Workplace Prof Blog

Dionne: "Labor's Lost Story"

Great column from E.J. Dionne, Jr. in today's Washington Post on American Labor's current struggles, with reference to the recent General Motors mass layoff and Delphi bankruptcy.

Michael Barone, of U.S. News and World Report, isn't so sure he agrees with Dionne.

Posted by: Paul M. Secunda

Show Down at the Cash Balance Plan Corral

The Eastern District of Pennsylvania has just released a decision in Register v. PNC Financial Services Group, Inc., No. 04-CV-6097 (11/21/05), finding that the conversion of PNC's traditional defined benefit plan to a cash balance plan did not violate the age discrimination provisions of ERISA Section 204(b)(1)(H).

This is holding is in direct opposition to the Southern District of Illinois' finding in Cooper v. IBM Personal Pension Plans, 274 F. Supp. 2d 1010 (S.D. Ill. 2003), which concluded that cash balance plans almost inherently violate the benefit accrual rate age discrimination provisions of ERISA because the employee's benefit accrual must be determined solely in terms of a single life, normal retirement age annuity.  The Register Court disagreed and concluded that, "the accrual rate should be 'the change in the employee's cash balance account from one year to the next.'"

Stay tuned as the Cooper decision is on appeal to the Seventh Circuit Court of Appeals and there is every reason to believe that the Register case will find its way to the Third Circuit Court of Appeals. Of course, a circuit split in this important area of employee benefits law could mean Supreme Court intervention.

Posted by: Paul M. Secunda

Insensitive Co-Worker of the Week

PlanSponsor.com reports in this article about the following retaliation lawsuit brought against the Dana-Farber Cancer Institute in Massachusetts:

The Associated Press reports that Aliana Brodman von Richthofen testified that a co-worker, who knew much of her family had been killed in the Holocaust, said she admired Adolf Hilter and that 'He was an admirable leader.'  Von Richthofen alleges that when she complained to supervisors about the conversation, she was demoted and eventually forced to resign.

An attoney for the Dana-Farber Cancer Institutte said that the institute moved the two women out of the small office they shared and gave them separate workspaces so they would not have to interact with one anohter. "They were conscientious, effective, and responsive to Miss von Richthofen's complaint," James Horgan said.

Posted by: Paul M. Secunda 

Sharona Hoffman to Receive Award Honoring Women's Scholarship

Sharona Hoffman is one of eight women faculty members at Case Western Reserve University to be honored for their excellence in research and scholarship at the first annual Spotlight Series Awards for Women's Scholarship.  Thw award will be presented at a reception tomorrow.  In addition to teaching Employment Discrimination, Hoffman is a Professor of Law and Bioethics and the Associate Director of the Case Western Law-Medicine Center.

Left Dangling in the Winds of Legal Academia?

Inside Higher Ed reports in this article on the quandary University of Oregon law professor Merle H. Weiner finds herself in after publishing an article regarding international domestic violence disputes.  When one of the alleged batterers in one of the cases she discussed in her article for the University of San Francisco Law Review threatened to sue her, neither the law review nor the University of Oregon would agree to help defend her in the lawsuit. 

The law review removed the offending passages from its electronic data bases and the University issued a statement stating, "as was 'customary' — Weiner had agreed to indemnify the University of San Francisco against actions arising from the article. While the university [of Oregon] was happy to advise Weiner on the case, it did not feel any obligation to defend her."

On the other hand, Roger Bowen, general secretary of the American Association of University Professors, states in the same article that, "under his group’s policies, the university should have backed Weiner. The events that transpired with regard to her article were 'blatant censorship' and 'an obvious infringement on academic freedom.'"

As for Weiner, Inside Higher Ed reports her observing that, "if colleges take Oregon’s approach, other professors will be sued by plaintiffs who know that faculty members lack the resources to defend themselves. 'My fear is that this is a tool that is going to be used by certain groups and certain people to stop feminist professors and others from writing on issues that they don’t like.'"

Who do you side with?

Posted by: Paul M. Secunda

Roundtable on Reasonable Accommodation as a Part of Anti-Discrimination Law

Over on the AALS Employment Discrimination Listserv, there has been a fascinating exchange concerning the relationship between reasonable accommodation and anti-discrimination law.  Below are highlighted some of more thought-provoking comments put forward by Chai Feldblum (Georgetown), Sam Bagenstos (Washington University), Stephen Clark (Albany), and Noah Zatz (UCLA).

"[T]he strong support for liability based on non-EE harassment of EEs, the awarding of damages in even non-supervisory [hostile work environment] cases, and the failure in these cases to invoke any of the trappings of [disparate impact] all suggest that harassment law has, once again, been an important site of doctrinal innovation, including the creeping incorporation of [reasonable accommodation] into Title VII."  - Noah Zatz

"If the Court in Hardison is to be believed, the EEOC's 1967 guideline requiring accommodation of religion was consistent with Title VII before the 1972 amendment adding explicit religious accommodation language, so that provides you at least one weak precedent for [reasonable accommodation] in Title VII despite the absence of accommodation language for race and sex."  - Steve Clark

"My sense is that [Judge] Easterbrook would deny that he's incorporating an accommodation principle into harassment law.  But the analytic continuity between antidiscrimination and accommodation, which Christine [Jolls] and I tried to show different aspects of in our respective articles on the subject, means that even people who think the two concepts are very different will at times read antidiscrimination laws in ways that require what many of us would call accommodation." - Sam Bagenstos

"I think analytically we should certainly presume that any rich understanding of antidiscrimination against a group of people that has needs different from the norm requires a pro-active accommodation requirement . . . . To the extent this has not been carried over instinctively with regard to race and sex has to do, I think, more with the complications attendant on seeing those characteristics as necessarily deviating from a background norm — rather than from a limitation in what 'antidiscrimination' requires. My sense is that we will always need accommodations, in this society, for religion, disability and caregiving responsibilities — because it’s really difficult to change the background norms enough so that all folks with such characteristics will always be treated equally.  But perhaps we will not need similar accommodations for sex and race if and when we really manage to get rid of sexism and racism." - Chai Feldblum

All comments and thoughts on these comments are welcome!

Posted by:  Paul M. Secunda

Garcia on Guest Workers and Freedom of Association Post 9/11

Ruben Garcia's essay "Labor as Property: Guest Workers, International Trade, and the Democracy Deficit" will be published next year by the Iowa Journal of Gender, Race, and Justice.  Ruben presented this paper at the University of Iowa College of Law this past October.

Ruben's other essay, "Labor's Fragile Freedom of Association Post-9/11" will be published this coming February by the University of Pennsylvania Journal of Labor and Employment Law.

Ruben is also co-chairing the 2006 Conference of the Western Law Professors of Color in San Diego this upcoming March. 

Keep up the great work, Ruben!

DOL News

Recent releases from the Department of Labor:

• Opinion Letter FLSA 2005-51: nonexempt school employees who volunteer as coaches or advisors.
• Opinion Letter FLSA 2005-52: unmarried staff and the 13(b)(24) houseparent exception.
• Opinion Letter FLSA 2005-53: exempt status of health club employees who are paid mostly by commission.
• Tips for Employers on Safe and Sober Workplace Parties, or "curb the booze" at those wild holiday parties at the Dean's house!

Are Law Schools Vulnerable to Age Discrimination Suits?

Hiring practices in America’s law schools are vulnerable to an age discrimination lawsuit, according to Douglas Richmond and Ethan Burger, the co-authors of a forthcoming article on the issue in the Virginia Journal of Social Policy and the Law.   Richmond, senior vice president for Aon Risk Services, a company that provides professional liability insurance for lawyers, and Burger, scholar-in-residence at American University’s School of International Service, and an adjunct associate professor of law at the Washington College of Law, spoke at UVA Law School at the invitation of the Journal and the University of Virginia Law School’s Employment and Labor Law Association.  The issue, Richmond summed up, is that “If you’ve practiced for longer than five years, you are regarded as an undesirable law school faculty candidate.”

“One of  these suits is going to come,” Burger predicted. “And many law schools are  unprepared to defend such a suit.”

Law professor Rip Verkerke  called the complaint that legal education is not realistic enough “a fairly  well-plowed field.  The  value of practical instruction is undeniable,” he said. “The question is how  much weight to give it” [as compared to scholarship].

Hedge Funds and Pensions

Interesting article in the Sunday New York Times regarding how more pension plans (it appears the article is only referring to defined benefit plans) are putting a significant amount of plan assets into hedge funds. The reason that this raises some red flags for some (including me) is that hedge funds are usually less regulated than other forms of traditional investments and some notorious hedge funds have gone belly up in the last few years. 

Of course, with any investment undertaken by ERISA fiduciaries, the fiduciaries must act with an eye single to the interests of the participants and beneficiaries of the plan and must act as prudently as a reasonable ERISA fiduciary would under the circumstances.   There is also a requirement of prudent diversification placed on the fiduciary.  Whether all of these fiduciary duties can be met in any given circumstance remains to be seen, but I am not at all buoyed by one comment in the article in which Susan M. Mangiero, author of "Risk Management," a textbook for pension officials, "said she had come across pension executives who had not done that level of analysis. Some did not even know they had derivatives in their portfolios, she said."

In the days of Enron and United Airlines, I have to say that I am a little skeptical that this development will help pensioners in the long run, but I am certainly open to convincing by others.

Update: Vic Fleischer over at the Conglomerate blog has an interesting post on this article as well.

Posted by: Paul M. Secunda

Top-5 SSRN Employment & Labor Downloads

1.    Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.

2.    Orly Lobel, The Four Pillars of Work Law.

3.    Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.

4.    Charles A. O'Reilly & Brian G. M. Main, Setting the CEO's Pay: Economic & Psychological Perspectives.

5.    Allison Christians, Social Security in the United States Treaties and Executive Agreements.

Workplace Flexibility 2010

Chai Feldblum (Georgetown Law) writes to tell us about a project she created about two years ago called Workplace Flexibility 2010.  It’s currently funded at about $2 million/year by the Alfred P. Sloan Foundation. The goal of the project is to analyze the laws and regulations that inhibit the availability of workplace flexibility, to develop consensus around new policy approaches for enhancing workplace flexibility, and to change the political landscape so that supporting workplace flexibility can become a broad-based, bipartisan effort.  The year “2010” in the name of the project reflects the fact that it hopes to have changed the political landscape sufficiently by the year 2010 so that any new policy ideas it has developed have a real chance of becoming law at that point. 

Check out the Workplace Flexibility 2010 website!

Posted by: Paul M. Secunda

Federal Employee Rights at the Supreme Court Dec. 5

From SCOTUSblog, the United States Supreme Court will be hearing a federal employee rights case Monday, December 5, 2005 in the case of Whitman v. DOT.  The questions presented are:

1. Whether 5 U.S.C. 7121(a)'s provision that the negotiated grievance procedures of a federal collective bargaining agreement be "the exclusive administrative procedures" to resolve grievances precludes an employee from seeking direct judicial redress when he would otherwise have an independent basis for judicial review of his claims.

2. Whether the Civil Service Reform Act, 5 U.S.C. 7101 et seq., precludes federal courts from granting equitable relief for constitutional claims brought by federal employees against their employer.

Posted by: Paul M. Secunda

Wagner Moot Court Competition

The 30th Annual Wagner Labor & Employment Moot Court  Competition will be held at New York Law School on March 15-19, 2006.  The Wagner Competition is the nation’s largest student-run moot court competition and the only national competition dedicated exclusively to the areas of labor and employment law.  The NYLS Moot Court Association sponsors this competition in honor of the late United States Senator, Robert F. Wagner, Sr., a distinguished alumnus.

What is the limit of what public school teachers, as government employees, can say about political issues of the day to their students?

This is the question posed by this article today from CNN.com.  On a vocabulary quiz, one question read: "'I wish Bush would be (coherent, eschewed) for once during a speech, but there are theories that his everyday diction charms the below-average mind, hence insuring him Republican votes.' 'Coherent' is the right answer.'"

Did the teacher go too far? Back to the Connick/Pickering test, is the teacher speaking out on a "matter of public concern"? And if so, does audience matter? In other words, would there be a different outcome if this were a quiz in middle or elementary school?  All interesting questions of boundary-drawing at the intersection of employment and education law.

Comments welcome.

Posted by: Paul M. Secunda

New York Law School's Spring 2006 Labor Lunch Program

On Thursday, February 2, 2006, Susan V. John (photo at left), Chair of the New York State Assembly Labor Committee, will discuss Current Labor Issues in the New York State Assembly.  The lunch will be held at 12:45pm in NYLS Room A300.  For more information or to register, see Labor Issues in the Assembly.

On Thursday, March 2, 2006, three speakers will present Fighting Wal-Mart: Strategies for Organizing, Legislating and Litigating.  The speakers will be Paul Sonn, Associate Counsel at the Brennan Center for Justice;  Rachel Geman, partner in Lieff Cabraser Heimann & Bernstein, LLP who represents workers in a class action suit against Wal-Mart;  and Pat Purcell, Organizing Director of United Food and Commercial Workers Local 1500.  NYLS Professor Seth Harris will moderate the lunch discussion, which will be held at 12:45pmin NYLS Room A300.  For more information or to register, see Fighting Wal-Mart.

On Thursday, April 6, 2006, Joseph P. Addabbo, Chair of the New York City Council Civil Service & Labor Committee, will discuss Current Labor Issues in the New York City Council.  The lunch will be held at 12:45pm in NYLS Room A300.  For more information or to register, see Labor Issues in City Council.

Obesity Regulation in the Workplace?

The University of Chicago Law School Faculty Blog has an interesting post, with web-cast, on "Obesity Regulation" from a speech Dean Saul Levmore delivered last week to the Standard Club in Chicago.  Levmore's thought-provoking thesis is that you might be able to enlist the government to pass legislation or promulgate programs to make you do something, say quit smoking or control your weight, which you otherwise might not do on your own.  Such regulation helps with individual self-control problems.  Although Levmore does not believe such obesity regulation is likely from the government (for among other reasons, because interest groups want people obese (i.e., weight loss program companies, snack food manufacturers, etc.), on the other hand, employer arrangements that give people the incentive to lose weight might work. 

Some highlights of this talk: obesity is smoking 40 years ago. Most people aren't happy they smoke.  Same with obesity, few people are happy with being overweight.  Internal costs of obesity are large. What to do about this?    

From an employment law perspective, the obesity crisis in this country matters because of the rising health insurance costs associated with obesity. Can employers come up with arrangements whereby they would award employees for not being overweight or charge them (perhaps through higher health insurance premiums) for being overweight?  Consider that obese employees are generally not protected by anti-discrimination laws (such as the ADA).

Would such programs be a good idea, especially if a large percentage of overweight workers believe they cannot control their weight? Or even if we believe most people can control their weight, as a matter of public policy, do we want employer's interfering with decisions we make in our personal lives? Do public employees have more protection under a Lawrence-like substantive due process right to decisional non-interference in private affairs? 

To be clear, the employer would not be banning an employee from being overweight, but putting in place mechanisms which would encourage the employee to lose weight (through carrots, sticks or both).

In any event, food for thought on this Thanksgiving day.  All comments welcome.

Post by:  Paul M. Secunda

NYU Studies Mexican Immigrants to NYC

New York University School of Law’s Center for Community Problem Solving (CCPS) released yesterday the results of its study of 500 Mexican immigrants living in and around New York City.  The study found, among other things, that nearly 60% of the immigrants self-reported having suffered some form of discrimination, primarily based on language, race, and immigration status.  The broad study was intended to help learn about Mexican immigrants’ health status and access to health care, and about associations between their health status and legal status acculturation, discrimination, and social support.  For more, see Health of Mexican Immigrants Pilot Study.

DOL Sues Execs for Raiding Company's Health Plan

The Department of Labor has sued former executives of Riscomp Industries Inc. (dba RJ Associates) of Minneapolis for mismanaging the company's health plan and leaving plan participants and their families with more than $2.1 million in unpaid health claims.  The suit alleges that Robert Wood, Kurt Wood, and David Nelson violated ERISA when they retained more than $1.2 million of health plan contributions in the firm's corporate account.  At the time of the violations, the defendants served both as executives for Riscomp and as trustees to the health plan.

Riscomp was a human-resources management company that, among other things, handled employee benefits and other administrative tasks for business owners and other employers.  The DOL previously has sued the company for abandoning its 401k plan.  Riscomp has filed for bankruptcy.  For more, see the DOL's press release.

NYU Graduate Assistants and the Picket Line

Today, graduate students at NYU are entering Day 11 on the picket line, demanding recgonition from the university of their union.  For those of you who have not been following the developments in this area of labor law, the controversy surrounds whether graduate assistants are considered statutory employees under Section 2(3) of the NLRA and thus, have Section 7 rights to organize, bargain collectively, and engage in other protected activities for mutual aid or protection, all without fear of employer retaliation.

In a recent 2004 NLRB decision, a 3-2 reversal of a previous 2000 decision granting bargaining rights to the NYU graduate students, the Board determined that graduate assistants at private universities were not statutory employees under the NLRA, but rather students who have assistantship semesters as part of their financial aid packages.  Consequently, NYU withdrew recognition this past summer from the union and since that time the graduate assistants have been trying to get the university to recognize them again for purposes of engaging in collective bargaining. 

Inside Higher Ed reports that approximately 165 classes out of the 2700 offered at NYU use graduate assistants as primary instructors, but another 1000 or so graduate students help by grading or holding recitation sections.    

The tension is mounting between the university administration, graduate students, as well as disgruntled parents of undergraduate students and undergraduate students on both sides of the issue. Stay tuned!

Posted by: Paul M. Secunda