September 04, 2012
A Secunda 2-Fer
Congratulations to Paul Secunda (Marquette) on two fronts.
First, he is quoted extensively in this Labor Day story from Milwaukee public radio: Analyst: Labor Backers Have Reasons for Optimism.
Second, he just posted on SSRN his article (forthcoming 3 Am. U. LEL Forum) Cultural Cognition Insights into Judicial Decisionmaking in Employee Benefits Cases: Lessons from Conkright v. Frommert. Here's the abstract:
Decisionmaking hubris with cognitive origins is present today in many labor and employment law cases in the United States. In two previous law review articles, I explored whether anthropological and psychological explanations of judicial decisionmaking could provide meaningful insights into how U.S. Supreme Court Justices decided some of the more controversial labor and employment law decisions.
Indeed, motivated cognition of the cultural variety, or “cultural cognition,” did robustly explain how Justices’ values in two different labor and employment law cases led to different perceptions of legally-consequential facts in those cases. Culturally-motivated cognition is “the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires.” The resulting opinions by the Justices in these cases suffered from “cognitive illiberalism,” which too readily discounted the views of dissenters in favor of the majority’s views of the case. Thus, in these same works, I considered potential social science and legal debiasing techniques for ridding these decisions of delegitimizing bias, while simultaneously making them more acceptable to a larger segment of society.
This article proposes to investigate how these opinion-writing and institutional debiasing strategies could work in practice in the particularly arcane and maddeningly complex area of employee benefits law under the Employee Retirement Income Security Act of 1974 (ERISA). The hope is that the professionalization of the judicial corps through the establishment of ERISA courts based on the bankruptcy court model might promote opinion-writing debiasing techniques that reduce the amount of cognitive illiberalism in employee benefits law opinions. Although no system of judicial decisionmaking will be completely free of the effects of cultural cognition, such debiasing strategies hold out the promise that employee benefit decisions will be more likely based on widely accepted perceptions of fact and evaluation of legal arguments, rather than based on the subconscious cultural biases of the sitting judge.
August 31, 2012
No Private Right of Action for Expressing Milk
Mike Maslanka writes over at Work Matters about Salz v. Casey's Marketing Co. (N.D. Iowa), which interpreted a provision of the Patient Protection and Affordable Care Act that requires employers to provide female employees a place other than a bathroom to express milk for their infants. The court dismissed on 12(b)(6) a claim by a a woman that her employer failed to do so. The court held that the law does not provide a private right of action -- enforcement is only through the Department of Labor.
Saving Small Employer Health Insurance
Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.
August 17, 2012
Lurie on A Nonpartisan View of the Uncivil Wars Over Health Care Law
Friend of the blog, Alvin Lurie, has a guest commentary up over at Benefits Link entitled: A Nonpartisan View of the Uncivil Wars Over Health Care Law and How They Have Affected the Three Branches of Our Government, Particularly the Self-Inflicted Wounds of the Supreme Court.
From the Introduction/Apologia:
The author has attempted in this piece to present an objective "big picture" of what he has called an "uncivil war", and to cast a spotlight on some of its chief consequences for the main instruments of our government. His interest is not to shake these key pillars of our system per se, but to show the effects of their actions on the state of our society. This is not a Democratic issue or a Republican issue, but a National one. It is not a question of whether you like Obama or not. The author asks the reader take off his or her party-tinted glasses and to consider this matter as an American, that is to say as a nonpartisan. That is asking a lot, because most people come to this issue with a political predisposition. The matter of health care for America is too important to let politics get in the way. The medical books do not list "Democratic Diabetes" or "Republican Rheumatism."
The reader is cautioned not to mistake the term "nonpartisan" for "neutral." The author has strong views on many of the subjects touched upon in the lines that follow, as will quickly become apparent. The reader may detect biases in some of the author's comments, to which the only honest response would be, in legalese, nolo contendere. But the author's biases are not grounded in political allegiance to either the Democrats, who passionately support the Affordable Care Act which their votes enabled to become what has been called the President's "signature legislative achievement" of his term of office, or the Republicans, who perhaps even more passionately have fought the law by not having cast a single vote for its enactment and who have vowed to repeal it root and branch when and if they gain the requisite votes in Congress—with or without a little help from the man then occupying the Oval Office.
It is said as this piece is written that the vote in November is now too close to call. Just as close would be a vote by the public at this time as to which branch it least respects. That is not a good place for the country to be now. Our course going forward in these difficult economic times will be difficult enough if we all pull together on the things that matter (admittedly a near impossibility in an election period). But the piece that follows has been composed in the hopes that it will supply information about adoption of the health legislation and the Supreme Court's decision upholding the law that is not readily accessible to most readers and, in so doing, thereby provide open minds with food for thought as a counterbalance to the sound bites that now drown out objective discourse on health care reform.
Read the whole thing. A very interesting take on an extremely important issue facing the United States in the coming years.
August 15, 2012
Zelinsky on Pension Underfunding via Interest Rate Assumptions
Ed Zelinsky (Cardozo) has just posted on OUP Blog Public Pensions’ unrealistic rate of return assumptions. Here's the take-away:
The problem of underfunded public pensions cannot be solved until it is acknowledged. Unrealistically high rate of return assumptions, like those embraced by CalPERS and other public retirement plans, mask the magnitude of the underfunding of public pensions. The refusal to confront the problem of pension underfunding may help state officials to get re-elected by kicking the proverbial can past the next election, but the problem cannot be ignored indefinitely. The longer the problem of underfunded state pensions is ignored, the more difficult will be the ultimate adjustments required of state taxpayers and state employees.
Sure wish my 401k was earning even half of what these pension plans are assuming as rates of return.
July 13, 2012
Citizens United + Public Pensions = Compelled Speech
In its Citizens United decision, the Supreme Court held that companies have a First Amendment right to make electoral expenditures with general corporate treasuries. And they’ve done so, with relish, pouring millions into the political system.
What Citizens United failed to account for, however, is that a significant portion of the money that corporations are spending on politics is financed by equity capital provided by public pension funds — capital contributions that the government requires public employees to finance with their paychecks.
This consequence of Citizens United is perverse: requiring public employees to finance corporate electoral spending amounts to compelled political speech and association, something the First Amendment flatly forbids.
Contrast this situation with how the court treats political spending by unions. In many states, public employees are required to pay dues to a labor union. If the public employees union were to spend any of the money raised through dues on politics, the court has ruled, the dues requirement would amount to forced political speech and association. To prevent this First Amendment violation, the court has held that no union may use an employee’s dues for political purposes if the employee objects.
The same should be true for pension funds and corporate politics.
Hat tip to Joe Slater (Toledo) for posting a link to this article on facebook.
July 12, 2012
Call for Papers: 2013 ERISA Conference: Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention
The co-organizers of the 2013 ERISA Conference, Dana Muir (Michigan Business) and Andrew Stumpff (Michigan Law) have issued a Call for Papers for Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention.
The conference is scheduled to take place on Friday, March 22, 2013 at the University of Michigan, Stephen M. Ross School of Business.
The conference organizes welcome your ideas and paper proposals. They also plan to have a lunch roundtable to discuss the disconnect between the perception people have of ERISA as a narrow field and its actual importance and breadth. Their goal is to develop strategies to remedy the misperception.
Here are some important dates for the conference:
1. September 21, 2012. Please submit an abstract of 150-250 words and an outline of up to 3 pages to both Dana and Andrew via email (email@example.com & firstname.lastname@example.org).
2. October 5, 2012. Dana and Andrew will notify people of decisions on acceptance. They hope that if your paper is accepted that you are able to commit on October 5 to finishing it by March 1 and presenting it on March 22.
For further information contact either Dana (email@example.com) or Andrew (firstname.lastname@example.org).
June 25, 2012
Busy Day at the U.S. Supreme Court (Labor and Employment Law Edition)
As the nation now waits until Thursday for the healthcare decision, this post focuses on a number of labor and employment law case law happenings as far as other new Court decisions and new certiorari grants.
On the decision side, the Supreme Court invalidated an Arizona law today in Arizona v. United States (US Supreme Ct 06/25/2012) that would have made it a crime "for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." The Court affirmed that this portion of the Arizona statute is preempted by the Immigration Reform and Control Act of 1986 (IRCA) because that federal law has a comprehensive framework that makes it illegal for employers to knowingly employ unauthorized workers and that framework does not impose federal criminal sanctions on the undocumented workers. Therefore, a state law cannot impose criminal sanctions for this conduct either.
On the cert. side, the Supreme Court took both a Title VII and ERISA case. In Vance v. Ball State University, the 7th Circuit concluded the authority to direct an employee's daily activities does not establishes supervisory status under Title VII. The Supreme Court will decide "whether as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth 'supervisor' liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to 'hire, fire, demote, promote, transfer, or discipline' their victim."
Finally, an ERISA case of the reimbursement (Knudson/Sereboff) variety has made it to the court. In U.S. Airways Inc. v. McCutchen, the Court will consider whether courts are authorized to use equitable principles to rewrite contractual benefit plan language and refuse to order plan participants to reimburse their plan for benefits paid, even in cases in which the plan's terms give it an absolute right to full reimbursement. The appellate courts have been divided oveer whether ERISA Section 502(a)(3) authorizes courts to take such steps.
June 19, 2012
ERISA Conference Announcement and Call for Papers (U Michigan-March 2013)
Regulation of Benefit Plans: The Most Consequential Subject to Which No One Pays Enough Attention
Announcing a one-day national conference for leading scholars and policy makers.
When: We’re still deciding and want your input if you have a preference. Friday, March 15, 2013 or Friday, March 22, 2013. Please send Andrew or Dana your preference by Friday, June 22.
Where: University of Michigan, Stephen M. Ross School of Business
Co-organized by: Dana Muir, Arthur F. Thurnau Professor of Business Law, Michigan Ross School of Business,email@example.com and Andrew Stumpff, Lecturer, University of Michigan Law School,firstname.lastname@example.org
Tentative panels and topics include:
“Meta” Analysis of ERISA
· The development of the field
· The field’s regulatory style
· What the statute says about U.S. politics & society
· Major implications of U.S. employee benefits law for other areas of law, policy, & academic research, & vice-versa
The Economics of U.S. Employee Benefit Plans
The conference organizers welcome your ideas and paper proposals as well.
Call for Papers: Details will follow soon when the conference organizers have decided on a firm date. They expect to ask for proposals by mid-August so please start thinking about topics.
Accommodations and Expenses: The conference organizers expect to be able to block hotel rooms for conference participants at the Michigan Ross Executive Education Center, which is connected to the business school building where we plan to hold the conference. They also will provide information on shuttle service from Detroit Metropolitan Airport (DTW), which is about a half hour away from Ann Arbor. Details concerning individual reservations will follow. Conference participants should plan to pay for transportation and lodging; the conference organizers hope to be able to provide meals without charge.
For further information contact either Andrew (email@example.com) or Dana (firstname.lastname@example.org)
May 19, 2012
Lurie on Government Pension Problems
Alvin Lurie has recently posted on BenefitsLink called, "Can Peter's Sponsor Borrow From Peter To Pay Peter?" The intro:
Whose skin is in the game when pension plans make loans to plan sponsors to pay pension contributions, and is the answer different if the plan sponsor is a government body?
Those questions come to mind on learning that last year the highest elected officials in New York State authorized financially distressed local governments in the state to use a problematic borrowing scheme to defer a portion of their pension liabilities, by, in effect, borrowing from the state pension system to satisfy significant percentages of contributions owed to the pension trust for the retirement benefits of their respective employees. In fact, more than just permitting its municipalities to engage in this financing scheme, the state itself went to that same window to cover a portion of its own pension liabilities. Some observers have called it "irresponsible." The more pressing question is whether it is legal or just a skin game.
Lurie provides a lot of info on the issue, so check it out.
May 11, 2012
Employment Ramifications of Dewey Collapse
It's old news that Dewey & LeBoeuf is collapsing / has collapsed. Yesterday, the PBGG announced it is taking over Dewey's pension plans, which collectively are underfunded by an estimated $80 million (see related story at Above-the-Law). The Wall Street Journal reports that a WARN Act suit already has been filed. And Bill Henderson has an excellent post over at the The Legal Whiteboard on the nonlegal obligations the partners at Dewey owe their staff:
What do Dewey & LeBoeuf partners (and recent ex-partners) owe their staff? I’m not talking about technical calculations based on the federal WARN law. I am talking basic principles of human decency that have to be followed in order to look one's self in the mirror each morning—what our non-professional parents or grandparents would tell us to do.
May 06, 2012
Feuer on Superseded ERISA Claims
Albert Feuer has posted on SSRN his latest article, "A Misguided Kennedy Offspring from the Third Circuit," which will appear in Tax Management Weekly. The abstract:
The Third Circuit, in Estate of William Kensinger, Jr. v. URL Pharma, 2012 U.S. App. LEXIS 5741 (3rd Cir. March 20, 2012) (“Kensinger”), recently held that a federal common-law waiver by a participant’s designee may be used to force the designee to transfer her benefit payment to the person who would be entitled to the benefit, if the designee were not so entitled. The Third Circuit, which relied largely on the tenth footnote in Kennedy v. Plan Administrator of the Du Pont Savings and Investment Plan, 555 U.S. 285 (2009) (“Kennedy”), thereby entered the fray over whether a person with a superseded claim to an ERISA benefit may, after the plan has distributed the benefit, wrest the benefit in full, or in part, from the owner and recipient of such benefit.
ERISA § 514(a) preempts state-law ownership claims to employee benefits, unless the terms of the ERISA plan provide for such a claim. The terms of most pension plans must provide for compliance with the terms of a domestic relations order that satisfies the QDRO requirements. The terms of other plans need not provide for the deference to any domestic relations orders. Kennedy discussed the effectiveness of a federal common-law waiver that is part of a domestic relations order.
Kennedy provided that (1) ERISA does not preempt a benefit waiver by a participant’s former spouse “embedded in a domestic relations order;” and (2) such waivers are superseded unless the plan terms provide for such a waiver. Thus, if the plan terms do not provide for such a waiver, the default designee may not use the waiver to force the plan to pay it the benefit rather than the former spouse. Moreover, the result appears to be the same if a plan’s terms provide for such a waiver without discussing the rights of the default designee to the waived benefit. Such plan provisions only appear to permit the former spouse to voluntarily decline the benefit.
The paper argues that a person, with a preempted or superseded ownership benefit claim, may not wrest the benefit in full, or in part, from the owner and recipient of such benefit from the plan. In short, Kensinger was decided incorrectly.
Albert notes that not everyone agrees with his position: Geoff Ward, “Clear, Voluntary, and Made in Good Faith: An Alternative to the Supreme Court’s Incorrect Approach to Resolving Conflicts Between Common Law Waivers and ERISA Plan Documents in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan,” 64 Tax Law, 1003 (2011).
March 27, 2012
Secunda on the Comparative Lack of Privatization in American Social Insurance Programs
Paul Secunda (Marquette) has just posted on SSRN his timely article Explaining the Lack of Non-Public Actors in the U.S. Public Social Insurance System. Here's the abstract:
There are currently very few non-public actors playing a role in the federal and state social insurance programs in the United States. Yet, “projected long-run program costs for both Medicare and Social Security are not sustainable under currently scheduled financing, and will require legislative corrections if disruptive consequences for beneficiaries and taxpayers are to be avoided.” As financial pressure increases on these programs, as it surely will, Americans may become more willing to go the privatization route and engage more non-public actors in the provision of social insurance.
In the meantime, the paradox of the American social insurance system is that while disclaiming any desire for socialist-type programs, most Americans today believe that only the government should be responsible for providing the social insurance safety net. On the one hand, this could be because U.S. citizens are seeking to hold on to what meager social safety net they have left. On the other hand, scarred from the recent global recession and underhanded actions by many private investment firms and banks, most Americans are not yet ready to place their faith in these private actors, even if more efficiency, cost-savings, and activation could be achieved by doing so.
What this all means is that unlike its counterparts in Europe, the United States social insurance system does not appear to have an incipient movement in which non-public actors will start to play a larger role in any American social insurance program in the near future. At the same time, the stability of the current system means there is unlikely to be the same diminishment in solidarity that is sometimes seen with the introduction of non-public actors into these programs in other countries.
March 09, 2012
Secunda on Pension Reform
Paul Secunda (Marquette) has just posted on SSRN his article Lessons from the Ontario Expert Commission on Pensions for U.S. Policymakers. As I just mentioned, I agree wholeheartedly that our pension system is in dire need of reform. Here's Paul's abstract:
Professor Harry Arthurs recently served as the sole member of the Ontario Expert Commission on Pensions (OECP) and recommended some 142 recommendations for reforming and reinvigorating Ontario’s occupational pension system. Some of these pension reforms have already been enacted.
This paper explores the process by which the Province of Ontario appointed a commission to study pension reform, the recommendations that were put forth in the Commission report, and why the government has implemented some of these proposals and not others since the report’s publication in 2008. After considering each of these questions, the article concludes by seeking lessons that can be learned from the Canadian experience as the United States continues to consider its own occupational pension reforms. More specifically, the objective of this article is to outline for the Employee Benefit Security Administration (EBSA) politically feasible methods to implement much-needed occupational pension reform in the United States.
Zelinsky on Pension Underfunding
Ed Zelinsky has just posted, on OUP log, Public pensions, private equity, and the mythical 8% return. As I've mentioned here, I believe that public pensions are headed for an epic disaster, and grossly inflated rate-of-return esxpectations are a big part of the problem. Here's a teaser for Zelinsky's essay:
Public pension plans should not invest in private equity deals. These deals lack both transparency and the discipline of market forces. Private equity investments allow elected officials to assume unrealistically high rates of return for public pension plans and to make correspondingly low contributions to such plans. This is a recipe for inadequately funded pensions, an outcome good for neither public employees nor taxpayers.
February 16, 2012
Washington University Law School ERISA Conference: Employee Benefits in an Era of Retrenchment
Here is a link to the conference web page with participants and panels. You will also find there information on travel and accommodations. Papers will be published in the ABA Journal of Labor and Employment Law later this year.
When: Thursday, March 29, 2012
Where: Washington University School of Law, St. Louis, Missouri
Sponsored by: Center for the Interdisciplinary Study of Work and Social Capital and Washington University School of Law
For further information contact Shelly Henderson-Ford, Administrative Coordinator for the Center for the Interdisciplinary Study of Work and Social Capital, email@example.com, (314) 935-6161.
February 08, 2012
Arizona Public Pension Changes Found Unconstitutional Under Contracts Clause
February 06, 2012
Zelinsky on Romney's IRA
On a personal level, I enjoyed the news reports that Mitt Romney holds assets worth tens of millions of dollars in his individual retirement account (IRA). These reports confirm a central thesis of The Origins of the Ownership Society, namely, the extent to which defined contribution accounts, such as IRAs and 401(k) accounts, have become central features of American life.
I was also gratified as colleagues, friends and neighbors who are often skeptical of what I do for a living (“You actually teach about pensions?”) sought my opinion about Mitt Romney’s IRA. Since we don’t have all of the details, my answers entailed a certain amount of conjecture. For those too sheepish to ask, here are the questions most frequently posed to me and my answers ....
February 01, 2012
Call for Papers for American University Law Labor and Employment Law Forum
Lauren Khouri, Senior Content Editor of the American University Labor & Employment Law Forum writes to tell us that the Forum is issuing a paper call. The paper call is attached here.
Here are som details of the paper call:
The Labor & Employment Law Forum is seeking articles for publication on the following topics:
1) Employee Benefits, including:
• The effects of ‘Don’t Ask Don’t Tell’ repeal;
• The possible Defense of Marriage Act (“DOMA”) repeal;
• The ramifications of the Patient Protection and Affordable Health Care Act;
2) Politicization of the labor movement, including:
• Occupy Wall Street;
• The impact of the Citizen’s United decision on the Labor Movement;
• The continuing attack on Public Sector workers;
• Community organizing and the labor community
3) Paid Sick Days, including:
• The national paid sick day movement
• The effect of paid sick leave on women and children
January 29, 2012
Execs Skimp on Pension Payments to Pad Their Own Pockets
We've reported before on the underfunding of public and private pensions. An article in The Economist points out that some of the same private-sector companies underfunding their pensions also are engaging in share-buyback schemes. Why? Because share buybacks artificially inflate the company's stock price (it reduces the supply of stock without the need for improved company performance) and thereby justify high executive compensation and bonuses. Meanwhile, the same companies are assuming an unrealistic 10% rate of return on investments in pension funds -- even though top executives as a group forecast equity returns of 6.3%. Good deal for corporate execs; bad deal for rank-and-file employees.