Monday, January 13, 2014
My former colleague at the NLRB, and current National Education Association staff counsel, Jason Walta, let me know that the NEA is hiring for staff counsel. You can get all the info here [Download OGC Staff Counsel 2014]. The basics:
NEA seeks an experienced attorney to join the team in the NEA Office of General Counsel. The NEA Office of General Counsel works on a diverse array of legal matters to advance NEA’s overall mission including litigation, regulatory and advocacy matters. . . . Applicants for the NEA Staff Counsel position should be interested in a position involving both substantial litigation and in house advice and counsel work. . . . [A]pplicants should be experienced and adept at resolving the array of legal issues that an in house counsel operation must handle, ranging from providing legal advice in ongoing organizing, legislative and coalition efforts, to resolving disputes with vendors and providing advice on contract terms and arrangements. We are looking for an experienced attorney who is interested in working collaboratively in a congenial environment to craft and pursue creative litigation and advocacy strategies to advance the interests of NEA and its members.
- J.D. from an accredited law school required.
- Six or more years of legal practice, including experience as a senior staff counsel, partner, or litigator.
- Excellent oral and written advocacy skills including public speaking skills and appellate brief writing.
- Substantive knowledge of, and practice in, federal and state labor and employment law, federal and state constitutional law, and an ability to serve as a generalist providing advice and counsel on general operations matters as needed.
- Ability to perform complex legal analytical work.
- Demonstrated ability to work independently as well as within a team.
- Self-motivated and able to manage a variety of tasks concurrently.
- Demonstrated creativity in crafting innovative legal strategies to advance the interests of workers and their representatives.
- Ability to work in a fast-paced environment, managing litigation independently and with expertise.
- Ability to collaborate and work in a collegial environment.
- Desire to participate as a key player in developing and litigating cases to move forward the cause of public education and the interests of NEA members and affiliates.
- Strong analytical, interpersonal, and communication skills.
- Healthy respect for colleagues, employees, and superiors.
- A sense of humor.
To Apply: Please forward a letter of interest in the NEA Staff Counsel position, your salary history or salary requirement, a resume and two recent significant writing samples to Kelli Brown at email@example.com or Kelli Brown, NEA Office of General Counsel, NEA, 1201 16th Street NW, Washington DC 20036. References are required of all candidates.
The National Education Association is an equal opportunity/affirmative action employer and encourages women, minorities and persons with disabilities to apply.
The Supreme Court heard arguments in Noel Canning today. I don't have the transcript yet, but based on several reports, the NLRB recess appointments are looking like they will be struck down. That's not a big surprise. What's really in question is how the Court will strike them down. I still hold out hope that they will limit themselves to the pro forma recess issue, and SCOTUSBlog's summary gives some reasons to think that could happen. However, it also notes reasons to think that the Court might go further and adopt some or all of the D.C. Circuit's broad, textualist approach.
One thing I haven't heard being discussed was the possibility of declining jurisdiction under the political question doctrine. I've raised this as a possibility, but I haven't seen anything suggesting it's gained any traction, much less got any mention today. Let me know if you've heard otherwise.
Hat Tip: Patrick Kavanagh
Thanks to Stephen Diamond (Santa Clara) for bringing to my attention an interesting series of upcoming events. Santa Clara University School of Law's Center for Social Justice and Public Service is sponsoring a series of Spring Workshops entitled: Law and Labor in the Field.
The first workshop is January 30th and the last is March 27th. For the full schedule and program details, see here. Among the participants are Bill Gould (Stanford), Maria Ontiveros (San Francisco), and Ruben Garcia (UNLV).
The Workshop will be led by Stephen and will examine the relationship between legal institutions and farm labor in California, the United States and globally. Each session begins at 4:05 pm, Bannan 333, SCU School of Law, 500 El Camino Real, Santa Clara, CA 95053. Reception follows. Public welcome.
Wednesday, January 8, 2014
Feuer on Questions of Justice and Law Raised When an Employee Benefits Plan Beneficiary Strangles His Grandmother, the Participant, to Death
On what might already have won best title of the year for a paper, Albert Feuer has a new piece out entitled: Questions of Justice and Law Raised When an Employee Benefits Plan Beneficiary Strangles His Grandmother, the Participant, to Death, 32 Tax Management Weekly Report 1756, 12/23/2013.
The following is a brief summary provided by Albert:
A recent New York Daily News story, “NYC Law Firm Files Suit to Bar Slain Employee's Killer from Collecting on 401(k),” describes a heinous crime, and suggests the crime was compounded by foolish employee benefits law that may permit the slayer to keep the death benefits. My article responds that the so-called slayer rule that deprives a slayer of a plan participant of the participant’s death benefits may lead to injustice in some cases. Moreover, I argue that ERISA allows state criminal law to deprive the slayer of such benefits, but does not allow state non-criminal law to deprive the slayer of such benefits, and adherence to the slayer rule may create tax qualification issues for pension plans.
Another interesting, pulled-from-the-headlines piece by Albert involving the intersection of the real world and ERISA. Check it out when you have the chance.
Tuesday, January 7, 2014
Friend 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.
Monday, January 6, 2014
Today, the NLRB announced that it will not seek Supreme Court cert. for its notice posting rule. Two circuit courts had struck down the rule, one of which was largely on extremely broad First Amendment grounds, so there was a chance that, even if not a full victory, the NLRB could have narrowed its loss. For whatever reason, the NLRB blinked. From the announcement:
The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.
The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.
The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.
I'm not going to lie: I'm disappointed that the NLRB didn't bring this to the Supreme Court. I understand that they thought their chances of winning is slim. However, I do think there was value in challenging the D.C. Circuit's incredibly broad rule. Of course, that's easy for me to say . . . .
The New Jersey Appellate Division just handed down a troubling opinion that, if not corrected or at least clarified on appeal, has the potential to provide employers with massively greater leverage in dealings with their employees. What is even more remarkable is that State v. Saavedra was decided in a state that is generally pretty permissive with respect to the actions employees can take in pursuing claims under its antidiscrimination and antiretaliation laws.
As the caption suggests, Saavedra is a criminal prosecution, with the defendant having been indicted for “official misconduct” and theft. Her sin was taking a number of documents from her employer, the North Bergen Board of Education, for possible use in her civil suit for discrimination and for retaliation in violation of the New Jersey Conscientious Employee Protection Act. In a nutshell, defendant took hundreds of documents from the Board; her attorney in her civil case against the Board used some of them during the discovery phase of the suit. When her attorney then turned over the documents to Board attorney in the civil suit, that attorney notified the Board's general counsel “who brought the matter to the attention of the Hudson County Prosecutor, who determined that the matter should be presented to a grand jury.” Indictment followed.
Some of the documents contained sensitive information about students, parents, and Board financial dealings (including a parent’s bank statement and a list of students to be seen by a school psychologist). The opinion suggested that the Board could suffer legal liability from the disclosure of such information. But, unlike, say, Erik Snowden, Ms. Saavedra apparently did not publish the documents and appeared not to share them with anyone but her attorney.
The Appellate Division upheld the indictment, and I confess to lacking the expertise to analyze the criminal aspects of this case, although I remain skeptical that any employee who removes documents from a workplace is guilty of theft and, if it is a public workplace, guilty of criminal “official misconduct.” I note that the plaintiff had a pretty low level position, but “official” for purposes of the statute seems to mean only that the defendant is a public employee. The court also had no difficulty with finding that an intent to use the documents to further her civil litigation satisfies the “personal benefit” element of the offense. These conclusions mean that most, if not all, New Jersey public employees face the risk of criminal charges for similar conduct
It is possible that I’m being too harsh, however. First, the Board apparently had a policy in place and employees were trained regarding appropriate use of such documents, so, contrary to the defense attorney’s claim, this wasn’t exactly like someone taking work home. Second, some documents appear to have been originals, and the court refers to evidence that defendant had purposes other than using the documents in support of her civil suit, including “disrupt[ing] the psychiatric treatment of students with special needs,” and exposing the Board to liability. How persuasive that evidence might be is another question, but the possibility may take Saavedra out of the garden variety claims of employees “purloining” employer documents.
What’s surprising about the case is that New Jersey has been especially protective of employees who engage in self-help to document claims under its Law Against Discrimination or its Conscientious Employee Protection Act. While the federal courts would likely hold that firing an employee for stealing documents is not actionable retaliation under, say the antidiscrimination laws, e.g., g., Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253 (4th Cir. 1998) (taking documents from supervisor’s desk not protected under Title VII); cf Niswander v. Cincinnati Insurance Co., 529 F.3d 714 (6th Cir. 2008) (balancing employee and employer interests), New Jersey engages in a much more nuanced analysis.
As I’ve blogged before on Workplace Prof, in Quinlan v. Curtiss Wright. the New Jersey Supreme Court there dealt with an employee who copied 1800 pages of documents and provided them to counsel before he filed suit. When the employer learned of the conduct, it fired her for theft, and when she filed a retaliation claim, it argued that her misconduct justified the discharge.The New Jersey Supreme Court split the difference, essentially rejecting the company’s argument that such conduct necessarily justified discharge but in the process producing a multi-factor test for determining whether such conduct is protected, including:
- whether the employee came upon the documents "innocently"
- whether the employee went beyond sharing them with her attorney to evaluate her claim
- the nature of the documents, including the strength of the employer's interest in confidentiality
- whether the disclosure was disruptive
- the strength of the employee's reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).
Saavedra, then, had to confront the significance of Quinlan for a criminal proceeding implicating similar employee “theft,” and it found that decision largely irrelevant. It rejected any need for the trial court to apply a Quinlan analysis in deciding whether to dismiss the indictment (although the trial court had covered its bases by suggesting that such an analysis wouldn’t help defendant).
Accordingly, the Appellate Division rejected defendant's argument that “Quinlan essentially prevents the State from introducing evidence before the grand jury that demonstrates a prima facie showing that defendant ‘unlawfully t[ook], or exercise[d] unlawful control over’ the documents. Quinlan did not establish a bright-line rule that automatically entitled defendant to take the Board's highly confidential original documents.” Saavedra cited language from Quinlan stressing the risks of self-help for an employee since a subsequent court may not find her conduct protected.
The one ray of hope for defendant was the possibility that Quinlan may come in by the backdoor later in the proceedings. Defendant had made an “honest error” argument, which the court said “amounts essentially to a claim of right defense.” Under New Jersey law, a defendant may defeat a charge of theft by asserting a defense that she acted “under an honest claim of right to the property ... that [s]he had a right to acquire or dispose of it as [s]he did.” Presumably Quinlan is the basis for an honest claim of right – regardless of whether she actually satisfied the multi-factor analysis. Such a defense, however, operates at trial, not to justify dismissing an indictment, so defendant has to face a criminal trial to assert this defense.
The prospect of prosecution alone, even if an “honest error” defense is available or conviction is otherwise unlikely, would strike many as enough to chill potential LAD and CEPA plaintiffs. But the Saavedra court showed little patience with this argument. “Defendant implies that prosecuting her for theft and official misconduct is against LAD's public policy of rooting out discrimination in the workplace. This implication amounts to a request that we hold it is against public policy to criminally prosecute employees for taking employer public documents.” So framed, the argument was rejected.
That argument, however, resonated with dissenting Judge Simonelli, who would have dismissed “in the interests of justice” largely because
[i]t is fundamentally unfair to criminally prosecute and imprison an individual for theft, and official misconduct, for taking or copying confidential employer documents while engaged in protected activity pursuant to the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination. The law gives no fair warning the conduct is illegal.
(citations omitted). As the last sentence suggests, the dissent relied on Quinlan to undercut whatever fair warning the New Jersey criminal statute might otherwise have provided of the impermissibly of defendant’s conduct.
It’s easy to dismiss Saavedra as a sport case brought by an overzealous county prosecutor. And, of course, the “official misconduct” charge is limited to public sector employees. But the theft charge is applicable to any employee, and the possibility that a vindictive employer would try to persuade a prosecutor to indict an employee who took company documents would certainly chill such conduct. While there is only a trickle of instances to date, Saavedra is only one of several criminal prosecutions of employees for taking documents to prove discrimination or public policy claims.
Plaintiffs’ counsel in New Jersey may well have to reconsider normal advice to clients to “gather evidence”! And what about the client who arrives at your office with a briefcase full of documents, proud of the information she has amassed? Is the best advice now to tell her not to bring suit – no matter how valid the claim – because of the risk of criminal charges? Of course, the risk that a prosecutor will indict is probably very small, but Saavedra renders it more than a logical possibility.
I also remain confused about exactly what constitutes theft of the documents. The court seemed worried more about the potential use of the information reflected in the documents, not merely about the taking of the physical objects (although its reference to defendant taking originals might suggest an intent to sabotage the operations of the Board, but that would seem to be relevant to the official misconduct charge, not the theft “of moveable property” that was charged).
Suppose the defendant, rather than taking originals or using Board paper to make copies, downloaded a PDF copy or took images with her smartphone? And what about electronic “copies” of electronic communications or files, including emails (say, for example, forwarded from one’s work email address to her personal account or copied into a Word document)? What about taking verbatim notes on the content of the paper or electronic documents? What about simply sharing the content (orally) with one’s attorney? The state’s statutes define theft to include “trade secrets,” N.J. Stat. Ann. § 2C:20-1 (g), but the charged offense was theft of “moveable property,” a strange concept in this situation
The point is that if the crime – that is, the theft -- is the taking of the content, not the paper, and sharing it with one’s attorney when contemplating suit, then this case has truly staggering implications, well beyond the particular facts or even LAD and CEPA. On that, at least, it seems there must be substantially greater clarification. Or am I reading too much into this?
Thanks to Kathleen Boozang and Tim Glynn for helping me think through some of the implications of the case.
Thursday, January 2, 2014
Today, Fiat announced that it was buying Chrysler. Under the deal, which followed signficant negotiations, Fiat will pay $4.35 billion to the UAW retiree health care fund, which had owned part of Chrysler since it left bankruptcy under the bailout of the auto industry in 2009. This amount is far less than Daimler-Benz spent in 1988 ($36 billion) and Cerberus in 2007 ($7.4 billion).
No word on the extent, if any, that the new ownership will affect labor relations, so stay tuned.
A few years ago, the EEOC got socked with a number of penalties in pattern and practice cases for failing to conciliate on behalf of all potential claimants. In EEOC v. CRST, the District Court for the Northern District of Iowa penalized the EEOC with $4.5 million in attorneys fees, which the Eighth Circuit reduced, and in EEOC v. Cintas, the District Court for the Eastern District of Michigan granted Cintas $2.6 million in attorneys fees for a similar issue. In other cases, the courts dismissed the claims, allowing a failure to conciliate defense, or at least assumed that such a defense would be available. The full list is: EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996); EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984); EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981); EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir. 1979); EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978).
A couple of weeks ago, the Seventh Circuit found the opposite. In EEOC v. Mach Mining, the Seventh Circuit held that there was no implied failure to conciliate defense in Title VII. In its own words, the Seventh Circuit split with the other circuits to find such a defense because:
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 and 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).
It's possible that this could pave the way for the Supreme Court to weigh in, or start a trend winnowing away the defense in other circuits. We will have to see.
Monday, December 30, 2013
For many years, Texas has been the only state that permits employers to opt out of workers compensation. Peter Rousmaniere (workers comp columnist and consultant) and Jack Roberts (former EIC of Risk & Insurance) have put together Workers' Compensation Opt-Out: The Texas Experience and the Oklahoma Proposal. It's worth checking out.
The EEOC has issued the EEOC Women's Work Group Report addressing major obstacles hindering equal opportunities for women in the federal workforce. The report, prepared by an internal agency work group, is based on in-depth research and widespread consultations with key stakeholder groups representing working women, as well as other affinity organizations.
Following are the six obstacles identified in the EEOC Women's Work Group Report:
- Inflexible workplace policies create challenges for women with caregiver obligations in the federal workforce.
- Higher-level and management positions remain harder to obtain for women.
- Women are underrepresented in the science, technology, engineering and mathematics fields in the federal workforce.
- Women and men do not earn the same average salary in the federal government.
- Unconscious gender biases and stereotypical perceptions about women still play an important role in employment decisions in the federal sector.
- There is a perception that federal agencies lack commitment to achieving equal opportunities for women in the federal workplace.
Friday, December 27, 2013
We normally keep posts on this blog strictly on the topic of labor/employment law, but this topic -- more generally applicabile to higher educators generally -- was too good to pass up. Over at Psychology Today, Mitchell Handelsman (U. Colorado - Denver - Psych.) asks Carl Pletsch (U. Colorado - Denver - History) how he handles gunners. Here's his response:
If the student seems prepared and focused on the topic of the day, I might say something like, “I appreciate your willingness to contribute to our class discussion! But I want to challenge you to take your participation to the next level. Next class session, see if you can make a comment that addresses what another student has said, naming him or her, and showing that you are interested in what other students may be thinking. OK?” I emphasize that this is a skill, taking participation to a higher level.
If the student seems generally ill-prepared, making comments that actually divert attention from the topic of the day’s session, I might still praise him or her for participating, but my challenge is for the student to come with comments on the reading next time, and to be prepared to refer to passages in the text to support the comments.
In the following sessions I’ll notice whether the student merely disagrees with another student, or whether he or she says something complimentary. I can then revise the challenge to include the idea of saying something constructive that builds on another student’s comment.
If this works, I praise the student and suggest the next level of challenge: “Can you listen to the discussion until you have heard enough to discern a relationship among several students’ comments? Then you might try to make a comment that compares or relates several other contributions.” Again I suggest giving credit to others by name.
My primary goal is to make the whole classroom safe for everyone to participate, but by challenging the loquacious students I am also encouraging them to develop new skills that may serve them well in life. I try not to discourage students from participating, but to channel their energy in more constructive ways—ways beneficial to both the class and to the students themselves.
Wednesday, December 25, 2013
Charlotte Garden (Seattle) and Matt Bodie (SLU) write to tell us that a group of labor law professors is submitting an amicus brief in support of the union and state respondents in Harris v. Quinn, currently pending before the U.S. Supreme Court. As many of you may know, the case is about whether Illinois may allow certain home health care workers to elect a union as their exclusive representative and require represented workers to pay an agency fee.
If you would like to see a copy of the brief in order to decide whether you would like to sign on to it, please contact Charlotte at firstname.lastname@example.org by Saturday, Dec. 28.
Friday, December 20, 2013
Steve Cohen (Labor Management Advisory Group) has posted the first in a series of articles at Psychology Today about transgender individuals in the workplace. The transgender population, he says, "is the next frontier in social justice". He points out that transgender employees who come out are worried not just about discrimination, but about rejection. See Fairness in the Employment Setting Can Be Everything.
Mike Zimmer (Loyola - Chicago) just posted on SSRN his article (forthcoming U. Chicago Legal Forum) Title VII's Last Hurrah: Can Discrimination Be Plausibly Pled?. Here's the abstract:
The Roberts Supreme Court appears to be somewhat schizophrenic in how it approaches antidiscrimination law. One recent decision, Ricci v. DeStefano, involves a potentially expansionist development making proof of intent to discriminate, a key element in most antidiscrimination cases, simply a question of fact of whether the employer was aware of the racial (or gender) consequences of its action. Other decisions push Title VII cases out of court into arbitration, further complicate procedural law and diminish the scope of substantive protections of the law, thereby making Title VII cases that remain in court more difficult to bring as class actions or to advance even individual cases beyond the pleading stage of litigation. Given the breadth of the onslaught against a robust antidiscrimination jurisprudence, it appears likely that the thrust limiting antidiscrimination law will win out over the alternative expansionist approach that would follow the application of Ricci to disparate treatment discrimination cases beyond “reverse” discrimination claims. If that is true, the Supreme Court will be bringing to an end the availability of Title VII to help redress our society’s longstanding and continuing problems of employment discrimination.
This paper argues for the extension of the simplified proof standard of what constitutes intent to discriminate and for the acceptance at the pleading stage of discrimination cases of social science research, including implicit bias studies, that show why discrimination persists. Establishing a more realistic set of background assumptions about that persistence would assist judges making the plausibility finding necessary for discrimination claims to survive motions to dismiss. These two paths seem to be what the Court has so far left open so that the antidiscrimination project can continue to have some life.
Tuesday, December 17, 2013
Here is information about a timely symposium at Berkeley Law on mandatory predispute arbitration in the workplace, a trend that has taken off with all the recent pro-arbitration Supreme Court opinions:
Please join The Employee Rights Advocacy Institute For Law & Policy (The Institute) and the Berkeley Journal of Employment and Labor Law (BJELL) on February 27, 2014 for Forced Arbitration In The Workplace: A Symposium at the University of California, Berkeley School of Law (Boalt Hall).
Convened by The Institute in collaboration with the Berkeley Journal of Employment and Labor Law, the Symposium is designed to bring together academics, practitioners, and others in the legal community to engage in a thoughtful dialogue and help raise awareness about forced arbitration of workplace disputes. Articles from the Symposium will be published in BJELL’s Spring 2014 issue.
Program highlights include a keynote address by former Secretary of Labor Robert B. Reich, the Chancellor’s Professor of Public Policy at the University of California, Berkeley.
Monday, December 16, 2013
Over the last several years I frequently have found myself explaining at-will employment to law faculty/students in foreign countries who are incredulous at how little protection American law provides to employees. Now, I'm writing an article for a non-American audience, and I want to make the point that under the at-will rule, employees legally can be fired for bizarre or idiosyncratic reasons. If you have illustrative examples of cases that help illustrate this, please leave a comment. I'd love to collect some good examples to help illustrate the point.
Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.
This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.
Let's just hope that judges don't get any de minimis ideas about sex discrimination.
Unanimous Supreme Court in Heimeshoff Permits Contractually-Based SOLs in ERISA Denial of Benefit Cases
This morning, the United States Supreme Court issued its decision in Heimeshoff v. Hartford Life & Accidental Life Ins. Co., concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA.
The Court unanimously held that Hartford's Long Term Disability Plan's requirement that any suit to recover benefits be filed within three years after “proof of loss” is due is enforceable. More specifically, "[a]bsent a controlling statute to the contrary, a participant and a plan may agree by contract to a particular limitations period, even one that starts to run before the cause of action accrues, as long as the period is reasonable." Causes of action for benfit under ERISA do not start to accrue until a final internal appeal decision. Because Heimeshoff failed to file a claim for long-term disability benefits with Hartford within the contractual SOL period, the Court concluded her claim was rightfully denied by Hartford.
While ERISA does not provide a statute of limitations for denial of benefit claims, many plan administrator have in place a contractual 3-year limitations period like Hartford's. Writing for the unanimous Court, Justice Thomas held the Plan’s limitations provision enforceable under the rule set forth in Order of United Commercial Travelers of America v. Wolfe, 331 U. S. 586, 608, which provides that a contractual limitations provision is enforceable so long as the limitations period is of reasonable length and there is no controlling statute to the contrary. This conclusion was especially supported, according to the Court, by the ERISA principle that contractual limitations should be enforced as written under ERISA's written plan rule.
There may still be limitations in place in the future to finding these contractual SOLs valid. If the limitations period is unreasonably short or if there is a controlling statute to the contrary, the Plan’s limitations provision can be overridden. Moreover, the Court held that courts are well equipped to apply traditional doctrines, such as waiver or estoppel and equitable tolling that nevertheless may allow participants to proceed on stale claims. However, consider in this regard Heimseshoff in light of U.S. Airways vs. McCutcheon.
Although Heimeshoff says traditional equitable doctrines may circumscribe application of statutes of limitations to protect participants, McCutcheon said plans can include terms that explicitly preclude application of traditional equitable doctrines. So does this mean that employers will quickly amend their plans to preclude application of equitable doctrines? It very well could be the case.
Here, in any event, the period was not unreasonably short and, in fact, most internal benefit appeals are completed within one year so that there should be sufficient time for most ERISA plaintiffs to bring their suit in a timely manner. Even Justice Ginsburg remarked in oral argument that there might have been essentially legal malpractice in this case in that Heimeshoff's attorney may have failed to diligently pursue her claim (she had about a year to file her case even after her internal appeal had been finally denied).
Although this decision may not be that important in the long-run as there is not much evidence that plan administrators have used these SOLs to prevent participants to bring claims, the one part of the decision that seemed fanciful to me was this idea that plan participants and beneficiaries "agree" with their plans to these SOLs. The Court said this with regard to this critical aspect of the case: "the parties have agreed by contract to commence the limitations period at a particular time."
As I wrote previously when oral argument occurred in this case in October, benefit plans are classic contracts of adhesion with usually no bargaining between the parties taking place. It is legal fiction to say that most participants consented to this provision. Nevertheless, it is hard to argue, under the circumstances, that this unilateral term is unreasonable, as long as equitable principles and regulations exist to prevent plan administrators from gaming the system to prevent judicial review of claims decisions. Whether such equitable principles will continue to exist, however, post-Heimeshoff and McCuthcheon is anyone's guess but I am skeptical.
Somwhat called this case. Here is what I wrote in October: "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."
According to Fedscoop, Seth Harris, Deputy Secretary of Labor for the last four-and-a-half years is stepping down to return to teaching, writing, and practice. Seth had been at NYLS before his appointment, but according to BNA's Daily Labor Report (241 DLR A-5), he will be remaining in the DC area. Thank you for your great work, Seth, I hope the DOL continues to benefit from your voice, and keep us all posted on your plans.
h/t Susan Bisom-Rapp (Thomas Jefferson)