A Captivating New Paper

Paul Secunda argues in a new paper on SSRN that the National Labor Relations Act should be interpreted to prohibit “captive audience meetings.”  Employers require employee attendance at such meetings in order to communicate anti-union messages.  Paul has written interestingly about captive audience meetings from a number of perspectives (see, e.g., here).  In the new paper, he critically examines NLRB precedent that approves of such meetings.

Entitled “The Contemporary ‘Fist Inside the Velvet Glove’ — Employer Captive Audience Meetings Under the NLRA,” the paper will be published in a symposium issue of the Florida International University Law Review devoted to the NLRB.  The abstract appears after the jump. 

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ERISA Supreme Court Attorney Fees Case Goes Way of Plaintiffs

4United States Supreme Court 112904 For those who care about ERISA participants and beneficiaries being able to find good counsel for their claims, the U.S. Supreme Court decision this morning in Hardt v. Reliance Insurance Co., No. 09-448 (U.S. May 24, 2010) is welcome news.

In a nearly unanimous opinion written by Justice Thomas (Justice Stevens wrote to concur in part), the Court held that:

A fee claimant need not be a “prevailing party” to be eligible for an attorney’s fees award under §1132(g)(1) [Section 502(g)(1)]. Interpreting the section to require a party to attain that status is contrary to §1132(g)(1)’s plain text. The words “prevailing party” do not appear in the provision. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either party.” (Emphasis added.) That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions to recover delinquent employer contributions to a multiemployer plan. In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees.§1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” requirement, the Fourth Circuit’s decision adding that term of art to the statute more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U. S. 349, 359.

The case is interesting because it poses a common legal issue in ERISA litigation.  The court, after pointing out problems with a plan administrator’s interpretation of plan terms, remands the case back to the company and the company ends up awarding the initially requested benefits to the employee.

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What Does Citizens United Mean for the Workplace?

Few recent Supreme Court decisions have provoked such heated debate as Citizens United v. FEC, which undermined federal restrictions on corporate and union contributions to political campaigns.  Despite all of the discussion of Citizens United, little attention has been paid to the decision’s implications for the workplace.   In a new paper on SSRN, however, Paul Secunda argues that Citizens United may have the effect of lifting some longstanding restrictions on the ability of employers to communicate political messages to their employees.  Paul argues for a statutory response that would prohibit the termination of employees for refusing to attend political meetings at the workplace.

Paul’s paper, entitled “Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment,” appeared in the Yale Law Journal Online here.  The abstract appears after the jump. 

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