Saturday, September 29, 2012
Paul Fronstin (EBRI) has just posted on SSRN his article 2012 Health Confidence Survey: Americans Remain Confident About Health Care, Concerned About Costs, Following Supreme Court Decision. Here's an excerpt from the abstract:
... This paper examines public opinion with respect to health care reform and other aspects of health care both before and after the Supreme Court decision, using data from the 2012 EBRI/MGA Health Confidence Survey (HCS), as well as from previous waves of the survey. ... Confidence about various aspects of today’s health care system has remained fairly level before and after the passage of the PPACA, and has not apparently been impacted by the June 2012 Supreme Court decision. Asked to rate the health care system, Americans offer a diverse perspective: 28 percent consider it to be “good,” 28 percent say “fair,” and 26 percent rate it “poor,” while 12 percent rate it very good and 5 percent say it is “excellent.” However, the 2012 Health Confidence Survey finds that the percentage of Americans rating the health care system as poor doubled between 1998 and 2004 (rising from 15 percent to 30 percent). In contrast with the ratings for the health care system overall, Americans’ rating of their own health plans continues to be generally favorable -- more than half of those with health insurance are extremely or very satisfied with their current plans, and a third are somewhat satisfied. Dissatisfaction with the health system appears to be focused primarily on cost. Among those experiencing cost increases in their plans in the past year, 31 percent state they have decreased their contributions to retirement plans, and more than half have decreased their contributions to other savings as a result.
Douglas Hass (Franczet Radelet) has just posted on SSRN his article (presented at the 2012 LEL Colloquium earlier this month in Chicago) Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law. Here's the abstract:
Since its first publication in 1952, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) has long served not only as the primary reference for mental health disorders for medical practitioners, but also as a primary authority for the legal community. In May 2013, for the first time in nearly 20 years, the American Psychiatric Association plans to publish an entirely new edition. As proposed, the DSM-5 would significantly expand a number of existing psychological disorders and add several new ones. The new Manual is still a work in progress, published only as proposed diagnostic criteria and assessment instruments on the DSM-5 website. However, the significant proposed revisions to a wide range of mental impairments mean that the legal community’s relationship with the DSM may be forced to change given the implications that changes in the DSM-5 may have for claims under laws like the Americans with Disabilities Act (claims of “disability,” requests for reasonable accommodations), Family Medical Leave Act (definitions of a “serious illness”), the Age Discrimination in Employment Act, and even state statutes and workers compensation laws (whether an illness is work related).
This paper discusses the major role that the DSM standards play for legal practitioners and the danger that overly expansive definitions of mental disorders could pose to employers and employees. First, the paper discusses the history and background of the DSM and its development into a de-facto legal treatise. In Part II, the paper highlights the strengths and weaknesses of the DSM-IV as a legal text. Next, the article explains the dangerous interaction between the ADA Amendments Act and the proposed DSM-5. In Part IV, the article highlights the challenges and difficulties that certain changes — from a proposed “Mild Neurocognitive Disorder” to the inclusion of deviant behavior in the definition of a mental disorder — could cause employers, employees, courts, and even federal agencies in applying employment and disability laws, and the ADA in particular. Finally, to reduce the possible unintended consequences of overly-expansive definitions, Part V summarizes specific approaches that courts, employers, employees, and legal practitioners should rely on to reduce the potential confusion and burdens caused by the impending release of the DSM-5.
Although the ADA and other employment statutes do not incorporate DSM (and indeed often define "disability" inconsistently with each other), as this article illustrates, the new DSM-5 widens even further the gulf between the APA and the ADA.
Friday, September 28, 2012
- Nancy Levit, Lawyers Suing Law Firms: The Limits on Attorney Employment Discrimination Claims and the Prospects for Creating Happy Lawyers, 73 U. Pitt. L. Rev. 65 (2012).
- Anne Thibadeau, Pennsylvania Employees Protected Abroad: Extraterritorial Application of State Labor Law in Truman v. DeWolff and the Fair Labor Standards Act Foreign Work Exemption, 73 U. Pitt. L. Rev. 193 (2012).
- Leonard M. Shulman, Revisiting Compensation for Collegiate Athletes: What Price Justice?, 11 Virginia Sports & Entertainment L.J. 417 (2012).
Thursday, September 27, 2012
If any other readers of Workplace Prof Blog have been similarly elected, let me know so I can post the good news.
Melissa and Michael will now, among other things, help with the formulation of the ongoing Restatement on Employment Law Project.
Welcome aboard Melissa and Michael!
Michael Maslanka over at Work Matters discusses employment cases being brought by employers against former employees under the federal Computer Fraud and Abuse Act (CFAA). A typical scenario: the employer alleges that an employee accessed its computer system, took confidential information, and later used it on a competitor’s behalf.
Workplace Diva reports:
Adecco Staffing US/Braun Research polled hiring managers and found they're three times more likely to hire a "mature" worker (defined as a worker over age 50) over a 20-something Millennial because mature workers have a work ethic, don't text the whole time you're trying to talk to them, and, in general, have the know-how and proper social graces to get the job done.
Kerri Stone (FIU) has just posted on SSRN her article (77 Missouri L. Rev. (2012)) Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law. Here's an excerpt from the abstract; the full abstract follows the break.
This Article argues that the stray comments “doctrine” does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.
The NFL and the union representing the referees have reached a tentative agreement. Although the ratification vote by the union won't occur until Friday and Saturday, the NFL is lifting the lockout--meaning that the regular refs will start for tonight's game. The main sticking point involved the NFL's desire to convert pensions from defined benefit to defined contribution; the compromise was to keep things as is for five years, freeze that plan, then switch all new contributions to a defined contribution plan.
No telling how much all the public pressure influenced the negotiations, but it certainly didn't seem to hurt. Along those lines, check out yesterday's op-ed by E.J. Dionne, which elaborates (far more eloquently) on my recent comment about the political issues involved with this labor dispute.
Tuesday, September 25, 2012
This is going to be another one of those lists of things I've been meaning to post but haven't got around to yet kinds of posts. The good news is, though, there's actually a unifying theme, and that is sex discrimination.
- A couple of years ago, I ran across this study that suggested recommendation letters for women were written in different language than recommendation letters for men, and that these differences led to disparities for women applicants. The study looked at applicants for tenure track university teaching positions.
- But apparently, we've had yet another study reaffirm that it's not just the recommendation letters, it's sex all by itself that's a problem. The researchers did a randomized double blind study in which the same resume was evaluated, but sometimes the applicant had a male name, and sometimes a female name. Both women and men were likely to evaluate the female applicant lower on competence, hireability, or mentor-ability (would they be a good mentee) than the male applicant.
- Finally, also in an academic setting, it's apparently newsworthy that female professors have nipples--or at least one nipple. I speculated not blogging about this one because the main point of the professor involved was that breastfeeding a baby for a couple of minutes during a class -- a feminist anthropology class -- was not newsworthy. But then the professor went public with the story and her frustration about it all. The story is basically this. It was the first day of the new semester, the class had a new TA, the professor was untenured and a single parent, and the baby was sick. Given her own status, the unfairness of shifting the work to the TA, the unfairness to the students of cancelling, and the lack of other options, the professor brought her daughter, who had a slight fever, to class. During the class, the baby grew a bit fussy, and the professor nursed her for a minute or two, continuing to conduct the class. A reporter for the school paper asked the professor about it and pushed for additional comments, but the professor objected (over time) that the event wasn't newsworthy and shouldn't be covered.
The comments highlighted in the Washington Post story and that the professor herself reports show that people seem to be uncomfortable with the fact that she brought the baby at all. There are implications that she was not a good parent because she allowed the child to crawl around on the floor or even had her there in the first place. Certainly there is stronger discomfort over the notion of her feeding her child in this context, but that seems to be just a part of the same reaction to the concern about the baby being there at all.
The situation and its coverage raise a lot of interesting points, particularly because of the nature of the subject matter: it was a FEMINIST ANTHROPOLOGY course. I've been in situations where I've had to bring a baby or an older kid to class, and where I've had to nurse a baby in front of students (not in class, as it happened), so you might guess that I agree that this shouldn't be considered a big deal. At the same time, I would understand the dissonance students might feel in the stuffy context of law to see a professor be human. But even if it's not ok in other contexts, in the context of a course about the study of human behavior from a feminist perspective, it seems entirely appropriate.
The professor also resists taking any sort of political stand about breastfeeding, and in fact this denial of the political-ness seems to be what the student reporter and external reporters can't get their brains around. Finally, it highlights both the problems of the workplace and childcare options, that sometimes, there aren't any real (or really good) choices available when the slightest thing goes wrong.
All three of these stories show that we've got a lot to think about still whenever we think about sex equality in the workplace, and this doesn't even get into non-conforming gender-linked behaviors.
In a man-bites-dog story, Wisconsin's Gov. Walker--not know for his pro-union tendencies--has come out in support of union workers in a labor dispute. What would make this happen? Football, of course. In particular, a highly questionable last second call by replacement referees that resulted in a Green Bay Packers loss. Just a reminder that labor disputes often depends on whose ox is being gored. Another reminder? The recent move by public teacher unions to support more Republicans (or, possibly, punish unhelpful Democrats).
George Padis (Texas 2012) has just posted on SSRN his Note (forthcoming Tex. L. Rev.) Arbitration Under Siege: Reforming Consumer and Employment Arbitration. Here's the abstract:
In its recent terms, the U.S. Supreme Court has taken up the issue of arbitration - most notably in AT&T Mobility LLC v. Concepcion, Rent-A-Center West v. Jackson, and Stolt-Nielson S.A. v. AnimalFeeds International. All three decisions expanded the scope of federal arbitration in consumer and employment contexts in important and surprising ways. Scholars have been sharply critical of these decisions: For example, Concepcion prompted Dean Erwin Chemerinsky to remark in an op-ed in the L.A. Times that the decision is 'part of a disturbing trend of the five most conservative justices closing the courthouse doors to injured individuals . . . . [and] favoring the interests of businesses over consumers, employees and others suffering injuries.'
Meanwhile, cases like Jones v. Hallburton (portrayed in the HBO movie Hot Coffee) have cast a public spotlight on arbitration, and arbitration is under siege. Congress has enacted two measures to address this problem: The Consumer Financial Protection Bureau is empowered to address the issue of consumer arbitration and a defense appropriations rider in 2010 - portrayed in Hot Coffee - prohibits arbitration in employment contracts by defense contractors. A third proposal, the Arbitration Fairness Act, would ban arbitration in all consumer and employment contracts. This Article argues that the approach in the Supreme Court - broadly enforcing all arbitration agreements regardless of the specific nature of the dispute - is too broad and extends arbitration into areas where it presents serious problems, most notably the small-claim consumer class action context. But the congressional reforms banning arbitration in all consumer and employment contracts are also overly broad.This Article proposes a middle ground: Administrative regulations promulgated by the Consumer Financial Protection Bureau and the EEOC that provide dispute-specific guarantees for consumers and employees and safe harbors for companies.
Maybe. But the EEOC has only procedural (not substantive) rulemaking authority under Title VII, and neither the CFPB nor the EEOC have rulemaking authority regarding the FAA. Thus, this leaves the door open for the Court to say that the text of the FAA trumps the regs of the EEOC/CFPG; even if the text of the FAA really doesn't, cases like Stolt-Nielsen and Concepcion illustrate that the Supreme Court is all too willing to wilfully misread the plain language of the FAA in favor of the Court's policy preference for arbitration. The solution, ultimately, is to get a new Court majority.
Monday, September 24, 2012
David Doorey (York Univ. (Canada)) has just posted on SSRN an updated version of his paper entitled: The Charter and the Law of Work: A Beginner's Guide.
Here's the abstract:
This essay explains how the Supreme Court of Canada has interpreted and applied the Canadian Charter of Rights and Freedoms to the law of work. It is intended as an introduction to this complex legal field for an audience unfamiliar with the Charter. Beginning with an overview of the Charter review process, the paper then examines the Court’s application to work law of Section 2(d) freedom of association, Section 2(b) freedom of expression, and Section 15 equality rights. The paper is an updated version describing the law as of summer 2012.
The paper provides a great introductory overview of the development and current state of Canadian Charter law relating to work and employment, including freedom of association, freedom of expression, and right to equality. David wrote it for an audience of new law students or non-law students being introduced to the Charter in the law of work, but it might also be a useful tool for scholars from the U.S. and abroad who are interested in a quick snapshot look at recent developments under the Canadian Charter.
As an honorary Canuck (based on my many visits and trips to Canada), I wholly endorse the idea of American labor and employment lawyers becoming more familiar with the ideas that animate Canadian workplace law!
- Katherine V.W. Stone (UCLA), Globalization and the Middle Class.
- Jonathan Ross Harkavy (Patterson Harkavy), 2012 Supreme Court Employment Law Commentary.
- Ellen Dannin (Penn St.) et al, Testing the Effects of Striker Replacement and Employer Implementation of Final Offers on Employer and Union Bargaining Power.
- Ellen Dannin, Privatizing Government Services in the Era of ALEC and the Great Recession.
- Ellen Dannin, No Rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies.