Thursday, February 6, 2014
Thanks to Pietro Manzella of ADAPT for bringing to my attention the publication of the latest issue of the E-Journal of International and Comparative Labour Studies (Vol 3, Issue 1, January 2014). You can find the full contents here.
Wednesday, February 5, 2014
My colleague Andrea Schneider (Marquette) and her co-author, Gina Brown, have posted on SSRN their new report: Gender Differences in Dispute Resolution Practice: Report on the ABA Section of Dispute Resolution Practice Snapshot Survey (Andrea also posted on this report at Indisputably.org here).
Here is the abstract:
This report to the ABA Section on Dispute Resolution outlines the results of a survey to the membership concerning the use of neutrals in both mediation and arbitration on behalf of the Women in Dispute Resolution Committee (WIDR) of the Section of Dispute Resolution. The goals of the WIDR Committee was to change how neutral selection occurs in disputes, to increase the number of women who serve as neutrals, and to ensure that women and minorities were proportionally represented as neutrals. The first step, before suggesting changes, was to understand the current situation in the world of dispute resolution. In fall 2012, the Section of Dispute Resolution surveyed the lawyers belonging to the section to determine how mediators and arbitrators are selected in legal cases and the types of cases being resolved through the many available dispute resolution processes. Specifically, the survey was designed to examine who is being selected as a neutral, by whom, using what process, and for what types of cases. This report explains the methodology of the survey, the demographics of the respondents and neutrals involved in particular cases, and, most importantly, the information about neutral selection.
This survey provides clear data on women serving in neutral capacities and demonstrates several different potential avenues of change. Three preliminary conclusions drawn from this data are — first, the type and subject matter of the dispute clearly impacts neutral selection. As detailed above, certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations.
Our recommendations included that clients and lawyers could be encouraged to think more broadly about who they use as neutrals. Particularly in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women. Provider organizations should be commended for improved gender balance in mediation. Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. In arbitration, provider organizations (a) should also adopt the assumption that multi-arbitrator panels should include one woman when they are appointing the panel and (b) should have a higher percentage of women on their list so that these lists can do more than reflect the current situation. Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals.
This report's connection to labor and employment law is fairly straightforward: more and more workplace disputes are being decided through arbitration and mediation. Consequently, the importance of arbitrators and mediators themselves being reflective of the populations they serve cannot be understated. This report and its recommendations takes an important first step in ensuring more gender diversity among arbitrators and mediators deciding workplace and other types of disputes.
The NLRB has just announced that it is proposing new election rules. To be more accurate, it is proposing the identical set of reforms that it proposed on June 11, 2011. We described those proposals here, which were ultimately watered down when the Boar finalized its election rules. Of course, as readers well know, the NLRB faced many challenges to those rules, particularly based on procedural objections, which led it recently to withdraw the rules. As we have noted, opponents to these reforms should've been careful what they ask for, as the challenges gave the Board a good excuse to go back to the drawing board and come out with more robust changes, which it is now doing. For those disappointed by the watering down of the June 2011 proposals, this is a possible silver lining to the entire issue.
From the NLRB's announcement:
The National Labor Relations Board announced today that it is issuing proposed amendments to its rules and regulations governing representation-case procedures. In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011. A Notice of Proposed Rulemaking (NPRM) will appear in the Federal Register tomorrow. The proposals are intended to enable the Board to more effectively administer the National Labor Relations Act. Specifically, the NPRM presents a number of changes to the Board’s representation case procedures aimed at modernizing processes, enhancing transparency and eliminating unnecessary litigation and delay. Issuance of the proposed rule was approved by Board Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Nancy Schiffer. Board Members Philip A. Miscimarra and Harry I. Johnson III dissented. . . .
“I believe that the NPRM first proposed in June of 2011 continues to best frame the issues and raises the appropriate concerns for public comment,” Pearce said. He stressed that the Board is reviewing the proposed changes with an open mind: “No final decisions have been made. We will review all of the comments filed in response to the original proposals, so the public will not have to duplicate its prior efforts in order to have those earlier comments considered. Re-issuing the 2011 proposals is the most efficient and effective rulemaking process at this time.”
“Unnecessary delay and inefficiencies hurt both employees and employers. These proposals are intended to improve the process for all parties, in all cases, whether non-union employees are seeking a union to represent them or unionized employees are seeking to decertify a union,” Pearce said. “We look forward to further exchanges of ideas to improve the processes in a way that will benefit workers, employers and all of the American people.”
The reforms the Board will propose would:
- allow for electronic filing and transmission of election petitions and other documents;
- ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process;
- streamline pre- and post-election procedures to facilitate agreement and eliminate unnecessary litigation;
- include telephone numbers and email addresses in voter lists to enable parties to the election to be able to communicate with voters using modern technology; and
- consolidate all election-related appeals to the Board into a single post-election appeals process.
Wednesday, January 29, 2014
Thanks to our friends at ADAPT, Chris Leggett and Michele Tiraboschi, for bringing to our attention the Twitter-based version of the ADAPT International Bulletin, which collects the main documentation on labour issues published during the last two weeks. Here is what Chris and Michele write:
The bulletin includes two comments: “The Emotional Timeline of Unemployment: Anticipation, Reaction, and Adaptation”, by Christian von Scheve, Frederike Esche and Jürgen Schupp (German Institute for Economic Research - DIW, Berlin) and The Horizon 2020 Strategy for SMEs”, by Meysam Salimi (International Doctoral School in Human Capital Formation and Labour Relations, University of Bergamo).
This issue also conveys some of the latest ADAPT publications, among which is the last ADAPT University Press, ADAPT- Labour Studies e-Book Series n. 19, "Violencia, riesgos psicosociales y salud en el trabajo. Estudios desde el derecho internacional y comparado" edited by Lourdes Mella Méndez (Professor of labour law at the University of Santiago de Compostela).
For further information, you can make contact with the ADAPT staff at [email protected]
Tuesday, January 28, 2014
ESPN this morning reported that a group of college football players at Northwestern have filed a representation petition with the NLRB, seeking to be recognized for bargaining purposes. More stories here and here. Northwestern's response here, and the NCAA's here. Mike McCann (New Hampshire) weighs in here. The biggest hurdle for the players will be in demonstrating that they are employees for purposes of the NLRA, which ties into debates about whether college athletes in revenue generating sports should be paid and others.
We 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.]
Yuvraj Joshi has brought to my attention his article recently published in the Virginia Journal of Social Policy and the Law (Vol. 21, No. 2, 2014) entitled: The Trouble with Inclusion.
Here is the abstract:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Have not had the chance to read this piece, but it appears to challenge many conventional assumptions about inclusion in the workplace and other settings and should be a thought-provoking read.
Caroline Mala Corbin (University of Miami School of Law) has recently posted two papers on SSRN discussing her thoughts on corporate religious liberties. The first apears in the American Constitution Society Issue Brieff for January 2014 and is entitled: Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions.
Here is the abstract:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
The second (longer) piece is entitled: Corporate Religious Liberty.
Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in two cases before the Supreme Court challenging the Affordable Care Act’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression. Most scholars writing on this issue argue that for-profit corporations do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.
This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
Two very interesting reads on a hot current legal topic that could have a large impact on the workplace. Check them out!
Monday, January 27, 2014
The United States Supreme Court decided today, in an almost unanimous opinion written by Justice Scalia (Justice Sotomayor didn't join one footnote), a donning and doffing case under the Fair Labor Standards Act in Sandifer v. United States Steel Corporation.
According to the syllabus of the case, Sandifer and others filed a putative collective action under the FLSA, seeking backpay for time spent donning and doffing pieces of protective gear that they asserted U.S. Steel requires workers to wear because of hazards at its steel plants. U. S. Steel contends that this donning-and-doffing time, which would otherwise be compensable under the Act, is noncompensable under a provision in the collective-bargaining agreement.
That provision’s validity depends on 29 U. S. C. §203(o), which allows parties to collectively bargain over whether “time spent in changing clothes . . . at the beginning or end of each workday” must be compensated. The District Court granted U. S. Steel summary judgment in pertinent part, holding that petitioners’ donning and doffing constituted “changing clothes” under §203(o). The Seventh Circuit affirmed.
The Supreme Court held that the the time the workers spent donning and doffing their protective gear was not compensable by operation of §203(o). More specifically, the Court construed "clothes" in "changing of clothes" to mean items that are both designed and used to cover the body and are commonly regarded as articles of dress. Nothing in §203(o)’s text or context, according to the Court, suggests anything other than this ordinary meaning. Thus, it concluded that there was no basis for the employees' assertion that the unmodified term “clothes” somehow omits protective clothing.
Going forward, the Court stated that a more appropriate way to proceed is for courts to ask whether the period at issue can, on the whole, be fairly characterized as “time spent in changing clothes or washing.” If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items, the entire period would not qualify as “time spent in changing clothes” under §203(o), even if some clothes items were also donned and doffed. So going forward, a distinction, for compensation purposes, will be made between between donning and doffing involving primarily protecive equipment (compensation ) as opposed to primarily protective clothing (not compensable if designated as such under the applicable CBA).
Don't you just love donning and doffing cases? :D
Bill Herbert sends word of the e-publication of Volume V of the Journal of Collective Bargaining in the Academy (JCBA). JCBA publishes on collective bargaining (in its broadest sense) in a university setting in three distinctive genres: scholarly articles, opinion pieces, and “notes from the field” practitioner pieces to share the practical workings of collective bargaining. JCBA is an open access, peer-review online publication of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. JCBA welcomes submission of scholarly articles for future volumes from a wide community of university and college faculty, graduate students, post-doctoral scholars, administrators, union leaders and representatives and other others with an interest in collective bargaining and representation issues in the academy.
- “Positive Collaboration: Beyond Labor Conflict and Labor Peace,” by former National Center for Collective Bargaining in Higher Education and the Professions Executive Director Richard Boris.
- “Shelter from the Storm: Rekindling Research on Collective Bargaining and Representation Issues,” by current National Center Executive Director William Herbert.
- “Organizational Culture, Knowledge Structures, and Relational Messages in Organizational Negotiation: A Systems Approach,” by Vincent P. Cavataio and Robert S. Hinck.
- An analysis of messages from both sides in the most recent negotiations at Central Michigan University.
- “Collective Begging at Its Best: Labor-Management Relations in South Dakota,” by Gary Aguiar.
- An article from the union perspective on the gains in the last round of negotiations in the South Dakota system.
- "Bargaining Market Equity Adjustments by Rank and Discipline,” by Jonathan P. Blitz and Jeffrey F. Cross.
- "Negotiating For Curriculum & Class Size, 2011-13: One Faculty Union’s Perspective,” by Amy Rosenberger and Steve Hicks.
Chambers, who passed away last year, was the foremost Title VII advocate in the country for many years and succeeded Thurgood Marshall and Jack Greenberg as the Director-Counsel at the Inc. Fund in New York. Jon tells us that the program, sponsored by Elon Law School (Eric Fink and Jim Exum), was a spirited, joyful and personal glimpse of Chambers' life.
Jon regrets, and so do I, that there was so little publicity about this event in advance, but Jon thought readers of this blog might want to know about this tribute to our colleague who played such a big role in what we do as employment lawyers and teachers.
A detailed remembrance of Mr. Chambers is available here.
Wendy Greene (Samford) has two new articles up on SSRN. The first, A Multidimensional Analysis of What Not to Wear in the Workplace: Hijabs and Natural Hair, considers grooming codes and the way they limit at least some women's participation in the workplace. Here is the abstract:
This Article challenges a relatively universal judicial and societal assumption that employers’ enactment and enforcement of grooming codes are inconsequential to women’s access to, and inclusion in, American workplaces. Specifically, this Article provides a multidimensional analysis of workplace grooming codes, shedding light on the comparable journeys of discrimination that Black and Muslim women experience when their hair and hair coverings are subject to employer regulation. Further, it illustrates that since Black and Muslim women’s identities are not mutually exclusive, Black women who are Muslim may also suffer a double form of discrimination if an employer bans both hijabs and natural hairstyles in the workplace. Thus, for the first time, this Article specifically contemplates the interconnectivity between the socio-politically constructed identity of Black and Muslim women, the socio-political and personal meaning of Black women’s natural hairstyles and Muslim women’s hijabs and resulting discrimination — under the law and in society. In so doing, this Article illuminates how these women, who are racialized as non-white due to their physical appearance and/or their religious faith and observances, share similar experiences as it relates to workplace inclusion and exclusion vis à vis what adorns their heads. This Article also demonstrates that workplace prohibitions against Black women’s natural hairstyles and Muslim women’s donning of a hijab are closely aligned forms of race and gender-based discrimination, triggering parallel actual as well as perceived stigmatization, vulnerability, and exclusion for these women of color, which civil rights constituencies have not fully exposed and addressed.
This Article draws upon the works of notable critical race and sexuality theorists in its contention that a “multidimensional” analysis of the discrimination that women of color as a collective experience in the workplace — at the intersection of race, religion, and gender — is vital for a deeper understanding of the civil rights issues at stake, as well as for increased and sustained civil rights advocacy challenging the legality of such grooming codes. Thus, this Article calls for cross-cultural advocacy among civil and workers’ rights constituencies so that antidiscrimination law, doctrine, and advocacy can more meaningfully attend to the deprivation of equal conditions, privileges, dignity, and personhood that Black and Muslim women suffer due to the arbitrary enactment and enforcement of workplace grooming codes banning natural hairstyles and hijabs in the workplace.
The second article, Categorically Black, White, or Wrong: "Misperception Discrimination" and the State of Title VII Protection focuses on situations where employers act because of what they perceive the race, color, national origin, or religion of employees or applicants to be, but are not correct about that perception. Here is that abstract:
This Article exposes an inconspicuous, categorically wrong movement within anti-discrimination law. A band of federal courts have denied Title VII protection to individuals who allege "categorical discrimination": invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of "misperception discrimination" is beyond Title VII’s scope. Accordingly, Title VII protection is only extended to such a plaintiff if she is "actually" Muslim or brings forth allegations of invidious, differential treatment based upon her actual Christian identity. This Article argues that these judicially created prerequisites to Title VII protection are categorically wrong. They impose a new "actuality requirement" on Title VII plaintiffs in intentional discrimination cases that engenders unfathomable results. Plaintiffs who suffer from invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against discrimination if they fail to prove their actual religious, gender, ethnic, racial, or color identity upon defendant-employers’ challenge.
Though this Article primarily examines the imposition of an actuality requirement in misperception discrimination cases, this Article also demonstrates that courts have considered and imposed an actuality requirement in conventionally framed discrimination cases as well. Accordingly, this Article is the first to enumerate the development of, and myriad justifications for, the actuality requirement in cases of categorical discrimination. This Article argues that some courts’ imposition of an actuality requirement in misperception and conventionally framed discrimination cases denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly fifty years after its enactment — an interpretative methodology that this Article is first to describe as "anti-anticlassificationist."
This Article also highlights a few critical, negative implications of courts’ anti-anticlassificationist interpretation of antidiscrimination law. Namely, it examines the emergence of a minimalist "actuality defense" and resulting identity adjudication, which obfuscates the chief issue in intentional discrimination cases: whether the plaintiff suffered unlawful, invidious, differential treatment. Additionally, this Article illuminates that courts’ anti-anticlassificationist interpretation and attendant actuality requirement have in fact resuscitated age-old trials of racial determination. They have thereby produced an additional destructive consequence by reifying race as a stable, biological construct.
Consequently, this Article proposes fresh, practical, and theoretical interventions to cease the continued anti-anticlassificationist interpretation of Title VII. In doing so, this Article excavates previously unexplored Title VII statutory provisions, longstanding EEOC directives, Fifth and Third Circuit precedent, and recent Supreme Court precedent. Properly read, these sources will show that a prerequisite showing of actuality in cases of categorical discrimination under Title VII is wrong. Thus, this Article affirms that all categorical discrimination plaintiffs — that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or mistaken religious, gender, ethnic, racial, or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.
Two great reads, for sure.
DeBofksy on How Courts Interpret the Meaning of “Civil Action” as Applied to Benefit Disputes Under ERISA
Mark D. DeBofsky (DeBofsky & Associates, P.C. and John Marshall Law School) has just posted on SSRN his new paper: How Courts Interpret the Meaning of “Civil Action” as Applied to Benefit Disputes Under ERISA.
Here is the abstract:
Congress authorized claimants seeking employee benefits to bring a “civil action” to recover benefits due or obtain appropriate equitable relief. 29 U.S.C. § 1132(a). The Federal Rules of Civil Procedure contemplate only one form of civil action; and civil actions are to be adjudicated utilizing the procedures specified by the civil procedure Rules and by the Federal Rules of Evidence. Yet federal courts have denied ERISA benefit claimants the right to take discovery normally permitted in civil actions, the right to trial by jury, and even, in most cases, the right to a trial in open court involving the examination and cross-examination of witnesses.
This article explores how the courts developed a quasi-administrative law regime governing ERISA benefit disputes despite Supreme Court rulings defining the contours of what a “civil action” should consist of. The article further examines how ERISA cases are litigated and the scope of ERISA adjudications. Questions as to whether the current regime for litigating ERISA cases violates claimants’ Constitutional due process rights are also raised, along with a discussion as to whether remands of ERISA cases violate the finality rule of Article III of the U.S. Constitution.
Very interesting issue in ERISA law. Many take the current scheme of benefit disputes for granted, but Mark raises some troubling litgation and constitutional issues surrounding the current practice of law in this area of employee benefits law.
Since I've been critical of some of the evolving Restatement on Employment Law, it seems only fair to heap some praise upon the project when I see improvement. And, in my view, section 8.01, the Employee Duty of Loyalty has considerably improved from earlier versions. The reporters are to be commended for their responsiveness to suggestions raised during earlier discussions at the ALI.
The major improvements are twofold.
First, earlier versions imposed a duty of loyalty on all employees. What exactly that meant was contested, but the present version (Council Draft No. 11, Dec. 2013), is narrower. It would provide two flavors. One is that owed by "employees in a position of trust and confidence"; these individuals owe "a fiduciary duty of loyalty." The other "depending on the nature of the employment position" is a "contractual duty of loyalty." §8.01(a).
While the current formulation could be critiqued, I come to throw bouquets not brickbats, and the bottom line is that the current version can no longer be read to impose on all employees fiduciary-like duties. Indeed, the sharp distinction between positions of trust and confidence and those "depending on the nature of the employment condition" will necessarily focus the attention of courts following the new Restatement on what, exactly, the law should expect of the particular employee. The resultant uncertainty is problematic but at least we've avoided the overinclusion of the first efforts.
Not insignificantly, comment a suggests that the "faithless servant" remedies (upon which I've expounded at length) are limited to those breaching a fiduciary duty while those breaching only a contractual duty are subject to only contract remedies. It also suggests that fiduciary duties are not disclaimable by contract while contractual duties are more malleable.
But (OK, here's a small brickbat) Illustration 2 throws some doubt on the distinction between the two flavors of duty. It imagines E, a line worker for a manufacturer X who, by no stretch of the imagination, is a fiduciary but who stumbles across his employer's business plan, helpfully labeled "Trade Secret." According to the Illustration, E "became a fiduciary responsible for maintaining the secrecy of X's trade secret when it came into his possession." It's not that I think that liability shouldn't attach in the circumstances, but it does seem to make the notion of "fiduciary" broader than the blackletter would suggest.
The second major improvement of this draft is replacing protection of "confidential information" with "trade secrets." §8.01(b). This change is less dramatic since earlier drafts seemed to equate the two, but the use of the potentially broader "confidential information" risked an unintended consequences of expanding protection beyond what trade secret law would protect.
Like an earlier version, current §8.01(c) stresses that any duty of loyalty "must be interpreted in a manner consitent with" other employee rights, such as those under the public policy tort, and, more generally with "any privilege or obligation to cooperate with professional or government authorities." See also §8.03(b) (duty of loyalty not breached if "the employee acts under a legal duty, legal protection, or other permission by law in making disclosure or use.") This explicitly recognizes the innate tension between the Restatement's encouragement of whistleblowing and its protection of confidences. It's probably the best that can be done at the blackletter level of generality.
Friday, January 24, 2014
The Fourth Circuit issued an opinion yesterday on an issue of first impression under the ADA as it's been amended by the ADAAA. In Summers v. Altarum Institute Corp, the court held that a temporary disability can be a disability for purposes of the Americans with Disabilities Act, reversing a dismissal and remanding the case for further proceedings.
The plaintiff was a government contractor who was assigned to a workplace he had to travel some distance to get to. One day, on the way to work, he fell getting off of his train and seriously injured both legs. Without surgery, pain medication, and physical therapy, it would likely be a year before he would be able to walk, and with that treatment, it would likely be seven months. Almost immediately after the injury, the plaintiff suggested to his employer ways that he could work remotely and then work up to working again on site for the client, but instead of working on a plan, his employer encouraged him to take short term disability and then later terminated him. The plaintiff sued, alleging that he was discharged because of his disability.
The district court dismissed his claim, holding that "a temporary condition, even up to a year, does not fall within the purview of the [A]ct,” so the plaintiff failed to allege that he was disabled within the meaning of the ADA. The court also suggested that the plaintiff was not disabled because he could have worked with the assistance of a wheelchair.
The court of appeals held that the plaintiff was substantially limited in the major life activity of walking even though he would eventually be able to walk again. The court acknowledged that under pre-ADAAA precedent, namely Toyota v. Williams, 534 U.S. 184 (2002), that temporary disabilities were not covered. In the ADAAA, though, Congress explicitly expanded the definition of disability and explained it was doing so to reverse the effects of narrowing Supreme Court decisions including Toyota.
Moreover, Congress directed the EEOC to revise its regulations to broaden the definition, and the EEOC did so after notice and comment. The revised regulations provide that effects of an impairment lasting even less than six months can be substantially limiting enough to constitute a disability. Duration of the impairment is one factor to consider, but severity of the impairment is also important. The more severe the impairment, the shorter the duration needed for the impairment to substantially limit a major life activity. Finally, the court held that the cause of the impairment was not relevant, at least between whether an impairment was caused by a long-term or permanent disability or an injury because the EEOC's regulations use impairment and injury interchangeably in several places in the regulations. The court gave all of these regulations Chevron deference finding that they were highly reasonable interpretations of the amended statute.
Regarding the possibility that the impairments might last less time with surgery, pain medication, and physical therapy, and that the plaintiff could be mobile enough to get to the workplace with a wheelchair, the court noted that those factors could not be considered in deciding whether the plaintiff had a disability. Doing so may have been appropriate under pre-amendment Supreme Court precedent, namely Sutton v. United Airlines, 527 U.S. 471 (1999), although the court did not cite to that case. Again, Congress specifically abrogated that case along with the other cases that narrowed the definition of disability. The court of appeals noted that the EEOC regulations prohibited considering mitigating measures, and even more importantly, that to consider an accommodation which would allow the plaintiff to work before considering whether he was an individual with a disability turned the proper inquiry on its head in a way that would eviscerate the ADA.
The plaintiff had also raised a failure to accommodate claim at the district court level, but did not raise it on appeal, and so the court of appeals did not analyze that claim.
This case is a very important one for a number of reasons. It is the first court of appeals case to consider whether a person who suffers a temporary impairment can be considered disabled under the ADA. The decision also confirmed that the disability question is not going to be, in many cases, a big hurdle for a plaintiff, and that the EEOC regulations should be afforded deference. It also provides a context-specific test for determining whether a person is disabled that sticks to the statutory language of whether the impairment at issue substantially limits a major life activity. Substantiality is to be considered both as a question of duration, but also as a question of quantity and quality.
The case will obviously impact many situations in which worker injuries cause relatively serious and relatively long-lasting impairments, and may impact whether employers can continue to distinguish in accommodations between on-the-job and off-the-job injuries. It also may influence whether at least some limitations caused by pregnancy have to be accommodated. Thus, this is a decision with potentially far-reaching consequences.
h/t Jonathan Harkavy
Both publications seek to "report on significant cases, regulatory developments and other activities involving the Equal Employment Opportunity Commission (EEOC)," and to "provide readers with a detailed executive summary and comprehensive analysis on the unique aspects of court rulings in 2013 in EEOC litigation and the challenges employers face in litigating against the EEOC."
Hat Tip: Kasia Solon Cristobal
Wednesday, January 22, 2014
Jason and his crew have some fantastic speakers lined up, including two of our own in the L&E world - Charlotte Garden (Seattle) and Jason himself. The keynote speaker is Lawrence Lessig, and they have a great lineup of panelists and moderators. The event is co-sponsored by the Stetson Law Review, the Corporate Reform Coalition, and the ACS.
A link to the page with the lineup of panelists is here. Although the symposium topics are broader than just labor law, that will be a big part of the discussion. So if you are Tampa way that time of the year, check it out.
Tuesday, January 21, 2014
The Supreme Court heard oral arguments to day in Harris v. Quinn. According to SCOTUSblog, the expected attack by conservatives against union mandatory dues occurred. The surprise is the Justice Scalia apparently exhibited less enthusiasm for reversing Abood than his conservative colleagues. In contrast, the liberal Justices apparently showed real concern that the Court would outlaw public unions ability to seek dues from all employees they represent.
To the extent that there's a silver lining (and I'm not sure there's one at this point), the argument seemed to focus on the uniqueness of public sector collective-bargaining. In particular, several Justices (with the apparent exception of Scalia) seemed receptive to the argument that public-sector unionism is more about affecting public policy than typical collective bargaining. I don't buy that argument and, even if I did, I'm not convinced that under the Court's precedent, it would mean that mandatory dues is prohibited by the First Amendment. But that appears to be where several Justices are headed. Whether there a 5 of them is the question. Even if there are, the tenor of this argument suggests that the ruling will not affect the private sector. For now at least. Which is not to say that eliminating mandatory dues in the public sector won't be a significant harm to the labor movement.
Hat Tip: Patrick Kavanagh
Monday, January 20, 2014
We've been following the talks between the UAW and VW's Chattanooga plant for a while now, especially the possibility that the parties will end up with a works council-style system (e.g., see here and here). As expected, groups such as the National Right to Work Lega Defense Foundation are already attacking the possible relationship--arguing, among other things, that they would violate Section 8(a)(2). Matt Finkin (Illinois) and Thomas Kochan (MIT) just published an op-ed in the LA Times, arguing that a works council arrangement would be legal in the U.S. An excerpt:
For years, labor law, labor economics and labor-management researchers like us have urged experimentation with works councils in the United States. Volkswagen and the United Auto Workers are proposing to do just that at Volkswagen's Tennessee plant. This could be a watershed in American labor relations, one that rejects the outmoded adversarial doctrines that have built up in U.S. labor law and practice. And it signals management and labor support for a new model of cooperation and partnership.
Unfortunately, the National Right to Work Legal Defense Foundation and others are opposing this effort by arguing that such cooperation would violate U.S. labor law's 1935 ban on sham or "company" dominated unions.
A comparison of German and American labor law makes it clear they are dead wrong. . . .
For what it's worth, I've been researching this and related issues for some time, and completely agree that there is no Section 8(a)(2) issue with a well-designed bargaining relationship. But before we find that out VW, the UAW, and the employees will have to finally make all this speculation come to fruition. So stay tuned.
Hat Tip: Wilma Liebman
Thanks 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.