Labor & Employment Law

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...

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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.

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