Friday, June 30, 2006
The HR Policy Association is reporting that Massachusetts is close to passing one of the most generous state family and medical leave bills in the country.
The proposed legislation:
would give up to 12 weeks of fully paid family and medical leave under the federal Family and Medical Leave Act. Paid leave up to $750 per week would be funded by an excise tax on employees and administered by the state.
Supporters claim the excise tax would cost between $2 and $4 per week per employee, but business groups estimate the cost at $5 to $12.
Two legislative committees are in the process of negotiating the leave benefit and funding mechanism and, by June 28, must recommend passage, defeat, or extension of the deadline for consideration of the bill.
Although the federal Family and Medical Leave Act (FMLA) provides up to 12 weeks of job-protected leave for a number of family and medical-related issues, the leave is generally unpaid, although employees can elect or employers can require that existing accured accrued paid leave (such as sick, vacation, or personal leave) be used for FMLA leave purposes.
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.
This year’s Forum will feature four presenters:
Matthew T. Bodie (Hofstra, visiting at St. Louis University)
Non-Binding Employee Referenda in Transformative Transactions
Elizabeth F. Emens (Columbia)
Third Party Benefits of Workplace Accommodations
Julie Chi-hye Suk (Cardozo)
Job Security Lessons from Antidiscrimination and Employment Law in France
Noah Zatz (UCLA)
Prison Laborers as Statutory Employees
Commentators include: Samuel R. Bagenstos (Washington University), Cynthia L. Estlund (NYU), Timothy P. Glynn (Seton Hall), Tristin K. Green (Seton Hall), G. Mitu Gulati (Duke), Katherine V.W. Stone (UCLA), Charles A. Sullivan (Seton Hall), and Michael J. Zimmer (Seton Hall).
Thanks to the New Mexico Labor and Employment Law Blog for bringing these three new DOL Opinion letters concerning federal wage and hour issues to our attention:
Exemption met if foreign currency rate is higher than $455 a week. Salary level requirements met in those pay periods in which the $455 per week equivalent threshold is met “when the dollar compensation is combined with the foreign currency compensation that is converted using the exchange rate current at the time of payment."
Volunteer employees cannot volunteer to perform the same work they are paid to do. The DOL opined that volunteers who chaperone cultural and sporting field trips or bingo games are not covered under FLSA as long as the “services are not the same type of service the employee is employed to perform and take place outside of the employee’s normal working hours.”
Police officers do not qualify for overtime for time spent on firearms training for off-duty weapons. “[T]ime spent by the officers training on the use of an off-duty weapon is not hours worked under the FLSA if the training occurs outside the officer’s regular working hours."
Here's a story that gels well with the recent post I did about the D.C. Circuit not allowing the Department of Homeland Security run roughshod over workers' collective bargaining rights because of national security concerns.
In this case, the National Labor Relations Board (the full Board sitting, so obviously an important case), found (4-1, Member Kirsanow dissenting) that employees for a private company that helped provide airline security for the Transportation Security Administration were statutory employees and had collective bargaining rights under the National Labor Relations Act.
Here's some excerpts on the case by Ross Runkel on his Employment Law Blog:
A company that provides passenger and baggage screening services pursuant to a contract with the Transportation Security Administration is subject to the National Labor Relations Board's jurisdiction.
Rejecting national security concerns, the Board said:
"The Board has been confronted with issues concerning national security and national defense since its early days. Our examination of the relevant precedent reveals that for over 60 years, in times of both war and peace, the Board has asserted jurisdiction over employers and employees that have been involved in national security and defense. We can find no case in which our protection of employees' Section 7 rights had an adverse impact on national security or defense."
The case is Firstline Transportation Security, Inc., 347 NLRB No. 40 (June 28, 2006).
Thursday, June 29, 2006
Chrysler's assembly plant in Belvidere, IL will hire a large number of workers for a new third shift who will not get the same pay or job security as other United Auto Workers members. It is an agreement that appears to be unprecedented for a Big 3 plant and comes at a time when foreign automakers like Toyota and Honda are producing growing numbers of vehicles in the U.S. at non-union facilities.
Recent concessions by the United Auto Workers union shows "they're flexible in facing economic reality," says U. of I. labor law professor Matthew Finkin. "They understand this is what they have to do to keep jobs."
For the entire Chicago-Tribune article, see 2nd-Tier Pay for Belvidere 3rd Shift.
The EEOC's Annual Report on the Federal Work Force for fiscal year 2005 is available here. Separately, the EEOC announced that people with targeted disabilities (such as blindness, deafness, and paralysis) has dropped to less than 1% of the total federal workforce. In response, the EEOC has initiated Leadership for the Employment of Americans with Disabilities.
Angela Onwuachi-Willig is leaving U.C. Davis for Iowa, beginning fall 2006.
Professor Onwuachi-Willig graduated from Grinnell College and the University of Michigan Law School, where among other things she was an Associate Editor on the founding issue of the Michigan Journal of Race and Law. After law school, Professor Onwuachi-Willig clerked for the Honorable Solomon Oliver, Jr., U.S. District Judge for the Northern District of Ohio, and the Honorable Karen Nelson Moore, U.S. Circuit Judge for the Sixth Circuit Court of Appeals. She also practiced law at Jones Day in Cleveland and Foley Hoag in Boston. She has written extensively on issues of race and affirmative action.
I continue to believe that the baby boomer generation that has just retired from working or is about to retire from working may be the most unprepared generation yet when it comes to retirement planning.
Further proof today from columnist Stephen Barr of the Washington Post who writes about the retirement preparedness of federal workers. Here are some excerpts:
More than half of federal employees expect to retire before age 62, with almost four in 10 looking to retire at 59 or earlier, according to a survey conducted for the Office of Personnel Management.
But less than half have calculated how much they need to save for a comfortable retirement, and only two in 10 federal employees have a professional financial adviser to help with retirement planning.
It's probably no surprise, then, that the survey also found that almost eight in 10 employees said they were "very" or "extremely" interested in receiving more help from their agencies to prepare for retirement.
Even though most employees invest in stocks, bonds and government securities through the [Thrift Savings Plan], "between seven and eight in 10 federal workers describe themselves as having some or only a little knowledge of investments and feeling somewhat or not too confident about their knowledge or ability to make investment decisions for retirement," the survey report said.
It sounds like the federal government needs to do a much better job of holding information sessions for, and providing additional materials to, federal employees to help them gain a better grasp of some of the ins-and-outs of good retirement investing. Of course, at the end of the day these workers, who are relatively sophisticated, need to take the bull by the horns and start doing some of the necessary leg work to protect themselves.
Sam Bagenstos (Wash U.) has posted on his Disability Law Blog about a case in which an HIV-positive applicant for a foreign service job was rejected because of his disease.
According to Sam:
The officer sued under the Rehabilitation Act, but the district court granted summary judgment. The district court concluded that given the state of medical care in lots of countries, the plaintiff would not be available for worldwide posting. The court also concluded that "worldwide availability" was an essential function of the job of foreign service officer, and that it would not be a reasonable accommodation to permit the plaintiff to use his leave to travel to countries with more developed medical systems for physician's appointments.
The D.C. Circuit reversed. The court concluded that there were disputed issues of fact regarding whether worldwide availability is indeed an essential function of the foreign service job and whether the leave accommodation would be unreasonable.
The case has now been remanded. The case is Taylor v. Rice, No. 05-5257 (D.C. Cir. June 27, 2006).
Like Sam, I happy that such a miserly interpretation of the disability discrimination laws at the summary judgment stage was overturned.
Wednesday, June 28, 2006
No surprise here (from Business Insurance):
The number of the nation’s largest employers that are terminating or freezing pension plans has increased substantially since 2004, according to a recent analysis of Fortune 1000 companies by Arlington, Va.-based Watson Wyatt Worldwide.
Watson Wyatt found that of the 627 defined benefit plan sponsors, 113 had at least one frozen or terminated plan or had announced plans to freeze or terminate a plan as of April 2006, compared with 71 in 2004.
In addition, 49 of the plan sponsors had closed their defined benefit plans to new hires or announced such an intention, up from 25 in 2004.
As this article points out, and somewhat ironically, the shift from defined benefit plans to defined contribution plans might mean that employees might not be able to retire when they want to, or when their employers want them to, creating workplace management issues down the line.
Julie Ferguson at Workers' Comp Insider has some interesting statistics about employee compensation which give some pause for thought.
She points to the most recent Employer Costs for Employee Compensation report (March 2006) from the U.S. Department of Labor’s Bureau of Labor Statistics. Some interesting findings include:
The hourly compensation cost per civilian nonfarm worker averaged $26.86, with salaries accounting for just over 70 percent of the total, and benefits accounting for just under 30 percent.
Health benefits have increased significantly. According to the report, "the average cost for health benefits was $1.72 per hour worked in private industry (6.9 percent of total compensation) in March 2006. In March 2001, employer costs for health benefits averaged $1.16, or 5.6 percent of total compensation."
I guess all in all there are no big surprises here. Employee benefits are anything but "fringe benefits" anymore and most of us have felt in the wallet the rising costs of health care.
On the other hand, the average compensation being almost $27/hour means that the average nonfarm civilian workers makes (assuming a 40 hour a week, 52 weeks a year) about $56,000 in total compensation, 70% or $39,000 of that in salary.
Does this strike people as about right or somewhat inflated? Also, what do these numbers indicate when it comes to the merits of raising the minimum wage?
Would an increase in the minimum wage have a ripple effect from below, pushing average salaries higher while at the same time causing employee benefits to decrease in order to permit employers to maintain the same level of overall compensation? Or would market forces cause employers to maintain employee benefits at a certain level in order to stay competitive in a tight market?
A number of months ago, I wrote about a plan by the Department of Defense to revise its personnel policies in a way that would curtail its employees collective bargaining and other workplace rights. Not only was that plan found to violate of federal workers' rights, but a separate judge of the District Court for District of Columbia had previously found a similar personnel policy dealing with the rights of Homeland Security Department workers equally violative.
Now the D.C. Circuit Court has affirmed the ruling concerning the Department of Homeland Security personnel rules. From the Washington Post:
A federal appeals court delivered another legal blow to the Bush administration's broad plan to overhaul the federal employee personnel system, ruling yesterday that the proposed changes would illegally limit the scope of collective bargaining.
The opinion by a panel of the U.S. Court of Appeals for the D.C. Circuit said new Department of Homeland Security personnel rules that deal with working conditions and employee appeals were illegal. The court upheld two rulings by a federal district judge that found the government had overstepped the authority given by Congress to rewrite personnel rules when it created the department in 2002.
Yesterday's opinion, written by Judge Harry T. Edwards on behalf of a three-judge panel, agreed with [Judge] Collyer's findings on the DHS appeals process and on the proposed ability to unilaterally break negotiated contracts, which it called "plainly unlawful.''
But the appeals court went further, saying the DHS plan, by limiting collective bargaining to employee-specific personnel matters, leaves most decisions on working conditions up to management only.
Apparently, the unions that opposed these new personnel policies plan to meet with officials with the Department of Homeland Security to try to come up with a compromise solution.
Although there still may be an appeal of this decision to the Supreme Court, for the time being this is a significant victory for federal workers' collective bargaining rights.
The Labor Law Group conference continued yesterday. Topics:
Public Sector Labor Law, moderated by Martin Malin. Ann Hodges, Ron James, and Joe Slater presented, though regretfully I missed this sesion because I attended . . .
Restatement on Employment Law, moderated by Catherine Fisk. Michael Harper provided an update on the Restatement project, Pauline Kim criticized some of the proposed Restatement articles, and Matt Finkin criticized the entire Restatement project (arguing, among other things, that it would stifle development of the law).
New Issues in Employment Discrimination, moderated by Dianne Avery. Camille Hebert, David Schwartz, and Michael Selmi presented, though regretfully I missed this sesion because I attended . . .
Dispute Resolution in the Workplace, moderated by Laura Cooper. Peter Hurtgen provided an update on FMCS ADR projects, Rick Bales collected recent empirical work on employment arbitration, and Dennis Nolan described his experience with employment arbitration.
New Vehicles for Employee Representation and Voice, moderated by Deborah Malamud. Peggie Smith described the recent organizing of home-based health care providers. Michael Wishnie discussed immigration law as an integral part of labor and employment law, and discussed worker centers. Alan Hyde discussed the future of worker center wage campaigns. Wilma Liebman described, among other things, union attempts to bypass the NLRB due to frustration with delays, limited remedies, adverse decisions, etc.
Roundtable on Innovations in Teaching Labor and Employment Law, moderated by Joel Friedman. Laura Cooper demonstrated creative ways to use PowerPoint. Roberto Corrada described his use of simulations in his Labor Law class. Raphael Gely demonstrated the use of "clickers" in the classroom.
Tuesday, June 27, 2006
Cynthia Estlund (NYU) has posted on SSRN her new piece entitled, Between Rights and Contract: Arbitrations Agreements and Non-Compete Covenants as a Hybrid Form of Employment Law.
Here's the abstract:
The employment relationship is governed largely by contract, but with a heavy overlay of “rights”: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights.
Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing “conditionally waivable” rights.
This paper aims first to show structural parallels between NCCs and MAAs that place them at a distinct intermediate point along the spectrum between non-waivable rights and ordinary contract that I call “conditional waivability.” Second, it seeks to uncover a common logic underlying the law's choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the the threat that unregulated waiver of one right (the right to compete or to litigate future claims) poses to an adjacent employee right that the law deems non-waivable. Third, the paper deploys that underlying logic to offer a critical assessment of the law governing NCCs and MAAs. Finally, the paper tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract – especially flexibility and variability in the face of widely divergent and changing circumstances – into the pursuit of public goals and the realization of rights in the workplace.
You can download this insightful and thought-provoking piece of scholarship here.
Well, I guess you should be comfortable if you are going to do it:
Comcast has fired an employee for sleeping on a customer's couch during a house call after video of the incident became a minor Internet sensation.
The Philadelphia-based cable company also says it has apologized to the customer in Washington for the "unsatisfactory customer experience."
The customer, Georgetown University law student Brian Finkelstein, said the technician needed to phone company headquarters for help but was put on hold for more than an hour and fell asleep.
Don't the most interesting things occur to law students? And also, who doesn't fall asleep after being put on hold for an hour? Maybe Comcast should be also looking at hiring more employees to man the phones at company headquarters.
Hat Tip: Wasted Blog
I have previously written about the dire financial condition that both GM and its main parts supplier, Delphi, finds themselves in. As part of the belt-tightening to get their companies back on their feet, GM and Delphi have agreed to offer a buyout and early retirement program to a large number of employees.
It is now appears that the buyout and early retirement program has been substantially successful, with nearly 50,000 employees accepting the offer.
About 47,600 hourly workers have decided to leave General Motors Corp. and Delphi Corp. through buyout or early retirement offers, accelerating the distressed companies' plans to cut costs by paring their work forces.
At GM, where about 35,000 people will depart — mostly through early retirements — Chairman and CEO Rick Wagoner said he was surprised by the numbers. But he said the number of takers will allow the Detroit company to reach its target reduction of 30,000 manufacturing jobs by Jan. 1, two years ahead of schedule.
The deadline for GM workers to file paperwork for the offers was Friday, but they have seven days to change their minds. Friday also was the deadline for workers at Delphi, GM's former parts operation that is now a separate company, to file for early retirement incentives.
Delphi said Monday that about 12,600 employees represented by the union took early retirement offers at the Troy-based automotive parts supplier, which filed for bankruptcy protection last October. Some Delphi workers also have an additional buyout offer on the table with deadlines that are more than a month away.
Sounds like as many employees are getting out while the going is still somewhat good. Although GM and Delphi are optimistic they can turn things around, I am not surprised like the GM CEO that so many employees took the buyout and early retirement offers.
Monday, June 26, 2006
Today I have the honor of reporting "live" from the Labor Law Group conference in Saratoga Springs, New York. Panels:
The Role of Collective Rights in the Worklaw Curriculum: How/If the Labor Law Course Should Be Taught, moderated by Ken Dau-Schmidt.
- Cindy Estlund spoke about Labor Law as pathology (what went wrong and why), and suggested several critical recent issues that keep Labor Law looking forward.
- Wilma Liebman discussed the NLRB's need for more empirical research on Labor Law, and suggested several ways labor professors can make Labor Law more hip to students.
- Peter Hurtgen pointed out that, unlike discrimination law, Labor Law was designed to be light on lawyers. He also suggested that teachers put Labor Law into an international context.
In Search of an Organizing Theme for Employment Law, moderated by Marion Crain.
- Mike Fischl argued that the boundaries between Labor Law, Employment Law, and Employment Discrimination are becoming blurred.
- Catherine Fisk spoke about using Wal-Mart cases in class to illustrate employment law doctrines.
- Alvin Goldman provided a historical perspective on labor/employment/discrimination teaching pedagogy and LLG scholarship.
- David Yamada spoke about using employment bullying to illustrate employment law doctrines.
Globalization and Work: The Flat World of Capital and the Race to the Bottom Problem for Labor, moderated by Lea VanderVelde.
- Jim Atleson discussed the relevance of International Labor Law to American Labor Law.
- Lance Compa presented the argument that free trade agreements are "circuit breakers" on labor issues in international trade.
- Marley Weiss spoke about the effect of capital mobility on international labor markets.
- Kerry Rittich spoke on the labor effects of globalization.
- Harry Arthurs discussed the effect international financial institutions have on labor markets and the most vulnerable workers.
One sentence cannot, of course, do justice to any of these presentations.
The University of Colorado announced Monday that it will dismiss controversial professor Ward Churchill.
"Today, I issued to Professor Churchill a notice of intent to dismiss him from his faculty position at the University of Colorado Boulder," CU Interim Chancellor Phil DiStefano said Monday afternoon.
Churchill has 10 days to make a request to have the university president or chancellor forward the recommendation to the faculty senate Committee on Privilege and Tenure. A special panel will then conduct hearings on the matter and make a recommendation to the president on whether grounds for dismissal are supported.
Churchill entered the national spot light after insensitive comments he made about the victims of the 9/11 terrorist bombings. The comments, however, were not (at least directly) his downfall, but rather the bona fides of his research and scholarship after his work came to the university's attention. In this regard, "an investigative subcommittee concluded that Churchill repeatedly fabricated his research, plagiarized others' work and strayed from the 'bedrock principles of scholarship.'"
There is now every indication that Churchill will challenge his dismissal in court. Expect a classic public employee free speech civil rights case to play out.
And though it is hard to predict these things, if the allegations about his research and scholarship are true, under a classic Mt. Healthy same-decision test which focuses on whether the public employee would have been fired regardless of engaging in First Amendment protected-speech, look for his termination to be upheld.
Kathleen Birkhofer, Last Chance Agreements: How Many Chances is an Employee Entitled To?, 2005 J. Disp. Resol. 467.
Jonathan R. Waldron, Vacatur of Labor Arbitration Awards: Watering Down the Supreme Court’s “Drawn From the Essence” Precedent May Sound the Keath Knell for Labor Arbitration, 2005 J. Disp. Resol. 539.
ScotusBlog reports that the United States Supreme Court has agreed to hear a case involving the timing surrounding unequal pay decisions in Title VII cases:
The labor case to be heard is Ledbetter v. Goodyear Tire & Rubber (05-1074), seeking a ruling on the legal formula to be used in calculating the timing of unequal pay decisions by employers for purposes of Title VII lawsuits.
Here is the Eleventh Circuit's decision in the Ledbetter decision from last year. From the introduction of that case:
The employee, Lilly Ledbetter, claims that Goodyear paid her a smaller salary than it paid her male co-workers at Goodyear’s Gadsden, Alabama, tire plant because of her sex. Goodyear’s position, in addition to denying that sex played any role in the setting of her salary, is that Ledbetter may prevail only if she can prove that unlawful discrimination tainted an annual review of her salary made within 180 days of her filling a charge of discrimination with the EEOC. The question we must decide, therefore, is how Title VII’s timely-filing requirement applies in this specie of disparate pay cases—that is, cases involving an employer that annually reviews and re-establishes employee salary levels.
Finding for Goodyear, the 11th Cir. held:
We conclude that in the search for an improperly motivated, affirmative decision directly affecting the employee’s pay, the employee may reach outside the limitations period created by her EEOC charge no further that the last such decision immediately preceding the start of the limitations period. We do not hold that an employee may reach back even that far; what we hold is that she may reach no further . . . . We conclude that no reasonable juror could find intentional discrimination in either of the two decisions setting Ledbetter’s salary as it existed during the limitations period.
An interesting procedural issue under the timely-filing requirement of Title VII, indeed. My initial reaction is that this case should be decided on the basis of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). That case seemed to say that the employment discrimination world is divided into two mutually exclusive categories for purposes of determining timeliness of claims: (1) discrete acts of discrimination like termination; and (2) hostile environment claims, whose very nature involves repeated conduct.
Because in these pay disparity cases the unlawful employment practice can be said to occur on particular days as opposed to over a series of days or years, it is likely that the Court will conclude that a Title VII plaintiff must raise a discrete discriminatory act claim within the applicable (here, 180 days) time period. In this regard, the Court will still find for Goodyear, but will modify the 11th Circuit's reasoning.
FWIW, I do not necessarily agree that this is the best way to vindicate the interests served by Title VII; nevertheless, given relevant precedent and the composition of the current Court, I think this is the best guess as to how the case is likely to come out.