Monday, July 31, 2006
Nancy Zisk has been named Associate Dean for Academic Affairs at Charleston School of Law.
Zisk joined Charleston when it opened in 2004 to teach Torts and Employment Law. In April of this year, students named her "Professor of the Year."
Zisk earned her bachelor's degree and law degree from Duke. Formerly in private practice in D.C. with Akin Gump and Ross, Dixon & Bell, she specialized in employment and complex insurance coverage litigation. She also served as a sole practitioner in Fairfax County, Virginia.
Well, not quite. At least not in this country (from the International Herald-Tribune):
Workers at Wal-Mart Stores have formed their first trade union in China, following official demands that the world's biggest retailer allow organ- ized labor in its stores here, according to reports in the state media over the weekend.
Wal-Mart has long battled to bar unions from its stores, in the United States in particular, but the government-controlled All-China Federation of Trade Unions, or ACFTU, has been campaigning aggressively to set up branches in the company's 60 outlets in China. Senior Chinese officials and the state-controlled media have accused Wal-Mart of obstructing efforts to unionize its work force.
The company has more than 30,000 employees in China.
The pressure on the U.S. retailer is part of a concerted drive to establish branches of the official union in all foreign-funded companies in China.
Wow, Wal-Mart has really come into tough times . . . OK, I can't keep a straight face while typing that.
But here's my favorite line from the whole story:
[Beth] Keck[, director of international corporate affairs for Wal-Mart said Wal-Mart,] recognized its employees had the right to join a union at any of its work places around the world. "In every country we operate, we follow the laws concerning labor relations," she said.
As the Master Card commercial declares: "Priceless."
As employment discrimination practitioners know, one of the legal elements for a hostile work environment sexual harassment claim under Title VII is that the harassment must be unwelcome from the standpoint of the victim.
But what happens if the sexual conduct between the male and the female in a workplace situation is welcome, but it is between an adult male (25) and a female (16) incapable of consent under the law (i.e., a statutory rape has occurred)?
In an interesting decision by the 7th Circuit this past Friday, Jane Doe v. Oberweis Diary, No. 04-3680 (7th Cir., July 28, 2006), Judge Posner wrote that because consent in such situations is not possible, it was also legally impossible for such conduct to be welcome under such circumstances. In other words, in a statutory rape situations, a perpetrator may not claim that there was no sexual harassment because the conduct was welcome. To determine if a statutory rape occurred, a federal court should look to the underlying state criminal law that applies.
As Michael Fox at Jottings By An Employer's Lawyer also points out, there is an interesting discussion by Judge Posner about how to determine if a person who engages in sexual harassment is a supervisor or a co-worker. Michael explains the 7th Circuit decision in this respect this way:
While noting that if forced to choose whether the shift leader here was a supervisor or co-employee, he would likely be a supervisor -- since his recommendation on termination would have been given great deference -- Judge Posner declined to find the law limited to such a binary choice. Instead, he holds such "in-between" questions for the most part should be left to the jury.
There is also an interesting discussion in the case about whether a plaintiff must cooperate with an EEOC investigation in order to be able to recover. The quick answer: the view that "a plaintiff's failure to cooperate with the EEOC in its investigation could be a bar to their claim is wrong."
I think we are going to have to characterize this year in employment discrimination as the year of Posner.
- Noah Zatz, Welfare to What?, 57 Hastings L.J. 1131 (2006).
- John B. Allen, D'Angelo v. ConAgra Foods, Inc: "How Must I Help You?": Applying the Reasonable Accommodation Requirement of the ADA to Persons "Regarded As" Disabled, 29 Am. J. Trial Advoc. 727 (2006).
Sunday, July 30, 2006
Here is a disturbing story especially for people like me who already are not thrilled about commercial flights:
A co-worker riding in an employee bus with the captain enroute to the airport terminal smelled alcohol on the pilot’s breath, then notified the proper Continental Airlines authorities.
The pilot, who was going out on his first flight of the day, was immediately removed from all flying operations and administered a breath alcohol test. He tested above the legal limit for pilots.
“Continental Airlines has a zero tolerance policy for any alcohol or drug abuse,” said a Continental spokesperson. “This pilot has been removed from duty, and we have launched our own internal investigation. If the investigation supports the finding, the pilot will no longer be flying for Continental.”
Thank goodness for conscientious co-workers. I just wonder how many flights are operated by inebriated pilots who are not caught before they get in the cockpit. PS
Thank goodness for conscientious co-workers. I just wonder how many flights are operated by inebriated pilots who are not caught before they get in the cockpit.
- Kevin E. Davis (photo above), The Demand for Immutable Contracts: Another Look at the Law and Economics of Contract Modifications (57).
- Jeffrey W. Swanson, Scott Burris, Kathryn Moss, Michael Darren Ullman, & Leah M. Ranney, Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly? (56).
- Susan P. Sturm, The Architecture of Inclusion: Advancing Workplace Equities in Higher Education (54).
- L. Camille Hebert, Why Don't 'Reasonable Women' Complain About Sexual Harassment? (50).
- N. Jeremi Duru, Fielding a Team for the Fans: The Societal Consequences and Title VII Implications of Race-Considered Roster Construction in Professional Sport (40).
- Cynthia Estlund, The Death of Labor Law? (43).
- Anita Bernstein, Foreward: What We Talk About When We Talk About Workplace Privacy (40).
- Judy Fudge, After Industrial Citizenship: Market Citizenship or Citizenship at Work? (25).
- Richard Reuben (photo above), Democracy and Dispute Resolution: Systems Design and the New Workplace (24).
- Ken I. Kersch, How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech (13).
Saturday, July 29, 2006
- Mary Catherine Daly & Carole Silver, Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services (75).
- David J. Doorey, Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation (25).
- Ian Malcolm Ramsay, Andrew Barnes, Tanya Josev, Jarrod Lenne, Shelley D. Marshall, Richard Mitchell, & Cameron Rider, Employee Share Ownership Plans: Evaluating the Role of Tax and Other Factors Using Two Case Studies (11).
- Chris Armstrong, Alan D. Jagolinzer, & David F. Larcker, Timing of Employee Stock Option Exercises and the Valuation of Stock Option Expense (126).
- Zvi Bodie (left) & Jonathan Treussard (right), Making Investment Choices as Simple as Possible But Not Simpler (70).
- Ethan Yale & Gregg D. Polsky, Reforming the Taxation of Deferred Compensation (57).
- Paul Fronstin, The Tax Treatment of Health Insurance and Employment-Based Health Benefits (53).
- Gordon Leslie Clark & Ashby Monk, The 'Crisis' in Defined Benefit Corporate Pension Liabilities: Current Solutions and Future Prospects (51).
Friday, July 28, 2006
Age discrimination allegedly came to the Oklahoma Supreme Court in this case, but the 10th Circuit Court of Appeals in Opala v. Watt, No. 05-6261 (10th Cir., JUly 21, 2006), didn't think Justice Marian Opala had a claim (from the Tulsa World):
A federal appeals court on Friday threw out the lawsuit of 85-year-old Oklahoma Supreme Court Justice Marian Opala, who alleged that the state high court's other eight justices discriminated against him because of his age.
"The federal courts lack the power to resolve this dispute," the 10th U.S. Circuit Court of Appeals concluded in a 13-page decision.
The case involved how the Oklahoma Supreme Court went about deciding who became Chief Justice. Justice Opala alleged that the rules were changed so that he could not become Chief Justice.
Opala sued soon after the other justices changed a court rule in November 2004 that governed how the chief justice is chosen every two years.
The other justices contended that the new rule didn't keep Opala from becoming chief justice but that he just wasn't elected.
The appellate judges concluded 3-0 that declaring the new rule unconstitutional would not help Opala because "we lack the power to reinstate the pre-determined sequential order" that had existed under the previous rule.
Hat Tip: Rosario Vega-Lynn
From the abstract:
Executive pay is currently a topic of significant interest for policymakers, academics, and the popular press. Just weeks ago, in reaction to widespread press reports and academic criticism of extravagant executive perquisites, the SEC proposed new regulations designed to change fundamentally the manner in which executive compensation is reported to share-holders. Despite all of this attention, one significant aspect of executive deferred compensation has gone virtually unnoticed - the federal tax rules governing this form of compensation are fundamentally flawed and must be extensively over-hauled.
These rules are flawed because they often create a significant incentive for companies and their executives to structure deferred, rather than current, compensation, thereby producing highly inefficient and inequitable results. This Article addresses potential legislative reforms that would remedy this problem by neutralizing the tax treatment of current and deferred compensation. While this neutrality goal, which was part of the recent proposals made by President Bush's Advisory Panel on Tax Reform, is easy to describe in general and conclusory terms, the devil is in the details. There has been little serious academic analysis of how to implement a set of tax rules that would create neutrality while avoiding undue complexity. This Article attempts to fill that void.
A timely article on executive compensation issues which have been dominating news in the business world. You can download it here.
The Wall Street Journal is reporting that an increasing number of employers are offering an increasing array of elder-care benefits, reflecting the increasing number of employees responsible for caring for elderly parents:
As more Americans care for elderly relatives, companies are increasingly helping employees by adding workplace benefits similar to those that have been offered for child dependents.
About a quarter of all companies currently provide some basic elder-care benefits, mainly referrals that help employees find caregivers and legal services, a recent survey showed. But other companies, such as accounting firm KPMG LLP and Unilever PLC, the consumer-products concern, are going beyond this to provide employees with additional benefits, which can include extended leaves of absence and subsidized in-home care when emergencies arise.
For more, see Employers Expand Elder-Care Benefits. rb
For more, see Employers Expand Elder-Care Benefits.
Thursday, July 27, 2006
When I was in practice, I found that one of the most underutilized tools for defense counsel in Title VII cases was Federal Rule of Civil Procedure 68, which provides a mechanism by which defendants can make an offer of judgment to a plaintiff to stop the attorney fees clock from running.
This is important because a prevailing plaintiff in a Title VII case can receive their attorney's fees from the defendant. If the plaintiff turns down the offer of judgment from the defendant, and then ends up winning their case but for less money than the defendant offers, the plaintiff cannot recover their fees from defendant post-offer. Rule 68 therefore acts to encourage settlement without the additional burdens of litigation.
The issue becomes more difficult if in addition to monetary damages, the plaintiff is also awarded equitable relief, like reinstatement or something similar. In these cases, the question is how much value to give such equitable relief so that one can determine whether the plaintiff ended up getting more or less than the original offer of judgment made by defendant.
In Reiter v. MTA New York City Transit Authority, No. 04-5420 (2nd Cir., July 20, 2006), the Second Circuit Court of Appeal considered this issue in a case in which a plaintiff prevailed on his Title VII retaliation claim. In the case, the MTA made an Offer of Judgment for $20,001 under Rule 68, but made no mention of equitable relief. Reiter won his case at trial and received $14,000 in monetary relief and the equitable relief of restoration to his executive level job. Making the issue a little more confusing, "the district court also granted the [MTA]’s motion for a new trial conditioned on Reiter’s agreement to accept a remittitur to $10,000," which Reiter ended up agreeing to take.
The magistrate who heard the party contentions with regard to attorney fees found that, "the equitable relief did not have 'any significant value' and that the final monetary award was less than the Offer. The court then awarded Reiter only pre-Offer attorneys’ fees."
The Second Circuit reversed this decision as clearly erroneous. Agreeing with Reiter's position, the court found that, "the district court erred when it denied attorneys’ fees and costs incurred after the Offer because the equitable relief he obtained, along with the $10,000 monetary award, was more favorable than the Offer." More specifically, the court concluded:
[W]e have no difficulty opining that any such rational executive [referring to Reiter] would more likely than not jump at the chance [at reinstatement] if it were priced at just $10,000 -- an amount totaling less than 10% of a single year’s salary. In sum, while monetizing equitable relief will, in many instances, pose vexing problems (ones we leave for another time) we have little difficulty concluding that Reiter ultimately recovered more than the Offer and that, consequently, it did not cut off his entitlement to post-Offer attorneys’ fees.
I think the court comes to the right conclusion in this case, but I was hoping for a more bright-line rule concerning how to value equitable relief in Rule 68 offer of judgment cases. Perhaps in the future, defendants who have the burden in showing that the plaintiff did not receive as much as the offer of judgment can place a value on the equitable relief plaintiff seeking up front. In the offer of judgment, they would also explain how they arrived at the number for equitable relief.
Not a fool proof method, for sure, but clearly better than just ignoring the value of equitable relief in these situations altogether.
Alan Hyde (Rutgers-Newark) has posted on SSRN his forthcoming piece in the book Globalization and the Future of Labour Law entitled, A Stag Hunt Account and Defense of Transnational Labor Standards - A Preliminary Look at the Problem.
Here's the abstract:
Labor standards with transnational application may be modeled as agreements among developing countries to overcome collective action problems, although this has not previously been done. Specifically, many labor standards arise in Stag Hunt games, in which there is a Pareto-optimal solution if, but only if, no player defects.
Examples include bans on child labor or noxious work practices. It is not in any nation's interest to rely on child labor or poisonous work practices, and they play no role in optimum development strategies, but the country that defected from a ban on these practices might anticipate particular streams of trade or foreign direct investment, gains that we model as short-term. The model, in light of the behavioral literature on Stag Hunt games, has implications for the number of countries that can be bound by a labor standard, institutional aspects of labor standard formulation, subject matter of labor standards, and sanctions. There is thus no conflict between transnational labor standards, and the theory of comparative advantage, since countries adopt only labor standards that are in their interest.
You can download this important contribution to international labor law at the SSRN link here.
Mike Zimmer (Seton Hall) wrote the employment discrimination and worklaw listserv with news that Chicago City Council has passed a measure that would require "big-box" retailers (i.e., Wal-Mart and Target) to pay Chicago-based employees $10/hr in wages and $3/hr in fring benefits by July 2010.
Setting aside the debate over whether requiring these city employers to offer a living wage works to the benefit or detriment of poor workers, I want to focus instead on the fringe benefit provisions of this ordinance. Similarly, seeing the clear parallels between this ordinance and the Wal-Mart bill just struck down by the federal district court in Maryland, Mike Zimmer argues:
The Maryland law only set a standard of how much an employer needed to spend either on health care of employees or on contributions to the state to offset its provision of medical care for uninsured people, including WalMart workers. It did not say anything about the content of those health care benefits or require any particular provisions for WalMart's health care plan, at least as far as the court opinion and press reports describe. Neither law seems to be within the scope of what Congress was trying to do with ERISA as far as I can see. Both should stand.
Ross Runkel also agrees and provides his own analysis here.
I am sympathetic to the arguments that both Mike and Ross make and even agree with Mike that neither law seems to interfere with the original Congressional purpose behind ERISA.
But Supreme Court interpretation of ERISA preemption long ago parted ways with original Congressional purpose and the test these days really comes down to whether the state or local law will substantially interfere with the administration of an employee benefit plan and whether the measure will undermine the goal of having uniform employee benefit obligations accross the country.
Because I continue to believe that under this employer-friendly test that laws like those in Maryland and Chicago will be considered preempted by ERISA, I must disagree with both Mike and Ross.
On the other hand, and as I have argued before, if a court were to find that "the law does not directly interfere with Wal-Mart's health care plan, but only requires it to spend a given amount of money on health care regardless of whether it has such a plan or not," perhaps the courts reviewing these pieces of legislation would come to a different result. A possibility, but I'm not counting on it.
The EEOC yesterday issued a new question-and-answer fact sheet on the application of the Americans with Disabilities Act to job applicants and employees who are deaf or who have hearing impairments. Topics addressed in the document include:
- When a hearing loss is a disability under the ADA;
- When an employer may ask an applicant or employee about a hearing impairment and what it should do if an applicant voluntarily discloses the impairment;
- What type of reasonable accommodation an applicant or employee with a hearing disability may need; and
- What an employer should do if it has safety concerns about an applicant or employee with a hearing impairment.
Estimates of the number of people in the United States with a self-described “hearing difficulty” range from 28.6 million to 31.5 million. The number of individuals with hearing difficulty is expected to rise rapidly by 2010 when the baby-boomer generation reaches age 65.
Wednesday, July 26, 2006
In Killian v. Yorozu Automotive Tennessee, Inc., 04-6202 (6th Cir. July 20, 2006), the circuit specifically stated, “[w]e . . . join a number of other circuits in holding that enrollment in school after a diligent job search does not constitute a failure to mitigate.”
The employee, Jackie Killian, took FMLA leave and was terminated. Killian brought an FMLA action against the employer and was unemployed for 8 months. Eventually, Killian received a workforce grant in cosmetology. At the district court level, Killian was awarded $55,000 in damages in a bench trial.
The Sixth Circuit affirmed the trial court and found that the company violated the FMLA by terminated Killian without giving her the opportunity to provide her medical certification. The court also found that Killian has made the necessary showing to be entitled to damages for an FMLA interference claim and mitigated her damages as required.
Catherine Fisk (Duke) has posted on SSRN her forthcoming law review article in the Georgetown Law Journal entitled: Credits Where It's Due: The Law and Norms of Attribution.
Here's the abstract:
The reputation we develop by receiving credit for the work we do proves to the world the nature of our human capital. If professional reputation were property, it would be the most valuable property that most people own because much human capital is difficult to measure. Although attribution is ubiquitous and important, it is largely unregulated by law. In the absence of law, economic sectors that value attribution have devised non-property regimes founded on social norms to acknowledge and reward employee effort and to attribute responsibility for the success or failure of products and projects. Extant contract-based and norms-based attribution regimes fail optimally to protect attribution interests.
This article proposes a new approach to employment contracts designed to shore up the desirable characteristics of existing norms-based attribution systems while allowing legal intervention in cases of market failure. The right to public attribution would be waivable upon proof of a procedurally fair negotiation. The right to attribution necessary to build human capital, however, would be inalienable. Unlike an intellectual property right, attribution rights would not be enforced by restricting access to the misattributed work itself; the only remedy would be for the lost value of human capital. The variation in attribution norms that currently exists in different workplace cultures can and should be preserved through the proposed contract approach. The proposal strikes an appropriate balance between expansive and narrow legal protections for workplace knowledge and, in that respect, addresses one of the most vexing current debates at the intersection of intellectual property and employment law.
A fascinating paper at the intersection of employment and intellectual propery law, indeed! You can download the piece here.
Employers are sometimes requried by Title VII of the 1964 Civil Rights Act to accommodate the sincere religious practices and observances of their employees. That requirement is often ineffective for employees who seek accommodations. Explanations of that ineffectiveness typically focus on the permissive undue hardship defense; however, the problem is as much a result of an unbounded definition of sincere religious belief, practice, or observance as it is a failing of the undue hardship standard itself. Furthermore, courts have been too solicitous when plaintiffs attempt to turn run-of-the-mill disparate treatment claims into accommodation claims. Instead of amending Title VII to modify the undue burden standard as has been proposed in Congress, the reasonable accommodation requirement can be reinvigorated by utilizing it only in situations where a religious employee is faced with a true Hobson's choice between a sincere religious practice or observance and a religion-neutral, generally applicable work rule or policy. This paper describes the Hobson's Choice Model for religious accommodation claims by arguing for strengthening the sincerity review and strictly separating accommodation from traditional disparate treatment claims and using examples of cases involving religious expression.
The article is A Hobson's Choice Model for Religious Accommodation, 43 American Bus. L.J. ___ (2006).
Judge Nancy Edmunds, of the U.S. District Court for the Eastern District of Michigan, has refused to enforce Daimler Chrysler's employment arbitration agreement. Judge Edwards held that a clause in the agreement in which Daimler Chrysler reserved "the right to amend, modify, suspend, or terminate all or part of this [arbitration agreement] at any time at its sole discretion" showed that Daimler Chrysler did not intend to be bound by the agreement and that mutual assent therefore was lacking.
Judge Edmunds also noted that Daimler Chrysler’s arbitration agreement contained several provisions that were unenforceable because they would not permit the effective vindication of employees’ rights. One provision did not allow the arbitrator to award pay in lieu of future earnings, contrary to federal statutory employment laws. A second provision precluded the arbitrator from deciding any dispute-based benefits, though the FMLA provides that benefits can be awarded as damages. A third provision allowed Daimler Chrysler to choose whether to pay damages or to reinstate the employee, but Judge Edmunds pointed out that determining damages is the role of the judicial forum, and not the defendant. A fourth provision required the arbitrator to deduct from any damages money received by an employee from collateral sources, contrary to Michigan's collateral sources doctrine.
The case is Pellow v. Daimler Chrysler Services North America, LLC, No. 05-73815 (E.D. Mich. 7/20/06) (Westlaw password required).