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Same-sex spouse gets ERISA death benefit

Thursday, August 15th, 2013

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Sarah Farley had worked at a law firm where she participated in the firm’s Profit Sharing Plan – a plan qualified under the Employee Retirement Income Security Act (ERISA). The Plan provides that death benefits be paid to the participant’s “surviving Spouse.”

Sarah then married Jean Tobits in Canada. When Sarah died, both Jean and Sarah’s parents claimed the death benefits.

The dispute went to federal district court in Pennsylvania (Cozen O’Connor PC v. Tobits) where the judge had no trouble deciding that Jean was Sarah’s surviving spouse.

In United States v. Windsor (US Supreme Court 06/26/2013) the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) – defining “spouse” as a person of the opposite sex – is unconstitutional. Therefore, since Sarah and Jean were lawfully married, and that marriage is recognized by the laws of Illinois, ERISA has to be interpreted as meaning Jean was Sarah’s spouse. And thus the law firm’s ERISA plan has to be interpreted as meaning Jean was Sarah’s spouse.

This leaves me with one huge question: Will you get the same result in every state? That seems doubtful to me. The opinion in Windsor (a 5-4 decision) relied heavily on the fact that Windsor’s same-sex marriage was recognized by the State of New York (and the Tobits marriage was recognized by the State of Illinois). As Justice Kennedy put it, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” So, if you’re in a state where same-sex marriages are not recognized, it may be difficult to apply the logic of the Windsor case.

Hat Tip to Mike Reilly at Lane Powell, who writes Boom: The ERISA Law Blog.

This article originally appeared on Ross Runkel Report on August 13, 2013.  Reprinted with permission

About the Author: Ross Runkel Ross Runkel is a full-time labor-management arbitrator, professor of law emeritus, and former editor of Employment Law Memo.

As New Jobs Return, Employers Slash Wages

Wednesday, December 26th, 2012
New data has shown that while a majority of jobs eliminated during the downturn were in what we describe as the middle range of wages, the great majority of jobs added as the economy improves were low paying jobs, reported Katherine Rampell in the business section of the New York Times on Friday, August 31, 2012. This was documented in a study done by the National Employment Law Project.
 The study by Annette Bernhardt examined 366 occupations followed by the Labor Department. Bernhardt separated them into three equal groups by wages, with each representing a third of American employment in 2008.
     The middle third consisted of jobs like construction, manufacturing, and information. These jobs paid median hourly wages of $13.84 to $21.13. Over 60% of these jobs were lost during the recession. When the middle third jobs returned, they represented only 22% of total employment growth.
      In the category of higher wage occupations, those that had a median wage of $21.14 to $54.55 reflected only 19% of job losses. However, when growth in the economy began, only 20% of new jobs were the result of the upturn. This was only a 1% increase which doesn’t even cover new entrants into the labor force.
     Low wage jobs with median hourly wages of $7.69 to $13.83 accounted for 21% of job losses during the downturn. The startling fact is that low wage jobs now constitute 58% of all job growth. The jobs with the fastest growth were retail sales at a median wage of $10.97 per hour. At this salary, workers would be eligible for food stamps.
      Each category has grown by more than 300,000 workers since June 2009. Many of these new paying jobs were taken by recent high school and college graduates who were previously unemployed. Others were taken by older workers who formerly had jobs that paid much more, who were desperate.
     Mid-wage and middle class jobs have been disappearing at a rapid rate. Some of this is due to automation, but the bulk of the job loss is the result of employers taking millions of jobs overseas to low wage paying countries.
     At the same time, corporations and their Republican robots are passing so called “Right to Work” legislation which further erodes the wage structure. The labor movement, the trade unions, and their progressive allies are the only institutions that can bring back middle class livable wages.
This post was originally posted on Union Review on December 19, 2012. Reprinted with Permission.
 
About the Author: Seymour Slavin is an Independent Nonprofit Organization Management Professional at Union Review.

Who Wins at Work?

Monday, August 23rd, 2010

Image: Bob RosnerAt a friend’s urging, I recently bought a bike to commute to the new job. I can’t believe how having the wind in my face takes me back to being nine years old.

Okay, I can hear what many of the women reading this are thinking. Jeez, that’s the last thing we need, something to make guys even less mature.

That aside, my friend also gave me a great bit of sage advice. “Cars win.”

After a week of bike riding, I’ve been very safe because of those wise words. Which got me thinking, what else wins at work?

Clearly companies win today. With all the salary cuts, benefit reductions and layoffs, most workers are running scared. But even there, savvy employees can still negotiate with employers to get what they need. The best way to negotiate with your employer? Do it when you first get offered the job. That’s when you have maximum leverage. The next best way to negotiate, have a competing job offer in hand.

Bosses mostly win. Again, when I’ve had a boss, I usually have been able to get what I needed from them. Not because I’m a terrific negotiator, but because I always ask when they’re in a good mood. Trust me, this goes further than you realize.

Coworkers should win. I know the phrase is hackneyed, but doing random acts of kindness for coworkers is so darn wise. Doing favors before you need them in return. Most people take coworkers for granted, I always try to do the exact opposite.

Customers need to win. Really.

I guess I’m naïve enough to think that we don’t have to always have losers just so someone can win.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Economic Policy and Unemployment: The Power of Stupidity

Tuesday, March 2nd, 2010

Image: Dean Baker*This article originally appeared in CEPR on March 1, 2010. Reprinted with permission.

The housing bubble and subsequent crash were the result of extreme incompetence on the part of the country’s top economic policymakers. Somehow these people could not see, or did not care about, the dangers of an $8 trillion housing bubble.

Unfortunately, economic policymaking is not like most jobs where workers get fired when they make serious mistakes. In economics, they just keep getting promoted. Therefore, the people who sank the economy are for the most part the same group of people still designing policy today. Now this group of incompetent economists is telling the rest of us that we are going to have to endure five more years of high unemployment.

However, the rest of the country should not be forced to suffer even more just because those determining economic policy cannot do their jobs. We know how to get the unemployment rate down. Keynes taught us more than 70 years ago that we just have to spend money to eliminate mass unemployment. People work for money, if the government spends, people will work. It’s pretty straightforward.

But, the deficit hawks seems to have largely closed this route. Members of Congress somehow think that they are helping our children by putting their parents out of work.

Fortunately, we can even find a way to create jobs that can keep the deficit hawks happy. It’s called “work-sharing.” The basic point is so simple that even an economist can understand it.

Instead of paying workers to be unemployed – in the form of unemployment benefits – we pay workers to stay employed, but work fewer hours. In effect, to avoid one worker from being laid off, several workers put in somewhat less time on the job and take a small cut in pay. Germany and the Netherlands have used this path to keep their unemployment rates from rising even though they have experienced steeper downturns than the United States.

The way the system works in Germany, a firm will cut back the hours of its workers by 20 percent. The government then replaces 60 percent of the lost pay (12 percent of total pay). The firm is expected to kick in 20 percent of the lost pay (4 percent of total pay) and the worker ends up taking home 4 percent less pay.

In this scenario the worker ends up working 20 percent fewer hours for 4 percent less pay. This can mean, for example, that the worker ends up working a four-day week instead of a five-day week. Given the savings on work-related expenses, like transportation and childcare, most workers would almost certainly end up better off under a work-sharing arrangement than they are now.

While the economy is past its period of rapid job loss, a huge number of workers still lose their jobs each month through the economy’s normal job churning. Each month, companies lay off or fire close to 2 million workers. These job losses are largely offset by hiring by other firms, so that the net change in jobs has been a small negative in recent months. However, if we could just reduce the rate of job loss by 10 percent, then it would be equivalent to creating an additional 200,000 jobs a month or 2.4 million jobs a year. This would get us back to full employment in two years, rather than five or six, as is currently projected.

There are other potential benefits from work sharing. The reduction in work time could give companies an opportunity to adopt more family friendly work practices. For example, they could adopt a policy of paid family leave or paid sick days on a trial basis during the downturn.

There also would be environmental benefits to reducing work hours. Suppose everyone worked a four-day week so that we reduced the number of commutes by 20 percent. This would substantially reduce the amount of greenhouse gas emissions associated with getting to and from work. The fact that Europeans tend to work many fewer hours than we do is undoubtedly one of the main reasons that their per person carbon emissions are about half of the U.S. level.

There are already 17 states that have work-sharing programs in place. There are bills in both the House and Senate that would strengthen these programs and give support to other states to set up their own programs. If Congress is serious about addressing unemployment, it will act on these bills.

About the Author: Dean Baker is the co-director of the Center for Economic and Policy Research (CEPR). He is the author of False Profits: Recovering from the Bubble Economy. He also has a blog on the American Prospect, “Beat the Press,” where he discusses the media’s coverage of economic issues.

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