions only appear to permit the former spouse to voluntarily decline the benefit.
The paper argues that a person, with a preempted or superseded ownership benefit claim, may not wrest the benefit in full, or in part, from the owner and recipient of such benefit from the plan. In short, Kensinger was decided incorrectly.
Albert notes that not everyone agrees with his position: Geoff Ward, “Clear, Voluntary, and Made in Good Faith: An Alternative to the Supreme Court’s Incorrect Approach to Resolving Conflicts Between Common Law Waivers and ERISA Plan Documents in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan,” 64 Tax Law, 1003 (2011).