Tuesday, February 28, 2006
Following up on a previous post I did a number of months ago about employers using social networking sites like Facebook or MySpace to find out more about prospective employees, Business Week Online has an interesting article on the growing use of such practices.
According to the article:
Getting fired for blog entries is so common now that it's come to be characterized by the term "dooced." Dooce.com, a blog kept by one of the dooced, has seen its traffic more than double over the past year, according to Web site ranker Alexa. One networker who asked not to be identified says she regularly peppers her entries with fiction so she can avoid being identified by her employer.
All of this is, of course, very interesting, but the article's conclusion that being fired for blogging has become "common" seems a tad overblown and supported with thin evidence. I checked out the dooce.com site and although there is some talk about being fired for having a website or blog, there is certainly much else being discussed there as well.
In other words, I don't think there is a clear inference to be drawn about the number of recent blog firings based on the mere fact that the dooce.com site's popularity has grown dramatically over the past year. It might just be that people love reading about other's misfortunes (especially when newer internet technology is involved). And one anecdote from one "networker," of course, doesn't seal the deal either.
Nevertheless, there are still many employees who have been fired for their websites and blogging activities as I have documented here and here, and there are really interesting labor law implications surrounding blogging and employee workplace rights as discussed here.
In short, with now over 29 million blogs out there and some 5% of workers having blogs, there will inevitably continue to be clashes between employers and employees over blog use, both off and on the job. It will be interesting to see in the months and years to come just how the various groups (i.e., employers, employees, unions, etc.) determine how to cope with the implications of this new digital medium.
Hat Tip: Execupundit.com
Judge Richard Posner of the Seventh Circuit Court of Appeals authored a recent ERISA opinion concerning whether an insurance carrier involved in handling claims under a disability plan was a fiduciary for purposes of ERISA. The issue came up in a denial of disability benefits case in which the court was exploring whether the arbitrary and capricious standard for denial of plan benefits was the appropriate one in light of the entity handling claims under the plan.
In Rud v. Liberty Life Assurance Co. of Boston, 2006 WL 399149 (7th Cir. Feb. 22, 2006), although the employer acted as the plan administrator, Liberty Life handled claims under the disability benefits plan. Plaintiff had his disability benefits terminated by Liberty Life and sued the insurer under both ERISA and breach of contract theories. After the case was removed to federal court, the court dismissed the plaintiff's denial of benefit claims under the arbitrary and capricious standard. The plaintiff challenged the standard of review arguing that Liberty Life was neither a plan administrator, nor otherwise a fiduciary.
Not so said Judge Posner. Stressing the functional definition of an ERISA fiduciary, Judge Posner explained that since Liberty Life clearly exercised discretion in the administration of the plan assets, Liberty Life qualified as a fiduciary of the plan. As such, the arbitrary and capricious standard applied, and unlike the SIxth Circuit case blogged about yesterday, the utilization of that standard signaled the doom of the plaintiff's case.
No fireworks here folks, but it is encouraging to see a clean ERISA federal appellate circuit opinion in an area in which such opinions are more the exception than the rule.
Last Update (3/3): Northwest and Pilots Reach Pay-Cut Deal
From Yahoo! News (through the AP):
The pilots union at Northwest Airlines Corp. said Tuesday that its members have authorized a strike if the carrier imposes its threatened pay-cut and work-rule changes.
More than 92 percent of pilots voted in favor of authorizing a strike, said Wade Blaufuss, spokesman for the Northwest branch of the Air Line Pilots Association.He said more than 90 percent of Northwest's 4,851 eligible pilots voted.
The vote authorizes union leaders to call a strike, but doesn't guarantee that they will. The union has said it wouldn't strike unless Northwest imposes pay-cut and work rule changes. Wednesday is the earliest that could happen. That's the day that New York bankruptcy judge Allan Gropper is set to rule on the airline's request to reject its union contracts with pilots and flight attendants.
The rest of the story is here.
Needless to say, a pilots' strike would be devastating and yet it is unclear whether the airline can successfully emerge from bankruptcy without additional concessions from its pilots.
Thing are certainly at their bleakest point for the Red Triangle Airline and for air travelers at NW hub cities like Memphis, Detroit, and Minneapolis.
If we permit parties who lose in arbitration to freely relitigate their cases in court, arbitration will do nothing to reduce congestion in the judicial system; dispute resolution will be slower instead of faster; and reaching a final decision will cost more instead of less. This case is a good example of the poor loser problem and it provides us with an opportunity to discuss a potential solution.
So states the 11th Circuit's opinion today in B.L. Harbert Int'l, LLC v. Hercules Steel Co., No. 05-11153 (11th Cir., Feb. 28, 2006).
Responding to what it see as an increasing end around the arbitration process, the court suggested that it might be more willing in the future to use sanctions when losing parties appeal arbitration awards without any sound basis in law.
In this regard, the Court commented in this construction industry arbitration case:
This is a typical contractual dispute in which the parties disagree about the meaning of terms of their agreement. There are arguments to be made on both sides of the contractual interpretation issue, and they were made to the arbitrator before being made to the district court and then to us. Even if we were convinced that we would have decided this contractual dispute differently, that would not be nearly enough to set aside the award.
The only manifest disregard of the law evident in this case is Harbert’s refusal to accept the law of this circuit which narrowly circumscribes judicial review of arbitration awards. By attacking the arbitration award in this case Harbert has shown at best an indifference to the law of our circuit governing the subject. Harbert’s refusal to accept that there is no basis in the law for attacking the award has come at a cost to the party with whom Harbert entered into the arbitration agreement and to the judicial system.
Courts cannot prevent parties from trying to convert arbitration losses into court victories, but it may be that we can and should insist that if a party on the short end of an arbitration award attacks that award in court without any real legal basis for doing so, that party should pay sanctions. A realistic threat of sanctions may discourage baseless litigation over arbitration awards and help fulfill the purposes of the pro-arbitration policy contained in the FAA. It is an idea worth considering.
All this being said, the Court decided not to award sanctions against Harbert because it had not been on notice, prior to this opinion "that this Court is exasperated by those who attempt to salvage arbitration losses through litigation that has no sound basis in the law applicable to arbitration awards."
Parties to arbitrations subject to the FAA in the 11th Cir. (including arbitrations involving employment disputes) should now consider themselves so warned.
Hat Tip: Howard
Keeping somewhat with the Wal-Mart and Labor theme that Rick started this morning, here's an interesting article from Reuters.com on a step that Wal-Mart has taken to patch its public image when it comes to workers' rights.
According to Reuters:
Civil rights leader and former Atlanta mayor Andrew Young will become the public face of a Wal-Mart-backed group whose aim is to combat criticism of the world's largest retailer, the group said on Monday.
Young, who was an aide to Rev. Martin Luther King Jr. during the civil rights protests of the 1960s and served as ambassador to the United Nations under President Jimmy Carter, will serve as chairman of Working Families for Wal-Mart's national steering committee, the group said in a statement.
Wal-Mart Stores Inc. was among the financial backers of Working Families for Wal-Mart, a group of people "who understand and appreciate Wal-Mart's positive impact on the working families of America," according to its Web site.
"The critics have it wrong," Young said in a statement. "For those who care about the poor it is time to step up, speak out and join this national discussion."
Count me unimpressed. Wal-Mart should not be congratulated for buying itself a civil rights icon to defend its horrid workplace policies.
You cannot buy integrity.
Final Update (3/2): NFL Contract Talks Officially Broke
Another Update: Professor Stephen Bainbridge has a unique outlook on the whole NFL labor impasse.
Update: Talks Break Down Yet Again.
ESPN.com is reporting that owners plan to meet today amidst signs that there has been some progress made in the current labor talks with the NFL Players' Association. (I had previously posted on the bleak NFL labor situation here.) The NFL owners hope to strike an 11th-hour deal with the union.
According to the ESPN.com story:
The scheduling of the conference call might be the most concrete sign yet to substantiate whispers that the NFL and NFL Players' Association, who have been discussing the proposed extension for more than a year, have finally made some headway in breaking the inertia that has marked negotiations. Without the add-on, the 2007 season would become a so-called uncapped year with no spending limit and no minimum, and players could potentially face a lockout in 2008.
Team officials and player agents have said that doing business without an extension -- particularly with the free agent signing period set to begin Friday and the draft on April 29-30 -- will prove virtually impossible. Because of the extreme circumstances that would exist with an uncapped year on the horizon, it would be difficult to meet the financial expectations of free agents and high-round draft choices.
Compounding the situation is that several franchises are in the throes of salary cap overages and will find it difficult, if not painful, to come into cap compliance for 2006 without an extension. If an extension is not struck before Friday, several cap managers acknowledged, there figures to be many veteran players purged from rosters in the next few days.
Here's hoping the league and the Players' Association don't shoot themselves in the foot a la the NHL.
The State of Vermont (the State House is pictured left) is considering whether to amend its state anti-discrimination law to more expressly protect against discrimination in jobs, housing, etc. against transgender individuals.
According to 365Gay.com:
Vermont would become the eighth state in the nation to protect people from discrimination based on their gender expression under a bill due for debate in the House this week. The bill would amend the state's anti-discrimination statute to add "gender identity or expression" to the list of characteristics that may not be used to deny someone housing, a job or some other public accommodation.
"The term `gender identity or expression' means an individual's actual or perceived identity, appearance, expression, or behavior, regardless of the individual's assigned sex at birth," the bill says.
A growing list of major corporations, including IBM Corp., educational institutions such as the University of Vermont, as well as 76 cities and towns around the country have adopted nondiscrimination policies that cover people for their gender expression, according to the Transgender Civil Rights Project of the National Gay and Lesbian Task Force.
In a previous post about similar legislation in Washington State, I had questioned the use of "gender identity or expression" as a way to protect against discrimination against the transgender community, but clearly, and consistent with the comments made by many to that previous post, this terminology has become the language of choice in providing discrimination protection against transgender individuals across the country.
Senator John McCain (R-AZ) has introduced a Guest Worker Bill for consideration by the Senate. As described by Peter Rousmaniere over at the Working Immigrants blog, the bill has some very favorable language for immigrant workers.
In particular, the bill would treat immigrant laborers not as independent contractors, but as "foreign labor contractors." According to Peter, this is a significant difference in treatment since "a lot of sub-contractors of questionable financial competence . . . aggressive[ly] use ... independent contractor status to lower worker costs." Of course, many labor and employment laws in the United States do not apply to independent contractors at all, so this change in status would also be beneficial from that perspective.
In fact, because of how favorable this language is to the rights of immigrant workers, Peter notes that Jon Coppelman over at Worker Comp Insider wonders whether the provision will even survive the legislative process.
Should be interesting to see whether this bill makes it through the Senate. Given the current political environment, I must say that I am mighty skeptical.
In a significant victory for federal workers in the Department of Defense, a federal judge has struck down attempts of the Bush Administration to whittle away federal workers' collective bargaining rights.
A federal judge today blocked the Department of Defense from implementing its new personnel system, handing the Bush administration a major setback in its attempts to streamline work rules and install pay for performance in the federal workplace.
In a 77-page decision, U.S. District Judge Emmet G. Sullivan said the National Security Personnel System fails to ensure collective bargaining rights, does not provide an independent third-party review of labor relations decisions and would leave employees without a fair way to appeal disciplinary actions.
Based on a previous decision involving the collective bargaining rights of Department of Homeland Security workers, the outcome of the decision was never really in doubt.
In fact, Judge Sullivan in the Department of Defense opinion follows closely a recent decision by Judge Rosemary Collyer this past August in which she "faulted the new DHS system for undermining employees' rights to collective bargaining and blocked implementation of new rules governing labor relations and employee appeals."
No word yet on whether the government plans to appeal, but this is clearly a resounding victory for the employment rights of federal workers.
Fighting Wal-Mart's Labor Policies will be the subject of the next Labor Lunch at New York Law School. At the lunch, a panel of labor law experts will discuss various legislative attempts to curtail Wal-Mart’s abusive treatment of its employees, class action lawsuits brought against Wal-Mart by its employees, and current strategies for organizing Wal-Mart’s workers into unions. The lunch will be held Thursday, March 2, at NYLS. Speakers include:
- New York State Assemblyman Daniel O’Donnell (photo above)
- Jennifer Sung, Counsel, Brennan Center for Justice
- Rachel Geman, Partner, Lieff Cabraser Heimann & Bernstein LLP
- Pat Purcell, Organizing Director, UFCW Local 1500
Monday, February 27, 2006
It appears that Hartford Life and Accident Ins. Co. terminated a registered nurse's long-term disability benefits for an injured back, believing that she could perform the duties of two sedentary health care positions.
After denying the nurse's appeal of her termination of benefits, the nurse filed suit in federal court under ERISA Section 502(a)(1)(B) for denial of benefits. Because the insurance company had followed the advice of the Firestone Court (see this previous post), the appropriate standard of review was whether the denial of the disability claim was arbitrary and capricious.
And although plans usually win under this highly deferential standard, not this time. The 6th Circuit Court of Appeals, overturning the district court, found for the plaintiff. Specifically, the court found that because the nurse was unable to sit for more than four hours in a day, she could not do the suggested sedentary jobs since such jobs require sitting for most of the day. The Court therefore concluded: "Given that [the nurse] cannot sit for more than four hours a day, Hartford Life has not offered a reasoned explanation for its decision to terminate her benefits."
The 6th Circuit's decision in Brooking can be found here.
Hat Tip: ERISA and Disability Blog
From the Philadelphia Inquirer:
The bill . . . requires businesses with more than 1,000 employees to provide benefits worth $4.17 an hour - or pay that amount, per worker, into a state fund that will reimburse the nearly $400 million that the state spends on FamilyCare and other health-insurance programs each year.
The legislation as it is currently written would affect more than 120 employers in retail, health care, finance and food service. Business groups lambasted the bill at its first hearing earlier this month, warning that it could drive employers out of New Jersey.
"Everyone is beating up on Wal-Mart, but this is so much more than that," Sweeney said. "This is about big players who make large profits, and they can afford to provide health care. Yes, they pay taxes, but they also have a responsibility for insurance."
This bill seems to bridge the gap between the Maryland Wal-Mart bill and the "pay to play" bills being considered in Illinois and Massachusetts. For my previous analyses of these other bills under ERISA preemption see here and here.
Not surprisingly, I believe that if New Jersey were to pass this version of the Wal-Mart bill it would likely face the same fate of being preempted by ERISA if the employers in question were self-insured.
Nancy Hogshead-Makar (Florida Coastal, and perhaps more importantly, one of I think 3 members of the Georegtown Law Class of '97 in academia!) writes to tell us about an interesting teleconference and live audio webcast being put on by the ABA's Section of Individual Rights and Responsibilities and the ABA Center for Contiuing Legal Education.
The Title of the Conference is: Title VII vs. Title IX: The Differences and Why They Matter to Your Case: Tips for anyone concerned about employment discrimination, education law, and gender equity. The Conference is scheduled to take place on Thursday, April 27th, from 1:00 - 2:30 pm EDT.
From the Program Description:
Although few lawyers have ever encountered Title IX in their practices, knowing the differences between Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 can mean the difference between winning and losing a discrimination case.
Title IX covers more than just sports. It covers sexual harassment, employment, and many additional areas that overlap with Title VII.
This teleconference and live audio webcast will examine both statutes and explain how Title IX and its liability standards differ from those of Title VII. It will also help you decide when you can or should file a case under Title IX instead of Title VII.
If you are interested in registering for this worthwhile conference, you can register on-line here or phone: 800-285-2221 and Select Option "2".
For those of you who follow arbitration decisions like I do, check out Ross Runkel's Arbitration Law Memo for this month. In addition to the Buckeye case and several employment arbitration cases, he also discusses such gems as an Ohio appellate court ruling that a labor arbitrator relied on an extraneous definition of "just cause" by citing to Arbitrator Carroll
Daugherty's seven elements instead of a definition from Black's Law
- David K. Montgomery(left), M. Scott McIntyre (middle), & Brian K. Powell (right), The Fair Labor Standards Act, "White Collar" Exemptions, & FairPay 2004: A Survey of Recent Decisions with Emphasis on the Sixth Circuit, 32 N. Ky. L. Rev. 651 (2005).
- Ernest F. Lidge III, Law Firm Employment Discrimination in Case Assignments at the Client's Insistence: A Bona Fide Occupational Qualification?, 38 Conn. L. Rev. 159 (2005) (arguing that the importance of trust and confidence in the attorney-client relationship justifies some race-conscious case assignment decisions).
- Heather S. Murr, The Continuing Expansive Pressure to Hold Employers Strictly Liable for Supervisory Sexual Extortion: An Alternative Approach Based on Reasonableness, 39 U.C. Davis L. Rev. 529 (2006).
- Sandra F. Sperino, Disparate Impact or Negative Impact? The Future of Non-Intentional Discrimination Claims Brought by the Elderly, 13 Elderly L.J. 339 (2005).
- William Nole Evans, Michigan Workers' Compensation in the Aftermath of Sington and Rakestraw, 51 Wayne L. Rev. 507 (2005).
- Jennifer Claire Sprague, Casenote, How Secure Are Your Lifetime Benefits?, Vallone v. CNA Financial, 30 S. Ill. U. L.J. 195 (2005).
- Ronald Terk Sia, Note, Clarett v. National Football League: Defining the Non-Statutory Labor Exception to Antitrust Law as it Pertains to Restraints Primarily Focused in Labor Markets and Restraints Primarily Focused in Business Markets, 4 Pierce L. Rev. 155 (2005).
Sunday, February 26, 2006
The violent tendencies of American society were displayed yet again when a deranged man took 9 people hostage during a hearing at the regional office of the NLRB in Phoenix. What's really bizarre is how he ended up becoming a hostage-taker.
From the AP story:
[George] Curran, 42, pulled a gun during a legal proceeding and took five men and four women hostage inside a [NLRB] hearing room on the 18th floor of a high-rise. He was armed with a semiautomatic pistol, a revolver and a knife, according to police.
None of the hostages were harmed during the seven-hour standoff, which ended peacefully late Thursday.
Curran's wife said her husband became increasingly fixated on "getting justice" following her 1998 dismissal as a federal detention officer and her 2004 dismissal as an airport screener. She said she was unfairly fired for what she characterized as minor infractions, and Curran quit his longtime job as a public bus driver to focus on her case.
It now looks like Mr. Curran is going to have plenty of time working on his own case and, most likely after that, much more time to learn more about the justice system from the inside out. Hat Tip: Eric Fink PS
It now looks like Mr. Curran is going to have plenty of time working on his own case and, most likely after that, much more time to learn more about the justice system from the inside out.
Hat Tip: Eric Fink
The University of Saskatchewan has fired a tenured professor after determining that he had anonymously posted disparaging messages about fellow faculty members on RateMyProfessors.com.
Stephen Berman was a math professor at the university for more than 30 years. According to an independent arbitration panel, he maligned colleagues in postings to the Web site over a seven-month period during 2002 and 2003. The site is designed for students to share their views of their professors with other students.
Paul has a link to Stephen Berman's own ratings at RateMyProfessors.com. Interestingly, his own ratings by his students were at best mixed.
Yesterday's Wall Street Journal reports that Bankruptcy Judge Allan Gropper has postponed until this Wednesday the deadline for Northwest Airlines to reach an agreement with the pilots' and flight attendants' unions. Northwest has filed for bankruptcy and has asked the judge to void the collective bargaining agreements with these unions.
- Jesse Rothstein & Albert Yoon, Mismatch in Law School (91).
- Michael McCann (left), The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy (78).
- Devon W. Carbado, G. Mitu Gulati, & Gowri Ramachandran, Makeup and Women at Work (74).
- Jerry Kang & Mahzarin Banaji, Fair Measures: A Behavioral Realist Revision of 'Affirmative Action' (67).
- Michael Selmi (right), Was the Dispate Impact Theory A Mistake? (61).
- Albert Feuer, When Are Releases of Claims for ERISA Plan Beneifts Effective? (75).
- Richard L. Kaplan, The Medicare Drug Benefit: A Prescription for the Confused (37).
- Rashid Bahar (photo above), Executive Compensation: Is Disclosure Enough? (35).
- Aditya Parthasarathy, Debashish Bhattacherjee, & Krishnakumar Menon, Executive Compensation, Firm Performance, and Corporte Governance: An Empirical Analysis (35).
- Tapen Sinha & Alejandro Renteria, The Cost of Minimum Pension Guarantee (27).