Protecting the Unprotected Domestic Worker

 

Domestic Workers are legally marginalized under current labor and employment law. They are currently unprotected under the National Labor Relations Act (NLRA), the Fair Labor Standards Act (FLSA), and the Occupational Safety and Health Act (OSHA). Further, they are de facto excluded from protection under a number of laws, like Title VII of the Civil Rights Act, which exempt employers who employ fewer than a specified number of employees. Section 2(3) of the NLRA explicitly excludes domestic workers from its protection because the term “employee” is defined to “not include any individual employed … in the domestic service of any family or person at his home” including nannies, housecleaners, caregivers, companions, etc.

Protection under the current NLRA is infeasible. Even if the definition of “employees” were expanded to include domestic workers the enterprises covered by the NLRA are limited to employers “affecting commerce.” This requirement is further limited, via Read the rest

Shipping Jobs to India: Democratic Foe and Republican Ally?

Democrats are notorious for criticizing Republicans’ support of worldwide American companies who “outsource” (i.e., move operations and workers) to nations like India. While Democrats’ opposition to outsourcing was initially meant to incite sympathy and support from voters on “Main Street”, it has begun to alienate wealthy and influential Indian-American voters, most of whom were previously supporters of Democratic candidates.

Shipping jobs to India has long been a rival issue between Democrats and Republicans. However, Elizabeth Williamson’s Wall Street Journal article entitled “Outsource Attack Ads Alienate Voters Tied to India” provides a new spin to the decade old party battle. According to the article, USINPAC, the chief Indian-American lobbying group who have long funded the Democratic Party, is now contributing money to Republicans to defeat Democratic candidates who criticize so-called outsourcing.

 One example of Indian-Americans’ new push for the Republican Party is John Kasich, the GOP challenger to Ohio … Read the rest

What hath Madoff Wrought? Private actions under the Martin Act

By: Daniel Scheeringa

The New York statute that has given Attorneys General the power to take on Wall Street, and catapulted many of them into the governor’s mansion, is about to undergo a radical change if a Southern District judge’s ruling is upheld.  In a guest editorial in Westlaw Business Currents, Hall and Johnston of DLA Piper explain the law and recent developments.

Sections 352 and 353 of Article 23-A of New York’s General Business Law (collectively known as the Martin Act) give the Attorney General the power to investigate, regulate, and take action against securities fraud.  Since 1987, the courts have held that the Martin Act is the sole province of the Attorney General, and preempts private tort action for securities fraud.  The Martin Act differs from most other state securities statues by having a much lower evidentiary requirement. The Martin Act requires only proof of misrepresentation (including omissions) … Read the rest

Temporal Folly in the Creating Small Business Jobs Act of 2010

 

The Creating Small Business Jobs Act of 2010, Pub. L. No. 111-240, 124 Stat. 2504 (Title II, H.R. 5297) became law on September 27, 2010. The Joint Committee on Taxation (Committee) estimates that the tax provisions will provide $56 billion in relief to small businesses in 2011. Congress had taken a revenue-neutral approach to the relief, much of it in the form of accelerating depreciation on recent investments in capital assets. The Committee gives an in-depth technical explanation of the new provisions, some of which include:

 

One-year extension of bonus depreciation

Prior to the new law, the fifty percent bonus depreciation deduction on the cost of qualified property investments had expired. Congress has extended the allowance to qualified property acquired and put into service in 2010. This deduction is allowed in conjunction with the otherwise applicable depreciation deduction. The Committee projects that the extension will provide $40 … Read the rest

A Solution to Executive Over-Compensation?



Many television commentators and academics claim that executive compensation is skyrocketing out of control. While the commentary on television is most likely rooted in populism, academics explain this contention by resorting to board capture theory. According to board capture theory, corporate boards of directors are dominated by their firm’s top executives. Thus, when an executive negotiates his compensation, he is effectively negotiating with himself and people who want to keep him happy. Therefore, executives get substantially more favorable compensation packages than they would if their contracts were negotiated in an arms-length and adversarial manner.

A solution to this problem was recently presented to the Illinois Corporate Colloquium by Harwell Wells. In their working paper available on SSRN, “Executive Compensation in the Courts: Board Capture, Optimal Contracting and Officer Fiduciary Duties,1 Professor Wells and Professor Randall Thomas argue that the courts can step in to solve the problem Read the rest

Possible Change on the Horizon for Foreclosure Law

 

The current financial crisis ushered in by the collapse of the sub-prime mortgage market has shaken the foundations of our financial markets, exposed numerous Ponzi schemes, most infamously that of Bernard Madoff, and resulted in a tremendous increase in home foreclosures and bankruptcies.  In many of the current bankruptcy cases the line between a fraudulent conveyance and a legitimate transfer can make a difference of millions of dollars for the legitimate creditors.   In the realm of real estate, this situation has placed on the courts the burden of deciding which is more important: fair and equitable distribution of assets among creditors, or the historical distinctions between fraudulent conveyance law and foreclosure law.  

In the late 1980’s and early 1990’s a trend emerged whereby Bankruptcy courts began to allow homeowners who had become insolvent to avoid sales of foreclosed properties that occurred as early as 1 year before Read the rest

3G’s Whopper of a Problem: the Loss of the Super Fan

On September 2, 2010, 3G Capital announced that it planned to acquire Burger King Holdings. The deal itself is valued between $3 billion and $4 billion with 3G currently working on the tender offer of $24 per share for the company’s outstanding shares. With Burger King being the world’s second largest hamburger fast-food chain, it was not difficult for 3G to find financing for this highly-leveraged buyout. However, is 3G truly ready to tackle Burger King’s problems?

3G Capital is a private-investment firm based in New York with ties to Brazil. Even though Burger King is its first acquisition, 3G Capital brings prior consumer products and retail experience to the table through its previous investments in companies like Anheuser-Busch InBev. Additionally, through “investments in the Wendy’s and Carl’s Jr. restaurant chains,” 3G was able to learn about the fast-food industry. According to Diane Brady in her article, Read the rest