Labor & Employment Law

Fatal inconsistency in Wal-Mart Stores v. Dukes?

Posted on March 29, 2011
At oral arguments this morning [read the transcript] in Wal-Mart Stores v. Dukes some of the Justices revealed a potentially fatal flaw in the employees' argument. The case involves questions about whether a huge Title VII sex discrimination class action can go forward as a class action rather than as a series of individual cases...

SCOTUS to hear "ministerial exception" case

Posted on March 28, 2011
Today the US Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC to decide whether the "ministerial exception" applies to teacher at a religious elementary school. [Details, briefs] The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA)...

ADAAA regulations published

Posted on March 24, 2011
EEOC's final regulations to implement the ADA Amendments Act (ADAAA) will be published in the Federal Register on March 25. The regulations are designed to simplify the determination of who has a "disability" and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA)...

NLRB invites briefs on witness statements

Posted on March 08, 2011
The NLRB is inviting briefs on the questions: (1) whether the Board should continue to adhere to the holding in Anheuser-Busch, Inc., 237 NLRB 982 (1978), that an employer?s duty to furnish information does not encompass the duty to furnish witness statements and, if not, what standard should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct; and (2) if the statement in question is not classified as a ?witness statement,? whether it nevertheless is privileged from disclosure to the union as attorney work product...

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House seeks info on NLRB's Google advertisements

Posted on March 07, 2011
As mentioned previously [here], the NLRB was running ads on Google. Now that practice has ended. Now the House Committee on Education and the Workforce has asked the NLRB for more information on this interesting topic. [Letter] The House is asking for 1...

NLRB, please explain yourself

Posted on March 04, 2011
In response to budget proposals in the House, the NLRB Chairman and the Acting General Counsel published a statement that said the proposed budget (which contained cuts) would result in 55 days of furloughs for all NLRB employees. Probably after White House pressure, that statement was removed from the NLRB website...

NLRB [not] running Google ads

Posted on March 04, 2011
From various sources we have learned that the NLRB has been running ads on Google. (See below for a screen shot.) That's pretty interesting all by itself. The ads that have surfaced appear to be devoted to promoting formation of unions. That's even more interesting, because it would seem to be considerably less than a neutral stance by the NLRB...

Supreme Court upholds liability in cat's paw case

Posted on March 01, 2011
Staub v. Proctor Hospital (US Supreme Court 03/01/2011): Corporate liability can based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision. [Details]  The US Supreme Court held today that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA...

SOX ban on pre-dispute arbitration agreements is retroactive

Posted on March 01, 2011
Pezza v. Investors Capital (D Mass 03/01/2011): Pezza sued claiming retaliation in violation of the whistleblower provisions of the Sarbanes-Oxley Act. While the employer's motion to compel arbitration was under advisement, Congress enacted the Dodd-Frank Act which enacted a bar to pre-dispute arbitration agreements for whistleblower claims brought under the Sarbanes-Oxley Act...

Novartis v. Lopes - cert denied in FLSA case

Posted on February 28, 2011
This morning the US Supreme Court denied certiorari in Novartis Pharmaceuticals Corp v. Lopes and in Schering Corp v. Kuzinski. [Details] Plaintiffs, pharmaceutical sales representatives, in a class action sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime...

Arbitration agreement cannot waive right to administrative wage hearing

Posted on February 24, 2011
The California Supreme Court held today [Sonic-Calabasas A Inc v. Moreno (California 02/24/2011) (4-3)] that an arbitration agreement cannot waive an employee's right to have an administrative hearing to resolve a claim for unpaid wages. Under California's unpaid wages statute, an employee can seek an administrative hearing which results in a nonbinding decision, followed by an appeal de novo to a trial court...

Supreme Court Watch

Posted on February 18, 2011
We are waiting for US Supreme Court decisions in five cases that have been argued: Kasten v. Saint-Gobain Perf Plastics: Whether an oral complaint is protected conduct under FLSA's anti-retaliation provision. [Details] Staub v. Proctor Hospital: Corporate liability based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision...

E-Verify Self Check

Posted on February 18, 2011
DHS will begin a voluntary E-Verify self check system on March 18. The system will be available to any individuals who wants to check their own work authorization status prior to employment and facilitate correction of potential errors in federal databases...

NLRB's new website

Posted on February 16, 2011
One week ago the NLRB launched its new website. On the plus side, it lives up to the hype: "more flexible, timely, easy to navigate, and useful to a variety of audiences, from practitioners to first-time visitors." On the minus side, all the old links are broken...

Defund NLRB?

Posted on February 16, 2011
As Congress works to figure out how to fund the operations of the government, one proposal is to simply stop paying salaries and expenses of NLRB personnel. H.R. 1 [link], which runs 359 pages, deals with funding government operations through September 30, 2011...

47 Senators oppose Becker nomination to NLRB

Posted on February 02, 2011
Today 47 Senators sent a letter to the President opposing the nomination of Craig Becker to be a Member of the National Labor Relations Board (NLRB). Here's the full text: [Original in PDF] February 1, 2011 President Barack Obama The White House Washington, DC 20500 Dear President Obama, We are writing to urge you to withdraw the nomination of Craig Becker to be a Member of the National Labor Relations Board (NLRB)...

State statutes forbidding injunction of peaceful labor picketing are unconstitutional (2-1)

Posted on January 29, 2011
In Ralphs Grocery v. UFCW (California Ct App 01/27/2011)The union set up an informational picket line in front of the entrance to a non-union store in a commercial shopping center. The store sued to enjoin this activity. The trial court denied an injunction, relying on two state statutes (the Moscone Act and Labor Code Section 1138...

NLRB elections: SEIU wins 4, loses 39

Posted on January 28, 2011
Today's press release from the NLRB tells it all: Vote counts released for elections at Ohio health care facilities SEIU wins four and loses 39 units, with one unit in doubt Employees at more than a dozen hospitals and long-term care facilities in the Cincinnati area voted in NLRB-conducted elections throughout the day Thursday on the question of whether or not to join the Service Employees International Union...

Becker nominated - again - to NLRB

Posted on January 27, 2011
The President yesterday nominated Craig Becker to be a Member of the National Labor Relations Board. [White House statement] Becker was previously nominated in 2009. The Senate did not confirm the nomination. So the President made a recess appointment, which Becker is now serving...

NLRB arbitration deferral policy about to change

Posted on January 25, 2011
The NLRB's Acting General Counsel has announced that he will urge the National Labor Relations Board to change its framework for post-arbitral deferral. Memorandum GC 11-05, January 20, 2011 For a very long time the NLRB has had a policy of declining to take jurisdiction over an unfair labor practice charge when an arbitrator has already issued an award...

SCOTUS: Employee has claim for third-party retaliation

Posted on January 24, 2011
Eric Thompson claimed he was fired because his fiancée, Miriam Regalado, filed an EEOC charge. The US Supreme Court unanimously held that if Thompson's alleged facts are true, then firing him was unlawful retaliation under Title VII. Thompson v. North American Stainless (US Supreme Ct 01/24/2011) Applying Burlington Northern v...

SCOTUS: NASA background check is constitutional

Posted on January 19, 2011
The US Supreme Court unanimously decided that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy. NASA v. Nelson (US Supreme Ct 01/19/2011) Current employees of contractors working at NASA's Jet Propulsion Laboratory must complete a standard background check (which has long been used for prospective federal civil servants)...

SCOTUS: Medical residents not exempt from Social Security tax

Posted on January 11, 2011
Mayo Foundation for Medical Education and Research v. United States (US Supreme Ct 01/11/2011) "Residents" participating in accredited graduate medical education programs receive substantial payments (called stipends) from the Mayo Foundation for medical and patient care services provided by the residents at affiliated and unaffiliated hospitals and clinics...

NLRB invites briefs regarding charter school jurisdiction

Posted on January 10, 2011
The National Labor Relations Board has granted review in a case that asks whether the Board has jurisdiction over a charter school in Illinois. The Board invites briefs from interested parties on the question. Click here for text of Invitation In the case under review, Chicago Mathematics & Science Academy Charter School, Inc...

Senate confirms EEOC members, GC

Posted on December 23, 2010
In one of its last acts of the current session, on December 22, 2010, the U.S. Senate confirmed the nominations of Jacqueline A. Berrien to be Chair of the U.S. Equal Employment Opportunity Commission (EEOC); Chai R. Feldblum and Victoria A. Lipnic to be Commissioners; and P...

Supreme Court schedules employment cases

Posted on December 23, 2010
The US Supreme Court has scheduled oral arguments in three employment law cases: Borough of Duryea v. Guarnieri Whether first amendment protects government employees from retaliation for petitioning on matter of purely private concern March 22, 2011 CSX Transportation v...

NLRB invites briefs on appropriate bargaining units in long-term care facilities

Posted on December 23, 2010
The National Labor Relations Board invites interested parties to file briefs on the issue of the appropriate composition of bargaining units in long-term care facilities. Notice and Invitation: http://www.lawmemo.com/docs/nlrb/specialty.pdf Briefs are due on or before February 22, 2011...

NLRB proposes rule to require posting of NLRA rights

Posted on December 21, 2010
Notices would be similar to those detailing rights under safety, wage and anti-discrimination laws The National Labor Relations Board has submitted to the Federal Register a Notice of Proposed Rulemaking, which provides for a 60-day comment period. The rule would require employers to notify employees of their rights under the National Labor Relations Act...

US Supreme Court oral arguments on the Legal Arizona Workers Act

Posted on December 07, 2010
On December 8 the US Supreme Court hears oral arguments in Chamber of Commerce v. Whiting. [Details; briefs] Arizona's Legal Arizona Workers Act allows state courts to suspend or revoke the business licenses of employers who knowingly or intentionally hire unauthorized aliens...

NLRB upholds employer-union pre-recognition agreement.

Posted on December 07, 2010
In Dana Corp (12/06/2010) the NLRB, in a 2-1 decision, found that an auto parts manufacturer and the United Auto Workers union did not violate labor law by agreeing to ground rules by which the union would be recognized if a majority of employees signed cards in favor of it, and by creating a framework for any future collective bargaining agreements...

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