Labor & Employment Law

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...

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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...

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