Friday, August 31, 2007
Thanks to Dennis Nolan for alerting us that the Proceedings of the National Academy of Arbitrators are available online.
For something on the lighter side, check out http://www.manpowerblogs.com. Mark Toth, resident comedian and Chief Legal Officer of Manpower, recently launched the Manpower Employment Law Blawg: Everything You Ever Wanted To Know About Employment Law (But Didn’t Want to Pay A Lawyer To Ask).
Toth has already dressed up like Elvis, parodied Simon & Garfunkel, while still putting employment law changes in everyday language. It is a great resource for lawyers, HR professionals, company executives or anyone looking to know their rights in the workplace.
Check it out!
Several major employers -- in the U.S. and elsewhere, have taken to banning employees from using social networking sites like Facebook and MySpace in the workplace. British union TUC says employers should lighten up:
[W]hilst employers are completely within their rights to forbid staff from using sites such as Facebook, MySpace or Bebo in work time, a total ban may be something of an over-reaction. Instead the TUC suggests that sensible employers, realising that their staff spend much of their waking hours in work and lead busy lives, should be trusted to spend a few minutes of their lunchbreak 'poking' their friends or making plans for outside work.
My take: the times are a'changing, and employers should consider how social networking sites can be used to their advantage. Networking sites can be a great way to keep up with an extended network of friends, acquaintances, and -- yes -- workplace colleagues, customers, and fellow-professionals.
This summer, I set up Facebook and MySpace pages as a sort of informal faculty web page. Though MySpace has generated nothing but spam (and the blinking ads make the site appear less-than-professional), Facebook has proven to be a great way to keep in touch with my students, to make me a little more accessible to them, and occasionally even to discuss matters pertaining to classes and the law school. Check out my page by going to facebook and running a search on "Rick Bales."
One of the interesting things about facebook is how it can blur the line between the personal and the professional. Because my site is designed to be professional rather than personal, I've omitted any references to my dating life or proclivities, and I've given a copy of my password to my dean. I wouldn't expect professors who use facebook for purely personal matters to do the same. Nonetheless, I'm sure it's only a matter of time before a professor gets into trouble for using the social networking sites inappropriately. So, while I'm willing to experiment with the sites as a way to communicate with a generation a few years younger than I am, I'm bending over backwards to keep everything above-board.
The California Supreme Court yesterday held (4-3) that "at least in some cases, the prohibition of classwide relief would undermine the vindication of  employees' unwaivable statutory rights [in this case, to overtime pay] and would pose a serious obstacle to the enforcement of the state's overtime laws." The court therefore held that class arbitration waivers "should not be enforced if a trial court determines . . . that class arbitration would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration." In making such a determination, the trial court should consider (1) the size of the potential individual recovery, (2) the potential for retaliation against members of the class, (3) whether absent members of the class may be ill-informed about their rights, and (4) "other real-world obstacles to the class members' [statutory rights] through individual arbitration."
The case is Gentry v. Superior Court, ___ Cal.Rptr.3d ___, No. S1415022007 (Aug. 30, 2007). The employer-in-interest was Circuit City.
My only quibble: the "at least in some cases" phrase.
Thursday, August 30, 2007
The Income, Poverty, and Health Insurance Coverage in the United States: 2006 Report shows that the number of uninsured rose from 44.8 million (15.3 percent) in 2005 to 47 million (15.8 percent) in 2006.
Absolutely absurd in a country with this sort of wealth and yet another indication that the employer-provided health care system in this country is severely broken and it is time to consider momentous change in how we deliver health care to this country's citizens.
Hat Tip: HR.BLR.com
Governor Eliot Spitzer of New York has signed into law legislation which requires that mothers be given the opportunity to express milk or nurse their children up to three years after they give birth to a child.
The law, which went into effect immediately, also:
- Bars an employer from discriminating against an employee who chooses to express milk in the workplace.
- Requires an employer to make a reasonable effort to provide private space for women to express milk or nurse their children.
The law stipulates that the time off can be unpaid, but, in effect, the provision applies to nonexempt employees only because exempt employees should never be docked for less than a full day. Therefore, the time off must be paid for exempt employees. For nonexempt employees, the time off must be paid if it qualifies as a rest period.
Only comments on this is that is well over-due and I hope many more states follow New York's example. PS
Only comments on this is that is well over-due and I hope many more states follow New York's example.
It's apparently a seller's labor market west of the Mississippi River. From FoxNews.com:
Record low unemployment across parts of the West has created tough working conditions for business owners, who in places are being forced to boost wages or be creative to fill their jobs.
John Francis, who owns the McDonald's in Sidney, Mont., said he tried advertising in the local newspaper and even offered up to $10 an hour to compete with higher-paying oil field jobs. Yet the only calls were from other business owners upset they would have to raise wages, too. Of course, Francis' current employees also wanted a pay hike.
"I don't know what the answer is," Francis said. "There's just nobody around that wants to work."
Unemployment rates have been as low as 2 percent this year in places like Montana, and nearly as low in neighboring states. Economists cite such factors as an aging work force and booming tourism economies for the tight labor market.
It seems that the labor market is finally working in favor of the little guy (at least in one part of the country).
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.
To that end, Seton Hall will convene its second annual Employment & Labor Law Scholars' Forum on October 19th-20th. This year’s Forum will feature four presenters:
Orly Lobel, University of San Diego
Russell K. Robinson, UCLA School of Law
Paul M. Secunda, University of Mississippi Law School
Whither the Pickering Rights of Federal Employees
Adrian A. Smith, Institute of Comparative Law, McGill University
Business Restructuring & the Future of Labor Law: Lessons from Canada, the EU & the US
Comment and critique
Bruce Barry, Vanderbilt University
Cynthia L. Estlund, New York University
Timothy P. Glynn, Seton Hall University
Tristin K. Green, Seton Hall University
Jacques Rojot, University of Paris II
Michael Selmi, George Washington University
Charles A. Sullivan, Seton Hall University
Michael J. Zimmer, Seton Hall University
Wednesday, August 29, 2007
David Doorey (York Univ. (Canada)) has posted on SSRN his forthcoming piece in the Comparative Labor Law & Policy Journal: The Medium and the Anti-Union Message: "Forced Listening" and Captive Audience Meetings.
Here's the abstract:
Employer captive audience meetings (CAMs) are a rare example in which people in a democratic society are forced to listen to opinions of others with which they may strongly disagree. Employees are not chained to a post, but they are nevertheless economically compelled to listen to their employer's anti-union opinions. The uniqueness of being compelled to listen makes the CAM a powerful signaling device through which the message of economic vulnerability is transmitted to employees. The medium (CAMs) is its own message, and it should be regulated as such.
The author explores the extent to which this approach is reflected in current labor law, and finds that the principle approach to CAMs in Canadian labor law is to treat CAMs as “message neutral” event that can “color” the content of the speech made in the meeting. He argues for an approach that treats the CAM as an independent signaling device. This approach would refocus the labor boards' attention on the question of whether CAMs interfere with the formation of unions, and whether permitting employer CAMs advance sound labor policies that are consistent with the values underling the Charter of Rights and Freedoms.
I have also submitted a paper on captive audience meetings for this journal from the perspective of the United States. It is interesting to see that many of the same problems that plague the United States in this area also plague Canada. Although I have to note that we would be lucky to have a labor board whose attention we would want to seek out on issues of this kind.
Ariel Meysam Ayanna (Boston Univ. Graduate) has published in the University of Pennsylvania Journal of Labor and Employment Law: Aggressive Parental Leave Incentivizing: A Statutory Proposal Toward Gender Equalization in the Workplace (Westlaw subscription required).
From the Introduction:
This article argues that eliminating, not merely improving or containing, the gender imbalance in leave-taking is the key to maximizing the potential of leave legislation to achieve not only the previously stated goal, but to work more broadly toward complete gender equality in the workplace. To eliminate the gender imbalance, we must make paternal leave-taking not merely a suitable or attractive option, but rather an undeniable one. We must create powerful incentives that overcome trenchant gender norms that strongly encourage a traditional work/family gender split; this may be accomplished by appealing not to men's consciences or family values, but rather to their pocketbooks. In short, we must pay men to take paternity leave.
This article proposes leave legislation that compensates both maternal and paternal leave-takers at rates above and beyond their regular salaries. Such a proactive approach to legislation represents a realization that in order to achieve actual gender equalization in leave-taking or elsewhere in the workplace, we must actively seek to change gender norms, instead of simply seeking to change the ratios, biases, and protocols that exist within them. It is the obstinate refusal to look at and affect the bigger picture that makes past leave legislation proposals so fundamentally flawed. While better than the unpaid leave of 1993's Family and Medical Leave Act (FMLA), proposals that contemplate partial or even full wage replacement during leave only serve to make leave-taking a less unattractive option for both men and women.
A very provocative and innovative approach to dealing with issues surrounding workplace/family balance issues. A welcome addition to the on-going debate in this fundamental area of employment law.
Conference organized by Mathew Finkin (photo left).
The Economics of Entrepreneurship
- Marc Cowling & William D. Bygrave, Entrepreneurship, Welfare Provision, and Unemployment: Relationships between Unemployment, Welfare Provision, and Entrepreneurship in Thirty-seven Nations Participating in the Global Entrepreneurship Monitory (GEM) 2002, p. 617.
- Raquel Fonseca, Pierre-Carl Michaud & Thepthida Sopraseuth, Entrepreneurship, Wealth, Liquidity Constraints, and Start-Up Costs, p. 637.
- Vesa Kanniainen & Panu Poutvaara, Imperfect Transmission of Tacit Knowledge and Other Barriers to Entrepreneurship, p. 675.
- Simon C. Parker, Law and the Economics of Entrepreneurship, p. 695.
- Magnus Henrekson, Entrepreneurship and Institutions, p. 717.
Regulation and Entrepreneurship
- Jolanda Hessels, Andre van Stel, Peter Brouwer & Sander Wennekers, Social Security Arrangements and Early-Stage Entrepreneurial Activity, p. 743.
- Thomas S. Ulen, Why Do Entrepreneurs Appear and Flourish?, p. 775.
Culture, Society, and Entrepreneurship
- Rui Baptista, Culture, Political Institutions, and the Regulation of Entry, p. 785.
- Amir N. Licht, The Entrepreneurial Spirit and What the Law Can Do About It, p. 817.
- Martin Robson, Explaining Cross-National Variations in Entrepreneurship: The Role of Social Protection and Political Culture, p. 863.
- Richard P. Taub, Research on Entrepreneurship, Culture, and Law, p. 893.
Jerry Kalish at the Retirement Plan Blog reports that employee stock ownership plans (ESOPs) are becoming scarce. Somewhat like the much-maligned traditional defined benefit pension plans (DBPs):
Most of the media attention has been on the decline of defined benefit pension plans. That is, for large companies. Defined benefit plans are alive and well for small business owners. And in the same vein - but at a much faster pace - large publicly traded companies are terminating their ESOPs.
According to Corey Rosen, Executive Director of the National Center for Employee Ownership in his recent Employee Ownership Update, one third of the largest 900 companies that had ESOPs in 2004 (the Fortune 500 and the Russell 400) had reduced the stock held in the plan to zero or close to it by the end of 2005. Corey thinks that this a direct result of concerns about legal fallout from the Enron, WorldCom, RiteAid, and other "stock drop" lawsuits that began earlier in the decade.
Interesting stuff. We wrote about the proliferation of stock drop ERISA litigation here. The question remains whether there will still be larger companies that think ESOPs are still worth the candle. And as Jerry points out, ESOPs are still doing fine with privately-held companies as they provide an exit strategy for company owners.
Update: Stephen Rosenberg at Boston ERISA and Insurance Litigation blog has a post on a recent District of Massachusetts case in which Judge Tauro found in the 401(k) context that the cashed out participant did have standing.
The ERISA Class Action Watch blog is reporting that Judge Harold Baer of the Souther District of New York has certified a class of participants in the JP Morgan cash balance plan on their claims that the conversion from a traditional defined benefit plan to a cash balance plan resulted in impermissible age discrimination against older participants. The decision in IN RE J.P. MORGAN CHASE CASH BALANCE LITIGATION can be found here.
Moreover, Judge Baer found that those participants who cashed out of their plans already did not have standing and therefore, could not be part of the certified class. This view of standing law under ERISA is contrary to the recent decision by the Third Circuit and to the position taken by the petitioner and law professor amici in the pending LaRue Supreme Court case.
Clearly, a more timely issue under ERISA law could not be decided by the Supreme Court. I'm predicting that the Court finds standing for these type of cashed-out participants given that they might have had more money to cash out if the allegedly age discriminatory conversion did not take place.
Kaisnernetwork.org has an update on the labor negotiations between Ford and GM and the United Autoworkers. Although there are many interesting things about these labor negotiations given the state of the auto industry, one of the more novel developments is that Ford and GM have asked the union to take over their health care obligations as a way to save facilities and jobs:
Ford Motor and General Motors officially have asked the United Auto Workers to assume responsibility for the health care benefits of more than 1.5 million working and retired employees, the Detroit News reports. According to the News, such a request was "largely anticipated" and would free the automakers from future obligations (Terlep, Detroit News, 8/24). UAW last month began contract negotiations with GM, Ford and Chrysler Group. UAW contracts with the automakers will expire on Sept. 14.
The automakers, which have an estimated $90.5 billion in unfunded retiree health care obligations, have considered an agreement reached late last year between Goodyear Tire & Rubber and the United Steelworkers of America.
Under the agreement, Goodyear transferred retiree health care obligations to an independent trust fund, or voluntary employee beneficiary association, that the union will manage. In exchange, Goodyear established a $1 billion fund to pay health care costs and agreed to invest at least $550 million in manufacturing facilities represented by the union. Goodyear agreed to fund 83% of total retiree health care obligations, but the automakers likely will seek to fund 50% to 60% of total obligations (Kaiser Daily Health Policy Report, 7/25).
I understand why the union would agree to undertaking this burden given their desperate straits, but if the companies are only going to fund 50% to 60% of the total obligations as in the Goodyear Tire situation, where is the rest of the money going to come from? Is the union going to be left holding the bag?
Alexandra Lahav at PrawfsBlawg has the details:
The Connecticut Law Review is hosting a symposium on November 2, 2007 celebrating, revisiting, critiquing and moving forward the ideas presented in Charles Lawrence's influential article The Id, The Ego, and Equal Protection: Reckoning with Unconscious Racism. Speakers include: Charles Lawrence, Mari Matsuda, Gowri Ramachandran, The Hon. Janet Bond-Arterton, Catherine Smith, Amy Wax, Samuel Bagenstos, Devon Carbado, Valerie Purdy-Vaughns, James Forman, Elizabeth Emens, John Tehranian, Eva Jefferson-Paterson, and Angela Onwauchi-Willig.
Sounds like a great event. Anyone interested in the symposium should contact the Connecticut Law Review.
Jennifer and Joel Dillard have just posted on SSRN their article Fetishizing the Electoral Process: the NLRB's Problematic Embrace of Electoral Formalism. Here's the abstract:
This paper addresses the issue of employee free choice in the union representation context, focusing on the current debate at the National Labor Relations Board regarding voluntary recognition. In a voluntary recognition process, also known as card-check, an employer recognizes the union as the employees' exclusive bargaining agent if the majority of employees sign cards authorizing the union to bargain for them, rather than relying on a Board-supervised election process. Currently, an employer may sign a card-check agreement with a union, agreeing to recognize the union upon a majority showing of signed cards.
First, this paper describes the two broad categories of methods used in labor law to identify employee free choice: formalism and realism. Second, the paper provides a brief history of the methods used to identify a union's majority support, identifying the political tensions that shaped those methods. Third, the paper discusses the current debate over representation recognition issues. The paper analyzes the Board's historical and current methods for recognizing a union and critiques the anti- and pro-union arguments on the voluntary recognition issue. The paper then uses the anti- and pro-union arguments to discuss the shortcomings of the current methods of union recognition. Finally, the paper demonstrates the systemic issues inherent in the current recognition methods and proposes some potential reforms that will begin to rectify these problems.
Their narrow conclusion: "[T]he NLRB should not ... restrict unions' ability to procure card-check agreements." One of their broader conclusions: "Instead of a baseline of no union, with employees required to take a number of onerous steps to be democratically represented, the baseline should be a democratic decision-making scheme in every workplace, with the option of affiliating with an international union if the employees so choose."
Tuesday, August 28, 2007
Daniel Klaff (Harvard student) has published in the Harvard Journal of Legislation: Recent Development: The Pension Protection Act of 2006: Reforming the Defined Benefit Pension System (Westlaw Password required).
From the Introduction:
The recent spate of corporate bankruptcies has caused workers to shoulder many of the burdens of corporate mismanagement, ineffective government regulation, and the inevitable byproducts of a new economic reality. One of the few silver linings for workers as they face these events comes in the form of the Pension Benefit Guaranty Corporation (“PBGC”), the federal government's insurance program for workers' defined benefit pensions. While companies themselves are not required to honor pension promises in bankruptcy, the PBGC, with limited exceptions, does guarantee those promises to workers.
This Recent Development evaluates the 2006 reform of the pension system in light of the structure and financial situation of the existing pension insurance system. The results of this analysis suggest that this reform should be viewed as a successful effort to promote the fiscal solvency of the pension system because the structural changes in the pension system did significantly more to increase the financial solvency of the system than special interests did to diminish it.
A nice piece that explains the ins-and-outs of this complicated legislation. I'm sure that this is the first of many to come on the intricacies of the PPA.
The LERA-listserv has information about the upcoming Sixth International Convention in Memory of Professor Marco Biagi. The Conference is entitled: "Workers' Rights Protection in a New World of Work: The Case for a Comparative and Interdisciplinary Approach to Labour Relations," and is scheduled to take place from March 15-19, 2008 in Modena, Italy.
Here's more details:
Professors, researchers, doctoral students, experts, practitioners and other interested persons in the area of labour law, labour economics, labour organisation, and human resources management are invited to present contributions reflecting national cases and / or international developments relating to the issue of workers’ rights protection in new labour law, economy, and work organisation.
Abstracts and papers should be submitted preferably in Italian or English.
Click here to read the Call for Paper's full text.
Paul Secunda (Mississippi) has just posted on SSRN his new article (forthcoming Kentucky Law Journal): Reflections on the Technicolor Right of Association in American Labor and Employment Law. Here's the abstract:
Although many different forms of rights to association exist in the United States workplace, the actual coverage for workers is a patchwork of protections that apply sometimes and not others, depending largely on factors such as whether one works for a public or private employer and whether one is in a unionized or non-unionized work environment. The consequence of this state of affairs is that American workers may have fewer rights to association than many of their international counterparts in the industrialized world.
My proposed federal Freedom of Association in the Workplace Act (FAWA) would not supplant existing constitutional and statutory protections at the federal and state level, but would provide a complementary and comprehensive statutory framework for all associational rights claims in the workplace. Such a law would provide additional protection for employee associational claims both procedurally and substantively, while simultaneously making consideration of the more difficult constitutional issues by courts unnecessary. If appropriately drafted and implemented, such a law would provide a uniform and understandable basis for reviewing workplace association claims going forward.
Secunda's FAWA would provide that "All employees are guaranteed freedom of association inside and outside the workplace, unless the employer can demonstrate legitimate and substantial business reasons for impinging on such employee freedoms."
This far-reaching proposal is definitely worth a read.
- Ann Carey Juliano (left), Harassing Women with Power: The Case for Including Contra-Power Harassment Within Title VII, 87 Boston U. L. Rev. 491 (2007).
- William L. Corbett (center), Arbitrating Employment Disputes, 68 Mont. L. Rev. 415 (2007).
- Mark J. Romaniuk (right), Survey of 2006 Indiana Employment Law, 40 Indiana L. Rev. 821 (2007).