LABOR AND THE LAW:

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law
(LEL) © 2008

ERISA Fiduciary Obligations
Among the complexities of the Employee Retirement Income Security Act (ERISA) is the question of fiduciary obligations and liability for actions taken as a fiduciary. ERISA requires a fiduciary to perform fiduciary duties with “an eye single” to the interests of a benefit plan's participants and beneficiaries. However, a person may act as a fiduciary at some times and not at others, depending on the duties being performed. The Department of Labor's website explains that “fiduciary status is based on the functions performed for the [benefit] plan, not just a person's title.” A person acts as a fiduciary when exercising discretion or control in administering and managing a plan or controlling a benefit plan's assets. A person is not acting as a fiduciary in making decisions to change the types of benefits or even to terminate a plan.

In a recent case, the First Circuit Court of Appeals held that an employer did not breach its ERISA fiduciary duties even though the employer's human resources representative gave an employee inaccurate pension. The estimate given to the employee was high by over $2000 a month. The plaintiff turned down another job offer in reliance on this information. The plaintiff sued when he learned that, rather than receiving $2914 a month, his pension was only $789 a month. While this might seem to be a failure to keep an eye single on the beneficiary's interests, the court found that the act of the HR representative in providing the statements was not in the role of a plan fiduciary. Instead, he was performing a ministerial task. Livick v. Gillette Co., Case No.07-2108 (1st Cir. Apr. 17, 2008).

Although not part of this case, there is another category of commonly made decisions that are not those of a fiduciary. These are employer business decisions. These include, decisions to establish a plan, to determine the types of benefits to include, to amend a plan, or to terminate a plan. The reason these sorts of decisions are excluded from fiduciary obligations is that employers need to be able to make decisions on behalf of its business, even though these may have a negative effect on beneficiaries. However, when an employer or its representative implements these decisions, that person is a fiduciary when acting on behalf of the plan.

Title VII Protections for Transgendered Job Applicants
Congress has never added transgendered employees as a protected status under Title VII, nor has it removed them from protected status under Title VII, although it has amended other statutes to do so. As a result, the courts are deeply divided as to whether “sex” under Title VII can be extended to protect transgendered employees.

A recent case from the Federal District Court for the District of Texas has put itself in the held that transgendered employees are protected and has done so by applying the Supreme Court's case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In a Price-Waterhouse case, there is a violation if an employer discriminates against an employee for failing to conform to stereotypes about male or female appearance or behavior. Put another way, discrimination is found for taking action against an employee who does not conform to his or her gender by acting or appearing sufficiently masculine or feminine.

In this case, the plaintiff was a biological male who appeared to be a woman and who planned to undergo sex reassignment surgery. The plaintiff applied for a job as a scheduler for a medical clinic. The job involved only contact by telephone and not meeting patients face-to-face. The employer withdrew the job offer made to the plaintiff, because, it claimed, the employee had made a misrepresentations on the application, by claiming to be a woman instead of a man. However, the court found that there was evidence that the plaintiff had included information on the application that disclosed the plaintiff's actual status.

While the court did find a claim under Price-Waterhouse, it did not go as far as finding that the plaintiff had a Title VII claim based on discrimination against employees with gender identity disorder or being transgendered. Rather plaintiff's claim could proceed to trial only as a claim of sex discrimination based on his failure to conform to traditional gender stereotypes. Lopez v. River Oaks Imaging & Diagnostic Group, Inc., Case No.4:06-cv-03999 (S.D. Tex. April 3, 2008).

Discrimination for Refusal to Support a Candidate
In an election year, it is good to have a case that concerns employee rights with regard to electoral politics. Most of these cases involve pressure on a public employee to campaign for or otherwise support a candidate or party. Public employees are protected by the United States and state constitutions. Employees of private companies are less likely to have either state or federal constitutional protections, and the protections they have will normally be based on state law.

In a recent case, a county employee in Oklahoma refused to support any candidate. Her employer claimed that the law gave him qualified immunity from a lawsuit after he terminated the plaintiff for not campaigning for a candidate. He also argued that lack of political affiliation is not constitutionally protected. Gann v. Cline, Case No.07-6011 (10 th Cir. Mar. 11, 2008).

The U.S. Court of Appeals for the Tenth Circuit, held that the plaintiff could bring a claim for violation of her rights under the First Amendment of the U.S. Constitution for improper termination based on political patronage. The court found that since the plaintiff's job was not subject to patronage dismissal, the “only relevant consideration is the impetus for the elected official's employment decision vis-a-vis the plaintiff, i.e., whether the elected official prefers to hire those who support or affiliate with him and terminate those who do not.” Making employment decisions on these bases violates the First Amendment.

Laptops and Employee Privacy Rights
Privacy rights in the workplace are complex and contested. Many employees incorrectly believe they have greater privacy rights than they do. Employer rights to search laptops, computer records, desks, and offices are controlled by a number of statutes and common law privacy rights, and the growth in electronic media has only added to the laws that control this area. The result of employer and employee rights and obligations can be an expensive dispute at the end of a relationship.

A recent case provides an example of some of the problems that can arise. In this case, the employer searched the company laptop that had been assigned to a former employee. That search included personal e-mails that had been stored on the hard drive. Information stored on the computer became the basis for employer claims in a lawsuit, including misappropriation of trade secrets and breach of the duty of loyalty. The court held that, because the emails had been stored on the hard drive, the search did not violate the Stored Communications Act. In addition, the computer was the employer's property, so the search did not violate the employee's right to privacy. These cases are highly fact-sensitive, and employers are well advised to stay current on the law and also to provide information and training to employees to avoid misunderstandings and disputes. Hilderman v. Enea Teksci Inc., Case No.05cv1049 (S.D. Cal. Mar. 12, 2008).

Robert Wood Johnson Foundation, Squeezed: How Costs for Insuring Families are Outpacing Income http://www.rwjf.org/

Employee Benefit Research Institute, 2008 Retirement Confidence Survey: Americans Much More Worried About Retirement, Health Costs a Big Concern EBRI Issue Brief No. 316 • April 2008 http://www.ebri.org/pdf/briefspdf/EBRI_IB_04-2008.pdf

Labor Department Office of Inspector General, MSHA Could Not Show It Made the Right Decision in Approving the Roof Control Plan at Crandall Canyon Mine (Report No. 05-08-003-06-001) (March 31, 2008)

Nanotechnology Field Research Team Update; NIOSH Nanotechnology Field Research Effort Fact Sheet; and NIOSH Nanotechnology Metal Oxide Particle Exposure Assessment Study (March 25, 2008) at http://www.cdc.gov/niosh/whatsnew.html

Ariana Levinson, Louis D. Brandeis School of Law, University of Louisville
My forthcoming article, Lawyering Skills, Principles and Methods Offer Insight As to Best Practices for Arbitration, 60 Baylor L. Rev. (Spring 2008) discusses how people involved in arbitration can use principles and methods used in litigation and at trial to develop best practices for arbitration. The article uses the theoretical underpinnings of the body of scholarship known as "lawyering skills." This area of scholarship draws upon the disciplines of rhetoric, logic, cognitive psychology, and linguistics. In addition to addressing issues of concern for parties involved in arbitration, the article provides suggestions for drafting rules to govern arbitrations. A rough draft of the article is available for free download from SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1022065 .

In the future, I would like to return to this line of research by focusing on what "lawyering skills" used in contract drafting suggest about drafting collective bargaining agreements and rules governing arbitration.

Michael Ahrens, Note: Wisconsin Confidential: The Mystery of the Wisconsin Supreme Court's Decision in Burbank Grease Services v. Sokolowski and its Effect upon the Uniform Trade Secrets Act, Litigation, and Employee Mobility, 2007 Wis. L. Rev. 1271

Frances Ansley, Doing Policy from Below: Worker Solidarity and the Prospects for Immigration Reform, 41 Cornell Int'l L.J. 101 (2008)

Dianne Avery, The Great American Makeover: The Sexing up and Dumbing down of Women's Work after Jespersen v. Harrah's Operating Company, Inc., 42 U.S.F.L. Rev. 299 (2007)

Aditi Bagchi, Varieties of Employee Ownership: Some Unintended Consequences of Corporate Law and Labor Law, 10 U. Pa. J. Bus. & Emp. L. 305 (2008)

Steven Banks, ADR and Litigation Involving Social Problems, 35 Fordham Urb. L.J. 109 (2008)

Arianne Renan Barzilay, Women at Work: Towards an Inclusive Narrative of the Rise of the Regulatory State, 31 Harv. J.L. & Gender 169 (2008)

Paul Bauer, Development. The Maritime Labour Convention: An Adequate Guarantee of Seafarer Rights, or an Impediment to True Reforms? 8 Chi. J. Int'l L. 643 (2008)

Tricia Beckles, Comment: Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage If They Have No "Similarly Situated" Comparators? 10 U. Pa. J. Bus. & Emp. L. 459 (2008)

Derrick Bell, Ledbetter v. Goodyear Tire & Rubber Co., 23 Touro L. Rev. 843 (2008)

Matthew Bodie, Information and the Market for Union Representation, 94 Va. L. Rev. 1 (2008)

Deanna Brinkerhoff, Note: A More Employee-Friendly Standard for Pretext Claims after Ash v. Tyson, 8 Nev. L.J. 474 (2007)

John Buhrman, Note: Riding with Little Brother: Striking a Better Balance Between the Benefits of Automobile Event Data Recorders and Their Drawbacks, 17 Cornell J.L. & Pub. Pol'y 201 (2007)

Edward Brunet, The Minimal Role of Federalism and State Law in Arbitration, 8 Nev. L.J. 326 (2007)

Sarah Burns, Thinking about Fairness & Achieving Balance in Mediation, 35 Fordham Urb. L.J. 39 (2008)

Marilyn Cane & Ilya Torchinsky, Explaining "Explained Decisions": NASD's Proposal for Written Explanations in Arbitration Awards, 15 U. Miami Bus. L. Rev. 23 (2007)

Howard Chang, The Economics of International Labor Migration and the Case for Global Distributive Justice in Liberal Political Theory, 41 Cornell Int'l L.J. 1 (2008)

Muzaffar Chishti, A Redesigned Immigration Selection System, 41 Cornell Int'l L.J. 115 (2008)

Sarah Cole, Revising the FAA to Permit Expanded Judicial Review of Arbitration Awards, 8 Nev. L.J. 214 (2007)

Analiz Deleon-Vargas, Comment: The Plight of Immigrant Day Laborers: Why They Deserve Protection under the Law, 10 Scholar 241 (2008)

Colleen Dougherty, Comment: The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States,10 U. Pa. J. Bus. & Emp. L. 483 (2008)

Elizabeth Ellis, Note: Public Employees Left to Decide "Your Conscience or Your Job", 41 Ind. L. Rev. 187 (2008)

Megan Erb, Note: Red Light, Green Light: Assessing the Stop and Go in the Advancement of Women in the Legal and Business Sectors, 14 Wm. & Mary J. Women & L. 393 (2008)

Joshua Foster, Note:ERISA, Trust Law, and the Appropriate Standard of Review: A De Novo Review of Why the Elimination of Discretionary Clauses Would Be an Abuse of Discretion, 82 St. John's L. Rev. 735 (2008)

John Friedl & Andre Honoree, Is Justice Blind? Examining the Relationship Between Presidential Appointments of Judges and Outcomes in Employment Discrimination Cases, 38 Cumb. L. Rev. 89 (2007-2008)

Laura Goldin, Note: The Safety Net Revisited? The Continuing Impact of Welfare Reform in New York City and Nationwide, 14 Cardozo J.L. & Gender 97 (2007)

Michael Green, Measures to Encourage and Reward Post-Dispute Agreements to Arbitrate Employment Discrimination Claims, 8 Nev. L.J. 58 (2007)

Kati Griffith, A Supreme Stretch: The Supremacy Clause in the Wake of IRCA and Hoffman Plastic Compounds, 41 Cornell Int'l L.J. 127 (2008)

Lisa Hansen, Note: A Comprehensive Framework for Accommodating Nursing Mothers in the Workplace, 59 Rutgers L. Rev. 885 (2007)

Debra Herman, Options for Allocating Stock Option Income: New York's New Allocation Rules and Their Effect on Taxpayers, Multistate Employers, and Other States, 60 Tax Law. 991 (2007)

David Hess, Public Pensions and the Promise of Shareholder Activism for the next Frontier of Corporate Governance: Sustainable Economic Development, 2 Va. L. & Bus. Rev. 221 (2007)

Jeffrey Hirsch, The Silicon Bullet: Will the Internet Kill the NLRA? 76 Geo. Wash. L. Rev. 262 (2008)

Jeffrey Hirsch & Barry Hirsch, The Rise and Fall of Private Sector Unionism: What Next for the NLRA? 34 Fla. St. U. L. Rev. 1133 (2007)

Matthew Hutcheson, Uncovering and Understanding Hidden Fees in Qualified Retirement Plans, 15 Elder L.J. 323 (2007)

Margaret Jackson, Confronting "Unwelcomeness" from the Outside: Using Case Theory to Tell the Stories of Sexually-Harassed Women, 14 Cardozo J.L. & Gender 61 (2007)

Heather James, Note: If You Are Attractive and You Know It, Please Apply: Appearance-Based Discrimination and Employers' Discretion, 42 Val. U. L. Rev. 629 (2008)

Daniel Johns, Promises, Promises: Rethinking the NLRB's Distinction Between Employer and Union Promises During Representation Campaigns, 10 U. Pa. J. Bus. & Emp. L. 433 (2008)

Jennifer Kemp, Case Note: Civil Rights – The Clock Starts Ticking: Title VII Pay Discrimination Claims, 8 Wyoming L. Rev. 259 (2008)

Christopher Kippley & Richard Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers, 8 Nev. L.J. 10 (2007)

Holning Lau, Sexual Orientation & Gender Identity: American Law in Light of East Asian Developments, 31 Harv. J.l. & Gender 67 (2008)

Michael Leroy, Misguided Fairness? Regulating Arbitration by Statute: Empirical Evidence of Declining Award Finality, 83 Notre Dame L. Rev. 551 (2008)

Jennifer Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353 (2008)

Anne Marie Lofaso, Toward a Foundational Theory of Workers' Rights: The Autonomous Dignified Worker, 76 Umkc L. Rev. 1 (2007)

Adam Lounsbury, Comment: A Nationalist Critique of Local Laws Purporting to Regulate the Hiring of Undocumented Workers, 71 Alb. L. Rev. 415 (2008)

Michael McBride & Leonard Court, Labor Regulation, Union Avoidance and Organized Labor Relations Strategies on Tribal Lands: New Indian Gaming Strategies in the Wake of San Manuel Band of Indians v. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007)

Ian McGinley, Regulating "Rent-a-cops" Post-9/11: Why the Private Security Officer Employment Authorization Act Fails to Address Homeland Security Concerns, 6 Cardozo Pub. L. Pol. & Ethics J. 129 (2007)

William Mateikis, The Fair Track to Expanded Fair Trade: Making Taa Benefits More Accessible to American Workers, 30 Hous. J. Int'l L. 1 (2007)

Robert Metzger & Daniel Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 2007 Wis. L. Rev. 1225

Christine Niemczyk, Comment: Boxing out Big Box Retailers: The Legal and Social Impact of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339 (2007)

Jacqueline Nolan-Haley, Cathy Costantino, Sean Nolon & Joseph Siegel, Panel: Problem-Solving Mechanisms to Achieve Consensus: How Do We Ensure Successful Resolution? 35 Fordham Urb. L.J. 205 (2008)

Joseph Oluwole, Eras in Public Employment-free Speech Jurisprudence, 32 Vt. L. Rev. 317 (2007)

Dan O'Hearn, Comment: Beyond "Let Them Eat Cake": An Argument for the Armendariz Method of Cost Allocation in Mandatory Employment and Consumer Arbitration, 2007 J. Disp. Resol. 541

Matthew Panach, Comment: Two Wrongs Don't Make a Right...To Receive Backpay? The Post-Hoffman Polarity of Escobar and Rivera, 60 Ark. L. Rev. 907 (2008)

William Park, Determining an Arbitrator's Jurisdiction: Timing and Finality in American Law, 8 Nev. L.J. 135 (2007)

Noya Rimalt, Stereotyping Women, Individualizing Harassment: The Dignitary Paradigm of Sexual Harassment Law Between the Limits of Law and the Limits of Feminism, 19 Yale J.L. & Feminism 391 (2008)

Catherine Rogers, The Arrival of the "Have-nots" in International Arbitration, 8 Nev. L.J. 341 (2007)

Jessica Rosenthal, Comment: The Interactive Process Disabled: Improving the ADA and Strengthening the EEOC Through the Adoption of the Interactive Process, 57 Emory L.J. 247 (2007)

John Sanchez, 2006-2007 Survey of Florida Public Employment Law, 32 Nova L. Rev. 141 (2007)

Leticia Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. Mich. J.L. Reform 447 (2008)

Tali Schaefer, Disposable Mothers: Paid In-home Caretaking and the Regulation of Parenthood, 19 Yale J.L. & Feminism 305 (2008)

Amy Schmitz, Dangers of Deference to Form Arbitration Provisions, 8 Nev. L.J. 37 (2007)

Elizabeth Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705 (2007)

Matthew Schroll, Note: Misconstruing Precedent to Curtail Government Employees' First Amendment Rights, 67 Md. L. Rev. 485 (2008)

David Schwartz, If You Love Arbitration, Set it Free: How "Mandatory" Undermines "Arbitration", 8 Nev. L.J. 400 (2007)

Rebecca Scott, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge, 106 Mich. L. Rev. 777 (2008)

Terry Smith, Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 Am. U. L. Rev. 523 (2008)

Lucy Stark, Exposing Hostile Environments for Female Graduate Students in Academic Science Laboratories: The McDonnell Douglas Burden-shifting Framework as a Paradigm for Analyzing the "Women in Science" Problem, 31 Harv. J.L. & Gender 101 (2008)

Thomas Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 Nev. L.J. 427 (2007)

Richard Speidel, Parties' Power to Vary Standards for Review of International Commercial Arbitration Awards, 8 Nev. L.J. 314 (2007)

Jeffrey Stempel, Keeping Arbitrations from Becoming Kangaroo Courts, 8 Nev. L.J. 251 (2007)

Jean Sternlight, Introduction: Dreaming about Arbitration Reform, 8 Nev. L.J. 1 (2007)

Jean Sternlight, In Defense of Mandatory Binding Arbitration (If Imposed on the Company), 8 Nev. L.J. 82 (2007)

Lawrence Susskind, Consensus Building, Public Dispute Resolution, and Social Justice, 35 Fordham Urb. L.J. 185 (2008)

Symposium: Rethinking the Federal Arbitration Act: An Examination of Whether and How the Statute Should Be Amended, 8 Nev. L.J. 1 (2007)

Symposium: Informational Privacy: Philosophical Foundations and Legal Implications, 44 San Diego L. Rev. 695 (2007).

Prajna Tuladhar, Note: There's Something about Mexico: Exploring the Controversy, Costs, and Benefits of a Social Security Totalization Agreement with Our Neighbor to the South, 15 Elder L.J. 581 (2007)

Ryan Turley, Note: Only the Rich Can Afford a Remedy: The Unconscionable Enforcement of Arbitration Provisions Against the Indigent, 2007 J. Disp. Resol. 611

John Vincent & Jessica Rutzick, Reinstating Wyoming's Joint & Several Liability Paradigm: Protecting Wyoming's Workforce, Their Families and the Wyoming Worker's Compensation Fund from Uncompensated Injuries and Deaths, 8 Wyoming L. Rev. 87 (2008)

Maria Volpe, et alia, Barriers to Participation: Challenges Faced by Members of Underrepresented Racial and Ethnic Groups in Entering, Remaining, and Advancing in the ADR Field, 35 Fordham Urb. L.J. 119 (2008)

Stephen Ware, Arbitration Law's Separability after Buckeye Check Cashing, Inc. v. Cardegna, 8 Nev. L.J. 107 (2007)

Maureen Weston, Preserving the Federal Arbitration Act by Reigning in Judicial Expansion and Mandatory Use, 8 Nev. L.J. 385 (2007)

Eric Wiesner, Note: Voices from the Workplace: Oakwood Healthcare, Inc. and the Rollback of Labor Rights under the Current National Labor Relations Board, 42 U.S.F.L. Rev. 457 (2007)

William Woolston, Whose Money Is it Anyway? The Case for a Mortality Discount for Cash Balance Plan Early Termination Lump Sum Distributions, 10 U. Pa. J. Bus. & Emp. L. 383 (2008)

Kojo Yelpaala, Legal Consciousness and Contractual Obligations, 39 McGeorge L. Rev. 193 (2008)

Katharine Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int'l L. 113 (2008)

Future Newsletters

To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at:
Ellen Dannin, Professor of Law
Pennsylvania State University
Dickinson School of Law
311 Beam Building
University Park, PA 16802-1912

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