January 2008
SOX and Preemption The United States Constitution states that federal laws are the supreme law of the land. As a result, federal laws may preempt conflicting state laws. Whether the federal laws actually preempt a state law depends on the intent of Congress. For example, Title VII does not preempt state law, because Congress decreed that there be cooperation between state and federal enforcement of anti-discrimination laws. The Supreme Court has found Congress' intent as to OSHA preemption to be less clear, although states may escape preemption by choosing to take responsibility for administering a state safety and health administration. A recent Oregon case held that the Sarbanes-Oxley Act ( SOX) did not preempt a state wrongful discharge claim. In this case, a whistleblower complained to management of his employer that he believed there were serious financial irregularities. He claimed that they may have overstated their books by between $32,000,000 and $128,000,000. The employer moved to dismiss his state claim on the grounds it was preempted by SOX. The court refused to dismiss the claim for two reasons. First, the court held that “SOX explicitly states that ‘nothing in [the remedies] section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law. …'” Oregon law provides punitive damages, while SOX does not. As a result, were SOX to preempt state law, injured employees could not receive punitive damages. Willis v. Comcast of Oregon, Case No.06-1536-AA (D. Ore. Oct. 25, 2007).
Labor Rights as Public Rights The NLRB General Counsel has issued a Memorandum on an issue that was discussed in the November LEL Newsletter in connection with the BP Amoco Chemical – Chocolate Bayou case. http://leraweb.org/publications/labor-and-employment-law-newsletter/labor-and-employment-law-news- november-2007 The issue is whether the rights and remedies under the National Labor Relations Act are private rights that belong only to the Charging Party and that the Charging Party can settle at will or public rights whose remedy is controlled by the General Counsel. Here is the NLRB General Counsel's Memorandum on that issue.
Office of the General Counsel Memorandum OM 08-13 Cases Involving Severance Agreements Containing Waivers Executed Prior to the Filing or Investigating of an Unfair Labor Practice Charge (Dec. 5, 2007) http://op.bna.com/dlrcases.nsf/id/smgk-79mnuw/$File/siegel125.pdf
In BP Amoco Chemical – Chocolate Bayou, 351 NLRB No. 39 (September 29, 2007), the Board deferred to employee severance agreements waiving all claims relating to the employees' terminations in exchange for enhanced severance benefits. The Board majority based its decision on the analysis set forth in Independent Stave1 and concluded that the presence or absence of unfair labor practice charges at the time the waivers were executed is “not dispositive.”2 1 Labor and Employment Relations Association (LERA) www.LERAweb.org
In Hughes Christensen Co.,3 the Board held that the validity of severance agreements containing waiver language should be governed by the same Independent Stave standards as other private, non- Board settlements.4 In Hughes Christensen itself, the Board deferred to a severance agreement that had been executed after the unfair labor practice charge at issue had already been filed, investigated, and dismissed by the Regional Director, but prior to the time the Office of Appeals sustained the union's appeal and authorized complaint. Thus, the region had investigated the charge prior to the severance agreement, and the Board was able to examine the allegations and determine that no additional action was necessary to vindicate the public interest. Between [sic] it's decisions in Hughes Christensen and BP Amoco, the Board refused to defer to private agreements executed prior to the filing or investigating agreement, stating that the fact that the agreement was executed prior to the filing of a charge was “further reason to find that the agreement does not preclude us from affording relief to [the discriminatee].”6 Because BP Amoco does not decide this issue likewise, but instead suggests only that the timing is “not dispositive,” there appears to be some tension between the Board's approach in its prior jurisprudence (Weldun, Webco, and Clark), and its recent decision in BP Amoco.7 In order to adequately consider and accommodate these concerns, a new approach to cases involving waiver agreements executed prior to the filing or investigating of an unfair labor practice charge may be warranted. Accordingly, in light of the important issues raised in these cases, please investigate fully and submit to the Division of Advice all otherwise meritorious cases involving severance agreements or other agreements waiving the right to file unfair labor practice charges, where such agreements were executed prior to the filing or investigating of the charge. If you have any questions concerning this matter, please consult your Assistant General Counsel or Deputy or the undersigned. ___ 1 Independent Stave Co., 287 NLRB 740 (1987). 2 BP Amoco, above, slip op. at 2 fn. 8. 3 317 NLRB 633 (1995). 4 Under Independent Stave, the Board will determine whether to defer to non-Board settlements of unfair labor practice charges by examining all the surrounding circumstances including, but not limited to: (1) whether the parties have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the violations alleged, the risks inherent in litigation, and the stage of litigation; (3) whether there has been any fraud, coercion, or duress by any party in reaching the settlement; and (4) whether the respondent has a history of violations of the Act or has breached past unfair labor practice settlement agreements. 287 NLRB at 743. 5 Weldun International, 321 NLRB 733, 734 fn. 6 (1996); Webco Industries, 334 NLRB 608, 611 (2001), Clark Distribution Systems, Inc., 336 NLRB 747, 750-51 (2001). 6 334 NLRB at 611. 7 BP Amoco, above, slip op. at 2 fn. 8.
Web Links Tony Mazzocchi Center, United Steelworkers, New Perspectives, Beyond Texas City: The state of safety in the American refinery industry http://www.usw.org/usw/program/content/BeyondTexasCity.php
Army Corps of Engineers, CFD Study and Structural Analysis of the Sago Mine Accident http://www.msha.gov/sagomine/CFDSagoReport.pdf (153 page pdf)
2 Labor and Employment Relations Association (LERA) www.LERAweb.org
Private Pensions: Low Defined Contribution Plan Savings May Pose Challenges to Retirement Security, Especially for Many Low-Income Workers GAO-08-8, November 29, 2007 http://www.gao.gov/new.items/d088.pdf
Census Bureau, Dynamics of Economic Well-Being: Fluctuations in the United States Income Distribution, 2001-2003 http://www.census.gov/prod/2007pubs/p70-112.pdf
WorldatWork, Severance and Change-in-Control Practices 2007 http://www.worldatwork.org/waw/adimLink?id=22525
Paul Fronstin, The Future of Employment-Based Health Benefits: Have Employers Reached a Tipping Point? Employee Benefit Research Institute (Dec. 2007) http://www.ebri.org/pdf/briefspdf/EBRI_IB_12-20073.pdf
OSHA - Enhanced Enforcement Program (EEP) CPL 02-00-145 January 1, 2008 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3749
E .S. Johnson, et alia, Non-malignant Disease Mortality in Meat Workers: A Model for Studying the Role of Zoonotic Transmissible Agents in Non-malignant Chronic Diseases in Humans, 64 Occupational and Environmental Medicine 849 (2007) http://oem.bmj.com/cgi/content/abstract/64/12/849
The Effect of DOSH Enforcement Inspections and Consultation Visits on the Compensable Claims Rates in Washington State, 2004-2005, SHARP Technical Report Number: 70-03- 2006 http://www.lni.wa.gov/Safety/Research/Files/Cne2006.pdf
Jon R. Gabel, et alia, Report From Massachusetts: Employers Largely Support Health Care Reform, And Few Signs Of Crowd-Out Appear, Health Affairs, doi: 10.1377/hlthaff.27.1.w13 (Nov. 14, 2007) http://content.healthaffairs.org/cgi/content/abstract/hlthaff.27.1.w13
OSHA Publications Web Page http://www.osha.gov/pls/publications/publication.html
Recent Labor and Employment Law Articles Christopher Avery, et al., The New Market for Federal Judicial Law Clerks, 74 U. Chi. L. Rev. 447 (2007)
Sarah Baum, Note: The Illinois Whistleblower Act Does Not Preempt the Common Law Tort of Retaliatory Discharge, 57 Depaul L. Rev. 161 (2007)
Colin Bobb-Semple, English Common Law, Slavery, and Human Rights, 13 Tex. Wesleyan L. Rev. 659 (2007)
Craig Bolton, How Disincentives and Income Inequality Are Hurting America, a review of Jonathan Barry Forman, Making America Work, 10 N.Y.U. J. Legis. & Pub. Pol'y 645 (2006-2007)
Latoya Brown, Note: The Title VII Tug-of-War: Application of U.S. Employment Discrimination Law Extraterritorially, 40 Vand. J. Transnat'l L. 833 (2007)
3 Labor and Employment Relations Association (LERA) www.LERAweb.org
Todd Canni, Who's Making False Claims, the Qui Tam Plaintiff or the Government Contractor? A Proposal to Amend the FCA to Require That All Qui Tam Plaintiffs Possess Direct Knowledge, 37 Pub. Cont. L.J. 1 (2007)
Miriam Cherry, A Satire of Law Firm Employment Practices, a review of Jeremy Blachman, Anonymous Lawyer, 20 Geo. J. Legal Ethics 1137 (2007)
Alexis Conway, Note: Leaving Employers in the Dark: What Constitutes a Lawful Appearance Standard, 18 Geo. Mason U. Civ. Rts. L.J. 107 (2007)
E. Christi Cunningham, Exit Strategy for the Race Paradigm, 50 How. L.J. 755 (2007)
Stephen Dacus, Note: The Application of Title VII to Consensual, Indirect Employer Conduct, 59 Okla. L. Rev. 833 (2006)
Elaine Dewhurst, Agencies of Slavery: The Exploitation of Migrant Workers by Recruitment Agencies, 13 Tex. Wesleyan L. Rev. 377 (2007)
Laura Evans, Comment. Monitoring Technology in the American Workplace: Would Adopting English Privacy Standards Better Balance Employee Privacy and Productivity? 95 Cal. L. Rev. 1115 (2007)
Richard Michael Fischl, The Other Side of the Picket Line: Contract, Democracy, and Power in a Law School Classroom, 31 N.Y.U. Rev. L. & Soc. Change 517 (2007)
Jonathan Forman, Making America Work, 60 Okla. L. Rev. 53 (2007)
Tiffany Gardner, The Commodification of Women's Work: Theorizing the Advancement of African Women, 13 Buff. Hum. Rts. L. Rev. 33 (2007)
Patrick Garry, The Constitutional Relevance of the Employer-Sovereign Relationship: Examining the Due Process Rights of Government Employees in Light of the Public Employee Speech Doctrine, 81 St. John's L. Rev. 797 (2007)
Christopher Gaul, Note: Catholic Bishop Revisited: Resolving the Problem of Labor Board Jurisdiction over Religious Schools, 2007 U. Ill. L. Rev. 1505 (2007)
Ross Goldman, Note: Putting Pretext in Context: Employment Discrimination, the Same-actor Inference, and the Proper Roles of Judges and Juries, 93 Va. L. Rev. 1533 (2007)
Jennifer Growe, Note: Reform the Eeoc Guidelines: Protect Employees from Gender Discrimination as Mandated by Title VII, 24 Wash. U. J.L. & Pol'y 275 (2007)
Veronica Hendrick, Codifying Humanity: The Legal Line Between Slave and Servant, 13 Tex. Wesleyan L. Rev. 685 (2007)
Alex Hurder, The Lawyer's Dilemma: To Be or Not to Be a Problem- Solving Negotiator, 14 Clinical L. Rev. 253 (2007)
4 Labor and Employment Relations Association (LERA) www.LERAweb.org
Eisha Jain, Note: Realizing the Potential of the Joint Harassment/Retaliation Claim, 117 Yale L.J. 120 (2007)
Kimberly Kirkland, Confessions of a Whistleblower: A Law Professor's Reflections on the Experience of Reporting a Colleague, 20 Geo. J. Legal Ethics 1105 (2007)
Ari Krantz, Margot Rosenberg & Denise Diskin. Public Sector Labor Relations Questions Take Center Stage: Multiple Courts of Appeal Consider Application of New California Government Code and Labor Code Changes to Strikes by City and County Employees, 29 Whittier L. Rev. 147 (2007)
Dennis Kuhn & John Pearce, The Legality of Using Employee Appearance Policies to Promote Organizational Culture, 24 Hofstra Lab. & Emp. L.J. 181 (2007)
Daniel Kuperstein, Note: Finding Worth in the New Workplace: The Implications of Comparable Worth's Reemergence in the Global Economy, 24 Hofstra Lab. & Emp. L.J. 363 (2007)
Aaron Lacy, The Aftermath of Katrina: Race, Undocumented Workers, and the Color of Money, 13 Tex. Wesleyan L. Rev. 497 (2007)
James Leonard, Title VII and the Protection of Minority Languages in the American Workplace: The Search for a Justification, 72 Mo. L. Rev. 745 (2007)
Alex Long, The Troublemaker's Friend: Retaliation Against Third Parties and the Right of Association in the Workplace, 59 Fla. L. Rev. 931 (2007)
Bryan Neal, Stephen Fink & Elizabeth Schartz, Employment Law Practice, 60 SMU L. Rev. 941 (2007)
Marcia McCormick, The Equality Paradise: Paradoxes of the Law's Power to Advance Equality, 13 Tex. Wesleyan L. Rev. 515 (2007)
Marc Mandelman & Kevin Manara. Staying above the Surface – Surface Bargaining Claims under the National Labor Relations Act, 24 Hofstra Lab. & Emp. L.J. 261 (2007)
Tobin Nelson, Note: Word-of-Mouth Recruiting: Why Small Businesses Using this Efficient Practice Should Survive Disparate Impact Challenges under Title VII, 68 U. Pitt. L. Rev. 449 (2006)
Spencer Rand, A Poverty of Representation: The Attorney's Role to Advocate for the Powerless, 13 Tex. Wesleyan L. Rev. 545 (2007)
Kathy Roberts, Correcting Culture: Extraterritoriality and U.S. Employment Discrimination Law. 24 Hofstra Lab. & Emp. L.J. 295 (2007)
Thomas Ross, Instrumental Racism: A Convenient Untruth, 50 How. L.J. 685 (2007)
Mark Rothstein & Meghan Talbott, Job Security and Income Replacement for Individuals in Quarantine: The Need for Legislation, 10 J. Health Care L. & Pol'y 239 (2007)
5 Labor and Employment Relations Association (LERA) www.LERAweb.org
Alejandro Sarria, Note: The Future of Public Procurement Law in Cuba: Why the Uncitral Model Law Is Havana's Best Option, 37 Pub. Cont. L.J. 89 (2007)
Beth Schleifer, Comment. Progressive Accommodation: Moving Towards Legislatively Approved Intermittent Parental Leave, 37 Seton Hall L. Rev. 1127 (2007)
Elinor Schroeder & Pamela Keller, Kansas Employment Law Survey, 55 U. Kan. L. Rev. 887 (2007)
Peter Siegelman, Contributory Disparate Impacts in Employment Discrimination Law, 49 Wm. & Mary L. Rev. 515 (2007)
Rebecca Smith & Catherine Ruckelshaus, Solutions, Not Scapegoats: Abating Sweatshop Conditions for All Low-Wage Workers as a Centerpiece of Immigration Reform, 10 N.Y.U. J. Legis. & Pub. Pol'y 555 (2006-2007)
Torben Spaak, Moral Relativism and Human Rights, 13 Buff. Hum. Rts. L. Rev. 73 (2007)
Girardeau Spann, Affirmative Inaction, 50 How. L.J. 611 (2007)
Lyndsay Speece, Comment: Beyond Borders: CAFTA's Role in Shaping Labor Standards in Free Trade Agreements, 37 Seton Hall L. Rev. 1101 (2007)
Alex Stein, A Liberal Challenge to Behavioral Economics: The Case of Probability, 2 N.Y.U. J. L. & Liberty 531 (2007)
Julie Suk, Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict, 60 Stan. L. Rev. 73 (2007)
Kenneth Swift, Void Agreements, Knocked-out Terms, and Blue Pencils: Judicial and Legislative Handling of Unreasonable Terms in Noncomplete Agreements, 24 Hofstra Lab. & Emp. L.J. 223 (2007)
Symposium: Immigration Law and Policy, 2007 U. Chi. Legal F. 1 (2007)
Symposium: The Rising Tide: Citizen Participation in Legal Decision Making: A Cross-Cultural Perspective 40 Cornell Int'l L.J. 303 (2007)
Rebecca Van Uitert, Undocumented Immigrants in the United States: A Discussion of Catholic Social Thought and "Mormon Social Thought" Principles, 46 J. Cath. Legal Stud. 277 (2007)
Tracie Watson & Elisabeth Piro, Note: Bloggers Beware: A Cautionary Tale of Blogging and the Doctrine of At-will Employment, 24 Hofstra Lab. & Emp. L.J. 333 (2007)
Symposium: What Is Black? Perspectives on Coalition Building in the Modern Civil Rights Movement, 50 How. L.J. 609 (2007)
Barbara Wilson & Alastair Wilson, Why Is Fairness 'Grubby'? Semantics, Etymology, and Perspectives in Dispute Resolution, 13 Tex. Wesleyan L. Rev. 795 (2007)
6 Labor and Employment Relations Association (LERA) www.LERAweb.org
Carol Wong, The Family and Medical Leave Act: To Waive, or Not to Waive, 2007 U. Ill. L. Rev. 1567 (2007)
Richard Worth, Note: No "Free Pass" for Employees: Missouri Says "Yes" to Individual Liability under the Missouri Human Rights Act, 72 Mo. L. Rev. 947 (2007)
February 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
Professionals and Employee Status Under the common law, employee status was based on the claimed employer’s right to control the worker job performance. Professionals present a particular problem under the right to control test, because they tend to have greater autonomy and make decisions based on their professional judgment. A plaintiff-doctor nearly lost her sexual harassment case because the trial court decided that her exercise of professional discretion meant that she did not work under the employer-hospital’s control and therefore could not be an employee. The trial court focused on the plaintiff’s professional independence in diagnosing and treating patients and concluded that she could not be an employee of the hospital. However, the Court of Appeals noted the defendant’s close supervision and evaluation of the plaintiff’s work, directions that she perform certain procedures, and disciplinary actions taken against her were evidence that the relationship was one of employer and employee. Salamon v. Our Lady of Victory Hospital, Case No.06-1707-cv ( 2d Cir. Jan, 16, 2008).
FMLA Leave Inquiry May Violate ADA Confidentiality Requirements In order to determine whether an employee is qualifies for medical leave under the Family and Medical Leave Act (FMLA), an employer may ask questions related to the need for leave. Those disclosures are entitled to confidentiality under the Americans with Disabilities Act (ADA). A recent case should be a warning to employers about the need for care in how they handle matters related to medical leaves. In this case, the employee’s request that personal information be kept confidential – in particular that he needed leave as part of treatment for his HIV infection – were ignored and the information was made public at the workplace. The employee suffered from shame, embarrassment, and depression as a result of the disclosure of his condition. The court stated that even though his harm was emotional and not economic, the plaintiff could still have a legitimate bases for recovering compensatory damages. EEOC v. Ford Motor Credit Co., Case No.3:06-0900 (M.D. Tenn. Jan. 14, 2008).
FLSA Liability for Unauthorized Overtime The Fair Labor Standards Act’s definition of “employ” is “to suffer or permit to work.” This broad definition is intended to prevent subterfuges to thwart the application of the law and means that an employer can be liable under the FLSA even if it has not directed that work be done. A New York referral agency found itself liable for overtime payments to nurses it had referred to temporary hospital assignments even though it had not authorized the work and even though the work violated its policies that overtime had to be approved in advance. Chao v. Gotham Registry Inc., Case No.06-2432-cv (2d Cir. Jan. 24, 2008 ).
7 Labor and Employment Relations Association (LERA) www.LERAweb.org
ERISA and Spousal Waivers of Benefits Among its provisions to protect pensions, ERISA imposes restrictions on waivers of spousal retirement benefits. In a recent case, a surviving spouse had signed a prenuptial agreement waiving rights to her husband’s retirement benefits. The judge held that ERISA permits only a spouse to waive rights to a participant’s retirement benefits. The prenuptial agreement was not signed by a spouse and therefore could not constitute a legal waiver of spousal rights. The judge also held that the agreement had not complied with other ERISA spousal waiver requirements concerning notice. Finally, the judge held that ERISA preempted state contract law. As a result, the prenuptial agreement could not be enforced as a contract. To do so would permit parties to use state law to take actions ERISA forbade. John Deere Deferred Savings Plan for Wage Employees v. Estate of Alan R. Propst, Case No.06-C-1235 (E.D. Wis. Dec. 28, 2007).
Web Links
Bureau of Labor Statistics, Union Membership in 2007 http://www.bls.gov/news.release/union2.nr0.htm
New Jersey Governor Cornize's Executive Order No. 96 on Misclassification of Workers http://www.state.nj.us/infobank/circular/eojsc96.htm.
Employee Benefit Research Institute (EBRI), Listening to Consumers: Values-Focused Health Benefits and Education http://www.ebri.org/pdf/briefspdf/EBRI_IB_01-20084.pdf
Green Chemistry: Cornerstone to a Sustainable California http://www.coeh.ucla.edu/greenchemistry.htm http://coeh.berkeley.edu/greenchemistry/briefing
Occupational Safety and Health Administration, Preparing and Protecting Security Personnel in Emergencies http://www.osha.gov/as/opa/quicktakes/qt01152008.html
Watson Wyatt Compensation Discussion and Analysis Scorecard http://www.watsonwyatt.com/us/services/compensation/CDAScorecard.pdf
Occupational Safety and Health Administration, Preparing and Protecting Security Personnel in Emergencies http://www.osha.gov/as/opa/quicktakes/qt01152008.html
NLRB Operations Management Memorandum 08-20 Pilot Video Testimony Program in Representation Cases Jan 8 2008 http://www.nlrb.gov/shared_files/OM%20Memo/2008/OM%2008- 20%20Pilot%20Video%20Testimony%20Program%20in%20Representation%20Cases.pdf
NLRB Operations Management Memorandum 08-21 Court Mediation Jan 8 2008 http://www.nlrb.gov/shared_files/OM%20Memo/2008/OM%2008-21%20Court%20Mediation.pdf
Congressional Research Service, FY2008 Supplemental Appropriations for Global War on Terror Military Operations, International Affairs, and Other Purposes December 10, 2007 [See provisions on government employment and military contractors] http://opencrs.com/document/RL34278 http://assets.opencrs.com/rpts/RL34278_20071210.pdf
8 Labor and Employment Relations Association (LERA) www.LERAweb.org
California State Auditor, California State University: It Is Inconsistent in Considering Diversity When Hiring Professors, Management Personnel, Presidents, and System Executives, http://www.bsa.ca.gov/pdfs/reports/2007-102.2.pdf
Tax Policy Center, (Jan 02, 2008) - T08-0001 - Options to Adjust Social Security Earnings Cap, Static Impact on Individual Income and Payroll Tax Liability and Revenue ($ billions), 2009-18 http://www.taxpolicycenter.org/numbers/displayatab.cfm?Docid=1719&DocTypeID=5
Aaron Catlin, Cathy Cowan, Micah Hartman, Stephen Heffler the National Health Expenditure Accounts Team, National Health Spending In 2006: A Year Of Change For Prescription Drugs, 27 Health Affairs 14-29 (2008) http://content.healthaffairs.org/cgi/content/abstract/27/1/14
Centers for Disease Control and Prevention, Acute Pesticide Poisoning Associated with Pyraclostrobin Fungicide – Iowa, 2007, Morbidity and Mortality Weekly Report (January 4, 2008) http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5651a3.htm
U.S. Fire Administration, Firefighter Fatalities in the United States in 2007 http://www.usfa.dhs.gov/fireservice/fatalities//statistics/ff_stats.shtm
Centers for Medicare & Medicaid Services, National Health Expenditure Data http://www.cms.hhs.gov/NationalHealthExpendData/01_Overview.asp
Recent Labor and Employment Law Articles
Beth Ahlering & Simon Deakin, Labor Regulation, Corporate Governance, and Legal Origin: A Case of Institutional Complementarity? 41 Law & Soc'y Rev. 865 (2007)
Anne Alstott, Equal Opportunity and Inheritance Taxation, 121 Harv. L. Rev. 469 (2007)
David Bear, Comment. Establishing a Moral Duty to Obey the Law Through a Jurisprudence of Law and Economics, 34 Fla. St. U.l. Rev. 491 (2007)
Christopher Brady, Note: Offshore Gambling: Medical Outsourcing Versus ERISA's Fiduciary Duty Requirement, 64 Wash. & Lee L. Rev. 1073 (2007)
Annette Burkeen, Private Ordering and Institutional Choice: Defining the Role of Multinational Corporations in Promoting Global Labor Standards, 6 Wash. U. Global Stud. L. Rev. 205 (2007)
Jennifer Christian, Note: Whistleblower Protection under Sarbanes- Oxley: Key Provisions and Recent Case Developments, 31 Okla. City U. L. Rev. 331 (2006)
Patten Courtnell, Note: Employers Beware! The Supreme Court's Interpretation of Title VII's Employee Numerosity Requirement Disadvantages Small Businesses, 40 Loy. L.a. L. Rev. 793 (2007)
Artur Davis, The Health Care We Owe Each Other: Universal Care as the 21st Century Social Compact, 37 Cumb. L. Rev. 425 (2006-2007)
9 Labor and Employment Relations Association (LERA) www.LERAweb.org
Michael Duff, Days Without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act, 85 Denv. U. L. Rev. 93 (2007)
Charles Dyer, The Queen of Chula Vista: Stories of Self-represented Litigants and a Call for Using Cognitive Linguistics to Work with Them, 99 Law Lib. J. 717 (2007)
Adam Hahn, Comment: Guiry v. Goldman, Sachs & Co., 52 N.Y.L. Sch. L. Rev. 121 (2007/2008)
Peter Hammer, The Architecture of Health Care Markets: Economic Sociology and Antitrust Law, 7 Hous. J. Health L. & Pol'y 227 (2007)
John Kirk & Marguerite Slagle, ERISA Preemption: A Survey of the Kentucky Courts' Interpretation of the Sixth Circuit's Preemption Analysis, 34 N. Ky. L. Rev. 575 (2007)
Virginia Long, The Purple Thread: Social Justice as a Recurring Theme in the Decisions of the Poritz Court, 59 Rutgers L. Rev. 533 (2007)
Ernest Lidge, What Types of Employer Actions Are Cognizable under Title VII? The Ramifications of Burlington Northern & Santa Fe Railroad Co. v. White, 59 Rutgers L. Rev. 497 (2007)
Pedro Martinez-Fraga, Doctrinal Development in United States Arbitration: A Metamorphosis of Paradigms Beyond Gregor Samsa's Imagination, 15 Int'l & Comp. L. Rev. 255 (2007)
Jeff Miles, The Nursing Shortage, Wage-information Sharing among Competing Hospitals, and the Antitrust Laws: The Nurse Wages Antitrust Litigation. 7 Hous. J. Health L. & Pol'y 305 (2007)
John Nyman, The Efficiency of Equity, 37 Cumb. L. Rev. 461 (2006-2007)
J. C. Oleson, The Antigone Dilemma: When the Paths of Law and Morality Diverge, 29 Cardozo L. Rev. 669 (2007)
Nathan Oman, The Failure of Economic Interpretations of the Law of Contract Damages, 64 Wash. & Lee L. Rev. 829 (2007)
Kari Palazzari, The Daddy Double-Bind: How the Family and Medical Leave Act Perpetuates Sex Inequality Across All Class Levels, 16 Colum. J. Gender & L. 429 (2007)
Tracie Parry-Bowers, Note: The Talent Agencies Act: A Call for Reform, 27 Loy. L.a. Ent. L. Rev. 431 (2006-2007)
David Paxton & Gregory Hunt, Labor and Employment Law, 42 U. Rich. L. Rev. 489 (2007)
Nicole Porter, Reasonable Burdens: Resolving the Conflict Between Disabled Employees and Their Coworkers, 34 Fla. St. U. L. Rev. 313 (2007)
John Power, Note: Show Me the Money: The Thompson Memo, Stein, and an Employee's Right to the Advancement of Legal Fees under the McNulty Memo, 64 Wash. & Lee L. Rev. 1205 (2007)
10 Labor and Employment Relations Association (LERA) www.LERAweb.org
Ira Robbins, The Importance of the Secret Ballot in Law Faculty Personnel Decisions: Promoting Candor and Collegiality in the Academy, 57 J. Legal Educ. 266 (2007)
John Schneider & Robert Ohsfeldt, The Role of Markets and Competition in Health Care Reform Initiatives to Improve Efficiency and Enhance Access to Care, 37 Cumb. L. Rev. 479 (2006-2007)
Marc Sherman, Webmail at Work: The Case for Protection Against Employer Monitoring, 23 Touro L. Rev. 647 (2007)
Symposium: Law School and Bar Examination Performance, 57 J. Legal Educ. 195 (2007)
March 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
Breach of Duty of Loyalty Applies to Unions and Their Employees While employed, an employee may not compete with his employer by working for a competitor and may not soliciting fellow employees or customers to switch to the competitor. These acts violate the common law duty of loyalty. After employment ends, though, all these actions are permissible. In addition, while still employed an employee may make preparations to work for a competitor or to start a competing business without violating the duty of loyalty. An employee who breaches the duty of loyalty must repay any pay received during any period of disloyalty In a recent case, two union employees who were unhappy with their employer-union decided to start a competing union. While still employed, they launched a competing union and started a drive to decertify the union and take its place as the bargaining representative. In addition, their job duties included inform their union-employer about problems among the members. This, they did not do. One even stalled negotiations so no new agreement would be reached. They also recruited shop stewards to gather signatures for a decertification petition. Eventually the new union became the representative. Service Employees International Union, Local 250 v. Torren Colcord, Case No.A116364 (Cal. Ct. App. Feb.22, 2008). The union sued for: (1) breach of fiduciary duty under the Labor Management Reporting and Disclosure Act (LMRDA) (29 U.S.C. § 501), and under common law; (2) fraudulent concealment; (3) unfair business practices; and (4) misappropriation of trade secrets. In this case, the union asked for remedies that included recovering the salaries paid while the former employees were secretly organizing the new union, costs involved in the elections, and punitive damages. The court of appeals held that the union was entitled to recoup only the salaries and punitive damages, because the other damages were not necessarily caused by the disloyal conduct.
Two Cases in Which Noncompete Agreements Were Held to be Invalid Employers try to forestall the sort of situation just discussed by using noncompete and nonsolicitation of employees and customer agreements. A valid noncompete agreement would have forbidden the organizers from working for a competing employer for a limited time, geographic area, and business. Care must be taken in drafting noncompete agreements, because they have an anti-competitive effect. As a result, courts traditionally construe them strictly and strike them down if they are not limited to protecting the employer’s legitimate business interests. Legitimate business interests include protecting
11 Labor and Employment Relations Association (LERA) www.LERAweb.org
trade secrets and confidential information, as well as some investments. In a recent case, an employer lost its breach of contract case against a former employee, because the contract extended the two-year term for each violation of the noncompete and nonsolicitation agreement. In effect, the noncompete agreement had terms that were indefinite in duration. As a result, the court held that the contract was void and unenforceable. H&R Block Eastern Enters. v. Swenson, Case No.2006AP1210 (Wis. Ct. App. Dec. 20, 2007). In a second case, the court refused to enforce a two-year noncompete and nonsolicitation agreement, because they included a provision that would extend the term length if there was a breach within the two years. The court concluded that these contracts were unreasonably broad, because they did not protect a legitimate interest of the employer. The employees involved did not perform extraordinary services for the employer, did not have access to trade secrets or confidential information, and had no special relations with customers whom they might be able to solicit to join a new business. Zinter Handling Inc. v. Britton, 847 N.Y.S.2d 271 (N.Y. Super.Dec. 6, 2007).
Web Links
John Logan, U.S. Anti-Union Consultants: A Threat to the Rights of British Workers
Murray Gendell, Older workers: Increasing Their Labor Force Participation and Hours of Work
Health, Employment, Labor, and Pensions Subcommittee Hearing: "Protecting American Employees from Workplace Discrimination" Tuesday, February 12, 2007
John J. Fitzpatrick, Jr. & James L. Perine, State Labor Legislation Enacted in 2007, Monthly Labor Review 3 (Jan. 2008)
Kaiser Family Foundation, Wages and Benefits: A Long-Term View (February 2008)
Employee Benefit Research Institute (EBRI), Listening to Consumers: Values-Focused Health Benefits and Education,
Employee Benefit Research Institute (EBRI), Finances of Employee Benefits, 1950-2006
Utah Mine Safety Commission - Report and Recommendations to Governor Jon M. Huntsman, Jr. (January 2008)
Urban Institute, Do Individual Mandates Matter?
EBRI Issue Brief:ERISA Pre-emption: Implications for Health Reform and Coverage (February 2008)
John Holahan & Allison Cook, The U.S. Economy and Changes in Health Insurance Coverage, 2000- 2006
Recent Labor and Employment Law Articles
Matthew Altomare, Comment: Applying the Reorganization Test to Pension Plans in the Aggregate: Was the Third Circuit Correct? 32 Del. J. Corp. L. 843 (2007)
12 Labor and Employment Relations Association (LERA) www.LERAweb.org
Louise Arbour, Economic and Social Justice for Societies in Transition, 40 N.Y.U. J. Int'l L. & Pol. 1 (2007)
Sameer Ashar, Public Interest Lawyers and Resistance Movements, 95 Cal. L. Rev. 1879 (2007)
Stephen Bainbridge, The Shared Interests of Managers and Labor in Corporate Governance: A Comment on Strine, 33 J. Corp. L. 21 (2007)
Richard Bales, Beyond the Protocol: Recent Trends in Employment Arbitration, 11 Employee Rts. & Emp. Pol'y J. 301 (2007)
Mitchell Berman, On the Moral Structure of White Collar Crime, a review of Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime, 5 Ohio St. J. Crim. L. 301 (2007)
Nancy Bloodgood & Leslie Whitten, The Current Status of Workers' Compensation Hearing Loss Claims in South Carolina: A Defense Perspective, 2 Chas. L. Rev. 257 (2007)
Deborah Brake, Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives That Obscure Gender Bias, 16 Colum. J. Gender & L. 679 (2007)
Cynthia Blum, Rethinking Tax Compliance of Unauthorized Workers after Immigration Reform, 21 Geo. Immigr. L.J. 595 (2007)
Karla Campbell, Guest Worker Programs and the Convergence of U.S. Immigration and Development Policies: A Two-factor Economic Model. 21 Geo. Immigr. L.J. 663 (2007)
Mary Anne Case, All the World's the Men's Room, 74 U. Chi. L. Rev. 1655 (2007)
Stephen Caldas & Carl Bankston, A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved in Community Schools v. Seattle School District No.1, 2007 BYU Educ. & L.J. 217
Pat Chew & Lauren Kelley-Chew, Subtly Sexist Language, 16 Colum. J. Gender & L. 643 (2007)
Joonmo Cho & Kyu-Young Lee, Deregulation of Dismissal Law and Unjust Dismissal in Korea, 27 Int'l Rev. L. & Econ. 409 (2007)
Tony Cole, Commercial Arbitration in Japan: Contributions to the Debate on "Japanese Non- Litigiousness", 40 N.Y.U. J. Int'l L. & Pol. 29 (2007)
Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? 11 Employee Rts. & Emp. Pol'y J. 405 (2007)
Matt Crotty, The Uniformed Services Employment and Reemployment Rights Act and Washington State's Veteran's Affairs Statute: Still Short on Protecting Reservists from Hiring Discrimination, 43 Gonz. L. Rev. 169 (2007/08)
13 Labor and Employment Relations Association (LERA) www.LERAweb.org
Scott Cummings, Law in the Labor Movement's Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight. 95 Cal. L. Rev. 1927 (2007)
Xizafeng Da, Note: Education and Labor Relations: Asian Americans and Blacks as Pawns in the Furtherance of White Hegemony, 13 Mich. J. Race & L. 309 (2007)
Yasmin Dawood, The New Inequality: Constitutional Democracy and the Problem of Wealth, 67 Md. L. Rev. 123 (2007)
Mark Debofsky, What Process Is Due in the Adjudication of Erisa Claims? 40 J. Marshall L. Rev. 811 (2007)
Lea Delossantos, Comment: A Tangled Situation of Gender Discrimination: in the Face of an Ineffective Antidiscrimination Rule and Challenges for Women in Law Firms – What Is the next Step to Promote Gender Diversity in the Legal Profession? 44 Cal. W. L. Rev. 295 (2007)
Adrienne Detanico, Comment: Banning Smoking in Chicago's Social Scene: Protecting Labor and Broadening Public Health Policy, 40 J. Marshall L. Rev. 1063 (2007)
Carol Docan & Richard Sperling. California's Domestic Partnership Law: Incremental Progress or Dramatic Social Change? 14 Wm. & Mary J. Women & L. 153 (2007)
Jacquelin Drucker, The Protocol in Practice: Reflections, Assessments, Issues for Discussion, and Suggested Actions, 11 Employee Rts. & Emp. Pol'y J. 345 (2007)
Kenneth Dunham, Is Mediation the New Equity? 31 Am. J. Trial Advoc. 87 (2007)
Andrew Elmore, Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-Subordination Approach to the Labor-based Admission of Nonprofessional Foreign Nationals, 21 Geo. Immigr. L.J. 521 (2007)
Emma Eriksson, Note: The Pension Protection Act of 2006: Is it Too Late to Save Traditional Pension Plans? 41 Suffolk U.L. Rev. 133 (2007)
Albert Feuer, Who Is Entitled to Survivor Benefits from Erisa Plans? 40 J. Marshall L. Rev. 919 (2007)
Matthew Finkin, Disloyalty! Does Jefferson Standard Stalk Still? 28 Berkeley J. Emp. & Lab. L. 541 (2007)
Charles Fleischer, Validity and Effect of Will-Not-Reapply Covenants in Employment Discrimination Settlement Agreements. 23 Lab. Law. 151 (2007)
Sarah Fulton, Note: A Crack in the Stained Glass Ceiling, 14 Wm. & Mary J. Women & L. 197 (2007)
Brian Garrison & Joseph Pettygrove, "Yes, No, and Maybe:" The Implications of Federal Circuit Court Split over Union-friendly State and Local "Neutrality" Laws. 23 Lab. Law. 121 (2007)
14 Labor and Employment Relations Association (LERA) www.LERAweb.org
E.L. Gaston, Note: Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement, 49 Harv. Int'l L.J. 221 (2008)
Martin Greenberg & Jay Smith, A Study of Division I Assistant Football and Men's Basketball Coaches' Contracts, 18 Marq. Sports L. Rev. 25 (2007)
Alison Guernsey, Note: Double Denial: How Both the Dol and Organized Labor Fail Domestic Agricultural Workers in the Face of H-2a, 93 Iowa L. Rev. 277 (2007)
Stephanie Hoffer, Adopting the Family Taxable Unit, 76 U. Cin. L. Rev. 55 (2007)
Dean Hubbard, Reimagining Workers' Human Rights: Transformative Organizing for a Socially Aware Global Economy, 5 Hastings Race & Poverty L.J. 1 (2008)
Cecil Hunt, No Right to Respect: Dred Scott and the Southern Honor Culture, 42 New Eng. L. Rev. 79 (2007)
James Jacobs & Dimitri Portnoi, Administrative Criminal Law & Procedure in the Teamsters Union: What Has Been Achieved after (Nearly) Twenty Years, 28 Berkeley J. Emp. & Lab. L. 429 (2007)
Daniel Johns, A Square Peg and a Round Hole: The Application of Weingarten Rights to Employee Drug and Alcohol Testing, 28 Pace L. Rev. 33 (2007)
Frederick Jonassen, A Baby-step to Global Labor Reform: Corporate Codes of Conduct and the Child, 17 Minn. J. Int'l L. 7 (2008)
John Kagel, Arbitration and Due Process: The Way We Were at the Time of Gilmer, 11 Employee Rts. & Emp. Pol'y J. 267 (2007)
Patrick Kenneally, Protecting Court Borders: Fencing Hoffman Plastic Compounds, Inc. v. NLRB out of Illinois Civil Courts, 28 N. Ill. U. L. Rev. 59 (2007)
Debbie Kaminer, The Child Care Crisis and the Work-Family Conflict: A Policy Rationale for Federal Legislation, 28 Berkeley J. Emp. & Lab. L. 495 (2007)
Richard Karcher, Fundamental Fairness in Union Regulation of Sports Agents, 40 Conn. L. Rev. 355 (2007)
Barry Kozak & Joshua Waldbeser, Much Ado about the Meaning of "Benefit Accrual": The Issue of Age Discrimination in Hybrid Cash Balance Plan Qualification Is Dying but Not Yet Dead, 40 J. Marshall L. Rev. 867 (2007)
Mary Kreiner Ramirez, Blowing the Whistle on Whistleblower Protection: A Tale of Reform Versus Power, 76 U. Cin. L. Rev. 183 (2007)
Warren Lavey, Telecom Globalization and Deregulation Encounter U.S. National Security and Labor Concerns, 6 J. on Telecomm. & High Tech. L. 121 (2007)
15 Labor and Employment Relations Association (LERA) www.LERAweb.org
Konrad Lee, The Employees' Quest for Medical Record Privacy under the Family and Medical Leave Act, 41 Suffolk U.L. Rev. 49 (2007)
Michael Leroy, Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports. 28 Berkeley J. Emp. & Lab. L. 331 (2007)
Wilma Liebman, Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, 28 Berkeley J. Emp. & Lab. L. 569 (2007)
Justin Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007)
Kenneth Lopatka, A Contemporary First Amendment Analysis of the NLRA Section 8(a)(2)-2(5) Anachronism, 2 Chas. L. Rev. 1 (2007)
Beth Lyon, Tipping the Balance: Why Courts Should Look to International and Foreign Law on Unauthorized Immigrant Worker Rights, 29 U. Pa. J. Int'l L. 169 (2007)
Ritu Mahajan, Comment: The Naked Truth: Appearance Discrimination, Employment, and the Law, 14 Asian Am. L.J. 165 (2007)
Martin Malin, Due Process in Employment Arbitration: The State of the Law and the Need for Self- Regulation, 11 Employee Rts. & Emp. Pol'y J. 363 (2007)
Craig Martin & Joshua Rafsky, The Pension Protection Act of 2006: An Overview of Sweeping Changes in the Law Governing Retirement Plans, 40 J. Marshall L. Rev. 843 (2007)
Michael Moberly, The Disability History Mystery: Assessing the Employer's Reasonable Accommodation Obligation in "Record of Disability" Cases, 35 Pepp. L. Rev. 1 (2007)
Kathryn Moore, A Review of Nancy J. Altman, The Battle for Social Security: from FDR's Vision to Bush's Gamble, 40 J. Marshall L. Rev. 909 (2007)
Kathryn Moore, Foreword: Employee Benefits Law Symposium, 40 J. Marshall L. Rev. Xix (2007)
Samantha Mortlock, Employee with Severely Limited Interpersonal Skills, 56 Drake L. Rev. 59 (2007)
Sheldon Nahmod, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. Rich. L. Rev. 561 (2008)
Melissa Neiman, Fair Game: Ethical Considerations in Negotiation by Sports Agents, 9 Tex. Rev. Ent. & Sports L. 123 (2007)
Joel Nolan, Note: Chipping at the Iceberg: How Massachusetts Anti- Discrimination Law Can Survive ERISA Preemption and Mandate the Extension of Employee Benefits to All Married Spouses Without Regard to Sexual Orientation, 42 New Eng. L. Rev. 109 (2007)
16 Labor and Employment Relations Association (LERA) www.LERAweb.org
Daniel O'Gorman, Paying for the Sins of Their Clients: The Eeoc's Position That Staffing Firms Can Be Liable When Their Clients Terminate an Assigned Employee for a Discriminatory Reason, 112 Penn St. L. Rev. 425 (2007)
Michael Oswalt, Note: The Grand Bargain: Revitalizing Labor Through NLRA Reform and Radical Workplace Relations, 57 Duke L.J. 691 (2007)
Martha Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U. Chi. L. Rev. 1831 (2007)
Christine O'Brien & Jonathan Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 Wake Forest L. Rev. 991 (2007)
Theodore Olsen, The Dangers of E-mail Recruiting: One Person's "Sales Pitch" Is Another Person's "Spam", 23 Lab. Law. 163 (2007)
Maria Pabon Lopez, Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers, 21 Geo. Immigr. L.J. 571 (2007)
Marisa Pagnattaro & Ellen Peirce, Between a Rock and a Hard Place: The Conflict Between U.S. Corporate Codes of Conduct and European Privacy and Work Laws, 28 Berkeley J. Emp. & Lab. L. 375 (2007)
Wang Ping, Coverage of the WTO's Agreement on Government Procurement: Challenges of Integrating China and Other Countries with a Large State Sector into the Global Trading System, 10 J. Int'l Econ. L. 887 (2007)
Ellen Podgor, White Collar Crime: A Letter from the Future, 5 Ohio St. J. Crim. L. 247 (2007)
Kimberlianne Podlas, Homerus Lex: Investigating American Legal Culture Through the Lens of the Simpsons, 17 Seton Hall J. Sports & Ent. L. 93 (2007)
David Pratt, The Past, Present and Future of Health Care Reform: Can it Happen? 40 J. Marshall L. Rev. 767 (2007)
Deborah Rhode, The Subtle Side of Sexism, 16 Colum. J. Gender & L. 613 (2007)
Albie Sachs, Enforcement of Social and Economic Rights, 22 Am. U. Int'l L. Rev. 673 (2007)
Adam Samaha, What Good Is the Social Model of Disability? 74 U. Chi. L. Rev. 1251 (2007)
Rebecca Sandefur, Staying Power: The Persistence of Social Inequality in Shaping Lawyer Stratification and Lawyers' Persistence in the Profession, 36 Sw. U. L. Rev. 539 (2007)
Brianne Schwanitz, Note: Mixed-Motives for Firing Employees: Alaska's Inconsistent Standards and its Failure to Follow the Changing Federal Tide, 24 Alaska L. Rev. 287 (2007)
17 Labor and Employment Relations Association (LERA) www.LERAweb.org
Michael Selmi, The Supreme Court's 2006-2007 Term Employment Law Cases: A Quiet but Revealing Term, 11 Employee Rts. & Emp. Pol'y J. 219 (2007)
Nathan Shelby, Note: Putting My Money Where Your Mouth Is – An Analysis of a Public Teacher's Right to Object to a Union's Use of His or Her Dues for Political Purposes in an Open Shop State, 37 U. Mem. L. Rev. 781 (2007)
Katharine Silbaugh, Women's Place: Urban Planning, Housing Design, and Work-Family Balance, 76 Fordham L. Rev. 1797 (2007)
Marisa Silezi Cianciarulo, Modern-Day Slavery and Cultural Bias: Proposals for Reforming the U.S. Visa System for Victims of International Human Trafficking, 7 Nev. L.J. 826 (2007)
Anita Silvers & Michael Stein, Disability and the Social Contract, a review of Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, 74 U. Chi. L. Rev. 1615 (2007)
Rachael Simon, Comment: Workers on the March: Work Stoppages, Public Rallies, and the National Labor Relations Act, 56 Cath. U. L. Rev. 1273 (2007)
Larry Spurgeon, A Transcendent Value: The Quest to Safeguard Academic Freedom, 34 J.C.& U.L. 111 (2007)
Stephen Stern & Jonathan Cohen, Pleading a Sarbanes-Oxley Act Whistleblower Claim: What Is Required to Survive? 23 Lab. Law. 191 (2007)
Leo Strine, Toward Common Sense and Common Ground? Reflections on the Shared Interests of Managers and Labor in a More Rational System of Corporate Governance, 33 J. Corp. L. 1 (2007)
Alison Sulentic, Secrets, Lies & ERISA: The Social Ethics of Misrepresentations and Omissions in Summary Plan Descriptions, 40 J. Marshall L. Rev. 731 (2007)
Cass Sunstein, Cost-Benefit Analysis Without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms, 74 U. Chi. L. Rev. 1895 (2007)
Symposium: Employee Benefits Law, 40 J. Marshall L. Rev. 731 (2007)
Symposium: Working and Living in the Global Playground: Frontstage and Backstage, 7 Nev. L.J. 685 (2007)
Symposium: "Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution", 11 Employee Rts. & Emp. Pol'y J. 255 (2007)
Symposium: Race, Economic Justice, and Community Lawyering in the New Century, 95 Cal. L. Rev. 1821 (2007)
Symposium: Shared Interests of Managers and Labor in Corporate Governance, 33 J. Corp. L. 1 (2007)
Symposium: Constitutionalism in Divided Societies, 5 I.Con: Int'l J. Const. L. 573 (2007)
18 Labor and Employment Relations Association (LERA) www.LERAweb.org
Amy Tai, Comment: Unlocking the Doors to Justice: Protecting the Rights and Remedies of Domestic Workers in the Face of Diplomatic Immunity, 16 Am. U. J. Gender, Soc. Pol'y & L. 175 (2007)
Julie Thorpe-Lopez, Comment: America's Melting Pot: Language Not Included. U.S. Workplace Language Discrimination and the European Union Approach as a Model Framework, 38 Cal. W. Int'l L.J. 217 (2007)
Brandt Voight, Note: Letting Lilliputians Sit at the Table: Providing Physicians with a Magnified Voice to Counter the Brobdingnagian HMO, 4 Ind. Health L. Rev. 435 (2007)
David Wachutka, Collective Bargaining Agreements in Professional Sports: The Proper Forum for Establishing Performance-Enhancing Drug Testing Policies, 8 Pepp. Disp. Resol. L.J. 147 (2007)
Darnell Weeden, The less than Fair Employment Practice of an English-Only Rule in the Workplace, 7 Nev. L.J. 947 (2007)
Julie Wenell, Note: Stifling the First Amendment in the Public Workplace, 16 Wm. & Mary Bill Rts. J. 623 (2007)
James Whitman, Consumerism Versus Producerism: A Study in Comparative Law, 117 Yale L.J. 340 (2007)
Gita Wilder, Law School Debt and Urban Law Schools, 36 Sw. U. L. Rev. 509 (2007)
Kristen Williams, Comment: Employing Ex-offenders: Shifting the Evaluation of Workplace Risks and Opportunities from Employers to Corrections, 55 UCLA L. Rev. 521 (2007)
Arnold Zack, The Due Process Protocol: Getting There and Getting over It, 11 Employee Rts. & Emp. Pol'y J. 257 (2007)
April 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
Barring Employee Speech Private sector employees have a legal right to discuss working conditions and unionization while at work. Rules that bar employees from talking about working conditions are likely to violate the law. However, the boundaries of that right may be affected by the nature of the employer's business needs. For example, in a recent case a hospital's written policies legally prohibited solicitation and distribution of literature only in patient-care and areas patients used, while allowing solicitation and distribution during nonwork time in nonwork areas, including employee break areas.
The hospital fell afoul of the law, though. First, it told its nurses that discussions, posting union literature, or other activities related to unionization were banned from employee breakrooms. At the
19 Labor and Employment Relations Association (LERA) www.LERAweb.org
same time, the hospital posted anti-union literature in breakrooms. St. Margaret Mercy Healthcare Centers. v. NLRB, Case No.07-2752 (7 th Cir. Mar. 11 (2008).
Second, the hospital disciplined an employee who asked another nurse to sign a union care while at the nurses station. The employer also told her she could only discuss her concerns about workplace policies with management. Nurses regularly sold Girl Scout cookies and other items and asked for charitable donations in breakrooms and at nurses stations. The Seventh Circuit Court of Appeals unanimously held that all of these actions violated the National Labor Relations Act.
Briefly, employees' legal right to organize with an employer's legitimate interests in operating its business. As a result, employers are allowed to regulate speech and distributions of literature, but only when they interfere with the employer's business. In addition, barring discussions and literature about working conditions and unions, while allowing other discussions and literature discriminates illegally under the NLRA, while also suggesting that there is no legitimate business need involved.
WARN Act Obligations and At-Will Employment The Worker Adjustment and Retraining Notification Act – WARN Act – requires employers to give workers 60 days notice of plant closings or mass layoffs. In a recent class action case an employer unsuccessfully raised a number of defenses to that obligation. The employer argued that the employees had waived their WARN Act rights because (1) their employment handbook stated that the employment was at will and thus no notice was require and (2) employees had signed a form that they had received payment for all work they had performed. Franklin v. General Trucking, Case No.07-5002 (W.D. Ark. Mar. 3, 2008).
The judge noted that the handbook language not only did not support the employer's claim, it actually undermined it. The handbook stated that it was not intended to create a contract, was intended to provide only general information, and could be amended by the employer at any time. In addition, the payment acknowledgment form clearly applied only to wages and could not waive WARN rights, because there was no evidence that the employees knew they had these rights nor that they intended to waive them.
Unconstitutional Drug and Alcohol Testing Public employers are bound by state and federal constitutions. The Ninth Circuit Court of Appeals recently found that a city violated the Fourth Amendment prohibition against unreasonable searches by withdrawing a job offer after an employee refused to submit to mandatary drug and alcohol test. The court did not hold that the policy itself was invalid. Rather, it held that the way it was applied here was a violation. In this case, the city failed to demonstrate that it had a particularized need to engage in suspicionless testing of an applicant for the position in question. Lanier v. Woodburn, Case No.06- 35262 (9th Cir. Mar. 13, 2008).
Web Links
Department of Labor Bureau of Labor Statistics, Job Openings and Labor Turnover Survey
349th Report of the International Labor Organization Committee on Freedom of Association, Complaint against the Government of the United States presented by the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) , Case No. 2524
20 Labor and Employment Relations Association (LERA) www.LERAweb.org
Employee Benefit Research Institute, Total Individual Account Retirement Plan Assets, by Demographics, 2004 (March 2008)
AARP, Rx Watchdog Report: Trends in Manufacturer Prices of Brand Name Prescription Drugs Used by Medicare Beneficiaries - 2002-2007: Research Report
Employee Benefit Research Institute and the Commonwealth Fund, Findings From the 2007 EBRI/Commonwealth Fund Consumerism in Health Survey
U.S. Department of Education National Center for Education Statistics, Ten Years After College: Comparing the Employment Experiences of 1992-93 Bachelor's Degree Recipients With Academic and Career-Oriented Majors
U.S. Fire Administration, Fire-Related Firefighter Injuries in 2004
Office of Advocacy of the U.S. Small Business Administration (SBA), Small Business Regulatory Review and Reform Initiative, Regulatory Review and Reform (r3) Top 10 Rules, 2008
American Management Association & ePolicy Institute, 2007 Electronic Monitoring & Surveillance Survey
American Management Association and ePolicy Institute, 2007 Electronic Monitoring & Surveillance Survey: Over Half of All Employers Combined Fire Workers for E-Mail & Internet Abuse
Committee on Oversight and Government Reform Memorandum on CEO Pay and the Mortgage Crisis March 6, 2008
Committee on Oversight and Government Reform hearing, “Executive Compensation II: CEO Pay and the Mortgage Crisis ” March 7, 2008
Senate Health, Education, Labor and Pensions (HELP) Committee, Crandall Canyon Mine Report
Recent Labor and Employment Law Articles
Henry Aaron, Health Care Rationing: Inevitable but Impossible? 96 Geo. L.J. 539 (2008)
Miriam Achtenberg, Note: Rereading the National Bank Act's "At Pleasure" Provision: Preserving the Civil Rights of Thousands of Bank Employees, 43 Harv. C.R.-C.L. L. Rev. 165 (2008)
Gregory Acs, A Good Employee or a Good Parent? Challenges Facing Low-Income Working Families, 4 U. St. Thomas L.J. 489 (2007)
Bradford Anderson, Complete Harmony or Mere Detente? Shielding California Employees from Non- Competition Covenants While Simultaneously Protecting Employer Trade Secrets, 8 U.C. Davis Bus. L.J. 8 (2007)
21 Labor and Employment Relations Association (LERA) www.LERAweb.org
Michael Bagley, Daniel Kniffen & Katherine Dixon, Workers' Compensation, 59 Mercer L. Rev. 463 (2007)
Katharine Baker, The Problem with Unpaid Work, 4 U. St. Thomas L.J. 599 (2007)
Monica Bell, The Obligation Thesis: Understanding the Persistent "Black Voice" in Modern Legal Scholarship, 68 U. Pitt. L. Rev. 643 (2007)
Mary Bedikian, Alternative Dispute Resolution, 53 Wayne L. Rev. 73 (2007)
Joel Berg, Welfare Reform: The Promise Unfulfilled. 11 J. Gender Race & Just. 47 (2007)
Jeremy Blumenthal, Emotional Paternalism, 35 Fla. St. U. L. Rev. 1 (2007)
Johanna Bond, Constitutional Exclusion and Gender in Commonwealth Africa , 31 Fordham Int'l L.J. 289 (2008)
Shelbie Byers, Note: Untangling the World Wide Weblog: A Proposal for Blogging, Employment-at- Will, and Lifestyle Discrimination Statutes, 42 Val. U. L. Rev. 245 (2007)
Allan Carlson, Rise and Fall of the American Family Wage, 4 U. St. Thomas L.J. 556 (2007)
David Clancy & Matthew Stein, An Uninvited Guest: Class Arbitration and the Federal Arbitration Act's Legislative History, 63 Bus. Law. 55 (2007)
Ellinor Coder, Comment: The Homeland Security Safe-Harbor Procedure for Social Security No-match Letters: A Mismatched Immigration Enforcement Tool. 86 N.C. L. Rev. 493 (2008)
Michael Daly, Note: Come One, Come All: The New and Developing World of Nonsignatory Arbitration and Class Arbitration, 62 U. Miami L. Rev. 95 (2007)
Ellen Dannin, Not a Limited, Confined, or Private Matter – Who is an Employee Under the National Labor Relations Act, 59 Lab. L.J. 5 (2008)
Kenneth Dau-Schmidt, The Changing Face of Collective Representation: The Future of Collective Bargaining, 82 Chi.-Kent. L. Rev. 903 (2007)
Kirsten Davis, The Rhetoric of Accommodation: Considering the Language of Work-Family Discourse, 4 U. St. Thomas L.J. 530 (2007)
David Doorey, The Medium and the "Anti-union" Message: "Forced Listening" and Captive Audience Meetings in Canadian Labor Law, 29 Comp. Lab. L. & Pol'y J. 79 (2008)
Rachel Feltman, Comment: Undocumented Workers in the United States : Legal, Political, and Social Effects, 7 Rich. J. Global L. & Bus. 65 (2008)
Tristin Green, Discomfort at Work: Workplace Assimilation Demands and the Contact Hypothesis, 86 N.C. L. Rev. 379 (2008)
22 Labor and Employment Relations Association (LERA) www.LERAweb.org
Christoph Gyo, Legitimacy of Captive Audiences in Germany , 29 Comp. Lab. L. & Pol'y J. 119 (2008)
Melvin Haas, et alia, Labor and Employment Law, 59 Mercer L. Rev. 233 (2007)
Vivian Hamilton, Will Marriage Promotion Work? 11 J. Gender Race & Just. 1 (2007)
Seth Harris, Law, Economics, and Accommodations in the Internal Labor Market, 10 U. Pa. J. Bus. & Emp. L. 1 (2007)
Andrew Hettinga, Note: Expanding NLRA Protection of Employee Organizational Blogs: Non- Discriminatory Access and the Forum-Based Disloyalty Exception, 82 Chi.Kent. L. Rev. 997 (2007)
Brian Hilverda, Comment: Protecting the Right to a Jury Trial: Idaho 's Response to Mandatory Arbitration Clauses in Adhesion Contracts, 44 Idaho L. Rev. 185 (2007)
Scott Hovanyetz, Comment: Non-Compete Agreements and the Equity Conflict: Applying Baker v. General Motors Through the Lens of History, 38 Seton Hall L. Rev. 253 (2008)
Kevin Hsu, Note: Masters and Servants in America: The Ineffectiveness of Current United States Anti- Trafficking Policy in Protecting Victims of Trafficking for the Purposes of Domestic Servitude, 14 Geo. J. on Poverty L. & Pol'y 489 (2007)
Nicole Kersey, Misplaced Opposition: Immigration Incentives of the Proposed Social Security Totalization Agreement with Mexico , 22 Geo. Immigr. L.J. 57 (2007)
Konrad Lee, "When Johnny Comes Marching Home Again" Will He Be Welcome at Work? 35 Pepp. L. Rev. 247 (2008)
Shawn McCormack, Note: Private Security Contractors in Iraq Violate Laws of War, 31 Suffolk Transnat'l L. Rev. 75 (2007)
Derek Marks, Comment: One for Twenty-five: The Federal Courts Reverse a Decision of the NFL's Disability Board for the First Time since 1993, 15 Vill. Sports & Ent. L.J. 1 (2008)
Scott Moss, Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts, 76 Fordham L. Rev. 981 (2007)
Yoanna Moisides, I Just Need Help: TANF, the Deficit Reduction Act, and the New "Work-Eligible Individual", 11 J. Gender Race & Just. 17 (2007)
Patricia Nemeth & Deborah Brouwer, Employment and Labor Law, 53 Wayne L. Rev. 223 (2007)
Hisashi Okuno, Captive Audience Speeches in Japan : Freedom of Speech of Employers v. Workers' Rights and Freedoms, 29 Comp. Lab. L. & Pol'y J. 129 (2008)
Barry Paisner & Michelle Haubert-Barela, Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees, 37 N.m. L. Rev. 357 (2007)
23 Labor and Employment Relations Association (LERA) www.LERAweb.org
Kay Pranis, Healing and Accountability in the Criminal Justice System: Applying Restorative Justice Processes in the Workplace, 8 Cardozo J. Conflict Resol. 659 (2007)
Nuria Pumar Beltran, Captive Audience Speech: Spanish Report, 29 Comp. Lab. L. & Pol'y J. 177 (2008)
Gautham Rao, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid- Nineteenth-Century America , 26 Law & Hist. Rev. 1 (2008)
Bernard Reams & Michael Forrest, Threading the Eye of the ERISA Needle: ERISA Preemption and Alternative Legal Schemes to Fill the Regulatory Vacuum, 39 St. Mary's L.J. 277 (2007)
Rhonda Reaves, Retaliatory Harassment: Sex and the Hostile Coworker as the Enforcer of Workplace Norms, 2007 Mich. St. L. Rev. 403
Paul Roth, Captive Audience Speech under New Zealand Law, 29 Comp. Lab. L. & Pol'y J. 147 (2008)
Michael Satz, Mandatory Binding Arbitration: Our Legal History Demands Balanced Reform, 44 Idaho L. Rev. 19 (2007)
Michael Scaperlanda, Reflections on Immigration Reform, the Workplace and the Family, 4 U. St. Thomas L.J. 508 (2007)
Elizabeth Schiltz, Workplace Restructuring to Accommodate Family Life, 4 U. St. Thomas L.J. 343 (2007)
Paul Secunda, Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, 29 Comp. Lab. L. & Pol'y J. 209 (2008)
Steven Seidenfeld, Note: Employer Liability under Title VII: Creating an Employer Affirmative Defense for Retaliation Claims, 29 Cardozo L. Rev. 1319 (2008)
Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men and Responsibility, 4 U. St. Thomas L.J. 573 (2007)
Nurhan Sural, Captive Audience Speeches in the Labor-Management Setting in Turkey, 29 Comp. Lab. L. & Pol'y J. 191 (2008)
Symposium: Workplace Restructuring to Accommodate Family Life, 4 U. St. Thomas L.J. 343 (2007)
Symposium: Restorative Justice: Choosing Restoration over Retribution, 8 Cardozo J. Conflict Resol. 405 (2007)
Symposium. The Rehnquist Court in Empirical and Statistical Retrospective, 24 Const. Comment: 3 (2007)
Symposium: One Act, Ten Years, and Thousands of Families: Welfare Reform in Contemporary America , 11 J. Gender Race & Just. 1 - 65 (2007)
24 Labor and Employment Relations Association (LERA) www.LERAweb.org
Eric Tucker, Shareholder and Director Liability for Unpaid Workers' Wages in Canada : from Condition of Granting Limited Liability to Exceptional Remedy, 26 Law & Hist. Rev. 57 (2008)
Julie Vanneman, Note: Procedural Fencing in Retiree Benefits Disputes: Applications of the First-Filed Rule in Federal Courts, 69 U. Pitt. L. Rev. 123 (2007)
J.W. Verret, Economics Makes Strange Bedfellows: Pensions, Trusts, and Hedge Funds in an Era of Financial Re-Intermediation, 10 U. Pa. J. Bus. & Emp. L. 63 (2007)
Aaron Walker, Comment: Title VII & MLB Minority Hiring: Alternatives to Litigation, 10 U. Pa. J. Bus. & Emp. L. 245 (2007)
Lavanga Wijekoon, Comment: Litigating Labor Rights Across a Demilitarized Zone: The South Korean Constitutional Court as a Forum to Address Labor Violations in North Korea's Kaesong Special Economic Zone, 17 Pac. Rim L. & Pol'y J. 265 (2008)
Joan Williams, The Politics of Time in the Legal Profession. 4 U. St. Thomas L.J. 379 (2007)
May 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
ERISA Fiduciary Obligations Among the complexities of the Employee Retirement Income Security Act (ERISA) is the question of fiduciary obligations and liability for actions taken as a fiduciary. ERISA requires a fiduciary to perform fiduciary duties with “an eye single” to the interests of a benefit plan's participants and beneficiaries. However, a person may act as a fiduciary at some times and not at others, depending on the duties being performed. The Department of Labor's website explains that “fiduciary status is based on the functions performed for the [benefit] plan, not just a person's title.” A person acts as a fiduciary when exercising discretion or control in administering and managing a plan or controlling a benefit plan's assets. A person is not acting as a fiduciary in making decisions to change the types of benefits or even to terminate a plan.
In a recent case, the First Circuit Court of Appeals held that an employer did not breach its ERISA fiduciary duties even though the employer's human resources representative gave an employee inaccurate pension. The estimate given to the employee was high by over $2000 a month. The plaintiff turned down another job offer in reliance on this information. The plaintiff sued when he learned that, rather than receiving $2914 a month, his pension was only $789 a month. While this might seem to be a failure to keep an eye single on the beneficiary's interests, the court found that the act of the HR representative in providing the statements was not in the role of a plan fiduciary. Instead, he was performing a ministerial task. Livick v. Gillette Co., Case No.07-2108 (1st Cir. Apr. 17, 2008).
Although not part of this case, there is another category of commonly made decisions that are not those of a fiduciary. These are employer business decisions. These include, decisions to establish a plan, to 25 Labor and Employment Relations Association (LERA) www.LERAweb.org
determine the types of benefits to include, to amend a plan, or to terminate a plan. The reason these sorts of decisions are excluded from fiduciary obligations is that employers need to be able to make decisions on behalf of its business, even though these may have a negative effect on beneficiaries. However, when an employer or its representative implements these decisions, that person is a fiduciary when acting on behalf of the plan.
Title VII Protections for Transgendered Job Applicants Congress has never added transgendered employees as a protected status under Title VII, nor has it removed them from protected status under Title VII, although it has amended other statutes to do so. As a result, the courts are deeply divided as to whether “sex” under Title VII can be extended to protect transgendered employees.
A recent case from the Federal District Court for the District of Texas has put itself in the held that transgendered employees are protected and has done so by applying the Supreme Court's case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In a Price-Waterhouse case, there is a violation if an employer discriminates against an employee for failing to conform to stereotypes about male or female appearance or behavior. Put another way, discrimination is found for taking action against an employee who does not conform to his or her gender by acting or appearing sufficiently masculine or feminine.
In this case, the plaintiff was a biological male who appeared to be a woman and who planned to undergo sex reassignment surgery. The plaintiff applied for a job as a scheduler for a medical clinic. The job involved only contact by telephone and not meeting patients face-to-face. The employer withdrew the job offer made to the plaintiff, because, it claimed, the employee had made a misrepresentations on the application, by claiming to be a woman instead of a man. However, the court found that there was evidence that the plaintiff had included information on the application that disclosed the plaintiff's actual status.
While the court did find a claim under Price-Waterhouse, it did not go as far as finding that the plaintiff had a Title VII claim based on discrimination against employees with gender identity disorder or being transgendered. Rather plaintiff's claim could proceed to trial only as a claim of sex discrimination based on his failure to conform to traditional gender stereotypes. Lopez v. River Oaks Imaging & Diagnostic Group, Inc., Case No.4:06-cv-03999 (S.D. Tex. April 3, 2008).
Discrimination for Refusal to Support a Candidate In an election year, it is good to have a case that concerns employee rights with regard to electoral politics. Most of these cases involve pressure on a public employee to campaign for or otherwise support a candidate or party. Public employees are protected by the United States and state constitutions. Employees of private companies are less likely to have either state or federal constitutional protections, and the protections they have will normally be based on state law.
In a recent case, a county employee in Oklahoma refused to support any candidate. Her employer claimed that the law gave him qualified immunity from a lawsuit after he terminated the plaintiff for not campaigning for a candidate. He also argued that lack of political affiliation is not constitutionally protected. Gann v. Cline, Case No.07-6011 (10 th Cir. Mar. 11, 2008).
The U.S. Court of Appeals for the Tenth Circuit, held that the plaintiff could bring a claim for violation of her rights under the First Amendment of the U.S. Constitution for improper termination based on political patronage. The court found that since the plaintiff's job was not subject to patronage dismissal, the “only relevant consideration is the impetus for the elected official's employment decision vis-a-vis 26 Labor and Employment Relations Association (LERA) www.LERAweb.org
the plaintiff, i.e., whether the elected official prefers to hire those who support or affiliate with him and terminate those who do not.” Making employment decisions on these bases violates the First Amendment.
Laptops and Employee Privacy Rights Privacy rights in the workplace are complex and contested. Many employees incorrectly believe they have greater privacy rights than they do. Employer rights to search laptops, computer records, desks, and offices are controlled by a number of statutes and common law privacy rights, and the growth in electronic media has only added to the laws that control this area. The result of employer and employee rights and obligations can be an expensive dispute at the end of a relationship.
A recent case provides an example of some of the problems that can arise. In this case, the employer searched the company laptop that had been assigned to a former employee. That search included personal e-mails that had been stored on the hard drive. Information stored on the computer became the basis for employer claims in a lawsuit, including misappropriation of trade secrets and breach of the duty of loyalty. The court held that, because the emails had been stored on the hard drive, the search did not violate the Stored Communications Act. In addition, the computer was the employer's property, so the search did not violate the employee's right to privacy. These cases are highly fact-sensitive, and employers are well advised to stay current on the law and also to provide information and training to employees to avoid misunderstandings and disputes. Hilderman v. Enea Teksci Inc., Case No.05cv1049 (S.D. Cal. Mar. 12, 2008).
Web Links
Congressional Budget Office Letter on Change in PBGC Investment Strategy http://www.cbo.gov/ftpdocs/91xx/doc9156/04-24-Miller-PBGC_Letter.pdf
Robert Wood Johnson Foundation, Squeezed: How Costs for Insuring Families are Outpacing Income http://www.rwjf.org/
Employee Benefit Research Institute, 2008 Retirement Confidence Survey: Americans Much More Worried About Retirement, Health Costs a Big Concern EBRI Issue Brief No. 316 • April 2008 http://www.ebri.org/pdf/briefspdf/EBRI_IB_04-2008.pdf
The Conference Board, Weights and Measures: What Employers Should Know about Obesity http://www.conference-board.org/utilities/pressDetail.cfm?press_ID=3365
Labor Department Office of Inspector General, MSHA Could Not Show It Made the Right Decision in Approving the Roof Control Plan at Crandall Canyon Mine (Report No. 05-08-003-06-001) (March 31, 2008)
http://www.oig.dol.gov/public/reports/oa/2008/05-08-003-06-001.pdf
Nanotechnology Field Research Team Update; NIOSH Nanotechnology Field Research Effort Fact Sheet; and NIOSH Nanotechnology Metal Oxide Particle Exposure Assessment Study (March 25, 2008) at http://www.cdc.gov/niosh/whatsnew.html
27 Labor and Employment Relations Association (LERA) www.LERAweb.org
Price-Waterhouse, The price of excess: Identifying waste in healthcare spending http://www.pwc.com/extweb/pwcpublications.nsf/docid/73272CB152086C6385257425006BA2FC [registration required]
Center for Economic and Policy Research, Unions and Upward Mobility for African American Workers, April 2008 http://www.cepr.net/documents/publications/unions_2008_04.pdf
Work in Progress
Ariana Levinson, Louis D. Brandeis School of Law, University of Louisville My forthcoming article, Lawyering Skills, Principles and Methods Offer Insight As to Best Practices for Arbitration, 60 Baylor L. Rev. (Spring 2008) discusses how people involved in arbitration can use principles and methods used in litigation and at trial to develop best practices for arbitration. The article uses the theoretical underpinnings of the body of scholarship known as "lawyering skills." This area of scholarship draws upon the disciplines of rhetoric, logic, cognitive psychology, and linguistics. In addition to addressing issues of concern for parties involved in arbitration, the article provides suggestions for drafting rules to govern arbitrations. A rough draft of the article is available for free download from SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1022065 .
In the future, I would like to return to this line of research by focusing on what "lawyering skills" used in contract drafting suggest about drafting collective bargaining agreements and rules governing arbitration.
Recent Labor and Employment Law Articles
Michael Ahrens, Note: Wisconsin Confidential: The Mystery of the Wisconsin Supreme Court's Decision in Burbank Grease Services v. Sokolowski and its Effect upon the Uniform Trade Secrets Act, Litigation, and Employee Mobility, 2007 Wis. L. Rev. 1271
Roger Alford, Arbitrating Human Rights, 83 Notre Dame L. Rev. 505 (2008)
Frances Ansley, Doing Policy from Below: Worker Solidarity and the Prospects for Immigration Reform, 41 Cornell Int'l L.J. 101 (2008)
Dianne Avery, The Great American Makeover: The Sexing up and Dumbing down of Women's Work after Jespersen v. Harrah's Operating Company, Inc., 42 U.S.F.L. Rev. 299 (2007)
Aditi Bagchi, Varieties of Employee Ownership: Some Unintended Consequences of Corporate Law and Labor Law, 10 U. Pa. J. Bus. & Emp. L. 305 (2008)
Steven Banks, ADR and Litigation Involving Social Problems, 35 Fordham Urb. L.J. 109 (2008)
Arianne Renan Barzilay, Women at Work: Towards an Inclusive Narrative of the Rise of the Regulatory State, 31 Harv. J.L. & Gender 169 (2008)
Paul Bauer, Development. The Maritime Labour Convention: An Adequate Guarantee of Seafarer Rights, or an Impediment to True Reforms? 8 Chi. J. Int'l L. 643 (2008)
28 Labor and Employment Relations Association (LERA) www.LERAweb.org
Tricia Beckles, Comment: Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage If They Have No "Similarly Situated" Comparators? 10 U. Pa. J. Bus. & Emp. L. 459 (2008)
Derrick Bell, Ledbetter v. Goodyear Tire & Rubber Co., 23 Touro L. Rev. 843 (2008)
Matthew Bodie, Information and the Market for Union Representation, 94 Va. L. Rev. 1 (2008)
Deanna Brinkerhoff, Note: A More Employee-Friendly Standard for Pretext Claims after Ash v. Tyson, 8 Nev. L.J. 474 (2007)
John Buhrman, Note: Riding with Little Brother: Striking a Better Balance Between the Benefits of Automobile Event Data Recorders and Their Drawbacks, 17 Cornell J.L. & Pub. Pol'y 201 (2007)
Edward Brunet, The Minimal Role of Federalism and State Law in Arbitration, 8 Nev. L.J. 326 (2007)
Sarah Burns, Thinking about Fairness & Achieving Balance in Mediation, 35 Fordham Urb. L.J. 39 (2008)
Marilyn Cane & Ilya Torchinsky, Explaining "Explained Decisions": NASD's Proposal for Written Explanations in Arbitration Awards, 15 U. Miami Bus. L. Rev. 23 (2007)
Howard Chang, The Economics of International Labor Migration and the Case for Global Distributive Justice in Liberal Political Theory, 41 Cornell Int'l L.J. 1 (2008)
Muzaffar Chishti, A Redesigned Immigration Selection System, 41 Cornell Int'l L.J. 115 (2008)
Sarah Cole, Revising the FAA to Permit Expanded Judicial Review of Arbitration Awards, 8 Nev. L.J. 214 (2007)
Analiz Deleon-Vargas, Comment: The Plight of Immigrant Day Laborers: Why They Deserve Protection under the Law, 10 Scholar 241 (2008)
Colleen Dougherty, Comment: The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States,10 U. Pa. J. Bus. & Emp. L. 483 (2008)
Christopher Drahozal, Codifying Manifest Disregard, 8 Nev. L.J. 234 (2007)
Elizabeth Ellis, Note: Public Employees Left to Decide "Your Conscience or Your Job", 41 Ind. L. Rev. 187 (2008)
Megan Erb, Note: Red Light, Green Light: Assessing the Stop and Go in the Advancement of Women in the Legal and Business Sectors, 14 Wm. & Mary J. Women & L. 393 (2008)
Joshua Foster, Note:ERISA, Trust Law, and the Appropriate Standard of Review: A De Novo Review of Why the Elimination of Discretionary Clauses Would Be an Abuse of Discretion, 82 St. John's L. Rev. 735 (2008)
29 Labor and Employment Relations Association (LERA) www.LERAweb.org
John Friedl & Andre Honoree, Is Justice Blind? Examining the Relationship Between Presidential Appointments of Judges and Outcomes in Employment Discrimination Cases, 38 Cumb. L. Rev. 89 (2007-2008)
Laura Goldin, Note: The Safety Net Revisited? The Continuing Impact of Welfare Reform in New York City and Nationwide, 14 Cardozo J.L. & Gender 97 (2007)
Michael Green, Measures to Encourage and Reward Post-Dispute Agreements to Arbitrate Employment Discrimination Claims, 8 Nev. L.J. 58 (2007)
Kati Griffith, A Supreme Stretch: The Supremacy Clause in the Wake of IRCA and Hoffman Plastic Compounds, 41 Cornell Int'l L.J. 127 (2008)
Lisa Hansen, Note: A Comprehensive Framework for Accommodating Nursing Mothers in the Workplace, 59 Rutgers L. Rev. 885 (2007)
Debra Herman, Options for Allocating Stock Option Income: New York's New Allocation Rules and Their Effect on Taxpayers, Multistate Employers, and Other States, 60 Tax Law. 991 (2007)
David Hess, Public Pensions and the Promise of Shareholder Activism for the next Frontier of Corporate Governance: Sustainable Economic Development, 2 Va. L. & Bus. Rev. 221 (2007)
Jeffrey Hirsch, The Silicon Bullet: Will the Internet Kill the NLRA? 76 Geo. Wash. L. Rev. 262 (2008)
Jeffrey Hirsch & Barry Hirsch, The Rise and Fall of Private Sector Unionism: What Next for the NLRA? 34 Fla. St. U. L. Rev. 1133 (2007)
Matthew Hutcheson, Uncovering and Understanding Hidden Fees in Qualified Retirement Plans, 15 Elder L.J. 323 (2007)
Margaret Jackson, Confronting "Unwelcomeness" from the Outside: Using Case Theory to Tell the Stories of Sexually-Harassed Women, 14 Cardozo J.L. & Gender 61 (2007)
Heather James, Note: If You Are Attractive and You Know It, Please Apply: Appearance-Based Discrimination and Employers' Discretion, 42 Val. U. L. Rev. 629 (2008)
Daniel Johns, Promises, Promises: Rethinking the NLRB's Distinction Between Employer and Union Promises During Representation Campaigns, 10 U. Pa. J. Bus. & Emp. L. 433 (2008)
Martin Katz, Unifying Disparate Treatment (Really), 59 Hastings L.J. 643 (2008)
Jennifer Kemp, Case Note: Civil Rights – The Clock Starts Ticking: Title VII Pay Discrimination Claims, 8 Wyoming L. Rev. 259 (2008)
Christopher Kippley & Richard Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers, 8 Nev. L.J. 10 (2007)
30 Labor and Employment Relations Association (LERA) www.LERAweb.org
Holning Lau, Sexual Orientation & Gender Identity: American Law in Light of East Asian Developments, 31 Harv. J.l. & Gender 67 (2008)
Michael Leroy, Misguided Fairness? Regulating Arbitration by Statute: Empirical Evidence of Declining Award Finality, 83 Notre Dame L. Rev. 551 (2008)
Jennifer Levi, Misapplying Equality Theories: Dress Codes at Work, 19 Yale J.L. & Feminism 353 (2008)
Anne Marie Lofaso, Toward a Foundational Theory of Workers' Rights: The Autonomous Dignified Worker, 76 Umkc L. Rev. 1 (2007)
Adam Lounsbury, Comment: A Nationalist Critique of Local Laws Purporting to Regulate the Hiring of Undocumented Workers, 71 Alb. L. Rev. 415 (2008)
Michael McBride & Leonard Court, Labor Regulation, Union Avoidance and Organized Labor Relations Strategies on Tribal Lands: New Indian Gaming Strategies in the Wake of San Manuel Band of Indians v. National Labor Relations Board, 40 J. Marshall L. Rev. 1259 (2007)
Ian McGinley, Regulating "Rent-a-cops" Post-9/11: Why the Private Security Officer Employment Authorization Act Fails to Address Homeland Security Concerns, 6 Cardozo Pub. L. Pol. & Ethics J. 129 (2007)
William Mateikis, The Fair Track to Expanded Fair Trade: Making Taa Benefits More Accessible to American Workers, 30 Hous. J. Int'l L. 1 (2007)
Robert Metzger & Daniel Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 2007 Wis. L. Rev. 1225
Christine Niemczyk, Comment: Boxing out Big Box Retailers: The Legal and Social Impact of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339 (2007)
Jacqueline Nolan-Haley, Cathy Costantino, Sean Nolon & Joseph Siegel, Panel: Problem-Solving Mechanisms to Achieve Consensus: How Do We Ensure Successful Resolution? 35 Fordham Urb. L.J. 205 (2008)
Joseph Oluwole, Eras in Public Employment-free Speech Jurisprudence, 32 Vt. L. Rev. 317 (2007)
Dan O'Hearn, Comment: Beyond "Let Them Eat Cake": An Argument for the Armendariz Method of Cost Allocation in Mandatory Employment and Consumer Arbitration, 2007 J. Disp. Resol. 541
Matthew Panach, Comment: Two Wrongs Don't Make a Right...To Receive Backpay? The Post- Hoffman Polarity of Escobar and Rivera, 60 Ark. L. Rev. 907 (2008)
William Park, Determining an Arbitrator's Jurisdiction: Timing and Finality in American Law, 8 Nev. L.J. 135 (2007)
Alan Rau, Federal Common Law and Arbitral Power, 8 Nev. L.J. 169 (2007)
31 Labor and Employment Relations Association (LERA) www.LERAweb.org
Noya Rimalt, Stereotyping Women, Individualizing Harassment: The Dignitary Paradigm of Sexual Harassment Law Between the Limits of Law and the Limits of Feminism, 19 Yale J.L. & Feminism 391 (2008)
Catherine Rogers, The Arrival of the "Have-nots" in International Arbitration, 8 Nev. L.J. 341 (2007)
Jessica Rosenthal, Comment: The Interactive Process Disabled: Improving the ADA and Strengthening the EEOC Through the Adoption of the Interactive Process, 57 Emory L.J. 247 (2007)
John Sanchez, 2006-2007 Survey of Florida Public Employment Law, 32 Nova L. Rev. 141 (2007)
Leticia Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. Mich. J.L. Reform 447 (2008)
Tali Schaefer, Disposable Mothers: Paid In-home Caretaking and the Regulation of Parenthood, 19 Yale J.L. & Feminism 305 (2008)
Amy Schmitz, Dangers of Deference to Form Arbitration Provisions, 8 Nev. L.J. 37 (2007)
Elizabeth Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705 (2007)
Matthew Schroll, Note: Misconstruing Precedent to Curtail Government Employees' First Amendment Rights, 67 Md. L. Rev. 485 (2008)
David Schwartz, If You Love Arbitration, Set it Free: How "Mandatory" Undermines "Arbitration", 8 Nev. L.J. 400 (2007)
Rebecca Scott, Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge, 106 Mich. L. Rev. 777 (2008)
Terry Smith, Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 Am. U. L. Rev. 523 (2008)
Lucy Stark, Exposing Hostile Environments for Female Graduate Students in Academic Science Laboratories: The McDonnell Douglas Burden-shifting Framework as a Paradigm for Analyzing the "Women in Science" Problem, 31 Harv. J.L. & Gender 101 (2008)
Thomas Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 Nev. L.J. 427 (2007)
Richard Speidel, Parties' Power to Vary Standards for Review of International Commercial Arbitration Awards, 8 Nev. L.J. 314 (2007)
Jeffrey Stempel, Keeping Arbitrations from Becoming Kangaroo Courts, 8 Nev. L.J. 251 (2007)
Jean Sternlight, Introduction: Dreaming about Arbitration Reform, 8 Nev. L.J. 1 (2007)
32 Labor and Employment Relations Association (LERA) www.LERAweb.org
Jean Sternlight, In Defense of Mandatory Binding Arbitration (If Imposed on the Company), 8 Nev. L.J. 82 (2007)
Lawrence Susskind, Consensus Building, Public Dispute Resolution, and Social Justice, 35 Fordham Urb. L.J. 185 (2008)
Symposium: Rethinking the Federal Arbitration Act: An Examination of Whether and How the Statute Should Be Amended, 8 Nev. L.J. 1 (2007)
Symposium: Informational Privacy: Philosophical Foundations and Legal Implications, 44 San Diego L. Rev. 695 (2007).
Symposium. Immigration Policy: Who Belongs? 41 Cornell Int'l L.J. 1 (2008)
Prajna Tuladhar, Note: There's Something about Mexico: Exploring the Controversy, Costs, and Benefits of a Social Security Totalization Agreement with Our Neighbor to the South, 15 Elder L.J. 581 (2007)
Ryan Turley, Note: Only the Rich Can Afford a Remedy: The Unconscionable Enforcement of Arbitration Provisions Against the Indigent, 2007 J. Disp. Resol. 611
John Vincent & Jessica Rutzick, Reinstating Wyoming's Joint & Several Liability Paradigm: Protecting Wyoming's Workforce, Their Families and the Wyoming Worker's Compensation Fund from Uncompensated Injuries and Deaths, 8 Wyoming L. Rev. 87 (2008)
Maria Volpe, et alia, Barriers to Participation: Challenges Faced by Members of Underrepresented Racial and Ethnic Groups in Entering, Remaining, and Advancing in the ADR Field, 35 Fordham Urb. L.J. 119 (2008)
Stephen Ware, Arbitration Law's Separability after Buckeye Check Cashing, Inc. v. Cardegna, 8 Nev. L.J. 107 (2007)
Maureen Weston, Preserving the Federal Arbitration Act by Reigning in Judicial Expansion and Mandatory Use, 8 Nev. L.J. 385 (2007)
Eric Wiesner, Note: Voices from the Workplace: Oakwood Healthcare, Inc. and the Rollback of Labor Rights under the Current National Labor Relations Board, 42 U.S.F.L. Rev. 457 (2007)
William Woolston, Whose Money Is it Anyway? The Case for a Mortality Discount for Cash Balance Plan Early Termination Lump Sum Distributions, 10 U. Pa. J. Bus. & Emp. L. 383 (2008)
Kojo Yelpaala, Legal Consciousness and Contractual Obligations, 39 McGeorge L. Rev. 193 (2008)
Katharine Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int'l L. 113 (2008)
33 Labor and Employment Relations Association (LERA) www.LERAweb.org
June 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
Union Buttons on the Job The right to wear union buttons while at work is a perennial issue, despite the Supreme Court’s 1945 decision in Republic Aviation. In some settings, such as hospitals, it is particularly contentious, despite the Supreme Court’s 1978 decision in Beth Israel Hospital that bans on wearing union insignia outside patient care areas of acute-care hospitals are presumptively invalid under the NLRA.
In a recent case, nurses were permitted to wear unions buttons at work. However, as contract negotiations dragged on past the contract’s expiration, the hospital forbade nurses from wearing buttons that said: “RNs Demand Safe Staffing” in any area where they might be seen by patients or their families. The Ninth Circuit Court of Appeals held that the ban violated the National Labor Relations Act. The court reversed the National Labor Relations Board decision that the button ban was lawful, because it would inherently disturb hospital patients. Washington State Nurses Ass'n v. NLRB, Case No.06-74919 (9th Cir. May 20, 2008)
The court found that the Board had no evidence to support its conclusion that the buttons might cause patients and their families concern that the hospital could not provide adequate care. According to the court the Board’s findings were, at best, based on speculation. The record contained no evidence of any incident in which patients or their families were upset by the button. Furthermore, the decision was “contrary to its established precedent, to our sister circuit's precedent, and to the basic adjudicatory principle that conjecture is no substitute for evidence.”
Retaliation for Taking FMLA Intermittent Leave The Family and Medical Leave Act (FNLA) permits qualified workers to take intermittent leave when needed for their own care or that of close family members. In a recent case, an employee took intermittent leave to care for her mother. During that time she was demoted on the grounds that she had performance problems. The Seventh Circuit Court of Appeals found that the record could support a finding that the demotion was in retaliation for the leave and, therefore, violated the FMLA. Until the employee took the intermittent leave there was no record of performance problems, and she was told by a supervisor that her leave was the reason for her demotion. Lewis v. School District #70, Case No.06- 4435 (7th Cir. Apr. 17, 2008).
The court noted that employers can have problems covering work when an employee takes FMLA leave; however, in this case the employer had not taken various options that were available to it. The record showed that the employer called the FMLA ludicrous and set about building a case against the employee. This and other evidence could be evidence of illegal retaliation based on the employee’s FMLA leave.
Hostile Environment Sexual Harassment A hostile environment as a form of discriminatory harassment is now established as a violation of Title VII. One area not yet established is whether that harassment can be general or must be directed at the plaintiff. A recent case by the Eleventh Circuit Court of Appeals found that an illegal hostile environment had been created as a result of co-workers and supervisors’ sexually offensive and
34 Labor and Employment Relations Association (LERA) www.LERAweb.org
derogatory comments and other acts permeated the workplace environment, even though none of the actions were directed at the plaintiff. To be a violation, the conduct must be severe or pervasive enough to affect the work environment. The court reversed the summary judgment and remanded the case for trial, allowing the sole plaintiff to sue under Title VII. Reeves v. C.H. Robinson Worldwide Inc., Case No.07-10270 (11th Cir. Apr. 28, 2008).
ERISA and Collecting Unpaid Fund Contributions A Utah Court of Appeals recently canvassed a wide range of federal and state court decisions to answer the question whether the Employee Retirement Income Security Act (ERISA) preempts fringe benefit funds from using state collection laws to collect unpaid benefits. The court concluded that there was no preemption here. Forsberg v. Bovis Lend Lease Inc., Case No.20070338-CA (Utah Ct. App. Apr. 24, 2008).
Federal laws can preempt state laws, usually when there is a conflict between them. Preemption can be much broader, depending on Congress’ intent. ERISA preemption is broad but does have limits. Basic preemption doctrine holds that federal laws do not preempt state laws of general applicability. Laws of general applicability are those that apply to the public as a whole and that have only an incidental impact on the federal law.
In this case, mechanics liens and other collection statutes are not benefits laws, were enacted for use by the general public, and would not conflict with any part of ERISA. As a result, they were held not to be preempted by ERISA and could be used to collect unpaid benefits payments. Another issue in the case was whether the plaintiff benefits funds had standing to collect the debts under the state laws. The court found they did.
Wrongful Discharge for Enforcing Protective Order One difficult area for employers and employees is dealing with off-the-job violence that may affect the workplace. Employers are understandably concerned for the safety of those on the worksite and the potential for liability if anyone is injured. That liability could include punitive damages if an employer knows of the problem and fails to take action. On the other hand, terminating the targeted worker, who has done nothing wrong, increases that person’s victimization. Rayburn v. Wady Indus., Case No.C07- 1008 (N.D. Iowa Apr. 10,2008).
A federal district court in Iowa held that a plaintiff had a claim for wrongful discharge when she was fired after police entered her workplace in order to enforce a protective order against a fellow employee. Wrongful discharge claims are an exception to at-will. One type of wrongful discharge exists when an employee is fired for exercising a public right or obligation. In this case, the court held, Iowa pubic policy supports reporting violations of protective orders. If workers feared losing their jobs for reporting violations of laws, then the laws would be of little value.
Fiduciary Responsibility and ERISA Liability The whole landscape of fiduciary responsibility under ERISA is likely to change with the unanimous February Supreme Court decision in LaRue v. DeWolff, Boberg & Assoc., Case No.06-856 (Feb. 20, 2008). That case involved a 401(k), a type of defined contribution plan, not a defined benefits plan. The entire structure of ERISA creates a variety of protections for defined benefits plans but not for other sorts of benefits. The lack of protections for other benefits has been a serious problem, because ERISA preemption means that there are no ways to enforce rights outside ERISA. LaRue, then, may forecast important shifts in employee rights.
35 Labor and Employment Relations Association (LERA) www.LERAweb.org
Given that background, it is interesting to consider a recent New York case that held employees could pursue a claim that their company and its executives individually violated their fiduciary obligations to the employees by so mismanaging the company that it went bankrupt and the retirement plan was terminated. In this case, the plan was a defined benefit retirement plan, so the employees can receive payments from the Pension Benefit Guaranty Corporation (PBGC). Nonetheless, the court found that the plaintiff employees had suffered and would suffer losses that meant their benefits were worthless, despite PBGC payments. Therefore, they had alleged a viable claim. Lilly v. Oneida Ltd. Employee Benefits Administrative Committee, Case No.6:07-CV-0340 (NPM/GJD) (N.D.N.Y. May 8, 2008).
Work in Progress
Raja Raghunath, University of Denver Sturm College of Law My new article, Stacking the Deck: Privileging “Employer Free Choice” over Industrial Democracy in the Card Check Debate, 87 Neb L. Rev. (forthcoming December 2008), examines the National Labor Relations Board’s recent Dana Corp. decision. In Dana, the Board majority held that when an employer voluntarily recognizes a union based on card-check there is a 45-day window period to file a decertification petition. This new decision addressed many of the same concerns as the Supreme Court did in 1969 in Gissel Packing, but arrived at precisely opposite conclusions. In the article, I place the Dana decision alongside two other Board decisions last year – including one, Wurtland Nursing, that was issued on the same day as Dana Corp. I conclude that the focus of the Board has shifted from promoting collective bargaining, and its stated goal of ensuring employee free choice, to one of safeguarding “employer free choice” as to whether to opt into or out of collective bargaining. I also discuss events that occurred last year in California and Illinois public sector cases that, I think, show a similar shift occurring at the state level as well. The current draft of the article is available for free download from SSRN, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105030.
In the future, I plan to explore the reasons why policymakers, the judiciary, and the public have increasingly disassociated the individual rights of workers in the workplace from their collective rights as a workforce. In particular, I want to examine examples outside the employment arena where individual rights are seen to be in tension with the collective good.
Web Links
Families and Work Institute, 2008 National Study of Employers http://familiesandwork.org/site/research/reports/2008nse.pdf
NIOSH Investigative Report on the Sofa Super Store Fire http://media.charleston.net/2008/pdf/NIOSH_draft_report_050808.pdf
City of Charleston Post Incident Assessment and Enhancement Review Team's Investigative Report on the Fire http://media.charleston.net/2008/pdf/firereport_051508.pdf
Centers for Disease Control Morbidity and MortalityWeekly, State Smoking Restrictions for Private- Sector Worksites, Restaurants, and Bars - United States, 2004 and 2007 http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5720a3.htm
Notice of Availability of Draft Guidances to Assist in Preparation for an Influenza Pandemic http://aspe.hhs.gov/panflu/antiviral-n-masks.shtml
36 Labor and Employment Relations Association (LERA) www.LERAweb.org
Pandemic information http://www.pandemicflu.gov/
Paul Schulte, et alia, Options for Occupational Health Surveillance of Workers Potentially Exposed to Engineered Nanoparticles: State of the Science, Journal of Occupational & Environmental Medicine. 50(5):517-526, May 2008. http://www.joem.org/pt/re/joem/abstract.00043764-200805000- 00001.htm;jsessionid=L10RhS46KnvvLFGQ5vRfwJfbDp3jd2NYl1QKzjw9TSVSTXFNTYBj!- 1932991218!181195629!8091!-1
NLRB General Counsel Report on the Midwinter Meeting of the ABA Practice and Procedure Committee of the Labor and Employment Law Section, GC 08-05 April 17, 2008 http://www.nlrb.gov/shared_files/GC%20Memo/2008/GC%20%2008- 05%20Report%20on%20the%20Midwinter%20Mtg%20of%20the%20ABA%20P&P%20Committee.pd f
Department of Labor, elaws Advisors http://www.dol.gov/elaws/
Congressional Research Service, Does Price Transparency Improve Market Efficiency? Implications of Empirical Evidence in Other Markets for the Health Care Sector http://www.fas.org/sgp/crs/secrecy/RL34101.pdf
S. Glied & B. Mahato, Who Pays for Health Care When Workers Are Uninsured?, The Commonwealth Fund, May 2008 http://www.commonwealthfund.org/publications/publications_show.htm?doc_id=683563
Partnership for Public Service, Issue Brief: Brain Drain 2008 http://www.ourpublicservice.org/OPS/publications/viewcontentdetails.php?id=126.
New America Foundation, Employer Health Costs in a Global Economy: A Competitive Disadvantage for U.S. Firms http://www.newamerica.net/programs/health_policy#
Boston College Center for Retirement Research, Why Does Funding Status Vary Among State and Local Plans? http://crr.bc.edu/images/stories/Briefs/slp_6.pdf
Alliance for Health Reform, Sponsored Coverage: Shape It Up? Ship It Out? http://www.allhealth.org/publications/Private_health_insurance/Employer-Sponsored_Coverage_83.pdf
Joint Security and Suitability Reform Team, Security and Suitability Process Reform Initial Report http://www.whitehouse.gov/omb/reports/reform_plan_report_2008.pdf
Federal Acquisition Institute, Annual Report on the Federal Acquisition Workforce Fiscal Year 2007 http://www.fai.gov/pdfs/FAI_2007_Workforce_Annual_Report.pdf
Alliance for Health Reform, Sponsored Coverage: Shape It Up? Ship It Out? http://www.allhealth.org/publications/Private_health_insurance/Employer-Sponsored_Coverage_83.pdf
Bureau of Labor Statistics, 2006 Census of Fatal Occupational Injuries http://www.bls.gov/iif/oshwc/cfoi/cfoi_revised06.pdf
37 Labor and Employment Relations Association (LERA) www.LERAweb.org
Recent Labor and Employment Law Articles
Leah Avey, Note: Walk to the Line, Compensable Time: Cash in the Pockets of Employees, 32 Okla. City U. L. Rev. 135 (2007)
Heather Banchek, Note: Overcoming a Hostile Work Environment: Recognizing School District Liability for Student-on-Teacher Sexual Harassment under Title VII and Title IX, 55 Clev. St. L. Rev. 577 (2007)
Adam Benforado & Jon Hanson, The Great Attributional Divide: How Divergent Views of Human Behavior Are Shaping Legal Policy, 57 Emory L.J. 311 (2008)
Derek Black, Turning Stones of Hope into Boulders of Resistance: The First and Last Task of Social Justice Curriculum, Scholarship, and Practice, 86 N.C. L. Rev. 673 (2008)
Lissa Broome, The Corporate Boardroom: Still a Male Club, 33 J. Corp. L. 665 (2008)
Ian Byrnside, Note: Six Clicks of Separation: The Legal Ramifications of Employers Using Social Networking Sites to Research Applicants, 10 Vand. J. Ent. & Tech. L. 445 (2008)
Adrienne Calloway, Comment:180 Days or No Equal Pay: Limiting Employment Discrimination Suits, 59 Mercer L. Rev. 785 (2008)
Xinying Chi, Note: Challenging Managed Temporary Labor Migration as a Model for Rights and Development for Labor-Sending Countries, 40 N.Y.U. J. Int'l L. & Pol. 497 (2008)
Leah Christensen, The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law, 2008 BYU Educ. & L.J. 53
Meredith Conway, Money for Nothing and the Stocks for Free: Taxing Executive Compensation. 17 Cornell J.L. & Pub. Pol'y 383 (2008)
Courtney Dacosta, Note: Stitching Together the Patchwork: Burlington Northern's Lessons for State Whistleblower Law, 96 Geo. L.J. 951 (2008)
Beverley Earle, Gerald Madek & Christina Madek, A Finger in the Dike? An Examination of the Efficacy of State and Federal Attempts to Use Law to Stem Outsourcing, 28 Nw. J. Int'l L. & Bus. 89 (2007)
Eric Eller, Comment: Unintended Consequences: Resolving the Dilemma of the Inadvertent Creation of Multiple Employer Welfare Arrangements During Business Transfers, 24 J. Contemp. Health L. & Pol'y 118 (2007)
Rose Ernst, Localizing the "Welfare Queen" Ten Years Later: Race, Gender, Place, and Welfare Rights, 11 J. Gender Race & Just. 181 (2008)
Susan Foote, The Impact of the Medicare Modernization Act's Contractor Reform on Fee-for-Service Medicare, 1 St. Louis U.J. Health L. & Pol'y 67 (2007)
38 Labor and Employment Relations Association (LERA) www.LERAweb.org
Sarah Franklin, Note: South African and International Attempts to Regulate Mercenaries and Private Military Companies, 17 Transnat'l L. & Contemp. Probs. 239 (2008)
Rafael Gely & Timothy Chandler, Card Check Recognition: New House Rules for Union Organizing? 35 Fordham Urb. L.J. 247 (2008)
Matthew Ginsburg, "A Nigh Endless Game of Battledore and Shuttlecock": The D.C. Circuit's Misuse of Chenery Remands in NLRB Cases, 86 Neb. L. Rev. 595 (2008)
David Gregory, Labor Organizing by Executive Order: Governor Spitzer and the Unionization of Home- Based Child Day-Care Providers, 35 Fordham Urb. L.J. 277 (2008)
Malcolm Harkins, The Ubiquitous False Claims Act: The Incongruous Relationship Between a Civil War Era Fraud Statute and the Modern Administrative State, 1 St. Louis U.J. Health L. & Pol'y 131 (2007)
Seth Harris, Disabilities Accommodations, Transaction Costs, and Mediation: Evidence from the EEOC's Mediation Program, 13 Harv. Negot. L. Rev. 1 (2008)
Jennifer Hill, Binational Guestworker Unions: Moving Guestworkers into the House of Labor, 35 Fordham Urb. L.J. 307 (2008)
Lolita Inniss, Toward a Sui Generis View of Black Rights in Canada? Overcoming the Difference-denial Model of Countering Anti-black Racism, 9 Berkeley J. Afr.-Am. L. & Pol'y 32 (2007)
Douglas Kahn & Jeffrey Kahn, Tax Consequences When a New Employer Bears the Cost of the Employee's Terminating a Prior Employment Relationship, 8 Fla. Tax Rev. 539 (2007)
Judith Kaye & Anne C. Reddy, The Progress of Women Lawyers at Big Firms: Steadied or Simply Studied? 76 Fordham L. Rev. 1941 (2008)
Jessica Kornberg, Note: Jumping on the Mommy Track: A Tax for Working Mothers, 17 UCLA Women's L.J. 187 (2008)
Anna Ku, Note: "You're Fired!" Determining Whether a Wrongly Terminated Employee Who Has Been Reinstated with Back Pay Has an Actionable Title VII Retaliation Claim, 64 Wash. & Lee L. Rev. 1663 (2007)
Michael Landres, Note: Smoke, Mirrors, and Erisa: The False Illusion of Retirement Income Security, 40 Loy. L.a. L. Rev. 1169 (2007)
Michael Leroy & Peter Feuille. Happily Never After: When Final and Binding Arbitration Has No Fairy Tale Ending, 13 Harv. Negot. L. Rev. 167 (2008)
Ariana Levinson, Lawyering Skills, Principles and Methods Offer Insight as to Best Practices for Arbitration, 60 Baylor L. Rev. 1 (2008)
39 Labor and Employment Relations Association (LERA) www.LERAweb.org
Patricia McCarthy & Emily Ullman, Trade Adjustment Assistance Cases: 28 U.S.C. Section 158(d) – Department of Labor and Department of Agriculture Decisions under the Trade Adjustment Assistance Statutes, 39 Geo. J. Int'l L. 105 (2007)
Sabrina Miesowitz, Note: ERA Is Still the Way, 3 N.Y.U. J. L. & Liberty 124 (2008)
Victor Narro, Finding the Synergy Between Law and Organizing: Experiences from the Streets of Los Angeles, 35 Fordham Urb. L.J. 339
Eduardo Perez Motta, Industrial and Competition Policies in Mexico, 83 Chi.-Kent. L. Rev. 31 (2008)
Huyen Pham, The Private Enforcement of Immigration Laws, 96 Geo. L.J. 777 (2008)
Donald Philbin, The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation, 13 Harv. Negot. L. Rev. 249 (2008)
Griffin Pivateau, Putting the Blue Pencil Down: An Argument for Specificity in Noncompete Agreements, 86 Neb. L. Rev. 672 (2008)
Matthias Prause, The Oxymoron of Measuring the Immeasurable: Potential and Challenges of Determining Mediation Developments in the U.S., 13 Harv. Negot. L. Rev. 131 (2008)
Christopher Robinette, Peace: A Public Purpose for Punitive Damages? 2 Chas. L. Rev. 327 (2008)
Florence Roisman, The Right to Remain: Common Law Protections for Security of Tenure: An Essay in Honor of John Otis Calmore, 86 N.C. L. Rev. 817 (2008)
Catherine Ruckelshaus, Labor's Wage War, 35 Fordham Urb. L.J. 373 (2008)
Steven Schwinn, Welfare Reform in a Global Economy, 11 J. Gender Race & Just. 209 (2008)
Selma Shelton, Comment: Reasonably Accommodating the Able Employee Who Is Disabled by Misperception: The ADA's "Regarded As" Prong Gone Awry? 2 Fla. A&m U. L. Rev. 235 (2007)
Joseph Snoe, ERISA Preemption: A Product Rule and the Neglected Workhorse, 3 J. Health & Biomed. L. 217 (2007)
Sarah Suma, Note: Uncertainty and Loss in the Free Speech Rights of Public Employees, 83 Chi.-Kent. L. Rev. 369 (2008)
Symposium: Gender, Sexuality & the Law Symposium and International Women's Human Rights Clinic Report, 8 Geo. J. Gender & L. 883 (2007)
Symposium: One Act, Ten Years, and Thousands of Families: Welfare Reform in Contemporary America, 11 J. Gender Race & Just. 181 (2008)
Symposium: Urban Labor Issues, 35 Fordham Urb. L.J. 247 (2008)
40 Labor and Employment Relations Association (LERA) www.LERAweb.org
Stephen Ware, What Makes Securities Arbitration Different from Other Consumer and Employment Arbitration? 76 U. Cin. L. Rev. 447 (2008)
July 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
The full text of many cases is now available free on-line. Where that is the case, links are provided.
Staffing Firms and Leased Employees
One reason to use staffing firms is limiting litigation and employer liability. However, the only things certain in life are death, taxes, and litigation.
A recent staffing case is a good example. Briefly, Volkswagen contracted with Technical Aid Crystal (TAC) to provide it with 55 employees. The parties' contract allowed Volkswagen to hire the employees directly after employing them for 180 days. At some point, VW decided to use different staffing firms. It hired all the TAC employees that had worked for VW for at least 180 days and then “facilitated their hire” by the new staffing firms. VW wrote the TAC/ VW employees: “Please understand that the current plan, (which of course may change), is to assign you to another contract employer agency after 6 months.” Technical Aid Crystal, Inc. v. Volkswagen of Am., Inc., Case No.2007-080656-CK (Mi. Ct. App. June 10, 2008) http://www.icle.org/mlo/UNPUBLISHED/20080610_278908.pdf
TAC sued VW and the two new staffing firms for breach of contract, conspiracy, and tortious interference with business advantage. The Michigan Court of Appeals dismissed the claims. It reasoned that there was no breach of contract, based on the wording of the contract: “Had the parties wished to state . . that VW was only entitled hire plaintiff's employees in good faith3 and for permanent, full-time positions, they certainly could have done so. However, no such provisions were included in the contract, and we will not read into an agreement terms that have not been placed there by the parties.” Furthermore, once VW had hired plaintiff's employees, the court found that it was free to allow co- defendants Dako and TTi to hire them. The court held that these actions could hardly be described as â˜per se wrongful” and â˜never justified under any circumstances.'” Finally, since there was no unlawful purpose, there could be no criminal conspiracy.
The message to be taken away is not that the plaintiff lost here. It is that there is no way to bulletproof the workplace — or other relationships — from disputes and, thus, from litigation.
41 Labor and Employment Relations Association (LERA) www.LERAweb.org
Reimbursement of Training Expenses
Under some circumstances, employers may be entitled to reimbursement of employee training costs. However, the right to reimbursement is limited.
In a recent Indiana case, an employee's signed contract included a schedule for reimbursing the employer for its cost of training, costs the employer claimed were $3000. However, the employee already had training and experience in the job duties when she was hired, and training involved a day of watching videos and taking quizzes and a week and a half of shadowing another employee. The employee quit after several months when she learned she was pregnant and would be unable to perform the job as a result. The employer demanded that the employee reimburse it for $1500 of training costs. The amount owed under the contract declined from $3000 to $0 over a one-year period from date of hire. American Consulting Environmental Safety Services, Inc. v. Schuck, Case No.71A05-0707-409 (Ind. Ct. App. June 10, 2008). http://www.in.gov/judiciary/opinions/pdf/06100805ehf.pdf
The state court of appeals of appeals denied the employer's claim. It held that the money was an unenforceable penalty because the amount demanded by the employer did not bear a reasonable relationship to training costs. The employer did not explain why it claimed the costs of training were $3000. The employee was paid $9.00 an hour, so that only about $470 in training wages could have been reimbursable, less than one-third of the amount demanded. The court found that the employer's claim were grossly disproportionate to any employer losses and that the fixed sums were actually a penalty for the employee's leaving. Therefore, the contract was not enforceable.
Holding Owners Personally Liable - Piercing the Corporate Veil
One of the advantages of incorporation is protecting corporate investors from having to pay corporate liabilities. However, in extreme circumstances, courts will “pierce the corporate veil” and allow personal assets of a controlling shareholder or shareholders to be used to to satisfy the corporation's liabilities. This is done only when it can be proven that the owner disregarded the separateness of the corporate identity; engaged in improper conduct, in particular when the owner used the corporate form to commit a fraud; and when the corporate form would shield injustice or inequity.
In a recent case, the 8th Circuit Court of Appeals found it was appropriate to pierce the corporate veil and hold the owner of four interrelated U.S. and Mexican corporations personally liable. The court found that the owner had moved money among the companies in order to suit his personal financial needs and to hide it. “Heller and the corporations readily commingled funds, failed to maintain adequate corporate records, disregarded corporate legal formalities, and failed to maintain an arm's-length relationship. . . . Heller disposed of Bolivar's corporate assets without fair consideration.” The court concluded: “Thus, it was at least reasonable . . . to conclude that Heller's transfer of Bolivar's assets and 42 Labor and Employment Relations Association (LERA) www.LERAweb.org
the allocation of all profits to Screen Creations purposely caused Bolivar to lack the resources to satisfy the award. Therefore, substantial evidence exists to support a finding that adherence to the corporate fiction would sanction a fraud and lead to the evasion of a legal obligation.” NLRB v. Bolivar-Tees, Inc., Case No.07-2334 (8th Cir. June 4, 2008). http://www.ca8.uscourts.gov/opndir/08/06/072334P.pdf
Union Rights to Employee Contact Information
Courts have long held that the National Labor Relations Act's duty to bargain in good faith includes giving unions a right to information needed to perform their duties to represent employees. In a recent case, the 9th Circuit Court of Appeals held 2-1 that the employer violated the NLRA by refusing to give the union bargaining unit members' addresses and telephone numbers. The court held this information to be presumptively relevant, and the employer had the burden of proving that it was not relevant to collective bargaining.
The employer claimed that the union had waived its right by agreeing to a provision in the collective bargaining agreement that stated all personnel records were confidential and that access to those records was limited to the employee and specific employer officials. It also claimed that provisions that required giving the union names of new employees and their contact information and similar information when employee status was changed waived the right to the information at other times.
The court majority held that, given the clarity of the legal right and the vagueness of the contract provisions, the union had a right to the information. The dissent concluded that the contract created an employee confidentiality right that trumped the union's right to information. River Oak Center for Children Inc. v. NLRB, Case Nos.05-77388 & 06-71055 (9th Cir. Apr. 16, 2008) http://www.ca9.uscourts.gov/coa/memdispo.nsf/pdfview/041608/$File/05-77388.PDF
Employer Confidentiality Claims and Union Rights to Information
A common objection to providing unions with information is employee confidentiality. However, unions have a right, even to confidential information, if it is relevant to employee terms and conditions of employment and the union's representation of the employees. The right is a broad one, similar to that under federal discovery. However, when truly confidential information is involved, the parties may need to negotiate the details under which it is provided.
In a recent case, a union learned, after the fact, that an employee had signed an agreement with her employer that covered severance pay and release of any claims. The union asked for “â˜any and all documents'” signed by the employer and/or employee “â˜regarding termination of her employment, severance pay, and/or release of claims.'” The letter also said that the employer's conduct could be “unlawful â˜direct dealing.'” The employer refused to provide a copy of the separation agreement, 43 Labor and Employment Relations Association (LERA) www.LERAweb.org
because, it claimed, the agreement did not involve a term or condition of employment and was confidential. Legal Services of Northern California, 352 NLRB Case No.66 (May 16, 2008) http://www.nlrb.gov/shared_files/Board%20Decisions/352/V35266.pdf
The Board held that “the separation agreement was relevant to the Union's role as collective-bargaining representative”. The collective bargaining agreement itself included terms that governed separation from employment and thus demonstrated the relevance of the information: “an employer violates the Act when it requires or solicits employees to waive their rights under a collective-bargaining agreement without the union's knowledge or assent.” The Board also held that the separation agreement was not privileged from disclosure, even though it included a waiver of the employee's rights under the collective bargaining agreement, rights that were not the employee's to waive. As a result, the employer violated Section 8(a)(5) by failing to provide the Union with a copy of the separation agreement.
Day Laborers and Anti-Solicitation Ordinances
Many towns have become concerned by congregations of day laborers seeking work. In September 2007, Cave Creek, Arizona passed an ordinance that made it it unlawful for any person to “stand on or adjacent to a street or highway and solicit, or attempt to solicit, employment, business or contributions from the occupant of any vehicle.” Violation of the ordinance was a civil traffic offense with a penalty not to exceed $250. Three day laborers sued, alleging that the ordinance violated their First and Fourtheenth Amendment rights to free speech and due process. Lopez v. Cave Creek, Case No.CV 08-566-PHX-ROS (D. Az. June 2, 2008).
The U.S. District Court issued a preliminary injunction, enjoining enforcement of the ordinance as an unconstitutional content-based restriction on free speech. The judge stated that “the Ordinance differentiates based on the content of speech on its face. It prohibits solicitation speech, but not political, religious, artistic, or other categories of speech. It also prohibits solicitation on the topics of “employment, business or contributions,” while allowing solicitation of votes or ballot signatures. And, “[i]n order to enforce the regulation, an official â˜must necessarily examine the content of the message that is conveyed.'” The judge also found: “Even if the Ordinance was content-neutral, it would still be an impermissible time, place, and manner regulation because the Ordinance is not narrowly tailored to further the Town's interests.” The judge noted: “There was no evidence that traffic safety is endangered by day laborers soliciting employment from vehicle occupants.” She also found that the ordinance did not promote traffic safety.
The Town of Cave Creek responded by repealing the ordinance but is currently considering a replacement.
44 Labor and Employment Relations Association (LERA) www.LERAweb.org
Employee Rights in Text Messages
Employers are well advised to be careful when it comes to employee communications. There are a number of laws that affect rights in this area. These laws include federal and state constitutional rights related to search and seizure and privacy; tort privacy rights; and the Stored Communications Act, among others.
A recent case is a good example. A police sergeant sued the police department, the City of Ontariao, California, various police department officials, and the department's internet provider for accessing text messages sent on his police department provided pager. The department said it wanted to assess whether monthly overages meant it needed to raise the character limits or whether the pagers were being used for personal messages. In this case, the plaintiff police officer was found to have sent a large number of personal and sexually explicit messages. Quon v. Arch Wireless Operating Co., Case No.07-55282 (9th Cir. June 18, 2008). http://www.ca9.uscourts.gov/coa/newopinions.nsf/D2CDDB4098D7AFB28825746C0048ED24/$file/07 55282.pdf?openelement
The 9th Circuit Court of Appeals held that the city violated the officer's 4th Amendment rights against unconstitutional search and seizure and California constitutional privacy rights, and the provider violated the federal Stored Communications Act by disclosing communications without the consent of the police officer.
WEB LINKS
House Education and Labor Committee Hearing, Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses, June 19, 2008
House Education and Labor Committee, Report: Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses June 19, 2008
Senate Subcommittee on Employment and Workplace Safety, Two Years after the MINER Act: How Safe is Mining Today? June 19, 2008 45 Labor and Employment Relations Association (LERA) www.LERAweb.org
OSHA, $afety Pays
Proofpoint and Forrester Consulting, Outbound Email and Data Loss Prevention in Today's Enterprise, 2008 ( registration required)
American Staffing Association, Quarterly Trends in Temporary Help Services
Commonwealth Fund, Rite of Passage? Why Young Adults Become Uninsured and How New Policies Can Help
Workplace Screening & Brief Intervention: What Employers Can and Should Do About Excessive Alcohol Use
RECENT LABOR AND EMPLOYMENT LAW ARTICLES
Alfred Aman, An Administrative Law Perspective on Government Social Service Contracts: Outsourcing Prison Health Care in New York City, 14 Ind. J. Global Legal Stud. 301 (2007)
Marc Amstutz, Andreas Abegg & Vaios Karavas, Civil Society Constitutionalism: The Power of Contract Law, 14 Ind. J. Global Legal Stud. 235 (2007)
Penelope Andrews, "Democracy Stops at My Front Door": Obstacles to Gender Equality in South Africa, 5 Loy. U. Chi. Int'l L. Rev. 15 (2007)
Arbitration Law Interpretation, 17 Widener L.J. 505 (2008)
Noah Bleicher, et al. Accountability in Indefinite-Delivery / Indefinite-Quantity Contracting: The Miltifaceted Work of the U.S. Government Accountability Office, 37 Pub. Cont. L.J. 375 (2008) 46 Labor and Employment Relations Association (LERA) www.LERAweb.org
Christina Blyth, Note: Minding the Liability Gap: American Contractors, Iraq, and the Outsourcing of Impunity, 62 U. Miami L. Rev. 651 (2008)
Matthew Bodie, Workers, Information, and Corporate Combinations: The Case for Nonbinding Employee Referenda in Transformative Transactions, 85 Wash. U. L. Rev. 871 (2007)
Adam Brower, Note: Rethinking NAFTA's NAALC Provision: The Effectiveness of its Dispute Resolution System on the Protection of Mexican Migrant Workers in the United States, 18 Ind. Int'l & Comp. L. Rev. 153 (2008)
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David Campbell, Relational Contract and the Nature of Private Ordering: A Comment on Vincent-Jones, 14 Ind. J. Global Legal Stud. 279 (2007)
Elizabeth Chilcoat, Note: Pinkie Promises or Blood Oaths? Using Social Clauses in U.S. Free Trade Agreements to Eradicate Child Labor, 7 Wash. U. Global Stud. L. Rev. 307 (2008)
Stephen Choi & Jill Fisch, On Beyond Calpers: Survey Evidence on the Developing Role of Public Pension Funds in Corporate Governance, 61 Vand. L. Rev. 315 (2008)
Ryszard Cholewinski, The Human and Labor Rights of Migrants: Visions of Equality, 22 Geo. Immigr. L.J. 177 (2008)
47 Labor and Employment Relations Association (LERA) www.LERAweb.org
Eric Christiansen, Exporting South Africa's Social Rights Jurisprudence, 5 Loy. U. Chi. Int'l L. Rev. 29 (2007)
Lance Compa, Labor's New Opening to International Human Rights Standards, 11 WorkingUSA 99 (2008)
Robert Condlin, Bargaining with a Hugger: The Weaknesses and Limitations of a Communitarian Conception of Legal Dispute Bargaining, or Why We Can't All Just Get Along, 9 Cardozo J. Conflict Resol. 1 (2007)
Nathan Cortez, The Local Dilemma: Preemption and the Role of Federal Standards in State and Local Immigration Laws, 61 SMU L. Rev. 47 (2008)
Timothy Creed, Negligent Hiring and Criminal Rehabilitation: Employing Ex-convicts, Yet Avoiding Liability, 20 St. Thomas L. Rev. 183 (2008)
Scott Cummings, Mobilization Lawyering: Community Economic Development in the Figueroa Corridor, 17 J. Affordable Housing & Commun. Dev. L. 59 (2007/2008)
Ellen Dannin, Michelle Dean & Gangaram Singh, Law Reform, Collective Bargaining, and the Balance of Power, 11 WorkingUSA 219 (2008)
Dennis Davis, Transformation and the Democratic Case for Judicial Review: The South African Experience, 5 Loy. U. Chi. Int'l L. Rev. 45 (2007)
Frank Day, Federal Employment Discrimination — Jones v. R.R. Donnelley & Sons Co.: The Inadequacy of the Federal "Catchall" Statute of Limitations, 38 U. Mem. L. Rev. 231 (2008)
John Dudrey, Comment: Damage Control: Two Proposals to Limit the Reach and Effect of Oregon's Wrongful Discharge Tort, 12 Lewis & Clark L. Rev. 205 (2008)
48 Labor and Employment Relations Association (LERA) www.LERAweb.org
Elizabeth Emens, Integrating Accommodation, 156 U. Pa. L. Rev. 839 (2008)
Robert Fabrikant & Nkechinyem Nwabuzor, In the Shadow of the False Claims Act: "Outsourcing" the Investigation by Government Counsel to Relator Counsel During the Seal Period. 83 N.D. L. Rev. 837 (2007)
Nicholas Farber, Note: Avoiding the Pitfalls of Public Private Partnerships: Issues to Be Aware of When Transferring Transportation Assets, 35 Transp. L.J. 25 (2008)
Catherine L. Fisk & Michael M. Oswalt, Preemption and Civic Democracy in the Battle over Wal-Mart, 11 WorkingUSA 45 (2008)
William E. Forbath, Social and Economic Rights: A Brief Guide to the Constitution of Work and Livelihoods, 11 WorkingUSA 145 (2008)
Harris Freeman, Iin the Shadow of Antilabor Law: Organizing and Collective Bargaining 60 Years after Taft-Hartley, 11 WorkingUSA 1 (2008)
Thomas Geraghty & Emmanuel Quansah, African Legal Education: A Missed Opportunity and Suggestions for Change: A Call for Renewed Attention to a Neglected Means of Securing Human Rights and Legal Predictability, 5 Loy. U. Chi. Int'l L. Rev. 87 (2007)
Ezra Greenberg, Note: Stray Remarks and Mixed-Motive Cases after Desert Palace v. Costa: A Proximity Test for Determining Minimal Causation, 29 Cardozo L. Rev. 1795 (2008)
David Gregory, Some Reflections on Labor and Employment Ramifications of Diocesan Bankruptcy Filings, 47 J. Cath. Legal Stud. 97 (2008)
49 Labor and Employment Relations Association (LERA) www.LERAweb.org
Aaron Halegua, Getting Paid: Processing the Labor Disputes of China's Migrant Workers, 26 Berkeley J. Int'l L. 254 (2008)
Kenyon Harbison, Are Contingent-Fee Attorneys Deterred? How Courts Can More Effectively Police Adhesive Arbitration Agreements, 7 Appalachian J.L. 207 (2008)
James Hardman, Motor Carrier Service and Federal and State Overtime Wage Coverage, 35 Transp. L.J. 1 (2008)
Berta Hernandez-Truyol, Sex and Globalization, 11 Harv. Latino L. Rev. 173 (2008)
Sharona Hoffman, Settling the Matter: Does Title I of the ADA Work? 59 Ala. L. Rev. 305 (2008)
James Hollifield, Valerie Hunt & Daniel Tichenor, The Liberal Paradox: Immigrants, Markets and Rights in the United States, 61 SMU L. Rev. 67 (2008)
Bessie House-Soremekun, The Impact of Minority Set-aside Programs on Black Business Success in Cleveland, Ohio: Implications for Public Policy, 30 W. New Eng. L. Rev. 19 (2007)
David Hyams, Note: Going Overboard on Overtime, 35 Transp. L.J. 87 (2008)
James Inman, Note: Where Are You Hurt? Kentucky Redefines Worker's Compensation Injury in a Post-Traumatic Stress Disorder World, 96 Ky. L.J. 465 (2007-2008)
Jamie Ireland & Richard Bales, Title II of the Americans with Disabilities Act of 1990 and its Prohibition of Employment Discrimination, 28 N. Ill. U. L. Rev. 183 (2008)
Laura Jakubowski, Note: International Commerce and Undocumented Workers: Using Trade to Secure Labor Rights, 14 Ind. J. Global Legal Stud. 509 (2007) 50 Labor and Employment Relations Association (LERA) www.LERAweb.org
Lucinda Jesson, Weighing the Wellness Programs: The Legal Implications of Imposing Personal Responsibility Obligations, 15 Va. J. Soc. Pol'y & L. 217 (2008)
Robert Johnson, Comment: Whistling While You Work: Expanding Whistleblower Laws to Include Non-Workplace-Related Retaliation, 42 U. Rich. L. Rev. 1337 (2008)
Irina Kashcheyeva, Comment: Reaching a Compromise: How to Save Michigan Ex-offenders from Unemployment and Michigan Employers from Negligent Hiring Liability, 2007 Mich. St. L. Rev. 1051
Kate Kennedy, Note: Manifest Disregard in Arbitration Awards: A Manifestation of Appeals Versus a Disregard for Just Resolutions, 16 J.L. & Pol'y 417 (2007)
Ian Kierpaul, Comment: The Mad Scramble of Congress, Lawyers, and Law Students after Abu Ghraib: The Rush to Bring Private Military Contractors to Justice, 39 U. Tol. L. Rev. 407 (2008)
Alana Klein, Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights, 39 Colum. Hum. Rts. L. Rev. 351 (2008)
Karl-Heinz Ladeur, The Role of Contracts and Networks in Public Governance: The Importance of the "Social Epistemology" of Decision Making, 14 Ind. J. Global Legal Stud. 329 (2007)
Gordon Lafer, What's More Democratic than a Secret Ballot? The Case for Majority Sign-up, 11 WorkingUSA 71 (2008)
Nancy Levit, Megacases, Diversity, and the Elusive Goal of Workplace Reform, 49 B.C.L. Rev. 367 (2008)
Joshua Levenson, Note: Strength in Numbers: An Examination into the Liability of Corporate Entities for Consumer and Employee Data Breaches, 19 U. Fla. J.L. & Pub. Pol'y 95 (2008) 51 Labor and Employment Relations Association (LERA) www.LERAweb.org
Saul Levmore, Parental Leave and American Exceptionalism, 58 Case W. Res. L. Rev. 203 (2007)
Wilma B. Liebman, Labor Law Inside Out, 11 WorkingUSA 9 (2008)
Haina Lu, New Developments in China's Labor Dispute Resolution System: Better Protection for Workers' Rights? 29 Comp. Lab. L. & Pol'y J. 247 (2008)
Staughton Lynd, Commentary: Another World Is Possible. 11 WorkingUSA 165 (2008)
Michael McGuinness, Whistleblowing and Free Speech: Garcetti's Early Progeny and Shrinking Constitutional Rights of Public Employees, 24 Touro L. Rev. 529 (2008)
Amy Mackin, Note: Lost Without Translation: The Official English Movement and the First Amendment, 6 First Amend. L. Rev. 341 (2008)
Natasha Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains Discrimination in the Contemporary Workplace, 40 Conn. L. Rev. 1117 (2008)
Steven Messick, Note: AIA 2007 Standard Contract Documents: A Positive Step Towards Fair, Transparent, and Collaborative Resolution of Disputes on Construction Projects, 29 Hamline J. Pub. L. & Pol'y 499 (2008)
Scott Miller, Atrophied Rights: Maximum Hours Labor Standards under the FLSA and Illinois Law, 28 N. Ill. U. L. Rev. 261 (2008)
Brandon Morris, Note: Fighting Fishers: The Ninth Circuit Extends Maritime Jurisdiction to a Wage Dispute and Fist Fight Aboard a Vessel, 32 Tul. Mar. L.J. 633 (2008)
52 Labor and Employment Relations Association (LERA) www.LERAweb.org
Astrid Norvelle, "80 Percent Bill," Court Injunctions, and Arizona Labor: Billy Truax's Two Supreme Court Cases, 17 W. Legal Hist. 163 (2004)
Maria Linda Ontiveros, Out of the Shadows and into the Spotlight: Immigrants and Organized Labor, 11 WorkingUSA 157 (2008)
Jo Pasqualucci, The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31 Hastings Int'l & Comp. L. Rev. 1 (2008)
William Payne & Pamina Ewing, Union-Negotiated Lifetime Retiree Health Benefits: Promise or Illusion, 9 Marq. Elder's Advisor 319 (2008)
James Gray Pope, Peter Kellman & Ed Bruno, the Employee Free Choice Act and a Long-term Strategy for Winning Workers' Rights, 11 WorkingUSA 125 (2008)
Panel: The Importance of Entrepreneurship to Economic Growth, Job Creation and Wealth Creation, 33 Can.-U.S. L.J. 7 (2007)
Justin Rains, Comment: Advocating for a Broader Intentional-tort Exception to the Workers' Compensation Exclusive-Remedy Doctrine, 61 Ark. L. Rev. 133 (2008)
Carol Rasnic, Die Kundigung, Licenciement, Recesso Dal Contrato, 'Firing', or 'Sacking': Comparing European and American Laws on Management Prerogatives and Discretion in Termination Decisions, 18 Ind. Int'l & Comp. L. Rev. 19 (2008)
Erin Russ, Note: Strike Three — You're Out! Revamping the New York State Taylor Law in Response to Three Transport Workers' Strikes, 9 Cardozo J. Conflict Resol. 163 (2007)
53 Labor and Employment Relations Association (LERA) www.LERAweb.org
Peter Salsich, Rex Gradeless, Laura Schwarz & Kathleen Zahn, Affordable Workforce Housing -- an Agenda for the Show Me State: A Report from an Interactive Forum on Housing Issues in Missouri, 27 St. Louis U. Pub. L. Rev. 45 (2007)
Yvette Schultz, Note: Runaway Train — Tthe Retaliation Scene — Burlington Northern & Santa Fe Railway v. White, 68 La. L. Rev. 1025 (2008)
Derek Scott, Comment: The Zen of Arbitration: Contracting for Judicial Review of Arbitration Awards, 29 Whittier L. Rev. 743 (2008)
Paul Secunda, Reflections on the Technicolor Right to Association in American Labor and Employment Law, 96 Ky. L.J. 343 (2007-2008)
Jonathan Segal, Note: The Expressive Workplace Doctrine: Protecting the Public Discourse from Hostile Work Environment Actions, 15 UCLA Ent. L. Rev. 1 (2008)
Brian Shaffer, Comment: The NBA's Age Requirement Shoots and Misses: How the Non-Statutory Exemption Produces Inequitable Results for High School Basketball Stars, 48 Santa Clara L. Rev. 681 (2008)
Catherine Spain, Note: The Long and Lonely Road: The Saga of the Recent Amendments to the Hours of Service Regulations, 35 Transp. L.J. 47 (2008)
Sandra Sperino, Complying with Export Laws Without Importing Discrimination Liability: An Attempt to Integrate Employment Discrimination Laws and the Deemed Export Rules, 52 St. Louis U. L.J. 375 (2008)
Steven Stafstrom, Note: Government Employee, Are You a "Citizen"? Garcetti v. Ceballos and the "Citizenship" Prong to the Pickering/Connick Protected Speech Test, 52 St. Louis U. L.J. 589 (2008)
Michael Stein, Victorian Tort Liability for Workplace Injuries, 2008 U. Ill. L. Rev. 933 54 Labor and Employment Relations Association (LERA) www.LERAweb.org
Stefanie Steines, Note: Parking-lot Laws: An Assault on Private-property Rights and Workplace Safety, 93 Iowa L. Rev. 1171 (2008)
Symposium: Unethical Says Who? A Look at How People and Institutions Help Businesses Fulfill Their Ethical Obligations, 42 Val. U. L. Rev. 1063 (2008)
Symposium on Advanced Issues in Dispute Resolution, 29 Hamline J. Pub. L. & Pol'y 211 (2008)
Symposium: The Urban Community: Emerging Solutions to Economic Justice, Housing, Violence & Recitivism, 27 St. Louis U. Pub. L. Rev. 1 (2007)
Symposium: Conference on Immigrants, Vigilantes, and Immigration Reform: Civil Rights in the 21st Century, 61 SMU L. Rev. 3 (2008)
Symposium: Health Care Reform, 29 Hamline J. Pub. L. & Pol'y 1 (2007)
Symposium: The Rule of Law and Delivering Justice in Africa, 5 Loy. U. Chi. Int'l L. Rev. 1 (2007)
Symposium: Risk and Responsibility in the Twenty-first Century, 56 Drake L. Rev. 503 (2008)
Symposium: Governing Contracts — Public and Private Perspectives, 14 Ind. J. Global Legal Stud. 181 (2007)
Symposium: A Look at Laws, Policies, and Challenges in Restructuring, Liquidating, and Transacting Business in a Rapidly Developing World Economy, 19 U. Fla. J.L. & Pub. Pol'y 1 (2008)
55 Labor and Employment Relations Association (LERA) www.LERAweb.org
Symposium: Unconscious Discrimination Twenty Years Later: Application and Evolution, 40 Conn. L. Rev. 927 (2008)
Symposium: Law and Culture. Slouching Towards Gomorrah: Modern Liberalism and American Decline, 31 Harv. J.L. & Pub. Pol'y 495 (2008)
Benjamin Templin, the Public Trust in Private Hands: Social Security and the Politics of Government Investment, 96 Ky. L.J. 369 (2007-2008)
Michele Thuillier, Comment: Divorce and Defined Benefit Plans: Retiring Twenty-five Years of Unjust Division in Berry v. Berry, 49 S. Tex. L. Rev. 753 (2008)
Marriann Toth, The Right to Dignity at Work: Reflections on Article 26 of the Revised European Social Charter, 29 Comp. Lab. L. & Pol'y J. 275 (2008)
Christie Totten, Note: Quieting Disruption: The Mistake of Curtailing Public Employees' Free Speech under Garcetti v. Ceballos, 12 Lewis & Clark L. Rev. 233 (2008)
Unemployment Compensation, 17 Widener L.J. 665 (2008)
Peter Vincent-Jones, The New Public Contracting: Public Versus Private Ordering? 14 Ind. J. Global Legal Stud. 259 (2007)
Vanessa Vogl, Note: Congress Giveth, and Congress Taketh Away: How the Arbitration and Mediation Clauses Jeopardize the Rights Granted to Immigrant Farmworkers by Agjobs, 29 Hamline J. Pub. L. & Pol'y 463 (2008)
David Wang, Comment: Judicial Reform in China: Improving Arbitration Award Enforcement by Establishing a Federal Court System, 48 Santa Clara L. Rev. 649 (2008)
56 Labor and Employment Relations Association (LERA) www.LERAweb.org
Ahmed A. White, The Crime of Staging an Effective Strike and the Enduring Role of Criminal Law in Modern Labor Relations, 11 WorkingUSA 23 (2008)
Mary Ellen Coster Williams, 2007 Government Contract Decisions of the Federal Circuit, 57 Am. U. L. Rev. 1075 (2008)
Workers' Compensation, 17 Widener L.J. 683 (2008)
Ashley Wright, Comment: An Ambiguous Clarification: How Burlington Northern & Santa Fe Railway Co. v. White's Resolution of a Circuit Split Creates Uncertainty in the Eighth Circuit, 61 Ark. L. Rev. 161 (2008)
Brooke Wright, Note: Bound to Arbitrate: The Fifth Circuit Considers an Arbitration Agreement in a Settlement for Maintenance and Cure, 32 Tul. Mar. L.J. 619 (2008)
Falon Wrigley, Note: Another Drop in the Bucket, or the Achilles Heel of Arbitration Agreements Banning Class Mechanisms? 27 St. Louis U. Pub. L. Rev. 163 (2007)
Ekow Yankah, The Force of Law: The Role of Coercion in Legal Norms, 42 U. Rich. L. Rev. 1195 (2008)
Mohamed Younis, Note: Daughters of the Nile: The Evolution of Feminism in Egypt. 13 Wash. & Lee J. C.R. & Soc. Just. 463 (2007)
Jennifer Yue, Note: The Flood of Pregnancy Discrimination Cases: Balancing the Interests of Pregnant Women and Their Employers, 96 Ky. L.J. 487 (2007-2008)
Eyal Zamir & Barak Medina, Law, Morality, and Economics: Integrating Moral Constraints with Economic Analysis of Law, 96 Cal. L. Rev. 323 (2008)
57 Labor and Employment Relations Association (LERA) www.LERAweb.org
Peer Zumbansen, The Law of Society: Governance Through Contract, 14 Ind. J. Global Legal Stud. 191 (2007)
August 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
The full text of many cases is now available free on-line. Where available, links are provided with each case.
ERISA Preemption
The U.S. Constitution says that federal law shall be the supreme law of the land. In practice, though, whether federal law actually trumps – or preempts – a state law depends on what Congress intended when it enacted each statute. In the case of ERISA, federal law preempts any state claim that could have been brought as an ERISA claim. For example, in Aetna Health, Inc. v. Davila, 42 U.S. 200 (2004), http://www.law.cornell.edu/supct/html/02-1845.ZS.html the plaintiff could have brought his malpractice claim as a claim under ERISA § 502(a)(1)(B). However, the ERISA remedy gave a much small recovery than a malpractice remedy did for a seriously injured plaintiff. The ERISA remedy was the difference in price between a generic drug and the drug his doctor had prescribed.
It is unlikely that Congress intended that ERISA would lead to this sort of result. Congress enacted ERISA at a time when concerns about employment-based benefits were far different than those today. Congress wanted broad ERISA preemption over state laws, but the state laws it was concerned about were those related to defined benefit pensions. Congress provided broad protections for defined benefit pensions but little for problems with other sorts of benefits. As a result, ERISA today has broad preemption of state laws that affects all workplace benefits, but remedies for any injury other than defined benefit pensions are weak.
Reaction to Davila was anything but positive. In her concurrence in Davila, Justice Ginsburg urged the courts to consider whether it was possible to prevent injustices as a result of ERISA preemption. Four years on, we are starting to see how the courts are applying Davila. Here are two recent ERISA preemption cases.
In the first case, a health insurance provider told a health care provider that an employee’s medical treatment would be covered. However, after the treatments were provided the insurer said the employee was not covered and refused to pay. The health care provider then sued the insurer for misrepresentation. Franciscan Skemp Healthcare Inc. v. Central States Joint Board Health and Welfare Trust Fund, Case No.07-3456 (7th Cir. Jul. 31, 2008). http://www.ca7.uscourts.gov/tmp/FO1FGDTM.pdf
In the second case, a widow sued her deceased husband’s employer for negligently processing his life insurance forms by denying the coverage he had elected on the form. Bertoni v. Stock Building Supply, Case No.4D07-4241 (Fla. Dist. Ct. App. Jul. 30, 2008) http://www.4dca.org/opinions/July2008/07-30-08/4D07-4241.op.pdf
58 Labor and Employment Relations Association (LERA) www.LERAweb.org
The court in the first case found no preemption (which means that the state claim could be pursued) because the healthcare provider’s lawsuit was not one that it could have brought under ERISA. This result does not mean that the plaintiff health provider wins. It only means that the case can continue. The plaintiff will have to prove misrepresentation and damages. Note that, had the employee sued for denial of benefits, that claim would have been preempted because the employee could have sued under ERISA. The remedy, however, would have been small or nonexistent.
In the second case, the insured’s widow (and beneficiary) sued her husband’s employer (for negligent processing of paperwork for insurance coverage) and not the insurance company. This claim could not have been brought under ERISA. As a result, it was not preempted. The widow also brought other claims against the insurer and a claim against her husband’s employer under ERISA for breach of its fiduciary obligations. Several of these claims were dismissed because they were preempted.
The full preemption analysis in both cases is more complex than described here, but these are the core issues in ERISA preemption cases. One final note, at this stage in developing the law of ERISA preemption, the courts are divided as to whether having no remedy under ERISA means there is no preemption.
Employer’s Confidentiality Provision Violates the National Labor Relations Act.
The NLRA states that employees have the right to engage in mutual aid or protection. The NLRB and courts have long interpreted this right to mean that employees have a protected right to discuss their working conditions with other employees and with unions. Employers violate this right by directly forbidding employees to discuss their terms of employment and by firing employees who violate these terms in confidentiality agreements. A recent case that illustrates these rights involves a temporary agency. Northeastern Land Services, Ltd. d/b/a The NLS Group, 352 N.L.R.B. Case No.89 (June 27, 2008). http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.pdf
WEB LINKS
National Institute for Occupational Safety and Health report on UNICOR use of prison labor
University of California-Berkeley Haas Economic Analysis and Policy Group, Opt-Out Patterns Across Careers: Labor Force Participation Rates Among Highly Educated Mothers
Government Accountability Office, U.S. Postal Service: Data Needed to Assess the Effectiveness of Outsourcing
Federal Register Notice of Proposed Rulemaking - Pension Benefit Guaranty Corporation, Bankruptcy Filing Date Treated as Plan Termination Date for Certain Purposes, Comments due by September 2, 2008.
NLRB General Counsel Memorandum GC 08-09 Submission of First Contract Bargaining Cases to the Division of Advice July 1, 2008
NLRB General Counsel Memorandum GC 08-10 Guideline Memorandum Concerning Unfair Labor Practice Charges Involving Political Advocacy July 22, 2008
59 Labor and Employment Relations Association (LERA) www.LERAweb.org
NLRB Division of Operations-Management Memorandum OM 08-63 Strategies for Meeting Overarching Goals June 20, 2008
American Nurses Association (ANA) & Inviro Medical Devices, 2008 Study of Nurses’ Views on Workplace Safety and Needlestick Injuries
Federal Institute for Occupational Safety and Health (BAuA), Research on the Carcinogenicity of Nanoparticles and Other Dusts
Health, Employment, Labor, and Pensions Subcommittee Hearing: An Examination of Discrimination Against Transgender Americans in the Workplace June 26, 2008
webcast
RECENT LABOR AND EMPLOYMENT LAW ARTICLES
Note: Many law review articles are now accessible free via either SSRN or BePress, as well as from Lexis and WestLaw. A simple internet search that includes either SSRN or BePress and the author’s name is probably the simplest way to locate the article.
Rory Bahadur, Constitutional History, Federal Arbitration and Seaman's Rights Sinking in a Sea of Sweatshop Labor, 39 J. Mar. L. & Com. 157 (2008)
Bridgette Baldwin, In Supreme Judgment of the Poor: the Role of the United States Supreme Court in Welfare Law and Policy. 23 Wis. J.l. Gender & Soc'y 1 (2008).
Carrie Griffin Basas, Back Rooms, Board Rooms – Reasonable Accommodation and Resistance under the ADA, 29 Berkeley J. Emp. & Lab. L. 59 (2008)
Craig Becker & Paul Strauss, Representing Low-Wage Workers in the Absence of a Class: The Peculiar Case of Section 16 of the Fair Labor Standards Act and the Underenforcement of Minimum Labor Standards, 92 Minn. L. Rev. 1317 (2008)
Frank Bieszczat, Note: Labor Provisions in Trade Agreements: from the NAALC to Now, 83 Chi.-Kent. L. Rev. 1387 (2008)
Jonathan Bliley, Comment: Shutting the Door on Pension Fund Investment in Hedge Funds – Protecting Investors That Need Protection, 3 J. Bus. & Tech. L. 455 (2008)
Karol Boudreaux, The Legal Empowerment of the Poor: Titling and Poverty Alleviation in Post- Apartheid South Africa, 5 Hastings Race & Poverty L.J. 309 (2008)
David Broderdorf, Overcoming the First Contract Hurdle: Finding a Role for Mandatory Interest Arbitration in the Private Sector, 23 Lab. Law. 323 (2008)
James Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117 (2008)
60 Labor and Employment Relations Association (LERA) www.LERAweb.org
Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action, 9 Transactions 317 (2008)
Christine Cooper, Employment Cases from the 2006-2007 Supreme Court Term, 23 Lab. Law. 223 (2008)
Nicole Cuda Perez, Too Many Arbitrators Do Spoil the Soup: NLRB Charges Filed by Non-Unionized Employees Should Not Be Subject to Mandatory Pre-Dispute Arbitration Agreements, 23 Lab. Law. 285 (2008)
Elizabeth Dale, Employee Speech & Management Rights: A Counterintuitive Reading of Garcetti v. Ceballos, 29 Berkeley J. Emp. & Lab. L. 175 (2008)
Ellen Dannin, Counting What Matters: Privatization, People with Disabilities, and the Cost of Low- Wage Work, 92 Minn. L. Rev. 1348 (2008)
Luke Desmet, Comment: Limiting Joint Employment under the Family and Medical Leave Act of 1993, 32 S. Ill. U. L.J. 403 (2008)
Susan Exon, The Effects That Mediator Styles Impose on Neutrality and Impartiality Requirements of Mediation, 42 U.S.F.L. Rev. 577 (2008)
Kathryn Fanlund, Comment: Our Safety or Their Lives? Legislative Changes Impacting Immigration and the Risks Posed to Immigrant Women, 23 Wis. J.l. Gender & Soc'y 135 (2008)
Catherine Fisk & Michael Oswalt, Preemption and Civic Democracy in the Battle over Wal-Mart, 92 Minn. L. Rev. 1502 (2008)
Joshua Gad-Harf, Note: The Decline of Traditional Pensions, the Impact of the Pension Protection Act of 2006, and the Future of America's Defined-benefit Pension System, 83 Chi.-Kent. L. Rev. 1409 (2008)
Dan Ganin, Note: A Mock Funeral for a First Amendment Double Standard: Containing Coercion in Secondary Labor Boycotts, 92 Minn. L. Rev. 1539 (2008)
Katrina Gonzales, Note: Undocumented Immigrants and Workers' Compensation: Rejecting Federal Preemption of the California Workers' Compensation Act, 41 UC Davis L. Rev. 2001 (2008)
Roy Goode, Litigation or Arbitration? The Influence of the Dispute Resolution Procedure on Substantive Rights, 19 Pace Int'l L. Rev. 53 (2007)
Erin Goodsell, Toward a Real Workplace Equality: Nonsubordination and Title VII Sex-Stereotyping Jurisprudence, 23 Wis. J.l. Gender & Soc'y 41 (2008)
Tristin Green, Insular Individualism: Employment Discrimination Law after Ledbetter v. Goodyear, 43 Harv. C.R.-C.L. L. Rev. 353 (2008)
Scott Grubman, Note: Think Twice Before You Type: Blogging Your Way to Unemployment, 42 Ga. L. Rev. 615 (2008)
61 Labor and Employment Relations Association (LERA) www.LERAweb.org
Susan Harthill, Bullying in the Workplace: Lessons from the United Kingdom, 17 Minn. J. Int'l L. 247 (2008)
Kathleen Hogan, Comment: Slavery in the 21st Century and in New York: What Has the State's Legislature Done? 71 Alb. L. Rev. 647 (2008)
Thomas Hook, Note: Defining Employer Liability in Sexual Harassment and Title VII Retaliation Claims: The Supreme Court Creates the Same Problem Twice, 13 Suffolk J. Trial & App. Advoc. 121 (2008)
Clayton Johnson, Case Note: The U.S. Supreme Court Resolves the Split among Circuits Regarding Whether Workers' Compensation Premiums May Be Eligible for Priority Treatment in Bankruptcy Proceedings, 13 Conn. Ins. L.J. 427 (2006-2007)
Elisabeth Keller & Judith Tracy, Hidden in Plain Sight: Achieving More Just Results in Hostile Work Environment Sexual Harassment Cases by Re-Examining Supreme Court Precedent, 15 Duke J. Gender L. & Pol'y 247 (2008)
Michael Kroopnick, Affording Baltimore: Public-private Approaches to Workforce Housing, 40 Urb. Law. 331 (2008)
Yaraslau Kryvoi, The Robert E. Hudec Article on Global Trade. Why European Union Trade Sanctions Do Not Work, 17 Minn. J. Int'l L. 209 (2008)
Sophia Lee, Hotspots in a Cold War: The NAACP's Postwar Workplace Constitutionalism, 1948-1964, 26 Law & Hist. Rev. 327 (2008)
Amy Lifson-Leu, Comment: Enforcing Femininity: How Jespersen v. Harrah's Operating Co. Leaves Women in Typically Female Jobs Vulnerable to Workplace Sex Discrimination, 42 U.S.F.L. Rev. 849 (2008)
Bosire Maragia, Gender Struggles in Homosocial Settings: Reconstructing Gender and Social Equity for Sustainability in Post-Colonial Societies, 16 Am. U. J. Gender Soc. Pol'y & L. 335 (2008)
Stephen Mazurak, Significant Recent Employment Law Developments in State Common Law and Statutory Decisions, 23 Lab. Law. 253 (2008)
Paula Monopoli, In a Different Voice: Lessons from Ledbetter, 34 J.C.& U.L. 555 (2008)
Richard Morgan, Professional Military Firms under International Law, 9 Chi. J. Int'l L. 213 (2008)
Robin Muir, Case Note: Drunk or Disabled? The Legal and Social Consequences of Roy Tarpley's Discrimination Claim Against the NBA, 15 Vill. Sports & Ent. L.J. 333 (2008)
David Neumark & William Wascher, Minimum Wages and Low-Wage Workers: How Well Does Reality Match the Rhetoric? 92 Minn. L. Rev. 1296 (2008)
62 Labor and Employment Relations Association (LERA) www.LERAweb.org
Note: "Trading Action for Access": The Myth of Meritocracy and the Failure to Remedy Structural Discrimination, 121 Harv. L. Rev. 2156 (2008)
Scott Noveck, Is Judicial Review Compatible with Democracy? 6 Cardozo Pub. L. Pol. & Ethics J. 401 (2008)
Joseph Oluwole & Preston Green, No Child Left Behind Act, Race, and Parents Involved, 5 Hastings Race & Poverty L.J. 271 (2008)
Donald Philbin & Audrey Maness, Litigating Arbitration: A 2007 Texas Arbitration Review, 60 Baylor L. Rev. 613 (2008)
Lisa Philipps, Helping out in the Family Firm: The Legal Treatment of Unpaid Market Labor, 23 Wis. J.L. Gender & Soc'y 65 (2008)
Gregory Presmanes & Seth Eisenberg, Hazardous Condition: The Status of Illegal Immigrants and Their Entitlement to Worker's Compensation Benefits, 43 Tort Trial & Ins. Prac. L.J. 247 (2008)
Beth Anne Roesler, Notr: Judicially Muzzling the Voices of Public Sector Employees, 53 S.D. L. Rev. 397(2008)
Kevin Rubinstein, Note: Internal Whistleblowing and Sarbanes-Oxley Section 806: Balancing the Interests of Employee and Employer, 52 N.Y.L. Sch. L. Rev. 637 (2007/08)
Mitchell Rubinstein, Is a Full Labor Relations Evidentiary Privilege Developing? 29 Berkeley J. Emp. & Lab. L. 221 (2008)
Zoe Salzman, Note: Private Military Contractors and the Taint of a Mercenary Reputation, 40 N.Y.U. J. Int'l L. & Pol. 853 (2008)
William Stuntz, Unequal Justice, 121 Harv. L. Rev. 1969 (2008)
Zachary Schurin, Comment: Monkey-Business: Connecticut's Six Billion Dollar Gorilla and the Insufficiency of the Emergence of the ADA as Justification for the Elimination of Second Injury Funds, 7 Conn. Pub. Int. L.J. 135 (2007)
Robert Sheridan, Note: All Almost Quiet on the Expanded Review Front: Supreme Court Rejects Expansion of Judicial Review of Arbitration Awards, 13 Suffolk J. Trial & App. Advoc. 93 (2008)
Jacquelyn Slotkin, Rabenmutter and the Glass Ceiling: An Analysis of Role Conflict Experienced by Women Lawyers in Germany Compared with Women Lawyers in the United States, 38 Cal. W. Int'l L.J. 287 (2008)
Peggie Smith, The Publicization of Home-Based Care Work in State Labor Law, 92 Minn. L. Rev. 1390 (2008)
Jessica Snorgrass, Comment: Waiving the Effectiveness of the FMLA: The Anti-waiver Approach to Enforceability of FMLA Severance Agreement Waivers, 45 San Diego L. Rev. 163 (2008)
63 Labor and Employment Relations Association (LERA) www.LERAweb.org
Molly Steele & Michael Heinlen, Challenges to Enforcing Arbitral Awards Against Foreign States in the United States, 42 Int'l Law. 87 (2008)
Stephanie Steele, Note: Deterrence to Hiring Illegal Immigrant Workers: Will the New Employer Sanction Provisions Work? 36 Ga. J. Int'l & Comp. L. 475 (2008)
Symposium: Confronting Global Climate Change: Using the Law to Protect Future Generations, 9 Vt. J. Envtl. L. 375 (2008)
Symposium: The Low-Wage Worker: Legal Rights -- Legal Realities, 92 Minn. L. Rev. 1289 (2008)
Symposium: Recalling Vico's Lament: The Role of Prudence and Rhetoric in Law and Legal Education, 83 Chi.-Kent. L. Rev. 1097 (2008)
Andrew Thibedeau, Note: Vindicating the Public Interest?: The Public Law Implications of Attorneys' Fee Restrictions in Class Actions, 13 Suffolk J. Trial & App. Advoc. 231 (2008)
Lindsay Thompson, The Future of Enterprise Regulation: Corporate Social Accountability and Human Freedom, 3 J. Bus. & Tech. L. 357 (2008)
Liquita Thompson, Arbitrators – Unlike Too Many Cooks – Do Not Spoil the Soup! Making the Case for Allowing Pre-dispute Mandatory Arbitration of Unfair Labor Practice Charges in Nonunion Workforces, 23 Lab. Law. 301(2008)
Scott Thompson, Abbott, Aids, and the ADA: Why a Per Se Disability Rule for HIV/AIDs Is Both Just and a Must, 15 Duke J. Gender L. & Pol'y 1 (2008)
Richard Trumka, Employment-Related Crimes, 45 Am. Crim. L. Rev. 341 (2008)
Thomas Uebler, Shareholder Police Power: Shareholders' Ability to Hold Directors Accountable for Intentional Violations of Law, 33 Del. J. Corp. L. 199 (2008)
Bryan Wildenthal, Federal Labor Law, Indian Sovereignty, and the Canons of Construction, 86 Or. L. Rev. 413 (2007)
Joshua Williams, Note: The "War on Education": The Negative Impact of the No Child Left Behind Act on Inner-City Public Schools, Students, and Teachers, 11 J. Gender Race & Just. 573 (2008)
Cecil Vandevender, Note: How Self-Restriction Laws Can Influence Societal Norms and Address Problems of Bounded Rationality, 96 Geo. L.J. 1775(2008)
Nhan Vu & Jeff Schwartz, Workplace Rights and Illegal Immigration: How Implied Repeal Analysis Cuts Through the Haze of Hoffman Plastic, its Predecessors and its Progeny, 29 Berkeley J. Emp. & Lab. L. 1 (2008)
David Weissbrodt, Remedies for Undocumented Noncitizens in the Workplace: Using International Law to Narrow the Holding of Hoffman Plastic Compounds, Inc. v. NLRB. 92 Minn. L. Rev. 1424 (2008).
64 Labor and Employment Relations Association (LERA) www.LERAweb.org
Kara Williams, Note: Protecting What You Thought Was Yours: Expanding Employee Privacy to Protect the Attorney-Client Privilege from Employer Computer Monitoring, 69 Ohio St. L.J. 347 (2008)
Michael Wishnie, Labor Law after Legalization, 92 Minn. L. Rev. 1446 (2008)
Richard Worth, Note: Unreasonable? Missouri Rejects a Reasonable Person Standard for Determining Co-Employee Liability under Badami's Something More Test, 73 Mo. L. Rev. 261 (2008)
Bryce Yoder, Note: How Reasonable Is "Reasonable"? The Search for a Satisfactory Approach to Employment Handbooks, 57 Duke L.J. 1517 (2008)
Noah Zatz, Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships, 61 Vand. L. Rev. 857 (2008)
September 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
The full text of many cases is now available free on-line. Where that is the case, links are provided.
Open Meetings Laws, Closed Sessions, and Discovery of Employment Information
Open meetings laws often include exceptions in order to discuss personnel matters. Wisconsin Supreme Court recently held that information discussed during such a closed meeting may still be available to parties in a lawsuit. Sands v. Whitnall School District, Case No.2005AP1026 (Wis. July 11, 2008) http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo...
Briefly, the majority says that the default under Wisconsin law (which is similar to the federal law) is to disclose information requested in discovery, unless a privilege applies: “The right to discovery is an essential element of our adversary system. . . . The quest for truth in each case, in turn, demands that we allow litigants to build complete records, investigating and preparing their cases thoroughly before presenting their cases to fact-finders. As such, we are even more loath to impose limitations upon discovery than we are to limit public access to government records.”
The decision also explains why privileges against disclosure are the exception, not the rule: “The Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), was emphatic in ruling that privileges must not be lightly created or expansively construed, being in derogation of the search for truth. The decision dramatically illustrated that even the confidential communications of the President of the United States are not automatically privileged and shielded from discovery requests.” It also explains how confidentiality differs from privilege. Finally, the court says that the policies of both discovery and open meetings laws “reflect our State's policy of a strong presumption in favor of openness and access.”
Those whose work involves open meetings laws or who are interested in understanding more about discovery and privileges will benefit from reading the full case. The majority and dissent do a nice job of clearly explaining the law and policies related to discovery, open meetings laws, and privileges.
65 Labor and Employment Relations Association (LERA) www.LERAweb.org
Pre-Dispute Arbitration Agreements and the Waiver of Statutory Rights
This past year, Congress has held hearings on the Arbitration Fairness Act, H.R. 3010/S. 1782, legislation that would limit the use of pre-dispute arbitration agreements out of concern for their effect on legal rights in the workplace and elsewhere. The facts of a recent case from Illinois provide an example of the concerns that prompted the bill. Niebrugge v. King's Medical Group, Inc., Case No.1:08- cv-1018 (C.D. Ill. Jul. 31, 2008).
When the plaintiff sued for failure to pay her properly under federal and state wage laws, her employer filed a motion to compel arbitration. It claimed that the employee had agreed to arbitrate all workplace disputes. The court did not grant the employer's motion for several reasons. The judge found that the language was ambiguous, and that Illinois law required that ambiguous contract language be construed against its drafter. The judge also found that there was no contract under the 2001 handbook the employee had signed because there was no clear and unmistakable offer, it did not make clear that arbitration was mandatory, nor did it explain that the employee was waiving rights. The 2007 handbook was an attempt to have it both ways, to treat the handbook as a contract that bound the employee while the employer was not bound to perform its obligations to the employee.
Noncompete Agreements and Their Enforceability
Two new cases from California and Texas suggest that, after a few years of regularly enforcing non- compete agreements, courts might be returning to placing limits on their enforceability.
By statute, California makes noncompetition agreements invalid, with few exceptions. It is, therefore, not surprising that the California Supreme Court would find that an employer could not enforce a noncompete agreement signed by a former employee. The justices did differ on other issues concerning whether the statute also outlawed firing the employee for refusing to sign a waiver of claims agreement with a successor employer. The Court also rejected Ninth Circuit Court of Appeals decisions that had upheld noncompete agreements in California. Edwards v. Arthur Andersen, Case No.S147190 (Cal. Aug. 7, 2008). http://www.courtinfo.ca.gov/opinions/archive/B178246.PDF
The Texas case invalidated a noncompetition and confidentiality agreement under standard contract law. It held that the company failed to give anything of value in exchange for the agreements. (This sort of exchange is referred to in contract law as “consideration” and is generally necessary for a valid contract.) In this case, consideration was lacking, because the employee had worked for eleven years and, according to the court, being allowed to continue to do one's job is not consideration. This outcome is in line with the traditional approach to noncompete agreements and means that employers who wish to use them should include them in a job offer to a new employee and not raise the issue after an agreement has been reached. Powerhouse Products, Inc. v. Scott, Case No.05-07-700-cv (Tex. Ct. App. Aug. 8, 2008).
Hospital Is Joint Employer of Temp Worker with Three Temp Agencies
The Fair Labor Standards Act has broad definitions of employee and employer and other provisions that support joint employer liability. In a recent case, a hospital was liable for unpaid overtime wages for an employee who worked more than forty hours a week at the hospital, even though she was referred to it through three different temp agencies. The decision discusses other issues raised by the employer as to why it was not the plaintiff's employer, all rejected by the court.
66 Labor and Employment Relations Association (LERA) www.LERAweb.org
Barfield v. New York City Health & Hospital Corporation, Case No.06-4137-cv ( 2d Cir. Aug. 8, 2008). http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQxMzct...
Web Links
Commonwealth Fund Commission on a High Performance Health System, Public Views On U.S. Health Care System Organization: A Call for New Directions
CBO Director Peter Orszag, Behavioral Economics: Lessons from Retirement Research for Health Care and Beyond (August 7, 2008)
Business and Professional Women's Foundation, Critical Career Junctures that Direct
the Career Life-Cycle of Young Careerists
Paul Fronstin, Saving for Health Care Expenses in Retirement: The Use of Health Savings Accounts
Paul Fronstin, The Impact of Immigration on Health Insurance Coverage in the United States, 1994— 2006
GAO, Private Pensions: Fulfilling Fiduciary Obligations Can Present Challenges for 401(k) Plan Sponsors GAO-08-774
GAO, Private Pensions: GAO Survey of 401(k) Plan Sponsor Practices (GAO-08-870SP, July 2008), an E-supplement to GAO-08-774
Committee on Beryllium Alloy Exposures, Committee on Toxicology, National Research Council, Managing Health Effects of Beryllium Exposure
May C. Chu & Jeffrey A. Rhoades, The Uninsured in America, 1996—2007: Estimates for the U.S. Civilian Noninstitutionalized Population under Age 65 (July 2008)
U.S. Fire Administration & FEMA, Firefighter Fatalities in the United States in 2007 (June 2008)
Medical Expenditure Panel Survey (MEPS) Large-scale Surveys of Families and Individuals, Their Medical Providers, and Employers Across the United States on the Cost and Use of Health Care and Health Insurance Coverage
Recent Labor and Employment Law Articles
Rachel Alexander, Taking a Detour Around Defending Protected Activity: How Burlington Northern & Santa Fe Railway Co. v. White Unnecessarily Complicates Litigation of Retaliation Claims, 27 Rev. Litig. 333 (2008)
Jessie Allen, A Theory of Adjudication: Law as Magic, 41 Suffolk U.L. Rev. 773 (2008)
Fran Ansley, Educating Workers about Labor Rights and Global Wrongs Through Documentary Film, 41 Suffolk U.L. Rev. 715 (2008)
67 Labor and Employment Relations Association (LERA) www.LERAweb.org
Walter Ashbrook, Comment:August 24, 2008 Defining "Employee" Within Arizona's Workers' Compensation Statute: An Argument for Inclusion, 40 Ariz. St. L.J. 691 (2008)
John Barkai, Cultural Dimension Interests, the Dance of Negotiation, and Weather Forecasting: A Perspective on Cross-Cultural Negotiation and Dispute Resolution, 8 Pepp. Disp. Resol. L.J. 403 (2008)
Micah Berman & Rob Crane, Mandating a Tobacco-Free Workforce: A Convergence of Business and Public Health Interests, 34 Wm. Mitchell L. Rev. 1651 (2008)
Kevin Brown & Vinay Sitapati, Lessons Learned from Comparing the Application of Constitutional Law and Federal Anti-Discrimination Law to African-Americans in the U.S. and Dalits in India in the Context of Higher Education, 24 Harv. Blackletter L.J. 3 (2008)
Regina Burch, The Myth of the Unbiased Director, 41 Akron L. Rev. 509 (2008)
James Carroll, Note: The Causal Nexus Doctrine: A Further Limitation on the Employer's ADA Duty of Reasonable Accommodation in the Seventh Circuit, 91 Marq. L. Rev. 839 (2008)
Miriam Cherry, Working (With) Workers: Implementing Theory, 41 Suffolk U.L. Rev. 731 (2008)
Kerry Cooperman, Comment: The Court of Appeals of Maryland. Labor and Employment. Haas v. Lockheed Martin Corp.: Making the Case for Incorporation of the Discovery Rule into the Limitations Statute Governing Discriminatory Discharge Claims, 67 Md. L. Rev. 832 (2008)
Amina Dammann, Note: Vacating Arbitration Awards for Mistakes of Fact, 27 Rev. Litig. 441 (2008)
Ellen Dannin, Understanding How Employees' Rights to Organize under the NLRA Have Been Limited: The Case of Brown University (American Constitution Society Issue Brief) (2008) http://www.acslaw.org/node/6935 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1240779
Daniela De La Piedra, Flirting with the PDA: Congress must Give Birth to Accommodation Rights That Protect Pregnant Working Women, 17 Colum. J. Gender & L. 275 (2008)
Robert Elder, Note: Expanded Hospital Liability under the Federal False Claims Act: An Unexpected Solution to the Resident Duty Hour Controversy, 5 Ind. Health L. Rev. 53 (2008)
Jonathan Forman, Making Our Work Work, 41 Suffolk U.L. Rev. 739 (2008)
Theodore Frank, Did the Right Make America a Lawsuit Nation? — A Review of Thomas Geoghegan, See You in Court, 12 Tex. Rev. L. & Pol. 477 (2008)
Jack Getman, Bartleby, Labor and Law, 10 U. Pa. J. Bus. & Emp. L. 717 (2008)
Elizabeth Goergen, Note: Women Workers in Mexico: Using the International Human Rights Framework to Achieve Labor Protection, 39 Geo. J. Int'l L. 407 (2008)
68 Labor and Employment Relations Association (LERA) www.LERAweb.org
Michael Goldberg, In the Cause of Union Democracy, 41 Suffolk U.L. Rev. 759 (2008)
William Gould, The 1994-'95 Baseball Strike and National Labor Relations Board: To the Precipice and Back Again, 110 W. Va. L. Rev. 983 (2008)
Jill Habig, Comment: Defining the Protected Class: Who Qualifies for Protection under the Pregnancy Discrimination Act? 117 Yale L.J. 1215 (2008)
David Hanss, Comment: Too Little Too Late: Why the Pension Protection Act of 2006 Will Not Live up to its Name, 45 Hous. L. Rev. 509 (2008)
Haitham Haloush, Internet Infrastructure and Online Alternative Dispute Resolution, 25 J. Marshall J. Computer & Info. L. 217 (2008)
Melissa Hart, Retaliatory Litigation Tactics: The Chilling Effects of "After-acquired Evidence", 40 Ariz. St. L.J. 401 (2008)
Rebecca Hollander-Blumoff & Tom Tyler, Procedural Justice in Negotiation: Procedural Fairness, Outcome Acceptance, and Integrative Potential, 33 Law & Soc. Inquiry 473 (2008)
Harry Hutchison, Reclaiming the First Amendment Through Union Dues Restrictions? 10 U. Pa. J. Bus. & Emp. L. 663 (2008)
Mark Kaiser, A Review of Ship Breaking and Rig Scrapping in the Gulf of Mexico, 39 Ocean Dev. & Int'l L. 178 (2008)
Taran Kaler, Comment: Controlling the Cat's Paw: Circuit Split Concerning the Level of Control a Biased Subordinate must Exert over the Formal Decisionmaker's Choice to Terminate, 48 Santa Clara L. Rev. 1069 (2008)
Thomas Kohler, Religion in the Workplace: Faith, Action, and the Religious Foundations of American Employment Law, 83 Chi.-Kent. L. Rev. 975 (2008)
Anthony Kovalchick, Ending the Suppression: Why the Hatch Act Cannot Withstand Meaningful Constitutional Scrutiny, 30 W. New Eng. L. Rev. 419 (2008)
Susan Laluk & Sharon Stiller, Employment Law, 58 Syracuse L. Rev. 955 (2008)
William Lee, The Role of Whistleblowers to Facilitate Government Accountability. Deep Background: Journalists, Sources, and the Perils of Leaking, 57 Am. U. L. Rev. 1453 (2008)
Martin McWilliams, Guardians Adrift: The Social Anthropology of the Corporate Gatekeeper Professions, 46 U. Louisville L. Rev. 225 (2007)
Lewis Maltby, Whose Life Is it Anyway? Employ Control of Off-Duty Smoking and Individual Autonomy, 34 Wm. Mitchell L. Rev. 1639 (2008)
Ivan Marisin & Timur Aitkulov, The New Russian International Arbitration Rules, 1 J.E.L. 137 (2008)
69 Labor and Employment Relations Association (LERA) www.LERAweb.org
Jens Meierhenrich, Varieties of Reconciliation, 33 Law & Soc. Inquiry 195 (2008)
Susan Munkres, Claiming "Victim" to Harassment Law: Legal Consciousness of the Privileged, 33 Law & Soc. Inquiry 447 (2008)
Erin Murdock, Comment: The Result of Disparate Treatment of Third-Country Alien Employees in Multinational Enterprises: A Class Distinction, 43 Tex. Int'l L.J. 325 (2008)
Christine O'Brien, When Union Members in a Members-Only Non-Majority Union (MONMU) Want Weingarten Rights: How High Will the Blue Eagle Fly? 10 U. Pa. J. Bus. & Emp. L. 509 (2008)
George Politakis, From Tankers to Trawlers: The International Labour Organization's New Work in Fishing Convention, 39 Ocean Dev. & Int'l L. 119 (2008)
Leonard Riskin & Nancy Welsh, Is That All There Is? "The Problem" in Court-Oriented Mediation, 15 Geo. Mason L. Rev. 863 (2008)
Peter Rutledge, Whither Arbitration? 6 Geo. J.L. & Pub. Pol'y 549 (2008)
Peter Rutledge, Arbitration and Article III, 61 Vand. L. Rev. 1189 (2008)
Nick Saccone, Comment: Somewhere Between Florida, Texas, and Federal Rule of Civil Procedure 26(c): A Balanced Approach to Protective Orders and Confidential Settlements, 39 U. Tol. L. Rev. 729 (2008)
Suzanne Skinner, Comment: The ERISA Church Plan Exception: Why the Lown Test Is Improperly Narrow, 10 U. Pa. J. Bus. & Emp. L. 741 (2008)
Arlen Specter & Eric Nguyen, Representation Without Intimidation: Securing Workers' Right to Choose under the National Labor Relations Act, 45 Harv. J. on Legis. 311 (2008)
Julie Suk, Procedural Path Dependence: Discrimination and the Civil-criminal Divide, 85 Wash. U. L. Rev. 1315 (2008)
Symposium on Access to Health Care: From the Mayflower to Border Patrols: Who Deserves Access to Health Care in the United States? 17 Annals Health L. 175 (2008)
Symposium: ADR in the Aftermath — Post-disaster Strategies, 9 Cardozo J. Conflict Resol. 283 (2008)
Symposium: Race Across Boundaries, 24 Harv. Blackletter L.J. 1 (2008)
Symposium: The Employment and Labor Law Professor as Public Intellectual: Sharing Our Work with the World, 41 Suffolk U.L. Rev. 711 (2008)
Symposium: A Cross-Disciplinary Look at Scientific Truth: What's the Law to Do? 73 Brook. L. Rev. 847 (2008)
70 Labor and Employment Relations Association (LERA) www.LERAweb.org
Shannon Tan, Note: When Steve Is Fired for Becoming Susan: Why Courts and Legislators Need to Protect Transgender Employees from Discrimination, 37 Stetson L. Rev. 579 (2008)
Alan Tannenwald, Note: An Ironic Twist in Employment Law: The Conservative Case for Amending Title VII to Ban Discrimination on the Basis of Sexual Orientation, 9 Geo. J. Gender & L. 269 (2008)
Justine Tinkler, "People Are Too Quick to Take Offense" — The Effects of Legal Information and Beliefs on Definitions of Sexual Harassment, 33 Law & Soc. Inquiry 417 (2008)
Stephen Vladeck, The Espionage Act and National Security Whistleblowing after Garcetti, 57 Am. U. L. Rev. 1531 (2008)
Nicholas Weiskopf, Arbitral Injustice — Rethinking the Manifest Disregard Standard for Judicial Review of Awards, 46 U. Louisville L. Rev. 283 (2007)
Charity Williams, Note: Misperceptions Matter: Title VII of the Civil Rights Act of 1964 Protects Employees from Discrimination Based on Misperceived Religious Status, 2008 Utah L. Rev. 357
Adrien Wing, The South African Constitution as a Role Model for the United States, 24 Harv. Blackletter L.J. 73 (2008)
Jason Yackee, Conceptual Difficulties in the Empirical Study of Bilateral Investment Treaties, 33 Brook. J. Int'l L. 405 (2008)
Donald Ying, Comment: A Comparative Study of the Treatment of Employee Inventions, Pre-invention Assignment Agreements, and Software Rights, 10 U. Pa. J. Bus. & Emp. L. 763 (2008)
Nicholas Zeltzer, Note: Foreign-economic-retirement Migration: Promises and Potential, Barriers and Burdens, 16 Elder L.J. 211 (2008)
October 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
Labor and Employment Section Business - Please Take Notice: Section By-Laws provide: "A nominating committee consisting of the Past-Chair and two other members of the Board shall be responsible for presenting a slate of candidates for election as officers and members of the Board to the annual business meeting. Additional nominations supported by at least five members may be submitted to the Secretary-Treasurer in advance of the business meeting."
The Section meeting is January 3, 2009, 12:30 pm - 2:15 pm. The Secretary-Treasurer is Professor Heather Grob, Business Division, OM 371, St. Martin's University, 5300 Pacific Ave SE, Lacey, WA 98503.
71 Labor and Employment Relations Association (LERA) www.LERAweb.org
Labor and Employment Law News
The full text of many cases is now available free on-line. Where available, links are provided with each case.
Union Organizing Liability for Accessing Employee Motor Vehicle Information The Third Circuit Court of Appeals has now issued its decision in a case discussed two years ago in the LEL Newsletter: “Federal-Federal Statutory Conflicts Do Not Involve Preemption” (April 2006). http://leraweb.org/publications/labor-and-employment-law-newsletter/labor-and-employment-law-news- april-2006 The appellate case has important consequences for union organizing. Liability could mean very large damages. Pichler v. UNITE-HERE, No.06-4522 (3d Cir. Sept. 9, 2008), http://www.ca3.uscourts.gov/opinarch/064522p.pdf
Briefly, after UNITE-HERE organizers used Cintas employee license numbers to retrieve contact information from state motor vehicle records to use in an organizing campaign, the union was sued for violating federal law under the Driver's Privacy Protection Act. The case is binding only on unions in the Third Circuit, but unions outside the Third Circuit who are concerned about liability may decide that the risk does not outweigh the value of the information for organizing campaigns. As a result, the Third Circuit case may, as a practical matter, be the final word on the issue, even though there was no trial, unless the DPPA is amended. The core issue decided by the appellate court is whether the proper trial court process was followed in deciding whether exceptions to the DPPA meant the union's conduct did not violate the law. In this case, there was no trial. Judges may make decisions interpreting law without a trial, but they may only decide factual disputes through a trial. In this case, there was a potential factual dispute as to the union's motive in accessing the information. The union argued that its motive for accessing the information fell into two DPPA exceptions related to gathering the information for the purposes of enforcing a law and for litigation and was, therefore, legal. The trial court found, as a matter of law, that the union's motive for gathering the information could not affect the outcome and, thus, the union was liable. The majority of the appellate court affirmed. The Court of Appeals majority decided that the union's actions violated the DPPA even if the union wanted to talk to Cintas employees to investigate and prosecute potential legal violations. In short, the majority found that even when the union had motives that were permitted by the DPPA, if it had any motive that was not covered by the DPPA's exceptions the union violated the law. The court found that gathering information as part of an organizing campaign was not included in any DPPA exception.
The majority also held that the trial court had been wrong to decide not to award punitive damages without a trial. The DPPA allows punitive damages when a defendant is found to have acted in willful or reckless disregard of the law. A trial is, therefore, necessary to determine the union's intent related to punitive damages.
The dissent took the position that the union's motives should have been decided at trial, because it was a factual matter. She explained that this was especially important since the case would control the circuit. The dissent and majority also discussed a case from the Eleventh Circuit case reached a different result in a case that involved attorneys who accessed information as part of an investigation for a class action 72 Labor and Employment Relations Association (LERA) www.LERAweb.org
case. Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens, P.A., 525 F.3d 1107, 1115 n.5 (11th Cir. 2008) http://www.ca11.uscourts.gov/opinions/ops/200616158.pdf
Supervisory Status Under Oakwood Hospital Standards There were many predictions that the National Labor Relations Board (NLRB) decision in Oakwood Healthcare, 348 NLRB 686 (2006) meant that “up to 8 million workers” would be classified as supervisors and thus lose coverage under the National Labor Relations Act. I am not aware of any post- decision studies on Oakwood's impact so far, but there have been cases that apply Oakwood and yet have found that the workers to be employees and protected by the NLRA. Decisions as to employee status are highly fact-specific and are not made based on mere labels or titles. Furthermore, the burden of proof is on the one who claims a worker is not an employee. A recent example is Barstow Community Hospital, 352 NLRB No.125 (Aug. 18, 2008). http://www.nlrb.gov/shared_files/Board%20Decisions/352/V352125.pdf
The Board held in Barstow that the employer had failed to carry its burden of proving that a registered nurse who also worked as a relief clinical coordinator in the hospital's emergency room was a supervisor. Specifically, the employer failed to prove that the nurse had authority to responsibly direct employees in the emergency room and thus could not prove that the nurse had exercised independent judgment in making assignments to nurses. In the Board's words: “To establish possession of the authority responsibly to direct, the party bearing the burden of proof— here, the Respondent — must present evidence of â˜actual accountability.'” As a result, the employer was found to have violated the NLRA for suspending the nurse her union activities and interrogating her.
Another recent case found that the employer failed to prove that engineers were supervisors under Oakwood. As a result, the employer violated the NLRA when it refused to bargain about eliminating their positions and by withdrawing recognition of the Union. GFC Crane Consultants, Inc., 352 NLRB No.142 (Aug. 29, 2008). http://www.nlrb.gov/shared_files/Board%20Decisions/352/V352142.pdf
Breach of ERISA Fiduciary Responsibility by Paying Itself While Failing to Pay Employee Medical Costs ERISA requires that those who have fiduciary responsibilities must exercise them with “an eye-single” to the rights of the plan's participants. A recent case involved a bankrupt employer who had switched to a self-insured plan from a fully-insured plan after the employer began to experience financial troubles in the 1990's and who employed an administrator to oversee the operation of the plan. When the employer filed for bankruptcy, it had more than $300,000 in unpaid medical bills and had stopped making payments to fund the plan. Despite these circumstance, the plan administrator retained its fee and made other financial decisions that harmed the plan participants. Briscoe v. Preferred Health Plan, Case No.3:02CV-264-S (W.D. Ky. Sept. 2, 2008). http://www.websupp.org/data/WDKY/3:02-cv-00264-121- WDKY.pdf
The administrator's obligations under ERISA turned on whether it was a fiduciary. The court said “that mere possession or custody of plan assets was not enough. Fiduciary responsibility arose from the power of disposition of assets and the exercise of that power.” The court also said that one could be a fiduciary
73 Labor and Employment Relations Association (LERA) www.LERAweb.org even without discretionary power over assets. By taking “an administrative fee for itself instead of using those funds to pay health insurance premiums or benefits” the administrator became liable for the wrongful disposition of those funds.
Work in Progress
Joseph Seiner, Assistant Professor of Law, University of South Carolina School of Law http://www.law.sc.edu/faculty/seiner/ In my forthcoming article, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. __ , I discuss the case of Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007). In that case, the Supreme Court announced a new standard for pleading claims in the context of a complex antitrust case. Under the new standard, a plaintiff must plead sufficient facts to state a plausible claim for relief. It is unclear what impact — if any — this decision will ultimately have on cases brought in the employment discrimination context. In this paper, I analyze motions to dismiss brought pursuant to Title VII of the Civil Rights Act of 1964 in the year before and the year after Twombly and find an increasing trend in the rate at which such claims are being dismissed. I then explore the rationales courts use in rejecting these claims. Finally, I propose a unified pleading framework for all Title VII claims, explain how this proposed model would comply with Twombly's plausibility standard, and discuss how this proposal would fit within the recent academic debate on this issue.
Web Links
Human Rights Campaign Foundation, Corporate Equality Index 2009
Treasury Inspector General for Tax Administration, The Internal Revenue Service and Contractors Are Generally Following Procedures Established for the Private Debt Collection Program, but Improvements are Needed (No. 2008-30-157)
American Constitution Society, New Data Unveiled: How the Federal Courts Are Treating Employment Discrimination Plaintiffs
Government Accountability Project, Running the Gauntlet: The Campaign for Credible Corporate Whistleblower Rights press release PDF File
Ann Tynan, Allison Liebhaber, Paul B. Ginsburg, A Health Plan Work in Progress: Hospital-Physician Price and Quality Transparency, Center for Studying Health System Change (HSC) Research Brief No. 7 August 2008
U. S. Equal Employment Opportunity Commission, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities
74 Labor and Employment Relations Association (LERA) www.LERAweb.org
Friends of the Earth (Australia) Nanotechnology Project, Mounting Evidence that Carbon Nanotubes May be the New Asbestos
Robert Pollin, Heidi Garrett-Peltier, James Heintz, and Helen Scharber Green Recovery: A Program to Create Good Jobs and Start Building a Low-Carbon Economy ((Political Economy Research Institute) (2008)
Jack Hadley, John Holahan, Teresa Coughlin, and Dawn Miller, Covering The Uninsured In 2008: Current Costs, Sources Of Payment, And Incremental Costs, 27 Health Affairs (no.5) 399 (2008)
Recent Labor and Employment Law Articles Note: Many law review articles are now accessible free via either SSRN or BePress, as well as from Lexis and WestLaw. A simple internet search that includes either SSRN or BePress and the author's name is probably the simplest way to locate the article.
David Adamson, Note: The Discharge of Sexual Harassment Judgments in Bankruptcy Court: An Attempt to Right a "Grave Injustice", 25 Hofstra Lab. & Emp. L.J. 283 (2007)
Joseph Aldridge, Note: Pay-Setting Decisions as Discrete Acts: The Court Sharpens its Focus on Intent in Title VII Actions, 86 Neb. L. Rev. 955 (2008)
Michelle Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. Rev. 1095 (2008)
Jayne Barnard, Post-tenure Review as If it Mattered, 17 J. Contemp. Legal Issues 297 (2008)
Claire Been, Comment: Bypassing Redundancy: Resolving the Jurisdictional Dilemma under the Defense Base Act, 83 Wash. L. Rev. 219 (2008)
Michael Bell, Note: A Cut at Rescission: Constitutional Infirmities in Orange County's 3% at 50 Retirement Benefits, 35 W. St. U. L. Rev. 381 (2008)
Maureen Binetti, Romance in the Workplace: When "Love" Becomes Litigation, 25 Hofstra Lab. & Emp. L.J. 153 (2007)
Ruben Bolivar Pagan, Note: Defending the "Acceptable Business Reason" Requirement of the Equal Pay Act, 33 J. Corp. L. 1007 (2008)
Zachary Bookman, Convergences and Omissions in Reporting Corporate and White Collar Crime, 6 Depaul Bus. & Com. L.J. 347 (2008)
John Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem- Solving Courts, 17 Widener L.J. 97 (2007)
75 Labor and Employment Relations Association (LERA) www.LERAweb.org
Deborah Brake, What Counts as "Discrimination" in Ledbetter and the Implications for Sex Equality Law, 59 S.C. L. Rev. 657 (2008)
Carly Brandenburg, Note: The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 Fed. Comm. L.J. 597 (2008)
Trent Bridges, Note: Federal Prosecutors Twisting the Arm of Corporate America While its Employees Cry Uncle (Sam), 43 Tulsa L. Rev. 739 (2008)
Thomas Brierton & Peter Bowal, The Creative Necessity Defense, Free Speech, and California Sexual Harassment Law, 25 Hofstra Lab. & Emp. L.J. 63 (2007)
John Bunker, An Offer They Can't Refuse: Crafting an Employer's Immigration Compliance Program, 25 Hofstra Lab. & Emp. L.J. 199 (2007)
Katherine Burkhart, Note: Layering Administrative Law and Basic Contract Principles: Analyzing the Waiver of FMLA Claims in Severance Agreements, 33 J. Corp. L. 983 (2008)
Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, 25 Hofstra Lab. & Emp. L.J. 1 (2007)
Mark Carter & Shawn Burton, The Criminal Element of Neutrality Agreements, 25 Hofstra Lab. & Emp. L.J. 173 (2007)
David Cohen, Justice Kennedy's Gendered World, 59 S.C. L. Rev. 673 (2008)
Adam Cole, Note: You Say You Want a Revolution: Argentina's Recovered Factory Movement, 30 Hastings Int'l & Comp. L. Rev. 211 (2007)
Frank Cross, Thomas Smith & Antonio Tomarchio, The Reagan Revolution in the Network of Law, 57 Emory L.J. 1227 (2008)
Ellen Dannin & Gangaram Singh, More than Just a Cool T-Shirt: What We Don't Know about Collective Bargaining — But Should — To Make Organizing Effective, 25 Hofstra Lab. & Emp. L.J. 93 (2007)
Joel Dillard & Jennifer Dillard, Fetishizing the Electoral Process: The National Labor Relations Board's Problematic Embrace of Electoral Formalism, 6 Seattle J. for Soc. Just. 819 (2008)
Christopher Drahozal, Busting Arbitration Myths, 56 U. Kan. L. Rev. 663 (2008)
David Dunbar, Clark Monroe & and Benny May, Who's the Boss? Addressing the Increasing Controversies Associated with the Owner-Operator/Employee Dichotomy, 35 Transp. L.J. 203 (2008)
Robert Dur & Amihai Glazer, Optimal Contracts When a Worker Envies His Boss, 24 J.L. Econ. & Org. 120 (2008)
76 Labor and Employment Relations Association (LERA) www.LERAweb.org
Jennifer Dyer, Note: The Failure of France's First Employment Contract: Failing to Protect Jobs and Workers, 17 Transnat'l L. & Contemp. Probs. 503 (2008)
Naomi Earp, Forty-three and Counting: Eeoc's Challenges and Successes and Emerging Trends in the Employment Arena, 25 Hofstra Lab. & Emp. L.J. 133 (2007)
Christine Elzer, Note: The "Official Duties" Puzzle: Lower Courts' Struggle with First Amendment Protection for Public Employees, 69 U. Pitt. L. Rev. 367 (2007)
Amanda Eno, Comment: The Misconception of "Sex" in Title VII: Federal Courts Reevaluate Transsexual Employment Discrimination Claims, 43 Tulsa L. Rev. 765 (2008)
Cynthia Estlund, Solidarity and Betrayal in the North Woods, 25 Hofstra Lab. & Emp. L.J. 223 (2007)
Kara Farina, Comment: When Does Discrimination "Occur"? The Supreme Court's Limitation on an Employee's Ability to Challenge Discriminatory Pay under Title VII, 38 Golden Gate U. L. Rev. 249 (2008)
Gregory Feary, Independent Contractor Employment Classification: A Survey of State and Federal Laws in the Motor Carrier Industry, 35 Transp. L.J. 139 (2008)
Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (2008)
William Forbath, The Politics of Race, Rights, and Needs — And the Perils of a Democratic Victory in Post-Welfare America: Some Reflections on the Work of Felicia Kornbluh, 20 Yale J.L. & Feminism 195 (2008)
Brian Flanagan, The Effect of Minority Preferences on the White Applicant: A Misplaced Consensus? 34 Ohio N.U. L. Rev. 445 (2008)
Michael Gibek & Joshua Shteierman, Note: The "No-match" Letter Rule: A Mismatch Between the Department of Homeland Security and Social Security Administration in Worksite Immigration Law Enforcement, 25 Hofstra Lab. & Emp. L.J. 233 (2007)
Clayton Gillette, Law School Faculty as Free Agents, 17 J. Contemp. Legal Issues 213 (2008)
Roger Goebel, Economic Governance in the European Union: Should Fiscal Stability Outweigh Economic Growth in the Stability and Growth Pact? 31 Fordham Int'l L.J. 1266 (2008)
Hannah Gordon, Note: The Robinson Rule: Models for Addressing Race Discrimination in the Hiring of NCAA Head Football Coaches, 15 Sports Law. J. 1 (2008)
Jennifer Gordon & R. A. Lenhardt, Rethinking Work and Citizenship, 55 UCLA L. Rev. 1161 (2008)
Douglas Grawe, Have Truck, Will Drive: The Trucking Industry and the Use of Independent Owner- Operators over Time, 35 Transp. L.J. 115 (2008)
77 Labor and Employment Relations Association (LERA) www.LERAweb.org
Charles Greene, Determining Liability in Asbestos Cases: The Battle to Assign Liability Decades after Exposure, 31 Am. J. Trial Advoc. 571 (2008)
Andrew Hanson, Note: The Trend Toward Principled Negotiation in Major League Baseball Collective Bargaining, 15 Sports Law. J. 221 (2008)
Sheila Hatami & David Zwerin, Note: Educating the Masses: Expanding Title VII to Include Sexual Orientation in the Education Arena, 25 Hofstra Lab. & Emp. L.J. 311 (2007)
Elizabeth Hirsh, Settling for Less? Organizational Determinants of Discrimination-charge Outcomes, 42 Law & Soc'y Rev. 239 (2008)
Moshe Hirsch, The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System, 19 Eur. J. Int'l L. 277 (2008)
Grace Ho, Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title VII's Transformative Potential, 20 Yale J.L. & Feminism 131 (2008)
Ben Ikuta, Note: Why Binomial Distributions Do Not Work as Proof of Employment Discrimination, 59 Hastings L.J. 1235 (2008)
Nicole Karlebach, Recognizing Women's Worth: The Human Rights Argument for Ending Prostitution in India, a review of Geetanjali Gangoli, Indian Feminisms: Law, Patriarchies and Violence in India, 28 B.C. Third World L.J. 483 (2008)
Jeffrey Kahana, Imperium in Imperio and the Political Origins of the American Labor Conspiracy Doctrine, 30 Law & Pol'y 364 (2008)
Charles, Koch, Administrative Judges' Role in Developing Social Policy, 68 La. L. Rev. 1095 (2008)
Felicia Kornbluh, Redistribution, Recognition, and Good China: Administrative Justice for Women Welfare Recipients Before Goldberg v. Kelly, 20 Yale J.L. & Feminism 165 (2008)
Kevin Lashus, Robert Loughran & Magali Candler, Fear the Ice Man: Lessons from the Swift Raids to Warm You Up — The New Government Perspective on Employer Sanctions, 32 Nova L. Rev. 391 (2008)
Lucas Lavoy, Recent Development. Erisa Section 404(c) in the Fifth Circuit, 82 Tul. L. Rev. 2495 (2008)
Robert Lockwood, Note: The Best Interests of the League: Referee Betting Scandal Brings Commissioner Authority and Collective Bargaining Back to the Frontcourt in the NBA, 15 Sports Law. J. 137 (2008)
Thomas Lubnau & Daniel Bailey, Dealing with the Disruptive Physician, 8 Wyoming L. Rev. 567 (2008)
78 Labor and Employment Relations Association (LERA) www.LERAweb.org
Irfan Murtuza, Note: National Standards and Nclb: The Promise of State Compacts, 15 Geo. J. on Poverty L. & Pol'y 129 (2008)
Michael Nava, The Servant of All: Humility, Humanity, and Judicial Diversity, 38 Golden Gate U. L. Rev. 175 (2008)
Winston Naga & Craig Hammer, The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process, 60 Me. L. Rev. 429 (2008)
Catherine Odom, Comment: Merit or Mandatory Preference?: The Effect of Huber v. Wal-Mart Stores, Inc. on the Application of the ADA's Reassignment Provision, 61 Ark. L. Rev. 389 (2008)
Joseph Oluwole, The Pickering Balancing Test and Public Employment-Free Speech Jurisprudence: The Approaches of Federal Circuit Courts of Appeals, 46 Duq. L. Rev. 133 (2008)
Kristin Parker, Comment: Ambient Harassment under Title VII: Reconsidering the Workplace Environment, 102 Nw. U. L. Rev. 945 (2008)
Thomas Riske, Note: Interest Arbitration Clauses in Section 8(f) Pre-Hire Agreements: Effective for Achieving Genuine Collective Bargaining or Enabling Parties to Underhandedly Gain Majority Bargaining Power? 2008 J. Disp. Resol. 333
William Roberts, Comment: An Irish Lesson for Empowering America's Part-time Work Force: ERISA and the Protection of Employees (Part-time Work) Act, 2001, 25 Wis. Int'l L.J. 563 (2007)
Florian Rodl, Private Law Beyond the Democratic Order? On the Legitimatory Problem of Private Law "Beyond the State", 56 Am. J. Comp. L. 743 (2008)
Benjamin Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685 (2008)
Nina Schichor, Does Sarbanes-Oxley Force Whistleblowers to Sacrifice Their Reputations? An Argument for Granting Whistleblowers Non-Pecuniary Damages, 8 UC Davis Bus. L.J. 272 (2008)
Anja Schottner, Relational Contracts, Multitasking, and Job Design, 24 J.L. Econ. & Org. 138 (2008)
Dru Stevenson, Privatization of State Administrative Services, 68 La. L. Rev. 1285 (2008)
Kerri Stone, Consenting Adults? Why Women Who Submit to Supervisory Sexual Harassment Are Faring Better in Court than Those Who Say No...and Why They Shouldn't, 20 Yale J.L. & Feminism 25 (2008)
Symposium: Beyond the State: Rethinking Private Law, 56 Am. J. Comp. L. 527 (2008)
Symposium: A Practical Guide to Alternative Dispute Resolution in North Carolina, 30 Campbell L. Rev. 237 (2008)
Symposium: Issues Surrounding the "Owner-Operator" and "Employee" Classifications in Motor Carrier and Transportation Laws, 35 Transp. L.J. 115 (2008)
79 Labor and Employment Relations Association (LERA) www.LERAweb.org
Symposium: Innovative Models of Lawyering: Collaborative Law and Other Processes, 2008 J. Disp. Resol. 1
Symposium: Self and Other: Cognitive Perspectives on Trust, Empathy and the Self, 9 Minn. J. L. Sci. & Tech. 637 (2008)
Symposium: Access to Justice: The Social Responsibility of Lawyers, 25 Wash. U. J.L. & Pol'y 1 (2007)
Ann Marie Tracey & Norma Skoog, Is Business Judgment a Catch-22 for ADEA Plaintiffs? The Impact of Smith v. City of Jackson on Future Adea Employment Litigation, 33 U. Dayton L. Rev. 231 (2008)
Lindsey Thomas, Note: Getting on the Right Track, 27 Miss. C.l. Rev. 477 (2007-2008)
David M. Uhlmann, Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act (September 2008) http://www.acslaw.org/files/uhlmann%20issue%20brief_0.pdf
John Watts, Differences Without Distinctions: Boyle's Government Contractor Defense Fails to Recognize the Critical Differences Between Civilian and Military Plaintiffs and Between Military and Non-Military Procurement, 60 Okla. L. Rev. 647 (2007)
David Weiss, Note: How Terrell Owens, Collective Bargaining, and Forfeiture Restrictions Created a Moral Hazard That Caused the NFL Crime Wave and What it Meant for Michael Vick, 15 Sports Law. J. 279 (2008)
Nancy Welsh, Looking Down the Road Less Travelled: Challenges to Persuading the Legal Profession to Define Problems More Humanistically, 2008 J. Disp. Resol. 45
James Williams, Out of Place and out of Line: Positioning the Police in the Regulation of Financial Markets, 30 Law & Pol'y 306 (2008)
David Wirtes & Donald McKenna, Taking Control: How a False Claims Act Will Allow Alabama to Stop the Leeching of its Treasury, 31 Am. J. Trial Advoc. 545 (2008)
Peer Zumbansen, Law after the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law, 56 Am. J. Comp. L. 769 (2008)
November 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
LERA Labor and Employment Law Section Meeting - January 3, 2009, 12:30 2:15 p.m.
A brief business meeting will be followed by a panel discussion
80 Labor and Employment Relations Association (LERA) www.LERAweb.org
http://www.leraweb.org/meetings/Annual/2009/program.asp
Panel: Strategies for Enforcing Labor Rights
Chair: Philip Harvey, Rutgers University - Camden
Panelists: Dennis Walsh, National Labor Relations Board
Paul Whitehead, United Steelworkers
John N. Raudabaugh, Baker & McKenzie LLP
Charles Jeszeck, U.S. Government Accountability Office
Ellen Dannin, Penn State University - Dickinson School of Law
LABOR AND EMPLOYMENT LAW NEWS
The full text of many cases is now available free on-line. Where that is the case, links are provided.
A Protected Right Not to Speak?
Public and private employee legal rights are not identical. The most important reason for that difference is that public sector employers have federal and state constitutional obligations that do not apply to private employers. One of those protected areas is speech. Public sector employers, as part of government, may not violate the constitutional right to freedom of speech. Most cases that have raised speech issues concern statements made by a public employee. A recent case, however, raises the issue whether a public employee who has chosen not to speak has the same protections. Welch v. Ciampa, Case No.07-2470 (1st Cir. Sept. 23, 2008). http://www.ca1.uscourts.gov/cgi- bin/getopn.pl?OPINION=07-2470P.01A
Briefly, the case involved a dispute over leadership and questions of corruption in a police department. The plaintiff, an appointee in that department, chose to remain neutral on this issue. As a result, his appointment was not renewed. The court of appeals held that neutrality — that is, not speaking — must have the same protections as speech. It explained: “We can discern no principled basis for holding that an employee who supports an opposition group is protected by the First Amendment but one who chooses to remain neutral is vulnerable to retaliation. . . . But neither active campaigning for a competing party nor vocal opposition to the defendant's political persuasion are required. In this case, [the plaintiff] Welch adduced evidence that officers who did not support the recall election were perceived as opposing it. Whether Welch actually affiliated himself with the anti-recall camp is not dispositive since the pro-recall camp attributed to him that affiliation. In sum, we reject the defendants' argument that Welch's claim fails because he chose to remain neutral in the recall election.” The case has been remanded for further proceedings.
Charter School Is a Private Employer Subject to the National Labor Relations Act
81 Labor and Employment Relations Association (LERA) www.LERAweb.org
When public services are transferred to the private sector, they come under the jurisdiction of the National Labor Relations Act. In most of the cases to date this issue has arisen in the context of a union's claim for continued representation. When a successorship relationship is found, the union that represented the employees in the public sector has a right to continue to represent the employees in the private sector. A recent case addresses the issue of NLRA jurisdiction over charter school employees and in the representation context, not successorship. The NLRB found the charter school to be a private employer subject to the Act. The decision is particularly helpful for its discussion of the factors the NLRB examines in deciding the public or private sector status of an employer. Charter School Administrative Services, 353 NLRB Case No.35 (Sept. 30, 2008) http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35335.pdf
WEB LINKS
Alison Campbell, The Conference Board of Canada: All Signs Point to Yes: Literacy's Impact on Workplace Health and Safety (September 2008)
Project on Government Oversight (POGO), Pandemic Flu: Lack of Leadership and Disclosure Plague Vaccine Program (March 6, 2008)
The Union of Concerned Scientists, Freedom to Speak? A Report Card on Federal Agency Media Policies
Working Poor Families Project, Working Hard, Still Falling Short
Cisco, Data Leakage Worldwide: Common Risks and Mistakes Employees Make
Cisco, Cisco Research Reveals Common Data Loss Mistakes: Global Study Explores Behavioral Risks Based on Country, Culture - from Accessing Unauthorized Facilities and Networks to Intentionally Leaking Corporate Information
Cisco, Data Leakage Worldwide: Employee Behavior Survey Results
New America Foundation, The Anxious American Worker
High and Rising Health Care Costs: Demystifying U.S. Health Care Spending (October 2008)
New Data Unveiled: How the Federal Courts Are Treating Employment Discrimination Plaintiffs
National Institute of Occupational Safety and Health, Research to Practice
Families USA, Premiums vs Paychecks 2008
National Institute of Occupational Safety and Health, NIOSH and the Williams College of Business, Xavier University, Partner to Advance â˜Business Case' for Job Safety, Health
Bracken Hendricks, The Green Road to Economic Recovery: Testimony to the House Select Committee on Energy Independence and Global Warming (Sept. 18, 2008)
82 Labor and Employment Relations Association (LERA) www.LERAweb.org
PDF Version
International Labor Organization, International Institute of Labor Studies (IILS), Income Inequalities in the Age of Financial Globalization (2008)
Merit Systems Protection Board (MSPB), Alternative Discipline: Creative Solutions for Agencies to Effectively Address Employee Misconduct (July 2008)
RECENT LABOR AND EMPLOYMENT LAW ARTICLES
George Annas, Healthcare Reform in America: Beyond Ideology, 5 Ind. Health L. Rev. 441 (2008)
Carole Angel, Immigration Relief for Human Trafficking Victims: Focusing the Lens on the Human Rights of Victims, 7 U. Md. L.J. Race, Religion, Gender & Class 23 (2007)
Christopher Arbery, Valerie Njiiri & Valerie Barney, Labor and Employment, 59 Mercer L. Rev. 1245 (2008)
Bryce Ashby, Indentured Guests — How the H-2a and H-2b Temporary Guest Worker Programs Create the Conditions for Indentured Servitude and Why Upfront Reimbursement for Guest Workers' Transportation, Visa, and Recruitment Costs Is the Solution, 38 U. Mem. L. Rev. 893 (2008)
Richard Bales, Explaining the Spread of At-will Employment as an Interjurisdictional Race to the Bottom of Employment Standards. 75 Tenn. L. Rev. 453 (2008)
Alina Ball, Comment: An Imperative Redefinition of "Community": Incorporating Reentry Lawyers to Increase the Efficacy of Community Economic Development Initiatives, 55 UCLA L. Rev. 1883 (2008)
Omri Ben-Shahar, How Bad Are Mandatory Arbitration Terms? 41 U. Mich. J.L. Reform 777 (2008)
Janine Berg & Sandrine Cazes, Policymaking Gone Awry: The Labor Market Regulations of the Doing Business Indicators, 29 Comp. Lab. L. & Pol'y J. 349 (2008)
Joseph Berger, The Year in Sustained Bid Protests at the U.S. Government Accountability Office and the U.S. Court of Federal Claims, 37 Pub. Cont. L.J. 731 (2008)
William Bodoh & Beth Buchanan, Ignored Consequences — The Conflicting Policies of Labor Law and Business Reorganization and its Impact on Organized Labor, 15 Am. Bankr. Inst. L. Rev. 395 (2007)
Christopher Borgen, Transnational Tribunals and the Transmission of Norms: The Hegemony of Process, 39 Geo. Wash. Int'l L. Rev. 685 (2007)
Rachel Bowe, Comment: The Scope of Arbitration Clauses in Collective Bargaining Agreements & the Superficial Divide: Clarifying the Circuit Confusion, 31 Hamline L. Rev. 233 (2008)
Magdalena Bragun, Comment: The Golden Cage: How Immigration Law Turns Foreign Women into Involuntary Housewives, 31 Seattle U. L. Rev. 937 (2008)
83 Labor and Employment Relations Association (LERA) www.LERAweb.org
John Budd, Fairness at Work, and Maybe Efficiency but Not Voice: An Evaluation of the Arthurs' Commission Report, 29 Comp. Lab. L. & Pol'y J. 477 (2008)
Deborah Cantrell, et alia, Walking the Path of the Law: How Law Graduates Navigate Career Choices and Tolerate Jobs That Fail to Meet Expectations, 14 Cardozo J.L. & Gender 267 (2008)
Babette Ceccotti, Lost in Transformation: The Disappearance of Labor Policies in Applying Section 1113 of the Bankruptcy Code, 15 Am. Bankr. Inst. L. Rev. 415 (2007)
Thomas Carbonneau, The Revolution in Law Through Arbitration, 56 Clev. St. L. Rev. 233 (2008)
Peter Corbin & John Duvall, Employment Discrimination, 59 Mercer L. Rev. 1137 (2008)
Denise Cortes, Note: Union Power Redefined: How Arbitrating Claims, Including Title VII, Benefits Racial Minority Union Workers, 9 Rutgers Race & L. Rev. 443 (2008)
Tucker Culbertson, Another Genealogy of Equality: Further Arguments Against the Moral-Politics of Colorblind Constitutionalism, 4 Stan. J. C.R. & C.L. 51 (2008)
Rashmi Dyal-Chand, Exporting the Ownership Society: A Case Study on the Economic Impact of Property Rights, 39 Rutgers L.J. 59 (2007)
Christopher Drahozal, Arbitration Costs and Forum Accessibility: Empirical Evidence, 41 U. Mich. J.L. Reform 813 (2008)
Theodore Eisenberg, Geoffrey Miller & Emily Sherwin. Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts, 41 U. Mich. J.L. Reform 871 (2008)
Colin Fenwick, Decency and Fairness in Labor Standards: An Australian Perspective on a Canadian Proposal, 29 Comp. Lab. L. & Pol'y J. 491 (2008)
Roberto Filho & Ronaldo Lobao, Captive Audience Speech in the Brazilian Labor Law, 29 Comp. Lab. L. & Pol'y J. 341 (2008)
Jodie Friedman, Note: Reporting Sexual Assault of Women in the Military, 14 Cardozo J.L. & Gender 375 (2008)
Jose Gabilondo, Monetizing Diaspora: Liquid Sovereigns and the Interest Convergence Around Worker Remittances, 26 Penn St. Int'l L. Rev. 653 (2008)
Jamie Goetz, Comment: Whose Opinion Really Matters? Admitting Eeoc Reasonable Cause Determinations as Evidence of Discrimination, 76 U. Cin. L. Rev. 995 (2008)
Adrian Goldin, Fairness at Work: An Argentinean Perspective, 29 Comp. Lab. L. & Pol'y J. 533 (2008)
84 Labor and Employment Relations Association (LERA) www.LERAweb.org
Jarod Gonzalez, Employment Law Remedies for Illegal Immigrants, 40 Tex. Tech. L. Rev. 987 (2008)
Linda Greene, Football Coach Contracts: What Does the Student-Athlete Have to Do with It? 76 UMKC L. Rev. 665 (2008)
Kati Griffith, Globalizing U.S. Employment Statutes Through Foreign Law Influence: Mexico's Foreign Employer Provision and Recruited Mexican Workers, 29 Comp. Lab. L. & Pol'y J. 383 (2008)
Michael Hecker, A Lesson from the East: International Labor Rights and the U.S.-Cambodia Trade Agreement of 1999. 26 Buff. Pub. Interest L.J. 39 (2007-2008)
Kevin Henrickson & Wesley Wilson, Compensation, Unionization, and Deregulation in the Motor Carrier Industry, 51 J.L. & Econ. 153 (2008)
Allan Jacobs, Duty to Third Parties in Employment References: A Possible Poisonous Potion for the Health Care Industry? 24 J. Contemp. Health L. & Pol'y 312 (2008)
Mary Kaczorek, Comment: "No Country for Old Men:" AARP v. EEOC and Age Discrimination in Employer-Sponsored Retiree Health Benefits, 26 Law & Ineq. 435 (2008)
Daniel Keating, Harsh Realities and Silver Linings for Retirees, 15 Am. Bankr. Inst. L. Rev. 437 (2007)
Patrick Keenan, Do Norms Still Matter? The Corrosive Effects of Globalization on the Vitality of Norms, 41 Vand. J. Transnat'l L. 327 (2008)
Elizabeth Keyes, Casa of Maryland and the Battle Regarding Human Trafficking and Domestic Workers' Rights, 7 U. Md. L.J. Race, Religion, Gender & Class 14 (2007)
Diane Klein, Naming and Framing the "Subject" of Antebellum Slave Contracts: Introducing Julia, "A Certain Negro Slave," "A Man," Joseph, Eliza, and Albert, 9 Rutgers Race & L. Rev. 243 (2008)
Ingrid, Landau, et alia, Employee Share Ownership in Australia: Theory, Evidence, Current Practice and Regulation, 25 UCLA Pac. Basin L.J. 25 (2007)
Lauren Legrand, Note: Proving Retaliation after Burlington v. White, 52 St. Louis U. L.J. 1221 (2008)
Kathy Liebner, Driving Too Fast: Spitzer's Failed Experiment at Immigration Reform, 26 Buff. Pub. Interest L.J. 73 (2007-2008)
Amanda Lueders, Note: You'll Need More than a Voltage Converter: Plugging European Workplace Bullying Laws into the American Jurisprudential Outlet, 25 Ariz. J. Int'l & Comp. L. 197 (2008)
Phyra McCandless, Comment: The Fallacy of Mandating Contraceptive Equity: Why Laws That Protect Women with Health Insurance Deepens Institutional Discrimination, 42 U.S.F.L. Rev. 1115 (2008)
Brett McDonnell, Employee Primacy, or Economics Meets Civic Republicanism at Work, 13 Stan. J.L. Bus. & Fin. 334 (2008)
85 Labor and Employment Relations Association (LERA) www.LERAweb.org
Adam Marks, Note: Personnel Foul on the National Football League Players Association: How Union Executive Director Gene Upshaw Failed the Union's Members by Not Fighting the Enactment of the Personal Conduct Policy, 40 Conn. L. Rev. 1581 (2008)
Karen Menter, Note: Individual Accounts in Social Security Reform: Lessons from Abroad and Special Considerations for Women, 16 Buff. Women's L.J. 103 (2008)
Brendan Miller, Note: Your Money or Your Lifestyle! — Employers' Efforts to Contain Healthcare Costs — Lifestyle Discrimination Against Dependents of Employees? 5 Ind. Health L. Rev. 371 (2008)
Harvey Miller, Michele Meises & Christopher Marcus, The State of the Unions in Reorganization and Restructuring Cases, 15 Am. Bankr. Inst. L. Rev. 465 (2007)
Meredith Miller, Contracting out of Process, Contracting out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process, 75 Tenn. L. Rev. 365 (2008)
Daniel Moar, Arbitrating Hate: Why Binding Arbitration of Discrimination Claims Is Appropriate for Union Members, 10 Duq. Bus. L.J. 47 (2008)
Camille Monahan, Faster, Cheaper, and Unused: The Paradox of Grievance Mediation in Unionized Environments, 25 Conflict Resol. Q. 479 (2008)
Megan Mowrey, Discriminatory Pay and Title VII: Filing a Timely Claim, 41 J. Marshall L. Rev. 325 (2008)
Luz Nagle, Selling Souls: The Effect of Globalization on Human Trafficking and Forced Servitude, 26 Wis. Int'l L.J. 131 (2008)
Alan Neal, Corporate Social Responsibility: Governance Gain or Laissez-faire Figleaf? 29 Comp. Lab. L. & Pol'y J. 459 (2008)
Mayoung Nham, Note: The Right to Strike or the Freedom to Strike: Can Either Interpretation Improve Working Conditions in China? 39 Geo. Wash. Int'l L. Rev. 919 (2007)
Caroline Nicholson, The Impact of Child Labor Legislation on Child-Headed Households in South Africa, 30 T. Jefferson L. Rev. 407 (2008)
Joseph Oluwole & Preston Green, Parents Involved and Race-Conscious Measures: A Cause for Optimism, 26 Buff. Pub. Interest L.J. 1 (2007-2008)
Richard Padykula, Note: Labor Law — Labor's First Amendment Rights May Rest on the Haunches of a Rat: 29 U.S.C. Section 158(b)(4)(II)(B) and the Secondary Boycott Rule, 30 W. New Eng. L. Rev. 867 (2008)
Donald Philbin& Audrey Lynn Maness, Alternative Dispute Resolution, 40 Tex. Tech. L. Rev. 445 (2008)
86 Labor and Employment Relations Association (LERA) www.LERAweb.org
Keri Phillips, Note: Resurrecting Gilbert: Facial Parity as Unequal Treatment, 31 Hamline L. Rev. 309 (2008)
Katharina Pistor, Who Tolls the Bells for Firms? Tales from Transition Economies, 46 Colum. J. Transnat'l L. 612 (2008)
Elizabeth Pozolo, Note: One Step Forward, One Step Back: Why the Third Circuit Got it Right the First Time, 57 Depaul L. Rev. 1093 (2008)
Vernellia Randall, Eliminating Racial Discrimination in Health Care: A Call for State Health Care Anti- Discrimination Law, 10 Depaul J. Health Care L. 1 (2006)
Alan Resnick, The Enforceability of Arbitration Clauses in Bankruptcy, 15 Am. Bankr. Inst. L. Rev. 183 (2007)
Deborah Rhode & Christopher Walker, Gender Equity in College Athletics: Women Coaches as a Case Study, 4 Stan. J. C.R. & C.L. 1 (2008)
Lauren Rikleen, Breaking Barriers and Ending the Gauntlet, 7 U. Md. L.J. Race, Religion, Gender & Class 1 (2007)
Lawrence Rosenthal, Reading Too Much into What the Court Doesn't Write: How Some Federal Courts Have Limited Title VII's Participation Clause's Protections after Clark County School District v. Breeden, 83 Wash. L. Rev. 345 (2008)
Mitchell Rubinstein, Parents as Quasi-Therapists under the Individuals with Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008)
Theodore St. Antoine, Mandatory Arbitration: Why It's Better than it Looks, 41 U. Mich. J.L. Reform 783 (2008)
Paul Schoenhard, A Three-Dimensional Approach to the Public-Private Distinction, 2008 Utah L. Rev. 635
Richard Seltzer & Thomas Ciantra, The Return of Government by Injunction in Airline Bankruptcies, 15 Am. Bankr. Inst. L. Rev. 499 (2007)
Graham Shaffer, Note: The Leesburg Stockade Girls: Why Modern Legislatures Should Extend the Statute of Limitations for Specific Jim-Crow-Era Reparations Lawsuits in the Wake of Alexander v. Oklahama, 37 Stetson L. Rev. 941 (2008)
Kristin Stastny, Note: Eleventh Circuit Treatment of Certification of Collective Actions under the Fair Labor Standards Act: A Remedial Statute Without a Remedy? 62 U. Miami L. Rev. 1191 (2008)
Judson Stelter, Note: The IRS' Classification Settlement Program: Is it an Adequate Tool to Relieve Taxpayer Burden for Small Businesses That Have Misclassified Workers as Independent Contractors? 56 Clev. St. L. Rev. 451 (2008)
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Symposium: Therapeutic Jurisprudence at the Conference of the International Association of Law & Mental Health in Padua, Italy, 30 T. Jefferson L. Rev. 345 (2008)
Symposium: Empirical Studies of Mandatory Arbitration, 41 U. Mich. J.L. Reform 777 (2008)
Symposium: Corporate Social Responsibility in the Extractive Industries, 11 Yale Hum. Rts. & Dev. L.J. 1 (2008)
Symposium: "Fairness at Work": Three Perspectives on the Arthurs Report, 29 Comp. Lab. L. & Pol'y J. 475 (2008)
Symposium: Promoting Diversity in Deanships, 31 Seattle U. L. Rev. 737 (2008)
Symposium: Brown Undone?: The Future of Integration in Seattle after Pics v. Seattle School District No.1, 31 Seattle U. L. Rev. 863 (2008)
Symposium: The Future of Labor Through the Prism of Bankruptcy, 15 Am. Bankr. Inst. L. Rev. 393 (2007)
Symposium: Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, 49 S. Tex. L. Rev. 787 (2008)
Symposium: Economic Development and the Rule of Law in Latin America, 25 Ariz. J. Int'l & Comp. L. 263 (2008)
Symposium: Reifying Law — Rule of Law, Government, the State, and Transnational Governance, 26 Penn St. Int'l L. Rev. 511 (2008)
Symposium. Breaking Barriers: Current Issues Relating to Women, Labor, and the Law, 7 U. Md. L.J. Race, Religion, Gender & Class 1 (2007)
Symposium. Healthcare Reform in America: Getting Beyond Ideology to True Reform, 5 Ind. Health L. Rev. 441 (2008)
Michele Tiraboschi, The Reform of the Italian Labor Market over the past Ten Years: A Process of Liberalization? 29 Comp. Lab. L. & Pol'y J. 427 (2008)
Shawn Twing, Andrew Little & Christine Stroud, Labor and Employment, 40 Tex. Tech. L. Rev. 737 (2008)
Michael Waterstone & Michael Stein, Disabling Prejudice, a review of Mark C. Weber, Disability Harassment, 102 Nw. U. L. Rev. 1351 (2008)
Ellen Wayne, Is it Just Talk? Understanding and Evaluating Intergroup Dialogue, 25 Conflict Resol. Q. 451 (2008)
Pamela White, Margaret Brent — Maryland's First Female Lawyer, 7 U. Md. L.J. Race, Religion, Gender & Class 11 (2007)
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Mark Weidemaier, From Court-surrogate to Regulatory Tool: Re-framing the Empirical Study of Employment Arbitration, 41 U. Mich. J.L. Reform 843 (2008)
Deborah Widiss, Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy, 35 Fla. St. U. L. Rev. 669 (2008)
Keaton Wong, Comment: Weighing Influence: Employment Discrimination and the Theory of Subordinate Bias Liability, 57 Am. U. L. Rev. 1729 (2008)
Brian Woodruff, Comment: The Qualified Right to Free Movement of Workers: How the Big Bang Accession Has Forever Changed a Fundamental EU Freedom, 10 Duq. Bus. L.J. 127 (2008)
Jayne Zanglein, Employee Benefits, 40 Tex. Tech. L. Rev. 531 (2008)
December 2008
Labor and the Law: News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008
LERA Labor and Employment Law Section Meeting - January 3, 2009, 12:30 2:15 p.m. http://www.leraweb.org/meetings/Annual/2009/program.asp
Elections for new Board members will be held at the LEL Section business meeting at the San Francisco LERA conference. The election will be followed by a panel discussion
The nominations are: Lorraine Schmall, Charles Jeszeck. Sharon Hermes
If elected, they will join the following Section Officers and Board Members.
Officers: Board Members:
Chairperson: Howard Wial Ellen Dannin - 08
Vice-Chair: Heather Grob Michael Z Green - 08
Secretary-Treasurer: Ken May (moves from the Allison Sulentic - 08 board) Robert Thornton - 08 Past Chair: Philip Harvey David Yamada - 08
Panel: Strategies for Enforcing Labor Rights
Chair: Philip Harvey, Rutgers University - Camden
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Panelists: Paul Whitehead, Penn State University
John N. Raudabaugh, Baker & McKenzie LLP
Charles Jeszeck, U.S. Government Accountability Office
Ellen Dannin, Penn State University - Dickinson School of Law
Labor and Employment Law News
The full text of many cases is now available free on-line. Where that is the case, links are provided.
Defamation and the Employer Qualified Privilege
Many employers say they are concerned about being sued for defamation over statements they make in the process of hiring, firing, or disciplining employees. As a result, they may opt for a policy of providing as little information as possible. However, that means employers must make hiring decisions without information they need. Employers should be aware, though, that in general state tort law gives employers a “qualified privilege” to communicate personnel information, such as giving references. The most important protection given by the privilege is for personnel offices to communicate in giving references for job candidates.
This is privilege is qualified because it can be lost if it is abused, for example, when there is “excessive publication or express malice.” An example of excessive publication is making statements to those who do not need to be included in learning the information. Malice includes making statements in bad faith, ill will, and with reckless disregard as to its results or effects.
A recent case illustrates one aspect of the privilege and how it may be lost. A high level employee sued her former employer on a number of claims. All were dismissed except her claim for defamation. Her termination grew out of a public dispute concerning actions at a university radio station related to financial decisions. After the situation was covered in the Washington Post and elsewhere, the plaintiff was terminated. Her employer told the press that the plaintiff had been relieved of her duties after the Washington Post had exposed the problems. The plaintiff, however, claimed that the financial decisions had not been hers alone, that her employer knew or should have known that the charges of mismanagement were false, and that the manner of her firing left her unable to find another job.
The Court of Appeals held that in most cases there would be no claim for defamation merely because of how some people might interpret the reasons an employee was fired or because of “the employer's public silence in the wake of terminating an employee who has been the subject of negative press reports.” In this case, however, the employer did more. Employer officials made public statements that adopted stories about plaintiff's role in the mismanagement. By making public statements, the employer lost its qualified privilege as a defense to the plaintiff's defamation claim. When the defamation case goes to trial the plaintiff employee will still bear the burden of proving defamation. The decision includes a discussion of other situations where an employer's qualified privilege may be lost. Clampitt v. American University, Case No.07-CV-143 (D.C. Ct. App. Sept. 25, 2008) http://www.dcappeals.gov/dccourts/appeals/pdf/07-CV-143.PDF
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Wrongful Discharge and Domestic Violence as an Important Public Issue
A thorny issue for employers is how to handle situations involving employees who are affected by domestic abuse. A recent case from the Washington State Supreme Court answered the question: “Has the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable?” The court responded in the affirmative, saying: “This policy is manifested in numerous legislative, judicial, constitutional, and executive expressions of public policy.” Danny v. Laidlaw Transit Servs. Inc., 193 P.3d 128 (Wash. Oct. 3, 2008) http://www.courts.wa.gov/opinions/pdf/784213.opn.pdf
The situation in this case involved severe violence by a husband toward the employee and their five children. Among other things, she was forced to move out of the house; to care for a child who was beaten so badly he had to be hospitalized; to move her children to a shelter; to confer with police about protection; and to assist in the prosecution or her husband. Some of these events meant that the employee needed time off work. As a result, she was demoted and eventually terminated.
The court found a public policy of preventing domestic violence was clearly established in the State's legislative enactments: “The tort serves to safeguard that important public policy by allowing employees to do what they must to prevent domestic violence, without fear of losing their economic independence.” The court also stated that it was mindful of the employer's burden and stated: “Finally, we note that statistics suggest that it is in an employer's best interest to work with employees experiencing domestic violence and that such work will ultimately result in a stronger and more stable workforce.” The court then returned the case to the federal district court for further proceedings. There were also concurring and dissenting opinions which raised concerns about the burden placed on employers, among other issues.
Web Links
Government Accountability Office, Auto Industry: A Framework for Considering Federal Financial Assistance GAO-09-247T (Senate Report) December 5, 2008
Government Accountability Office, Auto Industry: A Framework for Considering Federal Financial Assistance GAO-09-247T (Congressional Report) December 5, 2008
John Schmitt, Unions and Upward Mobility for Women Workers December 2008
U.S. Chamber of Commerce, The Union Representation Process Under the National Labor Relations Act: Maintaining Employee Free Choice for Over 70 Years
Dean Baker & Ben Zipperer, The Impact of the Medicare Drug Benefit on Health Care Spending by Older Households (December 2008)
James A. Walker, Union Membership in 2007: A Visual Essay, Monthly Labor Review (October 2008)
Stephen A. Wandner, Employment Programs for Unemployment Insurance Recipients, Monthly Labor Review (October 2008)
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Christopher Ramos, Brad Sears & M.V. Lee Badgett, Evidence of Employment Discrimination on the Basis of Sexual Orientation and Gender Identity: Complaints Filed with State Enforcement Agencies 1999-2007 (Williams Institute of the UCLA School of Law)
George W. Bush, Executive Order: Exclusions from the Federal Labor-Management Relations Program (December 1, 2008)
Gary Burtless, Stock Market Fluctuations and Retiree Incomes: An Update (Brookings Institution)
Daniel R. Levinson Inspector General, Department of Health and Human Services Centers for Medicare & Medicaid Services Audits of Medicare Part D Bids OEI-05-07-00560
November 2008
Recent Labor and Employment Law Articles
Steven Abraham, The Arizona Employment Protection Act: Another "Wrongful Discharge Statute" That Benefits Employers? 12 Employee Rts. & Emp. Pol'y J. 105 (2008)
Daron Acemoglu, Michael Kremer & Atif Mian, Incentives in Markets, Firms, and Governments. 24 J.L. Econ. & Org. 273 (2008)
Catherine Albiston, et alia, Ten Lessons for Practitioners about Family Responsibilities Discrimination and Stereotyping Evidence, 59 Hastings L.J. 1285 (2008)
Ariel Avgar, The Inextricable Link Between Labor Law and Industrial Relations Transformation, a review of Guy Mundlak, Fading Corporatism: Israel's Labor Law and Industrial Relations Transition, 30 Comp. Lab. L. & Pol'y J. 135 (2008)
Amy Brown, Note: Baghdad Bound: Forced Labor of Third-Country Nationals in Iraq, 60 Rutgers L. Rev. 737 (2008)
Neil Browne & Mary Allison Smith, Mobbing in the Workplace: The Latest Illustration of Pervasive Individualism in American Law, 12 Employee Rts. & Emp. Pol'y J. 131 (2008)
Micah Bump, Immigration, Technology, and the Worksite: The Challenges of Electronic Employment Verification, 22 Geo. Immigr. L.J. 391 (2008)
Wendy Carroll, The Effects of Electronic Performance Monitoring on Performance Outcomes: A Review and Meta-Analysis, 12 Employee Rts. & Emp. Pol'y J. 29 (2008)
Susan Cancelosi, Unlocking the Truth: Evaluating 2008 Election Issues for Elderly Minorities as a Key to Understanding Medicare Reform, 10 Berkeley J. Afr.-Am. L. & Pol'y 226 (2008)
Aaron Chatterji & Siona Listokin, A Comment on "Corporate Social Responsibility and Workers' Rights", 30 Comp. Lab. L. & Pol'y J. 11 (2008)
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Lance Compa, Corporate Social Responsibility and Workers' Rights, 30 Comp. Lab. L. & Pol'y J. 1 (2008)
Renee Congdon, Note: Comparing Employer Sanctions Provisions and Employment Eligibility Verification Procedures in the United States and the United Kingdom, 18 Ind. Int'l & Comp. L. Rev. 391 (2008)
Laura Cooper, Privatizing Labor Law: Neutrality/Card Check Agreements and the Role of the Arbitrator, 83 Ind. L.J. 1589 (2008)
Simon Deakin, The Rise of Finance: What Is It, What Is Driving It, What Might Stop It? 30 Comp. Lab. L. & Pol'y J. 67 (2008)
Cynthia Estlund, Who Mops the Floors at the Fortune 500? Corporate Self-Regulation and the Low- Wage Workplace, 12 Lewis & Clark L. Rev. 671 (2008)
Katie Eyer, Administrative Adjudication and the Rule of Law, 60 Admin. L. Rev. 647 (2008)
David Faigman, Nilanjana Dasgupta & Cecilia L. Ridgeway. A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 Hastings L.J. 1389 (2008)
Noreen Farrell & Genevieve Guertin, Old Problem, New Tactic: Making the Case for Legislation to Combat Employment Discrimination Based on Family Caregiver Status, 59 Hastings L.J. 1463 (2008)
Andrew Fichter, State Healthcare Coverage Reform: Where Is Federalism Leading Us? 17 Temp. Pol. & Civ. Rts. L. Rev. 629 (2008)
Robert Field, A Taxonomy of American Health Care Regulation: Implications for Health Reform, 17 Temp. Pol. & Civ. Rts. L. Rev. 605 (2008)
Gerald Friedman, The Dialectics of Management and Politics, 30 Comp. Lab. L. & Pol'y J. 77 (2008)
Roland Fryer, Glenn Loury & Tolga Yuret, An Economic Analysis of Color-Blind Affirmative Action, 24 J.L. Econ. & Org. 319 (2008)
Kristina Geraghty, Note: Taming the Paper Tiger: A Comparative Approach to Reforming Japanese Gender Equality Laws, 41 Cornell Int'l L.J. 503 (2008)
Teresa Ghilarducci, Solving the Paradox of Workers as Shareholders: A Comment on Sanford Jacoby, 30 Comp. Lab. L. & Pol'y J. 85 (2008)
Garth Glissman, Note: Resolving the Ambiguity — A Post-Trosper Guidebook for Courts and Employers, 87 Neb. L. Rev. 270 (2008)
Tristin Green & Alexandra Kalev, Discrimination-Reducing Measures at the Relational Level, 59 Hastings L.J. 1435 (2008)
93 Labor and Employment Relations Association (LERA) www.LERAweb.org
Kaylin Hart, Note: Employment Law — Title VII and the Anti- Retaliation Provision — Beyond Employment and the Workplace: The United States Supreme Court Resolves the Split and Shifts the Balance, 29 U. Ark. Little Rock L. Rev. 569 (2007)
William Herbert, The Electronic Workplace: To Live Outside the Law You must Be Honest, 12 Employee Rts. & Emp. Pol'y J. 49 (2008)
Ann Hodges & Camille Hebert, The Electronic Workplace, 12 Employee Rts. & Emp. Pol'y J. 1 (2008)
Timothy Houston, Comment: Two Roads Diverged in a Yellow Wood — The Pennsylvania Supreme Court's Seven Year Walk to Arrive Right Back at the Fork, 46 Duq. L. Rev. 607 (2008)
Michael Hurst, Note: After Blackwater: A Mission-focused Jurisdictional Regime for Private Military Contractors During Contingency Operations, 76 Geo. Wash. L. Rev. 1308 (2008)
Harry Hutchison, What Workers Want or What Labor Experts Want Them to Want? 26 QLR 799 (2008)
Sanford Jacoby, Finance and Labor: Perspectives on Risk, Inequality, and Democracy, 30 Comp. Lab. L. & Pol'y J. 17 (2008)
Sanford Jacoby, The Future of Labor and Finance, 30 Comp. Lab. L. & Pol'y J. 111 (2008)
Bruce Kimball & Brian Shull, The Ironical Exclusion of Women from Harvard Law School, 1870-1900, 58 J. Legal Educ. 3 (2008)
Randall Kiser, Martin Asher & Blakeley McShane, Let's Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Stud. 551 (2008)
Thomas Kochan, Beyond "Financialization" — The Era Ahead, 30 Comp. Lab. L. & Pol'y J. 89 (2008)
Prabha Kotiswaran, Born unto Brothels — Toward a Legal Ethnography of Sex Work in an Indian Red- light Area, 33 Law & Soc. Inquiry 579 (2008)
Daniel Kuehnert, Note: The International Labor Organization and a Possible End to Violence Against Union Members in Colombia, 7 Wash. U. Global Stud. L. Rev. 593 (2008)
Stanley Leasure, Vacatur of Arbitration Awards: The Poor Loser Problem or Loser Pays? 29 U. Ark. Little Rock L. Rev. 489 (2007)
Julia Lee, Comment: Walking on Eggshells: The Effect of the United States Supreme Court's Ruling in Burlington Northern & Santa Fe Railway Co. v. White, 41 Loy. L.a. L. Rev. 683 (2008)
Simon Luechinger, Stephn Meier & Alois Stutzer, Bureaucratic Rents and Life Satisfaction, 24 J.L. Econ. & Org. 476 (2008)
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Brian McCarthy, Note: Trans Employees and Personal Appearance Standards under Title VII, 50 Ariz. L. Rev. 939 (2008)
Kathryn McGuigan, Recent Developments in Employment Law and Litigation, 43 Tort Trial & Ins. Prac. L.J. 349 (2008)
Gray Miller & Emily Buckles, Reviewing Arbitration Awards in Texas, 45 Hous. L. Rev. 939 (2008)
Leda Moloff, Note: On the Face of It? Establishing Jurisdiction on Claims to Compel Arbitration under Section 4 of the FAA, 77 Fordham L. Rev. 181 (2008)
Brian Mittendorf, Infectious Ethics: How Upright Employees Can Ease Concerns of Tacit Collusion, 24 J.L. Econ. & Org. 356 (2008)
Beverly Moran, Capitalism and the Tax System: A Search for Social Justice, 61 SMU L. Rev. 337 (2008)
Walter Nicholson, The Evolution of Unemployment Insurance in the United States, 30 Comp. Lab. L. & Pol'y J. 123 (2008)
Angela Onwuachi-Willig, Emily Houh & Mary Campbell, Cracking the Egg: Which Came First — Stigma or Affirmative Action? 96 Cal. L. Rev. 1299 (2008)
Purvi Patel, Note: Valuing Care in a Liberal Society: A Rights-based Analysis, 9 Geo. J. Gender & L. 427 (2008)
Imani Perry, Do You Really Love New York?: Exposing the Troubling Relationship Between Popular Racial Imagery and Social Policy in the 21st Century, 10 Berkeley J. Afr.-Am. L. & Pol'y 92 (2008)
Richard Pierce, Outsourcing Is Not Our Only Problem, a review of Paul R. Verkuil, Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What We Can Do about It, 76 Geo. Wash. L. Rev. 1216 (2008).
Christopher Pieske, Comment: Civil Rights — Employment Discrimination: What Ledbetter Means for Employees Facing Gender-Based Pay Discrimination, 84 N.D. L. Rev. 299 (2008)
Nicole Porter, The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause, 87 Neb. L. Rev. 62 (2008)
Scott Pryor, The Missing Piece of the Puzzle: Perspectives on the Wage Priority in Bankruptcy, 16 Am. Bankr. Inst. L. Rev. 121 (2008)
Brishen Rogers, The Complexities of Shareholder Primacy: A Response to Sanford Jacoby, 30 Comp. Lab. L. & Pol'y J. 95 (2008)
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Ediberto Roman, The Alien Invasion? 45 Hous. L. Rev. 841 (2008)
Jonathan Rose & Michael Durnwald, Recent Developments in Employee Benefits Law, 43 Tort Trial & Ins. Prac. L.J. 333 (2008)
Lawrence Rosenthal, To Report or Not to Report: The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities under Title VII's Anti-retaliation Provision, 39 Ariz. St. L.J. 1127 (2007)
Susan Sandler, Cross-border Competition in the European Union: Public Procurement and the European Defence Equipment Market, 7 Wash. U. Global Stud. L. Rev. 373 (2008)
Craig Senn, Proposing a Uniform Remedial Approach for Undocumented Workers under Federal Employment Discrimination Law, 77 Fordham L. Rev. 113 (2008)
Phyllis Smith, The Elusive Cap and Gown: The Impact of Tax Policy on Access to Higher Education for Low Income Individuals and Families, 10 Berkeley J. Afr.-Am. L. & Pol'y 181 (2008)
Mary Still, Family Responsibilities Discrimination and the New Institutionalism: The Interactive Process Through Which Legal and Social Factors Produce Institutional Change, 59 Hastings L.J. 1491 (2008)
Matthew Stoloff, Comment: Minimal Change? Implications of the "Raise the Minimum Wage for Working Arizonans Act", 39 Ariz. St. L.J. 1287 (2007)
Cass Sunstein, Is OSHA Unconstitutional? 94 Va. L. Rev. 1407 (2008)
Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses, 83 Ind. L.J. 1141 (2008)
Symposium. Race and Class in the 21st Century Through the Lens of Hurricane Katrina, 14 Wash. & Lee J. C.R. & Soc. Just. 1 (2007)
Symposium. Family Responsibilities Discrimination, 59 Hastings L.J. 1285 (2008)
Symposium: The Electronic Workplace, 12 Employee Rts. & Emp. Pol'y J. 1 104 (2008)
Symposium: Law & the New Institutional Economics, 26 Wash. U. J.L. & Pol'y 1 (2008)
Symposium. States as Laboratories for Social Change, 17 Temp. Pol. & Civ. Rts. L. Rev. 341 (2008)
Joseph Tiger, Note: Re-bending the Paperclip: An Examination of America's Policy Regarding Skilled Workers and Student Visas, 22 Geo. Immigr. L.J. 507 (2008)
Franita Tolson, The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary, 33 Del. J. Corp. L. 347 (2008)
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Andrew Tuck, The Finality Question: Appellate Rights and Review of Arbitral Awards in the Americas, 14 Law & Bus. Rev. Am. 569 (2008)
Christopher Valleau, If You're Smoking You're Fired: How Tobacco Could Be Dangerous to More than Just Your Health, 10 Depaul J. Health Care L. 457 (2007)
Kim Vossman, Comment: Viability of the Continuing Violation Theory in Hawaii Employment Discrimination Law, 30 U. Haw. L. Rev. 423 (2008)
Richard Warner, The Employer's New Weapon: Employee Liability under the Computer Fraud and Abuse Act, 12 Employee Rts. & Emp. Pol'y J. 11 (2008)
Chaz Weber, Note: Picking on Pickering: Proposing Intermediate Scrutiny in Public-employee Religious-Speech Cases, 58 Case W. Res. L. Rev. 513 (2008)
Jesse Weins, Employer Funding of Fertility Awareness Training: Acceptable Alternative to Mandated Prescription Contraceptive Coverage in Employee Benefits, 12 Mich. St. U. J. Med. & L. 321 (2008).
Joan Williams & Stephanie Bornstein, The Evolution of "Fred": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 Hastings L.J. 1311 (2008)
To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at: Ellen Dannin, Professor of Law Pennsylvania State University Dickinson School of Law 327 Katz Building
University Park, PA 16802-1912
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