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NLRB nominations: An interesting switch
June 30, 2005 by Ross Runkel at LawMemo
The President has nominated Ronald E. Meisburg (Republican) to be General Counsel of the National Labor Relations Board for a term of four years. Meisburg had been nominated to be a Member of the Board, but the President withdrew that nomination. [Press Release]
The President also re-nominated current Board Member Peter C. Schaumber (Republican) whose current term expires in August.
The nomination of Dennis P. Walsh (Democrat) is also pending in the Senate.
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Ronald E. Meisburg |
Peter C. Schaumber |
Dennis P. Walsh |
Others on the Board are Chairman Robert J. Battista (Republican) and Member Wilma B. Liebman (Democrat).
Currently the five-Member Board has two vacancies, and Senate confirmation of all the above folks would still leave one vacancy and the Board would be evenly split between Republicans and Democrats.
Former General Counsel Arthur F. Rosenfeld's term expired June 3, 2005, and John E. Higgins, Jr. is serving as Acting General Counsel.
Thanks to Labor Law Blog, an interesting anonymously-written blog, for the tip.
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US Supreme Court roundup
June 28, 2005 by Ross Runkel at LawMemo
The US Supreme Court has ended its 2004-2005 session. Here's a list of employment cases decided and pending. Pending cases will be argued and decided in the next session beginning in October. For details on these cases see Supreme Court Review: 2004-2005 Employment Law Cases.
Cases decided:
- ADEA allows disparate impact claims (5-3); employees lose on the merits
Smith v. City of Jackson (03/30/2005)
- False Claims Act retaliation claim statute of limitations is the most analogous state statute
Graham County Soil v. US ex rel Wilson (06/20/2005) - Title IX allows private right of action for retaliation (5-4).
Jackson v. Birmingham Board Of Education (03/29/2005) - Plaintiffs must pay tax on that portion of a settlement that went to attorneys as a contingent fee.
Commissioner v. Banks (01/24/2004) - Making and selling sexually explicit video is not expression on a matter of public concern.
San Diego v. Roe (12/06/2004)
Cases pending:
- Does Civil Service Reform Act confer federal court jurisdiction?
Whitman v. Department of Transportation
Decision below: Whitman v. Department of Transportation (9th Cir 08/30/2004) - Is Title VII's 15-employee threshold jurisdictional?
Arbaugh v. Y & H Corp
Decision below: Arbaugh v. Y&H Corp (5th Cir 08/02/2004) - Does the 1st amendment protect schools from losing federal funds when they refuse to allow military recruiters? (The Solomon Amendment case)
Rumsfeld v. Forum For Academic and Institutional Rights
Decision below: Forum For Academic and Institutional Rights v. Rumsfeld (3rd Cir 11/29/2004) - Does the 1st amendment protect a deputy district attorney who wrote a memo to his supervisor alleging that a deputy sheriff lied on a search warrant application?
Garcetti v. Ceballos
Decision below: Ceballos v. Garcetti (9th Cir 03/22/2004) - Is time spent walking to the worksite after donning protective clothing compensable under the FLSA and Portal-to-Portal Act?
Tum v. Barber Foods
Decisions below: Tum v. Barber Foods (1st Cir 03/10/2004); Alvarez v. IBP, Inc. (9th Cir 08/05/2003)
Employment Law Memo subscribers will get a same-day report when the Supreme Court decides these pending cases.
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Cert granted on Civil Service Reform Act
June 27, 2005 by Ross Runkel at LawMemo
The US Supreme Court granted certiorari on June 27 to review a 9th Circuit holding that the federal Civil Service Reform Act "does not confer federal court jurisdiction over statutory and constitutional claims concerning employment-related matters within the scope of the negotiated grievance procedures of a federal employee's collective bargaining agreement." Whitman v. Department of Transportation (Docket No. 04-1131).
Terry Whitman claimed his employer, the Federal Aviation Administration, disproportionately tested him for substance abuse in violation of the first amendment and the federal statute on mandatory drug testing.
First Whitman filed a charge with the Federal Labor Relations Agency, but the FLRA said his claim was not within its jurisdiction. FLRA said his recourse was through the grievance procedures of his collective bargaining agreement.
Whitman did not pursue the grievance procedure of the collective agreement.
Whitman sued the FAA in federal district court, and that court said it had no subject matter jurisdiction. The 9th Circuit agreed. Whitman v. Department of Transportation (9th Cir 08/30/2004).
The 9th Circuit's reasoning:
- The FAA Management System, including certain provisions of the Civil Service Reform Act (CSRA), governs FAA employees' employment rights and generally does not allow federal court suits.
- The CSRA requires collective bargaining agreements to include procedures for resolving "grievances," and defines "grievance" broadly to include Whitman's claims.
- Before 1994 CSRA provided that the collectively bargained procedures "shall be the exclusive procedures for resolving grievances." The 1994 amendment provided that the collectively bargained procedures "shall be the exclusive administrative procedures for resolving grievances."
- Although the Federal and 11th Circuits have held that the 1994 amendment established an employee's right to seek a judicial remedy, those cases are wrong because the 1994 amendment "does not constitute an express grant of federal court jurisdiction."
Interesting that Whitman represented himself in the 9th Circuit and is now represented by Thomas C. Goldstein of Goldstein & Howe, a firm that specializes in representing clients before the US Supreme Court.
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Anti-class-action clause was unconscionable
June 27, 2005 by Ross Runkel at LawMemo
It's not clear what effect Discover Bank v. Superior Court (California 06/27/2005) will have on anti-class-action clauses in employment arbitration agreements.
For consumer-cardholders suing banks for $29 each, such clauses are unconscionable under California law.
But the decision was quite limited:
We do not hold that all class action waivers are necessarily unconscionable. But when the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then, at least to the extent the obligation at issue is governed by California law, the waiver becomes in practice the exemption of the party “from responsibility for [its] own fraud, or willful injury to the person or property of another.” (Civ. Code, § 1668.) Under these circumstances, such waivers are unconscionable under California law and should not be enforced.
For more details, see Arbitration Blog.
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False Claims Act retaliation claim statute of limitations
June 20, 2005 by Ross Runkel at LawMemo
The US Supreme Court says the statute of limitations for False Claims Act retaliation claims is the most analogous state statute. Graham County Soil v. US ex rel Wilson (US Supreme Court 06/20/2005).
Wilson sued under the federal False Claims Act (FCA) claiming her employer retaliated against her for alerting federal officials to purported fraud and for cooperating with the ensuing investigation. The trial court dismissed the suit as untimely under the state's 3-year statute of limitations; the 4th Circuit reversed, applying the FCA's 6-year limitation period; the US Supreme Court reversed.
The US Supreme Court held: The appropriate statute of limitations in a False Claims Act retaliation case is the most closely analogous state statute, not the 6-year period stated in the FCA.
My view: (1) Typically state statutes of limitations will be shorter than six years. (2) Plaintiffs often join a retaliation claim with a qui tam action in the Government's name (hoping to collect a portion of the ill-gotten gains). The qui tam claim will governed by the federal six-years statute of limitations.
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Practical joke not covered by insurance
June 16, 2005 by Ross Runkel at LawMemo
True story. A dentist's employee needed an extraction. The dentist put her under anesthesia and had some fun with a practical joke. He put false teeth shaped like boar tusks into her mouth and took pictures, then finished the legitimate dental work.
That was the last day of work for the employee, who then sued the dentist for assault, outrage, and so on. The dentist asked his insurance company to defend him, and the company refused. After the dentist settled with the employee, he sued the insurance company alleging bad faith breach of the duty to defend. A jury returned a verdict for the dentist, but the Washington Court of Appeals reversed. Woo v. Fireman's Fund (Washington Ct App 06/13/2005).
The dentist had three insurance policies, none of which covered the situation.
- Dental professional liability. The court said no reasonable person would believe a dentist would treat dental problems with false boar teeth, so when he did that he was not performing dental services. He was taking "actions for his own purposes rather than for her treatment."
- Employment practices liability. To be covered by this policy, the employee must have been claiming "wrongful discharge" arising out of a "wrongful employment practice." The court pointed out that the employee's complaint against the dentist "would not conceivably constitute the tort of wrongful discharge."
- General liability. This policy provided coverage for personal injury arising from the business. However, the dentist's actions were not part of his business, and what happened could not be called an "accident."
My view: Check the insurance policy before inserting the boar tusks.
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Bannering was not unlawful secondary picketing
June 10, 2005 by Ross Runkel at LawMemo
It can be a fine line between free speech protected by the first amendment and secondary picketing that violates the National Labor Relations Act (NLRA). Today's issue of Employment Law Memo tells the story:
Overstreet v. United Brotherhood of Carpenters (9th Cir 06/08/2005).
The NLRB's Regional Director sued the union under NLRA Section 10(l) seeking to enjoin an alleged violation of Section 8(b)(4)(ii)(B). The trial court denied the injunction; the 9th Circuit affirmed (2-1).
The union had a dispute with three contracting companies, objecting to their failure to hire union employees and alleged failure to meet local labor standards. In an effort to induce the contractors to change their practices, the union put pressure on 18 "retailers" who did business with them. Near each retailer, the union set up a 4x15 foot banner that read "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in smaller black letters on each side. Individual union members held the banners from 20 to several hundred feet from the retailers' entrances. The union members remained stationary, did not block entrances, and did not confront customers.
(1) The court announced a new standard for granting Section 10(l) injunctions. Previously the standard was highly deferential to the Regional Director: whether the Regional Director had "reasonable cause" to believe the union violated Section 8(b)(4)(ii)(B). The court adopted the same standard used in Section 10(j) cases, which is the ordinary standard generally governing issuance of injunctions, including whether the Regional Director has a "fair chance of success on the merits." Additionally, because this particular case had 1st amendment overtones, the court said there should be no deference at all to the NLRB's conclusions and that there must be a "particularly strong" showing of likely success.
(2) The court held that the Regional Director was unlikely to succeed on the merits. The union conceded that its goal was to dissuade customers from patronizing the retailers, which had the goal of encouraging the retailers to cease doing business with the contractors. Thus, the issue was whether the union's actions fit the "threaten, coerce, or restrain" portion of Section 8(b)(4)(ii)(B). Here there was no "coercing" because there was no "picketing," and no one-on-one physical interaction or communication. The court also concluded that the union was not engaged in "signal picketing" (a signal to employees of the secondary employers) because the banners were directed toward passing motorists and were not directed at employees.
(3) The court rejected the argument that the banners were fraudulent in that they used the phrase "labor dispute" - suggesting that the union had a primary dispute with the retailers rather than with the contractors. The banners were not false because the union in fact did have a labor dispute with the secondary businesses (retailers).
The DISSENT said the Regional Director was likely to prevail on the "fraudulent speech" claim because the banners falsely conveyed the message that the union had primary labor disputes with the secondary employers, that is, that the retailers were treating their employees shamefully.
My view: Let the law review articles begin.
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Privacy vs. union organizing
June 09, 2005 by Ross Runkel at LawMemo
A statutory right to privacy may block a traditional union organizing tool. Union organizers often need a list of employee names and addresses so they can visit the employees at home and talk them into joining. One way to get a list is to take down license plate numbers in the employer's parking lot and run them through the state motor vehicle records.
This practice probably is unlawful due to the federal Driver's Privacy Protection Act of 1994 (DPPA) which forbids individuals from obtaining and using personal information from a motor vehicle record for any purpose other than purposes permitted by the DPPA. The minimum statutory damages are $2,500.
When UNITE tried to organize an employer, some employees sued under DPPA. And now the federal district court for the Eastern District of Pennsylvania has certified a class of plaintiffs consisting of:
All persons whose license plate numbers were used by UNITE, directly or indirectly, individually or jointly, as part of an effort to knowingly obtain, use and/or disclose personal information from motor vehicle records between July 1, 2002 and August 2, 2004.
The case is Pichler v. Unite, and the 75-page opinion is [here].
My view: This case probably spells the end of this method for getting names and addresses of employees.
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George's Employment Blawg
June 08, 2005 by Ross Runkel at LawMemo
Two years of blogging is a long time. Happy second birthday (May 12) to George's Employment Blawg, written by George L. Lenard, partner at Harris Dowell Fisher & Harris and Michael M. Harris, Ph.D., Vice President of Litigation Support Services for EASI Consult.
George's Employment Blawg is always reliable, frequently updated, creative (e.g., podcasting, occasional photos), and usually stays on the subject of employment law.
I read it every day using a news reader.
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Article: How Employment Discrimination Plaintiffs Fare
June 07, 2005 by Ross Runkel at LawMemo
Statistically, plaintiffs don't do well in employment discrimination cases, and here's an article that provides the details. Professors Kevin M. Clermont and Stewart J. Schwab of Cornell Law School published "How Employment Discrimination Plaintiffs Fare in Federal Court" in the Journal of Empirical Legal Studies, and it is now available on the web [here].
Authors' Abstract:
This article presents the full range of information that the Administrative Office's data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs.
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Refusing to Retire: What Can Be Done
June 06, 2005 by Ross Runkel at LawMemo
Judge Richard Posner, who would prefer to repeal the Age Discrimination in Employment Act (ADEA), is proposing that old folks take a test. You have to read the whole thing on The Becker-Posner Blog [here], but here's an extract:
I wish to make a suggestion that would achieve the principal benefits of mandatory retirement without the principal costs. It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor's department or the judge's court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.
My view: I'd be more interested if Judge Posner would give a better explanation of why the test should not be given to all judges and profs.
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EEOC notice not posted might toll tardy filing
June 02, 2005 by Ross Runkel at LawMemo
Two former employees filed EEOC charges late, but still might be able to sue under Title VII if the employer did not post EEOC notices.
Title VII says EEOC charges must be filed within 300 days of the alleged unlawful practice. Title VII also requires employers to post a notice approved by the EEOC. The employees clearly filed after the 300 day period. However, the employees claimed the employer did not post the notice.
The 300 day filing period is subject to equitable tolling. The trial court thought that tolling takes place only when the employee is "actively misled" by the employer. Not so, said the 1st Circuit. Mercado v. The Ritz-Carlton (1st Cir 05/31/2005).
"An employer's violation of the EEOC posting requirement may provide a second basis for an extended filing period 'where the employee had no other actual or constructive knowledge of [the] complaint procedures.'"
The court listed a bunch of factual questions that the trial court will have to sort out: Did the employees have actual knowledge of their Title VII rights? Did they have constructive knowledge? Did the employer in fact post the notice? Did the employee handbook provide notice? Why did the employees wait 10 months to see a lawyer? Although the employees saw a lawyer before the 300 days ran (one day and ten days, respectively), why were EEOC charges not filed until 33 days later? Was the employer prejudiced by the delay? And when, exactly, did the 300 day period begin?
My view: (1) Employers should post the EEOC notices. (2) Employees should file with the EEOC in a timely manner.
From another blog: Michael Fox's Jottings By An Employer's Lawyer [here].
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