I have been telling students in my employment law class for years that the reported unemployment rate that so many in this country depend upon is a farce and does not nearly capture the full number of the people without jobs or underemployed in the United States.

Daniel Gross of Slate does a nice job explaining this latest form of voodoo economics:

It’s hard to overstate the poor numbers coming out of Wall Street in recent months. But could it be that we’re overstating the gravity of the situation? As job losses have mounted and consumer confidence has plunged, policymakers, news organizations, econo-pundits, and even some of my Slate colleagues have noted that the unemployment rate, which rose to 6.1 percent in September, seems to be at a nonrecessionary, noncatastrophic, low level. The unemployment rate is still below where it was in 2003; and between September 1982 and May 1983, the last very deep recession, it topped 10 percent . . . .

But maybe the employment data are much worse than they seem.

Not so much.

You may recall that after the Supreme Court in LaRue v. DeWolff, Boberg, and Associates found that individuals could bring breach of fiduciary claims against their plans for mismanagement of their 401(k) accounts, there were many who predicted that such 401(k) suits would overwhelm the courts and generally spell disaster for the judiciary of this country (I didn’t predict that, but I thought the principle of the holding was an important one).

Now, that coming avalanche of litigation might still happen in some world where the sky is green, but interestingly I just received word from DeWolff, Boberg’s Supreme Court advocate, Tom Gies of Crowell and Moring, that Mr. LaRue has voluntary dismissed his claim in the action recognizing that he could not meet the applicable statute of limitations.  Yup, that’s right. These claims are now so easy that Mr. LaRue decided he couldn’t proceed.  In short, these types of claims are still extremely difficult for plaintiffs to prevail upon — for one reason, because of the statute of limitation issue that bit Mr. LaRue in the behind — and all the doomsday prognostications to the contrary seem just a tad off.

Cross posted at Workplace Prof Blog.

Thanks to Ross Runkel for providing this summary of an interesting new Garcetti public employee free speech case, Posey v. Lake Pend (9th Cir. 10/15/2008), considering whether the determination of if an employee is speaking pursuant to his official duties is a question of law or fact.  Of course, this is an important question because it goes to whether these cases can be disposed of by the court on summary judgment:

Posey sued the public employer, asserting a claim for 1st Amendment retaliation.  The trial court granted summary judgment in favor of the employer.  The 9th Circuit reversed.

The court framed the primary issue on appeal as “whether, following the Supreme Court’s recent decision in Garcetti v. Ceballos, 547 IS 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law.”