In Case of ERISA Violation: Exhaust the Exhaustion Requirement

Source: Wai/Ikon Images/Corbis via www.thinkadvisor.com

By Niya Ge

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This Note argues that when a cause-of-action is based on a statutory breach, employee benefit plan participants and beneficiaries under ERISA should not be mandated to exhaust internal administrative remedies provided by the plan before filing suit in district court. This Note provides a brief background of the relevant ERISA provisions, and will then overview various court decisions and rationales falling on both sides of the issue. This Note argues that an administrative exhaustion requirement does not align with the plain language and Congressional intent of ERISA, and such a reading will only force aggrieved participants and beneficiaries to partake in an inefficient and futile procedural obstacle.… Read the rest

Moving Forward from the FAMILY Act: Implications for Working Women, Business, and Contemporary Conditions of Caretaking Labor

Sources: The Next Web & Shutterstock

By Kelly Chen

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In response to the historical rise of women in the workforce, Congress asserted Family and Medical Leave Act (FMLA) that aimed to preserve women’s employment status through mandating unpaid parental leave. While still in force today, the Act fails to adequately deliver its promise to resolve the difficult choice women face between work and family care. The Family and Medical Insurance Leave Act (FAMILY Act) unsuccessfully sought to provide a comprehensive, national paid parental leave program. This Note argues that a national paid leave program should be resurrected to ameliorate the gender disparity embedded in conditions of parental caretaking. The Note examines the historical development of the FAMILY Act through discussion of FMLA’s goals and limits. Additionally, the Note analyzes popular arguments put forth by the FAMILY Act’s supporters and critics and explains how the Act would … Read the rest

The Sharing Economy: Airbnb’s Discrimination Problem

Source: Airbnb

By Jason Shultz

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Racial discrimination is a systemic issue deeply rooted in American society. One company within the sharing economy cannot possibly change the behavior of the individual hosts that are essentially landlords. This Note examines how Airbnb hopes to achieve an inclusive community for its users, how the new policies will affect hosts and guests, as well as Airbnb as a corporation, and how the traditional Fair Housing Act applies to Airbnb’s hosts. Finally, this analysis will illustrate how Airbnb’s new focus on inclusion will impact the sharing economy as a whole. Airbnb needs to work with the government to change the current exceptions that allow certain landlords to discriminate against classes of people. These changes include both eliminating the exceptions and reclassifying how landlords are treated under government regulations. By working with lawmakers and other sharing economy companies, Airbnb can make a … Read the rest

Chipotle and the Need for HR Oversight In Settlement Avoidance Strategies

By: Matthew Lowe

Introduction

When litigation looms for large corporations, settlement becomes a key part of the strategy discussion. In order to avoid the costliness associated with, and reputational damage from, lengthy trials, it is not unexpected for a company to dip into its litigation budget and pay a premium to avoid the hassle. Some companies, however, adopt the opposite strategy: settlement avoidance. If a company is to adopt such a strategy, it will also need to adopt proper defensive measures, such as the implementation of adequate Human Resources (“HR”) oversight, in order to effectively ride out the storm of the trial.

Background

Following Chipotle Mexican Grill, Inc. (“Chipotle”) going public in January of 2006, it came to be known as an “industry darling”.[1] Recognized for its transparency and its commitment to utilizing farm-fresh, high-quality ingredients, Chipotle was a trendsetter and leader in the fast-casual movement in dining.[2]Read the rest

Pregnancy Discrimination in The Workplace: Proposed Changes in The Law

By: Thomasin Sternberg

The impact women have on the workforce is not minute. In 2010, 46.8% of the labor force in the United States was comprised of women.[1] Yet many working women feel pressured to choose between having families and advancing their careers. The pressure to make this choice is detrimental to the advancement of women, leading to gender discrimination and inequality. According to a study published by UC Hastings College of Law, 43% of working women leave the work force to raise their children. [2] With women in such great numbers ultimately choosing family over work, many employers are mindful of how this choice will effect them when making hiring, firing, and promotion decisions. Oftentimes this leads to gender-based discrimination in the work place when employers give preferential treatment to male employees to avoid the costs associated with maternity leave.[3]

            A number of federal and state laws Read the rest

Gossip in the Workplace: A Right or Privilege?

On November 28, 2013, Joslyn Henderson filed a complaint against her former employer, Laurus Technical Institute (Laurus), with the NLRB’s Regional Office in Atlanta.[1] The complaint alleged that Laurus violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by “maintaining and enforcing an overly broad ‘No Gossip Policy,’ and by suspending and terminating the charging party for violating the ‘No Gossip Policy’ and engaging in protected, concerted activities.” [2] As expected, Laurus filed a timely answer effectively denying any and all unlawful conduct.[3] The legal issue presented in this case was whether or not an employer can implement a workplace policy effectively prohibiting all communication between employees that the employer deems to be “gossip” or not contributing to workplace productivity.

 

Laurus operates a private, for-profit technical school with three campuses in Georgia: Decatur, Jonesboro and Atlanta.[4] Henderson worked as an admissions representative at Laurus’ Decatur Read the rest

Go U, NU(nionize): Are College Football Players Student-Athletes or Student-Employees?

On January 28, 2014, the National College Players Association, on behalf of a group of Northwestern University football players, filed a petition with the National Labor Relations Board (“NLRB”) seeking to form a union.  While the college pay-for-play debate is well documented, a request for union representation by such athletes is unprecedented.  There is no denying that collegiate athletics, with its TV revenue, licensing fees, merchandising, and ticket sales, has become a multi-billion-dollar industry.  However, NU players claim that their central concerns are related to health, education, and other basic rights, not salaries – at least not yet.  In an official statement released by Northwestern, the University has taken the position that, while it is “proud of [its] students for raising these issues,” not only are student-athletes students, not employees, collective bargaining would “not advance the discussion” of relevant topics.  If college football players get recruited, much like Read the rest

3 1 / 2 Job Hiring Practices That Can Skew Your Qualifications

 


Hiring practices have come a long way over the past century. There are now stringent laws which prevent hiring discrimination based on race, color, religion, sex, national origin, age, disability or genetic information.[1] As a result, when an individual submits a job application, they should be evaluated based on their qualifications. Unfortunately, there are still hiring practices that may prevent a qualified person from acquiring a job.

 

1. Excluding the Unemployed

Some employers advertise that the unemployed need not apply.[2] It is absurd, however, to say that being unemployed can make someone unqualified to work without taking other factors into account. Accordingly, this hiring practice is banned in some states[3] and has a federal platform against it.[4] Furthermore, this hiring practice disproportionately impacts African Americans, mothers returning to the workforce, and older workers.[5]Read the rest

Oral Complaints and Their Effect on Summary Judgment for FLSA Retaliation Law Suits: Kasten v. Saint Gobain

On March 22, 2011, the Supreme Court came to a decision in Kasten v. Saint GobainThe Seventh Circuit had ruled that an oral complaint made to an employer who the employee believed was violating the Fair Labor Standards Act (“FLSA”) did not fall under the anti-retaliation provision of the act. The Court reversed the Seventh Circuit and found that an oral complaint was sufficient. This decision raises questions about the standards under which summary judgment could be granted in an FLSA retaliation case.

Prior to this decision, it was easy to determine whether or a filed complaint complied with the standards of the retaliation provision. The Court in Kasten spells out exactly what a complaint which complies with the statute would look like. Essentially the complaint would have to be “sufficiently clear and detailed for a reasonable employer to understand it.” The employee would have to ensure that Read the rest

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