October 5, 2012
September Employment Data
If you've managed to find your way to this post, you've no doubt already seen that the unemployment rate dipped fell below the 8% psychological barrier to 7.8% (from 8.1% the previous month). This does not appear to the result of a people falling out of the job market. According to the Department of Labor, 114,00 jobs were added in September and modest wage increases were seen. Moreover, for the first time in long time, government payrolls actually increased. And, perhaps most significant, the two previous months' job gains were revised upward by 88,000 jobs.
October 4, 2012
Feuer on How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions
Friend of the blog, Albert Feuer, has recently posted his piece from the John Marshall Law Review on SSRN entitled: How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder.
Here is the abstract:
This Article discusses the interaction between ERISA and family law (i.e., domestic relations law and estates law). The Supreme Court and the US Department of Labor (“DOL”) may improve the practice of both ERISA and family law by dispelling myths that they have reinforced.
First, the Court incorrectly asserted that the Retirement Equity Act of 1984 (“REACT”) “enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse.” This assertion has encouraged plan administrators and other courts to find that domestic relations orders (“DROs”) govern an excessively broad class of ERISA pension and life insurance benefits. However, REACT, like ERISA, was a reaction to the inadequacies of state law and prior federal law pertaining to domestic relations and estate law. Thus, it similarly circumscribed the role of state law and increased substantive protections for ERISA participants and beneficiaries.
Second, the Court added a gloss to ERISA in non-family law contexts that emphasizes the importance of limiting the cost burdens imposed on employers by ERISA, which, if excessive, would discourage employers from establishing and maintaining employee benefit plans. This gloss has encouraged other courts to lose sight of the leitmotif of ERISA, protecting plan benefits of participants and beneficiaries. Thus, courts have wrongfully permitted individuals to use superseded (state family law or federal common law) ownership claims to obtain benefit entitlements from the recipients of those entitlements rather than the plans. Such holdings violate Supreme Court decisions extending over more than a hundred years, which consistently protected ERISA entitlements and other federal entitlements, before and after their distribution.
The DOL has created issues by both its actions and inactions. First, the DOL incorrectly asserted that the ERISA benefit claim provisions should not govern plan reviews of DRO for compliance with the pertinent ERISA requirements, the qualified domestic relations order (“QDRO”) requirements, but has failed to present an alternative set of review provisions for plans to follow. This has created unnecessary issues concerning the roles of plan administrators, participants, their families, and courts in such reviews Second, the DOL has provided only nonbinding, informal guidance to the general public rather than extensive DOL regulations with respect the QDRO requirements. This has created unnecessary issues for persons seeking to prepare a DRO that complies with the pertinent ERISA requirements, and for plan administrators responding to such requests.
This article is an important addition to scholarship in the area of domestic relations law and estates law as it concerns the the effectiveness of ERISA plan beneficiary designations. This aspect of ERISA law has become quite muddled and Albert's suggested changes may indeed help courts and practitioners in the future when it comes to handling these types of issues.
October 2, 2012
Gov. Brown Vetoes Cal. Domestic Workers Bill of Rights
California Governor Jerry Brown vetoed AB 889, the California Domestic Workers Bill of Rights. See here and here. Bad news for some of California's most vulnerable workers, and a setback for the domestic workers rights movement. Governor Brown's veto message expressed concern that 24-hour care would become too costly and would result in fewer jobs especially since some workers would be paid by the state.
Call for Papers: Young Scholars Workshop, Biagi Foundation
I am pleased to attach the Marco Biagi Foundation’s Call for Papers for its Young Scholars Workshop, which will be held during the afternoon of March 19, 2013 at the University of Modena in Modena, Italy. In addition to PhD candidates and post-docs, JSD students are welcome. The deadline for the submission of abstracts is November 3, 2012. Presenters of papers will receive free admission to the Eleventh International Conference in Commemoration of Professor Marco Biagi, hotel accommodations from March 18-20 (two nights), and breakfast and other meals on March 18 -19.
Abstracts, papers and any questions about submissions should be sent to: firstname.lastname@example.org
The 2012 workshop, featuring 10 papers presented by doctoral and post-doctoral students from two continents, and two poster sessions, was an exciting and successful event. I was honored to participate in the event last year as an organizer and commentator, and found the workshop to be a highlight of the International Conference. Please spread the word to potential participants.
This looks like an incredible opportunity. A few more details are in this call for papers: Download Call YSW
October 1, 2012
NLRB Facebook Decision
The NLRB issued its decision today in the well-publicized Knauz BMW Facebook case. This is the one in which a car dealership salesman poseted comments on Facebook that were critical of the poor quality picnic that the dealership held for its customers. The result is a loss for the employee, but not in a way that most people think. Basically the Board suggested that those Facebook postings could be considered concerted and protected activity but that he was fired for another reason. The Board (2-1) also found that the employer's rule on employee communications was unlawfully broad because it could make employees reasonably believe that protected communications were not allowed. The Board announcement has a nice summary of the decision, so I'll just repost it:
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.
The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.
The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.
In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.
The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.
The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.
As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.
However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.
Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.
The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.
As I've noted before, I think these Facebook cases are largely run-of-the-mill concerted and protected cases, although they do provide some interested questions about what activity will be concerted. Of course, they'll also continue to get a lot of attention, which isn't a bad thing.
September 30, 2012
Bisom-Rapp & Sargeant on U.S. and U.K. Age Discrimination Law
Susan Bisom-Rapp (Thomas Jefferson) and Malcom Sargeant (Middlesex, UK) have just posted on SSRN their article, Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States, which will be published in the Loyola University Chicago Law Journal. Teh abstract:
This article compares age discrimination law and practice in the United Kingdom (UK) and United States (US) to discern convergences and divergences in legal doctrine, the law's normative underpinnings, and societal outcomes. Each country at first blush appears to pursue age discrimination protection using a distinct model. Age bias law in Britain adheres to what might be termed the European approach. That approach, grounded in the EU's Framework Directive on Equal Treatment in Employment and Occupation, is relatively recent in Britain, dating to October 2006. One distinguishing characteristic of UK law is the possibility of employer-justified compulsory retirement.
In contrast to the UK, the legal prohibition of age discrimination in the US is over four decades old, embodied in the Age Discrimination in Employment Act of 1967 (ADEA). The American approach prohibits compulsory retirement programs in order to combat negative, age-based stereotypes about when and how older workers should exit the labor market. Over time, however, US Supreme Court decisions have greatly weakened the ADEA's protections, making it difficult for plaintiffs to make out a prima facie case of age discrimination, making it easier for employers to defend against suit, and complicating the government's enforcement efforts. Also, aggressive corporate downsizing, very laxly regulated in the US, increasingly affects older workers, leaving them without employment at a point in their lives when finding replacement work is most difficult or for some impossible.
Despite what may appear as great doctrinal contrasts, however, the age discrimination laws of the UK and the US converge in many respects. Both systems view age stereotyping as an ill to be cured. Both countries ultimately provide for inferior legal protections against age discrimination as compared to other forms of prohibited workplace bias. Finally, both approaches to age discrimination render workers vulnerable in their later working years even though each nation's laws arguably arrive there by a different route.
This article argues that the deficiencies plaguing both systems are traceable to the incursion of a distinct economic imperative, applicable only to older workers, on what should be a civil or human rights approach to their treatment. Putting age on an even footing with other forms of bias – for example, race and sex – is necessary if the law is to eliminate the harm it seeks to redress.
I saw Susan present this article at the recent annual colloquium and it was very interesting, so definitely check it out.