Thursday, July 3, 2014

Post-Hobby Lobby, Court Says Religious Non-Profit Need Not Notify Insurer that It Objects to Coverage

ScotusThe Court has taken a number of actions already since issuing its decision in Hobby Lobby that suggest future directions on the issue in that case.  First, the Court acted on six cert. petitions. As Lyle Denniston notes on ScotusBlog, the court remanded three cases to the courts of appeal, and denied cert in three. All six cases involved employers who objected to coverage for all forms of contraception, as well as sterilization for women, and pregnancy counselling. In the three won by employers, the Court denied cert. In the three won by the government, the Court ordered the courts of appeal to reconsider in light of the Hobby Lobby decision.

And today, the Court issued an additional order. In Wheaton College v. Burwell, the Court granted an injunction to this religious educational institution against enforcement of the women's preventive care provisions objected to, absolving the College from filling out the government's form and delivering notice to its insurer. The government's brief in opposition is here.

Particularly notable was a dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan. In it, the three justices note that the Court had indicated in Hobby Lobby that the accommodation which required an employer to notify its insurer that it objected to certain coverage was less restrictive, implying that it would satisfy RFRA. As Justice Sotomoayor noted, 

After expressly relying on the availability of thereligious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might . . . , retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

The whole dissent is worth a read. 

MM

July 3, 2014 in Beltway Developments, Employment Discrimination, Pension and Benefits, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2014

ESOP Fiduciaries Subject to Same Duty of Prudence as any ERISA Fiduciaries

ScotusThe Supreme Court issued an important ERISA decision yesterday in Fifth Third Bancorp v. Dudenhoeffer. I'll use Paul's earlier description of the case to explain the issue:

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.

A unanimous Court reversed the Sixth Circuit and remanded for further proceedings. Justice Breyer wrote the opinion. From the Supreme Court's syllabus:

1. ESOP fiduciaries are not entitled to any special presumption of prudence. Rather, they are subject to the same duty of prudence that applies to ERISA fiduciaries in general, §1104(a)(1)(B), except that they need not diversify the fund’s assets, §1104(a)(2). This conclusion follows from the relevant provisions of ERISA. Section 1104(a)(1)(B) “imposes a ‘prudent person’ standard by which to measure fiduciaries’ investment decisions and disposition of assets.” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 143, n. 10. Section 1104(a)(1)(C) requires ERISA fiduciaries to diversify plan assets. And §1104(a)(2) establishes the extent to which those duties are loosened in the ESOP context by providing that “the diversification requirement of [§1104(a)(1)(C)] and the prudence requirement (only to the extent that it requires diversification) of [§1104(a)(1)(B)] [are] not violated by acquisition or holding of [employer stock].” Section1104(a)(2) makes no reference to a special “presumption” in favor of ESOP fiduciaries and does not require plaintiffs to allege that the employer was, e.g., on the “brink of collapse.” It simply modifies the duties imposed by §1104(a)(1) in a precisely delineated way. Thus, aside from the fact that ESOP fiduciaries are not liable for losses that result from a failure to diversify, they are subject to the duty of prudence like other ERISA fiduciaries. Pp. 4–15.

2. On remand, the Sixth Circuit should reconsider whether the complaint states a claim by applying the pleading standard as discussed in Ashcroft v. Iqbal, 556 U. S. 662, 677–680, and Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 554–563, in light of the following considerations. Pp. 15–20.

(a) Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim under Twombly and Iqbal. Pp. 16–18.

(b) To state a claim for breach of the duty of prudence, a complaint must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it. Where the complaint alleges that a fiduciary was imprudent in failing to act on the basis of inside information, the analysis is informed by the following points. First, ERISA’s duty of prudence never requires a fiduciary to break the law, and so a fiduciary cannot be imprudent for failing to buy or sell stock in violation of the insider trading laws. Second, where a complaint faults fiduciaries for failing to decide, based on negative inside information, to refrain from making additional stock purchases or for failing to publicly disclose that information so that the stock would no longer be overvalued, courts should consider the extent to which imposing an ERISA-based obligation either to refrain from making a planned trade or to disclose inside information to the public could conflict with the complex insider trading and corporate disclosure requirements set forth by the federal securities laws or with the objectives of those laws. Third, courts confronted with such claims should consider whether the complaint has plausibly alleged that a prudent fiduciary in the defendant’s position could not have concluded that stopping purchases or publicly disclosing negative information would do more harm than good to the fund by causing a drop in the stock price and a concomitant drop in the value of the stock already held by the fund. Pp. 18–20.

692 F. 3d 410, vacated and remanded.

MM

June 26, 2014 in Beltway Developments, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Kaplan on Desperate Retirees

RkaplanDick Kaplan (Illinois) has posted a new paper on SSRN entitled, Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, recently published at 20 Conn. Ins. L.J. 433 (2014). From the abstract:

A retiree’s single largest and most unpredictable expense is paying for health care, and this article explains the various choices and options that a retiree confronts regarding that expense. The article examines the traditional components of Medicare (Parts A and B), prescription drug plans (Medicare Part D), Medigap coverage, and managed care alternatives, as well as long-term care insurance. Each section addresses the financial trade-offs and time-sensitive decisions that are involved.

A great roadmap to help make sense of this complicated system that a growing section of the population has to navigate.

MM

June 23, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, June 14, 2014

Secunda on Public Pensions Litigation

SECUNDABlogger emeritus, Paul Secunda, has just posted on SSRN his article, Litigating for the Future of Public Pensions in the United States.  The abstract:

It is nearly impossible in the United States today to go long without reading a headline about some aspect of the American public pension crisis or about some State undertaking public pension reform. Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on.

These headlines involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in that drama. The underfunding of public pension plans has led not only to a number of bankruptcy proceedings, but has also led various states to reduce promised pension payouts to retired plan members or to increase pension contribution requirements for active employees. 

As a result, government officials, employees, and retirees are in the midst of litigating for the future of American public pensions. This article focuses on all three levels of American government (federal, state, and local), and reviews the current status of pension litigation at each level. Although pension litigation does not exist as of the writing of this article at the federal level, there has been a large swath of litigation involving state and local pensions over the last few years, with diverse outcomes. After discussing the federal employee pension system in the United States, the article then considers one state’s (Wisconsin) recent experience with pension reform legislation and litigation, and one city’s experience (Detroit) with the municipal bankruptcy process to illustrate emerging trends in public pension litigation that are currently playing out throughout the United States.

The start of a solution lies with harmonizing and standardizing the existing hodge-podge of American public pension law. Although ERISA is far from perfect in regulating private-sector pension plans in the United States, it nevertheless has provided uniform standards for management and administration of occupational retirement plans. In order to replicate that same consistency, this article proposes a hybrid approach which seeks to avoid some of the federalism pitfalls of previous public pension reform proposals. By applying ERISA only to federal pension plans, and by permitting the states to adopt uniform, state-wide pension legislation, public pension plans can take advantage of a reliable and stringent pension framework which will make future underfunding and fiduciary lapses less likely.

Check it out!

-JH

 

June 14, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Ninth Annual Colloquium Registration

WPBJust a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:

 https//cuboulder.qualtrics.com/SE/?SID=SV_ehPf2AWQ7ihhqfz.

 Please direct any questions to Melissa Hart (Melissa.Hart@Colorado.EDU) or Scott Moss (Scott.Moss@Colorado.EDU).

MM

June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.

MM

April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2014

Bauries on Academic Freedom and on Supreme Court Review

Scott-Bauries-FULLScott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment.  It is forthcoming in the Mississippi Law Journal, and here is the abstract:

This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.

The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract: 

In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.

Great work, Scott!

MM

April 16, 2014 in Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Hobby Lobby/Conestoga Wood Roundup

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

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

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

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

MM

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

Monday, March 17, 2014

Shriver Report Documentary: Paycheck to Paycheck

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

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

MM

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

Wednesday, March 12, 2014

Secunda New Vice-Chair of ERISA Advisory Council

SECUNDACongratulations to blog-emeritus Paul Secunda for being named Vice-Chair of the Department of Labor's ERISA Advisory Council.  According to the announcement:

U.S. Secretary of Labor Thomas E. Perez today announced the appointments of five new members to the 2014 Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. He also announced the 2014 chair and vice chair of the council, which are Neal S. Schelberg and Paul M. Secunda respectively.

"The dedicated experts who volunteer to serve on the ERISA Advisory Council are a wonderful resource," said U.S. Secretary of Labor Thomas E. Perez. "I have no doubt the 2014 council will build upon the impressive body of benefits research and analysis begun by their predecessors."

. . .  Secunda is a professor at Marquette University Law School in Milwaukee, and he has authored books and articles on employee benefits law. He previously practiced labor law in Philadelphia, and Secunda is a past chair of the section on employee benefits and executive compensation of the Association of American Law Schools.

Nice job, Paul!

-JH

 

March 12, 2014 in Labor and Employment News, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

Third Annual ERISA, Employee Benefits, and Social Insurance National Conference

This has been a busy semester for the Labor and Employment Law Program at Marquette University Law School.  In addition to the Speaker Series I wrote about this past Tuesday, we are also honored to be hosting the Third Annual ERISA, Employee Benefits and Social Insurance National Conference (program at this link) on March 28, 2014 (this follows up to wonderful ERISA conferences at Washington University Law and Michigan Business the two previous years).

To say we have an embarassment of riches does not quite capture the remarkable array of papers that are to be presented.  When you add a terrific luncheon keynote speaker in the person of Assistant Secretary of Labor for the Employee Benefit Security Administration, Phyllis Borzi, the cool factor (even for ERISA) is off thc charts.

Panels include papers on ERISA claim and plan issues, the Affordable Care Act and ERISA, the future of public pension plans and other non-ERISA pension plans here and abroad, bankruptcy issues surrounding pensions and other legacy costs, and emerging challenges for social insurance and pension programs. 

Should be a great program!

PS

February 27, 2014 in Conferences & Colloquia, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

New Speaker Series in Labor and Employment Law at Marquette Law School

I am excited to announce the kick-off of a new speaker series in labor and employment law, sponsored by the Labor and Employment Law Program at Marquette University Law School.

We are really starting the program off with a bang.  

On March 17th, Sam Estreicher (NYU Law) will be debating yours truly on his new labor law reform proposal, "Easy In, Easy Out" (details about that proposal here). You can register here.

On March 27th, in conjunction with the Third Annual ERISA National Conference at Marquette, Assistant Secretary of Labor and head of the Employee Benefit Security Administration (EBSA) Phyllis Borzi will be speaking about the Affordable Care Act. You can register here.

Finally, on April 8th, Professor Takashi Araki, former Dean and Professor of Law at the University of Tokyo Law School and Visiting Professor this semester at Harvard Law School, will be coming to speak about contemporary topics in Japanese employment law.  You can register here.

All events are scheduled at noon and include lunch.

PS

February 25, 2014 in Conferences & Colloquia, International & Comparative L.E.L., Labor Law, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

Teaching Employment and Labor Law

TeachingLast spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.

The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:

Forward

Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon

Teaching Employment and Labor Law

A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim

Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Rachel Arnow-Richman

Collaboration and Community: the Labor Law Group and the Future of Labor Employment Casebooks
Matthew T. Bodie

Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry

The Capstone Course in Labor and Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, and Professionalism
Laura J. Cooper

Constructing a Comprehensive Curriculum in Labor and Employment Law
Martin H. Malin

From Podcasts to Treasure Hunts—Using Technology to Promote Student Engagement
Marcia L. McCormick

Identifying (with) Disability: Using Film to Teach Employment Discrimination
Elizabeth Pendo

A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter

Teaching Private-Sector Labor Law and Public-Sector Labor Law Together
Joseph E. Slater

Teaching the Post-Sex Generation
Kerri Lynn Stone

You should check them out.

MM

February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, February 20, 2014

Final rule on waiting periods for employer-sponsored healthcare plans

HealthcareThe Departments of Labor, Treasury, and Health and Human Services have announced the publication of final regulations implementing a 90-day limit on waiting periods for employer provided health coverage. 

The final regulations require that no group health plan or group health insurance issuer impose a waiting period longer than 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals, and it doesn't affect non-time-period conditions for eligibility, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period. Requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.

The departments are issuing a companion proposed rule for comment. That rule  would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment. Comments must be filed by April 25, 2014.

Both the final and proposed rule are scheduled to be published on Monday, February 24, 2014.

MM

February 20, 2014 in Beltway Developments, Labor and Employment News, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

DeBofksy on How Courts Interpret the Meaning of “Civil Action” as Applied to Benefit Disputes Under ERISA

DebofskyMark 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.

PS

January 27, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Fourth Circuit Holds Temporary Disabilities May Be Covered by the ADA(AA)

DisabilitiesThe 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

MM

January 24, 2014 in Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

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

ErisaOn 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.

PS

January 8, 2014 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, December 16, 2013

Unanimous Supreme Court in Heimeshoff Permits Contractually-Based SOLs in ERISA Denial of Benefit Cases

4United States Supreme Court 112904This 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."

PS

December 16, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Bisom-Rapp and Sargeant on Sex Discrimination in the US and UK

Susan Bisom-Rapp and Malcolm SargeantSusan 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. 

MM

December 16, 2013 in Employment Discrimination, International & Comparative L.E.L., Pension and Benefits, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

U.S. Supreme Court Accepts Cert in Dudenhoeffer ERISA Moench Presumption of Prudence Case

4United States Supreme Court 112904Today, 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.

PS

December 13, 2013 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)