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Labor & Employment Law

Ross' Employment Law Blog

By Ross Runkel, Professor of Law Emeritus, arbitrator, and editor at LawMemo.Com - First in Employment Law.

Post Frequency: 4.8/day

Last Entry: March 29, 2011 at 20:01:45

Supreme Court grants cert in giant class action case.

Posted on December 06, 2010
[Corrected as to the questions that will be briefed and argued] The US Supreme Court granted certiorari today in Wal-Mart Stores v. Dukes. [Details; Briefs] Background: Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII...

Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari?

Posted on December 01, 2010
On Friday, December 3 the US Supreme Court will have a private conference. One big case under consideration for granting certiorari is Wal-Mart Stores v. Dukes. [Details; Briefs] We'll know on Monday what the Court does on Friday. Background: Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII...

SCOTUS argument recap: CIGNA v. Amara

Posted on December 01, 2010
For an excellent recap of yesterday's US Supreme Court oral arguments in CIGNA Corporation v. Amara, read what Jason Steed wrote for SCOTUSblog. The issue in this case is whether a showing of ?likely harm? is sufficient to entitle participants in or beneficiaries of an ERISA plan to recover benefits based on an alleged inconsistency between the explanation of benefits in the Summary Plan Description or similar disclosure and the terms of the plan itself...

SCOTUS Transcript: CIGNA Corporation v. Amara

Posted on December 01, 2010
Here is the transcript of today's US Supreme Court oral argument in CIGNA Corporation v. Amara. [Details; briefs] The issue: Whether a showing of "likely harm" is sufficient to entitle participants in or beneficiaries of an ERISA plan to recover benefits based on an alleged inconsistency between the explanation of benefits in the Summary Plan Description or similar disclosure and the terms of the plan itself...

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US Supreme Court: Does FELA require proof of proximate causation?

Posted on November 29, 2010
Today the US Supreme Court granted certiorari in CSX Transportation v. McBride. [Details; briefs] The issue: Whether the Federal Employers' Liability Act, 45 U.S.C. �� 51-60, requires proof of proximate causation. McBride sued under the Federal Employers? Liability Act (FELA) seeking compensation for an injury that he sustained while performing switching operations for his employer...

FICA tax for medical residents - Supreme Court argument

Posted on November 08, 2010
On November 8 the US Supreme Court will hear oral arguments in Mayo Foundation for Medical Education and Research v. United States. [Details; Briefs] This case will resolve the question of whether the IRS can categorically exclude medical residents from the student exemption from Social Security tax...

J. Picini Flooring: Electronic NLRB notices

Posted on October 26, 2010
J. Picini Flooring, et al. (28-CA-21229, et al.; 356 NLRB No. 9) Las Vegas, NV, October 22, 2010. (J & R Flooring, Inc. d/b/a J. Picini Flooring and Freeman's Carpet Service, Inc. and FCS Flooring, Inc. and Flooring Solutions of Nevada, Inc., d/b/a FSI) The NLRB held that respondents found to have violated the National Labor Relations Act should be required to distribute remedial notices electronically, such as by email, posting on an intranet or internet site, in addition to physical posting of paper notices on a bulletin board, when that is their customary means of communicating with employees or members...

NLRB to reconsider graduate students ruling

Posted on October 26, 2010
The NLRB has announced that it will reconsider its decision in Brown University, 342 NLRB 483 (2004) , which held that graduate students performing provide teaching and research services at Brown University are not employees within the meaning of Section 2(3) of the Act...

NLRB orders compound interest, electronic notice posting

Posted on October 25, 2010
In a pair of decisions made public today, the National Labor Relations Board adopted two new remedial policies: adding daily compound interest to backpay and other monetary awards and requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases...

SCOTUS: Is an oral complaint protected conduct under FLSA's anti-retaliation provision?

Posted on October 12, 2010
The US Supreme Court hears oral argument on October 13 in Kasten v. Saint-Gobain Performance Plastics. [Details, briefs] Kasten sued the employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer...

SCOTUS takes 1st amendment employment case

Posted on October 12, 2010
Today the US Supreme Court granted certiorari to decide whether the first amendment protects government employees from retaliation for petitioning on a matter of purely private concern. The case: Borough of Duryea v. Guarnieri [Details, briefs] In 2003 the Borough dismissed Guarnieri from his job as police chief; Guarnieri filed a union grievance which led to an arbitration; Guarnieri prevailed and was reinstated to his position...

Don't Ask Don't Tell enjoined nationwide

Posted on October 12, 2010
Today the US District Court for the Central District of California issued an immediate and nationwide permanent injunction against enforcement of the military?s Don?t Ask, Don?t Tell policy. Log Cabin Republicans v. United States [Injunction] [Findings, Conclusions]

NASA v. Nelson: Employee background checks vs. privacy at the Supreme Court

Posted on October 04, 2010
On Tuesday the US Supreme Court will hear oral arguments in National Aeronautics and Space Administration [NASA] v. Nelson. [Details and briefs] [Detailed analysis from SCOTUSblog] Nelson requested a preliminary injunction to prevent implementation of the employer's requirement for in-depth background investigations of "low risk" employees of federal contractors...

Don't Ask Don't Tell Act is unconstitutional and will be enjoined.

Posted on September 11, 2010
The case: Log Cabin Republicans v. United States (CD Calif 09/09/2010) Log Cabin Republicans sued seeking a declaratory judgment and an injunction against enforcement of the federal military's Don't Ask Don't Tell Act, 10 USC � 654, and related regulations...

City ordinance penalizing employers who hire undocumented immigrants is preempted.

Posted on September 09, 2010
The 3rd Circuit today struck down Hazleton, Pennsylvania's ordinance that penalizes employers who hire undocumented immigrants. Lozano v. City of Hazleton (3rd Cir 09/09/2010). The City's Illegal Immigration Relief Act Ordinance (IIRAO) provides, among other things, that the City may suspend the business license of any employer who employs a worker who is not authorized to work in the United States...

Wal-Mart wants review of 1.5 million member class action

Posted on August 26, 2010
Wal-Mart has petitioned the US Supreme Court for certiorari to review a 9th Circuit decision that upheld certifying a class of approximately 1.5 million women who are claiming sex discrimination as to pay and managerial promotions in violation of Title VII...

Supreme Court recap: Employment Law

Posted on July 02, 2010
Brief summaries of cases decided by the US Supreme Court during the term that ended last week, plus cases in which certiorari has been granted: *** Cases Decided *** Disparate Impact: Use of an earlier unlawful employment practice states a disparate claim...

NLRB will re-hear 2-Member decisions

Posted on July 01, 2010
New Process Steel v. NLRB (US Supreme Court 06/17/2010) held that NLRB orders were invalid when they were issued during the 27 months that there were only two Members on the Board. Here is what the NLRB says it will do now [Press release]: July 1, 2010 Contact: Office of Public Affairs 202-273-1991 publicinfo@nlrb...

Thompson v. North American Stainless: Briefs

Posted on June 29, 2010
Today the US Supreme Court granted certiorari in Thompson v. North American Stainless, raising the issue of whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protect activity. [More details in my earlier post, here] Here are the briefs relating to the grant of certiorari: Petition for certiorari Brief in opposition Petitioner?s reply Brief for the United States as Amicus Curiae recommending denial

Third party retaliation: SCOTUS will decide Thompson v. North American Stainless

Posted on June 29, 2010
The US Supreme Court this morning granted certiorari in Thompson v. North American Stainless, to decide whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protect activity. [Details, briefs] 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...

Supreme Court will decide on preemption of Arizona's unauthorized aliens statute

Posted on June 28, 2010
The US Supreme Court granted certiorari today to review the case on preemption of the Arizona statute that imposes sanctions on employers who hire unauthorized aliens and makes participation in E-Verify mandatory. The case: Chamber of Commerce v. Candelaria (Certiorari granted 06/28/2010) Arizona's Legal Arizona Workers Act provides for suspension or revocation of business licenses of employers who knowingly or intentionally hire unauthorized aliens (using IRCA?s definition of "unauthorized alien") and makes participation in E-Verify mandatory for employers...

Supreme Court will review "likely harm" standard in ERISA claim

Posted on June 28, 2010
The US Supreme Court granted certiorari today to review a 2nd Circuit judgment. The case: CIGNA Corp v. Amara (Certiorari granted 06/28/2010) After CIGNA converted its traditional defined benefit pension plan to a cash balance plan, it issued a summary plan description (SPD) to plan participants...

SCOTUS: Court, not arbitrator, decides CBA's ratification date; new cause of action for tortious interference rejected

Posted on June 24, 2010
Today's US Supreme Court decision in Granite Rock Co v. Teamsters (US Supreme Ct 06/24/2010) The employer sued a local union and an international union under Labor Management Relations Act Section 301(a) claiming that (1) the local union breached a collective bargaining agreement (CBA) by going on strike, and (2) the international union tortiously interfered with the CBA...

5-Member NLRB after Senate confirmations

Posted on June 22, 2010
The Senate today confirmed the nominations of Republican Brian Hayes and Democrat Mark Pearce as Members of the NLRB. This brings the Board to full 5-Member strength for the first time since December 2007. Member Craig Becker, serving a recess appointment, was not confirmed...

DOL: FMLA leave for same-sex partner's child

Posted on June 22, 2010
Department of Labor today issued Administrator's Interpretation No. 2010-3 which is intended to make clear (among other things) that an employee can qualify for Family and Medical Leave Act (FMLA) leave to care for the son or daughter of a same-sex partner...

SCOTUS: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4)

Posted on June 21, 2010
The US Supreme Court decided Rent-A-Center West v. Jackson (US Supreme Ct 06/21/2010) this morning. When he was hired, Jackson signed an agreement to arbitrate all future disputes. That agreement provided: "The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable...

Gays to get family leave

Posted on June 21, 2010
The AP is reporting that the Department of Labor intends to issue regulations on Wednesday ordering businesses to give gay employees equal treatment under the Family and Medical Leave Act (FMLA). From the AP: The Labor Department intends to issue regulations this week ordering businesses to give gay employees equal treatment under a law permitting workers unpaid time off to care for newborns or loved ones...

Solomon is NLRB's Acting GC

Posted on June 20, 2010
President Obama has named veteran NLRB attorney Lafe Solomon to serve as Acting General Counsel, the top investigative and prosecutorial position in the agency. The designation is effective Monday, June 21, 2010. Mr. Solomon, who began his agency career as a field examiner in Seattle in 1972, directed the NLRB?s Office of Representation Appeals for the past decade...

NLRB cannot act when only two of its five positions are filled (5-4)

Posted on June 17, 2010
The US Supreme Court today decided (5-4) that the NLRB cannot act when only two of its five positions are filled. New Process Steel v. NLRB (US Supreme Ct 06/17/2010). The NLRB had only two Members (instead of the normal five Members) from the end of 2007 until March 2010...

Search of police pager text messages was reasonable, so no 4th amendment violation

Posted on June 17, 2010
As expected [here], the US Supreme Court held today that the City's search of a police pager text messages was reasonable, so there was no 4th amendment violation by the City. City of Ontario v. Quon (US Supreme Ct 06/17/2010). The City provided alphanumeric pagers to police officers on the SWAT team...

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