Wednesday, January 25, 2017
Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans. Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them. This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.
Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings. Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.
Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment. Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.
What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable. Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not. Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter.
Into the breach, a number of proposals have emerged to provide independent workers or independent contractors, who work for gig companies (see a recent law introduced in New York), with some form of portable, occupational retirement benefit. For instance, it has been proposed that retirement coverage be offered in the same way as health coverage has been under the ACA. An expanded Social Security could play the role of Medicaid for low income workers, employers could still offer retirement plans, but employees who lack access could purchase retirement plans on a “federal backstop plan.” The biggest problem with this approach is that it does not necessarily require workers to receive retirement benefits through their employer and therefore, such workers would not be employees entitled to the consumer protections of ERISA.
A different set of proposals involves private-sector companies stepping up to provide retirement programs on their own or in cooperation with gig companies. For instance, private internet companies, like Peers, Honest Dollar, and Betterment, are offering to provide retirement benefits, as well as other benefits and human resource services, to gig companies. However, if gig workers are offered retirement benefits by their employers under this model, such benefits are a mere gratuity, something that the employer has no responsibility for maintaining or administering as a fiduciary.
It is therefore essential that individuals who work in the sharing economy be considered common-law employees for retirement purposes under the control test established in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), so as to qualify for consumer protections under the Employee Retirement Income Security Act of 1974 (ERISA). Indeed, the crux of ERISA relies upon the fact that plan assets are held in trust and those that discretionarily operate, manage, or administer them are fiduciaries and/or trustees of the plan. Such fiduciary status means that plan fiduciaries must put their own self-interest aside, and act for the sole interest of plan participants and beneficiaries.
The good news is that there is an increasing trend of finding gig workers to be employees under ERISA. Although not directly under ERISA, employing a similar control test in the United Kingdom, two Uber drivers were recently found to be employees for purposes of British minimum wage laws. In Switzerland, a Swiss insurance agency found an Uber driver to be an employee for whom the company must pay social security contributions. Similarly, in the United States, a recent decision from the California Employment Development Department, found an Uber driver to be an employee for purposes of eligibility for unemployment law. As these laws rely on similar factors as the control test under ERISA, there is good reason to believe that workers, especially those that receive a majority or their exclusive income from gig companies and work full-time hours, will also be considered employees and qualify for ERISA protections. In any case, and this issue is far from being definitively decided, there is at least a reasonable argument that some gig workers, including Uber drivers, qualify as employees under the common-law control test of Darden.
Assuming for the sake of argument that some gig workers will qualify for protection under ERISA as common-law employees, the best mechanism for providing these employment-based retirement benefits is through open multiple employee pensions (“open MEPs”). These open MEPs would allow unaffiliated employers to pool their resources and offer retirement plans to their employees under the statutory protections of ERISA. More specifically, open MEPs permit two or more unrelated private employers to adopt a defined contribution pooled employer plan (PEP) as long as the PEP has a pooled plan provider (PPP) as the named fiduciary to the plan. The only fiduciary duty that members of the PEP would retain would be to prudently select, and then monitor, the PPP, thus limiting their exposure to potential fiduciary liability. Additionally, the price tag of permitting the formation of these organizations is relatively low: 3.2 billion dollars over 10 years from loss of tax revenue from the additional tax deduction for employers and tax-exempt status for employee contributions.
Open MEPs are gaining traction legislatively. Senator Orrin Hatch introduced the Retirement Enhancement and Savings Act of 2016, which would have permitted open MEPs for private sector employees and allow multiple employers to pool retirement funds into a single 401k retirement plan starting in 2020. Under current law, independent employers who wish to pool funds for retirement plan purposes must demonstrate a common interest. Moreover, another difficulty under current law is the so-called one-bad-apple rule, that disqualifies the entire MEP from favorable tax treatment if one employer does not meet the applicable tax rules.
Senator Hatch’s open MEP proposal would remove the common interest requirement and the one-bad-apple rule. In the recent past, this proposed model has had wide bipartisan support. Unfortunately, Hatch’s bill was not enacted in 2016, yet it is not too far-fetched, given current legislative developments, that the open MEP bill will be reintroduced during the coming Trump presidency and will soon be available for multiple employers in the private sector.
As Senator Elizabeth Warren perceptively recognized during hearings on Hatch’s bill, this new approach is well-suited for gig employees. The bill would allow various gig companies to pool their contributions to a common 401k retirement plan, with all the advantages that come with belonging to a large fund. Most importantly, such funds would have the advantages of providing participating employees diversification, low costs, reporting and disclosure requirements, and fiduciary protections based on the trust-based status of such 401k plans.
I explore the topic and proposal in greater depth in a recently-published paper available via SSRN.
Sunday, November 13, 2016
Richard Kaplan (Illinois) has just posted on SSRN his article The Cadillac Tax and Its Potential to Transform How Americans Purchase Health Care Services (2016 NYU Rev. of Ee Benefits & Exec. Comp.). Here's the abstract:
This Article examines one of the most contentious provisions of the Affordable Care Act – namely, the 40% excise tax on high-value health insurance provided by employers. This levy, commonly denominated the “Cadillac” tax, is scheduled to take effect in 2020 but has already induced many employers to raise annual deductibles on the health insurance they provide to reduce the value of such insurance and thereby lower their exposure to this new tax. After analyzing the administrative guidance proposed since the Cadillac tax’s enactment, this Article considers how that tax’s effective encouragement of high-deductible health insurance plans has inadvertently made the Health Savings Accounts that President George W. Bush promoted 15 years earlier much more appealing.
Wednesday, November 2, 2016
Edward Zelinsky (Cardozo) has just published in Cardozo Law Review's De Novo The Continuing Battle over Economically Targeted Investments: An Analysis of the Department of Labor's Interpretive Bulletin 2015-01. Here's an excerpt:
In Interpretive Bulletin 2015-01 (IB 2015-01), the U.S. Department of Labor (DOL) renewed the now two-decades old battle over “economically targeted investments” (ETIs). As a matter of statutory interpretation, IB 2015-01, like its predecessors, is unpersuasive. [ERISA] requires plan trustees to invest “solely” to provide participants’ retirement benefits. A trustee who invests in ETIs violates this statutory obligation by pursuing collateral economic benefits for persons other than plan participants. As a matter of policy, the social investing which ETIs exemplify is unsound. At best, such social investing in practice merely shuffles investment ownership without altering market-based allocations of capital.
Tuesday, October 4, 2016
ERISA scholarship has the unfair reputation of being as exciting as drying paint, but this important piece of scholarship is quite the opposite. Natalya Shnitser (Boston College) argues that the model of donative trusts that underpins private employer pension plans is entirely inappropriate. Pension plans are not "gifts" -- they are earned wages, and should be given higher priority than a discretionary gift.
Natalya's article is Trusts No More: Rethinking the Regulation of Retirement Savings in the United States (forthcoming 2016 BYU L. Rev.). Here's the abstract:
The regulation of private and public pension plans in the United States begins with the premise that employer-sponsored plans resemble traditional donative, or gift, trusts. Accordingly, the Employee Retirement Income Security Act of 1974 (ERISA) famously “imports” major principles of donative trust law for the regulation of private employer-sponsored pension plans. Statutes regulating state and local government pension plans likewise routinely invoke the structure and standards applicable to donative trusts. Judges, in turn, adjudicate by analogy to the common law trust.
This Article identifies the flaws in the analogy and analyzes the shortcomings of a regulatory framework that, despite dramatic changes in the nature of modern pension benefits, still regards employees as gift recipients, grants both settlor and trustee rights to employers, and increasingly relies on trust-based fiduciary obligations to prevent employers from prioritizing the interests of their non-employee stakeholders over the interests of pension plan participants.
Today, the mismatch between the trust-based legal framework and the parties’ rights and interests has contributed to the high cost of pension fund investing, the significant gaps in pension coverage, and the underfunding of public pension plans. As such challenges force U.S. policymakers to reconsider how and how much Americans save for their retirement, this Article shows that long-term retirement security for U.S workers requires a fundamental reevaluation of the employer, employee, and government roles in the provision and management of retirement assets.
Wednesday, September 21, 2016
Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:
In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.
"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."
Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.
"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."
In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.
"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.
The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.
Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.
Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.
September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)
Friday, August 26, 2016
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Monday, February 1, 2016
Richard Kaplan (Illinois) has just posted on SSRN his chapter What Now? A Boomer's Baedeker for the Distribution Phase of Defined Contribution Retirement Plans (NYU Review of Employee Benefits and Executive Compensation, Chapter 4, 2015). Here's the abstract:
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 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 | Permalink | Comments (0)
Wednesday, October 7, 2015
Katie Kennedy (John Marshall--Chicago) and Israel Goldowitz (Pension Ben. Guar. Corp.), members of the American College of Employee Benefits Counsel (ACEBC) Law Student Outreach Committee have written to tell us of a couple of exciting opportunities for law students to help foster interest in employee benefits as a practice area.
The committee has developed:
- A mentorship program that connects interested law students with ACEBC Fellows to learn what day-to-day practice is like as an attorney who is either in-house, government, law firm, not-for-profit or teaching; and
- A writing competition on an employee benefits topic that opens each January and closes in May/June.
Information on both of these programs is available at http://www.acebc.com. Check it out!
Sunday, July 12, 2015
Albert Feuer (Forest HIlls, NY) has just posted on SSRN his essay The Supreme Court Agrees to Determine Whether ERISA Preempts a Vermont Health-Care Database Reporting Mandate, 34 Tax Mgm’t Wkly. Rep. 860 (July 6, 2015). The essays argues for more coherent ERISA preemption principles that are consistent with the terms of ERISA than the existing Court principles. It observes that alternative frameworks have been presented in the context of the certiorari petition granted by the Supreme Court. Prof. Edward Zelinsky’s framework focuses on interactions with ERISA benefit plans; this essay focuses on ERISA benefit protections.
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: firstname.lastname@example.org. 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 email@example.com 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.