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Archive for November, 2013

Bagenstos on Employment Law and Social Equality

Wednesday, November 13th, 2013

Paul SecundaSam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.

Here is the abstract:

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.

Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.

This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam’s social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.

An important new contribution to employment law theory that should be on the top of any workplace prof’s reading list.

This article was originally printed on Workplace Prof Blog on November 6, 2013.  Reprinted with permission.

About the Author: Paul Secunda is a professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

General Motors To Offer Benefits To All Its Married Workers

Saturday, November 9th, 2013

Laura ClawsonGeneral Motors is basically following the Obama administration’s lead and extending marriage benefits to all of its workers in legal same-sex marriages, even those who live in states without marriage equality:

“This decision is in line with GM’s efforts to find, keep and grow the world’s best talent and to offer our employees policies and benefits that are competitive with many of the largest and best-managed industrial companies in the U.S.,” said GM’s Chief Diversity Officer Ken Barrett in a statement sent to The Huffington Post.The changes will include pension plans, savings plans and health care plans for legally married same-sex couples.

To qualify, couples do have to have been married in one of the 14 and soon to be 15 states that have instituted marriage equality, meaning some couples will have to travel significant distances to get married. On the other hand, the cost of the trip will be offset by the benefits GM is now offering. The move is especially significant given that GM’s plants are overwhelmingly located in states like Ohio, Michigan, and Indiana that have explicitly banned same-sex marriage.

This article was originally printed on Daily Kos Labor on November 6, 2013.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at Daily Kos.

ENDA Passes in the Senate

Friday, November 8th, 2013

Kenneth-Quinnell_smallThe Employment Non-Discrimination Act (ENDA) passed the Senate today, with 64 senators voting in favor. ENDA was first introduced 20 years ago, and this is the first time it has passed the Senate. Jeff Merkley (D-Ore.) proposed the version that advanced Thursday. Its prospects are more unclear in the House, where observers such as Senate Majority Leader Harry Reid (D-Nev.) think there are enough votes to pass the legislation if Speaker John Boehner (R-Ohio) were to allow it to come to a vote. He has expressed opposition to the bill, so it may not be brought up.

ENDA would make it illegal for employers to discriminate against workers based on their sexual orientation or gender identity. Currently, 29 states allow workers to be fired for being gay and 33 allow workers to be fired for being transgender.

Every Democrat and Independent member of the Senate voted yes on the vote. They were joined by 10 Republicans: Kelly Ayotte (R-N.H.), Susan Collins (R-Maine), Jeff Flake (R-Ariz.), Orrin Hatch (R-Utah), Dean Heller (R-Nev.), Mark Kirk (R-Ill.), John McCain (R-Ariz.), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio) and Pat Toomey (R-Pa.).

This article was originally printed on AFL-CIO on November 7, 2013.  Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

Workers Battle With Grocery Chains Over Obamacare Implementation

Thursday, November 7th, 2013

Bruce VailUnions representing about 30,000 grocery workers in the Puget Sound region claimed a victory last week in a labor contract fight that centered on the implementation of Obamacare in the area’s biggest supermarket chains.

Western Washington state locals of the United Food & Commercial Workers (UFCW) and theTeamsters have been bargaining for months with representatives from Kroger, Safeway and Albertsons, all among the largest supermarket chains in the country. In addition to the elimination of health insurance coverage for 8,000 part-time workers, the initial demands from the grocery retailers included extended wage freezes and selective elimination of overtime pay, according to Seattle-based UFCW Local 21. The workers were within hours of beginning a strike before a last-minute deal was reached on October 21.

“I started working in the grocery business over 40 years ago. The proposals we saw this time from employers were some of the worst I’ve ever seen. They tried to turn us into Wal-Mart. They did not succeed,” commented Local 21 President Dave Schmitz in a formal statement  issued at the end of the ratification vote October 25.

Though union representatives like Schmitz are declaring the deal a victory, in reality, the ratification is only a partial success for workers. In Seattle, part-timers were not cut from insurance eligibility, as Kroger and the other chains had demanded, and no new healthcare costs were imposed, says spokesman Tom Geiger. But contract gains on wages were “modest,” Local 21 says, and other negotiating achievements were limited to beating back demands for sweeping concessions. For their part, the grocers maintained that the deal preserved “good wages, secure pensions and access to quality, affordable healthcare for [their] employees.”

Beginning Jan. 1, 2014, Puget Sound grocery workers will earn wages ranging from $9.42 an hour for newly hired checkout clerks to $19.50 for the highest-paid meat-cutters and other experienced food specialists, Geiger says. In keeping with a historical pattern in the area, this hourly rate for lowest-paid workers is 10 cents more than the state’s minimum wage (Washington currently has the highest minimum wage in the country at $9.19 and hour with a scheduled rise to $9.32 at the beginning of 2014). Rather than a general wage increase in the contract’s first year, each union member will receive a bonus payment based on the number of hours they worked over the last year. In the second and third years of the three-year contract, most union members will get a straight wage increase of 25 cents an hour each year.

But other potential improvements in wages or other benefits are being sacrificed, at least in part, in exchange for companies footing the rising bill of the existing health plan, the union reports. The grocery chains currently pay $4.38 for each hour worked by a union member into the health fund, with that figure rising to $4.86 over the life of the contract. That increase is expected to pay the costs of maintaining the health insurance plan at its current level of benefits for the next three years. Local 21 and UFCW declined to comment further on contract specifics, though Schmitz’s statement acknowledged that the unions “did not get everything they wanted.”

Because the Affordable Care Act requires many companies to pay more for employees’ healthcare, grocery worker unions across the country are facing stiff concessionary demands as their employers make the transition. Early this year, New England UFCW locals reached an uncomfortable compromise with the large Stop & Shop grocery chain that was similar in some ways to the Seattle agreement. In that case, UFCW agreed to eliminate healthcare eligibility for some part-timers, but only on the condition that the supermarket company provide financial and legal assistance in obtaining similar healthcare coverage from other sources for the dislocated workers. And similar contract struggles still under way in New YorkCincinnati, Baltimore, andWashington, D.C. show that union leaders nationwide are facing unusually heavy pressure as grocery chain corporations frequently try to cut their own costs at the expense of healthcare for employees.

In an October 28 message, Tony Speelman, lead negotiator for New York’s UFCW Local 1500, acknowledged that Obamacare “has presented unprecedented challenges” to workers and corporations alike. However, he said, Local 1500, which is now in negotiation for a new contract with Stop & Shop, “came to the bargaining table in good faith understanding that we would have to make changes to our health fund to be compliant under the legal requirements of [the Affordable Care Act].”

And, as he points out, there’s no reason for companies to take the law’s passage as an opportunity to cut workers’ benefits. “Stop & Shop seems to think [Obamacare] is an opportunity to achieve three goals: increase their profits, pick their employees’ pockets and undermine the union contract. That type of irresponsible bargaining will only lead to three conclusions: a work stoppage, unnecessary inconvenience for their customers and devastating economic damage to hundreds of New York communities.” In general, he continued, Obamacare “was not passed with the intent of eliminating an employer’s responsibility to provide affordable and comprehensive healthcare to its employees.”

This article was originally printed on Working In These Times on November 6, 2o13.  Reprinted with permission.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

"Something Good, You Always Have to Have a Little Patience"

Wednesday, November 6th, 2013

seiu-org-logoCecelia Fontenot works part time as an accountant for a trucking company in Houston Texas. She was laid off from her current job back in 2008, and has been without health insurance ever since. After a brief retirement, she had to return to the workforce because her widow’s pension wasn’t enough to cover her medical expenses.

But Fontenot’s current job doesn’t provide her with health insurance, and recently she had to stop buying a drug for her diabetes because she couldn’t afford the $300 per month.

Like many people, website problems prevented Fontenot from enrolling in the healthcare exchanges on the first day. But that didn’t stop her. “Something good, you always have to have a little patience,” she says.

Activists from the Texas Organizing Project–an organization affiliated with SEIU Texas and the Fight for a Fair Economy–encouraged her to sign up for health coverage through the telephone call center of the federal marketplace.

Fontenot is now looking forward to Jan. 1 when the health care kicks in for new enrollees in the exchanges. Several times Cecilia hasn’t been able to afford the second mammogram that her doctors recommend after finding a lump. She has been getting by with prayers, but with insurance she’d be able to get that second mammogram.

She has been telling her friends and neighbors without health insurance to check out their options available under the new law. “Do not be afraid,” Fontenot says. “Go on and sign up. Ask question, get answers, and get covered.”

This article was originally printed on SEIU on November 1, 2013.  Reprinted with permission.

Author: Service Employees International Union

Restaurant (?!) Thinks It's Important to Take Away Customer's Legal Rights on Its Website

Monday, November 4th, 2013

 

PaulBlandWeb-172So how weird is this?  The Daily Grill, a very fancy and pricey steak house, encourages people to buy gift cards and make reservations on line.  (O.k., nothing weird yet, I admit.)  BUT, on their website is a bunch of super dull prose under the heading “Legal Notices.”  (For steak?)  And, as with so many other corporations, the Legal Notices include a provision for “Resolution of Disputes.”  The usual – the consumer has to arbitrate with a company picked by the corporation, the arbitration clause shortens the statute of limitations to a year (was THAT really necessary?), imposes a secrecy (“confidentiality”) provision, and it bans consumers from bringing class actions.
A restaurant with a Forced Arbitration clause.  What’s next?   If fancy steak houses want to strip their customers of their constitutional rights, will street vendors selling hot dogs and egg rolls be next?  Will a bus driver hand me a card saying “by occupying a seat, you consent that any dispute we may have will be subject to forced arbitration”?  Is there any ending point to corporations feeling empowered and entitled to insist upon taking away peoples’ rights?
It’s a particular creepy notion, in that I doubt that many of us think “well, it’s a steak house, so I better lawyer up.”  What in Pluto’s realm are these guys worried about?  Class actions?  Is there some history at the Daily Grill of them wiping out giant office parties with mass food poisoning?  Have they gotten in trouble in the past for misrepresenting something on the menu?  (Maybe the 16 oz. New York Strip is really 14 ounces?)  As my kid would say, “what NOW?”
One particularly ugly part of this provision – The Daily Grill is saying that just by LOOKING at its website, you’ve supposedly “agreed” to give up basic constitutional rights such as the right to trial by jury.  You don’t sign anything, you don’t say “I agree to the terms and conditions.”  You just look at this, and they think that means they can infer consent.  If Corporate America can define “consent” and “agreement” to be inferred from silence from looking at something, then consent has become a truly mongrelized, meaningless notion.
On the one hand, this may just seem like a ridiculous provision that no one should worry about.  But another way of looking at it is how Corporate America, emboldened by a string of arbitration-loving decisions from the five member conservative majority of the U.S. Supreme Court, has been racing to make a basic rule of operation that they don’t want to be part of the American legal system.
They don’t want to be accountable if they do anything to hurt you.
After reading this, I have a new suggested motto for The Daily Grill:  “If we accidentally kill you with food poisoning after you reserved your table on-line, we’re going to try to rig the system against your family and keep it all quiet.”  Who wants to eat at a restaurant with THAT motto?

This article was originally printed on Public Justice on November 4, 2013.  Reprinted with permission.

About the Author: F. Paul Bland, Jr. is a Senior Attorney at Public Justice since 1997, is responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases.

Could You Live Off $25k a Year Like Most Walmart Workers? No, You Couldn't.

Saturday, November 2nd, 2013

Last month, Walmart CEO Bill Simon revealed rather cluelessly that the vast majority of Walmart workers, as many as 825,000 in the United States, earn less than $25,000 a year. The sum is so low the average worker for the country’s biggest employer is struggling to make ends meet. By matching its low prices with insultingly low wages, Walmart forces taxpayers to subsidize its workforce through social safety net programs.

Making Change at Walmart is running a new series that highlights how some of the retailer’s employees are scraping by on Walmart wages. Here are three of the stories they have shared so far:

Anthony Goytia: The 31-year-old father of three makes about $12,000 a year and relies upon MediCal and food stamps. Some of his teeth were removed because he couldn’t afford the dental work to save them. “I don’t need cable or a big house, but I shouldn’t have to resort to selling my plasma and participating in medical trials to be able to feed my kids,” Goytia said. “I have to live payday loan to payday loan.”

Patricia Locks: A 48-year-old single mother, who makes $19,000 a year, relies on low-income housing, food banks and food stamps to get by. She recently was forced to file for bankruptcy. “It’s depressing and scary. No one who works for one of the world’s largest and wealthiest companies should have to live like this,” said Locks. “I don’t think it’s asking too much to earn enough so I don’t have to rely on food banks and other assistance to survive. And that’s why I am going to keep fighting, because I want a better life for me and my daughter.”

John Paul Ashton: The 31-year-old father of two makes $20,000 a year and also relies upon food stamps and food banks. He walks 45 minutes to work with shoes that have holes in them. “When I first started at Walmart, I was told that it was a place where I could grow and have opportunities. I soon discovered that was not the case,” said Ashton. “People take being able to buy lunch for granted. I don’t need a fancy job, but what I do need is a job that allows me to provide for my family, speak up about working conditions and needing better wages without fear of retaliation, and hopefully have more than $2 in my bank account after I pay my bills.”’

More stories of Walmart workers scraping by on less than $25,000 per year are scheduled to be released every week at MakingChangeAtWalmart.

This article was originally printed on AFL-CIO on November 1, 2013.  Reprinted with permission.

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist whose writings have appeared on AFL-CIO, Daily Kos, Alternet, the Guardian Online, Media Matters for America, Think Progress, Campaign for America’s Future and elsewhere.

Rejected by Christie, New Jersey Minimum Wage Increase Goes to the Voters

Friday, November 1st, 2013

Laura ClawsonA minimum wage increase is badly needed, but since it’s going nowhere in a Republican-controlled House, low-wage workers have to turn to the state and local level. Next up, New Jersey, where voters will have a chance next week to put a minimum wage hike in their state constitution.

A measure on the ballot would raise the state minimum wage to $8.25 (the federal level is currently $7.25) and tie it to inflation so that workers didn’t have to wait years until the politics lined up for the state legislature to pass an increase and the governor to sign it. The fact that this is going to a vote actually comes out of just such a failure:

The measure has a huge margin of support, according to two late-September polls. Some 65 percent of registered voters said they will vote for the measure with just 12 percent planning to vote against it, according to a Monmouth University/Asbury Park Press poll of nearly 700 registered voters. A Rutgers poll released at the same time found even broader support, albeit by a similar margin. Voters in that poll of 925 adult New Jerseyans supported the measure 76 percent to 22 percent.The ballot question is the result of a fight between the state’s all-Democratic legislature and Republican Gov. Chris Christie. Earlier this year, Christie vetoed a bill to raise the minimum wage to $8.50, with automatic adjustments tied to inflation increases. That bill, he said, was bad for the economy. Instead, Christie offered to raise in the minimum wage to $8.25 over three years and increase the earned income tax credit. Democrats said no thanks and instead voted to pose the question to voters.

It’s really too bad the proposed increase is only to $8.25, which is still a low, low wage, especially in an expensive state like New Jersey. Nonetheless, it’s an improvement, and should translate to a raise not just for people currently making $7.25 an hour but also for people making slightly more, who are likely to get raises as the minimum wage goes up.

This article was originally printed on Daily Kos Labor on October 31, 2013.  Reprinted with permission.

About the Author: Laura Clawson is the labor editor at Daily Kos.

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