Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Sunday, April 19, 2015
Edward Zelinsky (Cardozo) has just posted on SSRN his article
(Cornell Law Review On Line, Vol. 100, 2015) Gobeille v. Liberty Mutual: An Opportunity to Correct the Problems of ERISA Preemption. Here's the abstract:
Gobeille v. Liberty Mutual Insurance Company is an opportunity for the U.S. Supreme Court to correct the three fundamental problems of its current ERISA preemption jurisprudence. While incrementalism has its virtues, on balance, it would be better for the Court to use Gobeille to correct the basics of ERISA preemption.
Specifically, the Court should acknowledge the tension between Shaw v. Delta Air Lines, Inc. and the Court’s subsequent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. by reconsidering the statute afresh. As part of such reconsideration, the Court should construe ERISA § 514(a) as creating a presumption for preemption. Such a construction of § 514(a) respects the text of the statute without yielding to the potential indeterminacy of the statute’s broad language. Finally, the Court should jettison the notion that traditional areas of state law as defined by the Court are immune from ERISA’s more expansive than usual preemption and should instead acknowledge what the statute says: Per §§ 514(b)(2)(A) and 514(b)(4), the areas immunized from ERISA’s more stringent preemption are – and are only – state banking, securities, insurance, and criminal laws.
In the final analysis, a system of statutory law requires courts to take statutes seriously.
Tuesday, March 31, 2015
Congratulations to blogger emeritus and our friend Paul Secunda (Marquette), who has been awarded a Senior Fullbright Scholar award for this fall. He will be teaching and conducting research on the national pension program in Australia. Paul will become a senior fellow at the Melbourne University Law School, teaching courses and conducting research on the Australian Superannuation workplace pension system, which is widely considered to be a global benchmark for workplace pension programs. You can get more detail from Marquette's press release. Great work, and wonderful news, Paul!
Sunday, March 1, 2015
Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means. Here's an excerpt from the abstract:
In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.
The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.
* * *
Monday, February 2, 2015
Last week, the Supreme Court decided two labor and employment cases. In one, M&G Polymers, a unanimous Supreme Court held that courts should apply ordinary contract principles when deciding whether health-care benefits survive the expiration of a collective-bargaining agreement. This holding reversed the Sixth Circuit's Yard-Man presumption that CBAs intend these benefits to vest for life. The Court remanded for the CBA to be interpreted by "ordinary contract principles," but ominously noted that "when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life." This stance seemed to be a primary motivation for a four-Justice concurrence (the more liberal Justices). The concurrence stressed that courts should be open to interpreting a CBA to intend vesting of retirees' health benefits, albeit without the Yard-Man "thumb on the scale." The impact of M&G Polymers will depend on how courts apply the decision, so we'll have to wait and see.
In the other decision, Department of Homeland Security v. MacLean, the Court held (7-2, with Justices Sotomayor and Kennedy dissenting) that a TSA regulation did not eliminate whistleblower protection. At issue was a provision in the federal whistleblower statute that makes an exception for disclosures "specifically prohibited by law." In MacLean, the Court held that Congress intended this provision to apply to statutes, but not agency regulations (e.g., elsewhere in the statute, Congress used the phrase "law, rule, or regulation"). The dissenters largely agreed with the majority, but thought the exception was satisfied by the Homeland Security Act's mandate that the TSA prescribe regulations to prevent disclosure of certain information. This case is certainly a win for federal whistleblowers and will require Congress to be more proactive if it wants exceptions for certain whistleblower disclosures.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: email@example.com. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 17, 2014
Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits. The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.
If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at firstname.lastname@example.org by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.
Monday, August 25, 2014
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (University of Middlesex Business School) have posted on SSRN the page proofs for their article, It’s Complicated: Age, Gender, and Lifetime Discrimination Against Working Women – The United States and the U.K. as Examples, forthcoming at 22 Elder L.J. 1 (2014). From the abstract:
This article 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 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce 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. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, 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.
Thursday, July 3, 2014
Post-Hobby Lobby, Court Says Religious Non-Profit Need Not Notify Insurer that It Objects to Coverage
The 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.
Thursday, June 26, 2014
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.
Monday, June 23, 2014
Dick 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.
Saturday, June 14, 2014
Blogger 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!
Thursday, June 12, 2014
Just 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:
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
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.
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
Scott 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!
Wednesday, March 26, 2014
The 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.
Monday, March 17, 2014
Back 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.
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
Congratulations 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!
Thursday, February 27, 2014
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!