Labor and Employment Relations Association
Labor and Employment Law News - April 2012
Labor and the Law: Current News and Information
from the LERA Section on Labor and Employment Law (LEL) © 2012
Our 15th Year
Published since 1997
April 2012
Labor and Employment Law News
The full text of many cases is now available free on-line. Where that is the case, links are provided.
Defense of Marriage Act Violates Equal Protection Rights of Married Lesbian Employee
Courts use several types of scrutiny when considering whether a law violates rights. For example, a recent California federal court’s analysis led it to use a heightened degree of scrutiny to decide whether California’s Defense of Marriage Act (D)MA) violated the 5th Amendment’s equal protection rights. The court found that heightened scrutiny was proper in the case of classifications based on sexual orientation. Among other things, the court based its analysis on the fact that sex and sexual orientation are immutable characteristics. Golinski v. U.S. Office of Personnel Management, Case No.10-257 (N.D. Cal. Feb. 22, 2012) http://www.lambdalegal.org/sites/default/files/golinski_us_20120222_order_0.pdf
In this case, the government had refused to recognize the plaintiff’s marriage and to provide health insurance coverage for her wife. The court ordered the plaintiff’s employer to provide the benefits it had denied to the plaintiff. The decision describes both the process applied as the case progressed and the court’s reasoning, as well as a discussion of a wide range of legal issues that affected the court’s decision.
When is an Employee Benefit Not an ERISA Plan Benefit
It might seem that ERISA covers all workplace benefits. However, a recent case from Puerto Rico shows otherwise. Rodriguez-Rosario v. Syntex (F.P.), Inc., Case No.11-1376 (D.P.R. Feb. 9, 2012)
The employees in this case sued their employer for breaking its promise to pay increased benefits if the employees stayed on the job until the plant closed, rather than finding new jobs and quitting before the plant closed. When problems arose with paying the benefits, the employees sued their employer under state law in state court. The employer contended that the employees’ claims under the severance plan were governed by ERISA and removed the case to federal court.
The court held that ERISA did not govern the plan because ERISA does not cover one-time events, such as a plant closing. In addition, the employer’s plant closing severance plan did not require continuous administrative and financial obligations and also lacked management discretion as to the eligibility of participants.
In this case, the plan had only three straightforward requirements in order for employees to qualify for severance benefits: employees need only: (1) be terminated due to the closing of operation; (2) sign an Agreement and Release and Payment Option Form, and (3) remain with the company until being terminated.
The court observed, first, that a “benefit which involves a ‘one-shot, take-it-or-leave-it incentive’ reduces the need for ERISA supervision”. In addition, the plan lacked management discretion as to the eligibility of participants. When there is no need to exercise discretion as to plan participants’ eligibility, there is less need for ERISA protections. As a result, the plan was not an ERISA plan, so ERISA did not apply to its administration.
Web Links
Economic Policy Institute, A closer look at Apple and FoxconnLabor practices in China and Brazil, April 11, 2012 http://www.epi.org/event/apple-foxconn-labor-practices-china/
(MSHA) Performance Coal Company Upper Big Branch Mine Single Source Page http://www.msha.gov/PerformanceCoal/PerformanceCoal.asp
An Independent Panel Assessment of An Internal Review (3/23/2012) of MSHA Enforcement Actions at the Upper Big Branch Mine South Requested by the Honorable Hilda L. Solis Secretary, U.S. Department of Labor http://www.msha.gov/PerformanceCoal/NIOSH/Independent%20Assessment%20Panel%20Report%20w_Errata.pdf
U.S. Bureau of Labor Statistics, Employment in Green Goods and Services - 2010 (March 22, 2012) http://www.bls.gov/news.release/pdf/ggqcew.pdf
Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Contracting Oversight, March 29, 2012 http://www.hsgac.senate.gov/subcommittees/contracting-oversight/hearings/contractors-how-much-are-they-costing-the-government
American Rights at Work, Beyond the Weekend: New Data Reveals How Unions Benefit Communities, Consumers, Employers, and Employees http://www.americanrightsatwork.org/dmdocuments/ARAWReports/beyondwfinallinks.pdf
Ariane Hegewisch, Claudia Williams, and Anlan Zhang, Institute for Women's Policy Research, The Gender Wage Gap: 2011 (March 2012) http://www.iwpr.org/publications/pubs/the-gender-wage-gap-2011/at_download/file
Political Economy Research Institute, Should States Continue to Place the Lowest Tax Rates on Those with the Highest Incomes? March 2012 http://www.peri.umass.edu/fileadmin/pdf/published_study/Revenue_PERI_March5.pdf
Testimony of Secretary of Labor Hilda L. Solis before the Subcommittee on Labor, Health and Human Services, Education and Related Agencies, and Pensions, Committee on Appropriations, United States Senate, March 14, 2012 http://www.dol.gov/_sec/media/congress/20120314_Solis.htm
Towers Watson Say on Pay Study: Majority to Pay Executive Bonuses Equal to or Larger Than Last Year’s, Jan 10, 2012 http://www.commpro.biz/ir-therefore-i-am/majority-of-u-s-companies-to-pay-2011-executive-bonuses-equal-to-or-larger-than-last-years-towers-watson-survey-finds/
10th Anniversary Edition of Metlife's Annual Study of Employee Benefits Trends http://www.metlife.com/business/insights-and-tools/industry-knowledge/employee-benefits-trends-study/index.html#highlights
Pew Research Center, The Demographics of the Jobs Recovery - Employment Gains by Race, Ethnicity, Gender and Nativity March 21, 2012 http://pewresearch.org/pubs/2225/workforce-employment-hispanics-whites-blacks-asians-immigrants
Department of Labor Bureau of Labor Statistics, Green Goods and Services Summary March 22, 2012 http://www.bls.gov/news.release/ggqcew.nr0.htm
Department of Labor Bureau of Labor Statistics, (The Editor’s Desk), Employment Situation of Veterans — 201, March 23, 2012 http://www.bls.gov/opub/ted/2012/ted_20120323.htm
Government Accountability Office, Background Investigations - Office of Personnel Management Needs to Improve Transparency of Its Pricing and Seek Cost Savings GAO-12-197, Feb 28, 2012 http://www.gao.gov/products/GAO-12-197
Government Accountability Office, Improper Payments - Remaining Challenges and Strategies for Governmentwide Reduction Efforts GAO-12-573T, Mar 28, 2012 http://www.gao.gov/products/GAO-12-573T
Government Accountability Office, HUD Information Technology More Work Remains to Implement Necessary Management Controls GAO-12-580T, Mar 29, 2012 http://www.gao.gov/products/GAO-12-580T
Government Accountability Office, NASA - Significant Challenges Remain for Access, Use, and Sustainment of the International Space Station GAO-12-587T, Mar 28, 2012 http://www.gao.gov/products/GAO-12-587T
Government Accountability Office, Nursing Homes - CMS Needs Milestones and Timelines to Ensure Goals for the Five-Star Quality Rating System Are Met GAO-12-390, Mar 23, 2012 http://www.gao.gov/products/GAO-12-390
Government Accountability Office, Government Efficiency and Effectiveness - Opportunities for Improvement and Considerations for Restructuring GAO-12-454T, Mar 21, 2012 http://www.gao.gov/products/GAO-12-454T
Government Accountability Office, Modernizing SSA Disability Programs - Preliminary Observations on Updates of Medical and Occupational Criteria GAO-12-511T, Mar 20, 2012 http://www.gao.gov/products/GAO-12-511T
Government Accountability Office, Motor Carrier Safety - New Applicant Reviews Should Expand to Identify Freight Carriers Evading Detection GAO-12-364, Mar 22, 2012 http://www.gao.gov/products/GAO-12-364
Government Accountability Office, Economic Development - Efficiency and Effectiveness of Fragmented Programs Are Unclear GAO-12-553T, Mar 21, 2012 http://www.gao.gov/products/GAO-12-553T
Government Accountability Office, Defined Benefit Pension Plans - Recent Developments Highlight Challenges of Hedge Fund and Private Equity Investing GAO-12-324, Feb 16, 2012 http://www.gao.gov/products/GAO-12-324
Government Accountability Office, Private Pensions - Better Agency Coordination Could Help Small Employers Address Challenges To Plan Sponsorship GAO-12-459T, Mar 7, 2012 http://www.gao.gov/products/GAO-12-459T
Government Accountability Office, Private Pensions - Better Agency Coordination Could Help Small Employers Address Challenges to Plan Sponsorship GAO-12-326, Mar 5, 2012 http://www.gao.gov/products/GAO-12-326
Recent Labor and Employment Law Articles
Alice Anderson, Comment: The Uneasy Reality: Undocumented Workers in the United States and Rural Peasant Workers in China, 37 N.C. J. Int'l L. & Com. Reg. 199 (2011)
Rachel Arnow-Richman, Author Meets Reader, Scholar Meets Worker: An Introduction to the Section on Labor Relations and Employment Law, 15 Employee Rts. & Emp. Pol'y J. 443 (2011)
Michael Bagley & Benson Ward, Workers' Compensation, 63 Mercer L. Rev. 405 (2011)
Rachel Best, et alia, Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 Law & Soc'y Rev. 991 (2011)
Anne Bloom & Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L. Rev. 709 (2011)
Ivan Bodensteiner, The Risk of Complaining – Retaliation, 38 J.C. & U.L. 1 (2011)
Connor Boyd, Note: The Bratz Trap: Ownership and Infringement at the Nexus of Copyright and Employment Law, 45 UC Davis L. Rev. 221 (2011)
Douglas Brown & John Gibbons, Issues in Hearing Loss Claims under the Longshore and Harbor Workers' Compensation Act, 10 Loy. Mar. L.J. 85 (2011)
Laura Browne, Note: Missouri Courts Side with Employees Against the Eighth Circuit: Continued Employment Does Not Constitute Acceptance and Consideration for Mandatory Arbitration Agreements, 2011 J. Disp. Resol. 447
Sanya Carley, et alia, Innovation in the Auto Industry: The Role of the U.S. Environmental Protection Agency, 21 Duke Envtl. L. & Pol'y F. 367 (2011)
William Carter, The Thirteenth Amendment, Interest Convergence, and the Badges and Incidents of Slavery, 71 Md. L. Rev. 21 (2011)
Devin Collier, Note: Don't Get it Twisted: Why Employer Hairstyle Prohibitions Are Racially Discriminatory, 9 Hastings Race & Poverty L.J. 33 (2012)
William Corbett, What Is in GINA's Genes? The Curious Case of the Mutant-Hybrid Employment Law, 64 Okla. L. Rev. 1 (2011)
Nicholas. Dagostino, Note: Giving the School Bully a Timeout: Protecting Urban Students from Teachers' Unions, 63 Ala. L. Rev. 177 (2011)
Christina Dieckmann, Equal Pay for Equal Work? The Distributional Effects of the Assignment Policy for Military Women, 22 Colum. J. Gender & L. 250 (2011)
Larry Dimatteo, et alia, Justice, Employment, and the Psychological Contract, 90 Or. L. Rev. 449 (2011)
Matthew Dimick, Labor Law, New Governance, and the Ghent System, 90 N.C. L. Rev. 319 (2012)
Michael Duff, Of Courage, Tumult, and the Smash Mouth Truth: A Union Side Apologia, 15 Employee Rts. & Emp. Pol'y J. 521 (2011)
Deborah Eisenberg, Money, Sex, and Sunshine: A Market-Based Approach to Pay Discrimination, 43 Ariz. St. L.J. 951 (2011)
Kenneth Engerrand & Jonathan Tweedy, A Tedious Balance: Third-party Claims under the Longshore and Harbor Workers' Compensation Act, 10 Loy. Mar. L.J. 1 (2011)
Cynthia Estlund, "It Takes a Movement" – But What Does it Take to Mobilize the Workers? 15 Employee Rts. & Emp. Pol'y J. 507 (2011)
Jessica Fink, Protected by Association? The Supreme Court's Incomplete Approach to Defining the Scope of the Third-Party Retaliation Doctrine, 63 Hastings L.J. 521 (2012)
Matthew Finkin, Captive Audition, Human Dignity, and Federalism: Ruminations on an Oregon Law, 15 Employee Rts. & Emp. Pol'y J. 355 (2011)
Catherine Fisk & Xenia Tashlitsky, Imagine a World Where Employers Are Required to Bargain with Minority Unions, 27 A.B.A. J. Lab. & Emp. L. 1 (2011)
William Forbath, The Distributive Constitution and Workers' Rights, 72 Ohio St. L.J. 1115 (2011)
Angela Galloway, Comment: A "Narrow Exception" Run Amok: How Courts Have Misconstrued Employee-Rights Laws' Exclusion of "Policymaking" Appointees, and a Proposed Framework for Getting Back on Track, 86 Wash. L. Rev. 875 (2011)
Molly Gerratt, Note: Closing a Loophole: Headley v. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes, 85 S. Cal. L. Rev. 141 (2011)
Alex Gourevitch, The Contradictions of Progressive Constitutionalism, 72 Ohio St. L.J. 1159 (2011)
Molly Greer, Note: Suggestions to Solve the Injustices of the New York State Central Register for Abuse and Maltreatment, 14 N.Y.U. J. Legis. & Pub. Pol'y 729 (2011)
Kati Griffith, Ice Was Not Meant to Be Cold: The Case for Civil Rights Monitoring of Immigration Enforcement at the Workplace, 53 Ariz. L. Rev. 1137 (2011)
Joseph Guza, Comment: A Cure for Laryngitis: A First Amendment Challenge to the NLRA's Ban on Secondary Picketing, 59 Buff. L. Rev. 1267 (2011)
Melvin Haas, et alia, Labor and Employment Law, 63 Mercer L. Rev. 197 (2011)
Camille Hebert, The Supreme Court's 2010-2011 Labor and Employment Law Decisions: A Large and "Mixed Bag" for Employers and Employees, 15 Employee Rts. & Emp. Pol'y J. 279 (2011)
Lori Hoetger, Note: Did My Boss Just Read That? Applying a Coding vs. Content Distinction in Determining Government Employees' Reasonable Expectation of Privacy in Employer-Provided Electronic Communication Devices, 90 Neb. L. Rev. 559 (2011)
Mark Jansen, Note: Religious Organizations and Employment Decisions Based on Religion: A Principled Pluralist Critique, 5 Phoenix L. Rev. 183 (2011)
Saru Jayaraman, From Triangle Shirtwaist to Windows on the World: Restaurants as the New Sweatshops, 14 N.Y.U. J. Legis. & Pub. Pol'y 625 (2011)
Andrew Tae-hyun Kim, Culture Matters: Cultural Differences in the Reporting of Employment Discrimination Claims, 20 Wm. & Mary Bill Rts. J. 405 (2011)
James Ruffin Lawrence, Comment: "Let Us Now Try Liberty": Freeing the Private Sector to Tackle North Carolina's Tobacco Addiction by Reinstating Employment Freedom of Contract. 90 N.C. L. Rev. 510 (2012)
Jenny Lee, Note: Corporate Corruption & the New Gold Mine: How the Dodd-frank Act Overincentivizes Whistleblowing. 77 Brook. L. Rev. 303 (2011)
Ariana Levinson, Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees 114 W. Va. L. Rev. 461 (2012)
Ariana Levinson, Workplace Privacy and Monitoring: The Quest for Balanced Interests, 59 Clev. St. L. Rev. 377 (2011)
Bennett Lebsack, Note: Confusion Demands Simplicity: Applying FRCP 26 to ERISA Conflict of Interest Discovery Requests., 27 A.B.A. J. Lab. & Emp. L. 121 (2011)
Emily Litzinger, Willfulness, Good Faith, and the Fair Labor Standards Act, 12 Nev. L.J. 112 (2011)
Andrea Lofgren, Note: A Sign of Things to Come? Drug Policy Reforms in Arizona, California, and New York, 14 N.Y.U. J. Legis. & Pub. Pol'y 773 (2011)
Alex Long, Employment Retaliation and the Accident of Text, 90 Or. L. Rev. 525 (2011)
Irene Lurie, Enforcement of State Minimum Wage and Overtime Laws: Resources, Procedures, and Outcomes. 15 Employee Rts. & Emp. Pol'y J. 411 (2011)
Marcia McCormick, Consensus, Dissensus, and Enforcement: Legal Protection of Working Women from the Time of the Triangle Shirtwaist Factory Fire to Today, 14 N.Y.U. J. Legis. & Pub. Pol'y 645 (2011)
Shelley McGill & Mark Baetz, Technology Use Codes of Conduct: Is it a Choice Between Shaping the Organizational Culture and Effective Legal Enforcement? 15 Employee Rts. & Emp. Pol'y J. 379 (2011)
Jon Michaels, Privatization's Pretensions, 77 U. Chi. L. Rev. 717 (2010)
Philip Miscimarra, Capital Investment, Relocations, and Major Business Changes under the NLRA, 27 A.B.A. J. Lab. & Emp. L. 79 (2011)
Alison Morantz, Does Unionization Strengthen Regulatory Enforcement? An Empirical Study of the Mine Safety and Health Administration, 14 N.Y.U. J. Legis. & Pub. Pol'y 697 (2011)
Ann Morning, Conceptualizing Race Consciousness and Diversity, 15 Employee Rts. & Emp. Pol'y J. 559 (2011)
Maria Ontiveros, Building a Movement with Immigrant Workers: The 1972-74 Strike and Boycott at Farah Manufacturing, 15 Employee Rts. & Emp. Pol'y J. 479 (2011)
Susan O'Sullivan-Gavin & John Shannon, Managing the Impact of New Media on the Employment Relationship, 4 J. Bus. Entrepreneurship & L. 451 (2011)
Blake Patton, Note: Pro-Gun Property Regulation: How the State of Oklahoma Controls the Property Rights of Employers Through Firearm Legislation, 64 Okla. L. Rev. 81 (2011)
Griffin Pivateau, Preserving Human Capital: Using the Noncompete Agreement to Achieve Competitive Advantage, 4 J. Bus. Entrepreneurship & L. 319 (2011)
James Pope, What's Different about the Thirteenth Amendment, and Why Does it Matter? 71 Md. L. Rev. 189 (2011)
Nedda Reghabi, Comment: A Balancing Act for Businesses: Transsexual Employees, Other Employees, and Customers, 43 Ariz. St. L.J. 1047 (2011)
Christopher Rhymes, Comment: Expanded Standing under the Louisiana Unfair Trade Practices Act and Possible Employee Actions under the Act, 72 La. L. Rev. 519 (2012)
Erik Rome, Note: Recognizing Those Left Unprotected by ERISA's Section 510 Loophole: Congress must Act to Protect These Employees, 21 Kan. J.l. & Pub. Pol'y 194 (2011)
Lysette Romero, Note: Why English-Only Notice to Spanish-Only Speakers Is Not Enough: the Argument for Enhancing Procedural Due Process in New Mexico, 41 N.M. L. Rev. 603 (2011)
Neil Schonert, Comment: A Fistful of Dollars: Bounty Hunting under the Dodd-Frank Act's Whistleblower Provisions, 36 S. Ill. U. L.J. 159 (2011)
Richard Schragger, Democracy and Debt, 121 Yale L.J. 860 (2012)
Porter Sesnon, Note: When must Means May: How the Washington State Supreme Court Undermined the System of Checks and Balances, 35 Seattle U. L. Rev. 589 -613 (2012)
Ruth Sergel, Remember the Triangle Fire Coalition, 14 N.Y.U. J. Legis. & Pub. Pol'y 611 (2011)
David Simson, Note: Customers, Co-workers and Competition: Employee Covenants in California, 4 Hastings Sci. & Tech. L.J. 239 (2012)
Louise Smith, Note: Employers Beware: Civil RICO Provision Creates Private Enforcement of Immigration Laws, 27 A.B.A. J. Lab. & Emp. L. 103 (2011)
James Steinmann, Comment: Nothing Inevitable about Discriminatory Hiring: Lewis v. City of Chicago and a Return to the Text of Title VII, 44 Loy. L.a. L. Rev. 1307 (2011)
Julie Suk, From Antidiscrimination to Equality: Stereotypes and the Life Cycle in the United States and Europe, 60 Am. J. Comp. L. 75 (2012)
Robert Stulberg & Amy Shulman, Litigating Cross-border Discrimination Claims in Multiple Jurisdictions: A Global Strategy for Expatriate Employees, 27 A.B.A. J. Lab. & Emp. L. 61 (2011)
Symposium: Restoring the Power of Unions, 15 Employee Rts. & Emp. Pol'y J. 443 (2011)
Symposium: Triangle Shirtwaist Fire Commemoration, 14 N.Y.U. J. Legis. & Pub. Pol'y 611 (2011)
Richard Trotter, Running on Empty: Municipal Insolvency and Rejection of Collective Bargaining Agreements in Chapter 9 Bankruptcy, 36 S. Ill. U. L.J. 45 (2011)
Dennis Walsh, Procedural Barriers That Prevent the NLRB from Resolving Major Workers Rights Issues, 15 Employee Rts. & Emp. Pol'y J. 545 (2011)
Kimberly West-Faulcon, Fairness Feuds: Competing Conceptions of Title VII Discriminatory Testing, 46 Wake Forest L. Rev. 1035 (2011)
Yelena Zaslavskaya, Reasonable Hourly Rate Determination: Overview of Recent Decisions, 10 Loy. Mar. L.J. 67 (2011)
Future Newsletters
The Labor and Employment Relations Association (LERA) Labor and Employment Law (LEL) Section Newsletter, Labor and the Law, is available each month via the LERA discussion list by email and posted on the LERA website. It is edited by Ellen Dannin, Fannie Weiss Distinguished Faculty Scholar and Professor of Law, Pennsylvania State University Dickinson School of Law, 327 Katz Building, University Park, PA 16802-1912. ejd13(at)psu(dot)edu.
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Copyright © Ellen Dannin 2011. All Rights Reserved. The LEL News may be reposted but only if it includes the copyright notice and the entire document.
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