Monday, June 30, 2008

Screen Actors in "De Facto" Strike

Sag The AFP is reporting:

US production studios warned Monday that Hollywood's entertainment industry "is now in a de facto strike" after they presented a final offer to the Screen Actors Guild (SAG) as a labor contract was set to expire at midnight.

"Our industry is now in a de facto strike, with film production virtually shut down and television production now seriously threatened," the Alliance of Motion Picture and Television Producers (AMPTP) said in a statement.

The AMPTP said it presented its "final offer" to SAG, the main union of US movie and television actors, on Monday after 42 days of negotiations on a new labor contract between the two sides.

Recall that there was recently a writers' strike, so this has the potential to be an active labor year in Hollywood.

PS

June 30, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Supreme Court Denies Cert. in Two ERISA Cases

Supreme_court The Supreme Court last week denied cert. in two ERISA cases, Amschwand v. Spherion and Geddes v. United Staffing Alliance Employee Medical Plan.  As Paul noted in an earlier post, the Solicitor General had recommended cert. in Amschwand, so the denial come as a bit of a surprise.  The outcome in Geddes was more predictable, as the SG had recommended holding the petition until the Court's MetLife decision, which "resolved" the standard of review issue raised in Geddes.

-JH

June 30, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Sunday, June 29, 2008

Labor Troubles at the NLRB

Nlrb The NLRBPA--the union representing HQ employees at the NLRB, which is not to be confused with the much larger NLRBU union that represents mainly regional workers --has released a press notice detailing its objections to the implementation of a new performance-appraisal program at the Board.  One interesting twist is that the union is complaining about the Democratic Board member and not the Republican one. 

Full disclosure:  when I worked at the NLRB, I was a member of the NLRBPA (including one year as probably one of the worst stewards ever); however, I don't know anything about this current dispute and am posting on it solely as a matter of interest to readers.  The NLRBPA press release states:

The National Labor Relations Board Professional Association, the union representing attorneys at the Board’s D.C. headquarters, is fighting to prevent another September Massacre.  The “massacre” that the Union fears isn’t dozens of controversial decisions but a wave of unfair and discriminatory mid-year appraisals and reprisals against its members.

A new performance-appraisal program sparked this battle.  Applying a “forced distribution” model like those popular with corporations like General Electric, the Board forced attorney ratings to fit a pre-established distribution.  As a result, the Board’s staff attorneys were more or less equally divided into Exceptional, Commendable, and Proficient categories.

To get this predetermined distribution, Board managers unfairly tinkered with individual ratings.  The resultant ratings “downgrades,” in many instances of attorneys long rated in the highest category, prompted grievances by more than one third of 45 staff attorneys.

In addition, because the NLRB’s “rank-and-yank” appraisal system had a discriminatory, adverse impact on the Board’s older female and disabled attorneys, the new system generated discrimination complaints with the Equal Employment Opportunity office and a grievance of the new system’s discriminatory impact on the bargaining unit by the Union.

Board management’s response to the Union’s efforts has been anything but predictable.  The NLRB’s lone Democratic member, Wilma Liebman, has not settled a single grievance and threatened reprisals against grievants and a Union officer.  Meanwhile, Chairman Peter Schaumber, despite his conservative, pro-employer reputation, has cooperated with the Union to settle most of the appraisal grievances of the attorneys assigned to him.

The Union recently filed grievances against retaliatory conduct by Member Liebman and contacted Congress and the NAACP for help remedying discrimination at the Board.

Stay tuned for any future developments.

-JH

June 29, 2008 in Labor and Employment News | Permalink | Comments (6) | TrackBack (0)

Update on Second Circuit's New Haven Fire Dep't Discrimination Case

FirehatAbout a week ago, I blogged about Ricci v. DeStefano, in which the Second Circuit affirmed per curiam a decision involving the New Haven Fire Department. The Department had decided not to use, in the promotional process, exam results that the city found likely had a disparate impact on African American and Hispanic applicants.

The applicants filed a petition for rehearing en banc, which the Second Circuit denied 7-6.

CORRECTION: Karen Torre, the attorney for the plaintiffs wrote to tell me that she did not in fact file a petition for rehearing either with the panel or with the full court. My apologies to her for erroneously stating otherwise. The Second Circuit brought this issue up sua sponte. That seems an unusual practice to me, although my appellate practice was in the Seventh Circuit, so maybe this is standard practice for the Second. In any event, the fact that the court thought this case important enough to do that for certainly signals the difficult nature of the issues present in this case. It also may signal that the court believes the Supreme Court should take cert.

Five judges issued opinions in connection with the denial. Three of them, Judge Katzmann (deny), Judge B.D. Parker (deny), and Judge Cabranes (grant) issued these opinions simultaneously with the denial order.

Judge Katzmann stated that the denial was appropriate because the plaintiffs had filed a petition for cert with the Supreme Court, and the Second Circuit has a "longstanding tradition of general deference to panel adjudication - a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it." The district court's decision, the panel decision, and the dissents and concurrences attached to the denial of rehearing would define the issues clearly enough that an opinion from the full court was unnecessary. Judge B.D. Parker added that the district court had followed the guiding authority in the circuit, and because there was such guiding authority, an additional opinion was unwarranted.

Judge Cabranes in dissent wrote,

This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. . . . Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional importance," Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so.

Judge Cabranes characterized the actions of the city differently than Judge B.D. Parker had. Judge Cabranes wrote that the city's actions were not neutral: "neutral administration and scoring that is followed by race-based treatment of examination results" may not immunize the defendants from a charge that their actions are discriminatory. In fact, this may be an explicit racial classification.

Several days after the denial, Judge Jacobs added a dissenting opinion, which focused on the Second Circuit's tradition of denying review, arguing that discretion in the rules had become a default rule of denial and that this default rule was inappropriate. A few days after that Judge Calabresi issued a separate opinion concurring in the denial. The point that he added was that while this was an interesting and important case, the parties had essentially waived the interesting and important issue, making this a poor case for review.

The judges who voted to deny review were certainly correct that the record and the arguments on both sides are pretty well developed. At the same time, it is very useful to read the full analysis that Judge Cabranes wrote to understand both sides to this issue. And considering the work that all that analysis must have taken, the only thing missing from this review is a vote by all of the judges on the merits--but that's a pretty important data point.

MM

June 29, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (2)

Hiring your Husband

Rosie As a fairly driven woman, articles about "nontraditional" gender roles and relationships often catch my eye. Today's NYT has an interesting article about women business owners who hire their husbands.

At a time when high-profile women have suffered some setbacks on Wall Street and when women in general still struggle for pay parity, a group of entrepreneurs has proved that women are comfortable not only with running their own companies, but also with having their husbands work for them. In addition to finding ways to work together at home, the couples have created a separate balance of power in their business relationship. And though it may help that both partners do this to enrich a family enterprise, the woman may make a conscious effort to ensure that her mate is getting appropriate recognition.

While there is no data on the number of such companies, women were the majority owners of 7.7 million privately held firms at the end of 2006, up 42.3 percent from 10 years earlier, according to the Center for Women’s Business Research.

Not every couple is successful at this, but the article concluded that one key was clearly defining responsibilities both at work and at home, and the more successful couples brought different skills to the company. For some couples, balancing salaries may be important. The article also suggested that the men who accepted these roles tended to do well because they were comfortable enough to accept the subordinate position in the first place, but that they put up with some scorn from others for their choices.

These stories give me hope that gender roles are becoming less rigid all of the time, which is a good development.

MM

June 29, 2008 in Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2008

Pro se Plaintiffs in Employment Cases

ScalesI haven't read any empirical work to support this, but my impression from practice is that employment law, broadly, is one area in which people commonly proceed pro se. In fact, other than prisoner § 1983 suits, and maybe property tax appeals and misdemeanor traffic violations, it's an area in which pro se plaintiffs are common. And one area within employment law that has an especially large number of people proceeding without attorneys is the unemployment insurance benefit field.

This is an area that probably few of us cover much in our classes--either unemployment or dealing with pro se plaintiffs, but perhaps we should. Unemployment insurance is an area that can be used to talk about employment and economic policies in the US, similar to the discussion of minimum and living wages, but with some general discharge policies addressed, too.

And as for the pro se issue, I think that's extremely important. I always felt an extra responsibility in cases involving parties without counsel both to the court, to ensure that it understood both sides of the issues (because the party acting without a lawyer rarely articulated his or her position as well as is possible), and to the party, to ensure that the person without a lawyer understood what was happening in the litigation. This was something that I could manage fairly well as an ethical matter. I was an assistant AG, and had an ethical obligation to do justice, since my client was the people of the state of Illinois, which meant that I had some obligation to look out a little bit for the person proceeding pro se, even though I did not represent that person. It would seem to me that attorneys in private practice would have to walk a bit of a finer line to be sure that their client is appropriately represented.

In any event, the Court of Appeals for the District of Columbia issued an interesting decision discussing the role that an administrative adjudicator should play in hearings involving parties pro se. The case is Berkley v. D.C. Transit, and can be found here by searching for case number 07-AA-297. It will be published in A.2d.

In dealing with this question about parties appearing pro se, the court stated

Generally, a pro se litigant is entitled to no special treatment, nor substantial assistance from the judge assigned to her case. However, there are exceptions and circumstances which require special care by the judge, meaning that the pro se litigant is not “left to fend entirely for [herself].” . . . These “special circumstances” include cases involving “merely technical, rather than substantive rules of procedure,” . . . and those concerning a remedial statute.

The court found that the administrative adjudicator here had confused the claimant and had not considered her lack of sophistication in analyzing her testimony. Because of this and because the court found that the adjudicator's findings lacked substantial evidence, the court reversed the decision. Somewhat ironically, the employer was not represented by counsel, either, and didn't appear at the hearing or file anything in the review proceeding.

MM

June 27, 2008 in Teaching | Permalink | Comments (4) | TrackBack (0)

Recently Published Scholarship

Saucedo Stonek_3 Brownkd PulverGoerg









Articles

  • Leticia M. Saucedo (left), Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. Mich. J. L. Ref. 447 (2008).
  • Kerri Lynn Stone (second), License to Harass: Holding Defendants Accountable for Retaining Recidivist Harassers, 41 Akron L. Rev. 1059 (2008).
  • Kevin D. Brown (third) & Vinay Sitapati, Lessons Learned from Comparing the Application of the Constitutional Law and Federal Anti-Discrimination Law to African-Americans in the U.S. and Dalits in India in the Context of Higher Education, 24 Harv. Blackletter L.J. 3 (2008).

Student Scholarship

  • Adam R. Pulver (fourth), An Imperfect Fit: Obesity, Pubic Health, and Disability Antidiscrimination Law, 41 Columbia J. L. Soc. Probs. 365 (2008).
  • Charity Williams, Misperceptions Matter: Title VII of the Civil Rights Act of 1964 Protects Employees from Discrimination Based on Misperceived Religious Status, 2008 Utah L. Rev. 357 (2008).
  • Barbara C. Bentrup, Friend or Foe: Reasonable Noncompete Restrictions Can Benefit Corporate In-House Counsel and Protect Corporate Employers, 52 St. Louis U.L.J. 1037 (2008).
  • Leslie A. Harrelson, Recent Fourth Circuit Decisions: Retail Industry Leaders Ass'n v. Fielder: ERISA Preemption Trumps the "Play or Pay" Law, 67 Maryland L. Rev. 885 (2008).
  • Elizabeth Goergen (right), Women Workers in Mexico: Using the International Human Rights Framework to Achieve Labor Protection, 39 Georgetown J. Int'l L. 407 (2008).

rb

June 27, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (1)

Top-10 Labor/Employment/Benefit SSRN Downloads

Breastfeeding Accommodation in California

Breast_pumpFrom the Sacramento Bee via CCH Workweek, comes the news that the California Labor Commission last week fined a Santa Clara-based company $4,000 for violating state law that requires employers to reasonably accommodate employees who are breastfeeding. The law requires that employees be given reasonable privacy and reasonable breaks to allow them to express milk.

A woman employed by International Security Services Inc., a private security firm, had to express breast milk in a room monitored by security cameras and didn't get the time she needed. Stress and lack of time have negative impacts on milk production, and I can imagine that both of those things made it nearly impossible to express milk at all. Not to mention the privacy issues . . . . I'm glad to see the California Labor Commission enforcing this law. It's hard enough balancing work and life with a new baby, particularly when you've chosen to breastfeed. Requiring employers to provide a clean, private place and a few breaks in the workday is not so much of an imposition, compared to the benefits to the women who need them and the benefits the company enjoys with worker retention and with workers who can concentrate on work instead of worrying.

MM

June 27, 2008 | Permalink | Comments (1) | TrackBack (0)

Another Reason Not To Write Personal Emails From Work

Blog Picking up on our discussion of the Ninth Circuit's recent Quon case, the New York Times has a story on a case that one expert aptly describes as "a great exam question."  There are some significant dispute as to what happened, but the basic issue involves a company's monitoring of an ex-employee's private emails (this is a long excerpt, but there's a lot going on):

When he was fired, Scott Sidell was angry enough. Then he found out that his former employer was reading his personal Yahoo e-mail messages, after he had left the company. In a lawsuit that he filed in May against Structured Settlement Investments, the finance company he used to run, Mr. Sidell claims that executives at the company went so far as to read e-mail messages that he had sent to his lawyers discussing his strategy for winning an arbitration claim over his lost job. . . .

The law governing e-mail communications is still evolving. Generally, courts have found that employers can monitor employees’ e-mail communications on company computers. But courts have also recognized greater privacy protection for e-mail messages sent using personal, Web-based e-mail accounts. For example, this month a panel of the United States Court of Appeals for the Ninth Circuit in California ruledthat personal text messages sent on two-way pagers provided to police officers in Ontario, Calif., were protected from the department. . . .

In addition to concerns about privacy in the workplace, Mr. Sidell’s claim involves communications between a lawyer and a client. “It’s a nice set of factors that are all compacted into this,” said Matt Zimmerman, senior staff attorney in the San Francisco office of the Electronic Frontier Foundation, a nonprofit civil liberties organization that seeks to protect privacy rights online. . . .

Companies often adopt policies explicitly stating that everything an employee does on a computer provided by the employer is subject to monitoring. But even so, and especially in the absence of such a policy, employees may have a reasonable expectation of privacy, Mr. Zimmerman said. Moreover, he said the expectation of privacy would be even higher if employees used remotely hosted personal e-mail accounts like those provided by Yahoo. John Crossman, a lawyer at Zukerman Gore & Brandeis representing the company, said Structured Settlements had a policy that gave it the right to access its own computers. (Structured Settlement offers lump-sums to people receiving installment payments — from personal injury settlements or lottery winnings, for example.)  But Mr. Sidell was no longer an employee when his mail was supposedly read. And he said in his complaint that it went well beyond the company’s rights to read e-mail messages from the personal account of a terminated employee to his lawyer. . . .

Another question is how it was possible to read Mr. Sidell’s Yahoo e-mail messages. In his complaint, he said that when he returned to his office after he was fired, he may not have signed out of his Yahoo account. A feature of the account could have allowed anyone using his computer to access his e-mail messages for up to two weeks. Rich Palma, the chief operating officer for Structured Settlement, outlined the company’s position in a statement filed with the court. Mr. Palma said that Mr. Sidell had returned to the office after he was fired and had begun using another employee’s computer. He said that Mr. Sidell had used that computer without authorization and had sent trade secrets and confidential company information to his Yahoo e-mail account. Mr. Palma said the information included lists of customers, their home addresses and phone numbers, terms of deals and brokers who had sent business to the company and personal information about the company’s employees. . .

That twist in the case, if true, may support the company’s claim against Mr. Sidell for violating terms of his employment contract, which among other things prohibited him from competing against his employer for three years after leaving the company. Of course, if the company learned of the contractual breach by improperly reading Mr. Sidell’s personal e-mail, that could support his claim.

I'm known for my complicated fact patterns, but even I might not go this far on an exam.  What's great about cases like this is that they really show how much employment law overlaps with other areas of the law.  Off the top of my head, this case implicates employment law, legal ethics, intellectual property, personal property, and Internet law--and I'm no doubt missing others. 

Hmmm, on second thought, maybe this would be a good exam question.

Hat Tip:  Bill Herbert

-JH

June 27, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Law School Rankings

Usnlogo U.S. News is soliciting comments on two ways it is considering for improving its law school ranking system:

The first idea is that U.S. News should count both full-time and part-time entering student admission data for median LSAT scores and median undergraduate grade-point averages in calculating the school's ranking. U.S. News's current law school ranking methodology counts only full-time entering student data. Many people have told us that some law schools operate part-time J.D. programs for the purpose of enrolling students who have far lower LSAT and undergrad GPAs than the students admitted to the full-time program in order to boost their admission data reported to U.S. News and the ABA. . . . .

[The second idea] calls for U.S. News to compute our bar passage rate component (school's bar pass rate/jurisdiction's bar passage rate) using only the data of first-time takers who are graduates of American Bar Association-accredited schools. Currently, our "jurisdiction's bar passage rate" uses the rate of all first-time test takers from a state regardless of the ABA accreditation of their law schools. This distinction is perhaps most meaningful for the state of California . . . .

And Brian Leiter reports on the sometimes silly lengths some folks will go to try to obtain a marginal increase in the U.S. News rankings.

rb

June 27, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Contingency Fees Across the Pond

Justice In Britain, solicitors can take employment cases on a contingency (or, in Brit parlance, "no-win-no-fee") basis.  But the Ministry of Justice has announced that there will be a "research based review of the practice" because of "growing concerns that [it] may not always be operating in the interest of access to justice."  But, suggests Jenny at pjhlaw, removing "contingency fee funding arrangements for employment claims will make it much more difficult for employees to bring claims . . . .  Paying on a private basis simply isn’t an option for a lot of Claimants."

Sounds familiar.

rb

June 27, 2008 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Public v. Private Sector Employment

Mcdonnell Kenneth McDonnell (EBRI) has just posted on SSRN an interesting study comparing the compensation of public-sector and private-sector employees.  The study is Benefit Cost Comparisons Between State and Local Governments and Private-Sector Employers; here's the abstract:

This paper examines some of the causes of the differences in total compensation costs between state and local government employers and private-sector employers. As of September of 2007, overall total compensation costs were 51.4 percent higher among state and local government employers ($39.50 per hour worked) than among private-sector employers ($26.09 per hour worked) (calculated from Figure 1). Total compensation costs consist of two major categories: wages and salaries and employee benefits. For both of these categories, state and local government employers' costs were higher than those of private-sector employers: 42.6 percent higher for wages and salaries and 72.8 percent higher for employee benefits (calculated from Figure 1). The differences in compensation costs between public-sector and private-sector employers are driven by the differing mix of job functions, work force composition, and concentrations of workers. The composition of the benefit package is another major factor in explaining the difference in compensation costs. Benefit participation rates are higher for state and local government employees and the costs of providing these benefits are higher.

    In a nutshell:  (1) State and local governments mostly provide education; the private sector mostly provides services; education jobs pays better than service jobs.  (2) State and local governments offer much more generous benefits (health and retirement) packages than do private sector employers.  (3) Employee participation rates are much higher in the public sector than in the private sector, though this seems largely to be a function of (2).  I.e., it's not that private-sector employees are opting out of benefits that are offered -- it's that private-sector employees often do not have the option of participating because no benefits are offered.

rb

June 27, 2008 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Essary Named to NC Bar Board of Governors

Essary Dean Melissa Essary (Campbell) has just been named a vice president of the North Carolina Bar Association’s board  of governors.  Dean Essary teaches Employment Law, and taught Employment Discrimination at Baylor before accepting the deanship at Campbell.

rb

June 27, 2008 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Thursday, June 26, 2008

House Passes ADA Amendments Act of 2008

Congress3The NYT reports that the House yesterday passed 402 to 17, H.R. 3195 (here's the summary), the ADA Amendments Act of 2008, originally introduced as the ADA Restoration Act of 2007. The bill

would make it easier for workers to prove discrimination. It would explicitly relax some stringent standards set by the court and says that disability is to be “construed broadly,” to cover more physical and mental impairments.

Supporters of the proposal said it would restore the broad protections that Congress meant to establish when it passed the Americans With Disabilities Act that President George Bush signed in 1990.

The changes include making clear that a person should be considered disabled even if mitigating measures can help the person function, essentially superseding the Supreme Court's decision in Sutton v. United Airlines

The bill had bipartisan support:

The chief sponsor of the bill, the House Democratic leader, Representative Steny H. Hoyer of Maryland, said the situation was now bizarre. “An individual may be considered too disabled by an employer to get a job, but not disabled enough by the courts to be protected by the A.D.A. from discrimination,” Mr. Hoyer said.

The chief Republican sponsor, Representative F. James Sensenbrenner Jr. of Wisconsin, said the Supreme Court had “chipped away at the protections” of the 1990 law, leaving millions of Americans with no recourse or remedy for discrimination.

The Senate, is expected to pass a similar bipartisan bill. "Senator Tom Harkin, the Iowa Democrat leading the effort, predicted that the Senate would act 'in the near future.'"

The White House has sent cryptic messages about whether the President will veto the bill. "[A]lthough President Bush 'supports the overall intent' of the House bill, he was concerned that it 'could unduly expand' coverage and significantly increase litigation."

A veto might be unlikely if, as the NYT reports,

The House bill reflects a deal worked out in months of negotiations by business groups and advocates for the disabled. The United States Chamber of Commerce and the National Association of Manufacturer helped shape the bill and endorsed it as a balanced compromise.

MM

June 26, 2008 in Beltway Developments | Permalink | Comments (1) | TrackBack (0)

Exxon, Punitive Damages, and Employment Cases

Exxon Yesterday, the Supreme Court in Exxon Shipping Co. v. Baker cut the punitive damage award for the Exxon Valdez spill from  $2.5B to $500M.  Over at SCOTUSblog, Lyle Denniston points out that

It is necessary . . . to acknowledge that this is not a constitutional ruling, that it is only about the Court’s common-law powers, and that it arises only in the context of law governing maritime commerce.  But to look at it only in those narrow terms is to miss the signal that the Court is giving – that is, it has grown highly skeptical that it can spell out, in words rather than numbers, workable guidelines that could bring some sense – some consistency – to punitive damages awards.

And in numerical terms, as Denniston points out, the Court has fixed that ratio at 1:1.

Such a ratio, if applied to employment cases, would have a devastating impact.  Compensatory damages in employment cases are seldom sufficient to pay for the cost of litigation.  The largest component of compensatory damages is lost wages, and these damages aren't huge for low-income employees or employees who have managed to find subsequent employment.  What makes employment cases viable -- and what keeps employers honest -- is the possible award of punitive damages.

Yes, punitive damages are a crapshoot.  But with low- and moderate-income employees all but priced out of the market for legal services, the fear of punitive damages is the only legal incentive employers have to protect low-income employees from employment discrimination.

rb

June 26, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Catch Me If You Can (Employment Edition)

Canadianflag Ravi Malhotra (Ottawa) send this bizarre story from Canada (via Globe and Mail):

Like any driven professional, Diane Way was always looking to advance her career. But while most people leave one job before taking a new one, Ms. Way tried a different strategy – she started a new job, kept her old one and didn't tell either employer as she juggled both.

She was hoping to keep her options open in case the new position didn't work out, according to an adjudicator's ruling. Instead, she ended up being fired from both jobs and embroiled in a four-year legal battle over her actions.

It all started in November, 2003, the ruling said, when Ms. Way, then a senior lawyer in the Toronto office of the Canada Revenue Agency, accepted a job in Ottawa with the Canadian Forces Grievance Board, CFGB.

Ms. Way signed the offering letter and checked a box marked: “I accept to this offer.” She didn't tell anyone at the CRA about the offer but negotiated a starting date with the CFGB.

She showed up for her first day of work at the board on Monday Feb. 23, 2004. To cover her absence at the CRA, Ms. Way used some vacation time.

At the CFGB, she attended a new-employee orientation session, met some co-workers and had her contact information entered into the office directory. She was also given an office, a computer and a few files to start working on and arranged dates for training sessions. She even applied for financial assistance to help relocate to Ottawa.

Ms. Way worked at the board for a week. The next Monday, she returned to her CRA job in Toronto and called in sick every day for a week at the CFGB. The Monday after that, she was back in Ottawa at the CFGB, using up more vacation time from the CRA.

Her dual life came crashing down when a human resources officer at the CFGB made a routine call to the CRA in Toronto and discovered that Ms. Way still worked there . . . .

Ms. Way fought back. She filed a grievance and took the CRA to task throughout the investigation, arguing that she had not technically accepted the job but was just “checking it out.”

The CRA determined that Ms. Way could no longer be trusted and it fired her as well. The agency concluded that she had lied throughout the ordeal and violated the federal code of ethics and conduct as well as the conflict of interest code.

Oops.  She lost her case before the public labor board, but you got to give it to her for her sheer gall for fighting over this for four years! Maybe she has some relatives in the United States who are advising her.

PS

June 26, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

More on Obesity and Health Insurance

Pensionrisklogo Susan Mangiero of Pension Risks Matter (recently voted one of the best blogs by Pension and Investment Magazine) has this commentary:

A few weeks ago, en route to speak at a valuation conference about hedge fund issues, I sat next to a health-conscious surgeon. For nearly an hour, he spoke passionately about spiraling hospital and pharmaceutical costs, due in large part to what he described as an obesity epidemic. He offered several compelling examples of procedures that could have been done at a much lower cost, had patients been smaller in girth . . . .

It was no surprise then that this Sunday's New York Times addressed this problem, said to be costing employers big-time. In her piece, reporter Kelley Holland links to an "aha moment" map, courtesy of the Centers for Disease Control and Prevention. Based on 2006 data, all but four of fifty states clearly struggle with obesity, with at least 20 percent of adults having a Body Mass Index ("BMI") in excess of 30 . . .

    * More than 25 cents of every dollar spent on medical services is due to excess weight complications (based on research conducted by Emory University Professor Kenneth Thorpe).

    * The corporate tab for too many muffins is $45 billion per year (according to a Conference Board report). See Medical News Today, April 10, 2008.

    * Obesity links to chronic health problems more than smoking or excess drinking (based on Rand Corporation research by economist Roland Sturm).

"Waistlines Expand Into a Workplace Issue" is a scary read. Citing examples of employers that offer incentives to visit the gym and otherwise slim down, Holland writes that more needs to be done, despite the fact that it is a "sensitive" issue. While I'm the last to make a value judgement about weight, some disturbing thoughts come to mind.

I agree with Susan on this, of course, but wouldn't it be funny hearing someone say: "I am not going to eat that muffin because I might get fired or my health premiums may go up?"

PS

June 26, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

When to Retire?

Forman Chen_2 Jonathan Forman (Oklahoma Law) and Bing Yung-Ping Chen (U. Mass. - Boston Gerontology Institute) have just posted on SSRN their new article Optimal Retirement Age.  Here's the abstract:

What is the optimal retirement age? This paper looks at the optimal retirement age from various perspectives. Most of the current pension laws relating to retirement age were codified decades ago, and they have become badly out of date given what we now know about longevity, about health and work in old age, and about how pension policies influence retirement decisions. This paper provides some background about demography, health, and retirement; summarizes how current pension laws influence the design of pension plans and the timing of retirement; and looks at the optimal retirement age from the perspective of employers, government, and workers. This paper then offers some new perspectives on the relationship between demography and retirement age; discusses the implications for public policy; and offers recommendations about how to reform our pension laws so that pension plans comport with our ideas about optimal retirement age.

This article is less about answering the question When should I retire? and more about answering the question At what age should we as a society encourage/discourage people from retiring? Here's the answer:

We think that the minimum age for drawing pension benefits without penalty should be
raised from its current age 59½ to at least age 62, the age of earliest eligibility for Social
Security benefits.  We would also raise the normal retirement age from its current age 65 to age 67, the forthcoming age of eligibility for full benefits under Social Security.  And we would index both for future improvements in longevity.

The article then provides several policy recommendations for encouraging retirement at these ages.

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June 26, 2008 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Shanor Elected to College of Labor & Employment Lawyers

Shanor Congratulations to Emory Law Professor Charles Shanor, who has been elected to the ABA College of Labor and Employment Lawyers.  Professor Shanor will be inducted as a Fellow of the College September 13, 2008, at a ceremony in Denver, Colo., in conjunction with the annual meeting of the Labor and Employment Section of the American Bar Association. 

The College of Labor and Employment Lawyers was founded in 1995 to promote achievement, advancement and excellence in the practice of labor and employment law. Fellows of the College are dedicated to the study of professional ethics in the practice of labor and employment law, and to the improvement of the delivery and quality of labor and employment legal services.

Shanor has taught (employment discrimination, labor, con law) at Emory since 1990.  His books include National Security and Military Law (West/Thomson Nutshell Series 2003), American Constitutional Law: Structure and Reconstruction (West, 2000), Military Law in a Nutshell (2nd ed., West, 1996, with Hogue), and a forthcoming volume entitled EEOC Litigation and Charge Resolution (BNA, 2002, with Livingston).  His articles and book chapters include "Battleground for a Divided Court: Employment Discrimination in the Supreme Court, 1988-1989," in The Labor Lawyer (1990), "Some Observations on Broadly Construing Civil Rights Laws," 14 Harvard Journal of Law and Public Policy 8 (1991), Sexual Harassment in Employment Law by B. Schlei, P. Grossman, and D. Kadue (Bureau of National Affairs, 1991), Employment Discrimination Law (Bureau of National Affairs, annual supplements).

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June 26, 2008 in Faculty News | Permalink | Comments (1) | TrackBack (0)