Monday, December 16, 2013
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Really interesting work.
Friday, December 13, 2013
Today, the United States Supreme Court granted certiorari in a case where the 6th Circuit found that a company may have breached its fiduciary duties under ERISA by continuing to offer company stock as a retirement plan investment option even after the value of the stock plunged.
The case is Fifth Third Bancorp v. Dudenhoeffer, No. 12-751 (don't ERISA cases have the best names?) and here is the decision below in the 6th Circuit. SCOTUSBlog says the case is likely to be heard in March. The Solicitor General had urged the Court to hear the case.
The issue is whether courts should apply a presumption of prudence or reasonableness (sometimes called the Moench presumption based on a similar case by that name in another circuit court) when a company, like Fifth Third, decides to retain investments in its own securities for its ESOP (employee stock ownership plan) when the stock's price dropped 74 percent because of the company's involvement in subprime mortgage lending. The employees in the retirement plan claim they were never alerted to the company's new riskier investment course.
Participants in Fifth Third's ESOP filed an ERISA class action, asserting that the company's actions violated their fiduciary responsibilities to plan participants and beneficiaries by imprudently investing in company stock. Initially, the U.S. District Court for the Southern District of Ohio had determined that Fifth Third did not violate ERISA because plan fiduciaries are entitled to a “presumption of prudence” permitting investment in their own stock and the plaintiffs had not overcome that presumption by showing that the company had plausibly abused their discretion in investing the ESOP money in the company stock.
The participants appealed to the 6th Circuit, supported by an amicus brief by the Department of Labor (DOL). The DOL maintains that the presumption of prudence should not apply and that plaintiffs had plausibly alleged a breach of fiduciary duty. The 6th Circuit agreed, at least as far as holding that the presumption should not be applied at the pleading stage of the lawsuit.
The 6th Circuit also held that Fifth Third acted as an ERISA fiduciary when it incorporated its Securities and Exchange Commission (SEC) filings into the ESOP's plan documents. The Court did not take cert. on a challenge to this finding.
The case law had been trending in favor of the presumption of prudence in these stock-drop cases in recent years, with the Sixth Circuit being a notable exception. It is always hard to predict where the Court will come out on ERISA fiduciary cases, but given that the Court granted cert. on the question as presented by the company (and did not re-write the question as requested by the Solicitor General), we may gain some insight. The question presented is:
Whether the Sixth Circuit erred by holding that respondents were not required to plausibly allege in their complaint that the fiduciaries of an employee stock ownership plan abused their discretion by remaining invested in employer stock, in order to overcome the presumption that their decision to invest in employer stock was reasonable, as required by the Employee Retirement Income Security Act of 1974 . . . and every other circuit to address the issue.
Phrasing the question presented in such a leading manner suggests only one possible reasonable answer upholding the presumption of prudence in ERISA stock drop cases. But we shall see.
AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law 2013 Newsletter
Thanks to Jason Bent (Stetson) and Brad Areheart (Tennessee) for sending us the combined AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law 2013 Newsletter.
From the Introduction:
The AALS Section on Employment Discrimination and the AALS Section on Labor Relations and Employment Law once again worked together to produce this year’s annual AALS Newsletter. This newsletter begins with a list of relevant AALS presentations. It continues with a list of new hires, promotions, moves, administrative appointments, visits, honors and awards, followed by a list of publications from the members of both sections. The newsletter concludes with a roundup of recent Supreme Court decisions in the area of employment law, prepared by members of the section.
Check it out and see what all of your LEL law prof friends have been up to this past year and what great panels are planned for the upcoming AALS January conference. Hope to see many of you in New York at AALS!
Early yesterday morning, Chai Feldblum was re-confirmed to another 5-year term at the EEOC. Congratulations, and great news for the EEOC, which will remain fully staffed. Chai has been a great resource for the Commission, having been instrumental in negotiating the ADA and ADAAA, an expert on ENDA, and a voice for cooperation and public outreach with Commissioner Lipnic.
1. New Book Volume: Labour Law and Industrial Relations in Recessionary Times. The Italian Labour Relations in a Global Economy, edited by Michele Tiraboschi, Cambridge Scholars Publishing - ADAPT Labour Studies Book Series.
This volume includes a number of papers written in English and published in the last fifteen years in which the Italian labour market underwent many changes. The intent here is to provide the international readership with a frame of reference - in both conceptual and legal terms - that helps to appreciate current Italian Labour Law.
2. Internships: In 2014, ADAPT will commence another selection procedure involving international students and recent graduates in law, economics, sociology and languages to undertake internships or research periods lasting 3 to 6 months in Bergamo (Italy).
Selected candidates will be involved in numerous ADAPT international projects and they will be offered a reimbursement of expenses - the amount of which will vary depending on their age and previous experience - as well as accommodation in our guest apartment in the upper town of Bergamo.
Those interested in undertaking an internship or research period at ADAPT may send their CV/resume and cover letter to: firstname.lastname@example.org.
3. New Bulletin: new Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published in the last two weeks.
The bulletin includes three commentary notes: "The New Deal for Apprenticeship in England and USA" by Alfonso Balsamo, "The Internationalisation of Education: Causes and Effects" by Alessandra Sartore and "Understanding regulations for small and medium-size enterprises (SMEs)" by Meysam Salimi, all from the International doctoral school in Human Capital Formation and Labour Relations promoted by ADAPT and CQIA (University of Bergamo).
Sam Estreicher (NYU) has brought to our attention a draft of a paper, emanating from the text of his remarks at the University of Minnesota Law Review Symposium on the Future of Organized Labor this past fall, entitled: Easy In, Easy Out: A Future for U.S. Workplace Representation.
Here is the Introduction:
This paper proposes an amendment to our basic labor laws that I call “easy in, easy out.” Essentially, representation elections—secret-ballot votes to decide whether employees want union representation and whether they want to be represented by the particular petitioning labor organization(s)—in relatively broad units, would, over time, become automatic. Every two years (unless the union achieved a collective bargaining agreement, in which case every three years) the employees in the unit would have, after a required showing of interest, an opportunity to vote in a secret ballot whether they wish to continue the union’s representation, select another organization, or have no union representation at all. Petitioning labor organizations and employers would be required to share certain specified information, in electronic form, with the voting employees. The theory is to make representation elections more like general political elections, to make it easier to vote in a union (if that is the employees’ preference), and to vote the union out if the employees no longer believe the bargaining agent is accountable to them or worth the dues they pay. Other aspects of the labor laws would continue unchanged.
This is clearly a provocative proposal and one that is likely to have supporters and detractors alike. For his part, Sam does admit this is somewhat of a quixotic enterprise, given the current state of American labor law. Nevertheless, the paper offers an interesting mixture of labor law theory, comparative analysis, and out-of-the-box thinking, and all should give it a read.
Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.
Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.
A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.
Tuesday, December 10, 2013
Today, the NLRB agreed to voluntarily dismiss its D.C. Circuit appeal of a district court's dimissal of its election rules. As former NLRB General Counsel, Ronald Meisburg, wrote about the dismissal, this is probably an indication that the NLRB is planning on re-doing the election rules.
The district court opinion relied on the objecting NLRB member's refusal to participate in the promulgation process which, according to the court, denied the NLRB a quorum (there were a total of three memebrs at the time). This issue, plus the Noel Canning dispute, has put many NLRB actions under a procedural cloud for a while. I completely agree with Meisburg that taking another look at the election rules and promulgating them with a Board that is free of doubt is the best path. Indeed, opponents of the new rule may find themselves with reforms they like even less, with fewer procedural objections.
Hat Tip: Patrick Kavanagh
Today, the Supreme Court dismissed the Mulhall case (see here, here, and here) as improvidently granted. There was a dissent by Justice Breyer (joined by Justices Kagan and Sotomayor). The dissent noted that the Court was concerned about the possibility that the case was moot (because the agreement in question expired) or that the plaintiff lacked standing (because he lived in a right-to-work state). The dissent would have preferred that the Court rule on these questions and, if either apply, vacate the Eleventh Circuit's decision to remove any precedential value.
The dissent also raised another possible procedural hurdle: whether Section 302 grants a private right of action. You can file this argument under "what's good for the goose, is good for the gander." The dissent noted that the Court long ago said such a right of action existed, but then noted that the Court's jursidprudence has since become much more restrictive against recognizing private rights of action.
For a case that ultimately had no decision, Mulhall has been extraordinarily interesting. Expect to see many of these questions raised again soon.
Monday, December 9, 2013
As we recently noted, Boeing employees rejected a proposal that was offered by Boeing, and seemingly supported by IAM union officials, to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. Today, the Washington Post's Wonkblog examines recent challenges to the current IAM officials and gives some more background to the Boeing offer.
Apparently, the Department of Labor is forcing IAM to re-run its leadership elections for failure to adequately notify members--the only re-run for union top officials in 2012. The disagreements between the challengers and incumbents reflect many other internal union discussions in this difficult environment, so this issues will likely be more familiar to readers of this blog than average readers of the Post. That said, the internal strife at IAM seems serious--serious enough to help prompt Boeing workers spurn the offer. There also appears to be open resentment against the union's spending and salaries of top officials. Again, not a new issue, but one that we might expect to surface more as unions struggle to keep members. This is where the democracy issue seems most relevant. Although, at times, LMRDA union requirements can appear harassing more than anything else, the need to maintain some level of union democracy is important for unions themselves. Obtaining buy-in from members and allowing for new officials, and the ideas they bring, are but a few of the benefits that democracy can bring to unions. It's not surprising that some unions--just like other organizations, as the article notes--have entrenched officials, but the fewer instances of this, the better the labor movement will be.
The Supreme Court just released an order stating that the oral argument time for NLRB v. Noel Canning has been extended by 30 minutes to an hour and a half. According to SCOTUSblog:
The NLRB will now have forty-five minutes, Noel Canning, the business firm involved in the case, will have thirty minutes, and the Senate’s Republican leader, Sen. Mitch McConnell of Kentucky, will have fifteen minutes. McConnell and forty-four other GOP senators are in the case to defend the role of the chamber’s minority in reviewing presidential appointments.
The argument will be on January 13 and it looks to be an exciting one.
Hat Tip: Patrick Kavanagh
Warning: it's not your usual legal scholarship alth
ough it does try to make some serious points about the Supreme Court's arbitration jurisprudence and its dominant methodology of statutory interpretation. Click here.
6th Cir: ERISA Remedy for Wrongful Denial of Benefits May Include Disgorgement Remedy under Section 502(a)(3)
Thanks to friend of the blog, Mark DeBofsky, for brining to my attention a potentially game-changing ERISA legal remedies case, Rochow v. Life Insurance Company of North America (6th Cir. Dec. 6, 2013).
Without seeking to lay out the byzantine world of ERISA remedial law, the important question in the case is whether a plaintiff can maintain both a Section 502(a)(1)(B) claim for benefits and Section 502(a)(3) claim for breach of fiduciary at the same time. If so, the question remains whether disgorgement of profits is cognizable remedy under Section 502(a)(3) against the insurance company for failure to pay the benefits on a timely basis.
Seems like this is the important holding by the 2-1 majority: “[W]e hold that disgorgement is an appropriate equitable remedy under § 502(a)(3) and can provide a separate remedy on top of a benefit recovery.” This is a welcome development for ERISA plaintiffs and their attorneys, as ERISA's rememdial scheme has been narrowly construed over the years to prevent plaintiffs from receiving full recovery for their losses.
The debate going forward is whether the Supreme Court's Varity case allows this outcome. That case stands for the proposition that where a plaintiff has a remedy for benefits under 502(a)(1)(B), a remedy on the same claim cannot be had for breach of fiduciary duty under 502(a)(3), as 502(a)(3) is only supposed to apply if no other provision does. It is the catch-all. Here, the court says essentially these are two different claims so Varity does not apply. It also says that the disgorgement sum of $3.7 million dollar is the appropriate remedy given the size of the benefit denied (almost $1 million disability claim), the time elapsed, and the fact that the benefit owed was commingled with other insurance company monies.
I think this conclusion is well-reasoned and consistent with other circuit decisions, but I suspect we will hear both the dissent’s “improper repackaging of the benefits claims” argument and that disgorgement is not a separate claim from the underlying benefits claim argument again soon. Indeed, I suspect the dissent's argument will gain some traction with conservatives on the 6th Circuit, which might make rehearing en banc more likely.
I assume the defendant will move for reconsideration and/or rehearing en banc. I wouldn’t be surprised if the decision survives circuit review, if it is not appealed to the Supremes. Stay tuned, as this will likely change the way ERISA plaintiff attorney approach cases where the benefit denial is also amounts to a breach of fiduciary duty.
Wednesday, December 4, 2013
Although not a traditonal piece of labor and employment law scholarship, David Yamada (Suffolk) has written up a blog post on issues relating to intellectual activism and the role of academics as public intellectuals. It includes, among other things, a link to a short article David recently posted to SSRN, "If It Matters, Write About It: Using Legal Scholarship to Promote Social Change," which discusses how legal scholars can harness their scholarship for change initiatives and discusses some of the advocacy and public education work David has been doing on workplace bullying, unpaid internships, and other topics.
I thought this subject matter would be of interest to many readers of this blog, who through their own work seek to effect social change through intellectual activitism in the labor and employment law context.
The Fifth Circuit just handed down its opinion in D.R. Horton v. NLRB, and, while the Board may have won the battle, it seems to have lost the war – absent en banc review or cert.
As anybody who has suffered through presentations or conversations with Tim Glynn or me knows, Horton had enormous potential for changing the landscape of arbitration law, reflected in our recent article in Alabama. In its decision, the NLRB ruled that the company’s “Mutual Arbitration Agreement” violated Section 7 and 8(a) for two reasons: first, by being drafted broadly enough to convey to a reasonable employee that she was giving up her right to file unfair labor practice charges with the Board; and, second, by cutting off the right of employees to pursue both class (or joint) actions and class (or joint) arbitration, it infringed employee rights to act concertedly for mutual aid and protection.
The second ground was obviously more sweeping than the first, since it had the potential – at least in the employment arena – to undermine the Supreme Court’s validation in Concepcion of agreements barring class arbitration.
Before the Fifth Circuit, the Board won on the first ground and lost on the second. Upholding the Board on the first ground is not insignificant -– management-side attorneys will be scurrying around for months reviewing and revising arbitration agreements to make more explicit that workers retain the right to resort to the NLRB. But far more important is the court’s rejection of the concerted action argument.
To get to either of these issues, the Fifth Circuit had to wade through a variety of arguments about the composition of the Board that rendered Horton, including validity of recess appointments of Board members (the issue before the Supreme Court in Noel Canning), whether Member Becker’s appointment (even if valid) expired before Horton was handed down, and whether there was improper delegation of authority to the three member panel that decided Horton. I’ll spare the reader the technical discussion, but the Fifth Circuit either ruled in the Board’s favor or dodged the questions thus allowing it to reach the merits.
As to whether the arbitration agreement violated 8(1)(1) and (4) for “including language that would lead employees to a reasonable belief that they were prohibited from filing unfair labor charges,” the court upheld the Board. Even though the agreement did not explicitly address charges to the agency, it was written in language that could be reasonably construed to do so. Again, the court’s upholding the Board’s conclusion on this ground is significant, although clearly of less import than if the court had also affirmed on the other ground.
As for the second ground, the opinion acknowledged “some support” for the “Board’s analysis that collective or class claims, whether in lawsuits or in arbitration” are protected concerted activity under the NLRA. But that conclusion did not take into account the Federal Arbitration Act, and whatever deference the Board may be owed in construing the NLRA in isolation was not appropriate where the FAA was concerned. Essentially treating the FAA as a “super-statute,” the court stressed the “barrier any statute faces before it displaces the FAA.”
For reasons not clear, the opinion then detours into an excursion as to whether the class actions are a substantive or procedural right, not surprisingly finding them procedural. Why that would matter when Section 7 appears to largely protect rights that could be described as “procedural” (organizing) is not so clear.
At any rate, the court proceeded to consider two “exceptions” to the FAA command that arbitration agreements be enforced according to their terms – although I, at least, don't understand why they are two separate exceptions rather than simply a way of meshing two statutes which are at least in some tension with each other.
The first exception, according to the court, was the FAA’s “savings clause,” which allows courts to refuse to enforce an arbitration agreement “upon such grounds as exist in law and equity for the revocation of any contract.” Although the NLRA’s prohibition (much less the Norris-LaGuardia Act’s explicit declaration that agreements to such effect are not enforceable) would seem to satisfy that clause, the Fifth Circuit’s “detailed analysis” of Concepcion led it to the opposite conclusion -- essentially because, while facially neutral between arbitration and litigation, the result would be to disfavor arbitration. The presumption seemed to be that employers would forego even individual arbitration if faced with class actions/class arbitration.
This is all somewhat head-scratching since it essentially bootstraps the conclusion it reaches. The FAA’s preference for arbitration is undeniable, but, by the FAA’s own terms, limited. The limit would seem to have been reached by the boundary staked out by Norris LaGuardia and the NLRA. The preference, nevertheless, somehow o’er leaps the textual boundary that the statute itself established.
At any rate, the court moved on to the second exception – application of the FAA may be precluded by another statutory command (the NLRA). The Fifth Circuit begins, again, by treating FAA as a super-statute, and finding no explicit language trumping the FAA. It doesn’t explain why the Norris LaGuardia language “shall not be enforceable” doesn’t suffice as explicit language to the contrary, but presumably that’s because it only addresses “any undertaking or promise” (emphasis added) without mentioning arbitration. (The court dismisses the Norris LaGuardia argument in a footnote without explaining why).
In any event, lacking explicit trumping language, a contrary “general thrust” of the NLRA is not sufficient, although an “inherent conflict” would be. Such a conflict, however, is lacking because arbitration is generally favored in the union context (of course, the cases cited involve arbitration under collective bargaining agreements where the union can be expected to keep employers in check) and because of “conceptual problems” whose significance is not so clear.
Judge Graves concurred with the affirmance of the Board’s decision but would have found that the arbitration agreement “interferes with the exercise of employees’ substantive rights” under Section 7.
One question that remains puzzling in the wake of the Horton opinion is the effect,, if any, of arbitration agreements that constitute unfair labor practices (as in Horton itself) on the validity of the arbitration agreement. An employer in the situation of Horton could, of course, modify its arbitration agreements to make sufficiently clear to employees executing them that they retain the right to file charges with the Board. But suppose employers don't, or suppose that the question of arbitration arises under an extant agreement that violates the statute as intepreted by both the Board and the Fifth Circuit? Should a court being asked to stay a suit pending arbitration do so, thus "enforcing" an illegal agreement? Or should it find the whole agreement unenforceable because tainted by illegality? Or what?
Monday, December 2, 2013
Ed 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.
Moneyball was, of course, about a kind of personnel selection process, albeit in the exotic universe of picking baseball players, so it's not surprising that "big data" has continued to develop in the employment setting. If you haven't been following this stuff, a good place to start is a recent article in the Atlantic, They're Watching You at Work.
As the scare title suggests, some of the developments continue the seemingly inexorable erosion of employee privacy. For example, electronic "badges" that collect data on employee interactions at a pretty deep level -- length, tone of voice, how much people interrupt, demonstration of empathy, etc. Team performance, apparently, can be predicted to a remarkable degree merely by the number of exchanges. And more refined data can identify "charismatic connectors" (maybe we used to call them "supervisors"?).
But privacy issues aside, Big Data has the potential to shift the criteria by which employers hire, and maybe not in obvious ways. One company thinks "one solid predictor of strong coding is an affinity for a particular Japanese manga site." And another uses video games (Wasabi Waiter, for one) "to suss out human potential." You might want to rethink telling Junior to put the iPad down and pick up a book.
Of course, in one way we've been here before, as the article stresses. "Scientific" human resources is not new, but this time, unlike prior fads, the approaches may in fact be scientific. In other words, the terabytes of data now available may allow a present day employer to have far more confidence that a successful Wasabi Waiter player will perform well on the job than an employer in the past could have expected from someone who passed the Wonderlic test with flying scores.
If so, we may see massive changes in the way employees are selected and rewarded, and not so very far in the future. Not all of which may be bad: the article stresses that such techniques may ameliorate the discriminatory effects of cognitive bias and the inequality concerns with current use of university/GPA as rough screens for probable performance.
But the legal implications remain to be worked out. We may be looking at yet another round of testing litigation, although this time the "test" being challenged might be Wasabi Waiter. (Oh, if you're wondering, the goal is to deliver the right sushi order to the right customer in an increasingly crowded restaurant.)
I don't really know enough to assess this brave new world, and I do well recall that earlier "advancements" promised similar results with very little success. Still, it's something to keep an eye on.
Hat tip to Liz Tippett for sending me the article.
Wednesday, November 27, 2013
Those of you you read the post below on the NYU-UAW deal may have noticed in the embedded link some quotes from friend-of-the-blog, Bill Herbert. In doing so, you mave noticed that he has a new affiliation as he's just moved from the NYPERB to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, where he is now serving as Executive Director. He'll also be a Distinguished Lecturer at Hunter College. Here's a press release on the move:
Effective November 21, 2013, Bill Herbert was appointed as a Distinguished Lecturer at Hunter College, City University of New York and as the new Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. Prior to his recent appointment, Bill was Deputy Chair and Counsel at the New York State Public Employment Relations Board.
For over four decades, the National Center for the Study of Collective Bargaining in Higher Education and the Professions has served as a national labor-management center dedicated to studying the use of collective bargaining for advancing higher education and the working conditions of faculty and staff in colleges and universities. The National Center believes that the study of collective bargaining is essential for a knowledge-based dialogue concerning labor-management and educational issues, and is critically important for reasoned societal debate that will lead to social progress. It is comprised of labor and management professionals, practitioners, and scholars interested in studying contemporary and historical labor-management issues, best practices in collective bargaining, legal and legislative developments, and public support for higher education. It provides a clearinghouse and forum for scholarly research and ideas concerning labor relations, collective bargaining and labor law issues related to higher education. The National Center will be holding its 41st annual conference on April 6-8, 2014 at the CUNY Graduate Center: http://www.hunter.cuny.edu/ncscbhep The theme of the conference is Achieving Successful Results in Higher Education through Collective Bargaining.
Tuesday, November 26, 2013
- UPDATE: News was just released news that NYU and the UAW have agreed to an AAA-run election for teaching assistants. As part of the deal, the UAW will drop charges it filed with the NLRB and NYU promised to remain neutral. Also, the deal does not establish an election for research assistants. The election could happen early next year.
- The Supreme Court granted cert. today to determine if for-profit corporations can object to the contraception mandate of the ACA based on religious objections. Sure, it's not directly an employment case, but if the Court sides with the companies here, it will be a big change from what has long been a presumption against for-profit businesses avoiding employment mandates on religious liberty grounds.
- Last week, Boeing workers rejected a proposal by the company to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. That's a big turnaround from what has been a trend as of late in many unionized workplaces.
- Also last week, the Eleventh Circuit sided with the NLRB on the recess appointments issue. This probably doesn't have much of an impact given the Supreme Court's grant of cert. in Noel Canning, but it provides another voice on the Board's side.
Hat Tip: Michael Duff , Patrick Kavanagh, & Bill Herbert
Monday, November 25, 2013
The False Claims Act recently collided with New York's Rules on Professional Conduct before the Second Circuit, and the FCA came away the worse for wear. At issue in United States ex rel Fair Laboratory Practices Associates v. Quest was a district court's dismissal of a qui tam suit brought by a entity created for that purpose. The basis of the dismissal was that one of FLPA's principals had been General Counsel of the defendant. And not only did the district court dismiss the case but it also barred the plaintiff, its individual members, and the law firm representing it from bringing a subsequent qui tam action.
It's not news that attorneys are often unable to assert whistleblower rights that would be available to other employees because of the rules of professional conduct. But Quest is one of the relatively few cases where a federal right is pitched against state ethical rules. And the FCA is an unusual statute: while it also includes classic whistleblower protections, the suit in question was brought pursuant to the statute's qui tam provisions that authorize relators to file complaints in the name of the United States and to retain a portion of any recovery.
The Department of Justice has the right to intervene in a qui tam action, and the Second Circuit's affirmance of the district court's orders stressed that Justice was not precluded from prosecuting the case (although it declined that opportunity) nor were other potential plaintiffs precluded (although maybe some of the FCA's own provisions might bar them).
The Quest reasoning upholding both the dismissal and the disqualfications was pretty straightforward: the FCA did not preempt state ethics codes and former GC Bibi violated the NY rule against disclosing confidential information. While the relevant rule permits disclosure "to the extent that the lawyer reasonable believes is necessary . . . to prevent the client from committing a crime," the disclosures in question did not qualify. It was true that Bibi was resonable in believing that Quest had the intent to commit a crime, but he could not reasonably believe his discloures were necessary to prevent that crime.
That was because there were alternative means of preventing the crime in question, essentially the information available from other individual members (or perhaps from Bibi himself) that wasn't "protected client confidences."
The court's decision on this point relieved it of having to decide whether the mere filing of the qui tam suit violated New York's "side switching rule," which bars attorneys representing one side in a matter (Quest) from then representing the other (the US since a qui tam suit is in theory brought on behalf of the government). Such a holding would have been far broader than the decision actually rendered since, in theory at least, the Quest qui tam suit could have gone forward had Bibi been more circumspect in what he revealed.
Affirmance of the disqualification ruling was essentially fruit of the poisonous tree reasoning.
The Quest opinion repeatedly invokes the notion of balancing. Thus, it recognizes that it must balance federal and state interests in deciding the degree to which confidential information may be disclosed (although it also suggests that the NY Rule itself balances those interests by permitting disclosure necessary to prevent a crime), and it purportedly balanced the competing concerns of permitting vindication of legal rights against disqualification of plaintiff, its principals, and their attorneys.
But in the end, all this judicial balancing seems to mostly require attorney relators to do a lot of balancing themselves -- walking a tightrope between saying too much or too little. Qui tam claims have been held to pretty high pleading standards in the wake of Twiqbal, and it is easy to see how a plaintiff might feel the need to provide more rather than less information to support its allegations. While the Quest decision can be justified in terms of the text of the NY Rule, perhaps "necessary" to prevent a crime is too high a standard when a federal statute is at stake. A more appropriate standard would focus on the reasonableness of the disclosure in actually preventing the crime in question. At any rate, this is far from the first time that the courts have placed potential relators in very difficult positions.