Tuesday, October 31, 2006
Here's a taste from Yahoo! News via the AP:
Insurance company Amerigroup Corp. and its Illinois affiliate were held liable Monday for what lawyers said ultimately would total $144 million in damages for discriminating against pregnant women.
A federal court jury returned a verdict against the company that specializes in health care for low-income patients calling for $48 million in damages — an amount lawyers said would be tripled under state and federal laws.
Federal and state prosecutors as well as a whistleblower said that while marketing its services in Illinois, Amerigroup avoided pregnant women and others likely to run up high doctor bills.
That cheated the government, which was subsidizing the company to market its services evenly among all low-income patients regardless of whether they were pregnant or had costly illnesses, the attorneys said.
The suit was based on a whistleblower complaint from Cleveland Tyson, a former lobbyist for Amerigroup's Illinois affiliate. Tyson, who was fired in 2002, had lobbied state lawmakers and regulators.
Tyson's attorneys said it was "unclear" why he was fired and Jenkins said it would be improper for the company to comment on personnel matters.
The basic damages awarded by the jury were $48 million. Attorneys said that as a matter of law U.S. District Judge Harry D. Leinenweber would be required to triple the damages to $144 million.
They said the tripling is required under both the federal False Claims Act and the Illinois Whistleblower Act.
The company plans to appeal, but in the meantime you can file this one under the "Corporate Greed Has No Bounds" category.
And yet according to this article in the New York Times, as I write this, corporate America is in the process of trying to dilute whistleblowing and other employee and shareholder protections from such unconscionable corporate conduct.
Monday, October 30, 2006
Not from the United States, but close enough (Canada) (via PlanSponsor.com):
The Richmond, British Columbia fire department has barred its men and women frontline firefighters from wearing their own underwear, requiring instead more gender neutral skivvies in an effort to quell sexual harassment complaints.
The mandatory standard underwear will come at a price tag of $16,000 to the city of Richmond, which has agreed to provide six pairs of the Stanfield boxers to each of the city's 215 active firefighters, according to the Toronto Star.
The move by the department was an effort to neutralize the situation when firefighters must remove their clothes before suiting up after a call comes in, the Star reported. The firefighters strip in a common area and the standardized underwear idea came "from a sense in the department" that this was the best approach to the issue, said city official Ted Townsend, according to newspaper.
The decision by the city comes after four female firefighters said they were sexually harassed and harassed in other ways by their male colleagues. One female is suing the city.
Now since most workers in most employment situations don't strip in front of one another, I would not think other employers would have to face this same issue, but one does have to wonder how far an employer can go in dictating what its employees can wear underneath their clothes to work.
For instance, could an employer bar thong underwear because it might be noticeable to other employees and cause inappropriate comments to be made? Seems like this may be an area where privacy rights and employment discrimination laws might potentially be at odds.
Let the great underwear wars of the 21st century begin.
- Christian Dennie, Is Clarett Correct? A Glance at the Purview of the Antitrust Labor Exemption, 6 Tex. Rev. Entertainment & Sports L. 1 (2005).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Law Litigation, 111 Penn St. L. Rev. 137 (2006).
- Kelly Gallagher, Rethinking the Fair Credit Reporting Act: When Requesting Credit Reports for "Employment Purposes" Goes Too Far, 91 Iowa L. Rev. 1593 (2006).
- Evan D.H. White, A Hostile Environment: How the "Severe or Pervasive" Requirement and the Employer's Affirmative Defense Trap Sexual Harassment Plaintiffs in a Catch-22, 47 Boston College L. Rev. 853 (2006).
Sunday, October 29, 2006
A story like this (from Ghana, Africa) really chills you to the bone. But it reminds me of something that I once read in Barbara Kingsolver's The Poisonwood Bible about how in 1960's Congo, Africa there are really just two types of people: those who need to be carried and those who can walk on their own. Childhood simply does not exist.
Just before 5 a.m., with the sky still dark over Lake Volta, Mark Kwadwo was rousted from his spot on the damp dirt floor. It was time for work.
Shivering in the predawn chill, he helped paddle a canoe a mile out from shore. For five more hours, as his coworkers yanked up a fishing net, inch by inch, Mark bailed water to keep the canoe from swamping.
He last ate the day before. His broken wooden paddle was so heavy he could barely lift it. But he raptly followed each command from Kwadwo Takyi, the powerfully built 31-year-old in the back of the canoe who freely deals out beatings.
“I don’t like it here,” he whispered, out of Mr. Takyi’s earshot.
Mark Kwadwo is 6 years old. About 30 pounds, dressed in a pair of blue and red underpants and a Little Mermaid T-shirt, he looks more like an oversized toddler than a boat hand. He is too little to understand why he has wound up in this fishing village, a two-day trek from his home.
But the three older boys who work with him know why. Like Mark, they are indentured servants, leased by their parents to Mr. Takyi for as little as $20 a year.
Until their servitude ends in three or four years, they are as trapped as the fish in their nets, forced to work up to 14 hours a day, seven days a week, in a trade that even adult fishermen here call punishing and, at times, dangerous.
The International Labor Organization, a United Nations agency, estimates that 1.2 million are sold into servitude every year in an illicit trade that generates as much as $10 billion annually.
Studies show they are most vulnerable in Asia, Latin America and Africa.
As I write this, and listen to my own 5-year-old play a board game with his mother and his little sister, I am forcefully reminded of all that we take for granted in this country of plenty and feel truly helpless in addressing the needs of these brutalized children.
Saturday, October 28, 2006
Well, as I sit here in the Milwaukee airport waiting for my flight back to Memphis (and then on to Oxford), the First Annual Colloquium on Current Scholarship in Labor and Employment Law has come to a close today and after 48 speakers giving their papers on everything under the labor and employment sun, I can only say that the event was a smashing success (hence the big smiley face on the upper left side of this post).
It was not only a worthwhile conference because of the breadth of ideas presented and the intellectual exchanges that took place, but also because of the sense of community that was generated among the conference participants during the various meals, breaks, and happy hours that we shared together.
Which brings me to the next topic: where will the Second Annual Colloquium on Current Scholarship in Labor and Employment Law be? We already have a number of schools who have expressed interests, but I wanted to get other blog readers' input. I think we will have it more toward September next year, but we are open to any school that would like to host next year. Please contact me, Scott Moss, or Joe Slater with suggestions.
In the meantime, we are also looking for suggestions from participants and others on how we can continue to improve the format of the conference. In this regard, you can either write one of the three of us or respond directly be leaving a comment to this post.
Finally, to all those attended, thanks for making this conference a special event and I look forward to seeing you all at many more events in the future (AALS in January anyone?). And, of course, kudos to Scott Moss and Marquette for hosting us and providing everyone an exceptional experience.
- Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (119).
- Orly Lobel (photo above), The Paradox of Exdtra-Legal Activism: Critical Legal Consciousness and Transformative Politics (101).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (99).
- Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (87).
- Michael L. DeMichele & Richard A. Bales, Unilateral-Modification Provisions in Employment Arbitration Agreements (62).
- Orly Lobel, The Paradox of Exdtra-Legal Activism: Critical Legal Consciousness and Transformative Politics (101).
- Michael J. Rawling, Australian Trade Unions as Shareholder Activists: The Rocky Path Towards Corporate Democracy (26).
- Richard Michael Fischl, Rethinking the Tripartite Division of American Work Law (26).
- Terry Carney, Welfare to Work: Or Work Discipline Revisited (22).
- David A. Matsa, Capital Structure as a Strategic Variable: Evidence from Collective Barganing (22).
- Richard M. Locke, Fei Qin, & Alberto Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (117).
- Christian Haefke & Monique Ebell, Product Market Regulation and Endogenous Union Formation (20).
- Sanjay G. Reddy (photo above), Pareto-Improving International Labor Standards Agreements: A Simple Model (12).
- David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (349).
- Colleen Medill, Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3) (239).
- Alan D. Jagolinzer, Steven R. Matsunaga, & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (144).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (99).
- M. Todd Henderson (photo above), Paying CEOs in Bankruptcy: Executive Compensation When Agency Costs Are Low (70).
Friday, October 27, 2006
The Department of Labor announced today that eight states have volunteered to test $3,000 personal accounts that workers can use to get needed education and training. These Career Advancement Accounts (CAAs) can be used by displaced or current workers to pay for expenses directly related to improving their job skills, such as tuition, books, and fees.
Three states (Indiana, Pennsylvania and Wyoming) will conduct pilot tests for statewide use. Another five states (Georgia, Michigan, Minnesota, Missouri and Ohio) will use CAAs to help workers impacted by layoffs in the automobile industry. In addition, a competition will be held shortly to conduct a random assignment study of CAAs.
Individual workers will be eligible for accounts worth $3,000, renewable for one year, for a total of $6,000. Between 2,500 and 4,000 automotive workers could potentially take advantage of CAAs. States will be eligible for grants of $1.5 million from the U.S. Department of Labor, provided they contribute $1.5 million in matching funds.
For more, see the DOL's press release.
Thursday, October 26, 2006
Margaret Moses just posted on SSRN her article Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted by Congress. From the abstract,
The Supreme Court has so significantly rewritten the Federal Arbitration Act (FAA) over the last twenty-five years that today it bears little resemblance to the statute enacted by Congress in 1925. [It was intended as procedural; now it's substantive. It was intended to apply in federal courts; now it applies in state courts and preempts state law. It was intended for non-statutory commercial disputes; now it covers statutory disputes. It excluded workers' contracts; now it covers employees. It was intended for parties with equal bargaining power; now it applies to adhesive contracts.]
How does a statute acquire a totally different scope and application without any legislative intervention?
This article begins with the story of the Federal Arbitration Act's origins, and then discusses the interpretive methods used by the Supreme Court in the major cases that have defined the FAA. It concludes that none of the different interpretive methods used by the Court has served to cabin judicial discretion to legislate, resulting in a complete rewriting of the statute.
The article also considers the impact of the Court's policy choices on our legal system. The FAA is a statute that reduces protections legislated in the fields of federal antitrust, securities and employment law, and intrudes upon state police powers to control core state functions involving contract law and legal process. The new architecture of the FAA appears to reflect judicial policy preferences for the economically powerful, favoring corporations over consumers, and employers over employees.
Kimberly Ososio, canned from her job as an editor at The Source magazine, portrayed the magazine's offices as a "raunched-out workplace where executives watched porn, smoked pot and called female employees "b------."
An attorney for the magazine admitted that coarse and profane language was common there but said it was aimed at all parties, "not a gender-specific conduct". A jury agreed with Osorio's claim that she was sacked for complaining about sexualized goings-on; she also complained of defamation, but lost on sexual discrimination and harassment counts. (Jose Martinez, "Hip-hop mag bagged", New York Daily News, Oct. 24).
The magazine already faces bankruptcy proceedings due to other business problems. (Leonard Greene, "Editor's New 'Source' of Woe", New York Post, Oct. 25; Peter Carlson, "Hip-Hop Editor Wins Suit Over Her Firing", Washington Post, Oct. 25; Joshua Rhett Miller, "Ex-Source editor hopes ruling redefines rap", Metro New York, Oct. 25).
BTW, in case you are wondering, the verdict was for $15 million dollars. Now that is some serious bling-bling.
Update: a number of commentators have pointed out that the Vietnam and German positions just can't be right, given NLRB jurisdiction and all. Must be a misprint, but if someone applies and gets the job, please let me know!
Federalogovernmentjobs.us has recently listed the following open positions with the NLRB throughout the country and world:
Jobtitle Job Location Public Department Posted Deadline Supervisory General Attorney Officer In Charge Vietnam No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Germany No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Seattle, WA No National Labor Relations Board 10/24/06 11/13/06 Supervisory General Attorney Officer In Charge Portland, OR No National Labor Relations Board 10/24/06 11/13/06
Hat Tip: Paul Caron
It is now farily well-settled law that an employee severance agreement to waive all employment-related claims against his or her former employer may not include language that prohbits the employee from filing a charge of discrimination with the EEOC. The question in EEOC v. SunDance Rehabilitation (6th Cir., Oct. 24, 2006) was whether the mere inclusion of such a provision in a release is tantamount to retaliation.
The court thought not. In a 2-1 decision, the court found that although the provision was not enforceable, it did not rise to the level of retaliation:
SunDance’s mere offer of the Separation Agreement does not amount to retaliation under ADA, ADEA, EPA, or Title VII, either as a facial violation of those statutes’ antiretaliation provisions or under the conventional burden-shifting analysis. SunDance has not tried to enforce the Separation Agreement, and the question of the enforceability of the Agreement or any of its provisions is not before us.
The dissenting judge had this to say:
The majority in effect says that an employee who believes he or she has an EEOC enforceable claim or at a minimum is willing to testify in an EEOC enforcement action should sign the agreement, take the money and then go forward with the EEOC. If SunDance sues for a return of the severance pay, then the defense of retaliation should be raised and may carry the day. Any act by an employer which interferes with or chills a protected right is, I believe, contrary to public policy and in violation of the anti-retaliation provisions of the several statutes involved.
I understand the distinction the majority seems to be drawing here, but I wonder also whether an employer seeking to have severance money returned once an employee files a charge of discrimination with EEOC may not be able also to hit the employer with a Rule 11-type sanction for filing a clearly frivolous claim. Perhaps, the reality of sanctions will cause less of a chill on employee rights in these situations because sophisticated employer counsel knowing the law will never file these claims in the first place.
The Department of Labor has issued its Strategic Plan for Fiscal Years 2006-2011. My observation based on a quick glance: there's a lot in here about worker training, but not much about enforcement of existing worker protection laws.
Wednesday, October 25, 2006
Umm . . . let's just say that I am happy I didn't have this type of thug, juvenile principal in my school days (via Comcast News):
The principal of Park High School returned to school Tuesday after a six-day suspension for giving a student a "wedgie." The Livingston [Montana] School District Board held a special meeting Monday and approved Superintendent Hannibal Anderson's recommendation that Principal Eric Messerli be allowed to return to work.
"It has been clearly recognized and stated that the behavior is inappropriate, unprofessional and unacceptable," Anderson said.
Messerli's behavior "warrants substantial disciplinary action" but was not sufficient grounds for a recommendation for termination, he said.
Messerli was suspended for two days without pay and four days with pay for grabbing a Park High senior's soccer jersey and pulling it over his head and giving the student a "wedgie" by pulling up on the waist band of his underwear. The incident happened on Oct. 5 at a junior varsity soccer game.
Consider me old-fashioned, but if I am on the school board, this guy never has a leadership position involving children again. It's not that he just engaged in inappropriate behavior, but that the behavior can be seen as either having sexual or bullying connotations or both. Either way, clearly not someone with the judgment you look for in a principal and not someone you want setting an example for your children.
I was intrigued by this poll and story done by Rasmussen concerning whether individuals would be willing to sacrifice quality in order to have more affordable health care.
Apparently not. The findings:
While health care costs are rising rapidly, 64% of American adults say that quality care is more important than lower health care costs (25%). That sentiment is echoed across all demographics in the latest Rasmussen Reports survey (see crosstabs).
The survey also found that Americans underestimate how much it costs companies to provide insurance for an employee and their family.
Half (50%) of all Americans estimate the cost at $750 per month or less. Thirteen percent (13%) are in the right ballpark and estimate an average monthly insurance cost of $750 to $1,000. Only 10% overestimate the cost and assume that insurance premiums for a family would top $1,000 per month.
According to the 2006 Kaiser Family Foundation/Health Research and Educational Trust Employer Health Benefits Survey, the average cost of family health insurance coverage is $957 per month or $11,480 per year.
Of course, quality care only matters if you can afford it. I wonder if the survey question had been asked slightly differently whether there would be more individuals who would have answered that they just like to have some health care coverage from their employers versus none at all.
I would also be interested to hear whether most Americans believe they can still get quality health care coverage for affordable prices under the current employer-provided health care system. The lack of understanding of how much adequate health care costs suggests perhaps they are mistaken about what the current system can provide for them.
Here is a nice summary of the labor agreement agreed to by baseball owners and their owners (Yahoo! News via AP):
Bud Selig and Donald Fehr sat in the center of a dais, flanked by players and owners. For the second time in four years, they were proclaiming labor peace.
"The last agreement produced stunning growth and revenue," Selig said. "I believe that five years from now people will be stunned how well we grew the sport."
The five-year collective bargaining agreement, which runs through the 2011 season, is subject to ratification by both sides. The deal makes relatively minor changes to the previous agreement, and doesn't alter baseball's drug rules.
"This is the golden era in every way," Selig said. "The economics of our sport have improved dramatically, and that's good. That, after all, made for a more wholesome atmosphere. We didn't have to quarrel about a lot of things. So overall, it was a very, very important part of the environment that continues peace."
As an ardent baseball fan, I am thrilled to know that their will not be any work stoppages in the near future, but I wonder whether this is really the "golden age" of baseball and really doubt there is a "wholesome atmosphere."
With steroid and other drug use apparently rampant, as seen by recent cases, the players and owners need to address these issues head on and stop dancing around them. Baseball is being diminished everyday that these scandals continue to percolate.
Hat tip: Megan McGrew
Colleen Medill (left), Richard Wiener (center), Brian Bornstein (right), & E. Kiernan McGorty provide the answer in How Readable Are Summary Plan Descriptions for Health Care Plans? Here's the abstract, posted last week on SSRN:
The summary plan description (SPD) is the primary source of information for workers who participate in an employment-based health care plan. This paper investigates whether private-sector employers' SPDs are written so that an average plan participant can identify and read important information contained in the document, as required by federal law. Summary plan descriptions for 40 health care plans from a diverse national sample were collected and tested and subjected to content and readability analyses. The data from this study provide quantifiable evidence about whether summary plan descriptions cover the necessary topics that participants need to know about their health plans, and the educational level required to read them.
Tuesday, October 24, 2006
When it comes to the enforcement of covenants not to compete (also know as noncompetition clauses), which prevent employees from competing against their former employers for a certain period of time within a certain location, courts in all states look at the reasonableness of such a restrictive covenant given the interference with an employee's right to earn a livelihood (with the notable exception of California where such covenants are generally illegal).
Of the many factors that are considered in making this reasonableness determination, one area that tends to vary across the states is what constitutes "adequate consideration" to support a noncompetition agreement. Although offering new employment to a worker in return for agreeing to a covenant generally suffices, some states have gone so far to say that mere continued employment of a current worker is also sufficient. Others have taken a stricter view and have required employers to offer current employees some additional consideration like a bonus or other additional benefits, and provide that benefit at the time that the covenant is entered into.
The Texas Supreme Court last week changed its law about when such noncompetition agreements are supported by adequate consideration. In Sheshunoff Management Services, Inc. v. Kenneth Johnson and Strunk & Associates, No. 03-1050 (Tx. Oct. 20, 2006), the court found that a unilateral promise by the employer may support a covenant not to compete. More specifically, the court held:
In this case we revisit the Court’s 1994 decision in Light v. Centel Cellular Co. and again consider the enforceability of covenants not to compete in the context of at-will employment. The question today is whether an at-will employee who signs a non-compete covenant is bound by that agreement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always “no.” Today we modify our holding in Light and hold that an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant. In so holding, we disagree with language in Light stating that the Covenants Not to Compete Act requires the agreement containing the covenant to be enforceable the instant the agreement is made.