Wednesday, February 28, 2007
Alvin Lurie writes to tell us that he will be the general editor of a forthcoming publication of a new treatise on the federal income taxation of pensions and other "qualified" or nonqualified retirement arrangements, by a major legal publisher, shooting for publication in late 2007. Alvin was the first appointee as Ass't Com'r of Internal Revenue in charge of Employee Benefits & Exempt Orgs following enactment of ERISA and now he is in private tax pracice in his own firm in Larchmont NY, and of counsel to the Wagner Law Group in Boston.
As the desired contents of individual chapters are now actively under development, any blog readers interested in being considered for authorship should contact him at firstname.lastname@example.org, or by mail at 13 Country Club Drive, Larchmont NY 10538, with a topic(s) on which they are prepared to write, for an audience that will include all practitioners (whether or not tax specialists) engaged in representing or advising plan sponsors.
Alvin also directs us to a new piece that he has written, "Center of Gravity Shifts to 3rd Circuit," on recent favorable to plan sponsor cash balance plan decisions which can be accessed here.
Prof. Matt Bodie (currently at Hofstra, but moving to Univ. of St. Louis), has an excellent post on the Employee Free Choice Act (EFCA) over at PrawfsBlawg. The EFCA, of course, would require the NLRB to certify a union that obtained authorizations cards from a majority of employees, much like Canada does. However, this "card check" recognition is controversial. Indeed, one of the last legislative acts by Charlie Norwood (R-Ga.) before he died was to propose the Secret-Ballot Protection Act, which would prohibit an employer from voluntarily recognizing a union based on a card check. BNA's Daily Labor Report has an article (subscription required) today indicating that the legislative battle over EFCA will come down to whether Congress can override a presidential veto, so stay tuned.
As Matt notes in his post, the argument for the EFCA is to minimize the coercive nature of an election campaign, although he acknowledges that it would deprive employees some information about the costs of unionization. I'm generally in favor of EFCA, although I recognize that implementing the bill by itself has some problems. I'm not sympathetic to employer objections, however, because the law is currently titled heavily in their favor. Therefore, my ideal would be to include card-check recognition as part of a broader reform package that would strengthen penalties for campaign misconduct, while also making it somewhat easier for employees to decertify a union (as a former student of Sam Estreicher at NYU, I've often heard the mantra "easy-in/easy-out or hard-in/hard-out"). Of course, any significant modification of the NLRA is unlikely--I'd bet against the EFCA becoming law--much less a comprehensive change.
The Wall Street Journal reports on a new trend: replacing the office chair with a fitness ball. The idea is to strengthen the trunk muscles instead of slouching in a chair. The rub: work up to an 8-hour day gradually, or risk a slip and fall. A compromise: use a "ball chair" (pictured above) instead of a mobile fitness ball.
For more, see Anjali Athavaley, The Ball's in Your Cubicle: New Trend Replaces Office Chairs.
Tuesday, February 27, 2007
Dana Nguyen sends along this interesting article from the New York Times about how women are organizing at the grassroots level to protest and change unfair workplace flexibility policies to finally break through the glass ceiling:
The mothers all held jobs outside the home (pastry chef, singer in a band, lawyer, hairstylist, nanny) and many had flexible schedules to make it easier to care for their children. Like hundreds of others who have gathered over the last nine months, they huddled around a television to view “The Motherhood Manifesto,” a documentary about the obstacles still facing working mothers, including many of those in the room.
“These are issues I’m aware of and feel strongly about,” [Ms. Clark] said of the movie’s focus on subjects like universal child care, maternity and paternity leave, and workplace discrimination against mothers. That is why she joined MomsRising.org, the mother’s advocacy organization that made the documentary. “It’s a great opportunity to connect with friends — mothers — and together have a chance to change things,” she said.
It is not a coincidence that MomsRising is using the tactics of MoveOn.org, the influential liberal organizing site that helped propel Howard Dean’s presidential candidacy. One of the group’s founders is Joan Blades, who, with her husband, Wes Boyd, founded MoveOn.
MomsRising is the newest and most prominent in a loose coalition of advocacy groups, including Mothers & More, the Mothers Movement Online, Mothers Ought to Have Equal Rights and the National Association of Mothers’ Centers, that are sharing information, joining together at rallies and signing one another’s petitions.
Read the rest of this article. This movement is achieving some important milestones, but there is still,of course, much to be accomplished in the area of work-family balance.
University of Pennsylvania Journal of Labor and Employment Law
Volume 9, Number 1, Fall 2006
- Michael W. Hawkins (left)& Shawn P. Burton (second), Oakwood Healthcare Inc., 348 N.L.R.B. No. 37 (2006): How Textualism Saved the Supervisory Exemption, p. 1.
- Jarod S. Gonzalez (third), SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials, p. 25.
- Jonathan M. Gutoff (fourth), Fugitive Slaves and Ship-Jumping Sailors: The Enforcement and Survival of Coerced Labor, p. 87.
- Yoram Margalioth (right), The Case Against Tipping, p. 117.
- Mitchell H. Rubinstein, Our Nation’s Forgotten Workers: The Unprotected Volunteers, p. 147.
- Jennifer Gonzales-Frisbie, Personality Tests in Jeopardy: An Evaluation of the Seventh Circuit’s Decision in Karraker v. Rent-A-Center and its Impact on the Future Use of Personality Tests in Pre-Employment Screening, p. 185.
- Michael R. Mattioli, The Impact of Open Source on Pre-Invention Assignment Contracts, p. 207.
Thanks to my student, Drew Wheeler, for sending me this article from The Hollywood Reporter regarding impending labor troubles in the film and TV industry:
The high risk of a "real or de facto" strike by Hollywood unions means film industry employment could drop substantially in 2008, according to a new forecast by a regional economic group.
The Los Angeles County Economic Development Corp. report, set for release today, covers an array of regional business sectors but spotlights entertainment as a primary trouble spot.
"As to the industries at risk, the most notable is the motion picture/TV production industry, which has to face contract negotiations with three key labor unions (beginning with) the Writers Guild in October," the LAEDC said.
The article points out that already, "talent on hit TV shows are being asked to make themselves available to film extra episodes to stockpile in case writers go out on strike in the fall. And the current pilot season is tilting toward more reality, or 'unscripted,' programming."
Now, I'm not one to support the use of Taft-Hartley emergency presidential powers to enjoin strikes, but if it means not being subjected to more reality TV shows, I'm all for it.
Monday, February 26, 2007
- Jennifer Ann Drobac (photo above), I Can't to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas, 70 Albany L. Rev. 675 (2007).
Comments & Notes
- Charles Thomas Little, Transsexuals and the Family Medical Leave Act, 24 John Marshall J. Computer & Information L. 315 (2006).
- Andrew King, HIPAA: Its Impact on Ex Parte Disclosures with an Adverse Party's Treating Physician, 34 Cap. U. L. Rev. 775 (2006).
Tim Glynn (Seton Hall) and Charlie Sullivan (Seton Hall) write to tell us about a call for papers for Seton Hall's Second Annual Employment and Labor Law Scholars' Forum, which will take place on October 19-20, 2007.
Here are the details:
Building on last year’s success the Seton Hall Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while assisting more experienced scholars to understand and appreciate new scholarly currents.
Four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
As occurred last year, leading senior scholars will be invited to provide comments on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.
Papers proposals from junior scholars are due April 15, 2007, and should be 3-5 pages in length. Completed proposals should be submitted to Charlie Sullivan.
Selected papers must be available in draft form to be circulated to other forum participants by August 31, 2007.
Last week, we wrote about the LaRue case, concerning whether Section 502(a)(2) and the "any losses to the plan" language under Section 409 could apply to fiduciary breaches involving defined contribution/individual account plans.
Although the Supreme Court did not make a decision whether or not to take this case during its conference last Friday, it did in today's Orders invite the Solicitor General to file a brief in this case expressing the views of the United States.
Of course, this is not tantamount to the case being accepted, but it certainly is a propitious sign.
Hat Tip: SCOTUSblog
Update: Eugene has an update to his post today, asking whether a newly-discovered, related Ohio state statute on private employers and guns on-duty should have any impact on the court's ruling below.
Eugene Volokh at The Volokh Conspiracy brings to our attention an interesting case about whether an employer can fire an employee for possessing a gun lawfully outside of the workplace. Previous public policy torts have focused on whether an employee could be fired for engaging in a civic duty (like jury duty), for refusing to carry out an illegal instruction, or for exercising a right under a statutory scheme.
This case, Plona v. UPS, 2007 WL 509747 (N.D. Ohio Feb. 13), reads the public policy tort broadly to find that state public policy can also be found in the state constitutional provision in Ohio which states that citizens should have the right to bear arms for their defense and security. The court did not find for the employee in Plona, but merely states that he could continue with his claim through discovery.
It is not unheard of states relying upon constitutional or state authority to provide for a public policy tort exception from the normal at-will employment default rule, but I can't say that I have seen it apply to the Second Amendment/right to bear arms area before. I wonder, however, whether this an appropriate use of the public policy tort because it seems that this interpretation provides a private cause of action for private employees that they otherwise would not have without state action being present. Judge Becker made a similar point in the Third Circuit Novosel case back in the '80s in the First Amendment freedom of political expression context and most courts since then have followed his lead and refused to find wrongful discharges in violation of public policy in these circumstances.
It seems that such employee protections should be extended by statute rather than by judge-made law, regardless of the underlying constitutional value being trumpeted.
Sunday, February 25, 2007
The Ninth Circuit issued a significant opinion last week that permits a perpetrator's vested retirement benefits to be used to compensate a victim of a crime under the Mandatory Victim Restitution Act (MVRA).
In United States v. Novak, 04-55838 (9th Cir. Feb. 22, 2007), the en banc Ninth Circuit found in a 10-5 decision that the MVRA trumps ERISA's anti-alienation provisions that normally would keep such retirement benefits from being disturbed by others.
In this regard, the court found:
Taking a close look at the statutory implementation of these two important policies [under ERISA and the MVRA], we conclude that criminal restitution orders can be enforced by garnishing retirement funds, but with the funds only payable when the defendant has a current, unilateral right to receive payments under the terms of the retirement plan.
In other words, a criminal victim may step into the shoes of the criminal perpetrator and recover as restitution whatever retirement funds the perpetrator is entitled to under their retirement plan.
This is not a decision without controversy. The Supreme Court's Shumate decision from 1992 seems to limit possible exceptions to ERISA's anti-alienation rules to two circumstances: qualified domestic relation orders (QDROs) and recoveries for wrongs committed against the employee benefit plan. Nevertheless, the Court's Guidry decision from 1990 holds out the prospect that Congress could choose to recognize another exception if it so choose.
Although language in the MVRA can be read broadly (and was so read) to characterize the language of the MVRA as another exception to ERISA's anti-alienation provisions, there is no direct citation of ERISA in the MVRA or its legislative history, which would seems to suggest the majority is stretching here a bit to find that Congress contemplated another exception. At the very least, it is less than clear.
In any event, look for this debate to continue to percolate and if a circuit split evolves, this is an important enough issue to merit Supreme Court consideration. Of course, it would be great if Congress would amend the MVRA to indicate its intent in this important area of overlap between criminal and employee benefit law.
Hat Tip: Decision of the Day
First, a quick shout out to a new blog, The BLT: The Blog of the Legal Times. They are already off to a fine start.
And here is one of their first posts concerning how some law firms are having their law firm associates review their supervising partners as part of the partner's annual performance review:
360-degree reviews have been common practice in corporate America for some time, but law firms have been slow to catch on. White & Case administrative partner Karen Asner explains why the firm started having associates review partners a few years ago . . . .
Asner admits anonymity is key to the process. "It therefore should be clearly communicated to all participants that any feedback they provide will be safeguarded. If associates feel their identities may be discovered, they will censor their responses out of fear of reprisal at a later time," Asner writes.
Even if anonymity is assured, I still don't believe associates will cooperate if they believe their identities will eventually become known and this goes directly to how much trust an associate has in his or her firm. I know for a lot of them the answer is not much.
In any event, it will be interesting to see if this trend catches on or if because of the concerns raised above, such performance reviews of partners by associates will be considered more of a hassle than their worth.
Laura Rothstein (Louisville) writes to tell us about the upcoming 24th Annual Warns Labor and Employment Law Institute on June 21-22, 2007, at the University of Louisville's Louis. D. Brandeis School of Law.
The title of this conference is Labor & Employment Law in a Changing Political Climate and will feature a number of law faculty members and practitioners. Kurt Schmoke, Dean of Howard Law School and former mayor of Baltimore, will present the keynote Warns address.
Other faculty speakers include Samuel Bagenstos (Washington University, St. Louis) (ADA developments), Christine Godsil Cooper (Loyola, Chicago) (U.S. Supreme Court review), Robert Covington (Vanderbilt) (Title VII retaliation actions); and Cynthia Nance (University of Arkansas) (labor and employment law ethics). Mark Rothstein and Ed Render (University of Louisville) serve as co-chairs of the planning committee.
For more information contact www.louisville.edu/brandeislaw or 502-852-1669.
- Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (106).
- Joanna Shuang Wu (left) & Ivy Zhang (right), Voluntary IAS and U.S. GAAP Adoption by Continental European Firms: The Role of Labor Relations (99).
- Oliver Hart & John Moore, Contracts as Reference Points (83).
- Christopher J. Kippley (photo above) & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (76).
- Diane Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (76).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (71).
- Jeffrey M. Hirsch, The Silicon Bullet: Will the Internet Kill the NLRA? (208).
- Dianne Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (81).
- Richard T. Karcher, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players (77).
- Cass R. Sunstein, Cost-Benefit Analysis Without Analyzing Costs of Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms (60).
- David Weil (photo above), Crafting a Progressive Workplace Regulatory Policy: Why Enforcement Matters (49).
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky Directors (518).
- Lucian Arye Bebchuk, Martijn Cramers, & Urs Peyer, Pay Distribution in the Top Executive Team (188).
- Annamaria Lusardi & Olivia S. Mitchell, Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (119).
- Clark C. Havighurst (left) & Barak D. Richman (right), Distributive Injustice(s) in American Health Care (85).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (73).
- David Kinley & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (78).
- Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey (60).
- Harry W. Arthurs (photo above), Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law (19).
- Holger M. Mueller & Thomas Philippon, Family Firms, Paternalism, and Labor Relations (15).
- Sangheon Lee & Deirdre McCann, Measuring Working Time Laws: Texts, Observance, and Effective Regulation (14).
Friday, February 23, 2007
The EEOC is soliciting presenters for its Tenth Annual EXCEL Conference. The EXCEL Conference is a training program for EEO managers, supervisors and specialists, attorneys, union representatives, mediators, Alternative Dispute Resolution coordinators and human resources professionals. This year’s conference will be held in Denver August 13-16, 2007. For more information, see the EEOC's Excel page.
Thursday, February 22, 2007
Interesting article in the Washington Post a few days back about the pending Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Co. (discussed in previous posts here and here), a pay discrimination case involving the proper statutory period for considering pay discriminatory acts under Title VII. The case could be decided any day.
But according to the article, Ms. Ledbetter feels that she has been left out from the case. Some Justices (both conservative and progressive) apparently agree that that is exactly how Supreme Court adjudication should be.
Some excerpts from the article:
Lilly M. Ledbetter says she almost stopped breathing when she heard her name called that day, her eight-year battle over alleged pay discrimination finally reaching the ultimate legal forum, the U.S. Supreme Court.
"We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company," Chief Justice John G. Roberts Jr. announced.
The odds are akin to being struck by lightning, having your case plucked from the thousands of others who have vowed, like you, to take the fight all the way to the Supreme Court. And then you find it's not so much about you anymore.
It was the only time that November morning that any of the nine justices spoke Lilly Ledbetter's name.
At a forum late last year, Justices Antonin Scalia and Stephen G. Breyer, usually the court's yin and yang on matters of constitutional interpretation, agreed that that is how it should be. They were asked whether their duty was to provide justice for those who came before the court or simply to interpret the law.
"The point of the law is to satisfy a human desire for justice," Breyer explained, but he added: "You don't necessarily get to that end by simply trying to look for what is the intuitively nicer result in each case."
Scalia was blunter. "By the time you get up to an appellate court -- and lawyers ought to learn this -- I don't much care about your particular case," he said. "I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases."
For what it's worth, I tend to disagree with Justices Breyer and Scalia on this one. A case, no matter at what level of the judiciary, should always be about interpreting the law in a way that provides the appropriate justice to the parties. If that principle is followed, I think that like cases decided under that precedent will also lead to just results.
I am reminded of Justice Blackmun's stirring opinion in Deshaney, involving the severe physical abuse of a child caused at least in part by the neglect of the states' child protection agency, that started: "Poor Joshua!" Thinking of cases like that I can't help but feel that judicial decisions at any level should never lose sight of the parties in the case and their particular plights in the name of achieving some abstract principle of law that may or may not lead to just results in future cases.
Thanks to SCOTUSblog for brining to our attention the fact that a brief has been filed with the United States Supreme Court for the upcoming cat's paw case of BCI Coca-Cola Bottling v. EEOC, which is scheduled for oral argument on April 18, 2007.
The brief in question is the petitioners' merits brief in the case (filed by co-counsel Akin Gump and a Nashville counsel of record). The question presented in the case is:
Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision undisputedly harbored no discriminatory motive toward the affected employee?
For an informative analysis previously posted about this case, see Ross Runkel's Employment Law Blog.