Workplace Prof Blog

Union Membership Continues to Fall in United States

Thanks to the Institute for Workplace Studies at Cornell for directing me to this Bureau of Labor Statistics news release about the depressing state of unionization in this country.

Here is some of what the release has to say:

In 2006, 12.0 percent of employed wage and salary workers were union members, down from 12.5 percent a year earlier, the U.S. Department of Labor's Bureau of Labor Statistics reported today. The number of persons belonging to a union fell by 326,000 in 2006 to 15.4 million. The union membership rate has steadily declined from 20.1 percent in 1983, the first year for which comparable union data are available.

Not happy news for union supporters.  Other interest findings from the report include the fact that there are nearly five times more public sector union members than private sector ones and that blacks are more likely to join unions than whites, Asians, or Hispanics.

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California Health Bill To Meet Same ERISA Preemption Fate?

Well, by now, most readers of this blog know that I am skeptical that any state, city, etc., health insurance plan that requires employers to pay a certain amount of their payroll toward health benefits will survive ERISA preemption.  The recent Fourth Circuit decision in the Maryland Wal-Mart case clearly supports this proposition.

Now comes the new health insurance plan being trumpeted by Gov. Schwarzenegger (via the LA Times):

The governor's plan would spend $12 billion annually in combined state, federal and private-sector funds to provide basic health coverage for 6.5 million uninsured Californians.

The proposal would require all individuals to have coverage, and it would provide subsidies for the poor.

All employers with more than 10 workers would be required to offer insurance or pay the equivalent of 4% of their payroll into a state fund. Hospitals and doctors would also be taxed as part of a so-called shared-responsibility scheme.

As others in this same article point out, such a mandate to pay a certain percentage of payroll in a state fund would seem to be "in connection with" an employee benefit plan under Section 514 and substantially interfere with one of ERISA's purposes of promoting uniform administration and management of employee benefit plans by employers across the country:

Wal-Mart and some other California businesses are among those skeptical of the plan. Any California health insurance law that contains a payroll tax could be challenged in federal court upon passage, they suggest.

The 1974 law's federal "preemption is a problem the governor has to look at," said Trudi Hughes, Wal-Mart's senior public affairs manager, based in Sacramento. "I would say that any sort of mandate is going to be suspect."

Count me skeptical as well that the California plan as currently written will survive ERISA preemption.  Also, the comments from the California official in the article seem to suggest that the state does not understand the underlying problem at all:

But the Schwarzenegger administration says no. It points out that the California plan would not be company-specific, nor would it mandate any specific kind of health benefit.

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Not So Quick: Minimum Wage Raise Stalls in Senate

Apparently, the forthcoming minimum wage raise is not necessarily forthcoming.  At least not just yet.  Although the measure easily passed the House, the legislation is being held up in the Senate as a group of Senators seek to attach small business tax breaks to such a bill.

Here's the story from CNN.com:

The minimum wage increase that was supposed to zip through Congress veered off course Wednesday as lawmakers argued over business tax breaks that would be attached to ensure Republican support.

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House Democrats demanded a clean bill from the Senate -- no tax attachment -- setting up a confrontation that could delay final congressional passage of the $2.10 an hour increase.

The Senate did vote 54-43 to advance a House-passed measure that would lift the minimum wage without any accompanying tax cut. However, that was well short of the 60 votes needed to keep that version moving.

The vote was a signal to the House that without the tax breaks a minimum wage bill appeared doomed in the Senate. And the Senate promptly moved to a broader bill, backed by its Democratic leaders, that would raise the minimum wage to $7.25 an hour over 26 months and provide $8.3 billion in tax benefits to businesses over 10 years.

Someone is going to have to blink to get this bill through.  Let's hope that both Senators and House Members realize what is at stake and act quickly to bring wage relief to low-income workers.

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Cataloging Her Efforts to Avoid Work

This priceless story about how not to be a productive worker comes from the Des Moines Register:

A Des Moines hotel worker has been fired for using her employer's computer to keep a massive, detailed journal cataloging her efforts to avoid work.

State records indicate that Emmalee Bauer, 25, of Elkhart was hired by the Sheraton hotel company in February 2005. During most of 2006, she worked at the company's Army Post Road location as a sales coordinator.

At one point during her employment, Bauer was allegedly instructed to refrain from using company time to work on her personal, handwritten journal. Rather than stop writing at all, Bauer allegedly began using her work computer to keep the journal up to date.

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Over the next several months, Bauer composed a book-length journal of 300 single-spaced pages, describing in excruciating detail her dogged efforts to avoid any sort of work.

The best part of the entire story?  The woman actually applied for unemployment compensation benefits.  And in a sign that the system has not gone completely haywire, her claim was denied.

Hat Tip:   Kara Lincoln

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"Sexpresso": Bodacious Baristas and Bfoqs

Thanks to a Workplace Prof Blog reader who sent along this "steamy" article from The Seattle Times about how a number of coffee spots are trying to stand out in the Seattle area by selling a little more to their customers than just a cup of joe:

In a short, sheer, baby-doll negligee and coordinated pink panties, Candice Law is dressed to work at a drive-through espresso stand in Tukwila, and she is working it.

Customers pull their trucks up to the window, where Law greets each with an affectionate nickname, blows kisses, and vamps about as she steams milk for a mocha. "You want whipped cream?" she asks, a sly smile playing on her pierced lip.

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Hot is not the half of it. To stand apart from the hordes of drive-through espresso stands that clutter the Northwest's roadsides, commuter coffee stops such as Tukwila's Cowgirls Espresso are adding bodacious baristas, flirty service and ever more-revealing outfits to the menu.

At Port Orchard's Natté Latté, baristas sport hot-pink hot pants and tight white tank tops. Day-of-the-week theme outfits ranging from racy lingerie to "fetish" ensembles are the dress code at Moka Girls Espresso in Auburn and at several Cowgirls Espresso stands in the area. Bikini tops are the special at Café Lorraine on Highway 9 in Woodinville, and the women of The Sweet Spot in Shoreline pose provocatively in Playmate-style profiles on the stand's Web site.

"In this area, we all know how to make good coffee," said Barbara Record, who opened Bikini Espresso in Renton last month. The trick is to set your business apart, she said, and sex is one sure-fire way to do that.

So I can't resist (and, BTW, this, if nothing else, proves how dorky law professors are).  What if a man applied for one of these customer service positions and was rejected?  A customer is quoted in the article as saying: "If I'm going to pay $4 for a cup of coffee, I'm not going to get served by a guy."  Could the coffee shop in question follow Hooters and claim a bona fide occupational qualification (bfoq) in defense of a Title VII claim?

Unlike Hooters, I think not.  The essence of these businesses is to sell coffee, not to provide vicarious sexual entertainment.  I see this more like an advertisement case, in the spirit of the Southwest Airlines' "Love Airline" campaign of the late 70s and early 80s.  And, of course, customer preference is not a bfoq.

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Secunda Questions Court's Assumption that Public Employers Have Expressive Association Rights

Paul Secunda has posted a timely article on Rumsfeld v. FAIR.  In that case, the Supreme Court assumed, without significant reflection, that a group of public employers (here, public law schools) have expressive association rights under the First Amendment.  Secunda questions that assumption, explains how that assumption could lead to the loss of the free speach and other constitutional rights of public employees, and suggests how the Court might re-think its expressive association analysis. 

The article is The Solomon Amendment, Expressive Associations, and Public Employment.  Here's the abstract:

[The Supreme Court, in] the Solomon Amendment case of Rumsfeld v. FAIR . . . , apparently conced[ed] that public employers, in the guise of public law school members of the FAIR association, have expressive association rights.  This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees.  Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have First Amendment rights of any kind. This is just structurally unsound from the standpoint that the Bill of Rights protects the governed, not the governing. To the extent that public employers have interests in promoting messages consistent with their public mission and image, it is instead better to conceive of these interests as those discussed in the Pickering line of cases concerning the need for governmental efficiency and lack of disruption in the public employment sector when discussing public employee First Amendment rights.

The purpose of this paper then is to hopefully point out an inadvertent error that the Court made in FAIR on its way to doing the heavy analytical lifting in that case and thus, permit this mistake to be corrected before the specter of public employer expressive associations causes substantial harm to public employee civil rights in the workplace.

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BNA Revives Summary of Circuit Splits

Thanks to Carol Bredemeyer for pointing out to me that BNA's United States Law Week has revived its "circuit splits" roundup, effective with its January 2, 2007 issue.  I've found that the roundup is a fantastic source of topics for student research papers, and I've missed its absence over the last year or so.

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Interview with SEIU President Andy Stern

Yesterday's Wall Street Journal published an interview by Kris Maher of SEIU's Andy Stern.  The link is available by subscription only, but the hard copy is worth a read.  It's at page R5.  Here' an excerpt:

WSJ: If you could gather the country's top CEOs in one room, what would you tell them?
Mr. Stern: I would tell them the employer-based health-care system is dead.  It's a relic of the industrial economy, and it makes them unable to fairly compete when American is the only country who asks its employers to put the price of health care on the cost of its products.  I would say that employer-based pensions have the same problems, and that we need to create a new way that American workers do in fact have retirement security where employers are expected to contribute.  And three, I would say that in each of our sectors we need to find ways where we can do better training, quality, and give workers an opportunity to be involved in dialogue about the services that are provided.

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Recently-Published Scholarship

Articles

• Richard L. Barnes (top row, left), Buckeye, Bull's-Eye, or Moving Target: The FAA, Complusory Arbitration, and Common-Law Contract, 31 Vermont L. Rev. 141 (2006).
• W. Melvin Haas III (top row, second), William M. Clifton III (top row, third), & W. Jonathan Martin II (top row, right), Annual Survey of Georgia Law: Labor and Employment Law, 58 Mercer L. Rev. 211 (2006).
• H. Michael Bagley (second row, left), Daniel C. Kniffen (second row, center), & Katherine D. Dixon (second row, right), Annual Survey of Georgia Law: Workers' Compensation, 58 Mercer L. Rev. 453 (2006).

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Supremes Take ERISA Fiduciary Case

The Supreme Court has accepted cert in Beck v. PACE International Union, to decide the issue of whether a pension plan sponsor’s decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA’s fiduciary obligations.  As Ross Runkel points out, the case is expected to provide guidance on whether ERISA fiduciary duties apply when a plan administrator decides to terminate a plan, and whether the administrator has fiduciary duties as to the implementation of the termination. 

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Selmi on The Many Faces of Darlene Jespersen

Michael Selmi (George Washington) has posted on SSRN his piece in the Duke Journal of Gender Law & Policy entitled: The Many Faces of Darlene Jespersen.

Here's the abstract:

This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact that we often look to work as a place for authenticity, speech, democracy, or sex, simply confirms that we place too much importance on the workplace for our lives. Relatedly, it seems unrealistic to expect that courts would find a policy requiring makeup to be demeaning to women, or stereotypical in some way, as Jespersen argued, given that our existing social norms embrace makeup rather than condemn it. Finally, I conclude that this case is really more about power and status - the limited power and status of someone like Darlene Jespersen who worked as a bartender - rather than about the failings of antidiscrimination law.

This Sphinx-like titled article is an important new contribution to sexual stereotype discrimination law and the role courts should play in these cases.

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Top-5 Employment SSRN Downloads

1. Oliver Hart & John Moore, Contracts as Reference Points (89).
2. Symeon C. Symeonides, Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria That Isn't (87).
3. Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (74).
4. Elizabeth Chika Tippett (photo above), The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law (57).
5. Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (54).

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Top-5 Labor SSRN Downloads

1. Scott Cummings, The Internationalization of Public Interest Law (63).
2. David Allen Larson, Technology Mediated Dispute Resolution (TMDR): A New Paradigm for ADR (46).
3. Joseph E. Slater, The American Rule that Swallows the Exceptions (38).
4. Dianne Avery (left) & Marion G. Crain (right), Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (36).
5. Christopher J. Kippley & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (18).

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Gary Roberts to Become Dean of Indiana-Indianapolis

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Gary Roberts, currently Deputy Dean of Tulane Law School and Director of that school's Sports Law program, has been appointed the Dean of Indiana-Indianapolis.  Though Dean Roberts is best known for his Sports Law work, he also has the good sense to teach Labor Law on a regular basis.

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Top-5 International Employment & Labor Law SSRN Downloads

1. Scott Cummings, The Internationalization of Public Interest Law (63).
2. Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications (50).
3. David Kinley (photo above) & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (43).

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Top-5 Benefits/Compensation/Pension SSRN Downloads

1. Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (1051).
2. Takeshi Yamaguchi, Olivia S. Mitchell, Gary R. Mottola, & Stephen P. Utkus, Winners and Losers: 401(k) Trading and Portfolio Performance (110).
   
3. Debra A. Davis (photo above), Do-It-Yourself Retirement: Allowing Employees to Direct the Investment of Their Retirement Savings (68).
4. Lawton W. Hawkins, Compensation Representatives: A Prudent Solution to Excessive CEO Pay (57).
5. Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May
   Affect Pension Benefits (54).

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New Employment Law Casebook

Congratulations to Timothy Glynn, Rachel Arnow-Richman, and Charles Sullivan on the publication of their new casebook Employment Law: Private Ordering and Its Limitations.  Here's how Professor Glynn describes the casebook:

As the title suggests, the book is organized around the enduring conflict between private ordering and public mandates in the workplace.  There is a constantly changing border between the default rule allowing employers and workers to structure their relationships (usually to the employer's specifications) and public policy limits on that approach. This provides a lens that makes the course more coherent for students and, hopefully, even for teachers.

With that as the thematic backdrop, the book approaches traditional topics in innovative ways, such as devoting a chapter to accommodating workers’ lives and another to risk management techniques – often the bread and butter of employment practice.  It also is especially attentive to increasing concerns regarding employer-employee competition.  Overall, the book strikes a balance between a traditional litigation orientation and the counseling/planning perspectives that prevail in many employment-law practices, whether for employer or employee.

The book is published by Aspen, and though I received my review copy yesterday, Aspen does not appear to have the book up on its website yet.

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Bales and Kippley on Extending OWBPA Notice and Consent Protections to Arbitration Agreements

Keeping with congratulating members of the Workplace Prof Blog today, kudos to Rick Bales (Northern Kentucky) for posting, along with Christopher Kippley, on SSRN their forthcoming paper in the Nevada Law Journal: Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers.   Rick will be presenting this paper at the upcoming arbitration conference at UNLV.

Here's the abstract:

The Federal Arbitration Act (FAA) was created in 1925 to permit judicial enforcement of arbitration agreements covering commercial contract disputes between parties with roughly equal bargaining power. Today, however, the FAA is the legal authority for judicial enforcement of arbitration agreements covering not only contractual claims but also statutory claims, and not only of disputes between commercial entities but also disputes involving parties with grossly disparate bargaining power such as companies and employees/consumers. Moreover, the Supreme Court has interpreted the FAA as strongly favoring arbitration, and the Court has used preemption analysis to restrict the ability of states to regulate arbitration agreements. This has led many commentators to argue that the FAA is ill-suited to its new use - that it is unfair to permit companies to foist arbitration agreements on employees and consumers who have little understanding of what they are signing, and in any event have no meaningful choice if they want the job or product or service the company is offering.

In 1990, Congress faced a similar problem in a different context. Congress was amending the Age Discrimination in Employment Act (ADEA) to prohibit employers from discriminating on the basis of age in the administration of employee benefit plans. Congress wished to give employees the ability to agree to early retirement and to settle benefits claims, but was concerned that employers would coerce older employees into accepting grossly unfair agreements that the employees did not understand. Congress responded by passing the Older Workers Benefit Protection Act (OWBPA ). The OWBPA presumes that a waiver of ADEA rights is not knowing and voluntary (and therefore is unenforceable) unless certain procedural requirements are met. For example, the waiver must be written in a manner calculated to be understood by an average employee, the employer must advise the employee in writing to consult with an attorney prior to signing the agreement, and the employer must give the employee at least twenty-one days within which to consider the agreement.

This article argues that Congress should amend the FAA to add suitably-modified OWBPA-like notice requirements to arbitration agreements directed at most employees and consumers. This approach will help ensure that employees and consumers understand what it is they are signing, and thereby may encourage some companies to draft arbitration agreements that are substantively more balanced. This approach is not, however, a panacea that will cure all the ills of arbitration, but instead is designed as a politically feasible, incremental improvement on employment and consumer arbitration.

Sounds like a practical solution to a glaring hole in current arbitration law.   Here's hoping that Congress has, as I say to my son, its listening ears on.

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Secunda Named "Law Professor of the Day" By WSJ Law Blog

Congratulations to Paul Secunda, who today was named Wall Street Journal Online's Law Blog Law Professor of the Day for his accurate forecast and lightening-fast analysis of the Fourth Circuit's decision striking the Wal-Mart Bill as preempted by ERISA.  See Fourth Circuit Puts Another Nail in Wal-Mart Bill's Coffin.

Way to go, Paul!!!!!

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4th Circuit: Maryland Wal-Mart Law Preempted by ERISA

Update:  Now that I have had a chance to glance over the Fourth Circuit's Opinion in Fielder, and not wanting to reinvent the wheel, I am linking to an overview of the case from Michael Fox at Jottings By An Employer's Lawyers and an argument about why the decision is wrong by Ross Runkel at Ross' Employment Law Blog.

Fresh off the presses today comes news that the Fourth Circuit Court of Appeals has affirmed the judgment of the District of Maryland that the Maryland Fair Share Healthcare Law (aka, the Wal-Mart Bill) is preempted by ERISA.  The decision in RILA v. Fielder, No. 06-1840 (4th Cir. Jan. 17, 2007) is here.

Here's some of what the New York Times article has to say about the 4th Circuit's opinion:

A federal  appeals court  ruled today that  Maryland violated federal law when it required Wal-Mart Stores to increase spending on employee health insurance, in a decision that appears likely to end a bitter yearlong legal battle that pitted state legislators, organized labor and health care advocates against the nation’s largest retailer.

The 2-to-1 ruling by a panel of the United States Court of Appeals for the Fourth Circuit is a major setback — if not a fatal blow — for a nascent campaign, called “fair share,” that sought to move millions of America’s working poor off of state-sponsored insurance programs, like Medicaid, and on to employer-based plans.

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But the appeals court, upholding a lower court ruling, found that the Maryland rule violated a federal labor law intended to allow companies to create a uniform system of health benefits across the country, rather than navigate a patchwork of state-by-state requirements.

By requiring employers in Maryland to restructure insurance plans, the court found, the law “conflicts” with the intent of the federal labor law, known as the Employee Retirement Income Security Act, or ERISA.

Of course, this was how my ERISA preemption analysis came out way back when, but I still believe ERISA should be amended to allow for state experimentation in this area of health care financing.

One other point: I have not had the chance to read the 4th Circuit's opinion (and will update this post when I do), but the 2-1 split suggests that there is an outside chance for rehearing en banc or perhaps even Supreme Court review.  The latter is less likely since there is not a circuit split on the issue and lower courts in general have not had the opportunity to weigh in on fair share legislation.

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