Volume 41, Issue 1

Article

Megacompany Employee Churn Meets 401(k) Vesting Schedules: A Sabotage on Workers’ Retirement Wealth

Samantha J. Prince

Retirement wealth inequality and retirement security are issues that the United States has been grappling with for years. Low-paid and minority workers are most likely to be unable to accumulate retirement savings over time. This Article spotlights Amazon, one of America’s largest employers and one that has very high employee turnover. To be vested in Amazon’s 401(k) matching contributions, an employee must be there for three years—a requirement that is not being met given the much quicker turnover in their low-paid, predominantly minority warehouse workforce.

Until now, there has not been discussion about the grossly unfair result of mixing high employee turnover and 401(k) plan vesting schedules. This Article shows that sizeable high-turnover companies are utilizing legal 401(k) plan vesting schedules to their own benefit with the effect of worsening retirement wealth inequality.

This Article argues two steps are necessary solutions to address this problem. The first argument aligns with President Biden’s order to governmental agencies to step up their data collection to quantify the inequities in the legal system. We need to collect more specific data on gender, race, and pay of those who terminate prior to vesting. This will allow us to assess the impact of vesting schedules on retirement plan inequality.

The Article then argues that megacompanies should be foreclosed from using vesting schedules in their retirement plans. They simply employ too many people, and many are in high-turnover businesses. It is against public and retirement security policy to allow high-turnover megacompanies to shortchange employees and take advantage of vesting schedule use in their 401(k) plans particularly when the goal of using vesting schedules—to retain employees—is not being met.

Something needs to be done to address the direct tension in retirement plan policy when employers that know they have high turnover use a vesting schedule. The Article sets forth various tests as alternatives to immediate vesting. Each method has the potential to incentivize companies to reduce churn. If a company does not want to be subject to a new test, then it could simply amend its plan to immediately vest everyone.

Article

Affidavits Are Forever: Public Charge, Domestic Violence, and the Enforceability of Immigration Law’s Affidavit of Support

Veronica Tobar Thronson

“It’s been a long time financially supporting someone who abuses me. How can an American living at . . . poverty level provide a home for themselves separate from a home for their abuser? And living with an abuser, how can the American be safe or have the right to pursue happiness in their own home that they have paid for with their own labor? Rather, the American is an indentured servant to the abuser, or maybe an unhappy slave.”*

* Email from anonymous U.S. citizen to the author (March 5, 2019, 10:25 AM) (on file with author) (commenting on her obligation to financially support a man who had abused her because of an affidavit of support filed in connection with the abuser’s immigration application).

Article

Homelessness in the COVID Era: Utilizing the Bankruptcy Solution

Geoffrey K. McDonald

Homelessness is a national crisis in the United States. In the wake of the COVID-19 pandemic, there is no doubt that the nation will face a crisis of evictions and foreclosures, similar to what was seen as a result of the 2008 financial collapse. This, in turn, will lead to an increase in homelessness, which disproportionately impacts communities of color. While moratoria on evictions and foreclosures are good and necessary, they cannot go on indefinitely, and they cannot solve the underlying crisis, which may result in tens of millions of people facing homelessness.

This Article addresses the ongoing epidemic of homelessness in the United States, with a particular focus on the country’s two largest cities: Los Angeles and New York City. Special attention is paid to the ways in which the COVID-19 pandemic will likely impact the homelessness crisis. The Article also demonstrates how filing for bankruptcy protection can be beneficial to tenants and homeowners who are facing eviction or foreclosure.

While there are many causes for the epidemic of homelessness and various potential solutions, the bankruptcy process has been underutilized as a tool for preventing homelessness. This Article addresses the ways in which bankruptcy can be better employed in this regard. Specifically, the Article addresses how bankruptcy can be used to stop an eviction or foreclosure and how the procedures available under the Bankruptcy Code can help distressed debtors discharge certain debts, restructure other debts, and obtain a “fresh start” in order to better afford their housing costs going forward.

In addition, the Article suggests ways in which the Bankruptcy Code may be amended to better serve as a tool for preventing homelessness in cases of eviction and foreclosure, as well as other potential solutions to the homelessness crisis, outside of bankruptcy. The Article concludes with reflections on the moral bankruptcy of a public policy that fails to adequately address extreme poverty, suffering, and homelessness in society.

Note

Septic Shock: Wastewater Infrastructure, Urban Growth, and Local Exclusion

Nathan A. Cummings

It has long been understood that public utilities, and especially sewers, play a powerful role in shaping patterns, rates, and forms of urban development. But decisions about whether and where to build this “growth-shaping” infrastructure are largely left to local communities, who frequently resist sewer expansions in order to keep development down and new residents out. Nevertheless, housing advocates too often focus solely on the effects of local exclusionary zoning policies, without also interrogating the underlying planning decisions that have created the lack of infrastructure used to justify these policies.

This Note attempts to bridge that gap. State and federal interventions promoting sewer construction in high-demand areas offer a potent, yet underutilized, tool to address the United States’ housing crisis. While the federal government has recently signaled its interest in pursuing such a policy, its past interventions in local wastewater development have created more problems than they have solved. These prior efforts have created a backlash against sewer projects by flooding states with money and encouraging haphazard development. As the United States faces concurrent calls to both build new housing and upgrade its failing infrastructure, current policymakers should learn from this history to design new programs that promote wastewater development in targeted high-demand areas through both financial incentives and penalties.

Note

True Co-Management: Critical Approaches to Indigenous Food Sovereignty

Alexandra Fay

This Note examines the Inuit Circumpolar Council Alaska’s project to achieve Inuit food sovereignty through cooperative agreements between tribal, state, and federal agencies for the co-management of Arctic food resources. The Note employs approaches from political ecology and critical race theory to evaluate risks of Native participation in co-management and identify means to mitigate the colonial tendencies of American law and environmental policy. Ultimately, it offers power sharing and ontological hybridity as criteria for “true co-management,” the form of cooperative resource management that affirms tribal sovereignty. The Notes locates both criteria within the Inuit Circumpolar Council’s framework.

Policy Article

When a Statute Loses Its Way: Fulfilling the Original Intent of the California Environmental Quality Act

Rigel Robinson

The California Environmental Quality Act (CEQA) provides for significant public input on public projects, analysis of a project’s environmental harms, and the opportunity for private actors to sue if they believe they will be negatively impacted by a project. Increasingly, this landmark legislation is being abused to manipulate the public process, resulting in harmful delays to projects that may be essential to the state’s housing and climate goals. Policymakers must consider the extent to which this tool of direct democracy and accountability has become a tool for special interests and individuals to exert veto power over public projects. In the case of the recent UC Berkeley enrollment lawsuit, the potential for CEQA abuse to result in clear negative impacts has reignited an important conversation about the role of the law. Reforms are necessary to ensure that CEQA can fulfill its original intent as a protection against environmental harms, rather than as a tool for private actors to delay or defeat public projects.