Thursday, August 31, 2006
Umm, I can only imagine it was not the greatest site in the world to see the man dressed as the pilot of your airplane banging on the cockpit door trying to get in (via CNN.com):
The pilot of a Canadian airliner who went to the washroom during a flight found himself locked out of the cockpit, forcing the crew to remove the door from its hinges to let him back in, the airline said on Wednesday.
The incident occurred aboard a flight from Ottawa to Winnipeg on Saturday. The regional jet, capable of carrying 50 people, was operated by Air Canada's Jazz subsidiary.
Jazz spokeswoman Manon Stewart said that with 30 minutes of the flight to go, the pilot went to the washroom, leaving the first officer in charge. But when he tried to get back into the cockpit, the door would not open.
That will teach the pilot to try to hold it until after he lands the plane!
Congratulations to Katie Kennedy (John Marshall), who along with Paul Schultz (Director, Employee Plans Rulings & Agreement, IRS), has published Employee Benefits Law: Qualification Rules and ERISA Requirements.
From the Lexis-Nexis press release on the book:
The Graduate Tax Series is the first series of course materials designed for use in tax LL.M. programs. Like all books in the Series, Employee Benefits Law was designed from the ground-up with the needs of graduate tax faculty and students in mind:
- More focus on Internal Revenue Code and regulations, less on case law
- Analysis of complex, practice-oriented problems of increasing sophistication
- Teacher’s manual with solutions to problems and other guidance
- Web site with real-time digital supplementation for faculty (PowerPoint slides and discussion forum with authors) and students (full text of all cases and rulings)
- On-line access to the comprehensive and current Code and regulations, designed to complement the book
Thanks to Jon Forman (Oklahoma) for the pointer.
EBSA Seeks Nominations for Vacancies on ERISA Advisory Council (PDF)
Excerpt: "The terms of five members of the [Advisory Council on Employee Welfare and Pension Benefit Plans] expire on November 14, 2006. The groups or fields they represent are as follows: (1) Employee organizations; (2) employers; (3) actuarial counseling; (4) investment counseling; and (5) the general public. . . . Recommendations must be delivered or mailed on or before October 1, 2006."
President Bush announced yesterday that he intends to disignate Naomi Churchill Earp, of Virginia, to be Chair of the Equal Employment Opportunity Commission. Ms. Earp currently serves as Commissioner and Vice-Chair of the Equal Employment Opportunity Commission. Prior to this, she served as Director of Equal Employment Opportunity and Diversity of the National Institute of Health. Earlier in her career, she served as Director of the Office of Advocacy and Enterprise at the Department of Agriculture. Ms. Earp received her bachelor's degree from Norfolk University and her master's degree from Indiana University. She later received her JD from Catholic University's Columbus School of Law.
David Gregory has extended an invitation for labor/employment folks to attend the St. John's Labor Relations and Employment Law Society's Fall 2006 Speaker Series, featuring:
- On Sept. 19, 5:00 p.m., President Roger Toussaint (left), Transport Workers Union, Local 100.
- On Oct. 10, 6:00 p.m., 10th Annual Management Lawyers Colloquium, featuring a discussion of cutting-edge labor and employment issues by a panel of management attorneys.
- On Nov. 16, 7:30 p.m., “Haunted by God” (Lisa Wagner (right) will perform her internationally acclaimed one-woman, one-act play on the life of Dorothy Day, Founder of the Catholic Worker movement.
All events are free, open to the public, and good for one credit of CLE.
RadioShack Corp. followed through on its announced plans to cut about 400 jobs, but the electronics retailer has been forced on the defensive about its method of notifying laid-off employees by e-mail. Employees at the Fort Worth headquarters received an e-mail Tuesday morning telling them they were being dismissed immediately. "The work force reduction notification is currently in progress," the notice stated. "Unfortunately your position is one that has been eliminated."
For more, see RadioShack Fires 400 Texas Employees.
Wednesday, August 30, 2006
The University of Western Ontario, in London, Ontario, will host a conference October 20-21 on International Labour Law. Michael Lynk (left) and John Craig (center left) are co-chairing the conference. Previous versions of this conference have drawn leading labour law academics from Canada, the US, Europe, and elsewhere.
Dr. Manfred Weiss (center right) will deliver the 4th annual Koskie Minsky University Lecture on Labour Law on the evening of Oct. 20, on the topic of Labour Law and the Future of Social Europe. The Saturday conference has four panels, with a number of distinguished speakers. The panel themes are:
- Equality and Discrimination in International Labour Law
- Creating a Fair Globalization
- Globalization, Labour Laws and Labour Markets: India, Mexico and South Africa
- Globalization, Labour Laws and Labour Markets: China
Dr. Manuela Tomei (right) from the ILO will be the featured speaker during the luncheon on Saturday.
The website for the Lecture and Conference, with a full listing of the program and registration information, can be found at Labour Law and the Global Workplace.
Susan J. Stabile has been appointed the Dean George W. Matheson Professor of Law at St. John's University School of Law.
In her thirteen years at St. John’s, Professor Stabile has written dozens of law review articles, several book chapters, and numerous other publications, focusing largely on pension and employee benefits law. Her articles have appeared in New York University Law Review, Harvard Journal of Law and Public Policy, Yale Journal on Regulation, University of Michigan Journal of Law Reform, University of Pennsylvania Journal of Labor and Employment Law, Cornell Journal of Law and Public Policy, NYU Annual Survey of American Law, Notre Dame Law Review, Wake Forest Law Review, Connecticut Law Review, Cardozo Law Review, Villanova Law Review, Villanova Journal of Catholic Social Thought, Seattle Journal for Social Justice, St. John's Law Review, Journal of Catholic Legal Studies, The Catholic Lawyer, John Marshall Law Review, Employee Rights and Employment Policy Journal, and numerous other publications. She has also co-authored two books: the treatise ERISA Litigation (BNA 1st ed. 2003, 2d ed. 2005) and the casebook Pension and Employee Benefit Law (Foundation 4th ed. 2006).
Here's an article about medical research findings correlating higher blood pressure with the more hours that one works:
Workers who clocked more than 51 hours at the office each week were 29 percent more likely to have high blood pressure than those who worked 39 hours or less, a new study from California has found.
Interest in the topic began in Japan, they add, where a notoriously high-pressure work culture has given rise to a phenomenon known as Karoshi, or "sudden death from overwork." Today, Americans work longer hours than do Japanese, the researchers add.
Those who worked 40 hours per week were 14 percent more likely to have high blood pressure than people who worked 39 hours or less. Hypertension risk was 17 percent greater in those working 41 to 50 hours weekly, and 29 percent higher in those working 51 hours or more.
The researchers also found that hypertension was more common among clerical and unskilled workers than among professionals. This "suggests that occupations requiring more challenging and mentally active work may have a protective effect against hypertension," Yang and his colleagues write.
The article also points out that the United States is almost alone among developed countries not to have laws that absolutely limit the number of hours a person can work in a week. Although the Fair Labor Standards Act (FLSA) is suppose to give incentive to employers to spread work out once employees have to work more than 40 hours in a workweek by making them pay time and a half, it many times doesn't work out that way. Among the reasons is that it is sometimes more expensive to find and train new employees and provide them health and retirement benefits than just pay the existing worker the premium pay.
Studies like this make you wonder whether the government should paternalistically step in an adopt legislation limiting work hours or continue to regulate wages and hours through the FLSA scheme.
Thanks to Miriam Cherry (Pacific-McGeorge) for sending me this article about the difficulties people have being generally alert and having energy after lunch and what they may do about it.
Here's a taste:
Letting in a little extra light throughout the day may do more than just lift your spirits. It could make you more alert and help you avoid an afternoon energy slump.
The researchers exposed a group of people to 21 minutes of bright white light in the morning while they imaged their brains. Not only were the participants more alert, but responses in certain parts of their brain also got a boost.
The brain regions that were affected by light are also typically involved in attention and arousal regulation, Vandewalle told LiveScience. "So light affects these regulatory systems at the cerebral and behavioral level. This could be relevant for demanding jobs for example, usually performed by tired people."
Tired people can be found in offices everywhere from the equator, where the sun shines down directly, to the Artic Circle, where for half the year folks get much less direct sunlight.
"People stay inside most of the time everywhere on the planet," Vandewalle said, adding that people should expose themselves to natural light in all countries, since light outside is always brighter than what we get in offices.
Congratulations to David L. Gregory, who has been appointed the Dorothy Day Professor of Law at St. John's.
Professor Gregory, a member of the law school’s faculty for more than 24 years, has written over one hundred articles and book chapters, as well as three dozen book reviews. His work has appeared in the main law reviews of Duke, Texas, Vanderbilt, George Washington, Wisconsin, UC-Davis, Washington & Lee, Boston College, William & Mary, Fordham, Tulane, Georgia, Arizona State, Connecticut, Maryland, Brigham Young University, Pittsburgh, San Diego, Alabama, Houston, Brooklyn, Temple, Villanova, Buffalo, Cincinnati, Denver, Nebraska, Santa Clara, Seton Hall, Syracuse, Catholic, Baylor, DePaul, Loyola-Chicago, St. John’s, and many others. Professor Gregory has also co-authored two books on labor relations and edited four others. He is a frequent media commentator on labor issues, especially in The New York Times, and his writing regularly appears in the popular press and has also organized many conferences over the years, including, most recently, a July 2006 conference in London on Transatlantic Perspectives on ADR.
Margaret Leibowitz will be a Visiting Professor at Wayne State this academic year. Her area of expertise is Labor Law; she spent 18
years teaching at Cornell University’s School of Industrial and Labor
Relations. She is also an arbitrator and mediator of labor-management disputes
in the private and public sectors. Her undergraduate degree is from ILR
Cornell and her J.D. is from New York University School of Law.
Tuesday, August 29, 2006
The U.S. Department of Labor today filed a notice of proposed rulemaking concerning management of the Trade Adjustment Assistance (TAA) Reform Act of 2002. The TAA program assists individuals who have become unemployed as a result of increased imports or shifts in production to foreign countries. TAA-certified workers may access a menu of services that include training, income support, relocation allowances, job search allowances, and a health insurance coverage tax credit.
Changes to the TAA regulations proposed today include flexible training options, including distance learning, enhanced training provider performance, and an equitable distribution of training funds to states. The proposed changes further integrate the TAA program with the One-Stop delivery system and other employment and training services.
A new blog that I just discovered, The Boston ERISA and Insurance Litigation Blog by Stephen Rosenberg, has a great write up of the recent First Circuit opinion in Janeiro v. Urological Surgery Professional Association, 05-2510 (1st Cir., Aug. 7, 2006).
Stephen nicely sums up the case (need to follow the post linked to here to another post) and the standards for the awarding of attorneys' fees in an ERISA case:
In Janeiro, you may recall, the defendant took a beating in the case, and the plaintiff, rightfully so under ERISA, sought to recover attorneys’ fees after prevailing on his claim. The First Circuit, addressing the district court’s decision not to award fees to the prevailing plaintiff, gave a nice, concise presentation of the law at this point in time in this circuit on this issue. Emphasizing that an award of attorneys’ fees in such cases is entirely discretionary, the court discussed the standards governing this determination in this circuit. In key part, the court declared:
ERISA provides that attorneys' fees are available in the court's discretion. . . . We begin by noting that in an ERISA case, a prevailing plaintiff does not, merely by prevailing, create a presumption that he or she is entitled to a fee-shifting award.. . . [T]his court has listed five factors that ordinarily should guide the district court's analysis: (1) the degree of culpability or bad faith attributable to the losing party; (2) the depth of the losing party's pocket, i.e., his or her capacity to pay an award; (3) the extent (if at all) to which such an award would deter other persons acting under similar circumstances; (4) the benefit (if any) that the successful suit confers on plan participants or beneficiaries generally; and (5) the relative merit of the parties' positions. . . .This list is illustrative, not exhaustive[;]no single factor is dispositive; and indeed, not every factor in the list must be considered in every case.
Under this standard, the First Circuit upheld the district court's denial of attorney fees to plaintiff's counsel.
Employee Rights and Employment Policy Journal
Volume 10, Number 1 (2006)
Proceedings: New Frontiers in Poverty Research and Policy: A Summit on Poverty, University of North Carolina Center on Poverty, Work and Opportunity.
- William C. Friday & John R. Edwards, “Introduction,” p. 3.
- Daniel P. Gitterman, John R. Edwards, Alice O’Connor, Peter B. Edelman, David T. Ellwood, Sandy A Darity, Jr., Wade F. Horn, Isabel V. Sawhill, William Julius Wilson, & Greg Duncan, Confronting Poverty: What Role for Public Programs?, p. 9.
- Kathleen Mullan Harrris, John R. Edwards, Isabel V. Sawhill, Wade F. Horn, Marsha Garrison, Greg J. Duncan, Dennis K. Orthner, Katherine S. Newman, Alice O’Connor & David T. Ellwood, Family Structure, Poverty and Family Well-Being, p. 45.
- Arne L. Kalleberg, John R. Edwards, Richard Freeman, Tim Kane, Marvin H. Kosters, Katherine S. Newman, Anna Burger, Isabel V. Sawhill, Alice O’Connor & Jared Bernstein, Moving Out of Low Wage Jobs: Opportunities and Barriers, p. 81.
- Jessie L. White, John R. Edwards, Michael W. Sherraden, Suzanne Morse, Karl Stauber, Anita R. Brown-Graham & James L. Leloudis, II, Community Economic Development and Poverty Alleviation, p. 121.
- John R. Edwards, Gail B. Agrawal, Ray Boshara, Jared Bernstein, Tim Kane, Anna Burger, William Julius Wilson, Alice O’Connor, Katherine S. Newman & Richard Freeman, Katrina’s Lessons: Moving Forward in the Fight Against Poverty, p. 151.
- Marion G. Crain, Afterword: The American Romance With Autonomy, p. 187.
- Senator John R. Edwards, Concluding Comments, p. 203.
- Chester S. Chuang, Assigning the Burden of Proof in Contractual Jury Waiver Challenges: How Valuable is Your Right to a Jury Trial?, p. 205.
- Katherine Van Wezel Stone, George C. Gonos, Stephen F. Befort & Michelle A Travis, Employment Protection for Atypical Workers: Proceedings of the 2006 Annual Meeting, Association of American Law Schools Section on Labor Relations and Employment Law, p. 233.
- Michelle A. Travis, Arthur S. Leonard, Joan Chalmers Williams & Miriam A. Cherry, Gender Stereotyping: Expanding the Boundaries of Title VII: Proceedings of the 2006 Annual Meeting, Association of American Law Schools, Section on Employment Discrimination Law, p. 271.
Thanks to reader Andrew Hartley who brings to our attention a cert. petition that he and co-counsel filed in the the 9th Circuit case of Coates v. Agilent Technologies, Inc. The petition asks the Supreme Court to take up two issues involving individual account plan participants which has divided the circuits:
1. Whether participants in individual account plans may obtain relief to the plan under section 502(a)(2) of ERISA when the alleged violations affected some, but not all, of the plan participants’ accounts.
2. Whether a fiduciary has a duty under ERISA § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D), to disregard the terms of the plan document where those terms require him to violate his fiduciary duties under ERISA § 404(a)(1)(A) and (B), 29 U.S.C. § 1104(a)(1)(A) and (B).
Plaintiff-Petitioner Coates brought thisaction individually and on behalf of a class of similarly situated participants of the Company’s Deferred Profit-Sharing Plan against Agilent Technologies. The Plan historically required participants, as they approached retirement age, to gradually shift their Plan investments from the riskier “Fund A,” one heavily weighted in equities, to the less volatile “Fund B,” one predominantly composed of fixed income investments. In 2000, however, the Plan’s sponsors amended the Plan to require the elimination of the Fund B and the immediate reallocation of its assets to Fund A. As a result, those participants with assets primarily invested in Fund B, who were predominantly over age 55, allegedly lost considerable sums of money in the decline of the equities market.
Coates alleged that the Plan’s fiduciaries should have declined to follow the
plan sponsor’s amendment of the plan instrument because it required them to
breach their fiduciary duties to him and his class of similarly situated older
participants who had invested their retirement assets in the fixed income
The Ninth Circuit affirmed the district court's granting of Agilent's motion to dismiss, finding that the fiduciaries could not be held liable under ERISA Section 502(a)(2), because the Defendants’ decision to implement the terms of the plan amendment was not subject to the fiduciary standards contained in ERISA Section 404. The Court further held that Petitioner failed to state a claim under ERISA section 502(a)(2), reasoning that “Defendants’ duties ran to the plan as a whole, not to any subset of beneficiaries, because fiduciaries are required to take impartial account of the interests of all beneficiaries.”
It will be interesting to see if the Court decides to weigh in on these challenging ERISA issues that are currently dividing the circuit courts.
Monday, August 28, 2006
Today, I just finished lecturing to my labor law students on NLRB jurisdictional issues, such as supervisory status, under the NLRA. On my arrival back to my office, and as luck would have it, I just got word from Catherine Fisk (Duke) that the NLRB has denied a group of law professors' request for oral argument for the pending supervisory status cases. (Here is the previous blog post describing the submission of that request and a copy of the letter). Here is a copy of the NLRB Order denying oral argument.
As Catherine points out in her letter to those of us (including myself) who signed the letter asking for oral argument in these cases, there is some good that has come from our effort, including the fact that we were officially recognized as amici and that our arguments were considered, even though our request was ultimately denied. In case the Board did not recognize the momentous nature of the decisions they are about to hand down, hopefully our letter made that point crystal clear.
See these flags to the left? Well, if these were hanging in my public school classroom in Colorado, I could lose my teaching job. I kid you not (via The Denver Channel):
A Jefferson County geography teacher was placed on paid administrative on the second day of school for hanging several flags from other countries in his classroom.
Eric Hamlin said the flags were part of a world geography lesson plan at Carmody Middle School and refused to take them down. The school's principal escorted Hamlin out of class Wednesday morning after he refused to remove the flags of China and Mexico.
The school district placed him on administrative leave for insubordination, citing a Colorado law that makes it illegal to display foreign flags permanently in schools.
"Under state law, foreign flags can only be in the classroom because it's tied to the curriculum. And the principal looked at the curriculum, talked to the teacher, and found that there was really no curriculum coming up in the next few weeks that supported those flags being in the classroom," said Jeffco Public Schools spokeswoman Lynn Setzer.But Hamlin said although his curriculum may not speak specifically about those flags, they are used as reference tools for world geography.
Ummm, hello. Does anyone really think that hanging the flags of Mexico and China are going to have an adverse effects on middle school students? Their patriotism in doubt? Does this school have nothing better to do than monitor what flags teachers are hanging in their classroom? Gimme a break. No wonder public education is such a mess in this country.
Now, the Colorado law at issue here is nativistic and stupid (but not surprising given the xenophobic ardor of some in the state's congressional delegation), but the application of the law to these facts defies all logic.
Here's a taste of an article from the Washington Post discussing the loosening of dress code regulations for air marshals on commercial flights:
On your next flight to the tropics, the person sitting next to you in a Hawaiian shirt might be armed.
It's a possibility because of a new dress code for air marshals announced yesterday.
Dana A. Brown, director of the Federal Air Marshal Service, said in a memo to air marshals that the dress code revisions will take effect Sept. 1 and replace a policy that some air marshals criticized for being so strict that they stood out on some flights.
Brown told air marshals in the memo that the policy was being amended to "allow you to dress at your discretion."
He added that the new policy was designed to let air marshals blend in while concealing their weapons.
A common sense policy from the government? What goes on here?
Rick and I are excited to announce that we are hosting our first blog carnival with the arrival of Blawg Review #73 for Labor Day (Monday, September 4th). Appropriate, huh? In fact, this issue of Blawg Review marks the first of a series of four issues in September hosted on prof blogs for a "back to school" theme.
If readers wish to submit worthy blog posts from around the blogosphere for inclusion in this blawg review, they can submit posts at the Blog Carnival Page. The submission guidelines can be found here.
We are looking forward to putting forward an interesting review to celebrate Labor Day. In the meantime, you can check out this week's Blawg Review (#72) at Ernie the Attorney.