Tuesday, March 31, 2009
The New York Times has recently been producing an interesting series on immigration in the U.S., which has included quite a bit on work-related issues. One article explored the effects of the recent economic crisis on immigrant and native workers in Morristown, Tennessee--a town that has had a lot of interesting labor issues, which my colleague Fran Ansley has been heaving involved with. There is an accompanying audio slideshow. The series also has pages with work statistics for immigrant workers and a really interesting interactive map showing patterns of immigration in the U.S. Finally, if the bloviating on this blog isn't enough for you, the Times has a "Room for Debate" page that has comments from a wide range of people.
It's a great series, so check it out.
The Washington Post recently had a story on an increase in prison closings, particularly minimum-security prisons that often provide jobs and prisoner labor for local communities. Both local officials and prison guard unions--particularly in New York, which is pulling back on its harsh Rockefeller drug laws--have been trying to fight the closings:
New York is facing a $13 billion deficit, and a falling inmate population, and Gov. David A Paterson (D) has proposed saving about $26 million by shuttering four of the state's prison facilities, including Camp Pharsalia and nearby Camp Georgetown. Faced with the prospect of losing a big part of their economic base, these small, distressed towns and cities are banding together with a common cry: "Save Our Prison!". . .
It's a conflict being played out across the country. The number of inmates boomed in the 1980s and 1990s, in part because of high crime rates and stiff mandatory-sentencing laws that particularly targeted drug offenders. States rushed to build additional prisons to keep up with what appeared to be a growth industry. And many struggling, mostly rural, communities came to see prisons as a substitute for the family farms and the small manufacturing plants that were vanishing. . . .
Norwich Mayor Joseph P. Maiurano has calculated the cost, for his city, and for surrounding Chenango County, one of New York's poorest: Fifty-nine corrections officers, and their family members, may have to leave the area for jobs in other facilities. About 40 local businesses will lose procurement funds. More than 50 local organizations benefit from the work the inmates provide.
The prison is a major employer, but it also has a direct impact on other services, such as postal services. The local post office is largely supported by the huge volume of inmate mail. With the loss of the prison, residents fear the post office could close, too.
Despite rural communities' attachment to their prisons, many experts dispute whether correctional facilities serve a long-term economic benefit. Gregory M. Hooks, a sociology professor at Washington State University, who analyzed the economies of prisons, said that among other problems, the pool of free inmate labor eliminates the pool of low-paid manual labor jobs, further depressing local economies. Prisons make communities dependent but without much return to the community, because the jobs are secured for life. And, he said, a local prison may make an area less attractive to other types of businesses, particularly those catering to tourists. . . .
The Pharsalia inmates -- the vast majority of them from New York City -- perform a variety of duties, including maintaining horse and ski trails, working in the public parks and thinning the forests. Maiurano estimated that for the city alone, he would need to hire four additional workers to make up for the loss of the free inmate labor.
Hat Tip: Dennis Walsh
The Boston Globe is reporting on what turned out to be a very bad investment move by the Pension Benefit Guaranty Corporation. Apparently, the PBGC decided to change its normally conservative strategy for investing its $64 billion in insurance funds (typically bonds) by putting much of the money in stocks, real estate, private equity funds, and emerging foreign markets. The timing of the move? Just months before the stock market collapse:
The agency refused to say how much of the new investment strategy has been implemented or how the fund has fared during the downturn. The agency would only say that its fund was down 6.5 percent - and all of its stock-related investments were down 23 percent - as of last Sept. 30, the end of its fiscal year. But that was before most of the recent stock market decline and just before the investment switch was scheduled to begin in earnest. No statistics on the fund's subsequent performance were released.
Nonetheless, analysts expressed concern that large portions of the trust fund might have been lost at a time when many private pension plans are suffering major losses. The guarantee fund would be the only way to cover the plans if their companies go into bankruptcy.
"The truth is, this could be huge," said Zvi Bodie, a Boston University finance professor who in 2002 advised the agency to rely almost entirely on bonds. "This has the potential to be another several hundred billion dollars. If the auto companies go under, they have huge unfunded liabilities" in pension plans that would be passed on to the agency. In addition, Peter Orszag, head of the White House Office of Management and Budget, has "serious concerns" about the agency, according to an Obama administration spokesman. . . .
However, Charles E.F. Millard, the former agency director who implemented the strategy until the Bush administration departed on Jan. 20, dismissed such concerns. Millard, a former managing director of Lehman Brothers, said flatly that "the new investment policy is not riskier than the old one." He said the previous strategy of relying mostly on bonds would never garner enough money to eliminate the agency's deficit. "The prior policy virtually guaranteed that some day a multibillion-dollar bailout would be required from Congress," Millard said. He said he believed the new policy - which includes such potentially higher-growth investments as foreign stocks and private real estate - would lessen, but not eliminate, the possibility that a bailout is needed. Asked whether the strategy was a mistake, given the subsequent declines in stocks and real estate, Millard said, "Ask me in 20 years. The question is whether policymakers will have the fortitude to stick with it." . . .
The agency's action has also been questioned by the Government Accountability Office, the investigative arm of Congress, which concluded that the strategy "will likely carry more risk" than projected by the agency. "We felt they weren't acknowledging the increased risk," said Barbara D. Bovbjerg, the GAO's director of Education, Workforce and Income Security Issues.
Analysts also believe the strategy would not have been approved if the government had foreseen the precipitous decline in the stock market. Now, they warn about a "perfect storm" scenario in which the agency's fund plummets in value just as more companies go into bankruptcy and pass their pension responsibilities onto the insurance fund. Many analysts say it is inevitable that the agency will face significantly increased liabilities in coming months.
Remind me not to go to the PBGC for advice on my 401k.
Hat Tip: Matt Bodie
Jeanette Cox (Dayton) has just posted on SSRN her article (forthcoming Indiana L.J.) Crossroads and Signposts: The ADA Amendments Act of 2008. Here's the abstract:
Federal courts' understanding of ADA's relationship to traditional civil rights law will shape courts' resolution of unresolved questions about the ADA's scope. Because the ADA, as amended, will now enable more plaintiffs to proceed past the preliminary question of membership in the ADA's protected class, federal courts will soon be forced to confront broad questions relating to the ADA's application. Resolution of these questions will largely turn on courts' understanding of the conceptual relationship between the ADA and traditional civil rights statutes, an underlying question which the recent amendments will unintentionally shape.
Politico is sponsoring a debate this week on the Employee Free Choice Act. Here's a description, from Moderator Fred Barbash:
There's a terrific cast of participants:
- Anna Burger, SEIU
- Thomas J. Donohue, U.S. Chamber of Commerce
- Terry O'Sullivan, Laborers International Union
- Keith Smith, NAM
- Cynthia Estlund, NYU
- James Sherk, Heritage Foundation
- Paula B. Voos, Rutgers
- Tom Gies, Crowell and Moring
- Peter J. Hurtgen, Morgan Lewis & Bockius
Hat tip: Tom Gies.
From today's Daily Labor Report (subscription required):
Granting for the most part a grievance filed by the EEOC employees' union, Arbitrator Steven M. Wolf found that EEOC has been violating its union contract and the FLSA since 2003 by not allowing many nonexempt employees to obtain overtime pay when they work more than 40 hours a week or 80 hours per two-week pay period.
Kim Yuracko (Northwestern) has just posted on SSRN her article (forthcoming Northwestern L. Rev.) The Antidiscrimination Paradox: Why Sex Before Race?. Here's the abstract:
Julie Suk (Cardozo) has just posted on SSRN her article (forthcoming Columbia L. Rev.) Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict. Here's the abstract:
Monday, March 30, 2009
Michael Selmi (George Washington) has just posted on SSRN his article, "Unions, Education, and Low-Wage Workers," which is part of the forthcoming University of Chicago Legal Forum Symposium issue (2009) (see here for Maria Ontiveros' contribution to the issue). The abstract:
Paul Secunda (Marquette) has just published on the ACS Blog a piece called "Seeking A Practical Age Discrimination Standard," in which he analyzes the Supreme Court's upcoming Gross case (asking how to analyze non-Title VII mixed-motive claims). Among Paul's insights:
Gross is a hard case to predict because there are at least two or three strong arguments cutting in different directions. One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.
A better approach, however, is to point out that disparate treatment claims under the ADEA have been interpreted, on a procedural and substantive level, as substantially identical to claims brought under Title VII. Congress thought unnecessary to state what might have seem obvious to many; this new mixed-motive standard favoring plaintiffs applies to all employment discrimination statutes and there was no need to single the ADEA out. Public policy than provides added ammunition as it makes little sense to have different standards for similar employment discrimination cases, only diverging in the type of discrimination involved. It is confusing to employers and employees alike, and uniform standards in this regard will help the parties fashion their future conduct in this area.
Thus, because individual disparate treatment cases works substantially similar under Title VII and the ADEA, the Supreme Court in Gross should find that the CRA of 1991 standard applies to mixed-motive cases under the ADEA as well. This result is consistent with using other sources of authority when the relevant statutory language in the CRA of 1991 is ambiguous and provides a much more predictable and uniform playing field for parties to employment discrimination litigation in the future (who have enough interpretative difficulty without these mixed-motive matters being added to the mix, so to speak.)
I'll leave the more general issues of this case to people like Paul, but I will reiterate one aspect of this case that I don't think is close: under Desert Palace, there is no direct evidence requirement, no matter whether the Court holds that the 1991 Amendments apply or not.
Michael Fox and Politico discuss the ramifications of Senator Arlen Specter's recently announced opposition. This will make it much more difficult to get the 60 votes required to get the bill past a Senate filibuster. Today's Daily Labor Report says that neither unions nor management are backing down -- it's still full-scale war. Finally, Alexander Leonard alerts us to an article in today's Wall Street Journal arguing that the card-check provision is unconstitutional on free speech grounds. But I'm skeptical. The EFCA doesn't restrict employer speech -- the EFCA would just give employers an incentive to spread their anti-union message earlier in the certification process.
- David L. Gregory, Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act, 111 W. Virginia L. Rev. 395 (2009).
- Michael H. LeRoy (left), Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations, 93 Minn. L. Rev. 998 (2009).
- Katie Klaeren (right), Moving Toward a More Protective Interpretation of National Origin Discrimination Under Title VII? Maldonado v. City of Altus, 77 U. Cin. L. Rev. 349 (2008).
Maybe it's because things sat dormant for so long in the Dukes v. Wal-Mart case (largest ever class action--gender discrimination suit), so I wasn't paying close enough attention, but I missed that the 9th Circuit held oral argument on rehearing last Wednesday.
Personneltoday.com, via PJH Law reports that the British Equalities and Human Rights Commission is proposing to decrease the discrepancy between maternity and paternity leave in an effort to close the gender pay gap. Paternity leave would increase from 2 weeks to 8 week, and maternity leave would decrease from 9 months to 6 months, all at 90% salary.
Saturday, March 28, 2009
. . . if Congress passes a law making it easier for workers to organize, says an article in last week's Wall Street Journal.
FedEx started out as an airline, so it falls under the Railway Labor Act. The RLA requires company-wide employee votes on labor representation. FedEx's rival UPS, however, started out as a trucking company, so it falls under the National Labor Relations Act. The NLRA makes it easier for unions to organize workers because it unions can organize on a location-by-location basis.
Congress is considering a bill that would transfer jurisdiction of FedEx from the RLA to the NLRA. That has the Teamsters, which has been trying to organize FedEx for years, salivating.
Now, no doubt trying to lock in the State of Washington's votes, FedEx is saying it will cancel 15 jets, worth about $6 billion, that it has an option to buy from Boeing.
Hat tip: Mark Grunewald.
- Anne Layne-Farrar (photo above), An Empirical Assessment of the Employee Free Choice Act: The Economic Implications (556).
- Orly Lobel & On Amir, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy (286).
- Andrew P. Morriss, William T. Bogart, Andrew Dorchak, & Roger E. Meiners, 7 Myths About Green Jobs (238).
- Richard A. Epstein, The Case Against the Employee Free Choice Act (212).
- Marc Edelman, Moving Past Collusion in Major League Baseball: Healing Old Wounds, and Preventing New Ones (118).
- Isaac B. Rosenberg, Height Discrimination in Employment (117).
- M. Todd Henderson, The Nanny Corporation and the Market for Paternalism (113).
- Adam B. Cox, Immigration Law's Organizing Principles (110).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (107).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (104).
Friday, March 27, 2009
We've blogged about the 9th Circuit case of Golden Gate Restaurant Ass'n v. City an County of San Francisco--mostly Ed Zelinsky's analysis. Most recently, the 9th Circuit denied a petition for rehearing as we noted here, and the restaurant association applied for a stay in the Supreme Court, pending resolution of the certiorari process. Today, the defendants filed this joint response to that motion (courtesy of Scotusblog). Essentially, the defendants argue that the medium and large employers covered by the program have been complying with the healthcare spending requirements for 15 months, and there is no sign that any business is being harmed by it. The application is before Justice Anthony M. Kennedy as Circuit Justice; it is up to him to decide the stay issue himself or to refer it to his colleagues for action.
Michael Waterstone (Loyola-LA) has just posted on SSRN his article, "Returning Veterans and Disability Law," which is going to be published in the Notre Dame Law Review. The abstract:
The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework.
I've heard Michael present this paper and it's great, so check it out!
Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming 2009 U. Chicago Legal Forum) Labor Union Coalition Challenges to Governmental Action: Defending the Civil Rights of Law-Wage Workers. Here's the abstract:
The article examines how the exclusion of low-wage workers from current constitutional and statutory protections has resulted in the lack of a coherent legal theory protecting their civil rights. It also discusses the lack of a national, collectively-based, institutional change agent devoted to protecting low-wage workers. Citing social movement theory, and applying it to lawyering for social change and labor union theory, the article argues that both are necessary to be effective. The article describes international lawsuits filed under the North American Agreement on Labor Cooperation and the International Labor Organization and describes how they are establishing a coherent legal theory based on a list of fundamental labor rights for North American workers and the concept of labor rights as human rights. On the domestic side, the article examines various constitutional claims brought against the government on behalf of low-wage workers and argues that the Thirteenth Amendment should be considered a useful umbrella for unifying these claims. Finally, the article describes how this type of advocacy is transforming the role of traditional labor unions.
Thursday, March 26, 2009
The Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law is now set. It will be held at Seton Hall from September 25-26; abstracts are due by August 15. Thanks to the organizers, Tim Glynn, Charlie Sullivan, and Rosa Alves.
This has been a great conference every year, so get those abstracts in.