Labor & Employment Law

Cert granted: Is the NLRB authorized to act when only two of its five positions are filled?

Posted on November 02, 2009
The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year...

Same-sex harassment: Absurd decision by the 5th Circuit

Posted on October 22, 2009
Connie Love claimed her employer violated Title VII because a female co-worker subjected her to sexual harassment through inappropriate comments, gestures, and physical contacts. The 5th Circuit, in a "non-precedential" 2-1 decision, upheld summary judgment for the employer, saying that Love failed to show that the alleged harasser made "explicit or implicit proposals of sexual activity...

LawMemo's Latest Cases - Sneak Preview

Posted on October 16, 2009
Up until now, LawMemo has provided a three-per-week email service - Employment Law Memo - summarizing employment law decisions. It's quite popular, and we plan to keep it going. Let's compare Employment Law Memo to BNA's Daily Labor Report. LawMemo reports on more appellate court decisions...

New GINA rules protect patients? genetic information

Posted on October 03, 2009
GINA - Genetic Information Nondiscrimination Act of 2008 - is resulting in new government rules relating to the use of genetic information. The rules were announced Thursday and will be published in the Federal Register on October 7, 2009. Interim Final Rules Prohibiting Discrimination Based on Genetic Information in Health Insurance Coverage and Group Health Plans (Publication date 10/07/2009) Proposed Rule Modifying HIPAA Privacy Rule (Publication date 10/07/2009) Press release from US Department of Health and Human Services: FOR IMMEDIATE RELEASE Thursday, Oct...

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Weil Gotshal acquires Merrill Lynch employment law head

Posted on October 01, 2009
Allan Dinkoff has joined Weil, Gotshal & Manges as counsel in the New York office. Dinkoff was Managing Director and Head of the Employment Law Group at Merrill Lynch & Co., Inc. Press release from Weil Gotshal: New York, NY, September 22, 2009 ? Weil, Gotshal & Manges announced today that Allan Dinkoff, formerly a Managing Director and Head of the Employment Law Group at Merrill Lynch & Co...

Cert granted in Title VII statute of limitations case

Posted on September 30, 2009
In a disparate impact case, is the Title VII statute of limitations measured from announcement, or use, of unlawful practice? That's the question the US Supreme Court will address in Lewis v. City of Chicago (Certiorari granted 09/30/2009) [briefs etc...

EEOC announces 32 suits in past seven days

Posted on September 28, 2009
The EEOC has announced 32 new new lawsuits against employers during the past seven days. I don't know whether that's a record, but it indicates the EEOC's willingness to go to court on behalf of individuals as well as groups of employees, and against large and relatively small employers...

LeClairRyan seminar on key employment law issues

Posted on September 23, 2009
LeClairRyan attorneys will explore key issues in labor and employment law in half-day New Jersey seminar on October 15. LeClairRyan press release: NEWARK, N.J. (9/21/09) ? Legal challenges associated with labor and employment are as timely as today?s headlines...

EEOC's Proposed regulations under ADAA

Posted on September 22, 2009
The Equal Employment Opportunity Commission (EEOC) is expected to file in the Federal Register its proposed regulations under the Americans with Disabilities Act as amended, some time this week. The document is 93 pages. The public will have 60 days within which to file comments...

Obama's NLRB - What Changes To Expect [Wow]

Posted on September 18, 2009
If you follow the NLRB at all, here is something you absolutely must read. The US Chamber of Commerce has published a 79 page report, The National Labor Relations Board in the Obama Administration: What Changes To Expect No matter which side of the issues you are on, this document will arm you with a knowledge of the probable future changes to expect from the NLRB under the Obama administration...

Appointees to Federal Service Impasses Panel

Posted on September 16, 2009
The Presiddent has named seven highly-qualified individuals to the Federal Service Impasses Panel ? Federal Labor Relations Authority: Mary Jacksteit, Chair, Federal Service Impasses Panel ? Federal Labor Relations Authority Mary Jacksteit has over 20 years of experience in mediation, facilitation and negotiation working for non-profit organizations, government agencies and community organizations...

Miller & Chevalier Expands ERISA and Fiduciary Litigation Practice

Posted on September 15, 2009
Miller & Chevalier Chartered has announced the addition of two lawyers to its ERISA and Fiduciary Litigation practice - Tess J. Ferrera and Michael Khalil. According to the firm's web site, the firm now has 18 lawyers in this practice group. Miller & Chevalier press release: Washington, D...

Accessing computer to further employee's own personal interests was not "without authorization"

Posted on September 15, 2009
Today the 9th Circuit made it a bit more difficult for an employer to use the federal Computer Fraud and Abuse Act (CFAA) against an employee who uses the boss' computer to acquire confidential information. LVRC Holdings v. Brekka (9th Cir 09/15/2009) LVRC sued Brekka (its former employee) and others claiming a violation of the federal Computer Fraud and Abuse Act (CFAA) by accessing LVRC's computer "without authorization...

Jackson Lewis snags leading labor law practitioner from Littler

Posted on September 14, 2009
Robert Lloyd Clayton - who counsels colleges and universities in labor-management relations and employment litigation, and in Title IV, VI and IX and NCAA compliance matters - has left Littler Mendelson to become a partner at Jackson Lewis. From the Jackson Lewis press release (09/11/2009: Washington, D...

National Education Association affiliate to pay for allegedly harassing women again

Posted on September 14, 2009
$170,000 plus $750,000 equals $920,000. This was the cost of settling EEOC charges that an executive director delivered a daily barrage of abusive treatment to female employees. EEOC press release 09/14/2009: ANCHORAGE, Alaska ? The Alaska affiliate of the National Education Association (NEA-AK) has agreed to provide $170,000 and other relief to settle a federal lawsuit charging that its executive director targeted four female employees for severe harassment because of their gender, the U...

Circuit Court denies injunction of E-Verify rule

Posted on September 11, 2009
The 4th Circuit denied a motion to enjoin implementation of the Department of Homeland Security's new rule requiring federal contractors to use E-Verify as a means of ensuring that employees and new hires are authorized to work in the United States. Chamber of Commerce v...

Connecticut Employment Law Blog, by Daniel Schwartz

Posted on September 07, 2009
Happy Second Birthday to Connecticut Employment Law Blog, by Daniel Schwartz. Dan is a partner at Pullman & Comley in Hartford, CT. I have to say, the "Connecticut" part of the blog name might lead you to think it has a narrow focus. Nothing could be further from the truth...

Work Matters, by Mike Maslanka

Posted on September 07, 2009
Today is the first anniversary of the beginning of one of my favorite labor and employment law blogs - Work Matters, by Michael P. Maslanka. Mike is a management-side lawyer. He's the managing partner of Ford & Harrison in Dallas, Texas. Why is his blog one of my favorites? This man writes from the heart...

WI - No negligent supervision for security manager's internet posting of adulterated photos

Posted on September 01, 2009
Maypark v. Securitas Security Svcs (Wisconsin Ct App 09/01/2009) The employer of a security manager was not liable for negligent training and supervision when the manager took ID badge photos, ejaculated on them, and posted them on adult web sites. Securitas provided security services for Polaris Industries...

Court approves E-Verify requirement

Posted on August 27, 2009
For some long time the federal government has been working on requiring federal contractors to use E-Verify as a means of ensuring that employees and new hires are authorized to work in the United States. Yesterday a federal court cleared away one more hurdle...

EEOC v. At&T class action for age discrimination

Posted on August 20, 2009
Today EEOC filed a class action suit against AT&T, Inc. and a number of its subsidiaries alleging age discrimination. The basic claim: AT&T discriminated against a class of retired AT&T workers by denying them the ability for reemployment solely because they retired under early retirement plans including the Voluntary Retirement Incentive Program (VRIP), the Enhanced Pension and Retirement Program (EPR) or other retirement plan...

CA - Last chance agreement cannot waive statutory right to notice and hearing

Posted on July 29, 2009
From today's Employment Law Memo: Farahani v. San Diego Comm Coll (California Ct App 07/28/2009) Farahani was a tenured professor against whom there were complaints of unwanted sexual and social advances. After the college began disciplinary proceedings, Farahani's union arranged for him to sign a last chance agreement in which he agreed that the college could discharge him if he violated the agreement, without complying with the state Education Code...

MA - Arbitration agreement did not cover state statutory discrimination claims (6-1)

Posted on July 29, 2009
From today's Employment Law Memo: Warfield v. Beth Israel Deaconess Med Cntr (Massachusetts 07/27/2009) Warfield sued her employers claiming gender-based discrimination and retaliation in violation of state statute. The trial court denied the employers' motion to compel arbitration; the Massachusetts Supreme Judicial Court affirmed...

11th - No class certification for claimed failure to pay for all hours worked

Posted on July 29, 2009
From today's Employment Law Memo: Babineau v. Federal Express (11th Cir 07/27/2009) Hourly employees sued claiming breach of contract and quantum meruit for the employer's failure to pay for "all hours worked." The trial court refused to certify a class of employees employed in Florida; the 11th Circuit affirmed, holding that the trial court did not abuse its discretion...

7th - Employee unable to show age discrimination during RIF

Posted on July 29, 2009
From today's Employment Law Memo: Martino v. MCI Communications (7th Cir 07/28/2009) Martino sued his former employer claiming he was selected for termination during a reduction in force because he was nearing his 56th birthday. The trial court granted summary judgment for the employer; the 7th Circuit affirmed...

WI - State law age discrimination claim was barred by "ministerial exception" (4-3)

Posted on July 24, 2009
A first grade teacher at a Catholic school brought an age discrimination claim against Coulee Catholic Schools under the Wisconsin Fair Employment Act (WFEA). The trial court rejected the employer?s assertion that the employee fell within the "ministerial exception" under the 1st Amendment and its state counterpart...

5th - FLSA doesn?t require paying recruitment, transportation, visa expenses for foreign guest workers

Posted on July 24, 2009
Following Hurricane Katrina, Decatur Hotel in New Orleans brought in a number of workers from outside the United States. Daniel Castellanos-Contreras and other guest workers (holding H-2B visas) sued the hotel, their employer, asserting a claim for failure to pay minimum wages under the Fair Labor Standards Act (FLSA)...

Great customers

Posted on July 11, 2009
On Wednesday I paid visits to five LawMemo customers. Two were managing partners at employment law boutiques, and three were the chairs of the labor/employment practice groups at full-service law firms. All five law firms have wall-to-wall site licenses so all their lawyers and support personnel can receive Employment Law Memo emails three times a week...

Third nomination to NLRB

Posted on July 10, 2009
President Obama has announced his intent to nominate Republican Brian Hayes as a Member of the National Labor Relations Board. [White House press release] The NLRB now has two Members. The President has nominated three additional Members to bring the Board up to its statutory level of five Members...

Internal complaints are protected activity under FLSA, but must be in writing

Posted on July 01, 2009
The 7th Circuit says the FLSA prohibits retaliation for internal complaints about FLSA violations, but only if those complaints are in writing. Kevin Kasten sued his former employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA)...

Cert granted on Section 301 suit: tortious interference and duty to arbitrate

Posted on June 30, 2009
The US Supreme Court has granted certiorari in an LMRA Section 301 case that raises issues on (1) whether an employer can state a claim of tortious interference against a union that was not a signatory to a collective bargaining agreement, and (2) the scope of the duty to arbitrate...

Cert granted in ERISA case

Posted on June 30, 2009
The US Supreme Court has granted certiorari in an ERISA case that raises issues on (1) the extent to which a district court must defer to the views of an ERISA plan administrator and (2) the appropriate scope of appellate review. This case will be argued in the fall...

City violated Title VII by discarding racially disproportionate test results (5-4)

Posted on June 29, 2009
Today the US Supreme Court decided Ricci v. DeStefano (US Supreme Court 06/29/2009) The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants...

Employer required to disgorge employee's emails to her attorney

Posted on June 28, 2009
Marina Stengart sued her former employer for violation of the New Jersey Law Against Discrimination (LAD). The trial court denied Stengart's motion for temporary restraints with respect to attorney-client privilege. The New Jersey Appellate Division reversed...

Supreme Court will hear False Claims Act qui tam case

Posted on June 23, 2009
The US Supreme Court granted certiorari today in Graham County Soil & Water Conservation Dist v. United States ex rel Wilson (Certiorari granted 06/22/2009) [Details, briefs] Karen Wilson was an employee of the Graham County Soil and Water Conservation District...

Employment Law Memo 06/22/2009

Posted on June 21, 2009
Employment Law Memo by LawMemo Employment Law Memo 06/22/2009 LawMemo First in Employment Law Available by subscription *** Featured Cases *** 2nd ? NLRA requirement of 10-days notice of intent to picket doesn?t apply to employees acting in their individual capacities...

Supreme Court: Mixed motives jury instruction "is never proper in an ADEA case"

Posted on June 18, 2009
The US Supreme Court decided today (5-4) that a mixed motives jury instruction "is never proper in an ADEA case." Gross v. FBL Financial Services (US Supreme Court 06/18/2009) Gross sued claiming that his demotion was in violation of the Age Discrimination in Employment Act (ADEA), and won a jury verdict...

SCOTUS - Age discrimination: Burden of proof never shifts

Posted on June 18, 2009
Before today, it was quite common for courts to use Title VII's burden-shifting analysis when dealing with age discrimination (ADEA) cases. Put that into the past. The US Supreme Court has spoken, voting 5 to 4. Gross v. FBL Financial Services (US Supreme Court 06/18/2009) [Full text] [Official Syllabus] [Briefs] Take a discharge case as an example...

Who is "management" in co-worker sexual harassment cases?

Posted on June 12, 2009
Priscilla Huston claimed she was sexually harassed by co-employees. A couple of other folks at the company had knowledge of the harassment. The legal question was whether these other folks were "management." If they were management, then their knowledge would be inputted to the company, so now the company would know...

You can be fired in retaliation for your fiancée's protected activity

Posted on June 09, 2009
In a 10 to 6 decision (that's a lot of judges), the 6th Circuit decided that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity. Thompson v. North American (6th Cir 06/05/2009) Facts: Eric Thompson claimed he was fired because his fiancée filed an EEOC charge...

5th - EEOC prevails in chronic fatigue syndrome ADA case

Posted on June 05, 2009
EEOC won a major victory today, on behalf of a former employee who suffered from chronic fatigue syndrome. The full opinion: EEOC v. Chevron Phillips Chemical (5th Cir 06/05/2009) EEOC sued Lorin Netterville's former employer claiming violations of the Americans with Disabilities Act (ADA)...

Supervisors can share in tips put into collective tip boxes

Posted on June 02, 2009
Jou Chau, a former Starbucks "barista," brought a class action against Starbucks challenging Starbucks's policy permitting certain service employees, known as shift supervisors, to share in tips that customers place in a collective tip box. Chau sued the employer in a class action, alleging that the employer violated California Labor Code Section 351...

SCOTUS - Seniority system trumps pre-PDA pregnancy differential

Posted on May 18, 2009
Once again, the US Supreme Court has applied Title VII §703(h) to insulate from Title VII liability a current seniority system based in part on old differentials based on pregnancy. Also, the Court said the Lilly Ledbetter Fair Pay Act of 2009 did not apply to pre-PDA differentials because they were not "discriminatory" at the time...

2-Member NLRB lacks authority to issue orders

Posted on May 01, 2009
The US Circuit Court for the District of Columbia decided today that the two-Member NLRB lacks the authority to issue orders. Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009) The NLRB has been limping along with only two Members (instead of the normal five Members) since the end of 2007...

Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.

Posted on May 01, 2009
The US Circuit Court for the District of Columbia decided today that the two-Member NLRB lacks the authority to issue orders. Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009). Later today the 7th Circuit came to the conclusion that the two-Member NLRB does have the authority to issue orders...

President to nominate two NLRB Members

Posted on April 25, 2009
The President has announced his intention to nominate two Members of the National Labor Relations Board. [April 24, 2009 press release] Both individuals are Democrats. Both are lawyers representing labor unions. The NLRB normally has five Members, but currently there are only two, one Democrat and one Republican...

Reporting supervisor's viewing of porn at work did not support retaliatory discharge claim

Posted on April 24, 2009
The Tennessee Court of Appeals holds that an employee didn?t engage in protected conduct when he reported that his supervisor was viewing pornography in the workplace. Sanders v. Henry County (Tennessee Ct App 04/21/2009) Daniel Sanders sued his former employer, alleging that the employer violated a state statute (TCA 50-1-304) when it discharged him in retaliation for reporting illegal activities...

Driving is not a major life activity under the ADA

Posted on April 24, 2009
Marsalette Winsley sued her former employer, asserting (among other things) a disability discrimination claim under the Americans with Disabilities Act (ADA). The trial court granted summary judgment in favor of the employer. Winsley's regular job was a public health nurse, and driving to the homes of her clients was part of the job...

Supreme Court transcript in employment discrimination case

Posted on April 22, 2009
Today the US Supreme Court heard oral arguments in Ricci v. DeStefano [details, briefs]. The official transcript of the oral argument is here. The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant...

US Supreme Court: Union can waive employee's right to sue for discrimination

Posted on April 01, 2009
The US Supreme Court held today (5-4) that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. 14 Penn Plaza v. Pyett (US Supreme Court 04/01/2009) The relevant collective bargaining agreement requires union members to submit all claims of employment discrimination to binding arbitration under the CBA?s grievance and dispute resolution procedures...

NLRB's ADR Program for ULP cases is now permanent

Posted on March 24, 2009
After running a pilot ADR program since December 2005, the NLRB announced today that the program will be permanent. Press Release: NLRB Establishes Permanent ADR Program For Settling Unfair Labor Practice Cases. The Board assigns neutrals to assist the parties in reaching settlements, which are then approved by the Board...

Employment Law Memo 03/23/2009 [Typically only by email]

Posted on March 23, 2009
Employment Law Memo by LawMemo Employment Law Memo 03/23/2009 [Typically only by email] LawMemo First in Employment Law *** Featured Cases *** 9th - Dismissal reversed as to accountants' valuation of ERISA retirement plan...

Article: When Does Foreign Law Compel US Employer to Discriminate

Posted on March 20, 2009
A new article by Littler Mendelson lawyer Tyler M. Paetkau raises a number of issues relating to the ?foreign compulsion? defense to claims of intentional discrimination. The concept is that a US employer can discriminate against its employees with regard to transfers to certain foreign countries in order to avoid violating the laws of those foreign countries...

Employer snooped email; no statutory damages without actual damages

Posted on March 20, 2009
Bonnie Van Alstyne sued her employer, alleging that the employer and its president violated the Stored Communications Act (SCA) by illegally accessing her personal AOL email account. This all came to light when Van Alstyne and the employer were suing each other over alleged sexual harassment and some alleged business torts...

Decision by two-member quorum of NLRB was lawful

Posted on March 18, 2009
The NLRB, by statute, should have five Members. Currently it has only two. This is because they serve limited terms, and some terms expired, and the nomination-confirmation process broke down. Back in December 2007, when there still were four Members, they knew the number would soon drop to two...

Arguments for a stay in Golden Gate Restaurant Assn v San Francisco

Posted on March 18, 2009
Golden Gate Restaurant Association's Application for Order Staying Mandate in Golden Gate Restaurant Assn v. City of San Francisco , filed March 16, contains the following arguments: There is a reasonable probability the Court will grant certiorari...

Restaurant owners to Supreme Court: Please help us

Posted on March 18, 2009
Golden Gate Restaurant Association has filed an application with US Supreme Court Justice Anthony M. Kennedy (Circuit Justice for the 9th Circuit) asking that the 9th Circuit's decision in Golden Gate Restaurant Assn v. City of San Francisco be postponed...

Agreement waiving class-wide arbitration was unconscionable

Posted on March 11, 2009
Today's Employment Law Memo reports on yesterday's decision in Franco v. Athens Disposal (California Ct App 03/10/2009) Franco sued the employer in a class action, asserting claims for violation of several provisions of state wage-and-hour laws. The employer petitioned to compel arbitration, which was granted by the trial court...

Court declines to recognize ?reverse? alter ego doctrine

Posted on March 11, 2009
Today's Employment Law Memo reports on yesterday's decision in Southern California Painters v. Rodin (9th Cir 03/10/2009) The union sued two employers ? one which was unionized and the other which was not. The union claimed that the two employers were a single employer and/or alter egos, and that both were thus liable for alleged breach of a collective bargaining agreement entered into by the unionized employer...

No en banc rehearing on San Francisco Health Care Security Ordinance

Posted on March 10, 2009
The 9th Circuit has denied a petition for rehearing en banc in Golden Gate Restaurant Assn v. City of San Francisco. [Order, including concurring and dissenting opinions] And eight (count 'em - eight) judges dissented from the denial of a rehearing...

Supreme Court accepts post-argument briefs in AT&T v Hulteen

Posted on March 02, 2009

New link for GINA regulations

Posted on March 02, 2009

Text: Proposed EEOC reg on Genetic Non-Discrimination Act (GINA)

Posted on March 01, 2009

Comments on EEOC's GINA regulations

Posted on March 01, 2009

$161,000 settlement of EEOC sexual harassment suit

Posted on February 28, 2009

Genetic Information Nondiscrimination Act (?GINA?) regs are out.

Posted on February 26, 2009
I have not seen the proposed regulations for the Genetic Information Nondiscrimination Act ("GINA"). EEOC provided an "advance release" yesterday. Official publication is expected today or Friday. Meanwhile, the folks at Akin Gump's Washington Labor & Employment Wire have read them, and have some interesting comments...

AT&T v Hulteen: One more post-argument brief on Ledbetter Act's effect on Pregnancy Discrimination Act

Posted on February 25, 2009
AT&T v. Hulteen was argued at the US Supreme Court on December 10, 2008. [Details] The issue involves the retroactive application of the Pregnancy Discrimination Act. What effect will the Lilly Ledbetter Act have on this? The employees have filed a new brief...

Ban on political payroll deductions does not infringe unions' 1st amendment rights

Posted on February 24, 2009
Today the US Supreme Court decided Ysursa, Idaho Secretary of State v. Pocatello Education Association. Here is the official syllabus: Idaho's Right to Work Act permits public employees to authorize payroll deductions for general union dues, but prohibits such deductions for union political activities...

Hilda Harris confirmed for Labor, Seth Harris to be deputy

Posted on February 24, 2009
The Senate today confirmed Hilda Solis as Secretary of the Department of Labor by a vote of 80 to 17. The Whitehouse today announced the intent to nominate Seth Harris to be Deputy Secretary of the Department of Labor. Quoting the Whitehouse: Harris was most recently the Obama Transition Project?s Agency Working Group Leader for the labor, education, and transportation agencies...

Due process a ground to vacate arbitration award?

Posted on February 23, 2009
Five employees of the Union Pacific Railroad filed claims through their Union (the Brotherhood of Locomotive Engineers and Trainmen) contesting a discharge or discipline imposed by the Railroad. Rather than resolving the dispute over the propriety of the discipline, the National Railroad Adjustment Board concluded that the Union had failed to submit conclusive evidence that the parties had held a conference to attempt to resolve the dispute - a procedural prerequisite to arbitration - and thus the Board determined that it was required to dismiss the claim for lack of jurisdiction...

Employment Law Blog Review 02/20/2009

Posted on February 20, 2009
Some thoughtful blog posts of national interest. [Suggestion for next time] The COBRA premium subsidy under the American Recovery and Reinvestment Act of 2009 - What Employers and Plan Administrators need to know Labor and Employment Law Blog Workplace bullying and mobbing in academe: The hell of heaven? Minding the Workplace Evaluating Potential Employers ? Employee Gripe Sites and the Real Way to Find the Best Companies to Work For George's Employment Blawg Stimulus Package Includes COBRA Subsidies World of Work Employers Face New Health Plan Obligations under CHIPRA and ARRA BenefitsBlog THE NEW FMLA REGS (PART 3 of 5) - The Certification Process Suits in the Workplace Family Medical Leave Act Update: Changes in the Law and Review of Final Regulations Massachusetts Employment Defense Law

Employment Law Blog Review 02/15/2009

Posted on February 15, 2009
Some thoughtful blog posts of national interest. [Suggestion for next time] Whistleblower Law Blog: Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending Texas Employee Advocate: Think before you Facebook or MySpace What's New in Employment Law?: Ninth Circuit Holds Type 2 Diabetic Was Qualified Individual WorkMatters: An early Christmas gift from the 5th Circuit Jottings By An Employer's Lawyer: What Ledbetter Has Wrought Ohio Employer's Law Blog: A primer on employee polygraph testing

Gigantic Wal-Mart class action goes to en banc rehearing

Posted on February 14, 2009
The 9th Circuit yesterday granted a rehearing en banc in Dukes v. Wal-Mart (02/13/2008). When this case was decided by a three-judge panel two years ago, this is what we said about it: The 9th Circuit has approved a 1.5 million member class action in a Title VII case brought by current and former employees...

AT&T v Hulteen post-argument brief on Ledbetter Act's effect on Pregnancy Discrimination Act

Posted on February 13, 2009
AT&T v. Hulteen was argued at the US Supreme Court on December 10, 2008. [Details] The issue involves the retroactive application of the Pregnancy Discrimination Act. What effect will the Lilly Ledbetter Act have on this? The employees in the Hulteen case have filed a new brief...

A poker deck printed with labor laws

Posted on February 12, 2009
In Longquan Township in Haikou, capital of south China's Hainan Province, there's a job fair to promote the migrant workers' employment. Here's a deck of cards imprinted with labor laws: Photo credit: Xinhua/Peng Tong

Solis will be confirmed as Secretary of Labor

Posted on February 11, 2009
Contrary to my earlier prediction, Representative Hilda Solis will be confirmed as Secretary of Labor. The Senate committee on Health, Education, Labor and Pensions voted favorably today (two Republicans voting against), so a favorable vote by the full Senate is assured...

Ledbetter Act apply to demotions and promotions?

Posted on February 11, 2009
I have previously argued that the Lilly Ledbetter Act would not apply to a decision not to promote an employee. Will the Lilly Ledbetter Act of 2009 really matter? Ask George Jackson. Michael Fox at Jottings By An Employer's Lawyer is sounding the alarm bell, suggesting that judges will indeed apply the Act to decisions on promotion and demotion...

Employee must answer questions without formal grant of immunity

Posted on February 11, 2009
Today?s Employment Law Memo tells the story of Thomas Spielbauer, who was a deputy public defender. The boss fired him (in part) for disobeying his employer?s orders to answer questions. Spielbauer thought he should first be given a formal grant of immunity from prosecution...

Restatement of Employment Law: An embarrassment

Posted on February 08, 2009
"The proposed Restatement, if passed in its present form, would be an embarrassment to the American Law Institute and would call into questions generally its commitment to accurate scholarship." So says Professor Richard Bales at Workplace Prof Blog. Following a conference on the proposed Restatement of Employment Law, Bales had this to say: Two themes quickly emerged...

Prediction: Taxes will scuttle Solis nomination for Labor Secretary

Posted on February 05, 2009
U.S. Rep. Hilda Solis is the President's nominee for Secretary of Labor. Yesterday, Solis' husband paid off about $6,400 worth of tax liens that had been outstanding for as long as 16 years against his business. [Article]Let's be clear. These were tax liens arising out of the husband's separately-owned business...

Zodiac sign determines who gets hired

Posted on February 05, 2009
Frank Steinberg at New Jersey Employment Law Blog has a story about a company that is hiring only those applicants born under specific zodiac signs. Legal? Frank thinks it is. So do I. But really, does this make sense? Read the whole story: What's Your Sign? Really? You're Hired!

Two 9th Circuit Judges Order Benefits for Same-Sex Spouses of Court Employees

Posted on February 05, 2009
Leonard Link reports: In two opinions posted to the website of the U.S. Court of Appeals for the 9th Circuit on February 4, judges of the court ruling on internal grievances filed by employees of the judicial branch within the 9th Circuit ordered the court administrators to process requests that same-sex spouses of the employees be included in the federal benefits plan governing their employment...

Edward Hugler is Acting Labor Secretary, awaiting Hilda Solis' confirmation

Posted on February 04, 2009
Hilda Solis' appointment as Secretary of Labor is being held up in the Senate. The rumor mill says it's the fault of Republicans who are unhappy that she is an outspoken proponent of the Employee Free Choice Act. Well, maybe so, but she will no doubt get confirmed at some point in time...

"Wage controls" for bailed-out executives

Posted on February 04, 2009
Bowing to populist demands, the President today announced caps on executive pay for companies that get "exceptional assistance" from the government. My view: (1) Wage caps set a dangerous precedent. (2) Would anybody with the skills to turn-around a giant corporation be willing to work for $500,000? (3) This will play well with those who envy the high earnings of executives, but will not help turn the economy around, and will not help create jobs or preserve jobs...

Added damages to compensate for adverse tax consequences of lump-sum back pay award

Posted on February 04, 2009
An employee who wins a discrimination case gets a lump-sum award. Can she get an additional award to make up for the additional taxes she will pay due to getting a lump sum award? Yes, says the 3rd Circuit: Eshelman v. Agere System (3rd Cir 01/30/2009)...

EEOC General Counsel Ronald Cooper Returns To Private Practice

Posted on February 02, 2009
EEOC press release, February 2, 2009: WASHINGTON -- Ronald S. Cooper, General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), will return to private law practice after two-and-one-half years leading the agency?s litigation program...

FULL TEXT: Three executive orders relating to federal contractors

Posted on January 31, 2009
On January 30, 2009 the President signed three executive orders dealing with federal contractors. Click links for full text of each one. Notification of Employee Rights Under Federal Labor Laws Requires federal contractors to post a notice informing employees that they have a right to join or not to join a union...

President's executive orders on employees of federal contractors

Posted on January 30, 2009
The President announced this morning that he will be signing three executive orders relating to federal contractors and their employees. These three executive orders will: Require federal contractors to post a notice informing employees that they have a right to join or not to join a union...

Boston employment lawyers: Conforto Law Group

Posted on January 29, 2009
Conforto Law Group is a "boutique" Boston law firm that is devoted exclusively to the representation of employees. LawMemo is pleased that Conforto Law Group has been added to the Employment Law Firm Directory for Massachusetts. Conforto Law Group handles all types of employment law matters, including discrimination based on age, gender, pregnancy, race, disability, and religion...

Oh, that 9th Circuit. Aren't they amusing?

Posted on January 28, 2009
A three-judge panel decided that a public employer violated employees' 4th amendment rights by reading personal and sexually explicit text messages sent on employer-issued pagers. Yesterday the whole 9th Circuit denied a petition for an en banc rehearing...

Fisher & Phillips' new office in Louisville, Kentucky

Posted on January 27, 2009
Congratulation to Fisher & Phillips upon the opening of a new office in Louisville, Kentucky. LawMemo has added Fisher & Phillips' new office to the Employment Law Firm Directory for Kentucky. Fisher & Phillips LLP was founded in 1943 and is one of the first U...

President to sign Lilly Ledbetter Fair Pay Act of 2009 on January 29.

Posted on January 27, 2009
On January 29 the President is scheduled to sign the Lilly Ledbetter Fair Pay Act of 2009, which amends Title VII, the ADEA, the ADA, and the Rehabilitation Act. The Act will re-start the statute of limitation for claims of discrimination in compensation each time wages or benefits are paid, when an individual is affected by a previous discriminatory decision or practice...

Plant closed. Will NLRB order it to re-open?

Posted on January 26, 2009
Wild as it may seem, it is just possible that the NLRB will order an employer to re-open a plant that it closed in December. It seems unlikely to me, but not beyond the realm of possibility. George Lenard at George's Employment Blawg has an interesting and entertaining explanation: NLRB to Consider Ordering Shuttered Window & Door Plant Reopened...

Job losses continue with no end in sight

Posted on January 26, 2009
This is a recession, folks. During 2008, 2,600,000 jobs were lost. December's unemployment rate hit 7.2 percent. In just the past few days, these job losses have been announced: Microsoft: 5,000 Intel: 6,000 Pfizer: 8,000 Sprint Nextel: 8,000 Home Depot: 7,000 General Motors: 2,000 Caterpillar: 5,000 And there are more I haven't listed, and more to come...

US Supreme Court holds that answering questions during employer's internal investigation is protected against retaliation

Posted on January 26, 2009
Crawford v. Metropolitan Govt of Nashville (US Supreme Court 01/26/2008) in a unanimous decision holds that answering questions during employer's internal investigation is protected against Title VII retaliation. Official Syllabus: In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her...

Petitioner's brief in Gross v. FBL Financial

Posted on January 26, 2009
The issue before the US Supreme Court is: "Must a plaintiff present direct evidence of discrimination in order to obtain a Mt. Healthy mixed-motive instruction in a non-Title VII discrimination case?" Ever since Congress amended Title VII in the Civil Rights Act of 1991 with the intent of overruling Price-Waterhouse v...

Restrictive covenants, Canada style

Posted on January 24, 2009
Yesterday the Supreme Court of Canada decided a restrictive covenant case involving an employer and a former employee. The covenant restricted the former employee from becoming employed in the business of insurance brokerage within the ?Metropolitan City of Vancouver?...

Stuart J. Ishimaru is new Acting Chairman of EEOC

Posted on January 23, 2009
The EEOC press release tells the story: PRESIDENT APPOINTS STUART ISHIMARU ACTING EEOC CHAIRMAN, CHRISTINE GRIFFIN NAMED ACTING VICE CHAIR WASHINGTON ? The U.S. Equal Employment Opportunity Commission (EEOC) today announced that President Barack Obama has appointed Stuart J...

Lilly Ledbetter Fair Pay Act of 2009 awaits President's signature

Posted on January 22, 2009
Today the Senate passed the Lilly Ledbetter Fair Pay Act of 2009. It has already passed the House. It awaits the President's signature. The full text: A BILL To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes...

Wilma B. Liebman is new Chairman of the NLRB

Posted on January 22, 2009
President Obama designated Wilma B. Liebman to be Chairman of the NLRB on January 22, 2009. Wilma B. Liebman has served as a Member of the National Labor Relations Board (NLRB) since November 14, 1997. She was first appointed by President Clinton and confirmed by the Senate to a five-year term that expired on December 16, 2002...

Cat's Paw - A new approach is suggested

Posted on January 22, 2009
Professor Stephen F. Befort of the University of Minnesota Law School and Alison L. Olig of Best & Flanagan LLP are proposing a whole new analytical approach to the cat's paw issue - subordinate bias liability under antidiscrimination statutes. Their article is Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 South Carolina Law Review ___ (2009)...

Supreme Court allows local union to charge non-members for national litigation expenses

Posted on January 21, 2009
Locke v. Karass (US Supreme Court 01/21/2009) Official syllabus:  The collective-bargaining agreement between Maine and respondent local union, the exclusive bargaining agent for certain state employees, requires nonmember employees represented by the union to pay the local a "service fee" equal to the portion of union dues related to ordinary representational activities, e...

Locke v. Karass: Moderation at the Supreme Court

Posted on January 21, 2009
A public sector local union collects a service fee from non-member employees, and sends some of that money to its national affiliate to be spent on litigation. The non-members objected, and the US Supreme Court today unanimously rejected the non-members' complaint...

Criminal prosecution for en mass resignation?

Posted on January 20, 2009
Yesterday I wrote about Vinluan v. Doyle (New York App Div 01/13/2009), which held that it would violate the 13th amendment to criminally prosecute a group of nurses who resigned in the belief that their contracts had been breached. Mitchell H. Rubinstein has written a whole article on this case already...

Jobless in Oregon: Unemployment rate = 9%

Posted on January 20, 2009
Today I had lunch in a fashionable local pastry and sandwich shop, where well-heeled folks drove forks into giant pieces of cake. Meanwhile, the unemployment rate in my state has risen to 9 percent, as of December. In December 174,819 Oregonians were unemployed, the largest number since January 1983...

A radical proposal to nationalize workplace law

Posted on January 19, 2009
Jeffrey M. Hirsch, professor of law at the University of Tennessee College of Law, has just published Revolution in Pragmatist Clothing: Nationalizing Workplace Law. Nationalize employment law? No way. For all its faults, the state-by-state development of employment law has been part of the genius of our federal system...

Not a crime to resign an at-will nursing job - 13th amendment

Posted on January 19, 2009
How often do you see the 13th amendment (abolishing slavery and involuntary servitude) applied in an employment case? Facts: A group of nurses resigned their jobs at the end of their shifts. They claimed their contracts had been breached. They had been working at a nursing home, caring for children on ventilators...

Employee Free Choice Act - Probably on hold

Posted on January 19, 2009
The labor movement, lots of Democrats, academics, and others have their hopes built up that the election of Barack Obama and the increase in the number of Congressional democrats will result in the early enactment of the Employee Free Choice Act (EFCA)...

David Yamada's "Minding the Workplace"

Posted on January 18, 2009
Here is a new blog that is worth reading: Minding the Workplace, the New Workplace Institute Blog, hosted by David Yamada. David Yamada is professor of law at Suffolk University Law School, and founder of the New Workplace Institute. Yamada is recognized as the expert in workplace bullying and the law...

Low interest rates are resulting in layoffs of legal aid lawyers

Posted on January 18, 2009
Some may rejoice at the fact that the Federal Reserve has lowered interest rates to record lows. (The current target: between zero and 1/2 of one percent for the federal funds rate.) One of the sad results of low interest rates is a depletion in the funding for legal aid programs...

Would you hire Timothy Geithner?

Posted on January 17, 2009
Dear readers, I have done a complete about face on the appointment of Timothy Geithner as Secretary of the Treasury. My view now: His offer of employment should be withdrawn. Back when President-Elect Obama was making his decision on who would be the best candidate to fill this job, I thought it was a no-brainer...

LawMemo Employment Law Blog celebrates its fourth birthday

Posted on January 15, 2009
This week the LawMemo Employment Law Blog celebrates its fourth birthday.To each of you who reads this blog from time to time, you have my thanks. Writing entries for the blog has been a worthwhile experience for me. It has, like all public writing, forced me to be as clear as possible about my own thinking...

Will the Lilly Ledbetter Act of 2009 really matter? Ask George Jackson.

Posted on January 15, 2009
George Jackson sued claiming that the City of Chicago discriminated against him by denying him two promotions. Jackson v. City of Chicago (7th Cir 01/13/2009) He failed in his attempt to prove that he was as qualified as the two persons who were selected for the promotions, so he lost his case...

High-level discussion of proposed labor law reform

Posted on January 14, 2009
Follow-Up on Proposed Reform is something worth reading if you have an interest in possible reform of the traditional labor laws (that is, NLRB stuff). It is brought to you by Labor Law Blog. It's a discussion between the Labor Law Blog editor (whose true identity I cannot reveal) and Joe Brock, from Laboring Away at the Institute...

Study finds (well, duh) racial bias in the advertising industry

Posted on January 14, 2009
Probably no industry in the United States is free from racial bias. Yet a recent study indicates that the advertising industry really has a long way to go. In NEW DATA EXPOSES DRAMATIC RACIAL DISCRIMINATION IN U.S. ADVERTISING INDUSTRY the NAACP summarizes the whole story...

Transgender employee fired for "violating dress code." Not a Title VII violation

Posted on January 14, 2009
Chief Judge Robert L. Miller of the U.S. District Court for the Northern District of Indiana ruled on January 5 that an employer who discharged a gender-transitioning (male-to-female) retail sales employee for letting her hair grow longer than the employer deemed appropriate for men and using make-up, had not violated the ban on sex discrimination under Title VII of the Civil Rights Act of 1964 and a similar Indiana state law, because the employer was merely enforcing a non-discriminatory dress code...

Lawsuit delays E-Verify implementation date

Posted on January 14, 2009
The U.S. Citizenship and Immigration Services' E-Verify system was scheduled to become mandatory on January 15, 2009. The date has been changed to February 20, 2009. Why the delay? A lawsuit filed December 23, 2008 by the U.S. Chamber of Commerce, the Associated Builders and Contractors, the Society for Human Resources Management, the American Council on International Personnel, and the HR Policy Association...

No-match letter no-discussion rule was unfair labor practice

Posted on January 12, 2009
Today's NLRB Law Memo reports on an interesting crossover between no-match letters and employer no-discussion rules. The federal government issues a "no-match letter" when an employee's name does not match up with the reported social security number...

Lilly Ledbetter Fair Pay Act Of 2009 and Paycheck Fairness Act approved by the House

Posted on January 12, 2009
As many have predicted, the Lilly Ledbetter Fair Pay Act Of 2009 and Paycheck Fairness Act soon will become the law of the land. [Full text] The US House of Representative passed them both on January 9. The Senate will pass them soon. And the President (that is, President Obama) will sign them...

Paul Secunda drops blogging, Oh my

Posted on January 09, 2009
Today Paul Secunda announced that he has given up blogging on Workplace Prof Blog.  Paul's blogging work has been excellent. He has a broad knowledge of the field, stretching from discrimination to ERISA. His posts have always been insightful and informative...

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Posted on January 09, 2009
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Auto Workers strike would trigger bailout default

Posted on January 09, 2009
I'm told that one of the provisions of the federal government's loans to GM and Chrysler is that a labor strike would automatically put the companies in default. If the union strikes, the loans default, and you know what that means. You might be thinking, "Wow, that gives the union huge power...

US Supreme Court takes Title VII case on municipality's refusal to implement promotion exam results

Posted on January 09, 2009
Ricci v. DeStefano (07-1428 and 08-328) Certiorari granted January 9, 2009 Details, briefs: http://www.lawmemo.com/supreme/case/Ricci/ The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant...

Guess? What? Deposition question created an unfair labor practice

Posted on January 08, 2009
Monday's NLRB Law Memo contains a reminder: An employer can commit an unfair labor practice during a deposition by asking an employee whether he voted for a union. Yes, even though the question may have been relevant, and even though the employer had no illegal motive in asking the question...

Pregnancy Discrimination Act - AT&T v. Hulteen - Recap of Supreme Court arguments

Posted on December 31, 2008
AT&T Corp v. Hulteen was argued at the US Supreme Court on December 10, 2008. [Details, briefs] The US Supreme Court is reviewing the 9th Circuit's judgment rendered in Hulteen v. AT&T Corp (9th Cir en banc 08/17/2007) (14-1). SCOTUSblog has an interesting recap of the oral arguments: Argument Recap: AT&T v...

Employer?s Rule 68 offer of judgment to sole plaintiff in FLSA case may have been effective preemptive strike to collective action

Posted on December 29, 2008
Today's Employment Law Memo email contained the following report on a complex issue involving the Fair Labor Standards Act's collective action provision and Civil Procedure Rule 68: Sandoz v. Cingular Wireless (5th Cir 12/23/2008) Sandoz sued the employer in a purported collective action, asserting a claim for violation of the minimum wage provisions of the Fair Labor Standards Act (FLSA)...

Direct evidence needed for mixed motive analysis?

Posted on December 10, 2008
The US Supreme Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case. The Court granted certiorari on December 5 in Gross v. FBL Financial Services, Inc...

AT&T Corp v. Hulteen - Pregnancy Discrimination Act

Posted on December 09, 2008
A current violation? Improper retroactive application of the Pregnancy Discrimination Act? That's what the argument is about in AT&T Corp v. Hulteen, being argued at the US Supreme Court on December 10, 2008. [Details, briefs] The US Supreme Court is reviewing the 9th Circuit's judgment rendered in Hulteen v...

Don't fire the domestic violence victim

Posted on October 08, 2008
Ramona Danny sued in federal court asserting a claim for wrongful discharge in violation of public policy. The federal court sent a certified question to the Supreme Court of Washington. Has the State of Washington established a clear mandate of public policy prohibiting an employer from discharging an at-will employee because she experienced domestic violence and took leave from work to take actions to protect herself, her family, and to hold her abuser accountable? The Washington court declined to answer that question, and instead reformulated it as: 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 answer? "Yes...

Work Matters

Posted on September 01, 2008
It's a joy to welcome a new blog devoted to employment and labor law. Work Matters is written by Michael P. Maslanka, managing partner of Ford & Harrison's Dallas office. Mike is an experienced lawyer who also edits the Texas Employment Law Letter, writes the "Work Matters" column for the Texas Lawyer, and produces podcasts on a number of employment law and labor law topics...

$3 million verdict - wrongful discharge

Posted on August 16, 2008
A former deputy prosecutor has won a $3,000,000 verdict on her claim that she was wrongfully discharged in January 2004. The Seattle Times reports [here] that former senior deputy prosecutor Barbara Corey claimed that Pierce County, Washington, Prosecutor Gerry Horne targeted her after he heard she might run against him for prosecutor...

Profanity was good cause for discharge.

Posted on August 14, 2008
Montana's Wrongful Discharge from Employment Act (WDEA) defines ?good cause? for discharge as ?reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer?s operation, or other legitimate business reason...

Jotting about Michael Fox

Posted on August 12, 2008
Happy 6th birthday to Michael Fox's Jottings By An Employer's Lawyer!  Mike is a trailblazer in the field of employment law blogs. He started out in July 2002 when the rest of us were still trying to figure out what "blog" meant. Many have followed his lead by starting blogs of their own, yet his remains the best in the show...

Employment Law Memo 07/07/2008

Posted on July 07, 2008
Here's the Employment Law Memo that landed in our subscribers' mailboxes this morning: Employment Law Memo 07/07/2008 LawMemo First in Employment Law *** Featured Cases *** DC - "Sleeping" is a major life activity under the ADA...

Transfer triggered due process rights

Posted on June 30, 2008
Thompson sued the employer for violation of his First Amendment free speech rights and of his Fifth Amendment due process rights. The trial court granted the employer's motion for judgment on the pleadings. The DC Circuit affirmed in part and reversed in part...

No "class-of-one" equal protection for public employees

Posted on June 09, 2008
Engquist v. Oregon Dept of Justice (US Supreme Court 06/09/2008) Official syllabus: Petitioner Engquist, an Oregon public employee, filed suit against respondents? her agency, her supervisor, and a co-worker?asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called ?class-of-one? claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons...

PDA extends to abortions

Posted on June 02, 2008
The 3rd Circuit holds that the Pregnancy Discrimination Act (PDA), a part of Title VII, prohibits discrimination due to having an abortion. Doe v. C.A.R.S. Protection (3rd Cir 05/30/2008) Doe sued the employer for violation of Title VII as amended by the Pregnancy Discrimination Act (PDA) alleging wrongful discharge because of a surgical abortion...

The end of the Restatement of the Law of Employment?

Posted on May 20, 2008
The Labor Law Trust Group has petitioned the Council of the American Law Institute to terminate the Restatement of the Law of Employment project. Pretty heavy group of law professors proposing that the whole idea simply be trashed. Here is the petition: To the Council of the American Law Institute: The undersigned are professors of labor and employment law in accredited schools of law in the United States...

Mixed-motive under the ADEA

Posted on May 16, 2008
Gross v. FBL Financial (8th Cir 05/14/2008) holds that in ADEA cases the 1989 decision in Price-Waterhouse v. Hopkins, 490 US 228, controls how the jury should be instructed regarding the employer's mixed-motive. It is error to use the Title VII "motivating factor" test that was added to Title VII (but not added to the ADEA) by the Civil Rights Act of 1991: 42 USC Section 2000e-2(m)...

The Future of Labor and Employment Law

Posted on May 03, 2008
The Future of Labor and Employment Law in the United States by Katherine V.W. Stone at UCLA School of Law is a bold look at the future. Stone sees two possible futures: "Labor law will continue to atrophy, unions will continue to decline, and individual employment rights will be chipped away...

Comments on joint petition rule

Posted on April 27, 2008
NLRB is proposing a new type of petition for election. [Federal Register notice (02/26/2008)] This would result in a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director...

Gentry: Cert denied

Posted on March 31, 2008
The US Supreme Court denied certiorari in Circuit City Stores, Inc. v. Gentry on March 31. (This case was Gentry v. Superior Court (Supreme Court of California 08/30/2007) (4-3 vote)). Robert Gentry brought a class action suit claiming that the employer had misclassified salaried customer service managers as exempt from the overtime provisions of the California Labor Code...

Supreme Court tackles political activities payroll deductions

Posted on March 31, 2008
The US Supreme Court granted certiorari March 31 to decide Ysursa, Idaho Secretary of State v. Pocatello Education Association [Details, all briefs] Formal Question Presented by the cert petition: "Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?" Background: An Idaho state statute prohibits local government employers and school employers from making payroll deductions for "political activities," defined as "electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure...

Schaumber to chair NLRB

Posted on March 19, 2008
Peter C. Schaumber will be the chairman of the (now) two-Member NLRB. It's sad that the President and Senate cannot get together to fully staff the National Labor Relations Board. Meanwhile, congratulations to Member Schaumber, a capable and conscientious Member...

Chamber v. Brown predictions

Posted on March 19, 2008
Chamber of Commerce v. Brown was argued this morning at the US Supreme Court. [Details; briefs] [Transcript of argument] I have nothing better to do than make a prediction on the outcome of this important case. My view: California (Brown) will win, 6-3 or better...

NLRB proposes new form of joint petitions for consent election

Posted on March 09, 2008
NLRB is proposing to adopt a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director...

No individual liability for retaliation

Posted on March 03, 2008
Well, it's official. An employee does NOT have a cause of action against an individual supervisor for retaliation under California's Fair Employment and Housing Act (FEHA). Jones v. The Lodge at Torrey Pines (California Supreme Court 03/03/2008) (4-3 vote)...

25 words on Federal Express Corp v. Holowecki

Posted on February 27, 2008
In Federal Express Corp v. Holowecki (US Supreme Court 02/27/2008) (7-2) the Supreme Court came to grips with a long-standing legal question: Whether an employee alleging discrimination gets the ball rolling (and stops the statute of limitations) by filing what the EEOC calls an "intake questionnaire...

25 words on Sprint/United Management

Posted on February 26, 2008
Lots of people held out a false hope that Sprint/United Management v. Mendelsohn (US Supreme Court 02/26/2008) would decide whether so-called "me-too" evidence could be used in a discrimination case. They hoped for a bright line to be drawn that would settle the question for all future cases...

Supreme Court reverses "me too" evidence decision

Posted on February 26, 2008
Sprint/United Management v. Mendelsohn (US Supreme Court 02/26/2008) Official Syllabus: In respondent Mendelsohn's age discrimination case, petitioner Sprint moved in limine to exclude the testimony of former employees alleging discrimination by supervisors who had no role in the employment decision Mendelsohn challenged, on the ground that such evidence was irrelevant to the case's central issue, see Fed...

Arbitrator, not Labor Commissioner, decides issues

Posted on February 20, 2008
Preston v Ferrer (US Supreme Court, February 20, 2008). 8 to 1, US Supreme Court today holds that issues are to be decided by an arbitrator, not by the California Labor Commissioner. No surprises here. The official syllabus: A contract between respondent Ferrer, who appears on television as ?Judge Alex,? and petitioner Preston, an entertainment industry attorney, requires arbitration of ?any dispute ? relating to the [contract?s] terms ? or the breach, validity, or legality thereof ? in accordance with [American Arbitration Association (AAA)] rules...

Gómez-Pérez v. Potter prediction

Posted on February 19, 2008
Paul Secunda has read the US Supreme Court transcript from today's oral argument in Gómez-Pérez v. Potter [Details, briefs] and concludes that the employer will win 5:4. His comments appear at the Workplace Prof Blog and at SCOTUSblog. The issue is whether federal employees can state a claim for retaliation under the Age Discrimination in Employment Act (ADEA)...

Three new Supreme Court cases

Posted on February 19, 2008
US Supreme Court will hear case on union's waiver of court forum for statutory claim. 14 Penn Plaza LLC v. Pyett (Certiorari granted February 19, 2008) [Details, briefs] When employees sued claiming age discrimination, the employer filed a motion to compel them to take the case to arbitration...

Employment retaliation at the Supreme Court

Posted on February 18, 2008
This week the US Supreme Court will hear two cases that will decide whether it is illegal for an employer to retaliate against an employee for complaining about discrimination. It's already clear that retaliation is unlawful under Title VII, and under the private sector provisions of the Age Discrimination in Employment Act (ADEA), and other statutes I won't mention here...

A new name

Posted on February 11, 2008
How exciting! A new name for this blog: LawMemo Employment Law Blog. (Was Ross' Employment Law Blog) It's all about branding. The brand is LawMemo. LawMemo is the name of the company, and the domain name. The words "Law Memo" are part of our three email products: Employment Law Memo NLRB Law Memo Arbitration Law Memo What could be more exciting than that?

Ready for new FMLA regulations?

Posted on February 09, 2008
Department of Labor's proposed amendments to its regulations under the Family and Medical Leave Act (FMLA) will be filed in the Federal Register on February 11, 2008. Comments must be received on or before April 11, 2008. The filing includes both proposed changes to previously-adopted regulations and a request for input on for new regulations implementing the new statute dealing with military family leave...

Maggie Jacobsen Dies

Posted on February 03, 2008
Maggie Jacobsen, Former Member of the National Mediation Board Dies Magdalena (Maggie) Jacobsen?the daughter of a tugboat captain?who became one of the most prominent women in labor relations has died. Maggie started her career in 1962 as a flight attendant for Continental Airlines, became a representative of her Union, the Steward and Stewardess Division of the Airline Pilots Association, and was elected national secretary-treasurer of the Union that represented over 20,000 flight attendants who flew on 20 air carriers...

Effective immediately, FMLA covers care for member of armed forces

Posted on January 30, 2008
Amendments to the Family and Medical Leave Act of 1993 (FMLA) are effective on January 28, 2008. The National Defense Authorization Act for FY 2008 (NDAA) was signed by the President January 28. Section 585 amends the FMLA to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness...

Three nominees to NLRB

Posted on January 27, 2008
President Bush has announced his intention to nominate three lawyers to the NLRB, which now is limping along with only two Members. [White House Announcement] Thanks to Michael Fox for tipping me off on this. His reaction/prediction is here: NLRB Back to Full Strength? By No Means a Sure Thing The nominees: Robert J...

Mike Maslanka: Dealing With Dysfunctional Counsel

Posted on January 26, 2008
You've been there. The lawyer on the other side takes no prisoners, runs to the courthouse whenever their hair gets mussed up, and otherwise engages in grandstanding, hyperbole, and other unprofessional conduct they must have picked up from bad TV shows...

Whistleblower was offered $5,000, recovered $3,000,000

Posted on January 26, 2008
According to the lawyer for Nancy Olipares, the employer's lawyer offered no more than $5,000 to settle her whistleblower claim. Olipares' lawyer had offered to settle for $75,000. A jury said it was worth more than $3,000,000. Source: Honolulu jury awards $3M to city ex-official, in The Honolulu Advertiser...

Sarbanes-Oxley: An explanation from the 5th Circuit

Posted on January 25, 2008
Allen v. Administrative Review Board (5th Cir 01/22/2008) is a must-read case for anyone involved with Sarbanes-Oxley whistleblower cases. Allen filed a complaint with the Department of Labor against the employer, asserting a whistleblower claim under the Sarbanes-Oxley Act...

4th Birthday

Posted on January 24, 2008
Happy 4th Birthday to us.

Medical marijuana law gives no protection from the boss

Posted on January 24, 2008
Gary Ross got fired because his drug test was positive for marijuana. He was using marijuana to treat chronic back pain, doing so on the advice of his doctor. Ross sued his former employer claiming disability discrimination and claiming wrongful discharge in violation of public policy...

Supreme Court takes three employment law cases

Posted on January 19, 2008
US Supreme Court granted certiorari in three employment law cases on January 18, 2008) Retaliation: Is cooperating with internal investigation protected activity? Crawford v. Metropolitan Government of Nashville Details, briefs: http://www.lawmemo...

ADA accommodation case taken off Supreme Court docket

Posted on January 15, 2008
Huber v. Wal-Mart Stores, Inc. has been settled by the parties, and removed from the list of cases that the Supreme Court will decide this year. It raised an interesting issue: Whether the ADA requires an employer to reassign a disabled employee to a vacant position for which she is qualified, or merely permits the employee to apply and compete with other applicants for the vacant position...

Supreme Court takes "class of one" case

Posted on January 11, 2008
This morning the US Supreme Court announced that it will decide whether, in the context of employment, there can be a "class of one" under the equal protection clause. Engquist v. Oregon Dept of Agriculture [Details] The ("liberal") 9th Circuit rejected a legal theory that many other circuits have adopted...

9th Circuit grants stay of injunction against San Francisco Health Care Security Ordinance

Posted on January 09, 2008
Golden Gate Restaurant Assoc v. San Francisco (9th Cir 01/09/2008) Trial court opinion: http://www.lawmemo.com/docs/ca-nd/GoldenGate_order.pdf The 9th Circuit issued a 34 page decision staying an injunction that had been entered by a district court...

Age discrimination, retirement plans, and the Supreme Court

Posted on January 09, 2008
Today the US Supreme Court hear oral arguments in Kentucky Retirement Systems v. EEOC [Click here for briefs, link to transcript, etc.]. EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA)...

Bush's NLRB Legacy: #5 of 12

Posted on January 09, 2008
Card-based recognitions must allow 45 day window for rival petitions. #5 in a series of 12 significant actions by the Bush Board. Dana Corporation, 351 NLRB No. 28 (September 29, 2007) (3-2) When a majority (more than half) of employees have signed cards authorizing a union to represent them, an employer has the option of either (a) recognizing the union based on the cards or (b) requiring that there be an NLRB-conducted secret ballot election...

Bush's NLRB Legacy: #4 of 12

Posted on January 07, 2008
Employee misconduct discovered through employer's unlawful conduct. #4 in a series of 12 significant actions by the Bush Board. Anheuser-Busch, Inc., 351 NLRB No. 40 (September 29, 2007). The Board reaffirmed its 2004 holding that the NLRA prohibits the Board from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer...

Bush's NLRB Legacy: #3 of 12

Posted on January 04, 2008
At-will strike replacements are "permanent" replacements. #3 in a series of 12 significant actions by the Bush Board. Jones Plastic & Engineering Co., 351 NLRB No. 11 (September 27, 2007) (3-2). It has long been the rule that when there is an economic strike (as opposed to an "unfair labor practice strike") the striking employees have a right to get their jobs back at the end of the strike unless the employer has hired "permanent replacements...

Punitive damages without an award of compensatory damages.

Posted on January 04, 2008
Abner v. The Kansas City So RR (5th Cir 01/02/2008) Eight African American employees sued claiming a work environment hostile to race, in violation of Title VII and 42 USC 1981. A jury returned a verdict finding the employer liable, awarded no compensatory damages, and awarded $125,000 in punitive damages...

Bush's NLRB Legacy: #2 of 12

Posted on January 03, 2008
Employee use of employer's email: no-solicitation rules and a definition of "discrimination" #2 in a series of 12 significant actions by the Bush Board. The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007) (3-2)...

2.5 MILLION for harrassing one employee

Posted on January 03, 2008
Here's the EEOC press release: EEOC Says African American Electrician Subjected to ?N-Word? and Threats of Lynching at Worksites Across the Country HONOLULU -- The U.S Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a race discrimination and retaliation lawsuit against Lockheed Martin, the world?s largest military contractor, for $2,500,000 and other relief on behalf of an African American electrician who was subjected to a racially hostile work environment at several job sites nationwide ? including threats of lynching and the ?N-word...

Bush's NLRB Legacy: #1 of 12

Posted on January 02, 2008
Weingarten rights: non-union employees do not have them. #1 in a series of 12 significant actions by the Bush Board. IBM Corp., 341 NLRB No. 148 (06/09/2004) (3-2) A " Weingarten right" is the right of an employee to have a union representative present when called in by the employer for an investigative interview, where the employer is investigating alleged wrongdoing by the employee...

No BFOQ in ADA cases

Posted on January 02, 2008
The 9th Circuit, in an en banc opinion, has rejected application of Title VII and ADEA bona fide occupational qualifications (BFOQ) in ADA cases. Bates v. UPS (9th Cir 12/28/2007) (en banc) (3-2) Bates sued the employer for violation of the Americans with Disabilities Act (ADA) alleging unlawful exclusion from driving vehicles of 10,000 pounds or less if hearing impaired...

Paul Secunda moving to Marquette

Posted on December 31, 2007
Sincere congratulations to Paul Secunda upon his decision to accept a law teaching position at Marquette University Law School, effective the 2008-2009 school year. He is currently Jessie D. Puckett, Jr. Lecturer and Assistant Professor of Law at the University of Mississippi School of Law...

NLRB arranges for two-Member Board

Posted on December 28, 2007
NLRB arranges for two-Member Board to issue decisions. NLRB delegates litigation authority to General Counsel. The NLRB took the following actions December 20, announced December 28:             Anticipating a loss of two members when Congress adjourns in January, the National Labor Relations Board has unanimously decided to temporarily delegate to the General Counsel authority on all court litigation matters that otherwise would require Board authorization...

ERISA preempts San Francisco Health Care Security Ordinance

Posted on December 27, 2007
United States District Court for the Northern District of California has held that San Francisco's Health Care Security Ordinance is preempted by ERISA. The ordinance would require private employers with 20 or more employees to make heath care expenditures of specific amounts per hour of work...