Monday, July 21, 2014

RIP Dan Markel

MarkelUsually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.

Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.

July 21, 2014 in About This Blog, Commentary, Faculty News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Gender and Race Issues in Harris and Hobby Lobby

ScotusThe analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward.  There were some interesting facets that they did not discuss that I would like to think through a bit more.

One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly

Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.

To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.

The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?

Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.

Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons? 

These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.

MM

 

July 1, 2014 in Beltway Developments, Commentary, Employment Discrimination, Labor Law, Public Employment Law, Religion | Permalink | Comments (5) | TrackBack (0)

Tuesday, April 22, 2014

Issue Spotting

Thank you to the regular bloggers at Workplace Prof Blog for allowing me to guest post this month.  With their blessing, I will often be cross-posting from my new blog, Friend of the Court, available at http://friendofthecourtblog.wordpress.com/.  Friend of the Court will explore cutting edge and emerging issues in employment discrimination law.  It will provide in-depth, substantive commentary on each topic and discuss history, theory, doctrine and policy implications.  The goal of the blog is to assist courts, lawyers, and policymakers as they navigate complex discrimination issues.  

This blog's inspiration comes in part from Larry Solum's Legal Theory Blog and from Scott Moss' article, "Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure It Reflects." Their work has convinced me of the need for substantive, online resources and the potential of the blog platform.

Given the sophisticated audience of Workplace Prof Blog, I am hoping readers can provide me with their top picks for cutting edge issues.  What issues would you like to read about?  I look forward to reading your comments.

SFS

April 22, 2014 in Commentary, Faculty News | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Sandra Sperino

Sperino_0Welcome to guest blogger Sandra Sperino. Sandra teaches Civil Procedure, Employment Discrimination, and Torts at the University of Cincinnati College of Law. From her faculty bio page:

Professor Sperino teaches in the areas of civil procedure, torts, and employment law. She served as Chair for the AALS Section on Employment Discrimination Law and is a contributing editor to several employment law books published by the American Bar Association.

Professor Sperino’s scholarship focuses on employment discrimination, and her recent work focuses on the intersection of tort and discrimination law. She is a co-author (with Grover and Gonzalez) of Employment Discrimination: Cases and Materials, an employment discrimination casebook.  Her article, The Tort Label, was selected for the Harvard/Stanford/Yale Faculty Forum.  Her recent articles are published in the Michigan Law Review, the University of Illinois Law Review, the George Mason Law Review, and the Notre Dame Law Review

Prior to joining the UC Law faculty, she served on the faculty at Temple University Beasley School of Law. She also was a visiting professor at the University of Illinois College of Law and the St. Louis University School of Law.

Professor Sperino was in private practice as an attorney for the litigation and labor and employment departments at Lewis, Rice & Fingersh in St. Louis. There she co-authored the successful petition for writ of certiorari and the brief argued before the U.S. Supreme Court in United States v. Sell.

Professor Sperino received her J.D. from the University of Illinois College of Law, where she was editor-in-chief of the University of Illinois Law Review, and a M.S. in Journalism from the University of Illinois.  After law school, she clerked for the Hon. Donald J. Stohr of the U.S. District Court, Eastern District of Missouri.

A couple of her recent articles include,

The Tort Label (forthcoming U. Fla. L. Rev.)

Discrimination Statutes, the Common Law, and Proximate Cause (U. Ill. L. Rev.)

Welsome aboard, Sandra!

MM

April 22, 2014 in About This Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Lawyers and Mental Health

Depression liesBrian Clark (Charlotte) has posted part 3 of his series on Coming Out with mental health issues. It's as good as the first two. 

April 10, 2014 in Commentary, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2014

Happy Equal Pay Day

Ryan-Gosling-ryan-gosling-22881860-1280-960(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.

MM

April 8, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Worklife Issues, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Thursday, April 3, 2014

Lawyers and mental health

Depression lies Brian Clark (Charlotte) has posted part 2 of his series on Coming Out with mental health issues. It's as good as promised.

April 3, 2014 in Commentary, Disability, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Lawyers and mental health

Depression liesBrian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.

(necklace above available from the Bloggess's online store)

MM

March 31, 2014 in Commentary, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Commentary on NLRB Northwestern decision

FootballThe Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post. 

If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.

In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.

I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.

MM

March 27, 2014 in Commentary, Faculty News, Labor and Employment News, Labor Law, Union News | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 26, 2014

Hobby Lobby/Conestoga Wood Roundup

ScotusThe Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.

The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog,  Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate

There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.

I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June. 

MM

March 26, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Pension and Benefits, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Shriver Report Documentary: Paycheck to Paycheck

SHRIVERcovfront-1-144x192Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.

In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.

MM

March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Guest Workplace Prof Blog Post: Feldblum on Mach Mining

FeldblumWe are privileged to present as a guest blogger today, Chai R. Feldblum.  Chai is a Commissioner on the federal Equal Employment Opportunity Commission (EEOC), but is writing here on a recent 7th Circuit decision for herself only.  Her post is entitled: On Mach Mining.

Much attention has been paid to the Seventh Circuit’s opinion in EEOC v. Mach Mining.  That is how it should be.  Judge David Hamilton’s opinion for the panel is brilliant, concise, and correct.  The women at the center of the lawsuit who were seeking jobs in the mining industry will now finally have their day in court.

Instead of following precedents of other courts of appeal that have decided or presumed that courts can review the sufficiency of EEOC’s conciliation process, Judge Hamilton went back to first principles of statutory construction.  As his opinion noted:

The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle.  An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process as "evidence in a subsequent proceeding." 42 U.S.C. § 2000e-5(b).  We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.

While much attention has been paid to the fact that the Seventh Circuit broke from the pack in deciding the legal issue before it, less attention has been paid to the weight the Seventh Circuit placed on the internal "meaningful scrutiny" and oversight that the Commission applies to its conciliation process.  As Judge Hamilton explained:

[T]he commissioners who head the agency are appointed by the President with the advice and consent of the Senate.  In short, even without the judiciary trying to monitor the EEOC’s efforts at conciliation, those efforts are subject to meaningful scrutiny.

As a former professor of statutory interpretation, I give the Mach Mining decision an A for careful and thoughtful statutory analysis.  On a more practical level, as a sitting Commissioner of the EEOC, I welcome the court’s emphasis on the meaningful oversight Commissioners provide with regard to our staff’s conciliation efforts.  That is something I have been a strong supporter of since I joined the Commission.

My commitment to those efforts comes directly from the language of Title VII:

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b).

The five of us who make up the Commission obviously cannot investigate, find cause and conciliate on the thousands of charges we receive each year.  Thus, in its regulations, the Commission has delegated authority to its field staff to investigate charges, issue findings of cause, and engage in the conciliation process, 29 CFR §§1601.15(a), .21(d), .24(b).  

This is how it should be.  Delegation is good governance.  But the Commission is ultimately responsible for all actions taken in its name.  Thus, our delegation to our field staff is, and must be, accompanied by reporting and accountability back to the Commission. Our Strategic Plan for 2012-2016 and our Strategic Enforcement Plan of 2013-2016 include components that enhance such accountability.

Judge Hamilton was correct that the language of Title VII, which provides no standard for the conciliation process, is not susceptible of judicial review of “whether the EEOC tried hard enough to settle.”  Rather, the statutory language provides significant deference to the agency in carrying out its obligation to “endeavor to eliminate” alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.”  That deference presumes and is reinforced by active Commission oversight to ensure that the letter and the spirit of the statutory language continue to be carried out.

[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney.  The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]

PS

January 28, 2014 in Commentary, Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Monday, January 20, 2014

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

GelernterThanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.

The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel.  The Ninth Circuit’s summarizes the case thusly:

[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable. 

Here is Lise's commentary:

The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA.  The Ninth Circuit cited to a Second Circuit case that had a similar holding:

Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA.  Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).  

This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.  

Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.

PS

January 20, 2014 in Arbitration, Commentary, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

Rubinstein on Attorney Labor Unions

MrubinsteinFriend of the blog, Mitchell Rubinstein of the Adjunct Law Prof Blog has an interesting post concerning the potential formation of attorney labor unions in Ohio.

Here is a taste:

A few years ago I wrote a short article about attorney labor unions. (Attorney Labor Unions article)

The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.

There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.

The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals.

Read more about this interesting case and Mitch's observation in his post.  Could be an important development for attorneys looking for more voice in the workplace.

PS

January 7, 2014 in Commentary, Union News | Permalink | Comments (0) | TrackBack (0)

Monday, December 2, 2013

Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

Zelinsky_edEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise to the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration's Affordable Care Act's (ACA's) contraceptive coverage mandate.

Here's a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA's mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals, for-profit corporations do not and should have have free exercise rights, and the exemption from the law for for-profit religious employers would permit them to inappropriately interfere with the personal health care decisions of their employees.  I also do not know what "religious minorities" Ed is referring to, since corporations like Hobby Lobby seek to impose their very much dominant Christian religious practices on their employees (Christian and non-Christian alike).

All that being said, Ed should be given credit for thinking outside of the box and coming up with a compromise which might satisfy both sides of the debate.  The likelihood of this suggestion being taken up in the short-term now that the Supreme Court has granted cert. in the Hobby Lobby case is unlikely.  However, if Hobby Lobby and similar religiously-oriented corporations should prevail (a real possibility with the current make up of the court), then this proposal might be a way in which this type of much needed health care coverage could be provided to employees of for-profit religious employers.

PS

December 2, 2013 in Commentary, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 15, 2013

Much ERISA Fun at the Supreme Court Today: Heimeshoff and Benefit SOL Accrual Issues

4United States Supreme Court 112904Update: Thanks to blog reader, Albert Feuer, for bringing to my attention Tejinder Singh’s commentary on the oral argument,  Argument analysis: Nobody seems worried about ERISA limitations periods, SCOTUSBLOG (Oct. 17, 2013).

OK, hold onto your seats for some flat out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Company [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.

RossRunkel.com, as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):

Heimeshoff's disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.

That can be tough, given the fact that it's possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it's even possible in some cases that the three years would run out before the claimant got a final denial.

Hartford has a simple response, which is that ERISA plans usually get enforced the way they are written.

There's really no statutory text that's much help.

The petition for certiorari points out that lower court have adopted three conflicting approaches to answer the question of accrual:

(1)   A plan’s statute of limitations cannot begin running until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination (Fourth and Ninth Circuits);

(2)   A plan’s pre-denial statute of limitations is enforceable if “reasonable,” as determined on a case-by-case basis (Second, Sixth, Seventh, Eighth, and Tenth Circuits);and

(3)   The plan must notify the claimant of the time limits for judicial review, in the SPD and adverse determinations, in compliance with ERISA regulations; and if it does not, the court will not allow the plan to assert the plan’s limitations defense or will equitably toll the limitations period (First Circuit and a District Court in Second Circuit).

I don't see any clear path for the Court on this one.

Also see Argument preview: When can an ERISA limitations period start to run? at SCOTUSblog.

I agree wth Ross that this area of ERISA law is a mess. The ERISA written plan requirement rule suggests that the plan administrator follow the terms of the plan as written, but to do so, at least conceivably in some cases, the administrator could drag their feet and wait for the statute of limitations to run before finally deciding the internal appeal and thereby prevent the employee to ever file a benefits denial claim in court.

Equitable tolling might be one way with dealing with the potential unfairness of the rule, but its implementation would also be messy.  Also, it is unavailing to say with a straight face that plan administrators and employee should be bound by terms of the plan because if the employee wanted a different type of SOL they could just bargain for it.  Everyone knows that employees don't bargain over plan language. They are classic adhesion contracts, presented on a take-it-or-leave-it basis.

To me, the best rule would be to start the SOL to run once the internal administrative process has been finalized and the employee is free to sue in court. This approach has the advantages of both providing a clear point when the SOL starts to run, plus provides incentive for the plan administrators to complete claims processing as quickly as possible.

No predictions on this one, folks, but I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations which will further undermine employee rights under ERISA.

PS

October 15, 2013 in Beltway Developments, Commentary, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed

Harris-FreedmanI am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications.  PS

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.

This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics.  In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.

HF

Death of an Adjunct Sparks Discussion on

the Challenge of Precarious Employment in Higher Ed

 

This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance.  At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union.  The NLRB rejected the university’s position, and Duquesne has appealed.  Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.

 

The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities.  The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s  - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.  

 

In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions.  In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.

 

What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets. 

September 25, 2013 in Commentary, Labor Law, Teaching, Union News, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Monday, September 2, 2013

Take That, You Tax Types (aka Labor Day Factoid)

Newimage

Don't ask me why I was reading (OK, skimming) an SSRN piece entitled Measuring the Complexity of the United States Code, but it had 400+ other downloads, so I wasn't the only one with nothing better to do on a rainy day at the Shore. The authors purport to create a empirical framework for "measuring relative legal complexity;" their approach is called "knowledge acquisition,"  which "can take into account the structure, language, and interdependence of the law." Got that?

They then apply their measure to the U.S. Code. and it's here where you can one-up those insufferable tax types who claim their specialty is incredibly complicated.  According to the authors, Title 42 ranks as "most complex." Admittedly, Title 26 comes in second, but employment scholars also have to deal with Title 29, which comes in 6th.

Indeed, it's worse than that for tax. Those rankings are "normalized"; the authors also report "unnormalized" rankings, with Title 42 still at the top but Title 26 falls all the way to 9th. ("Normalized"rankings account for size of Title).

In case you're wondering, Title 9, arbitration comes in dead last in the normalized category as the simplest of the titles. Which makes the Supreme Court's 317 encounters with the topic even more perplexing. (Empirically speaking, I didn't actually count the case but it sure feels in that vicinity).

I suspect that there will be quibbles from the tax types and als0-rans re the methodolgy (aren't there always?). And some carpers will undoubtedly point out that 42 has a lot of stuff in it other than discrimination. But, really, doesn't this study merely confirm what all Workplace Prof readers already know -- our field is the most challenging?

CAS

September 2, 2013 in Commentary | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 28, 2013

Connolly on Victimless Harassment - UK Style

Connolly Michael 1Friend of the blog, Michael Connolly (University of Surrey (UK)), having reading Charlie's post from this past Monday on Battaglia v. UPS on "victimless harassment," brings to our attention a similar case from England.

Here's Michael's summary of that case:

Reading the note on Battaglia v. UPS reminded me of a case held here in England some years’ ago. The issue in English v Sanderson [2008] EWCA 1421 was whether someone could be liable for harassment ‘on the grounds of’ sexual orientation, under the UK’s Regulations outlawing harassment and discrimination on grounds of sexual orientation, when the treatment was unrelated to any particular person’s sexual orientation.

In this case, Mr. English was harassed by colleagues using sexual innuendo suggesting he was homosexual. This conduct was rooted, apparently, in two things: he lived in Brighton (a well known centre of the gay scene) and had attended boarding school. What made this case unusual is that Mr. English was heterosexual, and his tormentors neither assumed nor perceived Mr. English to be gay. Mr. English was aware throughout that his tormentors never mistook him for being homosexual. The Court of Appeal, by a 2-1 majority, found that the mockery amounted to unlawful harassment on the grounds of sexual orientation.

Quite clearly, the phrase ‘on the ground of sexual orientation’ lends itself to cover the scenario where the harassment was unrelated to any person’s sexual orientation. As Sedley LJ observed, the distance between perceived harassment (unlawful) and harassing a man as if he were gay when he is not ‘is barely perceptible’ ([38]). However, policy considerations were prevalent in the speeches. The underlying policy consideration here is to protect homosexual (or bisexual) workers from being ‘outed’ by a systematic campaign of abuse. In such a pernicious scenario, the worker would have to suffer the abuse in silence unless or until he ‘came out’. As such, this decision helps preserve the dignity of workers that discrimination law is supposed to enshrine.

Very interesting indeed, Michael, in light of Battaglia case (and because this case concerns a Mr. English from England!). Thanks for brining a comparative gloss to this timely topic!

PS

August 28, 2013 in Commentary, Employment Discrimination, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Shout Out to Chaumtoli Huq's New Law at the Margins Blog

Chaumtoli-Huq-web2Thanks to Chaumtoli Huq (New York Law School) for introducing her Law at the Margins Blog to us.  Today's post is entitled: Labor's Renaissance:  Bold Organizing and Partnerships Needed in the New Economy.

Here is an excerpt from that post:

How might we structure the inclusion of worker groups into a new labor movement by expanding legal protections without squashing the same radicalism that promises to reinvigorate the labor movement? . . . .

[F]or the labor movement to experience a full renaissance, it must understand the features of the new economy, and restructure our state and federal labor laws such that it maximizes worker participation and allows for innovative organizing techniques long used by worker centers to flourish.

If you are interested in this blog, or labor issues generally, you can follow Chaumtoli on Twitter @lawatmargins or join Law@theMargins Facebook page.

According to Chaumtoli, Law@theMargins uses social media as a dynamic platform from which to highlight the ways laws and legal institutions expand or limit the social justice aspirations of people and communities. Inspired by feminist theorists like bell hooks, the site seeks to make both activist and theoretical interventions to social justice issues in hopes to create a space to inspire alternate discourses on law and social justice.

Once a month, Chaumtoli hopes to feature original guest posts, so if any readers of the Workplace Prof Blog would like to submit a piece, she would welcome such contributions.  The criteria is that the post should highlight an area that is not covered in mainstream discourse. Think Critical Legal Studies meets the Labor Law/Social Movement Theory on blogs.  Chaumtoli can be reached at chaumtoli.huq@nyls.edu.

Welcome to the blogosphere, Chaumtoli, and we wish you much success on this worthwhile endeavor!

PS

August 28, 2013 in Commentary, Faculty News, Labor Law | Permalink | Comments (0) | TrackBack (0)