Wednesday, June 3, 2015
Those who have ever sat in a traffic jam or spent hours in the emergency room might take note of the Third Circuit’s recent decision in Bonkowski v. Oberg Indus., holding the time an individual is officially admitted to a hospital can make or break her FMLA claim. The question the court answered was what constitutes an “overnight stay” at a hospital, which would determine whether Bonkowski could bring an FMLA suit against his employer for his termination for trying to deal with his medical issues.
The outcome was a calendar day plus rule: an overnight stay is “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge. Bonkowski v. Oberg Indus., Inc., No. 14-1239, at *19 (3d Cir. May 22, 2015) (2-1)
A little background is instructive. The definition of “overnight stay” is the final link in a chain of statutory interpretation to determine whether an employee has a serious health condition that qualifies for FMLA protection. The statute itself defines a serious health condition as one “that involves inpatient care…or continuing treatment by a health care provider.” 29 USCS § 2611. But the DOL regulations further define “inpatient” as involving “an overnight stay in a hospital, hospice, or residential medical care facility.” 29 CFR 825.114. The question of what constitutes an overnight stay is therefore often crucial to whether an employee has a serious health condition under the FMLA.
The Third Circuit’s ruling indicates that a matter of minutes can negate an employee’s claim. Bonkowski was an employee of Oberg, the defendant employer, prior to being admitted to Butler Memorial Hospital. On November 14, 2011 he left work after experiencing chest pains and was admitted to the hospital a few minutes after 12:00 midnight. The following day, Oberg terminated Bonkowski for walking off the job. Though his time in the hospital as an inpatient spanned approximately fourteen hours, most of them in what would have been darkness at that place and time of year, the Third Circuit dismissed his FMLA suit against Oberg because he did not stay from one calendar day to the next.
A purely temporal standard does not seem particularly apt considering that Bonkowski would probably have won if he were admitted at 11:59pm – fourteen hours (in a hospital at least!) is a substantial period in anybody’s view. The announced standard frustrates the remedial purpose of the FMLA by failing to account for the ways admission might be delayed that are irrelevant to the severity of the patient’s medical condition. Bonkowski, as Judge Fuentes argued in dissent, because admission could be delayed by traffic, the particular day of the week, the overall amount of patients, understaffing, geographic region, etc. It also has the absurd result of providing coverage for an employee admitted at 11:00pm and discharged at 1:00am – depending on what “substantial” means – while denying coverage to individuals like Bonkowski.
So what led to this conclusion? Surprisingly enough, the trial court had adopted an even more draconian “sunset to sunrise” approach, which would be a surprise about the meaning of “overnight’ to anyone whose kids had a sleepover. The Third Circuit reasoned that such a rule would yield erratic results because sunset and sunrise are seasonal and vary according to geographic location. But it also criticized Bonkowski’s alternative “totality of the circumstances” test as being litigation-fomenting because of its unpredictable nature. This is likely accurate, but the “totality of the circumstances” has merit nevertheless since courts could consider all relevant factors of an employee’s hospital stay such as length of time, admittance to a room, the extent of testing, and whether the employee spent at least a portion of traditional night hours in the hospital. The totality of circumstances approach appears an improvement over the calendar day rule, but its propensity for increased litigation and inconsistent outcomes is problematic.
Perhaps the best definition is one that can be grasped by a reasonable employee, and, from that perspective, the Third Circuit’s ruling has the same propensity for confusion as the “totality of the circumstances.” While “calendar day” is clear enough, the Third Circuit declined to expand on what would constitute a “substantial period of time” between one calendar day and the next, suggesting (but not committing to) a minimum of 8 hours. Id., at *47. At this point, none of the proposed methods seem to balance equity with a definitive standard.
The most puzzling aspect of this debate is that Bonkowski was admitted as inpatient, yet the hospital’s designation was not enough to move the court. The District Court deemed this fact unpersuasive because, even though the hospital’s designation meant Bonkowski’s condition required an overnight stay, that did not mean he actually stayed overnight. Bonkowski v. Oberg Indus., 992 F. Supp. 2d 501, 509 n.9 (W.D. Pa. 2014). In any event, the courts seem to have prioritized the DOL’s requirements over the statute's language by implying that an employee can be medically but not legally inpatient. That distinction far exceeds the ability of an ordinary, reasonable employee to understand, especially one who is likely to be in pain if not crisis at the time.
Maybe the problem is an overlooked Chevron issue. The District Court rejected the hospital designation because “inpatient care is defined in the regulations as an overnight stay, meaning a plaintiff must stay overnight to qualify as receiving inpatient care.” Yet the statute speaks of “inpatient” and it’s the regulations that add the “overnight” criterion. Arguably, when a hospital decides that a patient requires inpatient care, that should suffice to establish the severity of her condition, even if she was admitted a few minutes after midnight.
And then there’s the emergency room question. By speaking of “inpatient” care, the FMLA makes clear that a trip to the ER doesn’t suffice. But suppose a patient spends three or four hours in the ER and is then admitted inpatient. Does it follow that the time before formal admission is irrelevant to the question of coverage, or even to the question of what counts as overnight?
The bottom line is that employees should be able to discern whether or not they have FMLA coverage. For now, we’ll have to wait and see how the calendar day rule plays out.
Thanks to my research assistant, Samira Paydar, for her help on this.
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)
Friday, January 16, 2015
Today, the White House announced a set of new initiatives to expand paid family leave. Among the plans:
- Healthy Families Act: proposed legislation that would require employers to allow employees to earn up to 7 days of paid sick leave per year.
- A start-up fund to help states create their own paid leave plans for their employees.
- Improved data collection through the Department of Labor.
- Proposed legislation to create paid parental leave for federal employees.
- Expanding coverage of FMLA.
- Expanding tax credits and federal funding for child care costs.
- Increased funding for family care for elderly and disabled family members.
- Improving enforcement of equal pay laws
This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.
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)
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)
Thursday, April 10, 2014
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Thursday, April 3, 2014
Monday, March 31, 2014
Brian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.
(necklace above available from the Bloggess's online store)
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)
Tuesday, January 14, 2014
Deborah Widiss (Indiana-Bloomington) has posted on SSRN her new essay, forthcoming in the Indiana Law Journal: Leveling Up After DOMA.
Here is the abstract:
Even though the provision of the Defense of Marriage Act precluding federal recognition of same-sex marriages has been held unconstitutional, more than half of the nation’s same-sex couples remain ineligible for full federal marriage rights because they live in states that do not recognize same-sex marriage. The common response to this problem is to urge Congress to enact a uniform “place of celebration” rule under which any lawful marriage would be recognized as valid for federal purposes, and many federal agencies have adopted this rule in implementing discrete statutes that reference marriage. This approach mitigates the inequity of current policy, but it has significant weaknesses that have not been adequately considered. It requires same-sex couples to travel out-of-state — and often very significant distances — to marry simply to claim federal benefits, imposing an unfair burden on same-sex couples and one which will likely further exacerbate class-based variation in marriage rates. And it increases the risk that some same-sex couples will become trapped in unwanted marriages, because jurisdictional rules typically require couples divorce in their home state and many states refuse to recognize same-sex marriages even to dissolve them.
This invited essay challenges the underlying assumption that state-licensed marriages should continue to be the exclusive mechanism for accessing core federal rights. It advocates instead creation of a federal domestic partner or “marriage” registry available to (at least) same-sex couples wherever they live. This would effectively “level up” federal marriage policy to address the discrimination against same-sex couples left in DOMA’s wake. It also suggests that a federal domestic partner registry could be structured to make at least some federal marriage rights more generally available to unmarried same-sex and different-sex couples who meet specific criteria. Even if, at some point, same-sex couples are permitted to marry in all states and the problem of derivative federal discrimination disappears, broader trends suggest that cohabitation and non-marital childbearing rates will continue to rise. A domestic partner registry could be a vehicle for more fairly and effectively distributing government benefits, rights, and obligations among diverse family forms.
Although not a traditional employment law piece, its premises are very relevant for ERISA, FMLA, and other employment-related issues. A very thought provoking proposal by Deborah, and one that should be considered seriously by policy-makers.
Monday, December 16, 2013
Zak Kramer (Arizona State) has a new paper on SSRN that I can't wait to read. The New Sex Discrimination is an attempt to rationalize our view of sex discrimination, taking into account the reality that people perform their gender identities in different ways. From the abstract:
Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.
This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.
Provocative and timely.
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing unequal outcomes for working women at the end of their careers. One set of factors falls under the heading "Gender-Based Factors." This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled "Incremental Disadvantage Factors." While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy in ameliorating or exacerbating women’s disadvantages is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (policies that tinker along the margins without considering women’s full life course) are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Really interesting work.
Friday, December 13, 2013
Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.
Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.
A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.
Wednesday, December 4, 2013
Although not a traditonal piece of labor and employment law scholarship, David Yamada (Suffolk) has written up a blog post on issues relating to intellectual activism and the role of academics as public intellectuals. It includes, among other things, a link to a short article David recently posted to SSRN, "If It Matters, Write About It: Using Legal Scholarship to Promote Social Change," which discusses how legal scholars can harness their scholarship for change initiatives and discusses some of the advocacy and public education work David has been doing on workplace bullying, unpaid internships, and other topics.
I thought this subject matter would be of interest to many readers of this blog, who through their own work seek to effect social change through intellectual activitism in the labor and employment law context.
Thursday, November 14, 2013
Cunningham-Parmeter on Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination
Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families’ domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.
Wednesday, October 30, 2013
Friend of the blog Marcy Karin (ASU) writes to remind us of a symposium/CLE that readers of the blog will be interested in, especially those of you in the New York area. On Friday, Hofstra's Labor and Employment Law Journal will be holding a symposium on health legislation and the workplace. Forging a Path: Dissecting Controversial Health Legislation in the Workplace. The symposium will take place at Hofstra University Club, David S. Mack Hall, North Campus, Hofstra University, on Friday, November 1, 2013, from 9 am to 3 pm.
The lineup is impressive. Here are the details:
Keynote Speaker: Phyllis Borzi, Assistant Secretary for Employee Benefits Security, U.S. Department of Labor
Panel 1: The Evolution of Anti-Discrimination Disability Laws: Defining Reasonable Accommodation and Disability
- Rick Ostrove ’96, Partner, Leeds Brown Law, PC
- Keith Frank ’89, Partner, Perez & Varvaro
- Marcy Karin, Clinical Professor of Law and Director, Work-Life Policy Unit, Civil Justice Clinic, Sandra Day O’Connor College of Law at Arizona State University
- Jeffrey Schlossberg ’84, Of Counsel, Jackson Lewis LLP
- E. Pierce Blue, Special Assistant and Attorney Advisor, Office of Commissioner Chai Feldblum, U.S. Equal Employment Opportunity Commission
Panel 2: Workplace Uncertainties Under the ACA: Preparing the Employer and Employee for the Road Ahead
- Jill Bergman, Vice President of Compliance, Chernoff Diamond & Co., LLC
- Steven Friedman, Shareholder and Co-Chair, Employee Benefits Practice Group, Littler Mendelson P.C.
Panel 3: The FMLA 20 Years Later: What Have We Learned and Where Do We Go From Here?
- Robin Runge, Professorial Lecturer in Law, George Washington University Law School
- Rona Kitchen, Assistant Professor of Law, Duquesne University School of Law
- Joseph Lynett, Partner, Jackson Lewis LLP
- Nicole Porter, Professor of Law, The University of Toledo College of Law
Registration is $100 per person. Includes continental breakfast, lunch and CLE credits. Free for Hofstra University students, faculty, staff and administrators.
Sponsored by: Littler Mendelson P.C.
October 30, 2013 in Conferences & Colloquia, Disability, Employment Discrimination, Faculty Presentations, Pension and Benefits, Scholarship, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 25, 2013
Freeman Guest-Blog Post: Death of an Adjunct Sparks Discussion on the Challenge of Precarious Employment in Higher Ed
I am happy to introduce below a very interesting guest post today by Harris Freeman (Western New England) on the tragic death of an adjunct faculty member at Duquesne and its labor and employment law implications. PS
This past weekend, NPR’s Weekend Edition ran a story on the death of Margaret Mary Vojtko, an 83-year old adjunct French professor at Duquesne University, and that school’s refusal to recognize the vote of its adjuncts to unionize. After 25 years of teaching French as an adjunct, Duquesne dismissed Vojtko this past spring; she was earning about $10,000 a year without benefits or health insurance. At the time of her termination, Vojtko, who was undergoing cancer treatment. supported the adjunct union backed by the United Steelworkers. In June, the Duquesne adjuncts, who comprise nearly half the faculty in the school’s liberal arts college, won a an NLRB-sponsored election. Duquesne immediately challenged the vote claiming that its status as a religious institution exempts it from any obligation to bargain with the adjunct union. The NLRB rejected the university’s position, and Duquesne has appealed. Editorials and news articles on Vojtko’s passing and the unionizing effort peppered the Pittsburgh media.
The NPR story went viral on social media, rekindling the longstanding criticisms of labor and many others in higher ed who raise a host of concerns regarding the ballooning number of adjunct faculty that are now essential to the running of most large colleges and universities. The numbers are stark. The American Association of University Professors reported in 2011 that 70% of college faculty worked outside the tenure track; in 1975 it was 43%. Part-time teachers in higher ed number more than 760,000 or about half of the non-tenured teaching faculty. NPR reports average yearly pay for adjuncts, professionals with Ph.Ds, Masters and J.D.s - often itinerant “roads scholars” teaching at multiple institutions – is between $20,000 and $25,000.
In this environment, adjunct organizing keeps gaining steam. This past spring adjunct organizing conferences sponsored by SEIU and the Steelworkers Union occurred respectively, in Boston, a veritable hub of the higher ed industrial complex, and Pittsburgh. In Boston, the home of 13,000 adjuncts, SEIU Local 500 is pursuing a city-wide, cross campus organizing strategy. Already, some larger state university systems, (e.g., University of Massachusetts) have accreted adjuncts into existing faculty unions and some small private colleges (e.g., New School for Social Research, New York; Emerson University, Boston and Georgetown, Washington D.C.) have recognized adjunct unions. In fact, SEIU Local 500 now claims that it represents the majority of adjuncts in the Washington D.C. area.
What may be new is that the current discussion of the work conditions facing adjuncts comes on the heels of a national dialog on the ills of precarious employment that keeps widening as a result of temps, part-timers, and other low-wage employees organizing and speaking out. In recent months, the major news outlets covered job actions and strikes by warehouse temps doing the grunt work for retailers in the global logistics sector and the coordinated protest strikes of low-wage workers employed at America’s ubiquitous fast-food outlets.
This information and these events provide much grist for the teaching mill in any workplace law course and a cautionary tale for all academics. In this context, recall that the ABA is considering removing the requirement of tenure for law school accreditation. The downward pull of precarious work in mainstream labor markets has a long reach that should cause all tenured faculty and others in the academy with some form of job security to take a closer look at what is happening at their law school, college, or university.
Wednesday, September 18, 2013
The Employee Benefits Security Administration (EBSA) released today guidance (Technical Release 2013–04) defining the meaning of the terms “spouse” and “marriage” under ERISA in light of the U.S. Supreme Court's decision in June in U.S. v. Windsor.
Here is the pertinent text from the Technical Release:
In general, where the Secretary of Labor has authority to issue regulations, rulings, opinions, and exemptions in title I of ERISA and the Internal Revenue Code, as well as in the Department's regulations at chapter XXV of Title 29 of the Code of Federal Regulations, the term 'spouse' will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term 'marriage' will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....
The terms 'spouse' and 'marriage,' however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law.
DOL Secretary Thomas Perez suggests that the DOL plans to issue additional guidance in the near future.