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All rights reserved.Saturday, October 11, 2008SSRN Top-10 List of Recent Employment & Labor Downloads   Robert Novy-Marx & Joshua D. Raugh, The Intergenerational Transfer of Public Pension Promises (158).John R. Graham (left), Si Li (center), & Jiaping Qiu (right), Managerial Ability and Executive Compensation (95). Orly Lobel, Intellectual Property and Restrictive Covenants (90).Jonah B. Gelbach, Jonathan Klick, & Lesley Wexler, Passive Discrimination: When Does It Make Sense to Pay Too Little? (88).Robert Flannigan, Fiduciary Mechanics (81).Dwight Steward & Stephanie Botello, Back Pay and Front Pay Calculations in Employment Termination Cases: Accounting for Re-Employment and Mitigation Efforts (77).Randall S. Thomas, International Executive Pay: Current Practices and Future Trends (76).Orly Lobel, National Regulation in a Global Economy: New Governance Approaches to 21st Century Work Law (58).Kamala Dawar, Assessing Labour and Environmental Regimes in Regional Trading Arrangements (56).Ian L. Dew-Becker, How Much Sunlight Does It Take to Disinfect a Boardroom? A Short History of Executive Compensation Regulation (53)rbOctober 11, 2008 in Scholarship | Permalink| Comments (0)| TrackBack (0)Saturday, October 11, 2008Possible Settlement in UAW-Foxwoods Dispute? As we've discussed previously, the UAW and Foxwoods Casino have been contesting whether the NLRB has jurisdiction over the tribal casino. We now learn, thanks to an e-mailed joint press release, that:The UAW and the Mashantucket Pequot Gaming Enterprise agreed to enter into discussions for 30 days to determine if an agreement can be reached to bargain under tribal law without either party waiving any of their rights or legal positions under the National Labor Relations Act. The parties further agreed that they will not discuss the status of negotiations during this 30-day period. As Daniel Schwartz at the Connecticut Employment Law Blog notes, the big deal here is the attempt to apply tribal law, which is what the casino has been seeking. Like him, I think that both parties have potential gains here. The casino keeps avoiding the NLRA, while the union may get what it's really after: the ability to start representing the casino workers.-JHOctober 11, 2008 in Labor Law | Permalink| Comments (0)| TrackBack (0)Connecticut Strikes Down Statutory Same Sex Marriage Ban Connecticut became the third state in the union today to declare that its state constitution prohibits limiting the right to marry to different sex couples. In Kerrigan v. Comm'r of Pub. Health, the Connecticut Supreme Court held 4-3 (the dissents can be found here, here, and here) that gays and lesbians had suffered a history of pernicious discrimination; that just as for gender under the federal constitution, sexual orientation was a quasi-suspect class; that classifications on that basis warranted heightened scrutiny; and that the state had not offered an important enough interest to warrant the classification. As Paul noted in May when the California Supreme Court decision came down, this has significant employment law consequences. It will impact benefits issues, and it reinforces the state's employment discrimination laws that prohibit discrimination on the basis of sexual orientation in both the public and private sector.Just a couple of hours ago, I was listening to a speech by Shannon Minter of the National Center for Lesbian Rights speak on this topic, a bit nervously remarking that no one knew why it was taking the Connecticut Supreme Court so long to decide the issue. He also noted that people interested in the issue should keep their eyes on the fight in California over Proposition 8, the initiative drive to amend the California Constitution to overturn that state's supreme court decision. Additionally, the Iowa Supreme Court is considering the same sex marriage issue in Varnum v. Brien, which is set for argument December 9. MMOctober 10, 2008 in News | Permalink| Comments (3)| TrackBack (0)Harkavy on the Supreme Court's 2007 Term Jonathan Harkavy (Patterson & Harkavy) has just posted on SSRN his article Supreme Court of the United States Employment Law Commentary: 2007 Term. This is a case-by-case description and analysis of the cases from the 2007 term. Harkavy is, among other things, co-author of the practice volume of Larson's Employment Discrimination. rbOctober 10, 2008 in Scholarship | Permalink| Comments (0)| TrackBack (0)Race, Unions, and the Presidential Election NPR's Morning Edition this morning ran a story about Richard Trumka, UMW President and secretary-treasurer of the AFL-CIO, who for the last several months has been giving speeches on the issue of race and the presidentialelection. It's a reaction, he says, to racist comments he has personallyencountered; he says he feels compelled to personallychallenge anyone in the labor movement who may not vote for Obamabecause he is black. An excerpt from a speech at the United Steelworkers convention:Our kids are moving away because there's no future here. And here's a man,Barack Obama, who's going to fight for people like us, and you won'tvote for him because of the color of his skin? Are you out of yourever-loving mind?Here's the NPR story. Hat tip: Danielle Lorenz.rbOctober 10, 2008 in Union News | Permalink| Comments (0)| TrackBack (0)Thursday, October 9, 2008Analysis of Oral Argument Transcript in Crawford Retaliation Case The Supreme Court heard oral argument in the case of Crawford v. Metropolitan Government of Nashville yesterday afternoon. Scotusblog’s Scotuswiki page on the case can be found here. Crawford had cooperated with Metro’s internal investigation into allegations of harassment of a fellow employee by a supervisor. Crawford related details of that supervisor’s sexually harassing conduct toward her (Crawford) and her reactions to it. The issue on review concerns whether firing an employee for reporting this information in an internal investigation constitutes retaliation under Title VII. Title VII prohibits retaliation against an employee who “has opposed any practice made an unlawful employment practice by this subchapter,” or who has “participated in any manner in an investigation, proceeding, or hearing under this subchapter” 42 U.S.C. 2000e-3a. Eric Schnapper (Washington) argued the case for petitioner, and split his time with the Solicitor General’s Office, which came in on the side of the employee. The analysis that follows is based on my reading of the oral argument transcript in Crawford.1. Counsel for Crawford argued that Crawford’s conduct would be protected under either the opposition clause or the participation clause of the retaliation provision, but focused mostly on the opposition clause. Counsel defined the test for whether conduct was opposition as determined by whether a reasonable person would conclude from the employee's statement or conduct that the employee disapproved of or objected to the employment practice in question. The court pushed heavily into hypotheticals about what conduct would be sufficient to “oppose” discrimination.2. Here’s the first clue that at least Scalia is very concerned about creating opportunities for more litigation by employees: JUSTICE SCALIA: But that doesn't solve the problem of having too broad an entry into this thing. You get to the jury by just showing that she said "Oh, if he did that, it's terrible," and then it's up to the jury all of a sudden whether that is the reason that the employer fired this person or not. I mean, that just leaves -- lays the employer open to a lot of jury determinations that he shouldn't be subject to, it seems to me. And Scalia was not alone: JUSTICE SOUTER: Then what is the limit? It seems to me you've got a cause of action in effect under the statute that would be virtually unlimited. . . .4. Poor Justice Ginsburg had to rein everybody back in: JUSTICE GINSBURG: But why are we -- why are we spending so much time on hypotheticals that are so far from this case? This was a person who appeared at an internal proceeding, she gave testimony, very specific testimony. She wasn't saying: I'm against harassment. She said: This boss harassed me. It is about as specific as you get. So we're dealing with a particular case of somebody who was a witness in an internal investigation. Why do we have to reach the outer boundaries of this claim in this case? 5. The Justices were also very concerned that only people whose statements were on the side of the complaining employee would be protected if the Court analyzed this issue under the opposition clause alone. To which counsel for Crawford replied that the protections in the opposition and participation clauses were meant to overlap and complement each other – concentric circles of protection in Chief Justice Roberts’ terms.6. Counsel for the Government agreed that the conduct was protected under both clauses, but urged the Court to decide the case under the opposition clause precisely because that would cover fewer people than would be covered by the participation clause. Additionally, the test proposed by the Government was whether a reasonable person would understand that the employee has objected to sexual harassment in the workplace. 7. One of the issues addressed by counsel for the Government and counsel for the Respondent was the relationship between this potential protection under the participation clause and the Farragher and Ellerth defense in sexual harassment cases. If the statute as it’s interpreted now encourages employers to prevent and remedy discrimination, particularly sexual harassment, by adopting policies, enforcing them, and investigating allegations of sexual harassment thoroughly, what will happen if we include this investigation under the participation clause? On the one hand, it might discourage employers from doing investigations at all because every person who participates will be a potential plaintiff if later discharged. If employers don’t do the investigation, they will expose themselves to liability on the sexual harassment. In other words, employers are exposed to serious liability either way. On the other hand, if employees aren’t protected in internal investigations, they won’t cooperate, and the investigation won’t be effective to actually discover and prevent or remedy discrimination. The shield remains for the employer, but the purpose of the defense, for employers to internalize the norms of the act and self-enforce, is gutted. Additionally, any kind of enforcement of the act will be undermined because employees will be deterred further from revealing discriminatory conduct to the employer, which may even chill them from asserting their rights or filing charges with the EEOC at all.8. In addition to the participation clause argument, counsel for the Respondent argued that opposition required some kind of attempt to stop the conduct opposed. The person would need to put the employer on notice in an effort to get the conduct to stop before the conduct could be termed “opposition.” That was met with some tough questioning by the justices.9. The discussion then turned to the litigation floodgates with a series of questions by the Justices about the costs of litigation to employers: CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive. JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs. MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs. JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me. JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are. MR. YOUNG: I agree with that, Your Honor. This is very much a policy-driven case. There are some statutory interpretation issues that could drive the analysis, particularly what “opposition” means as a practice, and what “an investigation under this subchapter” includes. But really, what’s at stake are fundamental policies about enforcing Title VII, harnessing informal employer processes to do so, and the role of litigation in enforcement and its cost to businesses.The Court may find Crawford's conduct to satisfy the opposition clause, limit the holding to these facts–where the person reports conduct that he or she experienced which would probably have violated Title VII–and not open any real floodgates. Alternatively, this could go the way of Ledbetter, protecting employers (and the courts) from litigation at the cost of reducing the enforcement of Title VII. And ultimately for me personally, the most worrisome exchange in the argument is the discussion of how costless litigation is for employees and how easy at least Justice Scalia thinks it is to get attorneys to take frivolous Title VII cases, “because if the lawyer has nothing else to do he may as well be doing this.”MOctober 9, 2008 in Employment Common Law | Permalink| Comments (0)| TrackBack (1)Thursday, October 9, 2008Another Immigration Raid This is becoming a familiar refrain. Yesterday, ICE raided a South Carolina poultry processing plan, arresting about 300 apparently undocumented workers. According to BNA's Daily Labor Report (subscription required): ICE agents executedfederal search warrants at House of Raeford's Columbia Farms chickenprocessing plant, ICE said. Agents are searching for evidence relatingto the unauthorized employment of illegal aliens and other crimes aspart of an ongoing, 10-month criminal investigation into the company'semployment practices, ICE said. . . .Kenneth A. Smith, ICEspecial agent in charge of the Office of Investigations in Atlanta,agreed, calling the enforcement action the "latest step in acomprehensive criminal investigation focused on identifying theindividuals involved in allowing unauthorized workers to gainemployment." "ICE targets employersbecause the promise of employment draws illegal workers across ourborders," Smith said. "By holding employers accountable, we arediminishing the magnet and discouraging others from breaking the law." . . . So far, approximately 58workers were released on humanitarian grounds, the agency said. Theseindividuals still will be required to appear before a federalimmigration judge who will determine whether or not they will bedeported, ICE said. Additionally, ICE saidthat any juvenile workers found to be in the country illegally whocannot be released into the custody of an adult will be transferredinto the custody of the Department of Health and Human Services' Officeof Refugee Resettlement, ICE said. ICE agents also willrefer cases to the U.S. attorney's office for criminal prosecution uponidentifying individuals who are in possession of stolen or unauthorizedidentification information, have previously been deported following acriminal felony conviction, or appear to be involved in other criminalactivity, ICE said. The Oct. 7 raid follows criminal charges filed against 12 House of Raeford employees earlier this year, ICE said. In June, arrest warrantswere issued for 11 supervisors at the plant, alleging that the men--whowere all nationals of Mexico--were in the country illegally and wereengaged in aggravated identity theft and making false statements to ICEauthorities, the agency said. . . . In July humanresources manager Elaine Crump was indicted on 20 counts of filingfalse I-9 employment identification forms. Crump is awaiting trial, ICEsaid.Maybe after the election we can get an immigration policy that doesn't give immigrants a wink and a nudge to come work in this country, then throw them in jail and break up their families for doing just that. It should happen right after the pigs stop flying.Hat Tip: Dennis Walsh-JHOctober 9, 2008 in Labor and Employment News | Permalink| Comments (0)| TrackBack (0)St. George Warehouse Memo General Counsel Meisburg has recently issued a memo offering guidance for regional attorneys' application of the St. George Warehouse case (see here for description of the decision). According to the description by BNA's Daily Labor Report (subscription required): The board in St. George Warehouse reaffirmed that an employer attempting to show that the worker failedto mitigate back-pay damages must produce evidence that substantiallyequivalent jobs were available in the relevant geographic area duringthe relevant period, Meisburg said in the memo. However, the board forthe first time "placed on the General Counsel the burden--once the[employer] produces evidence on the first element--to produce competentevidence that the discriminatee took reasonable steps to seek thosejobs," Meisburg said. He explained that the employer "continues to bearthe ultimate burden of proof as to its contention that thediscriminatee failed to mitigate damages by making a reasonable searchfor work" . . . [and] emphasized that St. George Warehouse simply reinforces the current requirements of the NLRB Casehandling Manual "that Board agents should investigate a discriminatee's search for workand, to that end, remain in regular contact with discriminatees andremind them of their need to mitigate and keep records of their search." . . .[Employer's Evidence of Substantially Equivalent Jobs]To prove failure tomitigate, the employer must show that substantially equivalent jobswere available in the relevant geographic area during the relevantperiod, the general counsel said. He found that regional personnelduring the investigation stage of the case should "seek to determinethe specific evidence upon which the [employer] intends to rely," learnwhether the employer intends to call an expert witness, and find outthe data on which the expert intends to rely. If the employerintends to show a lack of diligence in looking for work, regionalpersonnel "should be prepared, where appropriate, to argue that theproffered evidence does not reliably establish either that those jobswere substantially equivalent or that the particular discriminateecould have obtained those jobs," Meisburg said. He explained that"[d]ifferences in specifics such as location, type of work, rate ofpay, and other working conditions may demonstrate that the [employer's]proffered evidence does not establish that the jobs were substantiallyequivalent." In addition, regionalpersonnel must conduct their own investigation regarding theavailability of jobs, including by obtaining data from the LaborDepartment's Bureau of Labor Statistics and interviewing unionofficials and state and local government officials about theavailability of employment for those with similar skills andexperience, the general counsel said. He observed that regionalpersonnel may have to call their own experts to rebut the employer'sexpert testimony.[General Counsel's Showing of Reasonable Steps To Seek Work] Under St. George Warehouse,the general counsel now has the burden of showing that the illegallyfired worker took reasonable steps to seek work, Meisburg said. Heexplained that during the investigation stage of the case, regionalpersonnel should advise alleged discriminatees of their responsibilityto seek interim employment and direct them "to maintain careful notesand records of the entire search for work." Relevant actions "includeregistering with state or private employment services, checkingnewspaper and internet advertisements, visiting employers, and seekingleads from friends and relatives," the general counsel said. He foundthat factors that may limit job opportunities--including age, health,education, job skills, language skills, employment history,disabilities, and access to a car--also must be taken intoconsideration. He pointed out that "a discriminatee is not normallyrequired to move or to accept employment in a lower skilled or lowerwage job."I intentionally left much of the guidance to illustrate how complicated these cases will now be on a routine basis. There was always the possibility of disputes, but as I noted in my original post, things were simplified by the presumption that the wrongdoer bore the burden of any uncertainties. The Board's flipping of that burden in many instances will make things more complicated, more costly to litigate, and create more delay in employees receiving backpay. The Board also needs to be prepared for dueling testimony by economic experts, which it currently does not have to deal with much. Although I have no idea the extent to which ALJs and Board members will have the experience to weigh such testimony, I suspect that many do not, which is going to cause a serious problem because the economics involved are often highly technical and requires a lot of mathematical understanding. The NLRA's ban on the NLRB hiring economic researchers is indicative of the problems that may result. Of course, the Board didn't leave the GC many options--perhaps a new Board will modify the rule after realizing its effects.Hat Tip: Dennis Walsh-JHOctober 8, 2008 in Labor Law | Permalink| Comments (2)| TrackBack (0)Third Circuit hears case on gender stereotyping or sexual orientation discrimination Last Wednesday, October 1, 2008, the Third Circuit Court of Appeals heard arguments Prowel v. Wise Business Forms, a case that has many implications for Title VII. In this case, Brian Prowel, an openly gay man, filed a federal lawsuit against his former employer, Wise Business Forms, Inc., alleging sex discrimination. He argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes in that "his conduct and appearance in many respects were effeminate." He crosses his legs, and swings his foot. He files his nails if one has a snag. He has a high-pitched voice. Co-workers called Mr. Prowel "Rosebud" and "Princess." Someone left a feathered tiara on his workstation along with a a packet of personal lubrication. Graffiti was written about him on the bathroom walls. The U.S. District Judge Terrence F. McVerry dismissed Mr. Prowel's claims, saying that he was not discriminated against because of his sex. These examples of harassment, Judge McVerry found, were all examples of discrimination because of Mr. Prowel's sexual orientation. While the Supreme Court long ago determined in the famous (or infamous now) Price Waterhouse v. Hopkins case in 1989 that gender stereotyping is a subset of sex discrimination protected by by Title VII, sexual orientation is not protected by Title VII.Mr. Prowel argues that making fun of him for being effeminate, calling him "Princess" and "Rosebud," and giving him a tiara all smack of gender stereotyping. Mr. Prowel's attorney, Timothy O'Brien argues that whether the harassment was based on gender stereotyping or sexual orientation is a decision to be made by a jury, not a judge. Mr. O"Brien feels like a jury would do a better job recognizing the complexity of the case and distinguishing between the two. The main issue on appeal is whether anti-gay discrimination rests more on opinion of sexual orientation or gender stereotyping. If the court decides that anti-gay discrimination rests more on the latter, other problems will likely arise.The district court has recognized one of the problems inherent in describing what appears to be anti-gay discrimination as gender stereotyping. First, gender stereotyping claims, when utilized by an openly homosexual plaintiff, can easily present problems for an adjudicator because stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality. In this way, a gender stereotyping claims may be erroneously used to "bootstrap protection for sexual orientation into Title VII." Further, permitting a plaintiff to simply relabel a sexual orientation claim as one for failure to conform to gender stereotypes would evade what the courts have always claimed was the statutory intent of Congress.Second, the district court's decision seems to cause two categorical splits: a split between gender conforming homosexuals and non-gender conforming homosexuals, and a split between openly gay homosexuals and "closet" homosexuals. In both splits, one category may receive protection under Title VII while the other category is left unprotected. The problem is obvious. Taking the facts from the Prowel case, if the 3rd Circuit finds that co-workers calling Mr. Prowel "Princess," "Rosebud" and placing to tiara at his workstation is gender stereotyping, then only those homosexuals who are effeminate or "in the closet" may be protected. This leaves the gender-conforming homosexuals and openly gay homosexuals unprotected from sexual harassment. This becomes a case of "what THEY do know can hurt YOU."On the other hand, women advocacy groups are fearful of the detrimental effects the district court opinion, as it stands, could have on gender equality in the workplace - especially for women who work in non-traditional occupations. They assert that "if the reasoning of the district court in this case is upheld, employers who seek to lock women out of these well-paying fields could evade Title VII liability through the simple expedient of lacing their gender discrimination with enough anti-lesbian slurs." While this fear may be real, it is probably unwarranted. To this date, sexual orientation has not been protected under Title VII., though it is protected in at least 18 states. The district court opinion has maintained the status quo and therefore, it is unlikely that employers will start to use anti-gay epithets to discriminate against women based on gender merely because the district court's opinion stands.I think a better way of handling this and similar cases would be for the court to send the case to the jury with only the evidence that clearly does not fall into behavior related to sexual orientation and let them decide whether the harassment was based on sexual orientation or gender stereotyping. While it is clear that some of the behavior in this case was based on sexual orientation, such as the personal lubricant. The other behavior, such as calling Mr. Prowel "Rosebud," "Princess," leaving the tiara on his work station and possibly the graffiti on the bathroom wall, could have been equally related to either sexual orientation or gender stereotypes and therefore should have gone to the jury. In a close case like this, I think it is better left up to the jury to make the decision in which category they think this belongs. Unfortunately for Mr. Prowel, I predict the 3rd Circuit is going to affirm the district court's decision. Few federal courts have found that a homosexual states a claim for sex discrimination based on gender stereotyping. However, there is hope for Mr. Prowel. In 2001, the 3rd Circuit in Bibby v. Philadelphia Coca Cola Bottling Co., mentioned in dicta that "a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his gender." Perhaps that is all the 3rd Circuit needs to rule in Mr. Prowel's favor. For most thought, It seems like a decision of whether gender stereotyping exists is directly related to whether the harasser knows your sexual orientation or not.ALOctober 8, 2008 in Employment Discrimination | Permalink| Comments (0)| TrackBack (0)Jared The Galleria of Discrimination? Diamonds may be a girls best friend, but perhaps Jared is not? You may know them by Jared The Galleria of Jewelry, Kay Jewelers, or JB Robinson but however you know them they are being sued by EEOC for employment discrimination. Sterling Jewelers, Inc., the largest specialty retail jeweler in this US is being sued by EEOC for allegedly discriminating against female employees in its stores nationwide. This lawsuit, which was filed on September 23, 2008, is alleging systemic discrimination in violation of Title VII.In its suit, the EEOC asserts that Sterling Jewelers pays it female retail sales employees less than male employees performing equal work and denies female employees promotional opportunities for which they are qualified. Sterling Jewelers is alleged to have intentionally discriminated against female employees by maintaining a system for making promotion and compensation decisions that is excessively subjective, and through which Sterling Jewelers has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees.The EEOC is reporting that they received 24,826 charges alleging sex discrimination, which was up 7%, in fiscal year 2007 to the highest level since fiscal year 2002. Spencer H Lewis Jr., the EEOC's New York District Director, stated that, "[i]t should be a 'no-brainer' in the 21st century workplace that women deserve pay and promotional opportunities based on merit, not gender. Employers who fail to grasp and abide by the letter of the law do so at great risk."If it were really a no-brainer, why are sex discrimination claims up 7%? ALOctober 8, 2008 in Labor and Employment News | Permalink| Comments (0)| TrackBack (0)Fashion Valley is Over, Really As predicted, the Fashion Valley case has finally draw to a close. On Monday, the Supreme Court denied cert. on the case, thereby letting stand the California Supreme Court's holding that the state constitution limits a mall owners' ability to exclude union handbilling (see here for BNA's Daily Labor Report's--subscription required--summary of the proceedings).Of course, Fashion Valley will live on as the NLRA will now have a parallel universe in California (a Bizarro Lechmere, if you will). We've already noted some post-Fashion Valley developments, but many more will no doubt come in the future.Hat Tip: Dennis Walsh-JHOctober 8, 2008 in Labor Law | Permalink| Comments (0)| TrackBack (0)Testing Uncomfortable Topics: Comments Requested In addition to my labor/employment courses, I also teach Civil Procedure. This semester, I gave students a take-home (one week) collaborative mid-term exam consisting of a single question raising four civil procedure issues. The question concerned a school board's proposal to redraw the boundary lines of a school district's high schools along existing racial housing patterns, creating a segregated school district and putting most minority students in a "new" school building built from a converted warehouse. A group of citizens brings a class action, based on the equal protection clause, against the school district to enjoin the new boundary lines.One element of an injunction is that the plaintiff must show a "likelihood of success on the merits." The exam question provided students with the test for an equal protection violation and with facts that would support a finding of intentional discrimination. Those facts included some offensive comments made by school board members contemporaneous with their vote for the new boundaries. The most offensive was the following: "a Board Member ... was overheard saying that 'a warehouse is just what those people need – complete with bars on the windows and razor wire around the perimeter.'" I deliberately made these comments offensive, because I wanted them to support a finding of discriminatory intent.Some of my students have complained about the question, and they raise good points. A person who has personally experienced or witnessed traumatic events is likely to react much differently to an exam question about those traumatic events than someone who has not. As one person pointed out, an exam question about rape might understandably cause a student who herself had been raped to "shut down" and have difficulty focusing on the legal issues raised by the question. For me, that raises the question of whether an exam question such as mine might have a "disparate impact" on minority students, or might otherwise be sufficiently offensive that it should not be asked regardless of its impact. This certainly was not my intent. I have used civil rights problems for my Civil Procedure mid-term ever since I began teaching Civil Procedure, because I want to show that civil litigation is not just about companies and people suing each other for money, but that it can be a powerful agent for social change. And if it's off-limits to include, in exam questions, facts that reasonable people will find offensive, then it will be very difficult for me to write future exam questions for my employment discrimination course.I'd appreciate comments -- especially critical ones.rb October 8, 2008 in Teaching | Permalink| Comments (5)| TrackBack (0)Defense of the Two-Member NLRB Last week, the NLRB filed the first appellate brief defending its authority to issue cases decided by only two members (see here and here for previous posts on the topic). In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the employer directly challenged the NLRB's authority to issue two-member decisions. The Board's brief defends that authority--as described by its summary of argument:Section 3(b) of the Act provides that the Board can delegate its powers to a group of three members; that vacancies do not impair the authority of remaining Board members to exercise the powers of the Board; and that two members shall constitute a quorum of any three-member Board group established pursuant to the Board’s delegation authority. Read in combination, the plain meaning of those delegation, vacancy, and quorum provisions authorize the Board’s action in this case. . . .The legislative history supports that construction of Section 3(b) and confirms that Congress intended for the Board to have the option of adjudicating cases with a two-member quorum. Under the 1935 Wagner Act, which provided that a vacancy on the original three-member Board would not impair the quorum of the two remaining members from exercising all of the powers of the Board, the Board frequently decided cases with a quorum of two members when one of the three seats was not filled. In amending the NLRA in 1947 to expand the Board’s size from three to five members and to authorize the Board to delegate its powers to three-member groups, Congress acted solely to enable the Board to increase its casehandling capacity, and not because it believed more members were needed to determine federal labor policy. The 1947 Congress made no change to the 1935 Act’s vacancy provision. In practical terms, the 1947 amendment authorized the Board’s new three-member groups, who had been delegated the Board’s adjudicatory authority, to function as the original Board had done, i.e., to issue decisions and orders with only two of three seats filled.Contrary to the Company’s contentions, the Board’s December 28, 2007 delegation of powers to the three-member Board group was not improper even though it was made with the expectation that the Board’s composition would soon be reduced to two members; courts have upheld similarly-timed actions under other statutes, and considered them prudent. Nor did the Board’s delegation of powers terminate with the departure of the third member of the three-member group. Under established common law principles, institutional delegations of power are not affected by changes in personnel; delegated powers are held not individually, but collectively among the members of a public board or commission. Moreover, the Company incorrectly relies on the statute governing the assignment of cases to federal appellate panels, which requires that each case be assigned to a three-judge panel. That statute does not apply to the Board, which is governed by the broader delegation authority set forth in Section 3(b).Also mistaken is the Company’s argument that the Board cannot issue decisions and orders with less than three sitting members. Decisionmaking by a minority of the Board’s total membership is inherent in the statutory design that the 1947 Congress created for the Board. Indeed, this and other courts have upheld minority decisionmaking by other federal agencies, when they have similarly suffered multiple vacancies that leave the agency with a minority of their full complement of members. The Company’s argument moreover constitutes a misdirected attack on Congress’ determination that two members constitute a Board quorum under the present circumstances and provide an adequate safeguard against the potential abuses the Company posits.The Board’s current exercise of its Section 3(b) authority to issue decisions and orders with a two-member Board quorum is also not undermined by the Board’s caution in previously choosing, under different circumstances, not to exercise that authority. The Board’s decision to exercise that authority now, when faced with an extended period of three vacancies potentially covering more than a year, not only is consistent with the view expressed in a 2003 opinion of the United States Department of Justice’s Office of Legal Counsel, but has enabled the Board to continue to promote the Act’s purpose of avoiding industrial strife.The brief makes some reasonable arguments, but as I stated in an earlier post, I'm still somewhat doubtful whether the authority really exists. However, I'm also doubtful that the D.C. Circuit will throw out a big set of cases on this issue. Other cases are in the pipeline, so stay tuned.-JHOctober 8, 2008 in Labor Law | Permalink| Comments (0)| TrackBack (0)Wednesday, October 8, 2008Analysis of Oral Argument Transcript in ERISA DuPont Case The Supreme Court heard oral argument in the case of Kennedy v. Plan Administrator for DuPont Savings and Investment Plan this afternoon. The case concerns whether a divorcing spouse may waive her rights to spousal pensions benefits without going through the qualified domestic relations order (QDRO) process set out in the exceptions to ERISA's anti-alienation rule.What follows is analysis of that oral argument transcript based on my reading of the oral argument transcript in DuPont:1. Counsel for Kennedy argues that the Fifth Circuit erred in holding that the only way a divorcing spouse can waive the right to pension benefits is by executing a QDRO. In other words, counsel argues that the divorcing spouse's voluntary and knowing waiver should be enough even without filling out a formal QDRO without all the bells and whistles.2. There is also a separate argument that appears to go against the petititoner - and pointed out by Justice Kennedy - that there were means for participants and beneficiaries to make a change, and they weren't followed here.3. Not a good sign that Justice Alito does not seem to be buying the voluntary waiver argument: "JUSTICE ALITO: I'm not sure I'm getting this argument. There's not -- the argument isn't that there was a QDRO; the argument was that he could have disposed of this through a QDRO. And he could have done that, and he could have named an alternate payee in the QDRO. He could have named his daughter, for example."4. Counsel for Kennedy responds: "the way pension planners understand it is that you use a QDRO for a transfer of benefits, not for a bare waiver. And that's where the U.S. Solicitor General supports our position and reads this and says that's consistent with Treasury's own, now harmonized with Labor's, interpretation of the anti-alienation clause."5. Helpful as always, Justice Scalia provides Counsel with his argument: "JUSTICE SCALIA: And your point is this has been no assignment or agency, so we don't need the QDRO exception. There is nothing in here that violates anything in the statute. MR. FURLOW: I completely agree with that analysis." 6. Both petitioner and the solicitor general supporting the pettitioner spend some time considering the argument that the plan documents control and allow the change in beneficiarty designation without a QDRO. The Court is reluctant to hear that argument because it has not been fully briefed. In addition, the solicitor general does not agree with the petitioner that there should be a formulation of a Federal common law rule on the matter.7. Respondents also believe the plan documents question is rightly before the Court and think the case could be decided as an alternative on this ground even though the court did not grant cert on it, but the parties and amici brief it.8. As to the QDRO issue, respondent DuPont takes the view that, "the rule of law that governs this case is that pension plan administrators must pay benefits in accordance with a qualified domestic relations order, and they may not pay benefits in accordance with a nonqualified order."9. Respondent says whether it is a waiver of the benefits and the benefits go anywhere is irrelevant. Instead, "It doesn't say anything about where it goes. It just says if it's a QDRO, you pay it, and if it's not a QDRO, you don't pay it." Counsel explains nicely the policy behind this straightforward rule: "It didn't want the plan administrators to have to try and divine the intention of the parties, didn't want the plan administrators to have to hold a factfinding hearing before it could pay plan benefits. That is completely foreign to the efficient and simple operation that Congress had in mind."This is again one of these complicated ERISA cases concerning anti-alienation rules, beneficiary designation after marital dissolution, and the role waiver may or may not play. I have to say this is one of the best explanation of the issues that I have seen from a counsel - in this case, the respondent counsel. Usually, it appears the Justices are one step ahead in their questioning and are just validating their views. In this case, on the other hand, the Justices were really learning about a complex area of ERISA law from the skilled practitioner.As such, I think that this is a case that might turn on the competence of counsel. I foresee a 9-0 victory for the respondent and the view that benefits may only be paid in accordance with a qualified domestic relations order and the waiver in this case by the former spouse did not meet that standard.PSOctober 8, 2008 in Pension and Benefits | Permalink| Comments (0)| TrackBack (1)Corporate America's Employment Law Concerns The Association of Corporate Counsel and the Jackson Lewis law firm have released the results of their annual In-House Counsel Workplace survey. According to the press release, employment issues are a major concern to companies. And among those issues are the changes employers see coming in the next few years. A majority of respondents believed that who becomes our next president will affect the labor and employment laws, but a sizeable minority did not expect that to have an impact.Among the potential changes cited by respondents were the possibility of increased costs for health benefits and mandatory paid sick days; a resurgence of workplace regulation generally; and passage of the Employee Free Choice Act, which would eliminate secret ballots in union organizing drives and strengthen labor's hand in negotiations over union representation.These things aside, the survey tracked what day-to-day challenges corporate counsel faced, On day-to-day challenges, corporate counsel cited workplace discrimination as the most time-consuming employment issue, followed by family and medical leave, wages and hours, and employee benefits. The most demanding issue for corporate legal department was cited as harassment/discrimination prevention and compliance, followed by Family and Medical Leave Act compliance and wage and hour compliance. Compliance with the Health Insurance Portability and Accountability Act and Sarbanes-Oxley rounded out the top five.And on litigation in particular,nearly three-quarters of corporate counsel surveyed said their companies had faced employment-related litigation over the past three years, with discrimination complaints being the most frequent. According to the survey, 73.5 percent of the corporate counsel said their companies had been a defendant in employment-related litigation over the last three years. More than half of those, or 52.6 percent, said they had faced discrimination complaints, with wage and hour complaints being the second most frequent at 27.0 percent.As to the number of discrimination complaints, 42.4 percent of respondents said they had remained steady over the past three years, while 27.2 percent had seen an increase and 11.1 percent had seen a decrease.E-discovery rules, too, have complicated matters by changing the way some companies handle electronic records and data and by increasing the expense and difficulty of litigation management for some.At the same time, over half of the respondents reported that they did not anticipate any reductions in force in the near future and a large majority did not anticipate increased outsourcing of jobs.MMOctober 7, 2008 in Polls | Permalink| Comments (0)| TrackBack (0)Hendricks on Gender Identity Discrimination Jennifer Hendricks (Tennessee) has just posted on SSRN her essay (forthcoming Northwestern U.L.R. Colloq.) Instead of ENDA, a Course Correction for Title VII. Here's the abstract:In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical consequences for the relief available to plaintiffs. I agree. ENDA in its current form is too narrow because it excludes transgender discrimination. Amending Title VII to replace "sex" with "gender", as Jenifer suggests, or simply re-interpreting "sex" to include transgender and sex stereotyping, as Katie Koch and I have suggested (see Transgender Employment Discrimination), would be a better alternative to ENDA.rbOctober 7, 2008 | Permalink| Comments (0)| TrackBack (0)Monopoli on Lessons from Ledbetter Paula Monopoli (Maryland) has posted on SSRN her recent piece in the Journal of College and University Law: In a Different Voice: Lessons from Ledbetter.Here is the abstract:Women in academia - among some of the best educated women in America - suffer from the same salary inequities as other women in society. The American Association of University Professors (AAUP) has found that women faculty "earn lower salaries on average even when they hold the same rank as men." Thus, the recent United States Supreme Court decision on pay equity, Ledbetter v. Goodyear Tire & Rubber Company, holds a number of important lessons for women in academia. This article explores the intersection of these findings with the Court's opinion in Ledbetter. The article examines the revealing rhetorical choices in the majority opinion, written by one of the Court's newest members, Justice Samuel Alito, and the dissent, written by the Court's only remaining woman, Justice Ruth Bader Ginsburg. It explores the question of whether former Justice O'Connor might have come to a different conclusion had she still been a member of the Court. It also explores existing norms in academia for setting salaries, negotiating for increased pay, and determining what factors constitute merit. In considering these norms, it evaluates how academic recruiting practices like competing offers and market forces have a disproportionately negative effect on women's pay. Finally, it explores how academia can effectuate voluntary change in such norms and concludes that through such normative change women in academia may fare better in terms of pay equity in the future. It is remarkable that the gender pay discrimination we see in our society is not just relegated to the Lily Ledbetter's of the world, but as this article points out, it occurs to the best educated women in America. It is a national shame and one that I hope Congress and the new President make a priority in the next Congress.I am hopeful that Ledbetter has seen its last days.PSOctober 7, 2008 in Scholarship | Permalink| Comments (0)| TrackBack (0)Recently Published Scholarship Family Responsibilities DiscriminationHastings Law JournalVolume 59, No.6, June 2008..Articles:Catherine Albiston, Kathryn Burkett Dickson, Charlotte Fishman, & Leslie F. Levy, Ten Lessons For Practitioners About Family Responsibilities Discrimination and Stereotyping Evidence, p. 1285.Joan C. Williams & Stephanie Bornstein, The Evolution of "FReD": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, p. 1311.Stephen Benard, In Paik, & Shelley J. Correll, Cognitive Bias and the Motherhood Penalty, p. 1359.David L. Faigman, Nilanjana Dasgupta, & Cecilia L. Ridgeway, A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, p. 1389.Tristin K. Green & Alexandra Kalev, Discrimination-Reducing Measures at the Relational Level, p. 1435.Noreen Farrell & Genevieve Guertin, Old Problem, New Tactic: Making the Case for Legislation to Combat Employment Discrimination Based on Family Caregiver Status, p. 1463.Mary C. Still, Family Responsibilities Discrimination and the New Institutionalism: The Interactive Process Through Which Legal and Social Factors Produce Institutional Change, p. 1491.rbOctober 7, 2008 | Permalink| Comments (0)| TrackBack (0)Pawlenko on Captive Audience MeetingsRecently Published Scholarship ArticlesMegan E. Mowrey, Discriminatory Pay and Title VII: Filing a Timely Claim, 41 John Marshall L. Rev. 325 (2008).Franita Tolson (photo above), The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, 33 Delaware J. Corp. L. 347 (2008).Student ScholarshipAmy Kathryn Brown, Baghdad Bound: Forced Labor of Third-Country Nationals in Iraq, 60 Rutgers L. Rev. 737 (2008).rbSeptember 29, 2008 in Scholarship | Permalink| Comments (0)| TrackBack (0)Sunday, September 28, 2008NMB Election Rules BNA's Daily Labor Report (subscription required) reported on a House hearing last week looking into the election procedures of the National Mediation Board. The focus was on a recent NMB decision involving Delta Flight Attendants' unsuccessful attempt to unionize. According to the DLR:Rep. Tim Bishop(D-N.Y.) said that NMB's policies seem intended to thwart union effortsto organize workers in the airline and railroad industries. Bishop said that itspolicy of allowing carriers to withhold the addresses of employeeseligible to vote in a representation election from unions while mailing"propaganda" to the workers is "profoundly unfair." In response to thecriticism, NMB Chairman Read Van de Water defended the board'sdecisions and policies, some of which have been practiced since 1935,as fair and unbiased. "The Board and the[Railway Labor] Act have functioned successfully for over 70 years,"Van de Water said. Both the airline and railroad industries are highlyorganized, with 60 percent of airline employees and 84 percent ofrailroad workers represented by unions, she said. . . . NMB since 1935 hasrequired a union to receive a majority among all workers eligible tovote in a representation election, not just a majority of those whocast ballots, as in elections in other industries governed by theNational Labor Relations Act or elections for Congress and other publicoffice. Under repeatedquestioning on the rule requiring a majority vote of all eligibleworkers, Van de Water said that unlike the NLRA, the RLA does notprovide a process for workers to decertify a union as their collectivebargaining representative.Several NMB decisions during the Delta Air Lines election that were criticized by AFA, raise serious concerns, [Rep. James Oberstar (D-Minn.)] said. . . . Most importantly, NMBallowed more than 1,700 Delta flight attendants who were on furlough orintended to retire from the carrier shortly after the election toremain eligible to vote, he said. A total of 13,380Delta flight attendants were eligible to vote in the five-weekelection, which ended May 28, but only about 40 percent, or fewer than5,400 of them cast ballots, with 99 percent in favor of AFArepresentation.I understand that the NMB essentially has a different take than the NLRA on both the entry and exit of a union. However, something doesn't seem right when 99% of voting employees express a desire for a union, but that's not enough. Especially with such a large unit, it seems unreasonable to insist on a majority of eligible voters, rather than simply a majority vote rule (especially when furloughed and near-retired employees are included). Moreover, as Dennis Walsh noted when flagging this story, the "pro-democracy" statements by EFCA opponents seem to be lacking here. It's obviously not an identical situation, but I'm guessing that the 99% of employees who voted for the union aren't feeling like the process was particularly democratic.-JH September 28, 2008 in Labor Law | Permalink| Comments (0)| TrackBack (0)Union-Immigrant Conflict NPR has a recent story on another major immigration raid. This time the raid, in Laurel, Miss., directly involves a local union. According to the story, the employer, Howard Industries, had been involved in tense negotiations with the union representing a significant number of its workers. A major part of the dispute was the union's objections to the company's use of undocumented workers, despite what the union asserted was a labor market that had a surplus of American workers ready to fill the jobs. Soon after talks broke down, the ICE raided the plant and arrested hundreds of the undocumented workers. There's no hard evidence that the union called the ICE, but reports of union members watching the raid and applauding seems a pretty strong indication that that's what happened.I understand the frustration of union members with the use of undocumented workers, but some of the ugliness described in the story was over the line. It also shows that, although the national union leaders have turned a corner of their view of immigrant labor, that hasn't necessarily filtered down everywhere.Hat Tip: Dennis Walsh-JHSeptember 28, 2008 in Labor and Employment News | Permalink| Comments (0)| TrackBack (0)Cimini on Undocumented Workers in Employment Litigation Christine Cimini (Denver) has just posted on SSRN her article (forthcoming Stanford) Ask Don't Tell: Ethical Issues Surrounding Undocumented Workers' Status in Employment Litigation. Here's the abstract:The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status.This article explores lawyers' increasingly complex ethical obligations with regard to a client's immigration status in the context of employment litigation. The complexity regarding the nature and scope of a lawyer's obligation is due, in large part, to two recent developments. The first is the United States Supreme Court's 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board, in which the Court addressed the scope of lawful relief due to an injured undocumented worker and ultimately left open the question of relevancy of immigration status in general civil litigation. The second factor creating this complexity relates to existing legislation that criminalizes various acts by undocumented immigrants as well as the ongoing legislative debates regarding immigration reform which have included proposals to criminalize the mere status of undocumented immigrants.This article addresses both of these developments in the context of lawyers' ethical obligations and analyzes several questions. First, in light of ethical prohibitions on lawyers assisting in conduct that is criminal or fraudulent, are there any ethical limitations upon a lawyer's ability to represent undocumented workers in employment litigation? Second, once representing an undocumented worker, how do lawyers balance their duty of confidentiality against disclosure obligations? And, finally, despite this article's conclusion that the ethical rules do not mandate disclosure of a client's immigration status, this article explores the strategy of disclosure and whether the decision to disclose belongs to the lawyer or the client. In light of the potentially catastrophic consequences of an improperly made disclosure, lawyers need to be mindful of the special ethical obligations that arise when representing undocumented workers in employment related civil litigation. The article proposes a framework and analysis to guide lawyers through these difficult ethical quandaries. rbSeptember 28, 2008 in Scholarship | Permalink| Comments (1)| TrackBack (0)Federal Court: The Plaintiff-Employee's Worst Enemy? If you represent the employee, you will go hungry!" This joke, or some variation of it, has been heard time and time again. But as often realized, sometimes jokes euphemistically reflect reality.This past week, the U.S. Senate Judiciary Committee heard "extensive" testimony on the increasing struggles employees face in achieving workplace equality. Federal courts have increasingly refused to hear employment discrimination claims. According to Senator Patrick Leahy (D-Vt), statistics show that the Federal Courts of Appeal are five times more likely to overturn an employee's favorable trial verdict against her employer than to overturn a verdict in favor of the employer. The Ledbetter v. Goodyear Tire & Rubber Co. decision is an example of this misfortune. At trial, Lilly Ledbetter, who discovered that she had been compensated substantially less than her male co-workers, successfully brought suit against Goodyear. A jury found that Goodyear owed her over $200,000 in pay. But Ms. Ledbetter's victory was short-lived. The U.S. Supreme Court overturned the verdict on appeal.Additionally, a new study released by the American Constitution Society, which I mentioned in a previous post, revealed that the hostility to plaintiffs' employment discrimination claims has resulted in "an absolute drop in employment discrimination cases of 37 percent from fiscal years 1999-2007." Is it a coincidence that between 1999-2007 the economy began to weaken? Maybe this is just a case of what is "good for the employee is not good for a weakened economy." And when faced with two countervailing interests, one has to give to the benefit of the other. If this is so, then the federal courts will continue to be "out of order" for aggrieved employees for some time to come, or at least until the economy shapes up. Perhaps what we need is for Congress to continue to amend the anti-discrimination statutes to correct erroneous court decisions? AL September 28, 2008 in Labor and Employment News | Permalink| Comments (0)| TrackBack (0)Sunday, September 28, 2008SSRN Top-10 List of Recent Employment & Labor Downloads Richard L. Kaplan, A Guide to Starting Social Security Benefits (1118).Marcos Pompeu Pareto, The Health Care Crisis in the United States: The Issues and Proposed Solutions by the 2008 Presidential Candidates (157).Robert Novy-Marx & Joshua D. Raugh, The Intergenerational Transfer of Public Pension Promises (135).Kenneth M. Casebeer, At-Will Employment (87).Orly Lobel (photo above), Intellectual Property and Restrictive Covenants (79).Matthew T. Bodie, Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor and Private Equity (76).Jonah B. Gelbach, Jonathan Klick, & Lesley Wexler, Passive Discrimination: When Does It Make Sense to Pay Too Little? (74).Robert Flannigan, Fiduciary Mechanics (71).Jared D. Harris, What's Wrong with Executive Compensation? (62).Dwight Steward & Stephanie Botello, Back Pay and Front Pay Calculations in Employment Termination Cases: Accounting for Re-Employment and Mitigation Efforts (60).rbSeptember 28, 2008 in Scholarship | Permalink| Comments (0)| TrackBack (0)Health Insurance Costs Rise . . . Again The Kaiser Family Foundation's Employer Health Benefits 2008 Annual Survey finds:Premiums for employer-sponsored health insurance rose to $12,680annually for family coverage this year – with employees on averagepaying $3,354 out of their paychecks to cover their share of the cost –and the scope of that coverage has changed, with many more workers nowenrolled in high-deductible plans, according to the 2008 EmployerHealth Benefits Survey released today by the Kaiser Family Foundationand the Health Research & Educational Trust (HRET). Key findingsfrom the benchmark annual survey of small and large employers were alsopublished today as a Web Exclusive in the journal Health Affairs.Premiums rose a modest 5 percent this year, but they have more thandoubled since 1999 when total family premiums stood at $5,791 (of whichworkers paid $1,543). During the same nine-year period, workers’ wagesincreased 34 percent and general inflation rose 29 percent.This year many workers are also facing higher deductibles in theirplans, including a growing number with general plan deductibles of atleast $1,000 – 18 percent of all covered workers in 2008, up from 12percent last year. This is partly, but not entirely, driven by growthin consumer-directed plans such as those that qualify for atax-preferred Health Savings Account.Hat tip: Carol Furnish.rbSeptember 27, 2008 in Pension and Benefits | Permalink| Comments (0)| TrackBack (0)Blog Sponsor       View Recent Posts from Network BlogsNews Readers & FeedsFeedBurner Subscription Service Enter your Email:Powered by FeedBlitzSearch This BlogArchivesRecent PostsSSRN Top-10 List of Recent Employment & Labor DownloadsPossible Settlement in UAW-Foxwoods Dispute?Connecticut Strikes Down Statutory Same Sex Marriage BanHarkavy on the Supreme Court's 2007 TermRace, Unions, and the Presidential ElectionAnalysis of Oral Argument Transcript in Crawford Retaliation CaseAnother Immigration RaidSt. George Warehouse MemoThird Circuit hears case on gender stereotyping or sexual orientation discriminationJared The Galleria of Discrimination?Topical ArchiveAbout This BlogAgenda 2009ArbitrationBeltway DevelopmentsBook ClubCommentaryConferences & ColloquiaDisabilityEmployment Common LawEmployment DiscriminationFaculty MovesFaculty NewsFaculty PresentationsGovernment ReportsInternational & Comparative L.E.L.Labor and Employment NewsLabor LawLabor/Employment HistoryNewsPension and BenefitsPollsPublic Employment LawScholarshipTeachingUnion NewsWage & HourWorklife IssuesWorkplace SafetyWorkplace TrendsThe ArchivesWeekly ArchiveOctober 5, 2008 - October 11, 2008September 28, 2008 - October 4, 2008September 21, 2008 - September 27, 2008September 14, 2008 - September 20, 2008September 7, 2008 - September 13, 2008August 31, 2008 - September 6, 2008August 24, 2008 - August 30, 2008August 17, 2008 - August 23, 2008August 10, 2008 - August 16, 2008August 3, 2008 - August 9, 2008The Archives |
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