Workplace Prof Blog

Bagenstos on US Airways v. Barnett

Thanks to Larry Solum at the Legal Theory Blog for pointing out that uber-disability law guy, Sam Bagenstos (Washington University), has put out on SSRN his new piece on the important ADA reasonable accommodation case of US Airways v. Barnett.  The essay is entitled: US Airways v. Barnett and the Limits of Disability Accommodation (CIVIL RIGHTS STORIES, Myriam Gilles & Risa Goluboff, eds., 2007).

Here's the abstract:

This essay, to be published in Civil Rights Stories (Myriam Gilles & Risa Goluboff, eds., forthcoming 2007), tells the story of US Airways v. Barnett. Barnett, which involved an employee's request that his employer modify its seniority system as a disability accommodation, the Supreme Court confronted for the first time the Americans with Disabilities Act's requirement of reasonable accommodation in employment. Barnett ultimately offers a window into three of the most important issues to understand about the ADA's accommodation requirement: the requirement's relationship to more traditional antidiscrimination mandates; its seemingly zero-sum nature; and the limits of its usefulness in a world of reduced job security for everyone.

A must-read for anyone who is interested in the ever-changing law of disability discrimination in employment.

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Welcome to New York Public Personnel Law Blog

Harvey Randall writes to tell us about his new blog, the New York Public Personnel Law Blog.  As someone who is very interested in public employment law, I look forward to following the postings there.

Here is how Harvey describes his blog:

Harvey Randall’s summaries of, and commentaries on, selected court and administrative decisions affecting public employers and employees in New York State and related matters.

Today, for instance, he has a post on an interesting case concerning the enforcement of disciplinary settlement agreements.

Welcome to the blogosphere, Harvey!

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Top-5 Employment SSRN Downloads

1. Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (134).
2. Symeon C. Symeonides, Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria That Isn't (74).
3. Oliver Hart & John Moore, Contracts as Reference Points (66).
4. Yofi Tirosh (photo above), Adjudicating Appearance: From Identity to Personhood (58).
5. Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress (52).

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Top-5 Labor SSRN Downloads

1. Alexander Volokh, Privitization and the Law and Economics of Political Advocacy (95).
2. Jeffrey M. Hirsch (left) & Barry T. Hirsch (right), The Rise and Fall of Private Sector Unionism: What Next for the NLRA? (76).
3. Jennifer Gordon, Transnational Labor Citizenship (56).
4. Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress (52).
5. Scott Cummings, The Internationalization of Public Interest Law (49).
   

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Top New Year Wish: Attaining That Elusive Work-Life Balance

According to this article in Yahoo! News (via Reuters), achieving work-life balance tops the global New Year wish list:

Striking a better balance between work and play, taking more exercise and avoiding disastrous relationships top resolution lists around the world this New Year.

Global research group ACNielsen surveyed consumers in 46 countries and found from the United States to Vietnam that more than half of those interviewed wanted work to play a lesser role in their lives in 2007.

Well, let's hope this wish doesn't go the way of all those resolutions to lose weight!

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Top-5 International Employment & Labor Law SSRN Downloads

1. Jennifer Gordon (photo above), Transnational Labor Citizenship (56).
2. Scott Cummings, The Internationalization of Public Interest Law (49).
3. Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications (24).

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Top-5 Benefits/Compensation//Pension SSRN Downloads

 

 

 

 

 

 

1. Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (852).
2. Lily Batchelder, Fred T. Goldberg, & Peter R. Orszag, Efficiency and Tax Incentives: The Case for Refundable Tax Credits (145).
3. Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (134).
4. Takeshi Yamaguchi (left), Olivia S. Mitchell (right), Gary R. Mottola, & Stephen P. Utkus, Winners and Losers: 401(k) Trading and Portfolio Performance (81).
   
5. Debra A. Davis, Do-It-Yourself Retirement: Allowing Employees to Direct the Investment of Their Retirement Savings (61).

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Second Annual Colloquium on Current Scholarship in Labor & Employment Law

Thanks to Scott Moss (Marquette) over at PrawfsBlawg for sending along word that the dates have been set for the Second Annual Colloquium on Current Scholarship in Labor & Employment Law.

Next year's colloquium will be co-hosted by Denver University and the University of Colorado Law Schools on September 27 to September 29, 2006.  Details are still to be worked out, but those who wish to be updated on colloquium news or developments should send an email to Marty Katz (Denver), one of organizers of the event.

Scott in his post outlines a number of benefits for law professors participating in this event. Start thinking about what papers to present in the Rocky Mountains next year!

Update:   Marty just provided these further details: 

Thursday 9/27:  Informal dinner and drinks get-together in downtown Denver

Friday 9/28:  Full day program at University of Denver

Saturday 9/29:  Morning program at University of Colorado in Boulder followed by an afternoon hike for those interested

Marty plans to set up registration shortly.  In the meantime, if you could give Marty a preliminary indication of your interest in attending, as well as your interest in presenting a paper, that would be helpful (email link above).

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Comair Strike Averted

Paul posted last week on an impending strike at regional airline Comair.  Alexander Coolidge reports in today's Cincinnati Enquirer that the parties have called a five-week truce to allow more time for bargaining.  Comair won't impose bankruptcy-court-approved pay cuts, and the pilots' union will waive application of a "snap-back" clause in the collective bargaining agreement that would have boosted pilots' pay for Comair's failure to expand its fleet.  For more, see Truce Averts Comair Strike.

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Court Orders Employer to Pay $10,000 for Criminal Contempt in Employment Case

From the "truth is stranger than fiction" files . . .

In the midst of acrimonious litigation against All State Home Mortgage over a FLSA claim, a plaintiff-employee began receiving threatening phone calls.  One of those calls told the employee he'd be killed if he didn't leave the state within 48 hours.  The court had one of the phone calls traced -- it came from the house of one of the company's managers.  At a show-cause hearing, the manager denied having made the call himself.  He testified that he had thrown a party that night; that several other All State employees had attended the party; that he had gone to sleep or passed out before the phone call was made; and that one of the other employees must have made the call.  The court issued an order for all All State employees who had attended that party to appear in court at a subsequent hearing.  They didn't show.  That's when the court hit All State with a $10,000 criminal contempt order for having violated the earlier order requiring the employees to appear in court.

The case is Cook v. All State Home Mortgage, 2006 WL 3751185 (N.D. Ohio Dec. 18, 2006).

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Boat Captains and Overtime Exemptions

I know there are not a lot of boat captains, or those who represent boat captains, out there, but how often do you get to discuss Section 13(b)(6) of the Fair Labor Standards Act (FLSA) and consider whether seaman are exempt from the FLSA overtime provisions?  Far too few times, so here it goes.

In Opinion Letter 2006-44, the DOL found that boat captains may be exempt from the overtime provisions if they are "employed as a seaman" purusant to Section 13(b)(6) of the FLSA and 29 C.F.R. Part 783 and at least 80% of their duties in a workweek are those of a seaman as defined in the regulations.  As far as the boat captain discussed in this letter, during the busiest months of summer when he generally worked more than 40 hours and spent at least 80% of his time on boat-related duties, he was exempt.  Other times, he was not (most clearly because he was not eligible for overtime having not worked more than 40 hours in a workweek).

What I like about this opinion letter is that it nicely illustrates how exemption issues sometimes need to be considered on a workweek to workweek basis in order to come to the proper legal conclusion.

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MLB Collective Bargaining Agreement Terms Run Into Barry Bonds/Balco Steroids Investigation

Update: The players' union plans to challenge the decision on Fourth Amendment grounds, saying that the ruling eviscerates constitutional protections for confidential electronic records.

In 2003, Major League Baseball (MLB) and its players' union agreed to investigate whether there was really a steroids problem in professional baseball (and as it turns out, there was).  As part of this agreement, the players' union agreed that its players could be tested for steroids use, but the collective bargaining agreement stipulated that the drug test results would remain confidential.

Along comes the Barry Bonds/Balco federal investigation into baseball player use of steroids and federal prosecutors obtained the results of those players who tested positive for steroid use (some 100 players out of about 1400) as a result of raiding labs that conducted the tests.

Although in a suit brought by the players' union three lower courts had initially agreed that the seizure of the records violated the players' constitutional rights, the AP is now reporting that the Ninth Circuit, in a consolidated appeal, has determined that the government may keep those confidential drug testing results, even though such results were supposed to remain confidential under the terms of the collective bargaining agreement.

Finding no Fourth Amendment violation or any other constitutional infirmities with the government's actions, it is not surprising that the labor agreement did not provide a further defense for the players' union.  As the CBA was only between the players and the owners, the language of the agreement did not bind the federal government as far as keeping the results of the testing anonymous.

The lesson, from a labor law perspective, is that even though parties are bound by terms in a labor agreement, the government may override those terms if necessary to carry out its police powers within constitutional limits.

The case is United States v. Comprehensive Drug Testing Inc., 05-10067 (9th Cir. Dec. 27, 2006).

Hat Tip:   Drew Wheeler

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IRS Lifts Moratorium on Applications for Cash Balance Plan Conversion Determination Letters

The IRS has decided to resume processing applications for determination letters for companies who wish to convert their traditional defined benefit plans into cash balance plans.

HR.BLR.com is reporting in this regard:

In Notice 2007-6, the IRS also provides interim guidance on provisions of the Pension Protection Act of 2006 involving cash balance plans, and the agency is requesting public comments on several issues addressed in the notice. The notice will appear in Internal Revenue Bulletin 2007-3, dated January 16, 2007.

The previous suspension of applications for such determination letters was related to the agency's concern that such conversions had an adverse impact on older employees.  Although there are still some outstanding, unresolved issues concerning existing cash balance plan conversions (see my posts on cash balance plans here, here, and here) and whether they are age discriminatory, the Pension Protection Act of 2006 generally states that going forward such conversions will not be considered discriminatory.

The IRS hopes to get through a backlog of some 1200 applications for cash balance plan conversions during 2007.

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You're Fired . . . or Maybe Not

For the guy who is famous for ferreting out poorly performing employee and telling them unabashedly that they are fired, it might come as a surprise to some that Trump would tolerate employees who engage in resume fraud in his organization.  CNNMoney.com has the story:

Donald Trump may have hired one more apprentice than he thinks. When the real estate mogul launched Trump Mortgage in April, he said it would inject integrity into an industry that has the reputation for giving customers a raw deal.

To head the mortgage broker, Trump hired E.J. Ridings, who the company's Web site touts as a seasoned pro. "Trump Mortgage is going to take better care of people than anyone in the mortgage industry ever has," Trump said at the time.

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In interviews with Money and on his company's Web site, Ridings has made a number of false or misleading claims about his professional experience. Last week, following inquiries by Money into Ridings' background, Trump Mortgage altered its Web site, removing some of the claims it contained about Ridings' past employment.

First, Ridings' initial bio stated that before joining the company he was "a top executive at one of Wall Street's most prestigious investment banks."

Second, the bio had said that Ridings was an "established leader" at one of New York's leading mortgage boutiques.

Third, the bio said he had 15 years of experience in the financial industry.

All three claims appear to be false, according to regulatory documents obtained by Money and interviews with former colleagues of Ridings.

So the question is: why hasn't Trump fired Ridings?  That just seems un-Trump-like.  Maybe as with some other recent controversies in which Trump has been involved, he is just given Ridings a second chance.

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N.R. Kleinfield writes on page one of today's New York Times about rampant discrimination against diabetics in the workplace.  Employers almost always justify discharges or refusals-to-hire as necessitated by public safety.  The real reason, often enough, is money -- the annual medical cost of treating diabetes is more than $13,000.

Congratulations to Ruth Colker (left, Ohio State) and Brian McMahon (Virginia Commonwealth University), who are cited in the article.

For the complete article, see Diabetics Confront a Tangle of Workplace Laws.

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Workplace Lesson #63: Don't Perform Exorcisms at Work

And you thought your workplace situation was bad. From Ted Frank at Overlawyered:

Evelyne Micky Shatkin worked at University of Texas at Arlington, where she had had a series of disputes with a co-worker, which after mediation, resulted an ultimatum from Human Resources: further problems could get you fired. Not satisfied, Shatkin held an after-work "prayer session", where, with another employee, Linda Shifflett, "anointed" the absent co-worker's cubicle with olive oil, purportedly because of fears that the co-worker was demonically oppressed, chanting "You vicious evil dogs. Get the hell out of here in the name of Jesus. ... I command you to leave."

Shatkin and Shifflett were fired when a third employee reported their conduct.  Their response?  Sue the University for religious discrimination.

Yeah, I guess it is not an undue burden for an employer to have to accommodate employees who wish to engage in an olive oil anointment of another's cubicle, especially when that other employee is demonically oppressed.

Sounds about right.

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A Christmas Gift of Sorts

Thanks to the Work in Progress Blog from Time Magazine for this:

Quick note: Challenger, Gray & Christmas, the Chicago-based outplacement agency, is offering free call-in job advice on the days following Christmas. The hours are 10 a.m. to 6 p.m. EST. Call 312-332-5790.

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$2 Federal Minimum Wage Raise On The Way?

So suggests this article from CNN.com:

When the Democrat-controlled 110th Congress convenes in early January, a top priority is boosting the federal minimum wage to $7.25 an hour. The increase is likely to be phased in, perhaps over 26 months.

If it happens, it would be the first raise in the minimum wage since 1997. The minimum wage now stands at $5.15.

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Looming Showdown Between Comair and Union

In its on-going dispute with its pilots union, Comair, a Delta affiliate, is now seeking a no-strike order from the court. The issue is complicated because the bankruptcy court permitted the company to void the pilots' collective bargaining agreement and the union believes that it should now have the right to strike if the airline unilaterally imposes its terms on it:

The airline will contend that a work stoppage or slowdown by pilots would violate the Railway Labor Act, a 1934 federal law that governs strikes by railroad and airline workers. The law requires that a series of steps, including mediation, occur before workers can strike.

The union will argue that since the company is voiding their negotiated contract, it’s only fair that the workers covered by the contract should then have the right to strike.

But as Charlie Craver (George Washington) points out in the article in the Clarion-Ledger, this is largely unchartered territory when bankruptcy proceedings allow a company to void its labor agreement obligations.

A similar issue came up when the Northwest Airlines' flight attendants threatened to go out on strike after their contract was voided by the bankruptcy court.  Although the bankruptcy court found that it did not have the power to enjoin the labor strike, the district court entered a preliminary injunction, finding that the RLA still applied and the parties needed to exert more effort to settle the dispute.

The question is whether Comair will have similar success as Northwest in its dispute.

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Top-5 Employment SSRN Downloads

1. Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (131).
2. Symeon C. Symeonides, Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria That Isn't (72).
3. Katherine V.W. Stone (photo above), Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace (71).
4. Oliver Hart & John Moore, Contracts as Reference Points (63).
5. Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress (51).

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