Happy Ending?

Does this story reporting a $3 million verdict in favor of Nancy Olipares in her claim against the city of Honolulu fit the narrative of the whistle blower about which we spoke in class yesterday?

Illegal Briefs?

From the incomparable Workplace Prof Blog, we are directed to a story about the CEO of American Apparel, who apparently prefers to go "apparel-less." An employee of his is claiming that the CEO's practice of running meetings nearly nude resulted in a sexually hostile work environment.

In a few weeks when we focus on Title VII and the claim of sexual harassment, we'll discuss the requirement that an alleged victim of harassment must prove that the perpetrator targeted the victim because of the victim's sex. Here the defense is that Mr. Charney, the nearly-naked CEO, didn't target Ms. Nelson, his employee who is complaining of sexual harassment, because of her sex. Rather, he treated everyone -- male and female alike -- to the same uncomfortable experience.

In a pretrial brief the defendants counter that Nelson was not discriminated against based on her sex because everyone at the company was subjected to the same sexually explicit workplace. The answer brief says Charney did not dress as he did in Nelson's presence because she is a woman. Rather, he wore his underwear to meetings for many reasons, including "product development, testing product fit, marketing, promotion, sales and even just humor," according to the brief.

As Workplace Prof Blog suggests, this is the tale of the "equal opportunity harasser."

Another interesting aspect of this type of claim, which we will discuss in a couple of weeks, is whether an employee should expect a certain amount of sexually charged behavior to be directed at her when she takes a job in a company or industry that is known for such.

"American Apparel is a workplace where employees of both genders deal with sexually charged imagery, conduct, speech and photographs as part of their jobs, and such conduct and speech does not constitute sexual harassment," the brief says.

Did Ms. Nelson get only what she should expect?

A Fashion to Die For

A friend's recent exposure to a Brazilian model's struggle with anorexia nervosa got me thinking about the law behind the health of models and the regulation that doesn't seem to exist. In a class discussing the disease anorexia nervosa, two pictures of a Brazilian model that died in 2006 were shown to demonstrate the effects of the disease. One picture displayed a typical, but presumably healthy, woman, while the second featured the same model looking emaciated and sickly. The second picture was shocking and unnerving as it revealed her bulging rib cage.

When I saw the second picture displaying the extremely thin and clearly unhealthy body, I thought to myself, "Why would the modeling agency allow her to continue working? Can't they see that she is very sick?" While I know that BFOQs protect the agency's right to require that models meet certain physical qualifications, shouldn't the law be regulating the requirements so that the models aren't endangered when meeting or exceeding the weight requirements? In an article written the week of the 21 year old model's death, in 2006, it was reported that she had the body mass index of a 12 year old girl. Shocking as this may be, it was this body that was allowed to continue working as a professional model. How did the industry allow this model, and so many others like her, get this far? Are the agents too closely connected to the industry to be able to clearly see when the models are in danger? It is my concern that the modeling agency may not be in the best position to make the decision of what models are healthy and what ones in need of assistance because they so regularly accept very thin women as normal weight. Considering this fact, it seems that external regulation from legislature should be used to assist in determining what models are at a permisible weight. The inclusion of external regulation is not done due to the fault of the agency, but is imposed based on the truth that sometimes outsiders can see the truth easier than insiders.

In 2006, the modeling industry banned underweight models from walking in one of Spain's largerst fashion shows. I applaud the industry's attempt, but still in 2008 with the popularity of modeling television shows, I see that not much has changed. The owners of modeling agencies pinch every inch of skin and claim that the models need to lose weight. My questions are: Was the ban on underweight models used to make a one- time statement? And where is the lawful enforcement of a much needed regulation?

To read the referenced article visit: http://www.foxnews.com/story/0,2933,230326,00.html
To see the referenced Google images visit:
http://foxnews.com/story/0,2933,230326,00.html
http://amha.be/renegirard/share/mannequin anorexique.jpg

Insurance, Wellness, and the Potential for Discrimination

One of the topics that I've always felt our class explores too little is employer-provided insurance benefits, especially the issues surrounding health insurance. So, I'm going to try to include periodic posts to make up for the lack of time we spend in class.

In that regard, a recent article from the Wall Street Journal Online's Career Journal caught my attention. In "Wellness Plans May Face Hurdle for Penalizing Unhealthy Workers," Victoria E. Knight describes employer-sponsored wellness plans that reward employees for hitting particular wellness benchmarks (e.g., nonsmoking, healthy body mass index, proper cholesterol count, etc.). The rewards often come in the form of reductions in the employee's deductible amount under the main health insurance plan the employer offers. Knight describes the following example:

Vital Measures is one wellness program where credits are issued under a supplemental policy. Launched in July by UnitedHealthcare, a unit of UnitedHealth Group Inc., and BeniComp Group of Fort Wayne, Ind., the program is available to companies with 100 to 1,000 employees in Rhode Island, Pennsylvania, Colorado and Ohio. Typically, employees sign up for a health plan with a $2,500 deductible and can then participate in a free, confidential health screening for body-mass index, cholesterol, blood pressure and non-nicotine use. For each test workers pass, they earn a $500 credit toward their deductible, issued under a supplemental plan, BeniComp Advantage.

On the surface, these plans seem like a creative way to encourage employees to get or stay healthy, thereby allowing employers to save money on health insurance premiums. And they may (or may not ) do just that. Regardless, the Department of Labor's Employee Benefits Security Administration has issued guidelines that will affect their administration.

These wellness plans may be subject to regulation under the Health Insurance Portability and Accountability Act ("HIPAA"), a federal law that regulates a number of aspects of the health insurance industry. If the wellness plan is group health insurance coverage, it cannot discriminate among groups members on the basis of an individual's "health factor" in determining eligibility, benefits, or premiums. The Department of Labor considers current health status, medical condition, and genetic information or predisposition just such health factors.

Read the article to find out how an employer can avoid violating HIPAA requirements and still maintain a supplemental wellness program. Then leave your thoughts in the comments about these wellness programs, the pervasiveness of regulation in this area, or anyting else about the topic or article that gets you thinking . . . .

MLB and Steroids: Will the Debates Ever End?

As many people are aware, there has been an on-going issue regarding the use of illegal substances in Major League Baseball. This controversy has caught much criticism from the public, especially those thinking the player's union is to blame for not imposing strict drug testing policies. Recently, I saw on ESPN that Congress met to further assess the situation. I found it interesting that it was repeatedly noted that although there appear to be more "important" issues to be discussed by Congress, this topic heavily influences young athletes; members of Congress claimed this notion of such heavy, negative influence on our youth is a topic that is just as important as any. A recent article on ESPN.com further analyzes the most current news going on with this issue, including Congress' questioning of the accuracy of Tejada's testimony to federal authorities. Personally, I am growing weary of hearing about steroids and cannot wait for MLB to return to a period of normalcy, whatever that may be!

Glamorous v. prestige

Our previous class discussion (the one before our guest speaker) in which we read the article about the diminishing prestige and popularity of becoming lawyers and doctors really got me thinking. As I watched Mark Zuckerberg, 23 years old, CEO of Facebook, being interviewed on 60 Minutes, I thought to myself, “Why couldn’t I do that?” I mean, here’s a guy who is only one year older than me, and he’s in charge of his own company in comparison to me, a soon-to-be college graduate, a soon-to-be in debt and unemployed college graduate.
One thing that I connected with this interview was the idea that pursuing a career as a doctor or lawyer requires years of schooling, which requires money (to pay tuition) and hard work (to receive good grades and graduate). Who wouldn’t want to skip years of schooling and still succeed. Many people pursue higher education to obtain a better job. Zuckerberg, a Harvard drop out, has, in my opinion, an ideal job – a company of his own design and millions of dollars. Zuckerberg is not the only success story; Bill Gates, one of the richest men in the country, and Matt Damon, the 2007 sexiest man alive, also dropped out of school, obtained careers that brought them fortune and fame.
I believe this connects very well with what Abbey mentioned in class, that with our generation “Everyone’s special.” Wouldn’t we all like to believe that we are in fact so special we don’t need further education and within ourselves are ideas for companies and we’d become rich or famous?

Using Technology to Build the "Will" to Stay in the "At-Will" Relationship

Tomorrow we begin a couple of class sessions in which we discuss the dominant employment relationship in the U.S.: employment-at-will. There are benefits and drawbacks to the at-will relationship for both employers and employees. In general, it's easy enough to see that employment-at-will leaves the employee with less employment security in any particular job, but concomitantly leaves the employer with the ability to manage its workforce with some agility (to downsize when needed, for example).

We may less often focus on the flipside of that benefit/drawback comparison. Nevertheless, it's important. Employees have flexibility to leave a job for a better opportunity -- or simply because they're unhappy -- without any liability to the employer. Because of that flexibility, employers can lose significant investments in training employees who subsequently leave, must deal with competition from other employers (especially in a labor shortage), and can find themselves with significant gaps in human talent when employees leave.

The Wall Street Journal Online has an interesting story regarding how some companies are trying to manage and avoid those drawbacks and to encourage good employees to develop the "will to stay" with talent-management technology. Check it out here at Career Journal.

Crack Is Whack, But Selling It Is a Job!!

So says the Ohio Supreme Court in State ex rel. Lynch v. Indus. Comm., Slip Opinion No. 2007-
Ohio-6668, in which it was asked to determine whether Mr. Lynch's ongoing crack cocaine selling enterprise constituted "remunerative employment" such that he should be disqualified from receiving the total disability workers' compensation payments he had been receiving after he was injured in an industrial accident 40 years ago.

The court said the following:

Lynch also claims that the commission cannot consider the activity he engaged in to be sustained remunerative employment, because the activity was illegal. We disagree. Lynch cannot use the illegality of his pursuits as a shield. Lynch exchanged labor for pay on a sustained basis. This constitutes sustained remunerative employment for purposes of permanent total disability.

The lesson is, if you can work -- even if the work you're doing is illegal, you are not toally disabled. Or, if you can make money in an illegal enterprise, you have the ability to go make money legally.

US Supreme Court Hears Arguments in Two Interesting Cases Today

According to my perusal of SCOTUSBlog, an invaluable resource for all things Supreme Court, the U.S. Supreme Court will hear arguments in two cases of interest to us today.

This afternoon, parties will present their arguments in a case involving issues of age discrimination and retirement plans in Kentucky Retirement Systems v. EEOC.** According to the "liibulletin" from Cornell Law School's Legal Information Institute, the case involves the following:

This Petition involves a public employee retirement plan that includes normal and disability retirement benefits. A member who is eligible for normal retirement benefits based on attained age plus a minimum service requirement, or based on service alone, is not eligible for disability retirement benefits. Because age may be a factor in determining eligibility for normal retirement, it is an indirect factor in determining eligibility for disability retirement. Moreover, the calculation of disability retirement benefits is based upon actual years of service plus the number of years remaining before the member reaches retirement age or eligibility based on years of service alone; age may thereby be an indirect factor in determining the amount of disability retirement benefits.

The question presented in this Petition is accordingly: Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

The other case, which the Supreme Court will hear this morning, isn't an employment law case. Rather it's of interest to some of us, because it involves whether the Indiana voter ID law violates the U.S. Constitution. See the description of the issue in that case here.

** In the interest of full disclosure, I should note that my former colleagues at the Indianapolis District Office of the EEOC have been handling this case at the trial level. In fact, I worked on this case a number of years ago when I was still at the EEOC, on an issue unrelated to the one that the Supreme Court will consider today. I cannot remember whether my involvement was formal (i.e., whether I entered an appearance on behalf of the EEOC in the case) or whether it was informal (i.e., if I just helped draft a portion of a brief).

Welcome to the Third Iteration of the Work/Life/Law Blog

It's our third semester and third group of student contributors to the Work/Life/Law Blog. We're going to see if we can't spice things up a little this semester. We may host a guest blogger or two. We may also see if we can't get another class or two at another institution to comment on the blog from time to time.

In the meantime, here's a reminder of what this project is all about. Below I've copied the inaugural post on the Work/Life/Law Blog from back in January 2006.

This blog will use, as a jumping-off point, a variety of laws and legal regimes that target and regulate work and the workplace in order to explore how life, work, and law interact and, more specifically, to analyze some important policy issues that affect how we live, by affecting how we work. We'll highlight articles in the mainstream media, comment on relevant posts by other bloggers, and provide some original content flowing from our class readings and discussions. While this blog is intended primarily to be an extension of the seminar for the class participants, we welcome the thoughtful and respectful contributions** of anyone who is interested in the topics we pursue.

**NOTE: For the time being, we are happy to permit comments from readers who are not members of our class. However, this is not a public forum and the administrator of this blog will exercise the right to close comments to non-members and/or delete unhelpful, off-topic, and intemperate or disrespectful comments without notice and subject only to his reasoned judgment. Non-anonymous comments are appreciated and will be less likely to fall prey to arbitrary and capricious deletion.

That still fairly sums up our goals, even for version 3.0 of our blog. We hope you check back often and let us know you're reading.