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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

DOL redefines "clothes"

Posted on June 16, 2010
On June 16 the DOL issued an Administrator's Interpretation on the meaning of the § 203(o) "changing clothes" exemption to FLSA compensable time. Returning to pre-2002 interpretations, DOL says: "Based on its statutory language and legislative history, it is the Administrator?s interpretation that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job...

EAJA attorney fees are awarded to prevailing parties, not to attorneys

Posted on June 14, 2010
The US Supreme Court today held that attorney fees awarded under the Equal Access to Justice Act (EAJA) are awarded to prevailing parties, not to attorneys. Astrue v. Ratliff (US Supreme Ct 06/14/2010). Ruby Kills Ree successfully sued the US Social Security Administration for Social Security benefits...

Mesothelioma: Employer had duty to protect employee's family

Posted on June 11, 2010
Annette Simpkins died of mesothelioma cancer after being exposed to asbestos fibers brought home on the work clothes of her husband. The trial court dismissed an action by her estate against the husband's former employers, holding that an employer has no duty to protect the family of its employee from the dangers of asbestos brought home on the work clothes of the employee...

Medical house staff union wins NLRB election

Posted on June 11, 2010
A tally of ballots cast by interns and residents at St. Barnabas Hospital in New York today found 119 in favor of joining the Committee of Interns and Residents, Local 1957, SEIU, and two against. An additional 47 ballots were challenged. The election was held in June, 2009, but the ballots were impounded rather than counted when St...

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NLRB moving to electronic voting?

Posted on June 10, 2010
NLRB has issued a request for information on procuring and implementing secure electronic voting services both for remote and on-site elections. The NLRB "requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections; and that has demonstrated experience in protecting similar type elections from both deliberate misconduct and simple error...

NLRB Mobile for smartphones

Posted on June 10, 2010
The National Labor Relations Board today announced the launch of NLRB Mobile. Go see it at http://m.nlrb.gov They say it is a "web-based mobile application." OK. It's not what we iPhone fanatics call an "App." It's a web site that works well with an iPhone and other smartphones...

Employees of private federal prison can be liable to prisoner under Bivens (2-1)

Posted on June 07, 2010
In Pollard v. The GEO Group (9th Cir 06/07/2010) the 9th Circuit (2-1) brushed aside cases from other circuits to hold that employees of private federal prison can be liable to a prisoner under Bivens v. Six Unknown Named Agents, 403 US 388 (1971). Pollard, a federal inmate, sued employees of a private corporation operating a federal prison under contract with the Bureau of Prisons, claiming violation of his 8th amendment rights...

NLRB General Counsel Ronald Meisburg is resigning

Posted on June 02, 2010
The Proskauer law firm announced today that Ronald Meisburg, the NLRB's General Counsel, will be joining the firm. [Press release] Although Meisburg's term runs until August 14, we expect him to resign effective June 20. I can't say enough good things about Ronald Meisburg, a long-time General Counsel and former Member of the NLRB...

Mayo Foundation for Medical Education and Research v. United States

Posted on June 01, 2010
The US Supreme Court granted certiorari today in Mayo Foundation for Medical Education and Research v. United States. [Details, briefs] The issue is whether IRS can categorically exclude medical residents from the student exemption from Social Security tax...

SCOTUS to decide on exempting medical residents from Social Security tax

SG urges certiorari on Arizona's law sanctioning employers who hire unauthorized aliens

Posted on May 28, 2010
The Solicitor General filed a US Supreme Court brief [here] today recommending that certiorari be granted in Chamber of Commerce of the United States v. Candelaria. [Details, all briefs] The recommendation is to grant certiorari as to the question of whether Arizona's statute sanctioning employers who hire unauthorized aliens is preempted by federal law...

SG urges no certiorari in San Francisco ERISA preemption case

Posted on May 28, 2010
The Solicitor General has filed a US Supreme Court brief recommending against granting certiorari in Golden Gate Restaurant Assoc v. City and County of San Francisco. [Details, all briefs] The San Francisco Health Care Security Ordinance requires that covered employers make "required health care expenditures to or on behalf of" certain employees each quarter...

SG urges no cert grant in third-party retaliation case

Posted on May 27, 2010
The US Solicitor General is recommending that the US Supreme Court deny certiorari in Thompson v. North American Stainless, LP. [Details, briefs] The SG says the lower court's decision was wrong, but there's no split between the circuits. The Questions Presented in the certiorari petition: Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity...

SCOTUS: Attorney fees allowed in ERISA case

Posted on May 24, 2010
Hardt v. Reliance Standard Life Ins (US Supreme Ct 05/24/2010): Hardt sued claiming that Reliance Standard violated the Employee Retirement Income Security Act (ERISA) by wrongfully denying her long-term disability benefits. The trial court denied Reliance summary judgment, finding that because the carrier had acted on incomplete medical information, the benefits denial was not based on substantial evidence...

SCOTUS: Firefighters win disparate impact case

Posted on May 24, 2010
Lewis v. City of Chicago (US Supreme Ct 05/24/2010): The City administered a written test to firefighter job applicants in 1995. The City notified applicants of the results at the end of January 1996. Plaintiffs filed an EEOC charge on March 21, 1997 claiming that the test had a disparate impact on black applicants and was not a valid test of firefighting aptitude...

NASA v Nelson brief

Posted on May 23, 2010
The government has filed its opening brief [here] on the merits in NASA v Nelson, pending at the US Supreme Court. The issue is whether NASA's background investigations violate federal contract employee?s constitutional right to informational privacy...

$250 million punitive damages in Novartis sex discrimination case

Posted on May 19, 2010
A federal jury has awarded $250 million in punitive damages against Novartis. The award goes to a class of 5,600 women who claim a pattern or practice of gender discrimination. The jury earlier awarded $3.3 million in compensatory damages to 12 women...

Jury: Novartis to pay $3.3 million plus punitives in sex discrimination case

Posted on May 19, 2010
A federal jury on Monday awarded $3.3 million in compensatory damages to 12 women who claimed a pattern or practice of gender discrimination. On Tuesday the jury began deliberating punitive damages for a class of 5,600. Plaintiffs' lawyers are seeking between $190 and $285 million...

Iqbal applies to OSHA whistleblower cases

Posted on May 19, 2010
Department of Labor's Administrative Review Board has ruled (2-1) that Ashcroft v. Iqbal's pleading standards apply to whistleblower claims brought under a variety of statutes such as the Clean Air Act. Evans v. US Environmental Protection Agency. [Decision]

No mandatory arbitration for DOD contractors

Posted on May 19, 2010
Department of Defense published its interim rule today, implementing Section 8116 of the Defense Appropriations Act for Fiscal Year 2010. Section 8116 forbids contractors (over $1 million) from using or enforcing mandatory arbitration agreements for claims under title VII of the Civil Rights Act of 1964, or tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention...

Cert denied in ERISA preemption case

Posted on May 17, 2010
The US Supreme Court this morning denied certiorari in Standard Insurance Co v. Lindeen, leaving the 9th Circuit judgment unchanged. The Montana insurance commissioner has a practice of disapproving any insurance contract containing a "discretionary clause...

ERISA case cert pending: Standard Insurance Co v Lindeen

Posted on May 13, 2010
Standard Insurance Co. v. Lindeen is a hot ERISA case which is pending certiorari at the US Supreme Court. The Court is expected to decide on Thursday whether or not to grant certiorari. Case below: Standard Insurance Co. v. Morrison (9th Cir 10/27/2009) Question Presented by Petitioner Standard Insurance Co: [Petition for Certiorari full text] In Firestone Tire & Rubber Co...

Nurses vote union

Posted on May 12, 2010
In two recent NLRB elections, nurses have voted in favor of union representation. Nurses at an acute care hospital in Natrona Heights, PA voted 213-61 for SEIU Healthcare Pennsylvania. [Press release] Nurses at a hospital in Houston, TX beat back a decertification election by a vote of 113-97, retaining the California Nurses Association/National Nurses Organizing Committee...

DOL website on union officer elections

Posted on May 12, 2010
Department of Labor has a new website dealing with rights and responsibilities under the Labor-Management Reporting and Disclosure Act. DOL says the site is "interactive," but that's an exaggeration. It really is a multiple-click site. [Website]

Gun possession at works kills workers comp claim

Posted on May 12, 2010
Stanford Isbell won a jury verdict on his claim that the employer discharged him because he had filed a workers compensation claim. The Alabama Court of Civil Appeals reversed. There was uncontroverted evidence that Isbell had taken his .22 caliber target pistol inside the employer's physical plant and had placed it inside a padlocked tool box...

OSHA: Absence on doctor's order was protected activity

Posted on May 12, 2010
A Port Authority Trans-Hudson Corp employee, under a doctor's order, was absent from work while recovering from a work related injury. The employer suspended him for absenteeism. The employee filed a whistleblower complaint with OSHA, and OSHA concluded that following a doctor's order is a protected safety-related act...

RLA election voting procedure is changed

Posted on May 11, 2010
The National Mediation Board (NMB) publishes its final rule in the Federal Register on Tuesday, providing that in Railway Labor Act (RLA) representation disputes, a majority of valid ballots cast will determine the craft or class representative. The RLA applies to railways and airlines...

Richard Bales: Outstanding professor

Posted on May 10, 2010
It comes as no surprise that Professor Richard Bales is the 2010 Frank Sinton Milburn Outstanding Professor at the University of Northern Kentucky. I know Rick as a blogger par excellence at Workplace Prof Blog. This is how the University of Northern Kentucky sees him: Professor Bales is a faculty member of Chase College of Law...

State anti-captive audience law survives suit

Posted on May 09, 2010
A federal judge on Friday dismissed a suit attacking Oregon's anti-captive audience law, which went into effect in January. Oregon statute [SB 519] prohibits an employer from taking an adverse action against an employee who declines to attend an employer-sponsored meeting where the primary purpose is to present the employer's opinion on "political" matters...

New Process Steel v NLRB: Final briefs

Posted on May 03, 2010
New Process Steel v NLRB has been argued at the US Supreme Court, raising the issue of the power of the two-Member NLRB to issue orders. At the Court's request, the parties submitted supplemental briefs on the effect of the President's two recess appointments...

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