Law Commons^™

Reforming Pensions While Retaining Shareholder Voice, David H. Webber

Faculty Scholarship

Public pension and labor union funds have been the driving force in diversified shareholder activism. They have also fended off attacks on jobs and proactively created jobs for fund contributors. These funds currently represent almost $4 trillion in assets over which workers have substantial control. That worker control - and the collective nature of defined benefit pension plans - is the necessary precondition for their shareholder activism. Both worker control and collective investment are directly threatened by the rise of defined contribution funds, particularly by well-funded efforts to promote the 401(k) in the public sector, the last bastion of the …

Regulating Employment-Based Anything, Brendan S. Maher

Faculty Scholarship

Benefit regulation has been called “the most consequential subject to which no one pays enough attention.” It exhausts judges, intimidates legislators, and scares off theorists. That need not be so. Reality is less complicated than advertised.

Governments often consider intervention if markets fail to make some socially desirable Good X — such as education, health care, home mortgages, or pensions, for example — sufficiently available. One obvious fix is for the government to provide the good itself. A less obvious intervention is for the government to regulate employment-based (EB) arrangements that provide Good X as a benefit to employees and …

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …

Insecure Retirement Income, Wrongful Plan Administration And Other Employee Benefits Woes -- Evaluating Erisa At Age Thirty, Maria O'Brien

Faculty Scholarship

Book Review of The Employee Retirement Income Security Act of 1974: A Political History by James A. Wooten.

Goeres and the many other recent cases like it¹⁰ are remarkable after Mertens and Great West, both for the persistence of the ERISA plaintiff's bar in trying to find ways to obtain make-whole relief in egregious cases and for the continued refusal of Congress to amend ERISA to provide adequate make-whole remedies."¹¹ A patently unjust and inefficient legal regime continues to replicate itself again and again. Conduct that clearly constitutes breach of fiduciary duty, negligent plan administration or worse, …

Same Sex Marriage And Its Implications For Employee Benefits: Proceedings Of The 2005 Meeting Of The Association Of American Law Schools Sections On Employee Benefits, And Sexual Orientation And Gender Identity Issues, Maria O'Brien, Constance Hiatt, Shannon Minter, Teresa S. Collett

Faculty Scholarship

Professor Maria O'Brien Hylton*: Welcome to this session on "Same Sex Marriage and its Implications for Employee Benefits." I'm Maria Hylton and I will introduce our speakers and moderate the program.

Our first speaker is Constance Hiatt, who is a partner with the Hanson Bridgett law firm here in San Francisco. She represents mostly large employers and large employee benefit plans, including the State of California's 401(k) and 457 plans as well as the University of California's benefits office. So, she has extensive experience in the employee benefits area and she came to us, to me really, through several …

The Changing World Of Employee Benefits, Maria O'Brien

Faculty Scholarship

When I graduated from law school in 1985, there were no courses offered in employee benefits law. Nor, as near as I can recall, was ERISA ever discussed in any of the labor and employment classes I took. There was no mention in the introductory labor law course or in other classes about employment discrimination, union organizing, and employment arbitration. Now, in contrast, many law schools include a course on employee benefits and ERISA, and students hoping to work in the labor and employment area frequently find that ERISA work is plentiful, and traditional NLRA work is not. This, of …

Employee Benefits Law: Foreword, Maria O'Brien

Faculty Scholarship

Over the past twenty or so years, the range of employee benefits offered by employers - both large and small - has expanded dramatically. The old (and relatively short) list of "fringes" typically included health insurance, a pension plan, paid holidays and group life insurance. There was, of course, some variation in this list, especially across industries. But, by and large, employers did not concern themselves in a formal way with "modern" benefits such as elder care, child care, legal assistance, flex time, and parental leaves. As a recent study by the Society for Human Resource Management' suggests, employers have …